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U. S. DEPARTM ENT OF LABOR
JAMES J. DAVIS, Secretary

BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner

BULLETIN OF THE UNITED STATES \
i l 7
BUREAU OF LABOR S T A T I S T I C S / .................... l l O e 4 1 1
L A B O R L A W S O F T H E U N IT E D S T A T E S S E R IE S

DECISIONS OF COURTS AND
OPINIONS AFFECTING LABOR

1925

AUGUST, 1926

WASHINGTON
GOVERNMENT PRINTING OFFICE
1926

ACKNOWLEDGMENT

This bulletin was prepared by Lindley D. Clark and Stanley J.
Tracey, of the Bureau of Labor Statistics.
II

CONTENTS
Paso
Introduction_____ ,________ ___________________________________________________
1, 2
Opinions of the Attorney General_____________ ________________________________
3-8
Honrs of labor—eight-hour day— public works of the United States—
' foreign countries________________________________________________________
3,4
Retirement of public employees— classified civil service of the United
States___________________________________________________________________
4, 5
5,6
Steam vessels— Federal inspection of State-owned vessels______________
Workmen’s compensation—
“ Employees of the United States”— seamen on Shipping Board
vessels______________________________________________________________
6-8
United States Employees' Compensation Commission— powers—
“ personal injury ”— disease-_______________________________________
8
Decisions «€ courts affecting labor_______________ ______________________________ 9-276
Aliens:
Employment as fishermen— treaty rights— powers of State (Lubetieh v . Pollock)-------------------------------------------------------------------------------9
Right to do business— constitutionality of ordinance (George v.
City of Portland)----------------------------------------------------------------------------- 9-11
Associations:
Contract of employment— liability of unincorporated organization
(Cousin v, Taylor et a l.)-----------------------------------------------------------------11,12
Contractors'
organization— monopolies— commerce— antitrust
act
(United States v. Fur Dressers’ & Fur Dyers’ Assn. (Inc.)____ 12-14
Employers' organizations—
contract of membership— restraint of trade— fixing wages (Androff v. Building Trades Employers* Assn.)___________________14,15
monopolies— black list— interference with employment— Clayton
Act (Tilbury v. Oregon Stevedoring Co.)_____________________ 15,16
Benefit funds:
Contract to furnish medical attention— duty of employer (SlossSheffield Steel & Iron Co. v. Maxwell)___________________________ 16,17
Railway relief association— rules— right of appeal (Hanson v.
Chicago, Burlington & Quincy R. Co.)_____________________________17-19
Contract of employment:
Agreement not to engage in competing business— injunction (City
Ice Delivery Co. v. Evans)________________________________________ 19-21
Agreement not to solicit customers— injunction (New York Linen
Supply & Laundry Co. (Inc.) v. Schachter et a l.)--------------------------21
Breach—award by Railroad Labor Board— acceptance of arbitra
tion— strike as cause of delay in return to work (Hoey v. New
Orleans Great Northern R. Co.)------------------------------------------------------ 21-23
Breach— discharge without notice— grounds (Ehlers v. Langley &
Michaels Co.)----------------------------------------------- ----------------------------------- 23,24
Discharge— right to subsequent commissions (William v. Edward
A. Thompson (In c .))---------------------------------------------------------------------24

CONTENTS

Contract of employment— Continued.
Pago
Enforcement— statute of frauds (McLellan v. McLellan)____________
25
Enticing laborers— construction of statute (Rhoden v. State)______ 25,26
Oral modification— profit sharing (M. Shiloff Grc-cery Co. v. Eberline et a l.)__________________________________________________________26,27
Retirement pay— status of offer of employer— consideration (Shear
Co. v. Harrington)----------------------------------------------------------------------------27-29
Right to deliver speech— property right— injunction (City of Louis
ville et al. v. Lougher)______________________________________________ 29,30
Convict labor:
Manufacturing in State prison— monopoly— constitutionality of stat
ute (Rice v. State ex rel. Short, Attorney General)_______________ 30-32
Marking goods— construction of statute— enforcement (Choctaw
Pressed Brick Co. v. Townsend, Warden of State Penitentiary)------ 33,34
Employer and employee— service letter— construction of statute (Soule v.
St. Joseph Ry., Light, Heat & Power Co.)--------------------------------------------34,35
Employers’ liability:
Action by personal representative— constitutionality of statute (Stargo Mines Co. v. Coffee)--------------------------------------------------------------------35, 36
Admiralty—
Federal statute— negligence (United States Shipping Board
Emergency Fleet Corporation v. O’Shea)_____________________36-38
Federal statute— stevedore in coastwise trade in Alaska (Alaska
S. S. Co: v. McHugh ) ___________________________________________
33
repairs on completed vessel— effect of State law (Robins Dry
Bock & Repair Co. v. Dahl)__________________________________
39
right of injured seaman to maintenance and cure (Morris v.
United States)---------------------------------------------------------------------------- 40, 41
vessel in ‘‘ graven dock”— workmen’s compensation (Butler v,
Robins Dry Dock & Repair Co.)----------------------------------------------- 41,42
workmen’s compensation— action for death of employee— State
law (Roswall v. Grays Harbor Stevedore Co.)_______________ 42-44
workmen’s compensation— payments for time lost (Kantieberg
v. G. M. Standifer Const. Co.)________________________________ 44,45
Factory regulations— unguarded machinery (Mabe v. Gille Mfg. Co.)_ 45-47
Injury to third party—
duty of carrier to passenger— acts of strikers (Yellow Cab Co.
of Atlanta v. Carmichael)----------------------------------------------------------47,48
negligence— status of coal-mine inspector— licensed mine engi
neers (Folsom Morris Coal Mining Co. v. Scott)--------------------- 48,49
“ volunteer ”— stranger assisting servant in emergency (Baringer
v. Zachery)----------------------------------------------------------------------------------50,51
Insurance— representation— conflict of interests— minor unlawfully
employed (Fidelity & Casualty Co. of New York v. Stewart Dry
Goods Co.)---------------------------------------------------------------------------------------- 51,52
Medical services— contract surgeon— malpractice— damages (Borgeas
v. Oregon Short Line R. Co. et aL)------------- --------------------------------- 52,53
Medical treatment— negligence (Koviacs v. Edison Portland Cement
54
Co.)_________________________________________________________________
Minor unlawfully employed—
contributory negligence— workmen’s compensation (Gwitt v.
F o ss)-------------------------------------------------------------------------------------------54, 55
criminal offense— evidence (Rost v. F. H. Noble & Co.)________ 55,56
negligence (Johnson v. Endura Mfg. Co.)_______________________ 56-58

CONTENTS

Employers’ liability— Continued.
Minor unlawfully employed— Continued.
Page
receipt of compensation payments (Wlock v. Fort Dummer
Mills)___________________________________________________________58,59
safe place and appliances— contributory negligence (Buffam v.
F. W . Woolworth Co.)-------------------------------------------------------------- 59-61
Negligence—
assumption of risk— brakeman falling from caboose (Friermood
v. Oregon-Washington Railroad & Navigation Co.)____________ 61, 62
contributory negligence—
duty of employer— dangerous chemical (Chicago, R. I. &
P. Ry. Co. v. Cheek)_______________________________________ 62-64
guard injured by strikers (Behalf v. Bourland)_____________ 64-66
Negligence of foreman— State mining law (Philadelphia & Reading
Coal & Iron Co. v. Kever)___________________________________ 66,67
Railroad companies—
Federal statute—
horseplay— course of employment— negligence (Griffin v.
Baltimore & Ohio R. Co.)_________________________________ 67, 68
interstate commerce—
protection due employees during strike (St. Louis-San
Francisco Ry. Co. v. M ills)___________________________ 68-70
street railway (Borelii v. International Ry. Co.)______ 70,71
negligence— contributory negligence— damages (Rigsbee v. At
lantic Coast Line R. C o.)_____________________________________ 71,72
safety appliances—grab irons (Davis, Director General of Rail
roads, v. Manry)_______________________________________________ 72,73
simple tool doctrine (Thompson v. Chicago Great Western R.
Co.)----------------------- ^------------------------------------------------------------------- 73,74
Release— contract for life employment (Gerard B. Lambert Co. v.
Fleming)___________________________________________________________ 74,75
Relief department— claim— notice— statute of limitations (Carmody
v, Pennsylvania Co.)______________________________________________ 75-77
Workmen’s compensation—
coverage— election (Bannon v, Watson)_________________________ 77,78
disease— action for damages (Donnelly v. Minneapolis Mfg.
Co.)____ - _______________________________________________________ 78,79
election— estoppel (Queek-Berner v. Macy)---------------------------------- 79,80
railroad companies— Federal statute— conflict of laws— damages
(Schendel v. Chicago, R. I. & P. R. Co.)______________________ 80-82
Employment agencies— licenses— constitutionality of statute (McBride,
Commissioner of Labor, v. Clark; Clark v. McBride, Commissioner of
Labor)__________________________________________________________________ 82,83
Employment of labor— occupation tax— constitutionality of statute (Ma
rion Foundry Co. v. Landes, City Auditor, et a l.)----------------------------------84, 85
Examination, licensing, etc., of workmen:
Barbers— ex post facto law (State v. Wester)------------------------------------- 85,88
Plumbers— constitutionality of statute (Replogle v. City of Little
Rock)_______________________________________________________________ 86-88
Factory, etc., regulations— licensing— inspection— powers of municipal
ity— constitutionality of ordinance (Barnard & Miller v. City of
Chicago)________________________________________________________________ 88,89
Hours of labor— eight-hour day— ‘'public work” (State v. Peters)--------89,90
Hours of labor on public works— constitutionality of statute— penal pro
visions (State v. A. H. Read Co.)_____________________________________ 90,91

CONTENTS

Page
Intimidation— warning by employer— libel— slander (Decker v. Kentucky
Coke Co.)_______________________________________________________________ 91,92
Labor organizations:
Actions— process— jurisdiction— representation (Christian v. Inter
national Assn. of Machinists et a l.)------------------------------------------------- 92-94
Boycott— secondary boycott— interstate commerce— interference with
employment— acts of persons not employees— injunction (Western
Union Telegraph Co. v. International Brotherhood of Electrical
Workers, Local Union No. 134)__________________________________ — 94-97
Consolidation over protest— rules— violation— court review— injunc
tion (Powell u. United Association of Plumbers and Steamfitters
of United States and Canada)--------------------------------------------------------97,98
Conspiracy—
interference with employment—
contract as property— injunction (J. C. McFarland Co. v.
O’B rien )__________________________________________________98-100
fines levied against employer (People v. Walczak)________ 100,101
interference with performance of contract— injunction— jurisdic
tional awards (O’Brien v. Fackenthal)------------------------- ------- 101,102
interference with the mails— violation of injunction— contempt
(Taylor v. United States)___________________________________ 102,103
picketing— injunction— Clayton Act (Waitresses Union, Local
No. 248, v. Benish Restaurant Co. (In c.))______________________
104
Criminal syndicalism — communism — advocacy of criminal acts
(People t>. Ruthenberg)---------------------------------------------------------------- 104-106
Exclusion of member— refusing transfer card— damages (Local
Union No. 65, Amalgamated Sheet Metal Workers' International
Alliance v. Nalty)____________________________________________ ___ 106,107
Expulsion of local— power of courts (Greenwood v. Building Trades
Council of Saoramento et a l.)------------------------------------------------------108-110
Expulsion of member—
liability for damages— seniority rights (Order of Railway con
ductors i?. Jones)------------------------------------------------------------------- 110,111
right to membership— rules (Simons v. Berry)--------------------- 111, 112
Injunction— contempt— libel (Vulcan Detinning Co. v. St Clair)— 112,114
Interference with employment—
closed-shop agreement— procuring discharge of nonunion worker
(Harmon v. United Mine Workers of America)------------------- 114,115
injunction (Vail-Ballou Press (Inc.) v. Casey)-------------------------115,116
Picketing— constitutionality of ordinance (Thomas v. City of Indian
apolis)____________________________________________________________ 116,117
Strike—■
advertisement for new employees— construction of statute (West
Allis Foundry Co. v. State)-----------------------------------------------------117-119
conspiracy— restraint of interstate trade— Sherman antitrust act
( Vandell et al. v. United States)----------------------------------------------119
injunction— attempting to prevent employer from abandoning
department of business (C. B. Rutan Co. v. Local Union No.
4, Hatters’ Union of America)----------------------------------------------- 119,120
(See also Associations.)
Old-age pensions— constitutionality of statute— status as “poor law ”—
retirement of State employees (Busser v. Snyder, State Treasurer,
et a l)_________________________________________________________________ 120-122
Railroad Labor Board— powers— jurisdiction— attendance of witnesses
(Robertson v. Railroad Labor Board)________________________________ 122,123

CONTENTS

VII

Railroads—
Page
State and Federal regulations—protection of health of employees—
locomotive cab curtains— constitutionality of statute (Chicago &
N. W. Ry. Co. v. Railroad Commission of Wisconsin)---------------- 123-125
Strikes—detention of cars— penalty— justification (Davis, Agent, v.
Keystone Steel & Wire Co.)_____________________________________ 125, 126
Sunday labor— operation of grocery stores, etc.— police power of city—
construction of ordinance (State v. Somberg)-----------------------------------126-128
W ages:
Assignment of future earnings— garnishment by third party (South
ern Ry. Co. v. Beneficial Loan Society)---------------- •_________________
128
Bonus—
computation—offsets (Girman v. Hampel)------------------------------- 123,129
contract— rights of employee after leaving employment (W ell
ington v. Con P. Curran Printing Co.)______________________ 129,130
payment at end of year— term of contract (Meredith v. Carl
Youngstrom Co.)— _----------- --------------------------------------------------- 130,131
Exemption— constitutionality of statute (Verino v. Hickey et u x.)— 131,132
Garnishment—
contracts for payments in advance—-effect (Packard Motors Co.
of Alabama v. Tally)_______________________________________ 132-134
debt earned and payable in foreign country (Weitzel t*.
Weitzel)_____________________________________________________ * 134,135
Minimum wage law—
constitutionality of statute— minor employees (Stevenson t>. St.
Clair)__________________________________________________________
135
construction of statute— constitutionality (Murphy, Attorney
General, v. Sardell)____________________________________________
136
Payment in scrip— construction of statute— waivers (HendersonWaits Lumber Co. v. Croft)_____________________________________ 136,137
Payment of less amount than claimed— acceptance of check— estoppel
(Knight v. Missouri Pac. R. Co.)_______________________________ 137,138
Payment on discharge— construction of statute— waiver (Cato v.
Grendel Cotton Mills)------------------------------------------------------------------138,139
Public works— current rate— construction of statute (General Con
struction Co. v. Connally, Commissioner of Labor of Oklahoma)__139-141
Weekly day of rest:
Construction of statute—
observance of Sunday as religious duty (State v. Chesney)__ 141,142
power house— repair shop (People v. New York Central Rail
road Co.)------------------------- ------------------------------------------------------- 142,143
Workmen’s compensation:
Accident—
burns caused by use of chemical (Ward v. Beatrice Creamery
Co.)---------------------------------------------------------------------------------------------144
death from inhaling gas (Cantor v. Elsmere Garage et a l.)______
145
disease—
cancer following trauma (Austin v. Red Wing Sewer Pipe
Co.)----------------------------------------------------------------------------------- 145,146
pneumonia— causal connection (Robertson v. State Indus
trial Accident Commission)______________________________146,147
tuberculosis— causal connection ( Fraze v. McClelland Co.) _ 147,148
typhoid fever (Brodin’s Case)____________________________ 148,149
exposure to cold— disease— causal connection (Learner v. Rump
Bros.)---------------------------------------------------------------------------------------149-151

VIII

CONTENTS

Workmen’s compensation— Continued.
Accident— Continued.
Page
freezing of hand while cutting ice (Sherman v. Flint Spring
Water Ice Co.)_________________________________________________
151
industrial disease— musculospiro paralysis (Chop v. Swift &
Co.)__________________________________________________________ 152,153
injury arising out of employment—infection from contact with
corpse— construction of statute (Connelly v. Hunt Furniture
Co.)__________________________________________________________ 153,154
Admiralty—
injury on dock (Egan v. Morse Dry Dock & Repair Co.)______ 154,155
jurisdiction—
award (Brassel v. Electric Welding Co. of America)_____155,156
election—
(Lee v. Licking Valley Coal Digger Co.)______________156,157
(State ex rel. Cleveland Engineering Construction Co. v.
Duffy et aJL)_________________________________________157-159
release— negligence (The Ross Coddington)___________________ 159,160
Alien beneficiaries (Esoni v. Tisdale Lumber Co.)______ ________ 160,161
Attornej's’ fees— constitutionality of statute limiting fee (Yeiser v.
D ysart)----------------------------------------------------------------------------------------- 161,162
Award—
apportionment among three employers— powers of commission—
occupational disease (Schaefer & Co. v. Eicher)___________ 162,163
basis—
ability to earn (Leitz v. Labadie Ice Co.)_______________ 163-165
bonus (Moss v. Aluminum Co. of America)_____________ 165,166
method of computation of earnings (Testo v. Burden Iron
Co. et a l.)________________________________________________ 166,167
167
refusal to work (Gillespie v. McClintic-Marshall Go.)_____
review (Consolidated Coal Co. of St. Louis v. Industrial
Commission)_____________________________________________167,168
wages— inclusion of tips (Anderson v. Horling et a l.)_____
168
wages of minor—anticipated increase (Szmuda v. Percy
Kent Bag Co. et a l.)____________________________________ 168,169
death of employee receiving compensation— vested rights (City
of Milwaukee v. Roth et al.) _______________________________ 169,170
failure to pay— penalty— constitutionality of statute— noncom
plying employer (State ex rel. Dushek 1;. Watland et a l.)— 170-172
judgment on unpaid installments— construction of statute (Rosandich v. Chicago, N. S. & M. R. Co.)______________________ 172,173
modification for inadequacy (Albertsen v. Swift & Co.)_________
173
partial disability— term— hernia (O’Gara Coal Co. v. Industrial
Commission)_________________________________________________ 174,175
rehearing on merits— procedure (Jayson v. Pennsylvania R.
Co.)__________________________________________________________ 175,176
remarriage of widow—
adjustment of benefits (Carlin v. Lockport Paper Co.)— 176,1*77
adjustment of benefits— dependency (McCormick v. Central
Coal & Coke Co.)_______________________________________177,178
posthumous child— beneficiary reaching noncompensable
age (Ex parte Central Iron & Coal Co.)----------------------- 178,179
review— disease as result of injury (United States Casualty
Co. v. Smith)__________________________ ______________________ 179,180

CONTENTS

Workmen’s compensation— Continued.
Casual employment—
Page
farmer temporarily operating sawmill— injury arising out of
and in the course of employment (Durrin v. Meehl)_______ 180-182
occasional services as lineman (Pfister v. Doon Electric Co.
et a l.)------------------------------------------------------------------------------------- 182,183
Contract of employment— farmers exchanging work ( Smith v.
Jones)-------------------------------------------------------------------------------------------- 183,184
Coverage—
county as employer— public employees (Forsythe v. Pendleton
County)----------------------------------------------------------------------------------1S4,185
employee earning in excess of $2,000 (E. H. Koester Bakery
v. Ihrie)-------------------------------------------------------------------------------- 186,187
187
hauling logs— exempt occupation (Cormier’s Case)______________
hazardous occupation— conducting hotel— tips as basis for com
pensation— death of bell boy by shooting (Byas v. Hotel Bent
ley (Inc.), In re B yas)___________________ _________________ 188,189
mail carrier hired by Government contractor (Comstock v.
Bivens)______________________________________________________ 189,190
municipal employees— constitutional authority— powers of city
(City of Sacramento «?. Industrial Accident Commission)— 190,191
partners receiving fixed wages (Wilcox v. Wilcox Bros.)____ 191,192
public officer— policeman (Hall v. City of Shreveport)______ 192-194
Dependency—
abandoned wife not supported by husband (Johnson v. Repub
lic Iron & Steel Co.)_____________________________________ _____
194
annulment of remarriage of widow (Eureka Block Coal Co.
v. W ells)____________________________________________________ 195,196
beneficiary adjudged insane (Ex parte Gude & Co.; Maddox v.
Gude & Co.)___________________________________________________
196
child living with abandoned or separated wife— erroneous
award— review (Johnson v. Hardy-Burlington Mining Co.)__196-198
child living with divorced wife— review— powers of industrial
commission (McGarry et al. v. Industrial Commission of
U ta h )_______________________________________________________ 198-200
degree— seasonal employment (Lincoln Gas & Electric Light Co.
v. Watkins)__________________________________________________ 200,201
minor contributing to family fund— earnings— dual employments
(Standard Varnish Works et al. v. Industrial Accident Com
mission)______________________________________________________ 201-203
mother not actually dependent— presumptions— term of pay
ments (Double v. Iowa-Nebraska Coal Co.)_______________ 203,204
orphan living with grandfather (Ex parte Cline; McCoy v.
Cline)________________________________________________________ 204,205
wife by void marriage (Sanders v. Industrial Commission)_____
205
Disability— ankylosis of index finger— earning capacity (High v. Lib
erty Coal & Coke Co.)___________________________________________ 205,206
Employee—
chief stockholder of corporation (Leigh Aitchison (Inc.) v.
Industrial Commission)_____________________________________ 206,207
partner (Ardmore Paint & Oil Products Co. v. State Industrial
Commission)_________________________________________________ 207,208
status of beneficiary (United States v. Griffith)-------------------- 208,209
“ usual course of trade” (Olsen’s Case)--------------------------------------209
workmen’s associations (Dixon Casing Crew v. State Indus
trial Commission)______________________________________________
210

CONTENTS

Workmen’s compensation— Continued.
Pag®
Employer— lessor— failure to insure— contractor (Industrial Com
mission et al. v. Hammond)______________________ ______________ _ 210-213
Employers’ liability—
exclusive remedy— casual employment (Workkman v. Endriss)__
213
jurisdiction— accidental injury— disea.se— phosphorus poisoning
(Victory Sparkler & Specialty Co. v. Francks)_____________213-216
railroad companies— Federal statute— interstate commerce— oiler
in yard (Stone v. New York Central Railroad)_____________216, 217
Independent contractor— failure to insure— violation of statutory
duty (Sherlock v. Sherlock)_____________________________________ 217,218
Injury—
mental disease— “natural result” (Bramble v. Shields)______ 218.219
preexisting disease-^-apportionment of award (B. F. Avery &
Sons v. Carter)--------------------------------------------------------- -------------- 219-221
recurrence in subsequent employment (Geary’s Case)______.____
221
Injury arising out of and in the course of employment—
accident— blindness by action of ultra-violet rays (Industrial
Commission of Ohio v. Bussell)____________________________ 222,223
apoplexy—preexisting disease— apportionment of award (Kings
ton-Pocahontas Coal Co. v. Maynard)_______________________ 223,224
dependency— concurrent or consecutive benefits for different
classes (Ex parte Todd Shipbuilding & Dry Docks Co.)____ 224-226
disease— influenza and pneumonia (De La Pena v. Jackson
Stone Co.)____________________________________________________ 226,227
disobedience of orders (Ex parte Little Cahaba Coal Co., Ellis
v. Little Cahaba Coal Co.)__________________________________ 227,228
disobedience of orders— death from burning of shop (McQuivey
v. International Railway Co.)_________________________________
228
disobedience of rules (Lumaghi Coal Co. v. Industrial Commis
sion)______________________________________________ __________ 229,230
employer— sale of business (Palmer v. Main)----------------------- 230,231
going from work (Pearce v. Michigan Home & Training
School)_______________________________________________________ 231,232
horseplay— time for review (Western Union Telegraph Co. v.
O wens)_____________________________________________________ _ 232-234
peace officer— dual employment— numerical exemption (Reliance
Coal & Coke Co. v. Smith)------------------------------------------------------- 234, 235
taking bath after work— death from burns (Associated Em
ployers’ Reciprocal v. Simmons)---------------------------------------- 235-237
teacher attending institute (Stockley v. School Dist. No. 1 of
Portage T p.)---------------------------- --------------------------------------------- 237,238
Injury by third party—
constitutionality of statute— due process of law— status of in
dustrial commission (Nega v. Chicago Rys. Co.)--------------- 238-240
election—
basis of awards (Athens Railway & Electric Co. v. Kin
ney) --------------------------------------------------------------------------------- 240-242
recovery— gift (Pittsburgh, C., C. & St. L. R. Co. v. Keith)_ 242,243
subrogation—
extraterritorial effect of provision of insurance contract
(Reutenik v. Gibson Packing Co.)------------------------------ 243-245
measure of damages (Travelers’ Insurance Co. v. Brass
Goods Mfg. Co.) — ______________________________________ 246,247
party in interest (City of Red Wing v. Eichinger)--------- 247-249

CONTENTS

Workmen’s compensation— Continued.
Loss of defective eye—
Page
award (Liimatta v. Calumet & Hecla Mining Co.)_____________ 249, 250
disfigurement— award (Rector v. Roxana Petroleum Corp. et
a l . ) ------------------------------------------------------------------------------------------ 250,251
Loss of injured hand— basis of award (Klock v. William A.
Rogers, Ltd.)_____________________________________________________ 251-253
Loss of second eye— total disability— congenital defect as previous
injury (Combs v. Hazard Blue Grass Coal Corp.)____________ 253,254
Lump-sum settlement— mistake as to material facts (Ostegaard v.
Adams & Kelly Co.)_____________________________________________ 254,255
Medical attention— dental services— approval by commission (Far
ley
H. T. Milling Co.)_________________________________________ 255,256
Medical examination— failure to submit— deportation of alien (Sauch
v. Studebaker Corp.)____________________________________________ 256,257
Medical reports— compliance with statute (La Duca v. U. S. Light
& Heat Corp. et al.)--------------------------------------------------------------------- 257,258
Minor unlawfully employed— “ employee” (Mueller v. Eyman)___ 258,259
Notice— failure to give in writing (Levine v. General Electric Co.)__
259
Payment of gratuity— limitation— construction of statute (Ashland
Iron & Mining Co. v. Fowler)------------------------------------------------- 259-261
Permanent total disability—
earnings— review (Perry County Coal Corp. v. Industrial Com
mission)------------------ ---------------------------------------------------------------- 261,262
electric shock—hysteria (Harrisburg Coal Mining Co. v. Indus
trial Commission)___________________________________________ 262,263
Powers of commission— due process— constitutionality of statute—
severability of invalid provisions (Alabam's Freight Co. v.
Hunt)_____________________________________________________________ 263-267
Powers of industrial commission— promulgation of orders— review
by court (Clemmer & Johnson Co. v. Industrial Commission)__ 267-269
Release— fraud and misrepresentation (Oresnik v. Cudahy Packing
Co.)_______________________________________________________________ 269,270
Schedule injury— “ permanent total disability ”— penalty for de
laying payment by frivolous appeal (Fern Gold Mining Co. v.
Murphy)__________________________________________________________ 270,271
“ Total disability
incapacity for work (Roller v. Warren)-------------------------------- 271,272
partial disability— consecutive awards (Gobble v. Clinch Val
ley Lumber Co.)-------------------------------------------------------------------- 272,273
Willful misconduct— failure to use safety appliances (Nashville,
Chattanooga & St. Louis Ry. v. Coleman)______________________ 273,274
Workmen’s compensation insurance— rates— power of State to regulate
(Employer’s Liability Assurance Corp. v. Success-Uncle Sam Cone
C o .)___________________________________________________________________ 274-276

BULLETIN OF THE

U. S. BUREAU OF LABOR STATISTICS
NO. 417

WASHINGTON

August, 1926

DECISIONS OF COURTS AND OPINIONS AFFECTING LABOR: 1925
INTRODUCTION
This bulletin is the twelfth in a series devoted to the presentation
of decisions of courts on questions affecting labor, involving both
common and statute law, and includes also opinions of the Attorney
General construing and applying the labor laws of the United States.
Prior to the year 1912 decisions and opinions were a regular part of
the bimonthly bulletins of the Bureau of Labor Statistics and its
predecessors; but since that date special volumes containing this
matter have appeared. Publication has been annual, with the excep
tion of the bienniums 1919-1920 and 1923-1924. The cases presented
are, for the most part, those appearing in the sources used within the
calendar year. In exceptional cases decisions appearing somewhat
later have been incorporated on account of their connection with
other material used, or because of special and immediate interest.
The current bulletin also carries certain opinions of the Attorney
General of an earlier date than the year 1925, but not sooner avail
able for various reasons.
An attempt is made to select decisions of special interest and im
portance, together with illustrative decisions setting forth the prin
ciples generally applicable in cases affecting the contract of employ
ment, the safety of the employees, their compensation for injuries,
the powers and limitations of labor organizations, and in brief, all
those principles of law which affect the relations of employer and
employee, or the status of these parties. The great bulk of the cases
are those decided in the State courts of last resort and in the Federal
courts, though in a few States the opinion of intermediate courts of
appellate jurisdiction (final as to certain cases) are reproduced.
As in past years, the National Reporter System, published by the
West Publishing Co., St. Paul, Minn., is the chief reliance for the
material used. The Washington Law Reporter is the source for
cases in the District of Columbia; and advance sheets of the Opin

DECISIONS OF COURTS AND OPINIONS

ions of tlie Attorney General are examined for matter of interest
from the Department of Justice.
An abridgment of the statements and the opinions is necessary
in order to save space, the former being usually made in the lan
guage of the editors, while essential points in the opinion requiring
authoritative exactness are quoted, together with such other excerpts
as serve to clarify the points selected for presentation.
Following is a statement of the sources examined for the material
of this bulletin:
Supreme Court Reporter, volume 45, page 114, to volume 46, page 107.
Federal Reporter, volume 1 (2d), page 961, to volume 8 (2d), page 320.
Northeastern Reporter, volume 145, page 529, to volume 149, page 656.
Northwestern Reporter, volume 200, page 833, to volume 205, page 944.
Pacific Reporter, volume 230, page 625, to volume 240, page 1119.
Atlantic Reporter, volume 126, page 691, to volume 131, page 144.
Southwestern Reporter, volume 266, page 1, to volume 276, page 1119.
Southeastern Reporter, volume 125, page 385, to volume 130, page 304.
Southern Reporter, volume 101, page 849, to volume 106, page 80.
New York Supplement, volume 206, page 705, to volume 212, page 352.
Washington Law Reporter, volume 53.
Opinions of the Attorney General, volume 33, page 396, to end of volume 34.

Without attempting any summary of the decisions—indeed, their
variety is too great to permit a summary in any brief way—atten
tion may be called to the closing word with regard to minimumwage legislation of a compulsory character in a decision by the
Supreme Court on an appeal from the Arizona District of the
United States District Court; a decision by the same court with
regard to the constitutionality of the “ current rate of wages ” law
of Oklahoma; a decision by the Supreme Court of Arizona sus
taining its new workmen’s compensation law; one of the Virginia
Court of Appeals in construing the compensation act of that State
so as to permit consecutive awards for temporary total and perma
nent partial disability; a decision by the Louisiana Supreme Court
to the effect that conduct accepting an arbitration by the Kailroad
Labor Board makes the award binding; the various efforts of the
courts to adjudicate the uncertain boundary between admiralty and
State laws in regard to the liability of the employer for injuries to
maritime workers; and numerous phases of the workmen’s compen
sation laws and of the legal status and liabilities of labor organi
zations.
No annual compilation can assume to present a complete review
of the legal principles in any field; but contributions are made from
year to year, some emphasizing already-established principles and
others applying these principles to new situations or developing
new rules to cover changing conditions.

OPINIONS OF THE ATTORNEY GENERAL
Hours of Labor—Eight-Hour Day—Public Works of the
TJntted States—Foreign Countries—Opinions of Attorney General^
volume 34? Va3-e
(.August <9, 19&4) •— The Secretary of State en
tered into certain contracts for the alteration and repair of buildings
of the American Embassy at London, and the question arose as to the
application thereto of provisions of the act of June 19,1912 (37 Stat.
137). This act limits and restricts to eight hours the daily service
of laborers and mechanics on the public works of the United States,
whether in the immediate employment of a Government agency or
employed by contractors. The act is all-embracing in its announced
application to “ every contract hereafter made to which the United
States * * * is a party, * * * which may require or involve
the employment of laborers or mechanics.” The power of Congress
to say, by appropriate legislation, what terms and conditions shall
be embodied in the contracts to which the Federal Government may
become a party was recognized as complete; “ and it undoubtedly
has the power to control the hours of labor which may be performed
by laborers and mechanics on the public works of the United States
wherever situated.” However, the Attorney General found “ no pro
vision, express or implied, which would indicate that it was the inten
tion of Congress to apply its terms to laborers and mechanics of for
eign countries, employed temporarily upon the public works of the
United States situated within the territorial limits of a foreign coun
try.” Recognizing the intention of the statute to improve labor con
ditions, the question arose whether Congress could undertake to
better labor conditions in a foreign country, and for the benefit of
alien laborers and mechanics there employed,ueven when the enforce
ment of the statutory provision would disturb the agreements entered
into between contractors and laborers and mechanics in foreign coun
tries.” Reference was made to the opinion of Attorney General
Moody (25 Op. 441), where the application to work within the Canal
Zone was considered; but the rights, power, and authority of the
Government acquired by a treaty with the Republic of Panama were
the same that “ the United States would possess and exercise if it
were sovereign of the territory,” thus differentiating the conditions
there from those under present consideration. The inquiry by the
Secretary of State indicated that the enforcement of this provision
in the work in London “ would disturb the recognized hours of serv
ice now in effect between contractors and workmen in England.”

OPINIONS OF THE ATTORNEY GENERAL

Recognizing the rule of construction that the language of an act must
be assumed to give expression to the meaning of the legislature, there
was recognized an equally well-established rule “ that a statute should
be construed with reference to the purpose to be accomplished and the
mischief to be corrected.” As said by the Supreme Court in an earlier
case (United States v. Kirby, 7 Wall. 482) “ all laws should receive a
reasonable construction,” so that neither “ injustice, oppression, or an
absurd consequence” would follow from a literal interpretation.
“ The reason of a law in such cases should prevail over its letter.”
Applying this principle, the opinion was expressed that the act of
1912 and the earlier one of 1892 fixing an eight-hour day for laborers
and mechanics on public works do not apply “ to work to be per
formed by alien laborers and mechanics upon public works of the
United States within the territorial limits of a foreign country.”
R etirement of P ublic E mployees— C lassified C ivil S ervice
U nited S tates—Opinions of Attorney General, volume

the

pages 20, 192, 331^ lfil*—The act of May 22, 1920 (41 Stat. 614),
providing for the retirement of employees in the classified civil
service of the United States hardly lies within the scope of labor
legislation. However, the principle involved is of interest, and brief
reference is made to certain rulings of the Attorney General con
struing this act.
An opinion of October 11, 1923 (34 Op. 20), rules, as did an
earlier opinion (32 Op. 203), that the act provides automatic sepa
ration for employees reaching the age of 70, whether or not they
receive retirement pay by reason of having rendered service for 15
years or more. In other words, the statute provides for separation
from service whether or not annuity is available, subject, however, to
the provisions of the law as to retention in service on certification of
willingness and efficiency.
Another phase of the law was considered in an opinion delivered
June 3, 1924 (34 Op. 192), where deputy collectors of internal rev
enue and prohibition officers and employees were specifically under
consideration. It was held that such persons who have been or may
be appointed without regard to the civil service law and rules made
pursuant thereto are not, by their appointment, brought within the
competitive status that entitles them to the benefits of the retirement
act, even though such persons may take an examination to secure a
position on an eligible list. An earlier opinion (32 Op. 273) distin
guishes between appointees who may be and those who must be ap
pointed within the provisions of the civil service act; only the latter
were held to be within the provisions of the retirement act. While the
positions in which the persons under consideration are serving may,

INSPECTION OF STEAM VESSELS

unless expressly excepted by statute, be brought within the classified
civil service, their status at that time was outside the benefits of the
retirement act.
A second question disposed of in the same opinion was as to em
ployees now in positions excepted by law but having formerly had a
civil service status, and being now eligible for retransfer to the
competitive classified service. The Attorney General was of the
opinion that “ any person who has acquired a competitive status in
the classified civil service retains that status so long as he remains
continuously in the executive civil service, although he may have
been or may be transferred to a nonclassified position.”
Somewhat later (December 22, 1924) the latter question received
further consideration on a specific inquiry relative to persons who
had been classified employees of the Government, but who leave “ a
position clearly subject to the retirement act ” to accept one in
which nomination is made by the President and appointment con
firmed by the Senate. Construing the statute and the civil service
rules, the conclusion was reached that, while the act does not apply
to persons who entered the executive civil service by appointment by
the President and confirmation by the Senate, if persons in the
classified civil service are given such appointments, “ they are, so
long as they remain continuously in the executive or judicial civil
service of the United States eligible * * * to retransfer to the
positions which they formerly held in the classified civil service.
That being so, they have not lost the competitive status which they
acquired by appointment in the classified civil service.” They are
accordingly “ entitled to the benefits and subject to the obligations
of the retirement act ” so long as they remain continuously in the
positions indicated (34 Op. 334).
An exception to the foregoing statement was found necessary in
view of the definite mention of postmasters as not within the pro
visions of the retirement act. Being thus specifically excepted,
46persons in the classified civil service who are appointed post
masters are not entitled to the benefits nor subject to the obligations
of the retirement act (34 Op. 481, May 12, 1925).

S team V essels— F ederal I nspection or S tate-O wned V essels—
Opinions of Attorney General, volume 33, page 500 (June 1923).—
The State of New York maintains and operates upon navigable
waters of the United States certain vessels owned by it. The Secre
tary of Commerce is charged with the enforcement of the steam
boat inspection laws of the United States, but was informed by the
Attorney General of New York that vessels owned by the State
93383°— 26------ 2

OPINIONS OF THE ATTORNEY GENERAL

and operated by the State superintendent of public works were not
regarded as subject to the steamboat inspection laws of the. United
States. The question being referred to the Attorney General, he
was of the contrary opinion. Section 4400 of the Revised Statutes
provides;
All steam vessels navigating any waters of the United States
which are common highways of commerce, or open to general or
competitive navigation, excepting public vessels of the United States,
vessels of other countries, and boats propelled in whole or in part
by steam for navigating canals, shall be subject to the provisions of
this title.
It was pointed out that the basis of the application of the Federal
steamboat inspection laws had been held by the courts not to be
the nature of the commerce in which engaged, but the clause of the
Constitution extending the judicial power of the United States to
all cases of admiralty jurisdiction. The contention of the Attorney
General was that “ a sovereign is free from outside interference, and
that, accordingly, the Federal Government can not enforce regula
tions with respect to property or employees of a sovereign State
while they are engaged in its public service.” However, the At
torney General found no exception in the section quoted, which
applies to “ all steam vessels navigating any waters of the United
States which are common highways of commerce,” excepting only
public vessels of the United States and certain others. The power
of Congress over interstate commerce was said to be such that where
it “ has exercised its power by appropriate legislation any incon
sistent State statute is void.” No State could “ erect a permanent
obstruction to navigable waters of the United States” without the
permission of Congress; “ but a State-owned vessel operating in
defiance of steamboat inspection laws passed by Congress to pro
tect interstate commerce is an obstruction to interstate commerce
differing only in degree from the obstruction caused by a permanent
structure encroaching upon navigable waters.”

W orkmen ’ s C ompensation — “ E mployees of the
U nited
S tates”— S eamen on S hipping B oard V essels— Opinions of A t

torney General, volume 8If, pages 120 (March 11, 192Jf) and 363
{January 17, 1925).—The United States Employees’ Compensation
Commission submitted through the President a question as to the
status of seamen on vessels owned and operated by the United States
Shipping Board and the United States Shipping Board Emergency
Fleet Corporation. The commission had taken the view that sea
men and other employees of these agencies were employees of the
United States and entitled to the benefits o f the United States em

W ORKM ENS COMPENSATION

ployees’ compensation act. However, certain decisions by the Su
preme Court had raised a question as to the correctness of this posi
tion, and the matter was accordingly referred for a decision.
It was shown that the corporation itself made certain compensa
tion awards on an agreed basis, and by act of Congress this settle
ment was declared final and in full satisfaction of any claims of
such employees or their legal representatives against the United
States. The Attorney General found that the compensation commis
sion had authority to “ make compensation to the direct and im
mediate employees of the Fleet Corporation, except in cases where
compensation has already been made by the corporation itself.”
A second phase of the question related to “ seamen in the merchant
service under 6agency ’ contracts.” These were cases in which the
vessels were operated not immediately by the corporation but by
persons “ contracting therewith for the operation of the vessels.”
The form of the contract in use was examined in some detail and its
effects in various aspects considered. The conclusion was reached
that the agent was practically an independent contractor, and that
the seamen on board the vessel operated by him were his employees
and not the employees of the United States. In this view they
would not be entitled to compensation under the Federal statute.
At the later date named an opinion was rendered based on further
consideration of the questions involved, including a revised contract
with the operating agents. Detailed examination was given to the
provisions of this contract and the methods of hiring the men, i. e.,
through “ the Fleet Corporation’s Sea Service Bureau, upon informa
tion by the managing agent that the ship needs a crew.” The statu
tory requirement of a form of contract between the master of a vessel
and the individual members of a crew is observed, but thereafter
44the crews are carried on the pay rolls of the Fleet Corporation.”
The managing agent certifies a request for the necessary funds to
pay the crew, receives it in the form of a check from the Fleet Cor
poration, and is merely the channel through which the money is
distributed to the crew, payments being actually made by the ship
ping commissioner.
All the fiscal operations are for the account o f the owner—the
United States—and are controlled, in detail, by general orders. I f
the operation of the ships result in a profit, that profit accrues to
the United States. I f losses result, they are borne by the United
States, but the agent nevertheless receives his compensation in either
event.
The method by which seamen are hired and paid, as stated by the
general counsel for the Shipping Board, supra, shows that they
are hired by the United States and paid by the United States from
its funds.

OPINIONS OF THE ATTORNEY GENERAL.

In view of these facts the conclusion was reached that “ these men
thus employed, thus hired, and thus paid, are in fact working for the
United States. In other words, they are employees of the United
States, and as such are entitled to the benefits of the Federal em
ployees’ compensation act.”
W

orkmen ’ s

sation

C ompensation— U nited S tates E mployees’ C ompen
C ommission— P owers— “ P ersonal I njury ” — D isease—

Opinions of Attorney General, volume 33, page Jfl6 {May 16,1923).—
An act of Congress of 1916 (39 Stat. 742) provides compensation for
the disability or death of an employee of the United States resulting
from a personal injury sustained while in the performance of duty,
A commission was created by the act with the power of making neces
sary rules and regulations for its enforcement; also it “ shall decide
questions arising under this act.”
From the beginning of its activities the commission had construed
the term “ personal injury ” as including injury by disease as well
as by accident if due to causes and conditions inherent in the em
ployment. This construction, as well as the authority of the commis
sion to make final determinations in respect of its awards, was
challenged by an accounting officer of the United States. On ref
erence of the question to the Attorney General, a history of the act
as succeeding an earlier and inadequate law, together with some
account of the hearings held and of the debate, was reviewed, the
Attorney General reaching the conclusion that “ Congress intended
ta include within its scope employees afflicted ” with diseases having
their origin in improper working conditions, as well as those injured
by accident. The power of the commission was held to be broad
enough “ finally to determine questions arising under said act,” the
attitude and status of the commission being completely upheld.1
*The matter is thus briefly disposed of, as it is now of only historical interest, since
Congress by an act of the succeeding year (43 Stat. 389) declared that the term “ injury ”
includes not only injuries by accident but also “ any disease proximately caused by the
employment/* It was also provided that, in the absence of fraud or mistake in mathe
matical calculation, the findings and decision of the commission on the merits of com
pensation claims should not, if supported by competent evidence, “ be subject to review
fcy any other administrative or accounting officer, employee, or agent of the United States.”

DECISIONS OF THE COURTS
A liens— E mployment as F ishermen — T reaty R ights— P owers
S tate—Lubetich v. Pollock, United States District Court, District

of Washington {June 13, 1925), 6 Federal Reporter (2d), page 237.—
The sole point of interest from the standpoint of labor in this case
is that provision of the law which forbids the engagement of aliens
in commercial fishing in waters under the control of the State, either
as independent fishermen or as employees. The courts hold gener
ally that fish and game are the property of the State, and the right
to take the same may constitutionally be regulated by restrictions
forbidding its taking by persons not citizens, by forbidding ship
ments outside the State, etc. This is not an exercise of the police
power of the State, but is a mere dealing of the State with its own
property, and the Supreme Court of the United States has so held.
(Geer v. Connecticut, 161 U. S. 519, cited in Patsone v. Pennsylvania,
232 U. S. 138, 34 Sup. Ct. 281.)
That an alien could not complain that he had been deprived of
employment by a restriction on the right of a citizen to hire him for
such work was also held to be a valid regulation. “ Such an occupa
tion is not open to an alien against the legislative will of the State,
since it involves an appropriation of property belonging to the State
in its sovereign capacity.” (Alsos v. Kendall, 227 Pac. 286.) The
argument of the Supreme Court of Oregon in the case cited “ com
mends itself to our judgment as altogether sound.” Nor does the
treaty with Italy, of which country the alien was a citizen, bar the
restriction, the court citing Mr. Justice Holmes, who delivered the
opinion in the Patsone case, in the course of which he said:
We see nothing in the treaty that purports or attempts to cut off
the exercise of their powers over the matter by the States to the full
extent.
The bill was therefore ordered dismissed.
to Do B usiness— C onstitutionality o f O r d i
v. City of Portland, Supreme Court of Oregon
(April 28, 1925), 235 Pacific Reporter, page 681.—The city of Port
land passed an ordinance concerning the soft-drink business, section
6 of which provided that—

A liens— R ight

nance —George

No license to engage in a soft-drink business shall be issued to any
person not a citizen of the United States. Any license issued to any

DECISIONS OF THE COURTS

person not a citizen of the United States to engage in a soft-drink
business shall be absolutely void.
M. George and others brought a bill in equity to procure a license,
and in the complaint maintained that they were residents of the city
and were and had been engaged in dispensing soft drinks and that
they had complied with all ordinances of the city. They further
stated that they had complied with all requirements of the last ordi
nance except their citizenship, and that they had offered and were
willing to pay the license tax to do business. It was averred in sub
stance that solely because they were aliens their applications for li
censes had been denied, and that unless an injunction were secured
the officers of the city would arrest, fine, and imprison the com
plainants for noncompliance with the ordinance. The plaintiffs
also asked for mandamus to compel the issuance of proper licenses
for the conduct of their businesses upon the same terms and condi
tions accorded to citizens of the United States. From a decree of
dismissal plaintiffs appealed.
The city avowed its authority to regulate such matters, and re
ferred to section 4 of chapter 163 of the General Laws of Oregon
for 1923, which provided:
No city, town, or municipality shall issue a license to any person
not a citizen of the United States to engage in the business of con
ducting a soft-drink establishment.
The principal contention of the plaintiffs was that the State and
municipal legislation involved violated article 14 of the Federal Con
stitution, and as to this point the supreme court observed that:
While the inhibition of the national organic act is directed against
“ any State,” it includes not only the State itself, but also all the
governmental agencies authorized by the State, such as municipal
corporations like cities and towns.
Section 31 of article 1 of the State constitution provided:
While foreigners who are or may hereafter become residents of
this State shall enjoy the same rights in respect to the possession,
enjoyment, and descent of property as native-born citizens.
The right to contract concerning soft drinks was considered by the
supreme court as being within the protection of the State constitu
tion. The court, speaking through Mr. Justice Burnett, said:
There is no doubt but that within reasonable limits in the exercise
of the police power the State, or its duly authorized subordinate
governmental agencies, may regulate any business that is or may be
operated in a manner hurtful to the general peace and good order
of the community, and may make reasonable classification of the per
sons permitted to engage in such occupations. Taking, however, the
equal-protection feature of the fourteenth amendment to the Na
tional Constitution and the terms of section 31 of article 1 o f our own

ASSOCIATIONS

State constitution respecting the privileges of white foreigners who
reside here, it is plain that in respect to persons proposing to engage
in an otherwise lawful occupation a distinction based solely on
whether the applicant is or is not an alien is not permitted in this
State.
As to the matters involved in this litigation, aliens are entitled
in Oregon to the same treatment accorded to native-born citizens.
Under the facts as practically admitted by the pleadings, the plain
tiffs should have the relief demanded in the complaint. In other
words, they of right may apply for licenses to engage in the business
of selling soft drinks in Portland on the same basis that a native
American may apply.
The decree of the circuit court was therefore reversed.

Associations— Contract of Employment— L ia b ility or U n in
corporated Organization —Cousin v. Taylor et al., Supreme Court
of Oregon (,September 8, 1925), 239 Pacific Reporter 96.— Edward M.
Cousin brought an action against Walter K. Taylor, S. S. Harrelson, and other defendants to recover for services performed. at a
rate hearing before the Oregon Public Service Commission.

It appeared from the evidence that the Oregon Telephone Fed
eration, an unincorporated association, was organized by telephone
users to obtain a rehearing before the commission for the purpose of
securing a reduction of rates. Taylor and one Zumwalt were
authorized to engage a wage expert to represent the federation at
this hearing, and pursuant to this authority Taylor and Zumwalt
employed the plaintiff and promised to pay him for his services
$2,000 and necessary disbursements. The trial court gave a judg
ment of nonsuit as to the defendants except Taylor and Harrelson,
while the jury returned a verdict in favor of the plaintiff as against
those two.
The supreme court on reviewing the record observed from the
recitals in the bill that the federation was voluntary, not organized
to conduct business for pecuniary profit and possessing none of the
elements of a partnership. It was not a legal entity and had no
legal existence apart from its membership. No articles of associa
tion were adopted by the members, and no constitution, by-laws,
or contract between its members had been drawn. In view of these
facts the supreme court held that as there was no statute in the
State authorizing such an organization, or defining the duties,
powers, and liabilities of the members, and as the association could
neither sue nor be sued, therefore a contract entered into in the
name of the association or in its behalf would not be binding upon
the association nor enforceable against it.

DECISION'S OF THE COURTS

This action, however, was brought not against the association but
against individual members, and the court added that no such limi
tation exists upon them as exists upon the association. They were
free to contract within the scope of the authority conferred upon
them, and they were bound as principals. The supreme court ad
mitted that no person could be charged upon a contract alleged to
have been made upon his responsibility, “ unless it can be shown that
to the making of that contract upon his responsibility he has given
his expressed or implied consent.” It appeared from the evidence
that the defendants ratified and approved the contract as made by
Taylor with the plaintiff and that they received the benefits result
ing from the plaintiff’s performance of the contract, and for this
reason it was held error for the trial court to give judgment of
nonsuit against the plaintiff as to such defendants as Taylor and
Zumwalt.
Mr. Justice Rand, speaking for the supreme court, stated that:
Since the contract entered into by Taylor could not be enforced
against the association, Taylor, in acting as agent for the association
of which he was an officer and member, in entering into a contract
which has been performed by the other contracting party, is per
sonally liable under the contract, and the same is true as to those
who either assented to his appointment or to the contract which he
entered into. In the case of a voluntary unincorporated associa
tion, in the absence of statute, the law holds the officer or member
thereof who assumes to act for the association directly responsible
as principal, and the courts usually base the reason for the rule
upon the ground that the officer or member has assumed to act for
a principal which has no legal existence, and since the principal is
not bound, such officer or agent is bound and becomes personally
responsible for the consideration contracted to be paid to the other
contracting party for his performance of the contract. Other
wise, no one would be liable notwithstanding that the other contract
ing party has performed.
The judgment was reversed and the cause remanded for a new
trial as to certain of the defendants, including Taylor and Harrelson, on the ground that the trial court failed to instruct the jury
as to the law on the phases of the case concerning the liability of
unincorporated associations and its members.

A ssociations— C ontractors’ O rganizations— M onopolies— C om
merce— A ntitrust A ct—United States v. Fur Dressers’ & Fur

Dyers'* Assn. (Inc.), United States Distinct Court, New York (May 2,
1925), 5 Federal Reporter (£d), page 869.—The Fur Dressers’ & Fur
Dyers’ Association comprises about 30 firms out of approximately
150 firms in the United States engaged in the business of fur dressing
and dyeing, membership being limited to those actually engaged in

ASSOCIATIONS

the dressing or dyeing of fur skins. The association does about 70
per cent of all the business of dressing and dyeing of fur skins in
the United States, excluding the dressing and dyeing of rabbit skins.
The United States alleged that the defendant association and others
were engaged in a conspiracy to restrain and monopolize interstate
trade in fur skins in violation of the antitrust laws (Comp. St., 8820
et seq.), and sought to enjoin the defendants from restraining trade
and from putting into effect the rules of the association, and that
they be ordered to dissolve. The rules of the association provided
every conceivable method to prevent the perpetration of fraud by
customers upon members of the association. The names of cus
tomers who failed to pay their bills were listed and the information
was furnished to members of the association. Discounts were for
bidden and other regulations provided for, each member of the asso
ciation depositing the sum of $500 to secure faithful performance of
the rules and regulations.
The United States district court observed first that:
Not every agreement which suppresses competition or restrains
trade is illegal. Only such agreements and combinations as unrea
sonably suppress competition or restrain trade are illegal [citing
Chicago Board of Trade v. United States, 246 U. S. 231, 38 Sup. Ct.
242; National Association of Window Glass Manufacturers v. United
States, 263 U. S. 403, 44 Sup. Ct. 148 (see Bui. No. 391, p. 161), and
other cases]. Only such contracts and combinations are within the
act as, by reason of intent or the inherent nature of the contemplated
acts, prejudice the public interests by unduly restricting competi
tion or unduly obstructing the course of trade.
The district court quoted with approval from the Chicago Board
of Trade case, supra, in which the Supreme Court said:
Every agreement concerning trade, every regulation of trade, re
strains. To bind, to restrain, is of their very essence. The true test
of legality is whether the restraint imposed is such as merely regu
lates, and perhaps thereby promotes, competition, or whether it is
such as may suppress, or even destroy, competition.
That persons have the right to associate for the purpose of ad
vancing their own interests by discriminating against others, if the
discrimination is based on such grounds as failure to pay bills due
members of the association, was held proper by the circuit court
under the authority of Brewster v. Miller (101 Ky. 368, 41 S. W,
301). As to the business and practice of the association, Judge
Bondy, speaking for the court, said:
The defendants neither buy nor sell furs. They only dress and
dye furs belonging to others at their places of business. Dyeing and
dressing furs do not constitute trade or commerce, but only the per
formance of labor. The rules and regulations of the association, and
the agreement of its members to observe the same, if they restrain

DECISIONS OF THE COURTS

trade and commerce, therefore do so only indirectly and remotely,
and do not come within the provisions of the antitrust act. “An
agreement entered into for the purpose of promoting the legitimate
business of an individual or corporation, with no purpose to thereby
affect or restrain interstate commerce, and which does not directly
restrain such commerce, is not, as we think, covered by the act,
although the agreement may indirectly and remotely affect that
commerce.”
The United States was unable to prove that the rules of the asso
ciation or compliance therewith directly or unduly affected interstate
commerce or that the defendants intended to affect such commerce.
It was found that the defendants did nothing to involve interstate
commerce.
They created no monopoly. They fixed no prices. The association
simply regulated business of its members in a way tending to pro
mote, rather than restrain, legitimate trade. Nothing that the asso
ciation did or could do under the by-laws was injurious to any of its
members or the public. No one, except a person looking for an unfair
or dishonest advantage, could object to its regulations.
The petition was therefore dismissed.

Associations— Employers’ Organizations— Contract of M em
bership— R estraint o f Trade— Fixing Wages— Androff v. Building

Trades Employers'* Assn., Appellate Gourt of Indiana (June 12,
1925), 14S Northeastern Reporter, page 202.— The Building Trades
Employers’ Association was incorporated for other than pecuniary
profit, and for the general welfare of the employers and to assist
in the making of trade agreements between employers’ and em
ployees’ organizations, “ to work for the general welfare of the
building industry and to create and maintain uniformity, harmony,
and certainty in the relationship of employers and organizations
of employees.” John Androff, defendant, was one of the building
employers who had entered this association and had, as had other
employers, given bond in the amount of $1,000, recoverable as liqui
dated damages, to secure the observance of an agreement not to pay
more than specified wages to the workmen employed. For a breach
of this agreement the association took steps to recover on the bond,
securing judgment in the superior court, from which an appeal
was taken.
On the appeal Androff maintained that the action was based on
a wrong theory, and that the contract on which it rested was void
as against public policy and fti restraint of trade. The superior
court ruled to the contrary and affirmed the judgment below on the
ground that the organization was formed for lawful purposes, such
purposes being enforceable by lawful means, which “ includes the

ASSOCIATIONS

right to make lawful rules and lawful by-laws for the members,
and to enforce them by fines, etc.”
It was pointed out that the State of Indiana recognized the right
of workmen to combine and to enforce their combinations by any
lawful means, the court continuing:
I f the employee has the right to say what wages he will work for,
the employer should have the right to say what wages he will pay.
I f men may lawfully combine to accept a minimum wage which they
fix, and may enforce that combination among themselves by fine,
suspension, or other form of discipline, employers may likewise form
a combination for any lawful purpose, including the fixing of a
maximum wage, and enforce it by the same means available to the
employees.
This finding was supported by a citation from the decision in the
case of Iron Molders’ Union v. Allis-Chalmers Co. (166 Fed. 45,
91 C. C. A. 631, 20 L. R. A. (N. S.) 315). In this case the Circuit
Court of Appeals sustained the right of workmen to organize and
to enforce their rules, and a reciprocal right of employers to combine
and to cooperate to control the Supply and conditions of work to be
done, as a practical application of the principle of corresponding and
equivalent rights in respect to organization and the enforcement
of rules adopted by either organization. To take away the right
to enforce the rules and by-laws of labor organizations and similar
associations would make them powerless; and the courts “ have
upheld such organizations so long as they are organized for a lawful
purpose, and will aid them in carrying out and enforcing all con
tracts with reference to the same.”
The judgment was therefore affirmed.

A ssociations— E mployers’ O rganizations— M onopolies— B lack
L ist— I nterference w ith E mployment — C layton A ct—Tilbury v.

Oregon Stevedoring Go. {Inc.) et al., Circuit Court of Appeals,
Ninth Circuit {August 3, 1925), 7 Federal Reporter (2d), page 1.—
The Oregon Stevedoring Co. (Inc.) and others, including shipowners
and operators at the port of Portland, combined in the form of an
unincorporated association to control the longshore and stevedoring
business in the port. They made rules and regulations governing such
employment and established a registration system requiring all long
shoremen to make application for permission to work in loading and
discharging ships in interstate and foreign commerce. The organi
zation kept a list of persons who were objectionable, and if an appli
cant was on this list he could not secure employment. A uniform
wage was agreed upon and enforced for longshoremen. It was ad
mitted that the defendants controlled practically all the business

DECISIONS OF THE COURTS

except such as was handled by the Portland Stevedoring Co., which
did but a small part. The plaintiffs, Tilbury and Marks, brought a
bill to restrain the defendant from violating the Sherman Antitrust
Act and for damages under the Clayton Act, and from a decree
dismissing the complaint they appealed.
It appeared that Tilbury had been unable to obtain employment
as a longshoreman at Portland; that he had applied for but was
refused work, being informed that he was on a list of longshoremen
whom the defendants would not hire. The plaintiff, Marks, was dis
charged from his employment for reasons he alleged were unknown
to him, and he had been unable to procure employment in his voca
tion. The plaintiffs alleged irreparable injury.
The Circuit Court of Appeals observed first that it agreed with
the district court that the facts failed to show that commerce had in
any way been impeded or that the defendants had any purpose
other than to regulate fairly the transaction of the business in which
they were engaged. Reference was made to the case of United
Mine Workers of America v. Coronado Coal Co. (259 U. S. 344, 42
Sup. Ct. 570; see Bui. No. 344, p. 157), in which it was held that a
conspiracy and intent to obstruct coal mining, although effectual in
preventing a part of the production from passing into interstate com
merce, would not be a direct obstruction to interstate commerce in
coal if there were no intention to restrain such commerce or no proof
of such substantial effect upon it as to make such intention reason
ably inferable. The court in conclusion said:
We conclude that it is in accord with reason as well as the doctrine
of the adjudged cases to hold that an agreement among employers
whereby the hiring of men to work as longshoremen is governed by
rules such as obtained in the association complained of with respect
to their qualifications and wages is in no respect violative of the acts
of Congress.
The decree was affirmed.
B enefit F unds— C ontract to F urnish M edical A ttention—
D uty of E mployer—Sloss-Sherffield Steel & Iron Co. v. Maxwell,

Court of Appeals of Alabama {March 17, 1%95), 10b Southern Reporter, page 841.—J. W. Maxwell, employed by the defendant com
pany, had a severe attack of rheumatism and called upon defendant’s
physician for treatment. He was treated from about May, 1920,
until about the same time in 1921, when he was told by the physician
to return to his office in two or three weeks. A t the end of that time
Maxwell was unable to walk and requested the physician on several
occasions to call, but the physician did not do so. Maxwell brought
an action for damages for the injuries suffered during the period the

BENEFIT FUNDS

physician refused to call, and from the judgment in his favor the
employer appealed.
It appeared from the evidence that the company collected from
the plaintiff’s wages the sum of $1 a month, to be used in furnishing
plaintiff with medical attention in case he became sick while in its
employment. The dollar was collected for the month of April but
not for May, 1921. The plaintiff based his action upon a contract,
the consideration being the monthly sum collected from his wages.
The court of appeals said that it was generally recognized that
“ when an employer makes a valid contract with an employee to
furnish medical attention in case of sickness or injury, and fails to
do so, there is a liability on the part of the employer to the employee
for the damages resulting from such failure.”
It was insisted that the record did not show that the plaintiff paid
the dollar for May, 1921, and that therefore any sickness during
that month was not required to be treated under the contract by the
employer’s physician. It was admitted that the sum was paid in
April, and on this point the court quoted with approval from the case
of Scanlon v. Galveston, H. & S. A. Ry. Co. (Tex. Civ. App., 86
S. W. 930), in which the court said:
The testimony of plaintiff was sufficient to show that the monthly
deduction of wages was made with the understanding that the emwhen sick or injured, should be entitled to the hospital beneEloyee,
ts at defendant’s expense. This would imply and mean, in the
absence of an understanding to the contrary, the continuance of the
benefits while the sickness or injury required same.

The court of appeals was of the opinion that under the contract
to furnish medical attention the employee had until the end of the
month within which to make the payment, where the installment for
the preceding month had been paid, and there was no suggestion that
he had been discharged. On an application for a rehearing the
court held that under the contract the employee, having paid the
sum required, was entitled to medical attention provided by the con
tract, irrespective of what the employer did with the money col
lected and notwithstanding the fact that the employer received no
benefit therefrom. The application for a rehearing was overruled
and the judgment was affirmed.

B enefit F unds— R ailw ay R elief A ssociation— R ules— R ight
A ppeal.—Hanson v. Chicago, Burlington & Qumcy R. Co., Su

preme Court of Wyoming (February 5 , 1925), 232 Pacific Reporter,
page 1101.—Walter N. Hanson, a locomotive engineer in the employ
of the defendant railroad company, was a member of the relief
department of the company and by this action sought to recover

DECISIONS OF THE COURTS

benefits alleged to be due him. The department was under the
management of a superintendent, subject to the final control of an
advisory committee composed of six employees and six members
chosen by the company, with the general manager of the company
as ex officio a member and chairman. The fund of the department
was derived from contributions taken from the wages of the mem
bers, the company holding the money, paying interest thereon, and
paying all operating expenses of the department. Hanson, while
on his way home on September 14, 1908, was assaulted and suffered
an injury to his eyes. He received medical attention from the de
partment and was unable to return to work for nine weeks* In
the latter part o f 1917 he made a claim to the department for
accident benefits because of impaired vision, which was due to a
relapse of the old injury, alleging that he was physically unable to
work because of such impaired vision. The superintendent, after
considering the medical examinations and reports of physicians,
sent a letter to the plaintiff stating that in view of the reports
received, “ I can not do otherwise than uphold the classification of
your case as one o f sickness, and can only pay you sick benefits.”
The letter also stated that he could appeal to the advisory com
mittee* The plaintiff answered by letter stating that he was not
satisfied with the decision, and further, “ I note what you say about
the advisory committee. This will not be considered by me, as it
would only be time wasted.” In conclusion he stated that if the
superintendent would not classify the case as an accident l*e would
bring court action “ to collect my just dues.”
No appeal was ever taken to the advisory committee, but an action
was instituted to which the defendant pleaded as a defense the rules
and regulations of the department, contending that the plaintiff had
to exhaust his remedies within the organization before invoking the
aid of the court. From a directed verdict and judgment for the
defendant the plaintiff appealed.
Membership in the association was voluntary, and the regulations
provided one scale of payments for accident benefits and one for
sick benefits. The rights considered by the court were contract
rights and the action was brought thereon. The supreme court, on
reviewing the record, held the department to be a beneficial associa
tion and that the rights of the members were governed by the con
tract of membership and the by-iaws. The fact that the plaintiff
sued on the contract was held to be a ratification of it and inconsist
ent with his contention that it was procured by duress or undue
influence.
The plaintiff contended that the regulations of the department
relative to an appeal were unreasonable in that the committee was
not required ever to hear an appeal, and further because the com

CONTRACT OF EMPLOYMENT

mittee could hear one at such a plaee as might impose hardship on
appellant, without notice to the latter or opportunity to be heard.
The court took the position that the regulations of such relief asso
ciations must be reasonably construed.
No case, however, has been called to our attention, nor have we
been able to find one, which holds that provisions for appeal, such
*as are now before us, are unreasonable. Conceding, though there is
authority to the contrary, that the by-laws of a benefit association
must be reasonable, it is certainly true they must in all cases receive
a reasonable construction.
In the case at bar, as we have seen, the regulations provide that an
appeal “ shall be heard by said committee without further notice at
their next stated meeting, or such future meeting or time as they
may designate.”
Construing the regulation in the light of the decisions and defini
tions, the court held that the plaintiff’s rights were sufficiently
safeguarded. Also, the hearing of appeals without further notice
was held reasonable, as the members could, by reading the by-laws,
become familiar with the time of stated meetings.
The plaintiff elected to enforce his claim to accident benefits in
the courts, but “ the trouble is he has disregarded a binding pro
vision ” of his contract of membership. That provision was that ap
peals must be made to the advisory committee. The supreme court
considered the regulation mandatory, and not merely permissive,
and held that, failing to take the appeal, he could not sue at law for
benefits under the contract.
The judgment of the trial court in directing a verdict for the
defendant was therefore affirmed.
Contract op EmpijOyment— Agreement N ot to Engage in Com
peting Business— In ju n ction — City Ice Delivery Go. v. Evans,

Court of Civil Appeals of Texas {May 23,1925) , $75 Southwestern
Reporter* page 87.— The company named, a corporation engaged in
the business of delivering ice in the city of Dallas to both whole
sale and retail consumers, purchased the ice business and good will
of Phillips & Hall at about the time that Carl B. Evans entered
their employment. Prior to this employment, Evans, defendant in
this action, had been in the employ of Phillips & H all for about
five years in charge of an ice wagon. In order to secure the benefit
of the good will that was part of the consideration for the purchase
price from Phillips & Hall, the plaintiff ice company endeavored to
secure, as employees, all of Phillips & H all’s delivery men. A con
tract of employment was drawn up similar to one used by Phillips
& H all, which provided among other things that the company
employed the drivers at a salary of not less than $21 a week; that

DECISIONS OF THE COURTS

the driver was to devote his entire time to the work; that the driver
was not to engage, either on his own account or as agent for another,
in the ice business within the territory covered by the route he was
put in charge of, or within five squares therefrom, for a term of
three years immediately after his employment ceased for any reason.
It was stated that this agreement was made for the protection of
the good will and business which may have been or might be ac
quired. Evans signed such contract of employment on November
28, 1924, and continued working until the 16th of February, 1925,
when he entered the employment of a competing ice company and
began the delivery of ice within the same district. Plaintiff’s busi
ness in the district had amounted to the daily delivery of about 1
ton or iy 2 tons of ice, but following Evan’s employment in the other
company it fell off to about 100 pounds of ice. The plaintiff secured
a temporary writ of injunction, which was discharged by an order
of the district court of Dallas County, and from this order the plain
tiff appealed. The defendant contended that the provisions of the
contract binding him not to engage in a similar business for him
self or another within the territory or five blocks adjacent to it for
three years from the time of the termination of his employment was
invalid as lacking consideration, and further that it was against
public policy and restricted his freedom of employment.
The court of civil appeals, in reviewing the record, observed that
it was a general rule of the law “ that all contracts and covenants
whose tendency is to destroy legitimate competition in trade are
against public policy and void.” The rule, however, was held not
to apply in this case on the ground that the covenant manifested no
such tendency.
The weight of authority was held to be that such covenants are
valid, the test generally applied in determining their validity be
ing whether or not restraint placed upon the employee is necessary
for the protection of the business or good will, and whether it im
poses on the employee any greater restraint “ than is reasonably
necessary to secure protection to the business of the employer or the
good will thereof.” The burden was upon the company to establish
the necessity for and the reasonableness of the restrictive covenant,
and the evidence was held to establish the necessity for this covenant
so far as it related to the immediate territory in which Evans de
livered ice to plaintiff’s customers, but the provision prohibiting
Evans from entering the employment of another within five adjacent
squares was held not enforceable, it being considered that the plain
tiff had established no good will outside of the certain defined ter
ritory.
The injunction was therefore modified so as to embrace only the
original district, and the case was reversed and remanded with

CONTRACT OF EMPLOYMENT

instructions to the trial court to issue a temporary writ of injunction
prohibiting Evans from entering the certain defined territory as
the employee of another.
Contract of Employment— Agreement not to So licit Custom
In ju n ction — New York Linen Supply & Laundry Co. (Inc.)

ers—

v. Schachter et al., Supreme Court of New York, Special Term
(July 9, 1925), 212 New York Supplement, page 72.— Abraham
Schachter was discharged from his employment as a driver of a
laundry wagon for the New York Linen Supply & Laundry Co.
(Inc.). The contract of employment provided that irrespective of
the time, manner, or cause of its termination, he should not solicit
the customers of his former employer, and further that he should
not engage in the same business for a period of five years. Schachter
was discharged for good cause according to the complainant, but
wrongfully according to himself. Action was brought by the New
York Linen Supply & Laundry Co. (Inc.) against Schachter and
the new employer for an injunction to restrain the soliciting of
the plaintiff’s customers until trial of the action.

The supreme court in special term was of the opinion that an
injunction must be granted in a clear case of this character, irre
spective of the dispute of the wrongfulness of the discharge, under
the authority of Eastern New York Wet Wash Laundry Co. v.
Abraham (173 App. Div. 788, 160 N. Y. Supp. 69). I f the period
of restraint upon the employee after the termination of the employ
ment is reasonable, the supreme court held, the negative covenant
will be enforced.
In Wallach Laundry System v. Fortcher (116 Misc. Eep. 712/
191 N. Y. Supp. 409), the court held a two-year period of restraint
was reasonable and brought the case within the rule of the Abra
ham case, supra, in which the period was 18 months. However,
the supreme court said in conclusion that: “ In the instant case I
can not say that the plaintiff has established a clear and convincing
claim of the reasonableness of the covenant extending for five years.”
The granting of injunctive relief prior to trial was accordingly
denied.
C o n t r a c t o f E m p lo y m e n t— B r e a c h — A w a r d b y R a ilr o a d L a b o r
B oa rd — A c c e p ta n c e o f A r b it r a t io n — S t r i k e as C a u se o f D e l a y i n
R e t u r n t o W o r k — Hoey v. New Orleans Great Northern R . Co.,
Supreme Court of Louisiana (June 22,1925), 105 Southern Reporter,
page 310.—Nicholas J. Hoey, prior to November 24, 1920, was
employed by the New Orleans Great Northern Railroad Co. at
93383°— 26------ 3

DECISIONS OF THE COURTS

85 cents an hour, with time and a half for work on Sundays and
all legal holidays. On that day he was summarily discharged.
Rule 37 of the national agreement by the railway operatives and
railway employees provides that no employee may be discharged
without a hearing. Hoey appealed to the Railroad Labor Board,
and on May 18, 1922, decision was rendered that he should be
reinstated with seniority rights unimpaired, and paid for time lost
less his earnings in other employments. A rehearing was denied
the railroad. On August 7, 1922, during the progress of a strike
by a union of which he was a member, plaintiff was notified to
report for work; he notified the company that he would report
as soon as the strike was ended. The railroad wrote plaintiff and
declared its readiness to pay the money due him for the time lost
because of suspension and asked for a statement, which he promptly
rendered, but no payment was made thereon. Plaintiff brought an
action alleging that he had made every honorable effort to return
to work, and that there was due him $2,556.32, the difference be
tween the amount due under his employment with the company
and the amount he had earned since. The suit was dismissed and
the plaintiff appealed, securing a reversal of the judgment below.
The supreme court considered the defendant’s two grounds for
exception: (1) That the transportation act does not provide any
means for enforcement of its decisions, nor does it give either of
the parties the right to enforce the decree in the courts; and (2)
that the plaintiff failed to comply with the part of the rule requir
ing him to return to work and therefore can not enforce that part
requiring the railroad to pay his wages and at the same time refuse
to return to work. In considering the transportation act (C. S.
Ann. Supp. 1923, sec. 10071^4 et seq.), the supreme court said that
it was not provided in the act that the successful party may enforce
the award made in his favor. The only constraint to be placed upon
the parties to do what it is decided they should do is the moral con
straint arising from the right of the board to publish its decisions.
As to the question of plaintiffs refusal to return to work, the
supreme court was of the opinion that he was within his legal
rights in refusing to return “ while his labor organization was en
gaged in strike.”
The court ruled that the railroad, by its action in acknowledged
compliance with the decision of the Railroad Labor Board, had
elected to accept the decision of the board and to reinstate Hoey and
to pay him for time lost, less the amount he may have earned in
other employment. The plaintiff contended that it was thereby
placed in the position of one who had submitted to arbitration and

CONTRACT OF EMPLOYMENT

had accepted the decision of the arbitrators, and was estopped from
denying plaintiff’s right of recovery. To this the court said:
Without passing upon the soundness vel non of this argument, we
think plaintiff is entitled to a right of action to recover such amount
as he may be able to show is due him under the said decision.
The supreme court further held that when the railroad notified
Hoey of its desire to comply with the decision of the board he was
misled to his detriment to forego the “ immediate exercise of his
legal right to require a publication by the Labor Board of its deci
sion and the failure of the defendant company to comply therewith,”
so that the railroad was equitably estopped from contesting the
award.
The fact that Hoey refused to return to work on a certain date
was considered as not a good defense to his demand for compensa
tion to such time the court saying:
Inasmuch as plaintiff is not suing for anything beyond the date
of his reinstatement by defendant, his reservation of the right to
interpret his reinstatement as existent and continuous can not be
construed as a refusal to accept the reinstatement which had been
theretofore made. On the contrary, it was merely a notice that he
would stand on said reinstatement.
The judgment appealed from was therefore set aside and it was
ordered that judgment be entered in favor of Hoey. The cause was
remanded and reinstated on the docket of the district court for
further proceedings according to law.

C o n t r a c t o f E m p lo y m e n t— B r e a c h — D is c h a r g e W i t h o u t
t i c e —G r o u n d s —Ehlers

N o

v. Langley cfe Michaels Co., California Dis
trict Court of Appeal (April 8, 19*25), 237 Pacific Reporter, page
55.— C. W . Ehlers, employed as manager of a department for the sale
and installation of drug-store fixtures by Langley & Michaels Co.,
was dismissed from his employment without notice. He brought an
action to recover the amount of salary and commissions accruing dur
ing the 40-day period following his discharge, the contention being
that the summary dismissal was in violation of the terms of the con
tract of employment. The trial court awarded a judgment on the
verdict in the sum of $814.57, from which judgment the defendant
appealed. On this appeal the judgment below was affirmed.
The main contention of the defendant company is grounded upon
the principle of law that “ it is the duty of the servant to obey all
lawful and reasonable orders and instructions of the master, and that
willful disobedience thereof warrants peremptory dismissal.” {Civ.

DECISIONS OF THE COURTS

Code, secs. 1981, 2000.) The court found no evidence of such dis
obedience, and continuing, said:
While it is doubtless the law, as appellant contends, that willful
disobedience by the servant warrants peremptory dismissal by the
master, nevertheless before the law will allow an employer to ignore
the specific terms of a contract of employment, which requires notice
to be given the employee of its proposed termination, it must appear
that there has been some rule, order, or instruction of the employer
violated, and that such violation was committed willfully and de
liberately on the part of the employee.
Although it is not necessary that the violation be perverse or ma
licious, or that it be the result of an evil intent toward the master,
it must be made clear that the thing done or omitted to be done was
done or omitted intentionally, the rule being grounded upon the
theory that willful disobedience of specific instructions of the master,
if such instructions be reasonable and consistent with the contract of
employment, is a breach of duty—a breach of the contract of service.
Being of the opinion that the jury was justified in its conclusion
and that there was no breach of duty on the part of the plaintiff, the
court affirmed the judgment.
C ontract of E mployment — D ischarge— E ight to S ubsequent
C ommissions—Williams v. Edward A . Thompson (Inc.), Supreme

Court of New York, Appellate Term (ApHl H , 1925), 209 New
York Supplement, page 309.—Fletcher Williams, a former employee
of Edward A. Thompson (Inc.), brought an action to recover com
missions upon business obtained by him for the defendant under the
terms of a contract which provided:
We hereby agree to pay you a commission of 5 per cent on the
amount charged by us for services rendered any customers brought
to us by you, said 5 per cent to be your property, and to continue to
pay this 5 per cent as long as we accept business from any of these
customers.
Williams claimed to have procured as customers Stagg & Hungerford prior to his discharge. The trial court allowed commissions on
this account up to the time of the discharge, and Williams brought
an appeal claiming insufficient relief.
The supreme court noted that the letter or contract specifically
stated that the defendant is “ to continue to pay this 5 per cent as
long as we accept business from any of these customers.” There
being no suggestion that this obligation was conditional upon a con
tinuance of Williams’ employment to solicit business for the de
fendant, the supreme court held that “ when he procured a customer
he was to get commission on that customer’s business so long as the
defendant continued to do business with that customer.”
The judgment was therefore reversed and a new trial ordered.

CONTRACT OF EMPLOYMENT

C ontract

E mployment — E nforcement— S tatute

F rauds—

McLellan v. McLellan, Supreme Court of South Carolina [February
28,1925) , 126 Southeastern Reporter, page 71$ .—Albert McLellan, a
rural letter carrier of the Federal Government, in his spare time
worked for his uncle, the defendant, for his board and lodging.
Yielding to the requests of his uncle to quit the Government service
and work full time for him, Albert McLellan resigned and worked
for the defendant 3&y2 months. In making his proposal the uncle
promised “ a job just as permanent as the mail route as long as we
can get along,” and at the same rate of pay. When the contract
terminated the defendant owed the plaintiff $1,306.25, to collect
which Albert McLellan brought suit. A judgment of nonsuit was
granted because the contract was considered by the trial court as
being within the statute of frauds. The plaintiff appealed.
The supreme court, quoting with approval from Walker v. Rail
road Co. (26 S. C. 90,1 S. E. 373), said:
But even if the contract, when originally made, was obnoxious
to the statute, yet, after it had been fully performed by the plaintiff,
the defendant could not then avail itself of the statute. If, as we must
conclude after the verdict of the jury, the plaintiff continued to fur
nish material to the railroad company under the original agreement,
which was afterwards recognized and continued by the road masters
of the defendant company, without any notice to stop, then the
plaintiff, having fully performed his part of the contract, is entitled
to recover, * * * even if the contract, when originally made,
could be regarded as within the statute [of frauds].
The sum sued for in this instance was for labor actually per
formed, and the supreme court reversed the judgment and remanded
the case for a new trial.

C ontract of E mployment— E nticing L aborers— C onstruction
S tatute—Rhoden v. State, Supreme Court of Georgia (September

17,1925), 129 Southeastern Reporter, page 61fi.—The Penal Code of
Georgia, section 125, declares:
I f any person shall, by offering higher wages or in any other way,
entice, persuade, or decoy, or attempt to entice, persuade, or decoy
any servant, cropper, or farm laborer, whether under a written or
parol contract, after he shall have actually entered the service of his
employer, to leave his employer during the term of service, knowing
that said servant, cropper, or farm laborer was so employed, he shall
be guilty of a*misdemeanor.
Dave Rhoden was charged with enticing an employee of another
to leave the employment during his term of service. Error was
brought from a judgment of conviction.
Mr. Justice Atkinson, speaking for the supreme court, which up
held the statute, quoted from the case of Employing Printers’ Club

DECISIONS OF THE COURTS

v. Doctor Biosser Co. (122 Ga. 509, 50 S. E. 353, 356), in which it
was said:
The malicious procurement of a breach of contract of employment,
resulting in damage, where the procurement was during the sub
sistence of the contract, is an actionable wrong. * * *
The early English cases limited the action to the enticement of
menial servants, but the later cases, beginning with Lumley v, Gye
(2 E. & B. 216), have extended the doctrine beyond menial servants;
and by the modern interpretation of this doctrine by the English
courts the rule is extended to a malicious interference with any con
tract.
The supreme court considered the case Hoole v. Dooroh (75 Miss.
257, 22 So. 8^9), in which the Mississippi statute was attacked as
being unconstitutional on the grounds, among others, that it offended
the due process clauses of the State and Federal Constitutions. The
court there, sustaining the constitutionality of the act, said:
The statute, Code 1892, sec. 1068, which forbids, under civil and
criminal penalties, any person interfering with a tenant or laborer
of another during the continuance of the lease or contract of serv
ice, is not class legislation, since it applies to all persons; and, as it
condemns only a breach of civil duty, is not violative of either the
Federal or State Constitutions.
It was considered by the court that what was applicable to the
statute of Mississippi was equally applicable to the Georgia statute,
and for the reasons advanced in the Mississippi case it was held that
the Georgia law was valid. The judgment of the court below was
therefore affirmed.
Contract o f Employment— O ra l M odification— P ro fit Sh a r
ing —M. Shiloff Grocery Co. v. Eberline et al., Supreme Court of

Iowa (February 17, 1925), 202 Northwestern Reporter, page 86.—
One Eberline was employed by the plaintiff grocery company as a
butcher, in charge of that part of the business. At the end of the
first year of the employment a settlement was had between the par
ties, and in April, 1922, the beginning of the second year, the con
tract of employment was reduced to writing, whereby the defendant
was to receive $35 a week as salary, and further;
That if the said employment shall have continued satisfactorily
for the balance of said year, then, and in that event, first party
agrees to pay to second party, as additional compensation, an amount
equal to one-half of the net profits of the meat business for the year
1922.
Eberline quit on August 14, 1922. Some time later the employer
brought suit on a note in the amount of $25 and on account in the
sum of $141.94, to which action Eberline filed a counterclaim. There

CONTRACT OF EMPLOYMENT

was no question on appeal as to the claims of the plaintiff, and the
jury allowed them in full, but the company appealed from a judg
ment allowing a substantial amount of the counterclaim.
The defendant Eberline pleaded the written contract, and alleged
that it had been modified orally to the effect that settlement for
profits should be made quarterly instead of annually. He proved
the amount of the profits for the first quarter up to July 3, and
from July 3 to August 14. The plaintiff contended that the oral
modification was void and of no effect “ because it was wholly with
out consideration,” that the written contract was executory and that
the proviso as to profit sharing imposed no obligation upon the de
fendant, but acted only as an inducement to continue the employ
ment, and if it became insufficient as an inducement the defendant
had complete liberty to quit. It appeared that the employer in
creased the inducement upon the defendant declaring his purpose
to leave, and the supreme court said: a We see no reason for saying
that the promise o f the employer lacked consideration. * * *
We hold, therefore, that the oral modification was not invalid.”
Whether the employer and employee actually did orally modify
the contract was considered by the court as a proper question for
the jury, and that it was submitted in proper form. The oral agree
ment pleaded and proved by the defendant “ contemplated the allow
ance of profits only for a completed quarter of service on his part.
Such was the inducement held out to him. He did not complete the
quarter following July 1, and was not entitled to cash profits upon
a fraction thereof.”
The supreme court therefore considered the verdict as unau
thorized, and held that nothing should have been allowed the de
fendant as profits after the first quarter. The court concluded that
if the defendant should within 30 days “ file in this court a remit
titur of that part of his judgment in excess of the final balance here
indicated, the judgment will be affirmed as so modified; otherwise
it will be reversed.”
The judgment was accordingly affirmed on condition.

C ontract of E mployment— R etirement P ay — S tatus of O ffer
E mployer— C onsideration— Shear Co. v. Harrington, Court of

Civil Appeals of Texas ( October SO, 1924), ^66 Southwestern Re
porter, page 554*—H. P. Harrington, age 76, was employed as ship
ping clerk at the branch house of the defendant company at Hills
boro. In February, 1921, Harold Shear, the vice president of the
company, told Harrington that in view of his more than 20 years’
service to the company they were going to retire him upon a salary.

DECISIONS OF THE COURTS

On February 5,1921, the plaintiff Harrington received a letter from
the vice president referring to the conversation, and stating in part:
We now think that this is the logical time to make whatever change
will be necessary there, and we think that in 30 days, or whenever we
can secure a man in whom we have confidence, we would be willing
to retire you with a salary of $75 per month the rest of your life. We
have a man in mind, and you may expect to hear from us very soon
as to the exact time we will need you there. We want you to feel
that we look on you as a faithful servant, who has through a long
period of years given us good service. We do not offer you this
salary as charity. We believe that you are fully entitled to it on
account of long and diligent service in our employ.
Plaintiff replied offering his thanks and his services if at any time
they desired to use them. On March 1, 1921, he was relieved from
service and was paid $75 a month until August, 1921, when he
received a letter from the president of the company, Mrs. Shear.
The letter in substance stated that due to business depression his
retirement pay would have to be decreased to $60 a month. The
payments of $60 a month were made from September, 1921, to and
including March, 1922, when plaintiff received another letter from
Mrs. Shear on March 18, in which she said that he would receive
the April check but that the allowance of $60 would be discontinued
with that check. Just before the receipt of the letter of March 18,
1922, the shipping clerk who had taken the plaintiff’s place became ill
and plaintiff, at the request of the manager, took his place for four
days. Nothing was said about paying him for those four days. An
action was commenced to recover the amount of the pension, and
from a judgment in the sum of $1,140 in favor of the plaintiff the
defendant appealed.
The court of civil appeals on review said:
It appears that the defendant’s offer to retire plaintiff from active
service and pay him such salary for life, to be binding and enforce
able, must have been supported by some consideration other than his
mere assent to or acceptance of such offer. The great weight of
authority is that a past consideration, which imposed no legal obliga
tion at the time it was furnished, will not support a subsequent
promise to confer a benefit. The defendant in said letters stated that
the plaintiff was entitled to be retired from active service on a salary
for life, on account of long and diligent service in its employ. There
is no contention that such service was not fully paid for at the time
it was rendered. All legal obligation was discharged by such pay
ment. I f defendant, in making the offer in question, was actuated
merely by kindly feeling and generous impulse toward the plaintiff,
growing out of the recognition of such long and faithful service,
such offer was based on motive and not on consideration, and can not
be enforced in court.

CONTRACT OF EMPLOYMENT

The plaintiff offered to work when needed, but the court said,
“ plaintiff’s said offer was merely a supplemental and gratuitous one
and was lacking in mutuality, and therefore not binding upon nor
enforceable against him.”
The judgment was therefore reversed and rendered for the defend
ant company.
Contract o f Employment— E ig h t to D eliver Speech— Property
E igh t— In ju n ctio n — City of Louisville et al. v. Lougher, Ken

tucky Court of Appeals (May 29,1925), 272 Southwestern Reporter,
page 7£8.—A secret organization had employed E. H. Lougher to
deliver addresses for an agreed compensation. He had secured a
vacant lot in the city of Louisville, Ky., for the purpose of carrying
out this contract, but the police officers of the city, under instructions
from the board of public safety, undertook to prevent the delivery
of the address. Lougher sued for an injunction against any inter
ference with carrying out the contract, claiming that their action
was an invasion of his property rights, since, unless he could deliver
his speech, he would not receive his agreed compensation.
On hearing it was found that the subject matter of the address was
not unlawful, that it was not on any forbidden subject, and that it
did not appear that its delivery would create a disturbance of the
peace. The police force of the city were required to maintain order
and suppress riots, and it was claimed that the city might take such
preventive measure as would avoid disturbances; but it was held
that unless it was shown that disturbances would be the probable
result of the address no interference was lawful, and an injunction
was accordingly issued. The city of Louisville and the police officers,
defendants, appealed.
The court of appeals observed first that under subsection 4, section
1, of the constitution, the plaintiff had a right to communicate his
opinions through an unobjectionable proposed speech, and that sub
section 6 entitled the members of an audience to hear him if assem
bled in a peaceful manner. The proposed assembly in the case at
bar was held not an unlawful assembly, the court adding, however,
if the plaintiff or any of his sympathetic hearers “ should engage in
any unlawful speech or conduct after the assemblage had been
formed of such a nature as to be reasonably calculated to produce a
breach of the peace, then the assemblage would become an unlawful
one, and subject to dispersement.”
It was insisted that a court of equity could not enjoin police officers
from such interferences as were involved in this case, since to do so

DECISIONS OF THE COURTS

“ would be tlie enjoining of criminal proceedings.” The court of
appeals admitted that it may be conceded that generally police offi
cers will not be so enjoined, but that “ such officers will be enjoined
4from illegally doing irreparable injury to the property of individ
uals/ and the law seems to be well settled that, wherever it is nec
essary to protect property rights, police officers may be enjoined, and
especially so where the remedy of law is inadequate. * * * I f
they have no duty in the premises the reason for invoking the rule
against their being enjoined ceases.”
It was said that the old theory was still in force “ that one may
hold his property undisturbed,” and “ will be protected in its enjoy
ment by a court of equity, since he is not compelled to relinquish it
to a wrongdoer and to accept in lieu of it what a jury might award
him in a suit for damages. Plaintiff’s property right, as manifested
by his pleading and proof, to deliver the address in this case is as
much a property right, as long as he transgresses no law, as is the
owner of any other species of property, and on the showing made
in this record we are unable to detect wherein the court erred in
enjoining the defendants from absolutely preventing plaintiff from
attempting to deliver his address.”
The court of appeals, in conclusion, having found that the address
was not offensive, that portion of the injunction permitting the
delivery of the address was affirmed, but the absolute restraint on
the police force against “ disturbing or dispersing any audience or au
diences assembled to hear plaintiff deliver said address or addresses ”
at any time was held to be too broad. Under the injunction as granted
by the court below, it was considered that the officers would be
“ powerless to preserve the peace or arrest the offenders against the
law in the event of any of the occurrences above indicated.” This
provision was accordingly reversed, with directions to modify.

Convict Labor— M anufacturing in Sta te Prison— Monopoly—
C onstitutionality of S tatute— Rice v. State ex rel. Short, A t

torney General, Supreme Court of Oklahoma {December 9, 192Jf)y
282 Pacific Reporter, page 807.— The State of Oklahoma sought to
enjoin Carl Rice and J. E. O ’Neil, members of the State board of
public affairs, constituting the board of prison control, from entering
into a contract with the Cherokee Manufacturing Co. whereby the
State was to manufacture shirts at the State penitentiary, with an
exclusive option to the company to buy any excess. The complain
ant contended that the contract violated the constitution, which
prohibited the contracting of convict labor; that it did not constitute
the exercise of a governmental function; that it created a monopoly;

CONVICT LABOR

that the manufacture o f shirts in competition with free labor was
not business for a public purpose; that it granted exclusive privi
leges; that it was ultra vires; and that it was a misapplication of
public money. In determining the validity or invalidity of the con
tract the supreme court .considered whether or not it was in violation
of either the spirit or letter of the constitution, for if it violated
either “ it must be held invalid.”
Section 31 of article 2 of the constitution provided that the right
of the State to engage in any occupation or business for public
purposes should not be denied or prohibited, and the supreme
court took the view that “ if the business mentioned in the contract
is for a public purpose it finds sanction in the constitutional provi
sion above referred to.” In holding that the business was for a
public purpose the court said;
The fact that such employment may produce a commodity to be
sold on the market in competition with goods produced by free
labor does not render the purpose a private one.
The State is entitled to the labor and service of its convicts while
confined in its prisons, and has the authority to produce by such
labor things of commercial value. This right must be conceded,
and having this right, it necessarily follows that the State has the
implied power to sell and dispose of the commodity produced. In
so doing the State should be regarded as performing a governmental
function, and not as being engaged in a purely private commercial
transaction.
The statute having granted authority to the State board to install
such business enterprises to employ the inmates of the prisons or
institutions, the court was of the opinion that “ this grant of au
thority is general, and carries with it everything reasonably neces
sary to make it effective. The contract finds sanction in both the
constitution and statute, and is not ultra vires.”
As to the contention that the contract amounted to a misapplication
of public funds, the supreme court referred to the statute creating
a State prison revolving fund for the penitentiary and reformatory,
under which the State board could, with the approval of the gov
ernor, install a business enterprise and use the revolving fund for
that purpose. (Comp. St. 1921, secs. 8660-8662.)
The charge that the contract created a monopoly was, in the
opinion of the court, “ without foundation.”
It can not be said that the contract under consideration contains
any feature or discloses any intent to restrict trade. It is not at
tempted to control the supply or demand for either shirts or the
material of which they are made. We fail to see in this contract
any element of monopoly which does not arise in the ordinary trans
action of sale and purchase.

DECISIONS OF THE COURTS

Neither is the contract violative of the constitution and laws of
the State in that it grants an exclusive privilege and stifles com
petition.
Section 51, article 5, of the constitution provides:
The legislature shall pass no law granting to any association, cor
poration, or individual any exclusive rights, privileges, or immunities
within this State.
It was not contended that a law granting special privileges had
been passed. The legislature authorized the State to establish fac
tories in the penitentiary, and because the contract provides for
the sale of the product of a factory so established to the company
“ does not amount to a grant to it of an exclusive right, privilege, or
immunity within the meaning of the constitutional inhibition.”
Section 2, article 23, of the constitution provides:
The contracting of convict labor is hereby prohibited.
The court having taken the stand that the State had the right to
engage in the business contemplated as it was for a public purpose,
the question arose whether “ the State proposes in good faith to
embark in the business of manufacturing and selling work shirts, or
whether the real object of the contract is the contracting of convict
labor.” The petition did not charge bad faith.
In construing the constitutional provisions relating to convicts the
supreme court said:
We can not believe that the constitution makers had in mind the
protection of free labor from competition with convict labor. Had
they so intended they would have said so.
The court indorsed the sentiment expressed in Henry v. State
(87 Miss. 1, 67, 39 So. 856, 875), as to the beneficial purpose of the
State in furnishing employment to convicts and then concluded:
Having concluded that it was not the purpose of the constitution
to prohibit convict labor from coming into competition with free
labor, it can not be said the contract is invalid because the product
of the labor of convicts may be placed upon the market in competi
tion with like articles produced by free labor. One can not read this
contract and say that, by its terms, the State is contracting convict
labor to the Cherokee Manufacturing Co. It may be, as contended by
the amici curiae, that this is the true purpose, but we must construe
the contract according to its terms. We are not justified, in the
absence of a charge of fraud or bad faith, in looking beyond the
plain terms of the contract to find some excuse for declaring it
invalid.
If the policy of the State in maintaining factories and other busi
ness enterprises in its penal institutions in competition with the
citizens of the State engaged in like enterprises is wrong, the evil
must be remedied by the legislature, and not by the courts.
The judgment of the trial court was therefore reversed, with
directions to sustain the demurrer to the petition.

CONVICT LABOR

C onvict L abor— M arking G oods— C onstruction of S tatute—
E nforcement— Choctaw Pressed Brick Co. v. Townsend, Warden

of State Penitentiary, Supreme Court of Oklahoma (February
1925), 236 Pacific Reporter, page £6.—The Choctaw Pressed Brick
Co. brought an action in the district court for an injunction against
the warden of the Oklahoma State Penitentiary to enjoin the sale of
“ convict-made pressed brick ” which “ do not bear the label which
section 11015 of the Compiled Statutes of 1921 requires to be borne
by 4convict-made goods.’ ”
Without stating the grounds the trial court sustained a demurrer
to the petition, and the plaintiff appealed.
It appeared that the plaintiff was a corporation engaged in the
manufacture and sale of pressed brick at McAlester, Okla., the city
at which the State penitentiary is located. The claim was made that,
because of the defendant’s failure to label their products as “ convictmade goods,” the plaintiff was forced into competition with such
goods, and as a result thereof was unable to compete with the prices
and would thereby be forced to go out of business. It was contended
that the business of the plaintiff would be irreparably damaged unless
the defendant warden and others be restrained from placing such
goods on the public market in violation of the law.
Sections 11015 and 11016 of the Compiled Statutes of 1921 pro
vide that all articles of clothing, etc., or other articles of merchan
dise manufactured by convicts shall be marked “ convict-made
goods,” prescribing a penalty for violation thereof. The supreme
court, on reviewing the record, observed that the legislature had a
definite twofold object in view when it enacted the law; such objects
being “ to protect free labor against competition with convict labor,
and to prevent a deception being practiced on the public by the sale
of convict-made goods without labeling them as such.” The court
held that the allegations of pecuniary injury to private property
rights by unlawful acts of public officers causing irreparable injury
are sufficient to constitute a ground for injunction and to have the
cause of action as stated. To the extent that such statutes were in
tended to prevent financial injury to private rights they are civil in
their nature and are “ not subject to the strictness of construction
with which penal laws are construed.”
To the contention that the injunction would not be against the
officers, the court quoted from 22 Cyc. 881:
Although a State itself can not be enjoined, yet when State officials
are acting in an unconstitutional or otherwise illegal manner they
are not regarded as acting for the State, and they may be enjoined.
After an examination of the decisions in support of the text an
nounced, the court held that the rule seemed unquestionably settled

DECISIONS OF THE COURTS

that “ while equity will not lend its processes to prevent the com
mission of crimes, not to prevent public officers from the enforcement
of penal statutes, yet when the commission of a crime results in pecu
niary injury to private property rights * * * then the person
injured has a rightful resort to equity, and equity will grant relief.”
However, it was held equally well settled “ that the fact of pecu
niary injury must be established by clear and convincing proof.
Therefore, the fact of pecuniary injury in the instant case being
conceded upon demurrer, there can be no question * * * but that
equity will enjoin the State officers in question from continuing such
injury.”
The judgment below was therefore reversed and the case remanded*

m plo yer

and

E m p l o y e e — S ervice

L etter — C o n st r u c tio n

S t a t u t e —Soule

v. St. Joseph Ry.., Light, Heat, & Power Co.,
Kansas City Court of Appeals, Missouri (June 29,1925), 27^ South
western Reporter, page 517.—Section 9780 of the Missouri Revised
Statutes of 1919 provides that an employer must give a service letter
to employees leaving his service, and requires that such letter shall
set forth—
*
* * the nature and character of service rendered by such
employee to such corporation and the duration thereof, and truly
stating for what cause, if aity, such employee has quit such service.
Harry Soule was employed by the defendant company as a motorman in the operation of a street ear from July 15, 1918, until Sep
tember 12, 1921. Soule requested a service letter three months later
setting forth the nature and character of the service rendered and
stating truly for what cause such employee quit the service. The
request was made to the superintendent of the street railway depart
ment, who referred the matter to the superintendent of transporta
tion. The letter given to Soule was as follows:
To whom it may concern: The bearer of this letter, Mr. Harry A.
Soule, whose signature appears below, worked for this company as
motorman from July 15, 1918, to September 12, 1921.
(Signed)
O. F. Koss,
Supt. of Transportation.
HaiIKY A. SOULE.
Soule contended that he had presented the letter to several persons
but had failed to secure employment. Soule brought an action for
damages, alleging that on account of the refusal of the defendant
to give him the service letter required by the statute, he has been
unable to secure employment from other corporations and indi
viduals. From a judgment for the plaintiff the defendant appealed.

e m p l o y e e s ’ l ia b i l i t y

It was observed by the court of appeals that the letter failed to
meet the requirements of the statute, and it held that the defendant,
having issued the letter upon the request of the plaintiff, was estop
ped from denying that a proper request was made. The defendant’s
testimony was chiefly directed toward a showing that Soule’s services
with the company were highly unsatisfactory, leading to the in
ference that he was discharged for this reason and that a letter in
strict conformity with the statute could have been of no benefit to
the plaintiff in securing employment.
There was no testimony tending to show that the failure to give the
statutory letter had anything to do with the failure of the plaintiff
to obtain employment, and the court held that to say that he was
refused employment because he was not given such letter to which he
was entitled “ would be indulging in mere speculation, and a verdict
based on speculation can not stand.” The defendant’s instruction
including the foregoing should have been given, and its refusal was
held error by the court on review.
It was urged that the court erred in excluding the company’s
evidence tending to prove the nature of the service rendered by Soule,
and the reason or cause for his quitting; and in support of this it
was insisted that such testimony was germane to the issues as tend
ing to show whether or not a statutory service letter would have been
of any actual value to the plaintiff. The court was of the opinion
that such contentions were of no effect, because “ the statute is*mandatory, and it was not within the province of defendant to determine
the effect of such a letter upon plaintiff’s efforts to secure emploj7ment.”
However, for the error in refusing the instruction prayed for as to
damages, the judgment was reversed and the cause remanded.

Employers’ L ia bility — Action by Personal Representative—
C on stitu tionality o f S tatu te— Stargo Mines Go. v. Coffee, Su

preme Court of Arizona (July lip, 1925), 238 Pacific Reporter, page
335.— Paragraph 3158 of the Arizona Civil Code of 1913 authorizes
the personal representative to bring an action for the benefit of a
deceased employee’s estate. Isabel Carabajal, while working in the
mine of the Stargo Mines Co. as a mucker, received injuries from
which he died. G. L. Coffee sued as administrator to recover dam
ages for the benefit of the estate of deceased, and the employer
contended that the provision of paragraph 3158 was unconstitutional
in that the law “ should be limited in its objects to the surviving
widow and children.” It was contended that the extension of the
law to the estate was in contravention and in violation of the four
teenth amendment to the Federal Constitution and section 4 o f

DECISIONS OF THE COURTS

article 2 of the State constitution. The jury granted the plaintiff
$2,000, and from a judgment entered thereon the defendant appealed.
The supreme court observed that the employers’ liability law in
its general features had been many times passed upon by it and the
Federal Supreme Court, and held to be constitutional. The principle
of damages for personal injury or death without fault was considered
justified on the theory that “ they are incidents of the industry,”
and “ can as well be charged to maintenance and overhead and
passed on to the general public.” It was considered not so much
upon the industry or the employer as upon the general public. It
was further observed by the court that whatever may have been the
thought at one time, “ the principle of allowing damages without
fault is now thoroughly imbedded in the law7s of this country.” The
reason for extending the benefits of the law to the estate “ may not
be as cogent and satisfying as those for extending them to the rela
tives, but can it be said that the estate is wholly foreign to the
objects of the law ?” One of the considerations of the legislature
was that the creditors were to be protected, the legislature having
named the estate of the deceased as a beneficiary and the estate not
appearing to be wholly without the objects and purpose of the law,
“ the legislative decision is binding upon the courts.”
Failing to see how it violates the State or Federal Constitution,
the supreme court held the burden of proof to be upon the defend
ant, ajid that the defendant had not sustained that burden.
The judgment was therefore affirmed.
E m p lo y e r ’ s

L ia b il it y — A

d m ir a l t y —

F ederal

S t a t u t e — N e g l i

—United States Shipping Board Emergency Fleet Corpora
tion v. O'Shea, Court of Appeals of District of Columbia (April 6,
1925), 5 Federal Reporter (2d), page 1%3.—Jeremiah O’Shea, em
ployed as a boatswain on the steamship Dungannon on January 7,
1920, received injuries arising out of his employment, resulting in
damages, for which he sought the sum of $25,000 in a suit against
the United States Shipping Board Emergency Fleet Corporation.
The jury found from the evidence that the vessel was owned by
the United States, and while on the high seas bound for New Orleans
the cargo space was found flooded with fuel oil which had escaped
from the tank through the manholes, the oil being about 4 feet
deep at the rear of the cargo space. During the next five days the
plaintiff and seamen were ordered to work in the hold transferring
the oil back to the tank by hand. The deck of the hold was slippery
and the air filled with gas fumes, the ventilation being bad because
of the hatches being partly closed, made necessary by the weather,
and the men were compelled to work in underclothes and bare feet
and to bathe in gasoline twice a day. Plaintiff protested on the
g ence

EMPLOYERS9 LIABILITY

ground that the job was dangerous to the men’s lives, but the captain
read the regulations to them and said that he would land them on
the Bermuda Islands within an hour if they did not go back to
work. While attempting to fasten the plates on the manholes the
plaintiff protested, “ because if he let go the lifeline he would get
killed,” to which the mate replied that he knew it, but that the
captain wanted the plates on. The plaintiff slipped and was thrown
violently upon the iron coaming surrounding one of the manholes,
and sustained severe and permanent physical injuries.
Plaintiff’s action was brought under section 8337a, Comp. St.
Ann. Supp. 1923 (act of June 25,1920, 41 Stat. 1007), which provides
that:
Any seaman who shall suffer personal injury in the course of his
employment may, at his election, maintain an action for damages at
law, with the right of trial by jury, and in such action all statutes
of the United States modifying or extending the common-law right
or remedy in cases of personal injury to railway employees shall
apply.
This action extended the admiralty law, adopting by reference the
provisions of the employers’ liability act of 1908, and its amend
ments (Comp. St., secs. 8657-8665, 1010) for the benefit of seamen
who suffer personal injury in the course of their employment. The
employers’ liability act permits recovery from common carriers by
any person injured while in their employ for such injury as results
in whole or in part from the negligence of the officers of the carrier,
or by reason of any defect or insufficiency due to its negligence.
The plaintiff received a verdict and judgment in the sum of
$15,000, the defendant appealing.
It was the contention of the defendant that the statute in question
applied only to merchant vessels not owned by the United States,
but the court of appeals observed that it could find “ no warrant in
the letter or spirit of the act for such a limitation when the vessel
is operated by others, as in this case.” The vessel was, in fact, oper
ated and managed by the Columbus Shipping Co., but it was merely
acting as agent of the Fleet Corporation.
The defendant further contended that the Fleet Corporation was
acting as a public agent, and as such could not be sued. This claim
was held untenable on the authority of United States v. Strang (254
U. S. 491, 41 Sup. Ct., 165), and other cases cited. The defendant
maintained that the evidence failed to sustain the charge of negli
gence, but the court overruled the claim on the ground that “ the
officers did not exercise a reasonable care for the plaintiff’s safety
when they required him to perform the work in question under the
circumstances disclosed by the evidence.” It was conceded that the
93383°— 26-------4

DECISIONS OF THE COURTS

officers might be justified under given circumstances in ordering
seamen into positions of great personal peril in the line of duty, but
no such circumstances were considered as existing in this case.
To the defense of assumption of risk the court said:
The doctrine of u assumption of risk ” implies at least some meas
ure of freedom of action upon the part of the employee, whereas in
this instance the plaintiff was compelled under penalties to obey the
order of his officers. The doctrine, therefore, does not apply to the
proven facts of the case.
TSie judgment was accordingly affirmed.
E m plo y er s ’

L ia b il it y — A

d m ir a l t y —

F ederal

S t a t u t e — S t eve

—Alaska S. S. Co. v. McHugh,
(April 13, 1925), 268 U. S. 23, 4-5 Supreme Court Reporter, page
396,—The employers’ liability act of 1906, making common car
riers in territories of the United States liable for injuries to or
death of employee caused by “ defect or insufficiency due to its
negligence in its cars, engines, appliances, machinery, track, road
bed, ways, or works,” was offered as a basis of action in admiralty,
and was held by the Supreme Court not to be applicable to injuries
sustained by a stevedore employed by a shipowner, a common car
rier engaged in coastwise trade in the Territory of Alaska, since the
statute is not applicable to marine torts.
The question as to the liability of the carrier was submitted to
the Supreme Court on certificate from the United States Circuit
Court of Appeals for the ninth circuit. Mr. Justice McReynolds,
speaking for the court, said:
This court has never held the act applicable to marine torts. To
give it such construction would give rise to a grave constitutional
question as to its validity and cause much confusion and uncertainty
concerning the reciprocal rights and obligations of ships and those
who work upon them. [Citing Knickerbocker Ice Co. v. Stewart,
253 U. S. 149, 40 Sup. Ct. 438, and other cases.] The language
employed * * * opposes the suggestion that the purpose was
to regulate purely maritime matters, from time immemorial sub
ject to the law of the sea, which recognizes and enforces rights and
remedies radically different from those of the common law.
In the absence of a clear and distinct enunciation of such pur
pose, we can not conclude that Congress intended to invade the
field of admiralty jurisdiction, and materially alter long-recognized
rights and established modes of procedure.2
dore i n

C o a st w ise T rade

laska

s Some difficulty attaches to the understanding of this broad statement in view of the
amendment of 1920 (see p. 37 ), which specifically extends to seamen the effect of “ all
statutes of the United States ” modifying common-law actions by railway employees.
The act of 1906 was obviously intended to be such a law. It was declared unconstitu
tional in its wide scope, as extending beyond the powers of Congress to legislate for
interstate employees only, but was held valid as regards the District of Columbia and the
Territories. No doubt its limited scope makes this law deficient in uniformity of appli
cation, but if that were the ground for its rejection in the instant case it would appeal
easy to have made that statement iu lieu of the broad pronouncement of the opinion.

EMPLOYERS * LIABILITY
E m p lo y e r ’s L i a b i l i t y — A d m i r a l t y — R ep a irs
s e l— E f f e c t o f S ta te

C o m p le te d V e s

Law—Robins Dry Dock & Repair Co. v. Dahl,

United States Supreme Court (January 5,1925), 1±5 Supreme Court
Reporter, page 157 —Lars Dahl, employed by the Robins Co. to
do repair work on the steamer El Occident, then lying in navigable
waters at Brooklyn, sustained serious injuries when a plank scaf
fold on which he was walking or standing broke and caused him
to fall into the hold. An action was brought in the New York
Supreme Court for-damages for personal injuries received, alleging
that the claimant was injured solely “ by and through negligence in
that the company did not furnish a safe place to work and failed
to provide a safe scaffold as required by the. labor laws of the State
of New York.” Verdict and judgment in the supreme court were
affirmed in the appellate division, and the defendant brought error,
on the ground that the trial court committed error in the instruc
tions to the jury. The court charged the jury in part:
This is what we call a maritime tort, an action in negligence that
is governed by the maritime laws, the admiralty laws, the laws that
pertain to navigable waters in this country. * * * The law per
mits even a maritime case, such as should ordinarily be brought in
the United States court, to be tried in a State court. * * *
Under the common law the same rule applies in this case as the rules
that I have laid down to you, that the burden is upon the plaintiff
to prove that the defendant was negligent, and that he himself was
free from any contributory negligence. In this case, however, comes
a provision known as section 18 of the labor law (Con. Laws, c. 31).
* * * No law of the State can modify or affect the rights of
workmen who are operating under the maritime law. And it has
been held that this section 18 of the labor law does not modify or
effect the law, but may be read in conjunction with the law.
The United States Supreme Court, speaking through Mr, Justice
McReynolds, said:
The alleged tort was maritime, suffered by one doing repair work
on board a completed vessel. The matter was not of mere local con
cern, but had direct relation to navigation and commerce. The
rights and liabilities of the parties arose out of and depended upon
the general maritime law, and could not be enlarged or impaired
by the State statute. They would not have been different if the
accident had occurred in San Francisco.
The jury were distinctly told that they might consider the pro
visions of the local law in deciding whether or not the employer
was negligent. No such instruction would have been permissible in
an admiralty court, and it was no less objectionable when given by
a State court. The error is manifest and material.
The judgment was therefore reversed*

DECISIONS OF THE COURTS

Employers’ Liability—Admiralty— R ig h t of Injured Seaman to
Maintenance and Cure— Morris v. United States, United States

Circuit Court of Appeals, Second Circuit (.November 10, 19%4), 3
Federal Reporter (%d), page 588.—Charles Morris shipped as a
“ work-away ” at 1 cent a month on the steamship Polybius, on a trip
from Antwerp to New York City. He was set to work, and when the
vessel was two days out, while carrying two heavy pails, he sustained
a severe strain, resulting in a ventral hernia. No medical attention
was given him during the entire voyage, even when the ship stopped
at Porto Delgada, in the Azores. Morris claimed he asked for med
ical aid at the Azores and various other times, and also asked to be
relieved of his obligations to the ship at that point, but the master
denied the requests. Because of his illness he refused to work, and
when a day out from New York he was asked to clean the smoke
stack in a storm, and for failure to do so was confined in chains. On
the second day after arriving in New York he was operated on at
the United States Marine Hospital, remaining there three weeks.
He later developed thrombosis of the veins of his right thigh on the
outer surface, which “ appeared some three weeks after the opera
tion of the hernia.” He was then kept in the hospital for seven
months longer, “ with constant hemorrhages from the wound caused
by the operation for thrombosis of the veins.” Morris brought libel
against the United States for maintenance and cure while in service
on the United States steamship, and from a decree of dismissal he
appealed.

It was held to be well settled that a seaman who is defiant and
subversive to discipline that must be maintained at sea may be pun
ished by the captain. (Comp. St., sec. 8380.) An injured seaman
sustaining an injury at sea is entitled to maintenance and cure, but
in this case the circuit court of appeals held that the evidence was
insufficient to prove that the illness from thrombosis was due to in
jury or maltreatment received by Morris on board the ship.
The circuit court of appeals held in The Bouker No. 2 (241 Fed.
831, 154 C. C. A. 537), that where a seaman was not accorded the
maintenance and cure which the law imposed upon the shipowner
these items could be recovered. The court said in that case, in part :
The meaning of the phrase “ maintenance and cure ” is plain. By
the custom of the sea the hiring of sailors has for centuries included
food and lodging at the expense of the ship. This is their main
tenance * * *. We agreed with the remark in The Mars (149
Fed. 729, 79 C. C. A. 435), that: “ The word 4cure’ is used in its
original meaning of care, and means proper care of the injured sea
man, and not a positive cure, which may be impossible.”
Furthermore, “ cure ” has been held to signify: “ the ordinary
medical assistance and treatment in case of injury or acute disease,
for a reasonable time. The ship is not bound to pay for the (sailor’s)

e m p l o y e e s ’ l ia b il it y

medication for the cure of a chronic disorder for an indefinite length
of time.” ( The Ella 8. Thayer (D. C.), 40 Fed. 904.) Nor does
the liability of the ship extend beyond “ expense of effecting a cure
by ordinary medical means. This does not include extraordinary
medical treatment or treatment after cure effected as completely as
possible in a particular case.” (The C. S. Holmes (D. C.), 209 Fed,
970.)
The voyage lasted about five weeks, and the court held that Morris
should have been relieved from duty and at the same time have re
ceived medical attention. The treatment he received in New York
cured him of hernia.
As to the point that the captain believed Morris to be shamming
during the voyage, the circuit court said:
Even though the captain was mistaken, and committed an error
of judgment in believing that the appellant was shamming, this
fact does not relieve the ship from the responsibility it owed to the
seaman. The consequential damage due to the failure to afford
medical aid and maintenance is a measure of damages which is to be
awarded. The right of recovery for maintenance and cure does not
allow recovery for pain and suffering or compensation for injury
due to physical incapacity. A right of action for damage for mal
treatment is not pleaded here. Appellant makes no proof of loss
of wages or medical expense. But he was obliged to work about five
weeks when he was entitled to be maintained in rest for cure. He
should be compensated for this period.
The circuit court of appeals modified the decree by allowing
Morris the sum of $250.
E m p lo y e r s ’

L i a b il it y —

d m ir a l t y

—

essel

“ G raven

” — W o r k m e n ’s C o m p e n s a t io n —Butler v. Robins Dry Dock
<&Repair Go., Court of Appeals of New York (February 25, 1925),
lift Northeastern, page 235.—Walter Butler, employed by the de
fendant dry dock and repair company, on completing the particu
lar operation in which he had been engaged, that of fastening plates
to the outside of a vessel in a “ graven dock,” (i. e., one permanently
attached to the land), started to go “ wholly or in part up the side
of the dock for the purpose of getting bolts and a drink of water
preparatory, it is assumed, to continuing his repair work.” When he
was a few feet away from the place where he.had been working a
plate from the side of the vessel dropped upon him and caused his
death.
The action was brought by the administrator, and from a judg
ment of nonsuit on the ground that it was not a maritime tort,
which was affirmed by the appellate division, plaintiff, by per
mission, appealed. In determining whether the accident “ consti
tuted or was the result of a maritime tort,” the court of appeals
D

o ck

DECISIONS OF THE COURTS

observed that it had the views expressed by the Supreme Court of
the United States, and that they lead to the conclusion that this was
a maritime tort, and that therefore “ a State legislature could not
exercise the power of confining relief therefor to the compensation
act.”
The court of appeals further stated that:
It is so well settled that we find on this appeal no dispute of the
proposition that the question whether a tort is maritime or not is set
tled by the test of the locality. (Atlantic Transport Co. v. Inbrovek,
234 IT. S. 52,43 Sup. Ct. 733.) Unquestionably a tort occurring upon
a vessel floating in navigable waters is maritime in its nature, and
it is also practically conceded that by extension of the reasoning ap
plicable to such a situation, an accident occurring upon a vessel
resting in a dock floating in navigable water would be a maritime
tort.
The contention was that a graven dock, such as the one involved
herein, is a part of the land, and that an accident happening to a
person on the vessel, and certainly to one standing on the bottom of
the dock from which all of the water had been drawn, is not a mari
time tort. The decisions of the Supreme Court were considered
to be the other way. The court of appeals said in part:
We think that for the purposes of disposition of such a question
as this, and also somewhat as a matter of policy lest admiralty law
otherwise be robbed of too much of its jurisdiction, it is settled that
a vessel floated into a dock of this kind is still in navigable waters,
even though the water has been temporarily withdrawn. [Citing
cases.]
Butler, having finished the particular operation upon the side
of the vessel, had gone a few steps in the direction “ of getting a
drink of water and seeing about some bolts.” The court had no
doubt that an accident happening to a workman “ standing on a
staging on the outside of a vessel or on a dock at its keel and work
ing on the vessel is just as much a maritime tort as though the man
was standing on the deck of the vessel.” The maritime nature of
the work was held not changed by his starting for bolts and a
drink of water preparatory to continuing his work, it not appearing
“ that there was intended any permanent discontinuance of his em
ployment.”
The judgments appealed from were reversed and a new trial
granted.
E m p l o y e e s ’ L ia b il it y — A

d m ir a l t y —

o r k m e n ’s

C o m p e n s a t io n —

Bos wall v. Grays
Harbor Stevedore Go., Supreme Court of Washington (January
1925), 231 Pacific Reporter > page 93^.—Oscar Roswall was em
A

c t io n

for

D eath

m plo yee—

S ta te L a w —

EMPLOYERS * LIABILITY

ployed by the defendant stevedoring corporation, engaged in the
business of loading and unloading ocean-going vessels. While so
employed Roswall was assigned to loading and storing lumber on
board a vessel in navigable waters, and in the course of his employ
ment he received injuries from which he died. An action was
brought by Anna Roswall, as administratrix, for damages for the
death of the employee. From a judgment of dismissal the plaintiff
appealed. The supreme court on review observed first that:
It is at once apparent that the injured employee was at the time
he received his injuries engaged in a maritime service, and that the
rights and liabilities of the parties are measured by the maritime
law. It is not, however, the rule that this fact alone will bar an
action in the common-law courts of the State to recover for the
death of the employee. While the general maritime law, like the
common law, gave no right of action for a wrongful death, it is
generally held by the courts that the maritime law in this respect
may be supplemented by State death statutes, and that, where there
is such a statute, although local in its application, a recovery may
be had in an action in personam brought in a common-law court for
a marine tort occurring on navigable waters within the jurisdiction
of the State.
Notwithstanding that the action could be brought in a commonlaw court, the supreme court was of opinion that the action when
so brought was “ not to be measured by common-law standards.”
The Federal statute gives to the suitor “ the remedy of the common
law,” not “ the right of the common law,” and the action wherever
brought “ is one of maritime cognizance, although necessarily to be
supplemented by a State statute.”
The question, then, was narrowed to “ whether the tort causing
the death of the plaintiff’s intestate is within the compass of the
[compensation] act.” The supreme court was of the opinion that
it was not, and quoted from State ex. rel. Jarvis v. Daggett (87
Wash. 253, 151 Pac. 648, L. R. A. 1916A, 446), in which the same
court said:
The maritime law being a part of the law of the United States,
the legislature of a State has no power to modify or abrogate it. It
follows, therefore, that the legislature in passing the compensation
act could not take from a workman any right which he had under
the maritime law of the United States. The petitioner here still
has the right to pursue his remedy in admiralty. * * * The owner
of a steamboat, if he should pay the percentage of his pay roll speci
fied, and his injured seamen should pursue their remedy in ad
miralty, would receive no protection from the act, and yet would
be subject to its burdens.
It was argued by the defendant that the action was founded, not
in the common or maritime law, “ but on statute, and that the legis
lature has the power to abolish a death statute, even though it may

DECISIONS OF THE COURTS

grant no other remedy, and the conclusion is drawn that it has done
so in the workmen’s compensation act.” The supreme court con
sidered the principle of the cases misunderstood:
Our holdings are that maritime employments are without the scope
of the compensation act, and that the remedies the law affords for
injuries occurring in such employments are in no wise affected or
impaired by the act. The act, it will be remembered, abolishes
actions for personal injuries, as well as actions for wrongful death,
and, if the one is not abolished in cases of marine torts, it is difficult
to see why the other is so. This being the rule, it would seem to
follow as of course that the remedy the law affords for a death
caused by a maritime tort remains unimpaired, even though that
remedy may be in part statutory.
The compensation act does not abolish the remedy of the death
statute entirely. It abolishes the remedy only in those causes fall
ing within the scope of the act.
The conclusion of the court was that the trial court erred in sus
taining the demurrer to the complaint, and the judgment was there
fore reversed, with instructions to give the defendant leave to answer
the complaint.
Employers’ Liability — Admiralty— W o r k m e n ’ s Compensation—
Payments for Time Lost—Kantleberg v. G. M. Standifer Const. Co.,
United States District Court, Oregon (June 28,1920), 7 Federal Re
porter (2d), page 922.—E. E. Kantleberg, while at work as a caulker
in the hold of a vessel belonging to the G. M. Standifer Construction
Co., was injured, by a scaffold, upon which he was working, falling
upon him. After three or four days in the hospital he was discharged
and returned to work at the same wages he received prior to the acci
dent. A few days after the accident he received notice from the State
industrial commission, saying that his accident had been reported
and requesting him, if he lost time and wages, to fill out an inclosed
blank. He filled out the blank, forwarded it to the commission, and
received a check for $20.77 on November 14, 1919, and $56.25 De
cember 22, which checks he cashed. On February 3, 1920, another
check for $68.89 was sent to him, which he returned saying that if
it was for lost time and wages he would accept it, but if intended for
compensation for his injuries he declined to do so, because he was
more severely injured than he had at first thought, and had learned
he was entitled to maintain a proceeding in admiralty to recover
damages. The check was returned to him by the commission in a
letter saying that it and previous payments “ were for temporary
time lost and not part of any award for permanent partial dis
ability.” Kantleberg then accepted and cashed the check.

Libel was later brought by Kantleberg against the Standifer Con
struction Co.j and from a decree for the libelant the company
appealed.

EMPLOYERS9 LIABILITY

The company denied the negligence charged in the libel, and
pleaded that the acceptance by the employee of the payment from
the accident commission was a bar, notwithstanding the recent de
cisions of the Supreme Court that the act of Congress saving to
suitors in admiralty “ rights and remedies under the workmen’s
compensation law of any State ” is void, because not within the
power of Congress to enact. (Knickerbocker Ice v. Stewart, 253
U. S. 149, 40 Sup. Ct. 438.) It was further argued that the ac
ceptance by a workman injured on the navigable waters of the State
of an allowance from the State industrial commission “ is an election
of remedies, and a bar to subsequent proceedings in admiralty to
recover damages for the injury.”
The District Court observed that it was difficult to follow the
reasoning which supported the contention that the acceptance of the
benefits of a law which is void and which was not binding upon
either the employer or the employee “ can in any way affect the
rights of the latter to maintain an appropriate proceeding against
the party liable for his injury, to recover indemnity therefor.” Al
decision on this point was, however, held to be unnecessary, for—
It clearly appears that the payments by the accident commission
to the libelant were not intended by it to cover compensation for
his injury, but for the temporary loss of time and wages only, and,
although the libelant knew and the commission did not, at the time
the payments were made and accepted, that during the majority of
the time covered thereby he was in fact at work, receiving the same
wages as before the accident, the acceptance of such payments does
not, in my judgment, amount to an election of remedies, and is not
a bar to this action.
It was claimed that Kantleberg had some tubercular trouble which
was either caused or aggravated by the accident, but the evidence
was, in the opinion of the court, too speculative and uncertain to
form a reliable basis for estimated damages.
Considering the nature and character of the injury, the pain and
suffering on account thereof, the effect the injury had upon his
earning capacity, and all the circumstances surrounding the case,
the court was of the opinion that $1,500 was a fair allowance of
damages, and a decree was prepared accordingly.

E m p lo y e r s ’ L i a b il it y — F ac t o r y R e g u l a tio n s — U

ngu ard ed

—Mabe v. G ille Mfg. CoKansas Gity Court of Appeals,
Missouri (February 9, 1925), 271 Southwestern Reporter, page
1023.—Susie May Mabe, a minor aged 18 years, employed by the
Gille Manufacturing Co., was engaged to work in packing cans.
On February 13, 1922, she was taken off the work in which she had
been engaged and placed in the operation of a punch press, and the
c h in e r y

DECISIONS OF THE COURTS

same afternoon, in some way unknown to the plaintiff herself, her
right hand came in contact with the plunger, and the second, third,
and fourth fingers of her hand were so mangled that amputation
was necessary. Action was brought by her next friend in her be
half against the employer for damages, and from a judgment for
the plaintiff the company appealed.
The petition alleged that the plaintiff was an inexperienced em
ployee, that the defendant knew it, and that it was defendant’s
duty to have warned her of the dangers connected with the ma
chine. The plaintiff’s case was based upon the theory that the
machine was not guarded and that no warning was conspicuously
posted as required by section 6786, Revised Statutes of 1919. The
defendant contended that the statute did not require the guarding
of every machine, and that only “ machines in manufacturing
* * * establishments, when so placed as to be dangerous to per
sons employed therein or thereabout while engaged in their duties,
shall be safely and securely guarded when possible.” It appeared
from the evidence that the machine could have been guarded, and
the court held that the machine was such as to require guarding
within the meaning of the statute.
The defendant insisted that the press could be operated without
placing the fingers under the die. However, the court was of the
conviction that the statute “ was enacted to protect those who, in
the performance, of their duties, were not required to place their
fingers within the danger zone, but also those who might become
momentarily engrossed in their work, or from lapse of memory,
or inattention, place themselves in position to be injured.”
It was further contended by the defendant that in performing
her work “ the risk of injury was open and obvious and known ”
to the plaintiff and that she therefore assumed the risk. To this
the court quoted from the case of Johnson v. Brick & Coal Co.
(276 Mo. loc. cit. 53, 205 S. W. 617) in which the court said:
Such risks are purely incidental to the employment, and is such
an injury as is liable to occur at any time during the performance
of the work undertaken, unaided by any degree by the negligence
of the employer.
The court held that the servant does not assume the risk arising
from the negligence of the master; nor does the doctrine of assump
tion of risk apply where the action is based on the violation of the
statute.
Defendant’s last contention was that the verdict in the sum $7,500
was excessive, and it was admitted that the appellate courts are
authorized to order reductions in the amount of unliquidated dam
ages. However, the court was of the opinion that the finding of the
jury and the discretion of the trial judge, “ while not binding on

EMPLOYERS * LIABILITY

this court, must have great weight with us.” It was conceded that
the loss of the fingers of the right hand was serious and constituted
a permanent impairment to plaintiff’s activities in the functioning
of the hand. Being of the opinion that the verdict was not exces
sive, the judgment was accordingly affirmed.

E mployers’ L iability — I njury to T hird P arty— D u ty o f C ar
P assenger— A c t s o f S trikers— Yellow Cab Co. of Atlanta v.

rier to

Carmichael, Court of Appeals of Georgia (Jcmuary 15, 1925), 126
Southeastern Reporter, page 269.— S. D. Carmichael arrived in At
lanta, Ga., for the purpose of accepting work from the Seaboard Air
Line R. Co. as a machinist. Three other men were with him, and they
were met at the station by one Rogers, who was to take them to the
machine shops. Rogers had made arrangements with a cab driver of
the Yellow Cab Co. to take them to the shops, a distance of 6 miles, and
had explained to him that there was a strike in progress at the shops
and that he wanted the cab to stop at a certain entrance, because at
that entrance there were no strikers on account of armed guards and
an injunction from a Federal court. The driver agreed to take them
to the entrance designated, but when the point was reached he
refused to turn in even upon request to do so. Driving on, the
cab came to the main entrance, and the driver was told to stop
there, but he would not do so and drove on about 250 yards beyond
the main entrance, where he slowed down and four or five strikers
or their sympathizers boarded the cab. The men were ordered out
of the cab and their lives threatened. The plaintiff stated that ho
was then forced to enter a waiting automobile, driven up the road
about 2 miles and ordered out of the car. He testified that when
he stepped to the ground “ one of the mob struck him a severe blow
over the face with a stick that broke the bridge of his nose and
knocked him to the ground in an unconscious condition ” ; that when
he came to he discovered “ he had a broken leg and could not walk.”

From a decision and judgment for the plaintiff the defendant
brought error.
The defendant contended that the alleged act of the driver was
not the proximate cause of the injury, but that the third parties
were responsible. It was further contended that the consequences
were not the natural result of the act of the driver, and that the
injury was caused by intervening criminal acts of third persons,
which “ defendant had no reason to apprehend.”
The court of appeals, after reviewing the record, said in part:
A common carrier of passengers for hire is bound to use extraor
dinary care and diligence to protect its passengers in transit from
violence or injury by third persons; and whenever a carrier, through

DECISIONS OF THE COURTS

its agents and servants, knows, or has opportunity to know, of a
threatened injury to a passenger from third persons, whether such
persons are passengers or not, or when the circumstances are such that
injury to a passenger from such a source might reasonably be antici
pated, and proper precautions are not taken to prevent the injury, the
carrier is liable for damages resulting therefrom.
The court even went further, and held that “ a carrier is liable in
damages for injuries to a passenger caused by the willful and
wanton acts of its employees, even though the purpose of the em
ployees was not to serve their employer by such acts.”
The fact that the strikers carried the plaintiff up the road 2
miles before inflicting the injuries complained of w^as considered by
the court of appeals as having no effect on the ruling of the lower
court in denying a demurrer. The defendant here had reason to
apprehend that “ its original wrongful act would probably result in
its passenger being criminally assaulted by the third person.”
The judgment was accordingly affirmed.

E mployers’ L iability — I njury to T hird P arty— N egligence—
S tatus of C oal-M ine I nspector— L icensed M ine E ngineers— Fol
som Morris Coal Mining Co. v. Scott, Supreme Court of Oklahoina
(June Sj 1924) >
Pacific Reporter, page 512.— Tom Scott was
elected, qualified, and acting district mine inspector for Oklahoma,
his district including the defendant Folsom Morris Coal Mining
Co.’s mine. On June 17, 1920, he was in the company’s mine for
the purpose of inspection, as required by law, when he was killed
while riding a trip of empty cars being hoisted out of the slope
to the shaft. Katie Scott, his widow, brought an action against the
coal company, alleging that the company did not employ “ competent
and qualified engineers to operate the engine pulling cars out of
mine,” and did not provide safe equipment. She further alleged that
Scott was 59 years of age, “ had an expectancy of life of 17^r years,
and was earning $150, clear of expenses.” From a verdict and judg
ment in the sum of $10,000 the defendant appealed, contending that
all the machinery and appliances in the mines “ were subject to his
(Scott’s) control and direction,” and if he was injured “ it was due
to his own carelessness in failing to exercise proper care for his
own safety.”

In the opinion of the supreme court, Scott was a licensee and the
company owed him no duty as to the condition of the premises,
“ save not knowingly to let him run upon a hidden peril, or wantonly
or willfully harm him, unless there is a requirement of statute plac
ing this burden upon it.” The case of Parker v. Barnard (135 Mass.
116, 46 Am. Rep. 450) was discussed as illustrating the principle

e m p l o y e r s ’ l ia b il it y

involved. In this Massachusetts case “ a policeman entered an open
doorway in the nighttime and fell down an open elevator shaft.
The court held that he was a licensee, but held that he could recover
because of the failure of the owner to comply with a statute requiring
such openings to be guarded.” The supreme court then said:
So in this case we hold that Scott was a mere licensee, and the
defendant only owed him the duty of not willfully injuring him or
permitting him to be injured, unless we have a statute imposing
some additional duty on the plaintiff, because of the relationship the
law creates between them.
. Under the provisions of sections 7554 and 7557, Compiled Statutes
of 1921, it is the duty of the owner of a mine “ to furnish to such
inspector the means necessary for entry and inspection.” This was
said to “ contemplate reasonably safe means for entering and inspect
ing such mine.”
The company further contended that the trial court should have
held as a matter of law “ that the failure of the deceased to go up
the manway rather than by the trip, the one being safe and the other
dangerous, constituted contributory negligence,” but the supreme
court considered it a question of fact for the jury rather than a
question of law for the court.
The plaintiff alleged that the defendant was negligent in employ
ing and retaining in its employment “ an incompetent engineer,”
and that the defendant knew he was incompetent prior to the ac
cident. Section 7548, Compiled Statutes of 1921, provided that:
A certificate of competency shall entitle the holder thereof to
accept and discharge the duties for which he is thereby declared
qualified at any mine where his services may be desired.
The supreme court decided in view of this statute that:
It is undisputed that this engineer was the holder of a certificate
of competency from the State mining board. * * * It is a
violation of law, punishable by fine and imprisonment, for any per
son to act as mine manager, superintendent, pit boss, hoisting en
gineer, or fire boss without first having obtained a certificate of
competency from this board. * * * When an employer has se
lected such a person he is protected by the law from any allegations
of general incompetency not connected with the particular act com
plained of.
The trial court, “ in the face of conflicting testimony, two or three
times referred to the trip as a man trip, and not a coal trip.” The
supreme court on review considered this a “ very material point in
the case, and the trial judge should not have given this weight
of his personal opinion to the jury.” N Because of this error, and
certain inharmonius instructions, the cause was remanded to the
lower court for a new trial.

50
E m ployers’

DECISIONS OE THE COURTS
L ia b il it y — I n j u r y

T h ir d

P arty— “ V

olun

”— S tranger A ssist in g S e r v a n t i n E m e r g e n c y —Baringer v.
Zachery, Court of Appeals of Kentucky (December 19, 1924) <
>$67
Southwestern Reporter, page 182.—William N. Zachery was a la
borer gathering iron and other junk from a dump in the city of
Louisville, and the defendant Baringer was in the business of haul
ing waste to the dump. One of the defendant’s teams, in charge of
a colored servant named Owens, brought a load to the dump and
became stalled. Being unable to get out of the difficulty, Owens
called Zachery to “ give him a lift at the wheel.” Zachery took
hold of a wheel, and while trying to get the wagon out Owens pulled
the team around so that one of the animals stepped on Zachery7s
ankle, causing a very painful and severe injury. A suit was brought
to recover damages for the injury, and from a judgment for the
plaintiff the defendant appealed on the ground that Zachery was not
employed by him but that he was a mere volunteer. It was further
insisted that there was no emergency requiring Zachery’s assistance.
The court of appeals first said:
It is well settled that a stranger who is injured while rendering
assistance to a servant of the master in an emergency is not upon the
plane of a mere volunteer or intermeddler, and therefore barred of
recovery, but is an emergency assistant whom the servant had a
right to engage, and when his assistance is enlisted in an emergency,
is owed the same duty by the master and entitled to the same protec
tion from the master as any other servant engaged in like employ
ment, but is not a fellow servant with those regularly engaged.

teer

The court of appeals referred to its decision in the case of Central
Kentucky Traction Co. v. Miller (147 Ky. 110, 143 S. W. 750, 40
L. R. A. (N. S.) 1184), wherein it was held that the rule that a
person not authorized to perform the work can not recover damages
from the employer had an exception “ where the injured person is
an emergency assistant, acting at the request of an employee who
has, under such circumstances, authority to request his assistance,
although ordinarily he is not invested with such power.”
The trial court instructed the jury in substance by instruction No.
2 that it should find for Zachery “ if it believed from the evidence
that he undertook to aid in'moving the wagon without any request
from the driver; or if the driver knew that appellee, Zachery, was
undertaking to aid in moving the wagon by lifting the wheel, and
knew that appellee was in a place of danger from the team, and while
that condition existed, if it did exist, the driver pulled the team
around so that one of the mules stepped on and injured appellee,”
The court was of opinion that the instruction ignored the emergency
principle upon which “ all the cases of this character are rested,”
and made Zachery a servant of the defendant without knowledge or

e m p l o y e e s ’ l ia b il it y

consent on the defendant’s part, “ a rule never recognized in this
jurisdiction.”
Whether the emergency existed was considered a question of fact
for the jury to decide. The judgment was reversed, with directions
to the lower court upon another trial to omit instruction No. %

E m p lo y e r s ’

L i a b i l i t y — I n s u r a n c e — R e p r e s e n ta tio n — C o n f l i c t

Fidelity <& Casualty
Go. of New York v. Stewart Dry Goods Co., Court of Appeals of
Kentucky {March 3,1925), 271 Southwestern Reporter, page bJ+k.—
John K. Miller, a minor, employed by the Stewart Dry Goods Co.
as a messenger, sustained injuries on an elevator o f the company and
in a suit against the company, received judgment.
The Fidelity & Casualty Co. of New York issued elevator liability
policies, and had issued such a policy to the dry goods company, by
which it agreed to indemnify it against loss or damages not exceeding
$5,000 on account of bodily injury or death occurring while the
policy was in force to any person or persons while in the car of its
elevator, and further to defend any suit brought against the insured.
A provision in the policy provided that it would not cover loss
from liability for or any suit based on injuries or death “ suffered
or caused by any child employed by the insured contrary to law or
any minor while performing any work contrary to law.” Kentucky
has a law limiting the employment of minors, which Miller claimed
had been violated by his employer.
At the time of Miller’s suit the insurance carrier* hearing that
Miller was a minor, informed the company that in that event it
would not be liable for any judgment*that might be rendered in
favor of Miller, but that it would defend the suit. The dry goods
company did not agree with the insurer, contending that the insurer
was responsible regardless of its disclaimer. Miller’s attorneys
offered to compromise the suit for $6,50Q, and the company agreed
to pay $1,500 if the insurer would pay $5,000, its maximum liability.
The insurer declined. Judgment was rendered in favor of Miller
in the sum of $10,000 against the employer company, which com
pany brought suit against the insurer for that sum, and from a judg
ment for the employer the insurance company appealed.
The court of appeals observed, on reviewing the record, that where
the policy indemnified the employer except as to where an employee
was engaged contrary to law, each party was entitled to protect its
own interests in the case, and where the insurer is liable on one
ground of recovery and the insured is liable on another, neither can
exclude the other from participating in the defense.
o f I n t e r e s t s — M in o r U n l a w f u l l y E m p lo y ed —

DECISIONS OF THE COURTS

As to the proposed compromise, the court observed that the com
pany had a right to go on and make the settlement at $6,500 and then
sue the insurer, but it “ could not fail to make the settlement and
then hold the insurer liable because it refused to pay its total liability
under the policy, when, if Miller was employed contrary to the stat
ute, it was not liable at all.” The judgment in the action for dam
ages had determined that the company was liable to Miller, but did
not determine on what ground it was liable. The record did not
show on what ground the verdict of the jury was based, and the court
was of the opinion that “ there can be no inquiry now into this ques
tion. The insurer was liable on the policy unless Miller was em
ployed contrary to the statute.” The burden of proof was held to
be upon the insurance carrier to show that Miller was employed is
violation of law and to establish the same facts as were necessary in
the action for damages to make out a right in him to recover on this
ground.
The judgment was therefore reversed and the cause remanded for
a new trial.
E mployers’ L iability — M edical S ervices— C ontract S urgeon—
M alpractice— D amages— Borgeas v. Oregon Short Line R. Go. et

al., Supreme Court of Montana (May 18, 1925), 236 Pacific Re
porter, page 1069.— Carl Borgeas, a section hand employed by the
Oregon Short Line Railroad Co. at Apex, Mont., received an injury
in the course of his employment in December, 1922. In January,
1923, he quit work because of the injury, the femur bone of his right
leg being broken. Borgeas reported the condition and was sent
“ over his protest ” to the Murray Hospital at Butte, without sup
plying him with the means to pay, and it was alleged that within 10
days he was compelled to leave for want of means. It also appears
that the local physician of the company declined to visit him.

Borgeas brought an action for $30,000 on the ground that he was
left with a shortened and diseased limb, and for $5,000 for pain and
suffering, $2,000 for medical treatment, and $98 for a hospital bill,
none of these sums having been paid. From a verdict and judgment
in the sum of $35,000 the defendants appealed.
The local doctor, Dr. Stephan, was made a codefendant in the
action. The supreme court held that the relation of master and
servant, or principal and agent, “ does not exist between a railroad
company as employer and a surgeon employed to treat an injured
employee, the reason being that the employer has no right to con
trol the surgeon in the treatment of the case.”
The complaint was held sufficiently clear and intelligible that if
the defendant company, by reason of lack of reasonable care, pro

e m p l o y e r s ’ l ia b il it y

vides an injured employee with unskillful or careless medical at
tention, “ it would be liable for the carelessness or malpractice of the
surgeon, and the allegation of damage therefrom may properly ap
pear in the complaint.”
The complaint stated in general and concise language the facts
constituting the contract imposing upon the defendant company a
duty, which was held by the court to state a cause of action.
As the law imposes upon an injured person the duty of doing all
in his power to prevent the accumulation of damages, “ if an excuse
existed for plaintiff’s failure he was entitled to allege these matters,”
and if his condition was the direct result of defendant company’s
breach, the breach was the proximate cause and the plaintiff was
held entitled to allege that condition.
For the purpose of caring for sick and injured employees the
company had secured the services of a hospital at Pocatello, Idaho,
and to meet expenses thereof deducted 75 cents per month from the
wages of its employees. In doing so it was not promoting its own
interests by making a profit out of such employment, and it was held
that “ such employer is not liable to an injured employee for the
carelessness or malpractice of such physicians or surgeons in charge
of the case, provided it has used reasonable care in its selection of
such physicians or surgeons, since it will be regarded as merely
administering a charity or trust fund.”
The measure of damages for the failure to provide medical atten
tion and hospital accommodations was stated by the supreme court
as being “ the reasonable sum expended in securing the same else
where.” It was further stated in this connection that “ it is the duty
of one injured while in the employ of such an employer, if refused
surgical attention and hospital accommodations, to secure the same
elsewhere and to hold his employer for the cost thereof.” In addi
tion to the reasonable cost of obtaining services elsewhere, it was
stated an injured employee may recover “ for additional pain and
suffering caused by reason of the refusal of his employer to perform
its duty.”
The burden, however, was upon the employee of showing that the
cause of his condition was the failure of the employer to furnish
medical attention.
The employer was held not to have breached the contract to furnish
the injured employee medical aid, the testimony being “ that the
physician had authority to send the plaintiff to the Murray Hospital,
and that the bill was paid on its first presentation to the company.”
Being of the opinion that the plaintiff had failed to establish a
breach of contract alleged by the evidence, the judgment was reversed
and the cause remanded, with direction to dismiss the action.
93383°—26----- 5

DECISIONS OF THE COURTS

Employers’ L ia b ility — M edical Treatm ent— Negligence— K o v i -

acs v. Edison Portland Cement Co., Supreme Cowrt of New Jersey
(April 10, 1925), 1%8 Atlantic Reporter, page 51$.—Joseph Koviacs
was employed by the Edison Portland Cement Co. as a helper in a
quarry. The pumps in the quarry did not function, as a result of
which the shaft where the plaintiff was directed to work became
filled with water to a depth of one or two feet. The plaintiff con
tended that the water was of a character dangerous to health, and
that as a result of working in it he became ill, and one of his legs
became diseased so that an amputation was necessary.
In an action for damages, besides the allegation as to negligence
in providing a reasonably safe place in which to work, the com
plaint also alleged that, although the defendant knew the condition
of the plaintiff, he “ negligently failed to provide the plaintiff with
any medical assistance or other means of being cured.”
The supreme court was of the opinion that this last contention as to
the defendant’s providing medical assistance should have been
stricken out of the complaint, and further stated:
In a common-law action for negligence such as this, although an
employer must answer to an employee in damages for all loss proximately resulting, including physicians’ and surgeons’ charges, yet,
in the absence of contract, there is no duty on the part of an em
ployer to provide medical assistance or other means of being cured
to an ill and diseased employee, eyen though the illness or disease
arose from the negligence of the employer. (18 R. C. L. 506; 26
Cyc. p. 1049, and cases there collected.)
The action of the trial court in granting the motion of the de
fendant to strike out the allegations as to the failure to provide medi
cal assistance was accordingly affirmed.

E mployers’ L iability — M inor U nlawfully E mployed— C on
N egligence— W orkmen ’ s C ompensation— Gwitt v. Foss,

tributory

Supreme Court of Michigan (April 3, 19°25), W3 Northwestern Re
porter, page 151.—Ignatius Gwitt was a minor employed in the fac
tory of the defendant in violation of the law as to age. While so
employed he was injured by coming into contact with a saw while
cutting up sticks to take home to kindle fires. There was a suit for
damages, and on a judgment of $6,166 in his favor the employer
brought error.
The court held that the workmen’s compensation law of the State
applied only where the relation of employer and employee exists,
and “ there is no such relationship where a minor is employed in
violation of a statute.” However, the defense of contributory neg
ligence had not been abolished (Beghold v. Auto Body Co., 149
Mich. 14, 112 N. W. 691), even “ where the negligence of defendant

EMPLOYERS* LIABILITY

is negligence in law, arising from violation of a statute.” But the
defendant’s motion for a directed verdict on the ground that Gwitt’s
contributory negligence was the proximate cause of the injury was
overruled. “ On such a motion, the testimony must be considered in
the light most favorable to plaintiff.” An adult would have been
chargeable with a degree of care above that required of young boys,
whose protection from such hazards was the purpose of the statute.
66On the proof submitted, we think the court was right in submitting
this question to the jury.”
There was a question as to the computation of damages, and the
court found that an erroneous instruction had been given, but curable
by a remittitur. It was therefore ordered that all in excess of $5,500
be remitted, or a new trial would be granted, but if such remittitur
was made within 20 days the judgment would be affirmed.
The same court reversed a judgment based on a directed verdict, holding the
minor guilty of negligence as a matter of law, where the employment was after
the legal hours, and at work forbidden to a minor, who had been insufficiently
instructed as to the dangers of his work, the machine being also unguarded.
(Brancheau v. Monroe Binder Board Co. (1925), 203 N. W . 149.) The question
of contributory negligence was held to be for the jury.5

E mployers’ L iability — M inor U nlawfully E mployed— C rim
O ffense—E vidence—Rost v. F. H. Noble db Go., Supreme

in a l

Court o f Illinois {February 17, 1925), llfl Northeastern Reporter,
page 258.—Joseph Zembrzuski, between 15 and 10 years of age, was
employed by the defendant company in operating a drill machine
and in carrying, transferring, loading, and unloading boxes filled
with material of great weight and hoisting same by the elevator. On
March 20, 1920, while carrying to and loading boxes upon the ele
vator, Zembrzuski was internally injured and ruptured, resulting in
strangulated hernia, from which he died on March 23, 1920.
Andrew Eost, as administrator, recovered a judgment for $3,000
against the employer for damages for Zembrzuski’s death, and a
writ of certiorari was secured to review the record.
The evidence was held by the supreme court sufficient to sustain
the verdict that the hernia resulted from the employment, but an
instruction to the jury was held erroneous, “ for it directs a verdict
for the plaintiff if the jury believe from the evidence that the de
ceased was under the age of 16 years, that he was injured and was at
the time working for the defendant, without requiring any finding
that the injury was the result of the employment.” By another in
struction the trial court told the jury that plaintiff was not required to
establish his case beyond a reasonable doubt, but only by a prepon
derance of the evidence, and this the supreme court held erroneous,
as the child labor act (Laws 1917, p. 511) made the employment of a

d e c is io n s

of t h e

courts

minor under 16 years of age a crime, and the case must be established
beyond a reasonable doubt.
The defendant contended that the contributory negligence of the
parents of the deceased would bar the action, and that plaintiff must
prove by a preponderance of the evidence that the employment and
the injury were not due to the negligence or want of care of the par
ents. To this contention the court said that “ the common law has
always given the right to maintain an action for a personal injury
caused by the negligent act of another. The negligence of the plain
tiff which contributed to the injury was a defense to such action.”
The doctrine of contributory negligence was held by the supreme
court as not applicable to injuries willfully inflicted, to crimes, or
to an action for death of a minor unlawfully employed, as the action
in the latter case is based on the employer’s criminal misdemeanor,
and neither the doctrine of contributory negligence of deceased or of
beneficiaries, nor of assumption of risk, applies.
The next of kin of the deceased were his parents and a younger
brother, and the trial court refused to instruct the jury that they
could allow nothing* in their verdict to the latter except nominal
damages. The supreme court held this to be error, saying that :
There being no proof of such damages in this case as to the brother,
the defendant was entitled to have the jury told that they could not
assess anything more than nominal damages on account ox the loss to
the brother.
For these errors judgments of the appellate court and the circuit
court were reversed.
Where injury occurred in an employment in which the child might lawfully
be engaged, the failure to procure a certificate of age was held not to be
evidence of negligence as a matter of law so as to determine the guilt of the
employer; but “ the failure to obtain the employment certificate as required
by law was evidence of negligence to be considered by the jury along with the
other testimony in the case to determine whether or not the defendant was
guilty of negligence.’’ (Cox Cash Stores (Inc.) v. Allen (Ark., 1925), 268
S. W. 361.)
Where the employer is unaware of the employment of a minor in violation
of the law, the engagement being by an unauthorized employee, and the em
ployer being diligent to enforce his rule against such employment, he is not
liable for injury, since he can not be said to have 44permitted or suffered ” the
employment in the absence of any knowledge thereof. (Clover Creamery Co. v,
Kanode (Ya„ 1925), 129 S. E. 222.)

E mployers’ L iability — M inor U nlawfully E mployed— N egli
gence—Johnson

v. Endura Manufacturing Go., Supreme Court of
Pennsylvania (January 26,1925), 127 Atlantic Reporter, page 635.—
Frank A. Johnson, a minor over 16 but under 18 years of age, was
employed by the defendant company to operate a press used for mak

EMPLOYERS9 LIABILITY

ing gaskets. In the performance of his work Johnson permitted his
hand to follow the material too far and suffered injuries necessitat
ing the removal of his hand at the wrist. His duties included the
oiling and cleaning of the machine, though the accident did not
occur while so engaged. The jury was permitted to infer from his
statement “ that he was employed to perform such service when the
press was moving,” and following a finding to that effect the trial
court entered judgments for the boy and for his father on the
ground that there “ had been a violation of the child labor act, and
the defendant was therefore responsible,” irrespective of the “ actual
cause of the accident.” The defendant appealed.
The court in reviewing the record was of the opinion that the con
tention that plaintiff was employed to oil the machinery while in
motion was not upheld by the evidence, and further, assuming that
the question was for the jury and its finding be considered conclu
sive, “ we are of the opinion, nevertheless, that no recovery can be
had.”
The act of 1915 (P. L. 286; Pa. Stat. 1920, sec. 13285 et seq.) pro
vides in part :
No minor under 18 years of age shall be employed or permitted to
work in the operation or management of hoisting machines, in oiling
or cleaning machinery in motion.
As the supreme court views the legislation, its purpose was “ to
make unlawful the hiring of one within the prohibited age ” where
the main purpose “ was to perform some extrahazardous work.”
The court, speaking through Mr. Justice Sadler, said:
When the engagement is lawful, and the presence of the minor on
the premises therefore proper, then the execution by him of some
other incidental service, which comes within the prohibited class,
does not tinge the whole employment with illegality.
Ordinarily, however, where the hiring is not prohibited, or the
harm does not follow in the course of the permissive doing of the
unlawful class of work—the employment being proper—lack of due
care on the part of the master must be shown before recovery can be
had.
The violation of a penal statute may constitute negligence per se,
but no right of action arises therefrom, unless such wrongdoing is
the proximate cause of the injury.
The employment of Johnson was permissible. He was not em
ployed generally to oil machinery in motion, such as designated or
contemplated by the statute. Had he been, or “ though lawfully
hired for another purpose, he was injured as a result of so acting,
with the consent of the master, his injury would be compensable.”
The court found neither of these conditions in the case, and held that
under the circumstances there could be no recovery “ in the absence

DECISIONS OP THE COURTS

of proof that the injury was caused by some act of negligence on the
part of defendant, and none was proven.”
The judgments were reversed and entered for the defendant.
It may be presumed that suit was brought in the above case on the theory
that a larger recovery would be obtained than under the compensation law,
where no question of negligence would be raised. In similar circumstances, the
Supreme Court of Indiana held an employer liable for the loss of a hand of a
minor of employable age, but working without the affidavit as to age required
by the law of the State, over against the employer’s contention that the com
pensation law was applicable. “ The employment not being lawful, plaintiff’s
right of action was not barred by the compensation act, and the court had
jurisdiction of this suit.” (Midwest Box Co. v. Hazzard (1925), 146 N. E. 420.)
Even though the parent’s affidavit “ could not affect the competency of the child
to perform the work of an employment,” the statute would not be annulled
by the courts by their construction of it, and “ violation of the statute con
stitutes negligence per se.” A larger recovery than under the compensation
law was supported, since “ a child not lawfully employed can only recover
damages by showing that the defendant was at fault,” while compensation
is paid **whether the particular injury was due to negligence or fault of the
employer or not.”

E mployers’ L iability — M inor U nlawfully E mployed— R eceipt
C ompensation P ayments — Tflock v. Fort Dummer Mills,

Supreme Court of Vermont (May 6, 1925), 129 Atlantic Reporter,
page 811.—Cecelia Wlock, a minor between 14 and 16 years of age,
was employed by the Fort Dummer Mills and engaged in operating
a certain machine, known as a “ ribbon lap ” machine. On January
23, 1923, while in the course of her employment on the machine,
Cecelia Wlock slipped on some grease or other substance on the floor,
and in the resulting fall her left hand was thrown upon some open
revolving rolls, inflicting serious and painful injury. An action
was instituted for damages, and from a judgment for the plaintiff
the defendant excepted.
It appeared that before the bringing of the suit for damages the
plaintiff and the defendant entered into an agreement under the
compensation act, and that she received the amount of $87.61, which
sum she Sid not return. It was contended by the defendant that the
agreement in payment under the compensation act constituted a bar
to this action for damages. The defendant also contended that
plaintiff had falsely represented her age as being more than 16 years,
and that she assumed the risk of her employment.
The child labor law (Gen. Laws, 5832-5845), prohibiting and
limiting employment of minors, was held to be a police regulation
for the health, safety, and education of children. It was also con
sidered as a duty owed to the State as well as to the children, and
that the child labor law and workmen’s compensation act should be
construed together in such a situation as the one here existing.

e m p l o y e r s ’ l ia b il it y

It was pointed out by the supreme court that the workmen’s com
pensation act (Gen. Laws, 5758, 5759, recognizing the employment
of minors, was applicable to minors only where lawfully employed,
and not to minors employed in violation of the provisions of the
labor law. The fact that the plaintiff and her parents falsely repre
sented her age as being over 16 was considered as not furnishing the
employer with an excuse to exempt himself from liability under the
child labor law requiring a certificate permitting such employment.
In line with the position of the court on the previous questions, it
was further held that the plaintiff not having deposited a certificate
as required by the statute, and her employment therefore being pro
hibited, she was not an employee within the compensation act.
Mr. Chief Justice Watson, in speaking for the supreme court, said:
Since the plaintiff was not an employee within the true intent and
meaning of the workmen’s compensation act, she was not subject to
the provisions thereof, nor was the remedy there provided applicable
in seeking damages for the injuries suffered. A new remedy given
by statute in a particular case can not be extended to alter the
common law in any other case.
It follows that the plaintiff’s agreement of settlement under the
workmen’s compensation act, and the acceptance of payment pur
suant thereto, constitute no bar to this action.
The child labor law is absolute * * * in prohibiting the em
ployment of a child under the age of 16 years, at work connected
with railroading or manufacturing, who does not deposit with the
employer a certificate that he is eligible to such employment.
Injury to minors in unlawful employment was held actionable, and
the defenses of contributory negligence and assumption of risk were
held not to apply.
The argument that plaintiff had sustained a 15 per cent injury
to her left hand, a loss of 15 per cent of her earning power, was held
not improper under the evidence, which showed that she was earn
ing and receiving $17.82 a week at the time of the accident and at
the time of the trial of the case she was working at $11.25 a week.
The judgment was therefore affirmed.

E mployers’ L iability — M inor U nlaw fully E mployed— S afe
P lace and A ppliances— Contributory N egligence— Buffam v.

F. K. Woolworth Go., Kansas City Court of Appeals, Missouri (June
15, 1925), 273 Southwestern Reporter, page 176.—Naomi Buffam was
employed by the F. W. Woolworth Co., Kansas City, Mo., branch.
About 8 p. m., Saturday, September 22, 1919, plaintiff was ordered
by her forelady to go to the stock room and get some hosiery, and
while complying with this order plaintiff was injured by falling
from a shelf upon which she had climbed to obtain the merchandise.

DECISIONS OP THE COURTS

An action was brought for damages for the injuries received, and
from a verdict and judgment for the plaintiff in the sum of $1,000
the defendant appealed.
It appeared that there was no one in the stock room at the time, and
that it was the custom of the employees to climb the shelves in the
stock room to secure merchandise on the higher shelves. It further
appeared that there was one old stepladder, the first round of which
was gone, and that the ladder was unstable and not solid, one side of it
having no brace whatever. Plaintiff testified that she had seen this
ladder a few times while in the stock room, and that she had never
seen any other. The petition alleged that the defendant was guilty
of negligence in that the company had violated the State laws pro
hibiting the employment of minors, the plaintiff being under the age
of 15 at the time; that the stock room was insufficiently lighted; that
the forelady negligently ordered plaintiff to get the merchandise and
failed to warn her of the dangers or to furnish a reasonably safe
appliance; that the defendant acquiesced in the custom of the em
ployees climbing upon the shelves; and that the defendant permitted
this custom, which was not a reasonably safe method of doing work.
The Revised Statutes of 1919, sections 1106-1124, prohibit the em
ployment of children between the ages of 14 and 16 years in certain
cases, and require employment certificates of children between the
ages of 14 and 16 years. It was contended that the statute was enact
ed for the purpose of procuring the education of children, but the
court was of the opinion that this was not the sole purpose.
The examination of a child seeking a certificate is not only for the
purpose of learning the extent of the education of the child, but
whether or not the child has the usual normal development for its
age, and is of sufficiently sound health and physically able to perform
the work i%intends to do.
It was said that the absence of a certificate of employment “ is
not the proximate cause of the injury.” The issuance of the cer
tificate “ is the sole evidence of the child’s qualification to do the
work.” Any other construction of the statute, in the opinion of the
court, “ would practically nullify the provisions requiring a certifi
cate of employment and the wholesome requirements to be met
in obtaining it.”
I f plaintiff did not have an employment certificate at the time
she was injured, it was negligence per se for defendant to employ
her, and a misrepresentation o f her age, if there was any, was no
defense, and neither can there be any defense of contributory negli
gence [citing cases]. The employment of plaintiff, under the cir
cumstances, is to be regarded as the proximate cause of the injury.
(Boesel v. Wells Fargo Co., 260 Mo. 463, 169 S. W. 110.)

EMPLOYERS, LIABILITY

The questions of the employer’s negligence and the contributory
negligence of the child were held to be proper questions for the
jury. The defendant insisted that it was not negligent in requiring
plaintiff to climb upon the shelf, for the reason that it was a simple
act, and “ plaintiff alone could judge whether she could safely do
it.” The court observed that in its opinion it was not a case where
a master “ has put the servant to a simple task, not inherently dan
gerous,” and observed that—
This work could be done but one way, and that by climbing on
shelving with nothing to hold to but the shelves themselves. The
use of the stepladder present was not a safe alternative.
The plaintiff testified that she did not stay on the shelf any longer
than necessary, and that she had seen her forelady and various em
ployees obtain merchandise in a similar manner. The failure to
look for the ladder was considered by the court as not preventing
the plaintiff from recovery, because “ the jury could say that the
manner in which she did the work was just as safe as if she had
used the ladder, it being unstable and having its first round gone.”
There were no stockmen or stock ladies there at the time, and the
court of appeals was of the opinion that the plaintiff could not be
convicted of contributory negligence because she failed to wait for
the stockmen to return; it also appeared that it was not the primary
duty of the stockmen to assist in getting the stock down, except on
request.
An instruction submitting the issue of employer’s negligence in
employing plaintiff without obtaining the employment certificate
required by statute, which was not properly pleaded in the petition,
was held prejudicial error and the judgment was reversed and the
cause remanded on that ground.

E mployers5 L iability — N egligence— A ssumption o f R is k —
B rakeman F alling from C aboose— jFriermood v. Oreg&n- W asking-

ton Railroad & Navigation Go., /Supreme Court of Washington
(April 23, 1925), 235 Pacific Reporter, page 17.—H . E. Friermood,
employed as a freight brakeman by the defendant railroad company,
on April 4, 1923, at about 10 o’clock p. m., while in the line of
his duties, fell from the top of a caboose and sustained an injury
for which he sought to recover damages. It appeared from the
evidence that at the time there were two types of cabooses in use
upon the railroad, one having a wide cupola and one having a nar
row one, the latter having an iron railing around the entire top
while the former had an iron railing only at the ends. The caboose
with the wide cupola had been in use for some time and was approved
by the Interstate Commerce Commission, and it was from this kind

DECISIONS OF THE COURTS

of a caboose that the plaintiff fell. He went upon the top of the
caboose at the rear end on a dark and rainy night, and while
attempting to pass along the side of the top, not knowing that the
railing did not extend clear along the side, he reached the end of
the railing, lost his balance, and fell to the ground. It also appeared
that he had made two trips with the same caboose attached, but
he testified that on these trips he had no occasion to go upon the
top. Plaintiff claimed the company was negligent in not informing
him that the railing did not extend clear around the top of the
caboose. From the judgment o f dismissal the plaintiff appealed.
In considering the question as to whether the company was guilty
of the negligence charged, the supreme court quoted with approval
from Elliott on Eailroads, volume 4 (3d ed.), section 1858:
A person who accepts service as a brakeman on a railroad train
assumes the ordinary risks of the service into which he enters.
And also from section 1832:
The general rule is that if the employer uses ordinary care to pro
vide and to keep in reasonably safe condition appliances of a kind
that are in common use for the purpose, he is not guilty of negli
gence.
Friermood had been working as a brakeman for over 10 years, and
bad been with the defendant company during the 3 years preceding
the injury. He had on two occasions gone out with a train “ with
the same caboose attached as the one from which he fell,” and, as
stated, the type was one in general use and met the requirements of
the interstate commerce rules.
Under the circumstances of this case the supreme court held that
there was no question of negligence to be presented to the jury and
that the trial court properly directed a verdict. In conclusion the
court said:
The rule of that class of cases cited by the appellant which hold
that the employer is negligent when he introduces, without notice to
the employee, some new and unusual device or equipment involving
an unexpected and unanticipated danger and does not inform the
employee, is not here applicable.
The judgment was therefore affirmed.

E m p lo y e r s ’ L i a b i l i t y — N e g lig e n c e — C o n t r ib u t o r y N e g lig e n c e —
D u t y o f E m p lo y e r —D a n g e r o u s C h e m ic a l —Chicago,

R. I. dc P.
R y. Co. v. Cheek, Supreme Court of Oklahoma (December 16, 1924),
231 Pacific Reporter, page 1078.—Joseph Cheek was employed by
the defendant railroad company as a section hand. On or about
July 26, 1922, Cheek, with other men, was required to handle ties
which had been made wet with a strong solution of creosote; they

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

were furnished only one iron hook to work with. As a conse
quence the creosote penetrated the clothing, soaking through to
the skin and causing burns and sores. Cheek suffered injuries upon
the skin, and flesh, and brought an action for damages in the sum
of $2,996.90 to cover medical bills and for the pain and suffering.
A verdict was returned in his favor in the sum of $2,000 and the
defendant appealed, contending that the plaintiff was contributorily
negligent and that he knew of the danger and assumed the risk.
The evidence tended to show that the condition of the plaintiff was
permanent; that the creosote solution was poisonous and calculated
to produce such an effect; that the plaintiff had never before in hot
weather handled ties saturated to the dripping point, and that no
warning was given him. The Supreme Court on reviewing the
record said:
It has been held by this court in many cases that the employer
owes the employee the duty to use ordinary care to furnish him a
reasonably safe place to work, and reasonably safe equipment and
appliances to work with.
It is just as familiar a rule that, for the plaintiff, employee, to
recover damages against the defendant, employer, it is incumbent
upon the plaintiff to show that the defendant owed him a duty
which had been breached, resulting in injury and damage.
When the employer uses a chemical which is well known to medical
men to be poisonous, for the purpose of preserving its wood railroad
ties used in building or repairing its tracks, the court was of the
opinion that “ it takes notice of the dangers incident to handling
such ties, and owes its employees the duty of warning them of any
such danger; and when no warning is given the employee has a right
to assume, in the absence of knowledge on his part, that it is safe to
handle the ties.”
The defense of contributory negligence was not pleaded at all
as a defense or in mitigation of damages. The supreme court held:
It is doubtful if the inference of assumption of risk could be
drawn from the evidence, and certainly not as a matter of law.
The evidence was considered sufficient to show that the plaintiff
suffered the injury and that it was u the direct and proximate result
of the defendant’s failure to warn the plaintiff of the danger in
cident to handling the creosoted ties, and the failure to furnish suffi
cient hooks to handle them without plaintiff coming in contact with
the creosoted ties.”
The judgment was therefore affirmed.
A ease involving the same principle was before the Appellate Court of
Indiana (BaltimQre & Ohio R. Co. v, Ranier (1925), 149 N. E. 361), where
boys at lunch took refuge in an empty freight car on the employer’s prem
ises. In the car was a jug containing sulphuric acid* but with no mark to

DECISIONS OF THE COURTS

identify its nature. There was no stopper in it, and one of the boys, think
ing that the jug contained water, in sport threw some of the liquid on a mate,
resulting in serious and painful injuries. Judgment was allowed for dam
ages, and on appeal affirmed, the court saying:
One who has in his possession or under his control a dangerous agency
must use care commensurate with the known danger, and especially the danger
with reference to immature persons who are likely to come into contact
therewith. In order to render the appellant liable in the instant case, it
is not necessary that it should have reasonably anticipated that an injury
might have happened to some person in the exact manner in which appellee
was injured.
However:
In order to hold a person liable for remote negligence, the injury com
plained of must be one that under the circumstances might have been reason
ably foreseen or anticipated by a person of ordinary prudence, to follow
from, or be the natural probable consequence of, the first negligent or wrong
ful act
Such negligence having been found to be the proximate cause, i. e., the
one that necessarily sets the others in motion, the court affirmed the judg
ment.
An Oregon case (Yoshall v. Northern Pacific Terminal Co. (1925), 240
Pac. 891) may here be noted as falling in the same class with the foregoing.
Yoshall was a common laborer, inexperienced in the work assigned him of
polishing brass work on Pullman cars, using a mixture containing oxalic
acid, tripoli, wood alcohol, and turpentine. The dust and fumes were inhaled
and absorbed, producing infection and permanent injury to the heart. As in
the last case above, the court found it “ not essential to constitute proximate
cause that the precise injury which resulted from the master’s negligence
should have been foreseen,” but “ it is sufficient if injury in some form should
reasonably have been anticipated.”
Neither warning of latent dangers nor protection of any sort having been
given, a judgment for damages was held to have been properly given.

E mployers’ L iability — N egligence— C ontributory N egligence—
G uard I njured by S trikers— Schajf v. Bourland, Court of Civil

Appeals of Texas (December h, 19%Ip), 266 Southwestern Reporter,
page 8Jf3.—On July 1, 1922, a general strike was called by the Fed
erated Shop Crafts, and many of the defendant’s employees joined
the strike. On July 10, 1922, A. B. Bourland, the plaintiff, was em
ployed by the defendant Schaff, receiver, to guard the property of
the railroad in his charge. Bourland left his home at Hillsboro and
traveled by pass from Hillsboro to Denison with three other men
who were employed at the same time and for the same purpose. As
they were going from the train to the station at Denison they were
taken in charge by a mob of strikers, “ each one being placed in a
separate automobile, and appellee was carried to some point in the
country and flogged and cursed and his life threatened, and he was
told by the strikers that if he returned to Denison he would be
killed.” No evidence was introduced showing the extent of the in
juries or that Bourland lost any time from work or that he had medi

EMPLOYEES * LIABILITY

cal treatment. Bourland filed his suit for damages, claiming that
he was a passenger on defendant’s train and that as such he was en
titled to a certain degree of care to prevent his receiving the in
juries. He also contended that defendant had promised to have
some United States marshals at the station to meet the guards, and
that the defendant knew that the mob of strikers was at the station
and would assault him when he arrived. The defendant filed a gen
eral demurrer, a number of special exceptions, and as special defense
alleged that there had been no prior violence on the part of the
strikers and that the plaintiff was guilty of contributory negligence
by informing the strikers, upon his arrival in DenisonJ of his busi
ness. The cause was tried before a jury, and judgment was entered
for the plaintiff in the amount of $7,000. An appeal was taken.
In holding that the verdict of the jury for the plaintiff could not
be sustained the court said:
No act of violence prior to said time was shown. There is no
evidence in the record that the strikers had in any way either threat
ened or molested any of the employees of appellant or any of the
strike breakers or guards, or had in any way threatened to injure
any of the property of appellant or injure any of its employees. The
mere fact that a strike among the Federated Shop Grafts was in
existence was not in itself sufficient to place appellant on notice that
any of its other employees or guards o f its property would be in any
way molested, and there was no evidence that appellant could have
foreseen the attack or in any way prevented same.
To the contention of the plaintiff that he was entitled to the same
degree of care that a passenger would be entitled to, the court said:
The weight of authority, we believe, is to the effect that while the
employee is being carried from the place of his work to his home and
back he travels as an employee.
We are of the opinion, under the facts in this cause, appellee hav
ing gone to Denison for the purpose of doing guard duty for appel
lant and being on the pay roll of the company as such, and after
having arrived in Denison started to the waiting room of the sta
tion to get instructions or directions, and after leaving the train and
while going to the waiting room he told the mob his business and
what he was there for, he was not entitled to that high degree of
care for his protection from the mob required of public carriers for
the protection of its passengers.
It was held contributory negligence on the part of the plaintiff
to tell the mob the nature of his business. A special charge should
have been given the jury.
No other passengers except appellee and his companions who had
gone to Denison to do guard duty were molested by the mob, and the
evidence tends to show that if appellee had not informed the mob
of his business he would not have been molested. I f the attack was
caused by appellee’s action in telling the mob his business in Denison

DECISIONS OP THE COURTS

and the same was the proximate cause of the injury, appellant would
not be liable.
The defendant contended that the question whether the assault
was sudden and unexpected should have been submitted to the jury.
The court was of the opinion that it should have gone to the jury
because “ if the attack was sudden and unexpected and such as could
not have been reasonably anticipated or prevented, appellant would
not be liable.”
The court of civil appeals therefore reversed the judgment and
remanded the cause for further proceedings.
E mployers’ L iability — N egligence op F oreman— State M ining
L aw —Philadelphia & Reading Coal & Iron Co. v. Kever, United

States Circuit Court of Appeals, Third Circuit (March 5, 1925), £
Federal Reporter (2d), page 531.—George Kever was killed while in
the course of his employment as a coal miner, and an action was
brought by his widow on behalf of herself and children for damages
for his death. From a judgment for plaintiff the employer brought
error. There was evidence on the part of the plaintiff “ that the
posts and siding boards needed by Kever were not supplied him at
his place of work,” and it is contended that this constituted negli
gence on the part of the company. The defendant urged that
“ under the facts in this case it was the duty of the mine foreman
and his assistant fire boss to see to it that suitable props and timbers
were available for use by George Kever, and if the failure to have
sufficient timbers available was a contributing cause to the accident
to George Kever, the negligence, if any, was the negligence of
those for whose acts the defendant was not responsible.”
The circuit court of appeals, in upholding the contention of the
company, said:
Under the mining statutes of Pennsylvania, and the decisions of
the supreme court construing and applying such statutes, we are of
opinion defendant was entitled to an unqualified affirmance of such
request to charge. Without discussing the several cases decided by
that court, it suffices to refer to its latest pronouncement, which is
found in Lynott v. Scranton Coal Co. (269 Pa. 554, 112 Atl. 741).
Construing the State mining laws, the court there says: “ The mine
foreman has charge of the underground workings (art. 12, P. L.
195), is a person whose competency is certified to by the State, and
to whom broad powers have been delegated. When the work has
been committed to his charge, as permitted by the act, the owner
is not ordinarily responsible for injuries which occur from negli
gent performance of his duties. * * * The act with which we
are dealing (Act June 2, 1891, art. 11), makes it 4the duty of the
owner, operator, superintendent, or mine foreman of every mine to
furnish to. the miners all props, ties, rails, and timber necessary
for the safe mining of coal and for the protection of the lives of

EMPLOYERS ’ LIABILITY

the workmen.’ Requests for such materials, when necessary, are to
be made to the 4mine foreman or his assistant.’ The owner would
not, therefore, be liable for injury arising from the failure to supply
props, where the service had been committed to such person (Musin
v. Pryor Coal Co., 68 Pa. Super. Ct. 88, under the bituminous coal
act), unless he has been notified of the default and fails to make
proper efforts to protect the employees.”
Such being the law of Pennsylvania as declared by its highest
court, and the point quoted embodying the same, the court below
erred in not so charging.
The judgment was therefore reversed.8
E mployer’s L iability — R ailroad C ompanies— F ederal S tatute—
H orseplay— C olrse or E mployment — N egligence— Griffin v. Bal

timore & Ohio R. R. Co% Supreme Court of Appeals of West Vir
ginia February 10, 1925), 126 Southeastern Reporter, page 571.—
Benjamin C. Griffin was employed as a laborer in a section gang of
the defendant railroad. A t the noon hour*the foreman and several
men were on one side o f the track over which a freight train was
moving and the plaintiff was on the other side. None of the men
were engaged in work for the company; the foreman and the men
with him were throwing stones under and between the ends of the
moving cars, one of which struck the plaintiff and destroyed the sight
of one eye. The employees had engaged in throwing stones at tobacco
boxes or at trees many times as a matter of diversion. The foreman
started the throwing under and between the cars at the time of the
injury, but according to the evidence did not cast the stone which
struck the plaintiff. A n action was brought under the Federal em
ployers’ liability act (U . S. Comp. St., secs. 8657-8665) for permanent
injury to the eye, and from a judgment for the defendant the plaintiff
brought error, the judgment below being affirmed.

The supreme court based its decision upon the case of Fletcher v.
Baltimore & Potomac R. Co. (168 U. S. 135, 18 Sup. Ct. 35), and
when the main case was previously up before it on a demurrer to the
declaration (122 S. E. 912) held:
Where a railroad company knowingly permits and encourages its
employees to indulge in dangerous practices on its premises, although
8This decision presents a striking illustration of the difference between liability and
compensation statutes. The judgment in favor of the widow was reached in litigation
which had been in process for at least 10 years, the earliest Federal decision having
apparently been rendered in 1916. This refers to an earlier trial, of which the date is
not given. It seems safe to assume that the death, for which the action was brought,
occurred prior to the enactment of the compensation law of 1915, and also prior to the
modification of 1935 to the law relating to the powers and liabilities of mine operators,
declaring that mine foremen and their assistants shall be agents of the owners and oper
ators (Acts No. 329, 330 (anthracite and bituminous mines, respectively), Acts of 1915).
The Lynott case, cited above, was decided in 1921, but related to an injury received in
1914. This decision was not final, but reversed a decision of the lower court and re
manded the case for a new trial, under a construction of the law more favorable to the
plaintiff than that held by the court below. Thus the Kever case, though practically
current, reflects a legal situation that is now fortunately almost obsolete.

DECISIONS OF THE COURTS

the acts of such employees are beyond the scope of their employment
and totally disconnected therewith, it will be liable to one injured
thereby lawfully on its premises at the time of the injury.
The question for decision was whether a jury “ could fairly say
that the occasional throwing of rocks at targets by the fellow servants
of the plaintiff constituted such acts as were dangerous and from a
continuation of which an injury to some one should have reasonably
been apprehended,” even though no one had theretofore been injured.
The plaintiff contended the throwing of rocks under and between
the cars was negligent and dangerous, even though target practice is
not, and that such throwing, being done with the knowledge and
presence of the foreman, who was the representative of the company,
made the company liable upon his failure to stop it. This argument
was considered by the court as “ based upon the theory that the fore
man, by reason of his right to fire, discharge, and direct the men,
was a vice principal.” The court stated that it had held that the
relation of vice principal was “ to be determined by the character
of the negligent act, and not by the grade or the rank of the servant,
and that the negligence of a superior servant is the negligence of the
master only when that negligence pertains to a nonassignable duty
of the master.” The supreme court held further:
In cases under the Federal employers’ liability act (not based on
previous dangerous acts like the one causing an injury), the great
weight of authority is that an employee can not recover for an injury
unless the injury occurred while he was engaged in the actual work
of the master.
The Federal act was held not intended to cover acts of an em
ployee in no way connected with the work he was engaged to perform.
The judgment of the circuit court in favor of the defendant was
therefore affirmed.
E mployers’

L iability — R ailroad C ompanies— F ederal S tat
C ommerce— P rotection D ue E mployees D uring

ute — I nterstate

S trike—St. Louis-San Francisco R y. Co. v. Mills, Untied States

Circuit Court of Appeals, Fifth Circuit {December 17, 1924), 3 FederdLReporter {2d), page 882.—Ira S. Mills, employed as a car inspec
tor by the company named, was employed on a Monday inspecting
both intrastate and interstate trains at the employer’s yards in Birm
ingham, Ala. Prior to and at the time of this service there was a
strike in progress and the employer furnished guards for the men
who took the places of the strikers. The Thursday evening following
the employment, between 10 and 11 o’clock, Mills and another em
ployee finished inspecting an interstate train. Shortly thereafter the
two inspectors, accompanied by a guard who had been assigned to take

EMPLOYERS1 LIABILITY

them to their homes, left the yards and walked to a street car about
half a mile away. Soon after boarding the car one of several men
upon the back platform of the car put his hand upon the shoulders of
one of the inspectors, named Weathers, and told him to get off.
Several shots were fired about that time and some of them struck
Mills, inflicting wounds from which he died the following day,
Odell Mills, administratrix of the estate of the deceased employee,
brought an action at law under the Federal employers’ liability act
(Comp. St., secs. 865T-8665), and from a judgment for the plain
tiff defendant brought error.
It appeared from the evidence that prior to the shooting threats
of personal violence were made by strikers to the men who were
working, and one Wilkins, who was in charge of the guards, knew
of these threats.
The circuit court of appeals, on reviewing the record, speaking
through Mr. Justice Walker, said:
The employee’s day’s work being in both intrastate and interstate
commerce, while, after finishing his day’s work, he was making a
trip which was a necessary incident ox that work as a whole, he
was employed in interstate commerce. Though when the employee
was shot he had left his employer’s premises and was on a vehicle
operated by a third party, it fairly may be said that he was still an
employee, if the trip he was making was in immediate connection
with his employment, and during that trip the employer owed him
a duty, the performance of which was part of the consideration by
which he was induced to enter upon and continue in the employment.
There was evidence supporting the finding that there was negli
gence in the matter of having the employee guarded while on his
way home. The court considered it a fair inference that “ such pro
tection had to be furnished to obtain labor at the place needed, and
that the relation of employer and employee still continued while
the employee was on his way from his place of work to his home,
accompanied by a guard furnished by the employer pursuant to an
implied obligation.”
It was contended by the employer that though it negligently failed
to furnish protection, yet that that negligence was not a proximate
cause of the death, because it would not have occurred but for the
supervening of an independent agency. The Circuit Court said to
this contention:
Negligence properly may be regarded as the proximate cause
of an injury, if it appears that the injury was the natural and
probable consequence of the negligence, and that in the light of the
attending circumstances it ought to have been foreseen by the wrong
doer. A careless person is liable for all the natural and probable
consequences of his misconduct. I f the misconduct is of a character
which, according to the usual experience of mankind, is calculated
93383°— 26------ 6

DECISIONS OF THE COURTS

to invite or induce the intervention of some subsequent cause, the
intervening cause will not excuse him, and the subsequent mischief
will be held to be the result of the original misconduct.
The evidence was considered as sufficient to present to the jury
the questions whether the employer was or was not under a duty to
guard the employee, and whether the employer did or did not negli
gently fail to perform that duty. Finding no error the circuit court
of appeals affirmed the judgment, one judge dissenting, on the
ground that the workman was not at the time engaged in interstate
commerce.
E mployees’

L iability — R ailroad C ompanies— F ederal S tat
C ommerce— S treet R ailways — Borelli v. Inter

ute— I nterstate

national B y. G oG ou rt of Appeals of New York (March 3, 1925),
llf7 Northeastern Reporter, page 856.— Giorgio Bovenzi was em
ployed by the company named in repairing its track, when he re
ceived an injury causing his death. An action was brought by the
administrator of the estate against the employer under the Federal
employers’ liability act (U. S. Comp. St., secs. 8657-8665), and from
a judgment of the appellate division reversing a judgment of non
suit and granting a new trial the defendant appealed.

The court of appeals pointed out that in order to recover for the
death of employees under the Federal employers’ liability act the
employer must be a common carrier by railroad, must be engaged
in interstate commerce, and the deceased employee at the time of the
accident must also be employed in interstate commerce. On review
ing the record, the court observed that none of these three condi
tions preceding existed in the case.
The International Railway Co. owns all the street railways in the
city of Buffalo, and it also has an interurban line to Niagara Falls
and a connecting line crossing the Niagara River by bridge and
running through Ontario to Queenstown. One of these urban street
railways is known as the Ferry Street line, and it was on this that
the deceased was injured. The Ferry Street cars go to the Niagara
Falls line at Court Street, where the rails connect physically but no
car goes further, the passengers being required to transfer.
The safety appliance act (Comp. St., sec. 8605) speaks of “ any
common carrier engaged in interstate commerce by railroad.” The
court of appeals noted that this act had never been applied to urban
street railroads, although it had to interurban lines. (Spokane &
Inland Empire R. Co. v. United States, 241 U. S. 344, 36 Sup. Ct.
668, 60 L. Ed. 1037, see Bui. No. 224, p. 203.) It was pointed out
that while the arbitration act (U. S. Comp. St., sec. 8666) and the
hours of service act (U. S. Comp. St., sec 8677) contain similar
language, neither has so far been held to affect street railroads,

EMPLOYERS * LIABILITY

although the one statute expressly excepts them and the other does
not. The conclusion of the court was that “ the defendant in oper
ating the Ferry Street line is not ‘ a common carrier by railroad.555
Where the owner of an urban street railway also owned an interurban line and a passenger could go on the urban system only to
the city line, where he could buy a ticket into a foreign country, such
transportation of a passenger intending to go to a foreign country
oyer the urban line was held by the court of appeals as not engaging
in foreign commerce within the meaning of the Federal act.
The order of the appellate division was accordingly reversed and
that of the trial term granting a judgment of nonsuit affirmed.
E mployers5 L iability — R ailroad C ompanies— N e g lig e n c e — C on
Rigsbee v. Atlantic Coast Line

tributory N e g lig e n c e — DaMxIges—

R. Co., Supreme Court of North Carolina ( October 7, 1925), 129
Southeastern Reporter, page 580.— Edward R. Rigsbee was employed
by the Atlantic Coast Line Railroad Co. in the capacity of switch
man or brakeman. W hile coming irom the office Rigsbee passed
through an open space between two box cars, and while in the act
of crossing the east line of the railroad he was struck by the engine
of an approaching train and killed. There was evidence that the
crossing used by the deceased workman had been used not only by
the employees but by others for a period of years. From a judgment
in favor of the plaintiff in the sum of $15,000 the defendant appealed
on the ground that proper signals had been given upon the approach
of the train, and that the intestate heedlessly ran upon the track in
front of the train and solely by his own negligence caused his
injury and death.

The specific contention of the defendant that the alleged negli
gence was essentially the sole cause of the accident and consequently
a bar to the recovery of damages was held by the supreme court as
not being in accord with their decisions.
We adhere to the principle that qualifying facts and conditions
may so complicate the question of contributory negligence as to make
it one for the jury, even when there has been a failure to look or listen
(Cooper v. Railroad Co., 140 N. C. 209, 52 S. E. 932, 3 L. R. A.
(N. S.) 391); and surely upon the facts disclosed in the case at bar,
we can not hold, as a legal inference, that the intestate’s alleged
negligence was such as entitles the defendant to a dismissal of the
action. It is incumbent upon the defendant to establish contribu
tory negligence as a matter of affirmative defense.
Whether the intestate approached the track rapidly or slowly was
considered a matter for the jury.
In ascertaining the net earnings o f the deceased, the jury was held
required to deduct only the reasonably necessary personal expenses

DECISIONS OF THE COURTS

of the deceased and not the amount spent by him for his family or
those dependent upon him.
Another contention of the defendant employer was that it was the
duty of the intestate to stop, look, and listen simply because the
track was a place of danger, as to which the court said that “ there
is no authority for holding that the law imposed upon the intestate
the unqualified duty before going on the track.” Whether the cross
ing was technically a highway was held immaterial. It was used by
the public as well as by the employees, and whether the company
exercised due care in the operation of its train was considered a
matter for the jury to decide in connection with the character of the
crossing and the defendant’s knowledge of its use.
The verdict of the jury having decided all these points and the
supreme court finding no error, the judgment was accordingly
affirmed.
E mployers’
a n c e s — G rab

L iability — R a ilr o a d C ompanies— S afety A ppli
I rons— Davis, Director General of Railroads, v.

Manry, United States Supreme Court (January 5 ,1925), 1^5 Supreme
Court Reporter, page 168.— A . E. Manry, employed as a baggage
man on a train of the Central of Georgia Railroad, was assisting
the crew of the engine in coaling it when he was injured. He alleged
in his declaration that it became his duty to assist the crew, that he
had “ stepped down from the coal chute onto the tender of the
locomotive and was going back to the rear of the tender * * *
to see that the coupling was duly and properly made.” And “ just
as he was in the act of climbing over the rear of the tender the
engineer put the locomotive in motion, and before he [Manry]
could turn on the ladder and securely brace and hold himself there
on, * * * he was, by a sudden, unusual, and unnecessary jerk,
thrown to the ground and the locomotive backed over him.” Both
legs were cut off at or just below the knee, and the action was in
stituted for $50,000 damages. From a verdict and judgment in the
sum of $7,500, affirmed by the Court of Appeals of the State of
Georgia, the defendant was granted a petition for certiorari to the
United States Supreme Court for review.

The plaintiff charged negligence in operating the train and in
failing to equip the locomotive with the appliances required by law.
On the latter charge it was alleged that the defendants were liable
under section 2 of the safety appliance act of April 14, 1910, 36 Stat.
298 (Comp. St., sec. 8618), which provides:
All cars requiring secure ladders and secure running boards shall
be equipped with such ladders and running boards, and all cars
having ladders shall also be equipped with secure handholds or
grab irons on their roofs at the top of such ladders.

e m p l o y e r s ’ l ia b il it y

The trial court charged the jury that the above statute required
“ that all cars having ladders should be equipped with grab irons,
that this applied to a tender of a locomotive though it had no roof,
and that if plaintiff’s injury was due to the absence of a grab iron
he was entitled to a verdict.” The issue was then stated by the
United States Supreme Court to be “ as to the effect of the statute.”
The defendants contended that the statute quoted did not apply
to ladders on a tender. Mr. Justice McKenna, delivering the opinion
of the court, said:
The word “ roofs ” is the determining one. The occurring sup
position is that it was used with intelligence and to accomplish its
definition, its definition being the expression of its purpose, and that
gets aid from the associates of the word in the section.
After reviewing the section above quoted the opinion continued:
It is cars, therefore, which must have handholds or grab irons on
their roofs at the tops of such ladders. The section distinguishes
between roofs and tops; they do not designate the same thing. And
the distinction is natural. This reasoning is not giving exaggeration
to verbal differences—defeating purpose. It is made necessary to
accomplish the legislative purpose.
The Interstate Commerce Commission has the power to designate
the number and dimensions of such safety appliances, and the com
mission’s regulation as to ladders on tenders was quoted by the court
as follows:
A suitable metal end or side ladder shall be applied to all tanks
more than 48 inches in height measured from the top end of sill and
securely fastened with bolts or rivets.
The opinion concluded:
The omission to require a grab iron is a practical construction
by the commission—the tribunal to which the application of section
2 was intrusted and which would be solicitous to enforce it—that
it applies to cars with roofs and not to tenders, they having no roofs.
While the view of the commission is not conclusive with us, it is
jDroperly persuasive. We agree with it. The trial court therefore
erred in its charge on the effect of the statute, and as the verdict
was general with no special finding upon which the verdict could
stand without response to the statute, the case must go back for a
new trial.
The judgment of the court of appeals was therefore reversed and
the case remanded for further proceedings.
E mployers’ L iability — R ailroad C ompanies— S imple T ool D oc
trine—Thompson

v. Chicago Great Western R. Co., Supreme Court
of Minnesota (October 23, 1925), 205 Northwestern Reporter, page
439.—John Thompson, employed by the Chicago Great. Western
Railroad Co. as a section hand, was pulling spikes with a claw

DECISIONS OF THE COURTS

bar, which according to his story was defective in that the elaws
were flattened and had too much spread, the result being that
it slipped from the head of a spike and precipitated him to the
ground, his hand being caught between the bar and a rail. Upon a
verdict for the plaintiff the defendant appealed from an order deny
ing its alternative motion for judgment or a new trial.
The supreme court, on review, was of the opinion that the evi
dence was sufficient to show a defect resulting in an injury to the
plaintiff while he was using the tool. The main question considered
by the supreme court was as to the rule of the “ so-called simple
instrumentality cases.” Under that rule the supreme court said
that44no duty rests upon an employer to inspect simple and common
tools for defects arising from their use. Like every other rule of
law, it has no application to a case from which there is absent its
controlling reason. The reason for this rule is that the servant
ordinarily selects the tool, or at least has as good or a better op
portunity for inspection than the master.” However, that was held
not to be the instant case, for the section crew had a number of
claw bars at its disposal and the evidence showed that some of them
had been discarded. The circumstances of the case were also held
to take it out of the rule in that just before the accident the plain
tiff had been shoveling cinders. He was put at the new work some
what suddenly at night and by lantern light, which, while the best
available, was not a brilliant illumination. The claw bar causing
the injury was selected and furnished by the foreman, the employee
having no choice in the matter. For these reasons the supreme court
held that the rule of the simple instrumentality cases did not apply.
The order denying the motions of the defendant was therefore
affirmed.
E mployer’ s L iability — R elease— C ontract
ment —Gerard

for

L ife E mploy

B. Lambert Co. v. Fleming, Supreme Court of
Arkansas ( October 19, 1925), 275 Southwestern Reporter, page
912.—D. P. Fleming, employed by the Gerard B. Lambert Co., sus
tained severe personal injuries while engaged with a crew of men in
cutting and hauling timber. In consideration of Fleming releasing
the company and insurance carrier from liability for the injuries
received, the company through its woods foreman and its general
manager agreed to employ Fleming for life as a night watchman
at a salary of $20 per month and board. The employee was given
immediate employment as night watchman, and a short while there
after was given a raise to $35 per month. The term of employment
lasted from 1916 until January 3, 1921, when Fleming was dis
charged. He then instituted an action to recover damages for an

e m p l o y e e s ’ l ia b il it y

alleged breach of the contract of employment. On the trial of
the cause the jury returned a verdict in favor of the employee,
assessing damages in the sum of $720. Judgment was rendered
on this verdict and the employer appealed. The supreme court, on
reviewing the record, found that there was sufficient evidence to
prove the existence of a contract in writing, executed by agents of
the company within the apparent scope of their authority, and
held that the contract did not come within the scope of the statute
of frauds. There was no evidence tending to show that the em
ployee could have worked at other employment to reduce the
damages, and the burden of proving such being on the defendant,
the supreme court could take no notice of such claim after verdict
and judgment of the trial court, the verdict being only sufficient to
cover compensation from the date of discharge to the date of trial.
The main point in the case was as to the validity of this contract
for life employment. The supreme court was of opinion that:
It is established by adjudged cases that a contract of this character
is enforceable. The validity of such a contract, is based upon
settled principles of law, the same as any other kind of contract.
It must be based upon a consideration, but the release from an
antecedent liability affords such consideration.
There was no error, and the evidence sustaining the judgment, it
was therefore affirmed.
E mployers’ L iability — R elief D epartment— C laim — N otice—
S tatute of L imitations —Carmody v. Pennsylvania C o C o u r t of

Appeals of Kentucky (December 16, 1924), 266 Southwestern Re
porter, page 1083.—Thomas Carmody, while employed on one of the
Pennsylvania lines west of Pittsburgh, on November 24,1905, had his
arm cut off. In 1899 the Pennsylvania lines west of Pittsburgh
formed a relief department, the purpose of which was “ to provide ac
cident and sick benefits for the employees of the company whether in
jured by negligence or not.” Membership was optional with the em
ployees; the department was under the management of a superin
tendent, subject to the final control of an advisory committee com
posed of six employees and six members selected by the company.
The fund was derived from contributions from the wages of the
members, and in case of a deficit it was made up by the railroad
company, which was the trustee for the department. Carmody was a
member of the department, and upon the filing of an application
was granted $1.50 a day until the following spring, when the physi
cian of the department pronounced him as well as he would ever be.
He was paid $228 in all. The superintendent then offered Carmody
a job, but it was refused because he was not assured that it would be

DECISIONS OF THE COURTS

permanent. He then filed suit against the company to recover for
his injury, but it was held in the court of appeals that he could not
maintain the action because of “ the express provision of his contract
with the relief department by which he agreed that the acceptance
of benefits from the relief fund for any injury should operate as a
release from all claims for damages against the company arising
from such injury.” (Pittsburgh, etc., R. R. Co. v. Carmody, 188 Ky.
598, 222 S. W. 1075.) Carmody “ then dismissed without prejudice
that action and brought this suit against the trustee of the relief
fund,” and the defendant pleaded the contract above referred to.
The contract in part provided:
All questions or controversies of whatsoever character arising in
any manner or between any parties or persons in connection with
the relief department or the operation thereof, whether as to the
construction of language or meaning of the regulations of the relief
department or as to any writing, decision, instruction, or acts in
connection therewith, shall be submitted to the determination of the
superintendent of the relief department, whose decision shall be final
and conclusive thereof, subject to the right of appeal of advisory
committee within 30 days after notice to the parties interested, of
the decision.
It was alleged and proved that no appeal had been taken from the
decision of the superintendent rendered in April, 1905, and the peti
tion was dismissed, from which dismissal Carmody appealed.
The court of appeals quoted with approval the decision in Penn
sylvania Co. v. Reager (152 Ky. 824, 154 S. W. 412, 52 L. R. A. (N.
S.) 841), in which it was held “ that the by-law of the relief associa
tion was valid, and that the injured employee could not, after accept
ing the relief claimed, ignore the judgment of the superintendent
and sue the trustee.” On the return of that case it was decided
against Reager, and in the decision the court said:
Under sections 2515 and 2519, Kentucky Statutes, an action for
relief from fraud or mistake must in all cases be instituted within
five years from the discovery of the perpetration of the fraud or
the making of the mistake, and when the action for that purpose is
not instituted until more than five years after the commission of th€
fraud or mistake, it must appear that by the exercise of reasonable
diligence it could not have been sooner discovered.
The court of appeals was of the opinion that the above and other
decisions were with the weight of authority “ in so far as they hold
that the member who has accepted the benefits of the relief fund
must exhaust the remedies given by the rules of the association before
appealing to the courts.”
This action was brought 14 years after the decision referred to
wras rendered. “ There is no proof of fraud or mistake sufficient to
warrant a recovery, and in addition to this the action was filed more

e m p l o y e e s ’ l ia b il it y

than 10 years after the decision was rendered.” The court con
sidered the action plainly* barred by limitation “ so far as it attacked
the judgment on the ground of fraud or mistake.”
The judgment was therefore affirmed.
E mployers’ L iability — W orkmen ’ s C ompensation— C overage—
E lection—Bannon v. Watson, Court of Appeals of Kentucky {Jan

uary 27, 1925), 268 Southwestern Reporter, page 573.—James R.
Watson, a plasterer, was working for W. P. Bannon, a plastering
contractor, stuccoing the walls of the Transylvania University in
Lexington, when a defective scaffold gave way, inflicting upon Wat
son serious and permanent injuries. Watson sued Bannon, alleging
negligence, and recovered a judgment in the sum of $8,000, from
which Bannon appealed upon the ground that both had elected to
accept the provisions of the workmen’s compensation act. A separate
trial on this issue resulted in a finding for the plaintiff, the court
finding that “ a former employment of the plaintiff by defendant,
under which plaintiff had accepted the provisions of the workmen’s
compensation act, had terminated and the relationship of employer
and employee had ended several months before plaintiff’s new em
ployment by the defendant had begun, and that under the later
employment, which existed at the time of the plaintiff’s alleged
injury, the plaintiff had not accepted the provisions of the workmen’s
compensation act.” The court concluded that the plaintiff could
then sue at common law for personal injuries received.
Over a year later the case was heard by a jury on the merits, with
the same result in favor of the plaintiff. The only question consid
ered by the court of appeals was as to whether the pleadings sus
tained the finding of the lower court on the jurisdictional issue.
Watson ceased working for the defendant in March, 1920, and
from then until the latter part of May, 1920, he worked for other
contractors. From the latter part of May he was employed by
Bannon as a plasterer on the Francis Building, and following that
he worked for Bannon in Lexington, and was so working on October
9, when he received the injury, but at no time did he sign the work
men’s compensation register nor was he requested to do so.
The court of appeals, in deciding the question as to the jurisdiction
of the court, said:
To make an injury compensable under the workmen’s compensa
tion act, both employer and employee must theretofore have elected
to operate under its provisions in the way pointed out in the act.
(Ky. St., secs. 4882, 4956, and 4957.)
It will be observed that it is not alleged in either pleading that the
appellant had ever accepted the provisions of that act, or elected to
operate under it. Appellant’s counsel admit that such an election

DECISIONS OF THE COURTS

was essential to this defense, but argue that in construing the peti
tion most strongly against the plaintiff, it must be inferred that
defendant was so operating. * * *
The argument is ingenious, but not conclusive. To be effective
defendant’s acceptance must have been registered as required by law.
Plaintiff could not waive this; hence it would seem that he might
state the facts as he understood them, and leave the legal effect to
the court. While the pleadings should be construed most strongly
against the pleader, it is doubtful in a case like this if the rule
extends to the extent of supplying necessary averments for his ad
versary.
No mention was made of any acceptance of the act by the employee
in the affirmative plea of the defendant; and the court was of the
opinion that, as he had assumed the burden of proof, the construc
tion should be most strict against the defendant, as there “ is no
rule of construction that would authorize the court to supply for
him the missing averment so essential to his affirmative defense.”
The judgment was accordingly affirmed.

E mployers’ L iability — W orkmen ’ s C ompensation— D isease—
A ction for D amages—Donnelly v. Minneapolis Manufacturing Co.

Supreme Court of Minnesota (December 12,1921}), 201 Northwestern
Reporter, page 305.—D. J. Donnelly alleged that while in the employ
of the defendant he contracted “ an occupational disease ” known as
“ chronic bronchitis with chemical poisoning,” and that it was due
to defendant’s negligence. From an order sustaining a demurrer to
the complaint the plaintiff appealed.
Taking the complaint on its face value, the court found that the
plaintiff suffered from the disease and that the cause was the viola
tion by the defendant of a statute requiring proper ventilation. The
plaintiff filed an unsuccessful petition for an award before the in
dustrial commission prior to the bringing of this suit. The court
said:
Plaintiff has no claim for accidental injury, even though he may
have suffered his supposed disabling detriment by reason of and in
the course of his employment, for it is not the result of accident as
defined in section 66. “ Accident ” is there defined as “ an unexpected
or unforeseen event, happening suddenly and violently, with or
without human fault, and producing at the time injury to the phys
ical structure of the body.” Plaintiff does not claim to have been a
victim of a mischance of that kind.
Plaintiff is excluded from all advantage of the provisions of the
compensation law furnishing relief on account of occupational dis
ease, for it is provided in subdivision 9 of section 67 that “ for the
purpose of this act only the diseases enumerated * * * shall be
deemed to be occupational diseases.” Neither “ chemical poisoning ”

EMPLOYERS* LIABILITY

nor “ chronic bronchitis” is included in the enumeration. There
fore they are excluded, and plaintiff is wholly without remedy under
the compensation law.
The defendant contended that this was a case of a wrong without
a remedy, the purpose and effect of the law being “ to take away
from employees subject thereto all remedy except where they suffer
accidental injury, or become afflicted with one of the occupational
diseases for which compensation is allowed.”
The supreme court rejected this view, holding that—
It appears clearly to have been the legislative intention to leave
actions of the kind now under consideration under the common law,
as modified by the compensation act.
Applied in the instant case, the result urged by defendant would
not only destroy “ a long-existing common-law right,” but it would
make a mockery of the statute requiring employers to furnish a
decent supply of fresh air to their employees.
This case may be summed up by the statement that defendant is
charged with violating its statutory duty to furnish adequate ven
tilation in the room where plaintiff was employed, and that thereby
plaintiff claims to have become afflicted with a disease not enumerated
in subsection 9 of sec. 67, ch. 82, G. L., 1921. Our conclusion is that
the workmen’s compensation act does not apply, that the employee
has his action for damages, and that the demurrer to the complaint
should have been overruled.
The order sustaining the demurrer was reversed.

Employers’ Liability—Workmen’s Compensation— Election—v. Macy, Court of Appeals of New York
(June 2, 1925), 11^8 Northeastern Reporter, page 543.— Charles A. J.
Queck-Bemer, employed by V. Everitt Macy upon his private coun
try estate, was, on June 28, 1919, injured in the course of his em
ployment. The plaintiff brought action for damages, and the
defendant pleaded as a defense that both plaintiff and defendant,
by their joint election, had become subject to the provisions of the
compensation act, and that the liability prescribed in the act was
exclusive. (Consolidated Laws, ch. 67.) From a verdict and judg
ment' for the plaintiff the defendant appealed.
The court of appeals, on reviewing the record of the case, held
that the workmen’s compensation law, section 2, as amended by
Laws of 1917, chapter 705, which authorized the employer and the
employee to elect jointly to come under the provisions of the act,
was applicable to an employment in connection with a business not
conducted for pecuniary gain in view of section 3 (not section 2),
subdivision 5. It was pointed out that the employment in the case
was on a country estate or home and was not in connection with a
business for pecuniary gain.
E stoppel —Queck-Bemrier

DECISIONS OF THE COURTS

The provisions of the statute required that the employer should
make his election to come under the act by posting notices thereof
and by filing with the commission a written statement. The statute
also provided that an employee shall be subject to the act if he shall
not at the time of entering into a contract of hire have given to his
employer notice in writing that he elects not to be subject to the
provisions of the act and filed a copy of those with the commission.
Mr. Justice Lehman, speaking for the court of appeals, in conclu
sion said:
Here the defendant’s attorney repeatedly stated to the court that
the plaintiff conceded and had stipulated that there was a joint elec
tion, and the plaintiff’s attorney conclusively evidenced his acquies
cence in those statements, not only by silence but by arguing only
the legal effect of a joint election. To allow a judgment in plaintiff’s
favor to stand, not because the plaintiff has in fact failed to join in
the employer’s election, or even because there is a real dispute on this
point, but because the defendant rested upon a stipulation which both
parties regarded as sufficient to show a joint election, would be
entirely subversive of justice.
The judgment was therefore reversed.

Employers’ L ia b ility — W o r k m e n ’s Compensation — Railroad
Companies— Federal S ta tu te— C o n flic t o f Laws— D a m a ges —
Schendel v. Chicago, R. / . & P. R. CoSuprem e Court of Minnesota
{June 19, 1925), 20If Northwestern Reporter, page 552.— Clarence Y.
Hope, employed by the defendant railroad as a conductor, was en
gaged in the hauling of coal from mines in Iowa on the defendant’s
main line to Pershing, 10 miles away. Hope and the rest of the
crew lived at Chariton, on the main line southerly of Pershing. On
the morning of February 4, 1923, the plaintiff and his crew went to
Pershing, hauling several cars, among which were interstate cars,
and at dinner time they coupled a caboose to the engine and the crew
proceeded to Chariton for dinner. While still in the Pershing yard
limits a rear-end collision between Hope’s etigine and a through
passenger train occurred, and he was fatally injured. The accident
was caused by the fault of the train dispatcher in letting the engine
and caboose onto the main line in front of the coming passenger
train.

A. D. Schendel, as special administrator, brought a proceeding
under the Federal employers’ liability act (U. S. Comp. St., secs.
8657-8665) to recover for Hope’s death. There was a verdict and
judgment in the sum of $26,047.50 for plaintiff, the defendant’s
motion for judgment non obstante veredicto being denied. From this
judgment the defendant appealed.

e m p l o y e e s ’ l ia b il it y

It appeared from the evidence that the conductor, Hope, received
“ manifests ” at the mines showing the destination of the loaded coal
cars. These “ manifests ” the conductor was to mail upon reaching
the station. Apparently they were in the caboose and were burned
in the fire which followed the collision. The question as to whether
the deceased was engaged in interstate commerce was considered by
the supreme court as a proper question for the jury, and was answered
by it in the affirmative.
Hope died on February 13, 1923, nine days after the collision,
leaving his wife of 11 weeks and children by a former marriage.
Plaintiif was appointed special administrator on February 20, and
suit was brought on February 21. On March 2, 1923, a proceeding
was instituted by the defendant company under the compensation
law. The compensation act (Iowa Code 1924, sec. 1437) provides
that an employer may apply for an arbitration. Mrs. Hope answered
the petition for arbitration, alleging that the deceased was employed
in interstate commerce and that the compensation act was without
application, and asked that no relief be granted. She took no part
in the proceeding except to answer the appeal. An award was made,
and this was pleaded by supplemental complaint as a bar to the ques
tion as to whether the decedent was employed in interstate commerce.
It was observed by the Supreme Court that the Federal act, within
the field which it covers, supersedes the common-law liability and the
liability created by death by wrongful act statutes, or employers’ lia
bility acts, or compensation acts. It was the contention of the de
fendant that the compensation award in Iowa was a complete bar
to the action under the Federal act in the Minnesota courts. It was
further contended that the finding that Hope was engaged in intra
state commerce, under the compensation proceeding, “ binds the
personal representative of the deceased, proceeding under the Federal
act in an earlier-commenced action.” It was claimed that the award
was res adjudicata in the broad sense and that it was an estoppel
upon the question of the character of Hope’s employment. The
Supreme Court, after discussion, said:
From the facts surrounding the accident, and with causal negli
gence admitted as here, there arose one cause of action. It was
under the Federal act or the Iowa compensation act.
I f the action had been brought in a Federal district court in Iowa,
as with great propriety it might have been, we can not think that
the Federal court would have permitted the defendant to assert as
a bar against the plaintiff an award to the beneficiary in the later
compensation proceeding, made against the protest of the beneficiary
that her rights were determinable in the pending action. The result
should be the same if the action were brought in a Federal court in

DECISIONS OF THE COURTS

Minnesota, as it might have been, or in a State district court of Iowa,
where it might have been brought with greater convenience than in
Minnesota. And it should be the same when brought in a State court
of Minnesota designated by Congress as a proper court.
It was the further contention of the plaintiff that though the
fact of the character of employment found in the compensation pro
ceeding might in a particular case be an estoppel in a subsequent
action, there “ can be no estoppel here, because of lack of identity
of the parties,” the widow as beneficiary under the compensation
award, and the administrator as plaintiff in the action for damages.
On this point the court held that—
The right of recovery under the employer’s liability act is in the
personal representative, not in the beneficiaries. The award under
the compensation act is to the beneficiaries. The personal repre
sentative of the decedent does not participate. The beneficiaries
can not sue under the Federal act.
We. follow the Federal authority, and hold that there was not the
requisite identity of parties.
The verdict for $26,047.50 granted by the trial court was objected
to by the defendant on the ground that it was excessive. The court
pointed out that the life expectancy was between 21 and 22 years, and
that he contributed $135 to $150 a month to his wife. The testimony
showed that prior to his death he suffered great pain, and at times he
was conscious and spoke rationally. The court observed that usually
a substantial award for pain and suffering is not allowed “ unless
there is substantial evidence of it, nor is a jury permitted to make an
emotional award through sympathy for suffering.”
The amount was considered fairly sustained and the judgment
was therefore affirmed.
The court added that—
I f subsequent events make it desirable, the trial court, having
charge of the distribution of the fund, can require the discharge of
liability upon the compensation award, so that the defendant will
not be inconvenienced thereby.

E m ploym ent A

gen cies —

L ic en ses — C o n s t it u t io n a l it y

S tat

—McBride, Commis'isoner of Labor, v. Clark, Clark v. McBride,
Commissioner of Labor, Court of Errors and Appeals of New Jersey
(January 19, 1925), 127 Atlantic Reporter, page 550.—These cases,
presenting substantially the same questions, were dealt with by the
court of errors and appeals at the same time. In the first case the
commissioner of labor recovered a penalty in the sum of $250 against
Charles Clark for conducting an employment agency without a
license in violation of section 3 of chapter 227, Acts of 1918.

ute

EMPLOYMENT AGENCIES

The second case was on certiorari directed to the commissioner of
labor, bringing before the court the refusal of the commissioner to
grant a license to Clark to carry on an employment agency.
It was the contention in both cases that the fifth and fourteenth
amendments of the Federal Constitution, and section 1, act 1, of the
State constitution, had been violated.
The court of errors and appeals observed, in considering these
two cases, that—
The right of a State under the Constitution of the United States
to regulate the business of employment agencies has been clearly
established by the Supreme Court of the United States in the case of
Brazee v, Michigan (241 U. S. 340, 36 Sup. Ct. 561 [see Bui. No.
224, p. 130]), the court in that case using this language: “ Consider
ing our former opinions, it seems clear that without violating the
Federal Constitution a State, exercising its police power, may require
licenses for employment agencies and prescribe reasonable regula
tions in respect of them, to be enforced according to the legal discre
tion of a commissioner.”
It is common knowledge that the business of an employment
agency is one dealing with a great body of our population, both
native and foreign born, which is susceptible to imposition, decep
tion, and immoral influences. The right of a State to regulate under
its police powers a business which involves dangers to public morals
and public health can not at this date be called in question. It is
not an infringement of any right that the legislature has prescribed
that he who engages in the business of an employment agency should
first submit himself to the permission and license of the State, or
that he shall be subject to reasonable regulation in the conduct of
such business. The conclusion we reach is that the act in question
(P. L. 1918, p. 822) is within the police power of the State in so
far as it requires the obtaining of a license by one seeking to engage
in the business of an employment agency. There was therefore no
error in the judgment rendered in the imposition of the fine of $250
on the appellant for conducting his business without such license.
In the second case the court noted that it was obvious that the
power of deciding upon the fitness of an applicant for a license must
be vested in some authority if the purpose of the act is to be made
effective. Under section 10 of chapter 227, Acts of 1918, the com
missioner of labor may refuse to issue any license “ for any good
cause shown” within the meaning of the act. As to whether the
power was legally exercised in the individual case, the supreme
court decided that “ the commissioner having refused the prosecu
tor’s application for a license upon the ground that the applicant
had already violated the statute by carrying on the business with
out a license, well knowing the legal requirements therefor,” and
as he “ obstinately refused to apply for a license,” carrying on the
business until prosecuted and fined, it is “ our opinion that the com
missioner was justified in refusing the license.”

DECISIONS OF THE COURTS

m ploym ent

abor —

O c c u p a t io n

T a x — C o n s t it u t io n a l it y

Foundry Co., v. Landes, City Auditor et al.,
Clawson v. Same, Supreme Court of Ohio {March 10, 1925), llfl
Northeastern Reporter, page 302.—The plaintiffs in each of these
cases sought in the court of comon pleas to enjoin the collection of
an occupational tax imposed by the city of Marion under an ordi
nance enacted by the city council on March 10, 1924, entitled:
* To levy an occupational tax upon persons, associations of persons,
firms, and corporations carrying on certain trades, professions,
occupations, businesses, and employments in the city of Marion,
Ohio, in the year 1924.
of

S t a t u t e —Marion

In the schedules contained in the ordinance an attempt was made
to classify and tax all persons, associations of persons, firms, cor
porations, professions, occupations, businesses, and employments
operating within the city. Schedule 1 provided a tax of $100 with
an additional tax of $2 for each person employed by tanneries,
abattoirs, packing houses, etc., including manufactories of every
kind, character, and description. Schedule 2 taxes wholesalers and
retailers, Schedule 3, occupations and professions, and Schedule 4
undertakes to tax all occupations not specified in Schedules 1, 2,
and 3. Judgment was in favor of the city officials, and plaintiffs
brought error.
It was contended that the tax violated section 1 of the fourteenth
amendment to the Federal Constitution, but on the authority of
Southwestern Oil Co. v. Texas (217 U. S. 114, 30 Sup. Ct. 496, 54
L. Ed. 688), sustaining a statute of Texas taxing certain classes of
business, the supreme court held that the ordinance did not deny
due process.
To the contention that the tax contravened sections 1 and 2 of
article 2 of the State constitution, the supreme court referred to the
case of State ex rel. Zielonka v. Carrel, Auditor (99 Ohio St. 220,
124 N. E. 134), wherein the same court held:
The ordinance of the city of Cincinnati providing that an annual
tax shall be laid upon all persons, associations of persons, firms,
and corporations pursuing any of the trades, professions, vocations,
occupations, and businesses therein named is a valid exercise of the
legislative power of such city.
It was pointed out that the ordinance specifically declared that the
“ number of employees is used solely as a unit of measurement to
determine the amount of the tax as levied,” and that the ordinance
did not divide the occupation into component parts and tax both
parts.
The ordinance was held not to be within the prohibition of article
12, section 1, of the State constitution, which forbids a poll tax,

EXAMINATION, LICENSING, ETC., OF WORKMEN

since the proposed tax is levied upon the occupation, and “ is paid
by the person, association, etc., engaged in the occupation—is a tax,
not upon the privilege of being but upon the privilege of engaging
in an occupation.”
The judgment of the court of appeals for the defendants was
therefore affirmed and the ordinance sustained.
E t c ., of W o r k m e n — B arbers — Ex
v. Wester, Supreme Court of Washington
(June 9, 1925), 286 Pacific Reporter, page 790.—Lucy Wester, a
barber, was at the time charged engaged in her trade in the city of
Tacoma. She was convicted of barbering without a license, and
upon being sentenced by the trial court appealed.
The law involved is chapter 75, sections 2 and 9, Laws of 1923,
which provides in part:
S ec t io n 2. License required.—It shall be unlawful for any person
to follow the occupation of barber or practice as a barber in any
incorporated town in this State unless he shall first have obtained a
license as provided in this act. * * *
S ec . 9. Licenses to unlicensed lawful practitioners.—Every person
who shall have been continuously and lawfully engaged in practicing
the occupation of barber in this State without license for six months
prior to the date when this act shall take effect, shall within six
months thereafter make application for license to the State treas
urer. * * *
E x a m in a t io n ,

L ic e n s in g ,

P ost F acto L a w —State

After the passage of the 1923 law appellant had applied for a
license without examination under section 9 of the act, upon the
ground that she had been engaged in barbering in Tacoma for six
months prior to the taking effect of the act. The previous law
required licenses only in incorporated cities and towns (Rem. Comp*
St., sec. 8277), but Lucy Wester did not have this license.
It was her contention that, “ in as much as only those who practiced
barbering in incorporated towns were required to have a license,
to deprive her of a license without examination is to punish her
for a past offense, and it is therefore an ex post facto law.” The
supreme court considered the law not ex post facto, but that such
provision as is in this law refers to qualifications, and is not in any
sense an attempt to punish for a past offense, adding:
We think it needs no argument to demonstrate the right of the
legislature to say that one who has been lawfully following a pro
fession may be admitted without an examination, while those who
have been violating the law shall be required to pass one. We have
previously upheld statutes of like character.
03383°— 26------ 7

DECISIONS OE THE COURTS

The appellant further contended that the words “ and lawfully ”
create a special privilege to barbers outside of incorporated towns
as against barbers having practiced in cities. The supreme court
observed that the same point had been raised as to the previous law
on this subject, and that it was decided adversely to appellant’s
contention in State v. Sharpless (31 Wash. 191, 71 Pac. 737, 96 Am.
St. Rep. 893; see Bui. No. 48, p. 1111).
The appellant also argued that the law was unconstitutional be
cause section 5 permits examination as to matters which in no wise
affect public health, but the supreme court held that the constitu
tionality of the statute relating to the examination of an applicant
for barber’s licenses was not presented where the one complaining
after conviction for practicing without a license had not taken the
examination, or been denied license because of unsatisfactory grades
on examination.
To the contention that the rules adopted by the board were unrea
sonable, the court held that—
I f the rules or system of grading adopted by the board should be
unreasonable, unwarranted, or arbitrary, such action does not render
the law unconstitutional, but the remedy must be in an appropriate
proceeding to review the conduct of the board. (In re Thompson,
36 Wash. 377, 78 Pac. 899, 2 Ann. Cas, 149.)
The judgment was therefore affirmed.

x a m in a t io n ,

L ic e n s in g , E t c .,

S t a t u t e —Replogle

orkmen—

P l u m b er s — C o n

v. City of Little Rock, Su
preme Court of Arkansas (November 10, 1924), 267 Southwestern
Reporter, page 353.—Sections 7623 to 7637, inclusive, of Crawford
& Moses’ Digest, provided that there should be in every city of the
first and second classes a board of examiners of plumbers, consisting
of four members—two master plumbers and two journeyman
plumbers. The board was given power to examine all applicants as
to their knowledge of “ plumbing, house drainage, and plumbing
ventilation, and if satisfied of the competency of the applicant, the
board shall issue to each applicant a certificate authorizing them to
work at the business of plumbing.” The board was authorized to
formulate rules regulating the work of plumbing and drainage,
such regulations to include materials and workmanship, and the
manner o f executing the work connected with plumbing and drain
age. It was made unlawful for any person to work as a journeyman
plumber or to install plumbing fixtures or materials, unless pos
sessing a u certificate of competency.”
The city council of Little Rock created a board of examiners of
plumbers under the above act and prescribed its powers and duties,
s t it u t io n a l it y

EXAMINATION:, LICENSING, ETC., OF WORKMEN

the plumbing department to be under the supervision of the board
of health. Fees were set and penalties prescribed.
G.
W . R e p lo g le , p la in tiff, a lle g e d th a t h e w as a p ra ctica l p lu m b e r,
w e ll versed an d s k ille d in th e a r t ; th a t on e o f the ru les a d o p te d b y
the b o a rd req u ire d a p p lica n ts to su b m it to a test in “ w ip in g le a d
jo in ts ,” an d 60 p e r cent w as m a rk ed o ff f o r fa ilu re to m eet su ch
te s t; th a t such w ip in g w as an ob solete p r a c tic e ; a n d th a t th is re
q u irem en t w as an u n ju st, a r b itr a r y , a n d d is c r im in a to r y c o n d itio n
p re ce d e n t to th e issuance o f certificates.

The plaintiff failed to meet the test required by the board, and for
himself and others similarly situated instituted an action in equity
setting up that they desired to pursue their vocation without the
certificate required by the ordinance. It was alleged that the ordi
nances and the act were unconstitutional, and an injunction was
asked restraining the city of Little Rock and the chief inspector of
plumbing from enforcing the same. From a judgment of dismissal
in the Pulaski chancery court the plaintiff appealed.
The court observed first that—
Any statute or municipal ordinance enacted pursuant thereto
which challenges the right of any person to engage in the legitimate
and honest occupation of plumbing without restraint or regulation
must find its justification in the fact that such a statute or ordinance
is necessary to promote the general welfare.
Police power can only be exercised to suppress, restrain, or regu
late the liberty of individual action when such action is injurious
to the public welfare.
When statutes and municipal ordinances pursuant thereto have
been enacted purporting to protect the health and welfare of a com
munity, all doubts as to the constitutionality of such legislation must
be resolved in its favor. Such deference and consideration must be
given by the courts to the legislature—a coordinate department of the
Government—as not to unduly interfere with its supreme legisla
tive power, and never to interfere with such power unless it appears
that the exercise is clearly outside the scope of the organic law,
which is over all departments of the Government, and which all
are bound to observe as fundamental in the protection of the liberty,
happiness, and general welfare of the community.
Other discussion followed, and the court continued:
In that statute under consideration * * * there is nothing in
all the act to indicate that its primary purpose was to conserve the
public health, except the broad provision that the plumbing depart
ment, consisting of the examining board, the chief inspector, and his
deputies, shall be under the supervision of the board of health of
the city.
It was observed that the power vested in the board without any
restriction would enable the board to “ arbitrarily prescribe theo
retical tests with which no applicant could comply, even though he

DECISIONS OF THE COURTS

might have perfect knowledge of and be thoroughly skilled in all
the practical work of the plumber.”
The constitutionality of the act must be tested, not by what the
board has actually done, but by the power it actually has. The
presumption that public servants will do their duty can not be in
dulged in determining whether the act violates the Constitution.
On rehearing the court said:
Municipal corporations have the power to regulate in a proper and
reasonable manner the work done in any common avocation or calling
if it affects the public health and safety. But they have not
the power to prevent anyone from engaging in these avocations and
to place restrictions upon them so long as their work is not done in
a manner detrimental to the public welfare.
The judgment was reversed and the cause was remanded with
directions.
F

actory,

t c .,

R e g u l a t io n s — L ic e n s in g — I n s p e c t io n — P o w ers

of O r d in a n c e — Barnard cfe
Miller v. City of Chicago, Supreme Court of Illinois (April 2^
1925), llfl Northeastern Reporter, page 8 8 .—The plaintiff company
filed a bill in equity for an injunction restraining the city of Chicago
from enforcing the provisions of an ordinance requiring a license
to operate and conduct factories and workshops within the city and
regulating their operation, alleging the ordinance to be invalid. The
court entered a decree permanently enjoining the city from enforc
ing the ordinance. The circuit court certified that the validity of
the ordinance was involved, and that the public interests require
that an aj>peal be made direct to the supreme court.
The regulatory features of the ordinance require examinations of
the premises occupied by the factories or workshops to determine
whether all health, safety, and sanitary laws have been complied
with. It further provided for the revocation of licenses and for
penalty for violations.
The only grounds urged in the decree of the court were that the
general assembly “ has not granted the city of Chicago the power
to enact the ordinance, that it is not a valid police regulation, that it
is in contravention of the State statutes on the same subject, and
that it is indefinite, uncertain, and unreasonable.”
The supreme court in reviewing the record and the validity of
the ordinance observed first:
Cities are creatures of the legislature and derive their existence
and powers therefrom. Statutes granting powers to municipal cor
porations are strictly construed, and any fair and reasonable doubt
as to the existence of the powers must be resolved against the munici
pality.
of

M u n ic ip a l it y — C o n s t it u t io n a l it y

HOURS OF LABOR

This court has many times held that power to license or tax an
occupation must be expressly granted to cities by the legislature
or be a necessary incident to a power expressly granted.
I f the business sought to be regulated does not tend to injure the
public health or public morals, or to interfere with the general wel
fare, it is not a subject for the exercise of the police power. (Lowenthal v. City of Chicago, 813 111. 190, 144 N. E. 829.) Section 1 of
article 5 of the cities and villages act (Smith-Hurd Rev. St. 1923,
ch. 24, sec. 65), with its 100 clauses, is the source of the legislative
power of the city council. Its powers are therein enumerated to the
exclusion of all other subjects.
The city of Chicago contended that the power to enact the ordinace could be derived from clause 82 of section 1 of article 5 of the
cities and villages act authorizing control of the location, use, and
construction of factories, etc.; but as the supreme court noted:
That clause, as amended in 1919 (Laws 1919, p. 285), was held
void in People v. Kaul (302 111. 317,134 N. E. 740), and that decision
was reaffirmed by this court in the cases of Moy v. City of Chicago
(309 111. 242, 140 N. E. 845), and Arms v. City of Chicago (314 111.
316, 145 N. E. 407).
It was further contended that if the decisions just stated stand,
their only effect is to declare invalid clause 82 as amended, and that
as the amendment is void, or renders the act void, the old law wTill
be revived. To this contention the supreme court said :
The clause specifically authorizes and empowers cities and villages
to direct the location and regulate the use and construction of the
particular establishments and places therein named, and under the
previous holdings of this court that enumeration is the exclusion of
all other establishments, occupations, businesses, or places, not nui
sances per se, over which cities and villages are given control. (Peo
ple v. City of Chicago, City of Chicago v. Pettibone & Co., 267 111.
573, 108 1ST. E. 698.)
The cities and villages act, article 5, section 1, subdivisions 66, 75,
78, authorizing cities to pass and enforce all necessary police ordi
nances, to declare what shall be a nuisance and to punish such per
sons as are responsible for the maintenance of the nuisance, and to
make health regulations, was held by the supreme court as not
authorizing the passage of an ordinance regulating and requiring
licenses to operate factories and workshops.
H ours of L abor — E ig h t - H our Day— “ P u b l ic W o r k ” —State v.
Peters, Supreme Court of Ohio (March 24, 1924) >1 $ Northeastern
Reporter, page 81,—Section 17-1, General Code of Ohio, reads:
Except in case of extraordinary emergency, not to exceed 8 hours
shall constitute a day’s work and not to exceed 48 hours a week’s
work, for workmen engaged on any public work carried on or aided

DECISIONS OF THE COURTS

by the State, or any political subdivision thereof, whether done by
contract or otherwise; and it shall be unlawful for any person, cor
poration, or association whose duty it shall be to employ or to direct
and control the services of such workmen, to require or permit any
of them to labor more than 8 hours in any calendar day or more than
48 hours in any week, except in cases of extraordinary emergency.
This section shall be construed not to include policemen or firemen.
W. F. Peters was director of public service of the city of Akron,
and it was his duty to employ, direct, and control the services of
workmen engaged in operating the waterworks of the city of Akron.
It was charged that Peters, in violation of the above section, “ did
unlawfully require and permit55 one Hugler, a workman, to labor
in the waterworks plant of said city for more than 48 hours in one
week, during which time no extraordinary emergency existed.
A demurrer to the indictment was sustained, the prosecuting at
torney excepting. The supreme court held that section 17-1 had
no application to the employment of labor by a municipality in the
operation of a public utility owned by such municipality. The court
on this question said:
Cases have been cited which hold that municipally owned utilities
are public works, and this inference can readily be drawn from the
Stange case [Stange v. City of Cleveland, 94 Ohio St. 377, 114 N. E.
261], inasmuch as the workman in that case was engaged in the erec
tion of a filtration plant, and the conviction was sustained. It does
not, however, follow that merely because a workman engaged in the
construction of a public utility affords a basis for prosecution of the
person who requires or permits him to be thus employed, in violation
of the statute, a workman employed in maintaining or operating a
public utility after completion would justify a prosecution. Many
reasons could be advanced for regulating the employment of labor in
the construction of a public building, which would have no appli
cation to the maintenance and operation of the building or plant
after completion. The problems involved in original construction
are wholly and essentially different from the problems of mainte
nance and operation.
It was therefore held that the indictment did not charge an offense
under the statute in question.
H

ours of

L abor

P u b l ic W

orks —

C o n s t it u t io n a l it y

S tat

State v. A. II. Read Co., Supreme Court of
Wyoming ( October
1925), 2Ifi Pacific Reporter, page 208.—The
company named was charged with violation of a law of the State
which limits to eight hours per day the employment of laborers and
mechanics on public works of the State and its political subdivisions.
In the instant case a sidewalk was being laid, the cost to be met by
assessments on the adjacent property.

ute—

P e n a l P rovisions —

INTIMIDATION

The district court of Laramie County, before which the case was
heard, submitted the question to the supreme court as to the con
stitutionality of the statute. It was held that the State had the right
to prescribe the terms under which contractors might engage in
public work for the State, and that the fact that private owners
met the actual cost by assessments did not affect the “ public ” aspect
of the undertaking. However, as the statute was drawn, it merely
declares what is the maximum working-day, without making it a
misdemeanor to require or permit a longer period of employment.
The second section (4309) provides a penalty as for a misdemeanor
for any person or corporation “ who shall violate any of the provi
sions of section 4308.” The statute does not, therefore, “ create or
define a crime, or at least with a certainty that is necessary in a
statute creating criminal offenses,” so that wit fails to constitute due
process of law ” as a basis for a criminal charge.
It is argued that nothing is declared unlawful by the statute, and
nothing penalized, except a violation of the provisions of the first
section, which declares merely a legislative limitation of the time of
service upon public works, without expressly commanding or pro
hibiting anything.
Laws on this subject generally contain a provision specifically
declaring it to be unlawful to require or permit workmen to exceed
a specified work period. The necessity of making definite and ex
plicit grounds on which an act is declared to be punishable, so that
a man will “ be able to know with certainty when he is committing
a crime,” is fundamental. On account of its defectiveness in this
respect the statute was declared unconstitutional.
I n t im id a t io n — W a r n in g b y E m p lo y e r — L ib e l — S lan d e r — Decker
v. Kentucky Coke Go., Court of Appeals of Kentucky {November
6,1926), 276 Southwestern Reporter, page 1092.—Ja;mes Decker, an
employee of the Kentucky Coke Co., in the winter of 1922-23, was
admittedly very much dissatisfied with the mine superintendent, W.
E. Hicks, whom Decker and others were striving through their
union to have removed. About this time there was some disorder
about the mines, including some shooting and the receipt by an em
ployee of a threatening letter signed “ K. K. K.” Decker and several
members of the union who were active in attempting to secure the
discharge of Hicks formulated charges, complaints, and resolutions,
and visited the company to present these complaints. After an
investigation the company declined to remove Hicks, and at a later
public hearing Hicks was completely exonerated. Decker and his
colleagues, not being satisfied, continued their agitation for his
removal.

DECISIONS OE THE COURTS

February 23,1923, a letter was posted in front of the general store
at Echols, Ky., which stated in effect that the management had been
forced to the conclusion that eight men, including the plaintiff
Decker, were not working in a spirit of harmony, that the majority
of the men were satisfied, and that the company had endeavored to
give steady employment. It further stated that the company con
sidered the attempts to disrupt the organization as disloyalty, and
that the management was entirely satisfied with Mr. Hicks. An
offer was made in the letter that for any of eight men named in a list
following, or others, “ the company will pay the cost of moving to
any point not closer than Central City, not further than 100 miles
from Echols.” A concluding paragraph stated that—
In view of recent occurrences, the management further begs to call
attention to the fact that any banding together or assembling for
the purpose of intimidation is illegal, as also are threats of personal
or physical violence, and all illegah acts will be dealt with by sum
mary discharge of the offenders, and by institution of such criminal
proceedings as are provided by law.
Suit was brought against the company, alleging that the letter
was libel and actionable per se in that it charged them with con
federating and banding together for the purpose of intimidating and
driving Hicks out of the community. From a judgment for the
defendant plaintiff appealed.
The court of appeals, upon reviewing the records, first observed
that “A publication which is claimed to be libelous must be read in
its ordinary meaning as commonly understood,” and that “ an
innuendo can not extend the meaning of words beyond their natural
import; it can only serve to explain some matter already expressed.”
Testing the letter in the light of these two principles, the court of
appeals was of the opinion that the letter charging the employees
with being agitators, who by their agitation were breaking up the
morale t)f the company’s organization in forcing the superintendent
to resign, was not actionable as being libelous per se. The last para
graph of the letter calling attention to the fact that banding together
for the purpose of intimidation was illegal, was considered as being
entirely separate and disconnected from the balance of the letter, so
that it could not be construed as charging any of the men named in
the letter as having done such acts as the paragraph warned them
against. The judgment was accordingly affirmed.

L abor O r g a n iz a t io n s — A

ct io n s —

P rocess— J u r isd ic tio n — R epre

—Christian v. International Assn. of Machinists et al
United States District Court, Kentucky (April i, 1925), 7 Federal,
Reporter (2d), page 481.—Charles Christian, plaintiff, was a pas
s e n t a t io n

LABOR ORGANIZATIONS

senger-car foreman in the employ of the Chesapeake & Ohio Railway
Co. in the summer of 1922, and the allegation of the claimant is that
he lost that position by reason of a conspiracy in restraint of inter
state trade and commerce, involving a strike to which the eight
defendants were parties. Christian brought action for damages
against the defendants, each of which is an international labor union
except the System Federation, No. 41, of the Railway Employees’
Department, American Federation of Labor, Chesapeake & Ohio
Railway Co. The case was before the United States District Court,
Eastern District of Kentucky, on motion to quash service of process.
Mr. Justice Cochran, circuit judge, on reviewing the record,
observed first that the suability of the defendants was settled by the
United States Supreme Court decision in the case of United Mine
Workers of America v. Coronado Coal Co. (259 U. S. 344, 42 Sup.
Ct. 570, 66 L. Ed. 975, see Bui. No. 344, p. 157). The question here
was as to whether the defendants were before the court by proper
service of process. According to the marshal’s return on the sum
mons service was had on each of the defendants except the Railway
Employees’ Department and the System Federation, No. 41, by pre
senting a copy to the “ local chairman and a member,” and on the
Railway Employees’ Department and the System Federation, No.
41, to its agent described as its president.
The service of process on the local chairman and the member of
the international union was held insufficient to give the court juris
diction in an action for damages under the Sherman Antitrust Act
(Comp. St., secs. 8820-8823, 8827-8830), the court adding that it
must be held “ that the chairman or any other officer of a local
union is not a representative of the international union for service
of process.” Unions, international and local, artificial units and
entities, and suable assets, can not be brought before the court ex
cept by service of process on a direct representative, where the re
lation is such that it is reasonable to infer that service of such process
on him will be brought home to the union which he represents. The
court added that the motions as to six of the defendants would, there
fore, on the grounds stated, have to be sustained.
As to the case of the defendant Railway Employees’ Department,
the president of its subordinate, the System Federation No. 41, was
served as its agent. It was not claimed that he was the agent on
any other ground than that he was such president. The court held
that the motion as to this defendant would have to be sustained.
In the case of the defendant System Federation No. 41 service
was had on its president, and the district court added that this was
sufficient to bring it before the court “ if it is suable in this district

DECISIONS OF THE COURTS

as an entity or unit.” An attempt was made to distinguish this
organization from the other defendants and to take it out of the decision in the Coronado case, but the district court was unable to
agree with the argument and held that it was properly before the
court. The motion to quash as to this defendant was overruled.
The court added that as to venue, 44in view of the fact that the
wrong complained of was committed in this district, it would seem
that the suit has been brought in the proper district.” The sole
trouble in the plaintiff’s case was held to be that, 44save as to the
defendant System Federation No. 41, jurisdiction of the persons of
the defendants has not been obtained.”
Orders to quash the motion as to all of the defendants except the
System Federation No. 41 were therefore entered.

L a b o r O r g a n iz a t io n s — B o y c o t t — S eco n d ar y B o y c o t t — I n t e r
C om m e rce — I nterfer en ce W i t h E m p l o y m e n t — A cts of P er
so n s N o t E m p lo y e e s — I n j u n c t i o n — Western Union Telegraph Co.

state

v. Inteimational Brotherhood of Electrical Workers, Local Union
No. 134, United States District Court, Illinois (July 16, 1924), ®
Federal Reporter (2d), page 993.— T h e W e ste rn U n io n T e le g r a p h
C o., a p u b lic u tility d o in g gen era l business th r o u g h o u t the co u n try ,
op era ted an 44 o p e n sh o p .” As a p a rt o f its service e q u ip m e n t it
p la ce d cables,, w ires, a n d oth er a p p lia n ces u p o n an d in m a n y p r o p
erties an d b u ild in g s . 44 C a ll b o x e s,” an a u tom a tic d e v ice f o r c a llin g
m essengers o f th e co m p a n y , w ere in gen era l use, an d as it w as m ore
e con om ica l to m ak e in sta lla tion s in b u ild in g s at the tim e o f the erec
tio n o f th e b u ild in g , th e c o m p a n y w o u ld m ake su ch arran gem en ts
w ith th e ow n e r o f a b u ild in g in the p rocess o f con stru ctio n . As a
resu lt p la in t iff’s w o rk m e n and th e w o rk m e n o f on e o r m o re o f th e
In te rn a tio n a l B r o th e r h o o d o f E le c tr ic a l W o r k e r s w ere o fte n u p on
th e sam e prem ises at th e sam e tim e, th ou g h th ey fre q u e n tly d id n o t
com e in con ta ct w ith on e a n oth er. T h e p la in tiff te le g ra p h c o m p a n y
b ro u g h t a b ill f o r an in ju n ctio n u p o n the g r o u n d th a t u p o n som e

25 o r 30 prem ises th e m em bers o f the d e fe n d a n t u n io n in ju r e d th eir
p r o p e r ty , caused strik es o r th reaten ed to strik e, an d d id oth er acts
th a t in d u ce d th e ow n ers o f the p rem ises to p re v e n t th e te le g ra p h
c o m p a n y fr o m p r o c e e d in g w ith its w o rk . J u d g e W ilk in s o n , sp ea k
in g f o r th e co u rt, h e ld th a t the u tility w as e n g a g e d in in terstate
com m erce, an d th e p r in cip le s g o v e r n in g th e v a lid ity o f co n g re s
s ion a l restra in t o f in d ir e ct ob stru ction s to in terstate com m erce w ere
discu ssed an d th e test a p p lie d w h ich w as la id d o w n b y C h ie f J u s tice
T a f t in sp e a k in g f o r th e S u p rem e C o u rt in U n ite d M in e W o r k e r s
o f A m e r ic a v. C o ro n a d o C o a l C o.

(259

S. 344, 408, 42

S u p . C t.

LABOR ORGANIZATIONS

570, 582; see Bui. No. 344, p. 157), in which he said (after citing
case):
It is clear from these cases that, if Congress deems certain re
curring practices, though not really part of interstate commerce,
likely to obstruct, restrain, or burden it, it has the power to subject
them to national supervision and restraint.
The intent to restrain interstate commerce, according to the court,
a appears as an obvious consequence of the acts of the defendants.”
Even if the intent be ignored, 44a case for equitable relief against
an unlawful boycott ” was considered to have been made out “ in
view of the diversity of citizenship of the parties.” Having decided
that the complainant was entitled to relief, the court proceeded to
consider the scope of the injunction to be granted.
In this connection it is to be considered that acts lawful in them
selves may be a step in the execution of the plan of an unlawful or
criminal conspiracy.
In Hitchman Coal & Coke Co. v. Mitchell (245 U. S. 229, 253,
38 Sup. Ct. 65; see Bui. No. 246, p. 145) it was said:
The cardinal error of defendants’ position lies in the assumption
that the right is so absolute that it may be exercised under any
circumstances and without any qualification; whereas in truth, like
other rights that exist in civilized society, it must always be exercised
with reasonable regard for the conflicting rights of others.
Quoting from Grenada Lumber Co. v. Mississippi (217 U. S,
433, 440, 30 Sup. Ct. 535) the court said:
An act harmless when done by one may become a public wrong
when done by many acting in concert, for it then takes on the form
of a conspiracy, and may be prohibited or punished if the result be
hurtful to the public or to the individual against whom the con
certed action is directed.
Objection was made on the ground that acts of persuasion were
forbidden by the fifth clause of the prayer for injunction, but the
court held that the clause applied only to acts done in “ furtherance
of the unlawful conspiracy to restrain interstate commerce.” The
Clayton Act, section 20, forbidding injunctions was held not ap
plicable in the present case. As to the clause as a whole the court
said:
It does not forbid defendants from persuading the employees
of the Western Union Telegraph Co. to terminate the relation of
employment. It prohibits interference with the performance by
plaintiff’s employees of their duties while they continue to be em
ployees of the plaintiff. And, as pointed out, those duties relate
to a service which plaintiff is under obligation to the public to
render.

DECISIONS OF THE COURTS

It was contended that clause 1 of the prayer “ prevents employees
from ceasing to work,” and therefore “ imposes involuntary servitude
upon them.” One has a right to work for whom he will and to
cease work when he fishes “ unless he has been guilty of a breach
of contract,” but—
The cessation of work may be an affirmative step in an unlawful
plan. One may not accept employment intending thereby to quit
work when that act will enable him to perform one step in a
criminal conspiracy. The real wrong is the acceptance of the em
ployment, with intent to make use of it for a criminal purpose.
These defendants are under no compulsion to accept employment
on buildings where plaintiff’s equipment is being installed; and, if
they do accept it, they are not permitted to make an unlawful use
of it.
In granting the injunction the court added:
Nothing herein shall be construed to prohibit any employee from
voluntarily ceasing work unless said act is in furtherance of the
conspiracy charged in the bill herein to prevent plaintiff from per
forming its contracts with its customers and to compel plaintiff to
discharge employees who are not members of labor unions which
are affiliated with, said defendants.
An order conforming to the view of the court was allowed to be
drafted by counsel for the complainant, to be entered upon notice.
The case came on appeal to the Circuit Court of Appeals, Seventh
Circuit, where it was decided June 1, 1925, the decree below being
affirmed. (International Brotherhood of Electrical Workers v.
Western Union Telegraph Co., 0 Fed. (2d) 444.) The facts were
not in dispute. It was contended by the appellants that the injunc
tion imposed on them “ involuntary servitude,” in violation of the
thirteenth amendment to the Constitution, by compelling them, as
union men, against their wishes and interests, “ to work with non
union men in the same trade.”
The circuit court of appeals observed that none of the defendants
were, had been, or prospectively were to be, employees of the plaintiff,
and that the things done were not done because of any violation by
the employer of any term of the contract of employment. They
were not done to induce a payment of higher wages, better work
ing conditions, or other lawful purposes, but they were done to com
pel their employers or the owners of the premises to injure and annoy
the plaintiff and to cause the plaintiff’s contracts to be violated,
“ for the sole reason that appellee [plaintiff] employed nonunion
men.”
The court considered what the Supreme Court said in American
Foundries v. Tri-City Council (257 U. S. 184, 212, 42 Sup. Ct. 72;
see Bui. No. 309, p. 181) concerning the Duplex Printing Press Co.
v. Deering (254 U. S. 443, 41 Sup. Ct. 172; see Bui. No. 290, p.

LABOR ORGANIZATIONS

174) to be applicable and control, since, as there, there was Ma
palpable effort * * * to institute a secondary boycott.”
Considering the question of the wrongful exercise of a right, the
court quoted with approval from the Supreme Court decision in
Gompers v. Bucks Stove & Range Co. (221 U. S. 418, 439, 31 Sup.
Ct. 492, 497; see Bui. No. 95, p. 323):
Society itself is an organization, and does not object to organi
zations for social, religious, business, and all legal purposes. The
law, therefore, recognizes the right of workingmen to unite and to
invite others to join their ranks, thereby making available the
strength, influence, and power that come from such association.
By virtue of this right, powerful labor unions have been organized.
But the very fact that it is lawful to form these bodies, with multi
tudes of members, means that they have thereby acquired a vast
power, in the presence of which the individual may be helpless. This
power, when unlawfully used against one, can not be met, except by
his purchasing peace at the cost of submitting to terms which involves
the sacrifice of rights protected by the Constitution, or by standing
on such rights and appealing to the preventive powers of a court
of equity. When such appeal is made, it is the duty of Government
to protect the one against the many as well as the many against the
one.
The decree was therefore affirmed.
L abor

O r g a n iz a t io n s — C o n so l id at io n

O ver

P rotest — R u l es —

Powell v. United Asso
ciation of Plumbers and Steamfiiters of United States and Canada,
Court of Appeals of New York (May 5,1925), 11^8 Northeastern Re
porter, page 7%8.—Thomas F. Powell, as president of local union No.
299, of the city of White Plains, and others brought a bill for an in
junction against the United Association of Plumbers and Steamfitters
of United States and Canada to stay the enforcement of the defend
ant’s resolution consolidating the local unions during the pendency
of the appeal already taken by the plaintiffs to the convention of the
members. Judgment was given for the plaintiff and unanimously
affirmed by the appellate division, by which it was held that the
resolution was passed in violation of the constitution and by-laws,
and was held illegal and its enforcement restrained forever.
The court of appeals on reviewing the record observed, first, that:
Courts are reluctant to interfere by injunction in controversies that
touch the internal management of foreign corporations [citing cases].
Their reluctance may be overcome by the presence of some urgent
need, but relief is seldom, if ever, to be extended beyond the call of
the emergency.
V

io l a t io n —

C ourt R e v ie w — I n j u n c t io n —

The threatened disruption of local unions existing within the State
made it proper, in the opinion of the court, to preserve the status

DECISIONS OF THE COURTS

quo pending an appeal to the convention. Relief beyond that, if
granted, “ should wait upon the exhaustion of the remedy within
the corporation and the result of the appeal.” I f the merger is an
nulled within the corporation, it is obvious that resort to the courts
would be unnecessary; and, if sustained, there would be need to
consider the fitness of going farther, and the effect of subsequent
approval with respect to prior irregularities. These problems were
held by the court as being “ incapable of solution till * * * they
become definite and concrete.”
The judgment of the appellate division and that of the special term
was therefore modified by striking out the declaration that the reso
lution and all acts thereunder are null and void, and by providing
that the injunction should continue only until the action of the
convention; otherwise affirming it.

Labor

O r g a n iz a tio n s — C o n sp ira c y — I n t e r f e r e n c e

p lo y m e n t — C o n t r a c t as P r o p e r ty — I n j u n c t i o n —J.

w ith

E m

C. McFarland
Co. v. O'Brien*, United States District Court, Ohio (April 10, 1925),
6 Federal Reporter (2d), page 1016.—The plaintiff, the J. C.
McFarland Co., was a subcontractor under the George A. Fuller
Construction Co., general contractor, for certain work in the con
struction of a large building under erection in the city of Cleveland
for the Brotherhood of Locomotive Engineers Building Association
(Inc.). The company filed a bill on March 25, 1925, to enjoin un
lawful interference by all of the defendants with the performance
of its work. Upon hearing, all the unions except the painters and
the George A. Fuller Construction Co. were exonerated, and the in
quiry then was whether the plaintiff was entitled to preliminary in
junction against the remaining defendants. The jurisdiction of the
district court was invoked upon the ground of diversity of citi
zenship.
The court first observed that upon the merits of this controversy
the case was not distinguishable from Central Metal Products Cor
poration v. O’Brien (5 Fed. (2d) 389), and the law as therein stated
was approved without being restated. (See Bui. No. 344, p. 153.)
The plaintiff had substantially completed his contract, nothing re
maining to be done except the finishing down of the doors and
metal trim, and this work could be satisfactorily performed, accord
ing to the assertion of the plaintiff, only after all the building trades
had finished their several tasks. Plaintiff intended to do this work
with the same union carpenters it employed to install the work. The
officers of the painters’ union demanded that this finishing-down
work should be allotted to. members of their local unions and that
their workmen should put on a coat of varnish and rub or finish

LABOR ORGANIZATIONS

down the doors and metal trim in place. The affidavits showed that
the coat of varnish was unnecessary and a pure waste, but the de
mand 46included a total wage expenditure of $3,800.” The Fuller
Co. insisted that the plaintiff comply with this demand, and repeated
the insistence from time to time until February 25, when the Fuller
Co. advised by letter that it had decided to take the 44cleaning
down” out of plaintiff’s contract and do the work itself. The
Fuller Co., acting in accordance with its notice to plaintiff, made
an agreement with the W* P. Nelson Co. and the agents of the de
fendant local unions that the work should be done by the Nelson Co.
and that it would employ members of the said local unions. At the
time the bill was filed this work of finishing or cleaning down was in
progress.
The district court observed that the contract of the plaintiff was
property which is protected by law against conspiracy, and that
local labor unions have no right to coerce a contractor to join in a
conspiracy to deprive a subcontractor of his rights under the subcon
tract by threats of withdrawing their members from work for other
subcontractors on the building and other buildings in which the
contractor was interested, regardless of any provision in the labor
union constitution and any custom or practice of contractors in deal
ing with the local union.
It was held that the subcontractor had a right to employ any com
petent workmen to perform the work required by the contract. The
court further held that in law the members of the defendant union
44had the right to procure this work from the plaintiff by the same
methods as other workers not members of their union would have a
right to procure it.” While they had the right to combine and act
through agents to apply for work and to bargain collectively as to
terms upon which it was to be done, it was held that they did not
have the right to conspire to deprive the subcontractor of his prop
erty in the contract.
After hearing all the evidence the court, while recognizing that
the plaintiff had good cause for grievance, held that the preliminary
injunction sought for was not the proper remedy. The function of
an injunction is 44to afford preventive relief, not to redress wrongs
already committed,” or, as otherwise stated, 44its function is not to
afford a remedy for what is past, but to prevent future mischief, not
to punish or compel persons to do right, but to prevent them from
doing wrong.” I f granted in this case it could only be complied with
44by compelling a breach of a contract with a third party not a de
fendant.”
The plaintiff contended that unless the 44finishing down was
well done the work will not present a good appearance, and may

100

DECISIONS o r

the

courts

injure plaintiff’s trade reputation.” While this complaint was not
without weight in the opinion of the court, it was not deemed ade
quate to warrant the injunction, for the reason that the plaintiff’s
right at law to recover in one suit upon its contract was regarded
as legally adequate.
The application for the preliminary injunction was accordingly
denied.
L abor

O rganizations— C onspiracy— I nterference w ith E m
L evied A gainst E mployer— People v. Walczak,

ployment — F ines

Supreme Court of Illinois (December 16, 1924), 145 Northeastern
Reporter, page 660.— Stanley Walczak and others were convicted
of conspiracy to extort money from certain persons and to interfere
with their business. The conviction was affirmed by the appellate
court, and some of the defendants brought error to the supreme
court. It appeared from the evidence that James Starnos and his
brothers were engaged in the hotel, bakery, and restaurant business
in Chicago, and that in April, 1919, their contract with the waitresses
expired. A new contract was j>resented to Stamos by a union
delegate, but he refused to sign it and suggested that it be taken to
the president of the restaurant association. The delegate refused to
do so and took the union card out of the shop and ordered the girls
who were at work in the place to walk out, which they did. The
following morning there was a general strike at all the restaurants
in South Chicago. Stamos and his brothers went to see a com
mittee of union delegates, composed of the defendants Yind, Blevins,
Boatman, and a stranger. According to the evidence, Stamos and
his brothers were forced to pay the sum of $1,200 and to sell two
of their places of business.

The conspiracy charged was shown to have been committed as
early as April, 1919, and as late as October, 1919. The law under
which the defendants were convicted became effective on July 1,
1919. Fines of $1,000 and $2,000 and indeterminate sentences to
the penitentiary were assessed. The supreme court held that they
could be indicted and convicted under the law because—
Conspiracy is a continuous offense, and the time of conspiring is
to be measured from the commission of the last overt act in pur
suance of the conspiracy, and not merely from the origin of the
conspiracy.
The court instructed the jury in part:
The court instructs the jury that no labor union has any lawful
right to levy a fine against a person not belonging to their union,
and any attempt to levy a fine against such person, and to collect

LABOR ORGANIZATIONS

101

the same by inducing his men to quit his employ, is illegal, and a
conspiracy to accomplish this end is a violation of criminal law of
this State.
The supreme court held that while the union labor was “ in no wise
responsible for the unlawful acts of plaintiffs in error, this instruc
tion was based upon the evidence in the case and its giving was not
error.”
The evidence sustained the finding of the appellate court and the
supreme court affirmed the judgment.

L abor

O r g a n iz a t io n s — C o n s p ir a c y — I n t e r f e r e n c e W i t h P e r
of C o n t r a c t — I n j u n c t i o n — J u r i s d i c t i o n a l A w a r d s —
v. Fackenthal, United States Circuit Court of Appeals,

form ance

O'Brien
Sixth Circuit (May 16,1925), 5 Federal Reporter (2d), page 889.—
T h e C en tra l M eta l P r o d u c ts C o r p o r a tio n b r o u g h t p ro c e e d in g s a g a in st
one O ’B rie n , h ead o f th e S lieet-M eta l W o r k e r s 5 U n io n , f o r an in ju n c
tio n a g a in st in te rfe re n ce w ith certa in con tra cts on b u ild in g s b e in g
erected f o r th e c ity o f C lev ela n d . T h e p la in tiff m a n u fa ctu re d d o o rs
an d w in d o w s, a n d lik ew ise e m p lo y e d w o rk m e n f o r th e ir in sta lla tio n ,
h ir in g u n ion carp en ters to p e r fo r m

th e w o rk .

T h e sheet-m etal

w ork ers cla im ed th at th is w o r k fe ll in th e ir ju r is d ic tio n , an d d e
m an d ed th e co e rcio n o f th e c o n tra cto r to d isch a rg e th e ca rp en ters
and g iv e them the w o r k u n d er th reat o f strik e b y oth er w o rk m e n o n
th e b u ild in g s so as to p re v e n t th e ir co m p le tio n .

T h e c it y y ie ld e d ,

an d “ becam e in a sense e n g a g e d in a jo in t co n s p ir a c y w ith th e sheetm etal w ork ers t o co m p e l the p la in tiff to co n d u c t h is business in a
w a y d ista stefu l to h im .” A n in ju n c tio n w as a llo w e d re stra in in g th e
c ity fr o m b re a ch in g its co n tra ct w ith th e M e ta l P r o d u c ts C o r p o r a
tio n an d again st in te rfe re n ce w ith th e S h eet-M eta l W o r k e r s ’ U n io n
(278 F e d . 827; see B u i. N o. 344, p a g e 153). F r o m th is in ju n ctio n
an a p p ea l w as taken , w h ich w as d ism issed on th e g r o u n d th a t th e
w o rk h a d been co m p le te d , an d th e qu estion b ecom e m o o t (284 F e d .
850). A su p p lem en ta l b ill w as filed la ter, settin g fo r t h issues a p
p a re n tly alive, a n d th e d is trict co u rt a g a in o r d e r e d an in ju n c tio n ,
fr o m w h ich th is a p p e a l w as taken.

T h e co u r t o f a p p ea ls a d o p te d

th e reasons set fo r t h b y th e d is tr ic t co u rt as g ro u n d s f o r its o w n
a ction , on e o f th e ju d g e s dissen tin g.

The court of appeals points out that the right to strike as a general
proposition is not questioned, the point involved being the limits that
exist. The Sheet-Metal Workers’ Union had not been in an em
ployment relation with the city, and there was no controversy be
tween it and this union. The plaintiff below had a valid contract
with the city, and the obvious purpose of the metal workers’ union
93383°—26------8

102

DECISIONS OF THE COURTS

is to procure its disruption by threatening to injure the city, owner
of the buildings, who was itself in no wise concerned in the con
troversy.
The opinion of the district judge, quoted from in this connection,
states that the metal workers relied chiefly for their justification on
the claim that they were engaged in enforcing an award made by
a so-called “ national board of jurisdictional awards.” This is an
unofficial group, composed of representatives of various interested
bodies and organizations, formed for the purpose of settling disputes
of this nature. The carpenters refused to accept the findings, and the
metal workers undertook to compel its acceptance. Judge Westenhaver, in speaking to this point, said that their contentions were for
“ impossible rights.” Neither Congress nor any State legislature may
enact a law determining who should and who should not accept
certain kinds of work and render certain classes of service. The fifth
and the fourteenth amendments guarantee the right to employment
as a part of the right of life, liberty, and property. What legislatures
can not do “ no groups of labor organizations nor any extralegal
national board of jurisdictional awards may do.” Not only is the
purpose of establishing a monopoly in a certain group of workmen
for this kind of work an unlawful purpose, but the methods adopted
to enforce this monopolistic award are likewise illegal. Valid sub
sisting contracts were attacked by recourse to threats and intimida
tions, and directing their actions toward third persons in such a man
ner as to warrant classification as secondary boycotts.
The court of appeals sustained the finding in the lower court.

L abor

O r g a n iz a t io n s — C o n sp ir a c y — I n terfer e n ce

w it h

the

—V io l a t io n of I n j u n c t io n — C o n t e m p t —Taylor v. United
States, United States Circuit Court of Appeals, Seventh Circuit
(>September 19, 1924), ® Federal Reporter {2d), page 4H.—L. R.
Taylor, Jacob Sink, and Patrick J. Hanahan were charged with a
conspiracy to violate an injunction of a Federal court, with a con
spiracy to violate the administration of justice, and with obstruc
tion of the mails. The injunction was issued during the shopmen’s
strike in July, 1922, enjoining various members of a labor organiza
tion from hindering or obstructing the operation of the Chicago &
Alton Railroad Co., and from destroying the property of the rail
road. While the injunction was in effect certain of the defendants
destroyed a railroad bridge near Grieg, 111., and another one known
as the Drake bridge. Two of the defendants were acquitted, while
the three above named were found guilty and duly sentenced. They
then brought error to the circuit court of appeals.
M

ails

LABOR ORGANIZATIONS

103

It was contended that the indictment was too indefinite and un
certain, and that it did not charge the defendants with the commis
sion of an offense. The indictment charged the violation of section
37 of the Criminal Code (Comp. St*, sec. 10201), which provides:
“ I f two or more persons conspire either to commit any offense
against the United States or to defraud the United States in any
manner or for any purpose,” etc. The defendants admitted that
they may have entered into an agreement or conspiracy to commit
certain acts, but deny that the object, as set forth in the counts of
the indictment, constitutes “ an offense against the United States.”
The district court held that the violation of an injunction issued by
a Federal court 44is an offense against the United States,” and in
charging the jury the district judge said:
It is also the law that it is an offense against the United States for
one to violate an injunction issued by a court of the United States.
The court of appeals took the same position as the district court
in holding that the violation of the injunction of a Federal court
was an offense against the United States.
The court of appeals, speaking through Mr. Justice Evan A.
Evans, said:
It is not necessary for the pleader in a conspiracy count to define
the substantive crime—the object of the conspiracy—with the same
particularity as would have been necessitated if the substantive
crime, rather than the conspiracy, was the offense charged.
This was in answer to the criticism of the indictment that there
44is no allegation that the defendants knew that the alleged cars
were carrying the mails, nor any allegation that they conspired to
knowingly and willfully obstruct and retard the mails.” Applying
what the judge said above, and examining the indictment, the court
found the defendants 44then and there unlawfully, knowingly, will
fully, and feloniously did conspire, combine * * * to commit
an offense against the United States * *
The court of appeals
continued:
Where the conspiracy is 44for the purpose of unlawfully, know
ingly, and willfully obstructing or retarding the movement and
passage of certain United States railway post-office cars,” it is un
necessary to specifically allege an unlawful criminal intent, or to
specifically allege that the Chicago & Alton trains to the knowledge
of plaintiffs in error carried mail.
The evidence unquestionably 44connects plaintiffs in error with
others in a combination or conspiracy to destroy the bridges,” but
they insist that what they intended doing was with no intent to ob
struct justice or to interfere with the mail. The court of appeals
held it for the jury 44to weigh the acts of the defendants against
their professed innocent intentions.”
The judgment was accordingly affirmed.

104

DECISIONS OF THE COURTS

L abor
O r g a n iz a t io n s — C o n s p ir a c y — P i c k e t i n g — I n j u n c t i o n —
C l a y t o n A c t — Waitresses Union,, Local No. 2^8, v. Benish Restaurant

Co. (Inc.), United States Circuit Court of Appeals, Eighth Circuit
(June Ip, 1925), 6 Federal Reporter (2d), page 568.— I n 1921 th ere
w ere tw o B e n ish co r p o r a tio n s , on e a restau ran t c o m p a n y a n d th e
o th e r a b a k in g co m p a n y , on e a M isso u ri c o r p o r a tio n a n d th e o th e r a
D e la w a re co r p o r a tio n , a n d in th a t y e a r th ere w as a strik e in b o th
con cern s. T h e r e a fte r th e tw o con cern s so ld o u t to th e B en ish R e s
ta u ra n t C o.

( I n c . ) , co m p la in a n t in th e presen t case.

T h e la tte r

b r o u g h t su it in a F e d e r a l co u rt to e n jo in th e W a itresses U n io n , L o c a l
N o.

249,

an d oth ers fr o m th e p e a c e fu l p ic k e tin g o f th e restau ran t.

T h e p r o o fs d isclo se d th a t at th e tim e th e p ic k e tin g w as d on e, in
v io la tio n o f th e o r d e r so u g h t to b e rev iew ed in th is case, th ere w as n o
strik e on a m o n g th e em p loyees o f th e presen t B e n ish c o m p a n y , n o r
w as th ere a n y g r o u n d o r reason f o r a n y such strik e o f th e em p loyees
sh ow n . T h is a p p e a l b r o u g h t u p f o r re v ie w the o r d e r g r a n tin g th e
p la in tiff a te m p o r a r y in ju n c tio n re stra in in g d e fe n d a n ts fr o m the
p e a ce fu l p ic k e tin g o f co m p la in a n t’s p la ce o f co n d u ctin g th e restau
ran t.

T h e re w as n o d isp u te betw een th e c o m p a n y an d its em p loyees,

n o r h a d th ere been a n y strik e sin ce th e c o m p a n y h a d been fo r m e d ,
an d th ere h a d been n o strik e f o r m o re th a n tw o y ea rs a m o n g th e
em p loyees o f eith er o f the tw o co r p o r a tio n s th a t s o ld ou t to th e
presen t co m p a n y .

The circuit court of appeals, on reviewing the record, held that the
right of the Benish company to keep its business free from molesta
tion or interference “ through an unlawful confederacy or conspiracy
between two or more third parties is a property right under section
20 of the Clayton Act (Comp St., sec. 1243d), and that an order
enjoining what is called peaceful picketing by members of a labor
union under such circumstances is not in violation of the terms of the
Clayton Act. In this view of the law the trial court was clearly
right.5’
The temporary order was therefore affirmed.
L abor

O r g a n iz a t io n s — C r im i n a l

A d v o c a c y o f C r im i n a l A c t s — People

S y n d ic a lis m — C om m u n ism —

v. Ruthenberg, Supreme Court
of Michigan (December 10, 1924), ®01 Northwestern Reporter, page
358.—Act No. 255, Public Acts of Michigan, 1919, defines the crime
of criminal syndicalism, specifies acts constituting the offense, and
fixes the penalty. The definition follows:
S e c t i o n 1. Criminal syndicalism is hereby defined as the doctrine
which advocates crime, sabotage, violence, or other unlawful methods
of terrorism as a means of accomplishing industrial or political
reform. The advocacy of such doctrine, whether by word of mouth
or writing, is a felony punishable as in this act otherwise provided.

LABOR ORGANIZATIONS

105

A national delegate convention of the Communist Party of Amer
ica was called to meet at Bridgman, Berrien County, State of Michi
gan, in August, 1922. The defendant, Charles E. Ruthenberg, was
present at the convention, being a member of the central executive
committee of the Communist Party of America, and, according to his
own testimony, a paid employee of the Communist Party and of the
Workers’ Party. Federal officers traced the convention place, recog
nized certain communists in attendance, and laid the matter before
the county sheriff. The communists recognized the Federal officers
and planned to disperse, many of the delegates leaving hurriedly.
The sheriff, with deputies and Federal officers, visited the convention
place, arrested the defendant and 16 others without warrants, seized
their baggage, and put them in jail. A search was made of the
convention grounds and many hidden records and documents were
found. The defendant was convicted of criminal syndicalism, and
he excepted before sentence.
Ruthenberg contended that the statute above referred to violated
the State constitution and the fourteenth amendment to the Con
stitution of the United States. The supreme court said that “ to so
hold would require us to say that it is violative of the Constitution
to make it a crime for one in sympathy with and on his own volition
to join in an assemblage of persons formed to teach or advocate
crime, sabotage, violence, or other unlawful methods of terrorism as
a menace of accomplishing industrial or political reform. We can
not make any such holding.”
The second query was whether the statute prevented freedom of
speech, and to this the supreme court said:
This statute reaches an abuse of the right to freely speak, write,
and publish sentiments, and is squarely within the accountability
allowed to be exacted in the very provision invoked. This statute
does not restrain or abridge liberty of speech.
The reasons advanced against the constitutionality of the statute
had been urged against other similar acts in other jurisdictions, and
the court said that they had been held to have no merit. “ The act
does not violate the fourteenth amendment to the Federal Consti
tution.” The legislature may, to protect persons and property, “ de
nounce as criminal specified acts inimical thereto, and make guilt of
an offender rest upon his voluntary act, without any felonious intent.”
On the question whether the Communist Party of America was a
group, society, or assemblage of persons formed to teach or advocate
the doctrines of criminal syndicalism, the record showed that:
They spurn the ballot and appeal to direct force. They are under
resolve to destroy by force and arms the existing government, na
tional and State, and the supporters thereof who possess the manhood
of resistance. They consider their present rights and liberties as

DECISIONS OF THE COURTS

106

mere license for working the destruction of existing society. They
have pledged allegiance to the Third International, a foreign body
inimical to a free people, and are carrying out its commands in our
midst. Their doctrines teach ultimate insurrection and civil war,
with present criminal activities leading up thereto. Their tactics
involve the cowardly purpose of injuring until they can destroy.
They plan the looting of the Nation and invoke its laws to protect
them while instilling their doctrines. The freebooters and pirates of
old were small fry compared with their modern brethren. Their
hope is to find opportunity to commit crime. Their creed is that of
terrorism and violence. They are the red thread of Russian com
munism, and their avowed purpose is the destruction of the Govern
ment of the United States by force.
It was contended that there had been no overt act by the Com
munist Party committed within the State, and no showing of any
intent to commit any in the immediate future. The court held that
the statute “ does not make criminality dependent upon the commis
sion of an overt act. It reaches those who advocate or teach the
commission of crime as a means to accomplish an end, and those
who, by choice, assemble with them.” Quoting from State v. Laiindy
(103 Or. 443, 204 Pac. 958), the court said:
I f it is within the power of the legislature to declare that a given
act, when done, constitutes a crime, then it is likewise within the
power of the legislature to declare that to advocate the doing of
such act is a crime.
And this was held to apply “ with equal force to one who volun
tarily joins an assembly formed to teach or advocate criminal syndi
calism.”
The conviction was affirmed and the circuit court advised to pro
ceed to judgment.
L a b o r O r g a n iz a t io n s — E x c l u s i o n

M e m b e r— R e f u s in g T r a n s

Union No. 65 of Amalgamated Sheet
Metal Workers’ International Alliance v. Nalty, United States Cir
cuit Court of Appeals, Sixth Circuit {June 8, 1925), 7 Federal Re
porter {2d), page 100.— T h e A m a lg a m a te d S h eet M e ta l W o r k e r s ’
fer

C a rd — D am a g e s — Local

In te rn a tio n a l A llia n c e w as a u n io n o f m en e n g a g e d in th e sheetm eta l w o rk e rs5 c r a ft .

I t is m a d e u p o f lo c a l u n ion s, a m o n g w h ic h

are L o c a ls N o. 12, o f P itts b u r g h , a n d N o.

65,

o f C lev ela n d .

S te p h e n

J . N a lty w as a m em b er o f the P itts b u rg h lo ca l, a n d secu red fr o m i t
a tra n sfe r ca rd on m o v in g to C le v e la n d to liv e .

H is a p p lic a tio n to

th e C lev ela n d lo c a l w as re fu se d , a n d subsequent a p p lica tio n s w ere
refu sed .

N a lty file d a cla im a g a in st th e C le v e la n d lo c a l f o r losses

resu ltin g fr o m th e re fu s a l to a d m it h im to m em b ersh ip .

fe w

m on th s la ter a m em ber o f th e P itts b u r g h lo c a l cam e to C le v e la n d ,
m et th e ex ecu tiv e officers o f th e C le v e la n d lo c a l, a n d as a resu lt it

LABOR ORGANIZATIONS

107

was proposed that Nalty procure another transfer card and present
it. Nalty contended that the proposed acceptance was conditioned
upon his waiving his claim for losses ensuing from the previous re
fusal. The general executive committee considered informally plain
tiff’s claim and confirmed the action of Local No. 65 in refusing to
accept his transfer. The following year, in July, 1922, a rehearing
was had in New York, at which time the decision of the' Cleveland
local was again affirmed. Nalty sought employment in Cleveland
during this time, but not having a card in the local was unable to
procure employment in his trade. He then instituted a suit in the
Federal court for damages, securing judgment, on which the union
sued out a writ of error. The circuit court of appeals found on
reviewing the records that at the time of the refusal to admit the
plaintiff upon his transfer card negotiations with employers for an
adjustment o f the wage scale were in progress, the defendants con
tending that this was equivalent to a lockout, so as to entitle the
local union to refuse to accept a transfer card, under the constitution
of the international union, which provides in part:
The transfer card of a member of a local union attached to this
International Alliance shall be recognized by the union in which he
desires to deposit it upon the payment of the difference, if any, of
the initiation fee of the local union to which he belongs and the
union in which he desires to deposit it, accompanied with an official
receipt, except in localities where strikes or lockouts exist.
The court ruled there was no lockout, and in any case the wage
scale was settled before various refusals to issue the card, so that this
claim was rejected.
The defendants insisted that the decision of the union can not bev
reviewed by the courts, but the circuit court of appeals was of the
opinion that a member of the union has an action at law for dam
ages for wrongful exclusion or suspension when, as in this case, the
decision is not in accord with the union’s constitution. The court
found no provision in the constitution or by-laws that a member
of the order must resort to its tribunal for redress nor that, having
done so, the parties are bound by the decision.
The defendant contended that the plaintiff was required to go to
work even in another city in mitigation of damages, but the court
held such not to be the case, saying:
It would be too much to expect one who is lawfully entitled to
membership in a local union, and who has been denied that right, to
abandon his home and go to another city for the purpose of mitigat
ing his losses.
The decision of the district court giving the plaintiff damages
was accordingly affirmed.

108

DECISIONS OF THE COURTS

L abor O r g a n iz a t io n s — E x p u l s io n

L ocal — P o w er

C ourts —

Greenwood v. Building Trades Con/noil of Sacramento et a lC a li
fornia District Court of Appeal, (February 5, 1925), 233 Pacific
Reporter 823.—Local No. 162 of the Sheet Metal Workers’ Union
was chartered*by the Amalgamated Sheet Metal Workers’ Inter
national Alliance, which in turn was affiliated with and chartered
by the American Federation of Labor (building trades department).
The Building Trades Council of the State of California is also
affiliated with and chartered by the American Federation of Labor,
and the Building Trades Council of the City of Sacramento is duly
chartered by the State organization. All of the organizations are vol
untary and are connected with the American Federation of Labor.
About January 1, 1922, Local No. 162 was suspended by the Inter
national Sheet Metal Workers’ Alliance, and thereupon ceased to
be a member of the Building Trades Council of the City of Sacra
mento. About September 1, 1922, Local No. 162 was reinstated
by the International Alliance, and about October 1, 1922, applied
to the Sacramento council for admission. It was refused on the
ground that there were already delegates representing an organi
zation known as Sheet Metal Workers’ Union No. 2 of the city of
Sacramento. In March, 1923, at the annual convention of the
Building Trades Council of the S tate of California, the said coun
cil approved, ratified, and confirmed the action of the Sacramento
council in refusing to seat delegates representing Local No. 162.
Shortly thereafter the question was taken to the executive council
(building trades department) in behalf of Local No. 162, and said
executive council rendered a decision and recommendation that all
“ dual ” local unions associated with the Building Trades Council
of the State of California or a local building trades council should
immediately be dropped, and that the State building trades council
and local councils use their good offices to have independent or dual
locals affiliate with their respective international unions. Both the
Sacramento council and the State council disregarded the decision of
the executive council, and the next tribunal before which the matter
could be heard was the annual convention of the building trades
council department of the American Federation of Labor in October,
1923, at Portland, Oreg.
Pending the settlement of the controversy the Sacramento council
sought to collect from the members of Local No. 162 the sum of
$4.50 per quarter, and as consideration agreed to issue quarterly
working cards. This sum was to be held in escrow until the time
of settlement of the dispute. Some dues were paid under this agree
ment, when further payment by the members was refused. The
explanation given for the imposition of this tax was to place mem
bers of Local No. 162 on equal footing with Local No. 2. It was

LABOR ORGANIZATIONS

109

called to the attention of several employers that the members of the
building crafts affiliated with the council could not work on jobs
with persons not holding quarterly working cards, and also attention
was called to the fact that members of Local No. 162 did not hold
such cards. This litigation involved only a dispute between members
of the voluntary associations named herein, and an injunction or
restraining order was issued at the instigation of Local No. 162,
enjoining and restraining the members of the Building Trades
Council of Sacramento from refusing to work with members of
Local No. 162, and also restraining the collection of the $4.50 per
quarter. The temporary injunction was granted and the defendants
appealed.
The district court of appeal, upon reviewing the record, made a
few preliminary observations to the effect that courts will not inter
fere in controversies between members of voluntary associations
until all remedies within the association are exhausted, and though
a local union seeking reinstatement as a member of a building trades
council will suffer hardship during a period necessary to exhaust
internationl by-laws and constitutions, the court held it furnished no
ground for interposition.
The court was of the further opinion that there “ is no contro
versy between the parties that, as a general proposition, a court of
equity will not interfere to prevent the collection of money, that
being a pure matter of law between the respective parties.” The
law was also considered well established in California that “ the
right to quit work, either individually or collectively, can not ordi
narily be restrained.”
It was pointed out that lack of membership was the fundamental
difficulty in the case, and were the court to order admission to mem
bership the Sacramento council, being purely a voluntary association,
“ could immediately defeat that decree by voluntary dissolution,” but
when any property rights are involved the decree of the court “ can
not be so defeated.”
Mr. Justice Plummer, speaking for the court, said:
It must be remembered that all of these associations are purely
voluntary organizations, not governed by any statutes, and therefore
permitted, so far as the law is concerned, to adopt any regulations
they may see fit in relation to their local membership. * * * When
the fact of membership has once been established, the court will,
where property rights are involved, restrain the violation of the rules
governing voluntary associations at the behest of anyone who has
suffered injury by such violations. * * * In the instant case the
plaintiffs are not members of the Building Trades Council of the
City of Sacramento, and they have no representation in such council.
We do not well see how the relation of trustee and cestui que trust
can be held established or shown in this case so long as membership

110

DECISIONS OF THE COURTS

by Local No. 162 in the Building Trades Council of the City of
Sacramento is wanting.
When this membership has once been acquired, protection against
illegal expulsion will be afforded by the courts.
The fact that one may suffer injury by reason of nonadmission to
membership in a voluntary association affords no ground for relief.
Membership in a voluntary association is a privilege which the
society may afford or withhold at its pleasure, and a court of equity
will not interfere to compel the admission of a person not regularly
elected, even though the arbitrary rejection of the candidate may
prejudice his material interests, where no rights of property or of
person are affected, and no rights of citizenship are infringed upon.
Having arrived at the conclusion that the injury by nonadmission
afforded no ground for relief, the court was of the opinion that legal
right to exclude Local No. 162 was fully established, irrespective
of the motives of the Sacramento council. If by so doing the exclu
sion runs counter to some regulation of a superior organization, the
penalties were held to be matters to be enforced by such superior
organization.
The judgment appealed from was accordingly reversed.
Labor Organizations— Expulsion o f Member— L ia b ility fo r
Damages— Seniority E ights— Order of Railway Conductors v.

Jones, Supreme Court of Colorado (July 6, 1925), 239 Pacific Re
porter, page 882.— E. F. Jones brought an action against the Order of
Eailway Conductors and others for procuring his discharge, as
alleged, by means of persuasion, threats, coercion, and intimidation,
as a conductor on the Denver & Interurban Railroad, and for pre
venting him from obtaining employment as conductor or in any
capacity other than as conductor on a branch line four months of
the year. The real defense of the defendants was justification, and
they sought to prove it by showing they had never procured his
discharge or prevented his employment except when such employ
ment was in violation of the right of other employees of the same
class as plaintiff under seniority rights fixed by a contract with the
railway company, to which the plaintiff was a party. The district
court awarded the plaintiff $30,000 actual and $20,000 exemplary
damages, from which judgment the defendant secured a writ of
error. The supreme court was of the opinion that the defense was
sound if supported by the evidence, and it observed that the court
seemed to have left it to the jury to see whether there was justifica
tion, and as to this there was no error. On reviewing the evidence
the supreme court held that the judgment could not be reversed on
this point because there was sufficient evidence to support the verdict.

To induce without justification an employer to break his contract
with his employee is an actionable violation of the plaintiff’s right

LABOR ORGANIZATIONS

111

to labor, in tlie opinion of the court on review. Justification on the
part of the defendant must be based upon a right equal or superior
to the right of the employee whose contract the employer is per
suaded to break. As to the instant case the finding of the jury was
that there was no such justification. The contract in this case was
supported by a so-called schedule and roster agreed on between the
employees and the employers, which stated the class of each man
employed by the company and his seniority in that class. One
Parker, by his decision as arbitrator, gave the plaintiff and others
certain seniority rights on the Colorado & Southern Ry., which is
under the same management as the Denver & Interurban. It ap
peared from the correspondence of the officers of the defendant that
they deliberately planned to eliminate the plaintiff as to his senior
ity rights. In tins they were successful, and the effect was to deprive
plaintiff of his position on the Fort Collins division and give him one
that employed him for four months of a year. Parker’s decision
became the contract, and the lodge joined in the action by a resolu
tion in 1920. The supreme court put the matter in another form;
that is, if the defendants were attempting to maintain rights of their
own which were equal or superior to his, “ there would be sufficient
justification of the course they took,” but, “ since they left the con
struction of it to Parker, to whose decision all agreed, efforts to de
prive the plaintiff of his seniority given by that decision were open
to the claim that there was no longer an equal or superior right to
enforce, and therefore no justification.” Several decisions were cited
by the court in connection with this subject.
Another defense of the union was that the employment was at will,
and that the railroad company could discharge the plaintiff without
the defendants becoming liable, but the supreme court held that it
was not a good defense, since an employee has a right to the free exer
cise of such will. Most of the assignments of error as to instructions
and damages were not considered by the supreme court, as the case
was reversed on the ground that the action was barred by the statute
of limitations, the evidence showing or tending to show that the
plaintiff knew of the unlawful actions of the defendants in 1913,
more than six years before the suit which was brought December
16, 1921.
The judgment was reversed for the reason named and a new trial
granted.
L abor O rganizations— E xpulsion of M ember— E ight to M em
v. Berry , Supreme Court of New York ,

bership— R ules— Simons

Appellate Division {February 2, 1925), 208 New York Supplement,
page 2 0 —David Simons brought an action as a member of a vol

112

DECISIONS OF THE COURTS

untary unincorporated association, the International Printing Press
men’s and Assistants’ Union of North America, against George L.
Berry, as president of the union named. Simons alleged an unlaw
ful attempt to expel him from the union, and demanded judgment
to the effect that the attempted expulsion be declared wholly inef
fective and void, and that the union be required to issue its usual
card of membership; also that he have an injunction against any
representations that he was not a member in good standing, or
against “ calling out any member of said union from any newspaper
printing establishment in which plaintiff may be employed.” Dam
ages were also asked for.
Motion was made to dismiss the complaint as insufficient, but the
trial court denied this motion, whereupon an appeal was taken, the
appellate division taking the position that “ the complaint is so vague
and indefinite that it is quite impossible to determine whether the
action is brought to set aside an expulsion of plaintiff from the union
or to compel his acceptance as a member upon an application for
reinstatement.” It was also said to be beyond the power of the
court “ to compel a voluntary unincorporated association to either
admit or reinstate an applicant for membership.” The order refus
ing dismissal of the complaint was therefore reversed and the motion
granted, whereupon appeal was further taken to the court of appeals.
On this final appeal (Simons v. Berry, 240 N. Y. 463, 148 N. E.
636) the court found the complaint “ inartificial and indefinite,”
but under the rule requiring a liberal construction it took the view
that Simons was a member in good standing of the union, “ subject
to expulsion only upon written charges and after a hearing upon
notice.” As no charges had been made or hearing given, any notifi
cation that he had been expelled was without foundation, though
the action of the officers in so doing “ made it impossible for him
to find employment in his trade.” This was said to state a cause of
action for equitable relief. There appeared to be no provision for
a remedy by appeal to any organ within the association. “ Equity
will enjoin the denial to a member of the privileges of membership,
where the denial, if continued, will work irreparable injury.”
The judgment of the appellate division was therefore reversed and
the order of the special term affirmed with costs.

L abor O r g a n iz a t io n s — I n j u n c t io n — C o n t e m p t — L ib e l — Vulcan
Detinning Co. v. St. Glair, Supreme Court of Illinois {December l6,
1924), 11±5 Northeastern Reporter, page 657.—The Yulcan Detinning
Co. announced in December, 1921, that at the expiration of its exist
ing contracts with labor unions it would conduct its plants on the
“ open shop ” policy. The unions called a strike upon the refusal of

LABOR ORGANIZATIONS

113

the company to deal with their representatives, and on January 5,
1923, the company filed a bill for an injunction restraining the men
from interfering with the employees and 44from interfering with the
business and destroying the property of the company.” The injunc
tion was issued against certain persons, including the defendant J.
N. St. Clair, and they were restrained from in any manner whatso
ever, 44by use of threats of personal injury, intimidation, or sugges
tion of danger, interfering with, hindering, obstructing, or stopping
any person employed by the Yulcan Detinning Co.,” and from applying opprobrious epithets 64to any of the employees of, or to any per
son seeking employment with, said corporation, and from calling any
of said employees 4scabs’ or other offensive, scurrilous, or oppro
brious names.”
The following notice appeared in two of the city newspapers:
At their meeting held on February 18, 1923, the members of
Yulcan Federal Union No. 15107, voted unanimously to continue
their strike against the Vulcan Detinning Co. until an honorable
agreement is reached. Those voted as traitors are ex-members W. H.
Thomas and John Krapljon, now in the Yulcan works, and Charles
Heresheway, at the Western Glass WorksA Former union men now
at the Yulcan works are George Sourby, Andrew Galick, and Gus
Samuelson. No red-blooded man will steal a real man’s job. We
are out to win and will win. Vulcan Federal Union 15107. By
order of the organization.
On February 24, 1923, a petition was filed asking that the court
require St. Clair, the president of the local union, and others to show
cause why they should not be adjudged guilty of contempt. The
chancellor found St. Clair guilty of contempt of court on the basis
of the newspaper article and fined him $500. The defendant
appealed.
The supreme court reviewed the terms of the injunction first:
When a court orders an injunction which is so broad in its terms
that it invades fields of human activities it had no right to invade,
its order will be modified or set aside on review, and this orderly
remedy by review is always open to any person who feels that his
constitutional rights have been invaded. Equity has no right to act
for the sole purpose of preventing the commission of crime or the
utterance of a libel, unless the act which amounts to a crime or a
libel threatens an irreparable injury to property. In order to entitle
one to relief by injunction against unlawful interference with his
business, positive and substantial injury must be shown, and where
it appears that the injury is not of an irreparable nature, and that
the wrongs suffered by the plaintiff may be fully and adequately
redressed by an action at law for recovery of damages, relief by
injunction should be denied. Injunction is an extraordinary remedy,
and, where human liberty is involved, the writ should be used with
great caution.

114

DECISIONS OF THE COURTS

It appeared from the findings of the chancellor that the only
violation of the injunction was the publication of the notice. The
bill was brought by the company, the nonunion men not being parties
thereto. The supreme court was of the opinion that the injunction
was not sought by the company for the purpose of “ protecting the
name or the feelings of the employees, but was sought and entered
solely for the purpose of protecting the business and property of
appellee.” The court pointed out that the only question before it
was whether “ the order awarding the writ of injunction has been
violated by appellant doing an act injurious to the property or busi
ness of appellee, by intimidating or coercing its employees.” It
was such acts “ that the appellant was prohibited from doing.” In
deciding the question, the court said:
The notice does not call the employees of the appellee scabs. It
refers to three ex-members of the union as “ traitors,” and it is this
term which appellee says is an “ offensive, scurrilous, or opprobrious
name.” The Standard Dictionary says that a traitor is “ anyone who
acts deceitfully and falsely to his friends and joins their enemies.”
Therefore, if the order be construed to restrain mere application of
the term “ scabs, or other offensive, scurrilous, or opprobrious names,”
to appellee’s employees, we do not consider that the order was
violated.
The State constitution declares that “ every person may freely
speak, write, and publish on all subjects, being responsible for the
abuse of that liberty.” The court referred to this section, saying:
I f a court of equity has the power to restrain and punish members
of a labor union from speaking, writing, or publishing on the subject
of a dispute between the union and the employer, then the members
of the labor union are not such persons as are within the quoted con
stitutional provision. I f the right of a union man, or any other man,
to speak, write, and publish freely on any subject is abused to the
harm of another, the remedy is an action for damages, and that
remedy is deemed adequate.
The judgment was accordingly reversed, Mr. Justice Farmer dis
senting.
L abor O rganizations— I nterference w it h E mployment — C losed
S hop A greement— P rocuring D ischarge of N onunion W orker—
Harmon v. United Mine Workers of America, Supreme Court of A r

kansas (November 24, 1924),
Southwestern Reporter, page 84.—
J. W. Harmon was discharged from the employ of the Western Coal
& Mining Co. at the instance of the United Mine Workers of America,
a voluntary unincorporated association. Harmon was once a member
o f defendant association, but had been expelled because he joined the
Ku Klux Klan, it being against the constitution of the International
Union of the United Mine Workers of America for the members to

LABOR ORGANIZATIONS

115

belong to the ldan. The defendant association had a contract with the
coal company by which only members of the association should be em
ployed to dig or mine coal, and after Harmon’s expulsion from the
association the defendant insisted upon his discharge. Harmon then
brought suit for $5,000 actual and $5,000 punitive damages against
the association for prevailing upon the employer to discharge him.
Defendant demurred, and upon the demurrer being sustained the
plaintiff appealed. The supreme court, speaking through Mr. Justice
Humphreys, said:
The complaint only alleged an employment of appellant by the
Western Coal & Mining Co. at will. It was not alleged that the
employment was for a definite period. There can be no damages
resulting to an employee on account of a discharge from an employ
ment at will. The motive of the employer in discharging him is
immaterial, and can not be questioned. The discharge may have
been inspired by a bad motive, for the legal right to determine an
employment at will is absolute in either the employer or the employee
[citing Cusumano v. Schlessinger, 90 Misc. 287, 152 N. Y. Supp.
1081; see Bui. No. 189, p. 333].
L abor
O rganizations— I nterference
w it h
E mployment—
I njunction —Vail-Ballou Press {Inc.) v. Casey, New York Supreme

Court {October 3, 1925), 212 New York Supplement, page 113.—
The Vail-Ballou Press (Inc.) is engaged in the business, among other
things, of typesetting for books, and employs linotype operators,
proof readers, and hand men, which employment requires skilled
and trained employees, and whose training involves considerable
time and expense. The defendant is a voluntary unincorporated
association composed of persons employed in similar work, and is
a local union chartered by the International Typographical Union of
North America. Prior to March 6, 1921, the plaintiff conducted
a union shop, but a strike having occurred, it operated as a non
union shop from that date, and required its employees to enter into
a written contract by which they agreed to work for the plaintiff
for a period of four years, covenanting not to become members of a
labor union.
The plaintiff applied for an injunction to restrain the defendant
from threatening various of its employees to persuade them to
breach their contracts, on the ground that such acts would inflict
substantial and irreparable injury upon plaintiff’s business.
The supreme court, in considering the petition for an injunction
pendente lite, observed that “ it is manifest that no injunction may
issue except to prevent unlawful acts.” That workmen may legally
organize unions and strike to better their conditions was recognized
by the court, but if the workmen knowingly and intentionally inter

116

DECISIONS OF THE COURTS

fered with the contract rights of the employer with his employees,
such conduct was unlawful and entitled the employer to relief. It
was admitted that it was not illegal to induce an employee to break
his contract of employment where the term was indefinite, because if
the employee has agreed to so work either may end the contract
whenever he chooses.
In the instant case the plaintiff contended that the defendant know
ingly induced the employees to breach their unexpired contracts of
employment, and such acts were considered by the court to be un
lawful. The contract of employment contained the stipulation that
the employee was not to become a member of a labor union and in
considering this provision the supreme court was of the opinion that
it was not unlawful.
The proof was held to show that there was a deliberate attempt on
the part of the defendants to induce the employees to breach their
unexpired contracts of employment; the supreme court accordingly
granted the injunction restraining the defendants from inducing or
attempting to induce the plaintiff’s employees to breach their con
tracts of employment.
L a b o r O r g a n iz a tio n s — P ic k e t in g — C o n s t i t u t i o n a l i t y o f O rdi

Thomas v. City of Indianapolis, Supreme Court of Indiana
(December 5, 1924), H5 Northeastern Reporter, page 550.—This
decision disposed of several cases, in the first of which the appellants
sought to enjoin the city of Indianapolis, the mayor, and other
parties from enforcing an “ antipicketing ” ordinance; there had
been a temporary injunction, which had been dissolved. The other
cases were appeals from convictions for violations of the ordinance.
Objections were that the city council had no authority to pass the
ordinance, and that it was unreasonable and oppressive. The posi
tion was taken that picketing is not unlawful of itself, and that a
clause in a State statute providing that city councils should have
power to pass ordinances “ to preserve peace and good order,
* * * quell riots, and disperse disorderly assemblages,” * * *
was not sufficient to authorize such an ordinance.
The supreme court observed that the majority view was that “ in
the absence of any legislation upon the subject, so-called 6peaceful
picketing ’ is not unlawful.” Under the authority to pass ordinances
to preserve peace and good order it was held that a city council had
the power to pass ordinances prohibiting picketing where accom
panied by violence or coercion. “ Picketing,” as used in the ordi
nance in question, was defined by the court to mean “ the main
tenance of an organized espionage upon the works or places of busi
nance—

117

LABOR, ORGANIZATIONS

ness of an employer and those going to and from them.” Mr. Justice
Gause, speaking for the supreme court, said:
It is probable that the city council * * * believed that all
picketing was inimical to the peace and good order of the public, and
that the public welfare would best be subserved by prohibiting all
picketing in the manner described in the ordinance. I f we consider
the results that generally follow the placing of pickets near to the
premises of one against whom a strike or boycott is being conducted,
it can not be said that such an ordinance is unreasonable. We all
know that in most of such cases the very presence of the picket is apt
to give rise to contentions and arguments that often result in blood
shed and riots.
It is not an unreasonable exercise of the power to preserve peace
and good order for the council to prevent that which so often dis
turbs the peace and destroys good order.
The rights of the individual were declared to be “ subservient to
the welfare of the general public [citing Watters v. City of Indian
apolis (191 Ind. 671, 134 N. E. 482; see Bui. No. 344, p. 183)].
Continuing, Mr. Justice Gause said:
The rights which appellants have and assert in this case, such as
the right to free speech, peaceable assemblage, and the right to use
the public streets, as well as the other rights and privileges urged by
appellants, are all subject to such reasonable regulations as the gov
erning body of the government may make for the general good, and,
as we deem the ordinance in question to be reasonable and one within
the power of the council to adopt, it does not infringe upon any of
the constitutional rights of appellants.
The ordinance was held not to apply to one class of citizens only,
but to all, and also that the ordinance did not in any way prevent
employees from striking or presenting their side of the controversy.
The contention was made that criminal statutes cover the same
subject. This was admitted, but the court pointed out that a person
could violate the ordinance and a criminal statute separately or
jointly, and that such a condition of law was not bad.
The judgments were therefore affirmed.

Labor

O r g a n iz a tio n s — S t r i k e — A d v e r tis e m e n t

p lo y e e s — C o n s t r u c t io n

93383°—26------9

S t a t u t e —West

fo r

N ew

Allis Foundry Go. v.
State, Supreme Court of Wisconsin (February 10, 1925), 202 North
western Reporter, page 302.—The West Allis Foundry Co. employed
a normal force of about 35 men, including core makers and molders,
and it had no contracts with any labor unions regarding employment
On October 8, 1923, notice was given of a uniform cut of 5 cents an
hour in wages, and on October 12 a representative of the Interna
tional Molders5 Union called upon the company. On the same day
of

118

DECISIONS OF THE COURTS

Local No. 125, nine of whose members were employed by the com
pany, voted to strike, and on October 20 received the sanction of the
international union. The representative of the international union
again visited the company and suggested a compromise, which was
Defused, and thereupon 10 men quit work, none of them returning.
Picketing was commenced and continued until after February 27,
1924. Both the local and international continuously, from October
to the time of the trial, asserted that the strike was still in existence,
and published statements to that effect in their monthly journals and
quarterly circular letters. The company advertised for help on
February 27, 1924, and did not state in the advertisement that there
was labor trouble at their place of business. ITpon being adjudged
guilty of violating a State law requiring such notice if a strike
existed, the company secured a writ of error for a review.
As this was a criminal prosecution it was incumbent upon the
State to prove that, at the time of the alleged advertisement, there
was at the shop a strike actually existing. The court said that there
could be no question 44that when, by concerted action, a number
of the company’s employees quit work on October 22 because of the
proposed cut in wages, they then entered upon a lawful strike as
such term is understood and declared,”
There wag no legislative standard in the present statute as to when
a strike was ended, the question being one “ of fact before judicial
tribunals in proper proceedings,” such as the present; and the
supreme court held that “ the defendant might, at the time of the
advertisement, be lawfully justified in considering that a strike shall
be deemed at an end when conditions are such that the business of the
employer is not materially affected b}^ it, and there are no reasonable
grounds for believing that a continuance thereof will materially
affect his business.”
Mr. Justice Eschweiler, speaking for the court, said:
Picketing and persuading others to keep away from such employ
ment are but incidents of and not the strike itself. At the time of
the advertisement in February, 1924, the force or economic pressure
that had been exerted on the employer by such withdrawal was no
longer in existence. At such time the employer had more than a
normal and usual force of men and more than the normal and usual
force of core makers and molders at work. There is no testimony
whatsoever to indicate that the employees who were then doing the
work that had been done by those who withdrew in October were
what are designated as strike breakers or employed solely or prin
cipally for the purpose of thwarting the purpose of the striking
employees, but were residents of Milwaukee County, or other than
bona nde employees. Clearly the conditions in defendant’s business
were then such that it was not .materially affected by the strike, and
there were no reasonable grounds for believing that a continuance
thereof would materially affect defendant’s business.

LABOR ORGANIZATIONS

119

The court therefore concluded that at the time charged there was
not a strike actually existing and that the conviction could not be sus
tained.
The judgment was accordingly reversed with directions to dismiss,
one judge dissenting.
Labor Organizations— Strikes— Conspiracy— R estraint o f I n
terstate Trade— Sherman A n titru st A c t— Vandell et al. v. United

>States, United States Circuit Court of Appeals, Second Circuit
(March 2, 1925), 6 Federal Reporter (2d), page 188.—William L.
Vandell and others were convicted of violating the act to protect
trade in commerce against unlawful restraint or monopolies. It was
alleged that it was part of the conspiracy to destroy the track and
roadbed of the International Railway Co. at the village of Elwood,
N. Y., and further that it was part of the conspiracy to intimidate
employees of the railway company so that by intimidation and coer
cion they would not continue working for the company, and thereby
prevent them from fulfilling their duties to this common carrier so
engaged in interstate and foreign commerce.
In 1922 there was a strike of the railway employees, and in August,
1922, dynamite was transported by the defendants Reilly and Breese
and placed on the railroad tracks. After the explosion both Reilly
and Breese made statements that tended to attach the crime to them.
The provisions of the Sherman Antitrust Act (Comp. St., sec. 8820
et seq.) were held to apply to all classes without exception. “ It is
intended to punish alike monopolies of capital and acts of labor,
whenever interstate trade is thereby directly restrained. A con
spiracy under the act remains a conspiracy punishable under the laws
o f the United States, without regard to the position or status of the
offenders. [Cases cited.] A conspiracy by striking employees be
comes a Federal offense under the law whenever that conspiracy
necessarily and directly impedes the channels of interstate commerce.
(In re Debbs, 15 Sup. Ct. 900 et seq.)”
The judgment of conviction was therefore affirmed.

L abor O rganizations — S trike — I njunction — A ttempting to
P revent E mployer from A bandoning D epartment of B usiness—

C. B . Rutan Go. v. Local Union No. 4, Hatters’ Union of America,
Court of Chancery of New Jersey (April 20,1925), 128 Atlantic Re
porter, page 622.—The complainant hat-manufacturing company,
finding its “ making shop ” unprofitable, and that hat bodies could be
purchased cheaper, shut it down and discharged the hat makers.
Thereupon the finishers quit work, according to the employer’s state

120

DECISIONS OF THE COURTS

ment, to compel it to reestablish the making shop. The finishers, de
fendants, claimed they quit—struck—because their fellow unionists
were thrown out of work, and they regarded it as against their inter
ests to work for an employer who had a making shop and refused to
operate it. The policy of the union was claimed to be expressed in
its by-laws, as follows:
No manufacturer shall be allowed the union label who has a plank
(making) shop and buys his hats in the rough unless the plank shop
is running at full capacity.
The company applied for an injunction to restrain the strike.
That the defendants had the right to, “ singly or in concert, refuse
to work, out of sympathy for their fellow employees, or because they
regarded it as not of advantage to organized labor to work under
the circumstances, or for no explained reason at all,” was considered
by the court of chancery as 66beyond question.” But the court
added:
If, however, the purpose of a strike is, and as the complainant
contends it is here, to compel an employer to run his shop against
his will, and to his injury reemploy his discharged hands, for whom
he has no use, then the strike is unlawful, for the union has no right
to prevent employers of labor from profitably prosecuting their
businesses.
The court found that the proofs in the case fell short of showing
an unlawful purpose on the part of the defendant, although it
realized that in the circumstances the complainant u may have to
reestablish its plank shop or go out of business altogether.” In con
cluding the opinion the court said:
For such misfortune the members of the union disclaim responsi
bility, and rightly. They were not under contract to work; they
have done nothing more than refrain from working; they have not
prevented the complainant from procuring others from taking their
places, nor have they in any way interfered with the complainant
in the carrying on of its business in its own way. In fine, their
attitude has been simply one of hands off and let the complainant
get along as best it may without them. This attitude is not open
to judicial criticism.
The injunction was therefore denied and the bill dismissed.

O ld - A

P e n s io n s — C o n s t it u t io n a l it y

“ P oor L a w ” — R e t ir e m e n t

S tatu te— S tatus

—Busser v. Snyder,
State Treasurer, et al., Supreme Court of Pennsylvania (February
2,1925) ,128 Atlantic Reporter, page 80.—Section 18, article 3, of the
Pennsylvania constitution provides:
No appropriations, except for pensions or gratuities for military
services, shall be made for charitable, educational, or benevolent

S t a te E

m p lo y e es

OLD-AGE PENSIONS

121

purposes, to any person or community, nor to any denominational
or sectarian institution, corporation, or association.
The old age assistance act of May 10,1923 (P. L. 189; Pa. St. Supp.
1924, secs. 16734b1—16734b37), was declared unconstitutional by the
court of common pleas of Dauphin County because it was considered
to be in violation of the above-quoted provision of the constitution.
It was held not to be a poor law and the State officials were enjoined
from paying or approving for payment bills incurred thereunder.
An appeal was taken to the supreme court.
Various arguments were introduced on both sides—why the act
should be sustained and why condemned—but, as stated by the
supreme court, “ all these theories must be left untouched by judicial
opinion; under our form of government the legislature alone pro
mulgates the policies of government and is alone responsible if
judgment is not well exercised, socially as well as financially.”
The trial court held that the words “ charitable, educational, and
benevolent ” were intended to include pensions or gratuities of every
kind, excepting those for military purposes. Proponents of the stat
ute admitted that the legislature selected a class of persons to be
benefited as an obligation of society “ regardless of their ability
to earn a livelihood.” No gift of money u shall be made for benevo
lent purposes to any person, in substance says the constitution, and
surely these objects and purposes are within the prohibition.”
The fact that the appropriation was made to an agency was
considered by the court as having no merit to help the favorable
consideration of the law.
The gift is not to the commission, but to the particular persons
selected by the legislature to receive it. The commission can not
use the money; it merely passes it on to the selected class. It is none
the less a gift directly to the individual, even though it pauses for
a moment on its way thither in the hands of the agency.
Appropriations for nonsectarian and nondenominationai institu
tions for benevolent purposes were held by the supreme court as not
prohibited by section 18, article 3; and, further, that appropriations
compensating institutions caring for indigent, infirm, and mentally
defective persons were not prohibited by the constitution.
A distinction was made between the act in question, which was a
pure grant conditioned on age, residence, and financial conditions,
and retirement acts for public-service employees. The latter are
“ founded on faithful, valuable services actually rendered to the
Commonwealth over a long period of years, under a system of classi
fication which the legislature has considered reasonable.” Payments
“ are for delayed compensation,” while the act in question entirely
lacks any such basis. Neither could it be sustained as a poor law,

122

DECISIONS OF THE COURTS

substituting outdoor relief, or adding it to the present method of car
ing for poor persons and paupers under existing systems.
Under the act of 1923 the fundamental basis of poor laws (indi
gency or inability to work and without means of support) is swept
aside as to certain persons, and for it is substituted an age limit for
ersons having property less than $3,000, and an income less than
365 a year, residence within the Commonwealth for certain length
of time, discretion in the commission for the imperative mandate to
poor directors, and other manifest substitutions.
With knowledge of what our “ poor laws and persons ” from time
immemorial have meant, it will be readily seen the subjects con
sidered under the old age assistance act of 1923 are not within that
class and * * * the legislature can not invade the prohibition
set forth in section 18 of article 3 of the constitution. * * * It
does not require much imagination to show the contract [contrast]
between the persons considered by the act of 1923 and those under
the poor laws.
I f the legislature could make certain financial restrictions it could
raise or lower them at will, in the opinion of the supreme court. In
other words, according to the court, “ the minute the historical defini
tion of poor persons is broken through, the act enters the field of
forbidden legislation through section 18 of article 3, and fails as a
poor law.”
The decree declaring the statute to be in contravention of this pro
vision of the constitution was therefore affirmed.

R ailroad L abor B oard— P owers— J urisdiction— A ttendance of
itnesses— Robertson v. Railroad Labor Board, United States Su

preme Court {June 8, 1925), 1±5 Supreme Court Reporter, page
621.— The transportation act of February 28, 1920 (Comp. St. Ann.
Supp. 1923, section 1007l^4hhh), authorizes the Railroad Labor
Board “ for the efficient administration of the functions vested in ”
it, to require by subpoena “ the attendance of any witness * * *
from any place in the United States at any designated place of
hearing, and the taking of a deposition before any designated person
having power to administer oaths.” Paragraph b provides that it
may invoke the aid of any United States court in compelling com
pliance.

The board had issued a subpoena directing one Robertson, residing
at Cleveland, Ohio, to appear before it at its office in Chicago on a
day named. Robertson failed to appear, but was represented by his
attorney, who challenged the jurisdiction of the board. Suit was
instituted by the board in the Federal court for the northern district
of Ohio, and this court issued a summons directing Robertson to
appear and answer. He was personally served at Cleveland by the

RAILROADS

123

proper official, but he failed to appear, the attorney again repre
senting him and claiming that he was not subject to the jurisdiction
o f the Federal court for Illinois. The court overruled the con
tention and issued a final decree directing Robertson to appear and
testify as originally sought by the Labor Board. From this an ap
peal was taken to the Supreme Court. The court went fully into
the question of jurisdiction, and recognized that Congress has power
“ to provide that the process of every district court shall run into
every part of the United States,” though this has not been done by
any general law, nor, in terms, by the transportation act. Instances
were cited in which process is general, as in the Sherman Act (anti
trust law) and its amendment, the Clayton Act; also in other cases
for specific and limited purposes. However, the Judicial Code (sec.
51) provides that “ no civil suit shall be brought in any district
court against any person by any original process or proceeding in
any other district than that whereof he is an inhabitant.” This gen
eral rule, subject only to specific acts of Congress by way of ex
ception, and with such exceptions as are provided in the Judicial
Code, must be recognized as governing the situation in the instant
case. No specific exception having been made in the transportation
act, the phrase “ any district court” must be construed as meaning
“ any court of competent jurisdiction.” The Labor Board has
power to appear in any court of the United States and institute
proceedings therein to compel obedience to its writs. In explicit
language the board is authorized to compel persons to come from any
place in the United States to any designated place of hearing to
furnish evidence; but there was no indication found of any intent
on the part of Congress to depart from the long-established policy
of litigating the question of contumacy in any other jurisdiction
than that of the witness’s residence.
The judgment below directing Robertson’s appearance before the
Federal court for Illinois was reversed on the obvious ground that
the board did not bring the proceedings in the proper district of
Ohio.
R ailroads— S tate and F ederal R egulations— P rotection of
H ealth of E mployees— L ocomotive C ab C urtains— C onstitution
ality of S tatute—Chicago & N. W. Ry. Co. v. Railroad Commission

of Wisconsin; Chicago, M. & St. P. Ry. Co. v. Same; Minneapolis, St.
P. & S. S. M. Ry Co. v. Same, Supreme Court of Wisconsin (Novem
ber 27, 1925), 205 Northwestern Reporter, page 982.—Chapter 139,
Laws of Wisconsin, 1923, prohibits any railroad company from
using, between the 15th day of November and the 1st day of April,

124

DECISIONS OF THE COURTS

in each year, any locomotive engine not equipped with approved cab
curtains. It provides in part:
Such curtains shall be so constructed as to efficiently inclose the
openings between the engine cab and the water tank or coal tender
attached to such locomotive engine. The windows of the cab shall
be properly and closely fitted and all openings for levers or pipes
and all other openings whatsoever through which cold or drafts
may bring discomfort to the occupants shall be efficiently protected
in such manner as may be required and according to plans approved
by the Railroad Commission of Wisconsin.
The law also required all railroad companies to submit plans for
such equipment to the railroad commission of the State for approval,
and that it should be the duty of the commission to enforce the
provisions of the act.
The commission held hearings throughout the State, and on Octo
ber 31, 19*23, issued an order prescribing minimum specifications for
cab curtains which should be regarded as a compliance with the
law. The Chicago & Northwestern Railway Co., the Chicago, Mil
waukee & St. Paul Railway Co., and the Minneapolis, St. Paul &
Saulte Ste. Marie Railway Co. brought separate actions to review the
order of the commission, and from a judgment of the circuit court
affirming the order the plaintiffs appealed.
The supreme court considered the three actions at the same time,
and in reviewing the record stated first that the regulation of inter
state commerce was entirely within the power of the Federal Govern
ment, and that the State legislation must give way to conflicting
Federal legislation as affecting interstate commerce, and further that
in case of a conflict between State and Federal legislation the inter
state carriers must carry out the legislation of the Federal Govern
ment. However—
The power of Congress to promote safety in the prosecution of
interstate commerce is one subject of legislation. The power of the
State to promote the health and welfare of its citizens is quite
another. By the exercise of the first power the States do not lose
the second, and the legislation of each jurisdiction will stand unless
they be repugnant to each other.
The curtains prescribed were in use on the locomotives of several
railroads during the year 1924-25 without any suggestion from
Federal authorities that their use was repugnant to Federal regu
lations. Quite to the contrary, the record disclosed a letter ad
dressed by a member of the Interstate Commerce Commission to
a member of the State railroad commission in which it was said:
I have carefully read the law and the order of your commission,
and examined the blue prints, and do not find that the application
of such curtains or other\requirements of the law in any way con

RAILROADS

125

flict with the Federal locomotive-inspection laws or the rules of
instructions issued by this commission pursuant thereto.
In the light of this Federal acceptance of the order of the State
railroad commission, the Supreme Court was of the opinion that it
would not consider the matter any further, on the ground that if
a conflict existed it should be left to the Federal authorities to raise
the question.
The contention that the law or the order imposed undue burden
upon interstate commerce was rejected by the supreme court, its
construction of the law being that it is one “ which the State has
plenary power to pass in the interest of the public health. As a rule,
such laws impose a burden upon someone, but it is a burden which
must be borne for the public good.”
The law and order being considered valid from a standpoint of
due process, the judgment of the circuit court was affirmed.

R ailroads — S tr ik e s — D e t e n t io n of C ars — P e n a l t y — J txstifica TieN— Davis,

Agent, v. Keystone Steel <& Wire Go., Supreine Gourt
of Illinois (April
1925), 1^8 Northeastern Reporter, page Ifl-—

A ju d g m e n t w as ren d ered a g a in st th e K e y s to n e S teel & W ir e C o. in
fa v o r o f J a m es C . D a v is , a g e n t o f the U n ite d States, u n d e r th e p r o
v ision s o f th e tra n sp o rta tio n act o f 1920 (U. S. C o m p . S t., A n n .
S u p p . 1923, sec. 10071^4 et s e q .), in the sum o f $18,930 f o r d em u rra g e
ch arg es on cars d e liv e re d to th e co m p a n y . The c o m p a n y a p p e a le d
on the g ro u n d th a t th e ju d g m e n t d e p riv e d it o f its p r o p e r ty w ith o u t
due process o f law . T h e d e fe n se w as m a d e th a t o n J u ly 5, 1919, a
strik e w as ca lled b y th e d e fe n d a n t’s em p loyees, w h ich resu lted on
O cto b e r 13 in d e p r iv in g it o f a ll its em p loyees, an d th a t fr o m A u g u s t
13 to O cto b e r 2 th e d e fe n d a n t w as p re v e n ted fr o m u n lo a d in g the
cars d e liv e re d to it e x ce p t on e ca r, w h ich w as u n lo a d e d o n S ep tem b er
26. The u n lo a d in g w as a cco m p lish e d as fa s t as th e d e fe n d a n t co u ld
g e t th e m en to d o it. The d e fe n d a n t co m p a n y fu r th e r co n ten d ed
th at th e d u ty to p a y d e m u rra g e ch a rg es w as “ o n e im p o se d b y la w ,
an d is in th e n atu re o f a p e n a lty n o t a risin g fr o m a n y co n tra ct, a n d
th a t th e fa ilu r e to a d m it its d efen se d e p r iv e d it o f its p r o p e r ty
w ith o u t d u e p rocess o f la w .”

The only question of interest in this case as a matter of labor law
is whether the strike could exempt the company from the payment
of demurrage charges. The supreme court, speaking through Mr.
Justice Dunn, said:
Since the demurrage was a proper terminal charge, for which the
appellant was liable as a part of the transportation of the cars, it
was payable by the appellant in accordance with the demurrage

126

DECISIONS OF THE COURTS

rules and the average agreement, and it was the duty of the appellee
to collect it unless the existence of the strike excused the payment.
The rules make some exceptions to demurrage charges * * *
none of which apply to the circumstances of this case, but no men
tion is made of f ailure to load or unload because of a strike. The
duty of the consignee to unload is positive. Certain exceptions are
stated. The duty to unload is therefore absolute in the absence of
the expressed exceptions.
The company claimed that the delay was not its fault, and that
the construction of the rules “ which denies any defense not provided
for in the rules is a violation of the constitutional prohibition of the
deprivation of property without due process of law.”
The court pointed out that the approval of the schedule by the
Interstate Commerce Commission was “ conclusive that the charge
was reasonable.” It was held that the “ contract of the parties ”
was their own contract, “ though its terms were prescribed by Con
gress under its power to regulate commerce between the States,”
and in so doing “ to interfere with the right of private contract
when the public interest in interstate transportation demands it.”
The contract was held as not excusing the company “ from liability
for dem urrage because of interference with its business by a strike.”
After discussing several decisions on the point, the court con
cluded :
It is immaterial whether the demurrage accrued 011 interstate or
intrastate shipments, because authority to enforce intrastate rates as
well as interstate rates was conferred on the President by the act of
Congress o f August 29, 1916, and the act of March 21, 1918—the
Federal control act.
The judgment was therefore affirmed.

Sunday Labor— Operation of Grocery Stores, E tc.— Police
Power of C ity— Construction of Ordinance— State v. Somberg,

Supreme Court of Nebraska (July 1, 19c2 o), °20^ Northwestern Re
porter, page 788.—Ben Somberg was convicted and sentenced upon a
complaint charging him with unlawfully opening his store on Satur
day and Sunday and selling meats and groceries, etc., in violation of
ordinance No. 9805 of the city of Omaha. Plaintiff appealed on the
ground that the ordinance was dependent upon section 9795 of the
Compiled Statutes of 1922, and that because it does not contain the
exceptions of said statute it is void.
The ordinance provided for the closing of all stores selling gro
ceries and meats on Sunday, but did not contain the provision of the
statute excepting “ works of necessity and charity.” The statute
came from Ohio, where, as the supreme court observed, it received
judicial construction prior to the time it was adopted in Nebraska,

SUNDAY LABOB

127

“ that construction being that an omission of the exception vitiates
the ordinance, because otherwise such ordinance would make the
citizen guilty of a crime or misdemeanor not contemplated by statute
merely because he had labored without regard to whether what he
had done was a work of charity or necessity. In other words, the
ordinance without the exception makes a crime out of whole cloth,
and without warrant or authority of law.” The court stated that it
“ has long been held in this State, where the legislature adopts the
statute of another State which has theretofore been construed by
courts of that State, it adopts the settled construction along with the
statute, so that, if the only support of the ordinance was this statute,
the argument of the defendant would be most persuasive,” and if it
should be granted that the ordinance was dependent upon section
9795, the defendant would not be guilty in opening and selling,
“ because so doing is innocent enough in itself and the statute in ques
tion vests the city with no power to make him guilty on that ground.”
However, it was the contention of the State that the ordinance was
valid under the police-power section of the Omaha charter (Comp.
St. 1922, sec. 3489, subd. 25). It was observed that the language of
subdivision 25 was very broad, that it gave power to the city to make
police regulations for the welfare, for health, etc., of the citizens.
The supreme court thought it an entirely lawful delegation of the
State’s power to the municipality, sufficient in terms and in intent to
“ empower the council to say that the opening of such stores as
groceries or meat markets on Sunday is contrary to the general
health and welfare.”
To the contention of Somberg that the ordinance discriminated,
the court quoted with approval from the case of Liberman v. State
(26.Nebr. 464, 42 N. W. 419), in which the court said:
Ordinances are made by virtue of the incidental powers of munic
ipal corporations, under the authority conferred by legislative
enactment, in the exercise of their legitimate police authority for the
preservation of the peace, good order, safety, and health of the
inhabitants of the corporation.
An ordinance prohibiting persons from engaging in certain kinds
of business on the first day oi the week, commonly called Sunday, is
not void by reason of such discrimination; the prohibited business
not being of public necessity.
The court being of the opinion that the ordinance was not void
because of discrimination, and that the city of Omaha had the
authority of section 3849, Compiled Statutes 1922, to enact a city
ordinance prohibiting storekeeping on Sunday, the judgment of the
district court was therefore affirmed.
The Supreme Court of Michigan sustained a similar ordinance of the city of
Lansing, finding that the home rule statute of the State authorized “ the regula
tion of trade, occupations, etc.” The keeping of a grocery store was said to be

128

DECISIONS OP THE COUBTS

an occupation, sufficiently defined to be understood by those affected by the
ordinance. Sunday closing was said to be a “ sanitary measure,” and the ordi
nance not being class legislation was valid. (People v. Derose (1925), 203
N. W. 95.)

W ages— A ssignment of F uture E arnings— G arnishment bt
T hird P arty—Southern Railway Co. v. Beneficial Loan Society,

Court of Appeals of Georgia (December 9, 192^), 125 Southeastern
Reporter, page 776.—This was an action between the Southern Rail
way Co. and the Beneficial Loan Society to recover from the com
pany a sum owed by it to one of its employees who was indebted to
the loan society, and upon judgment being rendered for the latter,
the former appealed. The facts and the decision as given in its
syllabus by the court of appeals in affirming the judgment are:
Where an employee executed a written order drawn on his em
ployer in favor of a payee therein named, directing the employer
to pay out of his future wages certain sums monthly to the payee
until payment of the full amount specified in the order, and, alter
the wages were earned but before they were paid to any one, and
before there was any written acceptance of the order, another
creditor of the employee sued him and caused summons of garnish
ment to be served on the employer, the written order was not avail
able to the employer as against such plaintiff to justify the payment
of the wages to the payee subsequent to the service of the summons
of garnishment.
Applying this principle to the facts of the case, the municipal
court of Macon did not err in sustaining the plaintiff’s traverse of
the garnishee’s answer.
The judgment was accordingly affirmed.
W ages— B o n u s — C o m p u t a t io n — O ffsets — Girman v. Hampel,
Supreme Court of Wisconsin ( October 20, 1925), 205 Northwestern
Reporter, page 893.—William Girman was hired as manager of the
meat market of Joseph Hampel at a weekly salary of $30 and 15
per cent of the monthly operating profits of the business. The salary
was paid in full and the plaintiff brought an action for a balance of
$574.24 alleged to be due him as his share of the operating profits.
The employer contended that he agreed to pay a bonus from time
to time, but that the amount was not fixed, the payment and the
amount being left entirely to the judgment and good will of the
defendant. From a judgment for the plaintiff the defendant ap
pealed.
The evidence showed that the plaintiff’s predecessor had received
in addition to his salary a bonus of 15 per cent of the operating
profits, and that such bonus was estimated upon the profits as dis
closed at the end of each month during the period of employment.

WAGES

129

From time to time during the course of the two-year employment,
the defendant paid to the plaintiff various sums to be applied upon
his share of the operating profits. The lower court found that the
sum of $514.24 was the proper balance due plaintiff, and the supreme
court was of the opinion that testimony sustained the judgment. To
the contention of the defendant that the net losses of one month
were deducted from the net profits of another, it was held not allow
able under the circumstances of the case, which provided for 15
per cent of the monthly operating profits and not of the yearly
profits. The defendant based his contention on the case of Thomas
v. Columbia Phonograph Co. (114 Wis. 470, 129 N. W. 522), in
which case the net profits of one month were offset against the losses
of other months; but the plaintiff in that case had acquiesced in
such statements,- thus showing the construction of the contract by
the defendant, which was acquiesced in by the plaintiff. In the
instant case no such offsets were computed, and the statement of
each month’s business reflects the business of such month, and the
operating profit in each month was subjected to a deduction of 15
per cent to the plaintiff as a bonus. There is nothing in the present
case that conflicts with the holding in the Thomas case, and under
the authority of that case the judgment of the lower court was
affirmed.
W ages— B onus— C ontract— R ights of E mployee A fter L eaving
E mployment —Wellington v. Con P . Curran PAnting Co., St Louis

Court of Appeals, Missouri (January 3, 1925), 268 Southwestern
Reporter, page 396.—Harry A . Wellington was employed by the
defendant printing company during the years 1918, 1919, and 1920
as superintendent of the composing room, where he had charge of
about 100 men. The employer inaugurated a bonus system in 1918
whereby the employees holding responsible positions with the firm
would receive a bonus. A letter was sent to the plaintiff in January,
1918, at which time he was in the employ of the company, advising
him of the plan and the terms thereof, and he received a payment for
the years 1918 and 1919. The vice president and general manager
of the company had told the plaintiff that the bonus system would
be continued from year to year, and in 1920 advised plaintiff that
his share for that year would probably be as large as $2,500. In
January, 1921, the company sent a letter to the plaintiff advising
him that his share in the bonus distributed for the year 1920 was
$2,500, and that that amount was placed to his credit on the books
of the company, with interest at &y2 per cent per year. Withdrawals
were to be subject to the approval of the management. On the last
day of April, 1921, there was a strike at defendant’s plant and the

130

DECISIONS OF THE COURTS

plaintiff went out with the other employees. Upon request being
made for the bonus money and interest it was refused, and an action
was brought to recover it. Defendant appealed from a judgment for
the plaintiff, contending that there was no contractual relation be
tween the parties, merely a voluntary agreement on the part of the
defendant not enforceable because not supported by a new and valid
consideration.
The court observed that it seemed to be the general rule that where
the promise of a bonus is made at the time the employee entered the
service, such promise for additional compensation becomes “ a part
of the original contract, and is enforceable.” Opinions differ, how
ever, where the promise is made after employment has been entered
upon under an existing contract. The jury decided in the affirma
tive the question as to whether the plan adopted in -1918 was carried
through 1920, and the court, on appeal, regarded itself as bound
by that finding; nor did the court consider the proposition, so vague
or indefinite as to be void for want of mutuality or lack of considera
tion. The court continued:
There is no question but that plaintiff accepted the proposition,
and received his share according to this contract for the year 1918,
and when defendant continued this plan in force for the year 1920,
and in the beginning of the year 1921 set aside $2,500 as plaintiff’s
share, what was indefinite became definite. Defendant made the
offer, and plaintiff accepted, and this created a unilateral contract,
and the principle of mutuality of contract as it is applied generally
has no place in the consideration of such contracts. They are not
based on mutual obligations. As there is no promise on the part of
the promisee, there can be no mutual obligations.
The compliance with the terms of the offer was considered a con
tract supplementary to that of the employment. The court held
it an inducement to plaintiff to remain in the employ and to perform
efficient service. The plaintiff also was employed by the week, and
the court said it could be inferred from the facts that he was induced
to stay, “ in part at least, by the offer of reward made to him by the
defendant.”
We think the great weight of authority supports the view that
plaintiff, under such a state of facts as we have in this record, is
entitled to recover the amount sued for.
The judgment was accordingly affirmed.
W

ages—

B onus— P aym ent

E nd

Y ear— T erm

C ontract

—Meredith v. Carl Youngstrom Co., Supreme Court of Iowa
(November 17, 1925), 205 Northwestern Reporter, page 71$.—One
Meredith, employed by the Carl Youngstrom Co., a corporation
engaged in conducting a cylinder grinding shop in the city of Des

WAGES

131

Moines, returned to work after an adjustment made between the
employer and the employees as a result of a strike, and continued to
work from 1920 to March 31,1922, when he voluntarily quit. Mere
dith contended that he was to receive 85 cents an hour and a bonus
of 5 per cent on the wages earned by him, the bonus to be payable at
the end of the year. The company paid the bonus for the calendar
year 1920, and Meredith brought suit for the bonus on wages earned
in 1921 and the first three months of 1922. A jury found that there
was such an agreement and awarded a verdict in favor o f Meredith,
and the defendant appealed.
The contract of employment was held not within the statute of
frauds, so as to preclude evidence of contract to pay a bonus on the
wages earned, whether for the balance of the first year or for each
year of employment. No time of service was fixed by the agreement,
and it was held apparent that the employee performed his part of
the contract year by year and that he was entitled to and was paid
wages at the rate of 85 cents an hour. The contract in the opinion
of the supreme court “ is not severable.” The supreme court in con
clusion decided that Meredith was not entitled to the bonus for the
work done in 1922 on the ground that the bonus was to be paid for a
year or not at all.
For the reason that the judgment granted Meredith the bonus for
the work done in 1922, the supreme court reversed the decision.
Wages— Exemption— C on stitu tion a lity o f Sta tu te— Verino v.
Hickey, et ux., Supreme Court of Washington (June 18, 1986), £37
Pacific Reporter, page 5 .— Antoni Yerino secured a decree from the
superior court that certain personal property owned by C. W . Hickey
and wife as their community property be made subject to execution
and sale toward the satisfaction of a judgment rendered by the
superior court in favor of Verino on a claim for work and labor done.
Execution was issued in the judgment of $631.30, under which the
sheriff seized the property and threatened sale thereof. The defend
ants claimed the property to be exempt. It was conceded by both
parties that the property was within the classes of exempt personal
property enumerated in section 563, Remington Compiled Statutes,
and “ would be exempt from seizure and sale toward the satisfaction
of an ordinary money judgment.”

Section 564, Remington Compiled Statutes, provides:
No property shall be exempt from execution for clerk’s, laborer’s,
or mechanic’s wages earned within this State * * *; Provided,
That nothing herein shall be construed as repealing or in anywise
affecting section 703, infra.

132

DECISIONS OF THE COURTS

Section 703, referred to in this quoted language, exempts:
Current wages or salary in the amount of one hundred dollars
($100) for personal services rendered by any person having a family
dependent upon him for support. * * *
Mr. Justice Parker, speaking for the court, observed that the legis
lature “ can not constitutionally practically destroy all exemption
rights or enact exemption laws in violation of the equal privileges
and immunities guaranty of the constitution.”
As was pointed out, it is a question of giving to a general creditor
without any specific lien right superior rights over another general
creditor without specific lien right, the claims differing only in
respect as to what gave rise to them. In other words, “ can the legis
lature constitutionally classify general debtors and general debts
upon a basis of differing natures of the debts, so that all debtors shall
not have equal immunity of exemption as against all forced sales to
satisfy all their general debts.”
On this point the case of Tuttle v. Strout (7 Minn. 465, 82 Am.
Dec. 108), was quoted with approval, Mr. Chief Justice Emmett say
ing in that case:
The constitution makes no exception in favor of any particular
class of persons, or kind of debts or liabilities; nor should we recog
nize the right of the legislature to make any such distinctions. I f
one class of persons, or kind of debts or liabilities, any be excepted,
all may be; and the constitutional provision might thus be rendered
entirely nugatory.
In conclusion the court held that section 564, providing that no
property ‘shall be exempt from execution for clerks’, laborers’, or
mechanics’ wages earned within the State, was unconstitutional if
impairing the exemption rights granted under section 1, article 19,
of the State constitution, wThich directs protection of “ a certain
portion of the homestead and other property of all heads of families,”
and as being further violative of the equal privileges and immunities
guaranteed under article 1, section 12, of the State constitution.
The order of the superior court decreeing the community property
subject to execution and sale was therefore reversed and the cause
remanded with the direction to enjoin the sale and award a return
of the property.
W

ages —

G a r n is h m e n t — C o ntracts

E ffect —Packard

for

P aym ents

dvance—

Motors Co. of Alabama v. Tally, Supreme Court
of Alabama. {March 19, 1925), 103 Southern Reporter, page 465.—
Val Freeman, employed by the Packard Motors Co. of Alabama as
a salesman, was by the contract of employment allowed a commission
on cars sold by him, and in addition was allowed a drawing account
up to $150 each month, any overdrafts being charged against the

WAGES

133

following month’s account. The contract was to terminate at the
will of either of the parties. One Tally sued out a garnishment upon
a judgment, and at the time the garnishment was served on the
employer the employee had overdrawn several hundred dollars*
The employment continued during the pendency of the garnish
ment, which was several months. The employee continued to draw
each month to the amount of his drawing account, which was mean
time increased to $175 per month. During the entire time he con
tinued to be indebted to his employer. From a judgment on the
garnishment the employer appealed. The supreme court quoted
with approval the case of Alexander v. Pollock & Co. (72 Ala. 137),
in which the court said:
It is perfectly competent for an employer to stipulate with an
employee, by bona fide agreement, that he will pay his wages weekly,
or monthly, or for any other reasonable time, in advance; and such
agreement, when free from fraudulent collusion, will be upheld by
the court. And so long as these payments are made in advance no
debt can accrue for wages or salary due to such employee; and hence
the employer can not be held liable as garnishee under such state of
facts. (Callaghan v. Pocassett Mfg. Co., 119 Mass. 173; Worthing
ton v. Jones, 23 Vt. 546; Archer v. People’s Savings Bank, 88 Ala.
249, 254, 7 So. 53, 55.)
The supreme court, speaking through Mr. Justice Bouldin, in
construing the State statutes, observed:
Our statutes subject wages to become due pursuant to a contract
existing or made pending the garnishment. This provision does not
reach future installments of viages under a contract that may be
terminated at the will of the employee. (Henry v. McNamara, 124
Ala. 412, 26 So. 907, 82 Am. St. Bep. 183.) But if wages are earned
under such a contract, so that the employee has a right of action in
assumpsit for wages earned, the lieu of the garnishment attaches.
(Authorities supra.)
If wages are payable under the contract at the end of a month
or other period in which they are earned, they become subject to the
lien of a pending garnishment, and the employer pays them at his
peril. (Lady Ensley Furnace Co. v. Bogan & Co., 95 Ala. 594,
11 So. 188; Montgomery Candy Co. v. Wertheimer-Swartz Shoe Co.,
2 Ala. App. 403, 57 So. 54.) And this is true, although the employer
allows the employee to draw on his wages while being earned, or
to make an account against his wages, no prior contract therefor
existing. (Ely v, Flinn, 112 Ala. 311, 20 So. 570.)
The right of an employer to contract to pay wages in advance and
to continue to carry out his contract after service of garnishment
was considered by the supreme court as being generally recognized.
The Alabama rule as laid down in the decisions was stated to be:
An employer, in the conduct of his own business, may stipulate
by contract to pay wages in advance, that is, before the closing of
93383°—26------10

134

DECISIONS OF THE COURTS

the earning period for which the advance is made, and may carry out
such contract after service of garnishment without subjecting himself
to double payment. This is but a recognition of his right of con
tract in the management of his own business. A drawing account
is a well-recognized modern business method of furnishing the em
ployee with means of maintenance while engaged in the service
from which wages or commissions are to accrue;
To be protected, it was held that the garnishee must make advance
payments according to the contract. If payable as drawn or called
for by the employee, the advance payments must be so paid, other
wise the garnishment attaches and the garnishee becomes liable for
all wages earned and not paid or drawn as to the contract. The
employer was held entitled to deduct any indebtedness due from the
employee at the time of service or which accrues from advancements
lawfully made. (Jefferson County Savings Bank v. Nathan, 138
Ala. 342, 35 So. 355.)
The garnishee was held not liable under a contracted employment
permitting a drawing account where payments were made only
according to the contract.
The judgment of the lower court in favor of the plaintiff was
reversed and a judgment entered discharging the employer asi
garnishee.
W ages— G arnishment — D ebt E arned and P ayable in F oreign
C ountry— Weitzel v. Weitzel, Supreme Court of Arizona (Decem
ber 10, 19%4), 230 Pacific Reporter, page 1106.— Josephine Weitzel
sued out a writ of garnishment in the superior court against the
Southern Pacific Railroad Co. of Mexico, to reach a debt the com
pany owed Harry E. Weitzel on account of wages earned in Mexico.
She wished to apply it on a judgment for alimony obtained in the
superior court in an action in which he was personally served. The
company claimed that the debt was not subject to garnishment 66be
cause it was for wages earned and payable in Mexico.” It was also
claimed that the Mexican courts would not recognize the “ forced
payment in Arizona as satisfaction of the debt, but would make it
pay the claim in Mexico, notwithstanding its payment in Arizona.”
The superior court of Arizona dismissed the writ and the plaintiff
appealed. The supreme court on review first observed that the
corporation—
w as in the S ta te d o in g a n d c a r r y in g o n business th erein , r e c e iv in g
th e S ta te ’s p r o te c tio n a n d a c k n o w le d g in g its so v e re ig n ty o v e r it, a n d
w e th in k g e n e ra lly su b ject to its processes.
B u t th e co u rt also s a id :
E v e n th o u g h th e garn ish ee is in th e ju r is d ic tio n , i f th e d e b t be
n o t also in o u r ju r is d ic tio n it can n o t be le g a lly a p p r o p r ia te d to th e

WAGES

135

payment of plaintiff’s judgment. The court must have jurisdiction
of the debt garnished.
The court was of the opinion that though the debt was for wages
earned and payable in Mexico, it was subject to garnishment in
Arizona, provided payment in such manner would be recognized by
Mexican courts. As to the States the court said:
As between the different States of the Union such a judgment
would be a bar. since the Federal Constitution requires that each
State give full faith and credit to the judgments of the other States.
While it was “ probable ” that the Mexican courts would honor the
judgment of the courts of Arizona, and refuse to compel a second
payment of the wages in question, there was not known to be any
international rule or law or treaty requiring the same; and as the
services were rendered in Mexico and the debt was payable therein,
it was held that the company “ ought not to be compelled to pay such
debt to an Arizona creditor when it is not only possible but prob
able it would have to pay it again.”
The judgment was therefore affirmed.
W ages— M in im u m W age L a w — C onstitutionality of S tatute —
M inor E mployees— Stevenson v. St. Glair, Supreme Court of Min

nesota (<January 16, 1925), 201 Northwestern Reporter, page 629.—
Arthur L. Stevenson, a minor, recovered a judgment against the
defendant Wesley St. Clair, doing business as the Crocus H ill Phar
macy, for the difference between the agreed wages and the amount
fixed under the minimum wage act of 1913. The defendant ap
pealed.

The law had been sustained by the State supreme court in Williams
v. Evans (129 Minn. 32, 165 N. W. 495, 166 N. W. 504), where its
applicability to women was involved. However, in view of the deci
sion in the Adkins case (261 U. S. 525, 43 Sup. Ct. 394), holding the
law of the District of Columbia unconstitutional in its application
to adult females, it might be assumed for the purpose of this decision
that “ part of our act fixing a minimum wage for women [is]
repugnant to the Federal Constitution” ; but the question was left
without definite consideration, as not involved in the instant case.
The suggestion that the statute in its application to minors was
likewise repugnant to the Constitution “ we can not accept as settled.”
The court was of the opinion that in this aspect there was nothing
to support an attack on the statute; nor did it conceive that, if the
provision relating to adult women was eliminated, the remainder
o f the act could not stand. The court concluded:
It is not pointed out wherein our act may not stand as to minors,
if invalid as to adult women, as well as the act of Congress.
The judgment was therefore affirmed.

136

DECISIONS OF THE COURTS

W ages—Minimum W age L aw— Construction o f Statute— C o n
Attorney General, v. Sardell, United

s t i t u t i o n a l i t y —Murphy,

States Supreme Court ( October 19, 1925), lfi Supreme Court Re
porter, page 22.—The Supreme Court of the LTnited States in a memo
randum decision affirmed the judgment of the United States District
Court for the District of Arizona, holding the minimum wage law
of that State unconstitutional. A. Sardell, a merchant in Nogales,
Ariz., had in his employ four women working under a contract
calling for less than $10 per week wages. The minimum wage law
of the State enacted in 1917, and amended in 1923, fixed $16 as the
necessary cost of living and made it an offense to pay any female
in designated employments a less amount. Sardell insisted that to
pay the minimum would ruin his business, but the State authorities
undertook to enforce the act, and he sought an injunction. The
district court took the position that the law was unconstitutional and
granted the injunction. On appeal to the Supreme Court the
judgment of the district court was affirmed on the authority of
Adkins v. Children’s Hospital (261 U. S. 525, 43 Sup. Ct. 394; see
Bui. No. 344, p. 249). Mr Justice Holmes requested that it be
stated that his concurrence was solely upon the ground that he con
sidered himself bound by the decision in Adkins v. Children’s Hosp
ital (supra). Mr. Justice Brandeis dissented, but without opinion.
Some three months prior to the foregoing decis'on, the Supreme Court of
Kansas had before it eases involving* the constitutionality of the minimum
wage law of that State. It was there argued that the decision of the Supreme
Court in the Adkins ease was on local legislation, and not binding as a general
principle; but the majority of the court held that, while it might in principle
disagree with the majority opinion of the Supreme Court, so long as that
decision stood it was “ entitled to respectful observance,” and “ should time
demonstrate that the decision does not represent the settled views of the
Supreme Court of the United States upon this momentous question of con
stitutional liberty, the law cun be reinstated.” The law was therefore held
void as an attempt to regulate wages of adr.lt females. (Topeka Laundry Co.
v. Court of Industrial Relations (1025), 237 Pac. 1041.)

of Florida (February 18, 1925), 103 Southern Reporter, page 1±1£.—
W aivers— Henderson-WmIs Lumber Co. v. Croft, Supreme Court
of Florida (February 18, 1925), 103 Southern Reporter, page 1±1J±.—
Sections 2522, 2523, 2524 of the Revised General Statutes, holding
persons or corporations issuing coupons or other similar devices
in payment for labor liable, on demand of any legal holder thereof
after 90 days from the date of issuance, for the full face value
thereof in current money, notwithstanding any contrary stipula
tion or provisions which might be contained therein, together with
legal interest from demand and an attorney fee of 10 per cent
where suit is required to enforce payment, were, in the above

137

WAGES

entitled case, held valid and enforceable. The action was brought
by the alleged owner and holder to recover from the defendant
issuing company the face value of certain coupons issued by it
in payment for labor of its employees. From a judgment for plain
tiff in the circuit court the defendant brought error.
Mr. Justice West, delivering the opinion of the court, stated that
as the question had been settled in former cases, “ it is not con
ceived that a journey over the same route would be profitable.”
Mr. Justice Whitfield, however, filed a concurring opinion in
which he stated:
It is stipulated in this case that the laborers “ were to receive
an agreed amount per diem, to be paid in cash on the second and
fourth Saturdays in each month,” and that the coupon books, re
deemable only in merchandise, were issued as a convenience and
an accommodation. Obviously the legislature deemed the laborer
to be at some disadvantage under existing circumstances in taking
the coupon books, redeemable only in merchandise at the employer’s
store, the books to be used to conserve the laborer’s current needs
between pay days; and the legislation was designed to place the
employer and the laborer on equal grounds in paying and receiving
wages. The statute gives to the coupon books a value they would
not otherwise have. This is simple justice to the laborer, and is
no injury to the employer, who agreed to pay or is required to
pay money for the labor. The enactment is a reasonable and not a
mere arbitrary provision of law.
Issuing the coupon booklets to laborers in advance of performance
of the labor does not affect the validity or applicability of the
statutory regulation.
The operation of the mandatory terms of a valid statute can not
be hindered by contracts or mutual conduct contrary to the statute.
* * * And employers and employees can not, by any course of
conduct or by any form of agreement, express or implied, inter
fere with the operation of the statute upon the subject covered and
intended to be regulated by the enactment.
The judgment was accordingly affirmed.

ages —

P aym ent

L ess A

C h e c k — E stoppel —Knight

mount than

C l a im e d — A

cc epta nc e

v. Missouri Pac. R. Co., Supreme
Court of Arkansas ( October 5, 1925), 275 Southwestern Reporter,
page 704.—Dave Knight, employed by the Missouri Pacific Railroad
Co., contended that the company failed to pay him the full amounts
due him in the months of February, June, July, September, and
October, 1920, and January and June, 1921; that the several items
of shortage and the overtime he worked amounted to $59.25. He
contended that in addition to this amount he was entitled to 60 days’
pay at $3.60 per day as a penalty, under section 7125 of Crawford
and Moses Digest, for discharging him without paying him the full
of

138

DECISIONS OF THE COURTS

amount due. The suit was brought almost two years after the last
alleged shortage, and from judgment for the defendant company
he appealed.
Knight contended that as the defendant did not plead accord and
satisfaction and that as the checks did not purport to be payments
in full, the judgment should be reversed. The checks were intro
duced and the correctness of the judgment was held to turn upon
the effect to be given the checks. It appeared that during the time
of the difference monthly checks were accepted by him. The checks
specified that they were in payment of services rendered during
particular months for which he claimed shortages and overtime.
The supreme court was of the opinion that: “ The checks were ten
dered for all services rendered by appellant during the months
specified in each, and that by receiving and cashing them appellant
estopped himself to claim additional amounts.”
The judgment was therefore affirmed.

ages— P aym en t

aiver-—Cato

D ischarge— C onstruction

S tatute—

v. Grendel Cotton Mills, Supreme Court of South
Carolina (September 10, 1925), 120 Southeastern Reporter, page
203.—Section 5592 of the Code of 1922, State of South Carolina,
provides a penalty for failure to pay within 24 hours after written
demand all wages earned by a discharged workman.
J. M. Cato was employed by the Grendel Cotton Mills Co., and
was discharged on August 13, 1923, the company then owing him
$19.12. On September 1 Cato made a written demand for his wages.
The defendant refused to pay until Cato vacated the company’s
house which he then occupied, the defendant contending that by an
established custom of the mill a discharged employee is not entitled
to wages until he vacates the company’s house.
Cato brought an action against the company for his wages and
the statutory penalty, and the magistrate before whom the case
was tried gave judgment for the plaintiff for the full amount less
$18 accrued rent. The company appealed on the ground that when
Cato was employed he agreed to waive his statutory right by accept
ing employment subject to the condition that his wages should not
become due and payable until he vacated the company’s house. The
county court dismissed the appeal and affirmed the judgment of the
magistrate. The defendant appealed to the supreme court on the
ground that it had a right to demand the surrender and possession
o f the premises as a condition precedent to the payment of wages,
and that defendant was entitled to the possession of the house and
that the wages did not become due until such possession was
surrendered.

WAGES

139

The supreme court, on considering the record, first held that the
statute requiring the payment of wages on discharge became a part
of the contract of employment. The contention of the defendant
that the plaintiff waived his statutory right by accepting employ
ment in the company subject to the conditions existing was held to
be of no force and effect.
It was observed that the statute in question was passed as a
matter of public policy, to remedy the hardships that “ no doubt
followed 55 the practice of corporations to discharge their men and
refuse “ to pay wages until pay day.55 The employees were, under
the custom, compelled to wait for their pay, while in the meantime
expenses mounted and “ their situation became more precarious
every day.55 In holding that the statutory right to payment of
wages on discharge can not be waived, the court, speaking through
Mr. Justice Johnson, said:
When a laborer is discharged, and the corporation at that time
owes him money, and there is no valid defense to his claim, the
corporation can not interpose as a defense to such claim a custom
of, or even a contract with, the corporation whereby the laborer must
vacate his house before he will be entitled to his pay. Such a condi
tion would contravene the plain intention of the statute and be
against public policy.
The judgment was accordingly affirmed.
A similar law of the State of Arkansas was up for consideration in a case
involving delay in the payment of discharged workmen, repeated demands
being unsuccessful, though promises to pay “ in a day or two ” were made.
The supreme court of the State applied the act, making the maximum penalty
the answer to such delay, i. e., the continuance of the wages for a period of
60 days if the delay is so long. (Chicago, R. I. & P. R. Co. v. Webb (1925),
272 S. W . 650.)

ages— P u b lic

u t e —General

orks— C u r r e n t

R ate— C o n s t r u c t io n o f S tat

Construction Co. v. Connolly, Commissioner of Labor
of Oklahoma, United States DistHct Court, Oklahoma (November
24, 1924), 3 Federal Reporter (2d) page 666.—Sections 7255 and
7257 of the Oklahoma Compiled Statutes, 1921, which required con
tractors on public works to pay their employees “ not less than the
current rate of per diem wages in the locality where the work is
performed,’5came up for consideration by the United States district
court as to their constitutionality. According to the provisions of
the statute there was a penalty for each offense of not less than $50
nor more than $500 or imprisonment not less than three months nor
more than six months, each day’s violation constituting a separate
offense. The phraseology of the act, “ not less than the current
rate of per diem wages in the locality,55 together with the stringent

140

DECISIONS OF THE COURTS

provisions for punishment, was said to “ deprive the complainant of
his liberty and property without due process of law.” The General
Construction Co., a corporation, brought a proceeding in equity to
restrain the State commissioner of labor from enforcing the provi
sions of the statute and from prosecuting the plaintiff criminally for
failure to comply with section 7255. There was a decree for the
plaintiff, one judge dissenting.
Mr. Justice Kennamer, speaking for the court, said:
It is obvious that the statutes requiring the payment of current
wages and providing penalties for the violation thereof are so vague
and indefinite as to render it impossible for any person to know or
to be able to determine in advance for what acts he may be arbi
trarily required to answer for a criminal prosecution. The statutes
involved in effect delegate to the labor commissioner of the State of
Oklahoma the arbitrary power to determine wh^ acts of a con
tractor working under a contract with the State or municipality he
conceives to be a violation of the statute justifying a criminal prose
cution. The statute wholly fails to provide an ascertainable stand
ard by which a contractor may determine in advance what is the
current wage in any given locality.
Common justice demands that, before a person may be deprived
of this liberty by means of a criminal prosecution, he must have
been able to comprehend and to know in advance that if he commits
certain acts, such acts will violate the provisions of a penal statute,
plain and definite in its statements.
Much stress was laid upon cases involving the statutes in question,
but an examination of them disclosed “ that the precise question to
be here determined has not been passed upon by the courts.” Such
a statute enables the legislature to delegate its powers to agents who
may investigate and determine what acts of a citizen constitute a
crime. “ Clearly this is not due process of law, because due process
of law involves the requirements that criminal statutes have definite
ascertainable standards, of guilt.”
A decree for an injunction was accordingly allowed.
This case came on appeal to the Supreme Court of the United
States, where it was decided January 4, 1926 (40 Sup. Ct. 126). The
judgment below was affirmed, Justice Sutherland, speaking for the
court, emphasizing the rule as to certainty as an element of criminal
law, saying in part:
That the terms of a penal statute creating a new offense must be
sufficiently explicit to inform those who are subject to it what con
duct on their part will render them liable to its penalties is a wellrecognized requirement, consonant alike with ordinary notions of
fair play and the settled rules of law; and a statute which either for
bids or "requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ
as to its application violates the first essential of due process of law.

141

WAGES

In its opinion in United States v. Capital Traction Co. (34 Ap
peals D. C. 592), the Appellate Court of the District of Columbia
said:
The dividing line between what is lawful and unlawful can not
be left to conjecture. The citizen can not be held to answer charges
based upon penal statutes whose mandates are so uncertain that they
will reasonably admit of different constructions. A criminal statute
can not rest upon an uncertain foundation. The crime, and the ele
ments constituting it, must be so clearly expressed that the ordinary
person can intelligently choose, in advance, what course it is lawful
for him to pursue. Penal statutes prohibiting the doing of certain
things, and providing a punishment for their violation, should not
admit of such a double meaning that the citizen may act upon the
one conception of its requirements and the courts upon another.
This statute was said to present a double uncertainty, the words
“ current rate of wages ” being without definite or specific meaning,
while the qualifying word “ locality ” might include an area of such
wide variation as to afford no real standard of judgment. These
defects being fatal, the statute could not be enforced.

W e e k l y D a y o f R est— C o n stru ctio n o f S t a tu te — O b serv an ce
o f S u n d a y as R eligious D u t y — State v.

Chesney, Criminal Court
of Appeals of Oklahoma (Februm'y
1925), 233 Pacific Reporter,
page 236.— J o h n S. C hesn ey w as e n g a g e d in the g r o c e r y business
in O k la h om a C ity , an d h a d been e n g a g e d in such business f o r a c o n
sid erable len g th o f tim e. H e b e lo n g e d
C h u rch an d ob serv ed fr o m F r id a y at
d ow n as h is S a b b a th , w h ich w as p a rt
ch u rch . O n S u n d a y C h esn ey k ep t h is

to th e S ev en th D a y A d v e n tis t
su n d o w n to S a tu rd a y at sun
o f th e re lig io u s b e lie f o f the
store op en .

Sections 1825 and 1826, Compiled Statutes of 1921, forbade the
following acts from being done on the first day of the week:
Servile labor, except works of necessity or charity.
Trades, manufactures, and mechanical employment.
All sh ootin g , h orse ra c in g , o r g a m in g .
All manner of public selling, or offering or exposing for sale
publicly, of any commodities, except that meats, bread, and fish may
be sold at any time before 9 o’clock in the morning, etc.
It is sufficient defense in proceedings for servile labor * * *
to show that the accused uniformly keeps another day of the week
as holy time, and does not labor upon that day, etc.
Chesney was arrested and his business closed up bv the county
attorney for violating the Sunday law. On trial the defendant was
found not guilty of the crime of Sabbath breaking and the State
appealed.

142

DECISIONS OF THE COURTS

The criminal court of appeals stated that the quoted sections of
the law had been construed by the court in the case of Kreiger v.
State (12 Okla. Cr. 566, 160 Pac. 36), and accordingly quoted from
the syllabus of that case:
Our Sabbath law proceeds upon the theory, entertained by most
of those who have investigated the subject, that the physical, intel
lectual, and moral welfare of mankind requires a periodical day
of rest from labor.
Our legislature has wTisely and properly, however, refrained from
interfering with or coercing the conscience of those who uniformly,
conscientiously, and religiously keep another than the first day of the
week as holy time, by exempting them from the penalties of the law;
provided they work on the first day of the wTeek in such a manner
as not to interrupt or disturb other persons in observing the first day
of the week as holy time.
The legislature intended to give them a substance and not a
shadow; hence we hold the term “ servile labor,” as used in our Sun
day statutes, to be used as synonymous with the term “ secular labor.”
Courts which hold that to require Sabbatarians to keep our Sun
day does not prevent them from also keeping the seventh day over
look the fact that under the divine commandment that these people
are striving to obey it is as imperative that they wTork six days as that
they rest on the seventh, and that, if their conscience compels them
to rest one day, and the law also forces them to rest another, they
will thus be forced to violate the first provision of the commandment
they are consciously attempting to keep.
Under the above ruling the court was of the opinion that the
judgment of the lower court should be affirmed.
The judgment was therefore affirmed and the appeal dismissed.

W eekly D a y o f R est — Construction o f S tatute -— P o w e r .
H ouse— R epair S hop— People v. New York Central Railroad Co.,

Supreme Court of New York, Appellate Division (November 28,
19%4), 206 New York Supplement, page 71$.—On Sunday, March
19, 1922, an inspector of the State department of labor observed
that one Nichols was assisting in setting a valve in a drill in a power
house maintained by the New York Central Railroad for the opera
tion of its trains running into and out of the Grand Central Termi
nal. Mechanics must be present at the plant at all times for the
purpose of maintaining the equipment and making emergency re
pairs, as the plant is operated 24 hours a day. The defendant was
convicted by the court of special sessions of violating the provision
o f the labor law (Acts 1921, ch. 50) that workmen in factories shall
have one day o f rest in seven, and, when the day is not a Sunday,
that a schedule be filed showing the substituted arrangement. On

WEEKLY BAY OF REST

143

the appeal the defendant admitted that a schedule was not posted
or filed with the commission. It appeared from the testimony that
the repair work was done upon a gallery within the power house,
on which gallery was a lathe and drill press. Most of the repair
work was done here, though the mechanics made repairs in all parts
of the power house. An exception in the law relieved the employer
of persons working in a power house, generating plant, and other
structures owned or operated by a public-service corporation other
than construction or repair shops, from compliance therewith, but
the State contended that, “ this being a repair shop within a power
house, the defendant is guilty of a misdemeanor.” The court, speak
ing through Mr. Justice Martin, said:
The case of People v. Transit Development Co. (178 App. Div.
288, 165 ST. Y. Supp. 114) is relied upon and appears to sustain that
contention. We are unable to agree with that opinion, for the rea
son that it is apparent that the exception in the statute was to permit
emergency work to be performed in power houses furnishing elec
tricity for the operation of trains and other similar purposes. The
exception includes all power houses generating electricity and oper
ated by public-service corporations. We realize the statute provides
that construction and repair shops of a public-service corporation
are not exempted, but that provision has reference to separate or
independent construction or repair shops, and not to those doing
emergency work required for the continuous operation of a power
plant and used on Sundays solely for such purpose. In this case
it appears that the work that was being done was a necessary inci
dent to the operation of the plant, and it seems to us that such work
was intended to be excepted from the operation of the statute.
It did not appear that the defendant attempted to evade the
law by having repair work done within the power house. The
burden was on the State to prove a crime and the court was of the
opinion that it did not prove that a crime had been committed. In
conclusion the court said:
I f the construction urged for the people were to be sustained
those employed in power plants on Sunday to repair the machinery
of the plant, even though it had been stopped temporarily by acci
dent, would be guilty of a crime.
The judgment of conviction was reversed.
A case before the Supreme Court of Minnesota likewise turned on questions
of classification, but in that State exceptions to the application of a law
proposing to regulate continuous employment were held to be fatal to the
act. An employee operating an engine room and power plant of a hotel was
said by the court to be doing the same kind of work that he might lawfully
do under the act in other establishments. “ To be valid, it must operate alike
upon all who are similarly situated.” As the act in question did not meet
this requirement, it was declared to be in violation of both State and Federal
constitutions, and therefore void. (State v. Pocock (1925), 201 N. W . 610.)

144

DECISIONS OF THE COURTS

W orkmen ’ s C ompensation— A ccident— B urns C aused by U se of
C hemical —Ward v. Beatrice Creamery Co., Supreme Court of

Oklahoma (November 12, 1924), 230 Pacific Reporter, page 872.—
B. O. Ward, employed as a pasteurizer in the creamery department
of the defendant company, was required to use a substance known as
soda ash in the treatment of cream in a room where the temperature
was sometimes as high as 120° Fahrenheit. While so employed the
plaintiff’s body 44became burned, scalded, and salivated,” causing his
health to be undermined, disabling and disfiguring him, and dis
qualifying him for work as a pasteurizer. The use o f the soda ash
continued from June, 1922, until March, 1923. Ward brought an
action for damages in the sum of $36,000. From a judgment sustain
ing a demurrer the plaintiff appealed. The only question that the
supreme court found to be decided was whether the injury came
within the jurisdiction of the State industrial commission. The
plaintiii stated that the commission refused to take* jurisdiction of
the case when submitted to it before the filing of the action for
damages. The court held that in that case he should have appealed
the case to the supreme court, in that way giving the supreme court
the power to assume jurisdiction to pass upon the question in the
original action. The court also held that the “ failure of the State
industrial commission to assume jurisdiction would not thereby
become effective to confer jurisdiction upon the State court in this
case, if it did not have jurisdiction in the first instance.”
The plaintiff contended that the injury was not the result of an
accident, and that therefore it was not covered by the compensation
act. The supreme court said:
While it is true that nothing happened suddenly to him, yet the
condition was brought about by the continuous use of the soda ash
in the heated condition of the place in which he had to work, between
the months of June, 1922, and March, 1923.
The court quoted from its decision in Winona Oil Co. v. Smithson
(87 Okla. 226, 209, Pac. 398):
The term “ accidental injury,” as used in the act, must not be given
a narrow meaning, but, according to the great weight of English
and American authorities, the term is to receive a broad and liberal
construction with a view of compensating injured employees where
the injury results through some accidental means, was unexpected
and undesigned, or may be the result of mere mischance or of mis
calculation as to the effect of voluntary action.
The supreme court was of the opinion that the injury due to burns
caused by the use of the soda ash was compensable as an accidental
injury, and that in such a case the State industrial commission has
exclusive jurisdiction to grant relief.
The judgment sustaining the demurrer was therefore affirmed.

145

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

orkmen ’ s

C ompensation— A ccident— D eath

from

I nhaling

Gas—Cantor v. Elsmere Garage et al., Supreme Court of New York,

Appellate Division (.November 12, 1925), 212 New York Supplement, page 327.—H. Cantor, who was employed by the Elsmere
Garage, on December 21, 1924, while working in his employer’s
garage in the regular course of his employment, inhaled carbon
monoxide gas generated by the running motors in the automobiles
in the garage, from which he died. The industrial board found
that the death was naturally and unavoidably the result of the in
juries which he received. From an award in favor of the widow
and minor children the employer and insurance carrier appealed.
The supreme court on review held that the evidence wTas sufficient
to sustain the finding as fact, the only question involved in the
appeal being as to the cause of the death. It appeared that the
deceased was working with one John Hary, and that the two men
moved a car into position while the engine was running. Cantor
then went to the door to admit another car, Hary noticing that
Cantor “ looked funny.” The deceased a few moments later fell
down, made a noise two or three times when breathing, and died
shortly thereafter. There was a strong smell of gas in the garage
and the doors were closed. The ambulance doctor found when he
arrived that Cantor’s face and lips were blue, which was conceded
to be the effect of carbon monoxide poisoning. The supreme court
was of the opinion that the accident was the inhaling of the carbon
monoxide gas, and that the presence of the gas was unexpected, and
that while the breathing was voluntary, “ the breathing of a poison
gas was not voluntary.”
The court found there was present every element of accident and
held that the direct resultant injury was poison and death. The
award was accordingly affirmed.

W orkm en’s Compensation— Accident— Disease— Cancer F o l
lowing Trauma —Austin v. Red Wing Sewer Pipe C oS u p rem e

Court of Minnesota (June 5, 1925), 204 Northwestern Reporter,
page 323 —Henry Austin, employed by the Red Wing Sewer Pipe
Co., was engaged in unloading coal from a gondola car when a
piece of soft coal weighing 3 or 4 pounds fell back and struck him
upon the cheek. The wound bled profusely. It was washed and
bandaged, and since has been the subject of bandage and care. The
cancerous nature of the injury was not definitely known for about
a year and a half, during which Austin worked practically all of
the time. When the nature of the injury became known a claim was
made for compensation, which the commission allowed. The case
was taken to the supreme court on the ground that the evidence did

146

DECISIONS OF THE COURTS

not justify the award. The medical testimony on the claimant’s
behalf was to the effect that the cancer resulted directly from the
injury. The fact that the cause of cancer is not definitely known
and that various theories are advanced was said not to contradict th^
testimony given, taken together with the other evidence in the case.
The court said in part:
It is not for us to decide as a scientific fact that trauma causes
cancer or that cancer is a medical mystery. The employee in the
course of his employment suffered an injury, upon his cheek, at a
place previously free from blemish. Under constant care, it devel
oped a malignant growth which was eventually diagnosed as cancer.
The circumstance alone is pretty strong evidence that the injury was
the proximate cause of the result, and would be quite convincing
to the mind of a layman. There is no apparent break in the chain
of causation. I f the medical profession conceded that it did not
know the cause of cancer, the connecting events between the cause
and effect in this case might be sufficient to justify the conclusion
that the injury was the legal cause, and that the result should be
compensable.
The supreme court reached the conclusion that there was sub
stantial support for the award so that it could not be said “ to rest
01\ surmise or suspicion,” and it was accordingly confirmed.

orkm en’s

C o m p e n s a t io n — A

C a u s a l C o n n e c t io n —Robertson

cc id en t

— D

is e a s e —

P n e u m o n ia —

v. State Industrial Accident Com
mission, Supreme Court of Oregon (April 28, 1925), 235 Pacific
Reporter, page 684.—William L. Robertson, employed by Stockton
Bros., who were engaged in construction work, suffered an accidental
personal injury to his leg, arising out of and in the course of his
employment. Within the required time the claimant filed a report
of the injury and sought to recover for pneumonia, which he claimed
resulted from the accidental injury to his leg. The commission
refused to make any award and claimant appealed to the circuit court
of the State of Oregon. On trial before a jury testimony was pre
sented on behalf of the claimant, but none for the defendant; the
jury found that claimant suffered an accidental injury to his leg;
that he was confined in a hospital as a result thereof, and because of
the pneumonia growing out of and as the direct proximate result of
said injury to his right leg, that he was confined eight weeks, and
that he developed pneumonia as the proximate result of and by reason
of the original injury. The commission appealed from the judgment
o f the circuit court reversing its finding.
The law under consideration provided for accidental personal
injuries to workmen arising out of industrial occupations, and the

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

147

supreme court observed that it was not a scheme o f health insurance
nor was it devised to insure against occupational or general diseases.
The court said:
It may be said in general that disease arising in the course of
employment is not within the embrace of the compensatory provisions
o f the act. However, if the disease arises from an accidental per
sonal injury received in the course of his employment in a hazardous
occupation, as defined by the law, such disease does come within the
embrace of the compensation act.
As the jury found for the claimant, and there was evidence to
support the finding, the supreme court could not reverse the judg
ment of the court of appeals. The judgment was therefore affirmed.
W orkmen ’s C ompensation— A ccident— D isease— T uberculosis—
Causal C onnection— Froze v. McClelland Co., Supreme Court of
Iowa {November 17, 1925), 205 Northwestern Reporter, page 737.—
The complainant, employed by the McClelland Co. as a woodworker,
was on September 28, 1923, engaged with five or six other employees
in moving a heavy oaken door toward an elevator. In such opera
tion, and while the door was near a wall and the plaintiff was between
the door and the wall, the door tipped in his direction and squeezed
the plaintiff by the weight of it against the wall. The accident was
momentary, the door being immediately righted, and the coemployees
did not observe it at the time. The complainant continued his assist
ance in moving the door, but immediately afterward he lay down
on a bench, feeling quite sick for the time being, and it was at this
time his coemployees learned that he claimed to have been injured.
H e worked for about three succeeding days, during which he com
plained of the injury, and on the third day reported to the foreman,
who sent him to the company doctor. The doctor found a small red
spot on his chest and unsatisfactory internal conditions in the chest.
The patient was sent to bed, where he developed a temperature and
a serious abscess in one of his lungs, the final development being pul
monary tuberculosis, which rendered the plaintiff a permanent in
valid. Compensation was allowed upon his hearing before an arbi
trator, by the industrial commission on review, and by the district
court on appeal. The insurance carrier and employer appealed on
the ground that there was no causal connection shown between the
injury and the tuberculosis.

The supreme court, on reviewing the record, noticed that the
evidence showed no illness prior to the injury but did show a rapid
development of tuberculosis after the injury, together with medical
authority showing that tuberculosis may be accelerated by traumatic
causes. The supreme court relied a great deal upon the opinion
filed by the industrial commissioner, in which he cited decisions of

148

DECISIONS OF THE COURTS

the courts of last resort of three States wherein it was found that
acceleration of pulmonary tuberculosis had resulted from traumatic
causes. (Retmier v. Cruse, 67 Ind. App. 192, 119 N. E. 32; State
ex rel. v. District Court, 138 Minn. 334, 164 N. W. 1012; Lundy v.
George Brown & Co., 93 N. J. L. 107,106 Atl. 362.)
Finding the evidence sufficient to sustain the finding that the
tuberculosis was the cause of the injury, the supreme court affirmed
the judgment.
The same court, in a slightly earlier case (Guthrie v. Iowa Gas & Electric
Co. (June 25, 1925), 204 N. W. 225), found itself unable to uphold an award
made by the industrial commissioner in a case of death from tuberculosis.
However, the claim was not for the death, but for the loss of a limb, which,
it was claimed, had been injured in March, 1917, a tubercular affection de
veloping some two years later to the extent of requiring an amputation in
1922. The leg was struck, and some pain was suffered at the time, but em
ployment continued regularly for some two months, other employment follow
ing. The court, summing up the matter as to the testimony of the experts,
found that the blow on the knee in 1917—
might have injured the knee so that it might have become a seat for tubercular
infection which developed and showed itself in 1919, but that the tubercular
condition of the knee might have also resulted without any blow whatever,
and the same condition that existed in the patient have been brought about
without any injury having occurred.
Coming to the conclusion that the finding of the industrial commissioner
was not sustained by “ sufficient competent evidence/’ the court reversed the
judgment and remanded the case.

W o r k m e n ’s
v er —Brodirts

C o m p en sa tio n — A c c id e n t — D ise a se — T y p h o id

F e

Case, Supreme Judicial Court of Maine {December
11, 1924), 126 AtTxmtic Reporter, page 829.—One Brodin was em
ployed by the State highway commission, and was furnished board
and lodging at a camp located near the road on which they were
working. He drank the water furnished in the camp and became
ill with typhoid fever, incapacitating him for work for some time.
Compensation was claimed and awarded by the commission. The
commission found that he contracted the fever from using the water
furnished him while in the camp, and that the fever so contracted
was a personal injury by accident arising out of and in the course
of his occupation. The State highway commission appealed, con
tending that there was no accidental injury, and protesting the find
ings of the commission. The award was sustained.
It had been found as a fact that the claimant contracted typhoid
fever from the water furnished, and was consequently disabled.
The defendant contended, however, that the finding of law that
the fever contracted was a u personal injury by accident ” was
erroneous, as the fever from which the employee suffered had “ no
traumatic origin.” It claimed that under the statute, “ in the absence
of an outside, visible, causative accident, or one of traumatic origin,

w o r k m e n ’s c o m p e n s a tio n

149

the disease o f typhoid fever is not compensable.” The court, in
referring to the contentions of the defendant, admitted that the
sole question in the case was “ whether the claimant sustained a
‘ personal injury by accident,5” and in considering the point said:
For a definition of the word “ accident” we content ourselves
with that already adopted by our own court [citing cases]. But
neither in these cases, nor in any case, has our court declared as a
positive and general rule that a fatal disease, not occupational, nor
one preexisting and aggravated by exposure, strain, or other im
pelling circumstances, is noncompensable, unless preceded by and
growing out of a traumatic injury.
Extended consideration was given to English and American cases,
in the course of which the court said:
In Yennen v. New Dells Lumber Co. (161 Wis. 370, 154 N. W.
640), the defendant supplied drinking water to its employees for
their use while on the premises. Vennen drank the water during
the hours and on the premises when and where he was employed.
Death from typhoid fever ensued. The court in that case said:
“ The term 4accidental,’ as used in compensation laws, denotes
something unusual, unexpected, and undesigned. The nature of it
implies that there was an external act or occurrence which caused
the personal injury or death of the employee. It contemplates an
event not within one’s foresight and expectation resulting in a
mishap causing injury to the employee. Such an occurrence may be
due to purely accidental causes, or it may be due to oversight and
negligence. The fact that deceased became afflicted with typhoid
fever while in defendant’s service would not in the sense of the
statute constitute a charge that he sustained an accidental injury;
but the allegations go further and state that this typhoid affliction
is attributable to the undesigned and unexpected occurrence of the
presence of bacteria in the drinking water furnished him by the de
fendant, as an incident to his employment. The facts and circum
stances clearly charge that Vennen’s sickness was the result of an
unintended and unexpected mishap incident to his employment.”
The court concluded that “ in the majority of jurisdictions, and we
think by weight of authority,” it has been held that such disease is
compensable, “ although not preceded by traumatic causes, provided
it is clearly shown that the disease arose out of and in the course of
the employment and was unusual, undesigned, unexpected, and
sudden.”
The appeal was accordingly dismissed and the decree affirmed.
W

orkmen ’ s

ease— Causal

C ompensation— A ccident— E xposure to C old— D is
C onnection—Lemer v. Rump Bros., Court of Ap

peals of New York (October 20, 1925), 11$ Northeastern Reporter,
page 331^.—Maurice Lerner, a salesman employed by Rump Bros., on
the morning of June 2, 1923, was showing fruit and vegetables to
93383°—26------11

150

DECISIONS OF THE COURTS

a customer in the refrigerator of his employer’s plant, which he
rarely entered. Because of the sudden transition from the atmos
phere on the outside of the refrigerating plant to the cold atmos
phere of the interior, Lerner received a chill which, as found by
the industrial board, “ naturally and unavoidably caused a cold to
develop,” and as a result pulmonary edema, cerebral embolism, and
septic endocarditis developed and caused his death on November
22, 1923, the proximate cause of the death being the injury he
received in the refrigerator of his employer’s plant. An award based
on these findings was affirmed by the appellate division, and the
employer and insurance carrier appealed.
The question was whether Lerner’s death was due to an accidental
injury and arose out of the employment. Death was due to disease,
and the disease was not an occupational disease. A distinction was
pointed out between accidental injury and disease, but it was said by
the court that disease may be an accidental injury, the exception aris
ing out of abnormal conditions which must be "established to sustain
an award.
In order to recover an award when a disease not the natural and
unavoidable result of the employment is developed during the em
ployment, it was held that, first the “ inception of the disease must
be assignable to a determinate or single act, identified in space or
time; secondly, it must also be assignable to something catastrophic
or extraordinary.” A causal connection was sought between the
exposure to the cold of the refrigerating plant and the death of
Lerner as a result. The temperature of the plant, according to the
court, “ must have been less than the freezing point of fruits and vege
tables, and the outside temperature was probably not excessive.” The
court of appeals was of the opinion that “ the exposure, although
occurring at a definite time and place, was not catastrophic or extraor
dinary.” It was further considered that “ a resulting cold would
present itself as a disease and not as an accident.” In holding Ler
ner’s death from disease not compensable as from “ accidental in
jury ” the court in conclusion said:
The definite event here is the change from a hot room to a cold one,
as if one should step out of a hot room into the cold in the winter
time without adequate protection. To call the sequent cold an acci
dental injury would be to distort the fair meaning of the statute and
the underlying principle of compensable cases.
The order was therefore reversed, the award of the State indus
trial board vacated, and the claim dismissed.
The same court that was reversed in the above case had before it a case of
quite similar nature, in which it took the view that an employee engaged regu

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

151

larly in the work of going into an icebox, and supplied with clothing specially
Intended to meet the conditions of his employment, did not suffer an accidental
injury when he suffered illness from the exposure. “ He knew exactly what
conditions would there be met. There was no special, unusual, or increased
hazard.” An award by the industrial board was therefore disallowed. (D’Oliveri
v. Austin, Nichols & Co. (1925), 207 N. Y. Supp. 699.) It is evident from the
decision of the court of appeals in the Lerner case, however, that no such dis
tinction as that implied in the quoted matter was necessary to negative the
claim.

W orkmen ’s C ompensation— A ccident— F reezing op H and W hile
C utting I ce— Shernnam, v. Flint Spring Water Ice Co., Supi'eme

Court of Michigan {April 3, 1925), 202 Northwestern Reporter,
pag-e 936.— George Sherman was employed by the defendant ice
company, his duty being the pushing of cakes of ice through a
channel to the saws by means of a pike pole. While so engaged the
ice in a large cake gave way, causing him to lose his balance. In
order to save himself he threw his right arm forward, his hand
going into the water far enough to wet the mitten he was wearing.
He took off the mitten, dried his hand on his clothing, put the mitten
on again, and worked about two hours until quitting time. He then
discovered his thumb and some of his fingers were frozen. The ther
mometer that day registered 17° below zero. A claim was made for
compensation, and upon an award being granted the employer ap
pealed on the ground that there was no accident within the meaning
of the compensation law.

The plaintiff contended that it was the slipping and falling which
constituted the accidentyand to this the supreme court said:
I f we concede that the slipping and falling constituted an accident
it does not materially strengthen plaintiff’s case, because no injury
resulted therefrom. As soon as plaintiff straightened up and stood
on his feet he was as physically intact as he was the moment before
he fell.
The court held that the injury which plaintiff received was “ not
the result of slipping and falling,” but “ was the result of deliber
ately wearing a wet mitten for two hours when the thermometer was
17° below zero;” In conclusion, the court said:
After he fell and wet his mitten, had he dried it or thrown it aside
and obtained another he would probably have had no injury, but,
be that as it may, wearing a wet mitten on zero day and freezing his
hand is not an accident within the meaning of the compensation act.
Getting one’s hands wet while engaged in handling ice are natural,
if not necessary, incidents of the work. We think no compensable
accident was shown.
The award was therefore vacated.

152

DECISIONS OF THE COURTS

W orkmen ’ s C ompensation — A ccident— I ndustrial D isease—
M usculospiro P aralysis— Chop v. Swift & Co., Supreme Court of
Kansas (March 7, 1925), 238 Pacific Reporter, page 800.— Theresa
Chop, employed by the defendant packing company, was carrying
casings stuffed with frozen meats from one part of the plant to an
other, the method used being to carry them on her left arm to the
number of 15 to 24 links. The meat was quite cold and the tempera
ture of the room was low. She claimed that her arm became so cold
that it was numb, and that buckets of warm water were provided
into which she would put it after removing the sausage. She testi
fied that after working about 30 days she had pains in her arm.
A Doctor Faust treated her, first noticing what is called “ wrist
drop,” and later diagnosing her affliction as “ musculospiro paraly
sis.” His theory was that the exposure to cold was the cause. A
Doctor Nesselrode testified that he treated her and came to the con
clusion that the exposure was a factor in causing what he called
neuritis. He also stated that the disease “ might be caused by a di
rect injury or trauma to the nerve, or by chronic infection, or by
exposure to extreme cold.” The claimant had since worked in two
other packing houses, and in an application for insurance in an em
ployees’ mutual benefit fund at one of them she represented that “ to
the best of her knowledge and belief she was in good physical con
dition and free from defects.” The trial jury concluded claimant
was not entitled to compensation and an appeal was taken.

The supreme court, on reviewing the record, said:
The act [workmen’s compensation act] does not provide for occu
pational diseases, but only for injuries by accident sustained in the
course of employment and arising out of it. Was there an accident,
or was the injury the result of an accident? There was no force or
bodily injury of accidental origin. According to the testimony, the
injury was the consequence of coldness which resulted in exhaustion
and low vitality, culminating in the disease of paralysis. It was not
an unexpected and untoward event, but, as the physician said, was
something which may follow exposure and render the employee
liable to diseases like pneumonia, neuritis, or paralysis, and can not
be regarded as an accidental injury as distinguished from a disease.
The case was held to be within the authority of Taylor v. Swift
& Co. (114 Kan. 431, 219 Pac. 516), wherein the court said:
But there must be some accident, some mishap, some untoward,
unexpected event arising out of and in the course of the employ
ment from which the injury is occasioned. Here there was no acci
dent. The exposure caused by working in and out of a cooler or
refrigerated wareroom is undoubtedly hard on the human constitu
tion, it may wear down and gradually weaken a workman’s powers
of endurance and render him more liable to various diseases, includ
ing possibly transverse myelitis as contended for in this case by
plaintiff, but such work and such exposure, although regrettable

153

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

consequences flow therefrom, do not constitute an industrial accident
within the meaning of the compensation act.
Being of the opinion that the injury in the instant case could not
be regarded as an accidental one within the meaning of the compen
sation act, the court affirmed the judgment of the trial court.

o r k m e n ’s

C o m p e n s a t io n — A

E m p l o y m e n t — I n f e c t io n

from

cc id en t —

C ontact

I nju ry A

w it h

r is in g

out

C orpse — C o n st r u c

of S t a t u t e — Connelly v. Hunt Furniture Co ., Court of A p
peals of New York {March 31, 1925), lift Northeastern Reporter,
page 366.—Harry Connelly, employed by an undertaker as an embalmer’s helper, while handling a corpse which by reason of the
amputation of a leg had become greatly decayed and was full of
gangrenous matter, scratched a pimple on his neck with his finger
which was infected with the matter from the corpse. General
blood poisoning set in, causing his death. A petition for compen
sation was filed by his dependent mother and an award obtained for
death benefits. The appellate division reversed the award and
dismissed the claim, holding that the contact was intentional and
not accidental, nor was there any traumatism. The industrial
board appealed, securing a reversal of the appellate division. Mr.
Justice Cardozo, speaking for the court, on reviewing the record,
said:
A trifling scratch was turned into a deadly wound by contact with
a poisonous substance. We think the infection of the poison was
itself an accidental injury within the meaning of the statute. More
than this, the contact had its occasion in the performance of the
servant’s duties. There was thus not merely an accident, but one
due to the employment. We attempt no scientifically exact dis
crimination between accident and disease, or between disease and
injury. None perhaps is possible, for the two concepts are not al
ways exclusive, the one of the other, but often overlap. The tests
to be applied are those of common speech.
t io n

I f the death was the outcome of an accident, as the court thought
it was—
Only a strained and artificial terminology would refuse to identify
the accident with the pernicious contact and its incidents, and con
fine that description to the scratch or the abrasion, which had an
origin unknown. * * * The whole group of events, beginning
with the cut and ending with death, was an accident, not in one of
its phases, but in all of them. I f any of those phases had its origin
in causes engendered by the employment, the act supplies a remedy.
In viewing the infection as an “ isolated concept ” and ignoring
the manner of its coming, the court said that upon the authority of
science “ infection is a disease. It may be this, and yet an accident

154

DECISIONS OF THE COURTS

too.” It was observed that sunstroke, strictly speaking, was a
disease, but that the suddenness of its approach and its catastrophic
nature “ have caused it to be classed as an accident.”
Connelly voluntarily scratched the pimple with the polluted
finger, and the court admitted that if he had knowingly injected the
germ into the cut there would have been a volition inconsistent with
an accident, and that a finding might be made that there was a will
ful intention to bring about the injury, within the provision of sec
tion 10 of the compensation act; but, as it appeared, there was no
evidence of deceased’s appreciation of the danger, and none that the
contacts were “ designed and deliberate.” The right to compensa
tion was held not to be defeated by the voluntary act.
The workmen’s compensation law (subd. 7, sec. 2) speaks of “ ac
cidental injuries arising out of and in the course of the employment,”
and of “ such disease or infection as may naturally and unavoidably
result therefrom.” The contention was made that infection is here
coupled with disease as something other than an accident or injury,
though a possible concomitant. The court observed that infection,
like disease, “ may be gradual and insidious, or sudden and catas
trophic; ” and that it may be an aggravation of injuries sustained
out of and in the course of the employment, in which event it enters
into the award, “ though its own immediate cause was unrelated to
service.” The court further thought that it might be “ an aggrava
tion of injuries which in their origin or primary form were apart
from the employment, in which event, if sudden and catastrophic
and an incident of service, it will supply a new point of departure,
a new starting point in the chain of causes, and be reckoned in
measuring the award as an injury itself.”
The order of the appellate division was reversed and the award
of the industrial board affirmed by a divided court.
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 — I n j u r y o n D o c k — Egan
V. Morse Dry Dock & Repair Co., Supreme Court of New York,
Appellate Division (October SO, 1925), 812 New York Supplement,
page 56.—Michael Egan was engaged in the work of repair and
alteration of a vessel lying in the navigable waters of New York
Harbor alongside one of the piers which formed part of the defend
ant’s place of business. He was directed to leave the ship on an
errand assigned by his foreman, and while returning by means of a
ladder he was thrown to the dock, by the fact that the ladder slipped,
suffering disabling injuries. He sued under the Federal employers’
liability act of 1908 (85 Stats. 65), on the ground that the employer
had failed to provide a reasonably safe place in failing to secure the
ladder. The trial court dismissed the complaint on preliminary

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

155

pleadings, and the plaintiff appealed. Judge McAvoy delivered an
opinion for the appellate court affirming this judgment on the ground
that the compensation law of the State applied, so that no action foi
damages would lie. The place of the injury is the test, and unless
there was a maritime tort, the right of recovery would not exist
except as provided by the law stated.
A vessel in a dry dock afloat upon any navigable waters is con
sidered as located within maritime jurisdiction, as well as one moored
to a wharf or lodged beside a pier. There is no doubt that at the
time of the injury the vessel was in navigable waters, but it is equally
undoubted that at the time of the injury the plaintiff was wholly
upon the land, and had not yet boarded the vessel, and his injury
was caused by falling upon the land, for the dock or pier was merely
an extension of the land to which it was attached.
Various cases were cited and distinguished, concluding with the
following statement:
In the light of Gonsalves v. Morse Dry Dock & Repair Co. (266 U.
S. 171, 45 Sup. Ct. 39 [see Bui. No. 391, p. 48]), decided November
17,1924, in the United States Supreme Court, where it was held that
admiralty will not have jurisdiction if the injuries sustained by the
employee were not the result of a tort committed and effected on navi
gable waters, the rule seems firmly established that a maritime tort
can not be predicated upon an injury arising upon the land and
totally consummated upon land, or the extension of the land, to wit,
a dock or pier, even though the injury occurs while attempting to
board a vessel, by means of appurtenances which are not a part of the
vessel, and which boarding is not completed at the time of the injury,
and which injury is affected by contact with the land.
As stated, the judgment below was affirmed.

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 —

J u r isd ic tio n — A

ward—

Brassel v. Electric 'Welding Co. of America, New York Court of
Appeals {November 25, 1924), H5 Northeastern Reporter, page
745.—Michael Brassel, employed by the Electric Welding Co. of
America, sustained injuries when he fell down a hatchway while
working on a vessel undergoing repairs in a dry dock in Brooklyn.
He made application under the workmen’s compensation act for
compensation. The injuries were not permanent and the term of
disability was short; the industrial board awarded him $15 a week
for 16 weeks. The defendant paid this award in full. Brassel later
brought a suit for damages. The trial judge held that the industrial
board was without jurisdiction to grant an award as the injuries
were suffered on navigable waters, and that the award was void.
He also held that the fact that it had been paid did not affect the
right of action for damages, except to require the jury to deduct it

156

DECISIONS OF THE COURTS

from the damages sustained. A verdict was returned for $1,600 and
the defendant appealed. The court of appeals decided that:
The plaintiff made claim under the statute and must be charged
with knowledge of its provisions. The statute provides (workmen’s
compensation act, Con. Laws, ch. 67, sec. 11) that the liability of an
employer thereunder shall be “ exclusive and in place of any other
liability whatsoever” on account of the injury sustained by the
employee. In the light of this provision the employer, when it ten
dered payment of the award, affixed by implication the condition that
the tender was made upon the statutory terms. The employee, by
accepting payment, signified his assent to the condition and his will
ingness to receive the money upon the terms thereby imposed. The
transaction thus resulted in an accord and satisfaction.
We are not required to decide whether the employee might have
relief upon a showing of mistake. If that might ever be, at least the
duty would be his before the beginning of the action to tender back
what he had received. He may not litigate his claim for damages
while clinging to the fruits of the contract which he affects to
disaffirm.
The judgment was therefore reversed.

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

— J u r isd ic tio n — E lec

—Lee v. Licking Valley Goal Digger Go., Court of Appeals of
Kentucky {June 19, 1925), 273 Southwestern Reporter, page 51$ .—
Willis Lee, employed by the Licking Valley Coal Digger Co., was
working on coal barges which were being unloaded by a coal digger,
a kind of steel shovel. While in the course of his employment, in
attempting to pass from one barge to another, he accidentally fell
into the river and thus came to his death. The digger was located
on a boat or barge which operated only on water. Marie Lee, the
only dependent of the deceased, filed a claim for compensation and
wTas awarded $4,000, the maximum allowed by law in such cases for
death. The employer appealed to the circuit court of Kenton
County, where it was held that the employment in which Lee was
engaged at the time of his death was maritime and not cognizable
by the compensation board, and that any cause of action was cogniz
able exclusively in admiralty, in accordance with section 2, article
3, of the Federal Constitution and laws enacted pursuant thereto.
The plaintiff appealed.
The question presented was whether or not the compensation
board had jurisdiction of the case. It appeared from the evidence
that both the employer and employee elected to come under the com
pensation act, and the question was presented whether or not such a
contract was valid, conferring upon the compensation board and on
the State courts jurisdiction of a matter which up to that time they
had no jurisdiction to hear and ^determine, and “ thus divest ad
t io n

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

157

miralty of the exclusive jurisdiction which it had up to that moment
enjoyed in matters of that character.” The court thought not, and
quoted from 7 R. C. L., p. 1039, in which it is said:
It is a universal rule of law that parties can not by consent give,
as such, jurisdiction in a matter which is excluded by the laws of
the land. In such a case the question is, not whether a competent
court has obtained jurisdiction of a party triable before it, but
whether the court itself is competent under any circumstances to
adjudicate a claim against the defendant.
Mr. Justice Sampson, speaking for the court of appeals on this
question, said:
Jurisdiction in matters exclusively maritime was not in the power
and grace of the Commonwealth to give or confer at the time of the
enactment of the workmen’s compensation law. Such causes apper
tained to admiralty alone. The parties could not therefore by agree
ment confer jurisdiction upon the board of compensation by accept
ing the terms, in writing, of the compensation law.
It is now believed settled that a State compensation act, even
though elective, is inapplicable if the person injured was employed
under a maritime contract, and was injured on water within admi
ralty jurisdiction [citing cases].
The judgment of the trial court was therefore affirmed.
But see the Brassel case, above.

W o r k m e n ’s C o m p en sa tio n — A d m i r a l t y — J u r is d ic tio n — E l e c

t io n —State

ex. rel. Cleveland Engineering Construction Co. v. Duffy
et al., Supreme Court of Ohio (June 16, 1925)) 1^8 Northeastern
Reporter, page 572.—This was an original action in mandamus in
which the Cleveland Engineering Construction Co. asked that the
defendant Industrial Commission of Ohio be directed to accept
premiums from it, payable into the State insurance fund under the
workmen’s compensation act, for the benefit of its employees who
were at times employed “ on floating vessels in navigable waters.”
The petitioner stated that it had come under the condensation act
by agreement with its employees, that it had complied with the act
and rules of the industrial commission, and had paid premiums, but
that on the 16th day of September, 1924, the commission refused to
accept further premiums. The petitioner sought to compel the com
mission to receive the premiums, to which proceeding the latter filed
a general demurrer.
The question raised by demurrer was, “ What is the extent of the
application of the State compensation act to injuries received by one
working upon a boat afloat in navigable waters?” The employees
of the petitioner were divided into eight classes: (1) Men on float
ing dredges, (2) pile-driver men, (3) men on barges and scows, (4)

158

DECISIONS OF THE COURTS

men on floating derricks, (5) men engaged in preparatory work, (6)
repair men, (7) tug men, and (8) stevedores.
Other questions raised were whether the rights and liabilities
would have a direct relation to navigation under these contracts of
employment^ and whether the application of the compensation act
would materially affect the uniformity of maritime law.
The supreme court, after careful examination of the range of
plaintiffs business, held that—
It would seem to disclose nothing that had a direct bearing upon
the maritime service, navigation, or maritime commerce, either in
terstate or foreign. In a remote degree some of the work performed
by the plaintiff may be the service in navigation and in commerce
by vessels engaged in such service following a channel dredged by
the plaintiff or tying up to a wharf which may have been built by
plaintiff, or taking refuge behind a breakwater, or piles driven by
plaintiff’s employees, but it is difficult to see how the laying of
gas or water pipes under the bed of a river or building a crib for
water supply for a city affects maritime law or navigation.
After an examination of many authorities the supreme court
believed the rule to be that “ unless some interference with maritime
law and navigation or maritime trade is shown, recovery under State
compensation laws will be allowed where the parties have contracted
with reference thereto and desire to regulate their rights thereby.”
The demurrer was therefore overruled.
The case subsequently came up for hearing (decided Dec. 1, 1925;
149 N. E. 870) on an answer made by the commission. The com
mission expressed itself “ as willing to receive premiums based on
the wages or pay roll of any of the men engaged in the employments
mentioned in the plaintiff’s petition, save and except when such men
are engaged in employments which are maritime, over which a court
of admiralty would have jurisdiction in case any of the men were
injured while so employed.”
Both parties asked for judgment on the pleadings filed, the com
mission as above, while the company averred the desire of its em
ployees and itself to accept the provisions of the compensation law
“ in lieu of and in preference to their rights under the maritime law
in all cases of injury or loss of life while engaged in said employ
ments.” The position of the court is set forth in the following lan
guage, quoted from its opinion as set forth by Judge Day:
Upon the record in this case we can not say but that at some time
some of the employees in the classes set forth in the petition may be
engaged in work purely maritime in character and nature, and then
the rights and liabilities of the parties would be controlled by the
general rules of maritime law.
In the event such contingency arises, we are of opinion that the
employer and employee can not by contract between themselves deny

WORKMEN ?S COMPENSATION

159

a court of admiralty jurisdiction and confer the same exclusively
upon the industrial commission.
The commission should, however, receive premiums based upon
the full pay roll presented at the beginning of the period of coverage,
subject to deduction of the amount o f wages paid to employees while
engaged in purely maritime work.
Taking the position that the industrial commission was “ ready
and willing ” to accept premiums subject to deductions as indicated,
the majority held that no “ clear right ” appeared entitling the peti
tioner to the writ of mandamus asked for, and it was accordingly
denied.
The chief justice and one other judge dissented as to this pro
cedure, holding that the mandamus should have been issued, so that
the industrial commission would be required to accept the premiums,
making subsequent returns of parts to which it was not entitled on
a showing of the maritime employment of the workers when such is
the case. Prior determination as to this point would be impossible,
and if, as heretofore, the commission should refuse all premiums
unless the prior determination was made, another action would be
necessary. The court was unanimous in holding that the employees
while engaged in maritime employments would not be “ entitled to
participate in the State insurance fund,” while those in nonmaritime
employments would be so entitled. The question suggests itself
whether, under a different form of insurance, an election by both
parties to settle their injury cases under the terms of a compensation
law could be interfered with in behalf of any asserted admiralty
jurisdiction by one not a party to the proceedings.
See Rrassel v. Electric Welding Co., above, p. 155.
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

— R elease — N eg li

—The Ross Codding ton, United States Circuit Court of Ap
peals, Second Circuit {February 16,1925), 6 Federal Reporter {2d),
page 191.—John Cunningham, aged 73, was employed as a night
watchman by the Great Lakes Co., a concern engaged in salvage
operations. In December, 1921, a steamer was aground in the
harbor of Buffalo and a lighter and other property belonging to
Great Lakes Co. lay alongside. Cunningham was to act as a night
watchman over and on said property. The Ross Coddington was
a steam tug employed by another concern also engaged in the sal
vage operation to transport stores, supplies, and workmen. Decem
ber 30 Cunningham boarded the tug at Buffalo in order to reach
the stranded steamer, and as the tug reached the lighter she ran
alongside slowly. Another employee of the Great Lakes Co. came
to the rail of the lighter, extended his hand to-Cunningham and
g en ce

160

DECISIONS OF THE COURTS

offered his assistance before a line had been attached from the tug
to the lighter. As Cunningham attempted to step upon the lighter
the tug moved away and Cunningham fell into the water, suffering
severe injuries. Cunningham brought a libel against the tug for
damages for his injuries, and from a decree in his favor the party
defending the action against the tug appealed.
It appeared from the evidence that shortly after filing the libel
the Great Lakes Co. paid Cunningham a sum of money thought
to be due under the workmen’s compensation law of the State, in
consideration of which he executed a general release, discharging
his employer of all claims by him against it for injuries sustained.
The party defending (technically known as the “ claimant of the
tu g” ) contended that the release under the workmen’s compensa
tion act was a valid defense in the suit against a third party for
the injuries received, but both the lower court and the circuit court
of appeals were of the opinion that the release was no bar to the
bringing of a libel against one whose tort caused the injury.
The defense was also considered as being unavailable on a broader
ground, that is, “ the Great Lakes Co. and the tug were not joint
tort-feasors.”
The libel alleged negligence on the part of the tug on inviting
Cunningham to leave the same without, having a fastening to keep
the two boats moored together, but the court was of the opinion
that “ there is no evidence wThatever that anyone invited Cunning
ham to leave the tug when he did or as he did except his fellow
employee on board the lighter.” No action in rem of this nature
“ will lie against a vessel unless and until some fault in the con
struction, management, or operation of the craft is shown by a
reasonable preponderance of evidence.” Finding np negligence on
the part of the vessel, the decree was accordingly reversed and the
case remanded with directions to dismiss the libel.

W o r k m e n ’ s C o m p e n s a t io n — A l ie n B e n e f ic ia r ie s — Esoni v.
Tisdale Lumber Co., Supreme Court of New York, Appellate
Division (May 6, 1925), 210 New York Supplement, page 24^ —
Galzino Esoni, employed by the Tisdale Lumber Co., sustained on
October 19, 1921, an accident arising out of the employment which
caused his death. An award of compensation was made Madelina
Esoni, his widow, and on February 24, 1922, an application for the
commutation of the award was made. The widow set forth in her
papers that she was an alien and was about to leave for Italy. On
April 11, 1922, the industrial board directed that one-half of the
future installments payable, as commuted, be paid to the widow
(sec. 17 of the workmen’s compensation law, Laws 1922, ch. 615).

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

161

On December 18, 1924, the board made an additional award to
the claimant in this case, Domenico Esoni, father of the deceased
employee, and a nonresident alien. Section 17 provides that:
Compensation under this chapter to aliens not residents (or about
to become nonresidents) of the United States or Canada shall be
the same in amount as provided for residents, except that dependents
in any foreign country shall be limited to surviving wife and child
or children, or, if there be no surviving wife or child or children,
to surviving father or mother whom the employee has supported,
either wholly or in part, for the period of one year prior to the date
of the accident, and except that the commission may, at its option,
or upon the application of the insurance carrier, shall commute all
f uture installments of compensation to be paid to such aliens, by
paying or causing to be paid to them one-half of the commuted
amount of such future installments of compensation as determined
by the commission.
It will be observed from the above paragraph that an award may
be made to a father or mother who are nonresident aliens only in
case “ there is no surviving wife or child or children.” The supreme
court held that these words, unqualified by other words in the sec
tion, “ would bar an award to this father, since there was in fact
a 6surviving wife.555
The claimant suggested that the words “ not residents” in the
first clause of the section be used as qualifying words, but, as the
supreme court pointed out, these words are “ immediately followed
by the alternative words ‘ or about to become nonresidents.555 The
utmost that the court considered it could do was to construe “ as if
it provided for an award to father or mother, nonresident aliens,
when, and only when, there are ‘ no surviving wife or child or
children5 who are caliens not resident (or about to become non
residents) .555
Even this construction was held to bar the claimant, since at the
time the award was made to him there was an alien widow who was
about to become nonresident. The court in conclusion held that the
legislature could not have intended “ to provide solely for that rare
case where a wife, the moment her husband is hurt or dies, immedi
ately forms a definite intention to flee to a foreign land. We think
it intended to bar the payment of moneys to an alien father or
mother in a foreign land whenever a wife or child resided therein
or intended to depart therefor.55
The award was therefore reversed and the claim dismissed.
W o r k m e n ’s C o m p en sa tio n — A t t o r n e y s ’ F e e s — C o n s t i t u t i o n a l
i t y o f S t a t u t e L im it in g F ee —Yeiser

v. Dysart (April 13, 1925),
45 Supreme Court Reporter, page 399.—Compiled Statutes of
Nebraska, 1922, section 3031, limiting attorneys’ fees for services in

162

DECISIONS OF THE COURTS

demands or suits under the workmen’s compensation act to the
amount fixed by the court, was offered as a basis of action in a suit
to suspend John O. Yeiser from the right to practice as an attor
ney, unless he should refimd to a client a fee received by him of
$620 and interest.
It was the contention of the defendant that the statute was in
contravention of the fourteenth amendment of the Federal Con
stitution, by depriving the defendant of his liberty and properly
without due process of law.
The specific question before the Supreme Court was whether
it could pronounce the law unreasonable, against the opinion of the
legislature and the supreme court of the State. The Supreme Court
of Nebraska affirmed a decree that the defendant should refund the
$620 with interest, and a writ of error was secured. Mr, Justice
Holmes, speaking for the court and the constitutionality of the act,
said:
The court adverts to the fact that a large proportion of those
who come under the statute have to look to it in case of injury
and need to be protected against improvident contracts, in the
interest not only of themselves and their families but of the public.
When we add the considerations that an attorney practices under
a license from the State and that the subject matter is a right created
by statute, it is obvious that the State may attach such conditions
to the license in respect of such matters as it believes to be necessary
in order to make it a public good.
The judgment was therefore affirmed.
W o r k m en ’s
T hree

C o m p e n s a t io n — A

m ployer s —

P ow ers

mong

C o m m is s io n — O c c u p a t io n a l

w ar d —

D is

p p o r t io n m e n t

—Schaefer dc. Co. v. Eicher, Supreme Court of Wisconsin
{December P, 192If), 701 Northwestern Reporter, page 396.—Frank
Eicher was employed as a tool sharpener concurrently by three
employers, all granite cutters. His wTork required him to work
constantly in air carrying granite dust, and as a result he con
tracted tuberculosis of the lungs. The industrial commission
awarded compensation and assessed the amount against the three
employers, each a separate amount on the basis of the number of
hours worked for each during the period of incubation of the
disease. The plaintiff brought an action to set aside the award,
contending that the commission “ is without authority to find total
compensation, and then divide the liability between several em
ployers.”
Judgment being given for the defendants, the plaintiffs (the
employers assessed) appealed from the circuit court ruling on the
ease

163

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

ground of lack of authority in the commission under the law so to
divide and apportion the award. The court observed that no prece
dent was found in American or English cases, but upheld the
ruling of the court below, saying:
The commission is empowered to find the facts. I t . found the
facts as stated. Having found the facts, the award logically and
equitably follows as a result of such facts. The appellants were
entitled to a judicial review of the commission’s proceedings. (Sec.
102.23, Stats. 1923.) But the court “ upon the trial of any such
action * * * shall disregard any irregularity or error of the
commission unless it be made to affirmatively appear that the plain
tiff was damaged thereby.” (Subd. (2) sec. 102.23.)
The next contention of the plaintiff was that the provisions of
the act giving the commission authority to make the award were
unconstitutional, even though it be considered within the legislative
intention, as an “ attempted delegation of judicial authority upon
an admininstrative body.” The supreme court quoted with approval
from Borgnis v. Falk Co. (147 Wis. 327, 358, 133 N. W. 209),
wherein it was said that the industrial commission—
is an administrative body or arm of the government which, in the
course of its administration of a law, is empowered to ascertain
some questions of fact and apply the existing law thereto, and in
so doing acts quasi judicially, but it is not thereby vested with
judicial power in the constitutional sense.
The supreme court then added: “ We hold the act in question
within the constitutional province of the legislature.”
The last objection was that the award did not include all the
employers liable, in view of the fact that during a part of the dis
abled employee’s employment he had worked part time for another
employer. The court said:
But he was not working for such employer at the time he came
down with the disease rendering him unfit for work. This was the
date at which liability became fixed. The statute says “ when at the
time of the accident ” the employee was performing services, etc., and
the statute including occupational diseases imports the same con
struction.
The judgment of the circuit court was therefore affirmed.

o r k m e n ’s

C o m p e n s a t io n — A

w ar d —

B asis — A

b i l i t y to

arn—

Leitz v. Labadie Ice Go., Supreme Court of Michigan (December 31,
19%4), 201 Northwestern Reporter, page 485.—Carl Leitz, employed
by the named defendant as a common laborer, was working on an ice
slide on February 2, 1917, when it broke and let him fall some 15
feet, severely injuring his left hip so that he was permanently crip

164

DECISIONS OF THE COURTS

pled and was unable to work for two years. He finally secured em
ployment running a punch press in a factory, at which he could work
while sitting down. At the time of the accident he was awarded
$6.78 a week for total disability, which award was paid from the date
of the accident until December, 1919, the time when he secured work.
Application was then made for a release on the ground that he was
earning more wages than he was receiving at the time of the accident,
and the contention of the company was sustained (211 Mich. 565,
179 N. W. 291, same title). The case was remanded, and the plaintiff
filed a petition for further compensation on the ground of total disa
bility, claiming that “ by reason of his accident he could no longer
continue to do the work in which he was engaged at the time the
former hearing was had, nor in a condition to do any other kind of
common labor.” After a hearing the compensation board ordered:
That subsequent to February 1, 1921, applicant should be paid
compensation at the rate of $6.78 per week during the period of his
total disability and at the rate of 50 per cent of the difference be
tween the average weekly wages he was earning at the time of the
accident and the average weekly wages he is able to earn thereafter in
the employment in which he was engaged when injured, during any
partial disability he may suffer in the future.
Compensation was therefore paid until December 18, 1923, and
$6.78 more was tendered as final payment for partial disability for
300 weeks. Defendants then applied for an order to permit them
to discontinue payments, and after a hearing the commision of the
department of labor and industry made an order continuing the com
pensation of $6.78 a week from December 11, 1923, the time the pay
ments were stopped by the defendants, for 500 weeks from the date
of the accident, “ the maximum time allowed by the act for total
disability.”
The court was of the opinion that under the act an injured em
ployee’s right to compensation “ is to be tested by his ability to
work and earn wages in the same class of employment as that in
which he was engaged when injured.” The question “ whether
plaintiff was totally incapacitated as a result of his accidental injury
from earning wages in the class of employment in which he was
engaged when injured” was considered by the court as being the
controlling question in the case, “ which was one of fact for the
commission to decide, if there was competent testimony before it
that he was not.”
It was shown that when defendants made their last application
the plaintiff had been for some time employed in a bank as a book
keeper and accountant, earning $25 a week, having qualified for this
class of work by study. It was also urged that the plaintiff could

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

165

work at common labor if be were to try, but that he preferred cleri
cal work to that of manual labor. The court said:
There, however, was sufficient conflict of testimony as to plaintiff’s
disability to perform any kind of common labor to raise a question
of fact, and, as often noted, the compensation act makes the findings
of fact by the commission conclusive, when there is any competent
testimony to support its findings.
The award was therefore affirmed.
A quite similar case was before the Supreme Court of Kansas, in which
there was permanent partial disability, and an award for 415 weeks on account
thereof. During this period the workman secured employment at a higher
rate of pay than before the injury, but the court cited one of its own decisions
construing the terms of the compensation act as to schedule benefits, holding
that their receipt does not depend on earning capacity, but on the provision
of the law as fixed by the legislature. Moreover, “ the amount a workman
is actually receiving as wages is not necessarily an accurate test of his abso
lute or comparative earning capacity.” The continuance of the benefits was
therefore upheld. (McKamin v. Armour & Co. (1925), 236 Pac. 837.)
A like position was taken by the Supreme Court of Illinois in a case of
compensated temporary total disability, followed by an award for permanent
partial disability, with resumption of work. The injured man had been a coal
loader at $8.99 per day. He got work after the injury as a trapper at $4, and
later as a checkweighman for his union at $9.50. The court held that profit
able employment at lighter work was not evidence of “ decrease of the physical
disability previously shown,” and refused to sustain a motion for review.
(Scranton & Big Muddy Coal & Mining Co. v. Industrial Commission (1925),
146 N. E. 442.)

W o r k m e n ’ s C o m p e n s a t io n — A w ar d —B asis — B o n u s — Moss v.
Aluminum Go. of America, Supreme Court of Tennessee ( October
19, 1925), 276 Southwestern Reporter, page 1052.—B. J. Moss, em
ployed by the Aluminum Co. of America, was killed in the course
of his employment. A proceeding was brought by his widow for
compensation for his death for the benefit of herself and children.
The trial court entered a decree for $8.75 for 400 weeks, whereupon
the claimant assigned error. The only question was as to the amount
the widow was entitled to recover.
It appeared from the evidence that deceased’s average weekly pay
was $22.75, which included a metal bonus and an attendance bonus.
The defendant insisted that the petitioner was not entitled to in
clude the bonus items, but was entitled to recover only one-half the
weekly wage of $17.50, or $8.75, for 400 weeks.
The supreme court, on reviewing the record, observed that the
attendance bonus represented 25 cents per day paid to men who
wrorked six days or more per week. It was a regular bonus and had
been in effect from July, 1923, until the time of this action in 1924.
93383°— 26------ 12

DECISIONS OF THE COURTS

The deceased was employed in refining aluminum ore, and received
in addition to the attendance bonus a metal bonus, which depended
upon the collective effort of 12 or 18 men working on a certain sec
tion during any one particular week. The court further noticed
that the men were paid in two envelopes, one containing wages and
the other containing the two bonuses. It was the contention of the
plaintiff that the bonuses should be considered as part of the wage
in arriving at the basis for the award of compensation. The supreme
court, speaking through Mr. Justice McKinney, said:
We are of the opinion that the facts and circumstances, shown by
the record, are such as to justify us in presuming that the company
contracted to pay deceased these bonuses as a part of his compen
sation. We base this finding upon the fact that the agreement of
the parties was within the knowledge of the company, and it failed
to disclose same; that the company paid these bonuses to deceased,
and to its other 300 employees in the pot department, each week ;
that the sums so paid were fixed and uniform; that the employees
knew they were to receive these bonuses each week; that the com
pany had followed this uniform system of paying bonuses for several
years; that a notice as to the payment of these bonuses was posted
by the company in the pot room where deceased worked. In such
circumstances, had deceased sued for such bonuses as he had earned,
according to such schedule, the company would not be heard to say
that it had no contract with him.
These weekly bonuses were not gifts, but were compensation for
services.
Giving the act a liberal construction in favor of the employee, as
it is our duty to do, and keeping in mind the spirit of the act, which
is to pay to the dependents of a deceased employee, for a specified
time, one-half of the average weekly sum which he had been re
ceiving as a result of his employment, regardless of the source from
which same came, we feel constrained, to hold that the term “ earn
ings ” includes that character of bonuses paid by the defendant to
its employees.
For the reasons stated the decree was modified to the extent of
increasing the compensation to $11,375 a week for 400 weeks.

o r k m e n ’s

C o m p e n s a t io n — A

E a r n in g s —Testo

w ar d —

B asis — M eth o d

C om pu

v. Burden Iron Co.et al., Supreme Court
of New York, Appellate Division (January 7 ,1925), 207 New York
Supplement, page 4-54*—Charles Testo was employed as a puddler
by the Burden Iron Co. He received an award of compensation in
the sum of $17.18 a week for injuries received, and the employer
and insurance carrier appealed, the only question on the appeal be
ing as to the amount of the weekly compensation. Testo had not
worked as a puddler substantially the whole of the year immediately
preceding, as the mills were periodically closed, and there was no
evidence submitted to show the “ average daily wage which an
t a t io n of

W O R K M E N ’ S COMPENSATION

167

employee of fee same class, working .substantially the whole of the.
year immediately preceding in the same or similar employment,
earned.” It was agreed, and the evidence showed, that Testo had
during the 117 weeks immediately preceding the accident earned
$2,816.71 in his employment.
During this period he actually worked 77 weeks; 117 weeks are
2.25 years. He therefore worked an average o f 84.22 weeks per
year. Since he earned $2,81€.71 in 77 weeks, he earned while actually
w aking $36.58 per week. His average annual earnings, then, were
$1,251.85 ; that is, 34.22 times $36.58. This sum, under the evidence
in this case, reasonably represents the annual earning capacity of
the claimant “ in the employment in which he was working at the
time of the accident.”
One fifty-second part of that sum (compensation law, sec. 14,
subd. 4) made the average weekly wage of $24.07, two-thirds of
which was $16.05, the weekly compensation to which Testo was
entitled.
The award was therefore modified by changing the award to
$16.05, and as so modified it was affirmed.

W o r k m e n ’s C o m p en sa tio n — A w a r d — B a sts— Hw'XJSAia t o W o r k — ■

Gillespie v. Mc€lintic~Mwrskall (Jon Supreme C<mrt, Appellate Di
vision (November 1% 19B5),
New York Supplement, page 88.—
This is a proceeding under the workmen’s compensation law by Mur
ray Gillespie against the McClintic-Marsball Co. From an award
of the State industrial board the employer appealed.
The supreme court in a per curiam decision reversed the award
and remitted the matter to the State industrial board on the ground
u that the average weekly wage of the claimant at the time o f the
accident was not correctly determined, and upon the further ground
that the claimant, having since the accident refused work with the
appellant at a higher wage than he has been receiving, for the reason
that the appellant does not employ union labor, can not have hi&
present earning capacity valued upon a lower basis.”

W orkmen’s Compensation—Award—Basis—Review—Consoli
dated Coed Co. of St. Louis v. Industrial Commission, Supreme Court
of Illinois (December 16, 1924) > 145 Northeastern Reporter, page
1575.—Tony Sehragal, employed by the Consolidated Coal Co., was
injured by reason of an accident arising out of and in the course
o f his employment as a coal loader. He was granted an award
of $14 a week for 12f weeks for temporary total incapacity for
work and $10.03 a week for 200 weeks and $9.27 for 197 weeks for
partial incapacity. The company later filed a petition claiming

168

DECISIONS OF THE COURTS

that the injury had diminished. The industrial commission denied
the prayer of the petition, and the circuit court affirmed the com
mission. The record was taken to the supreme court on a writ of
error. After reviewing the case the supreme court said:
Compensation is not based on physical or mental disability, except
as it affects earning capacity, nor on opportunity to work, but is
based on previous earnings and earning capacity and is measured
by loss of such earning capacity due to the accident. While the
evidence shows that defendant in error’s opportunity to work has
increased since the award, it was incumbent upon the plaintiff in
error to prove that his earning capacity had increased since that
time, and this the evidence has failed to do. The evidence on the
hearing having failed to show that the compensation awarded de
fendant in error was more than 50 per centum of the difference
between the average amount which he earned before the accident
and the average amount which he is earning or is able to earn in
some suitable employment or business after the accident, the in
dustrial commission and the circuit court properly refused to reduce
the amount of the award.
The judgment of the circuit court was therefore affirmed.

W orkmen’s Compensation—A ward—B asis—W ages—I nclusion
Tips— Anderson v. Horling et al., Supreme Court of New York,

Appellate Division (July 1,1925), 211 New York Supplement, page
487.— The State industrial board granted an award of compensa
tion to John Anderson, and the employer appealed on the ground
that the board had erroneously included in the weekly wage the
amount received by Anderson as tips. On appeal, the supreme
court, being of the opinion that it did not appear that the tips had
been taken into consideration by the parties in making the con
tract of employment, reversed the award and remitted the claim
to the industrial board.
W o r k m e n ’s

C o m p e n sa tio n — A w a r d — B a sis— W a g e s o f M i n o r —

A n tic ip a t e d I n c r e a s e —Szmuda

v. Percy Kent Bag Co. et al, Su
preme Court of New York, Appellate Division (November 12,
1925), 212 New York Supplement, page 139.— Edward Szmuda,
aged 18 years, was a press tender employed by the Percy Kent Bag
Co. While engaged in his regular work his left hand was caught
in the gears of the press and his third and fourth fingers were lost.
He received a schedule award for the loss of use of 20 per cent of
the left hand. There was a finding by the industrial board that
the claimant’s wages would be expected to increase under normal
conditions, and the average weekly wage was determined at $25,
though he was earning only $18.70 a week at the time of the injury.

w o r k m e n ’s c o m p e n s a tio n

169

The employer appealed on the grounds that neither the evidence
nor the findings justified an award based on higher wages than the
employee was actually earning.
The supreme court, on review, held that the question whether
the wages would be expected to increase was one for the industrial
board to decide, and that its determination would not be controlled
by the minor’s expressed intent to continue or not to continue in the
same employment indefinitely. The employee’s expectation of receiv
ing higher wages should not “ be limited to the period covered by the
appropriate schedule award for his permanent partial disability,”
the court adding that the injury was permanent and that he must,
during his manhood, “ work and live under this handicap.”
Although the statute arbitrarily fixed the number of weeks that com
pensation would be paid for the specific injury, the supreme court
was of the opinion that “ it did not mean to limit the measure of this
loss to his wages during the few remaining years of his minority;
his loss of^earning ability will continue during manhood.”
Being satisfied that the award based on specific increase to $25
a week was authorized under the evidence, it was accordingly
affirmed.
or E m p lo y e e Re
City of Milwaukee v. Roth
et al., Supreme Court of Wisconsin (December 9, 1924), 201 North
western Reporter, page 261.—On January 8, 1923, John Roth, sr.,
about 60 years of age, sustained an injury to his right shoulder while
in the employ of the city of Milwaukee. The employer paid medical
expenses and compensation to Roth up to the time of his death. On
March 28 Roth had a stroke of apoplexy and died therefrom on
April 8. His widow applied for compensation, and on September
19 the commission found that the injuries sustained January 8
“ caused a permanent partial disability equal to 30 per cent of a loss
of an arm at the shoulder and a total disability which would have
extended for a period of 8' weeks and 4 days beyond the date of the
said death provided he had lived; that the death was not the proxi
mate result of the said accident, and provided for the payment to
the widow of a further sum made up of compensation for such per
manent disability, with reduction on account of his age and of the
balance on account of the total temporary disability.” The city
brought an action to review the award. The circuit court affirmed
the order of the commission and the plaintiff appealed.
The court pointed out that compensation for death of an employee
was distinct and separate from compensation for an injury, and that
under the statute where the employee suffered temporary total dis
W o r k m e n ’s

C om p en sa tio n — A w a r d — D e a t h

c e iv in g C om p en sation — V e s t e d R i g h t s —

170

DECISIONS OF THE COURTS

ability and permanent partial disability there arose in his favor right
to compensation for both, and death not resulting from the injury
during disability did not extinguish his right to compensation.
The award does not fix the right to, only determines the amount of,
the compensation for the injury. The right to the compensation is
fixed by the statute, the amount is merely the administrative detail.
I f the provision here in question had not been in the statute the
fund here awarded might have properly become a part of his estate
to be so administered, but as to funds of this nature the legislature
may well provide, as we deem it they here have, that such funds
shall go directly to dependents without the necessity of other pro
cedure.
It was urged that the award was the taking of public money for
a private use, and therefore violative of constitutional provisions, on
the ground that the death did not result from any injury sustained
under the employment. The court, however, said that under the
view they took of the statute “ there is no such independent gift to
the dependents. It is no more than a necessary disposition of & bal
ance due to the injured employee himself at the time of his death.”
W

o r k m e n ’s

alty—

C o m p e n s a t io n — A

C o n s t it u t io n a l it y

w ar d

— F a il u r e

P ay — P en

S t a t u t e — N o n c o m p l y in g E m p lo y e r —

State ex rel. Dushek v. Watland et al., Supreme Court of North Da
kota (November 15, 1924), 201 Northwestern Reporter, page 680.—
A. J. Dushek was employed by the manager of the defendants’ ele
vator, the defendants being engaged in the elevator and grain busi
ness at Knox, N. Dak. He had been employed on previous occasions
to assist in and about such elevator. Dushek first loaded a car of
grain, and after this work was completed a customer brought a load
of grain to be ground into feed, and Dushek sustained an injury to
his hand while this grain was being ground. There was a difference
of opinion as to the employment, the employer contending that Du
shek was employed “ for the specific purpose of loading a certain car
of grain,” and that he had “ nothing whatever to do with the opera
tion of the feed mill,” while the employee testified that his employ
ment was not limited but was for the purpose “ of assisting generally
in and about the business there being carried on,” and that the man
ager of the elevator “ specifically directed him to operate the feed
mill and grind the load of grain.” The jury found for the plaintiff
on this question of employment, and also on the question of whether
the injury was received in the course of the employment. The de
fendants had wholly failed to comply with the workmen’s compensa
tion act, so that the injured man could either sue or claim compensa
tion. The latter course was followed, and a hearing was ordered.

w o b k m e n ’s c o m p e n s a t io n

171

Compensation in the sum of $2,543 was granted and notice served
upon the defendants. They failed to make payment within 30 days,
and the relator claimed that under the terms of the act he was enti
tled to recover the amount plus 50 per cent extra as an added pen
alty imposed by the statute, and interest from the date of the award.
The trial court entered judgment in favor of the plaintiff for the
full amount demanded, that is, the sum of the award plus the pen
alty of 50 per cent and interest on the sums. The defendants ap
pealed from the judgment and from the denial of a motion for judg
ment notwithstanding the verdict, securing a modification.
It was contended on appeal that the trial court erred in awarding
the 50 per cent penalty, on the ground that that part of the com
pensation act is “ violative of the constitutional guaranties of due
process and equal protection of the laws.” As to this Mr. Justice
Christianson, speaking for the court, said:
The Federal Supreme Court has ruled that the legislature may
provide penalties for the violation of regulatory measures, and thus
promote enforcement thereof. It has also ruled that the constitu
tional guaranties of due process and equal protection of the laws
are not violated by a statute which imposes a penalty, not exceeding
25 per cent of the amount of the policy, upon an insurance company
which in bad faith refuses to pay a claim for loss under the policy
(Supreme Ruling of the F. M. C. v. Snyder, 227 U. S. 497, 33 Sup.
Ct. 292) . On the other hand, the Federal Supreme Court has said
in no uncertain terms that the requirements of due process and of
equal protection of the laws are not met where the right of judicial
review is granted only on conditions so harsh and oppressive as to
be tantamount to a denial of the right so purported to be granted.
The act made no provision for an appeal by the employer, but the
award was enforceable only by a civil action, and in such action the
employer could interpose any defense affecting the “ fundamental or
jurisdictional questions involved in the answer.” While the right
of judicial review was thus granted, the court found the condition
to be attached “ that if he is unsuccessful in his defense, he is to be
penalized.” The penalty was imposed on all employers, whether
contesting the claim in good or bad faith. The result of the statute
as interpreted by the trial court was held to be “ that the 50 per cent
penalty is automatically imposed upon every employer who is un
successful in establishing a defense against the award.” In the
opinion of the court the provision was in effect “ a denial of that
right to judicial review to which an employer is entitled under our
constitution.” In conclusion the court said:
Here there had been no final judicial determination, and the record
clearly shows that there was a reasonable controversy upon funda
mental and jurisdictional questions, and that the defendants inter

172

DECISIONS OF THE COURTS

posed their defense in good faith. It follows from what has been
said that the trial court was in error in awarding the judgment in,
favor of the plaintiff for the 50 per cent penalty, and the judgment
must be modified accordingly.
The allowance of the penalty, however, does not invalidate the
judgment, nor does the invalidity of the penalty provision affect the
validity of the workmen’s compensation act as a whole, or even the
other provisions of section 11, as this penalty provision may be
stricken from the law without in any manner affecting such other
provisions.
The judgment was therefore modified by eliminating the penalty
allowance, and as modified it was affirmed.

W o r k m e n ’s C o m p en sation — A w a r d — Judgment on Unpaid I n
s t a l l m e n t s — C o n s t r u c t io n

o f S t a t u t e —Rosandich v. Chicago,
N. S. & M. Ry. Co., /Supreme Court of Wisconsin (December P,
1924), 201 No-rthioestern Reporter, pyge 891.— John Rosandich, em

ployed by the named defendant as a section hand, while returning
from work on August 13, 1921, was injured in the foot when the
motor hand car on which he was riding was derailed. He spent
63 days in the hospital and did not return to work. Upon filing a
claim, the industrial commission awarded him $407.16 accrued bene
fits, and $14.14 a week until further ordered by the commission. The
defendant railway paid the installments until March 20, 1923. On
November 21, 1923, the plaintiff took a judgment in the circuit court
for the amount of the unpaid installments. The defendant moved
to vacate the judgment, and, upon refusal of the court to grant the
motion, appealed.

It was claimed by the defendants that there was no statutory pro
vision for entering a judgment upon an interlocutory award. The
supreme court was of the opinion that judgment for unpaid in
stallments, entered on testimony as to the amount due under the
award of the commission under statutes of 1923, section 102.18, “ is
in accordance with award, as required by section 102.20, which
does not require that judgment correspond with recitals on face of
award.” The court also said:
It is also claimed that, since the plaintiff made a number of appli
cations to the commission to modify and increase the interlocutory
award, therefore no award existed, because such applications nulli
fied and set aside the. award. This is obviously unsound. Under
the theory of appellant, all a person has to do to nullify an award
is to make an application to modify it. This is neither law nor sense.
A stipulation that the parties were within the compensation act
was held by the court to show that employee was injured while he

173

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

was engaged in intrastate work, of which the commission had
jurisdiction.
The contention that section 102.20, above mentioned, was unconsti
tutional'was considered by the court as met in the case of Booth
Fisheries Co. v. Industrial Commission (200 N. W. 775), “ which
holds in effect that since the act is purely elective, the parties, by
electing to come under it, agree and have the power to agree that
its provisions shall apply to them and be followed.”
The order was accordingly affirmed.

(Wo r k m e n ’ s

C o m p e n s a t io n — A w a r d — M o d if ic a tio n

for

I nade

—Albertsen v. Swift & Go., Supreme Court of Kamos (De
cember 6, 192^), 2S0 Pacific Reporter, page 1057.—Chris Albertsen
was injured while in the employ of Swift & Co., and it was con
ceded by the defendant that he was entitled to some compensation.
The parties agreed to settle the matter by arbitration, and the agree
ment provided that Charles A. Blair should have the power to fix
the amount of compensation and also find the character and quality
of the disability, if any. Upon the testimony taken the arbitrator
found that Albertsen had sustained injuries “ which totally incapaci
tated him from performing work for a period of 14 weeks, ending
June 12, 1923,” and further that he should be allowed compensation
“ at the maximum rate of $15 per week.” It was also found that he
was not entitled to anything for partial disability. The district
court sustained the findings of the arbitrator and the plaintiff
appealed.
The plaintiff contended that a review of the award was not barred
by the finding of the arbitrator, and that the award should have been
set aside in this case for “ gross inadequacy.” The supreme court
said:
Gross inadequacy is one of the few statutory grounds for a review
and modification of an award, and when this element is shown the
court has ample authority to modify or set it aside. To warrant a
review, however, more than mere inadequacy must appear. A gross
inadequacy is one which is beyond reason, one which shocks the sense
of justice, and evinces a lack of fair and intelligent consideration.
There was a conflict in the testimony, and as to the decision of the
arbitrator as to the facts the court said:
Where the arbitrator has in good faith made a finding of fact
based upon conflicting testimony, the court is not warranted in set
ting the award aside even if it might have come to a different con
clusion than was reached by the arbitrator upon such evidence.
The judgment was therefore affirmed, no flagrant inadequacy hav
ing been shown.
quacy

174
W

DECISIONS OF THE COURTS
o k k m e n ’s

C o m p e n s a t io n — A

w ar d

— P a r t ia l

is a b il it y

—

O'*Gara Goal Co. v. Industrial Commission, Su
preme Court of Illinois (February 17, 1925), 11$ Northeastern Re
porter, page 546.—Ervin Jones, employed by the defendant coal
company, was injured in the course of his employment, suffering a
hernia, for which an award of $17 a week for 14 weeks was made by
an arbitrator. The commission made a further award for tem
porary total disability of $9.98 a week for 402 weeks, the maximum
permissible under the workmen’s compensation act. The circuit court
set aside the order of the commission as erroneous and excessive, and
entered an award for temporary total incapacity for 14 weeks at
$17 a week, and for permanent partial incapacity for 300 weeks at
$9.98 a week. The cause was taken to the supreme court by the coal
company on a writ of error.
The claimant testified that he had not been able to work since the
injury and that it hurt him all the time. A Doctor McSparin, who
examined the claimant soon after the injury, testified that the claim
ant had a varicocele and that whether or not it was caused by the
hernia was a question that he (the doctor) would not answer.
Doctor Magnuson testified that he operated on the claimant on January 28, 1923, and that on March 27 the hernia was healed. Doctor
Magnuson had no record of a varicocele. It was admitted that the
claimant suffered the injury which temporarily totally disabled him
from work, and an award for that disability was not complained of.
The main question before the supreme court was as to the ability or
authority of the authorities to speculate as to the probable length of
partial incapacity. Speaking through Mr. Justice Dunn, the court
said in part:
This latter finding is without authority of law or basis in the evi
dence. Neither the commission nor the courts are authorized to
speculate as to the probable length of partial incapacity. That can
only be determined when the period ends. It is no more possible
in cases of temporary partial incapacity to determine when the
period of disability will end than the period of total incapacity.

T erm — H

e r n ia —

Jones contended that the injury resulted in varicocele, but the
doctors would not take a positive stand on that question. The testi
mony of the physicians tends to show that there was a complete re
covery from the effects of the injury, and does not indicate that the
varicocele, if it existed, was permanent. The only thing that con
nected the injury wit& the varicocele was that it followed the injury.
The court concluded:
The finding that the varicocele is the result of the injury can not
rest upon conjecture or surmise, but must be based on facts proved.
The finding of permanent partial incapacity is not sustained by
the evidence, and the court was justified in setting aside the award

w o b k m e n ’s c o m p e n s a t io n

175

for permanent partial incapacity, but not in making the award for
300 weeks of temporary partial incapacity.
The judgment was accordingly reversed and the cause remanded
for further hearing.
W orkmen ’s C ompensation— A ward— R ehearing on M erits—
P rocedure— Jayson v. Pennsylvania R. Go., Court of Errors and

Appeals o f New Jersey {January 19, 1985), 127 Atlantic Reporter,
page 169.— Fred E. Jayson, employed by the Pennsylvania Railroad
Co., on May 23, 1923, was engaged in repairing a platform of a
car when the head of a spike he was driving flew off and struck him
in the left eye. He continued to work until June 20, 1923. A
petition was filed for compensation under the workmen’s compensa
tion law, and upon an informal hearing the deputy commissioner
dismissed the petition on a motion by the defendant that the claimant
had produced no evidence to prove that at the time of the accident
Jayson was engaged in intrastate commerce. The defendant had
introduced testimony to the effect that all kinds of “ freight cars
were repaired at the Kearney shops, including cars from foreign
roads, loaded cars, and cars destined for points outside of New
Jersey.” In the formal determination the dismissal was affirmed.
Jayson appealed the ruling of the compensation bureau on the
authority of Herzog v. Hines, Director General (95 -*N. J. Law,
98, 112 Atl. 315), in which case it was held “ that a car repairer,
injured while working on a car which is out of use for the purpose
of having the repairs made, is not engaged in interstate commerce.”
The court proceeded to determine the compensation it considered
due the claimant “ instead of sending the case back to the compensa
tion bureau for a hearing upon the merits, as the railroad company
contended should be done.” Jayson was allowed a temporary com
pensation of $102, and also 80 per cent disability of the left eye,
amounting to the further sum of $960, and judgment for these sums
was entered. The supreme court affirmed the judgment o f the
county court of common pleas, and the company appealed to the
court of errors and appeals.
It was contended that the evidence showed Jayson to be engaged
in interstate commerce at the time of the injury, but it was further
contended, and with more force and importance, that the court o f
common pleas and the supreme court erred in not remanding the
case to be heard upon the merits.
The railroad company maintained that a no opportunity was
ever afforded to it to be heard upon the merits,” that is, “ the nature
and extent of the injury, whether temporary or permanent, when
and how it occurred, and whether it arose in the course of and out

176

DECISIONS OP THE COURTS

of the employment of the respondent.” The court of errors and
appeals, speaking through Mr. Justice Katzenbach, said:
We think the court of common pleas and the supreme court
decided the question of the character of the commerce in which the
respondent in this court was engaged at the time of his injury
properly. We feel, however, that the course of procedure taken by
the court of common pleas and affirmed by the supreme court in
determining in the state of the record before the court of common
pleas the compensation, both temporary and permanent, to which
Jayson was entitled was erroneous.
Under the circumstances of the case it should, in our opinion, have
been sent back to the workmen’s compensation bureau to have had
the compensation of the respondent determined, with leave to the
parties to take testimony with reference thereto.
The court of common pleas is not forbidden by the act to remand
the case to the compensation bureau for a rehearing upon the merits,
and “ the supreme court clearly had in its inherent power the right
to remand the case to the compensation bureau for a hearing upon
the merits.”
The judgment of the supreme court was accordingly reversed
and the case remitted to the compensation bureau to be heard upon
the merits.
W orkm en’s Compensation— Award— Remarriage o f Widow—
A dju stm en t o f B enefits— Carlin v. Lockport Paper C o N e w York

Supreme Court, Appellate Division (November 12, 1925), 212 New
York Supplement, page 65.— W illiam Carlin was fatally injured
under circumstances entitling his beneficiaries to compensation. He
was survived by a widow and four children under 18 years of age.
The award made allowed the widow 30 per cent, and each of the
four children 9% per cent of Carlin’s wages, a total of 66% per cent.
On April 5, 1923, the widow remarried, and a subsequent award of
two years’ compensation in one sum was made to her, as provided by
law. The amount allowed each child was thereupon increased to 10
per cent of the father’s earnings, to begin from the date of the
remarriage. The employer contested the award, claiming that it was
in excess of the maximum amount, 66% per cent of the average
wage, allowed by law. The court found that the increase, making
the total amount payable to the four children 40 per cent of the
wages, was in violation of the statutory provision. Awarding the
widow two years’ benefits in a lump sum was an advance payment,
“ and for the two years so covered must be considered in determining
benefits to surviving children, so as to keep the total benefits within
the statutory limitation of 66% per cent.” The increase to 10 per

177

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

cent, the maximum for each child under the law, must therefore be
deferred until two years from the date of the remarriage, when the
effect of the lump-sum payment to the widow would be exhausted.

orkmen ’s

C ompensation— A ward— R e m a rria g e

idow —

McCormick v. Central
Coal <& Coke Co., Supreme Court of Kansas (February 7, 1925),
232 Pacific Reporter, page 1071.— H . E. McCormick, employed by
A d j u s t m e n t of B enefits — D e p e n d e n c y —

the defendant company, was accidentally killed in the course of his
employment on May 25, 1920. His widow and two minor children
were entitled to the maximum compensation of $3,800, and by agree
ment between the employer and the dependents payments were made
at the rate of $15 a week, no court proceedings being had. Pay^
ments were made until October 17, 1922, when the employer learned
that the widow had been remarried since April, 1921, and stopped
payments. In June, 1923, the children, by their guardian, filed an
application for an adjustment of their claim for compensation. A n
arbitrator found that each dependent was entitled to one-third o f
the compensation, that the widow’s share ceased upon her remar
riage, and that the balance due her should not be paid to anyone.
On review the district court held that the company should receive
credit for all money paid to the widow and children, and that the
balance of the $3,800 should be paid at the same rate, namely, $15
per week, to the children, the widow not being entitled to any fur
ther share. The employer appealed from the judgment of the cir
cuit court, contending that the widow’s share should not be paid to
anyone.

The supreme court defined “ wholly dependent ” and “ partial
dependence ” :
Wholly dependent means full, complete dependence—that the in
dividual has no consequential source or means of maintenance other
than the earnings of the workman. Partial dependence may vary in
degree from wholly dependent on the one hand to wholly independ
ent on the other, and may apply to any individual “ member of the
family ” of the workman who has some substantial source of main
tenance other than the wages of the workman. The question of the
degree of dependency, naturally, is a question of fact m each case.
The court held that the compensation to dependents under the
compensation act is not controlled by the law of descent and distri
bution, but according to dependency; and further that, though the
obligation to pay those to whom it is to be paid and the amount are
fixed generally as of the time of the injury, yet they may be changed
by changing conditions. A change in dependency within the period
between the accident and the death, or the birth of a posthumous
child, would result in such change.

178

DECISIONS OF THE COURTS

In the instant case there were two minor children who were
wholly dependent upon the deceased at the time of his accidental
death. As to their rights to compensation under the law the su
preme court said:
They were, and still are, members of that class of persons entitled
to receive under the law the full amount of compensation, and they
were entitled to receive the full compensation, if they were the only
persons wholly dependent. That right is not affected by the mar
riage of some other dependent, or, at any rate, not injuriously
affected. It still remains notwithstanding the marriage of another
dependent. The result is the marriage 01 a dependent causes that
person to cease to be a dependent within the meaning, of the law;
to step out of the class of persons designated by the statute as de
pendents of a deceased workman, but it does not change the amount
of compensation to be paid nor the right of other persons, depend
ents of the deceased workman, and within the class of those wholly
dependent, to receive it.
The supreme court being of the opinion that the district court
had the power to modify the findings of the arbitrator, the judg
ment of the district court was affirmed.
W orkm en ’s
P o s th u m o u s

C o m p e n sa tio n — A w a r d — R e m a rria g e
C h ib d — B e n e f i c i a r y

R e a c h in g

W id o w —

N oncom pen s& bm

A ge—Ex parte Central Iron <& Coal Co., Supreme Court of Ala

bama (Jarmary 15, 1925), 10% Southern Reporter, page 797.—
•Henry Criss was killed on July 14, 1922, by an accident arising
out of and in the course of his employment. He left as depend
ents a widow and five minor children under 18 years of age. Com
pensation was fixed on September 9, 1922, at the maximum of
$15 a week not to to exceed 300 weeks, in accordance with the pro
visions of the 1923 Code, sections 7558 and 7562. The latter section
provided for a maximum of u fifteen dollars in case the deceased
employee leaves three or more totally dependent children under
18 years o f age.” The compensation was apportioned among the
children and the widow. On March 16, 1923, Henry Criss, a
posthumous child, was bom, and on June 15, 1924, the widow re
married. On August 22, 1924, one of the dependent minors reached
the age of 18 and was self-supporting. A petition was filed in be
half of the dependent minors seeking a revision of the payments—
to give the widow’s share and the share of the child who reached
18 years of age to the other minors, it being insisted that the
posthumous child should share also. The trial court decreed ac
cording to the petition and a petition for certiorari was granted
to review the judgment.
The supreme court first observed that the statute, being remedial
in its nature, “ will be liberally construed to accomplish the pur

179

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

pose o f the enactment.” As to the compensation, it was conceded
though not decided that the amount once having been fixed, “ it
could only be subsequently changed as provided by the statute.”
As to the question of the power of the court to enter orders or
decrees, however, in the matter of administration of the funds
or distribution thereof “ made necessary by changed circumstances,”
the supreme court held that the courts were “ always open for such
purposes.” The supreme court said further:
There was no error in decreeing the payment of the widow’s com
pensation to the dependent minors. She had remarried, and in such
event it is provided that the “ unpaid balance of compensation, which
would otherwise become due her, shall be paid to such children.”
Nor do we think the posthumous child was barred from participa
tion in the fund. Settlement had already been made, the parties had
their day in court, and payments of compensation continued to be
made.
The participation of this child in these payments had no effect
upon the matter of fixing the amount of compensation or upon the
question o f liability.
It was insisted that the share of the child who had reached 18
years of age should be deducted and the amount reduced accordingly,
but the supreme court refused to recognize the contention, saying:
The compensation was based upon the number of dependent chil
dren, three or more, and we are of the opinion that so long as there
remains the number of dependent children this amount is authorized.
So long as the dependent children remain within the number pro
vided by statute for their compensation, then the employer can not
complain. The compensation to be paid remains the same, but its
apportionment differs only.
We are persuaded it was not the legislative intent, under the cir
cumstances, that the amount of compensation be reduced thereby,
while the number of dependent children coincides with the maximum
compensation fixed and ordered paid by the court, under section
7562 of the 1923 Code. A construction to the contrary, would, in our
opinion, not be a liberal one u to accomplish the purpose of the enact
ment.”
The judgment of the circuit court was therefore affirmed.
W

o r k m e n ’s

C o m p e n s a t io n — A

I n j u r y —United

w ar d —

R e v ie w — D isease

R esu lt

States Casualty Co. v. Smith, Court of Appeals
of Georgia {September 14, 1925), 129 Southeastern Reporter, page
880.—C. L. Smith, employed by the International Vegetable Oil Co.,
was repairing a pipe in June or July, 1921, when water leaking out
of a drainpipe fell upon the back of his neck, caused a blister, the
blister later bursting and becoming a sore. A month or two later the
wound was exposed to ammonia gas, which enveloped him as he
was repairing a pipe from which the gas was escaping. His neck
commenced to give him considerable trouble and he was forced to

180

DECISIONS OF THE COURTS

remain away from work about a week, after which he returned and
continued to work for about two months. He then quit on the advice
of a physician and was never able to work again. A short time
thereafter he made application for compensation, testifying that he
was injured by “ being burned on the back of his neck by steam and
poisoned by ammonia gas.55 At this time the trouble was confined
to his neck, except that he was not able to be around gas or to be in
a warm room. Before a decision was reached an agreement was
entered into with the insurance carrier for a period of compensation
of 9 weeks at the rate of $12 per week, the agreement being approved
by the commission and the case apparently closed by an order of
approval dated December 30, 1921. In 1£23 the claimant moved for
a review and modification on the ground of a change in his condi
tion. The application was granted and it was developed by the
evidence that sores similar to the one upon his neck had appeared
soon afterwards upon different parts of his person. His general
' system appeared to be diseased, and one of his arms had become so
infected that it was necessary to amputate it in 1922. The disease
was diagnosed by certain physicians as blastomycosis. An award of
compensation was granted for 350 weeks (less the 9 weeks covered
by the settlement) at $12 a week. An appeal wTas denied by the
commission and the insurance carrier excepted.
The court of appeals, on reviewing the record, held that the com
pensation settlement approved by the industrial commission pre
cluded the insurer from raising the question whether or not the
injury arose out of and in the course of the employment. However,
the court further held that this settlement did not bar the employee’s
application for review, nor did it preclude an award thereon con
trary to the stipulation. The provisions of section 25 of the com
pensation act to the effect that the right to benefits should be for
ever barred unless a claim be filed within one year after the accident
was held to have no application where the employee is seeking a
review of an award or a settlement under section 45, providing for
review a at any time 55 on account of change of condition. The evi
dence was considered as authorizing the finding that the disease
resulted unavoidably from the original injury, thus bringing it
within the act. The award was therefore affirmed.
W

o r k m en ’s

p o r a r il y

C o m p e n s a t io n — C a s u a l E m p l o y m e n t — F a r m er T e m

O p e r a t in g S a w m i l l — I n j u r y

C ourse

E m p l o y m e n t —Durrin

r is in g

Out

and

v. Meehl, Supreme Court of
Minnesota {May 22, 1925), 204 Northwestern Reporter, page 22.—
John Meehl owned, resided upon, and operated a farm of about 80
acres. Aside from the farm he owned a sawmill, which he oper
the

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

181

ated for five or six days each spring sawing logs for himself and
others residing in the vicinity. The sawmill required five or six
men to operate and was located within a couple of blocks from the
village water tank.
Walter Durrin, aged about 74 years, had been employed about the
mill for a long period of years, but on account of his age and
failing condition Meehl hesitated as to giving him work in the
spring of 1924. He was finally given employment to haul water
from the village tank for the engine, and in addition he did other
work about the mill, such as carrying slabs to the engine and help
ing at times in handling lumber. At the time of the injury he was
assisting in handling a piece of lumber when he slipped and the car
riage struck him and broke his leg, causing injury from which he
subsequently died. Meehl carried no liability insurance.
A proceeding under the workmen’s compensation act was brought
by the employee’s widow for compensation for the death of her
husband. The referee found that Durrin sustained an accidental
injury consisting of fractures of his leg, wThich immediately dis
abled him and required medical care and treatment, for which $100
was the reasonable value; that the accident arose out of and in the
course of his employment; that said injury was the direct cause of
his death on May 26,1924; and that such employment was not casual
in its nature. It was further found by the referee that the widow
was entitled to compensation at the rate of $8 per wreek during her
dependency, not. exceeding $7,500, and in addition to that $150 for
burial expenses and $100 for medical care and attention.
The award was resisted on two counts: (1) That the employment
was casual and not in the usual course of the employer’s occupation;
and (2) that the accident did not arise out of and in the course of
the employment, but was the result of the employee’s departing from
the scope and limits of his employment, in violation of express
orders. It was insisted that the occupation of Meehl within the
purview of the act was that of farming, that the sawmill activity
constituted “ a mere casual occupation,” and that the employment of
Durrin “ was casual and not in the usual course of the employer’s
regular business.”
Under the provisions of the Minnesota compensation act the em
ployment must be “ not only casual, but also not in the usual course
of the business of the employer, in order to exclude it from the
benefit of the act.” (Laws 1921,f ch. 82, sec. 8.)
Mr. Justice Quinn, speaking for the court as to the contentions of
the defendant, said:
It has been held by this court, as well as by other courts, that one
may have more than one occupation, one of which may be subject
93383°— 26------ 13

182

DECISIONS OF THE COURTS

to the compensation law while the other is not [citing cases]. The
question then arises whether the operation of this sawmill was in the
usual course of the employer’s occupation. It appears that he had
been engaged in this business at a fixed place for a number of years,
sufficiently long to complete the work available in that locality, and
that it was in no way incident to or a part of his occupation as a
farmer. It was found by the referee, and affirmed by the commis
sion, correctly, we think, that said sawmill business was separate
and distinct from that of farming, and that the accident occurred in
the usual course of such separate business, and therefore the question
whether the employment was casual is not important.
The supreme court being of the opinion that there was a sufficient
evidence to make the finding conclusive, accordingly sustained the
award.
W orkmen ’ s C ompensation— C asual E mployment — O ccasional
S ervices as L in em an — Pfister v. Boon Electric Co. et al., Supreme

Court of Iowa (February 19, 1925), 202 Northwestern Reporter,
page 371.— Pfister was employed by a telephone company as line
man, and as such he received about $97 a month. His contract of
employment with the telephone company did not bind him to give
the company his full time. The defendant electric company em
ployed the claimant as their sole lineman at 65 cents per hour when
ever he should be called upon, but recognized the priority of call
for his service in favor of the telephone company. Pfister did all
the line work of the defendant company; in August, 1921, the first
month of his employment, he worked a few hours in one day, and
the same in September and October. In November he worked a few
hours on each of six days, and so on until June, 1922, when he worked
two days, the last being the date of his death, making about 160 to
170 hours in all. Pfister was killed in an accident arising out of
and in the course of the employment, and if 'he were considered a
regular employee he would be entitled to compensation, but the de
fendant company contended that his employment was but casual.
Compensation was allowed by the arbitration committee, by the in
dustrial commissioner, and by the district court. The employer
appealed.

The main question to decide was what is a casual employment.
It was the contention of the company that the claimant came under
the provision of section 10 of chapter 270, Acts of 1917, which ex
cluded from the scope of the compensation act “ a person whose em
ployment is purely casual or not for the purpose of the employer’s
trade or business.”
The supreme court in discussing this point said:
On the other hand, where the employer is engaged in a laboremploying trade or business, where the employee is employed for

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

183

the purpose of such trade or business, and is specialized for such
work, and meets the hazards incidental to such trade or business;
and where his injuries result from such hazards, and while he is
doing such work, the “ casual ” quality can not readily and does
not ordinarily attach.
It was because he was called on to do the very work for which
he was employed, and because he was doing it, that the hazard of
his occupation struck the mortal blow. The fact that the service
was intermittent as to time did not, we think, destroy its essential
character as regular employment in the line of the business of his
employer.
Formality is not essential to a contract of employment.
Pfister was working, at the time of the accident, in taking up the
slack in the wires caused by a storm, and it was argued that the
circumstance of a storm causing the trouble rendered the employ
ment casual.
The storm, though unusual and severe, was yet only a feature of
the weather. The weather is a factor which must always be reck
oned with in the maintenance of outdoor equipment. A change of
weather ought not to be deemed effective to change the character
of the employment, nor should weather conditions be deemed a
factor in determining the nature of the employment undertaken.
It was fairly within the scope of defendant’s business to meet ap
propriately all the contingencies of weather, and to adapt itself
thereto to the extent of its ability.
The court added, however, that an emergency could be so brief
as to be “ casual.” The judgment was therefore affirmed.
The same court applied the principles above enounced in a case in which
the employee likewise a lineman, and on emergency work sued for damages,
claiming that his employment for but 30 days, in the interval of waiting for
another job, was casual in its nature, so that an action for damages would
lie, instead of a claim for compensation. The lower court accepted this con
tention, but the supreme court reversed the judgment, saying that “ the rule
is broader than the exception,” and that “ doubts and implications should be
resolved in favor of the rule rather than of the exception.” Though the line
man was an “ extra,” employed on account of a storm and but for a limited
period, he was none the less “ subjected to the hazards of his employer’s trade
or business, and suffered injury therefrom while so engaged, in the due course
of his em ploym en tan d the construction of the statute should be made so as
not to enlarge the proviso as to “ casual ” employment. (Eddington v. North
western Beil Telephone Co. (1925), 202 N. W . 374.)

W
ers’

orkmen ’ s

C ompensation— C ontract or E mployment — F arm
E xchanging W ork—Smith v. Jones, Supreme Court of Errors

of Connecticut (May 12, 1925), 129 Atlantic Reporter, page 50.—
Irving F. Smith and Simeon M. Jones were dairy farmers on adjoin
ing farms, and both used silos to store food for their cattle. Mr.
Smith used a 27-horsepower engine and Jones used an 8-horsepower

184

DECISIONS OF THE COURTS

engine. By mutual agreement they assisted each other in filling
silos and ice houses. In the season of 1923 Jones’s ensilage com
was farther advanced and more matured than that of Smith, and it
was arranged that Jones’s silo should be filled first. On September
6, 1923, Smith brought over his tractor, so that when an extra gang
of men were put on there would be power sufficient to cut the corn
rapidly and keep them all busy. The work continued from Thurs
day until Tuesday the 11th, when, while Smith was feeding the
cutter, his hand accidentally got into the machinery and was seri
ously mangled.
It was found by the trial court that the combination ensilage
cutter and blower with a gasoline engine attached “ constituted a
complex piece of mechanism, wThich neither the ordinary mechanic
nor ordinary laborer would be competent to manage.” It further
found that such services were customarily worth in excess of $36
per week. As a result of the injury Smith was totally disabled from
September 12 to December 20, and “ lost the equivalent of 75 per
cent of the use of his left hand, and incurred certain expenses * * *
which are not disputed.” Smith received an award of compensation
from the commissioner, which was affirmed by the judgment of the
supreme court, the employer and insurance carrier appealing.
The question presented was whether the finding as to the mutual
agreement was “ a basis for a logical and legal conclusion that there
was a contract of service and employment between them when the
injury occurred.” To this question the supreme court of errors
said:
They had agreed to assist each other to fill their respective silos,
their compensation for working one for the other was work to be
done by the other. These were mutual agreements creating a valid
contract for service, and enforceable at law in case of a breach.
The fact that the services were to be compensated for by labor and
not money does not make the agreement any the less a contract for
service.
The agreement between Smith and Jones was not in the nature of
a partnership or one made for social diversion. It was an agree
ment for employing service, compensation to be made by similar
service.
Finding no error, the court affirmed the judgment.

W orkmen ’ s C ompensation— C overage— C ounty as E mployer—
P ublic E mployees—Forsythe v. Pendleton County, Court of Appeals

of Kentucky (November 28, 1924), 266 Southwestern Reporter, page
639.—William L. Forsythe was employed by one Galloway, the

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

185

county superintendent, to shovel rock and assist in and about the
operation of a rock crusher belonging to Pendleton County, and was
injured while so employed. The county demurred to an action for
compensation, and from an order sustaining the demurrer the plain
tiff appealed.
The court of appeals pointed out that the counties “ are subordi
nate political divisions of the State,” and that they are “ no more
liable to be sued for injury or tort of its officers than the State.”
The common law “ gives no such right, and it therefore can exist
only by statute.”
Plaintiff claimed that the* common-law rule no longer existed be
cause of the workmen’s compensation act (Stat., sec. 4881), and that
the county was not one of the employers exempt from the applica
tion of the law. The court could not agree, saying:
The maintenance of the public roads of the county is one of the
most important governmental functions with which the governing
authorities of Pendleton County are charged. The maintenance of
the public highways was not a matter which Pendleton County
could lay aside. It had to maintain those highways. It did not
descend from its sovereignty to engage in their maintenance, but
that duty was thrust upon the county by the very fact of its sov
ereignty.
Counties are different from cities and towns*. The latter are cor
porations created by statute. They have authority to . enact local
laws, commonly called ordinances, whereas the county has no such
authority. County officers derive all of their power from the State
laws, and while there are some cases wThere counties have been held
liable for acts of commission, we have been unable to find even one
case where a county has been held liable for an omission.
It was insisted that Galloway, the superintendent of the work,
was responsible, but the court said that he was “ only doing for the
county what it was the county’s duty to do as an incident to its
sovereignty, hence is not liable for the same reason that the county
is not liable.”
The judgment was therefore affirmed.
Prior to its amendment in 1923, which specifically includes drainage dis
tricts, the compensation law of Wisconsin was applicable to employees of the
State and of counties, cities, towns, and school districts. A workman employed
by a drainage district procured an award from the State industrial commis
sion in case of an accident occurring before the enactment of the above amend
ment, but the supreme court of the State ruled that in the absence of specific
enumeration “ a drainage district is a governmental agency, and is not liable
for the negligence of its officers’*— directly in line with the ruling in the
Kentucky case above. It would be an act of “ judicial legislation ” to include
such municipalities in the absence of action by the legislature, so that the
award was reversed. (Rusk Farm Drainage District v. Industrial Commission
(1925), 202 N. W. 204.)

DECISIONS OF THE COURTS

186
W

o r k m e n ’s

C o m p e n s a t io n — C overage — E m p l o y e e

E a r n in g

$2,000—E. H. Koester Bakery v. Ihrie, Court of Appeals
of Maryland (January 15, 1925), 127 Atlantic Reporter, page 1$2.—
Paul Ihrie, an employee of the E . H. Koester Bakery, was seriously
injured, while engaged in the course of his employment, in a collision
between a bread truck which he was driving and a fire engine. An
award of compensation was granted on February 18, 1922, at the
rate of $18 per week for temporary incapacity. After further ex
amination the insurance carrier was notified by the industrial com
mission on July 5, 1923, that if no objection wrere raised the order
would be modified, allowing for thre§-fourths loss of the use of
leg, subject to credit for payments on previous order. A protest
was filed formally denying the jurisdiction of the commission
“ because the record discloses that the average compensation of the
employee is in excess of $2,000 a year.” At the conclusion of the
hearing the commission found for the claimant, and that the claim
ant sustained permanent partial disability occasioned by threefourths loss of the use of the left leg. It rescinded its order of Feb
ruary 18, 1922, and ordered “ that the employer and insurer pay
compensation at the rate of $18 per week, payable weekly for the
period of 131^4 weeks, said compensation to begin as of the 28th
day of January, 1922, and that final settlement receipt be filed with
the commission in due time, subject, however, to a credit for such
amount as may have been paid on account of the previous order
passed in this case.”
From a verdict and judgment in the Baltimore city court affirming
the award of the commission the employer and insurance carrier
appealed.
The court of appeals considered the sole question for determina
tion to be the meaning of the word “ salary ” as used in section 63 of
article 101 of the A. C. of M. This section provides:
This act shall not apply to * * * any employee whose salary
is in excess of $2,000 a year.
E

xcess of

The court of appeals, speaking through Mr. Justice Adkins, said,
as to the use of the term “ salary” as contrasted with the word
“ wages ” :
It seems to us not without significance that in section 63, in describ
ing persons who were to be excluded from the benefit of the act by
reason of the size of their compensation, the legislature used a term
having a restricted rather than one having an inclusive meaning, in
defining compensation. If, in section 63, it had been intended to
include all employees who earned more than $2,000 a year, “ com
pensation” would have been apt in referring to earnings. Or the
word “ wages ” might have been used, as it was in section 36, to
indicate the general application of the sections.

187

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

The court quoted with approval a construction by the industrial
accident commission in 1918 in the case of David Drummer, em
ployee, v. Bethlehem Steel Co., employer, and self-insurer, claim No,
16496, in which it was held that:
When the legislature exempted from the benefits of the compensa
tion act those employees receiving a salary in excess of $2,000, it
gave expression to an evident intention to exclude from the benefits
of the act those persons whose employment involved permanency
and who were at the same time receiving a substantial income from
said employment, and it did not exclude from the benefits of the act
those who are receiving only temporarily a substantial income.
In conclusion Mr. Justice Adkins stated that the above expression
was adopted as that of the court, and that to hold otherwise “ would
be contrary to the spirit of the entire act.”
The judgment was therefore affirmed.
W

o r k m e n ’s

C o m p e n s a t io n — C overage — H

a u l in g

L ogs— E x e m p t

O c c u p a tio n —Cormier's

Case, Supreme Judicial Court of Maine
{February 6, 1925), 127 Atlantic Reporter, page
—Bruno Cor
mier, employed by Allen Quimby Co., was hauling timber cut into
lengths 6 feet long into the mill yard of the company, when upon a
return trip he accidentally received an injury for which he applied
for compensation. From an award of compensation the employer
appealed.
The supreme judicial court considered that without doubt Cor
mier was “ an employee engaged 4in the work of cutting, hauling,
rafting, or driving logs,’ within section 4 of the workmen’s compen
sation act (Laws 1919, ch. 238).” A log being defined as “ a cut
of timber of any size or length suitable for sawing into lumber.”
Under the compensation act it was optional with the employers
of loggers and drivers to avail themselves of the act if they so chose.
The.company here did not avail itself of the option and did not
include loggers and drivers as employees insured under the act
The policy of insurance stated in part:
This policy does not cover woods operations. The line drawn
between woods operations and the mill operations shall be that when
a car or tea‘m is placed in the mill yard, or at a point where the loads
are to be unloaded from the car or team, this feature of the opera
tions, including the unloading of cars and teams, shall be applied
as part of the mill or yard operations.
The supreme court said:
It follows that the employer did not assent to the act as to its
employees engaged in hauling logs. The award did not in terms
find, but presupposes, such assent, and being without support in that
particular, is erroneous.
The decree was reversed and the compensation denied.

188
W

DECISIONS OF THE COURTS
orkmen ’ s

C ompensation — C overage — H azardous O ccupa
H otel— T ips as B asis for C ompensation—
of B ell B oy by S hooting—By as v. Hotel Bentley (Inc.),

tion — C onducting

D eath

In re By as, Supreme Court of Louisiana (December 1, 1924, 103
Southern Reporter, page 303.— One Byas, employed as chief bell
boy in the hotel operated by the defendant, in an altercation with a
taxicab driver arising out of a dispute over the carrying of baggage,
was shot and killed. Bessie Byas, widow of deceased, brought a
proceeding under the workmen’s compensation law, contending that
her husband was killed as a result of an accident arising out of and
in the course of his employment. It appeared from the evidence
that the duties of the deceased were to supervise the other bell boys;
to assist in handling baggage; to operate elevators, freight and pas
senger, to instruct new operators, to make repairs to the electric
iswiteh controlling the elevator, and to do various errands in the
engine room of the hotel. The defendant claimed it was not en
gaged in a hazardous occupation within the meaning of the statute.
From a judgment in the district court for the plaintiff the defendant
appealed. The court of appeal annulled and set aside the judgment
of the lower court, and the plaintiff secured a writ of certiorari, or
writ of review, to the supreme court.

The court of appeal found that the deceased was engaged in part
in hazardous occupations and in part in nonhazardous occupations
in the performance of his duties. The supreme court considered this
finding as correct, but the court of appeal stated further that if the
plaintiff’s husband “ had been killed while he was engaged in one
of his duties of a hazardous nature she would be entitled to com
pensation, but in view of the fact that the major portion of the
deceased’s duties were nonhazardous, and that it was while in the
discharge of duties in the nonhazardous line of his employment he
‘met his death, plaintiff was not entitled to relief.” The supreme
court took the position that the court of appeal took a “ narrow and
technical, rather than a liberal, construction intended and contem
plated by the lawmaker, and as expressed in numerous decisions of
this court.” Speaking through Mr. Justice Rogers, the court said:
In the present case plaintiff’s husband was admittedly engaged in
both hazardous and nonhazardous branches of his employer’s busi
ness. It was all one employment, for which he received but one
compensation. Therefore, it is immaterial whether his nonhazardous
duties constituted his major employment, to which his hazardous
duties were merely incidental, or vice versa.
The shooting and subsequent death of plaintiff’s husband grew out
of a dispute which arose over the carrying of baggage, which was a
specific part of his duties. It was therefore an accident caused by the
tort of a third person, which, under section 7, is contemplated by the
statute.

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

189

The defense that deceased’s death was due to a willful intention on
his part to injure another was not sustained by the evidence.
The supreme court, being of the opinion that the claimant was en
titled to compensation, held that:
It is our conclusion that the judgment of the district court, which
awarded plaintiff 30 per cent of the wages of her deceased husband,
based on a remuneration of $57 per month, excluding tips, and an
allowance of $200 for medical and funeral services, is correct and
should be reinstated and affirmed.
Pretermitting the legal question of whether or not tips may be
considered as a part of an employee’s wages in awarding compensa
tion, we are unable to consider them as a basis for an allowance in
this case, for the reason that the plaintiff has not satisfactorily
established the amount of the tips received by her deceased husband,
the testimony on that point consisting entirely of hearsay.
The judgment of the court of appeal was therefore annulled and
set aside and the judgment of the district ordered reinstated and
affirmed.
W orkmen ’s C ompensation— C overage— M ail C arrier H ired by
G overnment C ontractor— Comstock v. Bivens, Supreme Court of
Colorado ( October 5,1925), 239 Pacific Reporter, page 869.— Allen
B. Comstock was employed by Bivens & Nelson, a copartnership, to
carry mails over the route from Naturita to Paradox and to post
offices between these two towns. The employers were operating a
stage route in southwestern Colorado, and in connection therewith
carried the mails of the United States Government. By the terms
of the contract Comstock was to furnish his own services and an
auto truck in which to carry the mails, and was to receive $225 a
month. Additional amounts were allowed for parcel-post packages,
and he could take passengers and freight as he saw fit. On his last
trip, after Comstock reached the post office at Paradox ^nd had
delivered the mail to the postmistress, and after receipting for a
parcel-post package which was to be delivered the next morning,
on the return trip to Naturita he drove his truck from the post office
to his home and stopped in front of the house. W hile taking his
rifle out of the truck, in some manner not disclosed by the evidence,
there being no eyewitnesses, the weapon was discharged and Com
stock died in a few minutes as a result of the wound. The indus
trial commission found that Comstock was one o f four or more
employees of employers engaged in like service, and that the accident
arose out of and in the course of the employment. The commission
granted an award in favor of Hazel B. Comstock and others as claim
ants for the death of the employee. The district court held that
there was little evidence to sustain the finding that Comstock at the

190

DECISIONS OP THE COURTS

time of the accident was serving his employer, and set aside the
award; from this judgment the claimants appealed.
The supreme court, in reviewing the record, first observed that ap
parently the district court conceded or assumed that both the em
ployers and the employee were subject to the provisions of the
compensation act, and rested its decision solely upon the ground
that there was no evidence to sustain the findings of the commission.
It was held that as a general rule an employee who is injured
while on his way to or from work is not entitled to compensation,
in the absence of special circumstances bringing the accident within
the scope of the employment.. However, the supreme court was of
opinion that the instant case came within the exception to this general
rule, and under previous decisions it held that Comstock’s death by
accidental discharge of his rifle, carried for protection, “ arose out
o f and in the course of his employment.”
Whether Comstock was killed by accidental discharge of his rifle
was considered a question for the industrial commission and not for
the court, and the supreme court refused to go into it.
It was contended by the employers that the employee was deliver
ing United States mail, and as this was a public function the con
tractor and employee did not come under the compensation law.
The supreme court held that the employee performing a public func
tion does not destroy the relation of employer and employee because
of such fact of holding a contract with the Government. The car
rier of mail hired by one having a star-route contract with the
United States Government is held not an employee of the Govern
ment but of the contractor, and is a servant of the United States in
carrying the mail. In conclusion, the supreme court decided that
such a contractor, who holds a contract to deliver mail along a star
route and who hires employees to deliver the same, is subject to the
State workmen’s compensation law, notwithstanding the fact that the
employee while delivering such mail is engaged in a public function.
The judgment of the district court was therefore reversed and the
case remanded with instructions to affirm the award of the com
mission.
W

o r k m e n ’s

C o m p e n s a t io n — C overage — M u n ic ip a l E m p l o y e e s —

u t h o r it y — P owers of C i t y — City of Sacramento
v. Industrial Accident Commission, California District Court of A p
peal (September 17, 1925), 21fi Pacific Reporter, page 792.—An
award of compensation to Eva Streepy in the sum of $5,000 for the
death of her husband, an electrician in the employ" of the city of
Sacramento, was made by the industrial accident commission. No
contention was made as to the award if justification to enter the

C o n s t it u t io n a l A

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

191

same existed. The authority of the commission was contested on the
grounds that “ the compensation of all officers and employees of a
city is a matter purely within the jurisdiction and control of the
city,” and that making all provisions for a sum of money to be paid
either to an injured employee or to his widow or family is a purely
municipal affair. In arriving at a decision provisions of the State
constitution were considered which conferred upon the city of Sacra
mento authority to provide compensation for its employees or their
dependents; but this was held to refer to wages and not to work
men’s compensation or indemnification payable to dependents under
article 20, section 21, of the State constitution, authorizing the enact
ment of a workmen’s compensation act. The definition of the word
“ compensation ” as used was considered to be synonymous with
wages. Counties and municipalities are held to be departments of
the State within the meaning of the California constitution, and the
word “ person ” as used in article 20, section 21, authorizing the leg
islature to provide a system of workmen’s compensation and to en
force this liability upon all persons, includes municipalities.
The court being of the opinion “ that the making of compensation
to the dependents of employees is a matter of public policy of the
State, as contradistinguished from municipal affairs,” the award was
affirmed.
W orkmen ’s C ompensation — C overage — P artners R eceiving
F ixed W ages— Wilcox v. Wilcox Bros., Supreme Court of Michigan
(<October 1, 1925), £05 Northwestern Reporter, page 90.— A copart
nership of the three Wilcox brothers had been engaged in road
building for three years. Frank and Volney W ilcox were the active
partners, the third brother being a silent partner. In 1923 the South
ern Surety Co. issued a policy insuring the W ilcox Bros, against
the liability imposed upon them by the workmen’s compensation
law in connection with their road work. The standard form of
policy, which had been approved by the department of labor and
industry, was issued. On November 29, 1923, Volney W ilcox was
caught in a gravel slide while in the performance of his duties as
superintendent on a road-construction contract of the partnership,
and was killed.
A proceeding under the compensation act was brought by his
widow, and from an award of compensation the insurance carrier
brought certiorari.
It appeared that the three brothers could draw for their services
$50 a week while a contract was being performed. I f either drew
more than that amount it would be charged against him as an over
draft, and if he drew less he would receive credit when the profits

192

DECISIONS OF THE COURTS

were divided, but at the time of the injury there had been no profits.
It was found as a fact that Volney was receiving a salary irrespec
tive of profits. The insurer contended that a letter sent to Yolney
Wilcox by them on November 1 took him out of the insurance policy.
The letter stated that the company was under the impression that
he wished to cover the employees only, and an inclosure with the
letter read as follows:
Indorsement effective October 12, 1923. Not valid unless indorsed
by duly authorized agent. It is hereby understood and agreed that the
copartners named in below-mentioned policy are excluded from the
coverage thereunder, subject otherwise to all conditions, agreements,
and limitations of the policy as written, except as herein specifically
provided.
The court found no evidence that the indorsement here included
was ever in fact attached to the policy, and the mere fact that he
received the letter was no indication that he had elected not to come
under the provisions of the act. The retroactive indorsement upon
which the insurer relies in excluding all copartnerships from cover
age was held, while not a total determination or cancellation of the
policy, to have “ canceled and terminated all rights of working
partners for unconditional wages, materially altering the contract.”
The commission found that the indorsement was purely an attempt
on the part of the insurer “ to have the employer attempt to waive
and abridge a portion of the law which it had accepted, and under
the indorsement last above quoted becomes clearly null and void;
said policy agreeing, as above stated, to cover all employees.”
The award of compensation was therefore affirmed.

o r k m en ’s

C o m p e n s a t io n — C overage — P u b l ic O fficer — P o lice

—Hall v. City of Shreveport, in re Judges of Court of Appeals,
Second Circuit, Supreme Court of Louisiana (January 5, 1925),
102 Southern Reporter, page 680.—Policeman Hall, of the city of
Shreveport, was killed while in the discharge of his duty, and his
widow, Mrs. Tranna Hall, and others brought an action under the
workmen’s compensation law for compensation for his death. The
claim was rejected by the district court and an appeal was taken
to the court of appeal of the second circuit, which court certified
the question of law involved to the supreme court, where right to
compensation was denied.
It was contended by claimants that Hall was a servant or employee
of the city at the time of his death, but the defendant contended
that Hall was an official of the city and under the statute (sec. 1)
was expressly excepted from its benefits.
man

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

193

The supreme court, in considering the question of whether the
plaintiffs were entitled to compensation, first observed that:
The cases are numerous that an appointment to a pubilc office does
not create a contract. And there is no end of authority that a police
man is a public officer, holding his office not under a contract between
himself and the municipality, but as a trust from the State.
Section 1 of the statute (act 20, Acts of 1914) provides for the
inclusion o f :
Every person in the service of the State, or of any parish, town
ship, incorporated village or city, or other political subdivision
* * * under any appointment or contract of hire, express or
implied, oral or written, except an official of the State, or of any
parish, township, incorporated village or city.
The powers of municipal corporations are twofold, those of a
public nature and those of a private nature. The supreme court
said as to these powers:
In its public character, as the agent of the State, it becomes the
representative of sovereignty, and is not answerable for the non
feasance or malfeasance of its public agents. In its private or
proprietary functions it is held to the same responsibility as is a
private corporation.
The primary purpose of the compensation act is to “ provide com
pensation for workmen injured while employed in certain hazardous
trades, businesses, and occupations.” Where an electric light or
waterworks corporation is in business for profit many reasons may
be advanced for including their employees within the compensation
law. The added cost can be placed upon the consumer, the public
at large.
The same reasons were not considered by the supreme court as
applicable to the case where a municipality acts in a public charac
ter, exercising only its governmental functions, and hence held that
the employees so engaged could not be brought within the scope or
purpose of the compensation law.
The claimants contended that there was a difference between the
word “ official ” and the word “ officer,” and that the compensation
law excepted from its terms only “ officials.” The supreme court did
not think “ any such finespun distinction was in the minds of the
lawmakers when they enacted the compensation statute,” and the
statute “ must be interpreted and applied in accordance with the
general and popular understanding of the terms.”
Being satisfied that “ a policeman is an appointive officer (official)
under the provisions of the charter of the city of Shreveport,” the
court held that Hall fell within the exception of the law and that the
claimants were not entitled to compensation.

194

DECISIONS OF THE COURTS

The compensation law of Virginia covers “ officers and employees ” of muni
cipalities other than elective. The State constitution exempts counties from
liability for the acts of a sheriff. Under these conditions, a deputy sheriff
enforcing a criminal statute of the State was held not to be an officer or
employee of the county so as to be entitled to compensation for injury received
in the performance of his duty as an officer of the State, which fact was held
to be conclusive against the existence of any “ causal relationship,” as of
employer and employee, so far as the county was concerned. A compensation
award was therefore reversed. (Board of Supervisors of Rockingham Co. v .
Lucas (1925), 128 S. E. 574.)

o r k m e n ’s

C o m p e n s a t io n — D e p e n d e n c y — A

ban d o n e d

if e

N ot

—Johnson v. Republic Iron & Steel Go.,
Supreme Court of Alabama (October 20, 1924),
Southern Re
porter, page 44'—Curtis Johnson abandoned his wife about 10 years
before his death, and had entered into a bigamous marriage with one
Georgia, who upon his death claimed to be his widow. The evidence
showed that the plaintiff, Ellen Johnson, and her husband, Curtis
Johnson, lived apart during the 10 years, and that he contributed
nothing toward her support. Compensation was denied the plaintiff
by the circuit court, and an appeal was talcen by certiorari, with a
bill of exceptions. The claim of the plaintiff was that a widow “ who
has been wrongfully deserted by her deceased husband, and who
was involuntarily living separate and apart from him at the time
of his death, is entitled to receive compensation from his employer
under the provisions of the act, even though he was not contributing
to her support in any way at the time of his death.” The supreme
court said as to this contention:
We regret our inability to construe the statute as it must be con
strued to make appellant’s claim of compensation effectual, or rather,
we will say, the statute has been so framed as, very plainly, to ex
clude appellant in her circumstances from its benefits.
The only question presented is, What did the legislature intend
when it adopted its concluding alternative, “ unless it be shown that
the husband was not in any way contributing to her support ” ?
Here, unfortunately for appellant’s contention, words could hardly
make it clearer that the legislature intended to make the fact that the
husband, at the time of his injury or death, was not contributing to
his wife’s support a sufficient reason for denying to her any compen
sation under the act, and this without regard to whether at that time
they were living together or apart.
The cases from other jurisdictions have contributed nothing to
our consideration of the case in hand, for nowhere else, so far as we
are informed, is there a statute like that of this State in the particu
lar in question.
S upported

u sb a n d

The judgment of the trial court denying compensation was there
fore affirmed.

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

195

W o r k m e n ’ s C o m p e n s a tio n — D e p e n d e n c y — A n n u l m e n t o f R e
m a r r ia g e o f W id o w — Eureka Block Coal Co. v. Wells, Appellate

Court of Indiana (May 21, 1925), lift Northeastern Reporter, page
811.— O n J a n u a ry 30, 1922, L e titia W e lls w as a w a rd e d co m p e n sa
tio n as w id o w an d sole d ep en d en t o f J a m es E . W e lls , w h o lo s t h is
l i f e as th e result o f an a ccid e n t a risin g o u t o f a n d in th e cou rse
o f h is em p loym en t b y th e E u re k a B lo c k C o a l C o. C o m p e n sa tio n
in the sum o f

$13.20

p e r w eek w as p a id u n til N o v e m b e r 7,

1923.

O n N ov em b er 9, 1923, p la in tiff m a rrie d on e C h a rles M c C o r m ic k .
O n D ecem b er 12 she fo r m a lly n o tifie d th e co m p a n y o f h er m a r
ria g e, a n d on D ecem b er 13 she com m en ced su it f o r th e a n n u lm en t
o f h er m a rria g e o n th e g r o u n d o f fr a u d , the m a rria g e b e in g an
n u lled on J a n u a ry 4, 1924. I n th e m ean tim e p la in tiff re ce iv e d the
sum o f $3.77 fr o m e m p lo y e r f o r the tw o d a y s fr o m N o v e m b e r 7
to the d a y o f h er m a rria g e , a n d she o n th a t d a y re ce ip te d f o r th a t
sum an d m ad e settlem ent in fin a l fo r m .

After the annulment 6f the marriage plaintiff filed a petition
with the industrial board, asking that she be reinstated as the de
pendent widow of James E. Wells, as of November 10, 1923. The
board made an order restoring her to compensation as of that day,
and the employer appealed.
Clause (e) of section 38 of the compensation act provides, among
other things, that “ the dependency of a widow * * * shall ter
minate with * * * her marriage subsequent to the death of
the employee,” and the employer contended that by reason of this
provision the marriage, though voidable, “ nevertheless was a mar
riage which terminated absolutely and permanently the depend
ency.” The appellate court declined to concur in this view stating:
Giving the provision referred to a broad and liberal construction,
as we must, a marriage, within the meaning of the statute, is not a
void or voidable marriage which may at once be annulled, but a
valid and subsisting marriage.
The next question arising was whether or not the decree of annul
ment necessarily related back to the time of the marriage contract,
and as to this the court on review was of the opinion that there
existed respectable authority that judgments and decrees directly
determining the status of parties are in that respect judgments in
rem and “ are evidence of the status which they determine, as to
all persons, whether parties thereto or not,” so that the question
should be answered in the affirmative.
Defendants urgently contended that the receipt for compensa
tion, as signed by the widow on December 12, constituted a defense
to the action, but the court held that:
It can not be said by appellant that by the alleged settlement with
appellee it was misled to its disadvantage. Appellant merely paid

196

DECISIONS OF THE COURTS

to appellee the balance due her under the original award to the date
of the marriage. The reinstatement adds nothing to appellant’s
liability as fixed by the original award. Appellee’s receipt, imder
the circumstances, was not conclusive of the facts recited therein.
Being of the further opinion that the industrial board had juris
diction to hear the cause, the award was affirmed.
W o rk m e n ’s

C o m p e n sa tio n — D e p e n d e n c y — B e n e f i c i a r y

A d

ju d g ed I n s a n e —Ex

parte Ghide & Co., Maddox v. Chide & Co*, Su
preme Court of Alabama (June 11, 1925), 105 Southern Reporter,
page 657.—The only question presented in this case was whether or
not the right of the dependent wife of a deceased employee to com
pensation under the compensation law ceases upon her being ad
judged insane and becoming an inmate of the State hospital for the
insane subsequent to the death of her husband. The compensation
act declares a wife “ conclusively presumed ” dependent. The legal
dependency so declared is based upon status at the time of the injury
or death, and compensation to a widow was held as continuing until
the happening of some event specified in this statute, i. e., marriage
or death.
Compensation to the widow was held by the supreme court as not
ceasing upon her being committed to a public institution for the
insane, section 7551 (d), Code of 1923, terminating compensation to
a permanently disabled employee on his becoming an inmate of a
public institution, being held to apply only to an injured employee
without dependents.
It was further stated by the court as a general rule that “ as a
matter of public policy statutes will not be so construed, unless
clearly so written, as to make continued payment of compensation
dependent upon indigence after the right to compensation has at
tached. Such a rule would tend to encourage thriftlessness and pau
perism.” In conclusion the supreme court held that “ continued
compensation during the statutory period is not conditioned upon
continued dependency,” and “ ceases only upon the events named in
this statute.”
The judgment of the lower court in favor of Minnie Maddox,
suing by next friend, was therefore affirmed and writ of certiorari
denied the defendant.
W
A

orkmen’s

b a n d o n ed

C o m p e n s a t io n — D e p e n d e n c y — C h il d
S eparated

if e —

E rroneous

L iv in g

w ar d —

w it h

R e v ie w —

Johnson. v. Hardy-Burlvngham Mining Go., Court of Appeals of
Kentucky (November 28, 1924), 266 Southwestern Reporter, page
635.—Lewis P. Johnson, employed as a workman in defendant’s

WORKMEN *S COMPENSATION

197

coal mine, was injured on May 8, 1919, when a piece of slate fell
upon him while at work in the mine, dying shortly thereafter. In
1912 Johnson had married the claimant, Bertha Johnson, and two
years later there was a child. Johnson had then abandoned his wife
and child, and about two years before his death he had ‘married
again, without securing a divorce from his first wife. The woman,
known as Cora Johnson, filed an application for compensation,
which was granted. About eight or nine months after the death
Bertha Johnson heard of it, and for some months tried to collect
“ some small amounts of industrial insurance on the life of her
deceased husband.” More than a year later she made formal appli
cation to the workmen’s compensation board for an allowance to
her and her infant child as the sole dependents. The board discon
tinued the payments to Cora, dismissed the petition of Bertha on
the ground that it was barred by the limitation of one year, and
dismissed the claim of the infant child upon the additional ground
that he was not a dependent minor under the act because he was
not living with his deceased parent, “ nor was he or had he ever
been actually supported by the deceased.” An appeal was taken by
Bertha Johnson on behalf of herself and child.
The court of appeals on review expressed the views that the policy
of the court was to construe the compensation act liberally, and that
steps taken under the act would be upheld “ if in substantial com
pliance with terms of the statute and effectual to fully protect
interests of adverse parties.”
The court referred to the statute, and decided that the provisions—
of section 4896 furnish the right of a true dependent under the act
to obtain by substitution the unpaid compensation that may have
been originally awarded to a supposed one, and that the provisions
of section 4902 furnish the remedy for such a dependent to obtain
the relief of substitution; and, since there is no limitation upon
such remedy (except that it must be resorted to before the entire
compensation is paid to the supposed dependent in the award as
originally made), it may be adopted by the true and correct de
pendent at any time before full satisfaction.
Cora Johnson, not being the lawful wife, was not under the pro
visions of the act a lawful dependent, and the board had the right
to suspend or end payments to her. It was also held clear that the
board had the right to change its award by substituting the bene
ficiary entitled to compensation under the law, “ nor can there be
any doubt in our minds that such right to substitution is clearly
provided for, provided the true dependent gives the written notice.”
The formal written application to the board, with proper and due
notice to the employer and the insurance carrier, by Bertha John
son for substitution as the proper beneficiary, was held a substan93383°— 26-------14

198

DECISIONS OF THE COURTS

tial application and sufficient to comply with the requirements of the
statute as to notice.
Where there had been a divorce, the wife securing the custody of the children
of the marriage, the Appellate Court of Indiana held that “ if the assignment
of the custody [of the children] to the wife extends to depriving the father
of his claim to their services, then he can not be compelled to maintain them
otherwise than in pursuance of some statutory regulation.’, It followed that
an award of compensation to the children was reversed where the deceased
father had been thus divorced, even though he had a short time before his
death worked on his former wife’s farm and made some small gifts to the
children. (Western Indiana Gravel Co. v. Erwin (1925), 149 N. E. 185.)
In a Wisconsin case the divorce decree had been accompanied by an order
permitting the father to visit his child at reasonable and proper times, with
the obligation to pay $6 weekly for its support. On his death by compensable
accident, the industrial commission made an award in the child’s behalf as
for total dependency. On appeal the circuit court modified the award, allow
ing for partial dependency only, and this was affirmed by the supreme court
of the State, construing together the terms of the act and the provisions of
the divorce decree. (Rohan Motor Co. v. Industrial Commission of Wiscon
sin (1925), 205 N. W . 930.)
See McGarry v. Industrial Commission, below.

W orkm en’s Compensation— Dependency— C hild Living W i t h
Divorced W ife — Review— Powers o f Industrial Commission—
McGarry et al. v. Industrial Commission of Utah (January 21,1925),
232 Pacific Reporter, page 1090.— John Calvin Bradley, a minor,
was awarded compensation as a dependent of his father, Delos
Bradley, who died as a result of an accidental injury in the course of
his employment at Park City, Utah, with the Kopp & McGarry Co.
Alice Baker Bradley, mother of the minor, secured a divorce from
Delos Bradley in November, 1919, the child being 4 years of age at
that time, and shortly thereafter the father left their home in Idaho
for parts unknown to his divorced wife. He assumed the name of
Jack Wilson and was not heard of by his wife until his death. The
commission, upon application for compensation, found the child
wholly dependent and made an award accordingly. A n appeal was
taken and the supreme court in Same y. Same (63 Utah 81; 222 Pac.
592; see Bui. No. 391, p. 404) found the facts were insufficient to
justify an award for total dependency, the commission being consid
ered as having made the award upon the theory that dependency
was conclusively presumed. The supreme court nullified the award
and set it aside, suggesting, however, that “ further evidence might
establish a dependency under the last provision of the section re
ferred to, which reads:
In all other cases the question of dependency, in whole or in part,
shall be determined in accordance with the facts in each particular
case existing at the time of the injury.

w o r k m e n ’s

COMPENSATION

IS 9

After the decision of the supreme court the commission by reso
lution reopened the case with notice to the parties and proceeded to
take further evidence. Plaintiff objected but was overruled, and evi
dence was heard in the State of Idaho, to which proceeding plaintiffs
also objected. Upon a judgment again for claimant the company
appealed for the second time. The supreme court in reviewing the
record observed that—
The evidence so taken, among other things, tended to show that the
minor was and had been in more or less destitute circumstances; that
its mother had been unable to support herself and the child and that
she had been compelled to obtain substantial assistance from the
county for the child’s support. Upon this evidence, which was not
contradicted, together with the evidence taken at the former hearing,
the commission again found that the minor was wholly dependent
and awarded compensation accordingly.
The employer and insurance carrier contended that the industrial
commission was without jurisdiction to reopen the case, and, further,
had no jurisdiction to take testimony in Idaho. The supreme court
held the commission to have jurisdiction to reopen the case, even
though the statute provided that upon the hearing by the court “ the
court shall enter judgment either affirming or setting aside the
award.” The court said that if the plaintiff’s contentions were
upheld it would lead to lamentable results; that is, the commission
“ would be powerless to hear further evidence, even within the State
of Utah, in which it has undoubted jurisdiction. It might be a case
of unquestioned dependency and extreme hardship, but justice would
fail because the commission made an honest mistake as to the extent
of its jurisdiction.” It was considered not the intention of the legis
lature to prevent the commission from reopening a case even after a
supreme court decision as to a prior award..
However, the court ruled that the commission was without power
to hear the evidence in Idaho against the plaintiff’s objection.
Compiled Laws 1917, sections 7163-7177, inclusive, prescribed the
method in civil actions and is exclusive as far as the authority of the
commission is concerned. The taking of testimony in the State of
Idaho in the manner complained of was beyond the jurisdiction of
the commission, and there being no other evidence sufficient to sus
tain the award, it follows that the award should be annulled and set
aside.
The court, in considering other questions, held that where a “ mere
infant, incapable of supporting himself and not competent either to
claim or waive a right under the law, is abandoned by its father,
whose duty under the law during his life was to support the child,
such child, upon his father’s death, within the purview of the Utah
industrial act, becomes an actual dependent without regard to the
question as to whether he has received or had the promise of support.”

200

DECISIONS OF THE COURTS

A further question was also considered by the court. The mother
was given custody of the child by the divorce decree, and the duty
of maintaining the child was in that way placed upon her. She was
unable to do so completely, so that the county had helped her with
contributions. The court said:
It can not be contended that such contribution by the county was
a primary duty. The primary duty rested upon the parents, and to
the extent that the mother was unable to support the child, after
providing herself with adequate support, the child sustained a dis
tinct loss in the death of its father. The amount of the loss, being
dependent upon the amount the mother is able to contribute, is a
matter within the jurisdiction of the commission to determine in
accordance with the facts. The court is of opinion that this feature
of the case should have been given consideration by the commission
in determining the nature and extent of the dependency.
For the reason that the commission exceeded its jurisdiction in
taking and hearing “ evidence in the State of Idaho ” the award was
annulled and set aside.
W orkmen ’s C ompensation — D ependency — D egree — S easonal
E mployment — Lincoln Gas de Electric Light Go. v. W atkins, Su

preme Court of Nebraska (June 12, 1925), 20
4Northwestern Re
porter, page 391.— Kenneth Watkins, aged 20 years, employed by the
Lincoln Gas & Electric Light Co., came in contact with an electric
current August 1, 1924, as a result of which he was instantly killed.
An award of compensation was granted to Mrs. Winnie Watkins,
mother of deceased, from which award employer, insurance carrier,
and claimant appealed.

Mrs. Watkins contended that she was within the class designated
as 44wholly dependent” (sec. 3045, Comp. St. 1922), and that she
was entitled to $15 a week for 350 weeks instead of $8 a week as
granted by the commissioner. The defendants conceded that de
ceased was killed by reason of an accident arising out of and in the
scope of his employment, and that his mother was entitled to an
award of some amount, but that she was but partially dependent,
and entitled to only $2.88 a week for 350 weeks.
It appeared from the evidence that Mrs. Watkins and her son con
stituted the entire family, the husband and father having deserted
Mrs. Watkins some 10 years before. Kenneth was her sole support,
according to her testimony, though it appeared that in 1924 he had
attended the State university, borrowing money to do so. At the
summer vacation his employment with the defendant company began,
and at the time of his death he had been working two months at a
wage of $36 a week. It was the contention of the defendant that
he intended to return to the university in the fall, but there was no

WORKMEN’S COMPENSATION

201

proof introduced on that issue. Defendants also contended that Ken
neth’s occupation was seasonal and came under section 3049, Com
piled Statutes of 1922, which provides that in seasonal occupations
the employee’s weekly wages shall be taken to be one-fif fcieth of the
total wages which he earned from all occupations during the year.
The supreme court considered the argument ingenious, but held
that the legislature did not intend to place on the word “ seasonal ”
the construction for which the defendants contended. As applied
to occupations and as used in section 3049 it was considered as refer
ring to occupations which are governed by and ordinarily performed
only in certain seasons of the year.
The compensation law provided that compensation should be based
on the wages “ at the time of the accident.” The court, taking this
fact into consideration, and reviewing the financial resources of the
mother, found her wholly dependent within the terms of the com
pensation act, and, speaking through Mr. Justice Dean, said:
We conclude that, in view of the record, Mrs. Watkins is entitled
to compensation at the rate of $15 a week for 350 weeks from the
date of the accident causing the injury. A review of the record dis
closes that, in respect of the defendants’ privileged duty under the
law, reasonable grounds for controversy at no time existed. It there
fore follows that the defendants are also [liable] for “ waiting
time ” as provided in section 3048, Compiled Statutes 1922. [Pro
vides penalty for delinquent payments.]
The judgment of the district court was therefore reversed and
remanded with directions.
W

o r k m e n ’s

C o m p e n s a t io n — D e p e n d e n c y — M in o r C o n t r ib u t in g

m p l o y m e n t s — Standard Var
nish Works et al. v. Industrial Accident Commission,, Supreme Court
of California (>September 28, 1925), 289 Pacific Reporter, page
1067.—Richard Minderman was a minor, 16 years of age, employed
by the company named in its shipping department. About three
weeks after his employment began he was killed in an elevator
accident. There was no question that the accident arose out of and
in the course of the employment. There was a conflict as to the
basis of computation of earnings. During the previous year the
boy had been working after school hours as a messenger for a tele
phone and telegraph company, receiving wages and a small addi
tional amount by way of tips. The present employment was at the
rate of $15 a week, about twice the amount of his former earnings.
All his earnings were turned over to his mother, and, with other
income, went into a fund for family expenses. The other members
were the mother, a brother, and a sister, all contributing to the
family income.
to

F a m i l y F u n d — E a r n in g s — D u a l E

202

DECISIONS OF THE COURTS

On a claim for partial dependency, the industrial accident com
mission found such dependency to exist and made an award. This
was opposed on the ground that the “ average annual earnings ”
contemplated by the statute were not properly computed. It was
claimed that the present employment was for the vacation only,
and would terminate with the opening of school. There was testi
mony, however, that this was not a settled matter, and the commis
sion’s conclusion that there was permanent employment at $15 a
week was said by the court to be conclusive. It is an established
rule that the earnings as of the time of the death of the deceased
furnish the proper basis for an award. (Great Western Power Co. v.
Industrial Accident Commission, 238 Pac. .662.)
Another question was as to the relation between the boy’s con
tributions and the expense of his support. “ It is settled that the
deduction of an amount equivalent to the sum used in the minor’s
own support is proper and necessary.” Such deduction having been
made, “ the result was to properly measure the amount of the
average annual earnings devoted by the deceased to the support of
his mother.”
In making the deduction regard was had for contributions during
the period of employment as a messenger, as well as for the present
employment for the varnish works. It was objected that two such
dissimilar employments could not be jointly considered in determin
ing the contribution. An earlier decision in which the total amount
received from coemployers was held to be the basis of a compensa
tion award was referred to. (Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 Pac. 491; see Bull. No. 224, p. 237.) It
was said to be readily apparent from the construction of the statute
in the case cited that the statute “ makes the amount devoted to the
dependent the measure of the award and imposes the full burden
on the death-causing employment.”
All objections failing, the award was affirmed.
A district court of appeal of the same State affirmed an award made on
account of the death of “ an unmarried man,” evidently not a minor, who
made his home with his mother, though he was absent on account of his
employment at the time of his death. He forwarded regular monthly sums
to his mother in the amount of $50, which was also the sum paid monthly
on a mortgage on the home. The father was also earning and contributing
to the family support. It was held that the sum might properly be con
sidered as rent for the home; though the court was of the opinion that a
reasonable amount used for the purchase of “ a home or permanent place
of abode for the dependents is well within the purpose and intent ” of the
law. The industrial commission's finding of dependency was therefore sus
tained, and the award affirmed. (International Indemnity Co. v. Industrial
Aqpident Commission (1925), 238 Pac. 1056.)
Quite similar conditions were involved in a Texas case in which a minor
son, 19 years of age, was giving his father $50 monthly, which was applied

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

203

to the purchase of the family home, the father being in the receipt of $400
monthly as his earnings. The court held that “ the purchase of a home was
reasonably necessary to the support of the parents,” and that “ one is not
rendered less a dependent by the fact that he is able to maintain himself
without the assistance of the deceased workman.” On a liberal construction
partial dependence was indicated, and the trial court had erred in instructing
to the contrary. (Jones v. Texas Employers’ Insurance Assn. (1025), 268
S. W. 1004.)

W orkm en’s Compensation— Dependency— M other N ot A c tu
a l l y Dependent— Presumptions— Term of Payments— Double v.

Iowa-Nebraska Coal Co., Supreme Court of Iowa (December 11,
1921^), 201 Northwestern Reporter, page 97.— Harold Lager, minor
son of the plaintiff Clara Double, sustained a personal injury on
January 12, 1923, arising out of and in the course of his employment
with the lowa-Nebraska Coal Co., which resulted in his death on
June 23, 1923. The employer paid the full amount of compensation
to Lager from the time of his injury to his death. On September
20, 1924, Clara Double filed a petition for arbitration, alleging that
she was the only dependent and sole survivor of the deceased em
ployee. The arbitration committee found that she was not actually
dependent upon her minor son at the time of the injury, but that
under “ the statutory conclusive presumption of dependency she
was entitled as a parent to workmen’s compensation at $10 per week
from the date of the death of her son until December 21, 1924, at
which time had he survived he would have attained his majority.”
The industrial commissioner confirmed the award and findings, and
the district court on appeal entered a judgment affirming the com
missioner. The plaintiff appealed, securing a reversal on the ground
of an improper limitation of the award.

The supreme court, speaking through Mr. Justice De Graff, ob
served that:
The workmen’s compensation act, within the scope of its operation,
is exclusive. No rights are conferred and no benefits are derived
therefrom, except as therein provided.
The question is squarely presented: Is the claimant, as mother
of the decedent, entitled to compensation beyond the period of minor
ity of the decedent ? The statute does not expressly provide for the
termination of such payment. ^3oes the presumptive dependency
of the mother control ? The statute recognizes two kinds of depend
ency, actual and presumptive. We are not dealing with actual
dependency, which is a question of fact. The dependency in the
instant case is conclusively presumed, and arises by virtue of the
statute.
Our legislature had the power to terminate the parent’s compen
sation when a deceased minor son attained the age of 21. It did
not so provide.

204

DECISIONS OF THE COURTS

It is immaterial that the parent was not actually and in fact
dependent upon the minor. The statute declares that the parent
shall be conclusively presumed to be wholly dependent upon said
minor at the time of the injury which caused his death.
The court did not view the right of compensation “ as a vested
right in the sense that upon death it passes to his heirs or personal
representative.” It was held, however, to be such a right that if
accrued “ could not be legally abridged by subsequent legislation.”
The question in the case was not what the legislature “ in its
wisdom should have provided,” but what it “ has provided.” It was
not considered by the court to be a judicial function to question
the legislative policy.
The claimant was held entitled to compensation at two-thirds of
$15 per week for 300 weeks, less the 22 weeks’ compensation paid
the employee during his lifetime.
The judgment entered limiting the payment to the period of
minority was reversed.
W orkmen ’ s C ompensation— D ependency— O rphan L iving w it h
G randfather— Ex parte Cline, McCoy v. Cline, Supreme Court of
Alabama (June 11, 1925), 105 Southern Reporter, page 686.—Lennie
Ross McCoy, jr., a child 6 years of age, was the grandson of R. J.
McCoy, the deceased employee. The father of the child, and son
of the deceased, died when the child was about 18 months of age.
His mother entered into a contract in writing with the deceased em
ployee and his wife by which they agreed to take, support, and edu
cate him as their own child, and allow him to inherit “ with their
own children equally their estate.” Thereafter the child was wholly
dependent upon them for support until the grandfather’s death.
The question in the case was whether the child was a “ child ” or an
“ orphan ” within the meaning of the compensation act, and can he
take as an adopted child? From a judgment in favor of the infant
the defendant petitioned it for certiorari.

The court went fully into the definition of the words “ child ” and
“ orphan ” in its attempt to decide the actual status of the claimant
in this case, and reached the conclusion that in view of the Code,
sections 7553, 7554, 7559, 7596 (c), when a grandchild, made an
orphan by the death of his father, becomes a member of the family
of the grandfather, to be supported as one of his children and is
entitled to inherit, he is within the listed dependents, having the
status of actual dependent. “ Orphan ” was considered as applying
to fatherless children. The court said:
A grandchild made an orphan by the loss of the parent of the blood
of the ancestor is entitled to inherit directly from the ancestor upon

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

205

his decease. The term “ child ” is used in one of our statutes of dis
tribution to include the orphaned grandchild.
We can scarcely conceive that legislators would include stepchil
dren, members of the family, while the orphaned grandchild, likewise
a wholly dependent member of the family, is turned empty away.
The humanities of the case, the causes giving birth to our compensa
tion laws, forbid such construction.
Finding no error, the writ was denied and the judgment was
affirmed.
W orkmen’s Compensation—D ependency—W ife by V oid Mar
v. Industrial Commission, Supreme Court of TJtah
(November 26, 1924), 280 Pacific Reporter, page 1026.—O. R. San
ders, employed by the Utah Fuel Co., was killed in March, 1924, by
reason of an accidental explosion arising out of or in the course of
his employment. Ruby Clark Sanders applied for compensation as
widow of O. R. Sanders. The commission denied compensation,
and upon a request for a rehearing being refused, the plaintiff ap
pealed for a review. It appeared that the claimant and a former
husband had been divorced, the decree to become absolute six months
after the date of granting on April 25, 1923. On June 16, 1923, ac
cording to a marriage certificate issued at Evanston, Wyo., the
claimant and Sanders were married. They lived together thereafter
at Castlegate, Utah, where Sanders worked. The supreme court
pointed out that the marriage having taken place within the six
months’ period, the marriage was void in Utah.
riage— Sanders

Sanders was under neither legal nor moral obligation to support
his alleged wife. Their relationship was adulterous, and this the
parties were presumed to know when they contracted the void mar
riage. The workmen’s compensation act does not create a right or
impose a liability growing out of such illegal relationship.
The order of the commission denying compensation was therefore
affirmed*
W orkmen ’s C ompensation— D isability — A nkylosis of I ndex
F inger— E arning C apacity— High v. Liberty Coal <&JOoke Co.,

Court of Appeals of Kentucky (December 16,1924), 268 Southwestern
Reporter, page 1095.—W. H. High, employed by the defendant coal
company, received an injury which produced a stiffness in the third
joint of his index finger and for which he sought compensation. The
workmen’s compensation board found the finger to be 75 per cent
stiff, and that claimant had not laid off because of the injury nor had
he been disabled. The evidence showed that he earned as much after
as bef ore the accident. A Doctor Nuckols testified that claimant had
ankylosis of the joint, and that he estimated his disability at 10

206

DECISIONS OF THE COURTS

weeks. The board awarded compensation in the sum of $12 a week
for 11 weeks and the employer appealed. The circuit court set aside
the award and the claimant appealed.
Section 4899, Kentucky Statutes, provided:
For ankylosis (total stiffness of) or contractures (due to sears or
injuries), which makes the fingers more than useless, the same number
of weeks apply to such finger or fingers (not thumb) as given above.
As the evidence did not place the case within this provision, the
circuit court held claimant not entitled to compensation; but, as the
court of appeals held, “ the statute does not stop with the specific
injuries,” but provides:
In all other cases of permanent partial disability, including any
disfigurement which will impair the future usefulness or occupa
tional opportunities of the injured employee, compensation shall be
determined according to the percentage of disability, taking into ac
count, among other things, any previous disability, the nature of the
physical injury or disfigurement, the occupation of the injured em
ployee, and age at the time of injury; the compensation paid shall
be 65 per cent of the average weekly earnings * * *.
As to whether the case came under this last provision the court said:
It was the purpose of that provision to provide compensation in
all cases other than* those specified, for any permanent partial dis
ability that would impair the future usefulness or occupational oppor
tunities of the injured employee. Therefore, the fact that an injured
workman is employed at the same work and the same wages after the
injury as before will not disentitle him to compensation if his physical
efficiency has been substantially impaired. There being some evidence
tending to show that appellant’s future usefulness or occupational
opportunities were impaired, the question of compensation was for
the workmen’s compensation board, and its finding should be affirmed
by the circuit court.
The judgment was therefore reversed and the case remanded.
W

o r k m e n ’s

C o m p e n s a t io n — E

C orporation —Leigh

m ployee

— C h ie f S tockholder

Aitchison (Inc.) v. Industrial Commission,
Supreme Court of Wisconsin (November 17, 1925), 205 North
western Reporter, page 806.—Leigh Aitchison organized Leigh
Aitchison (Inc.) in the year 1919, with authorized capital of 250
shares, of which 127 were issued to Leigh Aitchison, 2 shares to her
sister, 1 to a Miss Sanborn, and 1 to a Miss Orgeich. Mrs. Aitchi
son was the president and manager of the business, determining
its policy, doing the buying, hiring and discharging the employees,
and fully controlling the business. Her sister was vice president,
without duties or profits, and Miss Orgeich was secretary and em
ployed as stenographer, bookkeeper, and office assistant. Mrs.
Aitchison’s salary was fixed at $3,600, and later increased to $5,000.

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

207

The company had never paid any dividends, and the balance of the
stock was never issued. While on an errand in connection with the
business,, Mrs, Aitchison was injured by slipping upon the sidewalk.
She applied for compensation and the industrial commission found
she was an employee of Leigh Aitchison (Inc.), and made a tem
porary award from which the insurance carrier appealed.
The supreme court considered first whether Leigh Aitchison was
at the time of her injury an employee of Leigh Aitchison (Inc.),
and held that a party owning practically all the stock and entitled
to practically all its earnings, who has complete authority over her
own employment, does not sustain the relation of “ employee ” with
the company so as to come within the purview of the workmen’s
compensation act. It was contended that as the situation stood the
question was one of fact and not of law, and therefore the finding
of the commission was conclusive. The supreme court observed that
although the facts were undisputed, it was only by the application
of “ established legal principles to those facts that a conclusion can
be reached as to whether or not Mrs. Aitchison sustained the rela
tion of employee.”
It being considered clearly a question of law the judgment was
reversed, with directions to enter a judgment setting aside the
award of the industrial commission.
W o r k m e n ’ s C o m p e n s a t io n — “ E m p l o y e e ” — P ar t n e r — Ardmore
Paint & Oil Products Go. v. State Industrial Commission, Supreme
Court of Oklahoma (March 17, 1925), 23fa Pacific Reporter, page
682.—Willis J. Stoneburner, employed by the company named, a
partnership, was engaged in a hazardous occupation, within the
meaning of the statute, and while so employed sustained an acci
dental injury. The industrial commission awarded compensation
for temporary total disability at the rate of $11.54 per week from
October 4, 1922, to April 1, 1923, being a period of 25 weeks and 4
days, and the sum of $560 reimbursement for medical expenses.
The commission further ordered that the cause should be continued
to determine the extent of permanent disability and disfigurement.
The employer and insurance carrier appealed on the ground that
“ there was not such employment here as contemplated by the
workmen’s compensation law, and that the act ih question was not
designed for the purpose of protecting an individual situated as
was Mr. Stoneburner.” It appeared that Stoneburner was prac
tically, if not absolutely, in charge of a small business owned by
himself and wife, and where the wife had nothing to do with the
operation and management of the business.
The supreme court, on reviewing the record, referred to the case
of Ohio Drilling Co. v. State Industrial Commission et al. (86 Okla.

208

DECISIONS OP THE COURTS

139, 207 Pac. 312, 25 A. L. R. 367), decided by the same court, in
which it was held that a partner injured in partnership business
was entitled to compensation as an “ employee.” On the authority
o f this case the order of the industrial commission granting com
pensation was affirmed.
W

orkmen ’ s

C ompensation— “ E mployee ”— S tatus

B enefici

United States v. Griffith, Court of Appeals of the District of
Columbia (December i, 1921^), Washington Law Reporter, page 31^.—
George H. Van Kirk had been, for some years prior to July 28,1920,
ary —

a resident of the District of Columbia and an employee of the W ar
Department. On that date, because of disabilities, he filed with
the United States Employees’ Compensation Commission an applica
tion for disability compensation under the act of 1916 (39 Stat. 742).
He was awarded, on October 22, 1920, disability compensation at
the rate of $66.67 per month, being a rate based upon the salary
which he was receiving at the time of his disability.

Van Kirk, after being awarded compensation, was selected to serve
as a grand juror in this District. The defendants in this case were
not aware of the fact that Van Kirk was a Government employee
until May 12, 1921, and on May 16, 1921, they filed a plea in abate
ment alleging that he was not competent or qualified to act as a
grand juror in the case, under sections 215 and 217, District Code.
The Supreme Court of the District of Columbia, holding the crim
inal court, sustained a plea in abatement and quashed the indict
ment, from which the United States appealed. The Court of Ap
peals of the District of Columbia, in reviewing the record, observed
that the compensation act provides that the United States shall pay
compensation for the disability of an employee resulting from a
personal injury sustained in the performance of duty, and that the
compensation commission retains a certain measure of control as to
the conduct of the employee. In the course of the opinion, speaking
through Mr. Chief Justice Martin, the court said:
It thus appears that at the time in question the Government was
paying the juror a monthly stipend as employee’s compensation,
reserving the authority to control his conduct in certain particulars
and with power to increase, diminish, or terminate the compensation
at discretion. In'our opinion that relationship, whatever be the
technical name which may most narrowly describe it, did in effect
constitute the juror an employee of the United States within the
sense in which that term is here used.
The decision in the case of Block v. State, 100 Ind. 357, 362, was
quoted by the court as authority for the conclusion that a United
States employee is not qualified to serve as a member of the petit

209

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

jury in the trial of criminal cases in the District of Columbia, and
that a challenge seasonably made by the accused upon that ground
will be sustained. The question then arises whether such an em
ployee is likewise disqualified to serve as a grand juror in the Dis
trict. In answer to this the court of appeals held that the term
“ juror” is held to include alike both petit and grand jurors, and
that objections to the qualifications of grand jurors under circum
stances such as these may be made by a plea in abatement, citing
cases.
The judgment of the trial court in sustaining the plea in abatement
was therefore affirmed.
W o r k m e n ’s

C o m p e n sa tio n — E m pl o ye e — “ U su a l

C ourse

Olsen’s Case, /Supreme Judicial Court of Massachusetts
(April 17, 1925), 147 Northeastern Reporter, page '350.— G e o rg e
O lsen w as e m p lo y e d S ep tem b er 11, 1923, b y th e T . E. R e e d C o ., a

T rade ” —

co r p o r a tio n en g a g e d in th e business o f ste v e d o rin g , te a m in g , lig h t e r
in g , an d o p e r a tin g barges.

F r o m S ep tem b er 11 to S e p te m b e r 20

he w o rk e d ab ou t th e p rem ises o f th e co m p a n y . F r o m S e p te m b e r 20
to O cto b e r 8 he w o rk e d m ost o f th e tim e p a in tin g th e resid en ce o f
T . E. R e e d , an d w h ile so e n g a g e d rece iv e d an in ju r y f o r w h ic h he
sou gh t com p en sa tion . F r o m a d ecree o f th e in d u stria l a ccid e n t b o a rd
a w a rd in g com p en sa tio n th e in su ra n ce c a rrie r a p p ea led . T h e o n ly
qu estion in th e case w as w h eth er o r n o t th e e m p lo y m e n t w as in th e
usual cou rse o f th e tra d e o r business o f th e T . E. R e e d C o . T h e
d efin ition o f an e m p lo y e e u n d e r th e co m p e n sa tio n act in clu d e s e v e ry
p erson in th e serv ice o f an oth er, u n d er a n y c o n tra ct o f h ire , e x
pressed o r im p lie d , “ e x ce p t on e w h ose e m p lo y m e n t is n o t in th e
usual cou rse o f th e tra d e, business p r o fe s s io n , o r o c c u p a tio n o f h is
e m p lo y e r.” T h e co u rt o b serv ed th a t an e m p lo y e e m a y b e in th e em
p lo y m e n t o f th e in su red , b u t he is n o t e n title d to c o m p e n sa tio n i f at
th e tim e o f th e in ju r y he w as n o t e n g a g e d in th e u su al tra d e , b u si
ness, o r o cc u p a tio n o f th e e m p lo y e r. T h e house u p o n w h ich th e
em p loyee w as w o r k in g w h e n in ju r e d w as th e p r o p e r ty a n d resid en ce
o f T.

E. R e e d , th e p re sid e n t a n d g en era l m a n a g e r o f th e co m p a n y .
E. R e e d C o . “ w as n o t e n g a g e d in th e business o f p a in tin g

The T.

houses.”

The supreme judicial court was of the opinion that the evidence
failed to show that Olsen was employed in the usual and ordinary
business of the company as distinguished from occasional and in
cidental work, and for this reason denied him a recovery.
The decree was therefore reversed and a decree entered for the
insurance carrier.

210

DECISIONS OF THE COURTS

W orkmen’s Compensation—Employee—W orkmen’s Associa
tions—Dixon Casing Crew v. State Industrial Commission, Supreme
Court of Oklahoma (April 21, 1925), 285 Pacific Reporter, page'
605.—W. A. Dixon and four others, styling themselves the Dixon
Casing, Crew, were engaged in running and pulling casing for the:
Gruver Drilling Co., being paid $55 a day for their joint labor.
The men divided the proceeds equally among themselves, except
that Dixon was paid 10 per cent for collecting and keeping the time
book. On the 16th day of June, 1924, Dixon suffered an injury for
which he claimed compensation. The commission made its findings
that Dixon was an employee of the Dixon Casing Crew, that the
casing crew and its insurance carrier, the Federal Surety Co., were
liable for the compensation, and further that Dixon was not an
employee of the Gruver Drilling Co. An appeal was taken to the
supreme court.
Paragraph 4, section 2, chapter 61, provided in part:
Employee means * * * and shall include workmen associat
ing themselves together under an agreement for performance of a
particular piece of work, in which event such persons so associat
ing themselves together shall be deemed employees o f the person
having the work executed.
The supreme court was of the opinion that the legislature had in
mind “ who was liable when several individuals associated them
selves ” under such an agreement as this one, and whether such an
association was a partnership, and, if such, “ could a copartner re
cover for an in ju ry against the association while engaged in such
employment.” The Gruver Drilling Co, employed the Dixon Casing
Crew, paid a certain wage to it, and the work was done for the
Gruver Co. In conclusion the supreme court stated:
Under the evidence, this case involves the construction of a statute
only, and, it being clear that Dixon was one of the associate mem
bers who undertook, together with his other associates, to perform
work and labor for the Gruver Drilling Co. for hire, it therefore
created the relation of employer and employee between the Gruver
Drilling Co. and the associate members of the Dixon Casing Crew.
Dixon clearly was performing work and labor within the defini
tion of the statute for the Gruver Drilling Co., and was not within
the definition of an employer and employee as between the Dixon
Casing Crew and himself, as defined by the said act.
The order and judgment was therefore reversed and cause re
manded for further proceedings.
W o r k m e n ’s C o m p e n sa tio n — E m p lo y e r — L e sso r — F a i l u r e t o

I n

Industrial' Commission et al. v. Hammond, Su
preme Court of Colorado (June 1, 1925), 236 Pacific Reporter, page
1006.— W a lt e r J . M a y w as e m p lo y e d b y one R a th b u n to h a u l lo g s
su r e — C o n t r a c t o r —

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

211

at $4 per thousand and to haul lumber from a sawmill to the rail
road cars, using his own team and wagon. B. J. Hammond owned
the sawmill, which he leased to Rathbun, including machinery, tools,
and equipment, on August 15, 1922. The lease was for one year, and
by its terms Rathbun agreed to produce 300,000 feet of lumber from
the mill and Hammond agreed to pay charges due the Government,
and was to receive as rent one-sixth of the finished product or onesixth of the net proceeds. On November 2, 1922, May met with an
accident while engaged in the course of his employment, receiving
injuries from which he died. Neither Rathbun nor Hammond car
ried industrial insurance. Proceedings were instituted against them
by the deceased employee’s widow on behalf of herself and children,
and an award obtained. Hammond took the cause to the district
court, where the findings and award were set aside as to him, and a
writ of error was prosecuted by the commission to the supreme court.
The compensation act (sec. 16) provides that every employer of
four or more employees engaged in a common employment should be
conclusively presumed to have accepted the provisions of the act
unless he should have filed a notice to the contrary, or had rejected
the act in conformity with the provisions for so doing. Section 27
provides that if an employer subject to the act carries no insurance
and one of his employees who has not rejected the act is killed or
injured compensation may be claimed, and in such case “ the amounts
of compensation or benefits provided in this act shall be increased
50 per cent.” This same section further provides the payment of the
present value of the award to a trustee or that a bond to secure pay
ment be given, and that on failure of the employer to do so the award
is to have the same effect as a judgment of the district court if filed
in the office of the clerk in the district court and recorded in the
judgment book and judgment docket.
Section 49 of the act provides that a lessor shall be construed to be
an employer as defined in the act, irrespective of the number of em
ployees, and shall be entitled to recover the cost of such insurance
from the lessee, sublessee, or contractor.
The commission found that May was employed by Rathbun; that
his death was caused by an accident arising out of and in the course
of his employment; that the widow and children were sole depend
ents; that Rathbun was lessee; that neither lessee nor lessor carried
insurance, and that Rathbun legally came under the provisions o f the
act. The compensation allowed by the commission was increased
50 per cent on account of the failure of the lessor and lessee to carry
insurance, and the medical, surgical, hospital, and undertaker’s
claims were likewise increased 50 per cent. It was further ordered
that the lessor and lessee execute a bond for compliance with the

212

DECISIONS

the

courts

order or pay to the trustee the present value of the compensation
award.
It was contended that sections 16, 27, and 49 of the act were un
constitutional, and it was perhaps on this view that Hammond was
released from payment. The supreme court, however, disagreed,
saying:
As similar statutes have repeatedly been declared constitutional,
and as counsel for defendant in error seems to attach little impor
tance to this contention, and presents no new reason for his position,
we feel it unnecessary to examine it in detail. We find nothing in
said sections in conflict with the constitution.
It was next contended that the evidence did not support the find
ing, but the supreme court held otherwise, observing that, “ in view
of the fact that Hammond’s liability, if any, is fixed by said section
49, irrespective of the number of employees, the question is im
material.”
That part of the findings directly requiring employers to give bond
under section 27 was held not objectionable because the amendment
authorizing the bond was not passed until after the claim accrued,
such provisions relating to remedies only, and merely providing a
way to escape immediate payment if the employer so chooses.
The defendant claimed that under section 16 the act was applied
to him because of his failure to file notice of his election not to ac
cept, to which the court said: “ The legislature might have made
the statute mandatory. Defendant in error is merely given the
privilege of escaping its provision by filing a notice.”
The act of leasing a sawmill and the equipment for one-sixth of
the finished product or net proceeds was considered by the court
as constituting “ operating ” or “ conducting ” the business within
the compensation act.
The principal contention of the defendant was that May was
not an employee but an independent contractor, and as such was not
subject to the terms of the compensation act. The several tests of
the relation of master and servant were discussed by the court,
which concluded that “ where the employment is general, as op
posed to one for. the completion of a given task according to plan,
price, and terms agreed upon, the relation of master and servant
is presumed, in the absence of proof to the contrary.”
The supreme court considered it fair to conclude that as May
gave all his time to the work that it was general, and that the con
tract merely contemplated labor on the job, not its completion, with
payment by the piece, and not a lump sum for the task. “ May was
then a servant, not a contractor, and the statute covers that service.”

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

213

The supreme court reversed the judgment of the district court
and remanded the cause with directions to affirm the award of the
commission except as to the 50 per cent added by it to the medical,
surgical, hospital, and undertaker’s claims, which portion of the
award was set aside as not being 44compensation or benefits ” sub
ject to increase by the terms of the act.
W orkm en’s Compensation— Employers’ L ia bility — Exclusive
Remedy— Casual Employment— Workman v. Endriss, Supreme

Court of Minnesota (July 10, 1925), 20
4 Northwestern Reporter1
page 6J±1.— Herman Endriss was engaged in business under the name
of Peerless Scale Co., and in the course thereof had on numerous oc
casions employed one Carter to do repair work. The business was
the placing and operating of automatic machines, such as weighing
machines and gum and other vending machines. Frequent repairs
were necessary to keep these machines in proper working order, and
defendant had employed the plaintiff, Frank Workman, to do this,
as Carter was unable to go. On J anuary 20, 1922, plaintiff and de
fendant started on a trip in defendant’s automobile, the defendant
driving. They visited some machines in Minneapolis and other
places, the plaintiff repairing those needing attention. W hile trav
eling toward Minneapolis over an icy and rutty road the automobile
was overturned, causing injuries for which the plaintiff sought com
pensation. From a directed verdict and judgment for the defend
ant in a suit at law for damages plaintiff appealed from an order
denying a new trial.

The trial court had held that the sole relief was under the com
pensation act, and the supreme court stated that it “ clearly appears
that the injuries arose out of and in the course of the employment
within the meaning of the compensation act.” As to the question
whether or not the plaintiff’s employment was casual, the supreme
court held that:
Although plaintiff’s employment may have been casual, it was in
the usual course of the business of his employer, and he was there
fore within the compensation act.
The order denying new trial was therefore affirmed.
W o rk m e n ’s

C o m p e n sa tio n — E m p lo y e r s ’

L i a b i l i t y — J u r isd ic -

Vic
tory Sparkler & Specialty Go. v. Francks, Gourt of Appeals of Mary
land (February 12, 1925), 128 Atlantic Reporter, page 635.—Cath
erine E. Francks, employed by the Victory Sparkler & Specialty Co.
in the making of fireworks at its plant at Elkton, Md., contracted

t io n — A c c i d e n t a l I n j u r y — D ise a se — P h o sp h o r u s P o iso n in g —

93383°— 26------ 15

214

d e c is io n s of t h e

courts

phosphorus poisoning, resulting in various surgical operations and
serious physical injury and disfigurement. She brought an action
by her father as next friend for damages. The defendant’s demur
rer, claiming operation under the State compensation act, was
overruled, and after verdict and judgment for the plaintiff in the
amount of $22,500, defendant appealed from the adverse ruling on
the demurrer.
On appeal the company contended that it was an employer en
gaged in extrahazardous occupation within the State compensation
law and that it was insured under this act, by reason of which 110
other liability attached than that provided thereby.
The pleadings raised two legal questions, one as to whether the
employer was liable at common law if the injury was not com
pensable under the terms of the compensation act, and the other as
to whether or not the disease of phosphorus poisoning was an injury
outside of the purview of the act. The lower court answered both
of these inquiries in the affirmative.
In the appeal attention was called to the provision that the em
ployments covered by the act “ are hereby withdrawn from private
controversy,” giving benefits under the compensation act without
question of fault “ to the exclusion of every other remedy, except
as provided in this act.” The employer was found to have fulfilled
all its obligations, and the girl was its employee, accepting the com
pensation act “ as a statutory term of her employment when she
became the servant of the appellant.”
The question was considered as to whether or not the act is re
stricted “ to that distinct and separate class of injuries arising from
accidents,” and whether with respect to other injuries from any other
cause the common-law remedies exist against the employer; but
“ this theory of the statute is at once confronted by the salient pur
pose of the act to put an end to private controversy and to litigation.
It splits apart the field of negligence in hazardous employments, and
makes futile the law’s pronouncement that it is the exclusive remedy
for every phase of extrahazardous employment, except as by its own
terms specified.” As the term “ injury ” is used it is said to cover
“ every injury which could be suffered by any worker in the course
and arising out of the employment for which there was then a sub
sisting right of action.”
The question whs a new one befor.e the court of appeals, and tak
ing up the subject of the nature of the injury, the court said:
An occupation or industry disease is one which arises from causes
incident to the profession or labor of the party’s occupation or call
ing. It has its origin in the inherent nature or mode of work of the
profession or industry, and it is the usual result of concomitant. If,
therefore, a disease is not a customary or natural result of the pro

WORKMEN *S COMPENSATION

215

fession or industry per se, but is the consequence of some extrinsic
condition or independent agency, the disease or injury can not be
imputed to the occupation or industry, and is in no accurate sense
an occupation or industry disease. In this case the occupation of
the girl as an employee in a department of a manufactory of fire
works was simply a condition -of her injury, whose cause was the
definite negligence charged against the employer. The nifcst that
is warranted to be inferred from the allegations of fact in the
declaration is that the phosphorus poisoning alleged was the gradual
result of the negligence of the employer. As this negligence was a
breach of duty to her, it was not to be foreseen or expected by the
worker as something which would occur in the course of her em
ployment. The fact that she continued at her place of labor, in the
doing of her common and regular task, makes it clear that the
phosphorus poisoning happened without her design or expectation,
and so her injury was accidental. It was by chance that employer
did not use due care, and by chance that the vapor of phosphorus
was where its noxious foreign particles could be inhaled by the girl.
It was by chance that the inspired air carried these particles into
her system, sickening her, and causing a necrosis of the jaw after
fortuitously finding a lesion. The injury thus inflicted upon her
body was accidental by every test of the word, and its accidental
nature is not lost by calling the consequential results a disease.
Neither the gradual development of the disability nor the length
of time intervening between the reception of the poisonous sub
stance and its first manifestation were held to change the nature
of the injury.
The phosphorous poisoning of the employee as described in the
declaration was therefore not a disease incident to the industry, but
was an injury in causal connection with her employment, within the
meaning of the act defining injury to “ mean only accidental in
juries arising out of and in the course of employment and such
disease or infection as may naturally result therefrom.”
It was noted that the use of the terms “ injury/’ “ accident,”
“ personal injury,” “ injury by accident,” and “ occurrence of the
injury” militates against special restriction being implied by th«
law.
It will be observed that the statutory definition of
injury under the Maryland act is not that it is an
that it is an injury “ by accident,” but that it must
injuries.” The difference is important, as it marks
between the thing or the event (i. e., accident) and
condition (i. e., accidental) of that thing or event.

a compensable
“ accident,” or
be “ accidental
the divergence
a quality" or a

The judgment for damages was accordingly reversed, but on a
motion for a modification of this judgment, in view of the newly
alleged fact, that at the time of the employment Miss Francks was
under 18 years, the question arose as to the exemption of the case
from the operation of the compensation act, it being argued that

216

DECISIONS OF THE COURTS

the case should be remanded “ with leave to amend her declaration,
so as to avail herself of any other different cause of action which
she may have.”
The court of appeals remanded the case with costs to the appellant
and with leave to the appellee to amend her declaration and have
a new/trial thereupon, but the case was afterwards compromised.
W

o r k m e n ’s

C o m p e n s a t io n — E m plo y er ’ s

C o m p a n ie s — F ederal

L ia b il it y — R ailroad

S t a t u t e — I n terstate C o m m e r c e — O iler

—Stone v. New York Central Railroad'’, Supreme Court of
New York, Appellate Division (January 7, 1925), 207 New York
Supplement, page 353.—Michael Stone employed by the defendant
railroad company, was engaged in the work of greasing or lubri
cating engines as they were about to start on their trips. His duty
applied to both interstate and intrastate engines. One morning,
before actually beginning to grease an engine, his hands becoming
soiled by the grease he took a quantity of waste to clean them.
The waste had a piece of wire in it which cut one of his fingers.
He continued work and later his finger became infected, resulting
in a more serious injury than at the time seemed apparent. He
brought an action under the workmen’s compensation law of the State
for compensation for personal injuries received, and from an award
of compensation the employer appealed.
The question arising was whether the employee was engaged in
interstate or intrastate commerce. I f he was engaged in interstate
commerce he could not recover, as his remedy would be under the
Federal employers’ liability act. The supreme court said:
In the present case claimant had not yet applied the dope to
any particular engine, but that ground of distinction seems un
important. He was engaged in the preparatory work, which had
reference to both classes of commerce. It is not possible to separate
these necessary acts of preparation with reference to the two kinds
of commerce. Part of the dope in the pails could not be appor
tioned to one commerce and part to another. It was for use, and
was to be used, in both commerces.
Where the work being done is so closely related to interstate com
merce as to be practically a part of it, it is deemed to be work in
that kind of commerce. (Pedersen v. D. L. & W. R. R. Co., 229 U. S.
146, 33 Sup. Ct. 648.)
Y

ard

The court quoted with approval from the United States Supreme
Court in the case of Philadelphia & Reading Ry. Co. v. Polk (256
U. S. 332, 41 Sup. Ct. 518), in which the court said, “ It is the
declaration of the cases that, if there is an element of interstate
commerce in a traffic or employment, it determines the remedy of the
employee,”

w o r k m e n ’s c o m p e n s a tio n

217

The court considering the character of the work of the plaintiff as
being such, it accordingly reversed the award and dismissed the
claim.
W orkm en’s Compensation— Independent Contractor— F ailu re
to Insure— V iolation of Statutory D u ty — Sherlock v. Sherlock,

Supreme Court of Nebraska (December 31, 1924) > 201 North
western Reporter, page 645.— Peter W. Sherlock, jr., brought
an action against Peter W. Sherlock, sr., and the Richardson
Drug Co. for compensation for injuries received out of and in
the course of his employment as a painter. The defendant Sherlock
agreed to paint the exterior of the corporation’s building for $135,
and “ to hold it harmless in the event of an accident to himself or to
any of his employees.” As a consequence of the agreement the cor
poration took out no insurance and did not require the defendant
Sherlock to do so. The latter did not procure any insurance, but
employed the plaintiff as painter at $29.70 a week. W hile the plain
tiff was engaged in his work on the exterior of the building the
scaffolding gave way, and in the resulting fall he was severely
injured. The compensation commissioner awarded the plaintiff $15
a week and an attorney’s fee of $250, from which award only the
corporation appealed.

The supreme court construed the statute to create a liability fox'
compensation for a failure to procure insurance for the protection
of workmen. The statute provided in part:
Any person, firm, or corporation creating or carrying into opera
tion any scheme, artifice, or device to enable him, them, or it to
execute work without being responsible to the workmen for the pro
visions of this article, shall be included in the term “ employer,” and
with the immediate employer shall be jointly and severally liable to
pay the compensation herein provided for.
The court in discussing this provision said:
The terms “ any scheme, artifice, or device,” as they are thus used,
do not necessarily imply active fraud or evil design. Anyone resort
ing to such means under the circumstances described in the legisla
tion on this subject may be included within the term “ employer.”
The following obligation was entered into by the defendant
Sherlock:
I agree to hold the Richardson Drug Co. harmless in case of any
accident to myself or employees.
The supreme court was of the opinion that this could reasonably
and fairly be considered a “ device ” within the statute, “ if the cor
poration disregarded a statutory duty to require its independent
contractor to procure compensation insurance.” The corporation

218

DECISIONS OF THE COURTS

was considered as an employer subject to the compensation law
despite the contentions of the defendant corporation that work such
as painting was not in the usual course of the trade. The court
said:
Under a liberal construction of the workmen’s compensation law
the work in which the plaintiff was engaged when injured was per
formed “ in the usual course of the trade, business, profession, or
occupation ” of the corporation. In that situation it failed to require
defendant Sherlock to procure insurance for plaintiff’s protection,
and joined the independent contractor in a device to escape liability
for compensation of the injured workman. Within the meaning of
the law both defendants are liable to plaintiff for compensation.
The judgment was accordingly affirmed.
W

orkmen ’ s

ural

C ompensation— I njury — M ental D isease— “ N at
R esult ” —Bramble v. Shields, Court of Appeals of Maryland

{December 14, 1924), 187 Atlantic Reporter, page 44-—William S.
Shields, employed by John T. Bramble, was injured on June 27,
1922, when a trench in which he was working caved in. The attend
ing physician reported that “ both bones of his right leg were frac
tured, and that there wrere lacerations upon the entire body, includ
ing laceration at left groin about 7 inches long, and a fracture of
the fifth lumbar vertebra.” After four weeks in the hospital he
was removed to his home, where his leg was in a cast for four weeks
longer. Shields worried about his condition, and according to
Doctor Jamison, his attending physician, “ his mind began to get
bad six weeks after he returned home,” and “ it continued to get
worse all the time until he was taken to Mt. Hope, on February 28,
1923.” Shortly after his return home from the hospital he began
to “ insist that his spinal cord was decaying.” Although apparently
recovering fully, Shields did no work after the accident. The X ray
disclosed no injury to the back, and the doctors assumed that the
pains he complained of wTere “ delusions, and that his fear that his
spinal cord was decaying was an obsession.”
The industrial accident commission found him temporarily totally
incapacitated, and awarded compensation at the rate of $8 per week
from July 1, 1922. In November, 1922, two doctors reported to the
employer that they had examined Shields and did not find any
results in his back from the injury sustained in the accident, and
that “ he is suffering from neurasthenia, due to constantly thinking
that he will not get well.” On January 3, 1923, a final settlement
receipt was filed with the commission, according to law, signed by
Shields and dated December 29, 1922.
On April 28, 1923, Mrs. William S. Shields, dependent wife of
the injured employee, filed a petition claiming that Shields was

219

WORKMEN'S COMPENSATION

mentally incapacitated when he signed the settlement receipt and
that his mental condition “ was a direct result of the injury.” She
asked for a further hearing and that the receipt be set aside.
The hearing being granted and evidence being submitted, the com
mission passed an order declaring “ the settlement receipt null and
void, and directing a further hearing on the question of an award.”
At this hearing the commission ordered “ that payment of compen
sation * * * cease as of December 22, 1922.” Claimant ap
pealed, and on the trial by jury found that the mental disease was
the natural result of the injuries received and that Shields was per
manently totally disabled. A judgment was entered upon the ver
dict, reversing the order of the commission and remanding the case
to the commission “ to the end that it pass an order or orders award
ing the claimant such sum per week as is provided by law during
permanent total disability, but not to exceed in the aggregate the
sum of $5,000.” The defendant appealed.
The contention of the defendant was that the word “ naturally ”
must be held “ to mean c according to the usual course of things,’ in
the sense of something to be contemplated or expected,” and several
cases were cited in support of the contention. The court of appeals,
speaking through Mr. Justice Adkins, said:
But in cases arising under the workmen’s compensation law the
question of negligence is excluded, and with it the rule as to reason
able and probable consequence would also be excluded, if such rule
were applicable here. The only test is: Did the accidental injury
arise out of and in the course of employment? I f it did, it makes no
difference whether it was a normal or abnormal occurrence, and so
with “ any such disease or infection as may naturally result there
from.” It can make no difference whether the results are usual or
unusual, if there is a direct causal connection between the injury and
the disease, so that the disease is directly attributable to the injury.
Other exceptions being overruled or otherwise disposed of, the
court of appeals affirmed the judgment.
The Supreme Court of Oklahoma held that where a neurasthenic state re
sulted from industrial accident, it would be compensable; but where there was
ah actual earning capacity, demonstrated by employment in another vocation,
compensation as for total disability should not be awarded, but an amount re
flecting the wage loss.
(Rialto Lead & Zinc Co. v. State Industrial Com.
(1925), 240 Pac. 96.)

o r k m e n ’s

C o m p e n s a t io n — I

nju ry—

P r e e x is t in g D

isease —

—B. F. Avery & Sons v. Garter, Court of
Appeals of Kentucky (November H, 198^), 866 Southwestern Re
porter, page 50.—C. Harvey Carter, employee of B. F. Avery & Sons,
was injured on May 27, 1921, by some molten iron accidentally fall
ing upon his foot and burning the top of the left great toe. The acci
p o r t io n m e n t of

w ar d

220

DECISIONS OF THE COURTS

dent arose out of and in the course of his employment, and its proxi
mate results were conceded to be compensable under the compensation
act. A nurse rendered first-aid treatment, but after that time Carter
took care of the burn, with the help of his sister. The wound did not
heal, and on January 7, 1922, Carter went to a physician, who discov
ered that infection had set in. The toe was treated by the physician,
but a gangrenous condition developed, and on March 10,1922, Carter
died. It was shown by the evidence that Carter had sustained a great
number of such accidents and had treated them at home by applying
the usual remedies of salves, etc. Carter’s sister made application for
compensation, but was opposed by the employer, who contended that
Carter’s death was due to his neglect and failure to submit to proper
medical treatment, that the infection of the parts was not the proxi
mate result of the burn, and that Carter died from a preexisting
disease, namely, diabetes. Compensation was awarded and the
employer appealed.
The court of appeals held that under the workmen’s compensation
act neither the circuit court nor the court of appeals could reverse
the finding of the industrial board on the issue of proximate cause
of injury and ensuing death, if the finding was supported by sub
stantial evidence. The finding of the commission that Carter was
not so unreasonable in not consulting a physician that the claim
could be barred on that ground was held warranted by the evidence.
It was in evidence that both the preexisting disease and the accident
caused the death, and as to the computation of the compensation the
court of appeals stated that it “ should be apportioned according to
contribution of each, as in the case of a mere disability of employee.”
Carter had suffered at various times with the disease and had been
placed upon a diet on each occasion, and some time just after the
accident the same conditions appeared, and “ a short while before
his death he had the symptoms of a fatal stage of that disease.” The
court said:
The board found that his death was the result of the injury and
did not find that the preexisting disease contributed to it, and there
fore under the rule supra that finding should be accepted as con
clusive. However, we are not inclined to adopt that contention for
two reasons: The first being that the finding itself does not exclude
the prior existing disease as a proximate causal factor in producing
the death, and secondly, such a finding, if it had been made was un
supported by any evidence, since we have seen that all the evidence
upon the subject was that the death was proximately contributed
to by both the prior existing disease and the accident.
The court of appeals, being of the opinion that the compensation
should have been apportioned, reversed the judgment with directions
to make a new award.

WOKKMEN ’ S COMPENSATION

221

In contrast with the above is the attitude of the Court of Appeals of Mary
land, in affirming a judgment sustaining a judgment for the payment of con
tinued benefits in the case of a man whose disability was said to be abnor
mally prolonged on account of his diseased condition. The court said that “ it
has been established that, when disease or infection is so set in motion or
aggravated by an injury that disabilities result which would not otherwise
have occurred, such disabilities are to be treated as results of the injury.”
To the insistence that a prolongation of disability beyond the natural results
of the injury itself should be regarded as “ the result of the infection rather
than of the injury,” it was said that: “ This, it seems to us, could never be a
valid argument in a case in which there is evidence sufficient for a finding of
fact that the disease or infection was previously inactive, and was made dis
abling only by the intervention of the injury. * * * It must follow that
the prolongation of disability by that activity is within the results of the
injury.” (Dickson Construction & Repair Co. v. Beasley (1924), 126 Atl. 907.)

W orkmen ’s C ompensation— I njury — R ecurrence i n
S ubse
E mployment — Geary^s Case, Supreme Judicial C&urt of

quent

Massachusetts (June 27,1925), 148 Northeastern Reporter, page 440-—
Joseph W . Geary, while working for Chester H . Norwood, on Octo
ber 23, 1922, received a sacroiliac strain from lifting lumber. He
was totally incapacitated from November 18, 1922, to January 11,
1923, compensation for that time being duly awarded by a single
member of the industrial accident board, and paid by the insurance
carrier. On January 11, 1923, Geary commenced working for E d
ward S. Griffin, and after working three days at intervals between
January 11 and January 20, 1923, he felt the same kink at the same
place in his back when he reached down to pick up a heavy stick,
as a result of 'which he ceased work and made claim against both
insurance carriers. An award of compensation was affirmed by the
superior court and the Globe Indemnity Co., insurer of the first em
ployer, appealed. The member of the industrial board found that
“ the occurrence of January 20, 1923, wTas not a new injury, but
merely a recurrence of the injury of October 23, 1922,” and that the
Globe Indemnity Co. was liable for compensation at the rate of $16
per week. The supreme judicial court was of the opinion that the
evidence warranted a finding “ that there was a causal connection
between the employee’s condition on and after January 20, 1923, and
the original injury,” and that the finding of the board was conclu
sive. In conclusion the court held that:

The insurer of the first employer is liable for a recurrence of the
condition caused by the original injury, even though the employee
at the time was working for another employer.
The decree was therefore affirmed.

222

DECISIONS OF THE COURTS

W orkmen’ s C ompensation— I njury A rising O ut o f and in
Course o f E mployment— A c c id e n t — B lindness by A ction o f
U ltra-V iolet R ays — Industrial Commission of Ohio v. Russell,
the

Supreme Court of Ohio (December 23, 1924),
Northeastern
Reporter, page 305.— Charles M. Russell was employed by the Strand
Theater in Cincinnati as an operator of moving-picture machines.
The machines were operated by electric light throwing the most
powerful ultra-violet light rays, at and through which Russell was
compelled at all times to look. In 1918 he noticed his eyesight was
becoming affected, and after January 25, 1919, he left his employ
ment and took treatments. About January 28, 1920, he lost the
sight of both eyes, the diagnosis being that the disease was optic
atrophy, 44which it was claimed was an incurable disease and a
distraction of the optic nerve.” The ultra-violet light coming from
a silver-tipped carbon point used in the machines, and at which
Russell had to look almost constantly, was claimed to be the cause
of the injury.

The industrial commission rejected his claim for compensation on
the ground that the disability was not the result of an injury sus
tained in the course of or arising out of his employment, within
the meaning of the compensation act. The court of common pleas
affirmed the commission, but the court of appeals reversed it and
the commission brought error.
The injury occurred before the enactment of the statute providing
for compensation for occupational diseases, and it had already been
held by the court in Industrial Commission v. Cross (104 Ohio .St.
561, 136 N. E. 283) that 44diseases contracted in the course of em
ployment not occasioned by, or the result of, physicial injury are
not compensable as injuries under section 1465-68, General Code.”
In Renkel v. Industrial Commission (109 Ohio St. 152, 141 N. E
834) it was held that “ diseases contracted in the course of employ
ment, and not occasioned by or the result of a physical injury, are
not compensable as 4injuries’ under section 1465-68, General Code.”
The supreme court, after reviewing the above two decisions,
stated:
A majority of the court are of opinion that, construing the peti
tion most favorably to the pleader, there are not facts sufficiently
set forth therein to bring the case within the terms of the compen
sation act; that no 44injury,” as contained in the statute and construed
by this court, is shown to have taken place. There seems not to have
been an accidental occupational disease, and it is conceded that there
was no traumatic injury, or any accident, which caused this un
fortunate condition, but rather the prolonged action of ultra-violet
rays coming from a silver-tipped carbon point, which by slow, but
sure, process injured the optic nerve and resulted in optic atrophy.

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

223

In the state of the law at the time of the commission of these acts,
sufficient was not contained within the statutory enactment to
enable the commission to grant this relief, though we reach this
determination most reluctantly.
The judgment of the court of appeals in reversing the court of
common pleas was therefore reversed.

W orkmen ’ s C ompensation— I njury A rising O ut of and in the
Course of E mployment — A poplexy— P reexisting D isease— A ppor
tionment of A ward— Kingston-Pocahontas Coal Co. v. Maynard,

Court of Appeals of Kentucky {May 29, 1925), 273 Southwestern
Reporter, page 34*—While W. S. Maynard, employed by the Kings
ton-Pocahontas Coal Co., was engaged in building a buttress wall in
his employer’s mines, a rock weighing 15 to 20 pounds that he had
just placed in the wall fell upon him, struck him a glancing blow
on the head, and rolled down his right side, but left no mark or
bruise on his body. Maynard notified the assistant mining foreman,
then left his work and went home. The next morning he suffered a
stroke of paralysis. Compensation was applied for, and from an
award affirmed by the circuit court the employer appealed.

Both parties were under the compensation act, and there was no
claim of fraud, in view of which it was held that the findings of the
compensation board were conclusive unless there was an entire ab
sence of evidence to support them. The notice of injury given to the
assistant mining foreman was held sufficient under the compensation
act; it was also held that the evidence sustained the finding of the
board that the injury arose out of and in the course of employment.
The plaintiff stated that prior to the injury he was an able-bodied
man, in good health, and capable of earning his living by manual
labor. He did not introduce any medical testimony. The employer,
by three physicians who qualified as experts, proved that the paraly
sis was due to apoplexy, which “ could not have resulted solely from
the injury received,” in view of the fact that “ there was no fracture
of the skull, and the paralysis did not develop until about 20 hours
after the injury.” On examination it was noted that plaintiff’s
blood pressure was “ dangerously high,” and that his arteries were
“ hardened and very brittle.” They testified that these conditions
usually developed slowly, that in their opinion “ it could not have
been caused by the accident described,” and that this stroke of
apoplexy was “ the result of his physical condition and natural
causes rather than an accident.” They admitted that the strain of
lifting the rock or its striking the plaintiff as it fell from the wall
“ might have been a contributing cause.”

224

DECISIONS OF THE COURTS

The court of appeals noted that there was some evidence that the
plaintiff’s disability “ resulted proximately from the injury,” but “ no
evidence whatever that it resulted solely therefrom.” The court was
of the opinion therefore that there was “ no evidence to support the
board’s finding of fact that appellee’s total disability ‘ was brought
about entirely from an injury suffered by him in an accident that
arose out of and in the course of his employment in the mines of the
defendant, and not from a preexisting disease.’ ”
It followed therefore that the court of appeals could not sustain
the findings of the board that the disability was caused solely by
the injury, and that it was the duty of the board “ to have appor
tioned the award.”
The fact that the employee applied for compensation without any
reference to the cause thereof was held not a fatal variance where
both the application and the proof referred to the same occurrence.
It was pointed out by the court of appeals that the sufficiency of an
application, even though it is the basis of a claim to be heard and
tried, “ is not to be determined by strict rules of pleading.”
The judgment of the circuit court was accordingly reversed and
the cause referred to the board with directions to determine the
extent to which the employee’s injury and his preexisting disease
contributed to the disability, and to apportion the award accord
ingly.
W orkmen ’ s C ompensation— I njury A rising O ut of and in the
C ourse of E mployment — D ependency— C oncurrent or C onsecu
tive B enefits for D ifferent C lasses—Ex parte Todd Shipbuild

ing & Dry Docks Co., Supreme Court of Alabama {March 19, 1925),
103 Southern Reporter, page 4^7.—J. T. De W itt, employed by the
Todd Shipbuilding & Dry Docks Co., was a healthy, vigorous man,
who had had no recent illness and never had had any serious illness.
On the day of his death he was in good health and spirits, but dur
ing the course of his work he took into his hands an electric drill
charged with electricity, and was seen immediately thereafter fall
ing from a standing position at the workbench with the drill still
in his hands, and when he fell it lay on his chest, gripped in his
hand. A negro helper cut off the current, but all efforts to revive
De W itt were futile. There were no* burns on the body, and medical
testimony conflicted as to the cause of the death and whether one
could die by electricity without having burns on the body. H is
wages averaged $40 per week. Alma De W itt and Carrie Holt,
mother and grandmother of deceased employee, applied for com
pensation, and from an award of $10 a week to the mother and $2
a week to the grandmother, each for 800 weeks, the employer
appealed.

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

225

The trial court found that the deceased workman came to his
death by an accident arising out of and in the course of his em
ployment, and the supreme court considered the finding supported
by the evidence. The court said:
It is true that there is no evidence directly showing that the elec
trical appliance being used by the deceased was in such a condition
as to permit the short-circuiting of the current; but the appliance
was owned and operated by the defendant, and the circumstances of
the workman’s death at least imposed upon defendant the duty of
showing that it was properly constructed and insulated, and in
capable of communicating a current of deadly force to the work
man’s body.
The defendant took exception to the allowance of $2 a week to
the grandmother, on the theory that “ a postponed class of de
pendents can not have compensation concurrently with a preferred
class, even though the allowance to the preferred dependent does
not exhaust the entire compensation for which the employer is
liable.” The award also allowed $10 a week to the grandmother in
case the mother should die before the lapse of the 300 weeks, and
to this the defendant also excepted.
Section 7553 of the Code of 1923 provides:
Wife, child, husband, mother, father, grandmother, grandfather,
sister, brother, mother-in-law, and father-in-law who were wholly
supported * * * shall be considered his total dependents, and
payment of compensation shall be made to them in the order named.
Section 7556 provided for the percentage of the deceased work
man’s wages to be paid to each class of the dependents named in the
above-quoted section, namely:
If the deceased employee leave no widow * * *, but should
leave a parent or parents, either or both of whom are wholly
dependent on the deceased, there shall be paid, if only one parent,
25 per cent of the average weekly earnings of the deceased, and if
both parents, 35 per cent [of such earnings]. I f the deceased
* * * leaves a grandparent, brother, sister, mother-in-law, [or]
father-in-law * * * there shall be paid such dependent, if but
one, 20 per cent of the average weeldy earnings of the deceased, or
if more than one, 25 per cent.
The supreme court thought it reasonably clear that “ these statutes
do not intend that compensation shall be payable concurrently to
more than one of the classes or grades of relatives provided for in
section 7556, and that the allowance to the grandmother in addition
to the allowance to the mother was erroneous.”
So far as the instant case is concerned, by the express provision
of section 7556 a dependent grandmother or grandfather is entitled
to compensation only in case the deceased workman has left no
dependent widow, child, husband, or parent, thus plainly negativing

226

DECISIONS OF THE COURTS

the idea of concurrent compensation to the grandparent. It follows
from the considerations above stated that the trial court erred in
ordering compensation of $2 per week paid to the grandmother,
Carrie Holt.

The defendant employer contended that the effect of the law in
its provision for the termination of payments on the death or remar
riage of a beneficiary was not merely to stop the payment of com
pensation to the deceased dependent’s personal representative or
heirs, “ but to stop its payment altogether, thereby operating as a
discharge of the employer from further liability to other depend
ents surviving.” This theory was considered by the supreme court
as “ wholly inconsistent with the general structure, design, and lan
guage of our compensation law.”
We think it is clear that compensation must be paid * * * so
long as any named dependent survives, throughout the entire period
of 300 weeks. But manifestly the percentage payable will vary with
the class receiving the compensation, as specified by section 7556.
If, in this case, the grandmother should survive the mother, she
would be entitled to 20 per cent of $40, equal to $8 per week, and not
to $10 per week as declared by the trial court. In this respect the
judgment is erroneous, and it will be corrected accordingly.
The judgment was therefore corrected, allowing the mother $10
a week for 300 weeks, and if she should die within that period, then
$8 a week to the grandmother for the remainder of the period, and
as corrected it was affirmed.

W orkmen ’ s C ompensation— I njury A rising O ut of and in the
C ourse of E mployment— D isease— I nfluenza and P neumonia —
De La Pena v. Jackson Stone Go., Supreme Court of Errors
of Connecticut (July SO, 1925), ISO Atlantic Reporter, page 89.—
One De La Pena was employed by the Jackson Stone Co. as a
marble setter. During the month of April, 1924, he was working
in a room the floor of which was wet all of the time. The building
was heated part of the time, but the doors were always open. The
job was finished on the 17th of April, and the employee complained
of not feeling well. The next day he was at home suffering with a
cough and cold, but the employer sent an open truck for him, per
suading him to return in it and to work in the shop. From April
19 to 23 he worked in an unheated building, and his work required
the use of considerable water. During this period he complained
of feeling sick with headaches and pains all over his body, etc. He
was 'taken ill the last of the month and a doctor was called, who
found him suffering from influenza with bronchitis, and on May 6
lobar pneumonia developed, causing his death on May 7, whereupon

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

227

a proceeding was instituted under the compensation act. From an
order of the commissioner granting an award, confirmed by the
superior court, the employer again appealed.
The defendant contended that the facts “ do not show a personal
injury within our compensation act” (G. S. 1918, secs. 5339-5414).
As to this the supreme court of errors said in part, in regarding the
inclusion of diseases:
A compensable personal injury is an abnormal condition of a
living body which arises out of and in the course of the employment
and produces an incapacity to work for the requisite statutory
period. It need not be traced to a definite happening or event.
It may be caused by accident or disease, and includes diseases pecu
liar to an occupation, except those of a “ contagious, communicable,
or mental nature.” The happening or event includes the entire
transaction to which the injury is traced, not only the operative
causes, but their effect on the body of the injured person.
The commissioner found that the influenza arose out of and in
the course of the employment, which was supplemented by the medi
cal testimony that the exposure might be the cause of this disease,
from which also the pneumonia developed. The court accordingly
held that, no error appearing, the judgment should be affirmed.

W o r k m e n ’s C om p en sation — I n j u r y A r is in g O ut o f a n d i n t h e

Ex parte Little
Cahaba Coal Co., Ellis v. Little Cahaba Coal C oS uprem e Court
of Alabama (April 16, 1925), 104 Southern Reporter, page 422.—
Wiley B. Ellis was employed by the Little Cahaba Coal Co. in the
capacity of boss driver in its mines. A fire occurred in one of the
headings, and while engaged in the performance of his duties under
his employment, Ellis was killed by an explosion. Compensation
was awarded his widow in the sum of $15 a week for 300 weeks.
The employer petitioned for a writ of certiorari to review the pro
ceedings.
It appeared from the evidence that the general duty of Ellis was
to aid in extinguishing fires. The fire on September 13, 1923, oc
curred at the face of a heading, and the deceased undertook to go
through a “ cut through ” or “ slant ” leading from the main slope
to the return air course to close the valve in a water pipe located
in said air course. The foreman had told him specifically to stay
out of there, but he ignored the order, and upon opening the door
a gas explosion occurred, causing his immediate death.
It was contended by the defendant that the death of Ellis was
not in the course of his employment because of disobedience to the
C ou rse o f E m p lo y m e n t— D iso b ed ien ce o f O rders—

228

DECISIONS OF THE COURTS

orders of the foreman. The supreme court, however, sustained the
findings of the circuit court that Ellis was in the course &i: his em
ployment at the time of the accident, saying:
In the absence of some conditions withdrawing the case from
the general rule, closing the valve in the water pipe was within the
course of employment of one of the men engaged in extinguishing
the fire.
It is in evidence that, in case the siphon had run empty, it would
have been the duty of deceased, within working hours, to refill it.
This supports an inference that a part of his general duty was to
keep thi's equipment in operating condition. Such circumstance is
to be considered in dealing with the alleged orders of the foreman
as limiting the scope of employment, or the violation of such orders
as willful misconduct cutting off the claim of dependents under our
workmen’s compensation law.
The award was therefore affirmed.

W orkmen ’ s C ompensation— I njury A rising O ut of and in the
C ourse of E mployment— D isobedience of O rders— D eath from
B urning of S hop—McQuivey v. International R. Go., Supreme

Court of New York, Appellate Division (November 13, 1924), 206
Neio York Supplement, page 851.— On or about July 1, 1922, the
trainmen and mechanics of the defendant railway went out on
strike. Edward McQuivey was employed on September 16 as a
strike breaker, and was engaged in painting certain railway cars
which were housed in the paint shop. McQuivey was permitted, with
others, but not required to sleep in the shop. This permission was
withdrawn in October, 1922, and orders were issued stating that
employees must sleep elsewhere than on the premises of the em
ployer, unless “ they chose to take up their quarters in a building o f
the employer known as the bunk house.” McQuivey was warned
several times to move out, and each time he would say that he
would move out “ right away.” A t 5 o’clock in the morning of
December 13, 1922, a fire broke out in the paint shop and McQuivey
was burned to death. A n award of compensation was granted by
the State industrial board to the wife of the deceased employee, and
the employer appealed. The supreme court said in reversing the
award:

It is undisputed that claimant slept in the. paint shop in vio
lation of his employer’s orders. That being so, he could not have
been in the course of his employment when the accident occurred.
Moreover, sleeping in the paint shop, whether permitted or not, was
a mere privilege extended, and did not involve a service to the em
ployer.
The award was accordingly reversed and the claim dismissed.

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

229

• W orkm en’s Compensation— In ju r y Arising O u t o f and in th e
Course o f Employment— Disobedience o f R ules— Lumaghi Goal
Co, v. Industrial Commission, Supreme Court of Illinois (June 1 8 ,
1 9 2 5 ) , U f9 Northeastern Reporter, page 1 1 .— Alfred Sudbring was
employed by the Lumaghi Coal Co. in the capacity of mine examiner.
His duties were to examine the mine at night and to do such repair
work as would make the mine a safe place in which to work. There
were two other examiners employed at the same work. The examiners
used a mule and a coal car when their work required it, the use of
electric motors being forbidden by the rules of the company. These
motors, which were used only in the daytime, were operated by
skilled motormen employed for that particular purpose. On the
night of December 19, 1922, Sudbring, after finishing his work, was
to assist the other two examiners in putting up a regulator, used to
regulate the air irt the entries. This work was being done about a
mile from the bottom of the shaft, and Sudbring, upon completing
his work, went to the place where the motors were stored, about 600
feet from the bottom of the shaft, and took out a motor for the pur
pose of riding on it to the place where he was to help the other ex
aminers. In starting it up the motor ran over him and cut off his leg.
The arbitrator and commission granted him an award of compensa
tion, which was confirmed by the circuit court. The employer was
granted a writ of error on the ground that when Sudbring undertook
to operate the motor for his own purposes, which he was-forbidden
to operate,“ he stepped outside the duties for which he was employed,
and voluntarily incurred a danger which was not an incident to any
of the duties of the employment, and the accident was therefore not
an incident of his employment.” The plaintiff contended that at
most he violated a rule of the company, which would not take him out
of his employment, but constituted only contributory negligence.

The supreme court admitted that contributory negligence is no de
fense to a claim under the workmen’s compensation law. On review
ing the record the court noted that Sudbring did more than simply
violate a rule of the company; that is, he left the place where his
duties required him to go and went to the motor shed, where he was
not supposed to go, and in addition undertook to operate a dangerous
machine, which both the rules of the employer and the instructions
given him forbade him to use or to attempt to operate. In doing so
“ he voluntarily went outside of the reasonable sphere of his employ
ment and put himself beyond the protection of the master’s implied
undertaking.”
It was recognized as a general rule that to entitle the employee to
compensation the injury must occur in the course of and arise out
of the employment and that where an employee incurs a danger of his
93383°— 26------ 16

230

DECISIONS OP THE COURTS

own choosing, u outside of any reasonable exercise of his employment,
the act is not an incident to.the employment. The employer is not
liable for every accidental injury which may happen to an employee
during his employment. The employer is not liable where the em
ployee exposes himself to a danger which is not one arising from the
employee’s employment.”
The claimant relied on the decision in Sesser Coal Co. v. Industrial
Commission (296 111. 11, 129 N. E. 536). In that case there was a
rule forbidding anyone but motormen and truck drivers to ride on
the motors. The court said, however, that the evidence showed it
was a mere paper rule, never enforced. In the instant case Sudbring
had been told he must not use the motors and had been threatened
with discharge if he disobeyed instructions. It was quite clear from
the evidence that no duty of his employment required the use of
motors, and that it was for his own convenience and “ outside of any
duty expected or required of him.” Being of the opinion that in do
ing so he placed himself beyond his employer’s implied undertaking,
the supreme court held that the accident did not arise out of the
employment.
The judgment was accordingly reversed and the award set aside.

W orkm en’s Compensation— In ju r y Arising O u t of and in th e
Course of Employment— Employer— Sale o f Business — P a l m e r v.

Main, Court of Appeals of Kentucky (May 26, 1925), 272 South
western Reporter, page 786.— W . T. Main was employed as a janitor
by Earl Palmer, the owner of the building in which Main was em
ployed. Both had accepted the provisions of the workmen’s com
pensation act (K y. Stat., secs. 4880-4987). Palmer sold the building
to E. A . and Eustace Hail, who continued to conduct the property
as an office building. W. S. Adams, the manager of the building,
was retained to act in the same capacity for the purchasers. A few
days after the sale, Adams being absent, the acting manager sent
Main out into the city to ascertain why a certain employee had not
reported for duty. While on this errand Main was struck by an
automobile, receiving injuries from which he died four days later.

The widow filed claim for compensation against both Palmer
and the Hails, and was granted an award against Palmer but
refused against the Hails. On appeal the circuit court affirmed
the action of the board. Palmer appealed from the judgment
against him, and the widow prosecuted a separate appeal from the
judgment in so far as it disallowed compensation against the Hails.
It was contended as to the award against Palmer, that “ the rela
tion of master and servant is essential to liability under the work
men’s compensation act, and that at the time of the accident Main

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

231

was not in Palmer’s employ.” The court of appeals was of the
opinion that, though the relation of master and servant in some
instance may end “ by the sale of the business,” if there is no actual
change in the management o f the business, and servants are in no
way informed of the transfer and change of proprietors, “ the
relator [relation] is presumed to continue for a reasonable time,
and the master remains liable to them to the same extent as though
no sale or transfer had taken place, and the burden of showing
knowledge on the part of the servant is upon the master.”
The board found that Main continued to work without notice of
the sale, and as Palmer had not withdrawn from the compensation
act, the court held that “ it follows that he continues liable under
the provisions of that act.”
To the contention that the accident did not arise out o f the employ
ment it was said that “ it is at once apparent that if all accidents
due to risks to which the general public are subjected are to be ex
cluded, many employees will be deprived of the benefits of the act.”
In conclusion the court of appeals held:
Siiice the service which Main was required to perform necessarily
exposed him to the danger o f being struck by an automobile while
on the street, it follows that the injury was the direct and natural
result of a risk reasonably incident to the employment, and that
neither the workmen’s compensation board nor the circuit court
erred in holding that the accident arose out o f the employment.
Oil the appeal of Elizabeth Main against the Hails it is sufficient
tb say that our Workmen’s compensation act is elective, and at the
time of Main’s injuries neither he nor the Hails had elected to op
erate under its» provisions. It follows that compensation against
the Hails was properly denied.
The judgment in each case was therefore affirmed.
W orkmen ’ s C ompensation— I njury A rising O ut of and in the
C ourse of E mployment— G oing F rom W ork!— Pearce v. Michi

gan Home and Training School, Supreme Court of Michigan (July
16, 1925), 204 Northwestern Reporter, page 699.—Blanche Burke,
employed by the Michigan Home and Training School, a State
institution, ceased work Saturday, July 26, 1924, at noon, the
laundry in which she was employed closing at that time. In the
afternoon o f the same day her dead body was discovered by the
side o f the highway, and a few days afterward one of the inmates
o f the institution confessed to the murder. Application was made
for compensation and an award was granted for her accidental
death. A writ o f certiorari was brought by defendant to review the
proceedings before the department of labor and industry. The
suprenie court, in reviewing, followed and quoted with approval
the rule laid down by the Supreme Court of Massachusetts in

232

DECISIONS OF THE COURTS

McNicol’s case (215 Mass. 497, 102 N. E. 697), in which it was
said that:
It is sufficient to say that an injury is received in “ the course of ”
the employment when it comes while the workman is doing the
duty which he is employed to perform. It “ arises out of ” the em
ployment when there is apparent to the rational mind, upon con
sideration of all the circumstances, a causal connection between the
conditions under which the work is required to be performed and
the resulting injury.
Mr. Justice Fellows, in speaking for the supreme court, observed
that:
The death of Mrs. Burke occurred under deplorable circum
stances, but did not occur in the course of her Employment, and
unless it so occurred her employer is not liable under the workmen’s
compensation act (Comp. Laws 1915, secs. 5423-5495).
The award was accordingly vacated.
W orkmen ’ s C ompensation— I njury A rising O ut of and in the
C ourse of E mployment — H orseplay— T im e for R eview— Western
Union Telegraph Co. v. Owens, Appellate Court of Indiana (Feb
ruary 5, 1925), 146 Northeastern Reporter, page ^ 7 . — Ellis Owens,
aged 17 years, was in the employ of the defendant telegraph company
as a messenger. A t the rear of the building in which the office of the
company was located there was a room used for storage and for the use
of the messengers. A door in the rear of the room opened into a small
passageway, which in turn led into a larger passageway alongside
of a new building known as the La Plante Building. A n adjustable,
or sliding, ladder was attached to the lower part of the fire escape of
the La Plante Building, the lower part of the ladder being about
even with the lower part of the permanent structure and about 10
feet above the paved passageway. Three of the messenger boys, in
cluding the plaintiff, were playing in this larger passageway between
the two buildings, and while so playing one of them suggested,
banteringly, that they try to climb the fire escape. One of the boys
climbed into a window some 3 or 4 feet from the ground and managed
to get onto the fire escape. The plaintiff then tried but was unable
to reach the structure from the window, so gave u a leap ” and tried
to reach it, but instead of catching the permanent structure he caught
the lower part of the ladder, which became detached and he fell to
the ground and was injured. A claim was made for compensation,
and from an award in his favor the employer appealed on the ground
that the accident did not arise out of and in the course of the em
ployment.

The accident occurred on December 14,1923. On December 17 the
employer reported the accident to the industrial board, but dis

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

233

claimed liability therefor. Plaintiff filed application for an award
on April 3, 1924. This was allowed by a single member, and on
May 19 the employer filed application for a review; this was granted,
and as a result the compensation was again awarded, this appeal
following. The plaintiff claimed that the court had no jurisdiction
of the appeal, as “ there was no application for a review ” within
seven days, as provided for in the law.
It appeared from the evidence that the case was handled by a firm
of attorneys of Washington, Ind., on behalf of the employer, and
that the industrial board notified the employer at its office in New
York City of the award but did not notify the attorneys, and for
that reason no appeal or petition for review had been made within
the seven days allowed by statute. The appellate court considered
that under these circumstances the board had authority, and “ was
fully justified in sustaining said application for review.”
The only question left for the court to consider was whether or
not the accident arose out of the plaintiff’s employment. The plain
tiff filed no brief on the merits of the case, and though the court
could have reversed the case on that ground it preferred to go into
the material facts of the case.
Section 8 of the compensation act (as amended by Acts 1919, ch.
57), provides:
No compensation shall be allowed for an injury or death due to
the employee’s * * * willful failure or refusal to obey a reason
able written or printed rule of the employer. * * *
The appellate court considered that the legislature had in mind
in enacting the above provision that employers would and could
protect themselves against hazards of the employment by the adop
tion of rules and regulations. The court said:
The employer knows that men and boys, when associated together,
will, under natural impulse, engage in frolic, in “ horseplay,” and
that injury may result therefrom. It is within the power of the
employer to prevent these things, or at least save himself harmless
from the consequences thereof, by adopting rules according to the
statute, and then enforcing such rule or rules.
In the main case the fire escape was on another building, and the
question arose, “ Was the employer in this case reasonably bound to
anticipate that the messenger boys, which it employed, would leave
the premises of the employer, become trespassers, and attempt to
get upon and climb said fire escape ? ” The court held that:
The employer was not bound reasonably to anticipate such conduct
on the part of its employees, that such play was in no way connected
with their work, and that, under the undisputed facts in this case, the
said accident did not arise out of appellee’s employment.

234

DECISIONS OF THE COURTS

The award was therefore reversed and the cause remanded to the
industrial board for further proceedings.
In line with the foregoing was a decision by the Supreme Court of Michigan.
(Derhammer v. Detroit News Co. (1925), 202 N. W. 958.) Here a driver of
an electric truck was the object of a presumably playful attack by fellow work
men squirting and throwing water on him. He was not the agressor, but
retaliated, and pursued his persecutors, finally being pushed over in a surprise
attack, and cutting his fingers on a bottle held in his hand. This bottle was
of no use in his work, and was apparently a weapon of defense, or perhaps
attack. The foreman of the men was aware of the fooling, but did not cheek
it, and the State department of labor and industry made an award, from which
the employer appealed. The supreme court reversed the claim on the ground
that there was no connection between the injury and the injured man’s usual
work, that what was done to him could not in itself have caused the injury,
and that he participated in the conduct, voluntarily leaving his truck for the
purpose. Though the foreman might properly have put a stop to the acts,
“ there is a limit to the restraint which can well be placed upon the activities
in the way of sport which employees may desire to indulge in when not at
work.” As stated, the award was denied.
The United States Circuit Court of Appeals, construing the Kansas statute
in accordance with the State construction, found a workman entitled to the
benefits allowed where the work was not interrupted, but acts of interference
were indulged in by a fellow worker, resulting in the loss of the injured man's
balance and the thrust of his fingers into a machine which cut them off. One
judge dissenting, the court took the view that:
If an employer places boys as coworkers with others in hazardous employ
ment he is charged under these workmen’s compensation acts with what may
happen from the curiosity, zeal, vigor, and boyishness of said boys; that such
is a risk reasonably incident to the employment, and if injury result to an
employee therefrom during the progress of the work in which he is employed,
through the curiosity or pranks such as boys of immature age are wont to in
dulge in, and which the employer must be held to know of when he employs
them, the injury is one “ arising out of the employment.” (Kansas City Box
Co. v. Connell (Mar. 25, 1925), 5 Fed. (2d) 398.)

W orkm en’s Compensation— In ju r y Arising O u t o f and in th e
Course o f Employment— Peace O ffice r— D u a l Employment—
Num erical Exemption— Reliance Coal & Coke Co. v. Smith, Court

of Appeals of Kentucky (December 19, 1924), 266 Southwestern
Reporter, page 1094•— W ill Smith was employed as a coal loader in
the mine of the defendant company, but his work in that capacity for
gome time prior to the accident causing his death was negligible,
his main work being as preserver of the peace and as watchman
in the coal camp; for this he was paid a substantial salary by the
company. Smith was appointed a deputy sheriff by the county sher
iff, but not as a deputy for the coal company. On December 24,
1923, he was shot and killed when he entered a company house and
told the occupants that they must keep quiet. Malvary Smith
brought a proceeding under the compensation act for compensation

WORKMEN *S COMPENSATION

235

for the death of her husband, claiming that he was killed while
working for the coal company and by an accident arising out of
and in the course of his employment. The employer appealed from
the decision of the workmen’s compensation board awarding com
pensation.
The findings by the board were considered final as to disputed
questions of fact, and only reviewable to determine whether there
was an entire absence of evidence to support them. The appellant
company insisted that Smith was not, at the time of his death, an
employee of the company, but was a deputy sheriff of the county.
The court of appeals, however, considered the evidence sufficient to
support the finding of the board that the deceased was an employee,
even though deputized by the sheriff.
His work for appellant was a sort of a cross between that of a
peace officer arid that of a soeial-serviee agent. That Smith might
when occasion required it, have a power of arrest, which as a pivvat©
citizen he might not otherwise have, he was appointed, no doubt at
appellant’s instance, a deputy sheriff; but his public character did
riot remove him from the employment of appellant.
At the time of his death he, as stated, went to one of the houses
of appellant’s to quiet an incipient breach of the peace.
The finding of the board to the effect that he did so as appellant’s
employee hired for the purpose of restoring peace to troubled souls
arid to straighten out a quarrel before it reached the dignity of a
public offense, is justified by the evidence, and we can not, under the
law, qu-estion such finding.
The appellant further contended that if it be held that Smith
was an employee, inasmuch as the company did riot have three em
ployees engaged iri identically the same kind of work the compensa
tion act would not apply. The business of the company was the
production of coal. The court said:
I f it had three of more employees all engaged in the business of
“ producing coal,” in the broad sense of that term, the act applied.
The maintenance of peace and good will about the camp was as
essential to the production of the coal as was the work of the black
smith in sharpening tools.
The evidence being considered by the court of appeals as suffi
cient to show that the accident arose in the course of the employment,
the court affirmed the award of the compensation board.
W orkmen ’ s C ompensation— I njury A rising O ut of a n d i n the
C ourse of E mployment — T aking B ath A fter W ork— D eath
from B urns — Associated Employers1 Reciprocal v. Simmons, Court

of Civil Appeals of Texas (May 14, 1925), 2*73 Southwestern Re
porter, page 686.—Oliver L. Simmons, employed by the Standard
Tank & Steel Works, was engaged in setting tanks for the com*

236

DECISIONS OF THE COURTS

pany and any other work that was necessary in the setting of the
tanks. He was a single man and lived in the “ bunk house ” of his
employer, used for sleeping purposes by some of the employees.
This bunk house was furnished by the employer, was located in the
employer’s yard, and Simmons paid nothing for its use. The com
pany bathroom adjoining the bunk house was used by employees
in cleaning up after the day’s work. The employees were subject
to call at any time, day or night, although they were not required
to be at the bunk house or any particular place to be available for
special call, and further, they were not subject to go unless they
elected to do so of their own free will.
On May 20, 1922, Simmons, upon returning from his work about
5 o’clock, went to the bathroom for the purpose of taking a bath
and cleaning up, and at his request one of the men handed him
a pan of gasoline for use in taking off the grease and dirt. Shortly
afterward witnesses heard a report of the gasoline igniting, and
the deceased was observed with his body in flames. He died shortly
thereafter as a result of the burns. An action for compensation
was instituted by Simmons’ parents for the death of their son, and
from a judgment in the lump sum of $4,577.42 the insurance car
rier appealed.
The evidence clearly showed that the plaintiffs were dependent
in part at least upon the deceased son, and that he contributed to
their support. It was the contention of the defendants that the
deceased’s act in removing dirt and grease from his person after
finishing his day’s work was not an act in the employer’s service,
while the plaintiffs insisted that “ as a natural result of the kind
of work deceased was required to do it was necessary that he use
some method of cleansing himself * * * in case he should be
called on a rush job,” and for that reason he was not only in the
“ course of his employment ” while removing the dirt and grease,
but “ doing so was a part of his duty to his employer.”
The court of civil appeals observed that if the act of taking a bath
was an act in performance of the employee’s task of setting tanks,
“ we think the injury to deceased in the ignition of the gasoline had
to do with and originated in the work of the employer, while engaged
in or about the furtherance of the affairs of the employer in setting
the tanks.”
Speaking through Mr. Justice Walthall, the court stated:
We are of the opinion that after the deceased employee had fin
ished his work of setting the tanks for the day, and had gone from
the locality of his work to the bunk house, the act of removing the
dirt and grease from his person would not under the facts disclosed
by the record be an act in the service of the employer, and did not
have to do with and originate in the work of the employer.

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

237

After considering several cases, the court concluded:
In the case at bar the unit of service was a day; the day’s work
had been performed; the employee had gone to his place for the
night; he had not been called out for a continuous or extra service;
so far as the record shows the employee would owe the employer no
further duty, nor did the employer owe the employee further duty
until the relation of employee and employer had been resumed in the
work of another day.
The judgment was accordingly reversed and rendered for the
defendant.
Falling within the same rule #was a decision by the New York Court of
Appeals (Davidson v. Pansy Waist Co. (1925), 148 N. E. 714), in which a
traveling salesman had received an award for injuries inflicted while preparing
to take a morning bath. He slipped and caught at a lever which released hot
water from a shower, burning him severely. The appellate division of the
supreme court affirmed the award, but the court of appeals found nothing in
such preparation for the day that was connected with his employment. “ It
does not appear that he might not have prepared himself in exactly the same
way if engaged in any other employment or vocation.” The claim was there
fore dismissed.

W orkmen ’s C ompensation— I njury A rising O ut of and in the
C ourse of E mployment — T eacher A ttending I nstitute— Stockley

v. School Dist. No. 1 of Portage Tp., Supreme Court of Michigan
{July 16, 1925), 20^ Northwestern Reporter, page 715.— Mrs. Eva
Harmon, employed as a teacher in the high school at Houghton,
Mich., received instructions from the superintendent of school dis
trict that the schools of the township would be closed Monday,
November 5, 1923, to allow teachers to attend the county institute.
A ll teachers were expected to attend. The superintendent John E.
Erickson, testified that he instructed all the teachers under him to
attend the institute, and attended it himself. They were all re
quired to go and were paid for so doing as though teaching. Re
fusal to go would reflect on the teacher’s personal standing; she
would receive no pay for that day, and personally Erickson “ would
not feel right recommending her for a position the following year.”
It appeared that the superintendent of the Hancock School, across
the lake, gave like instructions to the teachers under him.

Attendance involved a journey of iy2 miles by private convey
ance, the road crossing an electric railway. At this point Mrs.
Harmon and another teacher were killed, and for the accidental
death of the former a claim was made for compensation and an
award allowed. In opposition it was contended that the accident
did not arise out of and in the course of the deceased teacher’s em
ployment, and that in any case she was not injured while in at
tendance at the institute, but on the highway journeying thereto.

238

DECISIONS OF THE COURTS

The court found that the law required such attendance and that the
accident occurred during the usual working hours as a teacher, on
a day and at a time when “ but for the schools being closed, and
the teachers required to attend the institute, she would have been on
duty at the high-school building of her employer at Houghton.”
The accident was said to have occurred during her working hours,
but while she was away from there in obedience to her employer’s
instructions, in performance of a special service incidental to the
nature of her contract. “ She was not going to or returning from
her customary place of employment before or after working hours,
but by authority of her employer was .going away from her home
and place of regular employment, * * * not free to go where
she pleased at her own convenience or pleasure, but to a specified
place on a special mission in the line of her employment.”
Under the circumstances on record the supreme court stated that
they were not prepared to hold the finding of the commission desti
tute of evidential support, and therefore affirmed the award.

orkmen ’ s

C ompensation— I njury by T hird P arty— C onsti
Statute — D ue P rocess of L aw — S tatus of I ndus
C ommission— Nega v. Chicago Rys. Co., Supreme Court of

tutionality of
trial

Illinois {June 18, 1925), 148 Northeastern Reporter, page 25-0.—
Frank Nega, employed by the Boyda Dairy Co., was deriving a
horse-drawn wagon on a stormy night in June, 1920, when one of
the Chicaga Railways Co. street cars ran into and injured him.
The employer paid him the sum of $50 for medical services and the
further sum of $1,225 as compensation. Nega brought suit later in
his own name to recover damages from the street railway company
for the injuries received. From a verdict and judgment in the
sum of $10,000 the defendants appealed.
It was conceded that the employer, the employee, and the de
fendant company were all under the workmen’s compensation act,
if the act was valid. It was the contention of the defense that
sections 6 and 29 of the compensation act (Smith-Hurd Rev. Stat.
1923, ch. 48:, sees. 143, 166) precluded the maintenance of any action
against a third party causing the injury where, as here, all parties
were under the act. Section 6 makes the remedy under the com
pensation act exclusive as against an employer ; section 29 subro
gates an employer paying compensation to any right of action
against a third party causing the injury, and, if such third party
was under the compensation law, recovery against him is limited
to the amount of compensation payable under the act.
An amendment of 1919 of section 19 of the act provided that the
circuit court should have the power to review by writ of certiorari

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

239

all questions of law presented by the records of the industrial com
mission, with certain exceptions. It is conceded by the plaintiff
that if the act as thus amended was constitutional it constituted a
complete bar to this action. He contended, however, that the entire
act as it stood after the amendment of 1919 was unconstitutional
as denying due process of law. The trial court took that view, and
for that reason held that the act formed no bar to the action at law
for the personal injuries received.
The supreme court discussed the matter at length, sustaining the
constitutionality of the law and reversing the judgment for damages
allowed1to the injured? workman. The contention was ‘chiefly that,
by limiting review by the courts to questions of law, the guaranty
of due process was violated. It was pointed out by the court that
uthe Supreme Court of the United States has upheld, as not denying
due process of few, numerous compensation' acts, in none of which
was there a; provision for judicial review of conflicting evidence/*
(Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255, and other cases, f
In the case cited the Iowa compensation law was attacked in part
for the same reason as in the instant ease, i. e., that it did not allow
an appeal on questions of fact. The Iowa courts had held this pro
vision valid, and the Supreme Court referred to these decisions, and,
as stated by Judge Stone, who delivered the opinion of the court—
held that the act,: in prescribing the measure of compensation and the
circumstances under which it is to be made, and in establishing ad
ministrative machinery for applying the statutory measure to the
facts of each particular case, and in granting appeals as to ques
tions of Mw, thereby provided for a hearing before an administrative
tribunal as to the facts, and for judicial review upon all fundamental
and jurisdictional questions.
This was said to dispose “ of the contention that the administra
tive body is clothed with an arbitrary and unbridled discretion, in-*
consistent with a proper conception of due process of law.”
Judge Stone, considering the status of the industrial commission*
further said :
We are cited to no case, and we have been able to find none, holding
that a statute which permits judicial review of questions of law only,
arising on the decisions of an administrative body, where its act is in
its nature judicial rather than legislative, violates the due process
clause of the Federal Constitution. The industrial commission is a
nonjudicial body. Its proceedings and findings, though administra
tive, partake somewhat of the nature of judicial proceedings. (Miss
issippi River Power Co. v. Industrial Com., 289 111. 353, 124 N. E.
552.) It has authority to summon witnesses, administer oaths, take
testimony, hold hearings, examine and weigh evidence, make rulings
of law and findings of fact, and render decisions enforceable by
proper proceedings in court. Though not held strictly to the rules
of evidence, its consideration of incompetent evidence is subject to

240

DECISIONS OF THE COURTS

review. Such functions are clearly not legislative, as that term is
defined in the cases cited, but are judicial in character, and the find
ings of fact of the commission are in no way lacking in analogy to
the verdict of a jury. The purpose of the workmen’s compensation
act is to avoid litigation, as far as possible. It establishes an admin
istrative body, to which is given, subject to the limitations of the
act prescribing the compensation and the circumstances under which
it is to be awarded, the duty of applying the statute to the facts of
each case.
That such procedure was subject to review by the courts, in addi
tion to “ the guidance and direction of the statute ” in its delibera
tions, made it impossible to say that the industrial commission “ pos
sesses unbridled or arbitrary power in deciding controverted issues of
fact.” This being the point of attack, and the plaintiff having failed
therein, the constitutionality of the act as a whole was undisturbed
and the restrictive provisions of recovery against a third party oper
ating under the act were held to constitute a complete bar to the suit
under review.
The judgment was therefore reversed.

orkmen ’ s

tion — B asis of

C ompensation— I njury by T hird P arty— E lec
A wards— Athens Railway & Electric Go. v. Kidney,

Supreme Court of Georgia (February 28, 1925), 127 Southeastern
Reporter, page 290.—One Kinney, employed by the James White
Cotton Mill, was killed while in the performance of his duties with
out any fault or negligence or want of care or diligence on his part,
but by reason of the negligence of the defendant electric company.
Compensation was granted in the sum o f $12.50 a week for 300
weeks, a total of $3,750. Mrs. Kosa M. Kinney also brought an action
against the defendant company for damages for the death of her
husband, claiming $33,750, of which sum $3,750 was for the use of
the Maryland Casualty Co., insurance carrier of the employer. The
defendant demurred to the petition, and upon the demurrer being
overruled, excepted.
Section 12 of the Georgia workmen’s compensation act of 1920
provides:
The rights and remedies herein granted to an employee where he
and his employer have accepted the provisions of this act respectively
to pay and accept compensation on account of personal injury or
death by accident shall exclude all other rights and remedies of such
employee, his personal representative, parents, dependents, or next
of kin, at common law or otherwise on account of such injury, loss
of service, or death.
The defendant contended that under the provisions of the above
section, the plaintiff having made a complete settlement with the

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

241

employer as to compensation, the settlement became conclusive as to
the plaintiff. To this contention the supreme court said:
With regard to the purposes of the act, we have reached the con
clusion that that provision, while it excludes “ all other rights and
remedies of such employee, His personal' representative,” etc., and
while the expression “ all other rights ” is general and unqualified
by the immediate context, it is applicable only to such rights or
remedies as the plaintiff would have had against the employer of her
husband, independently of the law embraced in the workmen’s com
pensation act and the provisions of that law. But we can find no
reason in that law for holding that as to a third party, who was a
tort-feasor and whose negligence resulted in the death ox the husband
of the plaintiff, she should be deprived of her right, under the law
allowing her, under the circumstances set forth in this case, to sue
for and recover the full value of her husband’s life.
The court further pointed out that had the widow recovered under
the compensation act the full value of the life of her husband, she
then would be barred from recovery against any person. It was
noted that the compensation act “ does not make provision for the
recovery of the full value of a life destroyed by negligence or other
wise.” A limit is put upon the amount that may be recovered, “ that
may be far less than the actual value of the life destroyed.” But
the court considered no reason existing for holding that:
I f another corporation or person other than the employer is
guilty of negligence which results in injury or death, such corpora
tion or person should have the benefit of the act which establishes
the rate of compensation for injury to an employee as against an
employer, where the employer and employee have accepted the pro
visions of the workmen’s compensation act.
The decision of the superior court in overruling the demurrer
was therefore affirmed.
The statute of Oregon contemplates the payment of compensation from a
State insurance fund, which is bound primarily to contribute the award made
by the industrial commission of the State. Where a third party is responsible
for the injury, election must be made in advance of any proceeding for settle
ment; and if remedy is claimed under the compensation law, the cause of
action against the third party inures to the State for the benefit of the acci
dent fund. Where a workman had received an injury for which compensation
payments had been accepted he was held to be barred from any action against
a third party, since the two remedies were inconsistent, and “ any decisive
act by him, done with the knowledge of his rights and of the facts, determines
his election of this remedy.” (Holmes v. Henry Jenning & Sons (1925),
7 Fed. (2d) 231.)
A second factor was involved in a case before the Supreme Court of Colo
rado. (C. W. Kettering Mercantile Co. v. Fox (1925), 234 Pac. 464.) Here
an employee of the company named was injured by a railroad train at a cross
ing. He decided to make claim against his employer, filing the papers 10
days after the six months’ period fixed by law had expired. It was in evidence
that before this period had expired the employer and its insurer had given

242

DECISIONS OF THE COURTS

notice of their purpose to contest any liability under the act, and the com
mission had held a hearing at which the claimant appeared. The case was
ordered continued “ until such time as the claimant notifies referee as to
whether or not he intends to bring suit against ” the railroad company. The
employer made no objection to this order, and within 15 days the election
w‘a s filed, claiming compensation. The commission and the court held the
election valid, the employer being estopped from pleading the limitation by
reason of its conduct leading the claimant to believe that he had no other
duty to perform than to make his election* in writing. This he had done,
“ and he in no way caused plaintiffs in error to change their position.” The
judgment was accordingly affirmed.

Workmens ‘ Compensation- -Injury by Third Party—Ejec
tion—Recovery—G ift—Pittsburgh, C., C. & St. L. R. Go. v. Keithr

Appellaie Court of Indiana (March 11,1925), llfi Northeastern Re
porter, page 872.—Thomas Keith, employed by the Allen A. Wil
kinson Lumber Co., received a personal injury on August 11, 1920,
arising out. of and in the course of his employment, and alleged to
have been caused through the negligence of the defendant railroad
company. On September 22,1920, the lumber company, through its
insurance carrier, paid the medical expenses of the injury, amounting
to $12. The plaintiff on September 13, 1920, signed a compensation
agreement with his employer and received a check for $20.76 in
settlement thereof, but with the understanding and belief that it
Would not interfere with his suit against the railroad company.
A Mr. Carter, who gave plaintiff the check, said it would be con
sidered as a gift on plaintiff’s wages, but neither Keith nor Carter
knew whether such payment would or would not interfere with the
suit against the railroad. On October 25 plaintiff gave Carter a
check in the same amount, $20.76, and Carter promised to send it to
the insurance carrier. Plaintiff also tried to pay the doctor, who
had already been paid by the insurance carrier, but the doctor did
not accept the money. From a judgment in the sum of $100 in
favor of the plaintiff the defendant appealed. The appellate court
observed that:

Ordinarily, when an employer pays an injured employee the
amount due under a compensation agreement which has been ap
proved by the industrial board the employee can not prosecute an
action against a third person for damages, but the employer may
maintain an action against the wrongdoer to recover the amount he
was, required to pay the injured employee.
The court had no doubt that “ an employer may make a gift to
an injured employee of the amount which he might be entitled
to as compensation under the act, and that the employee may accept
such gift without in any wise affecting his right to maintain an
action against some other person whose negligence caused the in

WORKMEN’ S COMPENSATION

24S

jury.” I t was admitted that the plaintiff and the employer had a
right to enter into the agreement and to have it approved by the
board, “ without affecting appellee’s right to sue for and collect
damages.”

Under the compensation act of England the workman could take
proceedings both against the third person and against the employer,
the one for damages and the other for compensation, but he must
elect before there is a recovery. Under the Indiana law, as pointed
out by the court, “ the workman may prosecute his action for dam
ages to judgment, and he may also have his claim for compensation
allowed, but he is prohibited from collecting both from the wrong
doer and from the employer. He must elect from which one he
will collect. I f he collects compensation, he can not collect damages.”
The evidence was held to sustain the finding of the lower court
that the amount paid under the compensation agreement was a gift
of compensation not affecting the third party’s liability to the
employee.
It was pointed out by the appellate court that it was the purpose
of the statute only to protect the negligent third party from double
liability. Under the facts in this case, the payment to plaintiff of
$20.76 by the lumber company being a gift, “ there is no right of
action by the lumber company or its insurance carrier for in
demnity.”

The verdict being considered sustained by the evidence, the ap
pellate court affirmed the judgment.

W o r k m e n ’s C ompensation— I n j u r y b y T hird P arty— S ubroga
t io n — E xtraterritorial. E ffect o f P rovision o f I nsurance C on tract-—ReutcniJc

v. Gibson Packing Go., Supreme Court of Wash
ington (.December 26, 1924), 231 Pacific Reporter, page 773.— Fred
H. Hartje, employed by the Atlantic Produce Co. of California as a
potato buyer, was engaged in such work in Yakima County, State
of Washington, when he received injuries in an automobile collision
in Yakima County from which he died. The automobile causing
the injuries was owned by the Gibson Packing Co. and was driven
by its agent. W. P. Eeutenik, as administrator of the estate o f
Hartje, brought an action against the defendant company for the
benefit of the widow of Hartje. The company set up as a defense
contributory negligence on the part of the deceased, and also that as
the widow had recovered compensation in California the complaint
should be dismissed or the Hartford Accident & Indemnity Co. (in
surance company paying the award in California) be made a party
to the action. The award granted in California against the employer
of the deceased and its insurance carrier was $5,000 in deferred pay-

244

DECISIONS OF THE COURTS

ments of $20.83 per week. The latter defense was moved against"
by the plaintiff, the motion was denied, and the plaintiff replied that
neither the employer nor the insurance carrier had brought any
action against the Yakima Meat Co. (apparently same as Gibson
Packing Co.), but that the plaintiff had complied with all laws and
could maintain the suit.
By permission of the court the Hartford Accident & Indemnity
Co. later filed a complaint in intervention, admitting all the allega
tions except that Fred H. Hartje was a resident of California, and
averred that it was entitled to have “ a first and prior lien upon any
recovery ” by the plaintiff in the sum of $5,000. The plaintiff con
sented to the intervention. There was a verdict for $9,000, and the
defendant moved for a judgment notwithstanding the verdict, on the
ground that “ the files and records in the case, and the evidence intro
duced thereon, affirmatively show that the action was maintained by
the respondent as administrator of the estate of Hartje, deceased,
for the joint benefit of Mrs. Hartje, the widow of deceased, and the
Hartford Accident & Indemnity Co., a corporation, as assignee of
Mrs. Hartje, contrary to the laws and statutes in such cases.” The
motion was overruled by the trial court and judgment entered on
the verdict. A lien was awarded against the interest of Mrs. Hartje,
to the extent “ which the Hartford Accident & Indemnity Co. shall
have paid Mrs. Hartje ” under the compensation award in Cali
fornia.
The only error claimed by the defendant was in the overruling of
its motion for judgment non obstante veredicto, and the only ques
tion considered by the supreme court was “ whether, under the laws
of the State, respondent as administrator has the right to institute
and press to judgment an action, according to appellant, 4for the
joint benefit of the beneficiary and the Accident Insurance Co.,
which claims subrogation to the rights of the beneficiary as to part
of the judgment recovered.’ ”
The defendant claimed that the cause of action was vested in the
widow, but the supreme court held this error, saying that “ the
cause of action is not vested in the widow, but in the personal repre
sentative of the deceased, although it is for the benefit of the widow.”
Section 26 of the compensation law of California, which becomes
a part of the insurance contract, provides that “ the court shall, on
application, allow as a first lien against any judgment recovered by
the employee the amount of the employer’s expenditures for com
pensation.” The supreme court, speaking through Mr. Justice Hol
comb, said:
The trial court merely enforced that provision of the contract.
It is unquestioned law that, where one carries an accident policy and
receives an injury from a third person, the personal accident insur-

WOBKMESr’S COMPENSATION

245

ance he carries has nothing to do with his recovery from the wrong
doer. He or his representatives or beneficiaries may recover both
upon the policy of insurance and compensation from the wrongdoer.
What Mrs. Hartje was awarded and accepted under the accident
policy was the insurance provided in that policy and regulated by
the laws of California, and in no wise constituted any bar to her
recovery of compensation for the injuries caused by the wrongdoer.
The contention of the defendant that the employer or the insurance
company “ might seek to recover for the sums paid by it from the
wrongdoer, regardless of whether the statutory survivors exist,55 was
considered devoid of merit.
None but the personal representative of a decedent suing on behalf
of the spouse or next of kin surviving can have any right of action,
and but one recovery can be had.
The defendant maintained that since the cause arose in Washing
ton and the domicile of the wrongdoer is in Washington, and the
statute requires actions in such cases to be brought by the adminis
trator, “ the lex fori governs the nature, extent, and character of
the remedies,55and further that the law defining the classes benefited
“ also limits the persons to whom it can be required to respond in
damages.55 The supreme court' answered:
Of course the lex fori determines who shall be proper parties to
the suit, the mode of procedure, and the execution of the judgment.
These matters are regulated wholly and exclusively by the law of
the place where the action is instituted. The law of the forum dQes
not, however, prevent the enforcement of a contract between parties
interested in the cause of action, made pursuant to the law of an
other State, unless prohibited under the law of the forum, and the
contract in this case provided that the insurance company should
have a lien for all sums of money expended by it on the policy on
any judgment that might be recovered against the wrongdoer. That
provision is not prohibited by any law of this State, is enforceable,
and is as much a part of the law of this State, since it is a part of
the contract, as any other phase of the law.
The supreme court held that the “ construction of the workmen’s
compensation law by the courts of last resort of California also is
a part of the law of the contract, and therefore a part of the con
tract.55 In conclusion the supreme court said:
Furthermore, it seems to us appellant is not concerned as to whom
the proceeds of the judgment go, and a satisfaction of the judgment
in this case will certainly bar any further action for damages for the
wrongful death by anybody against it.
The judgment was accordingly affirmed for the plaintiff, subject
to the lien right of the insurance company.
93383°— 26------ 17

246
W

DECISIONS OP THE COURTS
orkmen ’ s

C ompensation— I njury by T hird P arty — S ubroga
of D amages—Travelers Insurance Co. v. Brass

tion — M easure

Goods Mfg. Co., Court of Appeals of New York (January 21,1925),
llf,6 Northeastern Reporter, page 377.—William J. Fitzgerald was
killed through an accident arising out of and in the course of his
employment with the National Packing Box Co. The Brass Goods
Manufacturing Co., defendant, caused the accident by its negligence.
Fitzgerald^ widow and children elected to accept compensation, and
assigned their cause of action against the above-named defendant to
the insurance carrier o f the employer. The insurance carrier
brought suit and the question arose as to the rule of damages to be
applied in such cases. From a judgment for the plaintiff, affirmed
by the appellate division, the defendant appealed.
In the trial court it was held that the carrier could recover
“ precisely what might have been recovered by an administrator in
an action brought by him for the benefit o f the next of kin.” The
defendant contended that the theory of damages is based upon the
idea “ of exact compensation to the injured party for the loss sus
tained.”
The court of appeals referred to the case of Casualty Co. of Amer
ica v. A. L. Swett Electric Light & Power Co. (174 App. Div. 825,
162 N. Y. S. 107), in which it was said that “ while the carrier might
recover from the person causing the death the full damages therefor,
still the recovery was impressed with a trust to in the first place
reimburse itself for whatever it may be compelled to pay under the
award as made, and then, if there be a surplus, to account therefor
to the legal representatives of the deceased.” But the court added:
The statute contains no such provision. Indeed, the intention ex
pressed by the legislature is clearly to the contrary. The purpose
of the act was to secure to dependents the speedy, certain, and ade
quate provision for their support.
It was pointed out that in case of accidental injury the dependents
must obtain an award from the employer, which is exclusive of all
other rights except when the employer has neglected to secure insur
ance, and in that case “ they may at their option elect to claim com
pensation under the act or maintain an action in the courts for
damages. They can not do both, and such election, when made, is
final.” I f the claim is assigned to the employer, it is assigned as a
whole; and 66there is no hint of any remaining right, either legal
or equitable, surviving against the carrier, unless it be because of the
use of the word 4subrogation ’ in the title of the section.” In defin
ing the word the court said:
Ordinarily one subrogated to the rights of another may retain
only sufficient to protect himself from loss. But the expression is
also used with a more general meaning. Subrogation is substitution,

WORKMEN’& COMPENSATION

247

it has been said, of one person in the place of another so that he
who is substituted succeeds to the rights of that other in relation to
a debt or claim and to its rights, remedies, or securities.
The court, assuming that the widow had no rights in the damages
which might be obtained from the third party, considered the ques
tion left to be as to the basis upon which to compute the damages.
The court took the view that ordinarily the assignee of a cause of
action “ recovers in the right of his assignor and to the extent that
the assignor might himself recover.” The general rule with regard
to confining damages to compensation applies “ to the party origi
nally injured, not to his assignee.” Damages to the amount paid by
the carrier up to the time of the action or time of the trial the court
considered “ would be manifestly unjust.” Continuing, the appellate
court said:
It would serve to relieve the wrongdoer of a part of the responsi
bility for his acts and at the same time would deprive the carrier
wrho has suffered loss because of such wrongdoing of compensation
for all future payments which it might be compelled to make. Nor
would it be possible to fix with reasonable certainty by any method
of computation the total amount of such future payments.
It may be more or it may be less than the award of damages which
the carrier may receive. Very possibly the amount of such damages
as nearly measures the amount of the carrier’s loss as any other sum
which could be named to-day.
A somewhat earlier decision (Zirpola v. T. & E. Casselman, 237
N”. Y. 367, 143 N. E. 222) was cited, where the court said:
I f dependents, electing to assign, are the only next of kin, the
entire beneficial interest in the cause of action against the wrongdoer
will pass by their assignment to the carrier, who may sue or com
promise at will.
Finding no error of importance in the rulings of the trial court,
the judgment was affirmed.
W orkmen ’s Compensation— I njury b y T hird P arty— S ubroga
I nterest— City of Red Wing v. Eiehinger, Supreme

tion — P arty in

Court of Minnesota (April 24, 1925), 203 Northwestern Reporter,
page 622.—The city of Red Wing carried compensation insurance
"with the Travelers Insurance Co. Ole Haga, employed as a street
sweeper by the city, was injured by a collision between two automo
biles while engaged in the course of his employment. An award of
compensation was granted by the commission and paid by the in
surance company.
The city brought an action against the operators of the automo
biles, seeking to recover from them the amount of compensation
received by the employee, alleging negligence as the cause of the

248

DECISIONS OF THE COURTS

accident. Upon the dismissal of the action the city appealed from
an order denying its motion for a new trial.
The workmen’s compensation law, section 4291 (Gen. Stats. 1923,
subd. (2)) provides for subrogation, and the insurance policy itself
contained the provision that:
K. The company shall be subrogated, in case of any payment
under this policy, to the extent of such payment, to all rights of
recovery therefor vested by law, either in this employer, or in any
employee or his dependents claiming hereunder, against persons,
corporations, associations, or estates.
The supreme court, in affirming the judgment below, observed first
that the compensation act recognizes the insurer as such. It does
not compel a municipality, as it does some employers, to carry in
surance. The municipality, however, may carry such insurance if
it so chooses. The injured employee had a common-law action, if
the facts warranted it, against the defendants under the terms of the
provision cited above. He also had his claim against his employer
under the compensation act. He could pursue both. He claimed
and received compensation, and under the statute his commonlaw action, at least in part, passed to the employer by virtue of
subrogation. A statutory subrogation has the game characteristics
as if it were a creature of equity. It was pointed out that when an
employer has paid or obligated himself to pay an award, he is
authorized by virtue of the act to bring an action against the third
person whose negligence was the proximate cause of the injury
and to recover a sum not in excess of the award. The payment or
obligation to pay the award on the part of the employer “ is a condi
tion precedent to his right to prosecute such action.”
In conclusion the supreme court noted that in the instant case
“ that fundamental element which supports the doctrine of subro
gation, namely, the call for substantial justice, is absent.” The city
was protected by the insurance carrier and had paid nothing nor
was it obliged to pay anything. The city suffered no damage by
reason of the negligence of the defendants, and in the opinion of
the court “ can not maintain this action.” The city was not con
sidered the real party in interest, the court saying:
The insurance company and not the city has suffered the loss to
the extent of the amount of money paid. I f anyone is entitled to
prosecute the alleged cause of action it would be the insurance com
pany. There is no law or reason to support the assertion that the
city should profit by its employee’s injury in a street tragedy. True,
the city is entitled to credit for the existence of the insurance by
virtue of its contract with the insurance company, but this insurance
was taken out for its own protection and for just such an emergency
as this. The insurance has protected it so completely that it has had

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

249

no loss. Such right of subrogation as the law gave the city it, by
contract, assumed to pass to the insurance company.
The judgment below was therefore affirmed.
W orkmen ’s C ompensation— Loss of D efective E ye— A wari>—
Liimatta v. Calumet di Hecla Mining Co., Supreme Court of Michi
gan (December 10, 1924), ®01 Northwestern Reporter, page 204-—
William Liimatta, employed by the Calumet & Hecla Mining Co.,
was working as a riveter in the defendant’s machine shop when a
piece of steel flying from a rivet struck him in the left eye, injuring
the eye to such extent that it had to be removed. In 1906, prior to
the enactment of the compensation law, the same eye had been
injured by a similar accident, which seriously impaired the vision.
The defendant furnished proper hospital care with surgical service
for the second accident, reported the case, and later tendered full
compensation for the period of disability, but denied liability for
loss of an eye. This was apparently on the ground that “ he had
previously lost the useful vision of the eye and could not lose it
again within the meaning of the act, his ability to earn full wages
in the same employment being unaffected by that accident.” The
plaintiff pressed his claim for full compensation for the loss of an
eye and the arbitration proceedings resulted in an award of full
compensation, which award was affirmed by the commission. The
defendant asked for review by certiorari and h reversal of the award
of $14 a week for 100 weeks.
The supreme court, speaking through Mr. Justice Steere, and
affirming the award, said in part:
The eye is an organ of the body which furnishes the mechanism
by which the sense of sight or faculty of vision is exercised. When
it ceases to function for that purpose it is in common understanding
lost, although the organ may yet remain. Such unquestionably is
the purport of our brief statutory provision which fixes compensa
tion “ for the loss of an eye” in an industrial accident. As the
statute now stands, an employee who suffers the loss of a single eye
in an accident is only entitled to the compensation fixed for the loss
of an eye, even though by previous loss of the sight in the other eye
he becomes totally incapacitated.
Unquestionably the loss of an eye within the meaning of the act
may be tested by the permanent loss of all vision adequate for indus
trial pursuits. The previous injury to the defective eye which then
impaired its vision antedated the law under which award was made
for its loss in a subsequent industrial accident which necessitated
its removal. The organ with some power of vision remained after
the earlier accident. When the later industrial accident occurred
there had not been any adjudication or official determination that
the eye was lost.

The award was therefore affirmed.

250

DECISIONS OF THE COURTS

A very similar case was before the Supreme Court of Minnesota, the victim
of the accident calling for the removal of an eye which had been totally blind
since childhood. It was admitted that “ it seems illogical to award the same
compensation whether the eye had the power of vision unimpaired or had
always been stone blind ” ; but as the law provided compensation simply “ for
the loss of an eye,” without reference to its condition, an award the same in
amount as for a perfect eye was approved. (Mosgaard v. Minneapolis Street
Railway Co. (1924), 201 N. W . 545.)
The same (Minnesota) court had before it, just a few days before, a case
in which a compensable injury had been suffered, involving an award for the
full amount allowable under the law for total loss of use of an eye. There
was a measure of vision, so that the injured man could “ see to read print
when held at an angle from the eye but not when held in front.” This was
said to be a total loss of vision for industrial purposes, though still “ he had
an eye that was of some use to him.” The employer admitted the responsi
bility for a certain degree of damage, but maintained that there should be a
reckoning of the prior loss and diminished value of the injured organ. The
court rejected this contention, holding that the schedule prescribed by the law
was controlling, and that the commission and courts were not given authority
“ to award a compensation that will fix justice in each individual case. Here
was an actual removal of a member of the body for which the schedule fixes
a specific compensation. That it results in double compensation, in that a
previous compensation has been paid by another employer, is the good fortune
of the employee, for the statute has omitted to make provision for such cases.”
The award in favor of the plaintiff was therefore affirmed. (Wareheim v.
Melrose Granite Co. (1924), 201 N. W . 543.)
Practically identical were the circumstances and the conclusions in a case
before the Supreme Court of Illinois, where a second injury to an eye
previously compensated for by the same employer on account of a 90 per cent
reduction in visual capacity was compensated for at the full rate when
enucleation was made necessary. The court said in part: “ There is no re
quirement in the act that the eye be perfect. The reduced amount of vision
is all the vision the individual has, and when it is destroyed the use of the
eye is destroyed. The legislature has fixed an arbitrary amount to be paid
as compensation in such cases, and that amount is due and payable whenever
a functioning eye is lost, though the eye may be infirm. (Chicago Bridge &
Iron Co. v. Industrial Com. (1925), 147 N. E. 375.)4

W o r k m e n ’s C o m p en sa tio n —Loss o f D e f e c t iv e

E ye— D is f ig u r e
v. Roxana Petroleum Corp. et al., Supreme
Court of Oklahoma (March 3, 1925), 235 Pacific Reporter, page 183.
— C. W . Rector, employed by the Roxana Petroleum Corporation,
on July 9, 1923, received an injury resulting in serious and perma
nent disfigurement of the face. He received, on August 15, 1924,
m e n t — A w a r d — Rector

4 In contrast with the rule here followed is that adopted by the courts of New York, in
which the rule is followed that any prior reduction of vision should be considered in
fixing the percentage of loss of eye due to an accident. (Di Carlo v. Elmwood Construc
tion Co. (1926), 213 N. Y. Supp. 327. See also the case of Ladd v. Fosfce? Bros. Mfg.
Co.; Bui. No. 391, p. 517.) The rule is followed also in Lewis v. Lincoln Engineering
Corp. (1925, 210 N. Y. Supp. 481), where, after an injury, a workman was found to have
lost 65 per cent of the use of his foot, but as there was a 30 per cent prior disability
he was allowed compensation for only the added 35 per cent due to the current injury.
And see the cases next following.

w o r k m e n *s c o m p e n s a t io n

251

an award of $488 for temporary total disability and $300 for facial
disfigurement, from which award he appealed. Because of the in
jury it was necessary to remove the right eye, but the evidence dis
closed that this eye had been injured when the claimant was 7 years
old, which injury “ caused almost a total loss of vision, and as a
result thereof he could not use this eye for any practical purposes,
but could detect light from darkness.”
The compensation law of Oklahoma, 1923, page 124, provides in
part:
E y e: For loss of an eye, one hundred weeks. Loss of use:
Permanent loss of use of * * * eye, shall be considered as the
equivalent of the loss of * * * eye.
From this section the supreme court held that:
It follows logically and naturally that, if the claimant had already
lost the use of an eye before he entered the service of the respondent,
he could not lose the use of it while in such service, and that, since
he could not lose the use of an eye while in the service of the cor
poration, he could not be awarded compensation for its loss.
The legislature specifically provided that the loss of the use of an
eye and the loss of an eye are equally the same thing. The work
men’s compensation law in Oklahoma, in this regard, is unlike such
law that has been called to our attention in any other State.
The court found that there were only two losses sustained by the
claimant, “ loss of the value of his services while disabled, and dam
ages suffered because of a permanent disfigurement to the face.”
The commission made an award covering both these losses, and the
question of extent of damages sustained by claimant “ as definitely
outlined by the industrial commission.” There being evidence to
support the findings of the commission, the supreme court held the
award to be conclusive upon the courts.
The award was therefore affirmed.
W orkmen ’s Compensation— Loss of I njured H and— B asis of
A ward—Klock v. William A. Rogers (Ltd.), Supreme Court of New

York, Appellate Division (May 6,1925), 209 New York Supplement,
page 666.—Edward S. Klock, employed by William A. Rogers
(Ltd.), suffered the loss of his right index finger eight years prior
to the accident arising in this case. He was awarded at that time
and paid for permanent partial disability the schedule allowance of
46 weeks at $20 a week. On May 11, 1923, he sustained another
injury, resulting in 100 per cent loss of the use of the middle finger
of the same hand. The industrial board found that he “ was en
titled to 42 per cent loss of the use of his right hand, amounting to
102.48 weeks less 46 weeks which have been paid for the loss of the

252

DECISIONS OF THE COURTS

index finger.” The employer and insurance carrier appealed from
the award of the industrial board.

The question presented on appeal was whether or not, having been
awarded compensation for the loss of the use of the index finger,
the subsequent injury, instead of being computed as a schedule per
centage loss, can be considered as the loss of use of part of the whole
hand.
Subdivision 6 of section 15 of the workmen’s compensation law as
amended by Acts of 1915, chapter 615, provides:
Previous disability.—The fact that an employee has suffered pre
vious disability or received compensation therefor shall not preclude
him from compensation for a later injury nor preclude compensation
for death resulting therefrom; but in determining compensation for
the later injury or death his average weekly wages shall be such sum
as will reasonably represent his earning capacity at the time of the
later injury: Provided, however, That an employee who is suffering
from a previous disability shall not receive compensation for a later
injury in excess of the compensation allowed for such injury when
considered by itself and not in conjunction with the previous dis
ability.
The proviso was added by the 1915 legislature, and under this
amendment the defendants claimed the award was illegal. Sub
division 8 of section 15 of the compensation law prescribes schedule
awards in each of the cases of injury involved in this case. The
first award was made according to schedule. The second award, if
considered as a schedule loss, would have been 30 weeks instead of the
102.48 weeks as allowed by the industrial board. The amendment of
1915 made a material change in the law.
The supreme court held that there were two classes of cases
to be considered:
(1) Those where two separate and individual members are suc
cessively injured, neither of which is a part of or included within
the other, as in the case of injuring successively two hands or two
arms.
(2) Where the second injury is to a member which included within
its functions, and as a physical part thereof, that member which
had been previously injured, as in the case of an injury to the right
arm, following an injury to the right hand.
Continuing, the court said:
The two fingers which had been lost are a part of one member—
the hand. The schedule awards (sec. 15, subd. 3) provide the num
ber of weeks’ compensation for the loss of digits, each digit being
specifically enumerated. It also fixes the number of weeks’ compen
sation for the loss of the whole hand.
The error made by the board consists in treating the loss of the
second finger as a partial loss of the hand and not in confining itself
to the schedule fixed; in other words, it has not considered this
injury by itself but in conjunction with the previous disability.

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

253

The award was reversed, and as it appeared that a schedule
award for 30 weeks had been paid for injury to the second finger,
the claim for the further award was dismissed.

orkmen ’ s

ability —

C ompensation— L oss of S econd *Eye— T otal D is
C ongenital D efect as P revious I njury — Combs v. Haz

ard Blue Grass Coal, Corp., Court of Appeals of Kentucky (Febru
ary 10, 1925), 268 .Southwestern Reporter, page 1070.— Sherman
Combs, a coal miner in the mines of the defendant coal company,
received an injury resulting in the loss of sight of hits left eye to
such an extent as rendered him totally disabled to perform manual
labor. He applied for compensation, and the workman’s compensa
tion board awarded him the maximum, $15 a week, beginning one
week after the date of the accident, not to exceed $6,000, subject to
a credit of 100 weeks at $12 a week for loss of sight of right eye,
blindness therein having always existed, being “ probably congeni
tal,” which should be deducted from the final payments due; also
medical bills not to exceed $100. The coal company filed a petition
for review in the circuit court, and that court modified the award
by allowing compensation at the rate of $12 a week for a period
of 100 weeks, the schedule period for the loss of an eye. The claim
ant appealed.

The statute (sec. 4901) provides:
I f a previously injured employee sustains a subsequent injury
which results in a condition to which both injuries, or their effects,
contribute, the employer in whose employment the subsequent in
jury is sustained shall be liable only for the compensation to which
such resulting condition entitled the employee, less all compensation
which the provisions of this law would have afforded on account
of the prior injury or injuries had they been compensated for there
under.
Had this employee, having an eye useless probably from birth,
been “ previously injured” ? Another section of the law covers total
disability. Reading the two sections together, the court ruled that:
A previous injury should be held to include any cause produc
ing the result. The thing provided for is a condition—total dis
ability. A case of total disability exists when the only good eye
is put out. The statute was intended to provide for the employee
who was in fact permanently disabled, in order that he would not
become a charge on the public, or be without any means of sup
port. It covers all cases of total permanent disability. But the
maimed employee should not in case of total permanent disability
be paid as much as one who was not maimed in any way, and so
the statute allows a deduction for what would have been allowed
for the previous injury, whether it occurred at one time or another.

«54

DECISIONS OF THE COURTS

This conclusion is in accord with the weight of authority under
statutes like ours, and seems to us the reasonable and just rule.
The judgment was reversed and the cause remanded with direc
tions to enter a judgment approving the award of the board.

W orkmen ’s C ompensation— L um p - sum S ettlement— M istake
M aterial F acts—Ostegaard v. Adams & Kelly Co., Supreme

as to

Court of Nebraska (April 16, 1925), 208 Northwestern Reporter,
page 5 6 —Peter Ostegaard, employed by the Adams & Kelly Co.,
sustained an accident arising out of his employment with the com
pany on January 21, 1922, which resulted in the loss of his left eye,
and as a further result of the injury it was alleged that he became
and was afflicted with tuberculosis and was permanently and totally
disabled thereby. He brought an action for compensation to re
cover as an employee, the company resisting on the ground of “ a
settlement and previous adjudication of all matters in dispute.”
From a finding in favor of claimant the company appealed) alleging
that on May 5, 1922, a lump-sum settlement was made by which
Ostegaard was paid $1,621.10. It was contended that this settlement
also covered the entire injury and consequential damages.
Ostegaard admitted the settlement, but alleged that the injury
caused him to be tubercular, and that neither he nor the company
was at the time cognizant of the fact that he was so afflicted, nor
could either of them have had such knowledge by the exercise of
reasonable diligence. While the case was pending Ostegaard died,
the action being revived in the name of his widow, Regine Oste
gaard. The trial court entered a judgment for plaintiff for 225
weeks of compensation at $15 a week, and to reverse such judgment
the company appealed.
The supreme court, on reviewing the reeord of the case, first held
that “ one who realizes on a lump-sum payment or settlement must
bring himself clearly within the statute as to the facts entering into
such adjustment as well as the law governing ^ame.” The evidence
was held to sustain the trial court, and the record to warrant the
conclusion that the settlement “ was for the loss of the eye and the
usual or reasonably to be expected consequence thereof, and no
more.” The court further held that the settlement as made and ap
proved was “clearly as to both plaintiff and defendant buttressed
on a mistake of fact; that neither party knew, or by reasonable dili
gence could have known, of such affliction, and that such tuberculosis
was not for that reason taken into consideration at the time o f
settlement.” As to this basis for claim their minds did not meet
and could not have met, so that “ they did not contract, and neither

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

255

was it covered by the settlement or judgments, and plaintiff has not
received compensation.”
The supreme court in conclusion stated that—
To avoid the harsh rules of law applied to such cases, courts of
equity take cognizance of mistakes of this nature and apply the
rule of conscience to the facts disclosed by the evidence. In this case
neither party has parted with anything or been placed in a worse
position by reason of the settlement. * * * In equity and good
conscience, under the facts as well as the law, the mistake was mutual
ancf one against which equity will relieve.
This is not enlarging the" scope of the statute, for its provisions
provide for a just compensation of the injured and not for a part
thereof.
The judgment of the trial court sustaining the additional award
was therefore affirmed.
W orkmen ’s C ompensation— M edical A ttention — D ental S erv
Commission — Farley v. H. T. Milling Co., Su~.

ices— A pproval by

preme Court of Oklahoma {September 15, 1925), 239 Pacific Re
porter, page Ifil.—Fred Abernathy, employed by the H. T. Milling
Co., received an accidental injury to his mouth while in such employ
ment. The foreman directed him to go to the Picher Hospital for
treatment, and upon arriving he found a Doctor Dodson, who upon
examining him told him the services of a dentist would be necessary,
and took him to the office of the plaintiff, Dr. B. W . Farley, and
requested that Doctor Farley render him such dental service as was
necessary. The service was rendered and the bill was presented to
the London Guarantee Co., insurance carrier for the employer. Pay
ment, however, was refused, and Doctor Farley then brought suit
against the employer, and from a demurrer sustained in favor of
defendant the plaintiff appealed.
It was the contention of the employer that there was neither an
expressed nor implied contract between plaintiff and defendant for
the dental services involved, and that if plaintiff is entitled to recover
he must do so by virtue of the workmen’s compensation act (secs.
7282-7340, Comp. St. 1921).
The supreme court, in considering the question whether or not the
employer hired plaintiff, decided that there was no contract which
would bind the defendant for the payment for services rendered.
It appeared that when the employee went to the hospital the doctor
who took him to the dentist merely said to the dentist, “ I have a
patient for you, Mr. Abernathy,” and “ he’s from the H. T. Milling
Co.”

256

d e c is io n s op t h e c o u r t s

The record disclosed also that the industrial commission found
that the employee did not lose more than seven days, and that he
suffered no serious permanent facial, head, or hand disfigurement.
The supreme court observed that the compensation act makes it the
duty of the employer to furnish medical attention, and if the em
ployer failed the injured employee may do so at the expense of the
employer, but the act further provided that such charges and fees
shall be subject to regulation by the commission and such claim shall
not be enforceable unless approved by the commissioner. No appli
cation having been made in the manner provided by law for the
payment of the services rendered it was held that the plaintiff was
not entitled to recover under the compensation act.
The judgment of the lower court in sustaining the demurrer was
therefore affirmed.
W orkmen ’ s C ompensation— M edical E xamination — F ailure to
S ubmit — D eportation o f A lien — Sauch v. Studebaker Corp.,

Supreme Court of Michigan ( October 1, 1925), 205 Northwestern
Reporter, page 120.— Antonio Sauch, while employed by the Stude
baker Corporation, suffered an injury arising out of and in the
course of his employment. He applied to the commission for an
award of compensation for an industrial accident, his claim being
that the accident aggravated an existing condition of tuberculosis.
Upon his hearing plaintiff was awarded compensation at the rate of
$14 weekly during total disability, and the employer filed a claim
for review before the full commission, which was disallowed be
cause not received by it within 10 days from the decision of the
deputy. Compensation was paid for several months, and on March
5, 1924, the employer made application to stop payment, giving as
its reason that the employee was not at that time suffering from,
or was not incapacitated as a result of, the injury sustained in the
employ of the corporation. This application was denied. March
28, 1924, the company mailed Sauch a registered letter requesting
him to appear in Detroit for physical examination at the company’s
expense, under the provisions of section 19, part 2, of the work
men’s compensation act. Plaintiff did not appear nor directly make
any answer to the letter, although about that time plaintiff’s at
torney told the company’s attorney that he had been deported to
Spain. On May 27, 1924, the defendant corporation applied for
suspension of compensation based on plaintiff’s failure to appear
for examination. Hearing was had and the application was denied
by a deputy commissioner, and the denial affirmed by the full com
mission. The commission in its return sscid :

That, had the applicant left the United States of his own volition,
we would have placed the burden of proof upon him, but as appli

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

257

cant was deported, we think the burden still rests upon the peti
tioner, and * * * that the agreement is in full force and effect
until set aside or modified by competent proof.
It appeared, though there was no official proof, that Sauch was
deported because of tuberculosis. It was admitted that his absence
overseas and his failure to comply with the request to appear for
medical examination were owing to his arrest and deportation by the
said authorities, but as the court said, “ nevertheless he did not sub
mit himself to any examination as requested, and thereby necessarily
obstructed and prevented the same,” In construing the statute the
court was of the opinion that as it reads it does not imply “ that the
obstruction mustjae willful,” since the employer’s rights under the
statute “ would be equally obstructed or defeated whether it was or
not.” Even conceding that he was willing and would have appeared
for examination had it been possible, the court was of the opinion
that the cause of his prevention was the fact that “ his illegal immi
gration and residence in the country laid him liable to arrest and
deportation by the Federal Government.” The court was of the
further opinion that the section of the statute involved suggested a
limit- of territorial jurisdiction—that is, the State itself—and that
the examination by the physician or surgeon could not be held else
where. In this connection the court in conclusion stated that:
There is no machinery in our statute appropriate to the situation
presented here, and nothing in its scope suggesting an intent to cover
such a case. It gives the employer the right to a medical examination
of the employee by a physician or surgeon authorized to practice
medicine under the laws of this State, which require that he be exam
ined and licensed by the State board of registration in Michigan.
The act does not comprehend in any of its terms the possibility of the
employee being absent in a foreign country. It confers upon the
commission no extraterritorial powers, and neither the latter nor the
courts have any authority to legislate on the subject. Beginning with
plaintiff’s unlawful entry into this country, circumstances developed
where, by reason of his absence in Spain, it became impossible for
the employer to have the medical examination the law entitled it to,
amounting to contemplation of the statute to an obstruction of the
same, and entitling defendant on the case as then presented to the
order of suspension petitioned for.
The order of denial was therefore set aside and one of suspension
granted.
W orkmen ’s Compensation— M edical R eports— C ompliance w ith
S tatute—La Duca v. United States Light & Heat Corf, et al

Supreme Court of New York, Appellate Division (November 12,
1925), 212 New York Supplement, page 240
.—Dr. Joseph P. La
Duca was awarded a fixed sum by the industrial accident board

258

DECISIONS OF THE COURTS

for medical services rendered an injured employee. The United
States Light & Heat Corporation and another opposed the award
and appealed to the supreme court.
In a per curiam decision the supreme court held that where a
physician rendered medical services for which an award was made,
and did not comply with the statute as to filing report of such in
jury and treatment on a form prescribed by law, the award of the
industrial board thereon would be reversed.
The award was accordingly reversed and the claim dismissed.
W orkm en’s Compensation— M i n o r U n la w fu lly Employed—
“ Em ployee”— Mueller v. Eyman, Supreme Court of Ohio (April
H , 1925), llfl Northeastern Reporter, page 31 $ . — Culver Eyman, a
minor employed by the A . R. Mueller Printing Co., was engaged on
November 28, 1920, in the operation of a certain folding machine.
W hile so engaged he received an injury, for which he received an
award of compensation of more than $500 for loss of time and loss of
the second finger of his right hand. April 20, 1922, an action was
brought for damages by a next friend in the minor’s behalf, on
the ground of negligence. On securing the employment Eyman,
a minor 14 years and 7 months old, represented himself as being
17 years of age. The defendant company, in addition to denying
charges of negligence, pleaded that the minor had applied for and
received an award of compensation from the State industrial com
mission. In replying Eyman denied he had “ consciously applied ”
for compensation, and alleged that any application that had been
made was done in reliance of the false and misleading representa
tions made to him by the defendant and its agent. Judgment for
the defendant in a directed verdict in the trial court was reversed
by the court of appeals, and defei^dant brought error.

The supreme court, on reviewing the record, noted a change in
the workmen’s compensation law made just prior to the happening
of the accident in this case. By a 1919 enactment (108 O. L. 317,
324) the minor’s status in relation to the workmen’s compensation
law was made similar to that of an adult person. This enactment
(subds. 1 and 2, sec. 1465-61, G. C.) provides that every person in
the service of another employing five or more workmen under “ any
contract of hire * * * including * * * minors,” shall be
construed an employee “ as used in this act.” The supreme court
was of the opinion that “ as it now stands, the workmen’s compensa
tion act is plain and explicit,” and though the employment be
illegal, that section makes “ any contract of hire ” efficacious to sus
tain the relation of employer and employee under the act. Section
*1465-93 of the General Code, provides that “ a minor shall be deemed
sui juris under the act.”

259

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

The plaintiff in this ease represented himself to be IT years of age*
made an application for compensation, received an award, and more
than a year afterwards brought an action for damages. The supreme
court held that under an earlier decision 64we are constrained to hold
that the minor was an employee sui juris, and estopped from main
taining an action for damages against an employer who had com
plied with the workmen’s compensation act.”
The judgment of the court of appeals was reversed and that of the
trial court affirmed.
Withm the principle applied in the foregoing case was the decision of the
Supreme Court of Tennessee in a case in which a minor 20 years of age
sought to avoid the consequences of a failure to give notice of the injury
within the time prescribed by the act, on the grounds of minority. The law
gave to a minor of 18 years or over the status of an adult so far as his rights
under the compensation law are concerned. The supreme court held such
action to be within the power of the legislature, so that the dismissal of the
suit by the court below was affirmed. (Campbell v. Bon Air Coal & Iron Corp.
(1925)* 268 S. W . 377.)
The law of New Jersey does not lend itself to such constructions as that
of Ohio, noted above, but is held to be limited to lawful employments, illegal
employment not being considered as employment under the compensation law.
Thus, where a boy of 14 was employed at a dangerous machine* in violation
of the child labor law of the State, “ the workmen’s compensation bureau had
no jurisdiction to pass upon the question of the compensation to be paid to
him for the injuries received, for it is only in those cases where the contract
of hiring is valid that the workmen’s compensation act is applicable.” An
award made on an application for compensation was therefore held to be no
bar to an action for damages subsequently brought, and a contrary judgment
of the trial court was reversed. (Boyle v. Van Splinter (1925), 127 AtL 257.)

W orkmen 's Compensation— N otice— F ailure

G ive

W r it-

ing—Levine v. General Electric Go., Supreme Gourt of New York,
Appellate Division {November 12,1925) , 212 New York Supplement,
page 88.—In a proceeding under the compensation law by David
Levine against the General Electric Co., the State industrial board
granted an award from which the employer appealed.
In a per curiam decision the supreme court reversed the award and
remitted the matter to the industrial board on the ground that verbal
notice given to the employer was not one of the statutory grounds
of excuse for failure to give written notice of the injury as provided
by the compensation law (Laws 1922, ch. 615), and failure to give
such written notice had not therefore been properly excused.
W

orkmen ’ s

C ompensation— P aym ent of G ratuity — L im ita
S tatute—Ashland Iron & Mining Go. v.

tion — Construction of

Fowler,, Court of Appeals of Kentucky (December 19, 192Ip), 271
Southwestern Reporter, page 589.—Lewis Fowler, employed by the

260

DECISIONS OF THE COURTS

Ashland Iron & Mining Co., sustained an accident arising out of
and in the course of his employment, from the results of which he
lost an eye. An award of compensation was granted in the sum
of $12 per week for 120 weeks. The accident occurred on November
24, 1919; he returned the 1st of January, 1920, receiving the same
wages, and worked until the 27th of May, when he quit because of
sickness. He died on June 3, 1920, the family physician certifying
that death was due to double pneumonia, “ contributing or second
ary causes, age, and overwork.”
Only 26 weeks of the 120 weeks for which he was allowed com
pensation had been paid up to the time of his death, and the com
pensation board ruled that the “ right to such compensation was
personal to the employee, which ceased upon his death.”
The plaintiff company maintained a fund which it called the
“ subscriptions and charities account,” from which it would, in its
discretion, donate or pension worthy employees or their dependents
in case of death, and it continued to pay Fowler’s dependents, who
were his widow and children. The remainder of the award made
by the board wTas paid to the widow until the expiration of the 120
weeks. Shortly after the ceasing of these payments made out of
the “ subscriptions and charities fund,” the widow made application
to the compensation board for death benefits under the statute.
Plaintiff contested upon the grounds that Fowler’s death did not
result from the injury received, and it also relied upon the limita
tion of one year from the death within which application for death
benefits should have been made. (Stats. 1922, sec. 4914.)
The compensation board allowed compensation in the maximum
amount, but credited it with the sums paid by the employer out of
the “ subscriptions and charities fund.” The finding was affirmed
in the circuit court and a petition for review was dismissed, from
which dismissal the company appealed.
Both the circuit court and the court of appeals were of the opin
ion that the finding that the death of Fowler was the result of the
accident to his eye was against the great preponderance of the evi
dence, but as it was not within the province of the courts to encroach
upon the findings of fact by the board they did not disturb the
judgement on that ground.
The court of appeals in considering the question as to whether
the payment of the gratuity was a voluntary payment of compen
sation under the meaning of the statute, with the effect of extending
the period of limitation, said:
It is true that they were voluntarily made, but not in discharge
of “ compensation, as such,” and clearly they were not so made by
the employer, whose motive only in making them is, doubtless, the

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

261

one intended by the statute, and not the opinion or belief of the one
receiving them.
To the further objection that the limitation would not begin to
run until there was a “ guardian or next friend ” to act for the
minor children, the court said:
It is the universal rule of long-continued application that in con
struing the terms of a statute all of its sections and subdivisions
must be taken into consideration, so as to arrive at the intention of
the legislature in the enactment of its various provisions.
And since the law specifically created “ the dependent widow of
the deceased employee, who is also head of a family of minor chil
dren, a statutory next friend for her minor children for the pur
pose of applying for and obtaining the death benefits provided by
the act,” no ground for suspending the limitation appeared.
The judgment was therefore reversed, and the board directed to
dismiss the case.
On the point of the claim being barred by the limitation of one
year, the law provides that “ if payments of compensation as such
have been made voluntarily ” the time limit for making claim is
postponed thereby.
W orkm en’s Compensation— Permanent T o ta l D isability—
Earnings— Review — P e r r y C o u n t y C o a l C o r f . v. I n d u s t r i a l C o m
m is s io n , S u p r e m e C o u r t o f I l l i n o i s (F e b n u M * y 17, 1925), 146 N o r t h
e a s t e r n R e p o r t e r , p a g e 4 6 8 .— Walter Ayers, employed by the Perry

County Coal Corporation, was injured on March 23, 1920, when
he was squeezed between a car and the face of coal while he was
trying to hold the car back. It was claimed that the injury was
to the spine in the lumbar region, and that Ayers was unable to
work thereafter. An award of compensation was granted in the
sum of $14.40 for 277 weeks for permanent partial incapacity, and
$11.20 for 1 week. The award was confirmed by the commission
but set aside by the circuit court and the cause remanded for further
hearing. On October 15, 1923, an award was made of $14 a week
for 285 6/7 weeks and a pension for life of $26.66% a month. This
second award was confirmed by the circuit court and the defendant
obtained a writ of error.

In reviewing the evidence the supreme court was of the opinion
that it sustained the claim that Ayers had received an injury to
his spine of such severity that he was rendered unable to do manual
labor. The question in dispute was whether the continued disability
“ resulted from the injury or from some other cause—arthritis,” as
93383°— 26------ 18

262

DECISIONS OF THE COURTS

the employer claimed. All were agreed that he was unable to per
form manual labor. The supreme court said:
We have read the testimony, and are of the opinion it abundantly
sustains the claim that Ayers’ condition is due to the accident.
On advice of physicians Ayers attempted other kinds of employ
ment. He tried the photographic business, but was unable to do
the work and abandoned it.
He later bought a restaurant, which his wife ran; he was secre
tary for his local union at $30 a month, and his wife helped him
and did much of the work. He was elected tax collector and hired
others to do most o f the #work. The defendant contended that
these things showed that Ayers was not wholly and permanently
incapable of work and the award was not justified. The court held
that:
The amount and character of the work Ayers has been able to do,
as shown by the testimony, does not tend to show that he is not
“ permanently incapable of work.”
There being no error of law and the testimony sustaining the
award, the judgment of the circuit court was affirmed.

W o r k m e n ’s

C o m p e n s a t io n — P e r m a n e n t

S h o c k —H y s t e r i a

T otal

D is a b il it y —

—Harrisburg Coal Mining Co. v. Industrial Commission, Supreme Court of Illinois (February 17,
1925), llfi Northeastern Reporter, page 51$.—Eddie Miller was
employed on a machine undercutting coal and operated by an alter
nating current of electricity of 250 volts, and while so engaged on
October 28* 1921, he received an electric shock because of a defect
in the insulation of a cable. He was dazed at the time, though he
worked a short time after the accident. The evidence as given by
Miller was to the effect that his eyes, heart, and nervous system
were affected to such an extent that he had not worked since the
accident. An award of compensation was granted in the sum of
$12 for one week and $16 a week for 265 weeks, aggregating $4,252.
The arbitrator considered that the injury caused complete disability,
rendering the claimant permanently incapable of work. The in
dustrial commission sustained the award as made by the arbitrator,
and the cause was removed to the circuit court by certiorari, where
the award was set aside. In January, 1924, the industrial commis
sion held a rehearing and made an award of $10.20 a week for 416
weeks, aggregating $4,243.50. The circuit court affirmed the award
and the cause was taken to the supreme court on a writ of error.
The supreme court held that the evidence in the case warranted
the conclusion that the employee was suffering from hysteria to
E l e c t r ic

w o b &m e n ’ s c o m p e n s a t io n

263

such an extent as to incapacitate him for work, and that the cause
was the receiving of the electric shock in the course of his employ
ment. The award was made for permanent partial disability, and
the question then arose whether Miller was entitled to an award
if he “ is suffering from hysteria due to the electric shock, which
incapacitates him from work.”
It was not claimed that Miller received any other accidental
injury than the electric shock. The supreme court said:
We are warranted in concluding from the evidence that, if the
accident did not directly produce the effects complained of by Miller,
the shock to his system produced in his mind the conviction that his
health and physical vigor were destroyed, resulting in hysteroneurasthenia and incapacity to work.
The supreme court quoted with approval from the case of United
States Fuel Co. v. Industrial Commission (313 111. 590, 145 N. E.
122), which case was considered exactly in point with the case under
review. The court in that case said:
It is immaterial whether this condition is caused by a physical
injury or a mental disorder resulting from the injury. Where an
employee has an honest, fixed, definite, and continuing belief that
he is suffering severe bodily pain, and that he is in such a disordered
condition that he is unable to work and walks in a very stooped
position, as does defendant in error, and all of the foregoing condi
tions have been brought about by a severe accidental injury, he is
as much entitled tu compensation as if he were in fact totally and
permanently disabled by such accidental injury.
Miller was considered entitled to the award of compensation and
the judgment was therefore affirmed.

orkmen ’s

C ompensation— P owers o f C ommission— D u e P roc
S tatute— S everability o f I nvalid P ro
visions— Alabam’s Freight Co. v. Hunt, Supreme Court of Arizona
(January 7, 1926), 21$ Pacific Reporter, page 658.— The Arizona
Legislature of 1925 proposed an amendment to the constitution of the
State which would permit desired changes in the compensation sys
tem of the State. A t the same time it drew up and enacted a meas
ure to become operative in case of the adoption of the proposed
amendment at an election to be held on September 29, 1925. The
election was favorable to the proposition, but an action was immedi
ately filed for an injunction against the appointment of the adminis
trative commission, challenging the constitutionality of the act.
G. W. P. Hunt, governor of the State, was made defendant, and
from a judgment in his favor in the superior court of Maricopa
County the plaintiff company appealed to the supreme court, the
appeal resulting in an affirmation of the judgment below.

e s s — C onstitutionality o f

264

DECISIONS OF THE COURTS

Some 24 objections were filed, but the majority of them received
no consideration on account of their acknowledged triviality. Of
the five points urged by the plaintiffs, one is technical under the pro
vision of the State constitution as to referendum. No place was
found for the application of this test, since the law provides that
such petition may be filed only within 90 days after the close of a
legislative session; and as the election did not take place until this
time had expired, there was no possibility of a referendum petition
being filed.
Another contention also related to procedure, the point being that
it was not possible for the legislature to enact a valid law until after
the adoption of the constitutional provision authorizing the new type
of legislation. Precedents were cited to support “ the opinion that
the legislature may pass an act to take effect only upon the adoption
of a constitutional amendment authorizing it, and that its consti
tutionality is to be tested by the constitution as it is at the time
the law takes effect, and not as when it was passed.”
The court then took up the question of a combination of execu
tive and judicial powers in the commission and the unlawful dele
gation of judicial powers to it, contrary to provisions of the State
constitution. It was recognized as obvious that “ the commission
has many and great administrative powers,” some of which were
enumerated. “ In fact, the whole purpose of its existence is the
administration of one of the most important laws of the State.”
The claim was made that if the court should hold the commission
to be a court the performance of such administrative duties would
be a violation of one provision of the constitution; while if it should
be held not to be a court the alleged judicial powers conferred upon
it would make it obnoxious to another provision of that instrument.
The court admitted that if those were the only alternatives the law
could not stand; but taking the definition of the word “ court ” as
“ a tribunal established for the public administration of justice”
(Butts v. Armor, f64 Pa. 73, 30 Atl. 357), the powers and duties of
the commission as enumerated by the act were so different from the
functions of a court as to make the proposed characterization “ the
height of absurdity.” The commission is, in fact, an administrative
organization charged with enforcement of the entire body of labor
laws, with the promotion of voluntary arbitration, the conduct of
free employment agencies, the collection of industrial statistics, etc.
But granting that it was not a court, the question remains as to the
exercise of “ judicial power.” An Ohio case (State v. Hawkins,
44 Ohio St. 98, 5 N. E. 228) was quoted from as follows:
What is judicial power can not be brought within ring fence of
a definition. It is, undoubtedly, power to hear and determine; but
this is not peculiar to the judicial office. Many of the acts of ad

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

265

ministrative and executive officers involve the exercise of the same
power.
The court added that:
The authority to ascertain facts and apply the law to the facts
when ascertained appertains as well to the other departments of
the government as to the judiciary. (State v. Harmon, 31 Ohio
St. 250.)
The exact point in issue was before the Supreme Court of Wis
consin in considering the constitutionality of the workmen’s com
pensation law of that State in the case of Borgnis v. Falk Co. (147
Wis. 327, 133 N. W. 209), in which that law was upheld. It was
recognized that certain conclusions must necessarily be reached by
the commission, as those of jurisdiction over a specific case, whether
the parties are subject to the act, whether the injury was within the
definition contained therein, etc.
The industrial commission must, of course, decide these questions
in any case where they are raised, but it can not decide them con
clusively, for they are jurisdictional questions on which its right
to act at all depends. They must be open to review in some court of
competent jurisdiction; otherwise the parties would be denied due
process of law.
Such differences as existed between the Wisconsin statute and that
of Arizona would not invalidate the reasoning in the former; and
furthermore, “ our statute goes far beyond the Wisconsin act in
giving the courts a right of review. We conclude there is no im
proper delegation of judicial power.”
The fundamental question of “ due process” and the denial of
equal protection of the law as provided by the fourteenth amend
ment of the Constitution of the United States was next taken up.
The court found a full discussion of the law on this subject in the
opinion of the Supreme Court of the United States in the case of
Ward & Gow v. Krinsky (259 U. S. 503, 42 Sup. Ct. 529; see Bui.
No. 344, p. 314), where the validity of the New York compensation
law was up for consideration. As in the instant case, the question
there raised was as to the inclusion of alleged nonhazardous occu
pations, the contention being made in the Krinsky case that “ the
validity of compulsory workmen’s compensation acts depends on the
inherent hazardous character of the occupations covered.” The
earlier New York statute, like the earlier Arizona law, had used the
test of hazard, but in their present form both included employment
generally, so that the language of the Supreme Court in the New
York case was entirely apt in any discussion of the Arizona statute.
The opinion was quoted from at great length, in the course of which
it was said that “ the New York compensation law by its terms is
based upon the existence of actual, not hypothetical, inherent hazards

DECISIONS OF THE COT7BTS

confronting employees in gainful occupations.” The amendment
including all employments in which four or more workmen or oper
atives are regularly employed in the same business, except farm and
domestic servants, was said not to ignore “ actual inherent hazard.”
Instead, “ it was treated as virtually universal, but incapable of
being precisely defined or classified by strict statutory rules in
advance,* and more easily treated in the light of experience.”
The fact that the Arizona statute does not refer to “ inherent
hazards of the occupation,” as does the New York statute, but
covers “ any accident arising out of and in the course of such em
ployment,” was said to be a distinction only in form and not in sub
stance or meaning. The Arizona rule had been announced as hold
ing the employer liable for “ any accident arising from one of the
conditions of the occupation,” which was said to have the same
meaning as the expression “ inherent hazards ” in the Krinsky case,
enforcing the conclusion by the following quotation:
That there was inherent hazard in Krinsky’s occupation is con
clusively shown by the fact that, in the course of it, he received a
serious and disabling personal injury arising out of it.
The court added:
So in our act, while the legislature did not use the words “ inherent
hazards of the occupation,” yet it is plain that “ any accident aris
ing out of and in the course of an employment ” must necessarily be
caused by one of the “ inherent hazards ” of such occupation, as the
phrase is construed by the Krinsky case.
We do not think our statute violates the fourteenth amendment
of the Federal Constitution.
The final objection was as to a claimed conflict between the law
as enacted and the constitutional amendment as framed by the leg
islature. Such conflict was found to exist, the constitution provid
ing that “ the right of action to recover damages for injuries shall
never be abrogated, and the amount recovered shall not be subject
to any statutory limitation” (art. 18, sec. 6). This provision was
not affected by the amendment, which proposed to retain the right
of all employees in private employment to exercise an option as be
tween recovery in a suit at law and under the compensation statute,
but provided also that this option might be exercised “ by failing
to reject the provisions of such workmen’s compensation law prior
to the injury.”
It may be noted that this was one of the prime objectives of the
amendment to the constitution, the former law permitting choice
at any time, even after the receipt of the injury, although the em
ployer may have been insured under the compensation law. Under
the new legislation acceptance of the compensation provisions is pre
sumed and is binding in the absence of a rejection prior to the injury.

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

267

As enacted the new law gave the option of rejecting the compen
sation law to enumerated hazardous occupations, making it the
exclusive remedy as to other employments not so enumerated. The
court found this discrimination in such conflict with the constitu
tion that it was impassible for it to stand. However, the elimination
of the provision restricting election to specified hazardous employ
ments was held not to invalidate the law as a whole. Three tests
of severability were announced: First, that the remaining parts with
the invalid portion eliminated must be effective and enforceable of
themselves; second, that the invalid portion be not the consideration
and inducement of the whole act; and third, that it could be presumed
that the legislature would have passed the valid sections without the
invalid portion. Applying these three tests, it was decided that the
severability of the objectionable provision was entirely proper,
since omitting the discrimination would grant the right of recovery
on equal terms “ to every employee covered by the act, and the con
stitutional guaranty is fully preserved. The act as it remains is
just as effective and enforceable as before, and the first condition
is complied with.” Neither was the provision stricken out the in
ducement of the act as a whole. The object was “ to broaden and
not to narrow the principle of compensation to injured workmen, and
to provide for an election of remedies in advance of, rather than
after, injury,” and this objective is fully accomplished without the
provision which is stricken out. As to the third point it was stated
that the people by their mandate inserted in the constitution directed
the enactment of a compensation law. This mandate would remain
in force even though the entire act were declared unconstitutional.
Assuming that the legislature would obey such mandate, it would
naturally follow that “ it would enact precisely the law which it has
already approved, eliminating only the part which the consti
tution forbids.” The validity of the law with the invalid portion
stricken out was therefore upheld, and the judgment of the court
below affirmed.
W orkmen ’ s C ompensation— P owers o f I ndustrial C ommission—
P romulgation o f O rders— R eview b y C ourt— Glemmer & Johnson
Co. v. Industrial Commission, Supreme Court of Ohio (April 21,
1925), Ufl Northeastern Reporter, page 518.— Prior to January 1,
1924, the industrial commission had adopted an order containing re
quirements relating to building and construction work which the
commission attempted to make effective as of January 1, 1924, not
withstanding the fact that the order was not published or promul
gated as required by section 871-34, General Code, until after Janu
ary 11, 1924. On this last date five employees of the Clemmer &
Johnson Co. were injured while working upon a scaffold used in

268

DECISIONS OF THE COURTS

connection with the erection of a school building. All of the in
jured employees received the ordinary compensation from the State
fund to which they were found to be entitled. Shortly thereafter
they made application to the commission for additional compensa
tion in the nature of penalties under the authority of section 35,
article 2, of the Ohio constitution, the applications being based upon
the alleged violation by plaintiff company of the specific require
ments referred to. On June 17, 1924, the defendant industrial com
mission found and determined that the.company had violated the
order, and found that “ the injury was the result of failure on the
part of the employer * * * and hereby orders compensation
equal to 50 per cent of the amount heretofore paid on account of said
injury, being assessed and paid in the manner and at the time the
regular compensation is being paid.”
An application for rehearing was denied, and the company peti
tioned the court for a review. The defendant commission demurred
to this petition on the ground that the court had no jurisdiction
over the subject matter of the action, and that the petition did not
state facts sufficient to constitute a cause of action.
Section 871-26 of the General Code reads:
All general orders [of the industrial commission] shall take effect
within 30 days after their publication. Special orders shall take
effect as therein directed.
The petition discloses that the accident happened less than 30
days from the date of the general order relative to scaffolds, and it
was the claim of the commission that the above section 871-26 “ shall
take effect within 30 days,” meaning any period of time fixed by
the commission not over 30 days from the date of said'order.
The supreme court doubted the correctness of this construction,
“ in view of the fact that the sentence following the provision as to
general orders in that section, to w it,cspecial orders shall take effect
as therein directed,’ gives to the commission in that species of orders
the power to fix the time when they may become effective, while as
to general orders this power in the commission seems to be with
held.” The supreme court therefore reached the conclusion that the
demurrer must be overruled and the petition in that regard be held
good.
The second question involved was the right of the plaintiff com*
pany to maintain the action, it being the claim of the commission
that the remedy of the plaintiff, if any, was by way of injunction
and not by way of direct review by the supreme court. Section
871-38 of the General Code provides in part:
Any employer * * * being dissatisfied with any order of the
commission may commence an action in the Supreme Court of Ohio

269

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

against the commission as defendant to set aside, vacate, or amend
any such order, on the ground that the order is unreasonable or
unlawful, and the supreme court is hereby authorized and vested
with exclusive jurisdiction to hear and determine such action.
Under this section the supreme court held that it had jurisdiction,
upon the application of an employer or other person in interest, to
set aside, vacate, or amend orders of the commission, on the ground
that the order is unreasonable or unlawful, if it involves a violation
of the industrial commission act.
The court held further that where the commission has issued a
general order a claimed violation within less than 30 days can not
be made the basis of the assessment of a penalty as a violation of a
special requirement, and an order assessing a penalty based upon
such violation is unlawful and subject to review.

orkmen ’s

C ompensation— R elease— F raud

tation —Oresnik

and

M isrepresen

v. Gudahy Packing Go., Supreme Court of Kansas
(February 8, 1925), 232 Pacific Reporter, page 1022.—Cecilia Oresnik, employed as a worker in the defendant’s packing plant, suffered
an injury to her hand which resulted in partial incapacity and for
which she asked compensation in the sum of $6 a week for 416 weeks.
She was awarded $1,896, and the defendant appealed.
It appeared from the evidence that after the beginning of the
action for compensation the defendant induced the plaintiff to sign
a release and an order of dismissal of the action upon a payment of
$600 by telling her she could get no more than $500 or $600 by suing.
There was no dispute as to the nature and extent of the injury. The
plaintiff replied to the defendant’s defense of release that it was
procured by misrepresentations and fraud, and therefore was of no
effect. The defendant on appeal contended that the plaintiff could
not “ impeach a release or be relieved from its obligations upon the
ground of false and fraudulent statements which she did not believe
and by which she was not deceived.”
It appeared on the trial and on the cross-examination that plaintiff
made some statements that implied she did not believe the representa
tions made and that she thought she could get more by bringing an
action, but the court observed that she did not understand the English
language, and that therefore the testimony “ should be read with this
condition in view.” It also appeared that the agent of the company
and insurance carrier told her she would lose her job at the Armour
plant and that she would be barred from employment at all other
packing plants if she did not accept the $600. She testified she was
afraid of losing her position and was scared into signing.

270

DECISIONS OF THE COURTS

The supreme court in concluding its opinion said:
There appears to be no substantial dispute as to the fraudulent
misrepresentations and undue influence of which she complains, and
upon the theory that fraud was established, and upon a consideration
of all the circumstances shown, we are unable to say that the plaintiff
is barred by the ambiguous statements made on cross-examination
to the effect that she thought she could get more by a prosecution of
her action.
The judgment of the district court awarding $1,896 as compensa
tion was therefore affirmed.
W orkm en’s Compensation— S c h e d u l e
I n ju r y — “ Perm anent
T o ta l D isability ”— P e n a lty f o r D elaying Payment by Frivo
l o u s Appeal— Fern Gold Mining Go. v. Murphy, United States Cir

cuit Court of Appeals, Ninth Circuit (August #4, 1925), 7 Federal
Reporter (2d), page 613.— This case was before the court of appeals
on a writ of error to the District Court of Alaska. W . P . Murphy
was employed by the company named in its mine, and suffered an
injury to his left hip which resulted in total and permanent dis
ability. The amounts payable under the law of Alaska are fixed
sums depending upon marital status and number of dependents.
Murphy being single, he claimed $3,600 for his alleged permanent
total disability, while the employer insisted that he was entitled
to but $1,800 as for the loss of a leg. The court rejected this con
tention, saying:

We find no merit in the contention. It is obvious that an injury
to a leg may be such as to cause total and permanent disability.
The Legislature of Alaska, in prescribing $1,800 for the loss of a
leg, had in mind the case of the loss or amputation of a leg in
volving only partial disability, and the statute e xp licitly so states.
Here there was evidence of an incurable and permanent injury, and
the jury, under proper instructions from the court, found the dis
ability to be total and permanent.
Citation was made of decisions of State courts bearing on the
question and judgment was affirmed.
In addition to affirming the judgment below the court pointed out
that the company employer “ saved no exceptions to the evidence,
made no motion for an instructed verdict, took no exception to in
structions, and requested none.” Neither had it introduced any evi
dence on the trial. In view of these facts, and “ the question being
so wholly without merit, and proceedings to collect the judgment
having been delayed by the writ of error,” it was held to be a
proper case to apply the provisions of rule 30 governing the practice
of circuit courts of appeals. This led not only to the addition of
interest on the judgment for the period, but also an assessment of

WORKMEN ’& COMPENSATION

271

damages of 10 per cent, this being the maximum under the rule
where it appears that writs of error “ have been sued out merely
for delay.”
W o r k m e n ’s

C o m p e n s a t io n — “ T o t a l

D is a b il it y ” — I n c a p a c it y

v. Warren, Supreme Court of Vermont (May 16,
1925), 129 Atlantic Reporter, page 168.—Fred E. Roller suffered an
accident on April 9, 1921, for which he was entitled to compensation
under the law of the State. Agreement was entered into between
the employee and the insurance carrier whereby Eoller was paid
$12.50 per week from April 16, 1921, during the period of total
disability. In April, 1924, the parties disagreed as to the extent of
Roller’s disability and an application was made for rehearing, as a
result of which compensation was ordered continued at the same
rate until further ordered or until the parties should agree that the
total disability had ceased. The defendant appealed from the com
missioner’s decision.
It appeared from the evidence that Roller suffered from a
“ strained knee,” the commissioner finding that osteomyelitis de
veloped in the injured leg, that seven or eight operations had been
performed and more were probable, that his general health had been
considerably impaired, and that in walking he had been obliged to
hold his foot in an abnormal position. Starting about September 1,
1923, Roller had, whenever able, spent his time at a local cigar store
and waited on trade, the proprietor paying him “ what he considered
his services worth,” averaging about $7 a week. It was defendant’s
contention that because of these activities plaintiff was only entitled
to compensation on a partial disability basis. The supreme court on
review observed that the term “ incapacity for work ” appeared in
practically all compensation statutes, and that it had come to have a
definite meaning, namely:
It means loss of earning power as a workman in consequence of
the injury, whether the loss manifests itself in inability to perform
such work as may be obtainable or inability to secure work to do.
But the lack of opportunity to work must not be due, of course, to
the servant’s fault or to general business depression.
for

W o r k —Roller

Whether the plaintiff was totally disabled for work within the
purview of the compensation law ordinarily is a question of fact de
pending upon the circumstances in the particular case, and whether
it exists in that case or not was considered a matter calling for judg
ment on the part of the commissioner of industry.
In view of the condition of the leg and the fact that constant
medical supervision would be necessary, and that the employment
was “ a matter of grace through friendship,” the supreme court ruled

272

DECISIONS OF THE COURTS

that 44it can not be said as a matter of law that the commissioner of
industries erred in finding that the employee was totally disabled
for work within the meaning of the statute.”
The award was therefore affirmed.

orkmen’ s

C ompensation— T otal D isability— P artial D isa
A wards— Gobble v. Clinch Valley Lumber

bility — C onsecutive

Co., Supreme Court of Appeals of Virginia (March 19, 1925), 127
Southeastern Reporter, page 175.—H. S. Gobble, employed by the
defendant lumber company, on August 4, 1922, jumped from a
runaway log car and fractured the left leg just above the ankle. The
hearing commissioner, whose findings were approved by the com
mission, found that 64in October of 1922 an agreement was entered
into to pay the injured $12 per week, beginning August 5, 1922, and
continuing during his disability.” He was paid the sum of $828,
covering a period of 69 weeks, on account of the inability to work
which followed the accident. The hearing was had to determine
“ the amount of loss of use of the foot that the claimant has suffered
and the amount of compensation due on account o f such loss o f use.”
The permanent partial loss of the foot was found to be 60 per cent,
and the commissioner applying the schedule of the act for partial
disabilities, found claimant entitled to compensation 44 at the rate of
$12 per week for a period of 75 weeks,” amounting to $900, on
account of the permanent injury. The sum of $828 having been
paid, a balance of $72 was due the claimant. The commission ap
proved this finding and the claimant appealed, contending that he
was entitled to compensation for temporary total incapacity, and in
addition compensation for the permanent partial incapacity.

The supreme court of appeals, speaking through Mr. Justice
Burks, said:
The workmen’s compensation act (Acts 1918, ch. 400, p. 637),
although in derogation of the common law, is highly remedial and
should be liberally construed in favor of the workman.
One of the misconceptions about the act is that section 32 fixes
the amounts to be paid for the permanent total disability of the
members therein mentioned, and that the amounts recoverable by
the workman can never exceed the sums mentioned in that section.
Section 30 provides for total incapacity, whether temporary or
permanent; section 31 applies to partial incapacity, temporary or
permanent, resulting from injury to every member of the body ex
cept those mentioned in section 32; and section 32 was said to be an
exception to section 31, 44only as to members of the body mentioned
in section 32 ” ; and as 44section 31 deals only with partial incapacity,

workm en

’s

c o m p e n s a t io n

273

section 32 must be held applicable to partial incapacity only.” The
court then decided:
In cases of accident, usually the total incapacity comes first, that
is, at the time of the accident, and the partial incapacity thereafter,
but a fair construction of the act allows the workman compensation
for both, subject to the qualification contained in section 30. The
period fixed by section 32 (o) for the loss of a foot is 125 weeks. I f
this partial incapacity be ascertained to be 60 per cent it would be
60 per cent of $12 per week, or $7.20 per week for 125 weeks, or 60
per cent of 125 weeks, or 75 weeks at $12 per week. So that upon
this basis the workman is entitled to $900 in addition to what he has
already received. The credit allowed by the commission in effect
allowed nothing for the total incapacity. In this there was error.
He should have been allowed the amount paid him for total in
capacity, and in addition thereto the amount stated above for perma
nent partial incapacity. It is immaterial that the two sums aggre
gate more than the sum mentioned in section 32 for loss of the use
of a foot, as the latter only fixed the maximum amount to be allowed
for permanent partial disability.
Eeference was made to the Georgia statute, which is practically
identical with the Virginia statute, and the statement was made by
the court that the Court of Appeals of Georgia in Jones v. Georgia
Casualty Co. (30 Ga. App. 207, 117 S. E. 467) reached the same
conclusion that the court did in this case.
The decision of the industrial commission was accordingly re
versed and the case remanded to the commission for further
proceedings.
W o r k m e n ’s

C o m p e n s a t io n — W il l f u l

U s e S a f e t y A p p l i a n c e s —Nashville,

M is c o n d u c t — F a il u r e

Chattanooga & St. Louis Ry.
v. Coleman, Supreme Court of Tennessee (March H , 1925), 269
Southwestern Reporter, page 919.—J. W . Coleman, employed as a
boiler maker by the defendant railway company, sought to recover
compensation for injuries resulting in the loss of an eye, which he
sustained in the course of his employment. On November 23, 1921,
while engaged in cutting the head of a rivet, Coleman was working
with only one helper, when he was allowed two. The second helper
not having arrived, Coleman proceeded with his work and held a
hex punch on the rivet head while the helper wielded the hammer,
the duty of the second helper being to hold a broom over the rivet
head to prevent it, or any pieces of it, from flying about the room.
The rivet head flew off, hit a pipe nearby and rebounded, striking
Coleman in the eye. The company, upon request of its employees,
had made a rule requiring the use of a broom when the men were so
engaged, and also had a further rule that:
Goggles must be worn by all workmen when chipping, using air
motors, drilling, sledging of any kind, when using emery wheels, elec

274

DECISIONS OF THE COURTS

trie welders, or any work where their duties require that their eyes
be protected from flying particles.
From a judgment awarding compensation the employer brought
error, contending that it had provided brooms for use on the work
and had provided Coleman with goggles, and that the injuries were
due to his willful failure to make use of the safety appliances.
It appeared from the testimony that claimant knew of the rules
mentioned and that brooms were to be had for the purpose of pro
tection. As to excusing the claimant the supreme court said:
We do not think that the employee can be excused for failure to
use a safety appliance at hand, when the nature of his work demands
the use of such appliance and he knew it, even though such use of
such appliance has not been required by any rule of the employer.
The statute contains no such thought. The statute provides that
there shall be no recovery if the injury is due to “ willful failure or
refusal to use a safety appliance.”
The section of the statute referred to (sec. 10, ch. 123, Acts of 1919)
provided:
That no compensation shall be allowed for an injury or death due
to the employee’s willful misconduct or intentional self-inflicted
injury, or due to intoxication, or willful failure or refusal to use a
safety appliance or perform a duty required by law.
The evidence was considered as sufficient to sustain the finding of
the lower court that the claimant knew of the rules, and the only
remaining question for the supreme court to determine was whether
the failure to use the appliances was willful, so as to deprive claimant
of compensation. On this point the supreme court said:
The effect of his testimony must be conceded to be that he used
goggles when he thought it proper, and did not use them when he
thought it was unnecessary. In other words, Coleman acted upon his
own judgment customarily about the use of goggles and was not
governed by the rule of the railway company. When he substituted
his own judgment about the matter for his employer’s rule and set
aside that rule in favor of his own notions, we think this conduct was
willful disobedience. It involved both intent and deliberation and
was not a casual, although voluntary act. According to Coleman’s
testimony the cutting of this rivet without the use of safety appli
ances was not an isolated transaction, but was of a piece with hisusual conduct. Such habitual violation of a rule, in our judgmentf
can not be anything else than willful, and this is the case before us.
The judgment of the circuit court affirming the award was accord
ingly reversed.
W o r k m e n ’s C o m p e n s a t io n
R e g u l a t e —Employer's

I n su r a n c e — R ates— P o w er of S tate

Liability Assurance Corp. v . SuccessUncle Sam Cone Co., City Court of New York, Trial Term (Febru
ary 28,1925), 208 New York Supplement, page 510.—The defendant

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

275

was engaged in the business of manufacturing ice cream cones and
was obliged by law to carry workmen’s compensation insurance.
About June 21, 1921, the plaintiff delivered an insurance policy for
the year June 21, 1921, to June 21, 1922. The rate was $1.13 per
$100 of wages expended. There being no such classification as
manufacturing ice cream cones, the policy was placed under code
No. 6504, covering food sundries manufacturing. The policy con
tained the following:
This policy is issued by the corporation and is accepted by this
employer with the agreement that the rates of premium are subject
to modification in accordance with the rate manual and rating plans
established by the compensation inspection rating board and ap
proved by the superintendent of insurance of the State of New York,
such modification, if any, to be expressed by indorsement, naming
the effective date thereof.
On March 25, 1921, before the policy was issued, the risk had been
inspected as code No. 2000, bakeries, with a basic rate of $2.18 per
$100, which rate was later reduced to $2,099, and had been approved
by the State superintendent of insurance. On April 10, 1922, the
compensation inspection rating board notified the insurance com
pany that the policy was not in accordance with the established
rate. On April 13, 1922, this company notified the defendant, and
afterwards brought an action to recover the difference between the
premium rates and for balance of premium due; from a judgment
in its favor the defendant appealed.
The policy of the State was expressed as being to “ remove the
matter of rates, premiums, and classifications from the field of
private bargaining and agreement,” and “ finally this policy was
designed to guard against rebates, discriminations, and favoritism
in rates, the effect of which would be harmful to employers as well
as to injured workmen.”
Having in mind the policy of the State, the court observed that
if the rate of the policy was lower than the so-called official rate
the insurance company should be entitled to recover the higher rate
for the period of the policy, and if the rate was higher “ the insured
should be entitled to the difference from the date of the policy.”
The court continued:
Any other conclusion would nullify the whole theory under which
the workmen’s compensation insurance rates are regulated by the
State. It would result in a practice of private rate fixing in con
flict with the provisions of the State insurance law. It would render
ineffective the language of the statute that classifications of risks
and premiums relating thereto shall not take effect until they have
been approved by the superintendent of insurance. It would en
courage a system of rebates and discriminations that would tend to
undermine the entire structure of rate making.

276

DECISIONS OF THE COURTS

There is no question as to the power of the State to regulate and
control insurance rates. Particularly is this true with respect to
workmen’s compensation insurance. The theory of the workmen’s
compensation law was that the burden of industrial accidents should
be lifted from the shoulders of the injured workmen and their de
pendents, who are least able to bear it, and placed upon industry
itself.
It was observed that it “ is not only the right of the State, but its
duty to see to it that the financial stability of insurance carriers is
maintained, and that a just and adequate system of rates and pre
miums is established and adhered to.” Judgment was accordingly
directed in favor of the plaintiff insurance company in the sum of
$462.98.

INDEX
Admiralty:
Page
Employers' liability— ------------------------------------------------------------------------------ 36-45
Workmen’s compensation________________________________________ 41-45,154-160
Aliens:
Employment as fishermen________________________________________________
9
Right to do business---------------------------------------------------------------------------------- 9-11
Arbitration, effect of acceptance_______________________________________________ 21-23
Associations:
Antitrust act____________________________________________________________ 12-16
Black list_______________________________________________________________ 15,16
Contract of employment by_______________________________________________ 11, 12
Contract of membership__________________________________________________ 14.15
Employers’ organizations as monopoly____________________________________ 12-16
Liability of unincorporated_______________________________________________ 11,12
Monopolies___________________________________________#______________ 12-16, 104
Right to appeal from rules______________________________________________17-19
Wage fixing---------------------------------------------------------------------------------------------- 14,15
Benefit funds:
Contract to furnish medical attention_____________________________________ 16,17
Railway relief association, rules of_______________________________________ 17-19
Blacklist____________________________________________________________________ 15,16
Boycott______ _______________________________________________________________ 94-97
Clayton Act--------------------------------------------------------------------------------------------------- 15,16
Conspiracy---------------------------------------------------------------------------------------------------98-104
Constitutionality of law as to—
Aliens engaging in business------------------------------------------------------------------------ 9-11
Attorneys’ fees under compensation law_________________________________ 161,162
Convict labor_______- ___________________________________________________ 30-32
Employers* liability suits by personal representative________________________35, 36
Employment offices, licensing---------------------------------------------------------------------82, 83
Exemption of property from execution for wage debt____________________ 131,132
Hours of labor on public works------------------------------------------------------------------90, 91
Locomotive cab curtains----------------------------------------------------------------- ------ 123-125
Minimum wages----------------- --------------------------------------------------------------------135,136
Occupation taxes________________________________________________________ 84. 85
Old-age pensions----------------------------------------------------------------------------------- 120-322
Penalty for nonpayment of compensation awards_________________________170-172
Picketing__________ ___________________________________________________ 116,117
Rate of wages on public works__________________________________________139-141
Third party liability under compensation act_____________________________ 238-240
Workmen’s compensation (Arizona)____________________________________ 263-267
Contempt---- ’---------------------------------------------------------------------------------- 102,103, 112-114
Contract of employment:
Agreement not to engage in competing business------------------------------------------- 19-21
Breach----------------------------------------------------------------------------------------------------- 21-24
Consideration for promise of retirement pay_______________________________ 27-29
Delivery of speech as right------------------------------------------------------------------------ 29, 30
Discharge_______________________________________________________________ 23, 24
Earned commission, continuing right to___________________________________
24
Enforcement____________________________________________ ________________
25
Enticement of employees--------------------------------------------------------------------------- 25, 26
Lifetime employment as settlement for injuries------------------------------------------- 74, 75
Oral modification________________________________________P_______________ 26, 27
Profit sharing___________________________________________________________26, 27
Property, status as_______________________________________________ 29, 30, 98-100
Retirement pay__________________________________________________________27-29
Right to perform as property right________________________________________29, 30
Statute of frauds___________________________ *------------------------------------------25
93883°— 26------ 19

277

278

INDEX

C'onvlct labor:
Page
Contract for manufactures by_____________________________________________ 30—32
Marking convict-made goods______________________________________________ 33, 34
Criminal syndicalism----------------------------------------------------------------------------------- 104-106
Employers’ associations. (See Associations.)
Employers’ liability:
Action by personal representative as constitutional________________________35, 36
Admiralty—
Acceptance of compensation benefits__________________________________ 44, 45
Assumption of risk__________________________________________________ 36-38
Maintenance and cure, right to______________________________________ 40, 41
“ Negligence ” under Federal statute_________________________________ 36—33
Repairing completed vessel___________________________________________
39
Stevedore_______________________________________________________ 38, 42-44
Vessel in “ graven dock ------------------------------------------------------------------- 41, 42
Assumption of risk-------------------------------------------------------------------------- 36-38, 61, 62
Conflict of interests of defendants-------------------------------------------------------------- 51, 52
Conflict of laws---------------------------------------------------------------------------------------- 80-82
Contract for life employment as settlement________________________________ 74, 75
Contract surgeon, liability for malpractice by______________________________ 52, 53
Contributory negligence------------------------------------------------------------------- 54, 55, 59—66
Damages________________________________________________________________ 80-82
Disease_________________________________________________________________ 78, 79
Election, effect of_______________________________________________________ 79, 80
Election under Kentucky compensation statute---------------------------------------------77, 78
Factory regulations, violation of__________________________________________45-47
Federal railroad statute—
Conflict of laws----------------------------------------------------------------------------------80-82
Contributory negligence______________________________________________ 71, 72
Course of employment------------------------------------------------------------------------ 67, 68
Interstate commerce----------------------------------------- ----------------------------------68-71
Negligence------------------------------------------------------------------------------------------67-74
Safety appliances------------------------------------------------------------------------------ 72, 73
“ Simple tool ” doctrine______________________________________________73, 74
Street railways----------------------------------------------------------------------------------70, 71
Federal statute as to seamen---------------------------------------------------------------------36-38
Horseplay-------------------------------------------- ----------------------------------------------------67, 68
Injury to third party--------------- ---------------------------------------------------------------- 47-51
Licensed employees------------------------------------------------------------------------ 48, 49, 66, 67
Medical services, malpractice in----------------------------------------------------------------- 52, 53
Medical treatment, duty to furnish------------------------------------------------------------54
Minor unlawfully employed-------------------------------------------------------------- 51, 52, 54-61
Negligence________________________________________ 36-39, 48, 49, 54, 56-58, 61-74
Release_________________________________________________________________ 74, 75
Relief department--------------------------------------------------------------------------- - --------75-77
Right of insurer to defend--------------------------------------------------------------------------51, 52
Safe place and appliances-------------------------------------------------------------------------- 59-61
Seamen, actions by---------------------------------------------------- ------------------------------- 36-38
Statute of limitations--------------------------------------------------------------------------- — 75-77
Strikers, injury due to----------------------------------------------------------- 47, 48, -64-66, 68-7C
Third party liability---------------------------------------------------------------------------- 159,160
Volunteers_______________________________________________________________ 50, 51
Workmen’s compensation acts as affecting--------- 41-45, 54, 55, 58, 59, 77-82,155,156
Employment agencies, licensing------------------------------------------------------------------------ 82, 83
Employment of labor, tax on--------------------------------------------------------------------------- 84, 85
Enticement of employees----------------------------------------------------------------------------------25, 26
Examination, licensing, etc., of—
Barbers---------------------------------------------------------------------------------------------------- 85, 86
Plumbers________________________________________________________________ 86-88
Factories, licensing, inspecting, etc.,----------------------------------------------------------------- 88, 89
Hours of labor:
Eight-hour day on public works--------------------------------------------------------- 3, 4, 89-91
Extraterritorial effect of law--------------------------------------------------------------------3, 4
Injunction:
Against engaging in competing business------------------------------------------------------ 19-21
Against interference with employment____________ 29, 30, 94-103,112-116, 119,120
Inspection of steam vessels of State------------------------------------------------------------------- 5, 6

INDEX

279

Page
Interference with employment-----------------------------------------------------15,16, 29, 30,94-102
Interstate commerce, telegraphic service as_________________ ___________________94-97
Intimidation_________________________________________________________________ 91, 92
Labor organizations:
Actions by or against-------------------------------------------------------------------------------- 92-94
119
Antitrust act______________________ _____________________________________
Boycotts________________________________________________________________ 94-97
Closed-shop agreement_________________________________________________ 114,115
Coercion of employer________________________________ ._________________ 119,120
Conspiracy_________________________________________________________ 98-104,119
Contempt_____________________________________________________ 102,103,112-114
Criminal syndicalism__________________________________________________ 104-106
Expulsion of local_____________________________________________________ 108-110
Fines against employers by_____________________________________________100, 101
Forced consolidation of__________________________________________________ 97, 98
Interference witii employment---------------------------------------- 94-102,114-116,119, 120
Interference with mails________________________________________________ 102,103
Jurisdictional awards__________________________________________________ 101,102
Liability for damages__________________________________________________ 110, 111
Membership, right to_________________________________________ 106,107,110-112
Monopoly---------------------------------------------------------------------------------------- 101,102,119
Picketing_________________________________ ________________________ 104,116, 117
Procuring discharge of nonmembers_____________________________________ 114,115
Refusing transfer card________________________________ *________________106,107
Rules, court review of----------------------------------------------------------------- 97, 98,108-112
Secondary boycotts________________________________ i___________ ^__________94-97
Seniority rights of members____________________________________________110, 111
Strike, existence of_____________________________________________________117-119
Violation of injunction_______________________________________ 102,103,112-114
Libel, use of epithets as___________________________________________________ 112-114
Libel, warning by employer as___________ _________________________________ ____91, 92
Licensing. (8ee also Examination, etc.)
Licensing factories, power of city as to____________________ *__________________ 88, 89
Medical attention, duty of employer under contract____________________________ 16,17
Monopolies_______________________________________ _______ _____ 12-16, 30-32,101,102
Old-age pensions, constitutionality of law as to____ _______________________120-122
Public work_____________________________________________________________3, 4, 89-91
Railroad Labor Board:
Effect of award by------------------------------------------------------------------------------------21-23
Powers, jurisdiction, etc., of____________________________________________ 122,123
Railroads:
Locomotive cab curtains, law requiring___________________________ _______ 123—125
State and Federal regulation___________________________________________123-125
Strike as justification for delay of cars__________________________________ 125,126
Retirement of public employees_________________________________ _______ 4, 5,120-122
Service letter________________________________________________________________34, 35
Strike:
As cause of delay in return to work_____________ _______ 1------------------------- 21-23
As justification for detention of cars-------------------------------------------------------- 125,126
Notice of, in advertisements for labor___________________________________ 117-119
Sunday labor, operation of grocery store as_________________________ 126-128,141,142
Wages;
Assignment of future earnings_____ _________________________________ _____
128
Bonus---------------------------------------- -------------------------------- ;________________ 128-131
Contracts for advance payments.-_______________________ ________________ 132-134
Debt earned and payable in foreign country— ----------------------- —_—--------- 134,135
Exemption of property from execution for_----------------- - --------------------------- 131, 132
Garnishment_____________________________ _______________________ 128,132-135
Minimum wage law, constitutionality of________________ __________— ---- 135,136
Payment in scrip------------------------------------ ----------------------------------------------- 136,137
Payment of less than sum claimed--------------____------------------------------ -— - 137,138
Payment on discharge______—--------------------------- ------------- -— ----- ---- -— 138,139
Rates on public works--------------------------------------------------------------------------- 139-141
Weekly day of rest----- ----------------------------------------------- --------------------------------- 141-143

280

INDEX

Workmen’s compensation:
Page
Accident_____________________________________________ 144-154, 213-216, 222, 223
Admiralty_______________________________________________________ 41-45, 154-160
Alien beneficiaries-------------------------------------------------------------------------------160,161
Arising out of and in course of employment------ 153,154,180-182,189,190, 222-238
Attorneys’ fees---------------------------------------------------------------------------------------161,162
Awards, basis, etc., of________ 162-180, 201-203, 219-221, 240-242, 249-255, 261, 262
Beneficiary adjudged insane---------------------------------------------------------------------196
Beneficiary as employee________________________________________________ 208, 209
Beneficiary reaching noncompensable age_______________________________ 178,179
Bonus as basis of awards______________________________________________ 165,166
Casual employment________________________________________________ 180-183, 209
Concurrent or consecutive benefits_____________________________ 224-226, 272, 273
Congenital defect----------------------------------------------------------------------------------- 253, 254
Contractor___________________________________________________ 210-213, 217, 218
Coverage______________________________________________________________ 184-194
Death of beneficiary___________________________________________ 169, 170, 259-261
Dependency__________________ ________________________ 177,178,194-205, 224-226
Disease as) compensable injury-------------------------------------------------------------- 145—149,
153,154,179,180, 213-216, 218, 219, 222, 223, 226, 227
Disobedience of orders-----------------------------------------------------------------------------227-230
Earnings in excess of included maximum------------------------------------------------186,187
Election________________________________________________ 79, 80,155-159, 240-243
Election under Kentucky statute__________________________________________77, 78
Employee___________________ -____________ 183, 184, 189-192, 206-210, 258, 259
“ Employees of the United States ”_____________________________•------ 6-8, 208, 209
Employers-------------------------------------------------------------------------------- 210-213, 230, 231
Employers’ liability____________________________________________________ 213-217
Exclusiveness of remedy--------------------------------------------------------------------------213
Exemptions__________________________________________________ 186,187, 234, 235
Extraterritoriality---------------------------------------------------------------- ------------------ 243-245
Failure to pay award----------------------------------------------------------------------------- 170-172
Farmers exchanging work__________________________ __________________ 183,184
Fraud and misrepresentation as affecting release_________________________ 269, 270
Freezing as accident---------------------------------------------------------------------------------15
Frivolous appeals------------------------------------------------------------------------------------ 270, 271
“ Gift ” as affecting right to recover damages___________________________ 242, 243
Going to and from work__________'____________________________________ 231, 232
Gratuity, payment of__________________________________ _______________ 259-261
173
“ Gross inadequacy ” as basis of review of award___________________________
Hazardous occupations------------------------------------------------------------------------ 188,189
Hernia________________________________________________________________ 174,175
Horseplay, quarrels, etc______________________________________ 188,189, 232-234
Injury-------------------------------------------------------------------------------------------------- 218-221
Insurance, failure to provide---------------------------------------------------- - 210-213, 217, 218
Interstate commerce-------------------------------------------------------------------------------216, 217
Judgment on unpaid installments_____________________________________ _ 172,173
Lessor as employer------------ -------------------------------------------------------------------- 210-213
Limitation on claims------------------------------------------------------------------------------- 259-261
Lump-sum settlements---------------------------------------------------------------------------- 254, 255
Manager and stockholder as employee___________________________________ 206, 207
Medical examination, refusal of_________________________________________ 256, 257
Medical reports, failure of physician to furnish_____________________ ___ 257, 258
Medical services, dentistry as------------------------------------------------------------------ 255, 256
Minors unlawfully employed---------------------------------------------- 54, 55, 58, 59, 258, 259
Minors’ wages, anticipated increase of__________________________________ 168, 169
Neurasthenia_________________________________________________ 218, 219, 262, 263
Notice, failure to give-------------------------------------------------------------------------------259
Occupational disease------------------------------------------- 78, 79,152,153,162,163, 213-216
Officials----------------------------------------------------------------------------------- 192-194, 234, 235
Orders of commission, court review of_____________ _____________________ 267-269
Partial disability------------------------------------------------------- 174,175, 205, 206, 272, 273
Partners---------------------------------------------------------------------------------- 191,192, 207, 208
Physicians’ fees------------------------------------------------------------------------------------- 257, 258
Posthumous child_________________ ___________________________________ 178,179
Powers of commission--------------------------------- 8,162,163, 198-200, 238-240, 263-269
Preexisting condition----------------------------------------------------- 219-221,223,224,249-254

INDEX

281

Workmen’s compensation—Continued.
Page
Proximate cause------------------------------------------------------------------------------ 218, 219, 221
Public employees---------------------------------------------------------------------- 184,185,190-194
Quarrels. * (/See Horseplay.)
Recurrence of injury------------------------------------------------------------------------ _-------221
167
Refusal to work--------------------------------------------------------------------------------------Release--------------------------------------------------------------------- -------------- 159,160, 2G9, 270
Remarriage of widow---------------------------------------------------------------- 176-179,195, 196
Review of awards. 167,168,173,175,176,179,180,196-200, 232, 233, 261, 262, 267-269
Safety appliances, failure to use____________________________________ ___ 273, 274
Seamen on Shipping Board vessels, status of____________________ ___
6-8
Seasonal employments-------------------------------------------------------------------200 , 201
249-254
Second injury------------------------------------ ------------------------------------------Severability of void sections of la*v-------------------------------------------- .----263-267
206, 207
Stockholder (chief) and manager as employee----------------------------------Subrogation of rights----------------------------------------------------------------------------- 243-249
Teacher attending institute_______________________________ ;____________ 237, 238
Term of payments_____________________________________________________ 203, 204
Third-party liability------------------------------------------------------------------------------ 238-249
Tips as basis of award_____________________________________________ 16 S, 188,189
Total disability_______________________________________________ 261-263, 270-274
Two or more employers_______________________________ 162,163, 201-203, 234, 235
8
United States Employers Compensation Commission------------------------------------Vested rights_____---------------------------- ------------------------------------------ ------■
— 169,170
Washing up after work employment
------- ------------------------ ------------- — 235-237
Willful miscond ^
_______________________________ __
274
Workmen’s associations
_____________ ^_274—276
Workmen’s compensation as employers.---------------------------------------------------

Full text of Decisions of Courts and Opinions Affecting Labor : Decisions of Courts and Opinions Affecting Labor, 1925 : Bulletin of the United States Bureau of Labor Statistics, No. 417

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