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

BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner

BULLETIN OF THE UNITED STATES \
M
BUREAU OF LABOR S T A T I S T I C S /................. NO.
LABOR

LAWS

THE

UNITED

STATES

SERIES

DECISIONS OF COURTS AND
OPINIONS AFFECTING LABOR

1926

JUNE, 1927

UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON
1927

AAA

444

ADDITION AL COPIES
OF THIS PUBLICATION MAY BE PROCURED FROM
THE SUPERINTENDENT OF DOCUMENTS
GOVERNMENT PRINTING OFFICE

WASHINGTON, D. C.
AT

45 CENTS PEE COPY

ACKNOWLEDGMENT

This bulletin was prepared by Lindloy D. Clark and Charles F.
Jackson, of the United States Bureau of Labor Statistics.
in

CONTENTS

Page

Introduction.__________________________________________________________
1, 2
Opinions of the Attorney General______________________________________
3, 4
Hours of labor— eight-hour law— pilots— Panama Canal._______________
3
Workmen’s compensation— United States Employees’ Compensation Com
3, 4
mission— powers— medical and surgical aid___________________________
Decisions of courts affecting labor_____________________________________ 5-259
Aliens— seamen— naturalization— residence (In re Jansson)______________
5,6
Contract of employment:
Bonus—
employment at will (Andrews v. Belleman)____________________
6
rights of discharged employee (Pontius Shoe Co. v. Lamberton) _
6, 7
“ Breach ” — dissolution by death of partner (Shumate v. Sohon et al.) _
7, 8
Collective agreement— recovery for wrongful discharge (St. Louis, B.
& M. Ry. Co. v. Booker)_________________________________ ______
9
Discharge for incompetency— term— implied conditions (Robertson
10
et al. v. W olfe)--------------------------------------- ----------------------------------Employee’s invention— rights of employer (Toledo Machine & Tool
Co. v. Byerlein)-------------------------------------------------------------------------- 10-12
Enforcement—
injunction to prevent discharge (Hewitt v. Magic City Furniture
& Mfg. C o.)________________________________________________ 12,13
power over subcontractor— specific performance (Dahlstrom Me
tallic Door Co. v. Evatt Const. Co.; Evatt Const. Co. v. Dahl
strom Metallic Door Co.; Eliot v. Dahlstrom Metallic Door Co.)- 13, 14
Engaging in similar business— injunction— trade secrets (Ice Delivery
Co. of Spokane v. Davis)------------------------------------------------------------- 14, 15
Enticing laborers— construction of statute (Shilling v. State)_______
16
Life employment— liability of promoters— consideration— breach (Mt.
Pleasant Coal Co. et al. v. W atts)---------------------------------------------- 16, 17
Promise to meet future wage increase— evidence (Golden v, Salkeld
Coal C o.)________________________________________________ ______ 17, 18
Term— monthly contract— discharge— suit to recover wages (Crater
Oil Co. v. Voorhies)--------------------------------------------------------------------18,. 19
Employers’ liability:
Admiralty— stevedore— negligence of fellow servant— Federal statute
(International Stevedoring Co. v. Haverty)-------------------------- 19, 20
Assumption of risk— tuberculosis caused by working in unhealthful
place (Wager v. White Star Candy Co. (In c.))----------------------------20, 21
Competent fellow servants—
employment of foreigners — safe place to work — negligence
(Courtois v. American Car & Foundry C o.)—................... ....... 21, 22
intoxicated employee — negligence — contributory negligence
(Reed v. K och )____________________ _—.— -------------------------23

CONTENTS

Employ era’ liability— Continued.
Page
Detention of employee in office — false imprisonment (Weiler v.
Herzfeld-Phillipson C o.)______ _______ __________________________
24
Duty of employer to guard against strikers— negligence (St. LouisSan Francisco Ry. Co. v. M ills)_______________________________ 24-26
*‘Employee” —
night watchman furnished by third party (Tilling v. Indemnity
Ins. Co. of North America)........... ................................................ 26, 27
status — substitute employee — authority to hire (Mathis v.
Western & A. R. R .)_______________________________________ 27, 28
Employer sending sick employee home — negligence — damages for
death (Tullgren v. Amoskeag Mfg. C o.)............. ............................... 28, 29
Interstate commerce— effect of workmen’s compensation act— election
(Adams v. Kentucky & West Virginia Power C o.)........... ..................29, 30
Minor unlawfully employed— misrepresentation of age— workmen’s
compensation (Knoxville News Co. v. Spitzer)_______ ____________ 31, 32
Negligence—
contributory negligence— evidence— burden of proof (Hussey v.
Boston & M. R. R .)............................ '_______________________32, 33
failure to use way provided (Bennett v. Powers)_______________ 33, 34
proximate causa— use of paint gun (Atlantic Coast Line R. Co.
v. W heeler)________________________________________________ 34, 35
Railroad companies—
Federal statute—
asumption of risks (Looney v. Norfolk & W. Ry. C o.)_____36-38
contributory negligence (Talbert v. Chicago, R. I. & P.
Ry. C o .)----------------------------------------------------------------------- 38, 39
death of car inspector— measure of damages (Louisville &
N. R. Co. v. Wingo’s Adm x.)_________________ __________39-41
jeffect of judgment under State statute (Chicago, R. I. &
P. Ry. Co. v. Schendel; Same v. Elder)_________________ 41-43
employee killed by special officer of the company— negligence
(Southwell v. Atlantic Coast Line R. C o .)______________43-45
industrial police (Feaster v. Southern Ry. C o.)----------------45,46
limitations— appointment of administrator (Reading Co. tr.
Koons)__ ______________________________________________46,47
making repairs — assumption of risk — proximate cause
(Minneapolis, St. P. & S. S. M. Ry. Co. v. Goneau)_____47-49
negligence— evidence (Chicago, M. & St. P. R y. Co. v
Coogan)___________________________ _______ ____________49-51
release by injured workman— effect on claim of survivor
(Goodyear v. D avis)___________________________________ 51, 52
injury— proximate cause (Weigand v. Chicago, R. I. & P. Ry. Co.) _ 52, 53
negligence— hospital treatment— damages (Baker v. Adkins) — 53, 54
strike breaker injured by assault— failure of employer to give
notice of strike— negligence (Dell v. Lancaster)_____________54, 55
Safety laws— covenant not to sue— release of one tort feasor (Pacific
States Lumber Co. v. Bargar)___________________________________ 55, 56
Seamen—
Federal statute— limitation— what statute governs (Engel v.
D aven port)._______________________________________________ 56,57
safe place— assumption of risk— construction of statute (Zinnel
v. United States Shipping Board Emergency Fleet C orp.)------58, 59
Workmen’s compensation— accidental injury— poisonous gases— evi
dence (Midland Coal Co. v. Rucker’s Administrator)_____________59, 60

CONTENTS

Employers’ liability for acts of employees:
Industrial police— course of employment— negligence (Wiley v. Pere
Marquette Ry. C o.)_____________________________________ ;______ 60,61
Negligence— contributory negligence— minor (D'AIlesandro et al. v.
Bentivoglia et al.)______________________________________________
61
State police acting as strike guard— status as employees (St. Louis
Southwestern Ry. Co. of Texas v. Hudson)_____________________ 61-64
Employment offices—licensing and regulation— powers of commissioner of
labor— constitutionality of statute (Ribnik v. McBride, State Commis
sioner of Labor)_____________________________________________________
64
Employment service— monopoly— interference with interstate commerce—
shipping of seamen— antitrust act (Anderson v. Shipowners' Associa
tion of the Pacific Coast)____________________________________________64-67
Examination, licensing, etc., of occupations— restriction of employment—
accountants— constitutionality of statute (Frazer et al. v. Shelton)____67, 68
Hours of labor of women— bookkeeper in bank— nine-hour day— construc
tion of statute (Ex parte Carson)____________________________________
69
Hours of service— railroads— yardmasters— Federal statute (Atchison, T.
& S. F. Ry. Co. v. United States)____________________________________ 69, 70
Labor organizations:
Collective agreement—
refusal to use nonunion millwork— boycott— monopoly— interfer
ence with interstate commerce (United States v. Brims)______ 70-72
seamen— contract of arbitration (The Howick Hall)___________ 72, 73
Conspiracy— extortion of money from contractors (People v. Walsh
et al.)_____________________________ _____ _______________________ 73-75
Interference with employment— discrimination against outside con
tractors— injunction (Barker Painting Co. v. Brotherhood of Paint
ers, etc.)________________________________________________________ 75-77
Penalty for calling strike— constitutionality of statute (Dorchy v.
State of Kansas)_______________________________________________ 77, 78
Picketing—
coercion— injunction (Jefferson & Indiana Coal Co. v. M arks)-- 78, 79
injunction (Public Baking Co. (Inc.) v. Stern)_________________ 80, 81
injury to business— injunction (F. C. Church Shoe Co. v. Turner
e t a L ) - - ___________________________________________________ 81-83
service of process— jurisdiction— construction of statute (Salitra
et al. v. Borson et a l.)______________________________________ 83, 84
Refusal to work on nonunion products— injunction (Bedford Cut
Stone Co. v. Journeymen Stone Cutters Assn. of North America)- 84-87
Revocation of charter— property rights (Centralia Labor Temple Assn.
v. O'Day e ta l.)_________________________________________________ 87, 88
Rules— refusal to pay strike benefits— powers of officials of unions
(Brotherhood of Railroad Trainmen v. Barnhill)_________________
88
Strikes—
monopolies— interference with interstate commerce (Coronado
Coal Co. v. United Mine Workers of America)_______________ 89-91
picketing— injunction— “ clean hands” (Forstmann & Huffman
Co. v. United Front Committee of Textile Workers)_______ 91-93
violation of injunction— liability for injuries— receiver— serv
ice— writ of prohibition (District No. 21, United Mine Workers
of America v. Bourland, chancellor)_________________________ 93, 94

VIII

CONTENTS
Page

Licensing business— restaurant keeper— revocation of license without
hearing— city ordinance— due process of law (Angelopoulos v. Bottorff,
city manager)--------------------------------------------------- ------------------------------- 94, 95
Licensing occupations:
Architect— taxation— contracts (Wolpa et al. v. Ham bly)__________ 95, 96
Electrical contractors— constitutionality of statute (Berry et al. v.
City of Chicago et al.)__________________________________________ 96, 97
Mechanic’s liens— chattel mortgage— rank (Hockaday Auto Supply Co. v.
Huff) (Valley Securities Co., intervener)___________________ __________97-99
Public control of business— sale of oil and gasoline by city— constitution
ality of ordinance (Mutual Oil Co. v. Zehrung et al.)_______________ 99, 100
Railroad companies— strike as cause of delay in transportation-—liability
(Ritchie v. Oregon Short Line R. C o.)_____________________________ 100, 101
Railroads— equipment— State and Federal regulations (Napier v. Atlantic
Coast Line R. C o .)_______________________________________________ 102, 103
Wages:
Assignment—
contractor’s bond (Hartford Accident & Indemnity Co. v. Board
of Education)_____________________________________ ______ 103, 104
fraud— parol evidence (Flood v. Empire Investment C o .)____104, 105
Assignment of future earnings— effect on judgment— “ public officer”
(Walker v. R ich)______________________________________________ 105-107
Contract of employment— employee absent on own business (Archer
107
Lumber Co. v. Hall)____________________________________ _______
Garnishment— exemptions— proof— subrogation (Gulf, M. & N. R.
108
Co. v. Sanders)_____________________________________ ____________
Payment—
constitutionality of statute— imprisonment for debt (Ex parte
Oswald)--------------------------------------------------------------------------- 108, 109
suit after statutory demand— attorney’s fees (Nirschl v.
Nirschl)------------------------ ------------------------------------------------- 109,110
Payment in scrip— redemption in cash— construction of statute (Holli
day v. Elkhorn-Piney Coal Mining C o.)______________________ 110, 111
Preference— precedence over prior liens— construction of statute
(Turner v. Randolph)------------------------------------------------------------- 111, 112
Prevailing rate in locality— constitutionality of statute (Campbell v.
City of New York) - _______________________________________ ___ 112-114
Reduction by employers— railroad labor board (Schuppan v. Peoria
Ry. Terminal C o.)____________________________________________114,115
Seamen—
admiralty— contracts— application of statute to foreign seamen
(The Strathlorne, Van Der Liet v. Burrel & Sons)________ 115, 116
discharge without cause— action for breach of contract (United
States Steel Products Co. et al. v. Adams, The Steel Trader) _ 116-118
double wages for deferred payment— libel (Mandelin et al. v.
Kenneally etal., The Charles Whittemore)__________________ 118,119
“ strikers ” — deserters—forfeiture of wages (United States v.
Smith et al.)_____________________________________________ 119, 120
“ watches ” — construction of statute (O’Hara et al. v. Luckenbach
S. S. C o .)____________________ _______ — - ............- — — 120,121
Time of payment— amount— action for nonpayment— penalty— con
stitutionality of statute (Deardorf v. Hunter)__________________ 122,123
Trade checks— rights of third party (Moss Federal Coal Co. et al v.
R hea)____________ _______________________ ________ — ..............123,124
Weekly day of rest— constitutionality of statute (State v. P o co ck )____124,125

CONTENTS

Workmen’s compensation:
Accident—
Page
bruise— freezing— infection (Mauch v. Bennett & Brown Lum
ber C o .)___________________________________________________
125
126
cumulative effect of repeated acts (Aldrich v. D o le )___________
disease—
anthracosis (St. Louis Mining & Smelting Co. v. State Indus
trial Commission)__ ________________________________ 126-128
pneumonia (Jones v. Philadelphia & Reading Coal & Iron
C o.)-------------------------------------------------------------------------- 128,129
proximate cause (New River Coal Co. v. F iles)_________ 129, 130
intoxication as cause— burden of proof (Shearer v. Niagara Falls
Power C o .)----------------- ----------------------------------------------------130, 131
notice—benefits unpaid at time of death— vested rights (Roney
131
v. Griffith Piano Co.) .......................................................................
occupational disease—
aniline poisoning— construction of statute (Sokol v. Stein Fur
Dyeing Co. et a l.)-------------------------------------------------------132
tuberculosis (iEtna Life Ins. Co. t>. Graham et al.)_____ 132, 133
violation of statute— timberman operating mine car (Pokis v.
Buck Coal C o .) _________________________________________ 133, 134
Accident arising out of employment— emancipation of minor— depend
ents— evidence (Smith v. Leslie)______________________________ 134, 135
Admiralty—
jurisdiction—
agreement under State law— status of diver (Millers* Indem
nity Underwriter v. Braud et a l.)____________________ 135,136
“ maritime contract” — upholsterer on river boat (Johnson
v. Swonder)_________________________________________ 136,137
waiver of rights under admiralty law— constitutionality of
statute (Christensen v. Morse Dry Dock & Repair C o.)- 137, 138
longshoremen— injury on dock (Shea v. State Industrial Accident
Commission)_____________________________________________ 138-140
Agreement— waiver of provisions of law— review (Hartford Accident
& Indemnity Co. v. Industrial Commission)________________ ___ 140,141
Alien beneficiaries—
appeal to courts— constitutionality of statute (Liimatainen v.
State Industrial Accident Commission et al.)______________141,142
treaty rights— constitutionality of statute (Liberato v. Royer) _ 142,143
Award—
additional award for retraining (Tibbitts v. E. G. Staude Mfg. Co.
et al.)......................... ........................................................................
144
basis—
concurrent employments— average weekly earnings (Juan’s
C ase)----------------------------------------------------------------------- 145,146
multiple injuries— percentage of disability— permanent par
tial following temporary total disability (Mills v. Mills &
C on n elly)------- ---------------------------- -------- --------------------146-148
permanent partial disability— multiple injuries— consecutive
awards (Hinley t>. Brooklyn Heights R. C o.)_____:______
148
permanent total disability— commutation of benefits to dis
eased workman— life expectancy (Pettinelli v. Degnon
Contracting C o .) ____________________________________ 148, 149

CONTENTS

W orkmen’s compensation— Continued.
Award— Continued.
Page
commutation— jurisdiction of courts— construction of statute
(Edwards v. Doster-Northington Drug C o .)_______________ 149-151
death of beneficiary— subsequent and vested rights (Sea Gull
Specialty Co. et al. v. Snyder)____________________________ 151, 152
factory regulations— violation— penalty (Cream City Foundry
Co. v. Industrial Commission)____________________________ 152,153
penalty for nonpayment— enforcement— constitutionality of stat
ute (Robinson v. State ex rel. T aylor)____________________ 153,154
penalty for willful misconduct of employer— representation—
construction of statute (Gordon v. Industrial Accident Com
mission) _________________________________________________ 155, 156
permanent partial disability—
ability to work— evidence (St. Louis & O’Fallon Coal Co. v.
Industrial Commission)---------------------------------------------- 156-158
degree of impairment (Gross v. Hudson Reade Corporation) _
158
release— review— construction of statute (United States Casualty
Co. et al. v. Smith)------------------------------------- ---------------------159, 160
remarriage of widow—
effect of void marriage (Gulf States Steel Co. v. Wither
spoon) ----------------------------------------------------------------------160, 161
effect on right of child (Sumner Sollitt Co. v. Sheely)____161, 162
review—
conclusiveness of commission’s findings— constitutionality of
statute (Booth Fisheries Co. v. Industrial Commission of
Wisconsin)________________ ____ ______________________ 162, 163
jurisdiction of commission— res judicata (Klum v. LutesSinclair C o.)________________________________________ 163,164
temporary total disability— permanent partial disability (Texas
Employers’ Ins. Assn. v. M oreno)-------------------------------------- 164, 165
uncoordinated vision— loss of sight (Suggs v. Ternstedt Mfg.
C o .) _____________________________________________________165, 166
Award to minor— jurisdiction of industrial accident board— accord and
satisfaction— suit by father— constitutionality of statute (Keller v.
Texas Employers’ Ins. Assn.)--------------------------------------------------- 166,167
Casual employment—
average weekly wage (Flynn v. Carson et al.)------------------------ 168, 169
course of employment— construction of insurance policy (Oil
men’s Reciprocal Assn. v. Gilleland)------------------------------- 169, 170
loaned employee (Lecker v. Valentine et al.)-------------------------- 170-172
Claim—
limitation—
death of beneficiary— rights of dependents (Moss v. Standridge)______ ____________________________ ______ _____ 172,173
disease (Campbell v. Industrial Commission of Ohio)____173, 174
progressive injury— settlement (City of Hastings v. Saun
ders)----------------------------- ---------------------------------------------174
" new and further disability ” — laches—representations by insur
er’ s physician (Hutchinson Lumber Co. v. Industrial Accident
Commission of California)_______________________________ 175, 176
notice— payment of burial expenses— construction of statute (Bar
ber v. Estey Organ C o.)___________________________________ 176, 177
Contractor— liability of principal— “ third party ” (Catalano v. George
F. Watts C orp.)......................... .................................. ............................
177

CONTENTS

Workmen’s compensation— Continued.
Coverage—
Page
employment of three or more persons— construction of statute
(Guse v. Industrial Commission et al.)____________________ 177, 178
farm laborer— insurance policy (Hillman v. Eighmy)________ 178, 179
“ hazardous occupation ” — sawing wood for fuel— farm labor
(Freeman v. State Industrial Accident Commission)_________
179
municipal corporation— construction of statute (Texas Employ
ers’ Ins. Assn. v. City of Tyler)___________________________ 180, 181
Death following disability— proximate cause— evidence—failure to
file claim— reasonable excuse— lump sum (Georgia Casualty Co. v.
L ittle )___ _______________________________________________ _
181, 182
Dependency—
rights of widow and after-discovered child by prior marriage—
review— retroactive award (Parker v. Industrial Commission) 182, 183
suspension of contributions to wife (American Smelting & Refin
ing Co. v. Industrial Commission of Utah)________________ 183, 184
“ wholly dependent” — construction of statute (London Guaran
tee & Accident Co. (Ltd.) et al. v. Industrial Commission) _ 184, 185
Dependents— family status— subsequent marriage (Casady v. State
185
Industrial Accident Commission)_____________________________
Election— notice to employees (Holland v. Stuckey)______________ 186, 187
Employee—
assisting in making emergency repairs to highway (Yourzak v.
Town of Platte)____________________________________________
187
coverage— working partner (Lyle v. H. P. Lyle Cider & Vinegar
Co. et al.)________________________________________________ 188,189
deputy sheriff— construction of statute (Monterey County v.
R ader)---------------------------------------------------------------------------- 189,190
independent contractor— casual employment (Bosel v. Henderson
Holding C o .)_____________________________________________ 190, 191
liability of partners— injury— evidence (Klemmens v. North
Dakota Workmen’s Compensation Bureau)_______________191-193
volunteer (Ross v. Independent School Dist. No. 1 of Madison
et a l.)--_________________________________________________ 193,194
Employers’ liability—
interstate commerce— train rider (Michigan Central R. Co. v.
Industrial Commission)-------------------------------------------------------194
195
occupational disease (Gordon4v. Travelers’ Ins. C o.)___________
suits for damages— transitory actions— nonresident suitor— right
of action (Hermann*;. Franklin Ice Cream C o.)___________ 195, 196
Employment— premises of employer (Bristows. Department of Labor
and Industries of State of Washington)_______________________
197
Extraterritoriality—
jurisdiction—
contract for service outside State (Krekelberg v. M. A. Floyd
Co.) _ _____________________________________________ 197,198
place of making contract and of service (Norman v. Hart
man Furniture & Carpet C o.)________________________198, 199
proceedings in State without compensation act (Johnson v.
Carolina, Clinchfield & Ohio Railway C o.)___________ 199, 200
Federal statute—injury of Federal employee— right of action against
third party— effect of receipt of compensation (Lassel v. City of
Gloversville)_________________________________________________ 200, 201

XII

CONTENTS

Workmen’s compensation— Continued.
Pag*
Hazards of business—injury to clerical employee— proximate cause
(Kent v. Kent et al.)________ _______________ _________________ 201,202
Injury—
death from intervening cause (Schafer & Olson v. Varney)____ 202, 203
gross negligence— exemplary damages— common-law rights (Cas
tleberry v. Frost-Johnson Lumber C o.)________________ _
203, 204
injury to wooden leg (London Guarantee & Accident Co., (Ltd.),
v. Industrial Commission)___________________ :_______________
204
loss of eye— disfigurement— independent awards (Sustar v. Penn
Smokeless Coal C o.)_____________________ _______________ 204-205
loss of one phalanx of finger— construction of statute (Bell v.
Merchants’ Cotton Oil Co. In re Bell)----------------------------- 206, 207
notice—limitation— prejudice (Itzkowitz v. Finer & Bachrach). 207, 208
occupational disease— inhaling foreign matter— preexisting dis
ease (Dumbrowski v. Jennings & Griffin C o.)_______________ 208, 209
preexisting condition— causal connection— evidence (Gausman v.
R. T. Pearson C o.)------------------------------------------------- ______ 209-211
preexisting disease— notice— evidence— apportionment of award
(Elkhorn Coal Co. v. Combs)____________________________ _ 211-213
Injury arising out of employment—
employee killed by policeman (Sure Pure Ice Co. v. Industrial
Commission et al.)____________________________________...... 213, 214
erysipelas— proximate cause (Bagley’s Case)___------------------- 214,215
preexisting condition— epilepsy (Marion Machine Foundry &
Supply Co. v. Redd)-------------------------------------------------------- 215,216
visiting during lunch time (Babineau’s Case)__________________
21
Injury arising out of and in the course of employment—
accident— death from hemorrhage— preexisting condition (Frandila v. Department of Labor and Industries)______ _______ 217, 218
accidental discharge of officer’s revolver— hearsay evidence
(McDaniel v. City of Benson et a l.)______________________ 218, 219
act of God— employee killed by lightning (United States Fidelity
& Guaranty Co. v. Rochester et a l . ) ----------------- -------------- 219, 220
asphyxiation— evidence— inferences (Public Service Co. of Colo
rado v. Industrial Commission)---------------------------------------- 220, 221
causal connection— evidence— limitation (Smith v. Primrose
Tapestry Co.,) (Maryland Casualty Co., intervener)_______ 221, 222
city employee bitten by dog (Ryan v. City of Port Huron et al.) _ 222, 223
disobedience of orders (Tiralongo v. Stanley W orks)__________ 223-225
employee shot by fellow worker— causal connection (Franklin*
Coal & Coke Co. v. Industrial Commission)_______________ 225, 226
freezing— proximate cause (Brady v. Oregon Lumber C o .)____ 226-228
going to and from work (Thetford v. London Guarantee & Acci
dent Co. (L td.))____________________________ _______ — — 228,229
hernia—-^evidence (Wilkins v. Ben’s Home Oil C o .)__________ 229, 230
preexisting disease—
death— status of widow’s claim (Biederzycki v. Farrell
Foundry & Machine C o.)------------------------------------------- 230-232
paresis— review by court (Walker v. Minnesota Steel Co.) _ 232, 233
proximate cause— review by court (United States Casualty Co. v.
Matthews)----------------------------- ----------------------------------------- 233,234

CONTENTS

XIII

Workmen’s compensation— Continued.
Injury by third party—
Pag®
action by dependents— limitation (Clough & Molloy v. Shilling) _ 234, 235
election— subrogation— rights of injured minor after reaching
majority—limitations (McKee v. White)__________________ 235, 236
ineffective suit-—loss of right of subrogation— ignorance as excuse
(Employers’ Indemnity Corp. v. Felter) --------------------------- 236, 237
subrogation— settlement (Wisconsin Mutual Liability Co. v.
Industrial Commission)_________________________________ 238, 239
Injury in course of employment—
infection of open sore— construction of statute (Jasionowski v.
Industrial Commission of Ohio_____________________________
239
240
returning home from work (Cymbor v. Binder Coal C o.)______
Injury “ in or about” factory— repairing truck used in business (Wise v.
Central Dairy Co.) - ___________________ ______________________ 240, 241
“ Injury sustained in the course of employment” — horseplay (Cassel v. United States Fidelity & Guaranty C o.)_________ _______ 241, 242
Jurisdiction— enforcement of law by courts of other States (Texas
Pipe Line Co. v. W are)_______________________________________ 242-244
Lump-sum judgment— objective examination— use of X ray
(Reeder v. Thompson et al.)_________________________________ _ 244, 245
Lump-sum settlement— ‘ ‘compensation’ ’— medical services (Melcher’s
C ase)_________________ - ..................................................- ............- 245,246
Medical and surgical aid—
refusing operation—
(Palloni v. Brooklyn-Manhattan Transit C orp.)_________ 246, 247
discontinuance of compensation— judicial notice (Southern
California Edison Co. v. Industrial Accident Commission
of State of California et al.)__________________________ 247-249
“ unusual cases” — construction of Massachusetts law (Moore’s
C a se ).—________________________________________________ 249,250
Medical fee— requiring payment— judicial powers of commission (Bee
250
Hive Mining Co. et al. v. Industrial Commission of Virginia)_____
Medical services— employment by claimant (Koch v. Lehigh Valley
R. C o . ) ___________ ____ j ________ _____________________________
251
Minor illegally employed—
action for damages— defenses (William B. Tilghman Co. (Inc.),
v. Conway)-------------------------------------------------------------------- 251-253
treble damages— constitutionality of statute (Town of New
Holstein v. Daun)_______________________________________ 253, 254
Payment of debts out of commuted award— power of commission—
construction of statute (Los Angeles County v. Industrial Accident
Commission et al.)______________________________________________
254
“ Plant” — city employee—injury by third party— construction of
statute (Shockey v. Royal Baking Powder Mfg. Co. et al.)_______
255
Second injury—
loss of second member—total disability (Nease v. Hughes
Stone C o .)___________________ ___________________________ 255,256
prior partial incapacity (American Mutual Liability Ins. Co.
et al. t>. Brock)______ _____ _____ ____ ________ ____________ 256, 257
Settlement and release— continuing disability— minor (Evansville
Pure Milk Co. v. Allen)________________________________________
258
Workmen’s compensation insurance— surety on contractor’s bond—
liability for insurance premium (State v. Padgett et al.)___________ 258, 259

BULLETIN OF THE

U. S. BUREAU OF LABOR STATISTICS
n o . 444

WASHINGTON

ju n e , 1927

DECISIONS OF COURTS AND OPINIONS AFFECTING LABOR: 1926
INTRODUCTION
Beginning with the year 1912 the Bureau of Labor Statistics has
published annual bulletins presenting decisions of courts and opinions
affecting labor, with the exception of the years 1919-1920 and 19231924 when the bulletins were biennial. Prior to 1912 this material
had appeared in the bimonthly bulletins of the bureau and its
predecessors.
As the title indicates, the subject matter is such decisions by the
State and Federal courts as are adjudged to be of definite interest to
students of the relations of employer and employee and the conditions
of industry, including opinions of the Attorney General of the United
States construing and applying the Federal labor laws. It would be
neither practicable nor desirable, from any standpoint, to reproduce
all the decisions, or to present those selected in all their details.
Abridged statements of the facts, attempting particularly to bring
out such items as are of special interest from the standpoints
indicated, are followed by the conclusions reached by the courts,
expressed either in the language of the courts or in that of the
editors.
For the most part decisions appearing in the sources used— i. e.,
the National Reporter System and the Washington Law Reporter—
for the calendar year 1926 are reproduced, though in a few cases
later decisions have been noted on account of their application to
points involved in cases presented, or for other reasons.
Workmen’s compensation continues to afford the most fruitful
source of material, the courts being still called upon in numerous
instances to give construction to this recently adopted form of legis
lation That employe rs’ liability is not entirely superseded thereby
is evident from the considerable number of cases that still arise under
this system, though many of them relate to railroad employments
to which the compensation laws do not, in the main, apply. An
outstanding decision in admiralty completely reverses the previously
accepted position as to the status of longshoremen under the sea
men’s acts; however, the effect of this decision is greatly minified, if
not destroyed entirely, by reason of the enactment of the longshore
men’s compensation act of March 4, 1927. The development of a

DECISIONS OP COURTS AND OPINIONS

harmonious and intelligible body of laws with regard to labor organ
izations continues, even though the line can not be regarded as a
straight one nor the progress steady. Nevertheless, it is only from
a study of such decisions as are presented in this bulletin and in pre
ceding bulletins that the student of the legal aspects of the labor
problem (in so far as judicial activities are concerned) can discover
the trends of growth and the tendencies toward a recognition of legal
personality that seems to be manifested.
The sources from which the material of this bulletin has been
obtained are as follows:
Supreme Court Reporter, volume 46, page 108, to volume 47, page 217.
Federal Reporter, volume 8 (2d), page 321, to volume 15, page 608.
Northeastern Reporter, volume 149, page 657, to volume 154, page 192.
Northwestern Reporter, volume 206, page 1, to volume 210, page 1007.
Pacific Reporter, volume 241, page 1, to volume 250, page 992.
Atlantic Reporter, volume 131, page 145, to volume 135, page 240.
Southwestern Reporter, volume 277, page 1, to volume 287, page 1119.
Southeastern Reporter, volume 130, page 305, to volume 135, page 608.
Southern Reporter, volume 106, page 81, to volume 110, page 368.
New York Supplement, volume 212, page 353, to volume 218, page 400.
Washington Law Reporter, volume 54.
Opinions of the Attorney General, volume 35, pages 1-158.

OPINIONS OF THE ATTORNEY GENERAL
H ours o f L abor— E ig h t-H o u r Law— P ilo ts — Panama C a n a l—

Opinions of Attorney General, volume 85, page 78 (June 11, 1926).—
The President requested an opinion of the Attorney General as to
whether or not the eight-hour law provided for by an act of Congress
of August 1, 1892, as amended by the act of March 3, 1913, applied
to pilots employed aboard ships in the Panama Canal and adjacent
waters. The acts referred to provide that eight hours shall consti
tute a day’s work for all laborers and mechanics employed by the
Government or by a contractor for the Government. The acts, how
ever, do not apply to persons employed in connection with dredging
or rock excavating in any river or harbor of the United States or the
District of Columbia while not directly operating machinery or tools.

Pilotage through the Panama Canal was made compulsory by
Executive Order of February 2, 1914, that order requiring all vessels
to take Government pilots. The time required to pass through the
canal varies from
to 14 hours.
Rule 30 of Executive Order No. 4314, dated October 27, 1925,
defines the pilot’s responsibilities, in part, as follows: “ The-pilot is
to be considered on board solely in an advisory capacity, but the
master of a vessel must obey all the rules and regulations of the canal
as interpreted by the pilot.”
The Attorney General held that the act in question by its terms
is limited to “ laborers and m e c h a n ic sth a t a pilot is neither a
laborer nor a mechanic, nor are his duties similar thereto; that the
duties of a pilot are supervisory and directory and are solely maritime
in nature. He then said that the act of March 3, 1913, chapter 118,
(37 Stat. 732), relating to officers of vessels subject to the inspection
laws of the United States, has no application to pilots.
I am of the opinion, therefore, that Panama Canal pilots are not
laborers or mechanics within the meaning of the act of August 1,
1892, as amended, and are not subject to the eight-hour limitation
on hours of service.
W

o r k m e n ’s

p e n s a t io n

C o m p e n s a t io n — U n it e d S t a t e s E m p l o y e e s ’ C o m

C o m m is s io n — P o w e r s — M

e d ic a l

and

S u r g ic a l A id —

Opinions of Attorney General, volume 85, page 36 (February 4,1926).—
Congress passed an act in 1916 (39 Stat. 742) providing compensation
for the disability or death of an employee of the United States result
ing from a personal injury sustained while in the performance of duty.
42335°— 27------ 2

OPINIONS OF THE ATTORNEY GENERAL

A commission was created by the act with the power of making the
necessary rules and regulations for its enforcement, and with power
to decide all questions arising under the act. Section 9 provides that
when an employee is injured within the provisions of the act, the
United States shall furnish him reasonable medical, surgical, and
hospital services and supplies, unless he refuses to accept them, and
if necessary for the securing of proper medical, surgical, etc., treat
ment, the employee, in the discretion of the commission, may be
furnished transportation at the expense of the employees’ compensa
tion fund. The question submitted by the President to the Attorney
General was whether the language of section 9 includes authority to
furnish artificial limbs, artificial eyes, and other prosthetic appliances
which in the opinion of the commission are necessary for the reha
bilitation of such injured employee.
In the course of his opinion the Attorney General pointed out and
dwelt somewhat at length on the intent and purposes of Congress in
enacting the Federal compensation act, holding that the fundamental
purpose of the act was a humanitarian one and that it should be
administered with regard to its purpose. The case of Olmstead v.
Lamphier (104 Atl. 488), decided by the Supreme Court of Connec
ticut, was cited and the opinion quoted from, in part, as follows:
Our act contemplates the furnishing of all the medical and surgical
aid that is reasonable and necessary. The purpose of this provision
is to restore the injured employee to a place in our industrial life as
soon as possible by the use of all medical and surgical aid and hos
pital service which the ordinary usages of the modern science of
medicine and surgery furnish. Humanity and economic necessity in
this instance are in harmony in working for the accomplishment of
the individual and of the public welfare.
It was held that the quoted paragraph admirably stated the pur
pose of the workmen’s compensation act of Connecticut and was fully
applicable to the Federal employees' compensation act. In conclud
ing his opinion, the Attorney General said:
Keeping in mind the humanitarian purpose of said act, and giving
due weight to the opinion of the Supreme Court of Connecticut in
construing language of similar import, the conclusion reached inevi
tably must be that the purpose and intent of section 9 is to include
within its scope artificial limbs and other prosthetic appliances which,
in the opinion of the commission, are reasonable and necessary to
the treatment and rehabilitation of injured and disabled Federal
employees.
I
have the honor to advise you, therefore, that section 9 of the
Federal employees’ compensation act contemplates the furnishing to
injured and disabled employees, at the expense of the United States,
artificial limbs, artificial eyes, and other prosthetic appliances, deemed
reasonable and necessary for the treatment and rehabilitation of such
employees by the United States Compensation Commission.

DECISIONS OF THE COURTS
A l ie n s — S e a m e n — N a t u r a l iz a t io n — R e s id e n c e — In re Jansson,
Supreme Court of the District of Columbia (January 4> 1926), 54
Washington Law Reporter, page \t.— Bror Alfons Jansson, a Swede,
having followed the occupation of a seaman for many years, and as
such having served on American merchant vessels for the requisite
number of years, on June 3, 1922, while in an American port, declared
his intention to become an American citizen. This gave him the
status and protection of a citizen of the United States, under section
4, subdivision 8, of the act of June 20, 1906, which provides in part
that an alien shall “ be deemed a citizen of the United States for the
purpose of serving on board any such merchant or fishing vessels of
the United States, anything to the contrary in any act of Congress
notwithstanding.” Jansson continued to serve on American vessels
until September, 1925, and while in an American port on February 24,
1924, he was admitted to the United States as an immigrant for
permanent residence. Almost immediately thereafter, however, he
renewed his occupation as a seaman on American vessels and continued
in that work for more than a year and a half thereafter.
The Government contended that Jansson could not make a valid
declaration of his intention until he had been admitted as an immi
grant for permanent residence and then “ only in the district in which
such alien resides/1 under section 4, subsection 1, of the law. Mr.
Justice Siddons construed this to mean that such a seaman “ must
first secure admission as an immigrant for permanent residence,
establish a residence somewhere in the United States, and make his
declaration in the district in which he has thus established his
residence.”
The question arose as to what was meant by “ residence” in the
case of an alien seaman in the class under consideration. Under the
terms of section 4, subsection 7, the supreme court was of the opinion
that such an alien seaman could be admitted to citizenship without
proof of residence in this country for five years, or, apparently, at all,
if “ such residence can not be established.”
Mr. Justice Siddons, speaking for the court, in conclusion said:

In the court’s opinion the intention of Congress in such cases, is to
confer citizenship on alien seamen, not on admitted immigrants for
permanent residence. And to give such seamen the status and pro
tection afforded by the quoted provision of the act, and finally full
citizenship, it does not require residence in the United States as a
necessary prerequisite in all cases.

DECISIONS OF THE COURTS

In the pending case we have an applicant who has been a seaman
on United States merchant vessels for the required period of time,
who has declared his intention to become a citizen of the United
States, who has been, in addition, though unnecessarily, a resident of
the United States for nearly two years, and who now asks that he be
admitted to citizenship.
The court is of the opinion that he is legally entitled to be admitted
and an order will be signed to this effect.

C ontract

E m ploym ent— B

onus—

m ploym ent

il l —

Andrews v. Belleman, Supreme Court of South Dakota (April 5, 1926).
208 Northwestern Reporter, page 175.— Action was brought by Gladys
Andrews to recover $100 from the defendant, which she alleged he
promised her as a bonus. The plaintiff alleged in her petition that
she entered the employment of the defendant in March, 1919, at an
agreed wage of $3.50 per day for candling eggs and $4 per day for
picking chickens; that the defendant promised to raise her pay to
$5 per day when she became proficient; that in October, 1920, the
defendant made a further promise that instead of an increase in wages
to $5 per day he would give her a bonus of $100 at the termination
of her employment. She terminated her employment April 9, 1923,
and asked for but was denied the bonus.
There was judgment for the plaintiff, and from an order denying
a motion for a new trial the defendant appealed. He contended that
the evidence was insufficient to support a verdict for the plaintiff.
The court held that the case came squarely within the rule announced
in Russellv. H. W . Johns-Manville Co. (53 Cal. App. 572, 200 Pac.
668; see Bui. No. 309, p. 213). In that case the decision was that
the promise of a bonus was in the nature of a gratuity; that it did
not in any way change the status of the employee who was suing, and
therefore judgment in his favor could not be sustained.
Judge Polley, speaking for the court, said in part:
The contract shown by plaintiff lacks the essential element of a
valid consideration, The most that can be said for it is that it is an
unexecuted promise of a gift or gratuity, and cannot be the basis of
an enforceable right.
The judgment and order appealed from were therefore reversed,
one judge dissenting, holding that, as the jury had found evidence to
support the claim, the judgment should not have been disturbed.

ontract

m ploym ent—

B o n u s — R ig h t s

is c h a r g e d

E m p l o y e e — Pontius Shoe Co. v. Lamberton, Supreme Court oj Colo
rado (iOctober 26, 1925), 241 Pacific Reporter, page 542 — William J.
Lamberton was employed by the Pontius Shoe Co. as a salesman

CONTRACT OF EMPLOYMENT

under a contract at a fixed rate per week, the employer “ reserving
the right to discharge the second party at any time it might see fit.”
Below the signatures to the contract was a statement signed by the
company setting forth a bonus plan, payable semimonthly, based on
sales in excess of an allotted quota value. This statement contained
a provision that:
In the event that any salesman shall voluntarily leave the employ
of the company, or in the event that any salesman shall be discharged
or dismissed for any cause whatever within the sole judgment of the
company, then any bonus which shall otherwise be payable to any
salesman shall be forfeited to the company for its own use and
benefit and such salesman shall have no claim whatever upon the
company for such bonus.
Lamberton and two others were discharged in the autumn of 1923,
he becoming the assignee of the claims of his fellow employees. A
bonus was due at the time of the discharge, but no payments were
made thereon and action was brought to secure such payment. The
court below found in favor of the plaintiff, but on a writ of error
the case was taken to the supreme court, where the judgment was
reversed and directions given to dismiss the action. The contract
was said by the court to be “ nothing more than an announcement
of the policy of the defendant. Its forfeiture provisions seem harsh
but we can act only upon the contract which the parties have made.”
The company announced that the bonus was given “ only as a gratu
ity,” and the court found no case among those brought to its atten
tion “ which gave an employer such latitude as that given by the
contract here involved.” No ground for the plaintiff’s suit appear
ing, the case was dismissed.
In a case before the Supreme Court of Arizona it was held that a promise of
a bonus made by one member of a partnership, over the protest of the other
member, was not binding on the latter in the event of the death of the former
before the promise was fulfilled. (Warren v. Mosher (1926), 250 Pac. 354.)

C ontract

m ploym ent—

“ B reach ” — D

is s o l u t io n b y

P a r t n e r — Shumate v. SoTion et al.yCourt of Appeals

eath

of District of Columlia (May 3, 1926,) 12 Federal Reporter\2d) , page 825.— Bernard M .
Bridget and Samuel Rosenthal, doing business under the film name of
Bridget & Rosenthal, had for a number of years employed Bailey Shu
mate as assistant manager of their business. On June 1,1915, the part
nership agreement expired, and the partners by a written instrument
renewed it for a period of eight years. One of the provisions of the
new contract was that, in the event of the death of either of the
partners, the survivor should continue the business in the firm name
for a period of 90 days, during which period the interest of the
deceased partner was to be ascertained, and if the survivor elected
of

DECISIONS OF THE COURTS

to take over the assets and continue the business he could do so by
paying to the estate of the deceased the amount of his interest in
the business; otherwise the business was to be closed out and the
liquidated assets divided ratably between the survivor and the
deceased's estate. There was also a stipulation in the contract that
Bailey Shumate was to be continued in the employ of the firm for a
period of five years at a specified compensation, and a written con
tract to that effect was entered into between Shumate and the firm.
Rosenthal died on December 16, 1917, and Bridget continued the
business for about 90 days, during which time Shumate continued to
render the same service as before. At the expiration of the 90 days
Bridget took over the assets of the firm and almost immediately
sold out to a stranger without making any provisions for the employ
ment of Shumate, who thereupon brought suit for breach of contract
and claimed judgment against Bridget in the sum of $49,171.44.
From a judgment for defendant, plaintiff appealed. The court of
appeals, on review of the case, said in part:
The death of Rosenthal on December 16,1917, caused a dissolution
of the copartnership then existing between the two partners as fully
as if both partners had died upon that day. Moreover, in the instant
case the partnership business as such was not continued beyond the
period permitted by the partnership agreement, but was in effect
closed out and terminated comformably with that agreement.
If the employee dies the employer has no remedy against his estate.
His death puts an end to the contract. It is but just that the same
results shall follow from the death of the employer. The principle is
still more obvious in the case of a copartnership, which is dissolved by
operation of law when one of the partners dies.
The court then cited a number of cases wherein the holdings have
been in accordance with its view. The opinion concluded:
It is true that the authorities are not uniform upon this subject
[citing casesj; but the foregoing doctrine is sustained by the greater
weight of authority and by the better reasoning. It distinctly applies
to the facts in this case. Accordingly we conclude that the contract of
July 2, 1915, was hot breached by Bridget, and that the ruling of the
lower court was correct.
The judgment of the lower court was affirmed with costs.
A similar conclusion was reached in a case where the plaintiff was induced to
purchase a truck under a promise to employ him for a period of one year to haul
lumber for the defendant. After some weeks the defendant sold its business,
and gave notice that it would have no more hauling, whereupon the plaintiff sued
for breach of contract. The California district court of appeal found no viola
tion of the contract, as there was no covenant not to sell the business, in the
absence of which there was no obligation. No implication of this effect appear
ing in the contract, there was no liability. (Langenberg v. Guy (1926), 247
Pac. 621.)

CONTRACT OF EMPLOYMENT
C ontract

E m p l o y m e n t — C o l l e c t iv e A g r e e m e n t — R e c o v e r y

D is c h a r g e — St. Louis, B. <$b M. Ry. Co. v. Booker,
Court of Civil Appeals of Texas (June 20, 1926), 287 Southwestern
Reporter, page 180.— T. F. Booker entered the employment of the
defendant railroad company on September 20,1919, as a car inspector,
under a contract of employment entered into with the Brotherhood
of Railway Carmen, which contained the following provisions:
for

rongful

R u l e No. 37. An employee who has been in the service of the
railroad 30 days shall not be dismissed for incompetency, neither
shall an employee be discharged for any cause without first being
given an investigation.
R u l e No. 38. If it is found that an employee has been unjustly
discharged or dealt with, such employee shall be reinstated with
full pay for all lost time.

Booker was discharged on November 30, 1920, and the defendant
refused to reinstate him upon his application to the proper officials.
The matter was submitted to the Railroad Labor Board, which found
that the plaintiff had been wrongly discharged and ordered that he
be immediately restored to his former position, and that he make
out a statement showing the time lost by him because of the wrongful
discharge and the amount earned by him in other employment.
The plaintiff returned to work and in due time rendered his account
of wages due him under the contract of employment, the amount
being $1,712.74, which the defendant refused to pay. The plaintiff
thereupon brought suit in the district court to recover that amount,
with interest and costs. There was a directed verdic t for the defendant
company, and the plaintiff appealed and a new trial was granted.
From the order granting a new trial the defendant appealed.
The court of appeals, in affirming the order appealed from, said
in part:
We think it clear that the evidence was sufficient to sustain a
finding by the jury that the contract of employment between plaintiff
and defendant existing at the time of his discharge contained the
provision that if he was wrongfully discharged he would be entitled
to recover from defendant the wages due him for the time lost by
his wrongful suspension from the service, less any amount he might
have earned during that time. The testimony of plaintiff that he
was wrongfully discharged and subsequently reinstated, and as to
the amount lost by him by reason of his discharge, is not contradicted.
As we construe the pleadings and understand the evidence, the
motion for new trial was properly granted, and the judgment should
be affirmed.
The judgment was therefore affirmed.

DECISIONS OF THE COURTS

10
C o n tra c t

T e r m — I m p lie d

E m p lo y m e n t— D i s c h a r g e f o r

In co m p e te n cy —

Robertson et al. v . Wolfe, Court of
Appeals of Kentucky (June 8, 1926), 288 Southwestern Reporter, page
428 .— R. D. W o lfe sued the defendants for dam ages in the a m ou n t of
$700, less a credit of $150. He alleged th at he was hired b y the
defendant in N o v em b er, 1923, as a bookkeeper at a m o n th ly salary
of $175, the em p loym en t to continue until May 1, 1924; th at he was
C o n d itio n s —

w rongfully discharged at the end of the m o n th of D e c e m b e r; and
th at he m ade diligent effort to procure other work b u t was able to
earn only

$150.

T h e defendants contended th at the plaintiff was

em ployed only for a part of N o vem b er and for the m o n th of D e c e m
ber, w ith the understanding th at his em p lo y m en t was to cease if his
services were not satisfactory, or the defendants sold out.

E viden ce

w as offered which show ed that a substantial part of the plain tiff’s
work was incorrect, and therefore
considerable

loss.

Judgm ent

liable to cause the defendants

was in his favor in the trial court,

from which the defendants appealed.

T h e C ou rt of

Appeals of Ken

tu cky, speaking through Judge C la y , said in p a rt:

There is an implied condition in every contract of service that the
employee is competent to discharge the duties for which he is
employed, and an employer may refuse to continue in his employ
any person who has shown himself to be incompetent or inefficient.
Under this rule the discharge of a bookkeeper before the time fixed
by the contract of employment will not render his employer liable in
damages, where his incompetency is such as to subject his employer
to the danger of repeated losses and seriously affect his standing in
the business world.
Judgment was reversed and the cause remanded for a new trial
in conformity with this opinion.
Where a railroad conductor was discharged under imputations of dishonesty, he
being notified of the discharge while on a run, so that he was compelled to ride
as a passenger while in uniform, causing alleged humiliation and mental suffering,
a judgment for damages was reversed by the Supreme Court of North Carolina
on the ground that there was no slander, assault, or trespass of any sort, the dis
charge having taken place in the office to which he was ordered to report.
“ Under these conditions, the law imposes on the defendant no liability for the
remote and collateral consequences resulting from inferences or deductions that
may have been drawn by the public from the situation of the plaintiff.” (Elmore
v. Atlantic Coast Line R. Co. (1926), 131 S. E. 633.)

C ontract

m ploym ent—

E m p l o y e e ’ s I n v e n t io n — R ig h t s

Toledo Machine & Tool Co, v. Byerlein, United States
Circuit Court of Appeals (December 11,1925), 9 Federal Reporter (2d),
page 279.— Arthur A. Byerlein entered into a contract of employment
in writing with the Toledo Machine & Tool Co. on March 1, 1918,
for a period of five years. His duties were to be those of a chief
E m ployer—

CONTRACT OF EMPLOYMENT

engineer, and he agreed to assign to the machine company any ideas,
patents, or patentable features developed or invented by him per
taining to their line of product during the life of the contract. He
continued to work for the company for some 20 days after the
expiration of the contract, and then made an oral contract with Mr.
Hinde, president of the company, the terms and conditions of which
were the same as in the prior contract, except as to salary, which was
increased, and the duration of the employment. He continued to
work under the latter agreement for about six and one-half months,
and during this period of his employment he conceived and developed
the patentable idea or invention which was the subject of the suit.
He then quit the machine company’s employ and accepted a similar
position with a competing company, and shortly thereafter the Toledo
Machine & Tool Co. made demand on him to assign to it the appli
cation for the patent. On his refusal to do so a bill in equity was
filed to enjoin him from selling or assigning the invention or the use
thereof to others, and also for an injunction requiring its assignment
to the machine company. Byerlein denied the extension of the orig
inal contract or that he entered into a new contract with the machine
company. The bill was dismissed by the district court and the
machine company appealed. On the appeal the decree was reversed
and the court said in part:
From the evidence of both Hinde and Byerlein it is conclusive that
some agreement was made by which Byerlein was to continue in the
employ of the company at an increased salary for either a definite or
indefinite term of service. The only question is as to the terms and
conditions of the contract under which he continued in its employ.
There is no theory consistent with honesty and fair dealing upon
which Byerlein could reasonably have believed that his employer
was offering him an increase in salary for the performance of less
service than he agreed to perform in the original contract. When
Hinde said to him that his salary would be increased, either $50 a
month or to $6,000 a year, he knew that Hinde was offering to him
the proposition to pay this increased salary for the performance of
the same service, and when he said, “ Thank you, sir,” and continued
in plaintiff’s employ, he accepted this proposition as clearly as if
Hinde had stated to him in detail the services that would be required
of him, word for word as it was written in the original contract, and
he had replied, “ I accept your proposition.”
We do not consider the claim made by Byerlein that he developed
this patentable idea at nights as of the slightest importance. Certainly
under the written contract it would make no difference what time
in the day or night such ideas were developed, and in the opinion of
this court the terms of the oral contract under which Byerlein con
tinued in the company’s employ are exactly the same, except as to
the duration of the employment and the salary to be paid.
The decree was therefore reversed and the cause remanded, with
instructions to enter a decree in accordance with the opinion.

DECISIONS OF THE COURTS

Quite similar circumstances existed in another case, Conway v. White (C. C. A.
1926, 9 Fed. (2d) 863), where a mechanical engineer, under contract to convey
to the employing company all right, title, and interest in his inventions and dis
coveries, used or capable of being used in its business, was held bound to convey
to an assignee of a trustee of the company, which had become bankrupt, a useful
invention for which patents had been obtained. The court here said that: “ It
is, of course, well-settled law that a contract to sell or transfer a patented
right, like a contract to sell real estate, may be specifically enforced.”
The contracts in the foregoing cases were entered into at the time of entrance
upon employment, and retained in force during the employment. In a case be
fore the New York Court of Appeals (National Cash Register Co. v. Remington
Arms Co. (1926), 151 N. E. 144), a contract made at the beginning of the
employment was found to contain such a term, but on renewal this provision
was held to have been omitted, so that no assignment of a patented invention
could be enforced. Much more, in the absence of any agreement, the courts
will protect the employee, even though employed as a foreman of the manu
facturing department of his employer’s plant, from any attempt to compel a
transfer of the patent to the employer, no right accruing to the employer other
than a license or shop right for the use of the patented invention in his own
plant, which right “ the employee may be estopped to deny, by the fact of his
employment and his conduct in relation to the use of the inventions by his em
ployer.” (Manton-Gaulin Mfg. Co. v. Colony (Mass., 1926), 151 N. E. 71.)
Nor will it suffice to procure of an employee under a general contract an agree
ment to assign an invention after he has entered upon the employment, no
added consideration being offered, either by way of salary or term of employ
ment. “ The contract is unilateral in the truest sense, * * * so vague, uncer
tain, indefinite, unequal, unilateral, and deficient in fairness and justice as to
require that its specific performance be denied.” (Goodyear Tire & Rubber
Co. v. Miller (U. S. D. C., 1926), 14 Fed. (2d) 776.)

ontract of

E m ploym ent— E

is c h a r g e —

nforcement—

I n j u n c t io n

Pre

Hewitt v. Magic City Furniture & Mjg. Co., Su
preme Court of Alabama ( March 18, 1926), 107 Southern Reporter, page
745,— On March 16, 1925, R. D . Hewitt entered into a contract with
the defendant company whereby he was to be given $60 per week
drawing account, and at the end of 12 months was to be given 10
shares of stock of the par value of $1,000. There was a provision
that in the event the parties severed their connections the plaintiff
was to be paid $1,000 in cash for his stock within 30 days. In con
sideration of the foregoing the plaintiff was to be superintendent and
take charge of the production at the defendant’s factory. On Dec
ember 9,1925, plaintiff was discharged, and he filed a bill in equity
praying for an injunction to restrain defendant from discharging
him. He set forth in his petition that, by the performance of his
part of the contract, he would have the opportunity to make a rep
utation in the business world that could not be estimated in dollars
and cents, and therefore he had no adequate remedy at law. From
a decree for defendant, plaintiff appealed. The court, in affirming
the decree of the lower court, held that there was a lack of mutuality
vent

CONTRACT OF EMPLOYMENT

of an equitable remedy in that the plaintiff owed no obligation to
the defendant that he might not abandon at his pleasure and the
defendant would be remediless. In its opinion the court referred to
the class of cases, some of which it cited, in which it was held that
where the services to be rendered were of a peculiar kind and were
not to be obtained from anyone else, the courts had granted relief.
The opinion delivered by Judge Sayre was in part as follows:
Whether as superintendent, employee, or servant, his services are
merely personal, no matter how dignified or responsible they may be,
and the court of equity can not undertake to enforce the performance
of such services.
For the reasons indicated, we are clear to the conclusion stated
above that there is no equity in appellant's bill, and that the tempo
rary injunction prayed was properly denied.
The decree was therefore affirmed.

C ontract

E m ploym ent— E nforcement— P o w er

over

Sub

Metallic Door Co.
v. Emtt Construction Co.; Evatt Construction Co. v. DaMstrom Metallic
Door Co.; Eliot v. DaMstrom Metallic Door Co. Supt'eme Judicial
Court of Massachusetts (June 14, 1926), 152 Northeastern Reporter,
page 715.— In October, 1922, the trustees of the Boston Chamber of
Commerce Realty Trust, so called, entered into a contract with the
Evatt Construction Co. for the erection of the new chamber of com
merce building in Boston, which contained the following provision:
The architect may from time to time, by an instrument in writing
signed by him and approved by the owner in writing, order the
contractor to make any changes in the work; but shall otherwise
have no power to make any change in this contract. In case the
changes thus ordered make the work less expensive to the contractor,
a proportional deduction shall be made from the contract price above
specified; and, in case said changes make the work more expensive,
a proportional addition shall be made to said contract price.
contractor—

S p e c if ic P e r f o r m a n c e — DaMstrom

The contract among other things called for installation of elevators
essential to the building. The work of fabricating and installing the
elevator inclosures and doors was let to the Dahlstrom Metallic Door
Co., herein called the defendant, and it agreed to be bound by the
same terms, requirements, liabilities, and conditions that the contrac
tor was subject to; and in addition agreed that should it at any time
refuse or neglect to supply a sufficient number of properly skilled
men or sufficient proper material or fail in any of its agreements, the
contractor was to have the right to terminate the contract, enter upon
the premises, and take possession, for the purpose of completing the
work, of all materials, tools, etc., and to employ any other person or
persons to finish the work and to provide material therefor. The

DECISIONS OP THE COURTS

defendants also agreed to discontinue the employment on the work
of any of its employees that were not satisfactory to the contractor.
The ironworkers on the building threatened a strike unless allowed
to install the elevator fronts and doors. The contractor thereupon
notified the defendant that it would expect the work to be done by
the ironworkers. That notice was disregarded by the defendant,
who appeared with carpenters to do the work, and upon being refused
permission to proceed with the work, withdrew and refused to deliver
the material that had been specially fabricated for the job. The
contractor replevined the material and the defendant re-replevined
it and brought a bill to compel the contractor to allow it to be
installed by carpenters. A cross bill was brought to enjoin further
interference, and to compel the defendant to deliver the balance of
the materia . From a decree dismissing the bill and a decree on the
cross bill for the contractor, the defendant appealed.
Of the several assignments of error made, only one, that dealing
with specific performance, is important for the purpose here used,
and in speaking of this the court said in part:
The subcontractor under his contract was bound by the change in
the principal contract for the reason that he specifically agreed to be
bound by it, and was required to supply the material with a proper
adjustment of the contract price. It is plain that on the finding of
the court the contractor under its cross bill is entitled to specific per
formance. The materials were designed and made for use in the
chamber of commerce building; they were limited in number and
could not readily be used in any other building; they could not have
been purchased in the open market. To have had them manufactured
elsewhere would have caused serious delay in the construction of the
building to the great damage of the contractor as well as of the
owners. The contractor would not have an adequate remedy at law.
Equity will specifically enforce a contract relating to chattels, if the
remedy at law for damages would be inadequate, and grant relief for
delivery of a thing wrongfully withheld.
A final decree, with some modifications, was rendered for the con
tractor.
C ontract

E m p l o y m e n t — E n g a g in g

S im il a r B u s in e s s —

Ice Delivery Go. of Spokane v. Davis,
Supreme Court of Washington {March 4> 1926), 243 Pacific Reporter,
page 842.— The Ice Delivery Co. of Spokane, engaged in manufacturing
and selling ice, had in its employ as iceman and driver of a delivery
wagon one Newell S. Davis. Davis, who delivered ice to customers on
what was known as Rockwood route, was, with the exception of a short
period in 1920, employed continuously from June 1,1919, to October
2,1924, when he quit. On March 10, 1925, he commenced work for
I n j u n c t io n — T r a d e S e c r e t s —

CONTRACT OF EMPLOYMENT

a competitor of the plaintiff company. The company brought suit
for an injunction to restrain Davis from serving or attempting to serve
the same route formerly covered by him, or a part of it, or from solic
iting the patronage of those whom he had formerly served while in
its employ. An emergency restraining order was issued, but subse
quently dissolved and the action was dismissed, whereupon the plain
tiff appealed.
The plaintiff cited and relied on the case of John Davis & Co. v.
Miller (177 Pac. 323,104 Wash. 444). In that case Vincent D. Miller
had been employed by John Davis & Co., engaged in a loan, real
estate, and insurance agency, for sixteen years, in the last eight of
which he stood in a confidential relation to the head of the business,
by virtue of which all the secrets, prospects, and plans of the company
were confided to him. Upon leaving the employment of the Davis
company, he induced two other employees of the company to become
employees of a company he organized to compete with John Davis
& Co. The court said of that case that it was one “of being bent on
mischief in the nature of a positive fraud against John Davis & Co.”
against which equity would give protection, but held that there was
no parallel between the Davis case and the one under consideration.
In that respect Judge Mitchell, speaking for the court, said in part:
Not so in the present case, where there was no scheme, plan, fraud,
or expression on the part of the respondent, who, months after con
cluding the employment of the appellant, took employment in an
orderly fashion with another. * * * For him to be compelled to
give up all the friends and business acquaintances made* during his
previous employment would tend to destroy the freedom of employees
and reduce them to a condition of industrial servitude. Customers
are not necessarily trade secrets, nor are they property. In this case
the customers were fixed and settled in a known district, and the fact
of their being patrons of the appellant was in no way covered up,
but capable of ascertainment on behalf of the respondent’s new
employer, or anyone else, by an independent canvass at small expense
and in a very limited period of time. To hold that the Davis case
is decisive of this one would be, in our opinion, an unwarranted
extension of the doctrine of that case.
The complaint in this action does not state facts sufficient to
entitle the appellant to equitable relief.
The decision of the court below was affirmed.
The decision in the foregoing case was arrived at after a very general discus
sion of principles and cases, and was set forth as conclusive in a later case. (City
Ice & Cold Storage Co. v. Kinnee (October 4, 1926), 249 Pac. 782.) Here, the
suggestion that a knowledge of the trade routes of an ice dealer was a trade
secret and entitled to protection was rejected by the court, reversing the supe
rior court, which had awarded an injunction and damages. The information
sought to be protected was said to be in no sense like a trade secret, since it
could be obtained by anyone by observation and with little trouble.

16
C

DECISIONS OP THE COURTS
ontract

E m p l o y m e n t — E n t ic in g

L abo rers— C o nstruc

v. State, Supreme Court of Mississippi
(October 11, 1926), 109 Southern Reporter, page 737.— J. R. Shilling
was convicted before a justice of the peace of violating that provision
of the Code of 1906, section 1146, as amended by chapter 160, Laws
of 1924, which prohibits the willful interference with, enticing away,
or knowingly employing a laborer of another employer or landlord
who has contracted for a specific period of time. The conviction
was affirmed by the circuit court of Bolivar County, and the defend
ant appealed.
There was no proof that the defendant knew or that he had any
intimation that the laborer whom he had hired was under contract
to work for the plaintiff, and in fact the laborer told him that he
was free to go where he pleased. The plaintiff, however, contended
that it was immaterial under the statute whether or not the defend
ant knew of the contract, and that if he did anything to induce
the laborer to leave his employment he was guilty.
It was held by the court to be extremely doubtful whether the
construction of the statute as contended for by the plaintiff could be
upheld under the fourteenth amendment, since it would tend to
abridge the right of contract, by making one contract at his peril in
his business, by imposing liabilities and criminal prosecution that
might be utterly destructive of his liberty and his business. The
judgment below was therefore reversed, and the defendant dis
charged.
Judge Ethridge, speaking for the court, said in part:

t io n

S t a t u t e — Shilling

We do not think the legislature intended to penalize a person for
making a contract where he acts innocently. In our opinion the
inducement must be consciously made— that is, it must be made
with the knowledge of the existence of the preceding contract and
before it is amended by the laborer.

C ontract

E m p l o y m e n t — L if e E m p l o y m e n t — L i a b i l i t y

Mt. Pleasant Coal Co. et
al. v. Watts, Appellate Court of Indiana (March 11, 1926), 151 North
eastern Reporter, page 7.— The plaintiff, Francis M . Watts, owned a
30-year lease on 80 acres of coal land in Vigo County, Ind., which he
assigned to the M t. Pleasant Coal Co. through the promoters of that
corporation. It was agreed that if he would assign the lease they
would form a corporation with a paid-up capital stock of $25,000;
that in consideration of his assigning the lease they would set aside
for him one-sixth of the capital stock, allow him a credit of $2,000 on
it, and loan him the money without interest, for the balance on the
condition that he repay it out of dividends accruing on all his stock
P r o m o t e r s — C o n s id e r a t io n — B r e a c h —

CONTEACT OF EMPLOYMENT

and $2 per day out of his salary as mine boss and superintendent of
the mine proposed to be opened. It was further agreed that the
plaintiff was to be employed by the corporation as mine boss and
superintendent at $8 per day steady employment during the remain
der of h?s natural life.
Watts brought suit for damages for breach of the contract, alleging
that the defendants constructed a mine on the land covered by the
lease and had been operating thereunder ever since the assignment;
that they refused to issue to him the stock promised or to loan him
the money with which to purchase it as agreed, and that he was dis
charged as mine boss and superintendent after two months’ service,
without cause. There was a general denial by each of the defendants.
There was a trial by jury which resulted in a verdict for the plaintiff
for $10,000, from which the defendants appealed. Of the several
assignments of error, the court considered mainly the question of
whether or not the contract of the promoters was binding on the cor
poration, and whether the evidence sustained the verdict.
Judge Nichols, who delivered the opinion of the court affirming the
judgment, said in part:
It may be conceded that if the promoter’s contract was not made
primarily for the benefit of the corporation, and if the corporation
does not adopt it or promise to perform it, there would be no liability
on the part of the corporation to perform. But where as here the
promoters of a corporation make a contract in the interest of the
contemplated corporation, if such corporation, when organized recog
nizes and adopts it, it then becomes the contract of the corporation.
It will hardly be questioned that in this case the contract was
primarily made for the benefit of the corporation, and that it know
ingly received the benefits thereof.
We have carefully examined the evidence as set out in appellant’s
brief, and have to say that, while we might not have reached the
same conclusion as to its preponderance as the jury reached, there is
evidence to sustain the verdict, and it is not for this court to weigh
the same. It is altogether probable that the jury, in determining the
preponderance of evidence, considered the circumstance that at the
beginning of the negotiation between appellee and appellants appellee
had a valuable coal lease on 80 acres of land, and that when he was
discharged appellants had the lease and he had received nothing
therefor except compensation for services which he had theretofore
rendered for the company. The verdict cannot be disturbed for
insufficiency of the evidence.
The judgment was therefore affirmed.

C ontract

E m p l o y m e n t — P r o m is e

eet

F uture W

age

Golden v . Salkeld Coal Co., Supreme Court oj
Appeals of West Virginia {April 6, 1926), 132 Southeastern Reporter,
page 751.— Dewey Golden was employed by the Salkeld Coal Co. as
a motorman. The mine was nonunion, but on March 31, 1922, the
I n c r e a s e — E v id e n c e —

DECISIONS OF THE COURTS

day before a strike was called in all union mines in the neighborhood,
its employees called on the manager demanding the union rate of
pay. He told them that he would call the main office and ascertain
its attitude. On the following day he told the men that if they would
continue working they would be paid any excess if wages were
advanced; but if not, there would be no deduction.
The union rate went into effect August 1, 1922, being higher than
the former rate. Golden had quit work on June 2, and filed a claim
for the difference between what he had received while employed and
the new scale. He assigned his claim to George Ensminger, who
brought action on it before a justice of the peace. Judgment was
for the plaintiff and the defendant appealed to the circuit court, which
affirmed the judgment. The case came before the supreme court of
appeals on a writ of error and the judgment of the lower court was
affirmed.
The two issues raised by the record were: (1) What were the terms
of the contract? and (2) Did the manager of the company have
authority to make it? The court, after reviewing the evidence per
taining to the contract, found it to be in conflict, and held that in
view of such conflict the matter was properly left to the jury for its
determination. As to the question of the authority of the manager
to make the contract, the court found that, after taking the demands
of the miners up with the company, he had informed the men that
if they would not quit work they would receive back pay in accord
ance with the scale fixed by the United Mine Workers, and that the
company had paid claims of other employees, all of which the court
held tended to show that the manager had authority to make the
contract. The conclusion of the court was that the case had been
fairly tried and properly submitted to a jury, and the verdict would
not be disturbed by the court of appeals.

C ontract

E m ploym ent— T

erm—

S u it

R ecover W

ag es—

onthly

C o ntract— D

Crater Oil Co. v. Voorhies, Court
oj Civil Appeals of Texas {February 5, 1926), 280 Southwestern Reporter,
page 849.— T. J. Voorhies was employed by the Crater Oil Co. as an
oil-well driller at a salary of $300 per month. He began work on June
15, was paid at the end of the month, and continued to work until July
3, when he was discharged and paid up to and including July 4. He
protested his discharge and insisted that he should be permitted to
work and be paid for the remainder of July. This being refused, he
brought suit against the company for $260, as balance of wages
claimed to be due him for the month, and recovered judgment for
that amount in the county court. Defendant appealed on the ground
that the plaintiff was not employed for any definite length of time,
charge—

EMPLOYERS* LIABILITY

and that even though he was employed by the month his month’s
services ended on July 15, and it would therefore owe him for only
11 days or $110.
The court, speaking through Judge O’Quinn, said in part:
It appears that appellant paid him for the remainder of the month
at the end of the month. There is nothing in the record to indicate
that appellant paid its employees weekly or semimonthly, so that we
think that appellant’s paying appellee at the end of June for the serv
ices performed in June indicated that it thus recognized that a new
month of service would and did begin on the 1st of July. While there
is a sharp conflict in the authorities, the rule as established by the
weight of authority, and which is followed in Texas, is that a contract
of employment from month to month is a contract for a definite
period of time, and can be terminated only at the end of a month,
except by consent of the parties.
The judgment was therefore affirmed.

E m ployers’

L i a b i l i t y — A d m ir a l t y — S t e v e d o r e — N

e g l ig e n c e

International Stevedoring
Co. v. Haverty, Supreme Court of the United States (October 18, 1926),
47 Supreme Court Reporter, page 19.— R. Haverty, an employee of
the International Stevedoring Co., was engaged in stowing freight in
the hold of a vessel at dock in the harbor of Seattle. Through the
negligence of the hatch tender, also employed by the defendant, in
not warning the plaintiff that a load of freight was about to be low
ered it came down upon Haverty and he was badly hurt. He brought
action in the State court, seeking a common-law remedy. There was
judgment for the plaintiff, which was affirmed by the supreme court
of the State, and the defendant brought a writ of certiorari for review
by the United States Supreme Court.
The defendant pleaded the defense of fellow service and cited a
number of cases, amongwhich were The Hoguiam (253 Fed. 627, 165
C. C. A. 253) and Cassil v. United States Emergency Fleet Corpora
tion (C. C. A., 289 Fed. 774; see Bui. No. 391, p. 46). It contended
that the ruling of the courts in the instant case was contrary to the
established doctrine, and referred to an intimation of the United
States Supreme Court that whether the established doctrine be good
or bad it is not open to the courts to do away with it upon their
personal notions of what is expedient.
The court held that Congress had changed the rule by the act of
June 5, 1920, chapter 250, paragraph 20 (41 Stat. 988, 1007; Comp.
St., sec. 8337a), which reads as follows:
of

F e l lo w S e r v a n t— F ed e r a l Sta tu te —

Any seaman who shall suffer personal injmry in the course of his
employment may, at his election, maintain an action for damages at

DECISIONS OF THE COURTS

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.
Mr. Justice Holmes, who wrote the opinion of the court, said in
part:
It is not disputed that the statutes do away with the fellowservant rule in the case of personal injuries to railway employees.
The question therefore is how far the act of 1920 should be taken to
extend.
It is true that for most purposes, as the word is commonly used,
stevedores are not “ seamen.” But words are flexible. The work
upon which the plaintiff was engaged was a maritime service formerly
rendered by the ship’s crew. We cannot believe that Congress will
ingly would have allowed the protection to men engaged upon the
same maritime duties to vary with the accident of their being employed
by a stevedore rather than by the ship. If they should be protected
in the one case they should be in the other. In view of the broad
field [in] which Congress has disapproved and changed the rule intro
duced into the common law within less than a century, we are of
opinion that a wider scope should be given to the words of the act,
and that in this statute “ seamen” is to be taken to include steve
dores engaged as the plaintiff was, whatever it might mean in laws of
a different kind.
The judgment was therefore affirmed.
E m ployers’

L ia b il it y — A

s s u m p t io n

R is k — T u b e r c u l o s is

Wager v. White Star
Candy Co. (Inc.), Supreme Court oj New York, Appellate Division,
(July 2, 1926), 217 New York Supplement, page 173.— Frances E .
Wager, employed by the White Star Candy Co. (Inc.), developed
tuberculosis as a result of her surroundings during her working hours.
She brought an action against her employer for damages and recov
ered judgment for $2,000. From an order denying defendant’s
motion to set aside the verdict and to direct a new trial, the defend
ant appealed. The plaintiff alleged in her complaint that she was
required to work in a damp, unsanitary cellar from June, 1924, to
October, 1924, and from October, 1924, to December, 1924, she was
required to work on the first floor in a room which was not properly
heated; that she was subjected to drafts; that she contracted a hack
ing cough and became incapacitated. Physicians swore that the
plaintiff was suffering from tuberculosis in December, 1924, and that
the development of the tubercular condition was directly attributable
to her surroundings during her working hours.
The defendant urged that the plaintiff’s sole remedy lay in her
filing a claim under the workmen’s compensation law (Laws 1922,
ch. 615, sec. 10), which provides as follows:

C au sed

o r k in g i n

nhealthful

P lace—

Every employe* subject to this chapter shall in accordance with
this chapter secure compensation to his employees and pay or pro

EMPLOYERS* LIABILITY

vide compensation for their disability or death from injury arising
out of and in the course of the employment, without regard to fault
as a cause of the injury.
The court, after reviewing that portion of the workmen's compen
sation act defining “ injury” and “ personal injury” and applying
the definitions to the facts in the instant case, said in part:
If there is no accident, there is no liability, and no remedy under
the law. In such case the law is not exclusive, and the common-law
remedy, if any there be, may be employed. This plaintiff sustained
no accidental injury, since there was no sudden occurrence referable
to a definite time or place. We think, therefore, that the plaintiff
was not debarred, by the provisions of the workmen's compensation
law, from bringing this action.
Nevertheless, we think she must fail in her action. The plaintiff
was fully aware of the conditions under which she worked and con
tinued in the employment from June to December in spite of such
knowledge. It is from her testimony that we learn that the walls of
the cellar were wet to the touch; that the cesspool backed up liquids
which wet the floor; that the cellar was devoid of windows to light
or air it; that dead rats were left about; that the odors v/ere vile;
that the plaintiff worked in a drafty place; that the upstairs room
was damp. It is common knowledge that such conditions are dele
terious to health.1 The plaintiff was chargeable with such knowledge.
We think that the plaintiff, as a matter of law, assumed the risk
attendant upon her remaining in the employment, and that the
recovery may not stand.
The order and judgment were reversed on the law. with costs,
and the complaint dismissed.
EMPLOYERs,
p l o y m e n t of

L ia b il it y — C o m p e te n t

F o r e ig n e r s — S a f e P l a c e

F ellow
to

S er van ts— E m

ork—

e g l ig e n c e —

Courtois v. American Gar & Foundry Go., Court of Appeals, Missouri
(April 6,1926), 282 Southwestern Reporter, page 484-— Francis Courtois
was employed by the American Car & Foundry Co. as a common
laborer and was engaged, along with two Americans, Gibson and
Mosby, and three Mexicans, in assorting some steel rails. The
Mexicans were unable to understand or comprehend the English
language and were guided in a great measure in their work by the
movements of the Americans, When a rail was carried to the
iln connection with this decision, it may be noted that the laws of New York direct that all factories
and other workplaces “ be so constructed, equipped, arranged, operated, and conducted as to provide
reasonable and adequate protection to the lives, health, and safety of all persons employed therein ”
(Con. L., ch. 31, sec. 200); that “ every part of a factory building and of the premises thereof and plumb
ing therein, shall at all times be kept in a safe and sanitary condition and in proper repair ” (.Idem, sec.
291); that “ every workroom in a factory shall be provided with proper and sufficient means of ventila
tion, natural or mechanical, or both, as may be necessary, and there shall be maintained therein a
proper and sufficient ventilation and proper degrees of temperature and humidity at all times during
working hours" (Idem, sec. 299). Furthermore, an employee assumes only the necessary risks of the
occupation or employment, “ including those risks, and those only, inherent in the nature of the busi
ness which remain after the employer has exercised due care in providing for the safety of the employees,
and has complied with the laws affecting or regulating such business or occupation for the greater safety
of such employees.” (Sec. 4, ch. 74, Con. L., added 1921, ch. 121.)

DECISIONS OF THE COURTS

designated place the foreman would say “ Drop it,” whereupon the
Americans would let loose their hold, and the Mexicans, observing
their conduct, would let go also. At the time in question a rail some
23 feet in length and weighing 600 to 700 pounds was being carried.
The ground over which the plaintiff was obliged to walk was covered
with pig iron, and the foreman observing that he was walking with
difficulty, said “ Be careful,” whereupon the Mexicans, although
they had not reached the designated place, released their hold on the
rail and a second or two later Gibson and Mosby dropped it, causing
the plaintiff to stumble over the pig iron and fall. He was struck
upon his right side by the rail as it rebounded, injuring him. He
brought an action for damages for his injuries and alleged that the
defendant was negligent in employing foreigners who did not under
stand the English language and in not furnishing a safe place to
work. He recovered judgment in the sum of $1,700 in the circuit
court of St. Louis County, from which the defendant appealed. It
was argued that the employment of foreigners who could not under
stand the English language for use in common labor was not negli
gence. Judge Bennick, speaking for the court of appeals said in
regard to this:
In so far as we have been able to determine, this precise question
is a matter of first impression in Missouri. We concede, however,
as a general rule of law, that defendant’s argument is well taken.
To hold that an employer might not employ men of foreign birth
who are unable to understand and speak the English language would
be discriminatory and unjust and contrary to a public policy which
has invited such labor to our shores. That the mere employment of
such persons is not negligence has been held by eminent and respect
able courts. However, this rule, as in the case of all others, has its
exceptions. The real issue involved concerns the competency of the
employees for the particular tasks to which they are assigned,
upon which question our own courts have often spoken. It has been
properly held in this State that the master must use ordinary caie
in employing and retaining competent and suitable servants, that
this is a personal duty resting upon him, and that he is liable for a
failure to perform such duty when the failure results in an injury to
a fellow servant.
Extending the rule, therefore, to its logical conclusion, we are of
the opinion that, where laborers are engaged in work (as in the case
at bar) which requires cooperation, coordination, and action in
response to spoken orders, and which is unsafe in the absence of such
elements, as defendant's own evidence tended to show, it is negligence
for the master to employ servants who do not understand the lan
guage used by the foreman.
The defendant pointed out that the proximate cause of the plain
tiff's injury was the action of Gibson and Mosby in dropping the
rail, and also that it was not proven that the place of employment
was unsafe, but the court held that these were matters for the jury.
The judgment of the circuit court was affirmed.

e m p l o y e r s ’ l ia b il it y

E m p lo ye r s’ L ia b il it y — C o m p e te n t F ello w S e r v a n t s— I n t o x i
cated

E m ployee— N

e g l ig e n c e —

C o n t r ib u t o r y

e g l ig e n c e —

Reed v. Koch, Court oj Appeals, Missouri (March 2, 1926), 282 South
western Reporter, page 515.— Inez Reed brought suit to recover dam
ages for personal injuries received about October 25, 1923, while in the
employ of the defendant. At the time of his injuries the plaintiff was
engaged in driving a team of three horses which were being used to aid
in pulling and loading a wheel scraper. The team was attached to the
scraper by means of a hook put through the end of the tongue on the
scraper. A second team driven by another employee, Archie Wilker
son, was attached to the scraper. When it was filled the teams were
stopped and the plaintiff stepped in front of the rear team to unhook
his team and drive it aside, when Wilkerson slapped his team and
yelled “ Get up.” The horses moved forward and one of them stepped
on the plaintiff’s foot causing him to throw up his hand, striking his
thumb over the hame and mashing and bruising it. Blood poisoning
set in as a result of the injury to the thumb. The plaintiff alleged I
that Wilkerson was addicted to the use of intoxicants, which the de
fendant knew, or by reasonable exercise of ordinary care should have
known; that he was drinking at the time of the accident; and that the
defendant negligently retained him in his employment.
The defendant set up a general denial and also a plea of contribu
tory negligence. The cause was tried twice in the circuit court before
a jury, finally resulting in a verdict and judgment for the plaintiff in
the sum of $2,500, from which judgment defendant appealed. It was
argued that the fact that the plaintiff continued to work with and
around Wilkerson after having knowledge of his drinking was suffi
cient to charge him with contributory negligence.

The court, after reviewing and quoting from the opinions of nu
merous cases decided in the courts of Missouri in which the question
of contributory negligence was in issue, said in part:
It follows as a corollary to this proposition that in considering the
question of a servant’s contributory negligence, his conduct in con
tinuing to work with a fellow servant whom he knows to be incompe
tent is to be judged according to the danger he should reasonably
apprehend would result from such incompetency in view of the par
ticular kind or character of work in which the servants may be engaged.
For instance, a servant would be expected to apprehend greater dan
ger in constructing a paved road, when working in front of a cementmixing machine carrying on the end of its boom a heavy load of
cement if it were operated by an incompetent engineer, than he would
if the incompetent servant with whom he had to work was simply a
teamster whose work required no great degree of skill or care.
Applying the rules of law above set forth to the facts of this case,
we are unable to declare as a matter of law that plaintiff was guilty
of such contributory negligence as to bar his recovery.
The judgment was accordingly affirmed.

24
E

DECISIONS OF THE COURTS
m ployers1

L ia b il it y — D

e t e n t io n

E m ployee

O f f ic e —

Weiler v . Herzfeld-Phillipson Co., Supreme
Court oj Wisconsin (April 6, 1926), 208 Northwestern Reporter, page
599.— A deline W eiler was em ployed b y the defendant com p an y as a

F alse

I m p r is o n m e n t —

clerk in its departm ent store.

I t appeared th at certain facts and

circum stances had cast som e dou b t on her fidelity to her em ployer,
and on D ecem ber

14, 1922, she was called into the office of the assist

ant m anager and there confronted b y him w ith certain articles of
merchandise

th a t he alleged she had sold

m on ey received

therefor to her own use.

and appropriated

the

She was detained for

approxim ately three hours behind closed, b u t n ot locked, doors and
all the while was being urged by the m anager to confess to the charges
and was told b y him that unless she did confess he w ould call the
patrol and send her to jail,

U p o n her continued refusal to confess,

the m anager dictated a confession which she signed.

She brought

action against the com p an y charging it w ith false im prison m en t,
slander, and assault and robbery.

The ju ry fou n d for the plaintiff
The court set

on the charges of false im prisonm ent and slander.

aside the verdict in so far as it applied to the cause of action for
slander and rendered ju d gm en t against the defendant for

$500.

F ro m

th at ju d gm en t the defendant appealed.

The question considered by the supreme court was whether or not
the evidence given in the trial court was sufficient to sustain a charge
of false imprisonment.
The court defined false imprisonment to be
“ the unlawful restraint by one person of the physical liberty of an
other,” and said that “ the true test seems to be not the extent of the
restraint but the lawfulness thereof.” Of this Judge Owen, speaking
for the court, said in part:
While employers should be admonished that their dealings with
their employees under such circumstances must be reasonable and
humane, we can not adopt a rule putting an employer in jeopardy
of a charge of false imprisonment when he summons to his office for
an interview an employee whose conduct is unsatisfactory, or whose
fidelity is under suspicion, especially where the office is one in which
the employer customarily does his business, and the period of the
interview is within the time for which the employee is being com
pensated by the employer. We conclude that the record discloses no
evidence sustaining the finding of false imprisonment.
The judgment was reversed and the cause remanded, with direc
tions to dismiss the plaintiff's complaint.

E m p l o y e r s ’ L ia b il it y — D

uty

E m ployer

G u a r d A g a in s t

St Louis-San Francisco Ry. Co. v . Mills,
United States Supreme Court (May 24, 1926), 46 Supreme Court Re
porter, page 520.— Odell Mills, administratrix of Ira S. Mills, deceased,
St r ik e r s — N

e g l ig e n c e —

e m p lo y e r s ’ l i a b i l i t y

brought action in the Circuit Court of Jefferson County, Alabama,
under the Federal employers' liability act against the St. Louis-San
Francisco Railway Co. to recover damages on account of his death.
The cause was removed to the United States District Court of Alabama,
where the judgment was for the plaintiff. This was affirmed on
appeal, and the defendant then brought certiorari to have the case
reviewed.
It appeared that the deceased was employed at the time of his
death by the defendant company as a car inspector in its railroad
yards at Birmingham, Ala. There was a strike of the railroad shop
men going on at the time, and guards were employed by the company
in the yard where the decedent worked, who accompanied decedent
and some others to and from their homes. On August 3,1922, while
returning home from work, accompanied by a fellow workman and a
guard, Mills was shot to death by strikers. The trial judge withdrew
from the jury the question of negligence on the part of the guard, but
left it for them to say whether upon the evidence the defendant was
employed in interstate commerce at the time and place of the shooting;
whether there was a duty of due care on the part of the defendant to pro
tect the decedent from violence by strikers while going from his place of
employment to his home; and whether the failure to send more than
a single guard for protection was negligence causing the death. The
defendant argued that the evidence did not warrant the submission
of any of these questions to the jury and contended, among other
objections, that there was no evidence of a breach of duty owing by
it to the deceased. Mr. Justice Stone delivered the opinion of the
court, reversing the judgment and said in part:
There was some evidence that, during decedent’s employment,
guards had been provided for employees while at work during the day,
and to accompany decedent and some others to and from their homes.
There was no evidence that petitioner had ever furnished decedent or
any other employee with more than one guard in going to or from
work, or any other evidence from which it could be inferred that
petitioner had undertaken, or held itself out as undertaking, to furnish
more protection to the decedent or its other workmen than it actually
did furnish.
The respondent here asserts that the defendant, having assumed
to do something, should have done more. But the bare fact that the
employer voluntarily provided some protection against an apprehend
ed danger, by undertaking to do something which involved no special
knowledge or skill, can give rise to no inference that it undertook to
do more. Respondent therefore relies on the breach of a duty which
does not exist at common law, and of whose genesis in fact it offers
no evidence.
There is a similar absence of evidence of negligent failure by petition
ers to fulfill this supposed duty of protection. The burden of proving
negligence rested on the respondent.

DECISIONS OF THE COURTS

We need not inquire whether decedent was employed in interstate
commerce at the time of his death * * * as the court below held, so
as to support the judgment of the district court.
The judgment of the circuit court of appeals was reversed and
the cause remanded for further proceedings not inconsistent with this
opinion.
Em ployers’ L ia b ility — “ Em ployee”— N ig h t W atchm an F u r
nished b y T h ird P a rty — Tilling v. Indemnity Ins. Co. of North Amer

ica, Court of Civil Appeals of Texas (April 8, 1926), 283 Southwestern
Reporter, page 565.— Addie L. Tilling brought proceedings under a
so-called employers’ liability act, in the District Court of Texas, for
compensation on account of the death of her husband, William A .
Tilling, who was killed by an automobile on the night of December 31,
1924, at a point between the two parts of the plant of Horton & Horton
(Inc.), in the city of Houston. The deceased was anight watchman for
the firm named, and in the performance of his duties it was necessary
for him to cross the street from one part of the plant to the other. A t
the time he was killed he had with him a watchman’s clock furnished by
the firm. The suit was opposed by the Indemnity Ins, Co. of North
America, insurers of Horton & Horton, on the ground that the
deceased was not their employee within the terms of the compensa
tion law.

It appeared from the evidence given at the trial that Horton &
Horton (Inc.) had an arrangement with the McCane Detective
Agency whereby that agency furnished the watchman service for
their plant. The agency employed the deceased, had control over
and directed his movements, told him where to go and what to do,
paid him for his service, etc. Horton & Horton had nothing what
soever to do with these matters, and if they had occasion to make
complaint about the watchman it was made to the detective agency
and not to the watchman himself.
The trial court entered judgment for the defendant and plaintiff
appealed. She contended that the trial court erred in hoMing: (1)
that the deceased was not an employee of Horton & Horton (Inc.);
(2) that the relationship of employer and employee did not exist
between them; and (3) that the deceased was not killed in the course
of his employment with the firm. The civil court of appeals, in
affirming the judgment of the trial court, said in part:
The controlling question the appeal presents is, we think, whether
or not at the time of the accident Tilling was an employee of the firm
of Horton & Horton (Inc.) within the meaning of our compensation
law (section 1, pt. 4, Vernon’s Ann. Civ. St. Supp. 1918, art. 5246—
82), providing:

e m p l o y e e s ’ l ia b il it y

“ i Employee' shall mean every person in the service of another under
any contract of hire, expressed or implied, oral or written, except
* * * one whose employment is not in the usual course of trade,
business, profession or occupation of his employer."
i\1Employer' shall mean any person, firm * * * or corporation
* * * that makes contract of hire."
There was no sort of privity of contract between Tilling and the
Horton firm; it neither exercised any control over nor knew him as
an individual in the transaction at all, not only dealing exclusively
for the services it desired with an independent agency engaged in
that business generally, but also depending wholly upon it for proper
doing of the work so agreed upon. In such circumstances, no reason
occurs to us under our Texas authorities for not holding Tilling to
have been an employee of the McCane Agency, and that the latter,
in turn, in so using him simply furnished the watchman's service to
Horton & Horton as a turnkey job.
The conclusion that Tilling was not an emplo3ree of Horton &
Horton requires an affirmance of the trial court's judgment, irre
spective of the further question of whether or not he was killed while
in the course of his employment. Were we called upon to determine
that matter, we should hold that he was.
The judgment was accordingly affirmed.
E m p lo y e r s '

L i a b i l i t y — E m p lo y e e — S t a t u s — S u b s t i t u t e

Mathis v. Western & A . R . R., Court
of Appeals of Georgia (July 20, 1926), 184 Southeastern Reporter, page
793.— This suit was brought by M . C. Mathis, administratrix of the
estate of Clyde Otis Mathis, deceased, under the Federal employers'
liability act (U. S. Comp. St., secs. 8657-8665) against the Western
& Atlantic Railroad to recover for his death, alleged to have been
caused by the negligence of the defendant's agents and servants. It
was averred that at the time the decedent was injured he was an
employee of the defendant railroad, and that he and the defendant
were engaged in interstate commerce. The trial resulted in a non
suit, and the case came to this court for review. The evidence showed
that the decedent, at the time of receiving the injury which resulted
in his death, was working as a substitute for one Boseman, an
employee of the defendant, at Boseman's insistence, and that while
in the act of delivering orders to the enginemen and conductoi of the
defendant's train he was attacked with a spell of epilepsy, and fell
upon the track and the train ran over his body and killed him. There
was no evidence that tended to show that the defendant or any of
its agents or employees having authority to do so had anything
whatsoever to do with employing the deceased.
The court, holding that the evidence failed to show that the dece
dent was the defendant's employee, affirmed the judgment of the
trial court. Judge Bell, who delivered the opinion of the court, said
in part:
p lo y e e — A u t h o r it y t o

H ir e —

DECISIONS OF THE COURTS

The burden was on the plaintiff to prove that the relation of master
and servant existed between the decedent and the railroad company
on the occasion in question. The plaintiff insists (among other things)
that, since the evidence shows that the arrangement between Boseman and Mathis was made with the knowledge of Baldwin, the station
agent, Mathis became in law a servant of the company, entitled to
the same protection as the regular servant for whom he was sub
stituting. This is to treat Baldwin as having the authority to consent
to the arrangement on behalf of the company. This he could not
have done in the absence of authority to employ labor. There is
nothing in the evidence to show that any such authority had been
conferred upon him by the railroad company, or that his duties were
of such scope that the authority could be implied. If it had appeared
that he employed Boseman, whom the company had undoubtedly
treated as its servant, then it might have been inferred that he was
empowered to employ Mathis. The evidence as a whole failed, as a
matter of law, to show that Boseman’s contract of employment was
made with the company through its agent Baldwin.
Under the evidence, it does not appear that Baldwin ever under
took to employ Mathis as a servant of the company; the most that
is shown by the evidence being that he consented for Boseman to
employ anyone that could do the work. Assuming, then, that the
authority to employ, under given conditions, was conferred upon the
station agent, Baldwin, he could not delegate this authority to the
inferior agent, Boseman, since it involved discretion and judgment,
the exercise of which the company might never have been willing to
intrust to Boseman.
The judgment was affirmed.
Quite similar to the foregoing were the questions involved in the case of
Bernhardt v. American Ry. Express Co. (1926, 218 N. Y . Supp. 123), in which
the Supreme Court of New York, appellate division, reversed a judgment against
the defendant for damages incurred by a bystander who responded to the request
of a driver of the company's truck engaged in delivering trunks. The trunks
weighed 100 to 125 pounds, said to be not heavy enough to create an emergency
authorizing the driver to employ an assistant to unload them. Being without
this authority, the helper was in the position of a volunteer, and in the absence
of willful injury no liability would accrue.

E m plo yers’

L ia b il it y — E m plo yer

S e n d in g

S ic k

m ployee

H o m e — N e g l ig e n c e — D a m a g e s fo r D e a t h — Tullgren v. Amoskeag
Mfg. Co.ySupreme Court of New Hampshire ( March 2,1926), 183 Atlan
tic Reporter, page 4-— Edwin Tullgren, as administrator and personally,
brought two actions in the superior court against the defendant
company. One was for negligence in causing the death of his wife,
and the other for damages on that account. Both actions were trans
ferred to the supreme court on exceptions by the plaintiff to the
granting of motions for a directed verdict for the defendant and on
the latter’s exceptions to the admission of evidence.
It appeared that the plaintiff’s intestate was employed by the
defendant company at its factory, and on the day of her death became

e m p l o y e r s ’ l ia b i l i t y

so sick while in the performance of her employment that the over
seer had her sent home by one of the employees in an automobile
owned by the defendant. When the driver got within about 700 feet1
of the decedent's home he found the road covered with water and
let her out of the automobile and left her on the road. She went by
foot the rest of the way and died soon after reaching home.
The defendant contended that as both the driver and the deceased
were its employees the negligence, if any, was that of the driver and
that the act of sending the sick employee home was gratuitous and
required care only in furnishing a suitable vehicle and driver. The
court, in passing on the defendant's liability for the negligence, speak
ing through Judge Allen, said in part:
Liability for negligence is imposed by law, regardless of and despite
the terms of the contract and the understanding of the parties.
The service being assumed, the plaintiff was entitled to receive
due care in being taken home, not only in means, but in manner as
well. It was important that she should be taken home in safety, and
care in her travel included the conduct of the travel as well as the
arrangements for it. Responsibility for actual performance of the serv
ice was as much called for as responsibility for its preparation. The
duty of preparation, in furnishing a suitable vehicle and competent
driver, may or may not be performed by servants.
There remains to be considered the sufficiency of the evidence to
show that the driver was negligent, and that, if he was, his negligence
bore causal relation to the decedent's death. If the driver was negli
gent, it was in leaving the decedent to go home unattended. The situa
tion did not readily disclose that a safe passage through the water
obtained. But if the water made an apparent barrier to travel by antomobile, the duty to use care in getting the decedent to some suitable
place was not thereby released. It was for the jury to say whether
the decedent discharged further prosecution of the undertaking when
the travel by automobile ended, and, if not, whether care was then
exercised.
The defendant's right to a verdict does not follow merely because
its negligence may have been ineffective in consequences, but, so far
as consequences capable of inference from the evidence are found, it
is liable.
The court held, therefore, that the plaintiff was entitled to an
allowance of the exceptions claimed as to the first action, that for
negligence, but that as to the second, the claim for damages, the
exception would not be sustained, since “ at common law the death
of a human being can not be complained of as an injury.”

E m p lo y e r s '

L ia b ility — I n t e r s t a t e

C om m erce— E f f e c t

W o r k m e n 's C o m p e n s a tio n A ct— E l e c t i o n — Adams v .

Kentucky
& West Virginia Power Co., Supreme Court of Appeals of West Vir
ginia (June 8, 1926), 135 Southeastern Reporter, page 662.— Aris
Adams was employed by the Kentucky & West Virginia Power Co.,

DECISIONS OF THE COURTS

a corporation engaged in producing electricity in West Virginia,
which it distributes over high voltage wires through parts of West
Virginia and into Pike County, Ky. The plaintiff, a lineman, was
on June 10, 1923, engaged in painting the company's substation
at Falls Branch, W . Va., when he came in contact with a high ten
sion wire and sustained serious injuries. He applied for and was
paid compensation under the workmen's compensation act, but later
brought suit in the circuit court for damages and was awarded a verdict
for $20,000. The defendant brought error. The paramount question
presented to the court was whether the defendant was protected by
the workmen's compensation act.
Section 52 of the workmen's compensation act provides that the
employer and employee engaged in intrastate and also interstate and
foreign commerce may, if such intrastate work is clearly separable
and distinguishable from interstate or foreign commerce, and such
action is not forbidden by any act of Congress, voluntarily accept the
provisions of the act by filing written acceptances with the commis
sion, and such acceptances when accepted by the commission shall
subject the acceptors to the provisions of the act.
The court held that the jury was justified in finding that the
defendant was engaged in interstate commerce and that the substa
tion on which the plaintiff was working at the time of his injury was
part of its interstate system. It then said in part:
As the plaintiff was engaged in general work over the interstate
system of defendant, the joint election or acceptance of the parties
under section 52 was necessary to bring them within the provisions
of the act, and to determine how much the defendant should have
paid into the compensation fund, based upon “ the pay roll of the
employees who accept as aforesaid, for work done in this State only."
We are therefore of opinion that plaintiff is not estopped by apply
ing for and accepting current benefits under the compensation act
from prosecuting his common-law remedy for damages against the
defendant.
The cases relied on by counsel for the defendant as sustaining the
defense of estoppel are from States in which the injured employee
is given the right of election to claim the benefits under the compen
sation act, or sue the employer at law for damages. These cases,
therefore, properly hold that the election of the employee to pursue
the remedy afforded by the act constitutes a waiver of his right to sue.
As the plaintiff at the time of the injury was entitled to pursue
only his remedy for damages at common law, the doctrine of estoppel
by election of remedies is inapplicable.
The judgment of the circuit court was therefore affirmed.

e m p l o y e e s ’ l ia b i l i t y

E m p lo y e r s * L ia b il it y — M

in o r

U nlaw fully

E m ployed— M

KnoxvilU
News Go. y. Spitzer, Supreme Court of Tennessee (January 19, 1926),
279 Southwestern Reporter page 1048.— A statute of Tennessee, Public
Acts of 1911, ch. 37, provides that no child under the age of 16 shall
be employed, permitted, or suffered to operate or assist in operating
job or cylinder printing presses operated by power other than foot
power, and makes a misdemeanor to violate the act. Chapter 77,
section 3, of the Acts of 1917, provides for an employment certificate
to be issued by a proper person and kept on file by the employer.
Paul H. Spitzer, a boy under 16 j^ears of age, was employed by
the Knoxville News Co., and while engaged in helping change the
plates on the cylinder printing press, which was operated by elec
tricity, he suffered a crushed foot when the foreman let a section of
the plate he was taking off fall on it. He brought suit for damages
in the circuit court, and the jury returned a verdict for $2,000 which
was reduced to $1,500 by the judge. On appeal to the appellate
court the judgment of the circuit court was reversed and the plaintiff
brought certiorari for reveiw.
The evidence showed that the plaintiff weighed about 145 pounds,
was 6 feet tall and wore a number 8 or 9 shoe, that he had been
shaving, and that he represented himself to be 16 years old at the
time of his employment. The defendant alleged that it believed
that falsehood and on that ground contended that the question of
unlawful employment should be eliminated.
The court, in the course of its opinion, cited a number of cases in
which questions similar to the one here involved had been in issue
and quoted from many of them. Among the cases cited was that of
Secklich v. Harris Emery Co. (184 Iowa, 1025, 169 N. W . 325), from
which it quoted as follows:
r e p r e s e n t a t io n

A ge— W

o r k m e n ’s

C o m p e n s a t io n —

“ The prohibition declared by the statute is absolute and uncondi
tional; and one who employs a young person to perform a service
thus regulated or forbidden cannot be heard to say in excuse that he
was misinformed * * * or * * * deceived by apparent
maturity of the person employed. To hold otherwise would be to
open the door to wholesale violation of the statute” and would fur
ther insert the word u knowingly ” into the statute.
It was held by the court that under the facts of this case and by
the great weight of authority and in sound reason the defendant could
not plead as a defense in the case that the plaintiff was estopped by
his misrepresentation of his age. It is not a question of whether or
not the employer thought the child was over the prohibited age, but
whether or not he was. (De Soto Coal Mining & Development Co.
v. Hill, 179 Ala. 192, 60 So. 583.)

DECISIONS OF THE COURTS

The decree of the court of appeals was reversed and the judgment
of the circuit court affirmed with costs.
The question of the applicability of the State workmen’s compen
sation act to the case was disposed of by the court saying that “ it
has been settled in this State that, where a minor is employed in
violation of the statutes involved in this suit, the workmen’s com
pensation act is not applicable to bar an action for damages as a
result of injuries suffered by the minor in the unlawful employment.”

E m p lo y e r s ’

L ia b ility —

Ne g lig e n c e —

C o n tr ib u to r y

Ne g l i -

Hussey v. Boston & M . R . R.,
Supreme Court of New Hampshire (February 2, 1926), 188 Atlantic
Reporter, page 9.— E dw in C. H u ssey , an em ployee of the B o sto n &
g e n c e — E v id e n c e — B u r d e n o f P r o o f—

M a in e R ailroad as a linem an, was killed b y an electric shock while
in the act of m aking repairs in the co m p a n y ’s power house.

H is

adm inistratrix brought suit against the defendant for dam ages.

The

cause of the deceden t’s death was n ot disputed, b u t the m anner in
w hich it occurred was the main issue.

There were no eye witnesses to the accident, and it was more or
less a matter of conjecture based upon the surrounding circumstances
which were substantially as follows: The transformer which the
decedent was required to repair was located under a balcony, which
was supported by iron posts. Two ordinary electric light sockets
were attached to the under side of the balcony at the rear of two of
these posts and another socket and the switch controlling the current
to all the light sockets were located on a southerly post. High ten
sion wires ran from other appliances across the aisle in front of the
transformers and were attached to the bottom of the balcony. One
of these wires was southerly of the post carrying the switches and
not under the balcony. All of the wires were slightly above the
socket on the post, and the socket could not be reached by a man
standing on the floor. After procuring the necessary tools, an exten
sion light, and a stepladder, and placing the ladder near the southerly
post, the decedent placed the lamp near where the work was to be
done, and laid the cord alongside the aisle to the post. Shortly
thereafter there was an electrical discharge and Hussey was found
lying dead near the post. His hat, his head, and the palms of his
hands were burned and the light cord was lying across his body.
The dust was missing from the bottom of the high tension wire
southerly of the post, and an insulator at that point was freshly chip
ped, indicating that the discharge had been at that place. On this
statement of facts the jury found for the plaintiff. On the defend
ant’s exceptions to the denial of its motions for nonsuit and for a

EMPIjOYERS 9 LIABILITY

directed verdict and to the admission of evidence the case was trans
ferred to the supreme court.
The court, after considering at some length the evidence in the case
and arguments advanced by the defendant in support of its position,
said in part:
There is abundant evidence of the defendant’s fault. The location
of the light socket in close proximity to the high-tension wires, when
it might well have been placed two feet lower, and within easy reach
of a man standing on the floor, is sufficient upon this issue.
It must be concluded that the decedent’s death was caused by his
head, covered by his hat, coming in contact with or close to the charged
wire. It must also be found that the work he was doing could have
been done without his getting any part of his person within the
danger zone. The question thus presented is whether a workman
employed in a dangerous situation can be thought to be acting with
ordinary prudence when he fails to avoid a known and avoidable
danger. It is manifest that 110 dogmatic rule of law can answer this
query in all cases. Under some circumstances, failure to avoid must
be found to be negligent.
In the present case there is no direct evidence to show how or why
the decedent came within the danger zone. Cause for the contact is
not established. Burns upon the decedent’s hat, head, and hands
'3nd to prove that his hands were on the metal post, presumably in
he act of attaching the lamp to the socket, and that his hat touched
r came near the charged wire. Why his head was within the dan:er zone is a matter left to conjecture. The evidence of the dece
dent’s habitual care in the presence of charged wires tends to negative
the idea of negligent contact. Any of the other suggested causes
would, or might, negative the imputation of his negligence. None of
these propositions is conclusively disproved by the evidence. It may
be conceded that none of them is proved, and still the decision on the
motion to direct a verdict must be against the defendant.
Since there was some evidence that the defendant’s conduct was
unreasonable, and the proof was not conclusive that the decedent’s
conduct was not reasonable, the case was one for the jury, and the
defendant’s motions were rightly denied.
The exception to expert evidence, upon the ground that there was
no evidence of the existence of the conditions assumed, is unavailing,
“ since the jury were expressly instructed that a verdict for the plain
tiff must be based upon the evidence and not upon conjecture.”
The exceptions were overruled, and on a rehearing on the excep
tions to the evidence, the court affirmed the former result.

E m plo yer s’

L ia b il it y — N

P r o v id e d — Bennett

e g l ig e n c e —

F a il u r e

v. Powers, Supreme Court of North Carolina
( November 24, 1926), 185 Southeastern Reporter, page 535.— This was
an action for damages in which one Bennett had secured judgment
in the Superior Court of Wake County. The verdict found by the
jury sustained the charge of negligence on the part of defendant

DECISIONS OF THE COURTS

Powers without contributory negligence on the part of Bennett, and
a judgment of $12,500 was awarded. The defendant, Powers,
employer of Bennett, moved for a judgment as of nonsuit, which
was overruled, whereupon this appeal was taken.
It appears that Bennett, a plumber, was installing a heating system
in a building under construction, the floors not yet being laid. A
walkway had been provided from the entrance of the building to the
work place, but on leaving for dinner Bennett walked diagonally
across the room stepping from sleeper to sleeper. These were about
13 inches apart and had been placed so that there was some vibration.
While so proceeding Bennett fell, suffering serious injury.
The supreme court reversed the judgment on the ground that a
reasonably safe means of entrance and exit had been provided, which
the employee had followed in the morning, but which he departed
from in his attempt to leave the building by a shorter route. On
this point the court said:
Plaintiff was not injured at the place at which he was at work.
Conceding that it was the duty of defendant to use due care, not
only to provide for plaintiff a reasonably safe place at which to work
but also reasonably safe ways by which plaintiff might pass into and
out of the building, in which he was required by the terms of his
employment to work, it appears from the evidence that defendant
had performed this duty. Plaintiff undertook to leave the place at
which he had been at work by a way which had not been provided
by defendant. There is no evidence that he had been instructed by
defendant or by his foreman to walk diagonally across sleepers, which
were shaky or insecure, in order to get to the south door, and thence
leave the building. If he had undertaken to leave the building by
the same way he had entered that morning, he would not, so far as
the evidence discloses, have been injured. Defendant, having
exercised due care to provide a reasonably safe way for plaintiff to
pass into and out of the building and thence to and from his work,
had fully performed the duty which was imposed upon him by law.
Plaintiff voluntarily chose another way, which he knew was hazardous.
Defendant can not be held liable for damages sustained by plaintiff
while leaving the building by a way not provided by defendant.

E m p l o y e r s ’ L i a b i l i t y — N e g l i g e n c e — P r o x im a t e

C au se— U se

Atlantic Coast Line R. Co. v . Wheeler, Supreme Court
oj Appeals of Virginia {March 18, 1926), 182 Southeastern Reporter9
page 517 .— T h is action was brought b y J. L. W h eeler against the
o f P a in t G u n —

A tla n tic C o a st L in e R ailroad C o . for inju ry to his eyes alleged to
h ave been due to lead poisoning caused b y the negligence of the
co m p an y while he was in its em p lo y .
su bstan tially th ese: P laintiff,

T h e facts in the case were

a m a n in splendid health and w ith

eyesight unim paired, was em p lo y ed b y the co m p an y as a carpenter,

EMPLOYERS9 LIABILITY

and on August 11, 1922, against his wishes, was put to work as a
painter. He informed his boss that he was not a painter; that he
knew nothing about paints; and that he could not read. He was
first ordered to paint cars with a brush, but later to paint them with
a paint blowgun which forced the paint against the car in the form
of a fine spray. The paint used contained 36.68 per cent white lead
and 33.16 per cent zinc oxide. The defendant knew the paint was
poisonous, and had previously purchased face masks and goggles for
the protection of the operators of the blowgun. The plaintiff had
never seen a blowgun or face mask and did not know that there was
danger of being poisoned by the spray. The defendant did not warn
him of the danger or instruct him to use the mask and goggles, and
consequently the plaintiff inhaled the spray, thereby getting lead
poisoning, which resulted in the loss of his eyesight. From a judg
ment for plaintiff the defendant appealed, on the ground that the
verdict of the jury was contrary to the evidence. Judge West deliv
ered the opinion of the court sustaining the judgment, and said
in part:
When defendant’s primary negligence has been established, plain
tiff’s right to recover does not depend upon defendant’s ability to
foresee or anticipate that the particular injury might result from such
negligence. Under such circumstances, the defendant is liable for
the natural or probable consequences of the act.
It is obvious that there was ample evidence introduced in the
instant case tending to prove a different state of facts, which, if
believed by the jury, would have justified a different conclusion upon
the question of the defendant’s primary negligence. But this was a
question for the jury, and their finding against the defendant is
conclusive here.
The questions of primary negligence and proximate cause having
been decided by the jury in favor of the plaintiff, we can not upon
the record say the verdict is contrary to the evidence or without
evidence to support it.
Had the verdict been for the defendant, we could not have disturbed
it, and we find nothing in the record to warrant us in reversing the
judgment in favor of the plaintiff.
The judgment was therefore affirmed.
The same court had before it at a little earlier date a case in which the question
of proximate cause was likewise involved, the conclusion being reached that the
negligence of the employee was responsible for the injury. A gasoline torch was
furnished the workman, who found it necessary to make repairs in a way familiar
to him, and capable of accomplishment in a safe manner. Failure to use proper
care in this respect left the torch dangerous, with fatal results. As it was found
to be the decedents duty to make the repairs, a judgment denying the employer’s
liability was affirmed. (Farmer’s Admx. v. Chesapeake & 0 . E. Co. (1926), 131
S. E. 334.)

DECISIONS OF THE COURTS

Em ployers’ L ia b ility — R a ilro a d Companies— F e d e r a l S ta t
u te — Assumption o f Risks— Looney v. Norfolk & W. By. Co.,

Supreme Court of Appeals of West Virginia (June 1, 1926), 135 South
eastern Reporter, page 262.— George Oscar Looney, an experienced
engineer, had been employed by the defendant company many years,
most of the time in operating loaded and empty coal cars on its main
line from Williamson to Cedar, thence on a branch line to the coal
plant of the Majestic Collieries Co. The coal company had a tipple
built over four railroad tracks numbered 1, 2, 3, and 4. Tracks Nos.
1 and 4 were used for the delivery of empty cars, which were pushed
under and then stored above the tipple, from there being dropped
down for loading. Above the tipple the coal company had a car
retarder used for dropping down the cars for loading as required, and
under which the engines and cars used in this operation were required
to pass. On January 23, 1924, when Looney, operating his engine,
attempted to go under the tipple, his cab caught the pulley of the
retarder and was torn from the boiler, to which it was fastened by
iron bolts leaving holes in the boiler through which the steam and
hot water escaped into the cab where Looney was, burning him so
badly that he died as a result thereof in about two weeks. His
widow brought suit for the wrongful death of her husband under
section 8069, Barnes' Federal Code, (35 Stat. 65; U. S. Comp. St.,
sec. 8657) for the benefit of herself and their two infant children,
laying the damages at $100,000. A trial of the cause in the circuit
court of Mingo County resulted in a verdict for the plaintiff in the
sum of $53,750. On the court's refusal to set aside the verdict and
award a new trial, the defendant brought error.

The main proposition relied on by the defendant was that because of
the long service of the deceased and his knowledge of the car retarder,
and the dangers incident thereto, he must be held as a matter of law
to have assumed the risk, precluding recovery in an action based on
the Federal employers' liability act. In answer to that proposition,
the court said in part:
It is true defendant had been employed on this branch line for
several years, and we may assume, if it is not proven, that he knew
of the existence of the car retarder. It does not follow from this
knowledge that he knew and appreciated the danger of running his
engine under the tipple. The evidence shows that another engineer,
on the same day of the accident, had driven an engine of the same
model and class safely under the retarder, and he and other engineers
had negotiated similar train movements there many times before that.
A number of enginemen and firemen who had worked with Looney
on the same branch for several years testified that they had never
during all the years of their employment come in contact with the
retarder.

e m p l o y e r s ’ l ia b il it y

It occurs to us that if the dangers of the car retarder were so open
and patent as to charge Looney with notice and appreciation thereof,
why was it that some of the numerous other trainmen using the tracks
had not observed it and made complaint, and why some superintend
ent or inspector of the railway company had not done so, and recti
fied the condition? And is it not fair to assume that if Looney had
observed and appreciated the dangers, he would have complained?
He had the absolute right to assume, without knowledge to the con
trary, that the defendant was furnishing him with a reasonably safe
place to work.
The law as declared here and elsewhere is that an employee of a
railway company assumes all the ordinary risks of his employment,
but not the extraordinary risks and hazards to which the negligence
of the railway company may from time to time subject him and to
which he has the right to assume his employer will not expose him,
and that he may act on this assumption unless the dangers are so
open and apparent as to cause a man of ordinary prudence to see
and appreciate them.
We are of opinion, based on the decisions cited, that the question
of Looney’s knowledge and assumption of risk due to the presence of
the car retarder was properly submitted to the jury, and that a per
emptory instruction to find for the defendant would have been erro
neous. It is only where the danger is so open and obvious, and the
opportunity or knowledge on the part of the employee is so complete
as to leave no doubt that he knew, or should have known all about
it, that the question becomes one of law for the court.
It was contended by the defendant that the verdict was excessive
and that the jury should have been directed to apportion the amount
allowed among the beneficiaries, but the court, after reviewing the
evidence submitted as to the age, earning capacity, etc., of the
deceased and the fact that he appropriated two-thirds of his earnings
to the maintenance and support of his wife and children, held that
it was possible to calculate by reference to mortality tables with some
degree of certainty the amount of the pecuniary loss and that the
amount was not so grossly excessive as to call for a reversal. It also
held that the court could not assume that the jury included a greater
amount for the infant children than they were entitled to under the
law applicable and the facts in evidence.
Judge Miller, in concluding the opinion of the court, said in part:
The recovery here is in a lump sum, and as to how it shall be
apportioned between the children will be determined no doubt here
after by the proper tribunal.
Any doubt we may maintain on any of the questions involved, we
must resolve in favor of the judgment below, for it is our duty to
affirm unless the judgment is plainly wrong.
The judgment was accordingly affirmed.
In line with the reasoning in the above case, and reaching a like conclusion is
a case before the United States Circuit Court of Appeals (Davis v. Crane (1926) v
12 Fed. (2d) 355.) Here a brakeman riding on top of a long train of cars was

DECISIONS OF THE COURTS

struck by a low bridge, one of several in the place of employment, without tell*
tale warnings, and killed while riding backwards, watching for signals from the
rear. Judge Kenyon gave the opinion holding the company liable, saying that
the defense of assumed risks was properly submitted to the jury, the law not
covering extraordinary risks resulting from the employer’s negligence.

m plo yer s’

L i a b i l i t y — R a il r o a d C o m p a n ie s — F e d e r a l S t a t

e g l ig e n c e — Talbert v . Chicago, R. I. & P. Ry.
Co., Supreme Court of Missouri ( May 21, 1926), 284 Southwestern
Reporter, page 499 .— R ollin E. T a lb ert brough t action as adm inistrator
under the Federal em ployers’ liability act for the death of C ly d e N.
ute—

C o n t r ib u t o r y N

L illard, w ho was em ployed as brakem an b y the a b ov e-n a m ed rail
road com p an y, an interstate com m erce carrier.

At the tim e he w as

killed the deceased was engaged in coupling cars which were equipped
w ith autom atic couplers operated b y a lever.
over and killed him was about

W h e n the car th a t ran

25 feet from the car to which it w as

to be coupled, decedent stepped betw een the rails and took h old of
the drawbar w ith his hands in the position of opening the knuckle, and
while w alking w ith the car his foot w ent dow n into the earth and

stu m bled and fell under the car on the rail.

The plaintiff in his declaration predicated the right of action on the
defective condition of the railroad’s roadbed, but, after the defend
ant’s plea, this was amended so as to charge the railroad with defec
tive couplers on the car in question. At the close of the evidence,
the court instructed the jury that if it found the facts to be as pred
icated in the petition, its verdict should be for the plaintiff. The
jury returned a verdict for the plaintiff for $10,000 damages on
account of the death of the deceased employee, and $2,000 for his
conscious suffering, whereupon the defendant appealed. The Supreme
Court of Missouri in reversing the judgment of the lower court held
that there could be no recovery under the Federal employers’ liability
act (U. S. Comp. St., secs. 8657-8665), since the railroad’s liability
was based on the defective roadbed and the petitition could not by
reply be amended so as to predicate liability on the railroad’s failure
to comply with the requirements of the Federal safety appliance act,
section 2 (U. S. Comp. St., sec. 8606), by reason of defective condi
tion of couplers.
The opinion of the majority of the court was in part as follows:
As the petition fails to charge that the car was not equipped with
automatic couplers in compliance with the act of Congress, it nec
essarily results that a recovery can not be had under the pleadings
by evidence tending to prove that the coupler was defective. It
must be taken as conceded by the petition, for the purpose of this
action, that the car was equipped with automatic couplers; hence
Lillard’s conduct in going between the rails in front of a moving car
to effect the coupling was violative of the safety appliance act.

EMPLOYERS* LIABILITY

If we read the safety appliance act into the petition, it must be
held that the company owed Lillard no duty to maintain the passing
track in a reasonably safe condition for him to walk upon. His pres
ence upon the track in dangerous proximity to the moving car was
not to have been anticipated. Lillard's violation of the act, and
not the condition of the roadbed, was the proximate cause of his
injury.
The couplers were of standard construction. The testimony of
plaintiff's own witness, that the coupler was in perfect order, as
well as the testimony of the company's witnesses to the same effect,
is uncontradicted. The testimony offered by plaintiff's witness
in rebuttal was that, under the conditions shown by the evidence,
the drawbar might have had so much lateral play as to require
adjustment by hand, is merely speculative; in fact, from the evidence,
there can be little doubt that Lillard's unfortunate action in going
in front of the moving car was prompted by the common practice of
brakemen in disregard of the positive rule of the company. The
company may have waived the rule, but the act of Congress, enacted
for the express purpose of guarding employees from the danger
incurred in coupling cars with the old style of couplers, stands on
a different footing; the mandate of the law can not be waived or
disregarded.
The judgment was therefore reversed, and the cause remanded.
In line with the foregoing was a decision by the Court of Appeals of Ken
tucky. (Neal’s Admr. v. Louisville & N. R. Co. (1926), 284 S. W. 429.) Here
the employee was engaged in doing repair work in the defendant’s yards when
a claw bar he was using in lifting a heavy car with a 40-ton jack flew out and
hit him inflicting injuries which caused his death. The evidence disclosed that
the railroad company kept 50-ton jacks in its yards to be used in lifting heavy
cars, and that it kept on hand wooden handles made to fit in and use in opera
ting both the 40 and 50 ton jacks. It was also shown that the deceased had
been twice ordered and directed by his superiors not to use a 40-ton jack on
that job. From a directed verdict for the defendant in the^ circuit court the
plaintiff appealed. The judgment was affirmed, the court holding that “ under
any interpretation of the evidence the injury to the decedent was brought about
solely by his own negligence, and the lower court properly directed the verdict.”

E m p l o y e r ' s L i a b i l i t y — R a il r o a d C o m p a n ie s — F e d e r a l S t a t
D e a t h of C a r I n s p e c t o r — M e a s u r e of D a m a g e s — Louis
ville & N. R. Co. v. Wingo7s Admx., Court of Appeals of Kentucky
( March 2,1926), 281 Southwestern Reporter, page 170.— Dewitt Wingo,
an employee of the Louisville & Nashville Railroad Co., was killed
while in the performance of his duties as a car inspector. His widow
brought an action against the defendant for damages on account of
the decedent's death.
There was no material dispute about the facts. The defendant
ran its passenger trains into the passenger station of the Pennsylva
nia Railroad Co. in Cincinnati on the tracks of the latter company’s
road under lease. A sleeping car which Wingo was inspecting at the
ute—

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

time in question was on a side track within 2 or 2J4 feet of the
bumping post, and while he was between the end of the car and
the bumping post making some adjustments of the steam hose, the
switching crew approached with a dining car which they attached
to the sleeping car. No signal of approach was given, and the coup
ling was made with such force as to move the sleeper against the post.
Immediately thereafter Wingo was found with his head crushed and
in a dying condition.
At the close of the trial the court directed a verdict for the plain
tiff and submitted to the jury only the question of damages. The
jury awarded $12,500 to the widow, $6,000 each to two of the infant
children, and $2,000 to the other one. The defendant appealed and
set up as a defense its nonliability; assumption of risk; that the
facts of the case were matters for the jury; and that the award was
excessive.
The court held that in the absence of proof that the switching crew
was under the control of the Pennsylvania Railroad Co., it must be
held that at the time of the accident it was in the employ of the
defendant. Taking up the other questions presented, the court said
in part:
Wingo had the right to act on the assumption that the members
of a crew, in approaching with another car, would perform their duty,
and there is nothing in the evidence to justify the inference that he
knew of the diner’s approach and voluntarily placed himself in a posi
tion of danger.
There is no evidence of contributory negligence. It follows that
the case is one where the facts are undisputed, and the only reason
able conclusion that may be drawn therefrom by ordinarily fair and
sensible men is that Wingo, while in the performance of his duties,
was killed by the negligence of appellant. Therefore the question of
negligence and proximate cause was for the court and not for the jury,
and the court did not err in directing the jury to find for appellee.
The size of the verdict presents a more serious question. As before
stated, the damages were fixed at $26,500, of which sum $12,500 was
apportioned to the widow, $6,000 to Thelma Raines Wingo, age 3,
$6,000 to William Thomas Wingo, age 5, and $2,000 to Deroda Wingo,
age 17. Wingo at the time of his death was 42 years of age, and had
an expectancy of 26 years. His wages were $5.60 a day. On the
basis of six working days in a week, he received $1,747.20. On the
other hand, if he worked every day in the year, he received $2,044,
Allowing him, as the head of the family, a reasonable amount for his
own support, it is apparent that whether we adopt the one figure or
the other the interest at the usual and ordinary rate on the amount
awarded each of the beneficiaries is only slightly less than, if not equal
to, the actual pecuniary benefits which such beneficiary would have
received had the decedent continued to live. The result is that the
Denenciaries will not only enjoy all the benefits that they would have
received from the decedent had he continued to live, but at the end
of their expectancy will have on hand a sum almost, if not quite, equal

EMPLOYEES * LIABILITY

to the aggregate benefits they would have received. In view of those
circumstances, we are constrained to the opinion that the verdict is
excessive.
The judgment was therefore reversed and cause remanded for a new
trial consistent with the opinion.

E m p l o y e r s ’ L i a b i l i t y — R a il r o a d C o m p a n ie s — F e d e r a l S t a t
E f f e c t o f J u d g m e n t U n d e r S t a t e S t a t u t e — Chicago, R.
1. & P. Ry. Co. v. Schendel, Same v. Elder, Supreme Court of the United
States (April 12, 1926), 46 Supreme Court Reporter, page 420.— These
cases grew out of an accident on the line of the railway company in
Iowa in which Clarence Y . Hope was killed and Fred A. Elder injured
under circumstances which established the negligence of the railway
company and its consequent liability for damages. Separate actions
were brought against the company.
In the Hope case the action was brought in the Minnesota District
Court, by a special administrator of the deceased’s estate, on Febru
ary 21, 1923, under the Federal employers’ liability law (Comp. St.,
secs. 8657-8665), for the sole benefit of the surviving widow. There
after, on March 2,1923, the railway company instituted a proceeding
before the Iowa Industrial Commission under the Iowa workmen’s
compensation act, and joined the widow as a party as sole beneficiary
under the act. It asked for an arbitration as provided in the Code of
Iowa of 1924, section 1361 et seq. The arbitrators found that the
deceased was engaged in intrastate commerce at the time of the acci
dent; that the case was governed by the compensation act and
awarded compensation to the widow, who thereupon filed application
for review with the commissioner. That officer, on review of the
facts, specifically found that the deceased was engaged in intrastate
commerce and approved the award. An appeal to the district court
of Lucas County resulted in a final judgment being entered on June
2, 1923, affirming the award. That judgment was pleaded as a bar
to the plaintiff’s action in the Minnesota court. The court, however,
held that the plea was bad for two reasons: (1) because the Federal
act was supreme and superseded all State laws in respec t of employers’
liability in interstate commerce; and (2) that there was a lack of
identity of parties. It then rendered a verdict for the plaintiff on
March 4,1924, some eight months after the judgment above referred
to was rendered, and the defendant petitioned for a writ of certiorari
for review.
Mr. Justice Sutherland delivered the opinion of the court and said
in part:
ute—

Whenever a judgment is rendered in one of the courts and pleaded
in the other, the effect of that judgment is to be determined by the

DECISIONS OP THE COURTS

application of the principles of res judicata by the court in which
the action is still pending in the orderly exercise of its jurisdiction,
as it would determine any other question of fact or law arising in the
progress of the case. The rule, therefore, has become generally estab
lished that where the action first brought is in personam and seeks
only a personal judgment, another action for the same cause in
another jurisdiction is not precluded.
The Iowa proceeding was brought and determined upon the theory
that Hope was engaged in intrastate commerce; the Minnesota action
was brought and determined upon the opposite theory that he was
engaged in interstate commerce. The point in issue was the same.
That the Iowa court had jurisdiction to entertain the proceeding and
decide the question under the State statute, can not be doubted.
Under the Federal act, the Minnesota court had equal authority;
but the Iowa judgment was first rendered. And, upon familiar prin
ciples, irrespective of which action or proceeding was first brought,
it is the first final judgment rendered in one of the courts which
becomes conclusive in the other as res judicata.
The Iowa court, under the compensation law, in the due exercise
of its jurisdiction, having adjudicated the character of the commerce
in which the deceased was engaged, that matter, whether rightly
decided or not, must be taken as conclusively established, so long as
the judgment remains unmodified.
Hope's death as the result of the negligence of the railroad com
pany gave rise to a single cause of action, to be enforced directly by
the widow, under the State law, or in the name of the personal rep
resentative, for the sole benefit of the widow, under the Federal law,
depending upon the character of the commerce in which the deceased
and the company were engaged at the time of the accident. In
either case, the controlling question is precisely the same, namely:
Was the deceased engaged in intrastate or interstate commerce?
And the right to be enforced is precisely the same, namely, the right
of the widow, as sole beneficiary, to be compensated in damages for
her loss. The fact that the party impleaded under the State law',
was the widow, and under the Federal law was the personal repre
sentative, does not settle the question of identity of parties. That
must be determined as a matter of substance and not of mere form.
The essential consideration is that it is the right of the widow, and
of no one else, which was presented and adjudicated in both courts.
If a judgment in the Minnesota action in favor of the administrator
had been first rendered, it does not admit of doubt that it would
have been conclusive against the right of the widow to recover under
the Iowa compensation law. And it follows, as a necessary corollary,
that the Iowa judgment, being first, is equally conclusive against the
administrator in the Minnesota action; for if, in legal contemplation,
there is identity of parties in the one situation, there must be like
identity in the other.
Then turning his attention to the Elder case, the Justice said:
In the Elder case, as in the case just considered, the railway com
pany began a proceeding before the industrial commissioner. Elder
answered, averring that he was engaged in interstate commerce at
the time of the injury. The parties stipulated that the commissioner
or his deputy should take the place of the arbitration committee; and

e m p l o y e r s ’ l ia b il it y

the deputy commissioner, pursuant to the stipulation, heard the
matter and filed his decision. Thereupon Elder applied for a review
by the commissioner, under the statute, but no action had been taken
upon that application by the commissioner at the time the judgment
was rendered in the Minnesota court. Under the Iowa statute,
therefore, the decision had not ripened into an enforceable award,
and we are not called upon to determine what, in that event, would
have been its effect as an estoppel. The proceeding being still in
fieri when the Minnesota case was tried and determined, the doctiine
of res judicata is not applicable. There must be a final judgment.
The judgment in the Hope case was reversed and the case remanded
for further proceedings not inconsistent with the opinion, and the
judgment in the Elder case was affirmed.

E mployers’ L iability — R ailroad C ompanies— F e d e r a l Stat
K illed by S pecial O fficer of th e C ompany—
N egligence — Southwell v. Atlantic Coast Line R. Co., Supreme Court

ute — Employee

of North Carolina (February 17, 1926), 181 Southeastern Reporter, page
670.— Ida Mae Southwell sued the Atlantic Coast Line Railroad Co.
to recover damages for the death of her husband, an engineer on that
railroad, who was shot and killed by E. H. Dallas while Southwell
was passing through the company's station on his way home after
coming off his run. Plaintiff had judgment in the superior court,
but was nonsuited on defendant's appeal. The supreme court set
aside the judgment of nonsuit and ordered a new trial on the issue
of whether or not the death of the deceased was due to the negligence
of the railroad company, to be determined under the Federal employ
ers’ liability act (127 S. E. 361).
From a second judgment for
plaintiff defendant also appealed.

It appeared from the evidence in the record that E. H. Dallas was
employed by the railroad company as assistant yardmaster, and that
he also did other kinds of work such as inspecting and repairing cars
at the company’s terminal at Wilmington, N. C., and was subject to
the orders of one Fonville, who was general yardmaster at that ter
minal. At the time of the killing there was a strike on among the
shopmen, and Dallas, at the request of the defendant, had been sworn
in by the mayor as a special officer ostensibly to assist A. L. Kelley,
a lieutenant of the police department for the railroad whose office
was in the station near where the shooting occurred. It was also
shown by the evidence that bad feeling existed between Dallas and
the deceased to the knowledge of the general yardmaster and the
superintendent; that the yardmaster knew that Dallas was carrying
a pistol on the premises of the company, and had, only a few minutes
before the shooting, walked through the train shed with him and saw
a 38 caliber blue steel pistol in his pocket, and that they were talking

DECISIONS OF THE COURTS

about the difference between Dallas and the deceased, Dallas saying,
“ Cap, all I want to do is to ask Southwell to lay off me and let me
alone.” This was repeated a few minutes later. The yardmaster
then left him near the gate where they both knew Southwell would
soon be coming through, and went toward his office. On looking
back he saw the men approaching each other and turned back for
the purpose of separating them but had advanced only about three
steps when the gun was fired.
The defendant introduced no evidence in the trial court, but made
numerous exceptions and assignments of error to admission and exclu
sion of evidence, to refusal to grant its prayers for instructions, and
to certain excerpts from charge as given.
The court reviewed at length the history and purpose of the Fed
eral employers’ liability act, and cited numerous cases that had been
adjudicated by the United States Supreme Court and by the highest
courts of several of the States where that act had been in question,
saying that, “ under the act, the alleged negligence must be the prox
imate cause of the injury.” A principal point of the defendant’s
appeal was that the killing was a wanton and willful act, outside the
scope of Dallas’s authority, and that there was not sufficient evidence
to be submitted to the jury as to actionable negligence. In disposing
of the case the supreme court, speaking through Judge Clarkson,
said in part:
Under all the facts and circumstances of the case, both the direct
and circumstantial evidence, we think that there was sufficient evi
dence to warrant the jury in finding that defendant was guilty of
actionable negligence under the Federal employers’ liability act. The
geneial yardmaster at the Wilmington terminus knew, or in the
excercise of reasonable care ought to have known, that the plaintiff’s
intestate, an engineer, had to pass out of the gate near his office
about the time he approached the gate and was shot by defendant’s
employee, Dallas. The yardmaster knew Dallas, the employee under
him, had a pistol. The word “yardmaster” ex vi teimini indicates
one in authority. The yardmaster had the authority to stop Dallas.
The engineer, to go to and from his work, passed in and out of the
gate near the yardmaster’s office. The yardmaster did nothing to
restrain or stop his subordinate, with knowledge that Dallas was
going to upbraid him, but allowed him, on the company’s yard as
the engineer approached the gate exit, to shoot the engineer, who
was unarmed and on his way home. The engineer was “ on duty”
in the defendant’s inclosed yard. The employer is not an insurer,
and the care and diligence required in a particular case, the failure
to exercise which is actionable negligence, is that of an ordinarily
prudent man under the same or similar circumstances.
We have carefully gone over the record and examined the assign
ments of error and see no prejudicial or reversible error. We exam
ined defendant’s able brief. The whole case is founded on whether
there was sufficient evidence to be submitted to the jury as to action

EMPLOYERS9 LIABILITY

able negligence. In the former case we thought there was (facts
substantially the same) and we think the same in the present case.
We can find no error.
The judgment was therefore affirmed.

E m p l o y e r s ’ L i a b i l i t y — R a il r o a d

C o m p a n ie s — F e d e r a l S t a t

Feaster v . Southern R y . Co., United States
Circuit Court of Appeals (October 19, 1926), 15 Federal Reporter (2d),
page 5Jfi.— T h e question involved in this suit was as to the statu s of
ute—

I n d u s t r ia l P o l ic e —

an em ployee hired as a night w atch m an during the sh opm en ’s strike
of

1922.

Mrs. K a te Feaster, adm inistratrix o f the estate of the de

ceased w orkm an, sued in the court o f com m on pleas of A iken C o u n ty ,
S. C ., to recover dam ages for the death o f her intestate.

T h e com

p a n y m oved for a transfer o f the case to the D istrict C ou rt of the
U n ited States on grounds o f diversity o f citizenship, claim ing th at
the plaintiff had join ed a local defendant sim p ly for the purpose of
defeating the railw ay’s right o f rem oval.

T h e court held th at the

case was properly transferred to the Federal court.
to this ruling

In opposition

Mrs. Feaster urged th at the em ployee was b y the

nature o f his em p lo y m en t engaged in interstate com m erce so as to
com e w ithin the term s o f the Federal em ployers’ liability act.

the point of status in this aspect, the court found th a t “ although he
was em ployed and paid b y the railroad co m p an y , Feaster w as actu
ally engaged in local police d u t y .”

H e had been deputized as a

d ep u ty sheriff o f the co u n ty in which the yards and shops were
located.

T h e railroad co m p a n y ’s rolling stock used in interstate

com m erce was here repaired and interstate trains m oved con stan tly
through the yards.

T h e court com pared the situation to the m o v e

m ent o f trains through the P en nsylvan ia S ta tio n in N e w Y o r k C it y ;
“ y et we should n ot be prepared to hold th at the m unicipal policem en
on d u ty there were em ployed in interstate com m erce.”

One Britt was joined as defendant on the ground that it was due
to his negligence while foreman of the yards that the fatal assault
occurred. The death was due to the acts of unknown parties who
shot, beat, and killed the watchman. The negligence charged was
failure to provide a safe place to work, to provide proper appliances,
and enough fellow guards to enable him to perform his duties with
out extreme danger, and the admission of hostile employees to the
locality. It was found that Feaster was furnished with a first-class
pistol in good working order and cautioned that he must be “ mighty
careful” or “ those fellows will get you.” It was further found that
Britt had nothing to do with the employment or retention of shop or
yard employees, and that there was no proper joinder of him as
defendant. It was found that the alleged inadequacy of guards,

DECISIONS OF THE COURTS

weapons, and warnings could not be sustained as acts of neglect
because there was nothing in the facts alleged to show that “ Feaster
would not have come to his untimely end, even though the defend
ants had in these respects exercised all reasonable diligence. Had
any negligence of the defendants contributed in a remote degree to
his death it might have been necessary, as under the circumstances
it is not, to consider whether his deliberate murder by persons alto
gether unconnected with the defendants was not the interposition of
such an independent act of others as made it impossible for such
negligence to have been in legal contemplation a proximate cause of
his taking off.”
Various charges made were characterized as “ merely conclusions of
the pleader and do not state facts.” No “ negligent acts” were
properly charged, and the court below was held to have acted with
out error in sustaining the demurrer. The judgment for the defend
ants was accordingly affirmed.

Em ployers’ L ia b ility — R ailro a d Companies— F e d e r a l S t a t
u te — Lim itations— Appointment o f A dm inistrator— Reading Co.
v. Eoons, United States Supreme Court (April 12, 1926), 46 Supreme
Court Reporter, page 405.— This action was broug it by John L. Koons,
administrator of Lester M. Koons, against the Reading Co., successor
of the Philadelphia & Reading Railway Co., for causing the death of
the decedent while in its employ nearly seven years before. The
defendant pleaded the statute of limitations as provided in section 6
of the Federal employers’ liability act, which is as follows:

That no action shall be maintained under this £,ct unless commenced
within two years from the day the cause of action accrued.
The plaintiff contended thaf since the cause :>f action for death is
created by statute, and is given exclusively to the administrator of
the decedent, no cause of action can arise or ace,rue until there is an
administrator.
It appeared that the decedent died on April 23,1915, as a result of
injuries received while employed by the defendant, and on Septem
ber 23,1921, more than six 3^ears afterward, letters of administration
were granted to the plaintiff who, on February 6, 1922, brought his
action. From judgment for plaintiff the defendant appealed to the
Supreme Court of Pennsylvania, which affirmed the udgment of the
lower court, and the defendant sued out a writ of certiorari to have
the case reviewed by the Supreme Court of the United States, where
the decision below was reversed.
Mr. Justice Stone delivered the opinion of the court, saying in
part:

EMPLOYERS* LIABILITY

The application of this statute turns on the question whether the
cause of action created by the act may be deemed to have “ accrued,”
within the meaning of the act, at the time of death or on the appoint
ment of the administrator, who is the only person authorized by the
statute to maintain the action.
Many cases were cited in which the holdings of the courts were in
conflict on the construction of the word “ accrued” used in the stat
ute, some of the courts holding that the limitation begins to run from
the appointment of an administrator, while others held that it began
to run from the death of the decedent.
The opinion continued:
This diversity of view arises principally from the attempt made to
find in the word “ accrued,” used in the statute, some definite tech
nical meaning which will in itself enable courts to say at what point
of time the cause of action has come into existence, and consequently
at what point of time the statute of limitations begins to run.
At the time of death there are identified persons for whose benefit
the liability exists and who can start the machinery of the law in
motion to enforce it by applying for the appointment of an admin
istrator. This court has repeatedly held that a suit brought by such
persons in their individual capacity is not a nullity within the provi
sions of the act, and that if by amendment the plaintiff is properly
described as executor or administrator of the decedent, even though
the amendment is had after the expiration of the statutory period,
the suit may be maintained and a recovery had under the statute.
The language of the statute evidences an intention to set a definite
limit to the period within which an action may be brought under it
without reference to the exigencies which arise from the administra
tion of a decedent’s estate.
The very purpose of a period of limitation is that there may be, at
some definitely ascertained period, an end to litigation. If the per
sons who are the designated beneficiaries of the right of action created
may choose their own time for applying for the appointment of an
administrator and consequently for setting the statute running, the
two-year period of limitation so far as it applies to actions for wrong
ful death might as well have been omitted from the statute. There
is nothing in the language of the statute to require, or indeed to sup
port, such an interpretation.
The judgment of the Supreme Court of Pennsylvania was therefore
reversed.
E mployers ’ L iability — R ailroad C ompanies — F ederal Stat
M aking R epairs — A ssumption of R isk — P roximate
C au se — Minneapolis, St. P . cfc S . S. M. By. Co. v. Goneau,
ute—

United States Supreme Court (January 4, 1926), 46 Supreme
Court Reporter, page 129.— Ernest J. Goneau was employed by
the railroad company as rear brakeman on one of its freight
trains which broke in two between stations in the nighttime;

DECISIONS OP THE COURTS

the two sections of the train stopped a few feet apart on a narrow
wooden bridge with open ties. The breaking of the train resulted
from a defective coupler, made so by the carrier iron which held it
in place becoming loose and letting the coupler drop down so that it
did not interlock with the opposite car. When Goneau discovered
the trouble he undertook to get the train coupled up again so that
it could proceed. To make the coupling it was necessary to get the
carrier iron back in place so as to hold the coupler. In attempting
to do thi3 and while pulling hard on the carrier iron, it suddenly
gave away, causing him to lose his balance and fall over the side of
the bridge to the ground below, thereby sustaining serious injuries.
He brought suit in a Minnesota court to recover damages under
section 2 of the safety appliance act of 1903 and section 4 of the
employers' liability act. The safety appliance act makes it unlawful
for a carrier to haul cars not properly equipped with automatic
couplers, while section 4 of the employers' liability act provides that
an employee shall not be held to have assumed the iisks of his
employment in any case where the violation by the carrier of any
statute enacted for the safety of employees contributes to his injury
or death. The company defended under section 4 of the supple
mental safety appliance act of 1910 (36 Stat. 298, ch. 160), which
provides that where a car that has been properly equipped by a car
rier becomes defective upon its line of railroad, it may be hauled
from the point of discovery of the defect to the nearest point where
it can be repaired without liability for penalties, but without releas
ing the carrier from liability for the injuiy of any employee caused
by or in connection with the hauling of the car with such defective
equipment. The railroad company argued that “ the evidence did
not bring the case within the act and should not have been sub
mitted to the jury; that the car being motionless was not then in
use; that Goneau was doing repair work which was permitted by
the act and whose risk he assumed; and that the defective condition
of the carrier iron was merely a condition presenting the occasion
for making the repairs, and not a proximate cause of the accident.”
Judgment was rendered in favor of the plaintiff, and the defend
ant company brought a writ of certiorari to the Supreme Court.
Mr. Justice Sanford delivered the opinion of the court, saying in
part:
Under the circumstances indicated it is clear that the use of the
defective car had not ended at the time of the accident, although it
was then motionless. A defective car is still in use when it has
been moved with the train from the main line to a siding, to be cut
out and left so that the other cars may proceed on their journey.
(Chicago Railroad v. Schendel, 267 U. S. 287, 291, 45 Sup. Ct. 303.)
And so it is while still in a section of the train on the main line, to
be coupled up and proceed on its journey as a part of the train.

e m p l o y e r s ’ l ia b il it y

Nor can it be said that Goneau was engaged in doing repair work.
He was not a repair man, but a brakeman, and was not repairing the
carrier, iron, but attempting to move it into place to support the
coupler, so that the coupling could be made and the train proceed.
And although Goneau, in testifying, stated that when he found the
coupler in such a condition that he could not couple up the train
unless he fixed it, it became his duty to “repair it and get the train
going,” his use of the word “ repair,” upon which the railway com
pany lays great stress, does not change the situation in the eyes of
the law or transform the coupling operation into repair work.
Since he was injured as a result of the defect in the coupler while
attempting to adjust it for the purpose of making an immediate cou
pling, the defective coupler was clearly a proximate cause of the
accident as distinguished from a condition creating the situation in
which it occurred. And under the employers’ liability act he can not
be held to have assumed the iisk.
The act of 1910, obviously, has no application.
As there was substantial evidence tending to show that the defec
tive coupler was a proximate cause of the accident resulting in the
injury to Goneau while he was engaged in making a coupling in the
discharge of his duty, the case was rightly submitted to the jury
under the safety appliance act; and the issues having been deter
mined by the jury in his favor, the judgment of the trial court was
properly affirmed.
The judgment was therefore affirmed.

E mployers ’ L iability — R ailroad C ompanies — F ederal Stat
ute — N egligenge — E vidence —

Chicago, M. &. St. P. By. Co.
v. Coogan, United States Supreme Court (June 1, 1926), 46 Supreme
Court Reporter, page 564.— Willie Coogan was employed as rear
brakeman on a freight train of the Ch icago, Milwaukee & St. Paul
Railway Co., and was killed July 14, 1923, by an accident in the
railroad yards at Farmington, Minn. His body was found by a fel
low workman lying parallel to the railroad track. His left leg and
left arm had been crushed between the car wheels and the rail and
h is body had been dragged about 15 feet. His widow brought suit
for damages under the Federal employers’ liability act, as the
deceased was engaged in interstate commerce at the time he was
killed.
At the trial circumstantial evidence was offered to prove the cause
of death. It was shown that when the deceased was last seen alive
he was standing beside the caboose of a train that was being made up
in the railroad yards at Farmingtion, apparently waiting for all the
cars to be attached so that he could couple the air hose between the
rear and the caboose.
The negligence charged to the railroad company was that an air
line which it had fastened to the ties some 12 inches from and par
allel to the rail had some time prior to t he accident been loosened

DECISIONS OF THE COURTS

and bent 3 or 4 inches toward the rail and upward, leaving a space
of from 3J^> to 4 inches between it and the ties. It was the plain
tiff's theory that when the deceased went to couple the air hose, he
stepped his right foot inside the rail, leaving his left foot between
the rail and the pipe line; that before he could make the coupling
the train started back, and that in attempting to straighten up his
left foot he was caught under the pipe, forced backward, run over,
and killed. The shoes worn by the deceased at the time he was
killed were received in evidence. The outside of the counter of the
left shoe was scratched and showed a marked rounding depression
parallel with the sole and just above the heel. From judgment for
the plaintiff, the defendant appealed.
The Supreme Court of Minnesota affirmed the judgment of the
lower court, and defendant brought the case to the Supreme Court
of the United States on a writ of certiorari. The Supreme Court, in
reversing the judgment, held that there was sufficient evidence to
warrant a finding that there was a breach of duty respecting the
condition of the pipe, but that the precise question was whether the
condition of the pipe contributed to cause the death of the deceased.
Mr. Justice Butler, delivering the opinion of the court, said in part:
It follows that, unless the evidence is sufficient to warrant a find
ing that the death resulted from the catching of deceased's left foot
under the bent part of the pipe line the judgment can not be sus
tained. Whenever circumstantial evidence is relied on to prove a
fact, the circumstances must be proved and not themselves presumed.
The “rounding depression" on the counter of the shoe is not suffi
cient to bridge the hiatus in the evidence. A number of days elapsed
before it was noticed, and it is not shown that in the meantime
care was taken to keep it in the same condition or that the depression
was not made after the accident. And, assuming that the depression
on the shoe counter was made by contact with the bent pipe, there is
nothing to indicate whether it was made at the time deceased was
knocked down or later while he was being dragged. The fact that
deceased was run over and killed at the time and place disclosed
has no tendency to show that his foot was caught. A finding that
his foot was not caught under the pipe is quite as consistent with
the evidence as a finding that it was.
When the evidence and the conclusions which a juiy might fairly
draw from the evidence are taken most strongly against the peti
tioner the contention of respondent that the bent pipe caused or
contributed to cause the death is without any substantial support.
The record leaves the matter in the realm of speculation and con
jecture. That is not enough.
The judgment was therefore reversed.
The United States Circuit Court of Appeals found it necessary to reverse a
judgment given for the death of a brakeman engaged in an undertaking outside
his ordinary line of duty, where evidence was lacking as to any order directing
him to enter thereon, and where “ the evidence does not show how the employee

e m p l o y e e s ’ l ia b il it y

met his death, whether through fault of the master or fault of his own.”
(Philadelphia & R. Ry. Co. v. Thirouin (1925), 9 Fed. (2d) 856.)
Judge Wooley concluded the opinion with the remark that such a decision
“ some day may be made less harsh by the presence of a Federal workmen’s com
pensation act.”
The Supreme Court of Pennsylvania likewise denied a right to recovery where
the injury complained of was due to the catching of the workman’s raincoat on
a projecting bolt the use and location of which were prescribed by the Inter
state Commerce Commission. There was no evidence that the manner of
fastening the bolt was unusual, while the defect complained of “ was of a con
dition obvious to all.” (Pursglove v. Monongaheia Ry. Co. (1925), 131 Atl. i
477.)

Em ployers’ L ia b ility — R ailro a d Companies— F e d e r a l S ta t
u te — R e le a se by In jured Workman— E f f e c t on Claim o f
Survivor — Goodyear v. Dams, Supreme Court of Kansas (July 10 ,
1926),
Pacific Reporter, page 44$ •— Louisa Goodyear, as adminis
tratrix of the estate of Lewis Goodyear sued under the Federal employ
ers’ liability act (35 Stat. 65) to recover damages for his death.
The case was before the Supreme Court of Kansas for the third
time, the first trial having resulted in a verdict and judgment for
the defendant. This judgment was reversed on appeal, and on the
second trial there was a general verdict for the plaintiff in the
amount of $5,000.

247

The single point of interest noted in the present decision is as to
the effect of a release made by the injured workman prior to his
death from the injury. The court ruled that the act in question
gives to the injured workman a right of action for his injuries, and a
distinct right for the benefit of designated dependents in the event
of death. This rule was more fully expressed in an earlier decision
in the same case (Goodyear v. Davis, 114 Kans. 557, 220 Pac. 282),
as follows:
The Federal employers’ liability act (35 U. S. Stat.. ch. 149, as
amended by 36 U. S. Stat., ch. 143) creates a right of action in the
injured employee for his suffering and loss resulting from the injury,
and also creates a distinct and independent right of action in the
personal representative of the deceased employee in the event death
results from the injury, for the benefit of certain designated depend
ents.
A settlement made by the injured employee after the injury and
prior to his death, for his suffering and loss, is not a bar to the
action by the personal representative for the benefit of dependents
for the death, if it resulted from the injury.
In an action under the Federal employers’ liability act by the
personal representative for damages to the injured employee and for
the death, the widow of the employee having been appointed ad
ministratrix, the fact that as the wife of the injured employee she was
present at the time an agent of defendant made a settlement with him
42335°— 27------ 5

DECISIONS OF THE COURTS

for his injuries would not estop her, as personal representative of his
estate, from seeking to set aside the release because of his mental
incapacity to execute it.
Another contention related to a question of mutual mistake, but
this was resolved in favor of the plaintiff, and the judgment below
was affirmed.
E m ployers ’ L iability — R ailroad C ompanies — I njury — P rox
C ause — Weigand v. Chicago, B. I. & P. By. Co., Supreme

imate

Court of Kansas (October 9, 1926), 249 Pacific Beporter, page 615.—
F. A. Weigand was employed by the defendant railroad company to
make light repairs on freight cars. On September 28, 1922, he was
directed to go to the defendant’s railway stations at Galva and
McPherson to repair certain freight cars which had been sidetracked
at those points. After finishing his work at Galva, the plaintiff was
permitted by the station agent at Galva and the conductor of one of
the company’s freight trains to ride on the freight train to McPherson.
The conductor assisted him to the top of a car loaded with coal and
on which he was riding, when some “ hoboes,” who were also riding
on the same train, came over the tops of the cars, seized the plaintiff,
and threw him off on the ground. He was severely injured, and
brought suit against the railroad company for damages.
He alleged, among other things, that the company was responsible
for his injuries on the ground that its station agent and conductor
refused to let him ride in the caboose, that he was compelled to ride
upon the freight car in order to do the business of his employer, and
that these persons had purposely allowed the “ hoboes” who threw
him off the car to ride on the train.
A demurrer was sustained to the plaintiff’s evidence, the trial
court ruling:
Weigand being forced to ride on the car of coal was not either the
direct or proximate cause of the injury.
The plaintiff appealed.
The court, in affirming the judgment of the trial court, said in
part:
His injury was caused by his being assaulted and flung off the
train by three or four unknown strangers. If it be urged that it was
the duty of the defendant not to permit “ hoboes” to ride its freight
trains, still it could not reasonably have been anticipated that, as a
consequence of defendant’s failure to perform that duty, the
“ hoboes” would assault an employee of defendant and fling him
from the train.
It is thoroughly settled law that, when an employee departs even
temporarily from his employment on some prank or project of liis

e m p l o y e r s ’ l ia b i l i t y

own, of which his employer has no notice, and which the employer
has neither authorized nor countenanced, the employer is not
responsible.
On no rational theory can this court discover a basis for subjecting
the defendant railway company to liability for the injuries sustained
by plaintiff. The unknown miscreants who assaulted him are clearly
responsible. Less clearly, but perhaps sufficiently susceptible of
proof to justify its submission to a jury, if plaintiff had been so
inclined, was the question of the personal and individual responsi
bility of members of the train crew, and possibly the station agent;
but the record discloses no evidence, and suggests no rule of law, on
which a liability can be fastened upon the defendant railway
company, and the judgment of the trial court must be affirmed.

E mployers ’ L iability — R ailroad C ompanies — N egligence —
H ospital T reatment — D amages — Balter v. Adkins, Court of Civil

Appeals of Texas (November 4r 1925), 278 Southwestern Reporter, page
272.— G. B. Adkins, employed by the International and Great
Northern Railroad Co. as a member of a bridge gang, was em
ployed between San Antonio and Laredo when he was taken down
with smallpox. He was placed in the car which had been provided
for and used by the employees as sleeping quarters and he remained
there from the time of his illness until his death on April 23, 1916.
It appeared from the evidence that the company, which was in the
hands of a receiver at the time, failed to notify the family or anyone
else of the condition of the employee, and assumed absolute and
exclusive control of him. It also showed that it suffered him to lie
in filth, exposed to the vilest insects and vermin, unwashed, with
dirty bedclothing, without proper nursing and medical treatment,
and in addition on several occasions ran cars or locomotives against
the car in which the deceased was helplessly lying, adding to his dis
comfort and nervousness and hastening his death. In the opinion
of the court of civil appeals: “ No such negligence has ever been
excused, or condoned through any technicalities, by any decision
brought to our notice.”

Jessie B. Adkins, as an individual and as administratrix in behalf
of her children, brought an action for damages arising from the death
of her husband. The verdict was for the plaintiffs and the court ren
dered judgment awarding $8,000 to the widow, $5,000 to the minor
Mildred Adkins, $3,000 to the minor Bert Adkins, $2,500 to Birdie
Thomas, $2,000 to Maude Wolff, $1,500 to Metal Bentley and $500
to Virgil Adkins, an adult male, $22,500 in all.
The defendant
appealed.
On reviewing the record the court of civil appeals found that negli
gence in earing for Adkins was the proximate cause of the death,

DECISIONS OF THE COURTS

and it was considered not necessary that these acts of negligence
should be the “ sole cause of the death of the deceased, but if
together with smallpox, brought about the death, appellants are
liable.” It was held not to matter who had provided the physician,
in view of the fact that the defendants, being guilty of the negli
gence, had contributed to the death, that being sufficient to fix
liability.
The court of appeals held that the awards should be viewed as
though each plaintiff had sued alone. Five of the children were
minors when the father died, Virgil, however, becoming 21 years of
age on the date of the burial of his father. The verdict in the aggre
gate was not considered excessive.
In construing the statute, the court held that the language of it
did not “ exclude the adult child, male or female, who made his or
her home under the family rooftree and received any maintenance or
support from the parents,” from recovering with the minors. Al
though it appeared that the interpretation of the court of civil appeals
would sustain such a verdict as was given to Virgil Adkins, in view
of the fact that the trial court charged that damages with respect to
the children might include maintenance, education, and care “ during
minority/7 and no objections were made to the verdict on that
ground, the court of civil appeals denied the recovery of $500 by
Virgil Adkins because the verdict was not in response to the charge.
On condition that a remittitur be entered within 10 days from the
filing of the opinion for the $500 in favor of Virgil Adkins, the judg
ment was affirmed for $22,000.

Em ployers’ L ia b ility — R ailro a d Companies— S trik e B re a k e r
In jured by A s s a u lt— F a ilu re o f Em ployer to G ive N o tice
o f S trik e — N e g lig e n c e — Dell v. Lancaster, Court oj Civil Appeals
oj Texas (June 9, 1928), 285 Southwestern Reporter, page 685.— Frank
Dell sued J. L. Lancaster and Charles L. Wallace, receivers of the
Texas & Pacific Railway Co., and the company itself, for damages
sustained while in its employ. He alleged in his petition that he
was employed by the defendants to go from his home in Cleveland,
Ohio, to Dallas, Tex., to paint railroad coaches; t|iat when he arrived
at Dallas he was sent to Marshall where, as the defendants knew,
there was a strike of railroad employees under way but of which he
was utterly ignorant, and that while he and his wife were quietly
walking on the street in Marshall they were set upon by the strikers,
who abused, cursed, assaulted, beat, and injured them. He also
claimed the sum of $38.37 for excess freight and storage on house
hold goods and $150 hotel expenses for the week he worked in Mar

e m p l o y e r s ’ l ia b il it y

shall. From a judgment sustaining the defendant's demurrer, the
plaintiff appealed. The judgment of the lower court was affirmed,
the court saying in part as follows:
The whole claim is based on the charge that appellees were neg
ligent in not informing appellant that a strike was on before they
sent him to Marshall. The cause of the attack is not given, and it
is not alleged that appellant was a strike breaker, or what is known
as a “ scab," and that he was attacked on that ground. There is no
allegation that in any manner connects the assault upon appellant
with his service for appellees. There is no allegation that appellees
failed to furnish a safe place in which he could work, or that the
assault had any connection with his employment by appellees. He
was, for some reason not disclosed, attacked while on the street by
lawless characters for whose acts appellees were not responsible.
The petition fails to show that, if there were any danger in going to
or remaining in Marshall, it was so because of the employment in
which appellant was engaged. The attack was not made on the prop
erty of appellees or by any person in its employ or for whom it
could be liable. There is no allegation tending to show any causal
connection between a failure to disclose the existence of a strike and
the attack made by the ruffians on appellant in Marshall.
Appellees were not liable for the safety of appellant, except while
he was on a way to his work, which way was prepared for him by his
employer, or while engaged in the prosecution of such work. The
petition fails to show that any negligence upon the part of appellees
was the proximate cause of the assault on him.
The judgment was therefore affirmed.

m ployers'

L ia b il it y — Sa f e t y L a w s — C o v e n a n t

n o t to

Sue— ■

Pacific States Lumber Go. v . Bargar,
United States Circuit Court of Appeals (January 18,1926), 10 Federal
Beporter (2d), page 335.— T h is suit involved the C oos B a y Stevedor
ing C o ., the Pacific States L u m b er C o ., and R. J. B arger, an em ployee
o f the stevedoring com p an y, who was injured July 6, 1923, while load
ing lum ber on a vessel at defendant's w harf.
It appeared from the
R

elease of

O ne T

ort

F easor—

evidence th a t there was an agreem ent betw een the lu m ber com p an y
and the stevedoring com p an y whereby the lum ber com p an y was to
deliver lum ber on its docks w ithin reach o f the ship's tackles for the
stevedoring com p an y to load on vessels.
four-w heeled cars pulled b y horses.

T h is it did b y m eans of small

The plaintiff was required to

work in and abou t the dock in assisting in loading lu m ber and w ith
carloads of lum ber.

At the tim e o f his inju ry he was engaged in

trying to stop a car th at had been pulled b y defendan t's em ployee
to the proper place fo r loading into the vessel.

T o do this he p u t a

board on the track ; this did n o t stop the car, b u t rendered the load
unstable and part of it fell on him .

On M a r c h 11, 1#24, he accepted

$ 2 ,0 0 0 from the stevedoring com p an y and executed a release to it

DECISIONS OF THE COURTS

and its insurer that he would forever refrain from bringing any suit
against either of them on account of said injury. He then brought
suit against the lumber company and recovered judgment. The
defendant brought error, and contended that the release of the steve
doring company should be treated as full satisfaction of plaintiff's
claim and as a bar to the action. The court, speaking through Judge
McCamant, stated the purpose of the Oregon employers' liability act,
and said in part:
Every employer whose work involves risk or danger is required by
the statute to take the required precautions, not only for the protec
tion of his own employees, but also for the protection of employees
of others whose duties bring them within reach of the dangers and
risks of such work. The Supreme Court of Oregon has so construed
the statute, and this construction is binding on the Federal courts.
[Cases cited.]
The court in considering defendant's contention that a release of
one joint tort feasor will release the others agreed that it was com
mitted to that proposition, but held that in the instant case the
instrument executed by plaintiff did not operate as a release, and
pointed out the distinction between a release and a covenant not to
sue in the following language:
Releases of, and covenants not to sue, a wrongdoer have from early
times been considered distinct. A covenant not to sue one of several
joint obligors or joint tort feasors did not at common law operate to
discharge others from liability, since it was said not to have the effect,
technically, of extinguishing any part of the cause of action. * * *
Indicia of a covenant not to sue may be said to be: No intention
on the part of the injured person to give a discharge of the cause of
action, or any part thereof, but merely to treat in respect of not suing
thereon (and this seems to be the prime differentiating attribute);
full compensation for his injuries not received, but only partial satis
faction; and a reservation of the right to sue the other wrongdoer.
The opinion continued:
By all the tests the instrument executed by plaintiff is a covenant
not to sue. The $2,000 was not accepted in satisfaction of plaintiff's
claim, and the transaction is not a defense to this action.
The jury assessed plaintiff ’s damages at $4,500. Under the court’s
instructions they credited thereon the $2,000 paid by the stevedoring
company. This was all that the defendant was entitled to.
There were no other errors assigned, and the judgment was affirmed.

E m ployers'

L ia b il it y — S e a m a n — F e d e r a l

S t a t u t e — L im it a

Engel v. Davenport, United States
Supreme Court\April 12,1926) ,46 Supreme Court Reporter, page 410.—
E . B. Engel, a#seaman employed on a vessel owned by the respond
ent Davenport and others, sought to recover damages for injuries

t io n —

hat

St a t u t e G o ver n s—

e m p l o y e e s ’ l ia b il it y

received while placing a chain lashing around part of a cargo of lum
ber. He brought an action at law to recover damages. The com
plaint alleged that the vessel was unseaworthy and the appliances
defective in that a pelican hook, a necessary part of the chain lashing,
had in it a flaw observable by ordinary inspection, and that this
hook broke by reason of the flaw, causing the injury. Davenport
demurred to the complaint, his contention being that the action was
barred by section 340, subdivision 3, of the California Code of Civil
Procedure, which required an action for a personal injury caused by
wrongful act or negligence to be commenced within one year. This
demurrer was sustained without leave to amend and judgment was
entered in favor of Davenport, which was affirmed on appeal by the
supreme court of the State. Engel then brought a writ of certiorari
to have the case reviewed by the United States Supreme Court.
The petitioner contended that the suit was founded on section 33
of the merchant marine act, of which State courts have jurisdiction
concurrently with the Federal courts, and that by virtue of section
6 of the employers’ liability act, 35 Stat. 65, ch. 149 (Comp. St., sec.
8662), incorporated in the provisions of the merchant marine act, it
might be commenced within two years after the cause of action
accrued. The defendant denied that the suit was founded on ’the
merchant marine act, and therefore its provisions were not applicable;
and that section 6 (containing the limiting provision) of the employers’
liability act was not incorporated in the merchant marine act, and
did not determine the limitation in which an action might be brought
in a State court.
Mr. Justice Sanford, delivering the opinion of the court, said in part:
Section 6 of the employers’ liability act provides that “ no action
shall be maintained under this act unless commenced within two
years from the day the cause of action accrued.” This provision is
one of substantive right, setting a limit to the existence of the obli
gation which the act creates. And it necessarily implies that the
action may be maintained, as a substantive right, if commenced
within the two years.
We conclude that the provision of section 6 of the employers’ lia
bility act, relating to the time of commencing the action, is a mate
rial provision of the statutes “ modifying or extending the com monlaw right or remedy in cases of personal injuries to railway employees ”
which was adopted by and incorporated in the merchant marine act.
And, as a provision affecting the substantive right created by Con
gress in the exercise of its paramount authority in reference to the
maritime law, it must control in an action brought in a State court
under the merchant marine act, regardless of any statute of limita
tions of the State.
The judgment of the Supreme Court of California was reversed,
and the case remanded for further proceedings not inconsistent with
the opinion.

DECISIONS OF THE COURTS

E m p l o y e r s ’ L ia b il it y — S e a m e n — Sa f e P l a c e — A

s s u m p t io n

Zinnel v . United States Shipping
Board Emergency Fleet Corporation, United States Circuit Court oj
Appeals (December 7, 1925), 10 Federal Reporter (2d), page 47.—
Charles J. Zinnel was em ployed as one of the crew o f the defendan t’s
ship, Eastern Sa/ilor, on a voyage from N e w Y o r k to Y o k o h a m a .
The
R is k — C o n s t r u c t io n

Statute—

ship carried a deck load of lum ber on the “ well deck” m ade fa st by
chain lashings.

H e a v y weather and rough seas loosened som e of the

lashings, and the m aster directed the intestate and other m em bers
of the crew to go forward and add new lashings under th e direction
o f the boatsw ain.

W h ile they were so em ployed the vessel shipped

a sea over her bow which carried the intestate overboard, and he was
drowned.

A ction was brought by his adm inistrator to recover co m

pensation under the Jones act of

1920 (41 Stat. 1007), alleging th at

the defendant did n o t provide the intestate w ith a safe place to work
in th a t there was no guard rope from the rail on the forecastle head
leading aft on the port side to the shelter deck.

H e offered to prove

this b y the testim on y of a m em ber of the crew corroborated b y a
photograph taken three or fou r days earlier show ing the p o rt side
w ithout any rope.

T h e trial court refused to receive the photograph

in evidence on the ground th at it did n ot show the condition a t the
tim e of the accident, and dismissed the com plaint.
brought error.

T h e plaintiff

T h e court of appeals in reversing the ju d gm en t said

in p a rt:

The refusal of the court to allow the photograph in evidence for
the purpose offered was erroneous. If it represented the truth in the
morning, a*few hours before, and at once after the accident, the jury
was entitled to assume that there had been no change in the interim.
It was, moreover, admissible to contradict the testimony of the master
and the mate that the lines were kept standing through the whole
voyage, which it very effectually did. Not only was the plaintiff
entitled to go to the jury upon the question whether the lines were
standing at the time, assuming that to be relevant, but it is very hard
to see how the jury could have reached a verdict for the defendant
upon that issue. The learned judge was certainly in error in taking
the case from the jury.
The question of law remains, whether the absence of the line was
a default in the defendant’s duty to exercise reasonable care to furnish
the decedent with a reasonably safe place to work. Without some
guard line we need no expert to show us that a case was presented,
which a jury must decide, as to the safety of the place where the
intestate was ordered to work.
The cause arises in substance under the employers’ liability act
(Comp. St., secs. 8657-8665), since that is incorporated by reference.
It is therefore quite unnecessary to say that the ship was unseaworthy,
at least in the ordinary sense, which makes the commencement of the
voyage the test. All we need, and do, hold is that under the law of
master and servant, as now in force by statute, the circumstances

EMPLOYERS* LIABILITY

were such as would allow the jury to find that there was no rope,
and that its absence made the intestate’s place of work unsafe.
As to the assumption of risk, on which we all agree, we need do no
more than refer to our own decisions in Cricket S. S. Co. v. Parry
((C. C. A.) 263 Fed. 523), and Panama R. R. Co. v. Johnson ((C. C. A.)
289 Fed. 964, see Bui. No. 391, p. 43).
In these cases the court held that as to seamen under orders on
board ship there is not that freedom of action as to obedience or dis
obedience of orders that would make it possible to say that in obey
ing any given order the workman voluntarily assumes the risk.
Judgment was therefore reversed and a new trial ordered.

E m p lo y e r s ’

L ia b ility — W

o r k m e n ’s

C o m p e n s a tio n — A c c id e n

— Midland Coal Co. v .
Rucker’s Administrator, Court of Appeals of Kentucky (December 1,
1925), 277 Southwestern Reporter, page 838.— T h e deceased, B ert

ta l

I n j u r y — P o is o n o u s G a s e s — E

v id e n c e

R u cker, an inexperienced coal m iner, was em ployed b y the M id la n d
C oal C o . and pu t to work with his brother, also inexperienced, in a
room of the mine into which unwholesom e gases came from an aban
doned m ine near b y .

A t the end of about two weeks of work in the

m ine and while pushing a car of coal from the m ine, deceased sank
dow n, and died as he was being carried from the m ine.

E viden ce was

introduced at the trial to show that the coal was m ined b y and shot
with pow der and dyn am ite which produced sm o k e; th at the m ine was
not properly v en tilated ; th at the deceased had been sick on different
days during his em p lo y m e n t; th at other em ployees engaged in like
service in the m ine were also m ade sick during the sam e period, and
th a t on the m orning of his death the air in the m ine where he worked
was bad.

Judgm ent was rendered in fa v or of the plaintiff in the

circuit court, and the co m p an y appealed on the ground th at, since
b o th the em ployer and the em ployee had accepted the term s o f the
w orkm en ’s com pensation act ( K y . S ta t.

4880-4987), there could be

no action at com m on la w ; that death, being instantaneous, cam e
within the term s o f the a ct; th at the lower court had no jurisdiction
of the cause, and th at the proof failed to show the cause of death,
or the proxim ate cause thereof.

T h e com p an y further contended

th at the instructions to the ju ry were n ot in accordance w ith the
proof.

T h e court in affirming the ju dgm en t of the lower court cited

v. A d k in s (197 K y . 684, 247 S. W . 972;
391, p. 324) and th at of E lkhorn C oa l C o . v. K err (203
K y . 804, 263 S. W . .342), in b o th of which cases it was decided that
the case of Jellico C oal C o .

see B u i. N o .

an action at com m on law w ould lie for injury or death arising out of
and resulting

from

inhalation

of poisonous

com pensation act does n ot apply.

gases,

but

th at

the

DECISIONS OF THE COURTS

The court continued:
Appellant’s chief contention is * * * that the evidence in this
case shows only the sudden death of Rucker, and does not show that
he died from an occupational disease or from a gradual poisoning of
his system. The evidence upon this subject, recited in outline above,
indicates the deceased had been suffering more or less from poisonous
mine gases ever since he became an employee of appellant company
and entered its mines, but that he was so inexperienced in the busi
ness of coal mining as not to know the dangerous effects of such gases.
This question was submitted to the jury by instructions, of which
there is no serious complaint, <*ave that the case should not have been
submitted at all.
The verdict and judgment can not therefore be disturbed.
The judgment was accordingly affirmed.

E mployers’ L iability for A cts of E mployees — I ndustrial
P olice— C ourse of E mployment — N egligence — Wiley v. Pere

Marquette R y. Co., Supreme Court of Michigan (June 7, 1926), 209
Northwestern Reporter, page 59.— Samuel Spaulding was employed
by the defendant company and designated a patrolman. He was
armed with a revolver carried under a permit obtained by the com
pany. At the time in question he went to the home of the plaintiff
and asked permission to search the house. Receiving no reply from
the plaintiff he knocked a block from the hand of a small child stand
ing in the doorway, and while stooping, ostensibly to pick up the
block, but in reality to look under the couch, his revolver fell from its
holster and struck the floor, discharging a shot which hit the plaintiff
in the thigh, causing a painful wound which it was claimed would
cause her permanent discomfort. She was awarded a verdict of
$2,500. The defendant moved for judgment notwithstanding the
verdict, and also for a new trial. The court entered judgment for
the defendant on the ground that the patrolman was not at the time
of the accident acting within the scope of his employment. Plain
tiff brought a writ of error for review.
The court, in reversing the judgment of the trial court, said in
part:
We think the trial judge was in error in entering judgment for
defendant. Spaulding’s testimony was to the effect that he was
about the business of defendant company intrusted to him, and had
reason for looking in this home for stolen goods, and was there on
such errand. Without further stating his testimony, we think it
carried to the jury the question of whether, at the time of the acci
dent, he was acting within the scope of his employment. The
learned trial judge left this question to the jury, and the verdict,
supported by evidence, fixed the fact that Spaulding was acting
within the scope of his employment. The question was one of fact,
and not one of law.

e m p lo y e r s ’ l i a b i l i t y

The employee was carrying the revolver under permit obtained by
defendant. There was a positive duty resting upon defendant to
supervise the carrying of this dangerous instrumentality by its
employee, for the firearm was in the service of defendant, and car
ried by its servant under permit obtained for that purpose. This
duty to protect third persons from injury, by reason of careless
carrying of an unsafe revolver, was not performed by defendant,
and plaintiff, having been injured because this duty was not per
formed, is entitled to recover damages, irrespective of whether the
act was or was not within the scope of the servant’s employment.
Upon this record plaintiff is entitled to judgment on the verdict.
The judgment was therefore reversed, with costs to plaintiff, and
the case remanded to the circuit court, with direction to enter judg
ment on the verdict.
E m p lo y e r s ’ L i a b i l i t y f o r A c t s o f E m p lo y e e s — N e g l i g e n c e —

et al. v. Beniivoglia et al., Supreme Court of Pennsylvania (January 4, 1926), 131
Atlantic Reporter, page 592.— The plaintiff, a boy over 14 years of age,
was asked by the driver of defendant’s truck to guide him to his
next stop, and in doing so plaintiff took a position on the running
board of the truck, from which he was thrown to the street and injured.
Action was brought for damages, and the defendants obtained a
judgment of nonsuit, and from a refusal to remove the nonsuit, the
plaintiff appealed.
The supreme court in affirming the judgment of the court below
said:
C o n t r i b u t o r y N e g l i g e n c e — M i n o r — D ’Allesandro

We agree with the court below that an “ employer is liable only
for the acts of his servant done in the scope of his employment and
the employment in this case did not include taking the minor plain
tiff for a ride” eithei as “ a passenger,” which the statement of
claim alleges he was, or as an assistant.
As no emergency was shown, where the servant was unable alone
to perform the work which he was engaged to do, the authority to
engage an assistant was not proved.
The judgment was therefore affirmed.

E m p l o y e r s’ L ia b il it y

for

cts of

E m p l o y e e s — S t a t e P o l ic e

m p l o y e e s — St. Louis South
western Ry. Co. of Texas v. Hudson, Court of Civil Appeals of Texas
(1926), 286 Southwestern Reporter, page 766.— A strike of the shopmen
employed by the company named took place in connection with the
general strike of 1922, a number of the workmen joining the strikers
and some of them becoming pickets. Fearing violence and interfer
ence with its operations, the company applied to the Govenor of

A c t in g

S t r ik e G u a r d — S t a tu s

DECISIONS OF THE COURTS

Texas for a body of rangers to act as a guard for its property and
employees. This request was complied with, but only on condition
that the expenses be met by the company, no State funds being avail
able. On agreement with this condition, a number of rangers came
to the locality, Tyler, under the command of one Captain Brady.
Among the rangers was one Pearce who, entirely without justification,
shot and killed a picket, Clayton Hudson, son of the appellees in this
case. The parents sued the company for damages for the death of
their son, alleging that though Pearce was nominally a ranger
he was in fact the company's employee; that he was a “ violent and
dangerous man, unfit for such duties; and that, notwithstanding this
was known to the appellant, Pearce was continued in its service.”
The defense offered was that a guard was necessary for the protec
tion of the property of the company and the continuance of its oper
ations, and that the rangers had been applied for and secured in a
lawful manner; that Pearce was legally appointed and was subject
only to the authority of his .captain; that he was not in any sense a
private employee, nor at the time of the killing was he performing
any service for the railway company. It was also averred that the
killing was the result of a private difference between the parties,
wholly unconnected with any legal duty which Pearce was engaged
to perform. The jury found the company liable for the misconduct
of Pearce and fixed damages in the sum of $9,500, whereupon the
company appealed.
The court, Judge Hodges speaking, recited the provisions of law
under which the governor had acted, and found that he “ was within
his legal authority, and that the conditions existed which called for
such official action.” It was in evidence that the rangers, in their
attitude toward the strikers and particularly to the pickets, “ generally
understood that they were to handle them very roughly,” but this
testimony was held not to justify any inference that any representa
tive of the company had directed acts of violence to be done, or that
the pickets should be in any way molested so long as they were
peacefully occupying their positions as pickets. Recognizing that the
picket line harassed the shop employees more or less, the captain had
advised them that no legal method existed for breaking up the picket
line, so that no orders to that effect could be issued. Even if Pearce
had been the employee of the company, therefore, even if he should
have thought that he was acting in the interest of the company
in acting in such a way as to terrorize the pickets and break up their
line, that could not “ have the legal effect of extending the limits of
his master's responsibility” ; for while indiscreet or disobedient conduct
within the scope of a servant's employment may bind the master for
resulting injuries, an enlargement of that scope by the mere act of

EMPLOYERS* LIABILITY

the employee can not make the master responsible for conduct outside
the duties which he was employed to perform. “ The doctrine of
‘apparent authority’ applies to the relation of principal and agent,
not to that of master and servant.”
However, the assumption of the relationship of master and servant
is not valid if in fact Pearce was an official of the State rendering
“ service in line with the provisions of thfe law for the protection of
property and the maintenance of order.” It was said that “ the courts
may take judicial notice of the fact that a strike by employees of a
railway company is a species of industrial warfare designed to com
pel concessions from the employer by impairing its ability to continue
normal transportation operations.” It was also known that violence
frequently attended such strikes, an incident of assault upon two
workmen and the killing of one having occurred shortly before the
coming of the rangers to Tyler. The request by the company was
merely an effort to call into action certain agencies of the State,
and in complying the governor was acting within the terms of the
law. No private right had been invaded and no personal privilege
interfered with.
No person, except one desiring to engage in some unlawful form
of interference with railway transportation or operation, had any
occasion to complain of what the governor did or of the conduct of
the appellant in applying for such guards.
The employees of the railway companies had a legal right to quit
work in a body, as they did, and were still within their rights in doing
what is called “ picket service,” and with such rights Pearce had no
authority, from any source, to interfere. The killing of Hudson was
done in the prosecution of a design purely personal to Pearce. To
treat the State rangers, while doing legitimate guard duty, as the
private employees of the railway company, would impose a legal
responsibility which no common carrier should be required to assume
when invoking the protection of the law. The public, as well as the
carrier, is interested in keeping open the channels of commerce; and
the public may suffer when the steps needed to that end are discour
aged by the imposition of financial risks which prudent business men
might hesitate to incur.
Taking up the question as to the effect of the company furnishing
funds to compensate the rangers, the court held that this did not
establish the relation of master and servant. Absence of State funds
made it necessary for the company to choose between going without
the protection desired or furnishing the funds for its payment.
Acceptance of the latter alternative did not give the company the
power to select the men or exercise control over them. “ The captain
of the force was in command, and he alone had authority to direct
and control the rangers. He and his superiors only had the right to
discharge Pearce from the service.” The conclusion was “ that under

DECISIONS

of t h e

courts

the evidence Pearce m u st be treated as a public officer and n o t as
the servan t of a p p ella n t.”
T h e ju d g m en t of the trial court w as therefore reversed and ju d g
m en t entered for the appellant.

E mployment O ffices—JUfcensing and R egulation — P owers of
C ommissioner of L abor — C onstitutionality of Statute — RibniJc

v. McBride, State Commissioner oj Labor, Supreme Court of New Jersey
(June 24,1926), 183 Atlantic Reporter, page 870.— Chapter 227, Public
Laws of 1918 of New Jersey, entitled “ an act to regulate the keeping
of employment agencies,” provides that every applicant shall file with
the commissioner a schedule of fees proposed to be charged for
the services rendered to employers seeking employees and persons
seeking employment, and that the commissioner may refuse to issue
any license for any good cause shown within the meaning of the act.
Rupert Ribnik made application for a license to operate an employ
ment agency in compliance with the act. His application was refused
by the commissioner on the ground that he could not approve, in its
entirety, the proposed schedule of fees to be charged. The applicant
sued out a writ of certiorari to have the action of the commissioner
reviewed. He alleged that the act which purported to confer upon
the commissioner power to fix, determine, regulate, etc., the fees to
be charged by him for his services, was contrary to the constitution
of New Jersey and to the Federal Constitution.
The court, in dismissing the writ, held that the questions raised
and argued in the instant case were determined in substance and
effect adversely to the applicant in the case of Brazee v. Michigan
(241 U. S. 340,36 Sup. Ct. 561; see Bui. No. 224, p. 130). In that case
the judgment of the Supreme Court of Michigan, that a State may
require licenses for employment agencies and prescribe reasonable
regulations in respect to them to be enforced according to the legal
discretion of the commissioner of labor, was upheld by the Supreme
Court of the United States as not infringing the provisions of the
Federal Constitution. The court was unanimous in its opinion that
the present attack upon the statute was without substance and dis
missed the writ with costs to the prosecutor.

E mployment S ervice — M onopoly — I nterference w ith I nter
C ommerce— Shipping of S eamen — A ntitrust A ct— Ander

state

son v . Shipowners9 Association of the Pacific Coast, Supreme Court of
the United States (November 22, 1926), 47 Supreme Court Reporter,
page 125.— Cornelius A n derson is a seam an, h aving follow ed th a t
calling for m ore th an 20 years on ships engaged in the carrying trade

EMPLOYMENT SERVICE

on the Pacific coast and with foreign countries. He is a member of
the Seamen’s Union of America, which has a membership of about
10,000 seamen, and in whose behalf he sued as well as his own. The
owners and operators of vessels engaged in interstate and foreign
commerce on the coast had formed a combination to control the
employment of all seamen on vessels in such commerce, requiring
every seaman seeking employment to register, receive a number, and
await his turn according to such number before employment could
be obtained. Each seaman is given a certificate and cards reciting
his capacity and stating that no employment must be given in any
capacity unless an assignment card issued by the association and ad
dressed to the vessel, <!‘ designating the position to which we have
assigned him,” is presented to the prospective employer.
The associations fix the wages which shall be paid the seamen.
Under the regulations, when a seaman’s turn comes, he must take
the employment then offered or none, whether it is suited for his
qualifications or whether he wishes to engage on the particular vessel
or for the particular voyage; and the officers of the vessels are
deprived of the right to select their own men or those deemed most
suitable. Without a compliance with the foregoing requirements,
no seaman can be employed on any of the vessels owned or operated
by members of the associations.
Anderson recited his experience in attempting to secure employ
ment, which was refused because he failed to produce a discharge
book; later he was discharged by a mate who had agreed to take
him on because of the requirement that he procure an assignment
from the association, which was refused, and when subsequently he
did report at the mate’s instructions he was informed finally that he
was not able to take him on except through the office of the associa
tion. Anderson then sued for an injunction against the association
and its activities.
On the presentation of these facts to the district court, it was held
that the complaint was insufficient and the defendant’s motion to
dismiss it was sustained. On appeal, the circuit court of appeals
took the same view, saying that “ if plaintiff has a cause of action,
it is not cognizable in the Federal courts.” (Anderson v. Shipown
ers’ Association, 10 Fed. (2d) 96.)
The case then came to the Supreme Court on a writ of certiorari,
where Mr. Justice Sutherland, speaking for the court, set forth the
facts as above recited and continued as follows:
From these averments, the conclusion results that each of the ship
owners and operators, by entering into this combination, has, in re
spect of the employment of seamen, surrendered himself completely
to the control of the associations. If the restraint thus imposed had

DECISIONS OF THE COURTS

related to the carriage of goods in interstate and foreign commerce—
that is to say, if each shipowner had precluded himself from making
any contract of transportation directly with the shipper and had
put himself under an obligation to refuse to carry for any person
without the previous approval of the associations— the unlawful re
straint would be clear. But ships and those who operate them are
instrumentalities of commerce and within the commerce clause no
less than cargoes. (Second Employers’ Liability Cases, 223 U. S. 1,
47-49, 32 Sup. Ct. 169.) And, as was said by this court in United
States v. Colgate & Co. (250 U. S. 300, 307, 39 Sup. Ct. 465, 468.)
“ The purpose of the Sherman Act is to prohibit monopolies, contracts,
and combinations which probably would unduly interfere with the
free exercise of their rights by those engaged, or w^ho wish to engage,
in trade and commerce— in a word to preserve the right of freedom
to trade.” That the effect of the combination now under consider
ation, both as to the seamen and the owners, is precisely what this
language condemns, is made plain by the allegations of the bill which
we have just summarized. The absence of an allegation that such
was the specific intent is not important, since that is the necessary
and direct consequence of the combination and the acts of the associ
ations under it, and they can not be heard to say the contrary.
It was said not to be important whether the object was merely to
regulate the employment of the men and not to restrain commerce.
The purpose to secure benefits to themselves did not justify conduct
that might have been unobjectionable in the absence of restraint.
The cases cited by the respondents, in which it had been held that
local matters only were affected so that the antitrust law did not
apply, were held not in point. Even though the mining of coal and
the manufacture of goods are not commerce, although a large part is
intended to be shipped therein, the conditions in the instant case
present a different situation.
Here, the combination and the acts complained of did not spend
their intended and direct force upon a local situation. On the con
trary, they related to the employment of seamen for service on ships,
both of them instrumentalities of, and intended to be used in, inter
state and foreign commerce, and the immediate force of the combi
nation, both in purpose and execution, was directed toward affecting
such commerce. The interference with commerce, therefore, was
direct and primary, and not, as in the cases cited, incidental, indirect,
and secondary.
Taking the allegations of the bill at their face value, as we must
do, in the absence of countervailing facts or explanations, it appears
that each shipowner and operator in this widespread combination has
surrendered his freedom of action in the matter of employing seamen
and agreed to abide by the will of the associations. Such is the
fair interpretation of the combination and of the various requirements
under it, and this is borne out by the actual experience of the peti
tioner in his efforts to secure employment. These shipowners and
operators having thus put themselves into a situation of restraint
upon their freedom to carry on interstate and foreign commerce

EXAMINATION, LICENSING, ETC., OF OCCUPATIONS

according to their own choice and discretion, it follows, as the case
now stands, that the combination is in violation of the antitrust act.
The decree was accordingly reversed and the cause remanded to
the district court for further proceedings in conformity with this
opinion.
E x a m i n a t i o n , L ic e n s in g , E t c .,
of

E m ploym ent— A

ccountants—

O c c u p a t io n s — R

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

e s t r ic t io n
of

Stat

Frazer et al. v . Shelton, Supreme Court of Illinois (.February 18,
1926), 150 Northeastern Reporter, page 696.— T h e Legislature o f Illi
nois, at its legislative session of the year 1925, passed an act know n
ute—

as the “ accountancy a c t,” b y w hich it undertook to regulate the
practice of accountancy w ithin the State.

T h e act provided, am ong

other things, th at only those persons who held certificates as certified
public accountants prior to O ctober

1, 1925, and those holding such

certificates from an outside State should be allowed to assum e such
title or to use the abbreviation “ C .

P. A .”

No provision was m ade

for licensing any citizen of Illinois as a certified public accountant
who was n ot such at the tim e the act w ent into effect.

T h ere was,

how ever, a provision for licensing persons who m et the educational
requirem ents as public accountants, and a fu ith er provision th a t

person n ot h aving a certificate from the proper authority could n ot
practice accountancy for m ore than one person.

George E. Frazer and others attacked the constitutionality of the
act, and filed a bill against A. M . Shelton as director of the Depart
ment of Registration and Education of Illinois to enjoin the enforce
ment of the act. It was contended that the act violated section 22
of article 4 of the State constitution prohibiting special privileges,
and the fourteenth amendment of the Federal Constitution in th at
it denied equal protection of the laws and was an unwarranted exer
cise of the police power of the State.
Defendants demurred to the bill. The demurrer was sustained in
the court below, and the bill dismissed. Plaintiff appealed. The
supreme court reversed the trial court and in its opinion said in part:
By this act one who on June 30, 1925, commences practicing as a
public accountant on his own account may register as such on or
before October 1, 1925, because he was practicing as a public account
ant on his own account on July 1, 1925, and this though he shall have
had no previous experience, while one who has had 4 years and 11
months' experience in the employ of either a certified public account
ant or a public accountant can not receive a certificate as public
accountant without examination. There is no reasonable basis for
the discrimination between such two persons. While a statute
intended to be prospective may provide that it shall not apply to
42335°—27------6

DECISIONS 0IT THE COURTS

those already in the occupation to be licensed, under conditions named,
such exemption must be made to apply equally to all similarly situ
ated.
A statute can not be sustained which applies to some persons or
cases and does not apply to all persons and cases not essentially dif
ferent in kind.
The term “ police power” comprehends the power to make and
enforce all wholesome and reasonable laws and regulations neces
sary to maintain the public health, comfort, safety, and welfare.
Section 1 of article 2 of the Constitution provides: “ All men are by
nature free and independent, and have certain inherent and inalien
able rights— among these are life, liberty, and the pursuit of happi
ness.”
The right of a citizen to pursue ordinary trades or callings upon
equal terms with all other persons similarly situated is a part of his
right to liberty and property. Whether or not the regulation of an
occupation has in it the elements of protection to the public health,
comfort, safety, or welfare is a matter not always easy to determine.
The question is here presented, Does the business of accounting af
fect the public health, comfort, safety, or welfare? It is readily
seen that an incompetent accountant may render an inaccurate
report and cause his employer to make a business error. This cre
ates no effect upon the public, however, unless the relationship
existing between the public welfare and the private business so
affected is so close as to establish that influence. In order to say
that private business must, in the interest of public welfare, employ
one certified by the State, it must appear that the effect of an audit
of that business is a matter of public welfare and not of private
concern. If it is the latter the audit has no element of public wel
fare in it, and a law prohibiting or licensing the business of one who
makes such audit is but an unwarranted regulation of private busi
ness and the right to contract.
We do not say that it is beyond the power of the general assembly
to enact a statute requiring that no one shall use the term “ certified
public accountant” or the term “ public accountant” without having
met the requirements of such an act. Such a provision may well be
within the power of the legislature on the ground that it is to the public
interest that no one shall use a term indicating that he has been
examined and certified as an accountant when such is not the fact.
Such is a misrepresentation which the legislature may prevent by
statute. There is, as we view it, however, a wide difference between
acts of such character and one which provides that no one who has
not received a certificate as public accountant from the department
of registration and education shall be allowed to work at the business
or occupation of accountancy for more than one person. Such an
act does not spring from a demand for the protection of the public
welfare, but is an unwarranted regulation of private business and
the right of the citizen to pursue the ordinary occupations of life.
For these reasons it was error to sustain the demurrer and dismiss
the bill.
The decree of the circuit court was reversed and remanded with
directions to overrule the demurrer.

HOURS OF SERVICE
H ou rs o f

Labor

W om en— B o o k k e e p e r

in B a n k — N i n e -

H o u r D ay — C o n s t r u c t i o n o f S t a t u t e —

Ex parte Carson, Criminal
Court of Appeals of Oklahoma {February 6,1926), 248 Pacific Reporter,
page 280.— Section 7222, as amended (Comp. S t. 1921), reads as
follows:
That no females shall be employed or permitted to work in any
manufacturing, mechanical or mercantile establishment, laundry,
bakery, hotel or restaurant, office building or warehouse, telegraph
or telephone establishment or office or printing establishment, or
bookbindery, or any theater, show house, or place of amusement or
any other establishment employing any female, more than 9 hours
in any one day, nor more than 54 hours in any one week.
H. B. Carson was convicted under the provisions of that statute
before a justice of the peace, fined $50 and costa, and committed to
the custody of the sheriff of the county until the same should be paid.
He was charged with violating the statute by permitting Mollie
Whitman, a bookkeeper in his bank, to work in excess of nine hours
on November 24, 1925. He petitioned the court for a writ of habeas
corpus.
The court, on reviewing the statute, said in part:
Under this rule the phrase, “ any other establishment employing
any female,” is restricted and explained by the particular employments
named to employees in establishments of like character where the
work is similar. Since banks are neither expressly named nor are of
the character of business specifically named, they are not within the
purview of the statute.
Apparently the legislature was attempting to reach those lines of
business that require physical labor, as laundries, bakeries, restaurants,
or that operate continuously or for long hours, as hotels and tele
graph and telephone establishments, and it took cognizance of the
well-known fact that the work done by the employees of a bank is
largely mental labor, and the working hours are generally shorter
than in other lines of business.
The terms of the statute in question can not be extended to apply
to banks. It follows that the conviction of the petitioner is illegal
and he should be discharged.
The writ was therefore awarded.

ours

S e r v ic e — R a il r o a d s — Y

u t e — Atchison,

ardm asters—

F ederal Stat

T. & S. F. R y. Co. v. United States, Supreme Court of
the United States {November 80, 1925), 46 Supreme Court Reporter, p .
109.— Action was brought by the United States to recover penalties for
alleged violation of the hours of service act of March 4,1907, chapter
2939, section 2 (34 Stat. 1415 [Comp. St., sec. 8678]), two yardmasters
being employed for 12 hours on a certain day. The facts not being
in dispute, a jury was waived, and the decision turned on the trial

DECISIONS OF THE COURTS

judge’s view of the law (298 Fed. 549). His judgment, assessing a
penalty, was sustained by the circuit court of appeals (3 Fed. (2d)
138). The material part of the statute is:
That no operator, train dispatcher, or other employee who by the
use of the telegraph or telephone dispatches, reports, transmits,
receives or delivers orders pertaining to or affecting train movements
shall be required or permitted to be or remain on duty for a longer
period than 9 hours in any 24-hour period in all towers, offices, places,
and stations continuously operated night and day.
It was under the provisions of this statute that the judge in the
instant case held that the duty of yardmasters fell within the act.
The defendant railroad company brought a writ of certiorari to the
United States Circuit Court of Appeals.
Mr. Justice Holmes, delivering the opinion of the Supreme Court,
said in part:
“ The purpose of the statute is to promote safety in operating
trains by preventing the excessive mental and physical strain which
usually results from remaining too long at an exacting task.” (Chicago
& Alton R. R. Co. v. United States, 247 U.'S. 197, 199, 200, 38 Sup.
Ct. 442, 443.)
The yardmaster’s duties extend to the breaking up and making up
of trains, the prompt movement of cars, and general charge of the
yard. The telephoning, although a part of them, was an incidental
pait only, and a small one. Twenty-four calls a day seems a too
liberal estimate. The office hardly could be described as “ continu
ously operated,” when the yardmaster was not in it much more than
half the time, but was about the yard attending to other things.
Taking all the facts into account we are of opinion that the employ
ment of the yardmaster for more than nine hours was not within
the evil at which the statute was aimed and that the ruling to the
contrary was wrong.
The judgment was therefore reversed.

L abor O rganizations — C ollective A greement — R efusal to
U se
N onunion
M illwork — B oycott— M onopoly— I nterfer
ence w ith I nterstate C ommerce— United States v. Brims, Supreme

Court oj the United States (November 28, 1926), 47 Supreme Court
Reporter, page 169.— William F. Brims and others associated with
him had entered into an agreement between contractors and union
labor organizations in the city of Chicago regulating the conditions
of employment in the building trades. From 1900 to 1918 the only
restriction on material had been against the use of prison-made prod
ucts. In 1918 the section of the agreement was made to read “ except
nonunion and prison made,” certain products being excepted. Up
to that time a large amount o f the material known as millwork used
in Chicago was shipped from Wisconsin, notably Oshkosh, and some

IiABOR ORGANIZATIONS

Southern States, nonunion labor being employed in the production
of such material.
The Government proceeded against Brims and others on the ground
of a violation of the Sherman Antitrust Act, the agreement having
resulted in a great diminution in interstate shipments. For instance,
a single firm in Oshkosh which had for 9 years shipped an average
of $250,000 worth of millwork to Chicago, sent but $61,000 worth in
1919 and $50,000 worth in 1920. Conviction was had in the District
Court of the United States, whereupon error was brought to the cir
cuit court of appeals. Here the judgment below was reversed and
the case remanded. However, the United States procured a writ of
certiorari from the Supreme Court, where the case was argued and
the judgment of the circuit court of appeals was reversed.
It was the contention of the defendants that their objection was
not to millwork made outside the State but merely to nonunion made
millwork, and that inasmuch as the industry was largely unionized
in the city of Chicago, it was to the advantage of the Chicago plants
and in line with the policy of the workers that nonunion products
from whatever source be excluded. The indictment charged a com
bination and conspiracy “ to prevent manufacturing plants located
outside of the city of Chicago and in other States from selling and
delivering their building material in and shipping the same to said city
of Chicago.” The circuit court of appeals held that the Government
had “ failed to show that the real agreement was not to eliminate
1nonunion-made material, but materials made outside of Chicago/ ”
It accordingly regarded the restriction “ not against the shipment of
millwork into Illinois. It was against nonunion-made millwork
produced in or out of Illinois,” and the judgment below, as already
stated, was reversed. (Brims v. United States, 6 Fed. (2d) 98.)
The Supreme Court found as a fact that the local manufacturers were
at a disadvantage in competition with the cheaper products from
outside the State; while as to the workmen the effect of importing
millwork was a diminution of local employment. As to the general
attitude and the results, Mr. Justice McReynolds, speaking for the
court, said:
They wished to eliminate the competition of Wisconsin and other
nonunion mills which were paying lower wages and consequently
could undersell them. Obviously, it would tend to bring about the
desired result if a general combination could be secured under which
the manufacturers and contractors would employ only union carpen
ters with the understanding that the latter would refuse to install
nonunion-made millwork. And we think there is evidence reasonably
tending to show that such a combination was brought about, and
that, as intended by all the parties, the so-called outside competition
was cut down and thereby interstate commerce directly and materi
ally impeded. The local manufacturers, relieved from the competi
tion that came through interstate commerce, increased their output

DECISIONS OF THE COURTS

and profits; tliey gave special discounts to local contractors; more
union carpenters secured employment in Chicago and their wages
were increased. These were the incentives which brought about the
combination. The nonunion mills outside of the city found their
Chicago market greatly circumscribed or destroyed; the price of
buildings was increased; and, as usual under such circumstances, the
public paid excessive prices.
The allegations of the bill were sufficient to cover a combination
like the one which some of the evidence tended to show. It is a
matter of no consequence that the purpose was to shut out non
union millwork made within Illinois as well as that made without.
The crime of restraining interstate commerce through combination
is not condoned by the inclusion of intrastate commerce as well.
It was accordingly ruled that the decision below must be reversed;
and inasmuch as other assignments of error had been presented to
the circuit court of appeals, which it had ignored in view of its find
ing based on the point of a monopoly interfering with interstate
commerce, the case was remanded to this court for further proceedings
In order that the Supreme Court might have the view of that court
in respect of these other assignments of error.

O r g a n iz a t io n s — C o l l e c t iv e

abor

A greem ent— Seam en—

The Eoivick H o lly United States District
Court of Louisiana (May 30, 1925), 10 Federal Reporter (2d), page
162.— P atrick M o n a h a n and tw o others brought libel against the
steam ship Hovnck Hall to recover the difference betw een wages stip
C

ontract

A r b it r a t io n —

ulated in the shipping articles and the rates at which th ey were paid.
T h e facts, w hich were undisputed, were th at the libelants shipped on
the steam ship above m entioned at N e w Orleans and signed articles
on A pril

19, 1921, for a v oyage to Y o k o h a m a , Japan, and from there

back to a port in the U n ited States.

T h e wages were to be $ 1 0 0 ,

$95, and $85, respectively, which were in accordance w ith the sched
ule agreed to b y the A m erican Steam ship O w ners’ A ssociation and
the seam en ’ s union.

T h e articles also provided th at any change in

the w orking rules and wages should be retroactive and a p p ly to the
articles, and that any question w hatsoever betw een the m aster, con
signee, agent, or owner of the

HowicJc Hall and the libelants should

be heard b y the shipping com m issioner or consul appointed b y the
U n ited S tates, whose action should be binding upon all the parties
and conclusive in any court o f justice.

The agreement as to wages, etc., between the steamship association
and the seamen’s union expired on May 1, 1921, and no new sched
ule had been agreed upon up to August, 1921, when the association
adopted a scale of wages, without agreement with the seamen’s union,
and declared it to be retroactive to May 1. According to the new

l a b o r o r g a n iz a t io n s

■scale, libelants would receive from $12.50 to '$15 per inonth loss than
was stipulated in tkeir contract. The master of the ship took up the
matter of paying off the crew under the new scale with the deputy
shipping commissioner, who ruled that in accordance with the articles
agreed to fey the seamen they were obliged to accept payment under
the terms of the new schedule., which they did under protest, signing
the usual release.
Judge Foster, in delivering the opinion of the court, said in part:
It is evident to my mind that the master and the shipping com
missioner wrongly construed the clause in question. This clearly had
reference to an agreement changing the wages or working conditions
to which libelants were actually or constructively parties. I have
no doubt that had the officers of the seamen’s unions and the ship
owners* association reached an agreement both sides would have
been bound by it, and the clause could -have been given effect; but
to allow' the shipowner or the captain to arbitrarily reduce wages
would be going too far.
Respondent replies, also., on the clause making the shipping com
missioner an arbitrator in any dispute that might arise between the
crew and the master. It is well settled that contracts providing,
before the dispute arises, for arbitration, and making the award of
the arbitrator conclusive, are void. When applied to a contract of
seamen’s wages, the rule is all the more to be enforced. Sailors are
wards of the admiralty, and the courts jealously protect their rights.
It is notorious that sailors, when about to sign up for a new voyage,
are usually destitute, and will agree to any stipulation in the shipping
articles, without giving its probable effect the slighest consideration.
The judge referred to section 4554, Revised Statutes (Comp. St.,
sec. 8343), which vests authority in the shipping commissioner to
decide questions between the master and the crewr which both parties
agree to submit in writing. The opinion continued:
Tliis section has application only to such controversies as are
actually submitted in writing to the commissioner. It can not be
said that the clause in the contract above referred to had the effect
of a submission in writing of the particular controversy here
developed.
The captain merely stated his case verbally, and the commissioner
and deputy commissioner agreed with him, and required the sea
men to accept their wages at the rates fixed by the captain.
There were none of the elements of an arbitration in this proceeding.
It was held that the libelants were entitled to recover the amounts
claimed with interest from the date they were paid off, with. costs.

L abor O rganizations — C onspiracy— E xtortion of M oney
F rom C ontractors— People v. Walsh, d al., Supreme Court oj Illinois

{Jum 16,1926), 153 Northeastern Reporter, page 357.— Thomas Walsh,
Frank Hayes, Roy Shields, and Patrick Kane were convicted in the
criminal court of Cook County on a charge of conspiracy, and were

DECISIONS OF THE COURTS

sentenced to one year in jail. Judgment was affirmed in the appel
late court, and the defendants brought error to the supreme court to
review the record, where the judgment was again affirmed.
Walsh and Hayes were business agents of the sheet metal workers7
union, Shields was agent of the painters’ union and Kane was the
business agent of the plumbers’ union. The charges on which they
were convicted grew out of their dealings with contractors and others
who were interested in the construction of certain buildings in the
city of Chicago.
The facts were substantially as follows: In January, 1920, there
was a threatened strike on the Stratford Theater building, which
was being constructed by the Chicago United Theaters (Inc.) in
charge of William Krieg and Walter Ahschlager. Krieg met with
Hayes, Kane, and Shields, and was told by one of them that there
was a grievance regarding metal windows, electric work, carpentry,
seats, and some other parts of the construction work that would lead
to a strike. Kane met a representative of the Chicago Union The
aters (Inc.) at Ahschlager’s office on the following day and agreed to
settle the matter for $3,000, to be paid in installments of $500 each.
Five hundred dollars was paid to Kane at the time, $500 some two
weeks later, and $1,000 was paid to him in March, 1920. Sometime
between the middle of July and September 10, 1920, there was some
trouble threatened by the painters, and Shields, on being asked by
Krieg what the trouble was, said that the painting of the seats
should have been done by local union members and not by out of
town men. Shields stated that the trouble would be settled if Krieg
paid him the other $1,000 that was promised to Kane. Thereupon
he w^as paid the $1,000* and there was no further trouble.
In March, 1920, the painters on the Drumm Building that was
being constructed by Harold A. Drumm were called out on strike on
account of the painting of some doors, and soon thereafter the plumb
ers also quit for no stated reason. Drumm was informed by Shields
that the trouble could be settled by removing all the stain from the
doors and by contracting with one Rood to finish the paint work on
the building. Drumm was told by Rood that the matter could be
settled by paying Shields $1,000. Drumm met Shields and Kane
and paid Shields the $1,000 and thereafter the painters went back to
work, although the stain was not removed from the doors.
In October, 1920, Hayes told Mark Solomon, of the firm of Solomon
& Reger, which was having a hotel erected, that certain metal work
had been installed by the wrong union and insisted that the work be
taken out and be put in by the members of his union. Solomon
refused and a strike of the metal workers was called by Hayes. Sol
omon took the matter up with Walsh but was told that not a thing
could be done except to take the metal work out and have it set by

l a b o r o r g a n iz a t io n s

his (Walsh’s) men. Four days later Hayes agreed with Solomon
that the trouble could be settled by the payment of $500. This
amount was paid to Hayes and the strike was called off, but the
metal frames were never taken out and no more complaint was heard
from either Hayes or Walsh.
The court disposed of the technical questions raised by the defend
ants as insufficient grounds for a reversal of the judgment. It then
held that the evidence clearly established that the defendants were
guilty under some one or more of the charges of conspiracy against
the builders named, and accordingly affirmed the judgments of the
appellate and of the criminal court of Cook County.

L a b o r O r g a n iz a t io n s — I n t e r f e r e n c e

w it h

E m ploym ent— D i s

Barker
Painting Co. v . Brotherhood of Painters, etc., United States Circuit
Court oj Appeals (October 2, 1926), 15 Fed. (2d), page 16.— T h is was
c r im in a t io n

A g a in s t O u t s id e C o n t r a c t o r s — I n j u n c t io n —

an action b y the Barker P ain tin g C o . against the B rotherhood of
Painters, which had adopted a rule requiring th a t where an em ployer
of union labor is residing in one locality and doing work in another
he shall select n ot less than 50 per cent of his m en from m em bers
of the union in the locality where the work is being done.

A n oth er

rule requires th a t the length of the w orkday and the rate of wage
shall be the shorter day and the higher wage prevailing in either
locality.

In the instant case the com plainant is a N ew Y o r k corpora

tion doing painting under contract throu gh ou t the U n ited States.
A forem an is sent to the place and local w orkm en hired, alw ays m em
bers of the union.

T h e contract under consideration was for work

in Philadelphia, the intention being to com p ly with local require
m ents.

T h e P hiladelphia wage scale was $1 per hour for 8 hours

with a 5 3 ^ -d a y week.

In N e w Y o r k the scale was $1.31 for an 8-h ou r

d ay and a 5 -d a y week.

“ T h e com p lain an t’s em ployees

resident

in Philadelphia, acting under pressure from their union, refused to
work in Philadelphia at the Philadelphia scale of wages and hours
and dem anded the N e w Y o r k scale as to b o th .”

T h e com p an y then

sued for inju n ction , which was denied in the D istrict C ou rt of the
U n ited States.

F ro m this ruling an appeal was taken, resulting, how

ever, in an affirmance.

Opposite conclusions by various courts were cited in the opinion,
one by the Court of Errors and Appeals of New Jersey (New Jersey
Painting Co. v. Local No. 26 (1924), 96 N.J.Eq. 632, 126 Atl. 399;
see Bui. No. 391, p. 206), with two others by the Superior Court of
Rhode Island and the Court of Common Pleas of Philadelphia County,
opposed to the issue of an injunction. The opinions in the two latter
cases were not reported, though they were before the court. In favor

DECISIONS OF THE COURTS

of the issue of such an injunction as was prayed for three cases were
cited: Hass v. Local Union No. 17 (U. S. District Court, District of
Connecticut, 1924,300 Fed. 894; See Bui. No. 391, p. 205); Barker
Painting Co. v. Brotherhood of Painters (Supreme Court of the Dis
trict of Columbia, not reported); and Barker Painting Co. v. Local
No. 734 (U. S. District Court, District of New Jersey, not reported).
Circuit Judge Woolley, who delivered the opinion of the court,
Judge Buffington dissenting, after stating the above facts, said:
All the cited State decisions are against injunctions; all the Federal
decisions favor injunctions.1 The learned trial court was inclined to
the reasoning of the State decisions; and so are we, not because the
respondents have shown that the rules are lawful, but, rather, because
the complainant has failed to show that they are unlawful.
The theory on which the Federal decisions were rendered is that
the rules impose on the outside contractor an unjust discrimination
and, in consequence, inflict an injury on the public in that they
operate unfairly to restrain trade. The theory on which the State
cases were decided initially, and necessarily, includes an admission
that the rules work discrimination in some degree against the outside
contractor, but it recognizes that it is not every discrimination that
is unlawful. The courts in the latter cases restate what is now set
tled law, that employers have no vested interest in the labor or workers
and that their workers have a right, individually and collectively, to
lay down terms on which they will sell their labor for the highest
return they can obtain, and when not satisfied, they have a right to
strike. So long as they do this in their own interest, not with the
purpose of assailing others, and do it in a manner not in itself unlaw
ful, the courts will not interfere. [Cases cited.]
Discrimination and injury to the public wore points urged against
the rule, but the court found that the purpose of avoiding conflicts
within the groups on the same job, paid at different rates, was the
apparent purpose of the rule. Other plausible arguments were
suggested, “ certainly not to express our views, nor to intimate sym
pathy with the rules— for assuredly we have none— nor to suggest
arguments in their support or reasons justifying their promulgation,
but merely to show that many variable and intangible factors inevi
tably enter into the situation, making the injunctive process of doubt
ful propriety and legality.”
Continuing, Judge Woolley said:
Because of many unknown factors and the uncertainty of what
would be the consequences to both employers and employees of a
ruling of the nature sought by the complainant, the case is far from
clear. Without doubt a distant employer may be confronted by a
practical difficulty when, away from home, he comes against the
respondent’s rules, and, concededly, the difficulty, when occuring,
amounts to discrimination against him in some degree. Yet the
1Subsequent to the writing of this opinion, the United States District Court, District of New Jersey,
dissolved the preliminary injunction granted in the case here cited. See account at conclusion of this
ease.

IABOR ORGANIZATIONS

complainant has not convinced us that such discrimination, in kind and
degree, is so unreasonable that it is unlawful and that, in consequence,
it calls for relief by injunction. Nor has the complainant persuaded us
that the offending rules operate to injure the public in the legal sense
of that term. Any action that arbitrarily or artificially raises the
cost of a thing might be regarded as an injury to the consuming pub
lic; yet, when (as here) the injury to the public is too remote to fol
low and weigh, the law is not concerned with it.
These views— the result of a cold consideration of the cited
authorities— are decisive of the suit and sustain the decree below.
Judge Buffington dissented in a brief opinion, expressing his view
that the rules in effect stifle competition, are unfair, (i and in common
parlance not a square deal between two competitors generally.”
Added cost was an unfair burden to the public— private citizens as
well as States and municipalities— on account of added cost to the
construction of buildings.
Special attention is called to the case of Barker Painting Co- v. Local No. 734,
decided by the United States District Court, District of New Jersey, April 13,
1926 (12 Feb. (2d) 945), reversing the decision in the same case, cited above.
The facts in the case were identical with those in the case above, the action
being brought by the same company. In the case against Local No. 734, Judge
Runyon quoted at length from the opinion of the New Jersey Court of Errors
and Appeals in the case of New Jersey Painting Co. v. Local No. 26, cited in the
above opinion, and concluded that no injunction should have issued, the rule
adopted being for the purpose of increasing wages of the members of the union
under certain conditions, which they might lawfully do. No illegal method was
found, and no unlawful discrimination or improper classification, the opinion
concluding: “ I am of the opinion that in this case the defendants have acted
altogether within their legal right, and that the injunctive restraint heretofore
granted should be dissolved.”

L abor O rganizations — P enalty for C alling S trike — C onsti
Statute — Dorchy v. State of Kansas, United States

tutionality of

Supreme Court (Oct. 25, 1926), 47 Supreme Court Reporter, page 86.—
Section 17 of the court of industrial relations act of Kansas (Laws
1920, ch. 29), while reserving to the individual employee the right to
quit his employment at any time, makes it unlawful to conspire to
induce others to quit their employment for the purpose and with
the intent to hinder, delay, limit, or suspend the operation of mining.
Section 19 makes it a felony for an officer of a labor union willfully
to use the power or influence incident to his office to induce another
person to violate any provisions of the act.
August Dorchy was prosecuted criminally for violating section 19,
and sentenced to pay a fine and serve a term in prison. This judg
ment was affirmed by the supreme court of the State. (Kansas v.
Howat, 112 Kans. 235, 210 Pac. 352.) Dorchy appealed to the
United States Supreme Court on the ground that section 19 as

DECISIONS OF THE COURTS

applied was void because it prohibited strikes and was therefore in
violation of the fourteenth amendment to the Constitution of the
United States.
It appeared that Dorchy was vice president of District No. 14,
United Mine Workers of America, whose members were employed
by the George H. Mackie Fuel Co., and as such officer had been
instrumental in calling the strike of the employees for no other pur
pose than to compel the fuel company to pay a claim of a former
employee amounting to $1S0. This case had once before been before
the United States Supreme Court (Dorchy v. Kansas, 44 Sup. Ct.
323; see Bui. No. 391, p. 165), at which time there was no occasion
to pass on section 19, now under consideration.
The Supreme Court, in affirming the judgment of the State court,
speaking through Mr. Justice Brandeis, said in part:
The right to carry on business— be it' called liberty or property—
has value. To interfere with this right without just cause is unlaw
ful. The fact that the injury was inflicted by a strike is sometimes
a justification. But a strike may be illegal because of its purpose,
however orderly the manner in which it is conducted. To collect a
stale claim due to a fellow member of the union who w'as formerly
employed in the business is not a permissible purpose. In the absence
of a valid agreement to the contrary, each party to a disputed claim
may insist that it be determined only by a court. To enforce payment
by a strike is clearly coercion. The legislature may make such ac
tion punishable criminally, as extortion or otherwise. And it may
subject to punishment him who uses the power or influence incident
to his office in a union to order the strike. Neither the common law
nor the fourteenth amendment confers the absolute right to strike.

L ab or Or ganizations — Picketing — C oercion — I njunctio n —

Jefferson & Indiana Coal Co. v. Maries, Supreme Court of Pennsyl
vania (June 26, 1926), 134 Atlantic Reporter, page 430.— The Roches
ter & Pittsburgh Coal & Iron Co., owners of a mining plant located
at Adrian, Pa., entered into an agreement, known as the Jacksonville
agreement, with the United Mine WTorkers of District No. 2. Shortly
thereafter the Adrian plant was closed down. It was la,ter leased
to the plaintiff, who started operations on what was known as the
1917 scale. A number of its former employees returned to work at
wages provided by that scale. The members and officers of the
United Mine Workers of that district resented that action and called
a general strike, when, because of conditions then existing, a bill was
filed to enjoin the strikers from unlawful interference with the men
at work. It was charged that forcible interference with the men to
induce them to leave their employment took place; marches and
parades with bands of music on the public highways were of almost

LABOR ORGANIZATIONS

daily occurrence; picketing of a greater or less magnitude was engaged
in; there was a dynamite explosion by unknown persons; threatening
letters were sent; and other acts were committed unlawfully tending
to persuade the men to leave work. Defendants denied responsibility
for all the acts, but insisted that they were making an effort to sus
tain the Jacksonville agreement as a standard of wages. From a
decree for the plaintiff the defendant appealed. The decree appealed
from was modified and as modified it was affirmed. The court in its
opinion said:
Without considering the direct conduct of the strikers toward the
workmen, as they passed along the highway, did such marching under
all the circumstances, have an aspect of hostility and intimidation;
or did it, through fear, exert a moral coercion on those on whom it
was intended to operate? To accomplish this result it is not neces
sary that there should be force of arms or a threatening manner or
attitude. Coercion may be accomplished without threats or violence.
Though the organization may use every fair means of persuasion
to accomplish their purpose, when they undertake day after day, or
less frequently, to parade on the public highway, at the time and
place where the men employed pass to and from their work, this is not
peaceful persuasion, but an annoyance, an intimidation, and through
fear, a moral coercion which the law will not tolerate. The highways
may be used by a large body of men for parades within reasonable
limits, but a parade which has lurking within it a spirit of terror, a
commandment of fear, assumes an aspect and coloring far different
from a peaceful assemblage of men on the public highways. The pur
pose might have been perfectly legitimate, but the means employed
was illegitimate.
We therefore conclude that the picketing here carried on was unlaw
ful and the placing of pickets in and upon the highways leading to
these works may be enjoined. The qualifications to the decree
should be omitted. The word “ peaceful” should be eliminated. As
modified, the decree should read to restrain picketing on or near the
premises of the complainant, or on the highways leading thereto;
that is, in any manner with the purpose and for the effect of intimi
dating, annoying, embarrassing, or through fear, exercising moral coer
cion over those lawfully employed by the appellee, whether actual
force or violence be used or not.
A similar conclusion was reached by the Supreme Court of Kansas (Bull v•
International Alliance (1925), 241 Pac. 459), where the proprietor of two moving
picture theaters had been granted an injunction against obstructive and intimi
dating picketing, following threats that he would be turned over “ to the tender
mercies of organized labor ” if he refused to comply with a demand of the union
to pay higher wages to his operators. The State law against the issue of injunc
tions in case of disputes between employers and employees was said not to be
applicable because “ the defendants were not employed by plaintiff or seeking
to be employed, but were outsiders seeking to compel plaintiff to pay higher
wages to those he had employed or might employ.” There was found to be a
conspiracy to inflict injury to the plaintiff’s business, which was a tort, besides
the unlawful threats, so that an injunction would properly issue.

DECISIONS OF THE COURTS

Labor O rganization s— Picketing— In ju n ction — Public Baking

Co. (Inc.)

. Stern, Supreme Court of New York, Special Term (April

21,1926), 215 New York Supplement, page 537.— This was an action to

continue an injunction against the defendant union, of which Jacob
Stern was treasurer, for alleged illegal interference with the plaintiff’s
business. It appeared that the plaintiff at one time employed mem
bers of the defendant union, but upon the expiration of its contract
it discharged the members of the union and employed other laborers.
The union then caused its representatives to parade for about two
hours each day in front of places of business of the plaintiff and soma
of its customers, bearing placards upon which was printed the label
of the union, with the legend:
This union label means shorter hours, sanitary shops, and safety
to the customers. Workers and sympathizers demand bread and
rolls with the union label.
There was also some public appeal in front of these places of busi
ness in the form of street meetings and addresses.
The court refused to grant a continuation of the restraining order
for the reason below set forth:
There is no evidence whatever here that the defendant resorted to
the threat, coercion, intimidation, or fraud which it is forbidden to
use. It advertised to the buying public, before plaintiff’s places of
business and of some of its customers, the merits oi the bread made
by union bakers; it accosted no customers; it interfered neither
directly nor indirectly with any person attempting to enter any place
of business; it made no threat of sympathetic strike. Defendant’s
action was calculated merely to advance its own cause and procure
employment for its own members. So long as it kept its conduct
within these bounds of the law, the fact that the plaintiff was
incidentally damaged thereby entitled it to no legal redress. (Gill
Engraving Co. v. Doerr, 214 Fed. I l l ; see Bui. No. 169, p. 301.)
Judgment was accordingly rendered for the defendant.
In a somewhat earlier case the same judge granted an injunction against
picketing on the ground that there was no strike by the workmen of the employer,
its employees continuing at work, content with the conditions. As the picketing
was said to be merely for the purposes of the union, it had no right thus to
interfere with the employer’s business. (Bolivian Panama Hat Co. v. Finkelstein
(1926), 215 N. Y. Supp. 399.)
This last opinion was cited by a coordinate judge in a case of picketing and the
distribution of literature denouncing the plaintiff, where there was an attempt
to unionize,a nonunion shop in which there was no strike, an injunction being
granted. (Cushman’s Sons v. Amalgamated Food Workers, etc. (1926), 215
N. Y. Supp. 401.)
The same court, appellate division, ruled in favor of the plaintiff where a
small private corporation engaged in a small business, employing only members
of one family and personal friends, was picketed to compel the employment of
union members. None had ever been employed, and the refusal of the court
below to grant an injunction was disapproved, costs and disbursements were
allowed, and the injunction granted, the court saying “ There being no strike,

LABOR ORGANIZATIONS

there is no legal justification for the acts of the defendants.” (L. Daitch &
Co. (Inc.) v. Cohen et al. (1926), 217 N. Y. Supp. 817.)
N ot the fact of no strike, but the riotous conduct of persons engaged in
mass picketing and provocatory articles in the organ of the union were given
as reasons for the issue of an injunction by the appellate division in the case of
Hentner v. Sigman et al. (1928), 215 N. Y . Supp. 323).
And so of the Supreme Court of Appeals of West Virginia, where a collective
agreement had been terminated on the happening of one of the contingencies
provided for termination, followed by picketing “ with intimidation, threats,
coercion and force” ; such conduct, being unlawful, will be enjoined regardless
of former employment ieiations.
(National Woolen Mills v. Local No. 350
<1926), 131 S. e /3 5 7 .)
The Court of Chancery of New Jersey likewise supported the granting of an
injunction where both the above conditions existed, i. e., there was no striking
on the xmrt of the plaintiff's employees, and there were allegations of abusive
and indecent language and threats of violence against both employees and patrons.
Denials were met by the suggestion that “ back of the present demonstration is the
full force and power of the American Federation of Labor, of which the pickets are
mere sentinels or scouts.” It was further said that “ Picketing, the object of
which is unlawful, irrespective of its militant or intimidating character, may be
restrained whether peaceable in fact or not. Even peaceable acts, if unlawful
and resulting in irreparable injury, may be enjoined.” (Gevas v. Greek Res
taurant W ork ed Club et al. (1926), 134 At!. 309.)

L abor O rganizations — P icketing — I njury to B usiness —
I njunction — F. C. Church Shoe Co. v. Turner et al., Court oj Appeals,

Missouri (January 5, 1926), 279 Southwestern Reporter, page 282.—
This was an action for a temporary restraining order and a permanent
injunction against the United Shoe Workers of America, together
with various locals of that union and certain members of the union.
The plaintiffs were shoe manufacturers in St, Louis, Mo., and the
defendants were former employees of the company.
It appeared that up to February 1, 1922, the plantiffs had in their
employ approximately 200 operatives, some of whom were members
of unions and others who were nonunion. The most of those who
belonged to any union were members of the United Shoe Workers of
America. On February 1, 1922, the factory was closed down indef
initely but was soon thereafter reopened. In the meantime, however,
a contract had been made by the company with the Boot and Shoe
Workers Union, a rival to the United Shoe Workers, that in the
future only members of the former union would be hired. On the
opening of the factory on Febiuary 9, notices were inserted in the
public press that members of the Boot and Shoe Woikers* Union
would be employed and preference would be given to former employees,
but the hiring was limited to members of the union or to those who
were willing to become members thereof.
The plaintiffs alleged that as scon as the factory was reopened the
defendants combined and confederated together to terrorize their

DECISIONS OF THE COURTS

employees and persons desirous of entering into their employ; that
they stationed themselves in close proximity to the factory; used
vile and opprobrious epithets in an attempt to coerce plaintiffs to
break their contract with the Boot and Shoe Workers' Union; and
that their conduct constituted a private nuisance. A temporary
restraining order was issued by the court after plaintiff had given
bond in the sum of $3,000. The defendant union afterward filed a
plea of abatement and asked for damages on the bond. This plea
was sustained, and plaintiffs appealed.
The case was considered by a commissoner in an opinion which
the court adopted as its own.
The commissioner dismissed all of the errors assigned as not being
well taken, and addressed himself to a determination of the questions
on which relief was sought in*the circuit court. The first of these was
that the defendants were unlawfully seeking to compel the plaintiffs
to break and abrogate their contract with the Boot and Shoe Workers'
Union, and in support of this contention they cited the case of Hughes
v. Motion Picture Operators (221 S. W . 95), also Hitchman Coal &
Coke Co. v. Mitchell (245 U. S. 229; see Bui. No. 246, p. 145). The
commissioner held that these cases were not in point, in that in
neither of them had the relation of employer and employee ever
existed between the parties. He then referred to the case of Ameri
can Steel Foundries v. Tri-City Central Trades Council (257 U. S.
184, 27 A. L. it. 360; see Bui. No. 309, p. 181), as being more in
harmony with the instant case. In that case the United States
Supreme Court held that it was clear that Congress wished to forbid
the use of the Federal courts to prevent peacable persuasion by
employees, discharged or expectant, in promotion of their side of the
dispute. It was therefore held that the former employees, members
of the United Shoe Workers, and defendants in this case “ were within
their rights in so far as they attempted peaceably to persuade plaintiff’s
employees, actual or expectant, either to leave or not to enter its
employ, even though the ultimate effect of such conduct should be
the breaking of the conti act entered into between plaintiff and the
Boot and Shoe Workers’ Union, and that, in so far as this part of
its case was concerned, plaintiff was clearly not entitled to the relief
sought.”
Of the remaining complaint, that of the use of profane language
by one of the defendants, the commissioner said in part:
The scene of this occurrence was two blocks from the factory.
This act was reprehensible, and must not be condoned, but, of itself,
it was not sufficient to create a nuisance in such close proximity to
plaintiff’s factory as to greatly destroy or injure its value. At most
it was but a breach of the peace, and certainly not the proper sub
ject of relief by injunction which presupposes acts designed to create
a nuisance and calculated to work irreparable injury.

LABOR ORGANIZATIONS

Accordingly the commissioner recommends that the judgment of
the circuit court be affirmed and the cause remanded for disposition
of the motion filed May 29, 1922, by defendant United Shoe Workers
of America, Local No. 10, for the assessment of damages on the
injunction bond.
As stated, the conclusions of the commissioner were made the
decision of the court, and the judgment below was accordingly
affirmed, and the case remanded for an assessment of damages.

Labor O rganizations— Picketing— Service o f P rocess— Juris
diction— C on stru ction o f S ta tu te — Salitra et al. v. Borson et al.t
Supreme Court of New York, Special Term, (March, 1926), 215 New
York Supplement, page 832.— John B. Salitra and another sought an
injunction against Abraham Borson, president of the Delicatessen
Clerks' Union of Greater New York, and another to enjoin them
from picketing in front of the premises occupied by the plaintiffs.
The process server made affidavit that he served the papers in the
case by leaving them personally with a person in the office of the
defendant, who stated that he was an officer of the association. One
of the plaintiff’s attorneys made affidavit that he served a copy of
the papers on a person who was picketing in front of plaintiff’s
premises. On return of the order to show cause the defendants
appeared specially and objected to the jurisdiction of the court,
on the ground that the papers were not served in accordance with the
provisions of section 13, article 3, of the general associations law
(added by Laws 1920, ch. 915, sec. 6). Application for an injunc
tion was denied by the court without prejudice, however, to the
plaintiff’s right to renew the application. Judge Biggs, who delivered
the opinion of the court, said in part:

Section 13 of the general associations law permits an action to be
brought against the president or treasurer of such an association. It
is elementary that suit is begun by the service of the summons or by
the general appearance of the defendant. The order and the papers
upon which order was granted must be served on the defendant
association in the manner prescribed by law. (Sections 225 and 883 of
the civil practice act; rule 21, Rules of Civil Practice.)
It is conceded that the papers herein were served on neither Borson,
alleged to be president, nor his successor. The affidavit of service
merely alleges that they were served on a person who said he was an
officer. Such service, in my opinoin, is not sufficient to confer
jurisdiction.
I am not persuaded that compliance with the direction in the order
to show cause that service thereof be made upon any officer of the
defendant union is sufficient to cure the defect. Accordingly I con
clude that this court has no jurisdiction over the person of the
defendant.
42335°— 27------ 7

DECISIONS OF THE COURTS

The application for injunction was denied, without prejudice to
the plaintiff’s right to renew the application.

L abor O rganizations — R efusal to W ork on N onunion P rod
I njunction — Bedford Cut Stone Co. v. Journeymen Stonecutters

ucts —

of North America, United States Circuit Court of Appeals, Seventh
Circuit (October 28, 1925), 9 Federal Reporter (2d), page J+Q.— The
Bedford Cut Stone Co. and others, quarriers and fabricators of Indiana
limestone, a building stone found in large quantities in the district
about Bedford and Bloomington, Ind., are the appellants. The
defendants are the Journeymen Stonecutters Association of North
America, a labor union, which for many years prior to 1921 had con
tracts with the plaintiffs whereunder only members of the union wei
employed for cutting the stone after it was quarried. Failing to reach
an understanding in 1921, the plaintiffs employed nonunion stone
cutters, forming them into an association, membership in which was
required to obtain employment as stonecutters with these employers.
The defendants have local organizations in most of the States, and
the plaintiffs* product is sent to nearly all parts of the United States
for use in buildings. Some is shipped in the rough, but most of it is
partly cut for use in different buildings and the cutting is completed
at the place of building. Considerable stone is fully shaped and cut
at the quarries, but even this frequently requires some cutting at the
building for exact fitting.
After long negotiations the union officers ordered its members to
cease cutting stone which had already been partly cut by nonunion
labor, and the result was that the completion of buildings was more
or less hindered in several States, the manifest object of the order
being to induce the plaintiffs to employ only union stonecutters in
the Indiana district. The evidence did not disclose that the quarry
ing of stone, the transportation of it, or setting it in the buildings
was sought to be interfered with, and no actual or threatened violence
appeared. There was no picketing and no boycotting. Both parties
to the action resided in Indiana, and the sole ground for Federal juris
diction was that the defendants were conspiring to restrain interstate
commerce.
The District Couit of the United States for the District of Indiana
denied the plaintiffs’ prayer for a temporal injunction, and an appeal
was taken.
The circuit court of appeals was of opinion that under the facts of
the case the defendants were “ within their rights in thus undertaking
to induce members of their craft to refrain from further cutting upon
stone which had before been partly cut by nonunion labor, notwith
standing such refusal might have tended in some degree to discourage

LABOR ORGANIZATIONS

builders from specifying appellants’ stone, and thus to reduce the
quantity of their product which would enter interstate commerce.”
The tendency to restrain interstate commerce was conceded, but it
was held that as long as it did not appear that the defendants
“ resorted or threatened to resort to unlawful acts or means to accom
plish their lawful purpose,” there was no error in the refusal of the
district court to grant an injunction.
It was contended for the plaintiffs that the holding of the Supreme
Court in United Mine Workers of America v. Coronado Coal Co.
(259 U. S. 344, 45 Sup. Ct. 551) “ requires the conclusion here that
this asserted conspiracy is in restraint of interstate commerce.”
Judge Alschuler, speaking for the circuit court of appeals, pointed
out that in the Coronado case the court found new evidence on the
second trial tending to show that one of the purposes of the extensive
destruction of mines and other property and of the killing of persons
was to prevent the large capacity of the mines destroyed, and other
mines there, from entering into competition with the product of
union-operated mines in neighboring States. No such evidence
appeared in this case, and the judgment was affirmed.
This case came to the Supreme Court on a writ of certiorari, the
hearing resulting in a reversal of the court below, the opinion being
delivered April 11, 1927 (47 Sup. Ct. 522). It was held, two Justices
dissenting, that the local activities, undertaken at the behest of the
stonecutters’ association, were for the purpose of destroying the mar
ket for the product of the complainant companies, thus constituting
an interference with interstate commerce in violation of the Federal
antitrust law. Mr. Justice Sutherland, speaking for the court, after
reviewing certain testimony, said:
The evidence makes plain that neither the general union nor the
locals had any grievance against any of the builders— local pur
chasers of the stone— or any other local grievance; and that the
strikes were ordered and conducted for the sole purpose of prevent
ing the use and, consequently, the sale and shipment in interstate
commerce, of petitioners’ product, in order, by threatening the loss
or serious curtailment of their interstate market, to force petitioners
to the alternative of coming to undesired terms with the members
of these unions. * * *
* * * And indeed, on the argument, in answer to a question
from the bench, counsel for respondents very frankly said that,
unless petitioners’ interstate trade in the so-called unfair stone were
injuriously affected, the strikes would accomplish nothing.
Much reliance was placed on the rule laid down by this court in
Duplex Printing Press Co. v. Deering (254 U. S. 443, 41 Sup. Ct.
172; see Bui. No. 290, p. 174). In this case the market for the
products of the company named was to be destroyed by local efforts
interfering with the use, setting up, operation, etc., of its presses.

DECISIONS OP THE COURTS

A distinction was drawn between the instant case and the Coronado
Case, relied on by the court of appeals, also the case United Leather
Workers v. Herkert & Meisel (265 U. S. 457, 44 Sup. Ct. 622; see
Bui. No. 391, p. 212), where an interference with manufacture was
held not an offense against the antitrust act, although the products
were chiefly shipped in interstate commerce, the interruption of inter
state commerce being incidental to other objectives.
Where the “ strikes were directed against the use of petitioners*
product in other States, with the plain design of suppressing or narrow
ing the interstate market, it is no answer to say that the ultimate
object to be accomplished was to bring about a change of conduct on
the part of petitioners in respect of the employment of union mem
bers in Indiana. A restraint of interstate commerce can not be justi
fied by the fact that the ultimate object of the participants was to
secure an ulterior benefit which they might have been at liberty to
pursue by means not involving such restraint.” Other cases were
cited, some in support and some by way of distinction, the conclusion
being reached that 14the acts and conduct of respondents fall within
the terms of the antitrust act; and petitioners are entitled to relief
by injunction under section 16 of the Clayton Act.”
Mr. Justice Sanford concurred “ upon the controlling authority of
Duplex Co. v. Deering, which, as applied to the ultimate question in
this case, I am unable to distinguish.” Mr. Justice Stone wrote a
brief separate opinion in which he cited cases in view of which “ I
should not have thought that such action as is now complained of was
to be regarded as an unreasonable and therefore prohibited restraint
of trade.” However, the views of the majority in the Duplex Print
ing Press Co. case, again applied in the instant case, were found to
be in opposition to such conclusion. “ These views, which I should
not have hesitated to apply here, have been rejected again largely on
the authority of the Duplex case. For that reason alone, I concur
with the majority.”
Mr. Justice Brandeis, Mr. Justice Holmes concurring, wrote a
vigorous dissenting opinion, closely in line with the reasoning of the
circuit court of appeals indicated above. The situation in the Duplex
Printing Press Co. case was held to be clearly distinguishable. There
was here simply an effort to enforce the provision of the constitution of
the association which provides: “ No member of this association shall
cut, carve, or fit any material that has been cut by men working in
opposition to this association.” The mere refusal to work on this
material was “ confessedly legal.” There was no trespass or breach
of contract, no picketing, violence, intimidation, fraud, or threats.
There was no boycott against any of the plaintiffs or against builders
who used the plaintiff’s product, no attempt by the unions to procure
a sympathetic strike or the aid of members of any other craft. “ The

LABOR ORGANIZATIONS

association, its locals, and officers were clearly innocent of wrong
doing, unless Congress has declared that for union officials to urge
members to refrain from working on stone ‘ cut by men working in
opposition1 to it is necessarily illegal if thereby the interstate trade
of another is restrained.” The opinion concludes:
The Sherman law was held in United States v. United Shoe Machin
ery Co. (247 U. S. 32), to permit capitalists to combine in another
corporation practically the whole shoe machinery industry of the
country, necessarily giving it a position of dominance over shoe
manufacturing in America. It would, indeed, be strange if Congress
had by the same act willed to deny to members of a small craft of
workingmen the right to cooperate in simply refraining from work,
when that course was the only means of self-protection against a
combination of militant and powerful employers. I can not believe
that Congress did so.
L abor O rganizations— R evocation of C h a rte r— P ro p erty
R igh ts— Centralia Labor Temple Assn. v. O’Day et al., Supreme Court
of Washington (June 16, 1926), 246 Pacific Reporter, page 930.— The
Central Labor Council of Lewis County, Wash., was organized in
1918 and was chartered by the American Federation of Labor. Dur
ing the existence of this council, referred to herein as the old council,
a fund was raised with which to build a labor temple. This fund
was held by W . F. O ’Day, treasurer of the council, and was carried
on the books of the council as a temple fund separate and apart from
the general fund. In the early part of 1923 the council ceased to
function and its charter was revoked by authority of Samuel Gompers,
head of the American Federation of Labor. In March, 1923, a new
council was organized under the name of the Twin City Central Labor
Union of Chehalis and Centralia and was chartered by the American
Federation of Labor. In April, 1923, a corporation known as the
Central Labor Temple Association was formed, and in M ay, 1923,
the old council, which had only two labor unions in good standing
(five being necessary to constitute a quorum for the transaction of
business) held a meeting and passed a resolution ratifying the turn
ing over of the fund which had been raised for temple purposes to
the Labor Temple Association. That association then made demand
on O’Day to pay over to it the funds in his hands. This he refused
to do because the new council had demanded that the funds be deliv
ered to it. Action was then commenced by the Labor Temple Asso
ciation to require O ’Day to turn over the funds to it. The action
was opposed by the new council. After hearing the evidence, the
trial court held that the fund in question was a trust fund to be used
for labor temple purposes; that when the old counciFs charter was
revoked and the new coundi formed with the approval of and under

DECISIONS OF THE COURTS

the charter of the American Federation of Labor, it became entitled
to the possession of the trust fund to be used for trust purposes, for
which it was contributed. From this judgment the Labor Temple
Association appealed. The court, after considering the numerous
errors assigned, affirmed the judgment of the lower court, and the
conclusion of its opinion said:
We find no error in the holding of the trial court that the fund in
question should be delivered to the new council, and its judgment is
therefore affirmed.
L abor O rganizations — R ules— R efusal to P a y S trike B ene
of O fficials of U nions — Brotherhood of Bailroad

fits— P owers

Trainmen v. Barnhill, Supreme Court of Alabama (April 8, 1926), 108
Southern Bepovter, page 456.— T. L. Barnhill sued the Brotherhood
of Railroad Trainmen for strike benefits from September 5, 1923, to
July 5, 1924. He alleged in his complaint that he was a member of
the defendant’s order; that the defendant contracted with him at the
time he became a member to pay him strike benefits; that he was
called out on a strike inaugurated by the brotherhood on March 5>
1921; that the strike had not been officially terminated and that he
continued to strike. He asked judgment in the amount of $100 per
month from September 5, 1923, to July 5, 1924. From judgment for
the plaintiff the defendant appealed. It contended that under the
provisions of its constitution and by-laws its officers were empowered
to take such action as they deemed necessary to protect the funds of
the order.
The court, after reviewing and citing a number of cases involving
questions similar to that here presented, upheld the defendant’s con
tention in the following language:
After a due consideration of the authorities, the power through the
provisions of the brotherhood law to make the decision of their own
officials and tribunals conclusive in respect to the extraordinary pro
tective fund and all its strike benefits under its law, we are of opinion
are conclusive on the members, no fraud being charged. These
institutions, operating for their members or a reasonable classification
thereof for reasons of policy and that of its welfare, may adopt laws
for their government, to be administered by themselves to its mem
bers, and require for the general benefit the surrender of no right that
an individual may not waive. And he is bound by that authority
and law only so long as he chooses to recognize that authority. Any
other rule would impair the usefulness of such institutions and render
the duly constituted tribunals of such order practically useless. If
the constitution and by-laws be considered under the general issue,
the several requested affirmative instructions for defendant should
have been given.
The judgment was therefore reversed and the case remanded.

LABOR ORGANIZAT10N B

Labor O rganizations— S trik es— M on opolies— In te r fe r e n c e
w ith In te r s ta te Commerce— Coronado Coal Co. v. United Mine

Workers of America, United States Supreme Court ( May 25, 1925), 45
Supreme Court Reporter, page 551, 268 U. S. 295.— This case was
before the court in a protracted series of actions involving the labor
conflict between the parties named. There was an action for dam
ages brought under the Federal antitrust act, charging conspiracy to
restrain and prevent the company’s interstate trade in coal. There
was in reality a group of plaintiffs operating mines in Sebastian County,
Ark. In the course of the effort of the union to secure unionization,
valuable mining properties of the plaintiff were destroyed in 1914.
Earlier proceedings were reported under Dowd v. United Mine Work
ers of America (235 Fed. 1, 148 C. C. A. 495; see Bui. No. 224, p.
168); United Mine Workers of America v. Coronado Coal Co. (258
Fed. 829, 169 C. C. A. 549; see Bui. No. 290, p. 192); same case (259
U. S. 344, 42 Sup. Ct. 570; see Bui. No. 344, p. 157); Finley v. United
Mine Workers of America (300 Fed. 972; see Bui. 391, p. 263).

In the latest case, Finley, receiver for the Coronado Coal Co., was
denied recovery under the antitrust act on the ground that there
was not sufficient evidence of a direct purpose to interfere with or
monopolize interstate commerce, the alleged conspiracy being “ for
the purpose of unionizing the mines and of preventing Mr. Bache
from working his mines nonunion.” A verdict was therefore directed
for the defendants and affirmed by the circuit court of appeals. The
case came before the Supreme Court on a writ of error from this
decision.
Mr. Chief Justice Taft, speaking for the court, having stated
briefly the facts, said:
In our previous opinion we held that the International Union
known as the International Mine. Workers of America, the union
known as United Mine Workers, District No. 21, and the subordinate
local unions which were made defendants, were, though unincorpo
rated associations, subject to suit under the antitrust act, but that
there was not sufficient evidence to go to the jury to show participa
tion by the International Union in the conspiracy and the wrongs
done. We found evidence tending to show that District No. 21 and
other defendants were engaged in the conspiracy and the destruction
of the property, but not enough to show an intentional restraint of
interstate trade and a violation of the antitrust act. The plaintiffs
contend that they have now supplied the links lacking at the first
trial against each of the principal defendants.
Details were then given as to methods of attack and defense, the
purchase of guns and ammunition, the battle between the parties,
after which “ two of the employees of the mine, after capture, were
deliberately murdered/7 and the use of gunfire, bullets, dynamite,
and the torch to destroy the property of various of the plaintiffs.

DECISIONS OF THE COURTS.

An essential question was as to the inclusion of the International
Union as participant in the strike with the district and local unions.
After considering the provisions of the constitution of the union with
regard to the authorization of strikes and the acts of the interna
tional board and officials, the Chief Justice concluded: “ We thought
at the first hearing and we think now that none of this evidence
tends to establish the participation of the International in the Prairie
Creek strike and disturbances.”
As to the question of purpose to restrain interstate commerce,
evidence was examined tending to show a basis for such a claim.
One of the union officials was reported to have said that the nonunion
coal must be kept off the market, “ because if Bache coal, scab dug
coal, got into the market it would only be a matter of time until
every union operator in that country would have to close down his
mine, or scab it, because the union operators could not meet Bache
competition.” District union officials were shown to have received
large numbers of guns and to have guaranteed the miners’ pay “ for
every day you are in this trouble.” In the course of this evidence
it was further brought out that the International was not to be
involved because*“ we have West Virginia and Colorado on our hands,
and we can not bear any more fights.”
The Chief Justice had reviewed ceitain positions taken at the
earlier hearing before the Supreme Court as to the situation of
unincorporated associations. It was found that the evidence was “ so
clear that it does not need further discussion” to the effect that the
district officials and agents, with subordinate local unions, organized
and carried through the attacks and activities complained of. The
only remaining question was as to whether they “ were intentionally
directed towaid a restraint of interstate commerce.” On the first
trial, this was held not to be shown; but since that time evidence
had been introduced indicating the necessity of barring nonunion
mined coal from inteistate commerce if the union mines were to be kept
in operation and union conditions maintained. There was also found
to be a discrepancy between the previous understanding as to the
output of the mines and the existing facts. Thus it was said in the
earlier case that merely to eliminate a product of 5,000 tons a week
from interstate commerce would be insignificant as affecting the total
tonnage of the country or State. It now appeared that the potential
output was 5,000 tons a day. While this difference would not in and
of itself affect the conclusion then reached, a different significance
is given the situation, “ in view of the direct testimony as to the
moving purpose of District No. 21 to restrain and prevent plaintiffs’
competition.” The amount capable of being mined would become
“ relevant evidence for the jury to consider and weigh as a circum
stance with the rest of the new testimony in proof of intent of the

LABOR ORGANIZATIONS

leaders of District No. 21 to prevent shipments to neighboring States
of such an amount of nonunion coal at nonunion cost.” Continuing,
the opinion concludes:
The mere reduction in the supply of an article to be shipped in
interstate commerce by the illegal or tortious prevention of its
manufacture or production is ordinarily an indirect and remote
obstruction to that commerce. But when the intent of those
unlawfully preventing the manufacture or production is shown to be
to restrain or control the supply entering and moving in interstate
commerce, or the price of it in interstate markets, their action is a
direct violation of the antitrust act. We think there was substan
tial evidence at the second trial in this case tending to show that
the purpose of the destruction of the mines was to stop the produc
tion of nonunion coal and prevent its shipment to markets of other
States than Arkansas, where it would by competition tend to reduce
the price of the commodity and affect injuriously the maintenance of
wages for union labor in competing mines, and that the direction of
the district judge to return a verdict for the defendents other than
the International Union was erroneous.
The judgment of the loiter courts in favor of the International
Union was therefore affirmed, but that in favor of District No. 21
and the other local unions and individual defendants was reversed*
and the cause remanded for a new trial.

L abor

O rganizations — Strikes — P icketing — I njunction —

“ C lean H a n d s ” — Forstmann & Huffman Co. v. United Front
Committee oj Textile Workers, Court of Chancery of New Jersey (May
12, 1926), 183 Atlantic Reporter, page 202 .— The complaint in the
above case arose out of conditions attendant upon the strike begin
ning in January, 1926, among the textile workers of Passaic, N. J.,
and vicinity. The company named employed about 3,000 hands,
and claimed that no strike existed among its workers. On the basis
of a sworn statement to this effect, “ and further proof of illegal
interference with such employees by those of the other mills who had
gone on strike, a most drastic and sweeping ad interim restraint was
imposed upon the strikers, and they were ordered to show cause
why a preliminary injunction should not issue.”
Vice Chancellor Bentley, who delivered the opinion of the court,
found that by far the greater number of the complainant's employees
were on strike, that no acts of violence or intimidation had been
proved to have been committed by the strikers, and that picketing had
been carried on by as many as 2,000 persons at one time. Quoting
at some length from the opinion of Mr. Chief Justice Taft in his deci
sion in the American Steel Foundries case (257 U. S. 184, 42 Sup.
Ct. 72; see Bui. No. 309, p. 181), the court announced the conclu
sion that “ picketing in itself, for all its militant name, may be legal

DECISIONS OF THE COURTS

or illegal m a dispute between employer and employee, according to
the manner in whieh it is carried on.” No question exists as to
the right of workmen to associate for bettering their living or work
ing conditions, or as to the right to strike as an inducement to
secure from the employer the desired concessions. Workmen unable
to picket in a labor market such as existed in the locality would be
reduced to a futile and absurd condition.
Under these circumstances, and so long as they do not resort to
interdicted conduct, every dictate of reason and fair play requires
that they be given an opportunity to lawfully discuss their griev
ance, or supposed grievance, with either their fellow employees or
others who offer themselves to take their places, unless, indeed,
labor is to be returned to that state of bondage that succeeded legal
serfdom in England.
However, the mass picketing indulged in xould not be permitted
to continue, so that while “ there should be a material modification
of the terms of the restraining order,” an injunction would neverthe
less be allowed to limit picketing in accordance with the theory of
persuasion and imparting information, but without intimidation,
even by mere numbers.
The injunction was opposed by the defendants on the theory of an
adequate remedy at law, but—
It can not be said that an irresponsible committee not even affili
ated with any regular labor organization and a horde of employees
attempting to support families on wages of $15 or $20 a week could
possibly respond to a judgment in an action at law.

The defendants also set out that the complainants had not “ come
into court with clean hands,” in that they had themselves formed an
association virtually establishing an employment system embodying
a blacklist for workers for any reason objectionable to any member
of the employers’ association. It was also charged that this associ
ation had sent out spies among the employees, to bring back confi
dential reports about various individuals. The court was unable to
see in this anything that offended the maxim of equity referred to.
Certainly the employers have exactly the same right to organize
and protect their interests that the law affords to the employees.
In the minds of the defendants this appears to have been aggravated
by the fact that the complainant had organized among its employees
a sort of governing and welfare body, at the same time retaining in
its hands control of the affairs thereof, and that this was done for the
mrpose of forestalling any combination or affiliation with organized
abor upon the part of the employees. I do not understand that it
is illegal or in any other way offensive for an employer of labor to
attempt to operate a shop with workmen who are not members of a
trade union, and any such action upoi* the part of this complainant
can have no bearing upon a determination of its right to be free

LABOR ORGANIZATIONS

from illegal actions upon the part of its employees who have refused
to continue at their work.
I will advise an order in accordance with the views herein above
set forth, but will require that notice thereof be given.

L abor O rganizations — V iolation of I njunction — L iability
I njuries — R eceiver — S ervice — W rit of Prohibition — Dis

for

trict No. 219 United Mine Workers of America, v. Bourland, Chancellor,
Supreme Court of Arkansas (November 9, 1925), 277 Southwestern
Reporter, page 546.— A temporary restraining order was granted
enjoining certain named individuals and all other members of Dis
trict No. 21, United Mine Workers of America, from destroying or
going upon any of the property and from interfering in any manner
with the agents of the Greenwood Coal Co., Mammoth Vein Colliery
Co., and the Backbone Coal Co. On August 31,1925, an amend
ment to the complaint was filed by the coal companies, alleging that
the restraining order had been violated by the defendants who had
destroyed property in the value of several thousand dollars, and
praying that the court appoint a receiver to take charge of all the
district funds on hand or in banks, and any dues thereafter collected
by or for it. The companies also prayed that upon final hearing
judgment for damages be given in certain amounts as claimed by
them individually, and that the sums in the hands of the receiver be
applied in payment of the judgment and cost of the action. A
receiver was appointed by the chancellor and directed to take charge
of the funds as prayed for, and hold them until further orders of the
court, and also to take charge of the property belonging to the dis
trict and the locals, and to preserve same until further orders of the*
court. The defendants filed a motion in the chancery court to vacate
and set aside the order of the chancellor, but this was overruled
An application for writ of prohibition was filed and the chancellor
given due notice thereof. The court, in granting the writ and order
ing the receivership vacated, said in part:

The case not being here on appeal, but upon prohibition, our con
sideration must be confined to the question of the power of the
chancery court to appoint a receiver in a case of this sort.
The writ of prohibition is an appropriate remedy to restrain the
exercise of jurisdiction by an inferior court over a subject matter
when it has none, and over parties where it can acquire none.
It is a principle of elementary law that the pendency of a suit is
an absolute prerequisite to the appointment of a receiver, and unless
made in a suit pending the court is without jurisdiction, and the
order appointing the receiver is void.
A court of equity may appoint a receiver before service of summons
upon the defendant and without notice to him. (Excelsior White

DECISIONS OF THE COURTS

Lime Co. v. Rieff, 107 Ark. 554, 155 S. W . 921.) This is dqne on
the same principle that an injunction will sometimes be issued before
actual service and before actual notice of the application is given.
In such case it must appear that the relief and protection can be
given in no other way. Since equity acts on the person, and since
the appointment of a receiver is an equitable proceeding, and since
equity does not act directly against the property, the court cannot
appoint a receiver where there can be no legal service of summons
against the defendant.
In the case at bar an attempt was made to sue District No. 21,
United Mine Workers of America, and the locals which are unincororated associations by their society or company names. This court
as held, however, that an unincorporated or voluntary association
of persons has no legal entity, and cannot be sued by its society
name. (Baskins v. United Mine Workers of America, 150 Ark. 398,
234 S. W. 464.) We are asked to overrule the case last cited under
the authority of United Mine Workers of America v. Coronado Coal
Co. (259 U. S. 344, 42 Sup. Ct. 570; see Bui. No. 344, p. 157).
There is no Federal question involved in the matter and conse
quently no reason why we should overrule our own opinion, except
that it is wrong.
An attempt was also made to obtain service on the defendant
under section 1098 of Crawford & Moses Digest. That section pro
vides that where the question is one of common or general interest
of many persons, or where the parties are numerous and it is
impracticable to bring them all before the court within a reasonable
time, one or more may sue or defend for the benefit of all. It will
be remembered that this suit originated as an equity proceeding, and
it may be here stated that the section of the statute just referred to
is, so far as equity is concerned, an adoption by the legislature of
the doctrine of virtual representation, which was in accordance with
the existing practice of courts of equity at the time of the adoption
of our Constitution.
This suit was brought in equity by certain coal operators to
recover unliquidated damages for personal injuries to their property.
Equity will not by an original action take jurisdiction of a case
involving a question of unliquidated damages arising from a tort.
It follows as a consequence that no service was had or could be
had upon the members of District No. 21, United Mine Workers of
America, and the local union, and the appointment of a receiver in
an action against them was a nullity.

The writ of prohibition asked for was granted, and the receivership
ordered by the chancellor vacated.

L icensing B u sin e ss — R estaurant K eeper — R evocation of
L icense W ithout H earing — C ity O rdinance — D ue P rocess
of L a w — Angelopoulos v. BottorjJ, City Manager, District Court oj

Appeal oj California (February 24> 1926), 245 Pacific Reporter, page
447.— John Angelopoulos sought an injunction against H. C. Bottorff,
as city manager, and others to enjoin them from enforcing ordinance

LICENSING

No. 18 against him as a keeper of a restaurant in the city of Sacra
mento, Calif.
The ordinance complained of gave the city council wide powers in the
matter of issuing and canceling licenses in the city of Sacramento, and
provided among other things for the cancellation of licenses without
notice to the licensee upon evidence satisfactory to it that any of the
provisions of the ordinance had been violated. It was complained
by the plaintiff that the ordinance was in violation of the constitution
of California, article 1, sections 1 and 13, and the fourteenth amend
ment to the Constitution of the United States.
Defendants demurred to the plaintiff’s complaint. The demurrer
was sustained and the plaintiff appealed.
The court in the course of its opinion pointed out the difference
between the right to do business and a privilege to engage in certain
occupations which might be inimical to the public welfare. It held
that to engage in the restaurant business was a fundamental right of
the plaintiff and that he was surrounded with certain constitutional
safeguards such as notice and the right to be heard in his own defense,
which rights the city council had no powder to deprive him of.
In concluding its opinion the court, speaking through Judge
Plummer, said in part:
The violation of law alleged in this case does not appear to have
been in connection with the business licensed, but, whether such be
or be not the case, the fact that the revocation was had without
notice or hearing renders the purported order of cancellation void,
and, as that is the only question necessary to be decided in this case,
we limit our ruling to the failure to give notice and afford an oppor
tunity for a hearing.
The judgment of the lower court sustaining defendant’s demurrer
was reversed with directions to overrule the demurrer and permit
defendant to answer the plaintiff’s complaint, and it was so ordered.

L icensing O ccupations — A rchitect— T axation — C ontracts —

Wolpa et al. v. HamMy, Court of Appeals of Ohio {July 9 , 1923), 158
Northeastern Reporter, page 185.— Action was brought by George
Hambly against Louis Wolpa and another in the municipal court of
Cincinnati to recover the value of his services as an architect. The
suit was contested by the defendants on the ground that the defend
ant had not at the time he entered into the contract paid an occupa
tional tax in compliance with city ordinance No. 347. From a
directed verdict for the defendants the plaintiff appealed. The court
of common pleas reversed the judgment of the municipal court, and
the defendants brought error. The main question for the court was
whether or not the tax in question was an excise or a license tax. If

DECISIONS OP THE COURTS

an excise tax for the purpose of raising revenue, the contract in ques
tion would not be void, but if it was a license tax granted by com
petent authority to do an act which without such authority would
be illegal then such contract would be void.
The court, after reviewing the purposes for which the ordinance
above referred to was passed, and examining several authorities on
the question of taxation and contracts, reached the conclusion that
the ordinance could not be classed with ordinances that have for
their purpose the benefit and protection of the public.
In concluding, the court said:
We therefore hold that the tax under consideration was a valid
excise tax for revenue only, and the failure to pay it did not invali
date a contract for services entered into between the parties herein.
The judgment of the court of common pleas reversing the judg
ment of the municipal court was therefore affirmed.

L icensing O ccupations — E lectrical C ontractors— C onstitu
Statute — Berry et al. v. City of Chicago et al., Supreme

tionality of

Court of Illinois (April 23,1926), 151 Northeastern Reporter, page 581.—
The Legislature of Illinois at its 1925 session reenacted section 1 of
article 5 of the cities and villages act with a new clause providing
for the registration of electrical contractors, which it defined to
be any person or firm engaged in the business of installing by con
tract electrical equipment for the utilization of electricity supplied
for light, heat, or power, but exempted from the provisions of the
act public utility companies firms of which one member or a representa
tive thereof had had two years’ practical experience in installing
and altering such electrical equipment, and persons bearing the rela
tion of employee to the person for whom the work was to be done.
At the same session of the legislature an act was passed purporting
to give to cities and villages the power to regulate the installation,
alteration, and use of all electrical equipment within its limits and
to provide for the establishment of an inspection commission to see
that the terms of the law were carried out.
The city council of Chicago passed two ordinances in strict com
pliance with the terms of the acts.
Suit was brought by F. S. Berry and others against the city of
Chicago and certain of its officers to enjoin them from enforcing the
ordinances, on the ground that they and the statutes under which
they were passed were unconstitutional, in that the legislature had
undertaken to invoke the police power arbitrarily without reference
to the object sought— namely, the protection of the public generally
against the results of defective electrical work and incompetent
workmanship. From a decree dismissing the bill, plaintiffs appealed.

m e c h a n ic ’s l ie n s

The court held that in view of the plenary powers of the legislature,
in the absence of constitutional restrictions, to enact laws and its
power to confer upon subordinate agencies all the power it possesses
for carrying out such laws, the question for consideration in the
instant case was whether the legislature had the authority to confer
upon the city council the power to pass the ordinances complained of.
In the course of its opinion the court cited a number of cases in
which the question of the constitutionality of similar legislation had
been considered, and. quoted with approval from the decision in the
case of Jones v. Chicago, R. I. & P. Ry. Co. (83 N. E. 215, 231 111.
302) as follows:
When a law is made applicable to one clivss of individuals, there
must be some actual, substantial difference between the individual
so classified and other individuals in the State or community, when
considered with reference to the purpose of the legislation.
It also quoted from the decision in the case of Bagdonas v. Liberty
Land Co. (140 N. E. 49, 309 111. 103);
There must be a sound basis in reason and principle for regarding
the class of individuals as a distinct and separate class. A class
can not be created by arbitrary declaration of the law-making power
and endowed with special legislative favors.
Judge Heard, speaking for the court, then said in part :
The legislative purpose for the exercise of the power of regulation
of the installation and alteration of electrical epuipment is to protect
the public from injury to persons from exposed wires and to prop
erty from resultant fires from defective electrical workmanship and
construction.
After referring to the classes exempted he continued:
A good reason can be seen why they might be separately classified
with reference to equipment to be installed for them in their oper
ation as public utilities or common carriers, but that reason does not
obtain where they seek to enter into the field of contracting for the
installation and alteration of electrical equipment for others.
The act of 1925, in relation to the regulation or installation of
electrical equipment, contains the same classifications with reference
to public utilities and common carriers and employees of the person
for whom the work is done. When the two acts of the legislature
are tested by the rules laid down by the authorities above cited, we
must hold that they are unconstitutional and invalid.
The decree of the circuit court was therefore reversed.
M e c h a n ic ’s
L ie n s — C h a t t e l
M o r t g a g e — R a n k — Hockaday
Auto Supply Co. v. Htiff ( Valley Securities Co., Intervener), Supreme
Court oj Kansas (May 8, 1926), 245 Pacijic Reporter, page 1018.—
The Valley Securities Co., referred to herein as intervener, owned by

DECISIONS OF THE COURTS

assignment a chattel mortgage for the purchase price of an automo
bile. The mortgage had been executed by F. J. Huff and duly filed
and recorded. By its terms the mortgagor was allowed to possess and
use the automobile. Some time later Huff took the car to the Hockaday Auto Supply Co. and contracted with it for certain repairs
and renewals at an agreed price of $80. The bill for the work done
and materials furnished was not paid, and the plaintiff filed a lien for
labor and materials against the car. The intervener claimed that the
chattel mortgage, being first in time, should be regarded as superior
to that of the mechanic for labor and material. From judgment
for the plantiff the intervener appealed on the ground that Revised
Statutes 58-201, under which the mechanic’s lien was filed, was not
enacted by the legislature, but was the creation of the revision com
mission, and that the judgment of the court would deprive it of its
property without due process of law.
In disposing of the case the supreme court said in part:
While the commission reported the revision to the legislature it was
in fact constitutionally enacted by that body, and is as much the
law of the State as if it had been initiated by the legislature without
the report of the commission. Prior to 1913 liens of mechanics or
artisans were not given priority over other liens, but in that year the
legislature passed a statute providing that certain mechanics should
have a first and prior lien upon vehicles, including automobiles,
which came into their possession to have work done or repairs or
improvements made thereon. (Laws 1913, ch. 218; Gen. Stat. 1915,
sec. 6092.) The priority thus provided has been in force since that
time.
The court cited several cases wherein the decisions of the courts
had upheld the principles of the statute now attacked, and quoted
from the opinion of Justice Brewer in the case of Case v. Allen (21
Kans. 217, 30 Am. Rep. 425) as follows:
The principle seems to be that where the mortgagee does not take
the possession, but leaves it with the mortgagor, he thereby assents
to the creation of a statutory lien for any expenditure reasonably
necessary for the preservation or ordinary repair of the thing mort
gaged. Such indebtedness really inures to his benefit. * * * The
work or material enhances or continues the value of that upon which
the work is done or to which the material is furnished; and the mort
gagee can always protect himself against such liens, or, at least, any
accumulation of debt thereon, by taking possession of the chattel
mortgaged.
Other cases were cited in which the principles of t h a c a s e were
followed and approved. The opinion continued:

We see no reason to depart from a rule established about 50 years
ago and which has been consistently followed since that time. By
intrusting the possession of the car to the mortgagor the mortgagee
in a sense made him its agent to keep it in a going condition for the

PUBLIC CONTROL OF BUSINESS

benefit, not only of the mortgagor, but also for the benefit of the
mortgagee and in that way preserve the value of its security.
Following these decisions it must be held that the statute giving
a lien for labor and material on the automobile and making it supe
rior to that of a prior mortgage does not violate the constitutional
provision mentioned, and therefore the judgment of the district
court will be affirmed.

P u b l ic

C ontrol

B u s in e s s — S a l e

O il

and

G a s o l in e

Mutual Oil Co. v. Zehrung
et al., United States District Court, Nebraska (April 7, 1925), 11 Fed
eral Reporter (2d), page 887.— An ordinance was adopted by the city
of Lincoln, Nebr., in pursuance to an amendment to the city charter,
creating a department to sell oil and gasoline to the inhabitants of
the city, and a fund was provided with which to carry on the business.
The gasoline and oil were to be sold at cost plus handling and some
contingencies. The plaintiff, who was engaged in the business of
selling gasoline and oil in Lincoln, filed a bill praying for an injunc
tion permanently to restrain the officers of the city from carrying
out the terms of the ordinance, and alleged that such an ordinance
was in violation of the Constitution of the United States, of the
constitution of Nebraska, and also of the provisions of the city char
ter. The defendants moved to dismiss the bill, the motion being
overruled.
The court first took up the claim that the establishment of the
municipal plant deprived the plaintiff of property without due process
of law, in violation of the fourteenth amendment to the Constitution;
but the hazard of loss by competition was said to be one that existed
when the business was entered upon, so that there was no deprivation
of property in any legal sense, neither will implications against pub
lic rights be indulged in; citing Helena Water Works Co. v. Helena
(195 U. S. 383, 25 Sup. Ct. 40), and other cases.
More strongly urged was the claim that there was here a use of
public money for private purposes. Courts differ as to the point.
C it y — C o n s t it u t io n a l it y o f O r d in a n c e —

Some have condemned the operation of enterprises such as movingpieture exhibitions, the manufacture and sale of ice, the sale of coal
and wood, and the sale of goods in ordinary mercantile estab
lishments.
(State v. Lynch, 88 Ohio St. 71, 102 N. E. 670;
Opinion of the Justices, 155 Mass. 598, 30 N. E. 1142; In re
Municipal Fuel Plants, 182 Mass. 605, 66 N. E. 25; State v. Orear,
277 Mo. 303, 210 S. W . 392; Union Ice & Coal Co. v. Town of Ruston, 135 La. 898, 66 So. 262.) Others of such courts have declared
it a proper public purpose for such municipal corporations to engage
in the sale of coal and wood, and to manufacture and sell ice, to the
inhabitants of the municipality. (Laughlin v. City of Portland, 111
Me. 486, 90 Atl. 318; Jones v. City of Portland, 113 Me. 123, 93 AtL
42335°— 27------ 8

100

DECISIONS OP THE COURTS

41; Central Lumber Co. v. City of Waseca, 152 Minn. 201, 188 N .
W . 275; Holton v. City of Camilla, 134 Ga. 560, 68 S. E. 472.)3
The Supreme Court of Nebraska, upon a consideration of this divi
sion of decisions, has held that a tax for the support of a municipal
fuel yard is for a public purpose, and that such a tax is not contrary
to any limitations of the taxing power. (Consumers’ Coal Co. v.
City of Lincoln, 109 Nebr. 51, 189 N.#W . 643.) The validity of the
Maine statute, authorizing the operation of a municipal yard for the
sale of wood, coal, and other fuel without financial profit, was sus
tained by the Supreme Court of the United States against the claim
that such a use of the public money was not for a public purpose,
and was a violation of the fourteenth amendment. (Jones v. City of
Portland, 245 U. S. 217, 224, 225, 38 Sup. Ct. 112.)
Other cases were cited, including that of Green v. Frazier (253 U. S.
233, 40 Sup. Ct. 499), in which the court sustained the validity of
acts of the Legislature of North Dakota providing for the establish
ment of a system of warehouses, elevators, flour mills, factories, etc.
Comparing the purposes and effects of these acts with those of tho
ordinance under consideration, the court found itself “ unable to
declare” the latter unconstitutional.

R a ilr o a d

C o m p a n ie s — S t r i k e

C au se

o f

D e la y

T ra n s

Bitchie v. Oregon Short Line iZ. Co., Supreme
Court of Idaho (February
1926), 21jJ+ Pacific Exporter, page 5 SO.—
Ben T . Ritchie sued the Oregon Short Line Railroad Co. to recover
damages for losses which he alleged were due to delay and negligence
in handling a shipment of eight carloads of sheep from Adrian, Oreg.,
to Idaho Falls, Idaho. It appeared that the train carrying the sheep
arrived in Pocatello, Idaho, 24 hours after loading, but could pro
ceed no further on account of a sudden strike of some 100 switchmen
in the employ of the company.
At the close of the trial the company moved for a directed ver
dict on the grounds of insufficient evidence to establish negligence
on its part, etc. The motion was denied and the jury returned, a
verdict in favor of the plaintiff. From judgment on the verdict the
defendant appealed. Numerous errors were assigned, but the ques
tion primarily of interest here was whether under the circumstances
and the facts as affected by the strike the defendant could be held
liable for the loss complained of. The court examined a number of
authorities on the question of the liability of carriers in circumstances
similar to those in the instant case. The principle applied in Indian
apolis & St. Louis R. R. Co. v. Juntgen (10 111. App. 295), was held
applicable here. From this case the court quoted as follows:
p o r ta tio n — L ia b ility —

3The court included in this list Baker v. City of Grand Rapids (146 Mich. 687,106 N. W. 208), but the
court in that case decided against the power of the city to operate municipal fuel plants as an improper
use of public money, but denied the petitioner the right to an injunction restraining the operation of the
plant, as he had not come into the court with clean hands, and furthermore, the operation had ceased.—
Editor.

RAILROAD COMPANIES

101

In tills respect the common carrier stands on the same ground as
other bailees, and may excuse delay in the delivery of goods, by
accident or misfortune, although not inevitable, or produced by the
act of God. All that can be required of him in such an emergency
is that he shall exercise due care and diligence to guard against
delay, and that, if it occur without his fault or negligence, he shall
omit no reasonable effort to secure the safety of the goods.
Another case which was held to be in point was that of Panhandle
& S. F. Ry. Co. v. Thompson (Tex. Civ. App., 235 S. W . 913) in
which it was held that—
Where the employees suddenly abandon a carrier’s service, and,
while offering no violence and causing no forcible obstruction to its
business, simply refuse to work or further discharge their duties, for
any delay in shipment of cattle consequent thereon the carrier is liable
if it fails to use reasonable diligence in supplying the places of the strik
ing employees, and that the question of whether the carrier has used
reasonable diligence is a question of fact for the jury.
In other cases, a strike of violence was held to be an excuse.
Judge Givens, speaking of the instant case, then said in part:
The question of whether it was a passive strike or a strike of vio
lence would have a bearing upon the diligence to be exercised by the
carrier, but would make no difference in principle. In other words,
it could not be said as a matter of law that a passive strike was no
excuse while a strike of violence would be an excuse. If there were
physical interruptions in the transportation of the freight, due to
wrecks or any other physical causes, not amounting to an act of God
or superinduced by acts of the public enemy, whereby delay ensued,
it would be a question of fact as to whether there was negligence,
hence an unreasonable delay; or whether there was no negligence,
and hence not an unreasonable delay. Practically all the authorities
hold that a strike of violence is a valid excuse for a delayed shipment,
and their justification in so holding must be that the diligence shown
to have been exercised by the carrier in the face of such violence was
reasonable; if then in a passive strike the carrier, without fault on its
part, and after the exercise of every reasonable effort to secure others
to take the place of the strikers, is unable to secure men, there is no
difference in principle.
The defendant was liable, if there was a strike, and due diligence
had not been exercised by the carrier to overcome the strike; but,
if it had exercised such due diligence, the delay would not have been
unreasonable. In other words, the court improperly said that, if the
unreasonable delay was occasioned by the strike, the defendant was
liable. Delay may be excused and therefore not amount to an
unreasonable delay, because of acts which do not reach to the dignity
of or fall within any of the classes enumerated in instruction No. 17.
The instruction noted advised the jury that the delay was unrea
sonable unless caused by an act of God, public enemy, authority of
law, or inherent tendency of the sheep themselves.
The judgment was ordered reversed and the cause remanded to
the lower court with instructions to grant a new trial. Costs allowed
to appellant.

102

DECISIONS OF THE COURTS

R a il r o a d s — E q u ip m e n t — S t a t e

and

F ederal

R e g u l a t io n s —

Napier v. Atlantic Coast Line R. Co., Supreme Court oj the United
States (November 29, 1926), 47 Supreme Court Reporter, page 207.—
The opinion in this case disposed of three actions to determine the
validity of State regulations affecting the equipment of locomotive
engines used on highways of interstate commerce. The titling case
was a suit by the attorney general of Georgia against the company
named which had procured an injunction against the enforcement of
a statute (acts of 1924, p. 173) prescribing the installation of auto
matic doors to the fire boxes of certain locomotives. (2 Fed. (2d)
891.) The other cases were from Wisconsin, where the supreme court
had upheld an act of 1923 (ch. 139) prescribing cab curtains to be
installed on locomotives as a protection to the engineer and fireman
(188 Wis. 232, 205 N. W . 932).
The main question was as to the construction of the Federal statute
known as the boiler inspection act— i. e., whether it “ has occupied
the field of regulating locomotive equipment used on a highway of
interstate commerce, so as to preclude State legislation.”
All parties conceded the power of Congress so to act in regard to
safety as to prevent State interference; also that the Federal safety
appliance and boiler inspection acts apply to locomotives used on a
highway of interstate commerce even if engaged only in intrastate
service. Mr. Justice Brandeis, speaking for the court, recounted
prior enactments as to equipment, relating to power brakes, auto
matic couplers, grab irons, drawbars, safety ash pans, and sill steps.
These specific requirements were held as obviously not covering the
field, since they are limited to the particular points named; the same
is true as to the original boiler inspection act, “ but the power dele
gated to the [interstate commerce] commission by the boiler inspec
tion act as amended is a general one. It extends to the design, the
construction, and the material of every part of the locomotive and
tender and of all appurtenances.” It was held that the requirements
prescribed by the State laws were “ within the scope of the authority
delegated to the commission.” The preservation of the health of
engineers and firemen, like preventing excessive fatigue through
limited hours of work, is a promotion of comfort and indirectly of
safety. Various orders had been issued by the commission in line
with its authority relating to sundry items of equipment, which its
power to inspect enables it to enforce. The claim that Congress
intended “ solely to prevent accidental injury” while the State regu
lations endeavor “ to prevent sickness and disease due to excessive
and unnecessary exposure/’ w^as held inadequate.
The Federal and the State statutes are directed to the same sub
ject— the equipment of locomotives. They operate upon the same
object. It is suggested that the power delegated to the commission

WAGES

103

has been exerted only in respect to minor changes or additions. But
this, if true, is not of legal significance. It is also urged that, even
if the commission has power to prescribe an automatic fire box door
and a cab curtain, it has not done so; and that it has made no other
requirement inconsistent with, the State legislation. This, also, if
true, is without legal significance. The fact that the commission has
not seen fit to exercise its authority to the full extent conferred has
no bearing upon the construction of the act delegating the power.
We hold that State legislation is precluded, because the boiler inspec
tion act, as we construe it, was intended to occupy the field. The
broad scope of the authority conferred upon the commission leads to
that conclusion. Because the standard set by the commission must
prevail, requirements by the States are precluded, however commend
able or however different their purpose.
If the requirements now existing are deemed inadequate, the com
mission has ample power to afford relief, and to it recourse must be
had. The decree of the district court forbidding enforcement of the
Georgia law was affirmed and the judgment of the Supreme Court of
Wisconsin sustaining the law of that State was reversed.

W a g e s — A s s i g n m e n t — C o n t r a c t o r ’ s B o n d — Hartford Accident
& Indemnity Co. v. Board of Education, United States Circuit Court of
Appeals (October 19, 1926), 15 Federal Reporter {2d), page 817.—
Suit was instituted by the board of education in the district of
Beaver Pond, Mercer County, W . Va., as assignee of the claims of
certain laborers and material men, to recover on a contractor’s bond
executed by the Hartford Accident & Indemnity Co. as surety to
guarantee the performance of a contract between the plaintiff and
the Harrison Construction Co., by the terms of which the latter
agieed to erect a school building. The defendant challenged the
plaintiff’s right to recovery on the ground that the bond did not
guarantee the payment of claims of laborers and material men, but
merely indemnified the plaintiff against any loss which it might sus
tain from breach of contract on the part of the contractor, and that
the plaintiff had sustained no loss; that with respect to the claims
sued on, the plaintiff was in no better position than the laborers and
material men who assigned their claims; and that, as these could
not have recovered on the bond, the plaintiff could not recover on it.
From judgment for the plaintiff the defendant brought error.
The contract in question, among other things, provided that the
contractor should provide and pay for all labor and materials neces
sary for the execution of the work and that it should furnish a guar
anty company’s bond to “guarantee the faithful performance of the
contract and the payment of all subcontractors and labor and mate
rial bills.” The bond was required, not only by the terms of the
contract, but also by the statutes of West Virginia.

104

DECISIONS OF XKE COURTS

The court held that theie was no error and affirmed the judgment
of the trial court. The opinion was delivered by Judge Parker and
was in part as follows:
We quite agree with the proposition that the right of plaintiff to
recover on the claims sued on is no greater than that of the laborers
and material men whose claims were assigned; but we think that it
is clear that these laborers and material men would have been entitled
to recover if the action had been instituted by them prior to the
assignment. When the bond is read in connection with the contract,
which is expressly made a part of it, we have not a mere indemnity
agreement guaranteeing plaintiff against loss from breach of contract
on the part of the contractor, but a contract of suretyship, in which
defendant undertakes that the contractor will faithfully perform his
contract and will pay all subcontractors and labor and material bills.
The bond itself provides that it shall be construed as one of surety
ship ; and the contract (by reference made a part of the bond) pro
vides not only that the contractor shall provide and pay for all labor
and materials, but also that the bond to be furnished shall “ guarantee
the faithful performance of the contract and the payment of all
subcontractors, and labor and material bills.”
Under the law of West Virginia a public building is not subject to
liens created under the mechanic’s lien statute (Code W. Va., ch. 75,
sec. 2, et seq.). And section 12 of chapter 75 of the Code of West
Virginia * * * was manifest!}?- intended to require a bond for
the protection of those furnishing labor and materials on pubic build
ings, in lieu of the protection afforded by the lien statute in other
cases. The bond must be construed in the light of this statute, and
* * * there can be no doubt that the bond should be liberally
construed to effect the purpose of the statute. When the bond is so
construed, and the provisions of the contract are read into it, it is
clear that it guarantees the payment of the claims of laborers and
material men. To hold otherwise would deny all force and effect to
the provision of the contract incorporated in the bond, that it should
“ guarantee the faithful performance of the contract and the pay
ment of all subcontractors and labor and material bills,” would con
vict the plaintiff of violating the statute above quoted, and would
place the defendant in the absurd position of executing a bond in
violation of the terms of a contract and at the same time incorporat
ing the contract in the bond.

W a g e s — A s s i g n m e n t — F r a u d — P a r o l E v i d e n c e — Flood v. Em
pire Investment Co., Court of Appeals of Georgia (April 20, 1928),
133 Southeastern Reporter, page 60.— The Empire Investment Co.
sued H. T. Flood for damages for conversion of a certain sum of
money which it claimed by reason of an alleged assignment of salary.
It offered in evidence a writing dated May 1, 1924, purporting to
have been made by the defendant, by the terms of which he agreed
to sell and transfer to the plaintiff all of his salary ($105) for the
period from April 15 to May 1, 1924, already earned. The defendant,
in his plea, alleged that the paper was not in fact an assignment but

105

WAGES

was “ a false and fraudulent writing, couched in its present text and
language for the sole and express purpose of evading the usury stat
utes of this State and to obtain usury of this defendant” ; that on
the date of the instrument he had drawn his wages for the period
named and this the plaintiff knew. He also alleged that he obtained
no money from the plaintiff at the time the instrument was exe
cuted, but that he did, prior thereto, borrow $100 from it and had
paid usurious charges for the use of same to the amount of $160. Parol
evidence offered to prove these allegations was excluded by the
court.
There was a directed verdict for the company, and the defendant
brought certiorari, assigning error on the exclusion of certain evi
dence by the court, and on the direction of the verdict and judgment
thereon. The superior court overruled the certiorari and affirmed
the judgment of the lower court, and the defendant brought error
to the court of appeals.
The court, in reversing the judgment, said in part:
We have not set out the evidence and will not discuss it, because the
principal difference between counsel seems to be on whether, in view
of the stipulations of the writing, parol evidence was admissible to
establish the defendant’s claim of a usurious loan, and because the
case appears to have turned on this question both in the municipal
court and in the superior court, each of them seemingly having agreed
with counsel for the plaintiff that the answer to the question should
be in the negative.
It is a well-settled rule that, in the absence of fraud, accident, or
mistake, parol evidence is ordinarily inadmissible to vary the terms,
of a written contract. This, however, is not true where the contract
out of which the suit arises is tainted with usury, and that fact is
sought to be shown.
The defense in the present case was to impeach the bona fides of
the transaction and was meritorious, if the jury believed it. We
are not to be understood as holding that an assignment of salary
even to secure a usurious debt would not be valid as to the principal
That question is not involved. The contention here is that the
entire debt has been paid.
The superior court erred in not sustaining the certiorari.

W a g e s — A s s ig n m e n t

F uture

E a r n in g s — E f f e c t

J udg

Walker v. Rich, District Court of Appeal
of California (1926), 2^9 Pacific Reporter, page 56.— D. M . Walker
had secured a judgment against one D. B. Smith and his wife for
groceries furnished, the judgment being for the sum of $299.99. This
judgment was rendered on November 7, 1923, and on June 19, 1924,
an execution was issued, but returned unsatisfied.
Smith was employed from time to time by the county of Colusa
to work with his teams, wagons, and scrapers upon the county roads
m ent

— “ P u b l ic O f f ic e r ” —

106

DECISIONS OF THE COURTS

of said county, his earnings approximating $150 per month, payable
on or about the first day of the month. In accordance with the pro
visions of section 710 of the Code of Civil Procedure of the State,
Walker, on June 30, filed with John F. Rich, the auditor of the
county, a transcript of the judgment and demanded the issue of a
warrant for the sum of money then due Smith. The auditor refused,
whereupon proceedings were instituted to secure a writ of mandate
requiring the issue of such warrant to satisfy the judgment. The
Superior Court of Colusa County denied the application, whereupon
appeal was taken to the district court of appeal.
It appeared that on June 15, some two weeks prior to the applica
tion of Walker, Smith had assigned his claim to the amount of $135
for wages earned between June 2 and June 14, the assignment being
to a corporation which furnished “ the necessities of life” to the judg
ment debtor. Walker made similar efforts by filing transcripts of
judgment at different times, but in every instance it appeared that a
prior assignment had been made to this corporation. Such assign
ments were found to be within the terms of the statute authorizing
the assignment of wages for necessaries, the effect being the estab
lishment of a prior claim over the transcripts of the judgment later
presented. As expressed by the court, on the making of assignment
the earnings involved became the property of the College City Roch
dale Co. and were not within the control of the auditor for a different
application.
In at least two instances the assignments involved not only the
transfer of money already earned, but also future earnings. It was
contended that such attempt to transfer future earnings was invalid
because they were in contravention of established public policy as to
compensation payable “in the future to an officer of the Government
for services yet to be performed.” The court considered the point,
and reached the conclusion that a public officer is “ an individual
invested with some portion of the sovereign functions of the Govern
ment, to be exercised by him for the benefit of the public.” Smith
was found to be “merely engaged to perform labor upon the public
highway by the use of mechanical and other equipments,” without
discharging any duty as a public officer. This objection following,
the assignments must be held valid under the provisions of the Civil
Code as to the transfer of property. Though this could not be
extended to cover a case “ where an employment does not exist but
a party may be employed by another in the future, such situation
presents a case of a mere possibility not coupled with an interest,
and hence the element of negotiability is wanting, but where the
employment already exists, the wages yet to be earned from such
employment by the party employed, then, although we have a case

WAGES

107

of mere possibility, it is a possibility coupled with an interest, which
is assignable under our code and according to the authorities.”
The judgment of the court below sustaining the right of Smith to
execute the assignments based on an existing contract of employ
ment between him and the county, the assignment to pay for neces
saries of life to the parties furnishing them directly, was said to rest
“ upon an impregnable foundation,” and was accordingly affirmed.

W a g e s— C o n tr a c t o f E m p lo y m e n t— E m p l o y e e A b se n t on Own

Lumber Go. v. Hall, Supreme Court of Arkansas
( March 8, 1926), 280 Southwestern Reporter, page 662.— W . L. Hall
was employed by the defendant as log inspector and log buyer on
February 10, 1919, at a salary of $2,100 per year. In January, 1923,
he told the president of the company that he wished to put some
timber of his own on the market and was told by the president to go
ahead under his present contract, and the president made a trade
with the plaintiff to purchase his logs. Plaintiff began delivering the
logs in February, 1923, devoting part of his time to his own business
and working for the defendant when notified of anything he wanted
done. He was paid his salary up to and including July of that year.
He performed various services for the defendant at his request during
the months of August, September, and October, but did not receive
any pay, and when, on November 1, he called for his salary he was
told that his employment with the company had ceased on the first
da}^ of August. He brought suit to recover for three months’ salary
in the amount of $525, and recovered judgment. Defendant appealed
on the ground that the court erred in not instructing the jury that if
plaintiff absented himself from his place of employment to attend to
his own business he could not recover. Judge Hart delivered the
opinion of the court and said in part:
B u s i n e s s — Archer

The court did not err in refusing to give this instruction. It will
be noted that it does not take into account at all the testimony of
the plaintiff to the effect that during the period of time in question
he was to give a part of his time to his own business and was only
to perform services for the defendant when requested to do so.
The respective theories of the plaintiff and of the defendant were
submitted to the jury, and the evidence of the plaintiff was sufficient
to warrant the jury in returning a verdict in his favor. According
to his testimony, it was a part of the contract between himself and
the defendant that he should devote a part of his time to his own
business, and that he should only be required to perform services for
the defendant when requested to do so. He testified further that he
held himself in readiness during the three months in question to per
form his customary services for the defendant, and that he did what
ever work the defendant requested him to do.
There is no prejudicial error in the record.
The judgment was therefore affirmed.

108

DECISIONS OF THE COURTS

W a g e s — G a r n is h m e n t — E x e m p t io n s — P r o o f — S u b r o g a t io n —

Gulf, M. & N. R . Co. v. Sanders, Supreme Court of Mississippi (May
10, 1926), 108 Southern Reporter, page 184.— T. J. Sanders, an em
ployee of the company named, sued it for $133.86 due him for wages.
The defendant tendered $35.56, conceding that amount to be due,
and stated that the balance, $88.50 and costs, was garnisheed in its
hands to satisfy a judgment against the plaintiff, given by a justice
of the peace in favor of one H. E. Whitten, which it had satisfied and
paid.
The cause was submitted, to the circuit judge on an agreed state
ment of facts, and judgment thereon was rendered against the rail
road company for the full amount sued for, from which judgment an
appeal was prosecuted to the supreme court.
The plaintiff conceded that the judgment given by the justice of
the peace was valid, but contended that he was entitled to judgment
against the railroad company because it did not answer the writ of
garnishment in the statutory period, and that it should not therefore
be permit ted to set off the amount of such judgment against its pay
ment, and, even so, his being the head of a family would exempt his
wages from garnishment. The case as submitted did not indicate
that Sanders was the head of a family and entitled to exemptions as
such,
The court held that, although the defendant did not answer the
writ of garnishment in the time required by law, and had to satisfy
the plain tiff on that judgment date by virtue of the garnishment pro
ceedings, having satisfied Whitten’s demand by virtue of such pro
ceeding it was entitled to be subrogated to the rights of the judgment
creditor in that judgment.
Judge Ethridge, speaking of the plaintiff’s claim of exemption, said:
It was the duty of the plaintiff in the present case, if he was the
head of the family and entitled to the exemption, to have made that
claim in the court below and sustained it by appropriate proof. We
cannot here take cognizance of that fact, if it be a fact, but must ren
der judgment upon the record before us.
The judgment of the lower court was therefore reversed and judg
ment rendered here for the railroad company.

W a g e s — P a y m e n t — C o n s t it u t io n a l it y
D ebt—

S t a t u t e — I m p r is o n

Ex parte Oswald, District Court of Appeal, Califor
nia (February 1, 1926), 244 Pacific Reporter, page 940.— Section 6,
chapter 202, Statutes of 1919 of California, provides for the regu
lation of the payment of wages and makes it a misdemeanor for an
employer, having the ability to pay, willfully to refuse to pay an
employee wages that are due under circumstances which show an
intent to oppress and defraud. George H. Oswald was convicted
m en t

for

WAGES

109

under the terms of this statute and put in prison. He petitioned the
court of appeal for a writ of habeas corpus to secure his release. He
contended that the statute under which he was held was unconsti
tutional in that it violated the provisions of article 1, section 15, of
the constitution of California, which reads as follows:
No person shall be imprisoned for debt in any civil action on mesne
or final process, unless in eases of fraud, nor in civil actions for torts,
except in cases of willful injury to person or property; and no per
son shall be imprisoned for a militia fine in time of peace.
The court, in the course of its opinion, referred to chapter 683 of
the Statutes of 1911, which was held to be unconstitutional in that
it in effect permitted imprisonment on mesne process for debt. Then,
speaking of the statute in question, it said in part:
The statute of 1919 apparently is the result of a legislative effort
to substitute for the act of 1911 a law which would not result in
imprisonment for mere nonpayment of debt, but would only impose
that penalty where the employer or his agent, having the ability to
pay, willfully refuses payment with a certain wrongful intent, described
as follows:
“ With intent to secure for himself, his employer, or other person
any discount upon such indebtedness, or with intent to annoy, harass,
or oppress, or hinder, or delay, or defraud, the person to whom such
indebtedness is due. * * * ” (Section 6.)
The court held that in the instant case the imprisonment of the
petitioner for the misdemeanor described in the statute was not
imprisonment merely for his failure to pay a debt but for the willful
failure to do so, under circumstances which showed an intent to
oppress and otherwise defraud the employee.
The petitioner was remanded to custody.

W a g e s — P a y m e n t — S u it

A fter

S tatutory

D em and— A ttor

Nirschl v. Nirschl, Supreme Court of Oregon (October 19,
1926), 249 Pacific Reporter, page 1099.— Albert Nirschl brought an
action for the recovery of wages alleged to be due and owing him for
labor performed for the defendant, Andrew Nirschl, in the sum of
$410, and an attorney’s fee in the amount of $100. He recovered
judgment for the amounts claimed, together with costs of the suit,
and the defendant appealed. It was contended by the defendant
that the court erred in allowing any amount as attorney’s fee on the
ground that such recovery was barred by section 3 of chapter 163,
Laws of Oregon of 1907, as construed by the court in Olson v. Heisen
(90 Oreg. 176, 175 Pac. 859).
The court affirmed the judgment of the trial court, saving in part:
n e y ’s

F ees—

He [the defendant] ignores the fact that the portion of the statute
involved in that decision was later amended by our legislative assem
bly. (See Laws of Oregon 1919, ch. 54, codified as sec. 6799, Oregon

110

DECISIONS OF THE COURTS

Laws.) Among other things, that section provides for the allowance
of attorney’s fees in the prosecution of an action to recover wages for
labor, unless the employee has willfully violated his contract of
employment, and that, in case the employee voluntarily quits his
employment, he shall give not less than three days’ notice of his
intention to quit such employment. However, it is not claimed that
the plaintiff violated his contract of employment. Manifestly the
statute does not require the specified three days’ notice of intention
to quit the employment when the employee remains on the job until
its completion. The plaintiff was entitled to recover his attorney’s
fees in accordance with the findings of the court.

W ages — P aym ent in S crip— R edemption in C ash — C onstruc
op Statute — Holliday v. Elkhom-Piney Goal Mining Co., Supreme

tion

Court oj Appeals of West Virginia (April 21, 1926), 134 Southeastern
Reporter, page 736.— The Elkhorn-Piney Coal Mining Co. had in use a
system of credit consisting of brass scrip representing various denom
inations from one dollar down. The obverse side of the scrip bore
the following inscription, “ Passable in cash on pay days when due to
employee to whom issued,” and immediately thereunder, “ In mer
chandise only— nontransferable.” On the reverse side was the name
of the company. The scrip was issued to the employees at their
request. The company redeemed it at face value in merchandise
at its store or in cash on pay days when presented by any employee
to whom issued. There was no reasonable way of identifying any
specific piece or part of said scrip and it did not bear the name of
the employee to whom issued.
W . D. Holliday, in the course of his business as a merchant; became
possessed of certain of the aforesaid scrip in the amount of $299.50,
which he presented to the company on a regular pay day after same
became due and requested that the company redeem it in lawful
money of the United States of America. Upon the company’s refusal
to redeem the scrip, Holliday instituted an action before a justice of
the peace and obtained judgment for the amount represented. That
judgment was reversed by the circuit court of Raleigh County,
and the plaintiff brought a writ of error. Judge Wood delivered the
opinion of the supreme court, reversing the circuit court, saying
in part:
The “ scrip law” as it stood before the addition of two provisos by
the last legislature (Acts 1925, c. 87), forbade, under penalty of fine
and imprisonment, “ any corporation, company, firm or person, engaged
in any trade or business, either directly or indirectly, to issue, sell, give
oi deliver, to any person employed by such corporation, company, firm,
or person, in payment of wages due such laborer, or as advances for
labor not due, any scrip, token, draft, check, or other evidence of in
debtedness, payable or redeemable otherwise than in lawful money,”

111

WAGES

and provided that such “ scrip, token, draft, check, or other evidence
of indebtedness * * * shall be construed, taken, and held in all
courts and places, to be a promise to pay the sum specified therein in
lawful money by the corporation, company, firm, or person issuing,
selling, giving, or delivering the same to the person named therein, or
to the holder thereof.”
The defendant contended that under the proviso enacted by the
legislature in 1925 it was within its rights in refusing to honor its
scrip in the hands of another than an employee to whom it was issued.
The court, however, held it unnecessary to consider the provisos in
the present statute, since it came within the prohibition of the body
of the statute, providing that such scrip shall be construed, taken,
and held in all courts to be a promise to pay the sum specified
therein in lawful money to the person to whom issued, or to the
holder thereof.
The judgment of the circuit court was reversed, and judgment
rendered for the plaintiff, trial by jury having been waived, the facts
being agreed upon.
W ages— P referen ce— P receden ce

O ver

P r io r

L ie n s — C o n

Turner v. Randolph, Court of Appeals of
Kentucky (February 12, 1926), 280 Southwestern Reporter, page 462.—
Kentucky has a law which provides that when the property or effects
of any mine shall in anywise come to be distributed among creditors,
whether by operation of law or by the act of such company, owner,
or operator in such business, the employees of such owner or operator
shall have a lien for wages coming due within six months prior thereto,
which shall be superior to the lien of any mortgage or other encum
brance theretofore or thereafter created.
In the instant case the appellant R. W . Turner, in July, 1921, con
veyed a coal mine to the Diamond Coal Co. for the consideration of
$125,000; $55,000 of the consideration was paid at the time by issu
ing to him that amount of "stock in the coal company and the
remainder of the consideration was secured by notes payable in the
future and for which a vendor’s lien was retained in the conveyance.
The company ceased operations in May, 1923, leaving unpaid consider
able sums to its employees which had become due six months before the
suspension. In July, 1923, the employees filed suit against the com
pany for labor and services, asserting that their statutory lien w'as
superior to the appellant’s purchase-money lien. From a judgment
adjudging the employees’ lien superior to that of the vendor, the latter
appealed. In affirming the judgment, the court said in part:
s t r u c t io n

Statu te—

The sole question presented on this appeal is whether the statutory
lien given to employees of mining or other similar corporations for
wages coming due to such employees within six months before the

112

DECISIONS OF THE COURTS

property or effects of the mining corporation shall come to be dis
tributed among its creditors, as set forth in the statute, is superior to
a vendor’s hen on the real property of the mining corporation.
The appellant did not question the interpretation of the statute,
but argued that the opinion rendered by the court in three cases, viz,
Northern Bank v. Deckebach (83 Ky. 154), Cooley v. Black (105 Ky.
267), and Sandy Land & Development Co. v. Brown (175 Ky. 219),
wherein it was held that vendor’s liens were superior to employee’s
wage liens, should govern in the present case. The court briefly
reviewed the facts in the cases named and pointed out wherein the
facts in those cases differed from the facts under consideration.
The opinion concluded:
It is clear that none of the three cases cited, when analyzed and
understood, are inconsistent with giving to the employees the pref
erence in this case over the vendor’s lien.
The policy of the statute is well recognized, its wisdom is not called
in question, and its interpretation is not in doubt.
The judgment was therefore affirmed.

W a g e s — P r e v a il in g
Statu te—

R a t e in L o c a l it y — C o n s t it u t io n a l it y

Campbell v. City of New York, Municipal Court of City of
New York (May 15, 1926), 216 Neio York Supplement, page 1/+1.—
Section 220 of the labor law of New York State (Laws 1921, ch. 50)
provides that workmen and mechanics employed on public works
shall be paid not less than the prevailing rate in the same trade or
occupation in the locality, etc.
Frank Campbell was employed by the city of New York as a painter
in the department of plant and structures at a wage of $9 a day.
He brought action against the city to recover the sum of $595 claimed
to be due him as the difference between the wages paid him and the
prevailing rate between May 21, 1923, and January 7, 1925. He
established that the prevailing rate of wages for painters in New
York City was $10 a day between May 21, 1923, and January 10,
1924, and between January 21, 1924, and January 7, 1925, that it
w'as $10.50 a day, and that he worked 193% days during the first
period named and 277% days during the latter period.
The defendant contended that the statute relied on for recovery
by the plaintiff was unconstitutional, and cited as authority therefor
the recent decision of the Supreme Court of the United States in the
case of Connally v. General Construction Co. (46 Sup. Ct. 126, 127;
see Bui. No. 417, p. 139) holding a similar statute of Oklahoma to
be invalid and in contravention of the fourteenth amendment to the
Constitution of the United States.
The court cited with approval the case of Ryan v. City of New
York (177 N. Y . 271, 69 N. E. 599). In that case the court of

WAGES

113

appeals held a similar provision of the then existing labor law to be
constitutional. It was pointed out by the court that some time
after that decision the constitution of the State of New York was
amended and a specific provision was added authorizing the legis
lature to pass an act fixing wages, etc., of all persons, contractors,
and subcontractors employed by the State or a subdivision thereof;
that after the amendment was adopted the present labor law was
enacted and that various questions had arisen under the statute with
reference to the payment of the “ prevailing rate of wages” etc.,
which had been decided by the court of appeals and the constitution
ality thereof sustained (cases cited).
The court then said:
. In view of the foregoing decisions of the court of appeals, this
court feels constrained to follow them and to hold the statutory
provisions of the labor law, in so far as they provide for the pa}rment of the “ prevailing rate of wages,” to be valid, for the purposes
of the present litigation, and to deny the motion of the defendant
to dismiss the action.
Judgment was ordered for the plaintiff for the difference in wages
claimed together with interest from the date of filing the claim, with
10 days’ stay.
An appeal was taken from the above decision to the appellate division, where
the judgment was affirmed (219 N. Y. Supp. 131). The requirement of law
that cities and municipalities pay the prevailing rate of wages was said not to
be abrogated by the decision in the Connally case. It was further pointed
out that that was a criminal proceeding, requiring a degree of exactness and
certainty not essential in civil cases; also that a showing that from 75 to 90
per ctrnt of the total number of painters in the locality received the rate named
was sufficient evidence that this was the prevailing rate of wages.
Reference was also made to the case of Morse v. Delany (1926, 218 N. Y.
Supp. 571, affirmed, 218 N. Y. Supp. 826), where the principles involved and the
decisions rendered in the various tests of the law are considered at length*
Assuming that the law might not afford an adequate basis for criminal prose
cutions, “ it does not necessarily follow that the policy of the State, maintained
for nearly 30 years, followed by department heads and contractors, and sanc
tioned in principle by constitutional enactments, should be entirely disregarded."
Assuming that the “ prevailing rate” means the market rate, it is the same
standard that would be used in a quantum meruit action at common law. Both
the differences in circumstances between a sparsely settled community and the
city of New York, and the differences in the nature of the proceedings tended
to the conclusion that the Connally case need not be regarded as compelling
a setting aside of the long-standing law in the present instance, and it is
sustained.

The Campbell and Morse cases, noted above, were taken to the
court of appeals of the State on appeal, the judgments below being
affirmed in both cases. (244 N. Y . 317,155 N. E. 628.) The court
found an established public policy of the State, followed throughout
some thirty years, established by law, decision, and custom, with a
sufficiently definite meaning to be capable of understanding by all

114

DECISIONS OF THE COURTS

parties in interest. No obligation rests on any contractor to under
take any work proposed by the State, but if he does, it will be pre
sumably after a consideration of all the circumstances, after which
he will be bound by the terms prescribed by the State, impliedly
accepted by him in submitting his contract, and definitely accepted
in making the final agreements. The difference between a civil law
relative to contracts and a criminal prosecution as proposed in the
Connally case, decided by the Supreme Court, was sufficient to relieve
the court in the instant case from any obligation to regard that deci
sion as binding.
There was no indication in the law or its application of any tend
ency to dissipate the funds of the city or lay improper burdens upon
its taxpayers. The matter before the court was “ merely a question
of the regulation of a form of contract.” No illegality being found
in the provisions of the statute, the attacks upon it must fail.

W a ges— R eduction By Em ployers— R ailro a d L abor B oard—

Schuppan v. Peoria Ry. Terminal Co., United States District Court,
District of Illinois, (November 8, 192A), 9 Federal Reporter (2d), page

448.— The plaintiffs, former employees of the Peoria Railway Terminal
Co., brought action against the owners to recover wages alleged to be
due them under authority of decision No. 2 of the Railroad Labor
Board. The railroad was taken over by the Federal Government
during the war and was, therefore, subject to all orders affecting
wage scales and working conditions issued by the Railroad Labor
Board. When the railroad was turned back to its owners (the
defendants) they found that they could not operate it under the
conditions established by the Railroad Labor Board. The plaintiffs
w^ere advised of the financial straits of the railroad and were given a
choice of two propositions: (1) The defendants would furnish the
track and all its equipment and, as pay for doing the work, would
give them all the income earned less the necessary current supply
bills; (2) if they refused to work on those terms they could quit.
Plaintiffs did not accept the offer and refused to quit.
They
contended that the defendants were without authority in the matter
of fixing the rate of wages, but that it was in the power of the Labor
Board to make them pay what it thought was a just and reasonable
wage. At the next and succeeding pay days the plaintiffs were paid
according to defendant’s proposal, each receiving his pro rata share
of the income according to the amount he would have received under
the old scale and which amounted to from 75 to 82 per cent of the
former pay.
The master before whom the hearing was had found
that the action of the Labor Board was controlling, and allowed the
claims. The defendant appealed, securing a disallowance of the

WAGES

115

claims. District Judge Fitzhenry, who delivered the opinion of the
court, said in part:
The United States Supreme Court has settled the controversy
involved here in a case arising in this circuit by holding that the
findings and the awards of the Labor Board are not binding, but are
purely advisory. In other words, the Labor Board has said what rates
of pay are reasonable; but the Labor Board can do no more, and it
did no more. It was not the purpose of Congress to take away from
employing masters in this country the right to employ railway employ
ees and fix the rate of pay. (Pennsylvania R. R. Co. v. U. S. Rail
road Labor Board (Dist. Court, Judge Page, presiding), 282 Fed. 693.)
To require a railroad company to continue in business at a loss is
beyond the powers of Congress or a State. Apart from statute or
express contract, people who put their money into a railroad are not
bound to go on with it at a loss, if there is no reasonable prospect
of profitable operation in the future. (Bullock v. Florida, 254 U. S.
513, 41 Sup. Ct. 193.) Under our constitutional system of govern
ment, there is no power, in or out of Congress, in a State, or in a judi
ciary, to compel those who devote their property to the use of the
public to operate the same at rates of wages which occasion loss. In
good morals, neither the public nor the employees should demand
such sacrifice. (Coffee et al. v. Gray et al., 158 Ga. 218, 122 S. E. 687;
see Bui. No. 391, p. 320.)
To the question of whether or not the defendants had a legal right
to take such action as they did to prevent the railroad property being
consumed by excess operating expenses without first procuring the
consent of the Labor Board, the court said:
It did. Of course, it could not do so without giving the employees
full, fair, clear, and positive notice of the proposed change in their
relations. This was done. Those who continued in the service after
receiving that notice must be held, as a matter of law, to have accepted
the terms of the proposed change.
The fact that the claimants here misinterpreted their rights under
the Transportation Act would not warrant a court in ordering the
receivers to make payment of the several claims involved. Further
more, the opinion of Judge Page in Pennsylvania R. R. Co. v. United
States Railroad Labor Board, supra, was published May 4, 1921, and
was notice that the courts could find in the provisions of that act
nothing making the decisions of the board final, or giving them the
binding force of decrees to be performed.
The exceptions to the master’s report will be sustained, and a decree
may be prepared, disallowing and dismissing the claims allowed by the
master herein.
W a g e s — S e a m e n — A d m ir a l t y — C o n t r a c t s — A p p l ic a t io n o f
to
F o r e i g n S e a m e n — The Strathlorne, Van Der Liet v*
Burrell & Sons, United States District Court, District of Oregon
(August 9, 1926), 15 Federal Reporter (2d), page 210.— Judge
Wolverton in sustaining an exception to the plaintiff’s bill said:
42335°—27------9

Statute

116

DECISIONS OF THE COURTS

This is a libel whereby four seamen, who are foreign to this country
are seeking to establish a breach of their contracts as able seamei
with their vessel, which is also a foreign vessel, on the ground that
the vessel is unseaworthy, and to recover the balance of wages due
thereunder. Respondent excepts to the libel on the ground that the
suit is between foreigners, and the court should not exercise juris
diction in the case. The action is brought under section 8322,
United States Compiled Statutes, which relates to the time and
manner of payment of seamen’s wages, and which provides, among
other things, that the section shall apply to seamen on foreign vessels
while in harbors of the United States, and that the courts of the
United States shall be open to such seamen for its enforcement.
This statute is exclusively a wage statute, and is not intended to
extend to foreign seamen other relief than as a means of enforcing
payment of their stipulated wages, in accordance with the provisions
of the act. The very matter here presented has been decided
against libelants in Transportes Maritimos do Estado v. Almeido
(C. C. A.) (5 Fed. (2d) 151), wherein it is held that a suit upon a
broken contract instituted by one alien against another has no place
on the docket of the district court, but, as a wage claim, belongs to
a class of demands which can be promoted only by seamen on a
foreign vessel while their vessel is in a harbor of the United States.
Here it is sought, not to show merely a failure to pay wages, as the
statute requires, but a breach in the contracts on the ground that the
ship is unseaworthy, and the contracts are between foreigners. This,
it would seem, is outside of the purview of section 8322.
The exception was sustained and the libel dismissed.

W ages— Seamen— D isch arge W ith o u t Cause— A ctio n f o r
B reach o f C o n tra c t— United States Steel Products Co. et al. v. Adams;

The Steel Trader, United States Circuit Court oj Appeals, Fifth Circuit
( May 13, 1926), 13 Federal Reporter {2d), page 814.— On November 29,
1921, Donajd J. Adams signed shipping articles agreeing to ship from
the port of New Orleans, La., as oiler on the steamship Steel Trader,
at a wage of $80 per month for a period not to exceed 12 months. The
vessel was to make ports in Europe and Asia and such other ports as
the master might direct, and return to a final port of discharge and/or
loading port on the Atlantic or Gulf coast of the United States.
After the articles were signed, a typewritten sheet of paper was
pasted on the front of page 1 of the articles which provided that the
owners and crew of the vessel would be bound by any change in the
scale of wages made by the American Steamship Owners’ Association
after the departure of the vessel. The employee, Adams, would not
agree to this provision and for that reason was discharged on Decem
ber 12, 1921, at Port Arthur, Tex., to which place the ship went on
leaving New Orleans. He was paid wages at the contract rate for
the time served and an extra month’s wages of $80, for which he
gave his receipt, but did not sign a release of demand for wages.

WAGES

117

After the return of the vessel to New Orleans on May 19, 1922,
the employee filed a libel against it for wages up to and including
the signing off of the crew. His claim was resisted by the owners of
the vessel on the ground that when he was discharged he was paid
off in accordance with the provisions of section 4527 of the United
States Revised Statutes (Comp. St., sec. 8318), which reads as
follows:
Any seamen who has signed an agreement and is afterward dis
charged before the commencement of the voyage or before one
month’s wages are earned, without fault on his part justifying such
discharge, and without his consent, shall be entitled to receive from
the master or owner, in addition to any wages he may have earned,
a sum equal in amount to one month’s wages as compensation, and
may, on sidducing evidence satisfactory to the court hearing the case,
of having been improperly discharged, recover such compensation as
if it were wages duly earned.
The plaintiff was awarded the amount of his wages for the voyage
less a credit of $80 paid as above stated, with 6 per ccnt interest from
May 19, 1922, and the defendant appealed. It was argued that the
plaintiff’s rights under the contract evidenced by the shipping articles
are governed by the ordinary rules of contract except where modified
by statute, and that under section 4527, Revised Statutes, the pay
ment made to him satisfied all liability incurred by the wrongful
discharge.
The court in affirming the decree of the district court said in part:
To say the least, the language of the provision in question does not
clearly manifest a purpose to give to the payment to a seaman wrong
fully discharged within the time mentioned of the amount of any
wages he may have earned, and in addition a sum equal to one
month’s wages, the effect of satisfying all liability incurred by wrong
fully discharging him.
The language of Revised Statutes, section 4527, is consistent with
an intention to treat the amount required to be paid to the wrongfully
discharged seaman as compensation for the service already rendered
by him. Certainly that language falls far short of expressly absolv
ing the vessel, on the payment of such amount, from her liability for
damages for breaching the contract evidenced by the shipping articles.
That provision determines what is payable to the wrongfully dis
charged seaman at the time of his discharge.
In the absence of a statute requiring a different result, after the
entering upon the voyage provided for in the shipping articles the
ship is pledged to the complete execution of the contract, and may
be proceeded against for nonperformance, and if a seaman is dis
charged without justifiable cause before the termination of the voyage
he is entitled to full indemnity, which may be measured by the stipu
lated wages for the entire voyage and the amount of expenses in
returning to the port of discharge, deducting what he earned, or
reasonably could have earned, in other employment during the period
of his engagement.

118

DECISIONS OF THE COURTS

If the statute in question has the meaning attributed to it by coun
sel for the appellant, it has the effect of making it possible to discharge
a seaman engaged for a long voyage, without his consent and without
fault on his part, at whatever place, other than a foreign port, where
the ship may be before one month’s wages are earned, without incur
ring any liability, except to pay any wages he may have earned and
in addition a sum equal in amount to one month’s wages, though
what is so paid is greatly less than enough to indemnify the seaman
for the loss resulting from the violation of his contract rights. Plain
language would be required to justify the imputation to Congress of
an intention to permit seamen to be subjected to such treatment and
to be deprived of adequate redress therefor.
We conclude that the provision in question did not give to the
payment made to the appellee the effect of destroying his right to
full redress for the alleged wrong to him, and that the only ground
on which the decree was complained of is not a tenable one.
The decree was affirmed.
W ages— Seamen— D o u b le W ages f o r D efe rre d - Payment—
L ib e l— Mandelin et al. v. Eenneally et al., The Charles Whittemore,

United States Circuit Court of Appeals (February 27, 1926), 11 Fed
eral Reporter (2d), page 844*— Felix Mandelin and three others, sea
men on the defendant’s schooner, shipped from Norfolk, Va.,for a
round trip to Dutch Guiana, at the rate of $60 per month each. On
completion of the voyage on November 15, 1924, the plaintiffs were
called into the defendant’s cabin and he read to them the log show
ing certain fines and penalties he had imposed upon them. They
protested against these fines and penalties being deducted from their
wages, but defendant insisted that they were proper, and after deduct
ing the same he paid over to the United States Shipping Commissioner
the sum of $452.02 as the aggregate amount due, with instructions to
pay the amount to plaintiffs in a manner indicated by him if they
should severally accept the same in full of their accounts. This they
refused to do and brought a libel to recover the full amount of their
wages, exclusive of the fines legally assessed against them, together
with the penalties provided by law for the retention of same.
Sections 4529 and 4530 of the Revised Statutes (as amended by
the seamen’s act of March 4, 1915) provides a penalty of two days’ pay

for each daj of delay in payment.
The action of the defendant was sustained by the district court
and plaintiffs brought error. Judge Waddill, who delivered the opin
ion of the court modifying and affirming the judgment below, said
in part:
Assignments 4 and 5 present the question of the right of the respond
ent to withhold the amounts admittedly due libelants at the end of
their voyage on the 15th of November, 1924, at Newport News, Ya.,
unless libelants would accept the same upon the conditions imposed

WAGES

119

by respondent. This the respondent could not do, as it constituted
neither a payment of the wages nor a lawful tender of the amount
due, but, on the contrary, a proffer of a future lawsuit respecting the
same.
Under the law libelants were entitled to have paid them, within
two days after the termination of the voyage, the amount of wages
due them, and, in default of such payment, * * * a penalty of
two days’ pay for each day of delay in payment.
The libelants are entitled to recover double wages at the rate of
$60 per month for each day their wages were withheld— that is, from
the 17th of November, 1924, to the 1st of January, 1925, inclusive—
aggregating $720, the same to be distributed equally between libel
ants, with costs. The judgment of the lower court will be accord
ingly modified and affirmed*
The judgment was accordingly modified.

W a g e s — S e a m e n — “ S t r ik e r s ” — D e s e r t e r s — F o r f e it u r e
W ages—

United States v. Smith et al., United States Circuit Court of
Appeals (March 8, 1926), 12 Federal Reporter (2d), page 267.— N. H.
Smith and others of the crew of the Steamship Hahira brought a libel
suit against the United States to recover full wages earned by them
up to the time they left the service of the ship. In April, 1921, the
libelants signed shipping articles for a voyage from Baltimore to
Mexico and one or more ports in the Gulf of Mexico, and such other
ports as the master of the ship might direct, and back to a final port
of discharge at a point north of Cape Hatteras, for a term not to
exceed six calendar months. The vessel proceeded to Mexico, took
on a cargo of crude oil, and unloaded it at Baton Rouge on April 27.
It then proceeded to New Orleans, where it put into port for repairs.
A seamen’s strike began on May 1, and as a result the vessel re
mained at New Orleans until May 16 waiting for repairs. On May
10 the libelants left the service of the vessel, taking their belongings
with them, and on the following day they returned and demanded
full wages, less advances they had received. They alleged that the
master had failed to comply with a demand for half wages at the
port of New Orleans, and that thereupon they became entitled to
the balance of wages earned and remaining unpaid. The defend
ant contended that the cargo had not been loaded or delivered at
New Orleans; that nevertheless the master had paid or offered to
pay one-half of any- amount earned by any member of the crew;
that the crew deserted and thereby forfeited all claims to wages
which had been earned. There was a decree for the libelants, the
district judge holding that they left the service of the ship through
fear of personal violence at the hands of members of the seamen’s
union, and therefore they ought not to be classed as deserters. The

120

DECISIONS OF THE COURTS

court, speaking of the grounds on which recovery was allowed by
the district judge, said in part:
It was not even suggested in the libel that there was any such
danger. Aside from that, it is not claimed in the testimony that
the crew would have been in any danger whatever if they had remained
on board, nor that the ship was unable or unwilling to afford them
full protection against violence. We are therefore of opinion that
the crew must be held to be deserters, under Revised Statutes, section
4596, as amended (Comp. St., sec. 8380).
The decree was therefore reversed with directions to dismiss the
libel.
W a g e s — S e a m e n — “ W a t c h e s ” — C o n s t r u c t io n

Statu te—

O'Hara et al. v. Luclcenhach S. S. Co., Supreme Court of the United
States {January 4,1928), 48 Supreme Court Reporter, page 157.— Wil
liam O’Hara and Sven Tjersland brought a libel against the Luckenbach Steamship Co. to recover their earned wages, on the ground of
a violation of section 2 of the seamen’s act of March 4, 1915. The
pertinent requirement of that section is:
The sailors shall, while at sea, be divided into at least'two, and the
firemen, oilers, and water tenders into at least three watches, which
shall be kept on duty successively for the performance of ordinary
work incident to the sailing and management of the vessel.
The libelants alleged that the provisions of this section were not
complied with in that there were 13 sailors on the voyage, and while
at sea these sailors were not equally divided into watches, but instead
only two men, one quartermaster and one able-bodied seaman, were
on each of the three watches, while the remaining seven sailors were
kept at daywork only. The district court dismissed the libel, and
this decision was affirmed by the circuit court of appeals (1 Fed. (2d)
923), both the courts being of the opinion that it was the intention
of Congress to regulate the hours of work, and the circuit court of
appeals holding that the quality of the men selected rather than the
equality of the watches met the requirement of the statute. The
case was brought to the Supreme Court on a writ of certiorari.
Mr. Justice Sutherland, delivering the opinion of the court, said
in part:
The general purpose of the seaman’s act is not only to safeguard
the welfare of the seamen as workmen, but, as set forth in the title,
also “ to promote safety at sea.” It is significant that it does not
apply to the entire crew, but requires a division into watches only of
the sailors and the firemen, oilers, and water tenders. It is natural
to suppose that, if the purpose of Congress was chiefly to regulate
hours of work, something would have been said about the service,
while at sea, of those employed in the steward’s department as well.
The evident purpose was to compel a division of the men for duty on
deck and in the fireroom, and continuity of service, to the end that

WAGES

121

in those departments the ship should at all times be actively manned
with equal efficiency.
Sections of the act which show that Congress evidently intended
the regulations as to “ watches” on vessels to be a precautionary
measure of safety to the crew, passengers, etc., were noted, and the
opinion continued:
It is not unreasonable to conclude that Congress determined that
each of the watches, like the crew as a whole, should be “ adequate
in number,” competent and in a state of readiness “ for any exigency
that is likely to happen,” * * * and to this end meant to pro
vide for successive and continuous watches to be constituted in
numbers as nearly equal as the sum of the whole number would
permit.
In tills conclusion we are fortified by the consideration that the
legislation deals with seamen and the merchant marine and, conse
quently, the phrase “ divided into * * * watches” is to be given
the meaning which it had acquired in the language and usages of the
trade in which the act relates.
With nothing in the context and no evidential circumstances to
suggest the contrary, we fairly may assume that the use of the tech
nical terms of the trade to which the statute relates imports their
technical meaning.
The decree was therefore reversed.
Following the foregoing decision, the case was again before the district court on
the question of the amount recoverable— i. e., whether only the wages earned up
to the time of demand, or whether the penalty of two days’ pay for each day of
delay allowed where the master or owner “ refuses or neglects to make payment
* * * without sufficient cause” accrued. The court had eliminated from the
decree presented to it the provision for payment of the penalty, and the libelants
appealed. The circuit court of appeals affirmed this judgment, holding that the
question of liability for the payment was sufficiently doubtful to justify the
employer in withholding payment until a determination. The mere fact that
the Supreme Court had held that the payment was due was said not to be of
itself sufficient reason for determining that there was no “ sufficient cause/’ as
otherwise no disputed question could be litigated without incurring the risk of
heavy penalties. (Same case (December 13, 1926), 16 Fed. (2d) 681.)
A quite similar case was before the United States District Court for the
Southern District Court of Texas at a somewhat later date than the Supreme
Court decision above. A steamship with a certified requirement of but six sea
men carried a crew of additional men who were employed in painting, cleaning,
etc., and were not divided into watches as the law prescribes. At settlement
they were offered half wages, but demanded full wages, for which they brought
libel, as well as the penalty for delayed payment. The employer contended
they were employed, not as seamen, but as general workers, and were not within
the terms of the seamen’s act, wiiile they cited the O’Hara case as sustaining their
contention. The court sustained their viewpoint, saying that they were entitled
to the protection of the law as to work time and wages, and that the procuring
of a certificate could not be availed of as a means of avoiding its provisions.
Even if the employer had been mistaken as to the law, he must abide by the
consequences of his mistake. The recovery of wages and penalty was therefore
awarded. (El Estero (1926), 14 Fed. (2d) 349.)

122

DECISIONS OP THE COURTS

W a g e s — T im e

P a y m e n t — A m o u n t — A c t io n

for

N onpay

Deardorf v.
Hunter, Supreme Court of Louisiana (January 4> 1926), 106 Southern
Reporter, page 831.— Louisiana has a law (act No. 150 of 1920) which
provides that any employer of labor who fails to pay discharged
employees within 24 hours after demand at the usual place of pay
ment shall be liable for the wages from the time of such demand
until they are paid or tendered.
C. A. Deardorf and four other persons were employed by the
defendant to work at his sawmill at a wage of $5 per day. After
working seven days the men were discharged on account of being
unable to get logs. The defendant, a resident of Illinois, had visited
the mill a few weeks prior to its closing, and at that time requested
the manager to submit the pay roll so that he could remit promptly.
This was done, but Spears, the manager, used the money for some
other puipose. Suits were brought to collect the wages due and pen
alty under the provisions of the statute. Judgment was rendered for
plaintiffs for wages claimed and costs of the suits except curator’s
fee, but not for the penalty claimed. Deardorf alone appealed, and
at the second hearing was awarded the amount claimed by him
and penalty amounting to approximately $3,200, which judgment
the judge refrained from signing. Defendant did not know that the
men had not been paid until notified by the curator appointed by
the court to represent him in the suits. Upon that notice, he went
immediately to Louisiana and “ tried faithfully” to settle with them.
Being unable to do this, he moved the couit for a reopening of the
cases, which was granted. He then tendered in open court $55.10,
the amount of wages and costs claimed by Deardoif. The tender
was refused and the amount deposited with the court. Evidence
was then introduced by defendant to show that it was through
no fault of his that the plaintiff had not been paid or an attorney
employed to defend the suit. The court in affirming the action
taken b}r the judge in the lower court, said in part:
m ent—

-P e n a l t y — C o n s t i t u t i o n a l t y

Statute—

The judge refused to hold the defendant responsible for the laches
of Spears, to the extent of condemning the defendant for the severe
penalty allowed by the act 150 of 1920. We approve the ruling.
The judge gave judgment in favor of the plaintiff, for $35, with legal
interest from the day he was discharged, and for all court costs,
including $10 for the curator’s fee, all subject to credit for the $55.10
deposited in the registry of the court. The court sustained the writ
of attachment which had been levied upon the property of the non
resident defendant. Our conclusion is that the judgment is correct.
The language of the act 150 of 1920 is not so peremptory as to for
bid an equitable defence against the penalty.
A plea was made alleging the unconstitutionality of the penal
provision. As to this, the court said:

WAGES

123

The judge’s conclusion that the defendant was not liable for the
penalty made it unnecessary to decide the question of constitution
ality. The defendant answered the appeal, but asked merely that
the judgment should be affirmed. Therefore the question of consti
tutionality of the law is not now an issue in the case.
For a sufficient reason, the attorney employed to represent the
defendant in the district court declined to argue the case on appeal,
or to file a brief.
The judgment was therefore affirmed.

W ages — T rade C hecks — R ights o f T hird P arty — Moss Federal
Coal Co. etal. v. Rhea, Court of Appeals of Kentucky (June 4, 1926),
284 Southwestern Reporter, page 100.— The Moss Federal Coal Co.
operated a coal mine in Bell County, K y. Another corporation, the
Moss Stores Corporation, not identified with the coal company,
operated a store in the vicinity of the mines from which the miners
bought merchandise. This company issued a lot of metal disks, on
one side of which was “ Moss Stores Company, Inc., Pineville, K y .,”
and on the reverse side of which was stamped “ Good for $1.00 (or
other value) in merchandise.” These were delivered to the coal
company and it issued them to the miners up to the extent of the
wages earned by them and charged the amount of such disks to their
accounts. Such of the disks as were used in buying merchandise at
the Moss Stores Corporation were at stated times presented to the
coal company, which would redeem them in cash less an agreed
discount. E . T . Rhea, the plaintiff in the case, had a store near
that of the Moss Stores Corporation, and in the course of his trade
with the miners he took in payment the metal disks issued by it and
distributed by the coal company. He presented the disks to the coal
company and to the Moss Stores Corporation and demanded that
they redeem them in cash. Upon their refusal he brought suit for
the amount represented by the disks, joining both companies in the
action, and recovered judgment. Defendants appealed and urged
two grounds for reversal: (1) That the disks were not transferable
by delivery only and that the assignors were necessary parties to the
action; and (2) That the companies could not be sued jointly.

The court, in affirming the judgment of the lower court, held that
since no objection was raised to the defect of parties in the court
below, such objection was not available on appeal. Judge Dietzman,
who delivered the opinion of the court, speaking of the joint liability
of the defendants, said in part:
The evidence shows that the coal company issued these disks to its
miners in the intervals between pay days, charging the same against
the time the miner had theretofore put in. It is thus obvious that
the coal company was issuing scrip to miners in proportion to the

124

DECISIONS OF THE COURTS

amount of time the miners had put in and the wages they earned.
Therefore, under the holding of this court in Pond Creek Coal Co. v.
Riley Lester & Co. (171 Ky. 811; 188 S. W. 907; see Bui. No. 224,
p. 221), it would have been the duty of the coal company to redeem
this scrip if it had been presented to it for redemption by the original
holders thereof on or after the pay days of the wages against which
the scrip had been issued, and Rhea stands in the shoes of such
original holders. It follows, then, that the coal company was clearly
liable in this action.
The judgment of the lower court was affirmed.

W e e k l y D a y o f R e s t — 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 — State v.
Pocock, Supreme Court of Minnesota (January 2, 1925), 201 North
western Reporter, page 610.— Chapter 298 of the acts of the Minnesota
Legislature of 1923 prescribed a weekly day of rest in specified employ
ments, including employees in the power plant, or stationary boiler
or engine room of certain establishments, but excluding persons
engaged in like employments in other establishments.
Walter A. Pocock, proprietor of a hotel, was charged with a violation
of the statute by emplotying a workman in the power plant, boiler, or
engine room of the hotel more than six days in one week. The case
came to the supreme court on certified questions, the constitutionality
of the statute being challenged on account of alleged violations of the
constitution in respect of classification. The court held the statute
unconstitutional on grounds that appear in the following quotations
from its opinion :

That the legislature may enact laws which apply only to a specified
class is beyond question. But under the equality provisions of both
the State and Federal Constitutions all similarly situated must be
brought within the class and all within the class must be treated
alike.
If it selects particular employees of the class, and gives to them
privileges which it withholds from other emplo}^ees of the same class,
or if it selects particular employers of the class and imposes upon
them burdens and restrictions from which it exempts other employers
of the same class, it denies the equal protection of the laws to those
discriminated against and thereby violates the constitutional mandate.
An examination of this statute shows that any one who employs
men in a power plant or boiler or engine room is within the law if
the heat or power generated is used in a hotel, a shoe factory, a bakery
or a restaurant, but is outside the law if it is used in a newspaper
plant, a place of public amusement, a cannery, a flour mill, an auto
mobile garage or repair shop, or a creamery or cheese factory located
in a city of the third or fourth class. The need for a day of rest is
the same whether the employee is generating heat and power for use
in one or another of the lines of business mentioned, and the excluded
employees are as clearly within the class which the law sought to
benefit as are those brought within it.

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

125

B y reason of th e discrim inations indicated, the court fou n d it nec
essary to pronounce ju d gm en t against the con stitu tion ality of the
act in question.

W o r k m e n ’s C o m p e n s a t io n — A c c id e n t — B r u is e — F r e e z in g —
— Mauch v. Bennett & Brown Lumber Go., Supreme Court
of Michigan (July 1, 1926) ,209 Northwestern Reporter, page 586.— John
Mauch was employed by the defendants as a logger. On or about
January 1, 1924, while in the performance of his duties, a canthook fell on his foot, bruising a great toe, which soon thereafter was
frozen. No other part of the body was frozen. Gangrene set in as
a result of the injuries, and it became necessary to have the toe
amputated. A physician testified:
I n f e c t io n

He would not have frozen the toe in all probability if he had not
received the injury and disturbed the normal circulation.
A letter dated March 25, 1924, written by the plaintiff to the
defendant was put in the evidence. In the letter he set out the facts
above stated and asked them to see what they could do about his
compensation. He later made claim to the department of labor and
industry for compensation. From an award for compensation the
employer appealed on the ground that there was no accident within
the meaning of the workmen’s compensation act; that claim was
not made within six months as provided by the statute; and that
the amount of the award was excessive.
Judge Clark, speaking for the court after saying that “ the mere
freezing was not an accident,” added:
Doubtless the gangrene, the operation, and the disability resulted
directly from the freezing, but, there being evidence that the freez
ing was a consequence of the prior accidental personal injury arising
out of and in the course of the employment, the department might
and did find as a fact that the disability was due to the accident.
The finding has some evidence to support it, and therefore is conclu
sive on this court.
The court held that the employer’s report on January 12, 1924, of
compensable accident, which spoke of the freezing of the plaintiff’s
foot, and the letter written on March 25, 1924, by the plaintiff also
referring to that fact, both omitting reference to the bruise, while inac
curate were sufficient notice to meet the requirements of the statute.
It also held that the award of $14 per week was excessive in view of
the fact that the plaintiff’s weekly wages were only $19.86 per week,
and that the maximum allowance therefor is $11.92 per week.
The cause was remanded to the department for correction of the
weekly allowance and was otherwise affirmed.

126

DECISIONS OF THE COURTS

W o r k m e n ’ s C o m p e n s a t io n — A c c id e n t — C u m u l a t iv e E f f e c t o f
A c t s — Aldrich v. Dole, Supreme Court oj Idaho {1926),
249 Pacific Reporter, page 87.— Elmer Aldrich was employed by
F. A . Dole to drive a truck which was so worn that “in order to
travel at high speed it was necessary for him to press the shift lever
with his right knee. In so doing the cogs would frequently slip out
of mesh and cause the lever to strike the knee; and the pressing of
the knee against the lever and the striking of the knee by the lever
caused the knee to become bruised to such an extent claimant became
disabled.”
The industrial accident board found as a matter of law that the
injury was not sustained by accident arising out of and in the course
of the employment and compensation was denied. The employ
ment continued from September 12 to October 17, 1923, and on
appeal to the district court it was found that “ on or about the 17th
day of October, 1923, claimant had incurred a personal injury by
accident” and was entitled to compensation.
On appeal to the supreme court this judgment was affirmed, the
court saying in part:

R epeated

Had there been a single occasion when the knee pressed the lever
and was struck by it, and injury had resulted therefrom, there would
be no difficulty in concluding that the injury was received by acci
dent. In such cases it would be said that in the discharge of his
duties, the workman placed his knee against the lever, the lever
struck the knee, the injury resulted; and it would not be said that
the injury was usual, w'as expected, or was designed. Now, if the single
pressing of the knee against the lever and the single striking of the
knee by the lever would result in an injury by accident, can we say
that the injury actually received was not caused by accident merely
because there was a conjunction of the causes that brought on the
injury? The injury results from a single event, and there would
seem to be no sound reason for holding that an injury occasioned by
a number or series of events is not within the act. The continuous
pressing of the lever and the repeated striking of the knee had a
cumulative effect so that the injury came on gradually; and claim
ant received the unexpected and unintentional injury during the time
of the operation of the causes that produced this injury.

W o r k m e n ' s C o m p e n s a t io n — A c c id e n t — D is e a s e — A n t h r a c o -

sis— St. Louis Mining & Smelting Go. v. State Industrial Commis
sion, Supreme Court of OJclahoma (September 15, 1925), 241 Pacific
Reporter, page 170.— R. J. Turner was employed by the St. Louis
Mining & Smelting Co. in its lead and zinc mine. On October 2,
1923, Turner, after working in a shaft for about 30 minutes, became
dizzy from the effects of carbon monoxide gas, and with a fellow
workman moved to another section and continued their labor for the

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

127

day. The gas had been caused by the explosion of dynamite earlier
in the morning and the night before. Turner returned to work the
following day with some ill effects, but on the second day he was
completely incapacitated and continued in such condition until the
time of the hearing on his petition for compensation.
Turner was 50 years of age and had been employed in various kinds
of mines since he was about 12 years old. He testified that the
effects complained of in this action had not come upon him suddenly
but b}r degrees. From an order of the State industrial commission
granting compensation, the employer and the insurance carrier
appealed.
Dr. Fred A. Glass, the only medical man who testified for either
party, diagnosed the ailment as anthracosis or coal miner’s
disease contracted by inhaling foreign particles over a long period of
time. He testified that exposure to gas under such conditions as
existed in the instant case would not produce the result had in the
ailment under consideration here, but that it would only have been
temporary and transitory in its nature.
It was the contention of the defendants that the commission erred
in finding an accidental personal injury arising out of the employ
ment, that it erred in finding the disability resulted from accidental
injury, and that it erred in awarding compensation for a disability
resulting from an occupational disease in no way relating to or grow
ing out of the employment.
The supreme court considered the facts in this case in conjunction
with section 7283 of the Compiled Oklahoma Statutes of 1921, as
amended by chapter 61, Session Laws of 1923, in which it is provided
that compensation shall be payable for injuries sustained by employees
engaged in hazardous occupations, and paragraph 7 of section 7284,
which defines “ injury ” and “ personal injury” to mean only acci
dental injuries arising out of and in the course of the employment
and such diseases and infections as may result therefrom. The court’s
interpretation of these sections excluded an occupational disease from
being compensable.
In reviewing the evidence and testimony the supreme court held
that if a personal injury is of such a character as to require profes
sional or scientific men to determine the cause and extent, that ques
tion must then be proven by the testimony of such persons. It
appeared that in the trial of this case there was no testimony by a
person skilled in scientific knowledge that the fact of the claimant
being slightly gassed caused his disability. There was also no testi
mony showing or attempting to show that the fact of the claimant
being gassed accelerated his disease.
Under the Oklahoma rule, as stated by the supreme court, the
findings of the commission are conclusive unless there is an absence

128

DECISIONS OP THE COURTS

of competent evidence to support the findings and in such a situation
the question becomes a pure question of law for the determination
of the court.
In conclusion the supreme court was of the opinion that “ the claim
ant failed to produce any competent evidence to form a basis for the
finding by the commission that the ‘accident’ as claimed, resulted
in the disability. ”
The order was therefore reversed and the cause remanded to the
State industrial commission with directions to dismiss.

W orkm en’s Compensation — Accident — D isease — Pneumo
nia— Jones v. Philadelphia & Beading Coal & Iron Co., Supreme Court

of Pennsylvania (February 1, 1926), 132 Atlantic Reporter, page 122.—
George R. Jones, the deceased, was an employee of the Pennsyl
vania & Reading Coal & Iron Co. On January 25, 1923, his father,
also an employee of the company, was buried by the slide of a culm
bank. Jones and other employees made a desperate effort, lasting
about two and a half hours, to rescue his father, but succeeded only
in recovering his lifeless body. A large quantity of water was used
in the rescue and deceased was drenched from the knees down.
Following the exposure, excitement, and exertion he had a severe
cold, but attended the funeral of his father on January 29, and,
returning home, went to bed and called a doctor, w~lio gave him
some temporary relief. On February 7, other physicians were sum
moned, who found him suffering with pneumonia, which resulted in
his death on February 11,17 days after the exposure. His widow was
awarded compensation, which was reversed by the court of common
pleas for lack of sufficient medical evidence connecting the pneu
monia with the exposure. Additional testimony was taken, and a
second award made to the claimant, wThich was affirmed by the
court of common pleas. The company appealed on the ground that
the proof did not sustain the award.

In affirming the award the court said in part:
A specialist in internal diseases (Doctor Collins), not called at
the first hearing, on a consideration of all the facts, testified, “ I
think the wetting was the cause of his trouble which eventually
terminated in pneumonia and caused his death, ” and further, “ pneu
monia was the condition resulting from fever and chills operating
for several days. ” The conclusion of an expert, given as “ I think, ”
is equivalent to saying, “ I believe,” and amounts to an assertion of
his professional opinion, at least as strong as the assertion of his
opinion that, under all the attending data, the result in question most
probably came from the assigned cause, which is sufficient. The
testimony of the three attending physicians is consistent with that
of Doctor Collins, although they leave the cause of the pneumonia
somewiiat in doubt; but no other probable cause therefor was

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

129

pointed out. If the exposure on January 25 was the superinducing
cause of death, it matters not that it may have been aggravated by
some other cause, such as attending his father’s funeral when ill, or
going out improperly clad. Injury following an extraordinary expo
sure to wet and cold, suffered in the course of employment, may be
compensable under the workmen’s compensation statutes (Pa. St.,
1920, sec. 21916 et seq.), on the same principle as a prostration
resulting from the heat. (Lane v. Horn & Hardart Baking Co., 261
Pa. 329, 104 Atl. 615; see Bui. No. 258, p. 156.) So may death from
pneumonia caused by an injury or unusual exertion and exposure
.(citing cases).
The judgment was therefore affirmed.

W o r k m e n ’s
C au se—

C o m p e n s a t io n — A c c id e n t — D is e a s e — P r o x im a t e

New River Goal Co. v. Files, Supreme Court of Alabama
(June 30, 1926), 109 Southern Reporter, page 360.— This case came
up on the defendant’s application for a writ of certiorari to review
the judgment of the circuit court of Walker County awarding com
pensation to Jasper Files for alleged injuries received while he was
employed as a miner in the defendant’s coal mine.
The evidence for the plaintiff tended to show that while engaged
in coal mining he was overcome and for a time rendered unconscious
from breathing carbon dioxide or carbon monoxide or both; that the
bad air was due to insufficient ventilation; that the immediate cause
of his suffocation was a current of such air passing through an open
ing he was making into a room where other workmen had been shoot
ing, the gases from the shots not having disappeared. There was
also evidence that before the accident the plaintiff was in apparent
good health and able to work regularly, and that at the time of the
trial he was disabled on account of an abnormal condition of the
heart.
The court, in denying the writ, said in part:
We have no difficulty in holding that whatever injury and dis
ability resulted proximately from this event was due to accident
within the meaning of the act. A disease “results proximately from
the accident” if the disease is induced by lowered resistance proxi
mately caused by the accident, or if it is aggravated or accelerated
by the accident so that the disabling injury results proximately from
the accident— would not have developed but for the accident. The
benefits of the compensation law are not limited to those in perfect
health.
Giving full effect to the opinion evidence that persons in good
health quickly and fully revive from the effects of carbon dioxide with
out lasting injury, this must be viewed in the light of all the evidence.
It can not be said with certainty that carbon dioxide alone caused
the suffocation.
This court does not review the weight of the evidence on certiorari.

130

DECISIONS OF THE COURTS

True, the burden of proof in the trial court is on the claimant to
prove the conditions upon which his right to compensation depends.
The issue should be determined fairly upon the legal evidence as in
other cases; but the law places that responsibility on the trial judge.
It can not be declared on this record that there was no evidence
of injury from accident within the workmen’s compensation law.

W o r k m e n ’s

C o m p e n s a tio n —

A c c id e n t —

In to x ic a tio n

Shearer v . Niagara Falls Povjer Co.,
Court of Appeals of New York (January 19,1926), 150 Northeastern
Reporter, page 60/+.— W illia m A. Shearer was e m p lo y ed b y the defend
ant com p an y in taking dow n a bridge at its p lan t at Niagara Falls,
N. Y . In the course of his em p lo y m en t he lost his balance while

C au se— B u rd en o f P r o o f—

walking along a girder of the bridge and fell, striking a scaffolding,

He sustained injuries from which
The industrial board m ade an award to
Lenora Shearer and others, claim ants, which was affirmed b y the
appellate division of the suprem e court.
The defendant appealed on
and then falling into the water.

he died alm ost in sta n tly .

the ground th a t no specific finding was m ade b y the industrial board
on the evidence offered at the hearing th at deceased was intoxicated

The award was reversed and proceed
State industrial board. Judge P ou n d, speaking

at the tim e of the accident.
ings rem itted to the

for the court, said in p a r t:

The issues in compensation cases, although informally joined,
should, however, be disposed of by the board by a determination on
all material controverted questions.
Evidence was offered that Shearer was intoxicated at the time of
the accident. The question of intoxication as the sole cause of
injuiy was therefore material, but the board made no specific finding
on the point. New York constitution (art. 1, 19), excepts from the
general grant of power to the legislature to pass workmen’s compen
sation laws all cases “ where the injury results solely from the intoxi
cation of the injured employee while on duty.” The workmen’s
compensation law (sec. 10) contains the same exception.
If the employer seeks to establish that intoxication was the sole
cause of the accident, the burden is upon him to offer substantial
evidence from which reasonable persons would reasonably draw the
inference (a) that the employee was drunk at the time of the acci
dent; (b) that he fell owing to his drunkenness and was injured or
killed. The ultimate burden is on the employer to establish his
defense. The board should make a specific finding whenever the
question becomes material.
Here death was due to the fall from the bridge girder, but if the fall
was due solely to the intoxication of the employee the case does not
come under the act. If the board reaches the conclusion on the
evidence that Shearer was drunk at a place where if he fell he would
probably be killed, and that he fell owing to his drunkenness, com
pensation should be denied.

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

131

The award of the State industrial board and order of the appellate
division should be reversed, with costs to abide event, and proceed
ing remitted to the State industrial board to make a finding on the
question, Did the death of Shearer result solely from his intoxication
while on duty?
Ordered accordingly.
W o r k m e n ’s C o m p e n s a t io n — A c c i d e n t — N o t i c e — B e n e f i t s

U n

Roney v. Griffith Piana
Co., Court of Common Pleas of New Jersey (December 80, 1925), 131
Atlantic Reporter, page 686.— Roney was employed by defendant com
pany as a piano mover. On December 23, 1923, while Roney was
moving a piano, it fell, knocking him down and injuring his neck.
The accident was witnessed by Penn, the man in charge of the work.
Roney continued to work for five or six weeks, when he became
wholly disabled from further labor. A diagnosis made on May 19,
1924, showed that cancer had developed as a result of the injuries,
from which he subsequently died. Some time before his death Roney
submitted a claim, on which compensation was awarded by the work
men’s compensation bureau but no payments were made thereon.
The employer appealed on the ground that Roney did not report his
injury within 90 days as required by the statute, and that there was
no person to whom any compensation was properly payable. In
affirming the award the court said in part:
p a id

a t

T im e

o f

D e a th — V ested

R ig h ts —

Penn was in charge of the work. He was a witness to the acci
dent, saw Roney knocked down when the piano fell, and heard him
complain of his neck having been hurt. This notice to Penn, whether
or not he reported it to those in authority, was a compliance with
section 2, paragraph 15, of the statute (act of April 4, 1911; P. L.,
p. 140).
The diagnosis as to cancer was made five months after the injury.
The court stated that an award for temporary disability should be
made up to the date of the diagnosis, followed by an award for per
manent disability until the date of death. Continuing, the court
said:
It seems that no compensation has been paid in this case, and it is
urged by respondent appellant that, as the petitioner has died, there
is now no person to whom compensation is properly payable. The
authorities cited in support of this view do not sustain that conten
tion. The law is settled that the personal representative of the
deceased is entitled to the compensation which accrued up to the
date of death of the petitioner. (Erie Railroad Co. v. Clara Calla
way, Executrix, 91 N. J. L. 32, 102 Atl. 6.)
Let the petitioner respondent submit a determination in accord
ance with these views.
The rights of the widow as dependent and entitled to a death ben
efit were not before the court, and it declined to comment thereon.
42335°— 27—

132

DECISIONS OF THE COURTS

W orkmen ’ s C ompensation — “ A ccident ” — O ccupational D is
P oisoning — C onstruction of Statute — Sokol v.

ease — A niline

Stein Fur Dyeing Co. et al., Supreme Court of New York, Appellate
Division (May 5,1926), 216 New York Supplement, page 167.— Harry
Sokol was employed by the defendant to handle and brush dry furs
after the process of dyeing was complete. He contracted a disease
known as dermatitis, which disabled him in respect to the use of his
hands. He made a claim for compensation under the provisions of
section 3, group 19, subdivision 2, of the workmen’s compensation
law (Laws 1922, ch. 615), alleging that his disease was caused by
aniline poisoning. From an award by the State industrial board
the defendant appealed.
In reversing the award and dismissing the claim the court said:
We think that “ any process involving the use ” of aniline is descrip
tive of a chemical process, and in the fur-dyeing trade involves the
application of the chemical to the furs. The claimant, not having
been engaged in making application of the dyes, was not, we think,
within the coverage of the subdivision, and was not suffering from
an occupational disease.
W

orkmen ’ s

C ompensation — “ A ccident ”— O ccupational D is
Life Ins. Co. v. Graham et al., Commis

ease — T uberculosis — Mtna

sion of Appeals of Texas (June 9,1926), 284 Southwestern Reporter,
page 981.— Artie Graham was employed by the Thomsen Co., of
Waco, manufacturers of shoe polish. It w~as her duty to stir and
boil various chemicals used in the manufacture of shoe polish, from
which arose certain gases, fumes, and powders, all more or less poison
ous and irritating. She had been working for this employer for two
years prior to May, 1922, when she resigned on account of ill health.
She died on January 31, 1924, of tuberculosis. Carrie Graham and
another made claim for compensation on account of her death, which
was denied by the industrial accident board and the claimants
appealed. Upon a trial in the district court a jury awarded com
pensation. The insurer appealed to the court of civil appeals, and
the judgment was reversed and the cause remanded for a new trial.
A writ of error was then sued out to bring the case before the
supreme court.

The question for the consideration of the court was whether or not
a disease that is gradual in its development due to the natural sur
roundings of the employment is compensable under the Texas statute.
The commission of appeals in disposing of the question said in
part:
Considered most favorably from the standpoint of defendants in
error, it is conclusively shown that Miss Artie was exposed to the
natural surroundings of her employment; that such exposure gradu
ally developed a disease known as tuberculosis, from which she died

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

133

in about two years after her employment ceased. In other words,
her death was due to what is called an industrial or occupational
disease, and not to an accidental injury.
It was held by the commission that while the workmen’s compen
sation act did not expressly include or exclude diseases as compensa
ble, the trend of the decisions of the Supreme Court of Texas had
construed the act to intend industrial accidents apart from occupa
tional diseases. It quoted with approval from the opinion delivered
by Judge Bishop in Texas Employers’ Insurance Association v. Jack
son (1924, 265 S. W . 1027; see Bui. No. 391, p. 460), where it was held
that the employee who, while making a long trip with his employer’s
truck, was exposed to rain which wetted him several different times,
resulting in pneumonia, was not the victim of an accident within the
meaning of the act.
The opinion continued:
It is clear to us that, so far as our supreme court has spoken,
it has shown its approval of the rule, well-nigh universal elsewhere,
that recovery cannot be had for what is termed an occupational or
industrial disease. We think the industrial accident board correctly
decided the case at bar.
The commission recommended that the judgments of the district
court and court of civil appeals be reversed and judgment rendered
by the supreme court in favor of plaintiff in error.

W orkmen ’ s C ompensation — “ A ccident ” — V iolation op Stat
T imbebman O perating M ine C a &— PoTeis v. Buck Coal Co.,

ute —

Supreme Court of Pennsylvania (March 15, 1926), 132 Atlantic
Reporter, page 795.— John Pokis was employed by the defendant as a
timberman in its mines. It was the custom of the employees when
leaving the mine either to walk or to ride down the plane to the
bottom and from there to be hoisted to the surface. At the time in
question, when the deceased and another had reached the top of the
plane, the employee who usually operated the hoisting machine had
quit work, and the deceased started the engine and hoisted the car
to the top of the plane. He then manipulated the switch that
started the car downward and jumped on it to ride down. He was
later found dead at the bottom of the plane by his fellow employee.
His widow was granted an award by the compensation authorities,
but this was reversed by the court below and came to this court
on appeal.
The facts were not in dispute. The court considered only the
question of whether or not the action of the deceased was a violation
of rules 25 and 48 of article 12 of mine laws enacted June 2, 1891.
Rule 25 provides in effect that any persons handling or disturbing
machinery or cars in or about a mine without proper authority,

134

DECISIONS OP THE COURTS

whereby the lives and health of persons or the security of the prop
erty in or about the mine is endangered, shall be guilty of an offense
against the act. Rule 48 provides that no miner or laborer shall run
cars on any gravity road unless employed by the mine foreman for
that particular work. The court below found that the deceased had
violated both of the foregoing rules and therefore his widow should
not be allowed compensation. The judgment of the lower court was
therefore affirmed.
The Court of Appeals of Maryland reached a like conclusion in a case where
death followed the disobedience of workmen instructed by their foreman not to
reenter a ditch which they were digging until shoring had been placed. The
foreman was not present at the time, but one of the workmen refused to go into
the ditch, reminding the others of the orders given. Disregard was held to be
“ willful misconduct” by the commission, which the courts supported. (Harris
v. Harris et al. (1926), 132 Atl. 374.)

W orkmen ’ s C ompensation — A ccident A rising O ut of E m
M inor— D ependents — E vidence —

ployment — E mancipation of

Smith v. Leslie, Appellate Court of Indiana ( March 10, 1926), 151
Northeastern Reporter, page 17.— Kahel Leslie, 20 years of age, an
employee of J. P. Smith, was killed while hauling lumber from
defendant’s lumber yard to a garage in the same town. It appeared
that there was a muddy stretch of road near where the lumber was
to be unloaded, and at the time in question decedent's truck became
mired. He procured a tractor from a garage, attached the tractor
to the truck by means of a rope, and pulled the truck out of the
mire to the place where it was to be unloaded. He stopped the
tractor, but the truck had been given such momentum that it did
not stop simultaneously with the tractor, but ran forward against it,
the collision resulting in the fatal injury to the decedent. The evi
dence given at the hearing showed that the decedent was receiving
$15 per week from his employer, and that after paying for his own
clothes and furnishing his own spending money he gave his mother
from $5 to $7 per week, the greater part of which was used for buy
ing clothes and school books for his sisters. The industrial board
made an award to his mother and sisters, and defendant appealed
on the ground that since the use of the tractor to pull the truck had
been strictly forbidden the accident did not arise out of his employ
ment, and that he had been emancipated by his parents, and there
fore they should not be considered dependent upon him. The court,
in affirming the findings of the board, said in part:
An accident is said to arise “ out of the employment, when there is
apparent to the rational mind, upon a consideration of all the circum
stances, a causal connection between the conditions under which the

w o r k m e n 's COMPENSATION

135

work was required to be performed and the resulting injury.” [Gases
cited.]
In the case at bar the decedent at the time of his injury was
engaged in operating the tractor in an endeavor to accomplish the
work to which he was assigned* Clearly there is some evidence to
support the finding of the board that the death of the employee
was the result of an accident which arose out of his employment.
The question of the boy’s emancipation becomes important. Eman
cipation will not be presumed. It must be established by competent
evidence.
In the case at bar there is evidence from which the industrial
board might have found that the emancipation of Kahel Leslie was
but partial; that there had been no emancipation from parental
custody and control; and that the boy was merely permitted to
collect and spend his own wages. If such was the finding, there
was, of couise, no legal liability on his part to pay for his board and
lodging, the cost of which the industrial board was not required to
deduct from his wages in determining the question of dependency.
We hold that there is sufficient evidence to sustain the finding of
the industrial board that the mother and sisters of the employee
were his dependents at the time of his death.
The award was therefore affirmed.

W orkmen ’s C ompensation — A dmiralty — Jurisdiction — A gree
U nder S tate L a w — S tatus op D iver — Millers’ Indemnity
Underwriters v. Brand et a lU nited States Supreme Court (February
1, 1926),
Supreme Court Reporter, page 194•— O. O. Boudreaux,
employed by the National Ship Building Co. as a diver, died of suffo
cation when his air supply failed while under water in the course of
his employment. The employer carried insurance in compliance with
the Texas workmen’s compensation law. In an action by the sister
of the deceased, an award of compensation was granted by the State
industrial board. The court of civil appeals affirmed the award, as
did likewise the Supreme Court of Texas, whereupon error was brought
to the United States Supreme Court.
ment

It was the contention of the insurance carrier that the claim arose
out of a maritime tort; that the rights and obligations of the parties
were fixed by maritime law, and that therefore the State had no power
to change them by statute or otherwise. In reviewing the record,
the Supreme Court of the United States observed that the Texas
compensation law as applied to employees engaged in removing
obstructions to navigation in waters within the State works no
material prejudice to rules of maritime law; and where the employer,
as in this case, elected to come within the act, and the employee did
not give statutory notice rejecting it, the remedy provided was there
fore exclusive and the right of either party to sue in admiralty was
eliminated. It appeared from the evidence that Boudreaux at the

136

DECISION’S OP THE COURTS

time of his death was engaged in sawing off the timbers of an " aban
doned set of ways, once used for launching ships, which had become
an obstruction to navigation.”
Mr. Justice McReynolds, delivering the opinion of the court, said
in conclusion:
The record discloses facts sufficient to show a maritime tort to
which the general admiralty jurisdiction would extend save for the
provisions of the State compensation act; but the matter is of mere
local concern and its regulation by the State will work 110 material
prejudice to any characteristic feature of the general maritime law.
The act prescribes the only remedy; its exclusive features abrogate
the right to resort to the admiralty court which otherwise would exist.
The judgment was therefore affirmed.

W orkm en’s Compensation— A dm iralty— Jurisdiction— “ M a r
itime C o n tr a c t”— U p h o lste re r on R iv er B o a t— Johnson v. S won

der, Appellate Court oj Indiana (January 28,1926), 150 Northeastern
Reporter, page 615.— John Johnson, who was employed by the defend
ant as an upholsterer’s helper in a mattress factory, was sent by his
employer to help upholster a motor boat that was tied up to the
Indiana bank of the Ohio River, and while in the course of his
employment met with an accident which caused his death. His
widow made application to the Indiana Industrial Board for compen
sation on account of his death. The application was dismissed for
want of jurisdiction, and claimant appealed. The court, in reversing
the action of the board, said in part:

There is but one question for our consideration, and that is as to
whether the industrial board had jurisdiction over the subject mat
ter of the contract of employment, and to determine this we are
called upon to determine whether the contract of employment was
a maritime contract, or such a maritime contract that it can only be
recognized in an admiralty court.
The court, after examining a number of authorities on the question
of maritime contracts, cited several cases in which the question had
been adjudicated and said: “ We see nothing in the employment here
involved that would bring it within the scope of these definitions of
a maritime contract.”
The opinion concludes:
It is well established that generally Federal courts have exclusive
jurisdiction of admiralty matters, but where, as here, the enforce
ment of the State statute works no material prejudice to the char
acteristic features of the general maritime law, nor interferes with
the proper harmony or uniformity of that law in its international or
interstate relations, the general rule does not apply.
That appellee had contracted with appellants’ decedent with refer
ence to the compensation law of Indiana is evidenced by the fact that

137

WORKMEN^ COMPENSATION

he promptly reported the accident to the industrial board in due
form. We hold that the industrial board erred in holding that it
did not have jurisdiction of the matter here involved.
The order of dismissal was therefore reversed, with instructions to
hear and determine the action on its merits.

W orkmen ’ s C ompensation — A dmiralty — Jurisdiction —
W aiver of R ights U nder A dmiralty L a w — C onstitutionality
of Statute — Christensen v. Morse Dry Dock & Repair Co., Supreme

Court oj New York, Appellate Division ( March 19,1926), 21 New York
Supplement, page 732.— Fred Christensen was employed by the defend
ant in making repairs on the steamship President Arthur, lying at the
plant of the defendant in the navigable waters of New York Harbor,
and while in the performance of his work he was dragged from the ship
by a repair tackle into the waters of the harbor and thereby injured.
He brought action in the supreme court of Kings County, N . Y ., to
recover for his injuries under maritime law. From a judgment dis
missing the complaint, plaintiff appealed to the appellate division of
the supreme court. The question presented was whether or not the
supreme court had jurisdiction of the cause of action because of a
contract entered into by the plaintiff and the defendant. The con
tract was signed by both of the contracting parties before the plaintiff
entered into the employ of the defendant. By the terms of the
contract the plaintiff agreed to waive any rights to. himself, his heirs,
etc., that he or they might have in any admiralty court or State court,
limiting such rights to those granted by the provisions of the work
men’s compensation law.

The court referred to Article III, section 2, of the Constitution of
the United States, which extends the judicial power of the United
States to all cases of admiralty and maritime jurisdiction. Judge
Kapper, who delivered the opinion of the court, after citing a number
of cases, said in part:
As we have seen, the cases in the United States Supreme Court
disclose the zealousness with which that court clings to the juris
diction of the Federal courts over maritime torts, and the tenacious
ness with which they seek to preserve the essential and characteristic
features and the uniform operation of the maritime law. That this
jurisdiction may be encroached upon, or the essential features of the
maritime law changed or modified, any more effectively through the
medium of optional rather than compulsory legislation, does not seem
to me possible. The fact of usurpation and encroachment, not the
medium of its accomplishment, is the vital consideration.
The optional provision in section 113 (of the compensation act,
authorizing waivers of the admiralty law and acceptance of compen
sation by agreement), if utilized by employer and employee, is effec
tive to divest the Federal courts of jurisdiction by substituting therefor

138

DECISIONS OF THE COURTS

the jurisdiction of a State tribunal exercising functions unknown to
the common law, and is effective also to work a material change in
the maritime law by substituting for the rights and remedies there
recognized and administered new rights and remedies unknown to
the common law, and not embraced within the scope of the maritime
law. And the jurisdiction of which the Federal courts are thus
divested is jurisdiction of subject matter— i. e., jurisdiction over a
maritime tort. It seems to me that this may not be done, cither
directly by compulsory legislation or indirectly through the medium
of optional provisions.
It is suggested that the plaintiff could have given a general release,
and therefore the parties could effectuate the agreement now involved.
The distinction between a release of a right of action, either before or
after suit brought, and the agreement before us, seems marked. In
the case of a release, the parties put an end to litigation by steps that
are sanctioned by the common law and are in harmony with the
principles of the maritime law. In the case of the agreement to
submit their maritime rights, obligations, and liabilities to the State
industrial board, the parties are consenting to confer jurisdiction of
subject matter upon a tribunal in which such jurisdiction can not be
lodged. That such board is a judicial tribunal (created by the legis
lature), in view of its determining powers and the right of review of
its findings by our appellate courts, seems to me to admit of no
question.
The discussion in which I have indulged leads me to the conclusion
that, where a suitor claiming a personal injury to have resulted from
what is known as a maritime tort resorts to a State court for the
purpose of having his right of action determined pursuant to the
rules of law fixed by maritime jurisprudence, he can not be ousted
because of an agreement voluntarily entered into by him to substitute
a State workmen’s compensation law in the place and stead of his
common-law remedy saved to him by the Federal statute.
If the views expressed are correct, it follows that the dismissal of
the complaint was error, and that the judgment should be reversed
upon the law and a new trial granted, costs to abide the event.
The judgment was therefore reversed and atnew trial granted.
In Argentine v. F. Jarka Co. (Inc.) (1925, 214 N. Y. Supp. 218), the Supreme
Court of New York, special term, ruled against a plea that a rule of the indus
trial board of the State provided for an acceptance by the parties, making the
compensation act the exclusive remedy. Citing Southern Pacific Co. v. Jensen
(244 U. S. 205, 37 Sup. Ct. 524), the court pointed out the impossibility of the
State assuming jurisdiction by act of legislature, adding that surely the indus
trial board could not do so.

W orkm en’s Compensation— A dm iralty— Longshorem en— In
ju r y on D o c k — Shea v. State Industrial Accident Com?nission, Supreme

Court of Oregon (July 13,1926), 247 Pacific Reporter, page 770.— James
W . Shea was employed by the Nelson Steamship Co., a corporation

duly licensed to do business within the State of Oregon, and was on
November 19, 1925, engaged in unloading freight from the steamship
Griffdu onto one of the docks in the city of Portland, when a load of

WORKMEN'S COMPENSATION

139

freight he was trucking on the dock fell and caught and severely injured
his hand. His claim for compensation was rejected by the State
industrial accident commission. He then proceeded under the work
men’s compensation law in the district court and recovered judgment.
From that judgment the commission appealed. It was contended
that the plaintiff was not entitled to compensation under the work
men’s compensation law, but that his case was governed by the
maritime law.
The court, speaking of the provisions of Oregon’s workmen’s com
pensation act, said in part:
All persons, firms, and corporations engaged as employers in the
hazardous occupations specified in the act may accept or reject the
benefits thereof. All workmen in the employ of such persons, firms,
or corporations subject to the act, may likewise elect to accept or
reject its benefits. Stevedoring and longshoring are defined as haz
ardous occupations within the meaning of the act. At the time the
plaintiff suffered his injuries, the Nelson Steamship Co. was an
employer, and plaintiff was an employee, as these terms are defined
by the act. The provisions of this act, when applied to the facts in
the case at bar, are not in conflict with any superior law. Therefore,
we conclude that, both the employer and the employee having
accepted the terms of the workmen’s compensation law of the State
of Oregon, its protective features embrace the injury sustained by the
plaintiff. Both the agreed statement of facts and the findings of the
court locate the site of the longshoreman’s injury upon the land.
The case of State Industrial Commission v. Nordenholt Corp.
(259 U. S. 263, 42 Sup. Ct. 473; see Bui. No. 344, p. 285) was cited
by the court, and the opinion of Mr. Justice McReynolds quoted
from with approval as follows:
When an employee, working on board a vessel in navigable waters,
sustains personal injuries there, and seeks damages from the employer,
the applicable legal principles are very different from those which
would control if he had been injured on land while unloading the
vessel. In the former situation the liability of employer must be
determined under the maritime law; in the latter no general maritime
rule prescribes the liability, and the local law has always been applied.
The liability of the employer for damages on account of injuries
received on shipboard by an employee under a maiitime contract is
matter within the admiralty jurisdiction; but not so when the accident
occurs on land.
The commission claimed that its rejection of the claim of Shea was
supported by the supreme court’s decision in Spitzer v. Annette Rolfe
(110 Oreg. 461, 218 Pac. 748, 223 Pac. 253). The court pointed out,
however, that here the owner was a foreign corporation which had
never complied with the corporation laws of Oregon nor taken steps
to come under the State compensation law, but sought protection
under the automatic features of that law when proceeded against

140

DECISIONS OF THE COURTS

under another statute, though “ it had never contributed, nor sought
to contribute, a dollar to the industrial accident fund of the State.”
While the workmen's compensation law, being remedial in its
natuie, is to be liberally construed, yet, when it becomes our duty to
apply the act to a given set of facts, we must keep in mind that it
was not the intention of the lawmakers, in providing for the creation
of an industrial accident fund, to compensate workmen injured abroad,
but that the act is essentially an Oregon act, designed to accumulate
a fund to compensate Oregon workmen sustaining accidental injuries
in Oregon industries.
In the instant case, the parties being under the act and the injury
being received on the land, the compensation law was applicable, and
the judgment of the circuit court so holding was affirmed.

orkmen ’ s

sions of

C ompensation — A greement — W aiver of P rovi
L a w — K e v ie w — Hartford Accident & Indemnity Co. v.

Industrial Commission} Supreme Court of Illinois (April 28, 1926),
151 Northeastern Reporter, page 495 .— John Wahlstrom was injured
while in the employ of A. Knight. Knight and Wahls trom, together
with the insurance company, plaintiff in the instant case, entered
into an agreement in settlement of Wahlstrom’s claim for compen
sation*, whereby he w’as to be paid SI,650 for injuries received, at the
rate of $12 per week for 291 weeks and $8 for one week, with a
pension of $23.33 per month for life, neither of the parties to seek
to diminish or increase the agreed amounts. The agreement was
approved by the industrial commission, and payments were made
under the agreement until the death of Wahlstrom. Subsequent to
the death of Wahlstrom, Knight died, and the insurer stopped pay
ment and filed a petition with the industrial commission praying
relief from further payments, its contention being that under section
21 of the workmen's compensation act its liability ceased on the
death of Wahlstrom. The commission found that, under the terms
of the agreement, the right to compensation was not extinguished
by the death of Wahlstrom, and this finding was approved by the
circuit court of Cook County. The company brought error, and
the supreme court reversed the finding and approval, remanding the
case with directions.

The law provides that the death of a beneficiary extinguishes his
right to receive compensation; also that any agreement or award
may be reviewed by the commission at any time within 18 months
after it is made. Here, the agreement was made in April preceding
the death of Wahlstrom in September of the same year. The court
held that the rule as to termination of benefits controlled in spite of
the agreement, and that the power of the commisson to review was

WORKMEN \S COMPENSATION

141

not subject to waiver by the agreement, so that “ the circuit court
erred in confirming the finding of the industrial commission” to the
contrary. The jurisdiction of the commission was said to continue
in the case of an agreement the same as in case of an award, and
could not be waived. The judgment below was therefore reversed
and the case remanded.
W orkmen ’s C ompensation — A lien B eneficiaries — A ppeal to
C ourts— C onstitutionality of Statute — Liimatainen v. State

Industrial Accident Commission et al., Supreme Court oj Oregon {June
1, 1926), 2^6 Pacific Reporter, page 741.— The deceased, known as
Herman Alto, while in the employ of the Murphy Timber Co., sus
tained an injury in an accident arising out of and in the course of his
employment on June 19, 1922, which resulted in his death two days
theieafter. Wiihelmiina Liimatainen, alleged widow of the deceased,
made a claim for compensation under the workmen’s compensation
law. Her claim was rejected by the commission, from whose order
she appealed to the circuit court of Marion County, Oreg. That
court found and determined that inasmuch as the claimant was not
and never had been a resident of Marion County or of the State of
Oregon, no appeal was authorized by law, and on that account dis
missed the appeal. An appeal was then brought to the Supreme
Court of Oregon.

The supreme court in affirming the judgment of the circuit court
said in part:
There is no question but that in proper cases compensation may
be awarded to the widow of a deceased employee who is subject to
the workmen's compensation act, although the widow may be a non
resident. The question i3 as to the extent of her remedy in case the
commission refuses her claim.
The laws of this State are made primarily for the benefit of its own
people, and the present law under its terms relating to industrial
accidents is avowedly made with that end in view. The State is
under no obligation to provide largess for nonresident aliens, and may
limit their access to its courts to narrower bounds than those accorded
to residents.
The claimant contended that to deny her the right of appeal was
forbidden by sections 20 and 31 of article 1 of the State constitution.
The sections invoked in support of that contention read thus:
Section 20. No law shall be passed granting to any citizen or
class of citizens privileges or immunities which, upon the same terms,
shall not equally belong to all citizens.
S ec . 31. White foreigners who are or may hereafter become resi

dents of this State shall enjoy the same rights in respect to the posses
sion, enjoyment, and descent of property as native-born citizens.

142

DECISIONS OF THE COURTS

The court held that section 20 referred only to citizens of the State,
while section 31 applied alone to white foreigners who were residents
of the State, and that neither section applied to the claimant since
she was neither a citizen of the State nor a white foreigner residing
therein. It was also held that the action of the court below in dis
missing the appeal did not violate the due process of law provision
of the Constitution of the United States. Judge Burnett, speaking
of this, said in part:
In a due process of law devised by the industrial accident commis
sion statute she applied to the commission for an allowance. She
had a hearing before that legally constituted tribunal, and by it her
claim was denied.
The claimant was at all times a resident and inhabitant of a for
eign country, seeking to take advantage of the law, and must take it
not only with its benefits, but with its restrictions. She had her day
in court, so to speak, before the commission, which is vested with
the authority to determine such things in the first instance. She had
her hearing before that tribunal, and if she would appeal she must
bring herself clearly within the terms of the statute by appeal to the
circuit court of the county in which she resides. There being no
“ county in which she resides,” she does not come within the category
of those who can appeal.
Operating, as she has attempted to do, solely under the work
men’s compensation law, the claimant is bound by all its conditions,
one of which is that if she desires to appeal she must appeal to the
circuit court of the county in which she resides.
The circuit court had no jurisdiction over the subject matter
because that was vested primarily in the industrial accident commis
sion. Jurisdiction on appeal could not be conferred upon the circuit
coui t by stipulation, and it made a correct disposition of the case by
dismissing the appeal.
The judgment was therefore affirmed.

W orkmen’s Compensation—Alien Beneficiaries—T r e a t y
Rights—Constitutionality of Statute— Liberato v. Royer (April
12, 1926), 46 Supreme Court Reporter, page 373.—This case came up to
the Supreme Court of the United States on a writ of error. Plain
tiffs, who were natives and residents of Italy, were by a decision of
the Court of Common Pleas of Pennsylvania awarded $820 for the
death of their son while he was employed by the defendants S. A.
Royer and Albert Herr, trading as Royer & Herr. The award was
reversed by the superior court on the ground that the statute
expressly provided that “alien * * * parents * * * not res
idents of the United States, shall not be entitled to any compensa
tion” (Pa. Stat. 1920, sec. 22007), and that the treaty of 1913 with
Italy did not cover the case. The judgment was affirmed by the
supreme court of the State. (See Bui. No. 391, p. 358.)

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

143

The question before the Supreme Court was whether or not the
treaty with Italy invalidated the above clause of the statute law
and gave the plaintiffs a right to recover. That portion of article 3
of the treaty, as amended in 1913, relied on for recovery is in sub
stance as follows:
The citizens of the contracting countries shall receive constant
security and protection for their persons and property and shall be
granted the same civil responsibility for injuries or death caused by
negligence or fault as is granted to nationals, provided they submit
themselves to the conditions imposed on the latter.
Mr. Justice Holmes, delivering the opinion of the court, said in
part:
The words of the amendment, if taken literally, deal only with
death caused by negligence or fault. The statutes of Pennsylvania
accord with this view of the treaty. They give to alien nonresident
dependent parents the same right to recover damages for death due
to fault that they give to citizens and residents. Then the compen
sation act offers a plan different from the common law and the work
man is free not to come in under it. If he does, of course' all bene
fits dependent on the new arrangement are matters of agreement and
statutory consequences of agreement and cannot be carried further
than the contract and statute go.
We are of the opinion that the treaty was construed rightly by the
courts below.
The judgment was therefore affirmed
The Court of Appeals of Kentucky cited the Liberato decision in a case before
it involving a like provision of law, the compensation board having assumed that
such provision was in conflict with the treaty. The award made was reversed
by the circuit court, this ruling being sustained by the court of appeals, where it
was said that not only did the reasoning in the Liberato case accord with the
views of the court, but the Supreme Courts interpretation of the treaty was
binding. (Norella v. Maryland Casualty Co. (1926), 287 S. W. 18.)
The law of New York allows payments to certain alien dependents, but permits
commutation of “ future installments ” at a rate of one-half their commuted value.
This was held by the court of appeals of the State not to permit any revision of
past payments or those already due, but “ only such installments as might accrue
periodically thereafter.” An order of the industrial commission, affirmed by the
appellate division, modifying a previous award, was therefore reversed and the
case remanded. (Perino v. Lackawanna Steel Co. (1925), 150 N. E. 127.)
The Utah compensation act gives nonresident aliens one-half benefits. Where
an alien was killed, his family being at the time residents of the State, and an
award made as to residents, the family afterward leaving the United States, it
was held by the Supreme Court of the State that the status of the beneficiaries
was changed by their removal, so that the award should be reduced to the amount
provided by law for nonresidents. (Continental Casualty Co. v. Industrial
Commission (1926), 250 Pac. 145.) One judge dissented, saying that he did not
think that the amount to be awarded should be based on any inquiry as to a
contemplated change of residence of the dependent during the period of the
award.

144

DECISIONS OF THE COURTS

W orkmen ’ s C ompensation — A w ard — A dditional A ward for
R etraining — Tibbitts v. E. G. Staude Mfg. Co. et
Supreme Court

oj Minnesota (February 5, 1926) >207 Northvmtern Reporter, page 202.—
Minnesota has a law which provides for an additional award for
reeducating or retraining those persons whose capacity to earn a liv
ing has been destroyed or impaired through industrial accident or
otherwise, so as to restore their capacity to earn a livelihood, if the
industrial commission shall find such retraining is necessary.
Millard Tibbitts, employed as a lathe worker by the E. G. Staude
Manufacturing Co., received an accidental injury which resulted in
the loss of one of his eyes, for which he was awarded full compensa
tion. Some time after that he made application for an additional
award in order that he might receive training as a trombone player.
The application was approved by the board of vocational education,
but was not approved by the industrial commission, for the reason
that the evidence was not sufficient to show that the retraining sought
would materially aid in earning a livelihood. Claimant brought a
writ of certiorari to the supreme court. The action of the industrial
commission was affirmed. The court held that in determining
whether or not an employee who has accidentally suffered the loss of
a member of his body is entitled to additional compensation for
retraining under the provisions of the statute, the word “ necessary ”
should not be construed as “ indispensable,” but such compensation
should be found necessary if it appears that the training sought
would materially assist the employee in restoring his impaired capac
ity to earn a livelihood. Judge Holt, speaking for the court, said
in part:
Notwithstanding the persuasive arguments presented by the divi
sion in its support of Mr. Tibbitts’ application, the record is not such
as to demand a finding that retraining is necessary. This court can
not reverse unless the evidence submitted by the parties requires
a finding contrary to the one made, or reveals the decision to be arbi
trary or arrived at by misconception of the law, or upon an erroneous
theory of the proofs required.
In this instance the memorandum accompanying the decision
indicates the chief reason for denying the compensation asked for
was that retraining as a trombone player was not shown likety to
amount to a restoring of an impaired capacity to earn a livelihood,
but rather to the acquisition of an accomplishment. ^
There should be some evidence that the retraining sought will
probably result in at least aiding the applicant to earn a living or
improving his impaired earning capacity. It ought not to be required
to show that the occupation to which a training is sought will give a
better living, or that it alone will furnish an adequate living, but it
should be shown that it will substantially aid the workman in gaining
a livelihood.
We think the evidence is not such as to compel a finding that the
retraining asked for and approved by the division was necessary.
The decision was therefore affirmed.

W ORKM EN^ COMPENSATION

145

W orkmen's Compensation—Award—Basis—Concurrent E m
ployment—Average W eekly Earnings— Juan’s Case, Supreme
Judicial Court of Maine (July 28, 1926), 134 Atlantic Reporter, page
161.—Walter H. Juan, concurrently employed by several employers,
was killed on November 7, 1922, while serving the Pejepscot Paper
Co. His widow was granted an award of $16 a week for the statu

tory period, and this was confirmed by a single justice sitting in
equity. The paper company appealed. The question presented to
the court was, Could the weekly earnings of the deceased in his sev
eral employments be combined as a basis on which to compute the
award? The facts in the case were substantially as follows: The
deceased had been employed for the full year preceding his death as
a caretaker by the Pejepscot Paper Co. at $10 a week, as janitor for
a fuel company at $1.50 a week, and as a member of the Belfast
Fire Department at $2.58 a week, and for over 16 weeks just prior
to his death he had been employed by Forgione & Romano Co., con
tractors, as mason’s tender, etc., at a weekly wage of $31.50. The
case was before the court for the second time.
It was the contention of the paper company that the $31.50 earned
as mason’s tender should not be considered in computing the amount
of the award.
The court, in its opinion, said:
The case is of novel impression in this court, and industry of coun
sel has failed to suggest a decision by another court in a like case.
It then held that under the provisions of section 12, chapter 50, of
the Revised Statutes, a duty was placed upon the industrial accident
commission of finding the artificial average of weekly earnings under
the conditions prevailing in the employment of the workman, before
and up to the time of the accident, if concurrent employment is
proved.
In concluding its opinion the court said in part:
It remains only to be considered whether the chairman erred as a
matter of law when he included employment by the Forgione &
Romano Co. with other concurrent employment, in determining the
average weekly earnings.
Led by the decision after the former hearing in this case, and with
the additional light obtained from facts elicited in accordance with
the previous mandate of this court, the commissioner found that the
employment as mason’s tender, in which this workman had been reg
ularly employed for more than three months before the accident, was
employment concurrent with that by him rendered to the appellant.
Then, in compliance with the provision of the statute last quoted,
the commissioner apparently found that of his earnings as mason’s
tender so great a sum was to be considered “ average weekly earn
ings” as would bring the earnings from all concurrent employments
above the sum of $24 per week.

146

DECISIONS OF THE COURTS

Hence he awarded compensation in the amount of $16 weekly, and
we can not say this finding is contrary to law.
The appeal was dismissed and the decree below accordingly
affirmed.
In a case before the Supreme Court of Kansas involving concurrent employ
ments the court held that only such wages should be considered as were earned
in employments under the compensation act. In this case one of the employers
was an electric company and the other a city not operating under the act. On
the death of the workman from an accident in the course of employment with the
electric company it was held that the amount awarded the widow could be based
on the earnings with that company alone, for the reason stated. (Walton v. Elec
tric Service Co. (1926), 247 Pac. 846.)
The Illinois Supreme Court found the employment of a night watchman by two
companies whose properties adjoined to be joint and not concurrent, so that they
were jointly liable for the payment of compensation due for his death caused by
accident on the property of one, the wage basis being his annual earnings.
The workman was employed under a single contract, and was paid an equal wage
by each employer, taking his orders from the foreman of each, so that an arbitra
tor’s finding of liability of but one employer was held to have been properly modi
fied to apply to both. (Page Engineering Co. v. Industrial Commission (1926),
152 N. E. 483.)
Where the death of a watchman employed by two persons was caused by an
explosion while he was attempting to protect from fire the property of both his
employers, it would follow that this court would sustain an award against the two
employers jointly. (Frederick v. Stresenreuter (Inc.), (1926), 152 N. E. 548.)

W orkm en's Compensation— Aw ard— Basis— M u lt ip le In ju
ries— P ercen tage o f D isa b ility — Perm anent P a r tia l F o llo w
ing Temporary T o t a l D isa b ility — Mills v. Mills & Connelly, Court

of Appeals of Kentucky (May 21, 1926), 283 Southwestern Reporter,
page 1010.— Charles C. Mills was employed by Mills & Connelly,
and on November 8,1923, while operating a concrete mixer, he sus
tained an injury for which he made a claim for compensation. A
hearing was had before the compensation board on the following
agreed statement of facts:

(1) Foot cut oft* by cable of concrete mixer, necessitating imme
diate amputation of right leg 9 inches below knee, leg measure 16*^
to 17 inches from knee to ankle.
(2) First and second fingers of left hand torn off between knuckle
and first joint.
(3) Fracture of middle third of radius of left arm.
The agreed statement also showed that the plaintiff was confined
to a hospital for a period of 30 days and after his release was under
the care of a doctor until March 23, 1924; that on July 4,1924, he
was able to put on an aitificial leg for the first time, and that dur
ing the first 60 days thereafter he was able to wear it onLy occasion
ally due to the tender and unhealed condition of the stump, since
which time he had been able to wear it approximately two-thirds of
the time.

WORKMEN *S COMPENSATION

147

The compensation board awarded the claimant $15 per week for
total disability from November 15, 1923, to September 8, 1924, and
in addition $12 per week for 145 weeks for the amputation and loss
of his right leg, and further $12 per week for the loss of an index
finger of his left hand and $12 per week for 30 weeks for the loss of a
second finger of his left hand. Medical services not to exceed $100
were also allowed. The circuit court on review modified the award
and allowed the claimant $.12 per week for 125 weeks for the loss of
his right foot and set aside the award of $15 per week from Novem
ber 15, 1923, to September 8, 1924. From that judgment the claim
ant appealed.
The question for the court was whether claimant’s disability was
caused by the loss of a leg as was found by the board or by the loss
of a foot as adjudged by the circuit court, or whether it should be
determined under section 4899, the concluding clause of which pro
vides that all other cases of permanent partial disability not specifi
cally set out in the section shall be determined by the percentage of
such disability.
It was held by the court that the claimant’s rights should be deter•mined under the concluding clause of the section above referred to,
the court saying, in part, as follows :
Our conclusion is that the injury in this case is more than the loss
of a foot and less than the loss of a leg, and seems to be necessarily
embraced in that class of “ all other cases of permanent partial disa
bility” provided for in the concluding clause of section 4899.
It results on this branch of the case that neither the award of the
board for the loss of a leg nor the judgment of the circuit court for
the loss of a foot only can be sustained; but the circuit court should
have remanded the case to the board, with directions to fix the com
pensation according to the provisions of the concluding clause of that
section, but to so fix it that the compensation for such injury in the
aggregate would be less than for the loss of a leg, and greater than
that for the loss of a foot, according to the percentage of disability
and the other considerations mentioned in that clause.
It was also held by the court that, under the ruling in the Nelson
case, the circuit court erred in striking out the allowance made by
the board for temporary total disability.
The judgment of the circuit court was reversed with directions for
it to enter a judgment upholding the award of the board except as to
the award for the loss of a leg.
Where a miner was injured by a fall of slate, fracturing a femur and injuring
his hip and back, causing permanent partial disability, an award to this effect
was sustained by the Supreme Court of Tennessee over the contention that the
injury to the leg, for which the act provided a specific benefit, being the one
causing the longest disability, was the only basis for an award. The court held

42335°—27----- 11

148

DECISIONS OF THE COURTS

that there was not a question of distinct, concurrent disabilities, the minor merg
ing into the major, but a single injury affecting the use of the body, causing a
permanent partial disability, to be compensated on the ground of reduced earning
capacity. (Bon Air Coal & Iron Corp. v. Johnson (1926), 283 S. W. 447.)

W orkmen ' s C ompensation — A ward — B asis— P ermanent P ar
D isability — M ultiple I njuries — C onsecutive A wards —

tial

Hinley v. Brooklyn Heights R. Co., New York Supreme Court, Appel
late Division (January 15, 1926), 213 New York Supplement, page
321.— Florence Hinley, an employee of the Brooklyn Heights R. Co.,
received injuries to her legs which made it necessary to have the left
leg amputated. The State industrial board awarded her compensa
tion for permanent partial disability for the loss of her left leg, which
amounted to more than $3,500; it also awarded compensation for
temporary disability for injury to the right leg, to run consecutively
with the first award. The company appealed from this last award.
In reversing the award and dismissing the claim, the court said in part:
The injury to the claimant's right leg was not proven or found to
be other than a temporary disability; that this disability was present
during the period when claimant was being paid compensation for
the loss of ner left leg; that an award for the right leg can not be
appended to an award for the left leg, the former to begin when the
latter ended; that the two injuries constituted but one disability to
work; that the award for the left leg was for more than $3,500; that
the sum so awarded and paid must be considered in connection with
the injury to the right leg; that, so considered, the claimant may
not receive further compensation on account of such temporary dis
ability; that the case of Marhoffer v. Marhoffer (220 N. Y. 543, 116
N. E. 379 [see Bui. No. 246, p. 289]), precludes the claimant from
receiving compensation for the injury to her right leg.

W orkmen ' s C ompensation — A ward — B asis— P ermanent T otal
D isability — C ommutation of B enefits to D iseased W orkman —
L ife E xpectancy — Pettinelli v. Degnon Contracting Co., Supreme

Court of New York, Appellate Division (1926), 217 New York Supple
ment, page 679.— The claimant in this case had suffered an injury to
his head in October, 1916, resulting in mental derangement. He was
committed to an asylum for the insane in September, 1917, as he was
then suffering from dementia prsecox. Compensation was paid until
a final determination in February, 1926, that the claimant was totally
and permanently disabled. A commutation was made at that time,
covering future payments and a proportionate amount of the adminis
trative expenses, in accordance with the terms of the law, the amount
being $13,662.55. Under the terms of the law this sum would go
into an aggregate trust fund, the employer, a self-insurer, being dis
charged from further liability on the payment thereof.

w o r k m e n 's COMPENSATION

149

From the award thus made an appeal was taken on the ground of
the use of an improper basis for determining the amount. The com
mutation had been made in accordance with the testimony of an
actuary, who employed the Danish survivorship annuitants’ tables
of mortality in making his calculations. The actuary admitted that
the figures used were based on the life of a normal man, without
reference to the actual condition of the individual claimant in this
case. Judge Henry T. Kellogg, speaking for the court, stated that:
The superintendent of the asylum in which the claimant was con
fined testified that the average length of life of a dementia prsecox
patient was 16 years from the date of his admission to an insane
hospital; that he considered that 16 years from such time was a fair
and reasonable estimate of the life expectancy of the claimant. As
the claimant was admitted to an insane hospital in September, 1917,
his expectancy at the time of the order of commutation, according to
experience among dementia prsecox patients, was less than eight years.
We are not told what his expectancy under the Danish tables might
have been, for the proof was excluded by the presiding commissioner.
We may take judicial notice, however, that it was far greater than
eight years. The question to be determined is whether or not the
facts of the case justified the commutation made.
Attention was called to the fact that moneys paid in as directed in
this case went into an “ aggregate and indivisible fund,” from which
payments for the specific object were to be made; but if a beneficiary
outlived his expectancy payments would continue from this fund,
while, on the other hand, if death occurred at an earlier date, no
reimbursement would be made to the contributor. In other words,
this is a special insurance fund for general distribution to all cases
coming within its purview.
While the law requires all commutations made by the board to
be upon the basis of the survivorship annuitants’ table of mortality,
it is not required to make commutation in any case. Supposing a
case of imminent death and commutation notwithstanding, an unjust
and oppressive result would follow. The present case was said to
present a situation comparable to that in the assumed case.
This claimant, under the expert proof given, will not live more
than eight years. Yet the award in his favor has been commuted
on a basis of a life expectancy which is perhaps more than double
that number of years. We think that the industrial board did not
properly exercise its discretion herein, and that the award should
not be permitted to stand.
The award was reversed and the claim remitted.

orkmen ’ s

tion of

C ompensation — A ward — C ommutation — J urisdic C ourts— C onstruction of S tatute — Edwards v. Doster-

Northington Drug Co., Supreme Court of Alabama (May 27,1926), 108

150

DECISIONS OE THE COURTS

Southern Reporter, page 862.— Fannie Edwards brought a writ of cer
tiorari to have the judgment of the circuit court of Jefferson County
reviewed. Under the provisions of the workmen’s compensation act,
she had been awarded compensation for the death of her husband by
the circuit court, which the defendant offered to pay in installments,
but she demanded that the award be paid in a lump sum. The trial
court refused to accede to the plaintiff’s demand, holding that, in
the absence of an agreement between the parties, it had no jurisdic
tion to order a lump-sum payment in lieu of installments to fall due.
Section 7573 of the Code of 1923 provides for lump-sum settlements
under the workmen’s compensation act substantially as follows: The
amounts of compensation payable periodically thereunder, either by
agieement of the parties approved by the court or by decisions of
the court, may be commuted to one or more lump-sum payments,
except compensation due for death, etc. This may be commuted
only with the consent of the circuit court. Of this the circuit court
said:
The act permits commutation only when the court consents. The
use of the word “ consent” implies the presentation of an agreed
stipulation or order. It negatives the idea of * * * initiatory
action on the part of the court.
Numerous cases were cited holding in general that the act should
be liberally construed. It was insisted that the circumstances in
this case were unusual in that the plaintiff was more than 60 years
of age, infirm, and somewhat melancholy; that the weekly payments
would be suggestions of her sorrow and would serve greatly to depress
her and work harm to her physically; and that a lump-sum pa}rment
would enable her to make an investment that would be more valuable
in a financial way than periodical payments.
The supreme court, on review of the case, held that the statute
was liberally construed to effectuate its general purpose and design,
and quoted fiom the language used in the workmen’s compensation
act of New Jersey,"as being applicable here, as follows:
It is the intention of this act that the compensation payments are
in lieu of wages, and are to be received by the injured employee, or
his dependents in the same manner in which wages are ordinarily
paid.
The court concluded its opinion by saying:
The idea seems to be to provide for the continuance for a time of
the ordinary means of support and to protect the rights of depend
ents who are inexperienced in business matters and unable to pro
tect themselves. At any rate, the statute in plain language requires
that compensation in cases like this may be commuted only upon
the agreement of the parties, which agreement must have the
approval of the court. So then, whatever impression the peculiar

w o r k m e n 's COMPENSATION

151

merits of appellant’s claim for compensation may have made upon
the trial court, that court correctly ruled that it had no jurisdiction
to order a lump-sum settlement in the absence of agreement by the
defendant.
The judgment was therefore affirmed.

W orkmen ’ s C ompensation — A ward — D eath of B eneficiary —
S ubsequent and V ested R ights— Sea Gull Specialty Co. et al. v.

Snyder, Court of Appeals of Maryland (June 11, 1926), 184 Atlantic
Reporter, page 133.— The construction of the compensation law of
Maryland was involved in a case where an injured workman died as
a result of injuries after having received compensation for 87 weeks
in the sum of $1,566.
The law provides that a widow, who is the sole dependent of an
injured, employee whose death occurred within three years from the
date of his injury, shall be entitled to 66%$ per cent of his averago
weekly wages, not to exceed $18 per week nor to be less than $8 per
week, said compensation to continue for the remainder of the period
between the death of the injured employee and 416 weeks from the
date of the injury, but in no event to exceed $5,000 nor to be less
than $1,000. Following the death of the workman, his widow filed
her claim with the industrial accident commission, which ordered
that she be paid compensation at the rate of $18 per week for a pe
riod of 277|- weeks, amounting to a total of $5,000, in addition to
the usual allowances for funeral expenses. The employer and insurer
appealed from the order to the superior court of Baltimore City,
praying that the court modify the order of the commission by limit
ing the period of compensation payments to 190J weeks.
The
prayer was refused and the order appealed from affirmed. From
that decision the defendants again appealed, contending that the
$1,566 awarded and paid to the deceased in his lifetime should be
deducted from the maximum amount that might be awarded to his
widow. The court held that it was clear that the legislature created
two separate and distinct classes of persons to whom compensation
might be awarded: (1) The injured employee, and (2), in case of
his death within three years, his dependents. The court held that
the second of these classes is in no wise made dependent upon com
pensation having already been awarded to the injured party.
Judge Diggs, speaking for the court, then said in part:
After a careful examination of the entire statute, we are unable to
find language which could lead us to the conclusion that the legislative
intent was to make the limit of liability for one injury $5,000, and
require us to deduct from what under the law would otherwise be
awarded to the widow such an amount as had been paid to the injured
party before his death.

152

DECISIONS OF THE COURTS

Entertaining the views herein expressed, we find no error in the
action of the lower court in refusing the prayer of the appellants, and
the judgment must be affirmed.
In line with the foregoing is a decision by the Supreme Judicial Court of Maine
in a case in which a workman died as the result of an injury which caused total
disability, for which he had received compensation for some 15 months before
his death. The insurer contended that the payments to the deceased should be
deducted from those made the widow under the then existing limitation of $3,500
for a death benefit. The court held that the two benefits were independent and
that payments made to the employee could not be deducted from the award to the
widow, and affirmed the finding below. (Nickerson’s Case (1926), 133 Atl. 161.)
The Court of Civil Appeals of Texas held that where parents had been awarded
benefits under the compensation law of that State, the death of the father during
litigation to set aside the award did not disturb the mother's right to one-half
the benefits, and that the father had an interest which vested on his death, pass
ing in this instance to the widow by will of the deceased husband and father.
(Texas Employers’ Insurance Assn. v. McDonnell (1925), 278 S. W. 294.)
Under the law of Rhode Island, death benefits continue 300 weeks after the
date of the fatal injury. Where a widow was awarded benefits and died during
the term of 300 weeks, the award was transferred to her two dependent sons.
One of them died before the period expired, and payment as to him was termi
nated, the survivor continuing to receive the portion allotted to him on his
mother’s death. He subsequently made claim to the full portion, including the
allowance to the deceased brother. This the supreme court of the State sustained!
saying that the amount to be paid dependents was fixed by the statute, and was
the same whether they be many or one, so that the lapse of the right of one for
whatever reason would increase the amount payable to survivors during the
compensation period. (Gallagher v. United Electric Rys. Co. (1926), 134 Atl. 8.)
Where a workman suffered an injury for which compensation was awarded on
the basis of a permanent partial disability, the Supreme Court of Wisconsin held
that his death from a later compensable accident occurring during the benefit
term left to the widow a right to the unpaid portions of the disability award.
(Klug & Smith Co. v. Kreiner (1925), 206 N. W. 53.) No question of the death
benefit was involved in this proceeding, but the employer contested the widow's
claim on the ground that Kreiner had been guilty of perjury and fraudulent con
cealment of facts in applying for the disability benefit. The court held that the
question of Kreiner's disability or otherwise was not before the court, but only
the disposition under the law of the unpaid balance of the award, which properly
belonged to the widow.

W orkm en’s Compensation— Aw ard— F actory R eg u la tio n s—
V io la tio n — P e n a lty — Cream City Foundry Co. v. Industrial Com-

mission, Supreme Court oj Wisconsin (January 12, 1926), 206 North
western Reporter, page 875.— The State of Wisconsin has a law which
provides that the State industrial commission may grant 15 per cent
increase in an award where the death of an employee is proximately
caused by failure of the employer to comply with the provisions of
that law. In the instant case an award was made to the widow of
one Felix Czajkowska, who met his death while in the employ of the
Cream City Foundry Co. as a fireman, presumably from electric

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

153

shock from a brass shell socket on an electric-light extension cord
which was in his hand when his body was found. The award was
paid, and thereafter the commission found that the death of Czajkowska was proximately caused by the failure of the company to
comply with certain orders promulgated under the statute and made
an award of 15 per cent increase in the death benefit, which was
affirmed by the circuit court of Dane County. The company
appealed. Justice Owen, speaking for the supreme court, in revers
ing the judgment, said in part:
It appears without dispute that every department of the employer's
plant was equipped with a portable electric light complying in every
respect with the order under consideration. A portable electric light
was provided for the boiler room. Modlinski [the engineer] had
instructed Czajkowska that whenever he had occasion to use a port
able light, to use the one which was kept in the compressor room.
Some time prior to the date of Czajkowska's death Modlinski had
had occasion to use an electric drill requiring an extension cord of
about 30 feet. The drill had an extension cord of only 5 feet. He
rigged up a temporary cord for use on this particular job, and after
he was through using the cord he put it in a tool box and locked it
up. It appears that Czajkowska had access to this tool box and was
privileged to use tools therein contained as necessity therefor arose
m the prosecution of his duties. Having occasion to use an extension
light, he evidently took this cord from the box, attached thereto an
electric light bulb, and was using the same at the time of his death.
The cord locked in the tool box was not intended to be used in
connection with the portable light, and it is not reasonable to lay
upon an employer the duty of specifically instructing employees with
respect to every conceivable device which their ingenuity may enable
them to rig up and use for purposes for which the same is not intended.
To require the employer to negative the use of every other device is
to demand an anticipation as fertile and prolific as human ingenuity,
and lays upon the employer a well-nigh impossible burden.
The judgment was therefore reversed, and the award directed set
aside.
W orkm en's Compensation— A w ard — P e n a lty fo r Nonpay
ment— E nforcem ent— C o n stitu tio n a lity o f S ta tu te — Robinson
v. State ex rel. Taylor, Supreme Court oj Oklahoma (December 22,1925),
244 Pacific Reporter, page 44•— The Industrial Commission of Okla
homa granted an award to one Basil D. McClain for injuries received
by him on or about February 18, 1920, while employed by E. L.
Robinson. The award was affirmed on appeal to the supreme
court of the State. At the same time awards were made to Dr.
Ralph V. Smith and the Oklahoma hospital for treatment and care
of McClain in the amounts of $5.40 and $311.95, respectively. The
employer and his insurance carrier failed and refused to paj the
amounts so awarded, and on October 2, 1922, the State industrial

154

DECISIONS OF THE COURTS

commission commenced an action, in the name of the State of Okla
homa, in the district court of Tulsa County to enforce payment of
the items of the award, and for 50 per cent thereof in addition, as is
provided in section 7300 of the Compiled Statutes of 1921.
The defendants demurred to the plaintiffs petition upon the fol
lowing grounds: (1) That the court had no jurisdiction of the defend
ants or of the subject matter; (2) that the plaintiff had no legal
capacity to sue upon the subject matter; (3) that there was a defect
of parties plaintiff; (4) that several causes of action were improperly
joined; and (5) that the petition did not state facts sufficient to con
stitute a cause of action against the defendant. The demurrer was
overruled and defendants excepted and stood upon the demurrer.
From judgment for the plaintiff the defendants appealed to the
Supreme Court of Oklahoma for review. The court, after discussing
at some length the points- taken in the defendants’ demurrer, said in
part:
Since the legislature of 1923 saw fit to amend section 7300, supra
[Laws of 1923, ch. 61, see. 91, so as to entirely change the procedure
for enforcing awards of the State industrial commission, we think it
unnecessary to discuss at any great length the effect of striking down
the said section, or striking down the penalty clause therein contained,
further than to say that, without the provisions of the said section,
including the penalty clause, as the act existed prior to the amend
ment, there was no effective means of enforcing the award in a case
where the employer and insurance carrier ignored it, or refused to
comply with it.
The penalty clause was the very teeth of the act, and no doubt
went far in getting prompt compliance with the orders of the com
mission, or prompt prosecution of an original action for review. We
think that, unless the penalty clause invaded some constitutional
right of the defendants, it should be held valid.
In support of the foregoing the court cited the case of DeWitt v.
State (108 Ohio St. 513,141 N. E. 551; see Bui. No. 391, p. 434), and
numerous other cases in various States wherein the penalty provi
sions of workmen’s compensation laws have been upheld.
The opinion continued:
A study of the cases cited leads to the conclusion that the penalty
clause in section 7300, supra, did not contravene any constitutional
right of the defendants. The enforcement of the penalty clause in
a proper case constituted due process of law. Its enforcement tends
to give, rather than take from, the parties, equal protection of the
law. We unhesitatingly say that the act in its entirety, or section
7300, supra, in particular, before the amendment, was not special or
local legislation. It seems to have been most general in its character
and coextensive with the State. The penalty clause is constitutional
and valid, and should be given effect in a proper case.
The judgment of the lower court was therefore affirmed.

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

155

W orkmen ’ s C ompensation — A ward — P enalty for W illful
M isconduct of E mployer — R epresentation — C onstruction of
S tatute — Gordon v. Industrial Accident Commission, Supreme Court

oj California (September SO, 1926), 21+9 Pacific Reporter, page 849.—
A workman by the name of Findley was employed by Thomas Gor
don and others, doing business as Gordon & Harrison, to work in their
gravel pit. While in the course of his employment the bank where
he was working eavcd in on him and injured him to such an extent
that he died soon thereafter. The industrial accident commission
made an award in favor of the deceased employee’s widow and minor
children and against the insurer in the total sum of $5,000 and a fur
ther award in favor of said dependents and against the individual
members of the copartnership in a total sum of $2,500 for the willful
misconduct of a managing representative of the firm. The authority
of the commission to award additional compensation is contained in
section (b) of the Statutes of 1917, as amended by Statutes of 1919,
and Statutes of 1923, as follows:
*
* * Where the employee is injured by reason of the serious
and willful misconduct of the employer, or his managing representative,
or if the empIo}^er be a partnership, on the part of one of the partners
(or a managing representative or general superintendent thereof), or
if a corporation, on the part of an executive or managing officer or
general superintendent thereof, the amount of compensation other
wise recoverable for injury or death, as hereinafter provided, shall be
increas d one-half, any of the provisions of this act as to maximum
payments or otherwise to the contrary notwithstanding; provided,
however, that said increase of award shall in no event exceed $2,500.
The defendants, Gordon, Harrison, and Russell, brought proceed
ings to review the order of the commission. The principal objection
raised to the award was that the commission acted in excess of its
powers when it made the award of $2,500 against the individual mem
bers of the copartnership.
It appeared from the evidence that Russell, one of the partners,
had charge of the production end of the business and that a Mr. Cobb
was managing representative. Walter J. Schienle, appointed foreman
by Cobb, had complete charge of the gravel pit where Findley was
killed. The district court held that under the terms of the statute
the serious and willful misconduct of the foreman did not bind the
individual members of the firm, as he was neither managing repre
sentative nor general superintendent. It therefore annulled the
award of $2,500 and affirmed that of $5,000 (249 Pac. 844). The
case came up to the supreme court by transfer, on petition of the
commission. The court, after reviewing all phases of the case before
it, said in part:
Schienle had full charge of the work of excavating the gravel out
of the pit where the accident occurred. At times he was visited by

156

DECISIONS OF THE COURTS

both Russell and Cobb, who came to see how the work was getting
along and often gave him instructions or suggestions as to the man
ner of operation of the plant. At all other times, however, he w a s
in full charge and control of the operations, exercising his own discre
tionary powers as to the operation of the cable and the bucket
and as to the time, place, and circumstances under which the work
of blasting the rock and sides of the pit was carried on. On the
morning of the accident neither of his superior officers had been at
the pit, and Schienle had been in full charge and control of the work,
and he alone gave the orders to the workmen which resulted in the
accident. Under such circumstances, we are satisfied the evidence
fully justifies the finding of the respondent commission that Schienle
was a “ managing representative,” as that term is used in the work
men’s compensation act.
The order of the commission granting the increased award w a s
therefore affirmed.
W

orkmen ' s

ability —

C ompensation — A ward — P ermanent P artial D is
A bility to W ork— E vidence — St. Louis & 0 JFallon Coal

Co. v. Industrial Commission, Supreme Court of Illinois (April 23,
1926), 151 Northeastern Reporter, page 606.— James McManemy pro
ceeded under the workmen’s compensation act for an award for inju
ries he was alleged to have suffered while in the employ of the St. Louis
& O ’Fallon Coal Co. on October 27, 1922. He testified before the
arbitrator that on the day in question he was engaged in lifting an
electric cutting machine when the bar he was using for a lever slipped
and let the weight of the machine down suddenly upon it, and con
sequently upon his hands and arms, and caused a shooting pain in the
lower part of his back; that he went home and consulted a physician
wrho gave him first-aid treatment; that he was under treatment for
about four months; that he had his tonsils removed in August, 1923,
and seven teeth extracted in January following; and that he did not
return to work because he could not lift anything. The arbitrator
awarded him $17 per week for 250 weeks and a pension of $28.83 per
month for life.

On review by the industrial commission additional testimony was
heard. Dr. A. B. McQuillan, a specialist in orthopedic surgery, who
examined McManemy on January 23,1923, and again on September
3, 1923, testified that on the first examination he had bad teeth and
gums and bad tonsils, but that pressure disclosed no tenderness in
the spine or vertebrae and there were no muscular spasms and no
evidence of injury which would account for the pain complained of.
He exhibited X-ray pictures taken by Doctor Young, a Rontgenolo
gist, which showed that a small linear fracture of the lamina of the
fifth lumbar vertebra had perfectly healed. On cross-examination
McManemy admitted that he had worked at several physical labor
jobs subsequent to his alleged injury. On this hearing the industrial

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

157

commission set aside the award of the arbitrator and ordered the
employer to pay McManemy $17 per week for 49 weeks and there
after $7.05 for 368 weeks. The circuit court affirmed that award
and the company brought a writ of error. It was argued that the
evidence did not establish permanent partial disability, and that it
furnished no pioper or legitimate basis for the amount of the award
made by the commission. The court, on review of the evidence, said
in part:
The applicant claims that his disability is permanent. His only
complaint is that he suffers from pain in his back. No evidence of any
character other than his own testimony was adduced in his behalf.
The only expert testimony was offered by the plaintiff in error, and it
was to the effect that the small linear fracture of the lamina of the
fifth lumbar vertebra shown by the X-ray pictures had healed; that
there was no evidence of any injury to which the pain of which the
applicant complained could be ascribed; that it was not the result
of the strain, caused by the slipping of the bar, but of focal infection,
and that the pain would gradually disappear after the infection had
been removed. Moreover, on cross-examination the applicant reluc
tantly admitted that immediately prior to the hearing before the
commission he had leveled a place with a rake, had handled empty
chicken crates for a commission house, had loaded and hauled lum
ber, and had shoveled dirt, and assisted in operating an air machine
for a public utility company in laying underground cables in a street.
These employments, though brief, show that the applicant was able
to perform physical labor, and that his statement, on direct exam
ination before the commission, that he had been unable to work and
had not worked since the arbitrator's hearing is entitled to little
credence. The evidence fails to sustain applicant's claim that the
accident permanently disabled him to perform his usual and custom
ary work. Before a claimant can recover compensation he must
prove by a preponderance of competent evidence all the facts neces
sary to justify an award.
The judgment was reversed and the cause remanded to the circuit
court of St. Clair County, with directions to set aside the award and
to remand the cause to the industrial commission for a further hear
ing on any competent testimony offered by either party.
The same court, on the same day, rendered another opinion involving similar
facts and results. An employee of a coal company had been awarded benefits
a3 for permanent total disability, but subsequently took employment at which
he earned from $21 to $25 per week, as against an average of $32.22 weekly
while working for the coal company. The industrial commission held that the
disability had not decreased, and refused to modify the award made, the circuit
court sustaining this position. The supreme court of the State found that there
was a change as shown by the employment, even though at a reduced rate, and
reversed the court and commission with directions to the latter to review its
award. (Superior Coal Co. v. Industrial Commission (1926), 151 N. E. 890.)
In a case before the Court of Civil Appeals of Texas the question was raised
as to compensating permanent partial disability where the injui^d man was given
lighter employment by his employer, but at the same wages as before the injury.

158

DECISIONS OT THE COTJETS

The point was said to be a novel one in the State, and the conclusion was reached
that the law intended compensation for the injury, regardless of the amount of
wages paid on return to work. “ The fact that the injured employee may obtain
temporary employment at the same or greater wages is not conclusive that his
disability has ceased or that he is not disabled.” (Dohman v. Texas Employers’
Insurance Assn. (1926), 285 S. W. 848.)

W orkmen ’ s C ompensation— Aw ard— P ermanent P artial D is
of I mpairment — Gross v. Hudson Reade Corpo

ability — D egree

ration, Supreme Court of New York, Appellate Division ( March 3,1926),
214 New York Supplement, page 449.— This action was for a review
of an award of the State industrial commission on the ground that
it was excessive. Philip J. Gross, an employee of the Hudson Reade
Corporation, while in the course of his employment had his left hand
crushed and mangled, resulting in the amputation of the thumb at
the distal joint, almost complete loss of the use of the thumb and
index finger, partial loss of the middle finger, and impairment of the
grasping power. Doctor Doyle expressed the opinion that the inju
ries were permanent and that the loss was equivalent to the loss of
one-half of the hand. On this basis the commissioner made the
award for 50 per cent loss of the hand. The defendants appealed
from the award and contended that under section 15, subdivision 3,
of the workmen’s compensation law the award was excessive, in that
under that section there must be a loss of two or more digits or one
or more phalanges of two or more digits before an award for a pro
portionate loss of a hand can be made. The award was affirmed,
the court saying in part:

We do not think this provision describes the only condition under
which an award for a proportionate loss of use of the hand may be
allowed. It refers to cases where the injury is limited to the fingers
or thumb, and where portions thereof have been taken off by the acci
dent or by amputation. In this case the hand itself was considerably
lacerated. Not only has there been amputation of the distal phalanx
of the thumb, but there is ankylosis of joints of the thumb and in
dex finger. While the doctor does not describe particularly to what
the loss of grasping power is due, a description of the injury discloses
that it is not solely due to the loss of part of the thumb. There is
an almost complete loss of use of the thumb and of the index finger,
together with a partial loss of use of the middle finger. Section 15,
subdivision 3-s, provides:
“ Compensation for permanent partial loss or loss of use of a mem
ber may be for proportionate loss or loss of use of the member.”
The hand is a member, and there has been a partial loss of use of
the hand. The only evidence as to the percentage of loss of use is
that given by Doctor Doyle.
The award was therefore affirmed, with costs to the State indus
trial board.

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

159

W orkmen ’ s C ompensation — A ward — R elease — R e v ie w — C on
Statute — United States Casualty Co. et al. v. Smith,

struction of

Supreme Court oj Georgia (April 15, 1926), 133 Southeastern Reporter,
page 851.— C. L. Smith, while in the course of his employment, suf
fered burns on the back of his neck by steam and was poisoned by
ammonia gas. He made a claim for compensation for temporary
total disability, and while his claim was pending he entered into a
written agreement with his employer whereby the employer was to
pay him $12 per week beginning September 5, 1921, and to continue
such payments during his disabilit}^. The agreement was in accord
ance with the compensation law. There was a further stipulation
that such other amounts as might be determined from the nature,
extent, and result of the injury therein described would be paid. On
December 29, 1921, the employee signed a settlement receipt, which
was approved by the commission. On August 18, 1923, he applied
to the commission to review its former award and to grant him addi
tional compensation for the loss of an arm which was amputated on
July 4, 1922, and which he alleged was brought about by the disease
of blastomycosis caused by a vegetable germ entering his body
through a break in the skin due to the burns. A review of the case
was opposed by the employer and the insurer, who set up as a defense
the release signed by the employee. They also contended that a
review was barred by section 25 of the workmen's compensation act.

The commission on review found for the employee, and its finding
was affirmed by the court of appeals. The employer and insurer
brought certiorari for a review of the order of the commission and
the judgment of the appellate court.
Section 25 of the act relied upon by the defendants declares that—
The right to compensation under this act shall be forever barred,
unless a claim be filed with the industrial commission within one
year after the accident and if death results from the accident, unless
a claim therefor is filed with the commission within one year thereafter.
The court of appeals in its opinion held that a proceeding for review
brought by an employee to review an award or settlement under
section 45 of that act was not limited by section 25.

Section 45 of the act provides that—
Upon its own motion before judicial determination or upon the
application of any party in interest on the ground of a change in
condition, the industrial commission may at any time review any
award or any settlement made between the parties and filed with the
commission, and, on such review, may make an award ending,
diminishing, or increasing the compensation previously awarded or
agreed upon, subject to the maximum or minimum provided in this
act. * * * No such review shall affect such award as regards
any moneys paid.

160

DECISIONS OF THE COURTS

The court in affirming the judgment of the court of appeals said
in part:
Section 45 of this act expressly provides for compensation in a case
where there has been a change in the condition of the employee, and
this necessarily extends the jurisdiction of the commission to review
a settlement agreement or its original award. In the settlement
agreement between the employer and the employee the parties agreed
to receive and to pay compensation and such other amounts as might
be determined to be due the employees by the nature, extent, duration,
and result of the injury described in the original claim, and this
agreement was approved by the commission and merged in its award.
In reviewing its original award the commission was proceeding strictly
in compliance with the lines left open by express reservation in the
original award.
In concluding its opinion the court said:
The question which has given us most trouble is whether the above
finding of the court of appeals is supported by the evidence. The
commissioner, the full commission, the judge of the superior Court,
and the court of appeals have all found that there was evidence
authorizing the finding that the employee suffered from blastomycosis,
which resulted naturally and unavoidably from the original injury
sustained by the employee, and after a careful examination of the
evidence we cannot say that this finding of these tribunals, who are
specially charged by law with the ascertainment of the facts in cases
of this kind, is wholly without evidence to support it.
The judgment was therefore affirmed.
Where a workman fell, suffering injuries for which he signed a release for tha
sum of $120, but afterward developed serious disability from the same cause,
an award was affirmed by the Supreme Court of Kansas, the court saying: “ The
evidence is ample to show a mutual mistake by plaintiff and physicians of the
defendant, and it is not contended but that $120 was a grossly inadequate amount
for such an injury.” (Brown v. Kansas Buff Brick & Mfg. Co. (1926), 243 Pac.
304.)
W

orkmen’s

C o m p e n s a t io n — A

w ard—

R e m a r r ia g e

id o w —

Gulf States Steel Go. v . Witherspoon,
Supreme Court of Alabama (May 27, 1926), 108 Southern Reporter,
page 573.— Cornelia W ith ersp o o n brought an action under the w ork
E ffect

o id

a r r ia g e —

m e n ’s com pensation act of the S ta te in the circuit court o f Jefferson
C o u n ty , and

recovered

ju dgm en t for the death of her hu sban d.

F ro m th at ju d gm en t the defendants brought certiorari to h av e the
proceedings reviewed b y the Suprem e C ou rt of A la b a m a .

I t was

alleged b y the defendants th at since the award to the plaintiff she
h ad m arried one R o w e, and th at under section
com p ensation should cease.

7564 o f the code her

T h e court on review of the case found

th a t her marriage to R o w e was void because he was under disability
to con tract m arriage, and th at her relation w ith h im had been dis
continued.

It held th at as she had no one on w h om she could

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

161

lawfully depend for support, the decree to continue in the receipt of
the compensation allowed by the court was proper.
The judgment was therefore affirmed.
W orkmen ’ s C ompensation — A ward — R emarriage of W idow —
E ffect on R ight of C hild — Sumner SoUiit Co. v. Sheely, Appellate

Court of Indiana (November 18, 1926), 153 Northeastern Reporter,
pa,ge 894.— Guy Sheely died July 6, 1920, as the result of an injury
received while in the employ of the Sumner Sollit Co. He was sur
vived by a wife and a daughter under 18 years of age.
Mrs. Sheely in her individual capacity and as guardian and the
employer entered into an agreement whereby it was agreed that the
widow and daughter should each receive $6.60 per week during
dependency, not to exceed 300 weeks. This agreement was approved
by the industrial board. On July 20,1921, the widow remarried,
and soon thereafter the board ordered that payments to her cease.
The employer thereafter continued to pay compensation at the rate
of $6.60 to the minor child. In July, 1925, and before the minor
ch id reached the age of 18, her guardian filed an application with
the industrial board asking that the defendant be ordered to pay the
whole of the $13.20 per week to the said child from and after the
date when the mother remarried. The application was opposed by
the defendant. It set up the fact that no appeal was taken from
the order of the board terminating the award to the widow, and
alleged that the present application was barred by the time limita
tion fixed in the workmen’s compensation act. (Burns’ Ann. St.
1926, secs. 9446-9524.)
The board ordered the defendant to pay compensation to the
guardian of the minor child at the rate of $13.20 per week from and
after the marriage of the mother until the child became 18, credit
to be given for the $6.60 theretofore paid. Defendant appealed.
The court, in affirming the award, said in part:
Neither the guardian nor the minor child was before the industrial
board when the order was made terminating payment of compensation
to the widow. That order was a matter affecting the widow in her
individual capacity. Neither the guardian nor the minor child was re
quired to appeal, from the order terminating payment of compensation
to the widow, in order not to release appellants from their liability to
pay the whole of the compensation to such child. Neither were they
required to file an application for a modification of the order within
a j^ear from the marriage of the widow. The fact that a guardian
had been appointed for the minor did not affect the right of the child
to have the whole of the compensation paid to her under the applica
tion filed herein by the guardian.
Another phase of the question of the rights of beneficiaries remaining; after the
marriage of the widow arose under the law of New York, passed upon by the
supreme court, appellate division. The compensation law of New York gives

162

DECISIONS OF THE COTJBTS

to a, widow on remarriage a lump sum equal to two years’ benefits. Payment
of this allowance was made, her allowance being 30 per cent of her deceased hus
band’s earnings. Two children were then allowed 15 per cent each, and a depend
ent mother 25 per cent, making a total of 85 per cent. This award was protested
as exceeding the 661 per cent maximum fixed by the law. The award was
reversed, the computation of benefits being reduced for the two years affected by
the widow’s lump-sum payment, the mother receiving but 6| per cent, her rights
being subsequent to those of the widow and children. (Ziegler v. Pictorial Review
Co. (1926), 215 N. Y. Supp. 513.)
W

o r k m en ’s

n e s s of

C o m p e n s a t io n — A w a r d — R

e v ie w

— C o n c l u s iv e -

C o m m is s io n ’ s F in d in g s — C o n s t it u t io n a l it y

St a tu te

— Booth Fisheries Co. v . Industrial Commission of Wisconsin, United
States Supreme Court (May 24, 1926), 46 Supreme Court Reporter, page
491 .— T h e Industrial C om m ission of W isconsin m ade an award to
M a r y M c L a u g h lin for the death of her husband, alleged to h ave been
due to personal injuries sustained while in the em ploy of the B o o th
Fisheries C o .

O n appeal, both the circuit and the supreme court of

the State affirmed the findings of the com m ission.

T h e case cam e

up to the Supreme C ou rt of the U n ited States on the con stitu tion ality
of the w orkm en’s com pensation act of W iscon sin in its lim itation o f
the judicial review of the findings of fa ct of the industrial com m ission
to cases in which the findings of fact b y the com m ission do n ot sup
port the order or award.

T h e plaintiff in error contended th at under

the act he was entitled under the fourteenth am endm ent to su bm it
to a court the question of the preponderance of evidence on the issues
raised.

M r . C hief Justice T a ft , who delivered the opinion of the

court, said in p a r t:

A complete answer to this claim is found in the elective or voluntary
character of the Wisconsin compensation act. That act provides that
every employer who has elected to do so shall become subject to the
act, that such election shall be made by filing a written statement
with the commission, which shall subject him to the terms of the law
for a year until July 1st following and to successive terms of one year
unless he withdraws. If the employer elects not to accept the pro
visions of the compensation act, he is not bound to respond in a pro
ceeding before the industrial commission under the act, but may
await a suit for damages for injuries or wrongful death by the person
claiming recovery therefor, and make his defense at law before a
court in which the issues of fact and law are to be tried by jury. In
view of such an opportunity for choice, the employer who elects to
accept the law may not complain that in the plan for assessing the
employer’s compensation for injury sustained, there is no particular
form of judicial review. This is ciearly settled by the decision of this
court in Hawkins v. Bleakly (243 U. S. 210, 216,37 Sup. Ct. 255 [Bui.
No. 224, p. 243]).
Plaintiff in error relied chiefly on the case of Ohio Valley Water
Co. v. Ben Avon Borough (253 U. S. 287, 40 Sup. Ct. 257). The
coifrt stated the facts in that case and the opinion continued:

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

163

But in that case the water company was denied opportunity to
resort to a court to test the question of the confiscatory character of
its rates and of its right to earn an adequate income. Here the
employer was given an election to defend against a full court proceed
ing but accepted the alternative of the compensation act.

The judgment was therefore affirmed.

W orkmen ’ s C ompensation — A ward — R ev ie w — Jurisdiction of
C ommission— R es J udicata— Mum v. Lutes-Sinclair Co., Supreme

Court of Michigan (October 4, 1926), 210 Northwestern Reporter, page
251.— Philip Klum, a carpenter employed by the Lutes-Sinclair Co.,
was seriously injured by a fall on October 12, 1918. The commis
sioner awarded him compensation for temporary total disability for a
period of 45 weeks and 4 days. He thereafter filed a petition for
further compensation, and an award was made granting him payment
for partial disability at the rate of $5 per week from August 28, 1919,
to July 4, 1924. On October 31, 1924, he petitioned for additional
compensation, alleging that his disability had become total. The
commissioner found that theie had been a change for the worse in
the plantiff’s condition and awarded him compensation for total
disabilty from July 18, 1924, “ the end of 300 weeks,” at the rate of
$10 per week during a period not to exceed the limit fixed by statute
(500 weeks).
The defendants brought certiorari. Their claim was that the com
mission was without jurisdiction to award compensation beyond the
expiration of the 300 weeks awarded by a previous order not appealed
from and therefore res judicata; that there was no testimony to
support the finding of the commission that the plaintiff had on July
18, 1924, been totally disabled as a result of the accident, and that
the evidence did not support its finding that there was a physical
change in the plantifFs condition for the worse since that date.
The award was affirmed by the court, which, speaking through
Judge Steere, said in part:
Conceding that the deputy commissioner’s unappealed-from order
of July 14, 1923, was res judicata as to all the essentials leading up
to that award, plaintiff’s physical condition yet remained open to
subsequent inquiry under the provisions of the act (2 Comp. Laws
1915, sec. 5467) authorizing the industrial accident board (now com
mission of the department of labor and industry) on application of
either party to review any weekly payment, “ and on such review it
may be ended, diminished, or increased, subject to the maximum and
minimum amounts above provided, if the board finds that the facts
warrant such action.”
As heretofore more than once pointed out by this court, at a hearing
by the commission of a petition for review of an award under section
5467, all essentials leading up to that award are to be taken as res
42335°— 27------ 12

164

DECISIONS OF THE COURTS

judicata, except the physical condition of the injured petitioner
imputable to the accident. If there is no competent proof that ifc
has changed since the award, the commission is powerless to act.
If there is evidence of a change either for better or worse, the com
mission may then increase, decrease, or end the award as it finds the
facts to be. This court can only review and reverse its findings of
fact if the record is destitute of any evidence to support them.
The res judicata award of July 14, 1923, found plantiff but par
tially incapacitated, and fixed his compensation accordingly to the
exclusion of further inquiry up to that time. The commission in this
inquiry had ample evidence of a change from that condition and to
support its finding of total incapacity traceable to the accident.

W orkm en's Compensation— Aw ard— Temporary T o t a l D isa
b ility — Perm anent P a r tia l D isa b ility — Texas Employers’ Ins.
Assn. v. Morenoy Commission of Appeals of Texas (November 4 , 1925),
277 Southwestern Reporter, page
— Bartelo Moreno received an
injury in an accident arising out of his employment. He presented
a claim to the industrial accident board, but, being dissatisfied with
the award, filed a suit to set it aside and recover adequate judgment.
The district court awarded the plaintiff a judgment for the lump-sum
value of 200 weeks at $8.65 and a like value of 200 weeks at $4.32 a
week. The jury found that Moreno was totally disabled for 200
weeks and that he suffered a permanent 50 per cent disability in the
use of his arm.
The court of civil appeals, upon appeal, reformed
the judgment and provided that Moreno should recover “ compen
sation for 200 weeks at $8.65 a week and for 200 weeks thereafter at
the rate of $4.32 a week.”
Against this change in the judgment
Moreno did not complain.
The insurance association, however,
applied for a writ of error and obtained it upon the statement that
the sole basis for the verdict of the jury was an injury to Moreno's
arm, and that the court had allowed a larger recovery for a partial
injury than the employee could have recovered for the complete loss
of his arm.

The commission of appeals on reviewing the record observed that
the findings of fact of the district court and the court of civil appeals
as to the conflicting testimony were binding upon the supreme court.
If there be any evidence to sustain the finding, the function of the
jury is to decide the facts and the supreme court will not overrule its
finding.
Judge Powell, speaking for the commission of appeals, said:
The main purpose of legislation of this kind is to compensate a
man while unable to work. Sections 10 and 11 were written for that
purpose. But certain injuries were so serious and their permanency
so easily established that the lawmakers decided to allow definite
recovery for those injuries, regardless of other circumstances. At

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

165

the same time they clearly showed their intention not to permit that
action to deprive an employee of his rights under sections 10 and 11.
We have a judgment under section 10 for 200 weeks because of
total inability to work, due to other injuries. Then we have also a
recovery for 200 weeks under the last paragraph of section 12 for
partial loss of usefulness of the arm. Under the verdict of the jury
this latter recovery could have been for 300 weeks instead of 200
weeks. But the court evidently limited it to 200 weeks so that the
entire recovery for both kinds of incapacity would not be more than
401 weeks, as provided at the end of section 11.
We think this recovery proper and within the statute. There has
been no effort here to recover for partial incapacity for work under sec
tion 11. It is not necessary for us to decide whether or not one could
recover under that section and also for partial incapacity under the
last paragraph of section 12. But we think they could not.
Section 10 of the employers’ liability act provides compensation
for total disability resulting from injuries not specified in section 12,
which provides compensation for specific injuries, and it was held by
the commission of appeals that allowance of compensation under sec
tion 10, and not specified in section 12, did not preclude an allowance
under the last section for the partial incapacity due to partial loss of
usefulness of the arm. Section 12 contains no provision that recov
ery should be “ in lieu o f” any other recovery. Under this construc
tion of the act, it was thought that no double recovery was^anywhere
allowed.
It was recommended that the judgment of the court of civil appeals
be affirmed and the judgment was so affirmed and entered by the
supreme court.
The construction of the compensation act of Tennessee was before the supreme
court of that State in respect to quite a similar case. Here, a workman suffered
injuries to his leg and ankle, causing total disability, followed by permanent par
tial disability. From an award for the two successive injuries the employer
appealed, but the court sustained the award, saying that the injuries were not
concurrent, though having a common cause, “ at first total and reduced through
healing to a permanent partial disability/’ for which distinct provisions are made
by the statute. An award of $12 per week for 36 weeks, followed by one for
$3.90 for 139 weeks was therefore affirmed. (Cherokee Sand Co. v. Green (1925),
277 S. W. 905.)

W orkmen’s Compensation—A ward—U ncoordinated V ision—
Loss of Sight— Suggs v. Ternstedt Mfg. Co., Supreme Court of Mich
igan (December 22, 1925), 206 Northwestern Reporter, page 490.—
Andrew Suggs was employed by the Ternstedt Manufacturing Co.,
and while in the course of his employment received an injury to his

right eye which resulted in reducing its vision to one-sixtieth of the
former power, though with lenses the injured eye was normal as to
visual capacity, but would not coordinate with the uninjured eye.
Doctor Campbell, an eye specialist, stated that the vision of the eye

166

DECISIONS OP THE COURTS

could not be utilized in correlation with the uninjured eye and that
industrially he had lost the vision of it. An award for the loss of an
eye was granted by the commission, and the defendant brought cer
tiorari to have the facts reviewed. In affirming the action of the
commission, the court cited decisions of the Illinois and New York
courts, and concluded:
The weight of authority sustains the findings of the commission,
and we are persuaded that the reasoning of the majority cases is
fundamentally sound.
Quite similar circumstances were involved in a case before the Superior Court
of Delaware in which the workman lost 80 per cent of the vision of an eye, but
with the use of a corrective lens only 10 per cent was found to be lost.
From an award for the 80 per cent loss the employer appealed. The court held
that the matter to be compensated for was the loss of -vision due to the injury
which it declared to be 80 per cent. The use of mechanisms might “ allow a
member to function with entire normality, yet it can not obliterate the effect of
the accident causing the injury.” (Alessandro Petrillo Co. v. Marioni (1925),
131 Atl. 164.)
Another aspect of the question of loss of vision was before the Supreme Judicial
Court of Maine in a case in which there was a destruction of all effective vision
in an eye that had been, prior to the injury, but 64 per cent normal. From an
award as for the loss of an eye the insurance carrier appealed, the appeal result
ing in a finding that the workman had lost a serviceable member, even though
impaired, and that he was entitled to compensation as awarded by the commis
sion. (Borello’s Case (1926), 134 Atl. 374.)

W o r k m e n ’s
op

I n d u s tr ia l

C o m p e n s a tio n — A ward
A c c id e n t

B oard— A ccord

M i n o r — J urisdiction
and

S a tis fa c tio n —

Keller v .
Texas Employers1 Ins. Assn., Court oj Civil Appeals of Texas (Jan
uary 12, 1926), 279 Southwestern Reporter, page 1113.— J. M . K eller,
a m inor, aged 19, while em ployed b y the R iv e r Oil C o . on or abou t
June 14, 1922, received an injury to his right leg which necessitated
S u it

F a th e r — C o n s titu tio n a lity

its am pu tation .

S ta tu te —

L ia b ility w as adm itted b y the insurance carrier.

was agreed b y and betw een K eller and the insurance carrier th at
it would p a y him in a lu m p sum in full settlem en t of his claim

$1,789.73, which was approved b y the industrial accident
5246-31, C om piled Texas Statu tes,
The m on ey w as paid and receipted for. No notice was

the sum of

board under auth ority of article

1920.

g iven b y K eller nor b y anyone acting for him th at he w ould n ot abide
b y the award and the decree of the board, nor was there any suit
brough t to set same aside; neither was there a n y m o tio n m ade to
the board for a review o f the order or to reopen the sam e for any

The settlem en t w as approved October 10, 1922, and on
27,1923, R. O. Keller, father of J. M . Keller, filed suit as next
friend of J. M . Keller, to recover the sum awarded to J. M . Keller
purpose.

June

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

167

by the board together with 12 per Gent penalty and attorneys’ fees
in the sum of $500. He alleged that the defendant had not paid the
amount of the award to any person authorized by law to receive it.
There was judgment for the defendant and the plaintiff brought
error. It was contended that the industrial accident board was
without power to authorize a settlement of compensation due Keller
by authorizing the money to be paid direct to him, and therefore the
payment of compensation as made did not discharge the obligation
of the insurance company, and that such action on the part of the
board was in violation of article 3, section 56, of the constitution,
forbidding the legislature to pass any special law affecting the estates
of minors, etc., and article 5, section 16, providing what courts shall
have jurisdiction of such estates.
The court, in affirming the judgment of the lower court, said in
part:
While the industrial board is not a court, yet it is an adminis
trative board, created by the State to administer the workmen’s
compensation act in the first instance, and is clothed with all neces
sary powers to hear and determine the matters coming before it;
therefore it has authority to investigate matters for determination
and has jurisdiction over the persons and subject matter involved.
Its decrees are in the nature of judgments, and therefore the board,
in the investigations and decisions it is called upon to make, exer
cises both administrative and judicial functions. This being true,
its orders and judgments, when not appealed from, or rather which
have not been set aside in the maimer provided in said act (art. 8307,
sec. 5, Revised Civil Statutes, 1925, old art. 5246-44), become final
and binding upon all parties thereto, and can not be collaterally
attacked.
We do not think that plaintiff in error’s contention in either instance
should be sustained. (1) The statute (art. 8306, par. 13, Revised Civil
Statutes, 1925, old art. 5246-31) is in no sense a special law. Tech
nically, a special law is a law which applies to an individual or
individuals, or to some individuals of a class, and not to all of a class.
The statute in question relates to a class of persons, minors, and
not to individuals of that class. (2) The statute (art. 5235-31)
was not enacted for the purpose of affecting the estates of minors
in the sense in which they are mentioned in article 5, section 16, of
the constitution, but was enacted for the purpose of giving minors en
titled to compensation under the law the right, by and with the
approval of the industrial accident board, to receive directly the com
pensation due them for an injury, and therefore is not in conflict with
section 16 of article 5 of the constitution. The award of compensa
tion to the minor, J. M . Keller, and its payment made to him direct,
under authority and sanction of the board, was not a probate proceed
ing, nor the transaction of any business growing out of an administra
tion of his estate, within the meaning of article 5, section 16, of the
constitution.
The judgment of the court below was accordingly affirmed.

168

DECISIONS OP THE COURTS

W orkmen’s Compensation—Casual E mployment—Average
W eekly W age— Flynn v. Carson et al., Supreme Court of Idaho
(February 2,1926), 243 Pacific Reporter, page 818.— Dorothy Flynn
proceeded under the workmen’s compensation law of Idaho for com
pensation on account of the death of her husband, who was killed Feb
ruary 2,1924, while in the employ of the defendants, who operated a
motor-bus line from Mullan to Wallace. The evidence showed that
the deceased had been employed by the defendants as a regular driver
of their busses up to and including January 27, 1924, and from that
date until his death he was employed by them as an extra driver to
make one or more trips each week, for which he was paid $1 per round
trip. At the time he was killed he was on his way from Mullan
to Wallace to bring back a bus for the defendants, when the one he
was riding on left the road and he was instantly killed. The indus
trial accident board found that the average weekly wage of the
deceased was $35, and awarded the plaintiff $12 per w~eek for herself
and infant daughter for a period of 400 weeks, with a proviso that
should she remarry or die during such period the daughter should be
entitled to 25 per cent of the average weekly earnings of the deceased,
the sum of $8.75 per week, until she reached the age of 18 years.
The defendants appealed. Of the several assignments of error, only
two are considered here: (1) It was contended that the employment
of the deceased was casual and therefore excepted from the workmen’s
compensation law; and (2) that the evidence was insufficient to sus
tain the findings that the deceased’s average wage was $35 per week or
anything in excess of $1 per week.
The court, in granting a rehearing of the cause, said in part:
Appellants in their brief confuse the statute when they say that the
exclusion is of those “ who are casually employed.” The exclusion is
of the “ casual employment,” not necessarily the casual “ employee” ;
not those “ persons” but those “ employments” are necessarily
excluded which are “ casual.” C. S., sections 6213, 6216, 6217, 6221,
and 6225, may be paraphrased thus: If a workman receives personal
injury by accident arising out of and in the course of any employment
in a trade or occupation which is carried on by the employer for the
sake of pecuniary gain, and such employment is not casual employ
ment, his employer or the surety shall pay compensation. C. S.,
section 6216, does not exclude persons, but employments.
The board was in error in its finding that the average weekly wages
or earnings of the deceased during the year next preceding the injury
were $35 per week. There is no proof of what his earnings were,
with the exception that, for the time between December 16 and January 27 his pay seems to have been evidenced in two $50 checks.
Counsel for respondent are in error when they contend that the claim
ant pleaded, and appellants admitted, that her deceased husband was
earning $150 per month. The pleading was that he earned, from
December 16 to February 2, $150, which was not proven.

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

169

It might not be grievous error if the award were simply $12 per
week to the widow, on a basis of the maximum under C. S., section
6228; but the award goes further, and in case of the death or mar
riage of the widow, allows the infant child 25 per cent of a weekly wage
of $35, $8.75, until she arrives at the age of 18 years. This, a sub
stantial part of the award which might become vital and material, is
based upon the wrong premise. What limited accounts of the defend
ant employers are in evidence show that neither the deceased nor
regular or special drivers worked from December 16 on every day,
which would be necessary to show an earning of $35 a week at $5 a
day. In fact, $35 a week was the maximum that could have been
earned, and to average this for a year the deceased would have had
to work every day, which the proof discloses he did not, nor did others,
either extra or regular drivers.
The judgment was reversed, and the cause remanded to the district
court with directions to remit the cause to the industrial accident
board for further proceedings to ascertain and determine the average
weekly wages of deceased and enter an award accordingly. No costs
were allowed.
W o r k m e n ’s C o m p e n s a tio n — C a s u a l E m p lo y m e n t— C o u r s e of
of
In su ra n ce
P o l i c y — Oilmen’s
Reciprocal Assn. v . Gilleland, Court of Civil Appeals of Texas (April
21, 1926), 285 Southwestern Reporter, page 648.— E d G illeland was
em ployed b y the C ity L a u n d ry C o . of W ich ita Falls Tex., to wall
w ith brick a pit 16 feet deep, which it intended to use in supplying
w ater to its laundry plan t, and on D ecem ber 23, 1924, while he was

E m p lo y m e n t— C o n s t r u c t i o n

so engaged, the side of the pit caved in, causing his im m ediate death.
H js father m ade application to the industrial accident board for com
pensation, which was denied.

Appeal was taken to the district court

o f W ich ita C o u n ty , where ju dgm en t was rendered for the plaintiff a t
the rate of

$20 per week for 360 weeks, and the insurer appealed.

was contended th a t the deceased was n ot an em ployee w ithin the
m eaning of the law governing w orkm en's com pensation cases.

This defines an employee in part as follows:
“ Employee” shall mean every person in the service of another
under any contract of hire, express or implied, oral or written, * * *
except one whose employment is not in the usual course of trade,
business, profession or occupation of his employer.
It appeared that the company held a policy of insurance insuring
and indemnifying it against liability for injuries to its employees
arising in the course of their employment.
The judgment of the district court was affirmed, the court speak
ing of the terms of the policy saying in part:
It will be observed that the terms of the policy did not limit the
liability of the appellant to injuries suffered by an employee while
he was working “ in the usual course of trade, business, profession or

170

DECISIONS OF THE COURTS

occupation of his employer,” as is provided by the statute, but the
liability arises under its terms if the injured party is an employee of
the assured and is injured in the course of the workmen’s employment.
The condition of the policy as set out in the above quotation from
the statement of facts extends the liability of the insurer beyond that
contemplated by the statute. The general rule seems to be that the
subscriber and the insurer are not permitted to enter into such a
contract of indemnity as will restrict the rights of an employee as
they are declared by the compensation act. (In re Cox, 225 Mass.
220, 114 N. E. 281; see Bui. No. 224, p. 266.) But there is nothing
in the Texas statute which forbids the indemnity company and the
subscriber from broadening the scope of the contract so as to cover
liabilities and parties not w'ithin the compensation act of Texas.
Since the terms of the policy clearly included all employees while
in the performance of their duties without regard to whether they
were employed in the usual course of the company’s business, we
deem it unnecessary to discuss the phase of the case presented by
the statute.1
Quite similar circumstances, so far as the nature of the work was concerned,
were involved in a case before the Appellate Court of Indiana, in which the
claimant was engaged in constructing a toilet at a public garage. Over the rep
resentation by the employers that the work was casual within the meaning of
that term as used in the law of Indiana, the industrial board allowed compensa
tion, which action the court affirmed. Inasmuch as the toilet was for the use of
the employer’s employees and customers, and was reasonably necessary in the
operation of a public garage, the employment was properly held to be in* the
“ usual course” of the employer’s, business as the law intended. (Wagner et al.
v. Wcoley (1926), 152 N. E. 856.)
In a case decided by the Supreme Court of Wyoming the question was raised
as to the status of a single act as constituting an occupation or business, as well
as the nature of the employment. One Ocenas, a plasterer and mason, agreed to
move a building under contract, and employed Frank Karos to assist. In the
performance of the work Karos was injured and sought compensation.
Ocenas contended that the single act did not constitute an occupation but
the courts held that the work was undertaken for gain, was an independent
undertaking, not incidental to some other business, and that the employer was
therefore under the act. Even if the employee’s services were casual, they were
none the less for the purpose of the employer’s trade or business, which sufficed
to give the law control of the case. The award was accordingly affirmed.
(Karos v. Ocenas (1926), 243 Pac. 593.)

W o r k m e n ’s C o m p e n s a tio n — C a s u a l E m p lo y m e n t— L o a n e d

— Lecker v. Valentine et al., Supreme Court of Pennsylvania
(May 26, 1926), 133 Atlantic Reporter, page 792.— Louis Lecker was
a regular employee of Stanley M . Stader. T. J. Valentine had a con
tract to excavate* for a foundation. He was using a piece of machin
ery called a “ crab,” which Stader wished to borrow. He agreed to
furnish Valentine with a man and a horse to take its place and trans
ferred Lecker to Valentine. Lecker while working for Valentine,
p lo y e e

»Judgment reversed and compensation denied: Same case (1S27), 291 S. W. 197.

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

171

sustained an injury and brought a claim against both Stader and
Valentine. The referee made an award against the latter, finding
that—
Louis Lecker was injured on July 25, 1923, while at work in the
employ of T. J. Valentine. * * * Stanley M . Stader * * *
hired the claimant * * * and loaned him to defendant [Valen
tine]. * * * The claimant was placed upon the pay roll of
* * * Stader, [but] his work was under the direct control of the
defendant [Valentine], and at the time of the accident he was fur
thering the business and affairs of the said defendant.
Valentine appealed from the finding to the compensation board on
the ground that under the terms of the employment the relation of
employer and employee did not exist between the claimant and him
self. The board reversed the finding of the referee and made an
award against Stader. On appeal to the court of common pleas the
finding of the board was reversed and the award against Valentine
reinstated. From that judgment the State workmen’s insurance
fund appealed to the Supreme Court of Pennsylvania.
The court in affirming the judgment of the lower court quoted
with approval from the opinion in the case of Tarr v. Heela Coal &
Coke Co. (265 Pa. 519, 522, 109 Atl. 224, 225; see Bui. No. 290,
p. 322), as follows:
A master may loan his servant, with the latter’s consent, to
another under such circumstances as to create for the time a new
relation of master and servant; the regular servant of one may thus
for the time being become the special servant of another, and that
was done here. “ Where one person lends his servant to another for
a particular employment, the servant, for anything done in that
particular employment, must be dealt with as a servant of the man
to whom he is lent, although he remains the general servant of the
person who lent him. The test is whether, in the particular service
which he is engaged to perform, he continued subject to the direction
and control of his master, or becomes subject to that of the party
to whom he is lent or hired.”
The court held that in the. instant case the law was correctly
applied by the referee, and since the court below had properly sus
tained the award, it was not necessary for it to review the theory on
which that tribunal acted.
The judgment was therefore affirmed.
The same court sustained an award on the authority of the Tarr case, above
cited, where the private chauffeur of the president of a corporation was at times
called on to assist in the business of his employer’s establishment. On an occa
sion of such service the employee was fatally injured and the workmen’s com
pensation board allowed the widow’s claim against the company. The company
appealed, claiming that the decedent was the employee of the president indi
vidually and that the company was not liable as an employer.
The court overruled this contention, holding that there was evidence of tem
porary employment by the company, although there was at the same time a
general employment by the president. The law defining an employee as one

172

DECISIONS OF THE COURTS

who performs services for another “ for a valuable consideration** does not
specify who shall pay such consideration; “ and its language is not to be con
strued as conditioning liability to meet a claim for compensation on payment of
wages by the person against whom the claim is made, or on the existence of an
obligation to so pay wages.” (Atherholt v. William Stoddart Co. (1926), 133
Atl. 504.)
Conversely to the foregoing, the Supreme Court of Minnesota found a corpo
ration liable for the death of its employee who was directed by the president of
the employing corporation to go to his farm and dig up a number of cedar trees
for an undesignated purpose.
The injured man had frequently gone to the
president’s farm for other purposes,, and the court found no evidence that the
deceased had any reason to believe that the farm was not operated as a part of
the business of the corporation. A referee had found the president individually
liable and made an award.
The latter appealed to the board, which reversed
this finding and dismissed the claim on the ground that the employment in
which deceased met his death was not covered by the act. The supreme court,
on review, admitted that, in the absence of election and notice, a farm laborer
would be outside the act; but in view of the circumstances in the case, there
was an apparent compliance with the orders of the person to whom he had been
accustomed to render service, and in whose customary employment he was under
the compensation act. The case was remanded to the commission with direc
tions to make the proper award against the employing corporation and not
against the president as an individual, since the orders obeyed had been those
of the usual director of the workman’s actions. (O’Rourke v. Percy Vittum Co.
et al. (1926), 207 N. W. 636.)

W orkmen ' s C ompensation — C l a im — L im itation — D eath of
B eneficiary — R ights of D ependents — Moss v. Standridge,

Supreme Court of Alabama (June 17, 1926), 110 Southern Reporter,
page 17.— Jane Standridge filed a claim in the circuit court of Jeffer
son County for compensation on account of the death of her husband,
who died on March 25, 1925, as the result of injuries he received on
January 12, 1921, while in the employ of C. L. Moss and G. B.
McCormack. He was paid all compensation due him from the date
of his injury to and including the date of his death. The facts in the
case were undisputed, and upon a hearing thereof the court granted
a decree allowing the petitioner compensation, deducting therefrom
the amounts theretofore paid to the deceased. The defendants
petitioned the supreme court for a writ of certiorari to review the
judgment and finding of the circuit court. Their claim was that
the plaintiff was barred in her action by the provisions of section
7554, Code of 1923. That portion of said section relied upon reads
as follows:
In death cases, where the death results proximately from the
accident within three years, compensation payable to dependents
shall be computed on the following basis, and shall be paid to the
persons entitled thereto without administration.

173

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

The court cited section 7570 of the Code of 1923 which deals spe
cifically with the question of limitations, and quoted that portion
which is heie pertinent:
In case of death, all claims for compensation shall be forever
barred unless within one year after death, when the death results
proximately from the accident within three years, the parties shall
have agreed upon the compensation under articles 1 and 2 of this
chapter, or unless within one year after such death one of the par
ties shall have filed a verified complaint, as provided in section 7578
hereof. Where, however, payments of compensation have been
made in any case, said limitations shall not take effect until the
expiration of one year from the time of making the last payment.
Judge Gardner, who delivered the opinion of the court, then said
in part:
Here payment of compensation had been made to the employee
extending over a period of more than three years, and continuing to
the time of his death. The above-cited statute expressly states that,
when payments of compensation have been made in any case, the
limitations referred to shall not take effect until the expiration of
one year from the time of making the last payment. The words
“ any case” refer to cases of death, as well as those in which the in
juries do not prove fatal.
Therefore the statute has provided that in such cases, where pay
ments of compensation have been made and liability thus acknowl
edged, the further period of one year from the last payment is pro
vided. Nor does this work any injustice to the employer as, under
subdivision ( j ) of section 7551, Code of 1923, all payments made to
the employee, while disabled, are to be deducted from the compen
sation due on account of his death which was done in the instant
case.
The writ was therefore denied and the judgment affirmed.

W o r k m e n 's

C o m p e n s a t io n — C la im — L i m i t a t i o n — D i s e a s e — ■

Campbell v . Industrial Commission oj Ohio, Court oj Appeals oj Ohio
(June 7, 1926), 153 Northeastern Reporter, page 276 .— W illia m A .
C am p b ell, who h ad been em ployed b y the A llis C halm ers M a n u fa c

15 years prior to A pril
12, 1922, m ade a claim for com pensation based on the date of M a y
1, 1925, for injuries alleged to h ave been sustained on A pril 12, 1922.

turing C o . and its predecessor for a period of

H is claim was denied b y the industrial com m ission, and on appeal to
the court of com m on pleas ju d gm en t was rendered in fa v or of the
com m ission and the claim an t brought

error.

In his petition he

alleged th a t he was gassed on the date above nam ed b y the fu m es
from a solution o f nitric and sulphuric acid, used b y his em ployer in
its business, b y the carelessness of a fellow em ployee in opening a
w indow and allowing the fum es to blow tow ard him .

H e further

alleged th a t at various tim es after the accident he suffered w h at

174

DECISIONS OF THE COURTS

appeared to be a slight cold, but did not know he was injured as a
result of gassing until about May 1,1925, when his medical examiner
discovered and informed him for the first time that pulmonary tuber
culosis had set in as a result thereof.
The court, in disposing of the case, said in part:
If the date of the accident, which was April 12, 1922, was the date
of the injury, the claim was barred under section 1465-72a, General
Code, which requires that in all cases of injury or death claims for
compensation shall be forever barred unless within two years after
the injury or death application shall have been made to the industrial
commission of Ohio; if the claim is based on the date of May 1, 1925,
and is one for tuberculosis, the claim is not compensable.
The judgment of the court of common pleas was therefore affirmed.

W orkmen ’ s C ompensation — C laim — L imitation — P rogressive
I njury — Settlement — City of Hastings v. Saunders, Supreme Court

of Nebraska (March 19, 1926), 208 Northwestern Reporter, page 122.—
William Saunders received an accidental injury while in the employ
of the city of Hastings, Nebr. He brought action for compensation
in the district court of Adams County, and from a judgment in his
favor the defendant appealed. Recovery by the plaintiff was chal
lenged on two grounds: (1) That the claimant did not file his claim
within one year after the accident; and (2) that settlement of all
damages was had between the parties prior to the filing of such
claim.
The court found that the plaintiff’s injury was of a progressive nature
and did not fully culminate until within 11 months before the claim
was filed with the commission; that the city, the insurance company,
and the claimant recognized that compensation was due the claim
ant by reason of the accident; and that the city and insurance com
pany so dealt with the claimant up until about five months before
his claim was filed. The court then said in part:
Considering the above facts, together with others reflected by the
record, to hold with the city that this claim was barred by reason of
not having been filed with the commissioner within a year from the
date of the accident would be a denial of justice, and would be to
give the act a strict rather than a liberal construction, as the act
provides, and as we have held, should be done.
As to the defendant’s claim of settlement, the court held that the
conflicting testimony would have warranted the court below in find
ing for or against such contention, and that as that court had found
for the claimant the finding should not be disturbed. It accordingly
affirmed the judgment of the lower court in all things.

W ORKMEN^ COMPENSATION

175

orkmen ’ s

bility ” —

C ompensation — C laim — “ N ew and F urther D isa
R epresentations by I nsurer ’ s P hysician — Hutchinson

Lumber Co. v. Industrial Accident Commission of California, District
Court of Appeal of California ( March 18, 1926), 246 Pacific Reporter,
page 118.— John Bohan sustained a severe injury to his knee on
October 23, 1923, while in the employ of the plaintiff company. He
was furnished with medical and surgical treatment by the employer
and its insurance carrier, and was also paid compensation up to Aprilj
1924. He was under the care of the insurance company’s physicians,
who led him to believe that his injury was of a temporary nature and
advised him not to go to the commission— that the insurance company
would take care of him. When he was dismissed from the hospital
on March 26, 1924, the doctor gave him an elastic band to wear on
his knee, telling him that he would be all right and requested that
Bohan write to him how he was getting along. In July Bohan
accepted employment with another company, but after working a
few days was forced to quit. He thereupon wrote the insurance
company’s physician that he was not getting well and asked for addi
tional compensation. After waiting until December of that year
and having received no reply he visited the commission and was
there examined by the assistant medical director, who pronounced
the injury to the knee permanent. He was given a new rating, which
the insurance company refused to recognize, also refusing to pay fur
ther insurance. On May 12, 1925, formal application for further
compensation was filed with the commission. The application was
opposed by the employer and the insurance carrier, who at the hear
ing urged that Bohan’s claim was barred by lapse of time, and cited
section 11 of the workmen’s compensation act, which provides that
a claim based upon a new and further disability must be filed within
six months after the date on which the new and further disability is
ascertainable. They contended that Bohan knew in July, 1924, that
he was no better, and could have ascertained the true character of
his injury.
It was pointed out by the court that subdivision (e) of section 11
of the said act confers upon the commission continuing jurisdiction
for a period of 224 weeks to grant additional compensation for a
new and further disability, and that it contains no requirement that
an application for compensation based upon that ground shall be
filed within a period of six months after the nature of the disability
is ascertainable.
Judge Knight, speaking for the court, then said, in part:
There is no contention made by petitioners that prior to Decem
ber, 1924, Bohan knew that his injury was permanent; and obviously,
in view of the statements made to him in March by the insurance
company’s doctor, the only reasonable impression Bohan could have

176

DECISIONS OF THE COURTS

formed in regard to his condition in July was that his injury was
still of a temporary nature, requiring only further medical treat
ment. This he endeavored to obtain by writing as directed to said
doctor, but his letter, so far as the evidence discloses, was ignored,
and after vainly waiting a reasonable length of time, in the apparent
hope that the doctor’s statement to him that he “ would be all right”
would prove true, went to San Francisco in December where he was
told for the first time the true extent of his disability. The delay
thereafter in filing the application was attributed by Bohan to the
fact that he still depended upon the insurance company to carry out
its promises made to him in November, 1923, that they would take
complete care of him and pay him everything that was coming to
him. Their refusal to do so did not take place until February, 1925,
and, in any event, Bohan's application for further compensation
was filed within six months after he learned of his condition.
In view of the foregoing facts, it is our opinion that the commis
sion's conclusion that the situation presented was not a proper one
for the application of the doctrine of laches must be sustained.
The award was therefore affirmed.

o r k m e n 's

C o m p e n s a t io n — C l a im — N

o t ic e

— Paym ent

Barber v . Estey
Organ Co., Supreme Court of Vermont (November 4,1926), 135 Atlantic
Reporter, page 1.— M a rga ret C. B arber m ade claim for com pensation

B u r ia l

E x p e n s e s — C o n s t r u c t io n

St a t u t e —

on account of the death of George C ottrill, w h o was in stan tly killed
while em ployed b y the E ste y O rgan C o ., and on w hom she was
p artially dependent.

O n being denied com pensation b y the com m is

sioner o f industries, she appealed to the Suprem e C ou rt of V e rm o n t.
T h e case turned on the question whether the plaintiff was required
to give the defendant w ritten notice, as specified in G eneral L a w s,

5790, 5797.
It was argued that the payment of the $100 for burial expenses
as required by General Laws, section 5777, amounted to a voluntary
payment of compensation and therefore dispensed with the necessity
of such notice.
The court, in affirming the order appealed from, said in part:
sections

But we can not accept her theory that the payment of burial
expenses is a payment of compensation. We recently held in
Petraska v. National Acme Co. (95 Vt. 76, 113 Atl. 536; see Bui.
No. 309, p. 246) that the payment of medical expenses, as required
by G. L. 5784, was not a payment of compensation, and therefore
did not excuse the failure to give the written notice required by the
statute. The reasoning of that case applies here and controls our
decision. The workmen's compensation statute, taken as a whole,
divides the benefits to be received thereunder by those entitled into
three distinct classes: Medical services, burial expenses, and com
pensation. Neither medical services nor burial expenses are com
pensation in a statutory sense. The fact that the former is covered
by a separate section of the statute, while the latter is included in

177

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

the section providing for compensation, is not controlling against
this construction. The structure and language of G. L. 5777, indi
cates that the legislature understood that “ death benefits” and
“ compensation” were not the same thing.

o rkm en’s

pal—

C o m p e n s a t io n — C o n t r a c t o r — L i a b i l i t y

P r in c i

Catalano v. George F. Watts Corporation,
Supreme Judicial Court of Massachusetts ( May 27, 1926), 152 Northeastern Reporter, page 46.— A general contractor had sublet portions of
the construction work on a building to the George F. Watts Corpora
tion, a subcontractor. Joseph Catalano, an employee of the general
contractor, was injured by reason of the negligence of an employee of
the subcontractor, and was paid compensation by the Travelers’
Insurance Co., the insurer of his employer. He brought this action
•against the defendant subcontractor for the benefit of the insurance
company of his employer.
The defendant demurred to the plaintiff's declaration on the ground
that, since the plaintiff had been paid compensation by the insurer
of his employer, he could not, under chapter 152, section 15, of the
General Laws of Massachusetts, maintain this action against him.
The demurrer was sustained by the superior court, and the plaintiff
appealed from the ruling. The supreme court, in the course of its
opinion affirming the action below, cited the case of Bindbeutel v.
L. D. Willcutt & Sons Co. (244 Mass. 195, 198, 138 N. E. 239, 240;
see Bui. No. 391, p. 392). In that case it was held that where both
contractors were insured under the workmen’s compensation act the
servant of a subcontractor could not recover against the general con
tractor when he has been paid compensation by the insurer of his
employer. It was said in that case that all employees were to receive
the same compensation “ and no* advantage was given the employees
of the subcontractor over the employees of the general contractor.”
The court held that the ruling in that case applied equally to the
employees of a general contractor under the act, and that the ruling
in the instant case sustaining the demurrer was correct.
Judgment was therefore ordered for the defendant.

“ T h ir d

o r k m e n 's

P arty”—

C o m p e n s a t io n — C o v e r a g e — E m p l o y m e n t

T hree

Ouse v. Industrial
Commission et al., Supreme Court of Wisconsin (April 6,1926), 208
Northwestern Reporter, page 493.— This was the second time that this
case was before the supreme court of the State, first on an appeal
from the circuit court when it reversed the judgment of that court,
and now on a motion for rehearing on its own judgment.
or

ore

P e r s o n s — C o n s t r u c t io n

St a tu te —

178

DECISIONS OF THE COURTS

The facts in the case were that Arthur Zuehlke, on February 13,
1923, while in the employ of Albert Guse, received certain injuries
for which he was granted an award of compensation by the indus
trial commission. It appeared that the defendant ordinarily had
but one employee, Zuehlke, and that he was not regularly employed
throughout the year, other men being employed for very short times
as occasion arose.
The plaintiff appealed from the order of the commission on the
ground that he was not subject to the provisions of the statute which
provided that:
If any employer shall at any time after August 31, 1917, have three
or more employees in a common employment he shall be deemed to
have elected to accept the provisions of sections 2394-3 to 2394-31,
Illusive. unless prior to that date such employer shall have filed with
the industrial com mission a notice in writing to the effect that he
elects not to accept the provisions thereof.
The circuit court held that the statute applied to the defendant
and affirmed the order of the commission on defendant’s appeal. The
supreme court held that the case of Kelley v. Haylock (163 Wis. 325,
157 N .W . 1094; see Bui. No. 224, p. 277) was controlling, and that it
was not the intention of the law to bring employers having three or
more persons in their employ for a brief period of time within the act.
The judgment of the circuit court was accordingly reversed, but on
rehearing the court reversed its former opinion and affirmed the judg
ment of the circuit court, holding that the statute in question should
be construed literally as it reads. To hold otherwise “ works a hard
ship to the employee if he is unable to ascertain whether or not his
employer is within or without the act.” The employer could claim
to be within or without, as his interest might appear, “ the proof in
most cases being wholly in the possession of the employer.”

o r k m e n ’s

C o m p e n s a t io n — C o v e r a g e — F a r m

L aborer—

I n s u r a n c e P o l ic y — Hillman

v. Eighmy, Supreme Court of Wisconsin
( May 11, 1926), 208 Northwestern Reporter, page 928.— Isaac Hillman
was employed by Percy Eighmy and was injured while working as a
member of a crew operating defendant’s corn shredder. He made
application for compensation. The industrial commission found that
at the time of his injury he was engaged in farming labor and there
fore not under the compensation act, and dismissed the application.
On appeal the circuit court affirmed the order of the commission and
the plaintiff appealed to the supreme court of the State, where the
judgment below was reversed.
Judge Stevens delivered the opinion of that court, saying in part:
It is not necessary for the court to determine whether applicant
was engaged as a farm laborer at the time he sustained the injury in

WORKMEN ’ & COMPENSATION

179

question. Appellant’s employer elected to accept the provisions of
the workmen’s compensation act when he entered into the contract
of insurance with the defendant company. Such election brought
appellant, a regular member of the shredding crew, under the act,
even if it be held that he was a farm laborer at the time of injury,
because the intent clearly appears from the terms of the policy to
insure the members of the shredding crew.
The judgment was reversed and the cause remanded, with direc
tions to render judgment in accordance with the opinion, the appel
lant to recover costs against defendants Eighmy and the Wisconsin
Brotherhood of Threshermen Insurance Co.

W o r k m e n ’s C o m p e n s a tio n — C o v e r a g e — “ H a z a r d o u s O c c u p a

Freeman v . State
Industrial Accident Commission, Supreme Court oj Oregon (December
15, 1925), 241 Pacijic Reporter, page 885.— T h e w orkm en ’s com pen

t i o n ” — S a w in g W o o d f o r F u e l — F a r m L a b o r —

sation law of Oregon applies to hazardous occupations, and classifies

“ farm ing

and all work incidental th ereto,” excepting the construction

o f buildings, as nonhazardous.

Farm in g is said to include wood saw

ing and w ood cu ttin g, w hether carried on b y the owner of the farm
or com m ercially or under con tract.

H ow ever, the courts o f the S ta te

reversed the action of the com m ission in interpreting the law so as
to exclude therefrom a m an injured while w orking w ith a crew, his
im m ediate em ployer h avin g a con tract w ith the farm owner at an
agreed rate per hour.

It w as found th at “ under the fa cts in the

cause a t issue the claim ant, in helping to operate the w ood saw , was
n ot engaged in an em ploym en t incidental to the farm ing operations
of S m ith ,” the owner of the farm .

T h e com m ission cited decisions

in which the injured w orkm an was a farm hand diverted from agri
cultural pursuits to the cu ttin g of firewood or the filling of an ice
house with ice.

T h ese cases were rejected as precedents, the opinion

concluding:

The cases cited by appellants are clearly distinguishable from the
case at bar, because the employees therein were farm laborers engaged
in performing their duties as such. In the case at issue the employ
ees of McCarthy were not engaged in farming or in labor incidental
thereto. When they were sawing wood for John Jones, an attorney
at law, and for John Brown, a physican, they were under the pro
tection of the workmen’s compensation act. The fact that they
moved their operations down to farmer Smith does not change the
hazardous nature of their employment.
The judgment of the trial court in reversing the action of the
commission and directing an allowance of the claim was therefore
affirmed.
42^35°— 27------ 13

180
W

DECISIONS OF
o r k m e n ’s

the

courts

C o m p e n s a t io n — C o v e r a g e — M

u n ic ip a l

C orpo

Texas Employers’ Ins. Assn.
y . City of Tyler, Court of Civil Appeals of Texas ( March 25, 1926),
283 Southwestern Reporter, page 929.— Su it was brought b y the T ex a s
r a t io n —

C o n s t r u c t io n

E m p lo y e rs’

Insurance

St a t u t e —

A ssociation in the

C o u n ty against the city of T y ler to recover

district

court o f

Sm ith

$634.98 claim ed as unpaid

prem ium s on an em ployer’s policy of insurance issued to the city of
T y le r and the further sum of

$6,349.70 as penalties incurred b y the

city for m isrepresenting its p a y roll.
policy was issued on N o vem b er

T h e petition alleged th at the

19, 1919, and accepted b y the city ,

which paid a cash deposit prem ium and agreed to p a y additional
prem ium s, th a t the contract was renewed from tim e to tim e b y the
parties, and th a t the contract rem ained in full force and effect from
the date o f its issuance until the 1st d a y o f M a rch ,
tim e it was canceled b y the city.

1924, at w hich

T h e defendant pleaded a general

dem urrer, which was sustained b y the trial court, and, upon the plain
tiff’s refusal to am end, the suit was dism issed, th at court holding th a t
an incorporated city or tow n can n ot under the term s o f the w orkm an ’s
com pensation act (A c ts of

1917, ch. 103) becom e a subscribing m em ber

of an em ployers’ insurance association.

The particular question presented in the appeal was: Can an
incorporated city or town become a subscribing member of an em
ployers’ insurance company? The court of appeals answered this
question in the affirmative, reversing the judgment below, and
remanding the case for a trial on its merits.
Among other arguments for its position, the following language
was used:
If any portion of the workmen’s compensation law applies to or
includes incorporated cities and towns, when exercising the functions
of private corporations, then all of its provisions apply. It is unbe
lievable that the legislature would deprive those municipalities of
valuable common-law defenses and at the same time withhold from
them the benefits conferred by the act upon others who employ hired
labor. There does not exist any reason why such a discrimination
should have been made. Its manifest unfairness is sufficient to justify
the inference that none was intended.
Following the rendition of the above opinion, the case was brought
before the Commission of Appeals of Texas on a writ of error. This
body examined the provisions of the law in the light, especially, of
the provision of the State constitution which declares that the legis
lature shall have no power to authorize any city or town, etc., to
become a stockholder in any corporation, association, or company.
The plaintiff association was a creature of the compensation act, being
a mutual insurance association made up of its subscribing members.
Under the terms of the constitution quoted, it was held that no such
membership could exist on the part of any city or town.

181

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

As to the loss of the common-law defenses, the commission held that,
as to employers not eligible to the benefits of the act, it was inoper
ative as to all its terms. “ The act simply has no application, one
way or another, to any employer except one eligible to its burdens
and benefits.”
This determination of the commission was accepted, and the
judgment of the court of civil appeals reversed, and that of the district
court affirmed. (Same case (Nov. 17, 1926), 288 S. W . 409.)

W o r k m e n ’s

C o m p e n s a tio n — D e a t h

F o llo w in g

D is a b ility —

P r o x im a te C a u s e — E v id e n c e — F a i l u r e t o F i l e C la im — R e a s o n

Georgia Casualty Co. v . Little, Court of
Civil Appeals of Texas (February 17, 1926), 281 Southwestern Reporter} page 1092.— M a n u el (or E m a n u el) Brown was em ployed b y Met

a b l e E x c u s e — Lump Sum—

calf

Son as a cem ent m ixer, and while so em ployed he sustained

injuries ab ou t the head and his right clavicle which to ta lly incapaci
tated h im fro m further labor, on account o f which he w as paid com
pensation in the sum of $12.11 per week and rem ained under the care
o f the casu alty co m p an y 's physician.

Several weeks after the inju ry

he developed a case of diabetes and died som e eight m on ths thereafter.

The industrial accident board, after deducting the am oun t already
paid to the deceased, awarded his w idow a lum p sum in the am oun t
of

$3,587.55, on the ground th a t the death w as due to the inju ry.

The

Georgia C a su a lty C o. brought su it in the district court o f N a va rro
C o u n ty ,

Tex., to set aside the aw ard.

F ro m a ju dgm en t sustaining

the aw ard the plaintiff appealed and alleged that the evidence w as
insufficient to show th a t the injuries received b y the decedent were
the proxim ate cause o f his death, or th at the defendan t was the w ife
o f the deceased, or to authorize a lu m p -su m ju d gm en t, and th a t the
defendant b y n ot bringing her claim w ithin six m o n th s after the
death of the deceased w as barred from recovery.

The court on review found that the evidence relied upon to connect
the disease and death of the decedent was that of the physician under
whose care he was while receiving compensation, whose testimony
was that an injury such as that received by the decedent might
cause diabetes, and that it was his opinion that the injury in the
instant case was so caused. It was the opinion of the court that the
evidence, which was uncontradicted, was sufficient to show that
the defendant was the wife of the deceased. As to the lump-sum
judgment, the court found that the defendant was nearly 50 years
old, in poor circumstances, depending upon her own labor to take
care of her present ailing husband and a ten-year-old grandchild, and
held that the payment of a lump sum is a matter addressed largely
to the discretion of the trial court, and that there was no evidence

182

DECISIONS OF THE COURTS

in the record that showed the abuse of such discretion.
Of the
remaining alleged error, that of failure to file claim within six months,
the court found that the deceased and his wife were both typical
ignorant negroes, not able to read or write; that he worked about
from place to place where he could find employment; that the people
with whom he was staying knew where his wife lived but failed to
notify her of his death; and that she did not know of his death until
about a month after it occurred. It was also found that several
months had elapsed after the death of the decedent before his wife
learned that he was insured.
In view of these facts and circumstances, the court held that it was
not prepared to disturb the holding of the board and of the trial court.
The judgment of the trial court was therefore affirmed.

orkmen’s

and

A fter-D

C o m p e n s a t io n — D
is c o v e r e d

C h il d

ependency—

P r io r M

R ig h t s

a r r ia g e —

id o w

e v ie w —

A w a r d — ParJcer v. Industrial Commission, Supreme
Court of Utah (December 1, 1925), 241 Pacific Reporter, page 362.— A

R e t r o a c t iv e

w orkm an know n as A lb e rt Parker, was killed under circum stances enti
tling his w idow to com pensation.
including a lu m p -su m

p a ym en t

A n award in her favor was m ad e,
up to

the tim e of

the

decision.

W e e k ly p a ym en ts continued until another w om an claim ing as w idow
applied for com pensation.

P ay m en ts were suspended in the first

case until it was determ ined th at the second claim was w ith ou t fo u n
dation.

In the m ean tim e letters were filed supporting the view th a t
The inform ality of

a son b y a form er wife was entitled to benefits.

the application and the elapsed tim e were offered as objection s to
the claim , b u t the com m ission overruled or disregarded these o bjec
tions, and found th at there had been a legitim ate m arriage, th a t a
son w as born, and a divorce follow ed, the wife receiving the cu stody
o f the child.

She afterwards abandoned him , and the father placed

h im in the care of his o w n m other, contributing to his support.

The widow beneficiary knew nothing of the prior marriage or of
the existence of such a child, but the commission decided that the
award to her should be revised so as to make provision for the child,
but not barring her claim as widow. The fact that she was wholly
dependent was said by the court not to “ prevent the commission
from finding and deciding that he [the deceased] also left surviving
him a minor child which was also dependent upon him for support.”
Compensation had been awarded, and by taking under consideration
the rights of the minor child “ nothing was invoked except the con
tinuing jurisdiction of the commission which it has a right to exercise
by virtue of the provisions of section 3144 ” of the compensation
law.

w o r k m e n 's

183

COMPENSATION

In making its award the commission had undertaken to date the
payments to the child back to the time of his father’s death, requiring,
indirectly at least, that the widow make restitution of a part of the
compensation which had been paid to her. The court found the
question “ not wholly free from doubt or difficulty” ; but, in the
absence of any fraud or collusion on the part of the plaintiff, “ we
think, that where compensation has been lawfully paid to one justly
entitled thereto, the commission is powerless to require the recipient
to pay it back.” That part of the award was therefore annulled, but
from the date of the suspension the divided award was approved.

ork m en’s

C o m p e n s a t io n — D

ependency—

S u s p e n s io n

C on

Smelting & Refining Co. v. Industrial
Commission oj Utah, Supreme Court of Utah (November 5, 1926), 250
Pacific Reporter, page 651.— This action was brought by the American
Smelting & Refining Co. to review an order of the industrial com
mission granting an award to the widow of Imazo Kawate, who was
accidentally killed while in the employ of the company. The facts
upon which the award was based w.ere not in dispute and were substan
tially as follows: The deceased came to the United States in 1900, leav
ing his family, consisting of his wife, two small daughters, his mother,
and a sister, in Japan. Soon after arriving in this country the deceased
commenced sending money to his wife. He continued to send her
money with regularity until 1916 or 1917, when for some unexplained
reason the contributions ceased until January, 1922, when he sent
$500, and after that, in 1924, he sent an additional sum of $135.
It was contended by the employer that in view of the fact that no
contribution was made by the deceased from 1916 to 1922, the
finding of the commission that the applicant was dependent upon the
deceased for support was not supported by the evidence; that as a
matter of law it should be held that contributions wholly failed; and
that the applicant, within the purview of the industrial act, received
no support whatever from the deceased. The award was affirmed
with costs. Judge Frick, speaking for the court, said in part:
t r ib u t io n s t o

if e — American

It seems to us, however, that the mere fact that contributions may
cease for a time, and even for a considerable period of time, standing
alone, is not conclusive that a man with a family in a foreign country
has necessarily abandoned his family and left them to shift for them
selves. The evidence is to the effect that the deceased frequently
wrote to his wife, and especially during the last two years of his life,
that he expected to return to Japan and in the near future. There
is, therefore, nothing in the record from which it can be inferred that
the deceased had abandoned or intended to abandon his family.
The inference is reasonably clear, therefore, that there must have
been some cause or circumstances over which the deceased had no

184

d e c is io n s o f t h e

co u rts

control which caused the long interval between the regular remit
tances from 1900 to 1916 and the large one in January, 1922.
We are of the opinion that, in view of the facts and circumstances,
it can not be said that the award made by the commission is not
supported by some substantial evidence; nor can we hold as a matter
of law that the award is contrary to law.
The same court had decided at a somewhat earlier date that a wife who had
lived apart from her husband most of their wedded life, receiving no support
from him at any time, without any communication with or from him for a period
of nearly two years prior to his death, during which time he made substantial
contribution toward the support of his mother, while the wife had supported
herself by her own efforts, was entitled to no benefits, her claim of dependence
being without evidence to support it. (Utah Apex Mining Co. v. Industrial
Commission (1926), 244 Pac. 656.)
W

o r k m e n ’s

C o m p e n s a t io n — D

ependency—

“ W

holly

epend

London Guarantee & Accident
Co. (Ltd.) et al. v. Industrial Commission, Supreme Court oj Colorado
(December 28,1925), 242 Pacijic Reporter, page 680.— James K . Keys
and his son, 16 years of age, were both killed in the same accident.
The commission found that the widow and the surviving children
were wholly dependent upon the -deceased husband and father for
their support and made an award accordingly. The widow then
applied for compensation for the death of her son. The commission
found that she was 20 per cent dependent upo him and made an
award to that effect, which was affirmed by the district court. The
defendant brought error. The court, in reversing the judgment of
the district court, said in part:
en t”—

C o n s t r u c t io n

Statute—

The second award and the judgment of the district court were
wrong, not only wrong, but logically impossible. The commission
rightly found that the widow and children were wholly dependent on
the father. They could not find otherwise, because the statute (C.
L. sec. 4426) is that they “ shall be conclusively presumed to be wholly
dependent” on the father. “ Wholly dependent” on him means that
they are dependent on no one else; it has no other meaning.
The argument that claimants might thus lose an award for the
greater part of their actual support, would be forceful if addressed to
the legislature, as we hope it will be, but the statute is explicit, and
we cannot add to it or take from it.
The court found itself unable to adopt a meaning that might be
“ more agreeable to us,” since it could not ignore express terms, even
though unforeseen, undesirable consequences might have ensued. It
was said that “ the English statute, with those of some States is
wiser— i. e., that dependency is a question of fact”— citing an English
case on this point, and concluding:
The ground of the decision was, quoting one of the opinions, that
“ the question of dependency was not a question of law at all; it is
purely a question of fact.” That proposition, as we have shown, is

185

W ORKM EN^ COMPENSATION

not true in Colorado, but in case of widow and children the contrary
is true. It is purely a question of law.
The judgment of the district court was reversed with directions
to disaffirm the award of the commission.
W

orkm en’s

C o m p e n s a t io n — D

ependents—

F a m il y

S tatus—

Casady v. State Industrial Accident# Com
mission, Supreme Court of Oregon (January 15, 1926), 242 Pacific
Reporter, page 598.— George J. Casady was awarded compensation
for permanent partial disability by the industrial accident com
mission and later was granted an increased allowance for permanent
total disability. At the time of his injury he was a widower with
one child under 16 years of age, but later remarried and by this mar
riage had two children. He brought mandamus proceedings against
the industrial accident commission to compel it to grant him an
additional allowance on account of his wife and children. The court,
after quoting section 6626, Oregon Laws, as it stood at the time of
the accident and citing adjudicated cases in point, stated in part:
S ubsequent M

a r r ia g e —

The matter is judicable according to the family status of the claim
ant at the time the injury happened, which, by the section of the
statute just quoted, is fixed for a man then unmarried at the sum of
$30 per month, and for each child at that time under the age of 16
years the payment must be increased by $8 per month. The case of
Crockett v. International Railway Co. (176 App. Div. 45, 162 N. Y .
Supp. 357), cited by the claimant, has to do only with a surviving
wife, and not with a dependent wife. It has no relation to a case
where the claimant and his wife are both alive, whenever married.
The present wife of the claimant is not a survivor.
The court held that though a child legally adopted prior to an
injury and a posthumous child are considered as dependents under
Oregon Laws, section 6619, neither the wife to whom the claimant
was married subsequent to his injury nor the children of such a mar
riage are included within section 6626. The plaintiff relied upon
Chebot v. State Industrial Accident Commission (106 Oreg. 660, 627,
212 Pac. 792, 795), in which it was said:
Such a construction, however, ignores the plain provisions of the
statute which impose upon the commission a legal duty to regulate
the compensation to be awarded the injured workman by the devel
opment of his disability or change in his family status.
Mr. Judge Burnett, speaking for the court, said:
In the first place, the language about “ change in his family status ”
was not necessary to the decision in that case, because Chebot was
not a married man, so far as the record discloses, and had no family;
secondly, it might be referable in a proper case to the birth of a post
humous child, which would be a change in the family status between
the time of the happening of the accident and the application for
relief.
The writ was therefore dismissed.

186

DECISIONS OF THE COURTS

W o r k m e n ’ s C o m p e n s a tio n — E l e c t i o n — N o t i c e t o E m p lo y e e s —

Holland v. Stuckey, Court oj Civil Appeals of Texas (January SO, 1926),
282 Southwestern Reporter, page 951.— T. Holland was employed by
W . A. Stuckey & Son and was engaged in laying a pipe line in
Wichita County, Tex. During the course of his employment he sus
tained personal injury, for which he brought an action in damages
in the amount of $3,500. The defendants answered and contended,
among other things, that they weie subscribers under the workmen’s
compensation act, that they had given notice to the Industrial Acci
dent Board of Texas of the fact, and that they had fully complied
with the requirements of such law. The cause was tried before a
jury on special issues. The jury found for the plaintiff on all the
issues involved and returned a verdict in his favor in the amount
sued for. The court, however, found that the defendants were sub
scribers under the workmen’s compensation act, with which they had
complied, and even though that fact was unknown to the plaintiff
until after he had filed his suit it constituted a bar to his recovery.
Judgment was accordingly rendered for the defendant and the plain
tiff appealed.
The defendants were engaged at Wichita Falls in the “ tank-car
business” and in the “ pipe-line business,” operating as the Lone
Star Tank Co. At their plant at Wichita Falls they had posted
notices of their subscription under the workmen’s compensation act.
The evidence was uncontradicted that the plaintiff was hired in the
town of Electra, some 30 miles from Wichita, and about 4 miles from
where the accident occurred. There was no evidence that he had
ever been informed that the defendants carried insurance under the
compensation act. The question for the court was whether or not
such notice as herein set out was sufficient, under the terms of the
workmen’s compensation act, to constitute notice in fact. The court
in the course of its opinion cited the case of Producers’ Oil Co. v.
Daniels (244 S. W . 117, 112 Tex. 45; see Bui. No. 344, p. 327), in
which it was held that “ in order to relieve the employer of liability
notice must be given the employee personally.” The opinion
continued:
One of the purposes of the law is to give an employee offering to
work for an employer who is a subscriber an opportunity to determine
whether or not such employee will rely, in case of accident, on the
damages awarded under the workmen’s compensation act, or whether
he desires to retain his common-law right to sue for damages. We
do not think that one doing a business of a particular kind at one place,
and posting notices in his plant, informing his employees that he is a
subscriber and has insurance to compensate such employee under the
act in question, can carry on another business of a different kind, and
under a different name, at a distant place, and employ laborers, and
never inform such employees of the fact that he has insurance under

Workm

e n 's

187

c o m p e n s a t io n

the act, may exempt himself from liability by reason of the posting
of the notices in such distant plant.
We do not think that, under the facts shown, the defendants should
be held to have given notice, either actual or constructive, to plaintiff
of the fact that they were subscribers. The evidence shows that in
payment for the labor done in laying pipe near Electra they gave
checks signed by W. A. Stuckey & Son.
It was ordered that the judgment below be reversed and that judg
ment be rendered for the plaintiff in the sum of $3,500 with costs of
suit and with interest at 6 per cent from date of judgment, and costs
of appeal were adjudged against appellees.

orkm en’s

C o m p e n s a t io n — E m p l o y e e — A s s is t in g

a k in g

Yourzak v. Town of Platte,
Supreme Court of Minnesota (July 16, 1926), 209 Northwestern Re
porter, page 910.— Joseph Yourzak was employed by the road over
seer of the town of Platte, Minn., to assist in installing a culvert in
the highway at a point that had become impassable. In doing the
work Yourzak accidentally received an injury to his leg which resulted
in blood poisoning and death. His widow and children were awarded
compensation by the industrial commission for his death, and the
defendant brought a writ of certiorari for review. The court, in
affirming the order of the commission, said in part:
E m ergency

R e p a ir s

H ig h w a y —

The right to compensation turns upon the authority of the over
seer to employ help on this occasion. The decision of the industrial
commission cannot stand unless the authority to employ Yourzak
for the town is given its road overseer by the last paragraph of sec
tion 2575, G. S., 1923, reading:
“ Whenever any public road in a town becomes obstructed or unsafe
from any cause, the overseer shall immediately repair such road and
render his account therefor to the town board, in case of a town or
county road, and to the county board in case of a State aid road.”
Only emergencies give the overseer authority to employ help, and
to a certain extent he is the one to determine whether one has arisen.
In this case he deemed it such. The chairman of the town board,
though he claims that Yourzak was to aid without pay, thought
speedy repairs necessary, for he furnished the culvert which the board
allowed him to furnish for road purposes, the town board paid the
overseer for his work in installing the culvert, and the industrial com
mission, in order to grant compensation, must have found that there
was an obstruction or unsafe condition in the highway which required
the overseer to act for the town under the provision mentioned, and
that it was such repair that he could not well do it alone.
Within the above interpretation of the quoted provision of the
statute, there is evidence supporting the decision of the industrial
commission, and it must be affirmed, with attorney’s fees of $75 to
the respondents.

188
W o r k m e n ’s

d e c is io n s o f t h e

courts

C o m p e n s a tio n — E m p lo y e e — C o v e r a g e — W o r k i n g

P a r t n e r — Lyle

v. H. P. Lyle Cider and Vinegar Co. et al., Court oj
Appeals of New York (July 9, 1926), 153 Northeastern Reporter, page
67.— This is an action brought by Vinnie M . Lyle for the death of
her husband. The evidence shows that claimant’s husband was a
member of a copartnership engaged in carrying on a business of
limited proportions, and while engaged in performing labor incidental
to his occupation he received an injury which resulted in his death.
The State industrial board awarded compensation, but on appeal to
the appellate division the award was reversed, and claimant and the
board appealed.
Plaintiff contended that the policy of insurance covered the dece
dent both as an employer and employee, insuring him therefore against
the accident suffered by him while engaged as an employer in the
performance of work carried on by the copartnership.
The court held that under the provisions of section 54, subdivision
6, of the workmen’s compensation law, a policy might be taken out
which would cover employers performing work incidental to their
employment, and that this provision should be construed liberally,
but that all the facts in the present case tended to oppose rather
than support the claim that decedent was insured as an employer.
Furthermore, the court maintained that if a policy was intended to
insure employers performing labor under the workmen’s compensation
law, that purpose should be indicated by its terms. The policy under
consideration not only did not provide insurance for employers, but
by its terms was unmistakably limited to employees. The findings
of the industrial board in favor of claimant and binding upon her
were to the effect that decedent was injured while engaged as an
employee at work for his employer.
Thus we are compelled to decide against the claim on this theory
of insurance for an employer and are relegated to the question
whether under the circumstances an award can be sustained because
of injuries received by the decedent while engaged as an employee.
Carrying this question farther, it becomes the one whether a copart
ner can become the employee of himself and his partners as employers,
and we think that a negative answer must be made to this question.
The copartners, of course, are the principals and employers, and we
do not think that it is within the contemplation of the workman’s
compensation act that one of them may become the employee of him
self and his associates, and thus at the same time occupy the incon
sistent attitudes of employer and employee.
It was the opinion of the court that the workmen’s compensation
law did not contemplate that a “ partner should have a claim against
himself and his copartners for an accident springing out of the work of
the copartnership and for the conduct of which he is responsible.”
Many cases were cited in support of this contention, and the court

189

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

quoted with approval from the case of Matter of Skouitchi v. Chic
Cloak & Suit Co. (230 N. Y . 296, 130 N. E. 299), where it was said, in
discussing the effect of the provisions of subdivision 6 of section 54,
that they were—
intended to cover the case of an employer who maintained his status
as such, but who, nevertheless, did some work of the character usu
ally performed by an employee. * * * He would remain an em
ployer and obviously could not become an employee of himself as an
employer.
The court in the instant case added that—
The obvious course to be pursued by persons like the decedent,
who, although employers, are engaged in performing labor contem
plated by the statute and desire insurance, is to secure a policy which
by its terms properly insures them as such employers.
The order appealed from was therefore reversed with costs against
the State industrial board.
An amendment to the compensation act of California, 1917, authorizes the
payment of compensation to a working partner receiving wages irrespective of
profits. This called for a reversal of the position taken by the supreme court of
that State in Cooper v. Ind. Acc. Com. (1916, 177 Cal. 685, 171 Pac. 634; see
Bui. No. 258, p. 184), where the contrary was held under the law as it then stood.
The amendment was held constitutional, and an adverse finding by the commis
sion was set aside where a member of a firm was working at a fixed rate monthly j
plus one-half the profits, and the case remanded for proceedings in keeping with
the conclusion announced. (Johnson v. Industrial Accident Commission (1926),
244 Pac. 321.)
The Supreme Court of Oklahoma was previously on record as supporting the
view that a working partner was entitled to compensation for injury received in
the employment of the partnership. (Ohio Drilling Co. v. State Ind. Com., 86
Okla. 139, 207 Pac. 314.) This position was reaffirmed in the recent case of
Knox & Shouse v. Knox (1925, 250 Pac. 783), in which an award by the State
commission was challenged by the firm of which the injured workman was a
member. It may. be noted that this position of the court is not dependent on
special legislation, but on the construction put by the court on the law and facts,
in direct opposition to the conclusions of the New York Court of Appeals.

orkm en’s

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

Statu te—

eputy

S h e r if f — •

Monterey County v. Bader, Supreme
Court of California (August 13, 1926), 21+8 Pacific Reporter, page
912.— The county of Monterey and the State compensation insurance
fund petitioned the Supreme Court of California for a writ of review
to annul an award of compensation by the industrial accident com
mission to Nellie Pearl Rader for the death of N. H. Eader, em
ployee.
As N. H. Eader, father of Nellie Pearl Eader, was, on the night of
July 6,1925, returning to his home at about 11 o’clock p. m., he was
commanded by the sheriff of Monterey County to assist him in arrest
ing certain violators of the law, and while in the performance of this
C o n s t r u c t io n

190

DECISIONS OF THE COURTS

duty he was fired upon by the persons whom he was attempting to
arrest and instantly killed. The industrial accident commission
awarded his daughter, 14 years old and wholly dependent, a death
benefit of $4,900 and $100 burial expenses. The petitioners insisted
that the commission exceeded its jurisdiction in making the award,
for the reason that the deceased could not be regarded as an em
ployee within the terms and meaning of the workmen’s compensation
act, but that he was commanded by the sheriff by virtue of the
statutory law of the State to perform a duty which every citizen
owes to his sovereign State.
Section 7 of the workmen’s compensation insurance and safety act,
statutes and amendments of 1917, defines an employer to mean the
State, each county, city and county, etc., who has any person in
ssrvice under any appointment or contract of hire, or apprenticeship,
express or implied. Section 8 (a) defines the term “ employee”
to mean every person in the service of an employer as defined in
section 7, under any appointment or contract of hire or appren
ticeship, express or implied, oral or written. Persons holding an
appointment under this provision of the law as deputy sheriff for
the purpose of their own convenience are excluded from the benefits
of compensation.
The court, in affirming the award, said in part:
The decedent in the instant case was compelled by the sheriff of the
county of Monterey to perform the service of a deputy sheriff of that
county (Pen. Code, sec. 150), and was charged with the performance
of the same duty that would have rested upon a regularly appointed
deputy sheriff under like circumstances, and, while so acting, he was
killed. Under such circumstances he will be held to be within the
protection of the law in assuming the risks incident to his office. We
feel satisfied that, when killed, he was performing the service of a
deputy sheriff within, the contemplation of the workmen’s compen
sation insurance and safety act of this State.
The Court of Appeals of Maryland had before it a case involving the status
of a park policeman employed by the city of Baltimore who was killed by being
struck by an automobile while crossing a road in the park. The accident com
mission had ruled that he was not a “ workman” within the terms of the law,
and denied his widow’s claim for compensation. The court held that the “ great
weight of authority” sustained this view; that neither policemen, firemen, nor
members of the State militia were “ workmen for wages” in the sense that man
ual laborers in the industries are, and that it was for persons of these classes that
the law was enacted, so that compensation *was properly denied, (Harris v.
Mayor, etc., of Baltimore (1926), 133 Atl. 888.)

W o r k m e n ’s

C o m p e n s a t io n — E

m ployee—

C a s u a l E m p l o y m e n t — Bosel v .

I ndependent

C on

Henderson Holding Co.,
Supreme Court oj Minnesota (April 9, 1926), 208 Northwestern Repor
ter, page
.— August H. Bosel was granted an order of award by
tractor—

421

191

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

the industrial commission for injuries received by him while in the
employ of the Henderson Holding Co., and from that order the
employer brought a writ of certiorari to have it reviewed. The
employer alleged that at the time of his injury the plaintiff was an
independent contractor and that in any event the employment was
casual and not in the usual course of the trade or business of the
employer. It appeared that at the time of his alleged injury the
plaintiff was engaged in painting the roof of a factory building
owned by the defendant; that he was furnishing his own brushes and
doing all the work himself, but the paint was furnished by the
defendant. It also appeared that there was no express contract as
to compensation or duration of the work and no express under
taking on the part of the plaintiff to finish -the job. He stated in
his testimony that the defendant “ could have told me to quit at
any time.”
The court on review of the record found that the plaintiff was
under the control of the defendant, and in its opinion, speaking
through Judge Stone, said in part:
An important “ test of the relationship [of an independent con
tractor] is the right to control. It is not the fact of actual inter
ference with the control, but the right to interfere, that makes the
difference between an independent contractor and a servant or
agent.” The case is clearly open to the view that respondent was
under the control of relator. Therefore the finding that respondent
was an employee rather than an independent contractor can not be
disturbed.
The contention as to the nature of the employment was also
resolved against the appellant. To be exempt, it must be both
casual and not in the usual course of the trade or business of the
employer. The company acquired and rented buildings, of which
the one on which the plaintiff worked was one, so that the employ
ment was not excluded.
The writ of review was therefore discharged, leaving the award
undisturbed.
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 — L i a b i l i t y

Part

Klemmens v. North Dakota Workmen's
Compensation Bureaut Supreme Court oj North Dakota (July 27, 1926),
209 Northwestern Reporter, page 972— Anton Klemmens made claim
to the workmen’s compensation bureau for compensation for injuries
he alleged that he received on January 9, 1924, while employed by
the Farmers’ Garage. His claim was dismissed by the bureau. On
appeal to the district court of Ward County he was given judgment
for the sum of $332.50 and $78 attorneys’ fees and costs. From that
judgment the bureau appealed. It relied upon two propositions for
the reversal of the judgment:
n ers—

I n j u r y — E v id e n c e —

192

DECISIONS OP THE COURTS

(1) That the evidence fails to support the finding that claimant
received any injury of sufficient severity, and suffered any disability
in fact, of sufficient period of time to entitle him to compensation.
* (2) That at the time of the alleged injury the claimant was not an
employee of the Farmers' Garage.
It appeared that the Farmers' Garage, a copartnership, was owned
by one Hanson and Birdie Klemmens, wife of the plaintiff; that she
hired her husband to work at the garage to balance the work and
time of Hanson, and that she paid him his salary out of her interest
in the partnership earnings. It was shown by the evidence that the
plaintiff after his alleged injury was treated at his home by Doctor Fisk
from the date of his injury until January 21, when he was taken to a
hospital where he was under the care of Doctor Peterson for 11 days.
Both the physicians testified that they could not discover any injury
or organic trouble, and it was the belief of Doctor Fisk that the
plaintiff feigned injury.
The court, in disposing of the case, said in part:
While it is true that the doctors testified that they could find no
injury or organic trouble, it is also true that Doctor Fisk called at
the home of the claimant about every day and sometimes twice a
day, until he was taken to Minot. On one occasion he called at four
in the morning. It may be said that this was in response to a call
from claimant's wife. Even so, it would seem exceedingly strange
for a doctor to leave his bed at that hour of the morning to respond
to a sick call when he knew that the patient was not sick or injured.
The evidence also shows that both Doctors Fisk and Peterson advised
claimant to rest.
The facts and circumstances in the case are of such a nature that
the minds of reasonable men might readily differ thereon and draw
different conclusions therefrom. This being so, under the well-established rule, this court is in no position to disturb the findings made
by the trial court on the facts.
That claimant performed partnership work exclusively is admitted.
Mr. Hanson, one of the partners, was in the actual charge of the
business and directed the work. The tools and machinery used by
claimant belonged to and were the property of the partnership. His
work and duties were to further the interests of the partnership.
Both partners profited by his labors. The earnings from his labor
went into the common partnership fund. The profits were divided
equally between the partners. The partnership was in control of the
Farmers' Garage, where the claimant worked, and not Mrs. Klemmens.
The claimant was actually controlled by the firm. It was the master.
While in the course of its work and business, claimant was injured.
In Dale v. Saunders Bros. (171 App. Div. 528, 157 N. Y. Supp.
1062; see Bui. No. 224, p. 273), the court of the appellate division
said:
“ It is not a question of hiring, or of master and servant, but of using
and putting the man in the hazardous employment which the act has
in view. The name of the act, ‘workmen's compensation law,' indi
cates that it is not to be limited to cases where the actual relation of
master and servant exists, but to workmen and those employing or

WORKMEN’

COMPENSATION

193

using them in the manner stated. When it appears that a person is
carrying on such hazardous employment for profit and that a person
in his service who he is employing or using therein receives an injury,
compensation follows.”
The claimant was insured in the workmen’s compensation fund, and
the premium was paid. He was doing the work of the Farmers’
Garage, for which he was employed, and in the course of that employ
ment he was injured.
The judgment was therefore affirmed, with costs.

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 — V o l u n t e e r — Ross v.
Independent School District No. 1 of Madison et al., Supreme Court
of South Dakota (February 24, 1926), 207 Northwestern Reporter, page
446.— One Ross, who was employed by the Madison high school as
assistant janitor, was killed while in the act of assisting an inde
pendent contractor in the erection of a flagpole on the school grounds.
It appeared that Nickle, superintendent of the school, by authority
of the board of education, contracted with one Robertson to erect
a flagpole on the school grounds and to have entire charge of the
work of raising it. In placing the pole preparatory to raising some
of the paint on it became marred, and Nickle, desiring to repaint
the marred spots, called upon Ross to assist in holding up the pole
so that he could paint the marred places. When the painting was
finished, Ross started forward toward the base of the pole, appar
ently to assist in placing it in the hole, whereupon he was struck
upon the head by a piece of timber that was being used by Robert
son’s men, which injury resulted in his death. His widow was
awarded compensation, which was affirmed by the circuit court.
The defendants appealed on the ground that the award was based
upon a conclusion of law. In reversing the order appealed from,
Judge Campbell, speaking for the court, said in part:

The raising of the flagpole and locating it securely in the excava
tion prepared was a matter with which the board of education and
its employees had no concern. It had been given over entirely to
the independent contractor Robertson. We are compelled to the
conclusion that the injury suffered by decedent did not arise out of
and in the course of employment, and that at the time the injury
was received the decedent was not acting in the course of his employ
ment, but solely as a volunteer, going to the assistance of the inde
pendent contractor, and that such action, on his part, was not con
nected with or incident to the performance of his duties.
The findings of the court recite that the decedent received the
injury in question, arising out of and in the course of his employment,
which is not a finding of fact at all, but a conclusion of law, and in
our opinion, in this case, an erroneous conclusion of law. The facts
found by the court, which are properly findings of fact, and not
conclusions of law, will support only one judgment, a judgment of
nonliability.

194

DECISIONS OF THE COURTS

The order and judgment appealed from were therefore reversed,
and the cause remanded, with directions to enter a judgment in
favor of appellants and against respondent, reversing the order and
award of the industrial commissioner and dismissing respondent’s
petition with prejudice.
W

o r k m en ’s

C o m p e n s a t io n — E

m plo yer s’

L ia b i l i t y - I

nter

Michigan Central R . Co, v . In
dustrial Commission, Supreme Court of Illinois (June 16,1926), 152
Northeastern Reporter, page 594-— Nellie Rogers m ade claim for com
pensation under the w orkm en’s com pensation act for the death of
her husband, C harles J. R ogers, who was killed on February 16,1924,
while in the em p loy of the M ich igan C entral R ailroad Co. She was
state

C o m m er c e— T r a in

R id e r —

granted an award b y an arbitrator, whose order was approved b y the
industrial com m ission and confirmed b y the circuit court o f C o o k
C o u n ty .

T h e em ployer brough t error.

T h e points in volved were

whether or n ot the inju ry arose out o f and in the course of decedent’s
em p loym en t, and whether he was at the tim e em ployed in interstate
com m erce.

It appeared that for some time prior to his death the deceased
had been employed by the railroad company as a train rider, whose
duty it was to protect the train from car thieves. At the time in
question, while he was on his way to the railroad yards to go out on
the scheduled run of the train he was to ride, he was struck by an
Illinois Central train, proceeding north on a track adjacent to the
track his train was to pass over, and killed.
In reversing the judgment of the lower court, Judge Heard,
delivering the opinion of the court, said in part:
On the first question the facts are not in dispute. Rogers was
employed by the Michigan Central Railroad Co., and the place
where he commenced performing his duties was in the railroad yard
of that company about Monroe Street, just east of the Illinois Cen
tral right of way and immediately west of Lake Michigan, in the
city of Chicago.
If the accident which resulted in the death of Rogers arose out of
and in the course of his employment by plaintiff in error, then at the
time of the accident he must have been engaged in interstate com
merce, as the only duties which the evidence shows he had, as an
employee of plaintiff in error, were duties pertaining to interstate
commerce.
If an employee of a railroad, while engaged in interstate com
merce, is killed in the course of his employment, his injuries arise out
of the employment, and the case is within the scope of the Federal
employers’ liability act (U. S. Comp. St., secs. 8659-8665) and not
the workmen’s compensation act. [Cases cited.l
The order of the circuit court was therefore reversed.

195

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

orkm en ’s

C o m p e n s a t io n — E m p l o y e r s ’

L ia b il it y — O cc u p a

Gordon v . Travelers’ Ins. Co., Court of Civil Appeals
of Texas (October 27, 1926), 287 Southwestern Reporter, page 911.—
G. E. G ordan was em ployed b y the T id a l W estern Oil C orporation in
t io n a l

is e a s e —

various kinds of work.

F ro m tim e to tim e he used paints, oil, and

gasoline of high specific gravity, stood in crude oil, and inhaled fum es
of gasoline and refuse oil in poorly ventilated work places.

He was

m ade ill at tim es, and finally becam e affected with nephritis, suffer
ing perm anent im pairm ent of health.

He su bm itted a claim for

com pensation, or if this should be found n o t available, dam ages were
sought in an action at law .

The industrial accident board construed the compensation law as
limited to accidental injuries, citing cases decided by the courts of
last resort. No compensation for a disease could therefore be allowed,
as the disease “ developed gradually, thus eliminating the accidental
element necessary to make the injury received compensable.”
As to the alternative claim for damages, the court said:
Under the facts set up in the petition, appellant’s employer was a
subscriber under our compensation law, and he, by his conduct, had
waived his right of action at common law against such employer.
The appellant could not recover at common law against his em
ployer, for the additional reason that no recovery was allowed at
common law for occupational or industrial diseases.4
Judgment for the defendant insurer and employer was therefore
affirmed, the plaintiff being found without redress.
This court in another district allowed compensation for death from anthrax
in case of a workman employed at skinning cattle, saying that the weight of
authority regarded such death as due to accidental contact with the anthrax
germ, and compensable. (Houston Packing Co. v. Mason (1926), 286 S. W.
862.)
W
D

orkm en’s

am ages—

C o m p e n s a t io n — E m p l o y e r s ’ L i a b i l i t y — S u it s

T r a n s it o r y

A c t io n s — N

o n r e s id e n t

fo r

S u it o r — R ig h t

o f A c t io n — Herrmann v. FranTclin Ice Cream Co., Supreme Court
of Nebraska (March 19, 1926), 208 Northwestern Reporter, page
.—
This action was brought by Lewis H. Herrmann, a resident of Mis
souri, against the Franklin Ice Cream Co., a Nebraska corporation,
having its principal place of business at Lincoln, Nebr., and also oper
ating a plant at Kansas City, Mo. The plaintiff alleged that he

141

4This position does not accord with that taken by the courts of New York, Pennsylvania, Wisconsin,
and others, either as respects the right to recover at common law for diseases due to occupation, or as to
the surrender of all right to sue in case of a noncompensable injury. The statement by the Texas com
mission of appeals (p. 181) that 44the act simply has no application, one way or another, to any employer
except one eligible to its burdens and benefits ” also seems to point to a different conclusion as to the
withdrawal of one right without another being granted.

42335°— 27------ 14

196

DECISIONS OF THE COURTS

sustained injuries while working at the company’s plant at Kansas
City, and sought to recover damages therefor in a Nebraska court.
Objection by the defendant to the jurisdiction of the court was sus
tained and the action dismissed with prejudice to a future action in
that State. Plaintiff appealed.
It was contended by the defendant that the State of Nebraska, by
enacting its workmen’s compensation law, had abrogated commonlaw actions by an employee for personal injuries arising out of and
in the course of his employment, and that they were therefore con
trary to the public policy of the State; also that it was discretionary
with the Nebraska courts as to whether or not they entertained such
actions by nonresidents. The court held that since by the terms of
the workmen’s compensation act all employers and employees were
not subject to its provisions, the right to a common-law action by an
injured employee occasioned by negligence of the employer had not
been abolished in the State. Judge Good, who delivered the opinion
of the court, said in part:
It appears that, at the time plaintiff sustained the injuries of
which he complains, Missouri had no workmen’s compensation law,
and that plaintiff could have maintained in the courts of that State
such an action as in the instant case. He had a right of action which
was enforceable in Missouri. Such action not being contrary to the
laws of our State and not being contrary to public policy or good
morals, it follows that the action may properly be maintained.
The question of the court’s discretion to entertain transitory
actions was then considered by the court and the opinion continued:
Whether the courts of this State, in their discretion, may entertain
or refuse to entertain jurisdiction in a transitory action brought by a
nonresident must be determined by statutory and constitutional
provisions. . Plaintiff is a resident and presumably a citizen of the
State of Missouri. Section 2, article 4, of the Federal Constitution
provides:
“ The citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.”
Section 1084, Comp. St. 1922, provides:
“ The district courts shall have and exercise general, original, and
appellate jurisdiction in all matters, both civil and criminal, except
where otherwise provided.”
The statute above quoted does not purport to vest any discretion
in the court, and even if it did so we have no doubt that it would be
invalid, as contravening the above-quoted provision of the Federal
Constitution. The statute is mandatory that the district court shall
exercise jurisdiction and it is not in its power to discriminate between
residents and nonresidents.
The judgment of the district court was therefore reversed and the
cause remanded for further proceedings.

197

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

ork m en 's

C o m p e n s a t io n — E m p l o y m e n t — P r e m is e s

E m

p l o y e r — Bristow

v. Department of Labor and Industries of State of
Washington, Supreme Court of Washington (June 1, 1926), 21+6 Pacific
Reporter, page 573.— Toby Bristow, prior to April 10,1925, had been
employed by the Mutual Lumber Co. His regular hours were from
8 to 12 a. m. and from 1 to 5 p. m. On the morning of April 10 he
came to work in his automobile and punched the clock at 7.25 a. m.
After punching the clock he passed through the plant where he worked
and went to a dam some 400 feet away. The dam was owned by
his employer and was used in connection with its plant. On his way
he met two of his fellow employees, whom he told he was going
fishing. He was never thereafter seen alive. His body was recovered
some 75 feet below the dam and 30 or 40 feet out in the river. His
pockets contained some fish line, a gaff hook, and his watch, which
had stopped at 7.40 a. m. Compensation was denied to his widow
by the department of labor and industries, and she appealed. The
superior court reversed the action of the department and gave judg
ment in favor of the widow. The department then appealed and
assigned as error two grounds: (1) That the decedent at the time of
his death was not in the employment of an employer, and (2) that
he was not upon the premises of any employer.
The court, on review, ruled that there was no error, holding that
the arrival of the deceased at the employer’s plant 35 minutes before
time for commencing work was not so premature that he could not
be considered as an employee as a matter of law. It found from
the evidence that the deceased was killed on the premises of the
employer, and that being true, recovery could not be denied under
the provisions of the workmen’s compensation act. <4Our statute
does not require that compensation for injury received on the em
ployer’s premises arise out of, or in the course of, his employment.”
(Rem. Comp. Stats. 7673-7798.)
The judgment of the court was therefore affirmed.

o r k m a n ’s

C o m p e n s a t io n — E x t r a t e r r i t o r ia l it y — J u r is d ic

f o r S e r v ic e O u t s id e S t a t e — Krekelberg v . M. A.
Floyd Co., Supreme Court of Minnesota ( February 5,1926), 207 North
western Reporter, page 193.— W illia m H. K rekelberg, a resident of
M inn eapolis, w as em ployed b y M . A. F lo y d C o . of th at city to work
fo r it in B u rlington , Iow a.
In the course of his em ploym en t he sus
t io n —

C ontract

tained injuries for which he w as awarded com pensation under the
M in n eso ta law .

T h e co m p an y conceded liability fo r com pensation,

b u t insisted th at its obligation should be governed b y the Iow a law ,
and brought certiorari to the Suprem e C ou rt of M in n eso ta to have
the action of the industrial com m ission reviewed.

198

DECISIONS OF THE COURTS

In sustaining the action of the commission the court said in part:
The facts are admitted, and liability is conceded. The sole ques
tion in dispute is whether the claimant is entitled to compensation
under the Minnesota compensation act or under the Iowa act (Laws,
1913, ch. 147). Under the Minnesota act he would receive $20 per
week; under the Iowa act $15 per week.
The court held that although “ there is authority for the claim that
where a contract of employment is to be performed in another State
the compensation law of that State applies,” the facts in the instant
case brought it within the doctrine applied in several cases that had
been adjudicated in that State, holding that—
Where a business is localized in this State, an employee performing
services pertaining to that business is within the protection of our
compensation law, although his services may be performed outside the
State.
The decision of the commission was therefore declared correct, and
was affirmed.
W

o r k m a n ’s

C o m p e n s a t io n — E x t r a t e r r i t o r i a l i t y — J u r is d ic

M a k in g C o n t r a c t a n d o f S e r v ic e — Norman v .
Hartman Furniture & Carpet Co., Appellate Court oj Indiana (Febru
ary 4,1926), 150 Northeastern Reporter, page 416— R aleigh H. N o rm a n ,
t io n —

P lace

a resident of C hicago, w hose contract of em p lo y m en t was m ade there,
w as em ployed as bu yer b y the H a rtm a n Furniture & C arp et C o ., a
corporation organized under the law s of Illinois and having its princi
pal place of business in C hicago.

By the term s of his em p lo y m en t he

w as required to m ake trips to other States, and while on such a trip
he was killed in an autom obile accident in Indiana.

H is w idow filed

claim for com pensation before the industrial board o f Indiana.

T h ere

w as an agreed statem en t of facts, b u t the claim was disallow ed for
w a n t o f jurisdiction.

T h e claim ant appealed.

The court, after citing the case of Darsch v. Thearle DufBeld etc.
Co. (77 Ind. App. 357,133 N. E. 525; see Bui. No. 344, p. 343), in
which the facts were very similar to those in the instant case, said
in part:
In the instant case the agreed statement of facts shows that appel
lant and appellee were residents of Chicago, 111., and that the contract
of employment was entered into in Illinois, that appellee had not local
ized in Indiana, and that Raleigh H. Norman, at the time of his injury
and death, was in Indiana, temporarily engaged in his master’s
business.
We hold that the case does not come under the provisions of the
workmen’s compensation act of this State (Laws, 1915, ch. 106), and
that the industrial board did not have jurisdiction.
The award was accordingly affirmed.

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

199

The same court reached a similar conclusion where an Indiana corporation
engaged the services of a “ freehold resident ” of the State, at the time tempo
rarily living in Illinois, to render services in Arkansas, in which State he was
injured. Inasmuch as the contract was neither made in the State nor to be per
formed therein, the fact of citizenship and that the employer’s principal place of
business was in Indiana did not suffice to bring the injury within the Indiana law.
(Bement Oil Corp. v. Cubbison (1925), 149 N. E. 919.)
Similarly, a salesman working in the State of Georgia under a contract with
an Indiana corporation, concluded by correspondence while the employee
was in South Carolina, was said to be under the law of the State in which the
service was to be rendered, though it was within the power and right of the par
ties to have stipulated, when making the contract, that the law of Indiana would
apply. In the absence of such action “ the law presumes that the parties con
tracted with reference to the laws of Georgia, where said contract was to be per
formed.” (Leader Specialty Co. v. Chapman (1926), 152 N. E. 872.)

W o r k m e n ’s

C o m p e n s a t io n — E x t r a t e r r i t o r i a l i t y — J u r is d ic

t io n — P r o c e e d in g s

S ta te

W ith o u t

C o m p e n s a tio n

A ct—

Johnson v . Carolina, Clinchfield & Ohio R y. Co., Supreme Court of
North Carolina (January 27, 1926), 181 Southeastern Reporter, page
890.— R . W. Johnson, a citizen o f N o rth C arolina, w as em p lo y ed b y
the C arolina, Clinchfield & Ohio R a ilw a y C o . in Tennessee under a
contract of em p lo y m en t m ade in th at State, and while in the course
of his em p lo y m en t as carpenter in a repair yard he received injuries
for w hich he brought action for dam ages in a court of N o rth C arolina.
Tennessee has a w orkm en ’s com pensation law w ith w hich the em
ployer had com plied.

N o rth C arolina, how ever, has no such law,

and actions for dam ages in th at S tate are governed b y the co m m o n law rule.

I t was argued b y counsel for plaintiff th at the case should

be tried under the co m m o n law or under the Federal em ployers’ lia
b ility a ct.
n ot

C ounsel for the defendant contended th at the case was

in interstate com m erce, and should be tried under the T en

nessee act, and if tried thereunder the plain tiff’s cause o f action was
barred b y the statu te of lim ita tio n s; he therefore m o v ed for a non
suit, w hich m o tio n w as overruled.
T h e plaintiff, in his pleadings,
tendered the follow ing issue:

“ W h a t dam ages, if any, is plaintiff

entitled to recover of the defendan t b y reason o f the negligence o f
the defendant, as alleged?”

T h e case w as tried on th e th eory th at

th e Tennessee w o rk m en ’s com pensation act applied, and the issues
were su bm itted to

a ju ry to determ ine w h at the dam ages should

be under th a t act.

T h e ju ry found for the plaintiff in the am ount

of $ 4 ,3 0 0 and the defendan t appealed.

The court held that in view of the fact that North Carolina had
no workmen’s compensation law and there was no provision in the
State for the enforcement of an act similar to that in Tennessee
which by its language could be enforced only in that State, there

200

DECISIONS OF THE COURTS

could be no judicial comity. It also held that considering the conflict
between the judicial decisions of the different States, such decisions
could have but little controlling influence on the courts of North
Carolina, and that the instant case should have been tried under the
common law as administered in the courts of North Carolina. The
verdict as rendered was said to be not sufficient to support a judg
ment for damages based on a common-law action for negligence. In
this connection the court, said in part:
To hold that a citizen of this State, under such circumstances, had
no remedy, except that provided by the Tennessee compensation act
in force in the State in which he was injured, having been induced
to go there to work in an emergency, would be a denial of any remedy
in the courts of this State. This court can not so hold.
We have held in Farr v. Babcock Lumber Co. (182 N. C. 725, 109
S. E. 833), that, where the contract of employment was made in
Tennessee and the employee was injured while working in North
Carolina, the Tennessee compensation act did not interfere with the
jurisdiction of the superior court in North Carolina.
For the reasons stated, a new trial was ordered.

o r k m e n ’s

eral

C o m p e n s a t io n — F e d e r a l S t a t u t e — I n j u r y

m ployee—

R ig h t

A c t io n A g a in s t T

h ir d

F ed

P ar t y — E ffect

R e c e ip t o f C o m p e n s a t io n — Lassel v . City of Gloversville, Supreme
Court of New York, Appellate Division (July 2, 1926), 217 New York
Supplement, page 128.— H ira m J. L assel was em ployed b y the F ed

eral G o vern m en t as a m ail carrier, and while in the perform ance of
his duties he w as injured through the negligence of an agent of the
defendan t in operating an autom obile.

H e was awarded and paid

com pensation under the Federal com pensation act of Septem ber

1916.

H e then brought action against the defendant to recover

dam ages for personal injuries.

T h e defendant denied the m aterial

allegations of the plaintiff and set up two affirm ative defenses n u m
bered second and third.

I n the second defense it w as alleged th a t

the plaintiff was injured while in the perform ance o f his duties as a
m a il carrier and th at he was com pensated therefor under the Federal
com pensation act.

T h e third defense reasserted the facts set up in

the second defense and further asserted th a t the plaintiff, b y accept
ing com pensation under the Federal act, made an election of remedies
inconsistent w ith the rem edy now sought to be enforced. The plain
tiff m o v ed to strike out the second and third defenses, b u t th e m o tio n
w as overruled and the plaintiff appealed.

The court referred to the Federal compensation act of September
7, 1916, and quoted therefrom as follows:
If an injury * * * for which compensation is payable under
this act is caused under circumstances creating a legal liability upon
some person other than the United States to pay damages therefor,

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

201

the commission may require the beneficiary to assign to the United
States any right of action he may have to enforce such liability of
such other person or any right which he may have to share in any
money or other property received in satisfaction of such liability of
such other person, or the commission may require said beneficiary
to prosecute said action in his own name.
Then, speaking of the plaintiff's right to bring this suit, the court
said, in part:
The plaintiff in this case was never ordered by the commission to
assign, and has never in fact assigned, his right of action to the United
States. Obviously the act contains no provision which would
debar the plaintiff from maintaining this action. On the contrary,
the act, by providing that the injured employee must, from moneys
recovered from a third party as the result of a suit brought by him,
reimburse the United States for compensation previously received,
necessarily, by implication, sanctions the bringing of such an action
by an employee upon his own initiative.
The defendant also contended that, independently of the statute,
it was entitled to set up the payment of compensation to the plain
tiff by the United States in reduction or mitigation of damages, but
the court held that sv.ch an argument was not tenable, and in support
of its position quoted from the opinion in the case of Drinkwater v.
Dinsmore (80 N. Y . 390), as follows:
In such cases, proof of the insurance actually paid would not tend
to show that the damage claimed was not actually occasioned by
the wrongdoer; but it would simply show that compensation had
been received by the injured party in whole or in part from some
other person— not that the wrongdoer had made satisfaction, which
alone could give him a defense.
The court then concluded:
We think that the matter set up in the second and third defenses
constituted no defense and was wholly irrelevant.
The order was reversed, with $10 costs and disbursements, and the
motion to strike out granted.

o r k m e n 's

C o m p e n s a t io n — H

azards of

B u s in e s s — I n j u r y

Kent v. Kent et al., Su
preme Court oj Iowa (April 6, 1926), 208 Northwestern Reporter, page
709.— The plaintiff in this case was employed by the defendant in
his grocery store as cashier and bookkeeper only. Her duties were
performed on a platform some 8 feet above the main floor of the
store, reached by a steep flight of steps with no risers between the
steps. A platform scale was standing on the floor of the store be
neath the stairway with its arm projecting through, partially cover
ing one of the steps. At the time in question plaintiff, in coming
down the steps to answer a telephone call, tripped on the arm of the
C l e r ic a l E

m ployee—

P r o x im a t e C a u s e —

202

DECISIONS OF THE COURTS

scale and was injured. Her claim for compensation under the work
men’s compensation act was denied by the deputy commissioner,
which order was affirmed by the commissioner. On appeal to the
district court, the order was reversed and compensation awarded,
from which judgment the defendant appealed. The court in affirm
ing the award, speaking through Judge Vermillion, said in part:
Section 2477ml6, Code Supplement of 1913, in force at the time
of the injury, provided, in part, as follows:
“ In this act unless the context otherwise requires: * * *
*Workman’ is used synonymously with ‘ employee,’ and means any
person who has entered into the employment of, or works * * *
for any employer except * * * those engaged in clerical work
only, but clerical work shall not include one who may be subjected
to the hazards of the business. * * *”
The statute is not happily worded; but its evident purpose was,
and its effect is, to first exclude from the operation of the compen
sation law as a class employees engaged in clerical work only, and
then to extend the benefits of the law to those of the excluded class
who, notwithstanding their employment is clerical only, are, never
theless, subjected to the hazards of the business of the employer.
The inquiry is, therefore, whether appellee’s injury was proximately
caused by a hazard of her employer’s business of conducting a grocery
store, as distinguished from a hazard incident merely to her clerical
employment.
Appellee’s injury was not caused by the stairway alone, but by the
combination of the open steps in the stairway and the projecting arm
of the platform scale. The scale was a thing in no matter connected
with appellee’s clerical employment. Obviously, its use was confined
to the operation of the grocery business. If or when the scale, in
combination with the stairway, constituted or became a hazard, it
was a hazard, not of the appellee’s clerical employment, but of the
grocery business conducted by the employer.
The stairway afforded the only means of reaching or leaving the
place where appellee was employed.
Her descent of the stairway with the obstructing scale arm sub
jected her to a hazard of the employer’s business. The mere fact
that the telephone call may have been for her personally had no
causal connection with her injury.
The judgment was therefore affirmed.

o r k m e n ’s

C o m p e n s a t io n — I n j u r y — D

C a u s e — Schafer

eath from

I n t e r v e n in g

& Olson v. Varney, Supreme Court of Wisconsin
(October 12,1926), 210 Northwestern Reporter, page 859.— A. F. Var
ney, a carpenter employed by Schafer & Olson, while in the course
of his employment received injuries resulting in a broken leg. He
was taken to a hospital, where defective setting necessitated rebreak
ing and continued treatment. After several weeks he developed
smallpox. He was immediately taken home and cared for by his
wife, but death from smallpox resulted a short time thereafter.

203

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

There was testimony of the physician in charge that the deceased’s
death was partially induced by his lowered vitality owing to his pre
vious accident. The industrial commission awarded his widow com
pensation, and the defendants brought an action in the circuit court
to review the award. The award was affirmed and the defendant
appealed.
Six members of the the supreme court participated in the consid
eration of the appeal, one having been the circuit judge presiding in
the trial below. The six were equally divided as to the conclusion to
be reached. Under the established rule, this left the judgment below
undisturbed, and it was accordingly held to be affirmed.

o r k m e n ’s

C o m p e n s a t io n — I n j u r y — G r o s s N

e g l ig e n c e —

Castleberry v. FrostJohnson Lumber Co., Commission oj Appeals of Texas (April 28, 1926),
288 Southwestern Reporter, page 11+1.— J. S. Castleberry sustained inju
ries while in the course of his employment with the Frost-Johnson Lum
ber Co., which resulted in the loss of his foot. In due course of admin
istration he was awarded compensation, which he accepted, and there
after instituted suit in the district court against his employer to
recover exemplary damages for alleged negligence. There was judg
ment for the defendant in the district court, which was affirmed by
the court of civil appeals. That court held that the right at common
law of an injured employee to recover exemplary damages arising
from gross negligence of his employer was by express legislation as
well as necessary implication abrogated, and affirmed the judgment
of the trial court. The plaintiff brought error. It was contended
that the court erred in its holding, for such common-1 aw right was
saved to the plaintiff by the last clause of section 7 of article 5246,
act of 1917, as follows:
em plary

am ag es—

C ommon-L a w

R ig h t s —

And in such suit brought by the employee or his legal heirs or
representatives against such association or employer, such award,
ruling, or finding shall neither be pleaded nor introduced in evidence.
The commission of appeals, in its opinion, pointed out that since
the civil court of appeals wrote its opinion in the instant case the Legis
lature of Texas had construed the more or less indefinite and meaning
less language of the statute through codifiers appointed by it to iron
out such provisions, and as corrected the clause depended upon for
recovery by the plaintiff is in part as follows: “ Nothing in this law
shall be taken or held to prohibit the recovery of exemplary damages
by the surviving husband, wife, heirs of his or her body * *
The word "employee” used in the act was eliminated.

204

DECISIONS OF THE COURTS

The court referred to the compensation laws of many of the States
and cited numerous cases that have arisen therein wherein the facts
were similar to those here considered. It then said in part:
The courts of all the States, so far as we have been able to ascertain,
seem to hold that all rights of action at common law are abrogated by
these compensation acts except where expressly provided otherwise;
that is to say, some of the States make definite exceptions in certain
respects. But we have found none which authorizes the recovery of
exemplary damages by an injured employee arising out of gross
negligence.
Under our Texas law employees have all of their original rights when
injured through willful acts or omissions. As in other States, when
injured by negligence, either ordinary or gross, another plan of com
pensation has been substituted. We think this has been true under
every act of this kind passed in Texas.
For the reason stated the judgments of the district court and
court of civil appeals were affirmed.

o r k m e n ’s

C o m p e n s a t io n — “ I n j u r y ” — I n j u r y

ooden

L e g — London Guarantee & Accident Co.

(Ltd.) v. Industrial Commission,
Supreme Court of Colorado (October Jh 1926), 21+9 Pacific Reporter, page
61+2.— William Chambers, an employee of the Weicker Transfer &
Storage Co., was awarded compensation for the accidental injury
of his wooden leg. From that award the defendant appealed to the
district court, which affirmed the award. The employer and insurer
brought a writ of error.
The Supreme Court of Colorado reversed the judgment of the lower
court with directions to disaffirm the award. Judge Denison said
that “ compensation can be awarded for personal injuries only, which
means injury to the person. A wooden leg is a man’s property, not
part of his person, and no compensation can be awarded for its injuries.”
Judgment reversed with directions to disaffirm the award.

Loss o f E y e — D is f ig u r e
Sustar v. Penn Smokeless Coal Co.,
Supreme Court of Pennsylvania (February 8, 1926), 182 Atlantic
Reporter, page 31+5.— Clause (c) of section 306 of the workmen’s com
pensation act of 1915, establishing a specific and exclusive schedule
of compensation for all disabilities or permanent injuries resulting
from the loss of certain members of the body, such as a hand, an
arm, a foot, a leg or an eye, was amended by the act of May 20, 1921,
section 1, so as to provide for serious and permanent disfigurement
of the head and face of such a character as to produce an unsightly
appearance, and such as is not usually incident to the employment,
60 per cent of the wages, for not to exceed 150 weeks.
W

orkm en’s

ment—

o m p e n s a t io n —

Independent A

w ards—

I n jury—

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

205

Andy Sustar suffered an injury in the course of his employment
on March 1, 1922, which resulted in the loss of his right eye and the
serious disfigurement of his face, wholly apart from the injury to the
eye. The referee awarded him compensation for 275 weeks— 125
weeks for the loss of the eye and 150 weeks for the disfigurement.
The board reduced the allowance for disfigurement to 75 weeks,
and on appeal to the court of common pleas it was disallowed alto
gether. The plaintiff then appealed to the superior court. The
question presented was whether or not the new paragraph above
referred to applied to and provided for additional compensation for
serious and permanent disfigurement when in the same accident
which caused the loss of a body member.
The court held that the new paragraph did apply in such cases
and in its opinion said in part:
Under our view of the law, the legislature classified certain per
manent injuries under section 306 (c) and provided that for an injury
included therein the employee should be paid compensation for
either a specific number of weeks (as for the loss of a member), or a
period to be determined by the board, according to the extent of
the injury, not exceeding 150 weeks (as for permanent disfigure
ment) ; that each injury was thus valued, irrespective of the actual
loss of earnings or incapacity to labor, and that for two or more such
injuries occurring at the same accident the employee is entitled to
be paid for the aggregate of the periods so specified or determined.
The judgment of the court of common pleas is reversed, and the
record is remitted to said court with directions to enter judgment in
favor of the claimant for $2,400, representing 125 weeks for the loss
of the right eye and 7£ weeks for permanent disfigurement, at $12
per week; payments heretofore made to apply thereon; costs to be
paid by appellees.
The defendant appealed to the supreme court, which adopted the
opinion of the superior court and affirmed the judgment rendered
therein.
The fact that an eye is useless from an industrial standpoint is held by the
Supreme Court of Minnesota to be no bar to an award under the compensation
act of that State, which prescribes a fixed benefit for the loss of specified mem
bers. In the instant case the employers had paid full compensation for the loss
of use of the eye, and contended that they could be required to make no further
payments, but the court held the language of the to law be “ plain,” so that it
was “ constrained to give effect” thereto, and affirmed the award made by the
industrial commission. (Shaughnessy v. Diamond Iron Works (1926),208 N. W.
188.)
Where an eye was defective but of measurable usefulness in avoiding objects
between the workman and the light, being rated as “ of some considerable and
practical use industrially,” an injury causing its enueleation was compensable
without modification on account of the previous condition of defective vision.
In so holding, the Supreme Court of Michigan affirmed an award made by the
department of labor and industry of the State. (Hayes v. Motor Wheel Corp.
(1926), 208 N. W. 44.)

206

DECISIONS OP THE COURTS

In connection with the foregoing case may be noted a decision of even date
handed down by the same court. Here a workman suffered injury to an eye,
causing 87 per cent loss, and was awarded compensation during disability. He
returned to work at the same wages, and the employer asked to have payments
stopped, while the employee asked to be compensated as for the loss of an eye.
An award was made by a deputy but reversed by the department, and payment
under the agreement was stopped. The supreme court affirmed the latter find
ing, saying that it would be “ fallacious” to hold that the plaintiff had lost an eye,
that it “ still renders him service, and he still has vision to lose before it can be
said he has lost his eye.” (Crane v. iEtna Portland Cement Co. (1926), 208 N.
W. 45.)
W

orkm en’s

C o m p e n s a t io n — I n j u r y — L o ss

O ne

Phalanx

Bell v . Merchants’ Cotton
OH Co., In re Bell, Supreme Court of Louisiana (February 1,1926), 107
Southern Reporter, page 486.— Fred B ell, an em ployee of the M e r

F in g e r — C o n s t r u c t io n

Statute—

ch a n ts’ O il C o ., suffered the loss of one phalanx of the third finger and
recovered ju dgm en t under the w orkm en ’s com pensation act.

The

ju d gm en t was reversed b y the court of appeal and the suit dism issed.
T h e claim ant applied for certiorari or writ of review .

The question in the case was whether or not the act allowed com
pensation for the loss of only one phalanx of a finger. Subsection
(d) of section 8 of the act provides for compensation for the loss of a
finger or fingers and for the loss of two phalanges of any one finger.
Subsection (e) of the same section makes provision for injuries not
falling within any of the provisions already made, specifying that if
an employee is seriously permanently disfigured about the face or
head, or if the usefulness of a member or physical function is seri
ously permanently impaired, the court may allow such compensation
as is reasonable in proportion to the compensation theretofore specifi
cally provided for the disability specified, not to exceed 65 per cent of
the weekly wages for 100 weeks. Subsection 3 of the same section
declares that the maximum compensation shall be $20 and the mini
mum $3 per week, notwithstanding anything to the contrary in the
statute.
It appears that the lower court undertook to allow under subsec
tion (e) such compensation as was reasonable in proportion to the
compensation specifically provided in cases of specific disability named
in the act. This would have been proportionately less than $87.75
specifically provided for the loss of two phalanges of the finger.
The supreme court, in its opinion delivered by Judge O’Niell, held
that the court could not under subsection (e) fix the compensation at
less than $300, since according to subsection 3 the minimum allowance
was $3 per week, and under subsection (e) the term of payment was
fixed at 100 weeks. The court then said in part:
Our conclusion is that subsection (e) does not allow compensation
for the loss of only one phalanx of a finger, even though compensation

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

207

for such injury is not provided for in any previous provision of the
statute, and even though the case is one where the usefulness of a
member, or a physical function, is seriously impaired. In a sense,
the case is one “not falling within any of the provisions already
made” in the statute. But the case is one in which, by necessary
implication, the previous and specific provisions of the statute do not
allow compensation. The provisions of subsection (e), which are gen
eral in character, were not intended to allow compensation for an
injury for which other and specific provisions of the statute, by nec
essary implication, denied compensation. The language of subsection
(e) is not peremptory, for it says:
“ The court may allow such compensation as is reasonable in pro
portion to the compensation herein above specifically provided in
cases of specific disability above named, '' etc.
If the court cannot allow such compensation as is reasonable in
proportion to the compensation specifically provided for the disabili
ties named without violating other and mandatory provisions of the
law, and without producing an anomalous result, the statute does
not compel it.
Our conclusion is that the judgment of the court of appeal is
correct.
The judgment was therefore affirmed, at relator's cost.

W orkmen's Compensation—Injury—N otice—L im itatio n —
Prejudice— Itzkowitz v. Finer & Bachrach, Supreme Court of New
York, Appellate Division (November 28, 1926), 218 New York Sup
plement, page 272.— Section 18 (as amended by ch. 634, Acts of
191*8) of the workmen's compensation law of New York provides
that notice in writing of an injury for which compensation is payable
shall be given to the commission and to the employer within 30 days
after the accident causing such injury. In the instant case the board
excused the failure of the claimant to give the required" notice as
follows:
The employer was not prejudiced because, at a hearing held upon the
claim for compensation filed by Abraham Itzkowitz, Jacob Finer,
one of the employers in the copartnership that employed him, testi
fied that the employer was not prejudiced by the failure to give
written notice of injury and that he excused the failure to give written
notice of injury.
From an order of the board in favor of the claimant the employer
and insurance carrier appealed.
The court held that the somewhat prevalent practice of some
referees of asking the employer or his agent if the employer has been
prejudiced by the failure to give the statutory notice could not be
sustained. Judge Cochrane, speaking for the court, said in part:
A further reason why such testimony is improper is because the
question of prejudice depends on a determination of the facts in each
particular case, and of the law applicable to such facts, and it is not

208

DECISIONS OP THE COURTS

the province o f a witness to determ ine either the facts or the law . I t is
for the board, and n ot the witness, to draw the inference of prejudice
or w an t thereof.
T h e award w as reversed and the claim rem itted, w ith costs against
the State industrial board to abide the event.

The Supreme Court of Tennessee excused a workman from the consequences
of delay in giving notice where he had called his foreman’s attention to a sup
posed trivial injury, and had been directed by the latter to the employee in
charge of first aid, which he received. Serious conditions developed, requir
ing amputation of a finger, but compensation was denied in the trial court on
account of failure to give notice. The law excuses failure if a reasonable excuse
appears, and the supreme court of the State found such excuse in the circum
stances stated above, and the ignorance, without apparent fault, of the serious
ness of the injury. (Ware v. Illinois Central It. Co. (1926), 281 S. W. 927.)
Where the results of an injury to an eye became apparent only after several
months, the Supreme Court of Washington held that the limitation for giving
notice ran from the development of the injury and not from the date of the
accident causing it, affirming the superior court’s decision which reversed the
industrial commission, which had held the claim to be barred by lapse of time
since the accident. (Stolp v. Department of Labor and Industries (1926), 245
Pac. 20.)
W o r k m e n ’ s C o m p e n s a tio n — I n j u r y — O c c u p a t i o n a l D i s e a s e M a t t e r — P r e e x i s t i n g D i s e a s e — DumbrowsJci
Jennings cfe Griffin Co., Supreme Court of Errors of Connecticut
(January 28, 1926), 131 Atlantic Reporter, page 7J+5.— C arl D u m b r o w ski had been em ployed b y the defendant com p an y for 18 years, all
I n h a lin g F o r e ig n

of which tim e his work consisted of grinding steel im plem ents upon a
w et sandstone wheel.

In the course of his em p lo y m en t, and arising

out of it, the claim ant inhaled particles of foreign m a tter flying from
the wheel, and these becam e em bedded in his lung tissue, causing a
condition .of pneum oconiosis, which was first discovered in O ctober,

1923.

A s a result of the pneum oconiosis the resistance of the claim ant

to infection w as lowered, and as a result of the lowered resistance
pu lm onary tuberculosis developed som etim e betw een O ctober,
and A pril,

1924, to ta lly incapacitating claim an t.

1923,

T h e com m issioner

awarded full com pensation under the occupational disease am end
m en t o f chapter
of

1921.

142, A cts of 1919, as am ended b y chapter 306, A cts

D efen d a n t appealed on the ground th at the com m issioner

erred in so ruling as to place on it the burden o f proving th at the
pneum oconiosis developed prior to Juty

1919 (effective date of

a c t); in n ot ruling th a t claim an t, to get full com pensation, m u st prove
th a t the lowered resistance to infection from which the tuberculosis

1, 1919; in allow
1919 as retroa ctive; and

developed began to exist at a date on or after July
ing any com p ensation ; in treating the act o f

in denying defendan t’s m otion to correct the finding.

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

209

In affirming the award the court said that under the workmen’s
compensation act of July 1, 1919, negligence and assumption of risk,
etc., were abolished, and all that is required of the plaintiff to entitle
him prima facie to full compensation is to establish the following
facts; (1) An abnormal condition of his body arising after July 1,
1919, out of and in the course of his employment; (2) that this con
dition produced an incapacity to work for the requisite statutory
period; (3) that this condition of incapacity to work was caused by
accident or disease, which, however, need not be traced to a definite
happening or event.
The finding and award disclosed that these essentials were estab
lished by plaintiff.
This ruling places the burden of proof upon the defendant, after a
prima facie case has been established, to show such facts as will de
feat or diminish recovery. It was said that this is in accord with
reason and justice, is supported by the great weight of authority,
and is in harmony with General Statutes, paragraph 5364, as to the
conduct of compensation cases before a commissioner.
We hold, therefore, that the burden of proof rested upon the defend
ants to prove that a preexisting disease existed in the plaintiff prior
to July 1, 1919, which barred him from the recovery of full compen
sation.
The superior court was advised to sustain the award of the com
missioner.
W o r k m e n ’s C o m p e n s a tio n — I n ju r y — P r e e x is t in g C o n d it io n —
C o n n e c t i o n — E v i d e n c e — Gausman v. B . T. Pearson Co.,
Supreme Court oj Pennsylvania (November 23, 1925), 181 Atlantic
Beporter, page 247.— David H. Gausman was awarded compensation
for personal injuries alleged to have been sustained in the course of
his employment. The award was affirmed by the court of common
pleas of Allegheny County, and defendant appealed. Gausman, who
was 74 years old and afflicted with chronic nephritis and arterioscle
rosis, was engaged by the defendant in laying a floor on the morning
of July 14, 1923, and about noon of that day was found wandering
around outside of the building in an abnormal condition. He soon
recovered sufficiently to care for his tools, and, it being quitting time
(Saturday noon), he went home by street car. Later in the day,
while returning home from the barber shop he was stricken with apo
plexy, which it was claimed resulted from heat exhaustion suffered
on the morning of the day in question. It appeared that the day
was not excessively hot, that the plaintiff was working alone at light
work and that he was not subjected to any unusual exertion. It also
appeared that about five days previously he was found in a condition
similar to that suffered on the day he was stricken. The court
reversed the award, and in the course of its opinion said m part:
C au sal

210

DECISIONS OF THE COURTS

Before one ailment can be attributed to another, the existence of
the latter must be shown. Here claimant’s case fails, for the finding
of heat exhaustion is not sustained by the proof. The evidence relied
upon to support this finding is that of Doctor Frederick, and while
he testified he diagnosed the case “ as hemiphlegia [paralysis of one
side], following a heat exhaustion,” he did not see claimant until after
the latter had been stricken in the evening, and knew nothing of his
condition at noon except by report. The doctor further said, in effect,
that claimant’s entire affliction that day may have been of apoplectic
origin. As to that, he testified:
“ Q. In your opinion, was this a sunstroke, or heat exhaustion, or
stroke of apoplexy? A. The apoplexy very suddenly followed it
[the heat exhaustion] very promptly; or the apoplexy may have been
right with it. It may have been the apoplexy instead of heat ex
haustion, that produced it.”
The doctor also mentioned the presence of certain symptoms as
common to both, and said he discovered no paralysis until the next
day (Sunday). From his evidence it is equally probable that the
disability suffered by claimant at the noon hour was apoplectic as
that it was heat exhaustion, and, from all the other evidence in the
case, even much more so. Furthermore, the burden of proof is not
met by the testimony of a witness when so conflicting: as to render
any inference drawn therefrom a mere guess.
Treating wThat happened to claimant that Saturday noon as the
beginning of the apopletic disturbance and a part thereof, it was not
shown to have been an accident within the meaning of the workmen’s
compensation law. To constitute an accident, there must be some
untoward occurrence aside from the usual course of events. Such
stroke will be treated as an accident when resulting from a shock,
strain, or other injury to the physical structure of the body [citing
cases].
The judgment was therefore reversed, and the award of the referee
set aside.
A similar conclusion was reached by the Court of Appeals of Kentucky in a
case (Wallins Creek Collieries Co. v. Williams (1925), 277 S. W. 234) where
a mine superintendent assisted a blacksmith to shoe a recalcitrant mule, becom
ing quite warm in the effort. He soon complained of being sick, was taken
home, and a physician called, who found him suffering from pains in his heart.
He died that evening. The industrial board held that the death was the result
of an accident arising out of and in the course of the employment, and the circuit
court affirmed the award. The employer claimed that the death was due to
angina pecfcoris, a well-defined and certain symptom of a diseased condition of
the heart. The court of appeals found no evidence to support the claim of acci
dental injury, there certainly being nothing of a traumatic nature, and the judg
ment was reversed, with directions to dismiss the claim.
On the other hand, the Supreme Court of New York, appellate division
affirmed an award allowed a school janitor who hastened to the schoolhouse,
in his care on the occasion of an alarm of fire. Haste and excitement caused
an acute dilation of the heart, already weakened by chronic myocarditis, death
following. Over the contention that there was no accident, the court ruled in
the claimant’s favor, saying that the case presented the elements of an acci
dental injury— a mishap unlooked for, unexpected, and without design on the
part of the deceased. “ The excitement to which Thompson was subjected and

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

211

his activity undoutedly hastened his death, brought his diseased heart condition
to the climax. The overexcitement and exertion were the real proximate cause
of his death. The acute dilation of the heart was the accidental injury.”
(Thompson v. City of Binghamton (1926), 218 N. Y. Supp. 355.)
The Supreme Court of Utah sustained an award allowed in the case of a
workman who struck his knee with a hammer, causing no visible abrasion, but
followed by discoloration and swelling. An abscess later developed in the knee,
and afterwards one in the hip, which incapacitated him. It was found that the
hip contained the same kind of bacteria as found in the knee. Medical opinions
as to the causal connection differed, one contention being that the claimant’s
condition was due to boils, from which he had suffered some months prior to
the injury. However, the award was made as applied for, and affirmed by the
court on the ground that the facts as to the infections and the expert opinion
evidence furnished a substantial basis, a “ satisfactory foundation,” for the find
ing that the injury was the cause of the disability. (Denver & R. G. W. Ry.
System v. Industrial Commission (1926), 243 Pac. 800.)

W o r k m e n ’s

C o m p e n s a t io n — I n j u r y — P r e e x i s t i n g

D is e a s e —

ETkhorn Coal Co.
v. Combs, Court oj Appeals oj Kentucky (May 21,1926), 283 South
western Reporter, page 1007.— H arlan C om b s was em ployed b y the
N o t i c e — E v i d e n c e — A p p o r t io n m e n t o f A w a r d —

E lkhorn C oa l C o .

O n N o v em b er 14, 1923, while engaged in snaking

logs dow n the m ountain side w ith a team , a large rock th at had been
dislodged b y one of the logs cam e crashing dow n the hillside and
struck him , knocking him dow n.

H is forem an, T o w n H a ll, and also

som e of his colaborers, were present at the tim e and saw the accident.
T h e y w ent to where C o m b s was lying and assisted him to his feet.
A fter a half hour or so he w ent ahead w ith his work.

H e worked

the whole da y follow ing the accident and returned to w ork on the
succeeding day, b u t quit before night and never returned to his labor.
H e was exam ined b y the d efen d an t’s physician, who m ade a written
report of the accident.

In the latter part of D ecem ber or the first

part of January C o m b s becam e quite ill, his vision was m u ch affected,
and he suffered greatly w ith his back.
his

personal

D o cto r

physician,

P igm an,

and

H e was exam ined join tly b y

D o c to r

Sum ner,

D o cto r

B ach .

the

They

co m p a n y ’s

doctor,

recom m ended

th at

C om b s go to Lou isville at once for an exam ination and treatm en t in
a hospital.

T h e exam ination m ade at the hospital show ed th at he

was suffering from an acute stage of B r ig h t’s disease.
the early part of Feb ruary follow ing his injury.

H e died in
p o st-m o rtem

exam ination m ade b y D r . P . Y . Pursiful and D o cto r Sum ner showed
the right kidney considerably discolored in its lower h alf and con
taining a lot of pus.

T h e y decided th a t these conditions brought

abou t the death of C o m b s.

T h e com pensation board m ade an award

to his w idow and infant children, which w as affirmed b y the circuit
court, and the defendant appealed.

42335°— 27------ 15

T w o grounds were urged

for

212

DECISIONS OF THE COURTS

reversal: (1) That there was no evidence in the record to sustain the
findings of the board that Combs’ death was caused by the blow he
received in November, and (2) that notice was not given to the com
pany in accordance with sections 4914 and 4915 of the statutes.
It was also suggested by the defendant that if the court concluded
that there was some evidence to support the board’s finding then it
should conclude that such evidence demonstrated that Combs’ death
was caused in part by the injury he received and partly by a pre
existing disease and that the award be apportioned accordingly. The
court in affirming the judgment of the lower court said in part:
As to the first contention, it is settled that, if there is any compe
tent evidence to sustain the findings of fact by the compensation
board, such findings are conclusive in the absence of a claim of fraud
or mistake. There being no such claim here, the only question to
determine is whether or not there was any competent evidence to
sustain the board’s findings.
After citing the facts as set forth above, the opinion continued:
Although appellant introduced a great deal of evidence to the con
trary of what appellee had proved, yet there being some competent
evidence, as shown, on which the board could rest its findings of fact,
such finding is conclusive.
The evidence did not show that Combs’ death w~as caused by a
combination of a preexisting disease and a traumatic injury. Appel
lee’s evidence established the sole cause as a traumatic injury. Appel
lant’s evidence established the sole cause as a disease unaccompanied
by traumatic injury. Under the proof it was either one or the other,
but there was no proof that it was a combination of both. But, had
there been, there was, as above shown, evidence to establish that the
sole cause of Combs’ death was the traumatic injury, and, the board
so finding, its finding is conclusive.
So far as the notice of Combs’ injury to his employer is concerned,
the evidence shows that Town Hall, the foreman of Combs, witnessed
the accident and gave him immediate help, and that on the succeed
ing day the superintendent learned of it. Dr. Owen Pigman made a
written report of this accident for appellant on blanks furnished the
compensation board. A copy of this report is in the record, and bears
date December 3, 1923, just two weeks after the accident. The blank
in this report headed, “ Give an accurate description of the nature
and extent of injury,” is filled out: “ Bruise in right lumbar region
followed by acute nephritis.”
In considering sections 4914 and 4915 of the Statutes of Kentucky
relied upon by the defendants, the court cited Wilburn v. Auto
Exchange (198 Ky. 29, 247 S. W . 1109) and Bates & Rogers Con
struction Co. v. Emmons (205 Ky. 21, 265 S. W . 447), wherein these
sections were construed and held in effect to mean that any fact or cir
cumstance which brings to the attention of the employer or his princi
pal representative knowledge that the employee has received an injury
will be sufficient notice.
The opinion concluded as follows:

213

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

All this being true, as appellant clearly had knowledge of the acci
dent and injury, the want of immediate notice to it by Combs was
not a bar to these proceedings.
It results, therefore, that the judgment of the lower court, affirm
ing the award of the workmen’s compensation board, is correct, and
it is hereby affirmed.
A case involving the same principle was before the same court (Wallins Creek
Collieries Co. v. Jones et al. (1926), 283 S. W. 1067), where the employee, Jones,
was injured while lifting a heavy car. The evidence disclosed that he was “ a well
and able-bodied man before the accident,” but that subsequent thereto he was
found to be suffering with tuberculosis. The board found that he was suffering
from a preexisting disease that had been lighted up by the accident, and granted
an apportioned award based on the two causes, which was affirmed by the court.

orkm en’s

C o m p e n s a t io n — I n j u r y A r is in g O u t

m e n t — -E m p l o y e e

il l e d

E m ploy

by P o l ic e m a n — Sure Pure Ice Co. v . Indus

trial Commission et al., Supreme Court of Illinois (February 18,1926),
150 Northeastern Reporter, page 909.— Fran k M a n th ey was em ployed
b y the Sure Pure Ice C o. as chief engineer.

H is regular hours were

from 8 o ’clock a. m . to 4 o ’clock p. m ., b u t he also w orked at any
hour when called or when there w as a breakdow n of the m achinery.
H e was frequen tly at the plan t at night in the discharge of his duties.
On the night of his death the regular night engineer was off d u ty , and
along about 1 or 2 o ’ clock M a n th e y w ent to the p lan t to see if every
thing was all right.

H e w ent into the building and rem ained there

until som e tim e after 3 o ’clock when he cam e out, and was standing on
the sidewalk talking to a M r . F o u n ta in , who h ad com e to the plan t
w ith him .

A b o u t this tim e a squ ad of policem en drove up in an auto

m obile, and M a n th e y started to walk aw ay tow ard the p la n t; the
officers called him to h alt when he was abou t 10 feet aw ay, b u t he
kept on w alking.

One o f the officers called on him to h alt and fired

into a pile of salt near him .

Officer K e n n e d y then called on him to

halt, b u t he walked on to the door of the plan t.
and killed him .

K e n n e d y th en shot

H is w idow w as granted an award b y th e industrial

com m ission, which was affirmed b y the circuit court of C oo k C o u n ty .
T h e defendant appealed on the ground th at the com m ission and the
court erred in their findings th at the deceased m et his death b y an
accident arising ou t of his em p loym en t.

C hief Justice D u n n deliv

ered the opinion of the court and said in p a r t:

The injury must be incidental to the nature of the employment,
and it is not enough that the presence of the injured person at the
place of the injury is because of his employment, unless the injury
itself is the result of some risk of the employment. If the injury is
sustained by reason of some cause having no relation to the nature
of the employment, it does not arise out of the employment.

214

DECISIONS OF THE COURTS

After citing the case of City of Chicago v. Industrial Commission
(127 N. E. 49; 292 111. 406; see Bui. No. 309, p. 275), the court said:
In the case last cited we held that the injury there received at the
hands of a fellow workman did not arise out of the work, but as the
result of a quarrel over a private matter which was not connected
with the employment, and therefore there could be no award of
compensation.
The opinion continued :
There was no causal connection between the duties of Manthey
and his shooting by the policeman. Manthey’s duties required him
to be at the place where he was at the time he was killed. The
duties of the policemen required them to guard and protect from
thieves, robbers, and burglars their section of the city, including the
plant of the plaintiff in error. Their attention, as the evidence shows,
had been particularly called to the plant of the Certified Ice Cream
Co., adjoining the plant of the plaintiff in error, because of four com
plaints which had been received by the police of stealing from that
company, but their duty extended to guarding the whole district.
What happened to Manthey might as well have happened to any
man employed at night anywhere in the section guarded by these
policemen. The cause of his death arose from an agency which was
entirely outside of his employment, and there was no causal connec
tion between the agency and the employment. Had he walked away
anywhere in this police district from these officers after they bad
ordered him to halt he would probably have been shot as he walked.
He was only about 13 feet distant from the policeman who shot him,
and was walking and not running. The officers were in sufficient
force to overpower him, but such considerations have no place in this
case.
The judgment was reversed and the award set aside.
The Supreme Court of Alabama affirmed an award in behalf of the widow of
a truck driver who was killed while in the course of his employment by an acci
dental shot by a boy who was shooting at sparrows. To the contention that
the injury did not arise out of the employment the court replied that, while the
risk may have been external to the employment, still the employment caused
the exposure to the risk, so that the award was justified. (Boris Const. Co. v.
Haywood (1925), 106 So. 799.)

W orkm en's Compensation— In ju ry A risin g O u t o f Employ
ment— E rysip elas— Proxim ate Cause— Bagley’s Case, Supreme

Judicial Court of Massachusetts (June 30, 1926), 152 Northeastern
Reporter, page 882 .— Charles A. Bagley, 80 years of age, was employed
as a night watchman by the Marine Hardware Co. It was his duty
among other services to sweep the floors every night and deposit the
sweepings in an old coal bin near the boiler room. The boiler room
was dimly lighted and the bin was dark. O n April 27, 1925, the
sweeping having been completed and the refuse deposited, the dece
dent fell on the floor and suffered abrasions from which erysipelas

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

215

developed, causing his death May 2, 1925. Harry G. Bagley made
claim for compensation under the workmen’s compensation act for
the death of his father. He was granted an award by the industrial
accident board, which was affirmed by the superior court. The
insurer appealed, contending that the accident did not arise out of
the decedent’s employment. The court, on review, quoted from
the evidence adduced at the hearing before the board as follows:
The only medical evidence was presented by the claimant, and the
doctor testified that he examined decedent’s face and noticed that
there were marked abrasions and that blebs had formed on his face.
The deceased gave the doctor a history, saying “ he fell or tripped
over— or something— at the shop; he fell, striking on his face on the
floor of the room.” The doctor further testified that the decedent
got the infection when he fell on the dirty floor and that that was a
typical case of what would cause erysipelas. There was no direct evi
dence as to what caused the deceased to fall except his own statement
before he died that he tripped and fell.
The question, whether the fall was entirely due to natural weakness
because of age, as the insurer asserts, was on record one of fact, and
the general finding in favor of the dependent must stand.
T h e decree was therefore affirmed.

W orkmen ’ s C ompensation — I njury A rising O ut of E mploy
— P reexisting C ondition — E pilepsy — Marion Machine

ment

Foundry & Supply Co. v. Redd, Supreme Court of Oklahoma (Novem
ber 10, 1925), 241 Pacific Reporter, page 175.— The claimant in
this case was an employee of the company named, engaged at work
near which a gas flame was burning for the comfort of the claimant
and other workmen. “ Being seized with an epileptic fit, to which
he was subject, he fell in such way that his hand was burned by the
flame before he could be removed by other workmen.”
This was the finding of the commission, and it was held by the
court to be sustained by the evidence. However, the commission
had granted an award on account of the resultant disability, and the
company brought proceedings to vacate the award. The court
reversed the commission on the ground that the injury did not arise
out of the employment. “ But for the epileptic seizure there would
have been no injury.”
The commission was consequently directed to vacate the award
and dismiss the proceedings.
The Supreme Court of New York, Appellate Division, had before it a case in
which a workman receiving benefits for permanent total disability was killed by
falling from a ladder which he was climbing as a matter of curiosity or interest in
a building in course of construction, but with which he was in no way employed.
It was held that the death was due to vertigo, and if this was due to his prior

216

DECISIONS OF THE COURTS

injury it would be compensable. The denial of the widow’s claim was accord
ingly reversed, and the case remanded to the industrial board for a determina
tion of the matter of causal connection. (Colvin v. Emmons & Whitehead
(1926), 215 N. Y. Supp. 562.)
(A memorandum furnished by the board stated that the causal connection
was found to exist, and benefits were allowed accordingly.)

W orkm en’s Compensation— In ju ry A rising O ut o f Employ
ment— V isitin g D u rin g Lunch Time— Babineau’s Case, Supreme

Judicial Court of Massachusetts (January 5, 1926), 150 Northeastern
Reporter, page 4-— Antoine Babineau was employed by the New Bed
ford Spinning Co. as a sweeper in the spinning room located on the
third floor of the building. T h e boiler room was located on the first
floor of the building, and deceased and other employees were accus
tomed to congregate in that room during the lunch period. On March
6, 1923, the deceased, while sitting in the boiler room, was injured by
the explosion of a boiler and died from the result of his injuries. H is
widow was awarded compensation and the superior court of Suffolk
County affirmed the award, from which judgment the defendant
appealed.

The court held that the deceased had no contract of employment
whereby his presence was required in the boiler room, but that he
was there during his lunch period, a time that he was free to go and
come as he pleased, free from the control of his employer, and there
fore the employer could have no reasonable cause to expect that he
would meet with such an accident. The court, speaking through
Judge Sanderson, said in part:
The mere fact that the accident occurred on the employer’s prem
ises is not enough to establish liability. (Hallett’s Case, 230 Mass.
326, 119 N. E. 673.) The employee voluntarily went to the boiler
room for his own comfort or pleasure at a time when, so far as the
evidence discloses, the employer had no control over him, and the
employment cannot be said to be a proximate contributing cause of
the injury [citing cases].
T h e decree awarding com pensation w as therefore reversed and

decree entered in fa v or of the insurer.

A salesman who used his own automobile in his business went hunting early
one morning, and afterwards went about his daily duty. At lunch time he
noticed the gun still in the car and started to remove it, when he shot himself,
injuring his hand. The trial court denied compensation, but the court of civil
appeals allowed it. The Commission of Appeals of Texas reversed this allow
ance, saying that the presence of the gun was in no way related to the employer’s
business, and the entire incident was disconnected therewith. (iEtna Life Ins.
Co. v. Burnett (1926), 283 S. W. 783.)

217

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

o r k m e n ’s

C ourse

C o m p e n s a t io n — I n j u r y A r is in g O

E m p l o y m e n t — A c c id e n t — D

eath

u t op a n d i n t h e

F rom H

em orrhage—

Frandila v . Department of Labor and Indus
tries, Supreme Court of Washington (February 4, 1926), 243 Pacific
Reporter, page 5.— G u st Frandila who was 60 years old at the tim e
P r e e x is t in g C o n d it io n —

of his death, had been a coal m iner, but had been out of e m p lo y m en t
for som e eight m on th s, his only work during th at period consisting of
chopping firewood for his h om e.

O n the 2d d a y of June, 1924, he was

em ployed in digging a ditch for a sewer in the streets of H o q u ia m .
H e w ent to work at 1 o ’clock in the afternoon and abou t three hours
later was seen b y the forem an to stop chopping on a root at the b o tto m
of a ditch 4 } ^ feet deep, lean against the side of the ditch, and collapse.
H e was assisted to the sidewalk, where he died in a bou t 15 m in utes.
H is w idow m ade claim for com pensation under the w orkm en ’s com
pensation act, which was disallowed b y the departm en t of labor and
industries.

Its decision was reversed b y the superior court, and from

th at decision the departm ent of labor and industries appealed on
the ground th at the death of the deceased was n o t the result of a for
tuitous event bu t was occasioned b y the hardening of the arteries
sufficiently advanced to h ave caused death under ordinary exertion.

The court, in disposing of this case, said in part:
The question, then, is whether the testimony in this case shows a
fortuitous event.
It is plain from the evidence that the hardened arteries, coupled
with overexercise in the course of employment, caused either the
hemorrhage or embolism. The chopping of the root was a definite
and particular occurrence which was the contributing, proximate
cause of the death. The question of whether an injury has been the
result of an accident or an accident arising out of the employment,
which are narrower terms than fortuitous event, has been considered
by many courts, and the result of these decisions seems to be that
an accident exists when a man undertaking work is unable to with
stand the exertion required to do it, whatever may be the degree of
exertion used or the condition of the workman’s health.
It is not necessary in order for a person to recover compensation
as an injured workman that he must have been in perfect health at
the time he received the injury. That is not the- intent of the act,
and it cannot reasonably be given any such interpretation. Where
a workman, not in perfect health, during the course of his employ
ment makes an extra exertion, which, in addition to his infirmity,
causes an injury, such injury is a fortuitous event and brings him
within the operation of the compensation.
The judgment was affirmed.
On the same day the court had before it for review a similar case (Cole v.
Department of Labor and Industries, 243 Pac. 7), involving the same principles,
in which an award had been granted by the superior court. Here a man, “ not
conscious of being seriously afflicted physically/’ caused a rupture in the region
of his heart by exerting himself to the utmost in pushing a piece of timber, per
manent partial disability following. The award was contested mainly on the

218

DECISIONS OF THE COURTS

grounds that the injury to Cole was not the result of an accident but was caused
by a culmination of a progressive affliction consisting of a diseased heart and
arteries, accompanied by high blood pressure. The court affirmed the judgment
of the superior court that the disability was caused by accident, citing the case
of Frandila v. Department of Labor and Industries, supra, as controlling.

W
the

o r k m e n ’s

C ourse

C o m p e n s a t io n — I n j u r y
of

E m ploym ent— A

r is in g

c c id e n t a l

O ut
D

and

is c h a r g e

in
of

e v o l v e r — H e a r s a y E v id e n c e — McDaniel v . City of
Benson et al., Supreme Court of Minnesota ( May 28, 1926), 209
Northwestern Reporter, page 26.— L eith H . M c D a n ie l was a police

O f f ic e r ’ s R

officer of the city of Benson, M in n ., and although designated as chief,
he was in fa ct the only police officer of the city.

A t abou t 4 o ’clock

in the afternoon of M a y 2 6 , 1925, he w ent to his h om e to get his
revolver.

H e placed it in a shoulder holster and in stooping over

for som e purpose the revolver fell out of the holster to the floor and
was discharged, the ball shattering the bones of his right leg betw een
the knee and the ankle.

H e died three weeks later from b lood

poisoning resulting from the wound.

H is w idow was awarded co m

pensation b y the referee, whose award was affirmed b y the industrial
com m ission.

T h e defendant brought certiorari to have the findings

of the referee and the board reviewed.

I t contended th at it was

error to adm it testim on y of statem en ts m ade b y the deceased as to
the m anner in which the accident happened.

I t also o bjected to the

findings th at the injuries of the deceased arose out of and in the
course of his em ploym en t.

It appeared that McDaniel was alone at the time of the accident;
that he dragged himself to the telephone and called a doctor and
then called Mrs. Minikas, who lived two or three blocks away, and
asked her to call his wife, saying that he had shot himself. She
called Mrs. McDaniel and then ran to the McDaniel home. While
the doctor dressed the wound and stopped the flow of blood
McDaniel told them briefly how the accident happened. He also
told attendants at the hospital how it happened. It was the testi
mony of these persons that was objected to.
The court, in affirming the findings of the referee as affirmed by
the commission, said in part:
How much of this testimony offended the hearsay rule is not
important, for the statements were all to the same general effect,
and at least those made to the doctor and Mrs. Minikas immediately
following the accident were properly received in evidence. Further
more, there is nothing which would justify saying that the injuries
were intentionally self-inflicted, and the presumption is to the
contrary.
That the deceased sustained his injuries during the hours of service
is beyond question. He was the sole police officer of the city, and
his service required him to perform all the duties usually performed

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

219

by such officers. His field of service embraced the entire city. At
times such officers have occasion to use weapons, and may properly
carry them at any time. The deceased kept his weapons at his
home when not carrying them. If, when on duty unarmed, he con
cluded that he ought to have his revolver, it cannot well be said
that he was outside the line of duty in going to the place where it
was kept to get it.
The award was therefore affirmed.
In a case before the Supreme Court of Utah, a compensation award was
affirmed where an officer dropped his revolver into a ditch while on duty, and
was cleaning it at home, during which operation it was accidentally discharged,
injuring his knee. The city contended that the officer was not at the time on
duty or acting as an officer. The court suggested that this contention would
not be good if he had undertaken at once to clean the gun where he was, nor if
he had gone to the town hall, if there was one, and there done the work. There
being no other place convenient than the one chosen, “ we thus do not see wherein,
in cleaning the gun at his house, the officer was any less in the course of his
employment than if he had undertaken to clean it at some other place.” (Beaver
City v. Industrial Commission (1926), 245 Pac. 378.)

W orkm en’s Compensation— In ju ry Arising O u t o f and in th e
C ourse o f Employment— A c t o f God— Employee K ille d by
L ightning— United States Fidelity & Guaranty Co. v. Rochester et al.,

Court of Civil Appeals of Texas (February 20,1926), 281 Southwestern
Reporter, page 306.— W . C. Rochester was employed by the Lone
Star Gas Co. O n July 30, 1924, while engaged along with several
other employees of the company in excavating a pipe line, and while
using a steel shovel, he was struck by lightning and instantly killed.
The industrial accident board granted his widow and two minor
children an award, and the insurance carrier appealed to the district
court, which affirmed the findings of the board, and the insurer again
appealed. It was not disputed that the employee’s death was caused
by being struck by lightning, but it was contended by the insurer that
he was killed by an act of God and it was not therefore liable under
the terms of article 5 2 4 6 -8 2 of the workmen’s compensation act of
the State of Texas, which, so far as is here pertinent, reads as follows:

The term “ injury sustained in the course of employment,” as used
in this act, shall not include: (1) An injury caused by the act of God,
unless the employee is at the time engaged in the performance of
duties that subject him to a greater hazard from the act of God
responsible for the injury than ordinarily applies to the general public.
It was testified that the place where the deceased was working was
flat open country with the exception of a few trees 150 to 200 yards
away; that the pipe line was 18 inches under ground; that it was
dry, and that there was no warning evidence of lightning or rain, but
that suddenly a bolt of lightning struck the deceased, splitting the
handle of the shovel he was working with and causing his death.
The testimony of J. L. Kelley, an expert witness, was to the effect that

220

DECISIONS OF THE COURTS

one standing over a pipe line with a steel shovel in his hands, as was
the deceased, would be in a more hazardous position and more liable
to be struck by it than would others who were several feet away from
him. The admission of Kelley's testimony was objected to, and the
action of the court in overruling the objection was made the basis of
this appeal.
The court, in affirming the judgment of the lower court, said in
part:
Under the rules so indicated, we feel unable to say that the witness
Kelley was incompetent and that the trial court erred in overruling
appellant's objection to his want of qualification; and, if we are correct
in this, we think we must further hold that the evidence and facts of
which we may take judicial notice are sufficient to sustain the jury's
finding and support the trial court's judgment following it.
It is to be observed that in the case before us there is a distinct
finding by both the accident board and the jury to the effect that the
deceased at the time of his injury “ was engaged in the performance
of duties that subjected him to a greater hazard from the act of God,
responsible for the injury, than ordinarily applies to the general pub
lic." And this finding, under the authorities and under well-recog
nized rules that we must follow, cannot, we think, be said to be
unsupported by the evidence, or set aside.
Where a workman painting buildings in an amusement park sought refuge
from a storm in a building that was blown over and he received fatal injuries,
the Supreme Court of Nebraska reversed an award in the widow’s favor, saying
that, in the absence of special hazard, risks to which the general public is exposed
do not furnish grounds for compensation, and no special hazard appearing in the
instant case compensation could not be allowed. (Gale v. Krug Park Amuse
ment Co. (1926), 207 N. W. 677.)
In a case before the Court of Appeals of Kentucky in which claim was made
for the death of a workman from heat stroke, a reversal of the board’s award
was affirmed, the court saying that even if it should concede that the heat stroke
accidentally arose out of the employment, “ it still follows that it is not com
pensable under our statute because it is a disease and not resultant from trau
matic injury.” (Smith v. Standard Sanitary Mfg. Co. (1925), 277 S. W. 806.)

W orkm en's Compensation— In ju ry A rising O u t o f and in th e
C ou rse o f Em ploym ent— A sph yxiation— Evidence — I n fe r
ences— Public Service Co. oj Colorado v. Industrial Commission,

Supreme Court oj Colorado (October 11, 1926), 249 Pacijic Reporter,
page 1094•— For two years prior to his death Ralph Clark was
employed by the Public Service Co. of Colorado. His usual employ
ment was digging and filling ditches for laying gas pipes; he would
sometimes connect a pipe and put in a coupling or cap to keep the
dirt out. On June 15, 1925, Clark was working with a gang on a job
at No. 801 East Eighteenth Avenue, Denver. That night the work
was completed (unless possibly the plug hereinafter mentioned was
not placed), and on the next morning Clark assembled with the gang

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

221

at the tool box near No. 801 and tools were taken out to begin
another job about a block away. It appeared from the testimony
that Clark, after taking some material to the new location, was seen
to go away again toward the tool box. About 15 minutes later the
foreman went to the tool box and was there told by one Blumberg
that there was a bad gas leak at No. 801. The foreman, on verifying
that statement, called an employee to bring a plug, which he did, and
in putting it in he stepped on Clark who was lying unconsious on the
floor near the open pipe. A wrench and plug were on the floor, the
wrench almost under Clark and the plug some 5 or 6 feet away. All
efforts to revive him failed and he died of asphyxiation by gas. The
industrial commission awarded his widow compensation, and the
award was affirmed by the district court.
The case came up to the supreme court on a writ of review. It
was contended by the defendants that the evidence did not justify
the making of an award. The court, on considering the three con
ceivable explanations for the deceased's conduct which resulted in his
death, rejected the theories of suicide and wanton mischief as lacking
in evidence or probable cause, and held that the third explana
tion— that of attempting to mend a fault in the pipe— was the most
likely. Of this the court said in part:
The most probable purpose with which he went to the house was
for the toilet. He had leave the previous day to use it. Something
diverted him, perhaps the smell of gas, which led him to the cellar,
if he had not perhaps gone there to look for a water-closet. At all
events, it is certain that something led him to go to the tool box
(perhaps back from the cellar to the tool box as the foreman later
did) and get a wrench and to go to the cellar and to do something
with reference to the gas pipe. If it had been left with a rag only,
he may have been overcome before he could put a plug in; he may
have taken a plug from the tool box as well as the wrench, dropped
it, and have been overcome before he could find it. All these sug
gestions are mere probabilities, it is true, but they or something
more or less like them may be fairly inferred from the evidence, and
if the deceased was in the cellar for the honest purpose of doing
some such thing for his employer it was within the course of his
employment, and if so, his accidental asphyxiation arose out of that
employment.
We cannot say that the conclusion of the commission that the
accident was in the course of and arose out of his employment had
no evidence to justify it.
The judgment was therefore affirmed.
W orkmen ' s C ompensation — I njury A rising O ut op and in
C ourse of E mployment — C ausal C onnection — E vidence —
L imitation — Smith v. Primrose Tapestry Co. ( Maryland Casualty Co.,
the

intervener), Supreme Court oj Pennsylvania (January 4, 1926), 1S1
Atlantic Reporter, page 703.— George Smith was employed by the

222

DECISIONS OF THE COURTS

Primrose Tapestry Co. On December 9, 1921, while unloading a
box from a truck it slipped and fell against him, bruising his side,
causing the injury which, it was claimed, resulted in his death. On
the day of his injury Smith was placed in the care of his family
physician, who gave him such treatment as was believed necessary.
Though previously in good health, Smith became progressively
worse, and his incapacity to further labor became complete. He
was treated at a hospital in April, 1923, and in August and Septem
ber at a second institution in charge of another physician, but no
improvement resulted. On October 1 his family physician resumed
control, and remained in charge until his death, October 30, 1924.
A post-mortem examination showed the existence of a sarcoma at a
point below where the bruise occurred. No claim for compensation
had been made by Smith, but within one year from his decease a
petition was filed on behalf of his dependents and an award granted
against the employer and the Maryland Casualty Co., the insurance
carrier, which had intervened as a party defendant. From an aw^ard
sustained by the board and the court of common pleas the Maryland
Casualty Co. appealed.
To the contention of the defendants that Smith’s death was not
the result of the injury, the court held that there was a causal con
nection between the injury and death, as it had been proven that
Smith was in good health prior to the accident and that no other
intervening cause for his sudden breakdown appeared. The doctor
who was in charge of the patient testified that he believed that “ the
cancer, as a result of which death ensued, arose from the injury.
Of all persons he was best qualified to give a professional opinion.”
It was further contended that the claim for compensation was not
within the statutory limits and that the statute could not be extended
to cover cases not within its words. The court held that there were
no words in section 315 of Pennsylvania Statutes of 1920, paragraph
21984, which justified the construction contended for. Judge Sadler,
speaking for the court, said:
Whether the death is immediate, or follows later, so long as it
occurs within 300 weeks of the injury, the right of the widow to make
claim accrues, and continues for one year thereafter. There is no
statutory bar to filing a petition within the limits mentioned. In so
deciding, under the facts here presented, there was no error.
The judgment was affirmed.

W orkmen ’ s C ompensation — I njury A rising O ut of and in the
C ourse of E mployment — C ity E mployee B itten by D og— Ryan

v. City of Port Huron et al., Supreme Court of Michigan (June 7,
1926), 209 Northwestern Reporter, page 101.— James Ryan was em
ployed by the city of Port Huron as foreman of a gang of street

WORKMEN *S COMPENSATION

223

cleaners, and on August 4, 1924, while seeking shelter from a rain
storm in a near-by private garage he was attacked by a dog and bit
ten on the leg. He died from the effect of the injury on September
16, 1925. Catherine Ryan, widow of the deceased, was awarded
compensation by a deputy commissioner, and defendant appealed to
the board. A daughter, Helen, was subsequently granted an award
by the deputy commissioner on the ground that she was wholly de
pendent upon the deceased, and the defendant also appealed to the
board from that award. While the appeals wrere pending Catherine
Ryan died.
On a hearing the board reversed both awards, holding—
(1) That the accident to the decedent, James H. Ryan, did not
arise out of and in the course of his employment.
(2) That the plaintiff, Helen Ryan, was not a dependent upon
the decedent, James H. Ryan, at the time of the happening of the
accident.
The claimant brought certiorari. The only question considered
by the court was whether the accident arose out of and in the course
of the deceased’s employment.
The court, in the course of its opinion, declared:
It is well settled that, to justify an award, the accident must have
arisen out of as well as “ in the course of ” the employment, and the
two are separate questions to be determined by different tests.
It then said in part:
So, in the instant case, if it may be said that the workman’s act,
in seeking shelter from the storm, did not break the employment,
and that he was then still in the course of his employment, it does
not follow that the accident arose out of the employment. To jus
tify a finding that it arose out of the employment it must appear that
the injury received was a risk to which he was exposed by the nature
of his employment.
Being bitten by a dog can not be traceable to the nature of the
employment in which Mr. Ryan was engaged. There was not the
slightest causal connection between them. The risk of being bitten
by a dog was not greater to him because of his employment than it
was to any member of the public who chanced to be in the locality.
The order of the board was therefore affirmed, and the writ
dismissed.
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— Tiralongo v.

Stanley Works, Supreme Court of Errors of Connecticut (April 8, 1926),
183 Atlantic Reporter, page 98.— This was a claim for compensation
arising out of the death of a workman employed by the Stanley
Works. The decedent was a helper on a fiat machine; it was an
oily job and he used a burlap bag tied around his waist, apron fashion,
to protect his clothing from the oil. On January 30, 1925, he left

224

DECISIONS OF THE COTXItTS

his work and went into the toilet room. When he came out his
clothes were on fire, and as a result of his burns and the shock he died
that evening. The origin of the fire was not determined by the com
missioner, but it was brought out at the hearing that the duties of
decedent did not require him to use fire, and there was no flame or
fire anywhere about the toilet room or the room where he worked.
The decedent was seen to take a lighted cigarette from his mouth,
crush it, and throw it on the floor while his clothes were burning.
The rules of the factory forbade smoking during working hours, and
notices to that effect were posted in the toilets and lavatory.
The commissioner concluded that the injuries sustained by the
deceased did not arise out of his employment and refused an award
to claimant, who thereupon appealed to the superior court, which
affirmed the action of the commisioner. Plaintiff then appealed to
the supreme court of errors on the ground that the court below had
erred in holding that the decedent’s injuries did not arise out of his
employment.
The court held that the question raised by the plaintiff's appeal
was to be determined by applying to the facts found the rule stated
in Marchiatello v. Lynch Realty Co. (94 Conn. 260, 263; 108 Atl.
799):
An injury arises out of an employment when it occurs in the course
of the employment and is the result of a risk involved in the employ
ment or incident to it, or to the conditions under which it is required
to be performed. The injury is thus a natural or necessary conse
quence or incident of the employment or of the conditions under
which it is carried on. Sometimes the employment will be found to
directly cause the injury, but more often it arises out of the condi
tions incident to the employment. But in every case there must
be apparent some causal connection between the injury and the em
ployment or the conditions under which it is required to be performed,
before the injury can be found to arise out of the employment.
Judge Wheeler then said in part:
There is in the facts found no causal connection between the injury
and the employment or the conditions under which it is required to
be performed. The absence of fire or any means of setting the cloth
ing of the decedent on fire, and the fact that the decedent was smok
ing in the toilet room, makes the conclusion from the facts found
inevitable that it originated from his own act in smoking in the toilet.
It was not a risk in the employment or incident to it, or to the con
ditions under which it was required to be performed and arising
through decedent’s negligence.
There is no error.
The question of disobedience to orders was raised in a case that came before
the Supreme Court of New York, Appellate Division, but unsuccessfully for the
employer. A boy about 4 feet 4 or 5 inches tall, was employed at washing cloths
in a print works, using vats of almost equal height. The cloths became clogged
in a vat, and he mounted the rim to stir them with a stick, when he fell in and

225

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

was fatally scalded. From an award to his mother an appeal was taken on the
ground that the boy had been forbidden to climb upon the vats, so that he was
outside the course of his employment in doing so. The court rejected this con
tention, saying that even if disobeying the order he was nevertheless doing the
work at which he was set, at the proper place and time. “ On account of his low
stature, compared to the height of the tank, it was reasonably necessary for him
to mount the tank in order to do his work.” Such disobedience as might be
charged against him in the circumstances “ did not place the employee outside
the sphere of his employment.” (Erdberg v. United Textile Print Works (1926),
216 N. Y. Supp. 275.)
W o r k m e n ’ s C o m p e n s a tio n — I n j u r y A r i s i n g O u t o f a n d in t h e
C o u r s e o f E m p lo y m e n t — E m p lo y e e S h o t b y F e l l o w

W orker—

Franlclin Coal & Coke Co. v . Industrial
Commission, Supreme Court of Illinois (June 16, 1926), 152 North
eastern Reporter, page 498.— E m it t T r o tt, an em ployee of the F ra n k
lin C oal & C ok e C o ., was shot on O ctober 3, 1922, b y A th e rn B ea m ,
C a u s a l C o n n e c tio n —

another em ployee of the sam e com p an y, w h o had on th at d a y ter
m inated his em p lo y m en t w ith the com p an y and collected all wages
due h im .

It w as brought out in the testim on y at the hearing th at

T r o tt had accused B ea m of n ot treating him fairly in the work they
were doing for the com p an y, and also th at th ey had quarreled vio
len tly a few days before the shooting occurred.

T h e board proceeded

against the com p an y under the w orkm en’s com pensation act

for

$15 per week for a
period of 30 weeks for tem porary to ta l incapacity, $15 per week for
175 weeks for com plete loss of the left leg, and $664 for m edical,
com pensation.

etc., treatm en t.
m ission and
on

T h e arbitrator aw arded T r o tt

T h a t order was affirmed b y the industrial com

the com p an y brough t

certiorari.

The

circuit court,

review, quashed the writ of certiorari and confirmed the award.

Thereupon the

com p an y brought

error.

It contended th at the

injury on which the award was based did n ot arise ou t o f T r o t t ’s
em p lo y m en t; th at there was no causal connection

established

tween the shooting resulting in the injury and T r o t t ’s em ploym en t.
Judge D u n c a n , rendering the opinion of the court, said in p a rt:

We think the evidence shows clearly that the injury in question
arose out of Trott’s employment. It was the direct and final result
of the quarrel that the two employees had over the question of whether
or not Beam was treating Trott fairly in designating the hauls or
trips that Trott should make for him and on his run as a driver.
This appears from the last words that were passed between them as
Beam stood, with his coat and all his clothes on, under the shower
while looking at Trott. In this final meeting when he was shot,
Trott was not the aggressor and had not done anything that would
provoke a quarrel out of any reasonable man on that day and time.
The whole evidence tends to show that Beam was still harboring
malice against Trott that was engendered by reason of the quarrel
over the question of the division of work a few days previous, and

226

DECISIONS OF THE COURTS

that he had quit the employment and received his final pay with the
expectation and intention of taking revenge on Trott, so that he
could make his escape without having any further occasion to delay
his flight by collecting what was due him.
This court held in Pekin Cooperage Co. v. Industrial Com. (285 111.
31, 120 N. E. 530 [see Bui. No. 258, p. 191]), that where one is injured
by another employee because of a dispute about the manner of doing
the work he was employed to do, the accident to the injured employee
grows out of the employment and is compensable.
It is also a prerequisite in all the cases that the injured employee
who seeks compensation, or whose representatives or wife and children
seek compensation by reason of his death, shall not have been the
aggressor in the fight or conflict in which he was injured, so that he
may be said to be at fault or the cause of his injury at the time of
the conflict. The case now in hand comes clearly within the rulings
laid down in those cases and the court did not err in confirming the
award.
The Court of Civil Appeals of Texas affirmed an award in behalf of a widow
wThose husband was shot while advancing in a threatening attitude, with a large,
sharp knife in his hand, toward a fellow workman against whom he had a griev
ance on account of an incident for which he apparently held the fellow workman
responsible, though mentioning no names. The offense complained of, if commit
ted, constituted a gross insult, amounting in law to an aggravated assault and
battery. The court held that, on the evidence, the aggrieved man was not
chargeable with willful intention unlawfully to injure his fellow, and that the
latter in shooting him, with fatal results, inflicted an injury which “ had to do
with and originated in the work,” and was compensable. (Indemnity Ins. Co
of North America v. Scott (1925), 278 S. W. 346.)
Where the decedent had been employed under a superintendent against whom
he developed a grievance, and kicked at him, threw an open knife at him, and
approached him with threats and menaces while armed with a deadly weapon,
the Supreme Court of Pennsylvania held that the aggressor, by such conduct
“ voluntarily abandoned his status as an employee and became a criminal,
obstructing and not furthering his master’s business/’ so that there could be no
compensation as for an injury in course of employment when the superintendent
shot the man in self-defense. (Curran v. Vang Const. Co. (1926), 133 Atl. 261.)
The Supreme Court of Minnesota affirmed an award in the case of a workman
fatally shot by an unknown man while the former was carrying a bag of money
from the cash registers of the store in which he was employed to the cashier’s
office. There was evidence of an apparent attempt to rob, though unsuccessful.
The court Jield that if the killing was from a personal motive no compensation
wras due; but as the commission found justifiable grounds for deciding that there
was an attempt to rob, the conclusion that the killing arose out of the employ
ment and was compensable was correct. (Davis v. S. S. Kresge & Co. (1926),
210 N. W. 1003.)
____________

W orkm en ’s C ompensation — I njury A rising O ut of and in the
C ourse of E mployment — F reezing — Proximate C ause — Brady

v. Oregon Lumber Co., Supreme Court oj Oregon (February 9, 1926),
243 Pacijic Reporter, page 96.— The defendant was engaged in log
ging and the manufacture of lumber. Its sawmill was at Dee, a sta
tion on the Hood River Valley Railroad, and its logging camp was

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

227

some 16 miles away, and between the camp and Dee it operated a
logging railroad. On November 19, 1921, it closed its logging camp
on account of heavy snows, notifying the plaintiff, Harry Elmer
Brady, and the other employees that the camp was closed. The
defendant's foreman, Charles Blanding, told the men that a train
would come up and take them out of the camp that day and that
their board had been reduced from $1.20 to 50 cents per day. The
train failed to arrive at the camp as promised, so on the following
day the plaintiff and four others started out to walk to the Hood
River Valley Railroad. The snow was four feet deep. They failed
to reach the u old camp," a point about half-way between the ter
mini of the road which they had planned to make their first stop,
and were forced to spend the night in the snow. During the night
it became bitter cold. On the second day they reached a farmhouse
some 2)4, miles from the railway above referred to, where the plain
tiff and some others found shelter. On reaching the farmhouse the
plaintiff found that his feet were frozen. He was taken to a hospital
at Hood River, where it was found necessary to amputate the toes
of his right foot and his left leg below the knee. He brought action
against the defendant to recover damages for injuries resulting from
the freezing of his feet while wading through the snow. He averred
that the company was negligent in failing to anticipate the storm
and to take precautions to protect the employees and also in failing
to operate the tram from Dee to the logging camp. There was a
judgment of nonsuit for the defendants and plaintiff appealed on the
ground that the trial court erred in determining as a matter of law
that the logging camp, on Sunday, November 20, 1921, was a safe
place to remain.
The court examined a number of cases in w^hich the question of
“ accidents arising out of and in the course of employment" had been
decided. It quoted from the opinion given in the case of Coronado
Beach Co. v. Pillsbury (172 Cal. 682, 158 Pac. 212; see Bui. No. 224,
p. 308), as follows:
The accidents arising out of the employment of the person injured
are those in wiiieh it is possible to trace the injury to the nature of
the employee's work or to the risks to which the employer's business
exposes the employee. The accident must be one resulting from a
risk reasonably incident to the employment.
Judge Brown, speaking for the court, said in part:
We have carefully read the evidence and the authorities cited by
plaintiff in support of his various contentions. There came a time
when the plaintiff ceased to be an employee of the Oregon Lumber
Co. Had that time come before he sustained his personal injury?
When his feet were frozen he was not in the woods engaged in
42335°— 27------ 16

228

DECISIONS OF THE COURTS

logging. He was neither going to nor returning from his labors, nor
was he performing some act incidental to logging. To hold that he
was injured in the course of his employment by an accident arising
out of his employment as a logger would be to go beyond any case
that we have been able to find in the books, and we have examined
many decisions in addition to those cited by respective counsel. We
are compelled to reject the contention that he was engaged in logging
when injured, or in performing any service incidental thereto.
If it be conceded that the company’s train could have made a run
from Dee to the logging camp on Saturday, but that it neglected to
do so, under the facts of record this, of itself, does not render the
company liable to the plaintiff for an omission of duty as alleged.
Notwithstanding the train was not run to the camp on that day, the
plaintiff remained safe and uninjured. He does not pretend to offer
any evidence that the camp where he was situate was without food,
shelter, or warmth, and the learned judge granted the motion for a
nonsuit upon the ground that plaintiff abandoned a place of safety
and willfully plunged into a situation that proved to be dangerous.
We fully appreciate the fact that the plaintiff has suffered serious
injuries, and that his cause has been presented to this court with
much zeal and ability. But we can not follow counsel in the applica
tion of the law to the facts involved herein.
The judgment was therefore affirmed.

W o r k m e n ’s C o m p e n s a t io n — I n j u r y A r is in g O u t o f a n d in t h e
f r o m W o r k — Thetford v.
London Guarantee & Accident Co. (Ltd.), Court of Civil Appeals of
Texas (June 16, 1926), 286 Southwestern Reporter, page 1113.— N. J.
Thetford, employed by the Mutual Oil Co., was killed on April 30,
1924, as a. result of a collision between the automobile on which he
was riding and one driven by R. D. Underwood. His widow insti
tuted suit in the district court of Wichita County against the insurer
of the company to recover under the State compensation act for the
death of her husband. The case was tried before a jury, and at the
conclusion of the testimony the trial judge directed a verdict in favor
of the defendant. The plaintiff appealed. The evidence tended to
show that the company named was operating on a lease some 25 miles
from Wichita Falls, Tex., that it procured its supplies from the latter
place and transported them to the lease on trucks and automobiles
owned by it, and that some of its employees who stayed at Wichita
Falls were permitted to ride to and from their work on such vehicles.
There was also testimony which tended to show that the assistant
superintendent of the company agreed with the deceased, who lived
at Wichita Falls, that he might stay at home nights and ride to and
from his work in some one of the company’s machines, as he would
be needed many times in loading and unloading tools into and out of
the machines; that on the evening preceding the accident in question,

C o u r s e o f E m p l o y m e n t — G o in g t o a n d

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

229

M . Marshall, the truck driver, not caring to drive the company’s truck,
took the deceased home in his own private car, and the next morning
when they were returning to work in the said private car, the acci
dent occurred which cost the deceased his life.
The court held that the evidence was sufficient to raise a question
of fact and said in part:
If the transportation was a part of the contract of employment,
the deceased was in the employ of the Mutual Oil Co. from the time
he left Wichita Falls until he returned by the transportation provided.
If the contract to transport existed, whether express or implied, and
as a part thereof the deceased was expected and it was his duty to
assist in loading the machines of his employer at Wichita Falls, the
fact that M. Marshall, the truck driver, and who had charge of his
employer’s truck, elected, on the occasion of the fatal accident, to use
his own car with which to perform the service for the employer, instead
of the truck furnished, would not, in our opinion, defeat a recovery.
Under the facts disclosed by this record, we are of the opinion that
the trial court committed error in directing a verdict against appel
lants, for which reason the judgment is reversed and the caus9
remanded.
The Supreme Court of Massachusetts affirmed awards in a case in which it
appeared that 11 workmen were being carried from a construction job to their
homes on a truck owned by their employer and operated by his chauffeur, when
the truck was struck by a car, three being killed and the others injured. Trans
portation to and from work was a part of the contract of the employment, and
“ receiving their injuries while being so carried, they were protected by the act.”
(Vogel’s Case (1926), 153 N. E. 175.)

W orkmen ’ s C ompensation — I njury A rising O ut of and in the
C ourse of E mployment — H ernia — E vidence — Wilkins v. Ben’s

Home Oil Co., Supreme Court oj Minnesota (January 22, 1926), 207
Northwestern Reporter, page 183.— N. J. Wilkins was employed by
Ben’s Home Oil Co. as helper about its filling station, and while
assisting a driver in unloading a barrel of oil which weighed about
450 pounds it slipped and fell, throwing the full weight of the barrel
on him. He went about his work for a while after the accident,
but when he attempted to move a barrel of oil he felt such a severe
pain that he could work no more that day.
On being examined
by a doctor the next day he was found to be suffering from inguinal
hernia, for which he was operated on two days later. The surgeon
who operated on Wilkins and another doctor who was present at the
operation testified at the hearing before the commissioner that the
hernia was a recent one and that they believed it was caused by the
accident. A surgeon and physician called by the company, but who
made no examination of Wilkins, on being asked a hypothetical ques
tion as to whether or not in his opinion the accident caused the hernia,
stated in effect, that in the absence of evidence of ecchymosis, a blow

230

DECISIONS OF THE COURTS

to that particular point, vomiting or nausea, it did not. Award was
denied, and the plaintiff brought a writ of certiorari to the supreme
court of the State.
Judge Holt, who wrote the opinion of the court reversing the com
mission, said in part:
The triers of fact, who fail to find on such evidence as presented by
this record that the accident to Wilkins did, cause his hernia, must
have proceeded upon an erroneous theory concerning the proof of such
injury, in that they accept as an indisputable medical fact that it is
impossible that an accident can produce an inguinal hernia unless
there is inflicted an external blow sufficient to rupture the tissues,
leaving some visible indications thereof, or else producing such imme
diate prostration and acute pain as to amount to objective symptoms.
Compensation claims are not to be determined on preconceived
medical theories, but are to be considered on the evidence presented
in the individual case, with a view to determine whether, under the
definition of an accidental injury under the letter and spirit of the
workmen’s compensation act, the particular claim has been established
by a fair preponderance of proof. There was nothing inherently
improbable in the testimony of Mr. Wilkins or his witnesses, and we
regard the employer’s expert to rather support than otherwise a
finding of a compensable injury under the law.
We therefore think the evidence in this case demanded findings in
favor of the employee, and the decision to the contrary is reversed,
and the case remitted to the industrial commission, with direction to
make proper findings awarding compensation for the injury. An
attorney’s fee of $50 on this appeal is allowed.
The judgment was therefore reversed and the case remanded.

W orkm en’s Compensation— I n j u r y Arising O ut o f and in
th e Course o f Employment— P reexistin g D isease— D e a th —
S ta tu s o f W idow ’s Claim— Biederzycki v. Farrell Foundry & Mar

chine Co., Supreme Court of Errors of Connecticut (January 8, 1926),
131 Atlantic Reporter, page 739.— Chester Biederzycki, an employee
of the defendant company, sustained an injury while in the course
of his employment. “ The injury so suffered was from a diseased
condition of his heart, due in part to preexisting disease and in part
to aggravation of a preexisting disease.” The defendant company
was adjudged, on June 19, 1923, to pay him an award, He died
August 12, 1924, whereupon the widow submitted her claim for a
death benefit; the commission ordered that the company pay her
compensation for a period not to exceed 312 weeks from the date of his
death. The company appealed from the award to the widow on the
ground that the conclusion reached, that deceased received a compen
sable injury, was erroneous; that the case of the widow was separate
and distinct from that of her husband; that it was entitled at its option
(Gen. Stat., par. 5355) to retry de novo in whole or in part the facts

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

231

as found in the case of the employee, and that the award to the
widow should have been apportioned in accordance with the pro
visions of the General Statutes, paragraph 5341, as amended. The
court held that the grounds of appeal were not well taken, and said
in part:
The commissioner’s power to modify or reopen an award is gov
erned by General Statutes, paragraph 5355, that any award or vol
untary agreement for compensation under the workmen’s compensa
tion act (Gen. Stat. 1918, pars. 5339-5414), shall be subject to
modification upon the request of either party, “ whenever it shall
appear to the compensation commissioner that the incapacity of an
injured employee has increased, decreased, or ceased, or that the
measure of dependence, on account of which the compensation is
paid, has changed, or that changed conditions of fact have arisen
which necessitate a change of such agreement or award in order prop
erly to carry out the spirit of this chapter.”
The point raised by defendants that the claim of deceased and
that of his dependent are separate and distinct was settled in the
construction of this statute by the court in Hayden & Malstre v.
Wallace & Sons (100 Conn. 180, 123 Atl. 9), wherein it was held that
all that the dependent must prove is the employee’s death, the depend
ence, and the causal connection between the injury compensated and
the death.
Section 5341, as amended by Public Acts, 1919, chapter 142, para
graph 1, as amended by Public Acts, 1921, chapter 306, paragraph 1,
provides that—
In any case of aggravation of a disease existing prior to such
injury, compensation shall be allowed only for such proportion of the
disability due to the aggravation of such prior disease as may reason
ably be attributed to the injury.
The court held that where the amendment used the term “ disability”
it used it in the sense of incapacity, and referred to the living, since
death was a fixed fact which could not be apportioned in the manner
provided in the amendment to this section of the General Statutes.
A final contention considered was to the effect that the amendment
of 1919 permitting compensation for disease related only to occupa
tional diseases, and did not invalidate earlier decisions excluding
diseases of a general nature. The court had held in the case of
Dupre v. Atlantic Refining Co. (98 Conn. 646, 120 Atl. 288) that a
compensable personal injury was an abnormal condition of a living
body which arose out of and in the course of the employment and
produced an incapacity to work for the statutory period whether the
disease was occupational or otherwise. This ruling was affirmed in
De la Pena v. Jackson Stone Co. (103 Conn. 93, 130 Atl. 89), “ and
these decisions must control while the present statute remains
unchanged.”

DECISIONS OF TH E COTTRTS

Judgment was accordingly entered dismissing the appeal.
The same court a few months later reversed an award in the case of a dry
grinder whose disability after employment for two years was diagnosed as pul
monary tuberculosis. The trade was said to be one that tends to cause this
disease, and a commissioner allowed a claim. On appeal, it was shown that the
workman was suffering from it when he entered the employment, and the court
held that the employment had no more injurious effect “ in any way other than
a similar amount of exertion or bodily exercise would have aggravated it.”
There was said to be a failure to establish the necessary causal connection
between the disability and the occupation, so that no compensation could be
paid. (Madore v. New Departure Mfg. Co. (1926), 134 Atl. 259.)

W orkmen ' s C ompensation — I njury A rising O ut of and in
C ourse of E mployment — P aresis — P reexisting D isease —
R eview by C ourt— Walker v. Minnesota Steel Co., Supreme Court

the

oj Minnesota (June 11,1926), 209 Northwestern Reporter, page 635.—
Charles A . Walker was employed as a millwright and from November
29, 1923, to February 14, 1924, he sustained three injuries to his
head. Soon after November, 1923, he became mentally depressed
and in June, 1924, was committed to the State Hospital for the
insane. The result of his mental decline was general paresis. His
tory disclosed dormant syphilis. His wife made claim for compen
sation under the workmen’s compensation law in her own right and
on behalf of Louis H. Walker and others, his dependent children.
The claim was denied by order of the industrial commission and
claimant brought certiorari to review the order.
It was not claimed that the injuries caused the paresis but that
they aggravated and lighted up the dormant syphilitic condition and
hastened its onset. The employer contended that the injuries in no
way accelerated the development of the unfortunate condition. The
court reviewed and cited numerous cases wherein the question of pre
existing condition had been in issue, and speaking of the instant case
said in part:
The claim for compensation in this case depends upon whether or
not the paresis, w^hich was primarily caused by syphilis, was lighted
up or accelerated by the injuries to employee’s head. This is a sim
ple question of fact. If answered in the affirmative, it is compen
sable; otherwise not. We have consistently held that the determi
nation by the commission of controverted questions of fact must be
sustained. Relator’s claim is supported by competent medical wit
nesses and other evidence. It is directly met by other circumstances
and experts who apparently recognize the correctness of relator’s
theory but say that the injuries were not serious enough to produce
the result claimed. The evidence would support a finding either
way. The commission has spoken, and their word is final.
The order of the commission was therefore affirmed.
The Supreme Judicial Court of Maine took quite similar grounds where a
workman who was, so far as he knew, a well man, and had lost but nine days'

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

233

time in 40 years, was found suffering from diseased conditions of heart and spine
after injury from a fall. The court affirmed an award in his favor, saying that:
“ While causal connection between the accident and disability must be shown,
the accident need not be proved to be the sole or even the primary cause of dis
ablement” ; and the commissioner’s conclusion “ must stand if rational and natu
ral.” (Swett’s Case (1926), 134 Atl. 200.)
T o the foregoing may be added recent decisions by the Supreme Court of New
Jersey (Pisko v. Nelson (1926), 132 Atl. 301), and the Appellate Court of
Indiana (Owens v. McWilliams (1928), 152 N. E. 841). In both these death
followed injury by runaway horses. Pisko lived about two months, and was
found to be affected with heart trouble and a hypertrophied liver; but as it was
found that “ the accident produced his death at the time at which it occurred,”
it was chargeable therewith, and the widow’s claim was affirmed. The case had
been “ warmly contested,” two trials being had, and an allowance of $500 attor
ney’s fee was held not excessive.
In the Owens case the employer claimed that death was due to the condition
of the arteries, causing heart failure. Death was not instantaneous, and the preva
lent opinion was that the death was due to shock from the fall. Owens’ head
was bruised, and blood ran from his mouth. In sustaining the award, the court
said: “ This court has uniformly held that, where the employment hastens an
existing disease to its final culmination in death, it is an accident within the
meaning of the statute.”
In a nonfatal case before the Supreme Court of Illinois an award as for per
manent total disability was reversed where a workman received such an award
on account of hernia. It appeared that a previous operation had left the muscle
walls of the abdomen weakened, but inasmuch as the workman was employed
at the time of the injury complained of he “ was entitled to compensation not
withstanding the fact that a former operation was a contributing cause.” But
since it appeared that an operation would restore the claimant’s earning capacity,
the award as for permanent total disability could not stand, there being no basis
in the record for a life benefit. Further hearing was therefore directed for a
determination on the basis indicated. (O’Gara Coal Co. v. Industrial Commis
sion (1926), 150 N. E. 640.)

W orkmen ’s C ompensation — I njury A rising O ut of and in
C ourse of E mployment— Proximate C ause — R eview by
C ourt— United States Casualty Co. v. Matthews, Court of Appeals of

the

Georgia (June 16, 1926), 138 Southeastern Reporter, page 875.— Mrs.
R. A . Matthews proceeded under the workmen’s compensation act to
recover compensation for the death of her husband, who, on Novem
ber 26,1924, while in the employ of the defendant, sustained a severe
physical injury by which his ankle was dislocated and certain liga
ments torn. It appeared that prior to the injury the deceased was
in vigorous health; that the injury caused continued swelling of the
ankle, pain and loss of sleep, resulting in an enfeebled and weakened
condition of health, until finally on December 22 he was confined to
his bed, complaining of pain in his eyes. He became unconscious
soon after this and died two days later of acute illness. The attending phy icians testified that it was their opinion that the death of the
deceased was due to apoplexy, to which the injured foot might have

234

DECISIONS OF THE COURTS

been a contributing cause; that if the foot had brought on apoplexy
it would have been caused by the pain and the poison that his system
absorbed from the foot. The claimant was awarded compensation
by the commission; this was affirmed by the superior court, and the
insurance carrier brought error to have the case reviewed. There
was no dispute as to the injury, but it was argued that the judgment
of the superior court affirming the findings of the commission was not
supported by sufficient evidence.
The court, on review, speaking through Judge Jenkins, said in part:
The finding of the industrial commission upon the facts can not
be set aside, if there is evidence to support it. It “ is conclusive and
binding upon all the courts.”
Under the evidence submitted in this case, it was for the commis
sion to say, in the light of all the proved facts and surrounding cir
cumstances, including the expert testimony, whether or not the injury
set lorth was the proximate cause of the death. In arriving at a
conclusion upon this question they were privileged, but not compelled,
to accept the expert testimony tending to show that the immediate
cause of death was something akin to apoplexy. Even if, under the
expert testimony, the condition of the decedent must have been such
as would predispose him to such an attack from such a cause, if such
result followed naturally and unavoidably from the injury, the origi
nal injury, and not the forces thus put into operation by it, could be
accounted as the active, proximate cause of the final result.^
If the original act be such as to put other forces in operation so as to
naturally and unavoidably bring about the existence of the interven
ing agency, its effect, or result, can still be properly attributed to the
original cause as the proximate cause.
The judgment was accordingly affirmed.

Workmen's Compensation—Injury by Third Party—Action
Dependents—Limitation— Clough & Molloy v. Shilling, Court

of Appeals of Maryland (December 4, 1925), 131 Atlantic Reporter,
page 343.—Frainie Bros. & Haigley w^ere general contractors in charge

of the work of building a dormitory for the Johns Hopkins University,
Baltimore, Md. The Pen-Mar Co., employer of John Edgar Shilling,
and Clough & Molloy, defendants in this suit, were subcontractors
for certain of the construction work. It appears that on March 28,
1923, the employees of Clough & Molloy were working on a scaffold
and w~ere using pieces of scantling to extend it upward when one of
the pieces of scantling fell and in falling struck John Edgar Shilling
upon the head and killed him. He left surviving him a widow and
four minor children. The State industrial commission granted them
an award of $5,000 and $125 funeral expenses against the Pen-Mar
Co. and the Indemnity Insurance Co. of North America, the insurer.
A statute of Maryland provides that where the death of the employee
creates legal liability in some person other than the employer, and

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

235

the insurer or employer fails to enforce such liability within two
months after the award under the compensation act, the dependents
may enforce such liability. Under this provision of the law the
widow of the deceased instituted her suit to collect damages against
Clough & Molloy in behalf of herself and her minor children, and to
the use of the Indemnity Insurance Co. of North America. She was
awarded a verdict for $15,000, to be apportioned among the insurer,
the widow, and the minor children. From this judgment the defend
ants appealed, their contention being that the plaintiffs did not have
a right to maintain the action in its present form and that there was
not sufficient evidence to go to the jury.
The court of appeals sustained the judgment, citing first the provi
sions of the compensation act authorizing the dependents to bring
action in default of its prosecution by the employer or insurer, with
distribution of any recovery to cover disbursements of the employer
or insurer. It then found that the law had been complied with, so
that no grounds for the appeal existed. There was also found to be
sufficient evidence for consideration by the jury, and the judgment
was affirmed, with costs.
The same law was before the same court in a question in which another aspect
of the right to sue wras considered. The employer delayed action for reimburse
ment until after the two months’ period following the award, but subsequently
began proceedings.
The third party demurred, claiming that with the expira
tion of two months after the award, the right to sue vested exclusively in the
injured person or his dependents. The court ruled otherwise, finding that while
the employer’s right was exclusive during this period, on its expiration such right
was shared with the employee or his dependents, but was not absolutely taken
away from the employer.
The decision of the court below, sustaining the
demurrer, was therefore overruled, and a new trial granted. (State v. Francis
(1926), 134 Atl. 26.)

W orkmen ’s C ompensation — I njury by T hird P arty — E lec
S ubrogation — R ights of I njured M inor A fter R eaching
M ajority— L imitations — McKee v. White, Supreme Court oj New
tion —

York, Appellate Division (November 11,1926), 218 New York Supple
ment, page 215.— William P. McKee, 19 years of age, while in the
employ of Charles White on September 18, 1922, was injured by the
negligence of a third party. He filed an election to pursue his remedy
against the third party and began an action for damages. The case
was called for trial on M ay 14, 1925, but no one appeared for the
plaintiff and the action was dismissed for default. Claimant then
made a claim for compensation before the industrial board, which
granted him an award on June 25, 1926. The defendants appealed
on the ground that the failure to prosecute his action, after electing to
sue the third party, deprived them of their right of subrogation to the

236

DECISIONS OF THE COURTS

claimant’s remedy against the third party provided for in section 29
of the workmen’s compensation law.
The court, in disposing of the case, said in part:
The carrier could not be subrogated to claimant’s remedy while
claimant’s election was in force and his action was pending; and the
statute of limitations had run against that action on September 18,
1925, and before the carrier knew that claimant’s action was dis
missed. Since claimant was a minor when his cause of action accrued,
the time of his disability is not a part of the time limited for begin
ning the action, “ except that the time so limited can not be extended
* * * more than one year after the disability ceases.” (Civil
Practice Act, sec. 60.) The claimant reached his majority more than
one year before the period limited in the statute for beginning his
action against the third party. The infancy then does not extend
the three-year period. The claimant, having reached his majority
before the three-year limitation had expired, was required to com
mence his action either before the expiration of that period or within
one year after he attained his majority, whichever would be the
longer period.
We think the appellants’ rights have been sacrificed, and that the
claimant is estopped from asserting a claim for compensation against
them.
The award was therefore reversed and the claim dismissed, with
costs against the State industrial board.

W orkmen ’ s C ompensation — I njury by T hird P arty — I neffec
Suit — Loss of R ight of S ubrogation — I gnorance as

tive

E xcuse — Employers' Indemnity Corporation v. Felter, Commission oj
Appeals oj Texas (December 2, 1925), 277 Southwestern Reporter, page
876.— George It. Felter, while employed as a meter reader in the water
and light department of the city of Austin, Tex., and while engaged
in the course of his employment, received injuries in an automobile
collision which resulted in his death a few days later. Four years
later, on March 30,1923, the industrial accident board awarded com
pensation to the widow and two children at the rate of $15 a week
for 360 weeks from the date of the accident in 1918. The Employers'
Indemnity Co., insurance carrier, gave due notice of its unwillingness
to abide by the award and filed suit to set it aside. A judgment for
the claimants was affirmed by the court of civil appeals and the com
pany brought error to the commission of appeals.
On reviewing the evidence it was found that Mrs. Felter had filed
suit in 1920 to recover damages in the total sum of $50,000 as guard
ian of her children and executrix of the estate of her husband for the
alleged negligent killing of her husband by Mrs. Jeffie Barkley and
Edgar J. Barkley, her husband. April 7, 1922, judgment was entered
in the court for the defendants. The counsel for the indemnity cor
poration in the instant case requested an instruction based on the

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

237

fact that the Felters had proceeded to final judgment against the
tort-feasors, third parties, that they were precluded from later seek
ing compensation under the compensation act for the same injury,
and, in addition, because the proceeding for compensation was not
instituted for more than four years after the accident occurred. The
action of the trial court in refusing this peremptory instruction was
said by the commission of appeals to be erroneous.
Under the facts, it appeared that the indemnity company had
been absolutely deprived of its right of subrogation. “ So it is quite
clear that, as a result of the conduct of the Felters, plaintiff in error
has been deprived of its valuable right, in its own way * * * to
sue the alleged tort-feasors and attempt to recoup the amount of
compensation it was being called upon to pay.”
It also appeared from the evidence that the widow was in com
plete ignorance of the fact that the city carried an insurance policy
for its employees, and this was offered as a reason why her claim
should be allowed. In the course of the opinion denying this ground
as valid, it was said that:
In all cases, compensation or otherwise, the rule is recognized that
ignorance of facts will not relieve against an election of remedies
where such relief would injure an innocent party. We find no
authorities to the contrary. In other words, equity will not, in its
generosity, permit one to profit at the contemporaneous expense of
another. The company in this case violated no rule and neglected
no duty. It is blameless. On the other hand, Mrs. Felter did vio
late the subrogation statute as well as section 4a. Upon the broad
grounds of equity, she asks that her ignorance be excused. Her re
quest can not be granted when its granting deprives the company, a
thoroughly innocent party, of its valuable right of subrogation.
Mrs. Felter by her action had placed the insurance company in a
disadvantageous position where it could not recover against the third
party causing the injury because as to them res adjudicata was a
complete defense. In a situation of this kind the commission of
appeals said:
We hold that defendants in error can not recover compensation*.
* * * The construction of the lower courts in the case at bar
renders totally ineffective the subrogation section of the law. This
should not be done. Under the holdings of the lower courts, a per
son might be ignorant for 20 or 30 years and still recover compensa
tion, even though the insurance company had in the meantime
entirely lost its right of subrogation.
It was recommended that the judgments of the district court and
the court of civil appeals be reversed and that judgment be rendered
by the supreme court in favor of the plaintiff in error.
The judgment was accordingly reversed and judgment was entered
for the plaintiff in error.

238

DECISIONS OF THE COURTS

W orkmen ’ s C ompensation — I njury by T hird P arty — Subro
Settlement — Wisconsin Mutual Liability Co. v. Industrial

gation —

Commission, Supreme Court of Wisconsin (June 21,1926), 209 North
western Reporter, page 697.— Section 102.29 of the compensation act
of Wisconsin provides that the making of a lawful claim against the
employer or compensation insurer for compensation shall operate as
an assignment of any cause of action in tort which the employee may
have against any other person on account of the accident, and the
employer or insurer may enforce such liability in its own name, with
provision as to the distribution of any amounts recovered. Any set
tlement of any such claim, if in litigation, must have the approval
of the court in which the matter is pending; otherwise the settlement
must be approved by the industrial commission.

One Perkins, an employee of the Oshkosh Motor Truck Co., while
in the course of his employment received injuries when attempting to
drive a motor truck owned by his employer across the railroad track
of the Soo Railway, the truck being struck by the engine of said
railway company. Perkins was awarded compensation against his
employer. The award was paid by the employer’s insurance carrier,
which thereby became subrogated under its policy to the rights of
the employee against any third-party liability for damages to Perkins.
The railway company denied any liability to Perkins, but paid him
$1,000 and took from him an acknowledgment of settlement of his
claim for damages by reason of the accident. The insurance com
pany petitioned the industrial commission to make an order approv
ing the settlement of the claim of Perkins with the railway company
and for an order of distribution of the proceeds. The commission
entered an order directing Perkins to account to the insurance com
pany for $666.67. The insurance company then brought action in
the circuit court for review of the order of the commission, and de
manded judgment that the railway company be directed to pay the
amount ordered by the commission. The circuit court held that the
commission had no jurisdiction over the railway company, and the
court had no jurisdiction on review. It therefore affirmed the order
of the commission and denied further relief. From such judgment
the insurance company appealed. The supreme court, in disposing
of the case, said in part:
The settlement of Perkins was null so far as his employer or the
appellant was concerned, because his claim against the railroad com
pany was assigned by operation of the statute to the employer, as
soon as he made a valid claim for compensation against the employer.
This being so, there was no settlement so far as the appellant or the
employer was concerned, and there was nothing upon which the
industrial commission could act. It follows that its order was void.
The jurisdiction of the circuit court to review the proceedings of the
commission likewise depends on the statute (section 102.23). By its

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

239

judgment it could only affirm said order or set it aside. The circuit
court was therefore in error in affirming the order of the commission.
The judgment of the circuit court was reversed, with directions to
enter judgment setting aside the order of the industrial commission,
the appellant to pay clerk’s fees.

orkmen ’ s

C ompensation — I njury in C ourse of E mploy
I nfection of O pen Sore— C onstruction of Statute —
Jasionowslci v. Industrial Commission of Ohio, Court of Appeals of
Ohio ( May 17, 1926), 153 Northeastern Reporter, page 247 .— Wanda
Jasionowski was employed by Tiedtke Bros. Co. on October 22, 1924,
and was engaged in handling large sheets of blue carbon paper used in
tabulating accounts. In the course of her employment she wiped or
rubbed her face with her hands, and having a slight cold sore near the
corner of her mouth through which her blood became infected, cellu
litis developed into acute blood poisoning, which caused her death,
Her mother, asserting dependency, filed a claim with the industrial
commission for compensation. The claim was rejected and an appeal
was taken to the court of common pleas, where the case was tried by
a jury, but at the close of the evidence the court directed a verdict
for the defendant and entered judgment thereon. The plaintiff
brought error.
ment —

It was contended on behalf of the defendant that the evidence did
not show an injury within the meaning of the workmen’s compen
sation law, and that if the decedent was injured such injury was not
suffered in the course of her employment.
Taking up the sequence of events as set forth above, the court
said:
If this condition should bo found by the jury to be sustained by
the evidence, it would amount to an injury within the meaning of
the workmen’s compensation law [citing English and American cases].
Ohio decisions were said to agree, making a distinction between
occupational diseases “ developed in the usual and ordinary manner
because of the occupation, and an injury happening suddenly from
the same cause.”
As to whether the injury was received in the course of the employ
ment, it was admitted that part of the physician’s affidavit was
hearsay, as he could not have had personal knowledge of all the facts
therein set forth; but as the commission is not bound by the usual
rules as to evidence, the statement was properly before the jury on
the appeal. The injury being found to be within the statute, the
judgment for the defendant must be reversed, and a new trial granted,
and it was so ordered.

240

DECISIONS OF THE COURTS

W orkm en’s Compensation— In ju ry in C ou rse o f Employ
R etu rn in g Home from W o r k — Cymbor v. Binder Coal Co.7

m en t—

Supreme Court of Pennsylvania (February 8, 1926), 182 Atlantic
Reporter, page 368.— J. Stanley Cymbor was employed by the defend
ant as an electrician and was paid by the hour for that work. It
was also his duty to start the pumps in the mine sometime during
the night, for which he received extra pay. On the night in question
he had gone from his home to the mines to start the pumps, and was
returning on the tracks of the Pennsylvania Railroad, his usual route,
when he was killed by an engine. His widow was awarded compen
sation by the referee and workmen’s compensation board. This award
was reversed by the court of common pleas on the question of course
of employment, and she brought appeal. In reversing the lower court
and holding that the death occurred in the course of the employment,
the court cited Haddock v. Edgewater Steel Co. (263 Pa. 120, 106 Atl.
196; see Bui. No. 290, p. 426), and said in part:

In the instant case the nightly trip to the mine was in furtherance
of the master’s business to do an errand for the master, and he was
properly on the latter’s time not merely at the moment of starting
the pumps, but going and coming as well. The case is not analogous
to that of a day laborer whose work and pay being when he arrives
in the morning and ends when he quits in the afternoon. His fur
therance of the master’s business begins and ends with the work of
the day. In the instant case to hold the employee was furthering
the master’s business only after reaching the mine or while starting
the pumps is drawing too fine a sight on a statute which must be
liberally construed. If Cymbor was paid only for the actual time
engaged in turning the button or otherwise starting the pumps, it
would practically amount to nothing, although in a month he would
travel miles in the dark to enable him to perform that duty.
The judgment appealed from was therefore reversed, and the rec
ord remitted to the lower court that judgment may be there entered
in favor of claimant on the award.
The compensation law of Utah uses the disjunctive “ or ” in the clause, “ aris
ing out of or in the course of employInent.,’ This was held by the supreme
court of that State to warrant compensation to a workman leaving the place of
his employment by a path along which a cable was used to move trams. This
cable accidentally became charged with electricity, and contact therewith caused
death. The court was of opinion that the time, place, circumstances, and death
were all within the course of the decedent’s employment, and affirmed an award
to his widow. (Utah Apex Mining Co. v. Industrial Commission (1926), 248
Pac. 490.)

W orkmen ’ s C ompensation — I njury “ in or A b o u t ” F actory —
R epairing T ruck U sed in B usiness — Wise v. Central Dairy Co.f

Supreme Court of Kansas (June 12, 1926), 246 Pacific Reporter, page
501.— Hobart M . Wise was awarded compensation by the district
court of Wyandotte County for injury received in the employ of the

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

241

company named. The company appealed from the judgment on
the ground that the plaintiff was not injured by reason of an acci
dent “ in, on, or about ” its place of business.

Wise was employed by the defendant to repair trucks used in its
dairy business. At the time in question the starter on one of the
trucks had become stuck, and the plaintiff and other employees were
directed by the foreman to push the truck into a street down a grade
and try to force the starter loose. That was done and the starter
was forced loose. The car was stopped on the street some 200 feet
from the plant. While plaintiff was examining it to see what caused
the trouble, he was struck and injured by an automobile driven by
someone who was not an employee of the defendant.
There was no controversy over the extent of the injury, nor the
amount of compensation allowed, but the question was w'hether
under the circumstances the plaintiff was entitled to compensation.
To the defendant’s contention that the plaintiff’s injuries were not
received “ in, on, or about the factory” of the defendant within the
meaning of the statute (R . S. 44-505, 48-508); that the car was on
a public street 200 feet from its factory when the accident occurred;
and that the word “ about” as used in the statute was one of local
ity, the court said:
This was near the factory; the particular place for this work to
be done was selected by the defendant’s foreman when he directed
that the car be pushed into the street for that purpose, and hence
was adopted by defendant as the place for making such repairs, and
was within the danger zone of the factory as then being conducted
by defendant.
Finding no error in the record, the judgement of the court below
was affirmed.

W orkm en’s Compensation— “ In ju ry Sustained in th e C ou rse
Em ploym ent”— H orsep lay — Cassell v. United States Fidelity &

Guaranty Co., Supreme Court oj Texas (April 7, 1926), 283 South
western Reporter, page 127.— L. P. Cassell was employed by the Wich
ita Theater Co. as a stage hand, and at the time in question was
engaged in his regular duties. The employer’s stage manager, one
Shaver, went onto the stage and in fun snapped a pistol kept by the
company for use during theatrical performances and supposed to be
unloaded at other employees and at Cassell, when the pistol fired and
injured Cassell. He was awarded compensation for his injuries by
the district court. The civil court of appeals reversed that judgment
and entered judgment for the defendants, whereupon the plaintiff
brought error. The question for the court was whether or not the
injury received by the plaintiff was compensable under the workmen’s
compensation act.

242

DECISIONS OF THE COURTS

The facts in the case were undisputed and the district court held
as a matter of law that Cassell was entitled to compensation. Upon
the same state of facts the civil court of appeals held as a matter of
law that Cassell was not entitled to compensation and rendered final
judgment accordingly.
The supreme court cited a number of cases in which questions
similar to that in the instant case were involved, in most of which
the courts held that injury sustained under such circumstances as
herein set forth were compensable.
Judge Greenwood, speaking for the court, then said in part:
We think, with the decisions already quoted, that it is a matter of
common knowledge that in groups of employees horseplay of some
kind is an incident that should be expected. If that be true, then
we submit that the particular kind of horseplay indulged in, in the
case at bar, w^as the most natural kind. The facts show that Shaver
w^as in the habit of “ creating atmosphere” by shooting blank car
tridges during performances. Furthermore, the stage is a place
where pranks are practiced perhaps more than any other. While
the court finds that the practice of snapping pistols at each other
had not occurred until about 15 minutes before this accident, still
the record shows that pistols were commonly used by the employees
at this theater at various times and that they were fooled with by
these employees in various ways, including the creating of atmosphere
by firing. Therefore, we submit that, if horseplay of any kind was
a reasonable incident to this employment, it certainly should have
been anticipated that it would grow out of the use of a pistol in some
way. We are of the view that the horseplay indulged in here was a
reasonable incident of this particular employment.
The judgment of the court of civil appeals was accordingly reversed
and the judgment of the district court awarding compensation
affirmed.
A court of the same class as that reversed above (Texas Civil Appeals)
affirmed an award in a case in which a workman was rendered totally blind by
an accidental shooting by a revolver in the hands of the foreman. There had
been habitual and reckless shooting going on, which the court held could have
been ascertained by the employer’s agents by the exercise of reasonable diligence.
Under the circumstances the injured man suffered by reason of a 11risk created
by the conditions under which the business was carried on,” and was entitled to
compensation. (Standard Accident Co. v. Stanaland (1926), 285 S. W. 878.)

W orkm en's

Compensation— Jurisdiction— E nforcem en t

L a w by C o u rts o f O th er S ta te s —

Texas Pipe Line Co. v. Ware,
United States Circuit Court oj Appeals, Eighth Circuit (1926), 15 Fed
eral Reporter (2d), page 171.— J. L. Ware received an injury while
employed in the State of Louisiana, his employer operating under
the compensation law of that State. An action was subsequently
brought in the circuit court of Fayette County, Ark., to recover dam
ages for the injury. On petition of the employer the case was

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

243

removed to the United States District Court for the Western District
of Arkansas (presumably on the ground of diversity of citizenship).
In that court the employer moved to require the plaintiff to state
whether or not a contract had been entered into with reference to
the compensation law of Louisiana, and whether or not he was seek
ing to enforce the liability prescribed by that statute. Ware replied
“ that the suit was brought in a double aspect, but, if required so to
do, he would elect that the case should be governed by the workmen’s
compensation law of Louisiana.” The employer then moved for a
dismissal of the case on the ground that the provisions of said act
could not be enforced by any court outside the State. The trial
court rejected this motion and proceeded to hear the case without a
jury, entering a judgment for an award. The employer thereupon
brought error, submitting the question of the power of any court other
than those of the State of Louisiana to administer the compensation
law.
Circuit Judge Kenyon, speaking for the court, stated the facts as
above, and then declared that there was no question that the district
court had jurisdiction when the case was removed to it from the State
court on petition of the employer. The question remained whether
the plea by way of amendment electing that the case should be gov
erned by the compensation law of Louisiana deprived the court of
jurisdiction. This question was discussed at length, citing several
cases in which legislatures had undertaken to limit the forum in which
cases under a prescribed statute could be tried, but without success.
“ Such statutes can not prevent the exercise of jurisdiction by the
Federal courts, where the facts exist which under the Constitution
and the statutes of Congress give jurisdiction to such Federal courts.”
A citation was made from a decision of the Supreme Court to the
effect that “ an action for personal injuries is universally held to be
transitory, and maintainable wherever a court may be found that
has jurisdiction of the parties and the subject matter.”
The Louisiana law provides for enforcement of its provisions by
the courts, and uses terminology appropriate therefor. In a majority
of the States having compensation laws administration is by a board
or commission or other special agency with prescribed^methods of
procedure. The Supreme Court of Arkansas had declined to under
take to enforce rights given by the Oklahoma compensation law on
that ground. (Logan v. Missouri Valley Bridge & Iron Co., 152 Ark.
529, 249 S. W . 21.) Judge Kenyon found this decision not a guide
in the instant case, saying “ such act provided for an administrative
board to which the claims were to be presented. There was no pro
vision for any court action or judgment of the court. The rights
42335°—27------17

244

DECISIONS OF THE COURTS

asserted were to be determined by a board. That case bears no
similarity to this.”
It was admitted that “ there may be difficulties in enforcing in the
Federal courts the workmen's compensation acts,” but they should
not be regarded as insuperable unless they are in fact so.” No such
obstacles were found in the instant case, the right being prescribed
and conditioned by the law of the State where granted, and the
remedy governed by the law of the forum.
The judgment below in favor of the plaintiff was therefore affirmed.
The Supreme Court of North Carolina reversed an award given by way of
judgment in a county court of the State, in which a workman injured in Tennessee
was held to be entitled to the benefits of the compensation law of the latter State.
The supreme court found no provision in the laws of North Carolina, which has
no compensation statute, for the enforcement of a compensation law such as that
of Tennessee, so that there was no comity between the State’- in respect of such
remedy. (Johnson v. Carolina, C. & O. R. Co. (1926), 131 S. E. 390.)

W orkmen ’ s C ompensation — L ump-S um Judgment — O bjective
E xam inatio n — U se of X R a y — Reeder v. Thompson et al., Supreme

Court of Kansas (April 10, 1926), 245 Pacific Reporter, page 127.—
Edward Reeder was employed by F. M . Thompson and others, doing
business a the T. R. & G. Coal Co., as a hoist engineer in its mine.
On March 20, 1923, an explosion occurred in the mine, which filled
it with flames and carbon monoxide gas. Plaintiff was badly burned
about his hands, face, mouth, throat, and lungs, which permanently
disabled him. He was paid compensation up to and including No
vember 26, 1924, when it was discontinued. He then brought action
in the District Court of Kansas, alleging permanent disability, and
recovered a lump-sum judgment in the amount of $4,935. The
defendants appealed on the ground that the radiograph pictures
introduced in evidence did not constitute an objective examination
within the meaning of the statute and were therefore insufficient on
which to base a lump-sum judgment.
The statute on which the objection was based is in part as follows:
In no case shall a lump-sum judgment be rendered for any injury
not ascertainable by objective examination, but in such cases the
court may order periodical payments during incapacity. [R. S., 44 534.]
The court on review found that the physician who examined the
plaintiff at the time of his injuries had testified that he found him
suffering from pulmonary burns and carbon monoxide poisoning; that
his examination with the X ray showed that his lungs were badly
affected; that he had a slight enlargement of the heart; and that the
radiograph pictures taken of his chest showed scars on the lungs and

WORKMEN'S COMPENSATION

245

a marked fibrous condition. This testimony was affirmed by another
physician who was an authority on radiograph pictures and who had
examined the plaintiff a short time before the trial.
The opinion of the court, as delivered by Judge Johnston, was in
part as follows:
Objective symptoms are those which the physician by the ordinary
use of his senses discovers from a physical examination. What he
discovers through his vision, aided by magnifying glasses or an X-ray
instrument, are objective symptoms. By the use of the X ray a view
may be had of internal conditions not perceivable by the ordinary or
unaided senses. The sense of sight is enlarged by its use, and,
although a recent invention, its use is now common, and what it
reveals is generally recognized and accepted. (1 Wigmore on Evidence,
795.) Of course, the instrument should be one that is trustworthy
and the operator competent.
The court found no material error in the proceeding, and the judg
ment was therefore affirmed.
W orkm en’s Compensation— Lump-Sum S e ttle m e n t— “ Com
pensation” — M e d ic a l Services— Melcher’s Case, Supreme Judicial

Court of Maine (September 28, 1926), 134 Atlantic Reporter, page

542.— One Melcher, employed in W ym an’s caf6, was injured in the
course of her employment and was awarded compensation. After
compensation had been paid for more than six months, but before
the plaintiff had paid the physician who ministered to her during
convalescence, she filed a request for commutation of future payments
into a lump sum, which was ascertained and paid. Within 60 days
thereafter the plaintiff filed a petition with the industrial accident
commission for determination of a sum to be paid by her employer
to defray the expense of medical and surgical aid incurred immedi
ately after the acftdent. Upon her petition being denied, she appealed
to the supreme judicial court, Cumberland County, which dismissed
the petition, and she again appealed to the supreme judicial court of
the State. That court held that the question was purely legal, and
that its solution is found in section 28 of chapter 238 of the Public
Laws of 1919, reading in part as follows:
In case payments have continued for not less than six months
either party may, upon due notice to the other party petition the
commission for an order commuting the future payments to a lump
sum. Upon payment of such amount the employer shall be discharged
from all further liability on account of the injury or death, and be
entitled to a duly executed release, upon filing which, or other due
proof of payment, the liability of such employer under any agreement,
award, findings, or decree shall be discharged of record, and the
employee accepting the lump-sum settlement as aforesaid shall receive
no future compensation under the provisions of this act.

246

DECISIONS OP THE COURTS'

Speaking of this section, the court said:
The wording of the phrase under inspection is entirely unambiguous,
and its meaning must be held to be that, after paying the amount of
the settlement ordered by the commission, the employer shall not be
called upon for further or other payments.
We hold that the services, restoratives, and aids required by statute
to be supplied are “ compensation,” within the meaning of the act,
and our conclusion, therefore, is that, after payment to him under a
lump-sum settlement order, regularly arrived at, the injured workman
can no longer, as of right, demand of the employer any contribution
of any sort.
The decree was affirmed and the appeal dismissed.

W orkm en’s Compensation— M e d ica l and S u rg ica l Aid— R e
fusing O peration — PaTloniv. Brooklyn-Manhattan Transit Corpora

tion, Supreme Court of New York, Appellate Division ( March 8,1926),
214 New York Supplement, page 480.— Parlo Palloni, who was known
to be suffering with a hernia of the left side, was employed by the
defendant, and while in the course of his employment he received an
injury which produced a right inguinal hernia and aggravated the
preexisting one. It appeared that some time prior to the injury in
question the plaintiff had been severely burned, and when sent to the
hospital for treatment of the hernia he was not, in the opinion of the
doctors, in condition to be operated on, although he consented to an
operation. Four months later he was advised to have an operation
and was told by the referee that unless he consented he could not
receive compensation. He was also told that he would not have to
meet any of the expenses incident to the operation. The hospital
physicians and his own doctor assured him that there was practi
cally no danger from the operation and there might foe serious results
from strangulation if he attempted to work in his present condition,
but he declined to submit. He alleged as a reason fear that he
would be killed, and it was upon that ground that the referee based
his award. The defendant appealed. The court in reversing the
award said in part:
The attention of the court has not been called to any reported case
in this State defining the duty of a claimant with reference to an
operation. It has been generally recognized, however, that, when
such claim arises on a hearing in compensation court, it is the duty
of the court to make a finding as to whether or not the claimant un
reasonably refused. This in effect is a recognition of the fact that, if
the refusal was unreasonable, compensation should be denied.
Reference was made by the court to several cases in which the
facts involved were very similar to those in the instant case, and it

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

247

quoted from the opinion given in McNally v. Hudson & Manhattan
R. Co. (95 Atl. 122, 87 N. J. L. 455), as follows:
It is true that, whether a workman reasonably refuses to have an
operation performed is one of fact for the trial judge to determine.
It can not, however, be properly said that, where it appears, as it does
in the present case, that a risk of life is involved, the refusal of the
prosecutor to submit to an operation is unreasonable.
The opinion continued:
The question of reasonableness may be one of fact, and, if so found,
is binding on this court, but in this case there is no dispute of fact.
There is a single question, Was unjustifiable fright a reasonable
ground for refusal to submit to an operation which had been recom
mended by physicians representing the claimant, the employer, and
the industrial board, and consequently presumed to be for the best
interests of the claimant, especially where there is not proof that such
operation is fatal or even dangerous? As a matter of law, it must
be held that such fright alone was not a reasonable ground for refusal.
The award was reversed, and the matter remitted to the State
industrial board to give claimant an opportunity to submit to an
operation, with costs against the State industrial board to abide the
event.
The Supreme Court of Alabama affirmed an award to a man whose eye
was injured, causing cataract, his employer contending that unless an operation
was submitted to compensation should be suspended. The operation had not
before been tendered, and the court held that the employee was entitled to
“ reasonable opportunity to be properly advised” as to the nature and probable
success of the operation, and whether free from serious danger. (Gulf States
Steel Co. v. Cross (1926), 106 So. 870.)

W orkmen ’ s C ompensation — M edical and Surgical A id —
R efusing O peration — D iscontinuance of C ompensation —
Judicial N otice— Southern California Edison Co. v. Industrial Acci

dent Commission oj State oj Calijornia et al., District Court oj Appeal
oj Calijornia (.December 22, 1925), 243 Pacijic Reporter, page 455.—
The Industrial Commission of California awarded compensation to
Oliver R. Harris for disability resulting from injuries received nearly
two years prior thereto. The award was opposed by the employing
company, which brought a writ of certiorari to have the order of the
commission reviewed.

Harris on March 6,1923, fell from an electric light pole and thereby
sustained an injury to his back. Within three weeks he had recov
ered sufficiently to do light work for his employer, which he continued
to do for some four weeks, when he suffered a wrench to his back
which caused him to desist from further labor. From that time
until the date of the hearing before the commissioners, some two

248

DECISIONS OF THE COURTS

years later, he was unable to work, due to the condition of his back.
He was examined at intervals during that period by some four or five
surgical experts and received more or less medical and surgical
treatment.
All the surgeons who examined him in the earlier period of his
disability advised him that a surgical operation would greatly relieve
him, some of them expressing an opinion that he could be entirely
cured. Two methods of treatment were recommended, the “Albee”
and the “ Hibbs” treatment. The report of Dr. John C. Wilson,
who examined Harris some 22 months after his injury, corresponded
with that of the other surgeons, except that he expressed some doubt
as to a complete recovery, and Doctor Southworth also qualified his
report in the following words:
It must be borne in mind that a Hibbs or Albee operation is not
always followed by prompt and satisfactory relief.
It appeared that the company repeatedly offered to provide and
urged the recommended operation, but from the outset Harris refused
to consent to it. The commission found that the refusal was not
unreasonable. The company contended that the refusal to submit
to an operation was unreasonable and therefore it was not liable for
the continued disability of Harris. Subdivision (e), section 11, of
the workmen’s compensation insurance and safety act of 1917, upon
which the company relied reads as follows:
No compensation shall be payable in case of the death or disability
of an employee if his death is caused, or if and so fat as his disabil
ity is caused, continued or aggravated, by an unreasonable refusal to
submit to medical treatment, or to any surgical treatment, the risk
of which is, in the opinion of the commission, based upon expert
medical or surgical advice, inconsiderable in view of the seriousness
of the injury.
The court, on review of the commission’s findings, said in part:
It must be admitted that there is nothing in the record which can
support the conclusion that there was any risk involved in the pro
posed operation. Doctor Wilson’s report, w'hile recommending the
operation, does throw some doubt upon the probability of beneficial
results, but it must be kept in mind that the doubt is based upon
the fact that some 22 months had elapsed between the time of the
injury and Doctor Wilson’s examination, and the fact that an opera
tion had not been performed previous to Doctor Wilson’s examination
is wholly due to the refusal of Harris.
We cannot agree with respondent’s contention that the commission
may take judicial cognizance of what is involved in the “ Hibbs” or
“ Albee” treatment. The rules of evidence which obtain in hearings
before the industrial accident commission, so far as the present
instance is concerned, are the same as those which prevail in the
trial courts of this State.
Where the issue pertains to medical or surgical treatment, the
nature, effect, or result of which are the subjects of common knowl
edge, such matters are within the rule of judicial knowledge, as for

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

249

instance, the court will take judicial notice of the nature, purpose,
and effects of vaccination. Also that syphilis is a serious disease.
But where the matter is not one of common knowledge, but known
generally only to medical experts, it must be proven by competent
evidence just as any other issue of fact.
It was held by the court that there was no competent evidence
offered before the commissioners as to the character of risk involved
in either the “ Albee” or “ Hibbs” treatment from which it could
properly find that the employee’s refusal to submit to an operation
was not unreasonable. The award was therefore annulled and the
case referred back to the commission with instructions to exclude
any compensation for disability in so far as it was caused, continued,
or aggravated by unreasonable refusal of the employee to undergo
the recommended operation.

W orkm en's Compensation— M ed ica l and S u rg ica l Aid—
“ U n u su al C a se s” — C on stru ction o f M assach u setts Law—

Moore’s Case, Supreme Judicial Court oj Massachusetts (May 26,1926),
152 Northeastern Reporter, page 66.— Galen Moore, an employee of
the Bethlehem Shipbuilding Corporation, was injured in M ay, 1920,
by an accident arising out of and in the course of his employment ^
and tuberculosis resulted from the injury. He was discharged from a
hospital in 1923 to enter a sanatorium for lung tuberculosis where he
could receive proper treatment.
The industrial accident board
ordered the insurer of his employer to repay him what he had paid
out to physicians and hospitals for services rendered after the two
weeks following his injury. It appears that the legislature had by
statute given the board authority to require employers to extend
medical treatment, etc., beyond the first two weeks in “ unusual” cases.
In Bys’ Case (254 Mass. 244, 139 N. E. 505; see Bui. No. 391,
p. 502), classed as “ unusual,” complications arose after an operation
which resulted in degeneration of the skin, necrosis of the bones and
tissues, and hemorrhage. After citing this case and quoting from
the opinion delivered therein as follows:

Among the “ unusual” cases would ordinarily be included, for
example, those requiring major operations, spinal injuries calling for
expensive special apparatus, and serious injuries to the eye or brain
demanding the services of specialists. It is equally clear that the
statute is not applicable to the common minor injury, calling for
ordinary medical treatment
Judge Carroll, speaking for the court, said in part:
There was nothing unusual in the case at bar. The plaintiff is
afflicted with tuberculosis as a result of his injury, but the statute
did not intend to put the expense of his cure on the insurer, as no
unusual result or complication, no unexpected accident or symptom.,

250

DECISIONS OF THE COURTS

intervened to bring the case within the statute. It follows that the
decree must be reversed and a decree entered for the insurer.
The decree was accordingly reversed and a decree entered for the
insurer.
W orkm en's Compensation— M e d ic a l F ee— R equiring Pay
ment— Judicial Pow ers o f Commission— Bee Hive Mining Co. et
al. v. Industrial Commission oj Virginia, Supreme Court of Appeals of

Virginia ( March 18, 1926), 182 Southeastern Reporter, page 177.—
The Industrial Commission of Virginia undertook to require the Bee
Hive Mining Co. and its insurer to pay Dr. S. M . Ford $275 for
medical attention to an injured employee of that company prior to
the assertion of the claim before the industrial commission. The
employer and insurer appealed. The appeal was dismissed because
the amount involved was less than $300, the statutory amount neces
sary to give the court jurisdiction in cases of this nature. (Bee Hive
Mining Co. et al. v. Ford, 131 S. E. 203.)

The instant hearing was Qn a petition for a writ of prohibition by
the mining company and the insurer to restrain the industrial com
mission from issuing a certified copy of an award and proceeding fur
ther. The court, in awarding the writ, said in part:
Whatever control the commission has over fees of physicians it gets
from section 65 of the workmen's compensation act, which is as fol
lows:
“ Fees of attorneys and physicians and charges of hospitals for
services under this act shall be subject to the approval of the com
mission; but no physician shall be entitled to collect fees from an
employer or insurance carrier until he has made the reports required
by the industrial commission in connection with the case."
This section was intended, as we construe it, to give the industrial
commission the power to pass on attorneys' fees and physicians'
charges when rendered— in other words, it was the intent of the act
not to allow an attorney or a physician to overcharge for their serv
ices. There is nothing in this section that could be construed to
give authority to the industrial commission to make a money award
against an employer and insurance carrier and in favor of a physician,
who, at their request had rendered services to an injured employee.
Of course, if in accordance with the provisions of the workmen's
compensation law, the employer or its insurance carrier had ordered
the services of a physician, and refused to pay for them, the physician
would have a right to maintain an action at law, but the industrial
commission has no authority under the law to require the employer
or its insurance carrier to pay a physician ordered by them.
A writ of prohibition will therefore issue, prohibiting the Industrial
Commission of Virginia from further proceeding in the matter of the
award of a fee to Dr. S. M . Ford, and particularly from issuing a
certified copy of the award.

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

251

W orkm en’s Compensation— M e d ic a l Services— Employment
by Claim ant— Koch v. Lehigh Valley R . Co., Supreme Court of New

York, Appellate Division (July 2 , 1926), 216 New York Supplement,
page 609 .— George Koch, an employee of the Lehigh Valley Railroad
Co., while in the course of his employment on March 2, 1921, cut his
finger, blood poisoning resulting. He consulted his own physician,
Dr. David Brumberg, who lanced the finger on March 3, and saw Koch
daily until March 10, at which time incisions were made in the finger
and hand to drain them. Thereafter claimant was delirious most of
the time until July, 1921. During this period and until September
30, 1921, Doctor Brumberg saw his patient every day and sometimes
twice a day, either at his office or at Koch’s house. Thereafter calls
were made nearly every other day by the physician upon the patient
or vice versa until February, 1925. Meanwhile, Dr. Joseph Brumberg,
Dr. David Brumberg’s brother, had been employed to give claimant
X-ray treatments. From an award by the industral board to claim
ant in the sum of $1,622 on account of medical services of Dr. David
Brumberg and $150 on account of the services of Dr. Joseph Brumberg,
the employer appealed.

Judge Henry T. Kellogg, rendering the opinion of the court, said
in part:
It will be seen that the Brumbergs had in claimant an excellent
patient, had his employer been responsible for his bills. We do not
think the employer was so liable. Section 13 of the workmen’s com
pensation law (amended by Laws 1918, ch. 634, sec. 3), as it read in
March, 1921, provided as follows:
“ The employee shall not be entitled to recover any amount
expended by him for such treatment or services unless he shall have
requested the employer to furnish the same and the employer shall
have refused or neglected to do so, or unless the nature of the injury
required such treatment and services and the employer or his super
intendent or foreman having knowledge of such injury shall have
neglected to provide the same.”
Inasmuch as the claimant had not requested the employer to furnish
medical services, nor notified the employer of his injury until nine
days after it occurred, it was held that such employer could not be
held liable for medical services rendered.

The award was therefore reversed and the claim dismissed with
costs against the State industral board.

W orkm en ’ s C ompensation — M inor I llegally E mployed—
A ction for D amages — D efenses — William B . Tilghman Co. (Inc.)
v. Conway, Court of Appeals of Maryland (April IB, 1926), 183 Atlan
tic Reporter, page 598.— Harry L. Conway, a minor under the age of
14 years, was employed by William B. Tilghman Co. (Inc.) on July

252

DECISIONS OF THE COURTS

1, 1923. On August 15, 1923, being then slightly above the age of
14, he was injured in the course of his employment by being hit in
the eye by a piece of timber which broke his glasses and caused an
injury which resulted in total blindness of his right eye. He was
awarded compensation by the industrial accident commission on
September 22, 1923, and on November 22, 1923, the order was
annulled for the reason that the claimant was at the time of his
employment and the accident under 16 years of age. The plaintiff
then instituted a suit in the circuit court of Wicomico County to
recover damages for his injury, and in his declaration charged the
defendant with illegal employment and negligence. The commonlaw defenses were held barred by the terms of the compensation act.
From judgment for the plaintiff the defendant appealed.
The appeal presented three questions for the consideration of the
court of appeals: (1) Was the employment of the plaintiff, although
prohibited by article 100 of the Code of Public General Laws, illegal
under the provisions of article 101 of the workmen’s compensation
law? (2) If such employment was not illegal, could the plaintiff bring
a common-1 aw action for damages caused by an injury due to the
negligence of the employer, etc.? and (3) if such action be brought
could the defendant plead the common-law defenses?
The court, after reviewing article 100, Code of Public General Laws,
relative to the employment of children under the age of 14, and arti
cle 101, workmen's compensation act, stipulating the conditions under
which children between the age of 14 and 16 years may be employed,
held that the employment of the plaintiff was illegal. Judge Diggs,
speaking for the court, said in part:
It could not have been the intention of the legislature to include
within the provisions of the workmen's compensation law those per
sons who by the child labor law were forbidden from engaging in cer
tain employments and were prohibited from being employed except
when conditions, specifically set forth, had been complied with; in
other words, the legislative branch of the State could not have in
tended by one law to prohibit the employment of minors, and by
another law provide for compensation to such minors injured while
engaged in the prohibited emplojanent or occupation.
To the second and third questions and the contention that the
plaintiff had elected to apply for compensation and could not there
fore bring his suit at common law, Judge Diggs said:
But in the present case the plaintiff here has made no election, for
the reason that he could not make an election, not coming under the
provisions of the workmen's compensation law. It therefore follows
that he is at liberty, upon the industrial accident board's decision that
he was not entitled to compensation because of his being outside of
the provisions of the act, to bring this action at common law. Upon
bringing the action at law, and not being embraced within the provi
sions of the workmen's compensation law, he can not avail himself of

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

253

any of the provisions of that law, and therefore the defendant in this
action is entitled to plead and set up the common-law defenses of
assumption of risk, fellow servant, and contributory negligence; in
other words, the plaintiff and defendant in this case have the same
rights and remedies as they would have had in case the workmen’s
compensation article had never been enacted.
The judgment of the trial court was reversed and a new trial
awarded with costs to the appellant.

W orkmen ’ s C ompensation — M inor
T reble D amages — C onstitutionality

I llegally E mployed—
Statute — Town oj New

Holstein v. Daun, Supreme Court oj Wisconsin (June 21, 1926), 209
Northwestern Reporter, page 695.— Subsection 7 of section 102.09 of the
workmen’s compensation act of Wisconsin provides that “ compensa
tion and death benefits, as provided in sections 102.03 to 102.34, inclu
sive, shall, in the following cases, be treble the amount otherwise
recoverable: (a) If the injured employee be a minor of permit age and
at the time of the accident is employed, required, suffered or permit
ted to work without a written permit issued pursuant to section
103.05.”
The industrial commission, proceeding under the provisions of that
statute, awarded George Daun, a minor of permit age, employed by
the town of New Holstein on road work without a permit, treble
damages. Daun was employed to load stone on wagons. One Ridge
way, not a cow’orker, struck a large stone with a hammer and a piece
of the stone or hammer flew off and hit Daun’s eye and destroyed
his sight. The commission found that Daun, who was 16 years old
at the time of the injury and earning an average wage of $945 per
year, would probably earn an average wage of $1,400 after arriving
at the age of 21 years, and therefore assessed the normal compensa
tion at $2,750.03, payable by the town or its insurance carrier, and
the further sum of $5,500.06, primarily payable by the town. From
a judgment affirming the award the town appealed on the ground
that the evidence did not sustain the finding that after reaching the
age of 21 years Daun would probably earn $1,400 per year, and also
that the statute was unconstitutional because it places upon the
employer the burden of proving that the minor would probably not
earn $1,400 after his majority.
The court held that there was sufficient evidence to justify the
commission’s findings as to the probable future earning power of
Daun to give it that conclusiveness which the statute requires. It
also held that the argument against the constitutionality of the
statute was met by the opinion of the Supreme Court of the United
States in Booth Fisheries Co. v. Industrial Commission (46 Sup. Ct.
491), and quoted from that opinion as follows:

254

DECISIONS OF THE COURTS

More than this, the employer in this case having elected to accept
the provisions of the law, and such benefits and immunities as it
gives, may not escape its burdens by asserting that it is unconstitu
tional. The election is a w~aiver and estops such complaint.
The court concluded its opinion by saying:
As to subdivisions of the State that come under the compensation
law by force of statute, as the plaintiff did in this case, it is clear
that the State may prescribe reasonable regulations as to their liabil
ities under the law. The placing upon them the burden of showing
that a minor would probably not earn $1,400 after majority cannot
be said to be so unreasonable as to be unconstitutional, assuming
that a subdivision of a State can question the constitutionality of
liabilities placed upon it by the State.
The judgment was therefore affirmed.

W orkm en’s Compensation— Payment o f D eb ts O u t o f Com
muted A w ard— Pow er o f Commission— C o n stru ctio n o f S ta t
u te — Los Angeles County v. Industrial Accident Commission et al.,

District Court of Appeal of California (February 25 , 1926), 245 Pacific
Reporter, page 796.— The industrial accident commission made an
award to Jennie C. Lowe, widow of an employee of the County of
Los Angeles, which employee was killed in the course of his employ
ment. By order of the commission the award was commuted and
the county was ordered to pay to each of several creditors of the
deceased, or of the widow, a fixed sum of money, the aggregate
amount thereof to be deducted from the total award and the balance
thereof to be paid to the widow. The county of Los Angeles objected
to the order and sued out a writ of certiorari to have the award
reviewed on the ground that under the workmen’s compensation
insurance and safety act the commission had no authority to make
the order complained of.
The act contains a general prohibition against awards being taken
for the debts of the parties, but lists certain charges that may be made
liens thereon. From this the commission had assumed an implied
power to make the distribution complained of. The court held that
the power of the commission was limited to the definite provisions of
the law, and since the debts allowed in the order were not included
in the terms of the act the award must be annulled.
Another question raised was as to the interest of Los Angeles
County in the disposition of the award; but the court held that
as it was the employer, and part of its money would be used in
making the payments under consideration, it was a party in interest
and could properly bring the proceedings.

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

255

W orkmen ’ s C ompensation — “ P lan t ” — C ity E mployee — I njury
T hird P arty — C onstruction of Statute — Shockey v. Royal Bak

ing Powder Mfg. Co. et al., Supreme Court of Washington ( March 26,
1926), 244 Pacific Reporter, page 549.— George F. M. Shockey was
employed by the city of Seattle to work upon the public streets of the
city. While so employed he was run into and injured by an automobile
operated by E. G. Fredbloom for the Royal Baking Powder Manu
facturing Co. and the Royal Distributing Co. Shockey brought his
action against the companies named. The case was dismissed on the
ground that the facts did not constitute a cause of action against the
defendants, and plaintiff appealed from the judgment.

The supreme court found the “ sole question” before it to be
whether the injured man was at the time of his injury working at the
plant of his employer. If so, only the compensation right existed;
otherwise, he might sue the third parties. In affirming the judgment
of the lower court, the court reviewed several of its prior decisions in
which the facts and circumstances were virtually the same as those in
the present case and referred especially to the word “ plant” as it had
construed it in the former cases. In Carlson v. Mock (102 Wash. 557f
173 Pac. 637), the court held that the word “ plant” was intended by
the legislature to include no more than that part of the employer’s fixed
property over which he has exclusive control. Since the city had
exclusive control of its streets, and could for the purpose of repair
take any and every necessary step to insure the safety of its
employees while engaged thereon, it must, under the terms of the
statute, be held to be a part of the plant or premises of the city.
Of this Judge Fullerton, speaking for the court, said in part:
We may say here, however, as we have said in similar instances, it
is a rule with which we are without sympathy. It permits a person
guilty of wrong to charge a fund to which he neither contributes nor
has an interest with the consequences of the wrong. But the evil is
for legislative correction. The courts must administer the statute as
as they find it.
The judgment was therefore affirmed, relegating the employee to
his remedy against the industrial fund.

W orkmen ’ s C ompensation — S econd I njury — Loss of S econd
M ember — T otal D isability — Nease v. Hughes Stone Co., Supreme

Court oj Oklahoma (September 15, 1925), 244 Pacific Reporter, page
778— W . A. Nease was employed by the defendant and on Septem
ber 13, 1922, in the course of his employment and arising out of the
same, lost the sight of his right eye by an explosion. Prior to his
employment by the defendant he had lost the sight of his left eye, and

256

DECISIONS OF THE COURTS

as a result of the latter accident he was permanently and totally dis
abled. At a hearing before the commission he was granted an award
for the loss of an eye and allowed compensation for 100 weeks. He
brought action in the supreme court to reverse and vacate the award
under the terms of the act that declare that the loss of both eyes
constitutes permanent total disability. In so doing the court stated
that the employer and insurer “ must have known” that the employee
had but one sound eye when he was employed, and that “ he was
presumably paid the wages which a man in that impaired condition
was worth in that service.” Such earning capacity as he had being
totally destroyed, he was entitled to compensation for permanent
total disability, and it was so ordered.
The Supreme Court of Illinois took the same view in the case of a coal miner
who had been blind in one eye for eight years and had then lost 75 per cent of
the use of the other eye. The result was that “ it would be exceedingly difficult,
if not impossible,” for the injured man to find gainful employment or success
fully to perform its duties. The award of the State commission as for permanent
total disability was accordingly affirmed. (Superior Coal Co. v. Industrial Com
mission (1926), 152 N. E. 535.)
A like construction was put upon the compensation law of Alaska by a United
States Circuit Court of Appeals, which affirmed the judgment of the District
Court for the Territory of Alaska awarding total disability benefits in the case
of a man losing a second eye by accident. (Killisnoo Packing Co. v. Scott (1926),
14 Fed. (2d) 86.)
The law of Iowa contains a schedule for specific injuries, and provides that,
in case of successive injuries, compensation shall be awarded for the effects of
of each independently. The supreme court of the State upheld an award
allowing the schedule amount only in the case of a man whose right arm was
off at the shoulder on account of a prior injury, and who then lost the lower
third of his left arm, rejecting a claim as for permanent total disability. (Pappas
v. North Iowa Brick & Tile Co. (1925), 206 N. W. 146.)

W orkm en’s Compensation— Second In ju ry — P rio r P a r tia l
Incapacity — American Mutual Liability Ins. Co. et al. v. Brock,

Court of Appeals of Georgia (September 25, 1926), 185 Southeastern
Reporter, page 103.— E. E. Brock lost a foot and his right leg up to
within 3 inches of the knee joint when he was eight years of age.
On June 25, 1924, while in the performance of his duties with the
Gainsville Cotton Mills, a bale of cotton rolled on his right knee,
spraining his hip and knee. His weekly wage at the time of the acci
dent was $9.07. He was paid compensation for 10 weeks’ temporary
total incapacity in accordance with the laws of Georgia. He returned
to work on September 6, 1924, and continued to work until April 20,
1925, when he was discharged. Shortly thereafter he applied for
additional compensation on the ground of a change in condition.
On a hearing the commission found from medical testimony that

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

257

there was a 50 per cent loss of the use of that portion of the claim
ant's leg which had not been destroyed previous to June 25, 1924.
It then proceeded to make its award on the basis that the loss pre
viously suffered by the plaintiff was equal to 150 weeks of compen
sation and, deducting this from 175 weeks, the period for which
compensation is allowable for the loss of a leg, the remaining useful
ness would be equal to 25 weeks. Since there was a 50 per cent
disability to the remaining portion of the leg, the commission held
that plaintiff was entitled to compensation for 123 ^ weeks at the
prescribed rate for a good leg. On plaintiff's appeal to the superior
court he was awarded judgment as for a 50 per cent loss of a whole
leg without deducting 150 weeks, and the court ordered payments to
be made at one-fourth the weekly wages he had been receiving for
175 weeks. The defendants appealed fora review.
The court, on review, said in part:
The employee in thi^ case was wearing an artificial limb and was
making out with the piece of leg that he had. Presumably he
was charged with the disability in the price of his labor. Since
he was not a whole man, and was receiving less for his work because
of that fact, he ought not to be charged with the disability again in
adjusting the matter of compensation for injury. Compensation
being based upon wages, the reduction made in wages on account of
the crippled service automatically guaranteed a corresponding reduc
tion in compensation, and to charge the claimant with his prior dis
ability at both ends of the transaction would be manifestly unfair.
He had lost a little more than his foot. The employer accepted
him as he was, and paid him as he was, and for the purposes of this
case he will be regarded as a two-legged man. If he had lost all the
remaining portion of the abbreviated member, or all of the use of it,
he would have received compensation at the rate of 50 per cent of
his average weekly wages for 175 weeks. Having lost 50 per cent
of the use of such remaining portion, he is entitled * * * to be
paid 50 per cent of the amount which he would have received for a
total loss of use.
The findings made in the instant case remanded the judgment
which the superior court rendered, and it was not necessary to recom
mit the case on sustaining the appeal. The court, in awarding 50
per cent of the compensation to which the employee would have been
entitled as for the total loss, or total loss of use, of a leg, should have
proportioned the period of the weekly payments rather than the
amount of such payments, ordering that the payments be made at
one-half the average weekly wages, for 873^ weeks, less credit for
payments already made, instead of requiring them to be made at the
rate of one-fourth of such wages, for 175 weeks, less such credit.
Under the judge's order the weekly payments would have been less
than $4, whereas they can not be less than this amount, except when
the weekly wage is less. The judgment will be affirmed, with direc
tion that it be amended to accord with the statute.
The judgment was therefore affirmed with directions.

258

DECISIONS OF THE COURTS

W orkm en's Compensation— S e ttle m e n t and R e le a s e — Con
tinuing D isa b ility — M in o r — Evansville Pure M ilk Co. v. Allen,

Appellate Court oj Indiana (February 18, 1926), 150 Northeastern
Reporter, page 793.— Estelle Allen, a minor 17 years of age, was injured
while in the employ of the defendant. On June 6, 1923, the parties
entered into an agreement whereby the defendant agreed to pay her
compensation at a certain rate during her disability. That agree
ment was approved by the industrial board, and compensation was
paid accordingly to August 21, 1923. On August 28, 1923, the
defendant secured a receipt from the plaintiff for $26.40, which made in
all $66, in final settlement of all compensation due her under the com
pensation law, and also a statement from her that her disability ceased
on August 21,1923. Then followed a statement indicating that the
amount received was for total disability. On May 27,1925, she filed an
application for compensation for partial disability, and from an
award in her favor the defendant appealed. It set up in defense the
receipt given by the plaintiff, and alleged that she had been paid in
accordance with the agreement approved by the board and that
the claim was barred by lapse of time. It was shown by the evidence
that the plaintiff was suffering from a partial disability and that the
defendant had on numerous occasions since the date of the receipt
furnished her with medical care.
The court, in disposing of the case, said in part:
The award might well be affirmed on the authority of Standard
etc. Mfg. Co. v. Lliff (119 N. E. 479, 67 Ind. App. 508), and would
be so affirmed were it not for the fact that we desire to express our
emphatic disapproval of the action of the insurance carrier in its
action in securing the receipt in question from a 17-year-old child,
and then, through a technicality, attempting to prevent the payment
of compensation under one of its policies, when it at all times knew
appellee had not recovered from the effect of her injuries, and when
it had been furnishing her with medical and surgical care.
There is no merit or justice in this appeal.
The award was therefore affirmed, with 5 per cent penalty.

W orkmen ' s C ompensation I nsurance — S urety on C ontrac
B ond— L iability for I nsurance P remium — State v. Padgett

tor ' s

et al., Supreme Court oj North Dakota (May 26, 1926), 209 North
western Reporter, page 388.— This action was brought in the name of
the State of North Dakota against the Northern Trust Co., surety
on the bond of C. M . Padgett and the Padgett Co. to compel them
to pay to the workmen's compensation fund premiums alleged to
have been due and unpaid. The surety company demurred on the
ground that the complaint did not state facts sufficient to constitute

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

in s u r a n c e

259

a cause of action against it. The demurrer was overruled and the
surety company appealed.
It appeared that C. M . Padgett and the Padgett Co. were road
contractors, and as such had given bonds to the North Dakota State
Highway Commission with the Northern Trust Co. as surety thereon.
These bonds provide that neither the State nor any person perform
ing labor or services or furnishing material to be used in the perform
ance of the agreement shall suffer loss. It was alleged on behalf of
the State that in each of the contractor’s agreements the following
proposal appeared and was a part of the contract:
To comply with the requirements of the workmen’s compensation
act (known as H. B. 56) enacted by the sixteenth legislative assembly,
in 1919.
It was contended that the phrase ' ‘ labor, services, or materials”
which appeared in the contractor’s bond included premiums payable
by the contractor to the workmen’s compensation fund.
The supreme court, in reversing the trial court, said in part:
The workmen’s compensation fund is not synonymous with the
State of North Dakota, nor is the bureau the State of North Dakota.
The claims against the fund are not claims against the State, and
the fund itself is not a State fund. (Bordson v. N. D. W . C. Bureau,
49 N. D. 534, 191 N. W . 839, 842; see Bui. No. 391, p. 492.)
There is no express promise by the surety to pay the premium
now claimed due. The promise is to pay those who furnish labor,
services, and materials, and to protect the State of North Dakota
from loss. The bureau now says that the contract was made ex
pressly for its benefit, within section 5841, C. L. 1913, and that it
may recover the premium just as any laborer or materialman might
recover against the surety had payment for labor or materials not
been made.
It must not be overlooked that the surety is a favorite of the law
and has the right to stand upon the strict terms of his obligation
when such terms have been ascertained. This rule is generally
recognized by the courts and is applicable in all circumstances.
We are satisfied that the benefit to the bureau from the stipulation
in the contractor’s agreement with the highway commission was
incidental, within the above rule, and was not within the contem
plation of the parties at the time of the execution of that instrument.
We think it would be a wholly unjustifiable perversion of language to
construe the terms of the undertaking so as to obligate the surety
to pay the premium to the bureau in the circumstances disclosed in
the record.
42335°—27------18

CUMULATIVE INDEX1
Bui.
Absent voters.
Adamson law,.
Admiralty:
Assumption of risk.
Effect of State la w ...
Employers’ liability.,
Employment of unfit mate as
unseaworthiness.
Federal liability statute______
Jurisdiction.
Limitation of actions.
Stevedores..................
Wages.
"W atches” .........................
Workmen’s compensation.

(See also Seamen.)
Alien contract labor law:
Nature of action under.
Penalties............ ...........
Alien contract laborer:
Clerical employees.___
Learned profession^____

Aliens:

Chinese seamen.
Contracts, inducement, etc__

Employers* liability, rights
under.
Naturalization of seamen........
Proxy marriages of...................
Restrictions on employment...

Special taxes___
u Undesirable” .
Workmen’s co m p e n sa tio n
rights.
Antitrust acts:
B o y c o t t ........ ...._______. . .
Employment contract.............
Employment service................
Exemption of labor organiza
tions

Page

224
391
224
258
290

218
2,3
144-159
103
156-159

391
444
344
391
290
344
417
391

43-46
58,59
83-85
48-50
94-99
81-85
36-45
50,51

391
43-47
444 19,20,56-59
81-83,
344
280-287
391
47,48
444
56,57
391
46-50
444
19,20
391
52
444
72,73,
115-121
120,121
444
302-305
290
344
280-287
391
46,47,
349,355
417
36-41,
154-160
444
135-140
169
169

48,49
48,49

290
344
391

71
59,60
5

246
391
169
224
258
290
309
189

61,62
3,4
47,48
55
48,49
71-73
51,52
115-117

444
391
189
224
258
391
417
309
290

5,6
5-7
50-55
56,57
49,50
7-9
9-11
52,53
195-197,
206-208
287-289,
322-323
355-359

344
391

152
44-46
344
185-187
444 70-72,84-87
189
56,57
444
64-67
112
117,118,
123,124

Bui.
Antitrust acts—Continued.
Exemption of labor organiza
tions—{continued .)
Interference with commerce—
Strike in factories..................
Strike in mines.
Liability of members of labor
organizations.
Monopoly—
Bill-posting.... .......................
Laundries..............
Restraint of trade—
Boots and shoes—
Building................

152
169

35,36
49,50

290
344
391
224
344
444

108,169
204,205
212-214
168-173
157-165
89-91
137-142

224
391

58,59
172-174
50

444
246

84-87
64,65,
131-133
181-184
78,79
181-185
70,72,
84-87
53-55
65-67,
176-179
179-181
77,78
50-53
21-23
72,73
57,58,
293,294
43-46,
61-64

290
344
391
444
Lumber.
246
Photo-engraving__________
Apprentices' contracts.................
Arbitration of labor disputes___
Armed guards, status of..

344
290
169
417
444
189
444

Assignments of wages. (See
Wages.)
Associations:
Antitrust act.............................
Appeal from rules...................
Blacklist b y ..............................
Conspiracy.............................. .
Contract of employment b y ...
Contract of membership..........
Enforcement of rules____ ____
Interference with employment.
Liability of..............................
Lockouts___ ______. . . . . . . . . . . .
Monopoly..............A.................
Open-shop contract..................
Restoration to membership___
Restraint of trade........ . . . . ......
Wage fixing by .* ......................
Bankruptcy.................................
Barbers, examination, etc., of.
(See Examination.)
B uber shops, time for dosing....
Benefit funds:
Acceptance of payments under.
Administration of.....................
Contract for medical aid..........
Liability of, for malpractice___
Rules o f...
Blacklist:
Damages..
Extortion..

Page

417
417
417
391
417
417
169
391
417
290
344
391
417
391
189
391
417
344
391

112

112
417
224
391
417

12-16
17-19
15,16
175-181,
185-188
11,12

14.15
278-283
175-177

11,12

280-282
78-81
177-185
12-16
185-188
304-306
181-185
14.15
240,241
140,141
78-82
138,139
16,17
57
9,10
17-19

189
294-296
290
191,192
1This index cumulates the indexes of bulletins on decisions, Nos. 112,152, 169,189, 224. 246.268, 290,309.
344, 391, 417, and 444-years 1912 to 1926, inclusive.

261

262

CUMULATIVE INDEX
Bui.

Blacklist—Continued.
Interference with employment.
Records of employees................
Report of credit........................
Restraint of trade.....................
Statement of cause of discharge.

Unlawful acts...........................
Bonus. (See Wages.)
Boycotts:
Damages......... . ........................
Equal legal rights.....................
Interference with business,
etc.

Liability of labor organiza
tions.
Restraint of trade.....................

Rival unions. ___
Secondary boycotts.

Bribery of employees.
Car shed act...... ..........................
Children:
Age as affecting employers’
liability.

189
417
112
290
169
189
246
112
152
189
224
246
290
309
258

246

246
391
152
169
152

246
258
417
224
309

169
189

344
444

Employment certificates..........
Employment during school
term.
%
Employment in dangerous oc
cupations.
Federal regulation of employ
ment.
Hours of labor......................... .
Misrepresentation of age..........

Parent’s negligence as bar to
recovery.
Parents’ right to recover..........
Street occupations....................
Unlawful employment.............

112

152
258
344
152
258
309
344
309
152
169
309
344
391
152
391
344
309
344

Citizens, preference of, in public
employment.
Civil service:
Dismissal of day laborers.........
Pension funds...........................

317-322
15,16

391
224
152

Clayton act.

i
224

417

168-1^3
160-162,
165-169,
176-179
109-119
168.169,
174-179,
212-214,
245-247,
264,265.
270-274
176,
181-187,
191-196
153-157,
169.170,
205-216
158-162,
200-204,
220-222,
249-253
15,16

309
152

74-76
277-280,

246

51, S2

73,74
53-55
56,57
64-67
52-55
36-42
61-47
69,70
75-77
90-93
76,77
115,116
270-272
142-144
301-303
313,314
161-166,
336,337
123-131
146-148
134-136
137-142
44-46
53-55,
162-167
64-67,
131-133
303-305
136-138
109-115,
122,123
94-97
61-63
76

139,140

224

Age limit.

Bul.

Page

113,114,
269,286,
287
121-123,
239
73-76,
338,339
99,100,
108,109
31,32,
251-253
65-67,
97-101
56-30
95,96
101,102

111-113,
247-249
9G-101
127,128
57,60-62
95-97
58,59
64,65
93-95
99-101
77,78
269-271
78-82
101,102

93-98,
327-330
98-105,
397-402
77-82
56,57,131,
132
44
56,57

258
290

309
344
391

Clearance cards. (See Blacklist:
Coal prices, etc., control of.
Collective agreements.

189
258
290
309
344
391
444
(See also under Labor organ
izations.)
Color blindness as loss of sight...
Combination as affecting legality
of acts.
Commissioner of labor as witness.
“ Commodity of common use” _.
Communist labor party, effect of
membership in.
Company doctor..........................
Company villages, control of
streets of.
Compensation of workmen for
injuries.
(See Workmen’s
compensation.)
Compulsory work law.................
Conspiracy..

Car sheds...........................
Children, employment of..

Closing time for barber shops..

246
290
152

200
226-229

246
344
296

169,170
78,79
206-208

152
169
246

239-244
291,292
73,74

290
309
152

189
224
309
344

74-77
53-55
44-46,
226-229,
271,272
50,53-55,
143-147,
294-297,
303-305
158-167
58-60
55,56
140-142

391
258

2,3
66,67

258
417
344
391
258
309

49,50
9-11
227-231
139,140
95-101
93-95,
127,128
57,60-62
140,141

169

(See also Labor organizations:
Conspiracy.)
Constitutionality of law as to:
Absent voters...........................
Abrogation of fellow-service
ru!6.
Aliens engaging in business___

297,298
156-158,
325-331,
333,334
106,107
81-84,
184-191
59,60
71-72,
148-153
153-157
9,17,18,
70-73

344
391

263

CUMULATIVE INDEX
Bui.
Constitutionality of law as to—
Continued.
Compulsory work................... .
Conciliation and arbitration...
Contempt of court....................
Contracts of foreign corpora
tions.
Convict labor.......................... .
Court of industrial relations.. .
Criminal syndicalism...
Delegation of powers to fix
safety standards.
Discharge of workmen without
hearing.
Emigrant agents.......................
Employers’ advances, repay
ment of.
Employers’ liability............ ...
Employers’ liability insurance.
Employers’ liability suits........
Employment offices.................
Enticing employees..................
Examination and licensing of
workmen, etc.

290
309
290
391
391

74-77
165,166
255-257

391
417
290
309
391
258
391
391

38-40
30-32
170-172
128-131
327-334
134-138
196-199
136,137

189

60,61

258
290
391

101,102

152
246
391
417
391
417
444
290
258
309
344
391
444

74-76
107,108
115,116
35,36
134-136
82,83
64
86,87
130,131
202,203
135-138
280-282
67,68,
96,97
131,132

Exemption of property from
execution for wage debt.
Factory regulations................. .

417

Garnishment of wages........... .
Hours of labor—
Mines, smelters, e t c .. ........ .
Public works....................... .
Women and children............

344

Housing.......... .........................
Injunctions..... .........................
Insurance of employees by
municipalities.
Mine regulations. __.................
Minimum wages....................

Mothers’ pensions...............
Municipal, etc., conduct of
business.
Occupation taxes.................
Old-age pensions................ .
Paint-spraying machines, use
of.
Payment of wages.
(See
Wages.)
Peddlers, canvassers, etc..........
Pensions for public employees.
Physical examination of em
ployees in food establish
ments.
Picketing_________________...
Prices of food, rents, etc., regu
lation of.

Page

290

258
417
290
391
391
290
309
344
309

11,12

12,13

151
36,37

144-146
152-154
243,244
104
90,91
160,161
141-143
144,145
262-204
191-196
220-222

137

282
290
344
225,226
391
287
258
144-147
309
207-209
245-254
344
391
308-310
417
135,136
131,132
258
309 137,204,205
344 227,231-234
84,85
117
131,132
268
120-122
417
344
227-231

Bui.
Constitutionality of law as to—
Continued.
Protection of employees as
members of labor organiza
tions.
Railroads..................................
Rate of interest on judgment
for damages.
Rate of wages. (See Wages.)
Relief associations.....................
Repayment of employers’ ad
vances.
Safety of employees on build
ing.
Seats for female employees___
Service letters...........................
Strikes—
Calling, inciting, etc..............
Notice in advertisements for
labor.
Restricting............................
Trading stamps......... ..............
Voting on employers’ tim e __
Wages—
Assignment...... .....................
Payment by contractors ...
Payment in cash...................
Payment on discharge..........
Penalty for nonpayment___
Ratos in private employ
ments.
Bates on public works. .........

Seamen...................................
Weekly payment...................
Weekly day Of rest...... .............
Workmen’ s compensation—
Admiralty..............................
Alien beneficiaries.................
Attorneys’ fees.....................
Classifications........................
General aspects......................

309
391

220-222

290
417
444
391

118,119
12S-125
102,103
115,116

189
224
290
391

182,183
208,209
286-288
36,37

160

152

42-44

290
189
290
344

160
61-64
90-93
75-77

344
444
344

142
77,78
196,197

309
391
391

260-262
311.312
289,290

246
344
391
309
391

62-64
238,239
300-303
212,213
310-312
316-318
147,148
316-319
122,123
294,,300-302
108,109
245-254,
258-261,
2G4-266
327-334
261-264
322-325
139-141
112-114
297-300
312.313
124,125

258
391
444
290
444
344
391
3U
391
417
444
290
391
444
290
391
444
224
309
444
417
344
309
152
169
189

391
290
391

146
284-286
137-139

224

290
344
417
309

222,223
183,184
116,117
72-76,
135-137
73,74

246

344

Page

302-305
349-352
137-140
237,238
229,230
141-143
161,162
347-349
247,248,
285,286
179-182,
189-191
197-204.
216-226
200, 201,
206-208,
217-235,
232-258,
277-279,
322,323,
338,339,
341-344,
346,347
211-219,
255,256,
278-280,
284,385

264

CUMULATIVE INDEX
Bui.

Constitutionality of law as t o continued.
W orkm en ’ s CompensationContinued.
General aspects (continued)-

Minors illegally employed—
Penalty for nonpayment of
benefits.
Preexisting contracts. _
Powers of commission.
Powers of court as to self-in
surers (Louisiana).
Prior election of remedies
(Arizona).
Review of awards..................
Special funds..

Third-party liability.
Contempt:
Classes...........................
Evidence..

Indictment.........................
Incitement to violence as.
Jurisdiction to try............ .

258

417
258
344
444
391

417

444
169
417
444
309

173-176,
189-191
329-350,
369-371,
385-388,
396-398,
450-452,
463-465
263-267

309
344
391
444
258
290
309
344
391
344
417

404-406
522, 523
162-164
223,224
344-346
248-251
318,319
396-401
377-379
238-240

391

199-204,
253.254
305,306
314,315
179-181
112-114
102,103
306-309
315-317
253,254,
256,257

1S9
224
417
417
169
189
391
391

Liability of union. - ...............
Limitation of action...............
Power of governor to pardon..
Procedure...............................

391
169
344
152

Review on habeas corpus pro
ceedings.
Contract of employment:
Additional services.................
Agreement between relatives..
Agreement not to strike or
join union.
Agreement to protect employee
against strikes.
Assignment of wages to relief
association.
Authority to hire................ ......

169

200-205
257-259
133-135
172-175
218-223,
280-286,
288,289
135-137

391
344
258

33,34
62,63
50,51

11, 12,

258

51-53

152

163-165

344
444
152

95-98
27,28
224-226,
229,230,
232,233
57,58,275,
276
2P6-303
77-82,
184-186,
278-280,
296,297
56-63.65,66
63-72,
148-153,
241,242,
267-269,
272,273

189
290

309
344

391

Breach, injunction against in
ducing.
Breach with fraudulent intent.

Changed conditions as affect
ing.
Commissions as earnings.......
Damages for breach................
Death of partner........ ............
Definiteness of seasonal contract.
Deposits to secure fulfillment.
Discharge—
Damages for causing..........
Disobedience as ground......
Effect on tenancy................
Misconduct as ground........
Seamen—, . ...........................
Statement of cause..............

152
189
246
309
391
444
246
224
246
444
152
189

296.297

344
169
258
309
224
290
309
189
246
344

238,239
274,275
57
63.64
70.71
88,89
70-72
60-67
75-77
75-77
209
64-67
71.72
61,148
23-25
10,107
60,61

112
258
112

Statute forbidding...............
Unsatisfactory services.......

Without hearing, bill for
bidding.
Duress as affecting................ Earned commission, right to...
Effect of custom as to comput
ing time.
Enforcement*_______________

Engaging in similar business...

Enticing employees.

Evidence of existence...............
Excess work by convict.......... .
Exclusive services under.........
Failure to provide medical
services.
Foreign corporations............... .
Freedom in making................ .
Implied renewal..... ................ .
Interference by third party__

258
391
444
189
344
391
417
246

Labor organization as party...

267-269
271,272
305-307
24
70.71

56,57,140
112
53,54
258
290 78,79,81-87
309 57-60,64,65
344 60-68,71,72
28,29,
391
153-157
25
417
444 12-14,16-18
18,19,28,
391
29,35,36
19-21
417
14,15
444
71.72
224
56,57
258
25,26
417
16
444
141,142
112
60
169
142-144
112
59.60
258
344
189
152

258

Inventions of employees......... .

Page

16,17,
22-31,
34,35
21-24
7-10,
16-19,
116-120
140
105,106
58-61
46-50
58.59
69.70
60,61
13-16
7.8
68,69
63.64
68-73
7.8
230

417
444

211,212

382-384
253,254
434-436
170-172
153,154
231,232
263-267
, 4,166,167
324,325

Jury trial..

Breach.

Bui.
Contract of employment—Con.
Breach (continued)....... ...........

290

Insurance-............. ....... —

Page

290
309
391
309
444
152

12,13
245-254
297.298
50
155,156,
322,323,
333,334
56,57,
105-108
87,88
65-67
29,30
64
10-12
258-261

265

QVMUhATWM INDEX

Contract of employment—Gontd.
Life employment..................

Limiting employers * liability
Limiting freedom of employ
ment.
Misrepresentation............... .
.Modification1- ............... *.........
OUer of other work.
Overtimes...............

Place of making..................
Powers of industrial court.
Procuring breach_______
Profit sharing.....................
Promise of retirement pay.......
Promise to meet wage increase.
Promise to recoup losses..........
Property, status a s ..................
Public employment-...............
Rendering other services........ .
Repayment of advances_____
Requirements of State consti
tution.
Rescission b y new contract___
Retirement pay_____________
Right to perform..................... .
“ Satisfactory service” ............ .
Seamen....... ................... ........

Bui.

Page

152
169

224-226
57,58,
272-274
293,299
68,69
30,31,34,35
74,75
16,17
61,62
17,18

189
344
39.1
417
444
152
391
189
224
391
417
391
246
258
309
391
189
246
290
391
344
391:
417
417
444
391
417
258
391
391
391
309
417
152
417
309
391
189
246
258
290
309

Strike as affecting,.,

Sunday labor............................
Suspension while on personal
errand.
T«rm..... ......... . . ......................

Time of service_______ _____
Tips.................... ....................
Trade secrets...........................
Use of house as part wages___
Validity in another State.......
Contractors’ bonds.....................
Convict labor:
Constitutionality of law as to.

Leasing..

344
169
309
391

258
224
169
189
246
290
309
391

Convict labor—Continued.
Liability of employer for in
juries.
Recovery for excess labor....... .
Working with free labor......... .
Convi.ct-made goods, marking,
etc.
Cooperative associations, wage
debts of.
Cost of living, regulation of.......
Court of industrial relations
(Kansas).

241,242
67-69
16,17
26,27
26
188,189
149
214,215
32
177-180
185,186
388
327-334
200, 201,
235-237
85,36
26,27
27-29
17,18
13-16
29,30,
98-100
149
325-327
36-38
12-16

“ Dangerous machinery” ______
Disability, oolor blindness as__
Eig&t-hourlaw;
Application of Federal statute

67-69
27-29
226-229
29,30
61-63
24,25
119,120,
303
187-189
139-143
88,89
69-72,221,

Employees making purchases,
bonuses to.
“ Employees” under bankruptcy
law.
Employers’ advances. (See Con
tract of employment: Breach
with fraudulent intent.)
Employers’ associations. (See
Associations.)
Employers’ control of village
streets.
Employers, general and special..

222

267-272
338
166-168
229,230,
241-243,
259,260,
268,269
143
72

246
169
290
246
258

275
299-303
72,73
80,81
213,214
23-26,30,
31
10,18,19
71,72
167,168
60
51,52,236238
78-82
338
84,85
196,197
149,150

169
224
•391
417
391

58,59
60,61
38-40
30-32
40-42

444
246
290
258
152

Bui.

Criminal syndieaBsm..

Constitutionality..
Construction........
Overtime work...............
Panama Canal...............
Policemen, firemen, etc..
Violations.. ....................
Emigrant agents................

Employers’ liability:
Abrogation of defenses.........
Accident reports as evidence...
Accidental risks...................... .
Accord and satisfaction............
Action by personal representa
tion.
Acts of employees................... .

Admiralty-

Apparent danger.
Assaults.. _______

Assumption of risks.........

Page

152:

152

50,51
61-63
33,34
42

112

417
391
309
344
290
309
344
391
309
344
391
417 :
189
246

112

152
169
258
169

112

258
152
152
169
152
258
290

72-76,
135-137
73,74
170-172
128-131
258-261
149,150,
165-167,
327-334
149-152
167-169
196-199,
292-294
104-106
122,123

33-51
29-34
119
45,46,103
116-119
107,108
45,46
120,121

32,33
117,118
30
101,102

151
61-63

.344

240,241

152

191-193,
234-236

73,74

152 62,63,71,72
60-64,
169
197-204
58-60
391
224
129,130
152
245,246
35,36
417
290

105,106,

391

50,51,
71-74,
128-134
43-46,60-64
119,120
103,105,106
94-99
77-85
81-85
43-52
36-45
19,20,56-59
238
85-87
53,54
24-26,45,
46,54,55
65-75,145,
149-154
52,53,
63-65,235,
236,238,
239,244,
253-253

444
189
246
344
391
417
444
152
309
391
444

112
152

110, 111

266

CUMULATIVE INDEX
Bui.

Employers* liability—Contd.
Assumption of risks (contd.).-

169
246
258
290
309
344
391

417
444
Assurance of safety...................

258
344

Attempted rescue.....................
Building regulations.................
Care of sick employee...... ........
Certified mine foreman............
Charitable institutions.............
Children unlawfully employed.

112

290
444
152
344
112

152
169
224
258
309
344
391
444

Choice of remedy. ........._.........

290
391

Classification of employments..

152
169
258
152
290
444
152
417

Company doctor.......................
Comparative negligence...........
Competent fellow servants
Complaint of defects................
Conflict Of interest of defend
ants.
Conflict of laws.........................
Conscious suffering in fatal case
Contract for life employment
as settlement.
Contract for medical service.
Contract surgeon, liability for
malpractice by.
Contractors........ ......................

Contributory negligence..........

309
344

90,91
102,103,
111, 112
69-71
58-61
244,245
76,77,82,
98,99,285,
286
61,62,64,65
103-108
88-90,103,
104
85,86,
99,100,
102,103,
105-109
56-58,63,
64,86,87,
92,93,
129-131
54,55,59-66
“23,32-35,
38,39,61
54
145-148
83,84,99
105,106
92-95
60-64

391
152

344

391

417
444
152
112

169
290
344
444

Page

Employers’ liability—Contd.
Damages....................................

391

Defective equipment................
Defenses..........- ........................

417
189
189
246

Detention of sick employee___
Diseases.....................................

189
224

48-51,65,
66,68,91,
92,97-99,
132,133
80-82
67,68
68,306,307
82-86,88,
89,99
310
100, 101,
129,130
90,91
63
78,79
20,21,34,
35,59,60
68,69,93-95
66-68,70,
246,247
284,286,287
100, 111,
112,146,147
119,120
68, 120,121
77-80
57,58,69,
70,303,304
72
95-98
61-66,93,
94,128
26-28,61-64
73-74
70,71
32,33,49-51
59,60
85,86
107,108
74-76
76-80
68,69,88-90
112-114,
143-146
261,262
24
143,144

246
258
417
444
Disfigurement...........................
Duty of employer to instruct,
etc.

Election of compensation a c t...
“ Employee” . . . ....... ...............

258
152
169
290
391
189
417
189
224
344
391

Evidence...................................

444
169
189
444

Exemplary damages.................
Extraterritoriality.....................
Factory, etc., regulations.........

3Q9
169
189
224
258
290

Failure to care for injury_____
“ False imprisonment” ............
Farm machinery......................
Federal railroad statute—
Action for death.................... .

152
444
290

Administrator, appointment
of.
Admiralty, application to__

189

Aliens, nonresident.............
Appliances and equipment..

Assault by special officer___
Assumption of risks.-...........

224

91,92,115,
116
82,83

36-38
417
444 19,20,56-59
189
115-117
169
80,85,86,
102,103
81,82,86,
189
117-119
224 110,111,116,
117,125,126
72-75
258
131,132,
290
136,137
118-123
309
110-114
391
72-74
417
43-45
444
81
169
189 84-86,106,
107
224 86- 88, 111,
112

Burden of proof--.................

70-72
258
119-121
290
309 107,108,116,
117
119-121
344
89-92,
391
102-104,
113,114
444
224
124
80
258

I>«*«
i

308-310
52,53

Bui.

189
417

258
290
309

65,66,70,
71,73,81,
283-287
82-86
61,62,70,87
99-103
88-90,124,
125
85-92
43-46,
52-56,82-86,
117-119,
123,124
36-38,61,62
20, 21,
36-38,47-49,
58.59
87; 88
105
151,152
146
28,29
65-70
104,105
65-67
56-60
04,65
73-76
64-66,95,96
93-98
98-105
77-82
31,32,
251-254
94-96
56-58,60,
61,126,127
72,73
60,61
64-66
239-244
99,100
21-23
244
51,52

417
80-82
444 41-43,56,57
391
58-60
417
74,75

169

Convicts, fellow service with__
Course of employment.............

. Page

267

GTJMTJIiATIVB INDEX
Bui.
Employers* liability—Contd.
Federal railroad statute—Con.
Conscious suffering...............
Contractors......................
Contributory negligence.
(Bee Negligence.)
Course of employment..........

Damages.

189
224

Fraudulent representations..
Hours of service.....................
Industrial police....................
Inspectorsrapproval..............
Interstate commerce* inclu
sions under.

Place of suit...........................
Porto Rico, application in ....
Proximate cause....................

417
152

224
189
290
4J7
309
258
309
344
844
246
444
189
112

152

246
258
290
309
344

391
417
112

152
169
224
246
258
344
417
444

Limitations.

Negligence.

152
189
224
246
444
152
169
224
246
258
290
309
344
391
417
444

Panama Railway.
Parents’ rights.^..

67,68
88-91,
99-101
78-80,
88-90
108,109
39-41,53,
54
100,101

77,78
124,125
70,71
109-111
77,78
116,117

344
189
246

Pullman employees...............
Release...................................
Release of joint tort feasor . - .
Relief department.................
Safe place...................... .......

120,121

122,123
99
43-46
83,84
83-91
79-88,101,

102

169
189
224

Jurisdiction.

Employers* liability—Contd.
Federal railroad statute—Con.
Parties to suits......................

100-102

189

Express messenger.
Fellow-service. . .

78-80
90,91

Bui.

169 99,102,103
189
80,81,

309
444
Disease...................
Election of remedy.
Electric railways..

Page

83-98
91-115
82-84,
92-115
91-97
74-79,82,
83
122-134,
137,138
111-115
90-92,
124-126,
134,135,
338-343
93-104
68-71,
94-97
83,91-93
76-79,101,
102

77-80.83,
84,99,100
82-85,
117-119
97,98,101
80
98,99
80-82
41-43,56,
57
93-99
81
115,116
97,98
46,47
91-93
82,98-100
88-90,95,
96,116,117

152
169
391
309
391
152
224
309
444
112

152
189
169
444
224
169

Page

88-90,
93-05
79-82
99-101
117,118
107,108
99-101
86-90
118-121
47-49,52,
53
93-95
95,96
87
100-102

51,52
119,120
84,85,
100-102

108-110
391
93,94
224
258
80-82
290 120,121,134,
135
391 91,92,101,
102

State and Federal laws.........
Third-party liability.............
Waivers..................................

Workmen’ s compensation
acts.
Fellow service...........................

169
290
112

169
189
224
309
258
112

152
169
258
290
309
391
Foreign contracts......................
Fraudulent release....................
General and special employers.
Governmental agency..............
Hazardous occupations............
Horseplay..................................
Hospital treatment............ ......
Hours of service act as affecting.
Ignorance of employee..............
Incompetence of fellow servant.
Industrial police........................
Injuries causing death..............
Injury outside State.................
Inspection..................................

100,101

80-82
119
111, 112,
116,117
119,120,
126,127
92,93,
101-107
67-74
38,39,
43-45,49-51

Invalid statute, reliance on___
Invitees....................................
Joinder of parties....................

98,99
98,100,101

Joint liability with negligent
employee.

Insurance, life, admitting evi
dence as to.
Intentional acts.........................
Interstate commerce.................
Intoxication of employee..........

121,122

444
309
258
152
391
309
391
417
444
152
258
169
391
444
224
309
444
112

152
189
.189

77-80
134-136
93-95
84,85
87,118,119
90,91
1G9-111
74,75,82,83
75-77,95,
145-149,
152-154
60,61,73-76,
238,239,246,
247,262-264
73,283.284
66-68,69,70
103,104,
114-116
126,127
66,67,84-86,
89,119,120
19,20,21-23
77,78
83,84
191-193
234-236
68

98-100
68,69
67,68
53,54
54-56,
104r-106
69,70
283,284
71-74
43-46,60-64
80-82
83-85
195,196,
199,200
149-151
254-257
70,71,83,84
88

93-95
344
344 90-92,98,99
444
29,30
152
244,245
23
444
122,123
391
391
65,66
113,114,
344
131,132
128,129
391

268

CUMULATIVE INBEX
Bui.

Employers’ liability—Chafed.
Labor organization* Gomtoeaet
with.
Last clear chance......................
Latent danger..........................
Learner......................... ...........
Leased factory..........................
Liability of seller of appliance
as affecting.
Liability without fault ........... .
Licensed employees................ .
Limitation................................

Loaned employee
Less of vision.......
Malpractice.........
Maritime
injuries.
(See
Admiralty.)
Medical examiners, status of...
Medical treatment...................

Mine regulations.

Minors.

Municipalities _
Negligence___ _

Page

Bui.

152

258-261

152
344
344

102-104
107,108
86.87
89,90
117-119
87.88

290
344
391

82
246
417 48,49,66,67
61,62
152
83-85
309
122,123
391
75-77
417
444 46,47,56,57
91,92
309
252,253
152
117,118,
290
139-141
52,53
417

189
246
258
391
417
152
189
246
290
309
246
258
290
344
391
417
444
169
224

112

224
246

112,113
119,120,
308-310
86.87
§9,60
75.76
54
62-72
76.77
87.88
116,117
97,98
76,77,
124-126
106,107
64-66
106-112
98-105
77-82
51,52,54-61
31,32,
251-253
284,285
127,128
76,77,151,
152
72,73,79-81,
91-S3,
104-106,
247-249
121-123,
250,251
88-91,100,

Employers' liability—Costtd.
Occupational disease_____ _

290
344

Orders of superior................

169

290
Overexertion........................
Overtime work.......

344
152

Pension fuads ....... ......... .
Person in charge of work...

169
152
224

Poisoning.......... - - - . ......
Presumption of negligence..
Previous disability............ .
Proximate cause....... -- ----

246
290
246
152
152
169
246
309
391

Public works contractor .
Railroad hazards............
Railroad porter as employee...
Eailroad transporting circus
train.
Railroads................................. .

391
152
290
391
391
112

152
169

189

224
246
258
290
309
344

101

•444
Release-

112

152
258

417

444

Nonresident suitors .
Notice of injury........

444

Notice of strike______________

444

112

126,127,
129-131
36-39,48,
49,54,55,
56-58,
61-74
19-23,
24-26,28,
29, 32-t35,
39-41,
43-46,
49-55,
60,61
195,196
96,97
112,113
54,55

290

Release, effect of infancy on....
Release, effect of, on survivors’
rights.
Release of one joint defendant
Relief associations................... .

344
417
344
444
391
444
112

152

Res ipsa loquitur.

189
417
391

102-104
118,119
128
114,115
76-95,
148-151
74-109,
253-257
75-108,
278,286,
287,289,
290,291
77-119,
181,182,
308-310,
311
82-126
91-101
70-83,
84,85
118-137,
146,147
107-123
119-127,
134,135,
338-343
89-115
CM

391
417

*63,64
147-150
114,115
.124-126
105,106,
285
101, 102,
141,142,
115,116
-54-56,
104-106
74,75
56-58,
72-74
72,73,77,
78
90,91
146,147
100, 101,
104,105
62,53
247-249
67,68,76,
77
91
95-97
56-58,
7S-80,
110, i n ,
117-119

■*Jh

91,92
258
309 93-95.97,98,
103-107
344 83-85,87,88,
104-119,
134,135
46,47.50,
391
51,54-58,
\70,

Page

36-55,194
78-82,
145-148
245,246,
261,262
62,63,
83-85
139-141,
382,383
127-132
74,75
127-131
51,52
116,117
55,56
78-82
98-99,
109,110,
165-167
181-183
75-77
105-107

269

CUMULATIVE INDEX

Employers' liability—Contd.
Rule of haste....... . . ___ ____
Rules.........................................
Safe place and appliances.........

Bui.

Page

344
224

115,116
121-123
152-154
68-70,
110, 111,
235,236,
258-261
65-69,
72-77,81,
108-112,
285,287,288
123-127,
205-208
83-85,87,
88,90,91,
102-104
66,85-91
98,
103-105,
112-114,
116,117,
119,
136-139,
142-150
88,89,
98-100,
123-127
87-92,
116-119
48-50,66,
67,82-92,
117-122,
124r-126
59-61
20- 22,
24-26,
33-35,
47-49,55,
56,58-60

112

152

169

224
246
258
290

309
344
391

417
444

School district giving manual
training.
Scope of employment...............

391
391

Seamen, assumption of risk by.
Sick employee, care of..............
State as employer____________
State police_________________
Street railway as railroad.........
Strike breakers as employees_
Strike guards, acts of................
Strikers, injuries b y __________

391
309
344
444

Third parties, injuries to_____

169
189

112

391
309
258
417

309
344
391

Third-party liability.............. .

Undertaking dangerous work..
Unguarded machine in sales
room.
Vice principals_______ ______ _
Violation of statute____ . _____

417
290
344
391
417
258
344

Voluntary settlements.............

71-74,
131-134
43-46
105,106
132,133
61-64
95
63,64
100-103
91,92
47,48,
64-66,6&-70
276-278
57,58,293,
294
100-103
93,94,113,
114
65,66,7174,128-134,
261,262
47-51
134-136
134,135
123,124
159,160
87,88,91,92
109,110

290
309

115,116
92,93,
106,107
95-98.
.108,109
64,65,93,94
50,51
27,28,61
78-82,93-95
74,75
67,181-183
108-110,
114,115
290,291
81,82,89
78-82
249-252
102,103
86,87
109,110
69
74,75,
80-85,128,
129,250,251
103-1&7
92-95
83-87,97,
98,121-123
99,100,
110, 111,
113-115,
134,135
55-58,71,
75,76,
78-82,
94-97,
122-127,
439,449
41-45,54,
55,58.59,
77-82,
155,156
29-32,
194-196

391
417
444
W aivers.......... ._.....................

Warnings........ ..........................
Who may sue..........................
Willful injuries.........................
Workmen’ s compensation acts,
relation toi

112

169
189
391
169
258
169
152
290
309
169
389
224
246
258
309
344

391

417

444
Employers’ liability insurance:
Appearance, effect of . .
Fraudulent settlement____ _
Insurer as defendant..._______
Liability of insurer____ ______
Premiums__________________
Release......................................
Scope________ _______ _______
Violation of statute, effect o f...
Employment, interference with..

152
152
152
189
417
246
189
152
169
224
112

189
152
169
189
246
309
344
417

(See also Labor organizations:
Interference with employ
ment.)
Employment offices. . . ________

120,121

83-85,98,
99,106,
107,335-338
391 65,66,76-82
417
45-47
307,308,
189
311,312

Page

344

120-122

258 67,68,90,91
290
114,115
391
66,67
112 63,65,67-75
71-75
189
73-77,
224
344

Employers* liability—Contd.
Volunteers.........._....................

Bui.

Employment relation, existence,
etc., of.

444

189
224
246
258
290
391
417
444
152
290

264-265
266-268
264-266
313,314
51,52
107,108
312,313
268,269
291,292
129,130
97-101
121-123
271-277,
287,288
292-301,
313-321,
325,326
155,156
74,75
55,56,65,66
79-81,
140-142
15,16,25,
26,29,30
64-67

123-128
130,131
108-112
101,102

151,152
134-136,
148,149
82,83
64
233-235
89,00

270

CUMULATIVE INDEX
Bui.

Employment service, monopoly
in.
Employment, tax on...................
Enticing employees. (See Em
ployment, interference with.)
Examination, licensing, etc., of
workmen:
Accountants............................ .
Architects.................................
Barbers.................................... .

Beauty parlors........
Cement contractors.
Electricians.............
Plumbers................

(See also Licensing, etc.)
Factory, etc., regulations . . .

444

64-67

417

84,85

112

258
309
344
417
391
258
391
444
152
169
189
224
344
391
417
112

152
169

290
344

391

Females.

Females in Federal offices _
Laundries...........................
Mercantile establishments..
Pilots on Panama Canal___

Page

169

117,118
33-51,107,
108
29-34,120,

112

121

444
444

246

Extraterritorial effect of law ...
Factory and shop employees...

Hours of labor—Continued.
Policemen, firemen, etc.— ___
Public works...................... .

Bui.

152

189
224

Fishermen as seamen..................
Food prices, control of__.............
“ Force or violence” as com
munist teaching.
Garnishment of wages of public
employees.
Gratuities to employees making
purchases.
Hazardous occupation, “ work in
or about. ”
Hospital associations-............ .
Hours of labor:
Barber shops............................
Determination, by industrial
court.
Drug clerks................ .............
Effect of emergency or acci
dent.

Page

417
344
309
290

67,68
95,96
101,102

130
202,203
135-137
85,86
279,280
130,131
280
96,97
113-116
114,115
126,127
132,133
137,138
282-

Railroads...................................

169
391
344
224

116-119
142,143
155,1W
139,140
3,4,89-91
124-126
104-106,
127-134
122-133
144-155
144-159,
164-168
114-120
103,104-105
156-159,
162-167
133-135
143,144
69,70
130,131
54-56.
104-108
129,130
144,145
81,82
161-163

152
444
290
344

249-252
43-46
195-200
167-169

309
189
246

164,165
318-322
123-131;
136-138,
142-144
109-116
172-170,
247,248
138-141,
191-196
146-148,
265-268
66- 68, 7173, 148-153
13,14
141-144
246,247

169
224
29Q
344
417
112

152
169
189
224
246
258
290

86-88

Stationary firemen....................
69-75
Violation as affecting employ
117-120
e d liability.
65-69,73,
115,116 Housing, regulation of.................
71-76 Hydroaeroplane as vessel............
76-80, j Industrial commission, delega133-137 i tion of power to.
83-85,112, j Industrial court. (See Court of
113,200
industrial relations.)
152-154 Industrial police, acts of..............
106,107,
109,110, Industrial Workers of the World.
112,113,
117-119, Injunction:
335-338
Against acts of violence............
65,66,
Against blacklist.....................
136-140
Against boycott........................
88,89
82,83
72-74
206-208

309
391
444
189
152

258
290

344

243,244

309

224

61-63

391

68,69

224

391
309
391
344
169

140,141
128-131
333,334
138,139
122-125,
130-133
131,132
3,4
102-107
121-125

189
417
112

152
169
224
290
112

152
169
189
224
246
290
309
391
444
344
169
224
189
224
444

120,121

Against breach of contract.......
;

Against check-off......................
Against city official suspending
street car services.
Against disclosure of trade
secrets.
Against discrimination against
outside contractors.
Against establishment
of
strikers’ camp.
Against inducing breach of
contract.

159-161
154,155
108-117
125-127
121,122

132-144
161-163
113,114
160-162
132,133
141-143
69
57,58
119,120
138-142
128-130
137,13S
3

344
444
309
391
246

78-62

444

75-77

290

239-241

112

140
298-301
138,139,
145-153
105-108
156-160,
171-174
287,288
270-272,
301-305,
313-320
158-167,
328-339
181-186
162,163,
171,172
108,109.
116-121
203-206,
245-247,
251-255

169
246
258
309

Against interfering with em
ployment.

152
169
189
224
246
258
290

271

CUMULATIVE INDEX
Bui.
Injunction—Continued.
Against interfering with em
ployment (continued).

309
344

391

Page

141-144
79-81,
153-157,
169,170,
172-183,
200-204,
216-218
146-149,
181-188,
220-222

444

29,30,
94-103,
112-116,
119,120
139-147,
154-156
204-216
244-246
84-87
196-199
153-155,
158-162,
164-170,
172,173
121-127
211-225,
241-245,
257-268,
271-274
154^160,
174-199
181-183,
184-185,
220-225
185-188,
199-204,
214-219,
244-246,
251-253,
269-276
78-84,
91-93
162-167
131-133,
176-179
225-233,
248-250,
270,271
185-187
136-138
109-115
191-196
194-196
327,128
278-280
199,200
179-181,
213-216
162-165,
249,250,
276-278
91-93

391

249-253

152
344
169
344
344

280-286
165-167,
172-175
310-313
218-220
165-167

344

387,388

309

57-60,
64,65
28,29,
153-157
14,15
72,73,
234-237
19-21

417

Against interfering with inter
state commerce.

Against p icketing..................

309
344
391
444
224
246

258
290

309
344
391

444
Against restraint of trade........

169
246
290

Against secondary boycotts___
Against strikes..........................

344
246
258
309
224
258
290
309
344
391

“ Clean hands” as affecting
issue of.
“ Irreparable in ju ry ” as
grounds for.
Nature of p r o c e e d in g s ........
Purpose and effect....................
Right to........................- ...........
To compel delivery of property.
To compel guarding of prop
erty.
To enforce collection of insur
ance premiums.
To enforce contract of employ
ment.

391
T o prevent competition...........
T o prevent discharge of union
member.
T o prevent enforcement of
statute.

444
344
417
290
344

Bui.
Injunction—Continued.
To prevent interference with
local.
To prevent suspension, etc., of
member by union.
To procure membership in
union.
To protect public welfare.........
To restore member of union__
Violations.................................

274-278
152-154
189-192
151,152
175,176

391

189,190

344
309
192
152

218
160-164
155-161
280-286.
288,289
133-137,
305-309
314-317
179-181
163,164
128,129
255-257,
269,270
168-171
171-175
248,249,
253-257
93,94
84-86
5,6

189
224
246
258
290
309
344
391
, 444

Inventions of employees..............

Jones (seamen’s) Act...................
Kidnaping...................................
Labor as property........................
Labor organizations:
Actions by or against...............
*

112

417

444

112

290
309
444
391
189
169
224
224
344
391

64-67,
70-72,
84-87,
89-91
142-144
167,168
64
10-12

43-47
188,189
147-160
181-184
168-173
175-177
149-152,
185-188,
192-195,
211,212

417
444
Anticipation of violence. .........
Antitrust act. (See Interfer
ence with interstate com
merce; Monopoly; L a b o r
organizations: Kestraint of
trado.)
Blacklisting.............................
Boycotts....................................

344

290
169

270-272,
313,314
189
246

122,123,

258
290

309
391
417
444

210,211

227-234

290
309
344
391
246

169

Injuries causing death.................
Inspection of steam vessels by
Btate.
Interference with employment.
(See Employment.)
Interference with interstate com
merce.

Page

Breach of agreement.................

290
391

92-94
83,84,
93,94
165-167

191,192
137-142,
162-167,
298-305,
161-166,
336,337
123-133,
136-138,
142-144
109-116,
125-127
172-184,
223-233,
243-245,
247,248
138-141,
158-160,
191-196
216-210
94-97
70-72,
84-87
184-186
162-165

272

CUMULATIVE INDEX
Bui.

Labor organizations—Contd.
Bribery________________ __
“ Check-off” system.................

391
309

City firemen.............................
Civil rights of members____ _
Coercion....................................

290
309
189
417

C ollective agreem ents....,.,. . .

112

152
169
189
224
246
309

344
391

417
Compelling unionization_____

444
246
290

309

Compulsory arbitration...........
Conspiracy...............................

344
391
391
169

189
224
246

258
290

309
344
391

Contempt_______ ___________

417
444
152
246
290
339

Bui.

Pago

167-171
141-144,
171-173
208-211
162-164
166,167,
328-331
119,120
172-178
277-280,
289-295
297,298
156-158,
325-331,
333,334
191-194
171,172
138,139,
147-149,
171-174,
177-179,
181-188,
197,198
148-1.53
153-165,
177-181,
234-236,
276-278
110, 111,
114,115
70-73
145-153
211-214,
221, 222,
239-250,
257-261,
278-280
139-444,
147-149,
177-179,
181-188
177-179
215,216
165-167
143-147,
162-167,
303-305,
313-321,
326-329
158-167
168-173,
194-197
123-125,
128,
131-138,
141,142
116-119
168,169,
172-184,
191-195,
198-200,
221, 222,
229-231,
241-243,
271-274,
278-280
138-149,
154-156
153-105
146-148,
167-181,
185-188,
190,191,
244-246,
260,261
98-104,119
73-75
218-223,
280-286,
288,289
163,164
217,218,
255-257,
265-270
168-171

Labor organizations—Contd.
Contempt (eontinned)_____

Page

Criminal acts............................

246

Criminal syndicalism..............
Discrimination against outside
.contractor.
Duty of officials........................
Embezzlement of funds............

417
391

169-175,
201-204
199-205,
253-259
102,103,
112-114
133-136,
1.57,
172-175
104-106
205-208

152
152
189:
369
309

280-286
136,137
336
2.79,280
196,197

344
391
417

Employment b y ......................
Enforcing continuance of busi
ness.
Exclusive employment on
public works.
Exemption of, in antitrust laws.

169

186-188

112

117,118,
123,124
35,36
49,50
191,192
73-75
323,324

152
169
Extortion................................... 290
* 444
Fines by.-................................... 169
417
Fraud of member...................... 391
Inciting strike........................... 258
391
Inciting to injury...................... 169
Inducing breach of contract___

246

Industrial
World.

of the

344
417
290
309
344
391

Insurance b e n e fit s .............

290

Workers

Interference with employment.

344
112

152
224
246
258
2S0

309
344

391

417

Interference with interstate
commerce.

444
152
309
344

100,101

171,172
105-107
247,248
160-162,
306,309
326,329
138,139,
145-153
200,201

114,115
195-200
149-152
167-169
196-199,
292-294
200-203,
233-236
188,189
161-172
137-151,
287-295
181-184,
186,187,
194-197
M5-469
108,109
179-181,
188-191,
203-206,
218-221,
248-250,
254,255,
270,271,
278-280
156-160,
171-174,
176-181
153-157,
172-181,
185-187,
216-218
174-185,
205-208,
215-222,
237-239,
249-255,
257-261,
265-268
94-102,
114-116,
119,120
75-77,'81-83
137-151
139-147,
154-158
157-165,
204-216

273

CUMULATIVE INDEX
Bui.
Labor organizations—Contd.
Interference with interstate
commerce (continued).

391

444
Interference with mails............
Interference with war work___
Investigation of dispute prior
to strike.
Jurisdiction...... ........... ............

417
290
391
258
260
391

Jurisdictional disputes.............
Jury trial for contempt.............
Ki dnaping organizer.........____
Liability as accessory to assault.
Liability for damages...............

391
417
391
189
224
152
169

189
224
246

290

344
391

417
444
Liability for procuring dis • 112
charge.
Liability for tortious acts......... 112
Libel.......................................... 169
224
Lockout____ ___ ___ ___
391
Mandamus for injunction........ 169
Membership as ground for
290
discharge.
Membership rights, etc........... 152
189
224
246
290

309
344
391
417

181-185,
212-214,
244-246,
263-265,
268,269
70-72,
84-87.89-91
102,103
245-247
247,248
116-121
233-236,
274-278
151,152,
156,157,
174,175,
192-195,
231-234
167-169

290
309

Labor organizations—Contd.
Monopoly (continued)______ _

200-:03
188,189
173,174
134-136
137-142,
162-164,
278-283,
314,315,
322,323,
332-334
167,168,
334,335
177-179,
184-189
128
141-144,
164,165,
171,172
179-181,
184-188,
192-195,
241-243,
257-259
157-165
162-165,
192-195,
211, 212,
257-259
110, 111
93,94
161-168
118,119
322,323
188,189
241-243
310-313
208-211
295-297
169,170,
304-305,
323-325
175-179,
180-194
139-145,
175,176
195-198,
203-208,
233-238,
274-278
160-164
188,189,
192.193,
195,196
192-195,
230,231,
278,279
106,107,
181-184,
188-190,
259-261
138,139,
144-147

391

417
Municipal employees, rights of.
Open-shop contracts.................

444
290
391

Outlaw strike_______________

391

Persuasion.................................

309

Picketing...................................

169
189

101,102

110-112

Monopoly____ _

Bui.

Page*

224
246

258
290

309
344
391

Power of courts to review acts..
Power of Railroad Labor
Board.
Protection of employees as
members.

Reinstatement of discharged
employee.
Relief funds, accountability for.
Renunciation of illegal purpose
of strike.
Restraint of trade___ . . __ ___

417
444
246
417
391
112

169
189
290
309
391
309
169
258
169
290

225-233,
Right of owners, etc., to work..
Right to organize......................

290

Right to strike..........................
Rival unions............................
Rules, enforcement, validity,
etc.

169

2§0
112
112

290

344
391

Socialist Party........ ...... . . . . . . .
Status and powers___________

444
344
152
169
224
391

Page

157-162,
172-174,
177-185,
212-214,
263-265
101, 102,
119
70-72,89-91
208-211
185-188,
265-268
230,231,
268,269
173,174,
180,181
305,306,
321,
330-334
158-161,
166,167,
331,332
196,197
123-128,
153-162,
165-170,
172,173
121-125
211-225,
241-245,
247,248,
257-274
154-160,
174-199
181-187,
220-225
214-220,
260-276
104,116,117
78-84,91-93
175,176
97,98,
108-112
223-229
119-123
147-160
168,169
208-211
160
220- 222,
234-236
188-190,
199,200
234,235
127
162-167
168,169,
181-184,
245-247
214-S16
205,206,
208-211,
239-241
161-176
303-305
161,162,
176-178
201-203,
233-239,
274-278,
280-282
187-196
156,157,
174,175,
189-195,
230-236,
278,279
87,88
195,196
136-151
315-321
190,191
211, 212,
240,241

274

CUMULATIVE INDEX
Bui.

Labor organizations—Contd.
Status of employees on strike..

290
309

Page

271-274
166-168,

Bui.
Mechanics’, etc., liens—Contd__

210-221

200-204,
273-276
290 190,191,251
229,230
391
239-241
290
88
444
251-254
290
116-127
258
184,185
344
117-119
417
444
77,78
160-162,
321,
325-328
189
158-161,
166,167,
188,189,
318-322,
332,333,
336-339
157-175
246
105-129
258
108,169,
290
190,191,
223-229,
241-274,
278-280
147-149,
164-202
344
196-225
162-167,
230,231,
237-239,
241-278
444
89-93
224
198,199
290
274-278
309
152-154
344
157-165,
187-192,
194.195
417
97,98,
108-110
444
87,88
112
172-176
246
136-138
143-147,
162-167
224
179-181
258
128
417
102,103,
112-114

391
Strike as affecting employers'
contract.
Strike benefits.........................
Strike breakers.......................
Strike, illegal...........................
Strike, termination of............
Strike, unlawful calling..........
Strikes.....................................

Suspension, etc., of locals.

Union label.....................
Unlawful combinations..
Violation of injunction...

(See aUo Contempt.)
War Labor Board................... .
Workers’ Educational Associa
tion.
Laundry work as “ public busi
ness. ”
Lever (food control) Act............ .
Liability of employer for money
received.
Liability of manufacturer to
employee of patron.
Libel of employee....................... .

Licensing business, occupations,
etc.:
Architects................................ .
Factories...................................
Fishermen............................... .
Operating public conveyances.
Restaurants..............................
Revocation of license.............. .
(See also Examination, etc.)
“ Loan-shark” law, constitu
tionality of.
Mechanics’, etc., liens....... .

258
344

105,106
195.196

391

287-289

309
844
152

72-74
73,74
231,232

246

102,103

224
417

62-65
69,70
91,92,
112-114

444
417
391
391
444
444

95,96
88,89
280,281
281,282
94.95
94.95

246

62-64

152
169
189
224

152,153
167-170
170,171
199-201

Medical attention, duty of em
ployer under contract.
(See' also under Workmen’s
compensation.)
Mine regulations:
Bore-holes................................ .
Boundary commission....___
Certified employees.— -........ .
Classification___ *................... .
Employment of children........ .
Gas and oil wells.....................
Inspection.................................
Shot fixers.................................
Use of dynamite...................... .
Violations................... .............
Wash rooms..............................

246
290
344
391
444
417

179,180
290,291
244; 245
282-286
97-99
16,17

152
169
152
169
152
169
189
169
152*

63-65
170,171
65-70

290
169
290
189
344

Weighing coal..........................
Minimum wage laws.................

“ M onopoly” in private business.
(See also Associations; Labor
organizations.)
Mothers’ pensions......................

Municipal conduct of business.. .

Old-age pensions..
Overtime work.
Paint-spraying machines. .........
Peddling or canvassing, restric
tions on.
Pensions for employees......... .

Peonage.
Prices for laundry work, power
of State as to.
Profit sharing...............................
Protection of employees on
buildings.
Public control of business______
“ Public work” ............................
Railroad employee as officer of
United States.
Railroad Labor Board....... ........

Page

824
246
290
344
391
444

224
246
258
246
290
309
344
246
258
417
258
391
344
391

70-7$
116,117
171-174
225,226
171,172
194-i96
172-177

220

191-195
291-293
246-254
287-289
64-67

177,178

201

180,181
131,132
121,123
282-2&4
137
227

120-122
149
32
227-231#
146

169 56,57,74,75
224
202
246
183-185
290 21,284-286
189
177-180
246
185,186
85-88
290
287-289

112

152
391

444
417
309
344
417

Railroad regulations:
Blocking frogs...........
“ Cars” .....................
City ordinance_____
Construction trains..
Electric railways___
Fire doors.

75
75.76
76.77
169
224
444

181,182

77,106,
107,179
203-205
102,103

275

CUMULATIVE INDEX

Bui.

Railroad regulations—Contd.
Full-crew law-— —. . —........
Headlights..............................
Hours of labor or service__
Locomotive cab curtains.
Safety appliances...........

Shelter for workmen....
State and Federal laws.
Strike as excusing failure to
make repairs.
Switching as operation of trains
Violations as affecting liability.
Railroads:
Duty to furnish cars...................
Mine roads............................... ..
Qualifications of employees___

152
189
169
112
152
169
258
417
444
112
352

156-159
180,181
182,183
124-126
104-106
122-133
103,104
123-125
102.103
128-130
99-101,
106-109,
159-163
85,86,102,
103,106,
107,179-1S3
189 117,118,
119,183-188
224 110, 111,
123-126,
203-208
246
94,95,
99-101,
186,187
391
291.292
344
227-231
391
139,140
189
186
246
186
417
123-125
444
102.103
391
291.292
179-181
75-77,85,86
152
153-156
189
121,122
112
126-128
152
158-159
169
178,179
152
153-156

Recovery by employees for fail
ure to furnish cars to em
ployer.
Strike as affecting liability as 391
common carrier.
417
444
Transporting circus train..___ 224
Rehabilitation, Stateand Federal 309
action for.
Relief associations, departments,
etc.:
Acceptance of benefits........... 152
Amendments to rules.................
Application for membership...
Assignment of unearned wages
to.
Contracts waiving right to
damages.
Deduction from wages...............
Effect of suits..............................
Recovery of dues........................
Taxation......................................
Validity of contracts..................
Rentals, regulation of.............. .
Retirement of civil employees.. _
Rules of employers.
42335°— 27------ 19

Page

Sabotage.
Seamen:
Care and cure.
Contracts.........
Division of crew into watches.
Injuries, recovery for...............
Punishment...............................
Registration system.................
Seaworthiness of vessel...........
Supplies......................................
(See also Admiralty.)
Seats for female employees..
Service letters........................

Socialist Party........................
State conduct of business___
Strike, delay of work, etc., by.

Strike insurance, adjustment,
etc., of.
Strikes, notice of, in advertise
ments for labor.
229,230,
268,269,
(See also Labor organizations.)
291,292 Sunday labor_________________
125,126
100,101
202,203
248-250

96-99,
165-167
84,85,
100-102
285.286
224
209,210
290
285.286
152
297-299
169
334-335
152
163-165
181-183
290
284-288
152
109,110
189
181,182
224
211
290
288,289
344
231
258
133,134
309
135-137
144,145
391
21
290
2,3
309
417 4,5,120-122
112 144,145,
149-151
224
121-123

Tips and tipping.
Trade secrets____

Trading stamps, payment in___
Unemployment insurance...........
Union labels. (See Labor or
ganizations.)
Voting by employees away
from home. (See Absent
voters.)
Voting by employees on em‘ time.
Amount, if no special agree
ment

258
290
309
391

134-139
195-197
150-152
196-199,
292-294
224
212,213
246
187-189
88,89
290
309
69-72
344
267-269
444
120,121
224
212-214
258
139-141
77-85,126,
127,226-229
224
212
391
148,149
444
64-67
344
267-269
152
167,168
258
141-143
290
297-299
309
221,222
344
269-273
290
159
224
69,70
246
75-77
290
90-93
344
75-77
417
34,35
344
195,196
309
204.205
344
231-234
391 229,230,
241-243,
259,260,
268,269
417
21-23,
125,126
294-298
169
184-186
344
196-199
417
117-119
152
169,170
169
186
189 189,191,
197-200
214-218
189-191
143
258
64,65,
205.206
391
298-300
417 126-128,
141,142
112
181,182
290
289,317
112
142-144
152
51,52,
236-238
246
78-82
290
93,94
309
57-59
344
66-68,
234-237
391
11,18
444
14,15
391
311,312
152
170
391

289,290
206,207

276

CUMULATIVE INDEX

Bui.
Wages—Continued.
Assignments_____

152
169
246
290
344

Attorneys* fees in suits.
Award of War Labor B oard...
Bonus...................................

Concurrent employments....
Contractors’ bonds..............
Counterclaims...........................
Debt earned and payable in
foreign country.
Deductions...............................

Deferred payments, penalty for

Discharge as affecting right to
payment.
Discount for advances.............
Earnings of members of coop
erative associations.
Exemption.. ............................
Exemption of property from
execution for.
Forfeiture for breach of con
tract.

391
417
444
224
309
444
290
309
344
391
417
444
309
444
152
417

290

254-256
42

'152
189
417

116,117
127,128
131,132

112

144,145
218-220
272,273
107,119,

224
344
444

Identification cards................ .
Liability of stockholders..........
Mechanics’, etc., liens............ .

444
169
189
290
344
246
309
391

Payment in advance................
Payment of less than sum
claimed.
Payment on discharge............ .

Power of receiver as to..
Preference......... ...........

112

309
344
417
417
152
169
189
224
258
391
417
444
309
391
152
189
224
290
344

Bui.
Wages—Continued.
Preference (continued)..
Premiums................................
Prevailing rate. (See Rates
on public works.)
Profit sharing.......................... .
Rates in private employments

221

215,216
109,110
186,187
213,214
241,242
19-22,
303,304
128-131
6,7
206,207
103,104
299
134,135

344
391

152
290
344
152
290
309
344
444

344
417

Payment by contractors..........

163,165,
272-277
188,189
62-64
290
237-240,
256,257
300-303
128
103-107

130,131
231,232
284-288
70,254-256
174,175
294,300-302
215-217
256-258
118,119,
122,123
296,297

112

Garnishment.

Minimum wage laws. (See
Minimum wage laws.)
Overtime.......... - ......................

Page

120

243,244
128,
132-135
108
338,339
191
290,291
244,245
188,189,
199,200
214,215
307,308
131
212,213
254-256
132-134
137,138
170-173
190,191
175,176
67-69,222,
223
147,148
314-319,335
138,139
122,123
219-221
320-322
173,174
191-193
223,224
294,295
240,241

391
444
391
112

309
344
391

(See also Minimum wage
laws.)
Rates on public works............ .

112

152
169
344

Reduction by employers..
Refusal to pay..................
Release under duress..
Scrip, tokens, etc____

Seamen..

Security for payment............
Services rendered on request.
Settlement and release..........
“ Straight time” contract___
Tender, effect of....................
Time of payment___*..........

Tips as...................................
Vacation, payment for.............
“ Wage earner” ........................
Weighing coal...........................
Wash rooms in factories and
mines.
Wash rooms, liability of employer for clothing in.
eekly day of rest......................
W

Workers’ Educational Associa
tion.
Workmen’s compensation:
Abrogation of defenses.......... .

Abrogation of statutory rights.

391
417
444
391
444
189
290
444
344
169
189
224
246
391
417
444
169
258
290
309
344
391
444
246
258
290
246
391
258
112

169
189
224
246
290
344
391
112

290
189
189
189
290
344
309
189
224
246
417
444
344
152
169
189
224
290
152

Page

320

111,112

303,304
178-181
217-221
245-254,
258-261,
264-266
149,150,
325-334
132-134
175,176
186-188,
191-195
139,140,
261-264
322-325
139-i41
112-114
320-322
114,115
174,175
295,296
108-110
271,272
189,190
176,177
221,222

195,196
310-312
136,137
110, 111,
123,124
183,184
141-143
297-300
221,222

267-273
305-307,
335-337
115-121
196,197
149-151
300
199,200
304,305
148,149
134-138
195-197
196,197
218-225
197-199
300-302
254-256
312,313,
317,318
181,182
302
193
194-196
171-174
153,154
225,226
206,204
197-200
225,226
200

141-143
124,125
195,196
193
197-204
200, 201,

225-229
250,251
329,330
193-195

277

CUMULATIVE INDEX

Workmen’s compensation-^ •Con.
Accident...........................

Bui.

Page

169

205,206,
240,241
203-205
226,227,
237.238,
284-288,
313,314,
339
200-202,247,
248,277,278
150-162,
208,209
322,323,
390-396,
403,404,426
222-224,
288-301
273-280,
349-352
337-348,
462-463
144-154,213216,222,223
125-134,
217-221
215
293,294,310,
311,319,320
265
249-252
327-329
103-106,
203-207
212,213
302-305,
434,435
224-229
280-287
349-355
36-45,
154-160
135-140
389,390,
529-531
256.257
320
359-302,
519-521
211,233,
235,236,
239
187
305-308
263.264
313,314
394-396
183,184
178,179
163
255,256
237.238,
240-242,
264.265
163,164
229.230
287-289,
322,323
355-359,
410,411
160,161
141-143
516,517

189
224

246
258
290
309
344
391
417
444
Act in effect..............................
Act of personal convenience....

152

Admiralty-.............................. .

169
189
224
246
258
290
309
344
391
417

Advance payments..

444
391

Aged employees____
Agreements________
Agricultural workers

Aid bureau...............................
Alien beneficiaries, nonresident.

Amendments, effect of..
Appeals..........................
Arising out of or in course of
employment.

246
258
290
309
344
391
417
444
258
169
224

Workmen’s compensation—Con.
Arising out of or in course of
employment (continued).

Page

246

202,203,
212-216,
240-253
164,165,
167,176,
177,185,186,
191-205,
212,229,
230
373,
401-420,
426-428
288,289,
291,292,
296-318
303,304,
357-375,
380-382
343,344,
427,428,
440-443,
462-484,
502,503
153,154,
180-182,
189,190,

258

290

344
391

417

444

Artificial member as surgical
aid.

391

Asphyxiation.
aults, rhorseplay, etc..
Assaults,

444
224

290
309
344

391

417
444
Attempt to save life or prop
erty.
Attorneys’ fees........................ .

Award as vested right.

344
152

290
344
391
417
224
290
309
344
391

230,231
278
195-199
206,
241-1-250,266
229-232,
267
266,267,
224
269,270,
274,
284-320

Bui.

417
444
•Award in another State....
Awards, apportionment of.
Awards, basis, etc., of.......

309
152

134,135,
197,
213-234,
239,242
226,227
450,451,
525,526
220,221

308,309,
319
245,246
191-193
402,403,
405-407,
409-411
296,297,
299-302,
306,307
289,290,
303,304,
362-364,
365-367,
343,344,
463-467,
474,
477-479
188,189,
232-234
225,226,
241,242
371
185,186
308,309,
444-446
161,162
258
357-359
286,287
292,293,
301,302
360-362,
371-375,
516,517
169,170
131,151,
152
383,384,
531-533
230
230-232,
239,240
177, 193-203
207-214,
256-25$

278

CUMULATIVE INDEX

Bui.
Workmen's compensation—Oon.
Awards, basis, etc., of (contd.)-

189
224
246

290

344
391

444
189
246
417
391

286,287
224,284
203,204
483,484

444
Awards, payment of debts
from.
Awards, termination of............
“ Because of employment” ......
Beneficiaries. (See Workmen’s
compensation: Dependency.)
Beneficiary as employee...........
Beneficiary, change of status of.

(See also Workmen’s compen
sation: Remarriage, etc.)
Benefits.
Workmen’s com
pensation: Awards, etc.)
“ Bodily impairment” ..............
Bonus as basis of awards..........
Burial expenses, status of.........
Burns from smoking.................
“ Business for gain” ..................
Casual employment.................

Causal connection.
(See also Workmen’s com
p en sa tion : P roxim ate
cause.)
Change of condition.................

208-217,
286-291
227-230
208-210,
253-258,
291,292
167-170,
224,225
309-321,
446,447
232-243,
257,258
290-292,
294-302
428,429,
450,451,
458-460,
511-513,
517-519
162-180,
201-203,
219-221,
240-242,
249-255,
261,262
144-167,
211-213
254

417

Bui.

Page

417
224
309
344

208,209
258-260
242
292,293,
301,302
391
371-376
417
169,170,
178,179,
196,259-261
444
151,152,
172,173,
181,182

290
417
444
258

452-454
165,166
176.177
164,165,
176.177
344
312,313
169
213-215
224 268,272,273
246
210, 211,
227-229
258
171-173,
182,197,198
290
322-325,
373,374
309
243,244
391
384,385,
423,424,
429,430,
438,439
417 180-183,209
168-172,
444
190,191
290 426,435,436
309
289,290
344 362,372,373

Workmen’s compensation—Con.
“ Child” ....................................
Children.
(See Workmen’s
compensation: Minors, etc.)
Choice of remedies....................

352-355
246

212-214,
254,259,260
258
206-208
290
330-334,
346-350,
383,384,
419-425
244-246,

258
290

318-320
485-487,
489,490,503
235,236
286,287
231,232,
240-242,341
219,1220
325-327,

309
344

246,247
302-312,

391
444

385-392
172-177,
181,182,
230-232
215,216,
238-240
337-343,
434,435
247,248
347-349

391
Claims as vested right.
Claims..........................

444
309
224

Classification..
290
309
344
Collection of premiums. (See
Workmen’s compensation:
Premiums, etc.)
Commission, powers, status,
etc., of.
(See Workmen’s
compensation: Powers, etc.)
Common hazards.....................

246
290

344
Commutation.
(See Work
men’s compensation: Lump
sums.)
“ Compensation” .................... .
Computation of benefits..
Computation of earnings..

Concurrent awards.

444
152
391
290

152

224
309
344
391
258
290

417
Concurrent employments..

224
290
344
391
417

391

240,241
367-369,
380-382,
507,508,
516,517,
527,528

Congenital defect.................... .
Constitutionality of statute.
(See Constitutionality of law
as to: Workmen’s compen
sation.)

Page

444
417

242,243,
250,251
404,405,
407-409,
419,420,
426-428
223,224,
284,285,
310,
313-315
370,371,
374,375

176,177,
245,246
177-179
487,488
309-317

200,201

237.238
233.234
291,292
369-371
167,168
446,447,
463
224-226,
272,273
237.238
311-316.
382,383
300,301
376,377,
418-421
162,163,
234.235
145,146
253,254

279

CUMULATIVE INDEX

Bui.
Workmen’s compensation—Con.
Continuing causes...________

344

Contractors...............................

258
290
309
391

417
444
Courts, review, etc., b y .... .__

169
309
344

Coverage.____ . . . . . . . . . . . . . . . .

391
417
152
189
224

309
344

Cumulative effects...................
Death from intervening cause..
Death following disability.

391
417
444
444
444
169
290
344
391

Death of beneficiary. (See
Workmen’s compensation:
Beneficiary, change of status
of.)
Death without dependents___

444

258
290

Debts, payment from awards _.
Default of contribution............
Delayed disability___________

309
344
391
444 •
169
344

Dependency________________

152

169
189
224
246
258
290
309
344

Page

273,274,
279,280
182-184
373-375,
388-390
268,269,
275,276
392-394.
418-421,
429,430,
434-437,
456-458,
523,524
210-213,
217,218,
177,190,
191
229,230,
236,249,
250,264
324-327
275-277,
294-296,
403-406
522,523
267-269
211-214
205-208,
239-243
128,129,
274-279,
281,282,
338,339,
341-346
272,273
312-318,
329-335,
345-349
394-396
184-194
177-181
126
202,203
212,213,
266,267
350,351
293,294,
324-326
371,390,
391
181,182

223,224
344-346,
351,352
248-251
318,319
396-401
254
206,207
305,
308-311,
353,354
177,178,
185-189,
196,197
226-229
235,236,
260,261
240-242,
259-265
207,208,
219-224
170,171,
177-179,
202-205
352-361,
411-413
251-255,
286,287
296-299,
319-324

Bui.
Workmen’s compensation—Con.
Dependency (continued)____ _

391

417
444
Disability..................................

169

189
246
258
290
309

344
391

444

(See also Partial disability;
Total disability.)
Disease____ __ ______________

169

189
246

258
290
309
344
391
417

444
Disfigurement....... ...................

Disobedience of orders..............

246
258
290
309
344
391
444
344
391

Domestic service.......................
Double recovery.......................

417
344
309

Page

355-358,
401-416,
484,485,
504,505
177,178,
194-205,
224-226
134,135,
182-185
207-213,
230,231,
241,
256-262,
268,269
212-216,
287-291
209,210,
275,276,
289,29C
179-181,
214,215,
224-229
361-368,
442-444,
452-463
237,238,
256-259,
336-338,
345,346
324-327
363-366,
416,450,
451,
497-499,
507,508,
511-519,
521-523
146-149,
156-158,
164-166,
174r-176,
255-257
205,
247-249,
258-262
203-205
2 0 -202,
£33-240,
274,275,
277,278
158
392-399
222,223
349-352
337-339,
460,462,
463
145-149,
153,154,
179,180,
213-216,
218,219,
222,223,
226,227
126-130,
173,174,
214,215
217-219
167,168
369-371
332.333
352,353
416-418,
515,516
204-206
367,368,
371,372
468,469,
476,477,
481,482
227-230
329,330
225,226

280

CUMULATIVE INDEX

Bui.
Workmen’s compensation—Con.
Due process of law....................

152
189
224
246
290

Earning capacity..

246

Election............... .

344
169

189
246
290

344
391
417

Employee of the United States.
Employers, general and special.
Employers’ liability..............

444
417
152
391
224

290
309

344

417
444
Employers’ report___
Employment for gain.
Employment status..

391
290
309
189
224
246
258
290
309
344
391
417

Page

179-182,
189-191'
225-229
238-240,
346,347
211,212
330-337,
369-371
209,210,
291,292
290,291
109,110,
204,205,
221-225,
230-232,
263

5,120,121,

233-235,
236,237
104,105,
224-228
327,328,
339-344,
371-373
259-263
327-329
421-423,
452-454,
504,505,533
77-80,
15.5-159,
240-243
186,187
6-8,208,
209
191-193
424-426
128,129,
250,251,
338,339,
348.349
349,350,
420-425,
466,467
225, 226,
244-246,259,
260,273-275,
317-320
289,290,
335-343,
376,377,
385,386,
401,402
55-58,71,
75,76,
78-82,94-97,
122,123,
124-127,
439-449
213-217
194-196,
199-201
340,341
306
271-273,
277-279
200, 201,

237-242
267-274,
348.349
228-230
181-185
373-381,383,
384,428,429
264-282
329-335,
397-402
423-439
183,184,
189-192,
206-213,
230,231,
258,259

Bui.
Workmen’s compensation—Con.
Enforcement.............................

“ Engaged in trade” .................
Equal protection of the law___

Estimating term of disability..
Estoppel...................................
Evidence..

Exclusiveness of remedy..

Exemptions and exclusions___

Extrahazardous employment.

Extraterritoriality...................

Farm labor. (See Workmen’s
compensation: A gricultural
workers.)
Farmers exchanging work____
Federal and State jurisdiction..

Fees for judges.
Firemen, c ity ..
Foreign contracts .
Fraud....................

Page

258
321
290
434-436
391
170-173
417
153,154
444
246 230,233,234
436-438
217-221,
233-235
243-245,
224
248-250
330-334,
290
339-343
382,383
391
311,312
344
444
175,176,
235,236
243-246,
286,287
282-284,
224
296-300,
317,318,
321,322
258 163,177,178
313,314
309
344
324-326
134,135,
444
156-158,
181,182,
191-193,
211-213,
218-222,
229,230
152
193-195
224,225,232,
236-238
189 246,247,250
383,384,
290
419-425,
447,448,
466,467
323,324
309
344 343,410,411
446-449
213
417
69
266,267,
272,273
186,187,
417
234,235
224
265,266,
277-279
197,198
258
449,450
391
209-211
152
247-252,
189
258-259
279-281
224
231-233
246
185-187
258
343,344,
290
384-388
282-284,
307,308
344
343-345
450-454
391
243-245
417
444
195,196,
197-200

417
189
246
290
290
309
169
258
391
417

183,184
249-261
103-106,
203-207,
260-269
334-337
383,384
264,265
226

222

455,456,
519,520
269,270

CUMULATIVE INDEX

Bui.

Frivolous appeals.
Gifts and gratuities.
Going to and from work.

Golf caddy............................... .
“ Gross inadequacy” of award .
Gross negligence......................
Hazardous employments____

“ Hazards of business”
Heart failure. ............
Heat prostration........
Hernia .

Horseplay. (See Workmen’s
compensation: Assaults, etc.)
Hospital interne.................... .
Hotel service...... ......................
Illegitimate children................
“ Impaired” employees. (See
Workmen’s compensation:
Preexisting condition.)
Impairment of functions with
out wage loss.
“ Incapacitated” child_______
Income of totally disabled
workman.
Independent contractor. (See
Workmen’s compensation:
Contractors.)
Injury............. .........................

Injury by third party. (See
Workmen’s compensation:
Third-party liability.)
Injury to defective member__
Insurance___________________

Page

202
246
258
195,196
309
223,224
391
475,476
417
151
444 125,226-228
270,271
417
242,243,
417
259-261
196-200
258
413-415,
290
426,427
309
303-306,
317-319
344 333,334,358,
359,364,365
470-472,
391
480,481
231,232
417
228,229
444
391
427,428
417
173
444
203,204
189 261-266,278
224 265,266,270,
271,276-279,
281,282
246 227,228,233239,255,256
258
188-191,
197,198
290
337-339,
388-390
309
284-288
345-349
344
417
188,189
444
201,202
258
151-153
246
202,203
258 153-156,165
189
203
258
156-158
344
276,277,
353,354
417
174,175

391
344
290
391

Workmen’s compensation—Con.
Insurance (continued).____

281

Bui.

Page

344
391

382-388
388,389,
393,394,
422,423,
433,439,
440,
491-494
210-213,
217,218
258,259
216,217
232-234,
242,243,
250,265,
266
291-293
303,320,
321,351,
352
217-219,
241,252,
253,
286-289,
292,293
167,
229-233
102,103,
415,416,
427,428,
. 435,436,
463-470
311,312,
315,31-6
289,290,
372,373,
410-412
444-449,
509-511,
528-531
273,274
133,134,
152,153,
155,156,
223-225
345,346
98,221-224,
251-261,
284-286
232-237,
327-331,
346,347
259-269,
270,271
189-191,

417
Intentional and willful acts..

444
152
169

189
224
246

258
290

309
344
391
417
444

Intermittent disabilityinterstate commerce___

309
189
224

428,429
329,330
354-356
408,409

246
258
290

309 235,236,257,
258,323,324
412,413
391
391 416,*525-527

309
340,341
224
349-357
344
391 458-462,472,
473,495,496,
517-519
218-221
417
191-193,
444
203-213,
230-232

246
391
189
224
258
290

208
517,518
205,206
266,267,
277-279,
350
209-212
409-411,
428-435,
449,450

Intoxication.

Joint tort feasors_____________
Judicial powers. (See Work
men’s compensation: Pow
ers, etc., of commissions.)
Jurisdiction of outside courts__
Jury trial.................... ..............
Knowledge as affecting lack of
notice.
Lessor as employer__________
Lightning stroke_____________

344
417
444
152
246
258
444
391

444
224
290
344
417
309
391
444

221,222

122,127,
128,133,
134,138,
382,383,
456
259,260,
325,326,
334,335
338-343
216,217
194
216,217
269
188,189
130,131
494,495

195,196,
242-244
239,240
334-337
307,308
210-213
314,315
348,349,
474,475
219,220

282

CUMULATIVE INDEX

Bui.
Workmen’s compensation—Con.
Limitations______________- —
844

Loss of eye.

Loss of single phalanx.
Loss of use of member.

309
Loss of useless member. (See
Workmen’s compensation:
Injury to defective member.)
Lump sums______ __________

152
169
189
224
246
290
309
344
417
444

Lunch hour accidents..

258
290

Malpractice_________

224
391

Manager and stockholder as
employee. (See Workmen’s
compensation: Member of
firm, etc.)
Maritime. (See Workmen’s
compensation: Admiralty.)
“ Maritime contract ” ...............
Marriage of injured employee.
Medical and surgical treat
ment.

Page

325-327
302-312,
403,404
367,368,
379-382,
385-392,
413-415,
495,496,
505,506
259-261
172-174,
181,182,
207,208,
221, 222,
234-237
289,209
179-181,
228,229
366,367
258,259
249-251,
253,254
165,166,
204-206
206,207
362-364,
454-456,
457,458,
461-463
235-238,
256-259,
342,343

199
207
208,209
314,315,
331-333
207,208,
275,276,
282,283
317-319,
367,368,
436,437
230-232,
326,327
294-296,
346,347,
402,403
254,255
148-151,
181,182,
244-246
202,203
416-418
309,310
322,
333-335
494,495

Bui.
Workmen’s compensation—Con;
Medical and surgical treat
ment (continued).
Medical, etc., treatment, re
fusing.

391 377,496-503
444
3,4,
245-251
253-255
336,337
290
439-442,
446,447
309
241-243,

Medical examination..

344
391
444
290
417
844
417
417

393-397
501,502
246-249
441-446
256.257
391,392
257.258
257.258

417
309
344
258
344

255,256
235.236
321-324
184.185
330,331,
334,335
430,431,
457,458
191,192.
206-208
188,189
185.186
134135
269
239
215-218
108-110,
447-452
327-330
397-402
427,428,
442,443,
503-505
54,55,58,
59,258,259
31,32,
251-254
226,227
334-337,
371,372
235.236
168,169

Medical fees.................
Medical reports, failure of phy
sician to furnish.
Medical service, dentistry as_.
“ Member” ..... .........................
“ Member of family” ...............
Member of firm, etc., as em
ployee.

Minor, death of______ . . . .
Minor, illegally employed .

417
444
Minors, election by..

Minors’ wages, anticipated in
crease in.
Misconduct. (See Workmen’s
compensation: Intentional
and willful acts.)
Mistake of identity................. .
Multiple injuries____________

Municipalities......................... .
Mutual mistake in settlement.
National Guard...................... .
Neurasthenia............................

444
444
152
169
189
224
258

290
309
344

136,137
185
203-208
253-255
210, 211,
213,214
335-337
169,170,
213-215,
219,220,
226,227
437-447
246,247,
327,
330-332
308-311,
390-397

Page

“ New and further disability”
Notice......................................

246
290
444
417

391
290
391
444
189
444
391
391
417
444
224
246
258
309
344
391
417
444

Numerical basis.

344
391

‘ Objective examination”

444

469,470
463
236,237,
323,324
511-513
146-148
206-208
180,181
520,521
438,439
218,219,
262,263.
175,176
338-341
273,274
218-221
330-332
306-312
389,390,
506,
529-531,
259
131,176,
177,207,
208
280,281
314,315,
316-318
449,450,
523,524
244,245

283

CUMULATIVE INDEX

Bui.

Workmen’s compensation—Con.
Occupational disease.^........'.

224
258
290
309
344
391

417

444
Operation not required by in*

3ury.

“ Orphans” ..... . . .............. .
Overwork......... ................. .
Parents both employed.^.......
Parents’ rights to action.........
Partial dependency.................
Partial disability....................

290
344
391
169
444
290
246

344
417
P a r tn e rs . (See Workmen’s
compensation: Member of
firnij etc.)
Part-time labor....................... .
Permanent t o ta l disability.
(See Disability.)
Personal errand....................... .
Place of injury..........................

“ Plant” ....................................
Poisoning..................................
Policemen, etc......................... .

Posthumous child................... .
Powers, etc., of commissions...

411-413
278,279
402.403
264,265
166,167
356,357
209,210
292,293,
332,333,
336,337,
342,343
402.403
174,175,
205,206,
272,273

169

234,235

309
246

311
230,231,
244,245,
249,250,
25$, 259
486,487
159-162
269-272
315.316
439,440
192-194,
234,235
178,179
216,217
318-320,
329,330,
344-346,
429-432
287,288
522,523
8,162,163,
198-200,
238-240,
263-269
271,272,
274,280,
281,
288-290
157,158,
162,
208,209
455,456
288-291,
297,298,
316.317
273-276,
354-357,
372,373
219-221,
223,224,
249-254
208-213,
215,216,

258
309
344
391
417
417
246
290

309
391
417

Preexisting condition.

258-262
305-308
158-162
147-150,
392-401
291-295
273,274,
277-280
337,338,
344-348,
443,444,
505-507
78,79,
152,153,
162,163,
213-216
132,133,
195,208,
209
238,239

189

258
290
309
344
417

444

Workmen’s compensation—Con.
Preference of benefits...............
Prejudice from lack of notice...
Premiums, collection, etc., of..

Bui.

Page

290
344
152
224

309

321,322
306-311
182-185
208,209,
252-258
327,328,
428,429
330-332
308-311
174-176
353,354
226,227,
229,230,
236-238,
251-253,
264,267,
268
230,231,
282-284,
349
201-205,
243,266,
267, 280,
281
251,312,
313,
320-322,
336
243,244
238,239,
289-291,
295,296,
316,317
467,468
218,219,221
129,130,
181,182,
201-203,
208-211,
214-216,
226-228,
233.234
431,432
182-185,
214,215,
206-208,
240.241
276,277,
341-346
227,228,
278-281
174
278
184,185,
190-194
243,244

258

221,222

344

340,341

290
Progressive disability....... .
Prior employer, liability of.
Procedure...........................

309
344
444
344
169

224
Proximate cause..

189

224

246
309

391
417
444

Public drayman.......
Public employment.

391
152
189
224
246
258
309
417

“ Purpose of employers’ trade
or business.”
Quarrels. (See W o rk m e n ’s
compensation: Assaults, etc.)
Railroad companies_________
(See also Workmen’s com
pensation: Interstate com
merce.)
Railway mail clerk............ ......
Rates of insurance. (See W orkmen’s compensation: Insur
ance.)
Receivership.................
Recurrence of injury................
Refusing employment............ .
Rehabilitation.........................
Rejection by employee........... .
Releases................................... .

284
189
344
353,354
221
417
365,366
290
167
417
248-250
309
396-400
391
144
444
68
189
189 202,285.286
323,324
224
282,283
246
222
258
382,383,
290
456,457
345,346
309

284

CUMULATIVE INDEX

Bui.
Workmen’s compensation—Con.
Releases (continued)— . ------ .
417
Relief associations, etc..
Remarriage of widow...

444
189
224
258
290
309
391
417

Reports of injuries.
Retroactive award.
Review..................

444
258
444
224
246
258
290
309
344
391

417

444

Schedule ratings..
Seamen on Shipping Board
Seamen. (See W o rk m e n ’s
compensation: Admiralty.)
Seasonal employment..............

224
309
391
417

Stevedores. (See Workmen’s
compensation: Admiralty.)
Strikers, assaults b y .............. .
Street accidents (See Work
men’s compensation: Com*
mon hazards.)
Subrogation_____________ . . .

(See also Workmen’s com
pensation: Third-p a r t y
liability.)
Successive awards.............. ......
Successive deaths..... ..............
Successive injuries................. .
Suits. (See Workmen’s com
pensation: Employers’ lia
bility.).
Sunstroke. (See Workmen’s
compensation: Heat prostra
tion.)
Surgical. (See W o r k m e n ’ s
compensation: Medical and
surgical treatment.)
Surviving beneficiaries.............
(See also Workmen’s com
pensation: Award as vested
right.)
Teacher attending institute.
Termination of payments.
(See .Workmen’s compensa
tion: Awards, termination
of.)
Third-party liability_________

252-258
429-432

391

308,309
465-467

391
417
444

267,268
282,283,
320-323
489-491
243-249
235-239

258
290
290

169,170
353,354
446,447

189

237,238

189

236,237,
246,247
295,296,
322-327
348,349
253-258
205-208
419-425
282,283,
317-323
340,341,
375-380
392,393,
484-491
238-241
177,200,

391

309
246
290

338,339
284,285
429-434

224
344
444
309

349
305,306
258
273-275

417
444
Tips as wages___
Total disability..

Trade-union as employer.......
Treaty rights...........................
U n it e d S ta te s Employees’
Compensation Commission.
“ Unusual cases” ............. .......
“ Upon the premises” .............
Usual course of bu siness......

202

375,376

417

246
258
290

200,201

Page

290

224

324,325
366 367

391
417
444

309
344

Soldier in civilian employment.
State employees. (See Work
men’s compensation: Public
employment.)

Workmen’s compensation—Con.
State insurance fund................

6-8

246,247
288-290
228,350,351
228,229
446,447,
455-461
336-338
303,304,
406-410
517-519
249-254
255-257

224
258
290

“ Serious and willful miscon
duct.” (See Workmen’s com
pensation: Intentional and
willful acts.)
Settlement and release............

458-460,
519-521
159.160,
269,270
159, 160,258
285,286
208,209
170,171
357-359
239,240
411-415,
508,509
176-179,
195,196
160-162
222,223
182,183
347,348
272,273,
282-284
. 178,179
320, 390-392
230-232,
240-243,
330-332
296-300,
403-406
367-371,
377-382,
433,
455-457,
499,500,
520.521
167,168,
173,175,
176,,179,180,
196-200,
232-234,
261,262,
267-269
140,141,
159.160,
162-164,
182,183,
232-234
349
235-238
513- 515.521

844
290
391
417

Second injuries -

S e c o n d in ju r y fund. (See
Workmen’s compensation:
Death without dependents.)
Security of payments...............
Self-insurance.......................... .

Bui.

201,

234-239,255
317
290
417 168,188,189
'224 228,350,351
275,276,
246
289-291
225-229
258
256,257,
309
337,338
345,346
303,304,
344
406-410
391
416,450,
451,
497-499,
515-519,
525-528
417
261-263,
270-273
279,280
309
358,359
391
8
417
444
249,250
344
333,334
258 172,173,229

285

CUMULATIVE INDEX

Bui.
Workmen’s compensation—Con.
Vested right. (See Workmen’s
compensation: Award as
vested right.)
V i o l a t i o n of statute. (See
Workmen’s compensation:
Intentional and willful acts.)
Visiting about shop__________
Voluntary payments_________
Voluntary worker on percent
age basis.
Volunteers__. . . . . . __________

290
309
391
309
246
309
344
444

418,419
234,235,
246,247
362,363
276,277
251,252
265,266,
302,303
332,333,
359,360
193,194

(See also Workmen’s com
pensation: Employment
status.)
217
“ Wages” __ . . . . . . . . . . . . . . . ___ 189
____ >
___________ Waiting
time
290
367,368
Waivers___ . . . . . . __ . . . . . . . __ 246
215,216
444
140,141
War as cause of delayed claim.. 391
386-388

Bui.

Page
Workmen’s compensation—Con.
Washing up after work.............
Wife not lawfully wedded.......

417
290

Wife separated from husband..

391
391

Willful acts. (See Workmen’s
compensation: Intentional,
etc., acts.)
Working partner. (See Workm e n ’ s c o m p e n s a t io n :
Member of firm, etc.)
Workmen’s association as em
ployer.
Workmen’s compensation in
surance:
Compliance with State law___
Exclusion of part of employees.
Funds deposited in foreign
State.
Liability for unpaid premiums.
Power of State to regulate rates.
Reciprocal associations______

Page

235-237
354-356,
360,361
401,402
401,402,
415,416

417

210

246
391
391

293
533
531-533

.391
444
391
417
391

534-537
258,259
534
274-276
534-537

LIST OF CASES

Abbott v. Concord Ice Co..............
Accident Fund v. Jacobs_______ __
Ackerman v. Siegel..........................
Acklin Stamping Co. v. Kutz_____ . . .
Adams v. Acme White Lead & Color
W ork s............................................ .
Adams v. Chesapeake & Ohio Ry. Co.
Adams v. Iten Biscuit C o .................
Adams v. Kentucky & West Virginia
Power C o . . . ................................... .
Adams v. Local No. 400.......................
Adams v. New York. O. & W. Ry. Co.
Adams v. Tanner.................... ...... . . .
Addington p. Guests River Coal Co.
Adkins v. Children's Hospital...........
Adleman v. Ocean & G. Corp. (Ltd.)
Aetna Life Ins. Co. v. Burnett..........
Aetna Life Ins. Co. v. Graham et al._
Aetna Life Ins. Co. v. Industrial Com
mission......... ...................................
Aetna Life Insurance Co. v. Tyler
Box & Lumber Mfg. Co______.. . . .
Aetna Life Ins. Co. v.Portland Gas &
Coke Co......... ............... ................ .
Ainsley v. John L. Roper Lumber Co.
Ainsley v. Pittsburgh, C. C. & St.
L. Ry. C o . ....................................
Aird, Ex parte....................................
Akron Milling Co. v. Leiter................
Alabama Brokerage Co. v. Boston___
Alabam’s Freight Co. v. Hunt.......
Alaska Steamship Co. v. Gilbert.........
Alaska Steamship Co. t>. International
Longshoremen’s Ass’n..... ................
Alaska S. S. Co. v. McHugh...............
Albee v. Weinberger............................
Albert A. Albrecht Co. v. Whitehead
& Kales Iron Works.........................
Albertsen v. Swift & Co.......................
Aldread v. Northern Pacific Ry. C o..
Aldrich v. Dale.....................................
Alexander v. Great Northern Ry. Co.
Allessandro Petrillo Co. v. M arioni...
Altman v. Workmen’s Compensation
Bureau............... .............................
Aluminum Co. of America v. Fendnall
Amberg, v. Kinley................................
American Car & Foundry Co. v. Inzer.
American Chain Co. v. Salters............
American Coal Co. v. Allegany Coun
ty Comm’rs......................................
American Coal Mining Co. v. Special
Coal and Food Commission..........._
American Knife Co. v. Sweeting.........
American Men’s and Boys’ Clothing
Mfrs. Ass’n (Inc.) v. Proser............ .
American Music Stores v. Kussell......
American Mutual Liability Ins. Co.
et al. ». Brock..................................
American Mutual Liability Ins. Co.,
In re.................................................
American Radiator Co. v. Rogge___
American R. Co. of Porto Rico v.
Coronas............................................
American R. Co. of Porto Rico v.
Didricksen.......................................
American Ry. Express Co. v. Davis..
American Ry. Express Co. v. Johnson.
American Smelting & Refining Co. v.
Cassil.............................................. .
American Smelting & Refining Co. v.
Industrial Commission....................
American Stay Co. v. Delaney.......... .
American Steel & Wire Co. v. Davis..
American Steel Foundries v. The Tri•City Central Trades Council......... .
American Trading Co. v. Steele..........

286

Bui.

Page

344
344
258
258

290
292
61
217

169
169
246

258
286
217

444
391
224
246
309
344
246
444
444

29
272
331
108

391

365

249
284
216
132

112

224
169

129
287

169
344
189
344
417
246

105
59
297
238
263
188

246
417
169

160
38
117

258
417
224
444
224
444

205
173
107
126
93
166

391
391
189
152
391

451
412
73
367

224

208

309
280

74
369

290
224

280
64

102

444

256

152
169

209
226

224

115

152
344
391

99
92
268

290

409

444
290

183
142
251

309
309

181
61

112

Bui. Page
American Woodenware Co. r. Schor
ling............................................... .
American Zinc Co. v. Lusk.................
Anderson e. Carnegie Steel C o ..___ . .
Anderson v. Commonwealth Oil &
Refining C o................................ .
Anderson v. Hawaiian Dredging C o Anderson v. Horling eta l....................
Anderson v. Miller Scrap Iron C o.—
Anderson v. Salant ....................
Anderson v. Shipowners’ Ass’ n.
Anderson v. Standard Lumber C o Anderson & Lind Mfg. Co. v. Carpen
ters’ District Council.......
Andrejwski v. Wolverine Coal C o .—
Andrews v. Belleman....... „..................
Andrews v. Industrial Commission...
Androff v. Building Trades Employ
ers’ Assn...........................................
Anest v. Columbia & Puget Sound R.
Co.................. .............................. ....
Angelopoulos v. Bottorff..................
Archer Lumber Co. v. Hall................
Archibald v. Ott............... .................
Ardmore Paint & Oil Products Co. v.
Industrial Commission....................
Argentino v. F. Jarka Co. (I n c.)..__
Arizona Copper Co. (Ltd.) v. Ham-

246
391
224

286
525
239

344
246
417
309
224
444
391

m
211
168
282
60
64
16

391
169
444
391

257
234
6

341

417

224
444
444
224

95
94
107
293

417
444

207
138

290
Arizona Eastern R. R. Co. v. Head.. 391
Arizona Power Go. v. S t a t e .......___ 246
Arkansas Cent. R. Co. v. Goad........ . 290
Arkansas Valley Ry., Light and
Power Co. v. Ballinger___________
290
Arms v. City of C hicago................... 391
Arnold & Murdock Co. v. Industrial
Commission______________ _____ _
391
Aronson v. O r lo v .............................. . 246
Ashby v. Davis Coal & Coke C o...
391
Ashland Iron & Mining Co. v. Fowler. 417
Ash-Madden-Rae Co. v. International
Ladies’ Garment Workers’ Union.. 290
Associated Employers’ Reciprocal v.
Simmons....................................... .
417
Associated Employers’ Reciprocal v. J309
State Industrial Commission.......... \344
Associated Hat Mfrs. v. Baird-Unteidt Co................................ ............ . 169
Atchison, T. & S. F. Ry. Co. v. Pitts... 189
Atchison, T. & S. F. Ry. Co. v. Swear
ingen.................................................. 224
Atchison, T. & S. F. Ry. Co. v. United / 246
. \ 444
Athens Railway & Electric Co. v.
Kinney............... .............................. . 417
Atherholt v. William Stoddart Co___ . 444
Atherton Mills Co. v. Johnson............ . 344
Atkins v. Grey Eagle Coal C o............ . 189
Atlanta Terminal Co. v. Lowndes___ . 391
Atlantic Coast Line R. Co. v. Georgia. . 169
Atlantic Coast Line R. Co. v. Gray... . 391
Atlantic Coast Line R. Co. v. Wheeler. . 444
Atlantic Coast Line R. Co. v. Wil
liams.................................................. . 344
Atolia Mining Co. v. Industrial Acci
dent Commission.............................. 246
Attorney General v. B ed ard ............ . . 169
Attorney General ex rel. Lennane v.
City of Detroit.................................. 391
Auburn Draying Co. v. Warden....... . / 189
\ 290
Aurora Brewing Co. v. Industrial
Board............................................... . 246
Austin v. Red Wing Sewer Pipe C o .- . 417
Auto Workers’ Temple Ass’n v.
Janson.............................................. . 391
Avery, B. F., & Sons v. Carter______ „ 417

330
115
197
142
423
280
516
80
75
259
265
235
302
391
278
97
120

119
69
240
172
62
176
128
182
113
34
124
246
324
322
161
172
210

145
171
219

287

LIST OF OASES

Bui.
Avre v. Sexton......................................
Ayers, In re...................... -.................
Aylesworth v. Phoenix Cheese Co___
Baasch v. Cook’s Union, Local No. 33.
Babich v. Oliver Iron Mining Co.......
Babineau’s Case..................................
Bachman v. Waterman...................... .
Bacon v. Payne..— . ______. . . . . ____
Bagaglio v. Paolino..............................
Baggott Co. v. Industrial Commission.
Bagley’s Case......... ....... ......... .
Bailey v. Drexel Furniture Co............
Bailey v. George...................................
Baisdrenghien v. Missouri, K. & T.
By. Co..............................................
Baker v. Adkins....... - ...... ..................
Baker v. Lyell.....................................
Baldwin Lumber Co. v. Local 560,
I. B. of Teamsters, e t c . . . . . . . . . .......
Ballestra, Ex parte..............................
Ballou s Industrial Commission........
Baltic Mining Co. v. Houghton Cir
cuit Judge.........................................
Baltimore Oar Foundry v. Ruzicka...
Baltimore Dry Dock & Ship Building
Co. v. Webster..................................
Baltimore & Ohio R. Co. v. Branson..
Baltimore & Ohio R. Co. v. Darr.......
Baltimore & Ohio R. Co. v. Gawinske.
Baltimore & Ohio R. Co. v. Kast___ :
Baltimore & Ohio R. Co. v. Miller....
Baltimore & Ohio R. Co. v. Ranier...
Baltimore & Ohio R. Co. v. Whitacre.
Baltimore & Ohio R. Co. v. Wilson...
Baltimore & O. S. W. R. Co. v. Bailey.
Baltimore & O. S. W. R. Co. v. Burtch.
Baltimore & O. S. W. R. Co. v. Hagan.
Balton v. Knollman Paper Co............
Bamberger Elec. R. Co. v. Indus
trial Commission..............................
Banister Co. v. Kriger.........................
Bank of Los Banos v. Industrial Acci
dent Commission........ .....................
Bannon v. Watson...............................
Barber ». Estey Organ Co...................
Barber v. Jones Shoe C o......................
Barbour Flax Spinning Co. v. Hagerty.
Barbrick v. Huddell.............................
Bargey v. Massaro Macaroni Co____
Baringer v. Zachery____ ____________
Barker Painting Co. v. Brotherhood
of Painters, etc..................................
Barker Painting Co. v. Local No. 734_ _
Barlow v. Lehigh Valley R. C o. ..........
Barnard & Miller*;. City of Chicago...
Barres v. Watterson Hotel Co.............
Barrett v. Gray’s Harbor Commercial
C o__........................................... .
Barrett v. Indiana................................
Barry v. Bay State Ry. Co__..............
Barry v. New York Holding & Con
struction Co......................................
Bateman Manufacturing Co. v. Smith.
Batista v. West Jersey & Seashore R.
Co......................................................
Bauer v. Rusetos & Co........ ................
Baum v. Industrial Commission.........

Bausbach v. Reiff...............................
Bausch v. Fidler.................................
Baush Mach. Tool Co. v. Hill et al___.
Bay v. Merrill & Ring Lumber Co......
Bay Shore Laundry Co. v. Industrial
Accident Commission....................
Bayne v. Riverside Storage & Cartage
Bayon v. Buckley.... _........................
Beale v. Yazoo Yam Mill...................
Beardsley v. Kilmer....... ...................
Beaudry v. Watkins...........................
Beaulieu’s Case..................................
Beaver City p. Industrial Commission.
Beck Mining Co. v . State Industrial
Commission....................................

Bui. Page
422

201
122

258
189
258
391
444
258
344
152
290
444
344
344

472
216
199
126
152
390
214
60
62

169
444
344

71
53
62

290
246

259
195
256

261

310
258
344
224
152

373

100

391
189
417
189
246
290
344
391
189
391

83
80
97
181
63
91
99
286
95
93
182
35

344
152

300
178

290
417
444
290
169
391
224
417

432
77
176
418
209
151
270
50

444
444
189
417
344

75
77

329

152
224

206
70
324

112

246

110
88

256

152
391
290
152
169
391
258

189
487
415
271
294
511
127
97

258

231

344
224
391
444

245
205
65
140
303
501
219

391

461

Beck v. Sylva Tanning Co_____ ____ 290
169
Becker v. Hopper......................... .......
Bedard v. Swemhart.......................... . 290
Bedford Cut Stone Co. v. Journeymen
Stonecutters Assn............................ 444
Bee Hive Mining Co. et al. v. In
dustrial Commission ...................... . 444
258
Behan John B. Honor Co. (Ltd.)__
189
Behringer v. Inspiration Copper C o...
290
Belfi v. United States.........................
344
Belkin t>. Skinner & Eddy Coro_____
444
Bell, In re____. . ............................ .
Bell v. Merchants’ Cotton Oil Co___ 444
Bello v. Notkins............... ................
391
444
Bement Oil Corp. t;. Cubbison_____
189
Bemise\ State...................................
Benito Rovira Co. (Inc.) v. Yampolsk y............................ .......... ........
112
Bennett v. Lehigh Valley R. Co.......
Bennett v. Page Bros.........................
309
444
Bennett v. Powers............................
169
Bentley, In re......................... ..........
391
Bergeron's Case,._._j_..........
Bernal v. United States.................... . 246
Bernat, Ex parte, and Dixon, Ex parte. 290
Bernhardt v. American Ry. Express
C o.__.............................................. . 444
Berry v. City of Chicago................. . .444
Bernstein t\ Beth Israel H ospital.... 391
Berry v. M. F. Donovan & Sons (Inc.). 309
Berry Foundry Co. v. International
169
Molders’ Union__rr.......................
Bethlehem Shipbuilding Corp. (Ltd.)
t\ Industrial Accident Commission. 290
258
Betts, In rc........................................
Beutel v. Foreman et al......... ...........
290
Beutler.v. Grand Trunk Junction R.
112
C o . . . ....... ................................ . . .
B. F. Avery & Sons v. Carter............. 417
Bidwell Coal Co., v. Davidson...___
290
Biersach & Neidermeyer Co. v. State. 344
Big Jack Mining Co. v. Parkinson__
169
Billings v. Bausback.................... ......
152
391
Bindbeutel v. Willcutt & Sons Co__
344
Bingham Mines Co. v. Bianco............
Birmingham Ledger Co. v. Buchanan. 169
Birmingham News Co. v. Andrews.. 309
Birmingham Trust & Savings Co. v.
Atlanta B. & A. Ry. Co. (2 cases). . 309
Bisehoff v. American Car & Foundry
C o ........................ .......... ...... .........
Bittner v. West Virginia-Pittsburgh
Coal Co............................................ 169
Black v. Chicago Great Western R.
Co......... ......................................... . 290
Blackstalf Engineering Co., In re___ 152
Blakely, T h e .......... ........................... 224
Blanchard v. Industrial Commission. 391
Blanz v. Erie Railroad Co................... 152
Blessing v. Blanchard..........................
Block v. Hirsch—.................................
Bloom, In r e --- ....... ......................... . 224
Bloom v. Jaffe.................................... . 224
Bloomington, D. & C. Ry. Co. v
Industrial Board............................ . 246
Blunt v. Chicago, B. & Q. R. Co___
152
Blynn v. City of Pontiac. ................. . 189
Board of County Commissioners of
Chaffee County v. Denver & R. G.
R. Co. Employees’ Relief Ass’n___ 344
224
Board of Education v. Gossett.......
Board of Supervisors v. Lucas_______ 417
Boehmer v. Penn. R. Co...................... 290
Bofferding v. Mengelkoch.................... 189
Bogart v. New York Central & H. R.
R. Co................................ ............ . 224
Bogdanowicz v. Susquehanna Coal
Co.................................................... . 152
Bogni v. Perotti__.............................. . 224
Bolcht?. Chicago, M. & St. P. Ry. Co. 224
Boldt v. Pennsylvania R. Co......... .
258
Bollinger v. Hill City....................
391
Bolivian Panama Hat Co. v. Finkel444
stein.................................................
Bon Air Coal & Iron Corp. v. Johnson. 444

104
168
323
84
250
208

120

183
85
206
206
436
199
168
190
83
319

506
185
19528
96
428
226
332
426
204
285
148
219
375
196
72
167
392

277
95
/166
\219
303
321
422
173
213
505
187
193
135

243
297
240
231
70
194
136
127
106

181
108
71
80
148

288

LIST OF OASES

Bui.

Book v. City of Henderson................... 246
Booth 0. Indiana..... . ..............................
Booth Fisheries Co. v. Industrial
Commission.......................................... 444
Borden v. Sandy River & Rangeley
Lakes R. Co..................................... .. 152
Borden’s Farm Products Co. (Inc.) 0.
Sterbinsky........................................... 344
Bordson®. Workmen’s Compensation
391
Bureau............................................
Borelli 0. International Ry. Co......... 417
Borello’s Case........... ............................. 444
Borgeas v. Oregon Short Line R. Co.
e ta l.................................................. — 417
Borin, In re.............................................. 246
Boris Const. Co. 0. Haywood.............. 444
Bomhoff v. Fischer................................. 169
444
Bosel 0. Henderson Holding Co___
189
Bosley v. McLaughlin......................
391
Bosquet v. Howe Scale Co...............
/189
Bossert v. Dhuy...................................... \246
Bowersock 0. Smith............................... 246
Bowne v. S. W. Bowne Co................... 246
Boyd 0. Pratt....................................... 152
Boyer, In re_~. . ............................. .
246
Boyer 0. Crescent Paper Box Factory
(Inc.).................................................... . 258
Boyle 0. United States........................... 290
Boyle v. Van Splinter............................ 417
Brabham®. Baltimore & Ohio Ry. Co. 189
112
Bradford v. Bee Building Co...........
224
Bradford 0. S tate.............................
258
Bradshaw 0. Standard Oil Co.........
Brady v. Oregon Lumber Co............... 444
Brakebill 0. Chicago, R. I. & P. R. Co. 152
Bramble 0. Shields............................... 417
Brancheau v. Monroe Binder Board
Co............ ................... .......................... 417
Branconnier, In re.................... ........... 224
Brassel v. Electric Welding Co. of
417
Amcricd
Bra vis 0. Chicago, M. & St. P. Ry. Go. 169
Braxton 0. City of Selma....................... 258
Brazee 0. People..................................... 224
Breen 0. Iowa Cent. Ry. Co.^............. 258
Brennan ®. Employers’ Liability As
surance Corp....................................... 152
Brenner ®.’Heruben.............................. 290
Brescia Construction Co. ®. Stone
Masons’ Contractors’ Assn............. 309
Bricklayers’, Masons’ and Plasterers’
International Union of America,
Local No. 7, 0. Bowen.................. . 344
Bricklayers’, Plasterers’ and Stone
masons’ Union ®. Bowen et al......... 290
Briggs 0. Union Pacific R. Co.............. 258
Brightman, In re.................................... 189
Bristol Tel. Co. ®. Weaver.................... 344
Bristow 0. Department of Labor and
Industries............................................ . 444
Brodin’s Case........................ ................ 417
Brogan 0. National Surety Co.......... . 258
Bronson 0. Harris Ice Cream Co......... 344
Brooks 0. Peerless Oil Co. (Inc.).......... 290
Brost 0. Whitall Tatum Co................... 246
Brotherhood of Railroad Trainmen 0.
Barnhill............................................... . 444
Brown 0. Atchison T. & S. F. Ry. Co. 290
Brown 0. Kansas Buff Brick & Mfg.
Co......................................................... 444
Brown 0. Templeton Coal Co.............. 391
Brown 0. United States......................... 344
Bruns 0. Milk Wagon Drivers’ Union,
Local 603............................................... 344
Bryant 0. Fissell...................................... 152
Bryant 0. Lindsay etal......................... 290
Bryant 0. Pullman Co............................ 290
Bryant & Stratton Business College
0. Walker............................................. . 152
Bryson & Bryson 0. Gennett Lumber
Co......................................................... . 224
Bubb 0. Missouri, K. & T. R. Co___ 152
Buchanan 0. Blair_________________ 152
Buckeye Cotton Oil Co. 0. State.........

Page

Bui. Page

Buffum 0. F. W. Woolworth Co........ . 417
Builders’ Limited Mut. Liability Ins.
Co. p. Compensation Ins. Board___ 344
162 Bull v. International Alliance__
444
Bunting p. Oregon................................ 224
262 Burden v. Woodside Cotton Mills___ 224
Burdette v. Broadview Dairy Co___ 391
218 Burger et al. p . McCarthy et al_____
290
Burgess p. Oeorgia, F. & A. Ry. Co. 258
492
(2 cases)................................................
70
290
166 Burgess Bros. Co. (Inc.) 0. Stewart.. . \ 309
Burgin v. Missouri, K. & T. R. C o.— 152
52 Burk, In re............................................... 258
240 Burk p. Hobart Mill & Elevator C o.. 189
214 Burke p. Industrial Commission......... 309
111 Burke v. Monumental Division No.
52, B. of L. E ...................................... . 309
ISO
136 Burke v . Towner Bros........................... 391
379 Burleson p. Morrisville Lumbar &
337
Power C o......................... .................. 152
129 Burnett v. Atlantic Coast Line R. Co. 152
83 Burnham®. Dowd..............................
228 Burns, In re.............................................
185 Busser v. Snyder, State Treasurer....... 417
Butch v. Shaver................................... . 309
Butera v. Mardis................................... 224
Butler p. Robins Dry Dock & Repair
181
Co........................................................... 417
259 Buyer v. Guillan.....................................
290
88 By as, In re............................................... 417
145 Byas p. Hotel Bentley (Inc.)................ 417
142 I Byland p. E. I. du Pont de Nemours
67 1 Powder Co............................... ...........
226 Bystrom Bros. p. Jacobson__________ 224
61 Cahill, In re............................................ 224
218 Calcutt p. Gerig......................................
309
Callan p. Exposition Cotton Mills___ 290
55
Calumet Foundry & Machine Co. p .
228
Mroz..................................................... 391
Camemind 0. Freeland Furniture Co. 258
155 Cameron®. Pillsbury..........................
87 Campbell 0. Bon Air Coal & Iron
102 Corp.................................................... 417
130 Campbell 0. City of New York............ 444
76 Campbell 0. Clausen-Flanagan Brew
ery......................................................... 258
Campbell®. Industrial Commission of
450
Ohio......................... ............................ 444
Campbell 0. Motion Picture Machine 344
operators_______________________
138
Campbell 0. People................................ 391
Camunas 0. New York & P. R. S. S.
Co............................. ......................... 290
Camunas 0. Porto Rico Ry., Light &
275
Power Co............................................ 309
70 Canadian Northern R. Co. 0. Senske. 152
274 Canoe Creek Coal Co. 0. Christinson. 344
417
375 Cantor®. Elsmere Garage...................
Capital Theater Co. 0. Common
wealth.................................................. . 258
197
348 Capone’s Case....................................... . 309
150 Carberry 0. Delaware, L. & W. Ry.
393
Co........................................................... 290
459 Carey 0. Davis. ...................................... 309
226 Carey 0. International Brotherhood
391
of Paper Makers...........................
Carlin 0. Lockport Paper Co.............. . 417
111 Carlson 0. Carpenter Contractor's
Ass’n of Chicago (2 cases). ............. . 391
258
160 Carlson 0. Mock.....................................
416 Carmody 0. Pennsylvania Co.............. 417
224
271 Carpenter 0. Detroit Forging Co____
Carr 0. Northern Pac. Beneficial
Ass’n.................................................... . 391
188
198 Carr 0. Sacramento Clay Products Co. 258
189
344 Carroll p . Knickerbocker Ice Co........
224
317
Carroll 0. What Cheer Stables Co__ 224
224 Carroll 0. Industrial Commission____ 309
Carson, Ex parte.................................... 444
200 Casady 0. State Industrial Accident
120 Commission........................................ . 444
118 Cassell 0. United States Fidelity &
121 Guaranty Co........................................ 444

258
171

386
79
160
67
314
238
106
107
229
139
62
222 j

70
265
160
464
244
96
270

212
120

259
127

41
231
188
188
73
227
326
55
203
519

259

112
165
173
171
185
157

327
344
254
169
145
143
232

122
105

231
176
175
208
75
349
9
83
244
282
294
295
185
241

289

LIST OF OASES

Cassill 9 . United States Emergency
Castleberry v. Frost-Johnson Lumber
Catalan© v. George F. Watts Corp—
Cato v. Grendel Cotton Mills.............
Cavanaugh v. Art Hardware & Mfg.
......................................
Co
Cavanaugh v. Morton Salt Co______
Cavender v. Hewitt________________
C. B. Rutan Co. v. Local Union No. 4,
Hatters’ Union of America....... ......
Celia v. Industrial Accident Commis
sion_____ _______________________
Cement Gun Co. v. M cGivem______
Cennell v. Oscar Daniels Co________
Centlivre Beverage Co. v. Ross..........
Central Coal & Coke Co. v. Barnes...
Central Illinois Public Service Co. v.

Bui.

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169
258
290
309

439
298
165
453
123

290
Central Iron & Coai Co., Ex parte (2 / 391
\ 417
Central Locomotive & Car Works p.
290
industrial Commission
Central Lumber Co. v. City of Waseca. 344
Central Metal Products Corp. v.
344
O’Brien , _ ___•.... -... - .....
Central R. Co. of New Jersey v.
Colasurdo............ ........................... 112
Central R. Co. of New Jersey v. Peluso. 391
Central Trust Co. v. George Lueders
<fc C o ............... ............................... 189
Central Vermont Ry. Co. v. United
States________ ______ _______ ____ 152
Central Vermont Ry. Co. v. White— 189
Centralia Coal Co. v. Industrial Com / 309
mission.______ _________________ \ 344
Centralia Labor Temple Assn. v.
444
O’Day_______________ __________
Chabot v. Pittsburgh Plate Glass C o - 258
Chambers v. Davis_________________ 344
Chambers v. State_________________
258
Chan Sing v. City of Astoria............... 224
Chandler v. Industrial Com. of Utah__ 344
Charles Whittexnore, The____ ______ 444
Charleston & W. C. Ry. Co. p.
Thompson______________________
169
Charleston Dry Dock & Machine Co.
v. O’Rourke____________ _____ ___ 309
Charron Northwestern Fuel Co___ 112
Chas. A. Ramsey Co. v. Associated
Bill Posters of the U.S. and Canada. 309
Chastleton Corp. v. Sinclair________
391
Chebot v. State Industrial Accident
Commission ......................_t__,......... 391
Chattanooga & Tennessee River
Power Co. v. United States____
169
Cheek v. Missouri, K. & T. R. Co___ 152
Cheek v. Prudential Insurance Co. of
America.—_______________ ______ 246
Cheesman v. Cheesman....................... 391
Cheevers, In re_______ _____ _______ 169
Chelentis v. Luckenbach S. S. Co.
(In c.)................. .............................. 258
Cherdon Construction Co. v. Simp
kins......... ......................................... 391
Cherokee Sand Co. v. Green..........
444
Cherpeski v. Great Northern Ry. C o.. 189
Chess & Wymond Co. v. Wallis......... 258
Chicago & Alton R. Co. v. Industrial
Board_______________ ______ _____ 224
Chicago & Alton R. Co. v. Industrial J 290
mi^Rinn
1 344
Chicago & Alton R. Co. v. United J 246
States................................................ \ 258
Chicago & Alton R. Co. v. Wagner... 224
Chicago & Erie R. Co. v. Lain........... 169
Chicago & N. W. Ry. Co. v. Bower... 224
Chicago & N. W. Ry. Co. v. R. R. &
Warehouse Com. of Minnesota....... 344
Chicago & N. W. Ry. Co. v. R. R.
Cam. of Wisconsin........................... 417

407
411
178

325
227
153
89
105
191
162
85
233
354
87
66

101

137
358
118
103
164
145
144
144
380
119
63
75
388
213
139
461
165
112

87
296
123
456
359
118
104
119
105
116
227
123

Bui. Page

Chicago, B. & Q. R. Co. v. Harring
ton....... ............................... ............. 224
Chicago, B. & Q. R. Co. v. United
States....... ................. ......................
169
Chicago Bridge & Iron Co. ». Indus
417
trial Com_______________________
Chicago Dock & Canal Co. v. Fraley. 152
Chicago Great Western R. Co. v. In
dustrial Com. of Illinois____ ______ 258
Chicago Home for the Friendless v.
Industrial Commission.................... 309
Chicago, I. & L. Ry. Co. v. Clendenin. 391
Chicago, Indianapolis & Louisville
152
R. Co. v. Hickett................ ..........
Chicago Journal Co. v. Ind. Com....... 344
Chicago Junction Ry. Co. v. Indus
trial Board_________________ ____ 246
Chicago, K. & S. R. Co. v. Kindle224
sparker___________ ______________
Chicago, M . & St. P. Ry. Co. v.
Coogan_________________________
444
Chicago, M. & St. P. Ry. Co. v. McGinley............................... .............. 309
Chicago, Rawhide Mfg. Co. v. In
290
dustrial Com____________________
Chicago, R. I. & P. Ry. Co. v. Bond.. 224
417
Chicago, R. I. & P. Ry. Co. v. Cheek.
Chicago, R. I. & P. Ry. Co. v. Cronin. 290
Chicago, R. I. & P. Ry. Co. v. Eld#r„ 444
Chicago, R. I. & P. Ry. Co. v. Fuller. 290
Chicago, R. I. & P. Ry. Co. v. Ind.
Board............................................... 224
Chicago, R. I. & P. Ry. Co. v. Medley. 224
Chicago, R. I. & P. Ry. Co. v. Pearce. 189
Chicago, R. I. & P. Ry. Co. v. Perry.. 344
Chicago, R. I. & P. Ry. Co. v. Schendel........................ ............................ 444
Chicago, R. I. & P. Ry. Co. v. United f 189
States................................. .............. \ 290
Chicago, R. I. & P. Ry. Co. v. Ward. 290
Chicago, R. I. & P. Ry. Co. v. W ebb. 417
Chicago, R. I. & P. Ry. Co. v. Wright. 224
Chicago Rys. Co. v. Industrial Board. 246
Child Labor Tax Law in Territories.. 344
Children’s Hospital v. Adkins_______ 344
Chiovitte v. Zenith Furnace Co.......... 309
Chiulla de Luca v. Board of Park
Commissioners______________ __
290
Chludzinski t>. Standard Oil Co_____
246
Choctaw Pressed Brick Co. v. Town
send, Warden of State Penitentiary. 417
Cholokovitch v. Porcupine Gold Min
ing Co..... ...................... ................... 152
Chop v. Swift & Co............. ................ 417
Christensen v. Morse Dry Dock &
Repair Co............................. ........... 444
Christian v. International Assn. of
M achinists.................. ................... 417
Christiansen v. McLellan___________ 152
Christy v. Wabash R. C o................... 246
Church, F. C., Shoe Co. v. Turner__ 444
Cincinnati, H. & D. Ry. Co. v. Armuth___*_____ ____ _____________
169
Cincinnati, N. O. & T. P. Ry. Co. v.
Calhoun......................................... .
391
Cincinnati, N. O. & T. P. Ry. Co. v.
Clarke................................................ 224
Cincinnati, N. O. <fc T. P. Ry. Co. v.
Swann’s Admx................................ 169
Cincinnati, N. O. & T. P. Ry. Co. v.
Wilson’s Admr.............................. .
189
Cincinnati Times Star ». Clay’s Admr. 344
Cinofsky v. Industrial Commission... 290
Cisco v. Looper.......... ......................... 224
Citizen’s Co. v. Asheville Typo
graphical Union No. 263............ ...... 391
City and County of San Francisco v.
Industrial Accident Commission___ 290
City Ice & Cold Storage Co. v. Kinnee. 444
City Ice Delivery Co. v. Evans.......... 417
City of Butte v. Industrial Accident
Board............................................. .
224
City of Chicago v. Industrial Com
mission............................................... 309

105
179
250
42
172
332
474
74
408
270
104
49
117
392
90
62
137
41
371
329
69
118
77
41
153
164
120

139
112

215
57
245
235
409
248
33
230
152
137
92
235
94
81
67
105
92
98
80
101

388
173
271
396
15
19
344
275

290

LIST OF CASES

Bui.
City of Duquesne v. Fincke.................
City of Hastings v. Saunders...............
City of Houston v. Richter.................
City of Indianapolis v. Lee.................
City of Louisville v. Lougher..............
City of Marengo v. Rowland___ ____
City of Milwaukee v. Althoff..............
City of Milwaukee v. Fera..................
City of Milwaukee v. Industrial Com
mission.......... ...................................
City of Milwaukee v. Miller...............
City of Milwaukee v. Raulf................
City of Milwaukee v. Ritzow............ .
City of Milwaukee v. Roth.................
City of Montgomery, The...................
City of Red Wing v. Ricbinger______
City of Sacramento v. Industrial Acci
dent Commission............................
City of Savannah v. Jordan.................
City of Springfield v. Richter....... .
City of Taylorville v. Central Illinois
Public Service Co.................... .
City of T u te.iT h om a s_______ ____
Clark v.. Chicago Great Western R.
Co....................................................
Clark v. Clark. r...................................
Clark v. Hayes............... ...................
Clark v. McBride, Commissioner of
Labor....... .......................................
Clark v. Voorhees.................................
Clark Knitting Co. v. Vaughn______
Clark Paper & Mfg. C o .v. Steenacher.
Clarkson v. Laiblan............................ .
Clayton v. Enterprise Electric Co___
Cleary v. Great Northern Ry. Co___
Clem v. Chalmers Motor Co.............
Clemmer & Johnson Co. v. Industrial
Commission. ................................... .
Cleveland v. Rice.................................
Cleveland, C. C. & St. L. Ry. Co. v.
Marshall.
Cleveland, C .C . & St. L. Ry. Co. v.
Schuler.................... ........................
Clifton v. Kroger Grocery & Baking
Co...................................................
Clinchfield Coal Corp. v. Hawkins__
Clinchfield Carbocoal Corp. v. Kiser..
Cline, Ex parte..............................
Clough & Molloy v. Shilling..........
Clover Creamery Co. v. Kanode...
Clyde Steamship Co. v. Walker___
Coakley v. Coakley.........................
Coakley v. Mason Manufacturing Co.
Coal & Coke Ry. Co. v. Deal.............
Coats, J. & P. (R .1.) (Inc.), etal.,In
re................ ......................................
Coffee v. Gray......................................
Coffey v. Buja......................................
Cohen v. United States...................... .
Cohen v. Webb................................... .
Cohn & Roth Electric Co. v. Brick
layers’, Masons’, and Plasterers’
Local Union.................................... .
Coke v. Illinois Cent. R. Co................
Colaizzi v. Pennsylvania R. Co...........
Cole v. Department of Labor and In
dustries............................................ .
Cole v. Sloss-Sheffield Steel & Iron Co.
Coleman v. Illinois Cent. R. Co___
Collins v. Cole............... _..................
Collins v. Joyce............ ....................
Collins v. Pecos & N. T. Ry. C o.—
Colloraff v. Hickson (Inc.)............... .
Colorado v. Johnson Iron Works (Ltd.)
Colorado Fuel & Iron Co. v. Industrial
Commission..................... ...............
Columbia & Puget Sound R. Co. v.
Sauter.............................................. .
Colvin v. Emmons & Whitehead____
Colyer v. Skeffington......................... .
Combination Rubber Mfg. Co. v.
Court of Common Pleas..................
Combs v. Hazard Blue Grass Coal
Corp..................................................

444
152
309
417
169
169
290

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113

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Bui. Page
Comerford, In re.................................
224
Commercial Binding & Printing Co.
v. Tacoma Typographical Union. . . 189
Commonwealth v. Beaver Dam Coal
Co............. ....................................._. 344
Commonwealth v. Boston & Maine
R. R .................................................. 189
Commonwealth v. Boston Transcript
C o ...................................... .............
391
Commonwealth v. John T. Connor Co. 189
Commonwealth v. Lancaster Mills.... 112
Commonwealth v. Libbey..................
169
Commonwealth v. McCarthy............. 224
Commonwealth v. Powell................... 246
Commonwealth v. Wormser.............. . 258
Commonwealth Edison Co. v. Indus
trial Board.................................. .
246
Comstock v. Bivens......................... .
417
Coningsby, T h e.......... ..................... . 152
Conley v. Upson Co............................
309
Connelly v. Hunt Furniture Co_____
417
Connelly v. Pennsylvania R. Co........
152
Conners v. Connolly............................ 152
Connole v. Norfolk & Western Ry. Co. 169
Consolidated Arizona Smelting Co.
v. Egich........................................... . 309
Consolidated Arizona Smelting Co.
v. Ujack...................... ...... .............. . 169
Consolidated Coal & Coke Co. c.
Beale.......... ...................................... 344
Consolidated Coal Co. of St. Louis v.
Industrial Commission .................... 417
Continental Aid Ass’n v. Lee___ . . . .
189
Continental Casualty Co. v. Indus
trial Commission.............................. 444
Continental Public Works Co. v.
Stein................................................ . 224
Conway v. White.................... .........
444
Cook v. West Side Trucking Co......... 344
Cooke v. Holland Furnace C o .......... . 258
Cooks’, Waiters’ & Waitresses’ Local
Union v. Papageorge....................... . 309
Cooper v. Industrial Commission of
California.-...................................... 258
Cooper v. Rollins_________________ _ 344
Cooper, Melvin, v. Penn Bridge Co__ 258
Coppage v. Kansas............................. 169
Coppes Bros. & Zook v. Pontius........
309
Corbett». Boston & Maine Railroad.. 189
Corley v. Rivers................................... 169
Cormier v. H. H. Martin Lumber Co. 246
Cormier’s Case................................... . 417
Cornelius v. City of Seattle et al........
391
Cornellier v. Haverhill Shoe Mfrs.
Ass’n................................................ . 189
Cornish v. United States..................... 391
Coronado Beach Co. tr. Pillsbury....... 224
Coronado Coal Co. v. United Mine
Workers of America........................ . 444
Corria v. Fink Bros............................ . 391
Costello v. Taylor.......................... .
224
Coster v. Thompson Hotel C o______
258
Cott v. Erie R. Co............................... 290
Cotton v. Cooper................................ . 152
Coughlin v. Blaul............................... . 152
County Commissioners v. Denver &
R. G. R. Co. Employees’ Relief
Assn................................................. . 344
Court of Industrial Relations v. Chas. f 309
344
Wolff Packing Co............................
I 391
Courter v. Simpson Construction Co.. 169
Courtois v. American Car & Foundry
Co..................................................... 444
Cousin v. Taylor et al..................... .
417
Cousins v. Illinois Cent. R. Co........... 169
Cox, In re........................................... . 224
Cox v. Baltimore & Ohio S. W. R. Co. 152
Cox v. Lykes Bros...............................
391
Cox Cash Stores (Inc.) v. Allen.......... 417
Craig v. Riter-Conley Mfg. Co___. ...
344
Cramer v. Kansas City Rys. Co....... . 391
Crane, Ex parte................................... 189
Crane v. Aetna Portland Cement Co.. 444
Crane v. Leonard, Crossette & Riley., 309

271
332
m
149
309
140
130
184
132
181
95
221

189
299
330
153
253
289
263
98
109

165
167
297
143
SO
12

318
219
197
184
135
90
147
268
77
274
70
187
7
318
256
308
89
484
276
198
134
272
247
231
128
258
327
264
21
11
88

266
224
335
56
111

519
174
206
283

201

LIST OF OASES

Crane v. Pacific Steamship C o.___...
Crane <fc Co. v. Snowden...........
Cranford v. State.................................
Crater Oil Co. v. Voorhies-.............. .
Crawford v. Virginia Iron, Coal &
Coke Co.................. ........................ .
Crayton v. State....... ..........................
Cream City Foundry Go. v. Industrial
Commission.....................................
Crecelius v. Chicago, M. & St. P. Ry.
Cripp, In re......................... . ..............
Crockett v. Black Wolf Coal & Coke
Co.................. ..................................
Crockett v. International Ry. Co----Crockett v. State Insurance Fund___
Crooks v. Tazewell Coal Co................
Cudahy Packing Co. v. Parramore___
Curran v. Vang Const. Co..
Curtis & Gartside Co. v. Pij
Cushman’s Sons v. Am;
Food Workers, etc....
Cusimano v. A. s. Spiess Sales Co___
Cusumano p. Schlessinger.................. .
Cyclohomo Amusement Co. v. Hayward-Larkin Co....... ——.................
Cymbor v. Binder Coal C o ..............
Cyrus Currier & Sons v. International
Molders’ Union of North America..
Dahlstrom Metallic Door Co. v. Evatt
Construction C o .............................
Dahn v. Davis.........................«............
Dahno. McAdoo, Director General of
Railroads...........................................
Dail-Overland Co. v. Willys-Overland
(Inc.) et al.........„.............................
Daitch, L. & Co. (Inc.) v. Cohen___
Dakota Coal Co. v. Fraser............... .
Dale v. Saunders Bros.........................
D ’Allesandro v. Bentivoglia..............
anielson v. City of Bakersfield.........
anville Local Union No. 115 ». Dan
ville Brick Co.................... .............
Darsch v. Thearle Duffield Fire Works
Display C o .....................................
Daughtridge v. Atlantic Coast Line
R. Co_____________ ____ ______ __
Davey v. Norwood-White Coal C o ...
Davidow v. Wadsworth Mfg. Co____
Davidson v. Pansy Waist Co..............
Davies v. City of Seattle......................
Davis v. Chesapeake & Ohio Ry. C o ...
Davis v. Crane..............
Davis v. Groner.............
Davis v. Holland...........
Davis v. Kennedy____ _____________
Davis v. Keystone Steel & Wire C o ...
Davis v. Manry...................................
Davis v. Merrill...................................
Davis v. S. S. Kresge & Co.................
Davis v. Wolfe................ ....................
Dazy v. Apponaug Co.........................
Deal v. Coal & Coke Ry. Co............. .
Dean v. Koppers Co........................... .
Deardorf e>. Hunter..............................
De Baur v. Lehigh Valley R. Co........
Debrot v. Marion County........... .......
DeCarli v. Associated Oil Co..............
Decker v. Kentucky Coke Co.............
Decker v. Mohawk Mining Co..........
De Constantin v. Public Service Com
mission..............................................
De Felippo’s Case...............................
De Filippis v. Falkenburg...................
De Francesco v. Piney Mining Co___
De Gaetano v. Merritt & Chapman
Derrick & Wrecking Co................. .
Deibeikis v. Link-Belt Co..................
De la Gardelle v. Hampton Co...........
Delaney v. Phila. & Reading Coal &
Iron Co............................................ .
Delano 0. United States..................
De la Pena v. Jackson Stone Co........ .
Delaware, L. & W. R. Co. v. Peck—
Delaware, L. & W. R. Co. v. Yurkonis.
De Leon v. Doyhof Fish Products Co..

42335°—27

-20

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Bui. Page
Dell v. Lancaster...........................
Delso v. Crucible Steel Co. of Amer..
Delthony v. Standard Furniture Co...
De Mann v. Hydraulic Engineering
Co.....................................................
Demonstration P l a n t a t i o n Co.
v. Kearney.......................... .............
Dennis v. Cafferty.............................. .
Dennison v, Payne...............................
Densten Hair Co. v. United Leather
Workers’ International Union of
America.............. ............................
Denton, In re.......................................
Denver & Interurban R. Co. v.
United States....................................
Denver & Rio Grande R . Co. v. Grand
County..............................................
Denver <fc Rio Grande R. Co. v.
United States.................................. .
Denver & R. G. W. Ry. System v.
Industrial Com.................. .............
Denver Jobbers’ Assn. v. People, ex
rel......................................................
Derhammer v. Detroit News Co....... .
De Soto Mining & Development Co.
». Hill.............................. ............... •_
Detloff v. Hammond, Standish & C o..
Devney v. City of B oston.................
De Voe v. New York State Rys..........
Dewey v. Lutcher-Moore Lumber Co.
DeWitt v. State........... .......................
Deyo v. Arizona Grading & Construc
tion Co..............................................
De Zeng Standard Co. v. Pressey.......
Diamond Block Coal Co. v. United
Mine Workers of America et al___
Diaz, In re.......................................... .
Di Carlo v. Elmwood Const. Co....... .
Dick v. Davis.......................................
Dick v. Northern Pacific Ry. Co___
Dickey v. Jackson.............. ............ .
Dickinson v. Atkins........................... .
Dickinson v. Perry............................. .
Dickson Const. & Repair Co. v.
Beasley.............................................
Diereckx v. Davis.............................. .
Dietz v. Solomonwitz......................... .
Dillon v. Trustees of St. Patrick’s
Cathedral........................................
Director General of Railroads v. Ben
nett.................................................. .
Dirken v. Great Northern Paper C o..
District No. 21, United Mine Work
ers of America v. Bourland..............
District of Columbia v. Marshall____
D ’ Oliverifl. Austin, Nichols & Co.......
Division 132 of Amalgamated Asso
ciation of Street and Elec. Ry. Em
ployees of America, In re........... .
Dixon v. Central of Georgia Ry. Co___
Dixon Casing Crew v. State Industrial
Commission....... ..............................
Dixon, Ex parte...................................
Dockery v. State..................................
Dodge v. Chicago G. W. Railroad Co.
Dohman v. Texas Employers’ Insur
ance A ssn....................................... .
Dominion Hotel (Inc.) v. State of
Arizona.............................................
Donahue v. Maryland Casualty C o....
Donahue v. R. A. Sherman’s Sons Co..
Donnelly Minneapolis Mfg. Co........
Donovan, In r e ..................................
Dorb, In re.........................................
Dorchy v. Kansas...............................
Dornt?. Clarke-Woodward Drug Co..
Dose v. Moehle Lithographic Co........
Dotson v. Louisiana Central Lumber
Co— ...............................................
Double v. Iowa-Nebraska Coal Co......
Doucette v* Sallinger......................... .
Dourney, In re._.............................. .
Dowd v. United Mine Workers..........
Dragovich v. Iroquois Iron Co..........

444
309
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209
94

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180-

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112

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234

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268
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72
207

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189
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258
260

239
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258
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64
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253
278
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152

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169

151
59

417
290
391

210

444

158.

290
246
224
417
169
246
391
444
152
246

160
251
339
78
245
273
165
77
52
233

290
417
246
224
224

195
136

102

144

20$

74
228
168
267

292

LIST OF CASES
Bui.

152
Drake v. Industrial Works____
224
Drazen v. Curby...... ............ . . .
309
Driscoll v. Jewell Belting Co___
Driscoll’s Case..................... ......
391
Driver v. Smith........... ..............
258
391
Duff v. Ayers............ ...........—
Dulac v. Proctor & Bowie Co..........
309
Dumbluskeyp. Philadelphia & Beading Coal & Iron Co........................... j 309
Dumbrowski v. Jennings 4i Griffin Co JI 444
Dumphrey p. Farr & Bailey Manu
facturing Co............... ...................... ! 152
Dunahoo v. H uber.............................. | 290
Dunbar v. Orleans Metal Bed Co........
290
Dunn v. Great Northern Ry. Co.......... 290
Dunnigan p. Clinton Falls Nursery
Co__................................................. • 391
Duplex Printing Press Co. v. Deering. ‘/ 258
\ 290
Duprey v. Maryland Casualty C o .... 169
Durney, In r e ..................................... 224
Durr in v. Meehl.......... .......................
417
Dyer v. James Black Masonry Con
tracting Co_._—..................... ......... 224
Dyer v. Rapides Lumber Co............. . 391
Dziengelewsky p. Turner and Blan
chard............................................... . 290
Dzikowska p. Superior Steel Co_......... 258
Eagle Glass & Mfg. Co. v. Rowe........ 246
Early p. Houser & Houser..................
344
Earnshaw p. Newm an.,.....................
189
169
Eastern States Retail Lumber Deal
ers’ Association v United States....... 169
East St. Louis Board of Education v.
Industrial C om mission.................... 309
Eddington p. Northwestern Bell
Telephone Co__________ ________
417
Edelbrock v. Minneapolis, St. P. &
S. S. M. Ry. C o.________________ I 391
1
Edward Stem & Co. p. Liberty
Mutual Ins. Co____ -------------------- ! 309
Edwards p. Doster*Northington Drug
Co........................... - ....................... .1 444
Edwards p. Mount Hood Construc
tion Co.............................................
152
Egan v. Morse Dry Dock & Repair Co. 417
Egan v. Trenton Gas & Electric Co__ .! 309
E. H. Kooster Bakery v. Ihrie______
417
Ehlers v. Langley & Michaels Co___ ■1 417
E. I. du Pont de Nemours Powder
Co. v. Masland............ .................... .1 246
EIEstero_____ ___________________ -i 444
Eldridge p. Endicott, Johnson & Co.. -i 290
Eleganti v. Standard Coal Co_....... . . S 246
Eliot v. Dahlstrom Metallic Door Co. . 444
Elkhorn Coal Co. v. Combs......... ....... 444
Ellingson Lumber Co. v. Industrial
Commission...................................... - 258
Elliott, The M. S................................ - 344
Ellis v. Journeyman Barbers’ Inter
national Union of America.............. . 391
Ellis v. Little Cahaba Coal Co...........- 417
Elmore v. Atlantic Coast Line R. Co . 444
Emerson Brantingham Co. v. Crowe. 344
Emery v. Chicago R. I. & P. Ry Co.. - 391
Emery p. Jewish Hospital Assn.......... . 344
Empire Health & Accident Ins. Co.
p. Purcell—. .....................................
309
Empire Steam Laundry p. Lozier___ - 152
Empire State Surety Co. v. Pacific
National Lumber C o...................... . 152
Empire Theater Co. v. Cloke............ - 246
Employers’ Indemnity Co. of Phil
adelphia v. Kelly Coal C o.............. . . 112
Employers’ Indemnity Corp. p. Felter.. 444
Employers’ Indemnity Corp. p. f 309
Woods............................. . . . . . ........ . { 344
Employers’
Liability Assurance
Corp, In re.......... .................
152
Employers’
Liability Assurance ( 258
Corp. (Ltd.) p. Industrial Accident
290
Commission....... ...................
. 1 344

Page
252
175
255
363
55
89
238

Bui. Page

Employer’s Liability Assurance
Corp. v. Success-tTncle Sam Cone
417
C o . . . . .............................. ......... .
Employers’ Mut. Ins. Co. v, Ind. /.258
Comm..........................................
\ 309
Eng v. Southern Pacific Co....... .......... 169
Engel v. Davenport............................. 444
Engel v. Walsh..................................... 152
222 Engelbretson v. Industrial Accident
189
Commission............ .................... .
208
Engels Copper Mining Co. v. Indus } 290 /
trial Accident Commission..............
\
244
289 Englander v. Abramson-Kaplan Co__ 290
224
79 Engstrom p. City of Seattle...............
99 Enterprise Fence & Foundry Co. p.
Majors............................. ................. 258
348 Epsten v. Hancock-Epsten Co............ 246
109 Equitable Coal & Coke Co. v. In
174 ! dustrial Commission....................... 391
268 ! Erdberg v. United Textile Print
Works............................................... 444
228 j
180 Erickson v. Preuss................................ 258
Erie R. Co. v. Collins.......................... 290
272 Erie R. Co. v. New Y o r k ..,............... 169
477 Erie R. Co. p. Szary................... ........ 290
Erie R. Co. v. United States............... 112
169
96 Erie R. Co. v. Williams...... . ......... .
176 Erie R. Co. p. Winfield....................... 246
152 Esoni v. Tisdale Lumber C o.............. 417
97 Estep v. Price.............- ....................... 391
138 Ethier, In re...... .................................. 169
62 Eugene Dietzen Co. v. Industrial
Board____ _______ ____ ___ _______ 246
53 Eureka Block Coal Co. p. W ells........ 417
Europe v. Addison Amusements (Inc.). 309
286 Evanholf v. Industrial Accident Com
mission____________ _____ _____ _
224
183 Evansville Pure Milk Co. v. Allen___ 444
Evatt Construction Co. v. Dahlstrom
Metallic Door Co............................. 444
61
Everett v. United States..................... 344
152
327 Ewen v. Thompson-Starrett Co_____
Ezell v. Tipton..................................... 391
391
149 Fahler v. City of Minot.... ................
169
Fairbanks v. McDonald_________ _
231 Fairbanks, N. K., Co., v. Industrial
Commission.................... ......... ........ 258
154
189
103 Fairchild v. Pennsylvania R. Co........
186 Fairfield, State Auditor#. Huntington. 344
23 I Falco v. Atlantic City......................... 391
Fales v. Musicians’ Protective Union. 246
78 Fallin v. Locomotive Engineers’ Mut.
Life & Accident Ins. Assn................ 290
121
393 Farb, Ex parte. ........... ....................... 258
87 Farley v. H. T. Milling C o................. 417
13 Farley v. New York, N. H. & H. R.
Co........... ......................................... 169
211
Farmer v. First Trust Co.................... 246
195 Farmer’s Admx. p. Chesapeake &
O. R. Co........................................... 444
272
Fanram v. Harrison____ ___________
189
216 Farr v. Dept, of Labor and Industry.. 391
227 Farrington i\ United States R. R.
Administration__________________ 290
10
87 Farris v. United States Fidelity &
Guaranty Co.................................... 391
52
104 Fassigp. State..................................... 246
Feaster v. Southern Ry. Co_________ 444
313 Federal Laundry Co. v. Zimmerman.. 344
51 Federal Mutual Liability Ins. Co. v. f 309
Industrial Accident Commission__ •I 344
I 391
264
123 Federal Rubber Co. p. Havolic.......... 224
Feldman p. Braunstein....................
189
246
141 Fells, In re..........................................
236 Fennimore v. Pittsburg-Scammon
Coal Co..................................... ...... 246
326
294 Ferguson v. Cady-McFarland Gravel
Co.....................................................
391
196 Fern Gold Mining Co. v. Murphy__ . 417
213 Ferris p. City of Eastport...................
391
427 Fidelity & Casualty Co. v. Industrial
Accident Commission...................... . 258
331

274
169
254
86

56
295
243
377
398
78
202

169
291
526
225
167
128
123
129
128
195
265
160

212

251
195
285
238
258
13
269
175
520
439
314
200

284
132
140
139
200

60
255
81
71
35
191
433
373
458
212

45
72
306
321
424
319
210

274
219
464
270
339
161

UBT

Bui.
Fidelity & Casualty Co. of New York
v. Stewart Dry Goods Co.............
Fidelity & Deposit Co. of Maryland
v. Ind. Acc. C om -............... .......... .
Fierro’s Case, In re........ ..................Fillippon v. Albion Vein Slate Co__ _
Findley v. Coal & Coke By. Co.........
Fineberg v. Public Service Kailway Co.
Fineman v. Albert Mfg. Co........ ........
Fink ». Sheldon Axle & Spring C o .—
Fink & Son v. Butchers’ Union..........
Finley v. United Mine Workers of
America
Finn v, Detroit, Mt. Clemens & Ma
rine City B y......._______...................
Fish p. Chicago, B. I. & P. By. C o ...
Fisher, In re....................... .................
Fishers. John L. Boper Lumber Co__
Fisher p. Tidewater Building Co____
Fisheringv. P i l l s b u r y .................
Fitzwater v. Warren et al................. , .
Fleet-McQinly Co. v. Brothwell.........
Floccher v. Fidelity & Deposit Co___
Flockhart p. Local No. 40, Interna
tional Molders’ Union........... _........
Floersheimer v. Schlesinger.................
Flood v. Empire Investment Co.........
Florida Construction & Bealty Co. p.
Pournell............. - ......... ...................
Flowers v. Virginian By. Co____ ___
Flynn p. Brotherhood of Bailroad
Trainmen..........................................
Flynn v. Carson e ta l,........................
Flynn p. McLoughlin________ _____ _
Folding Furniture Works (Inc.) p.
Industrial Commission....................
Foley v. Detroit United By............... .
Foley v. Hines, Director Gen. of Bailroads...___________________ ____ _
Folsom Engraving Co. v . McNeil___
Folsom-Morris Coal Mining Co. v.
M orrow............. ........................... .
Folsom-Morris Coal Mining Co. v.
Scott............................................... .
Foppen v. Peter J. Fase & Co.......... .
Ford v. United States..........................
Forkas v. International Silver Co.......
Forrest v. United States— .................
Forstmann & Huffman Co. v. United
Front Committee of Textile Work
ers.............................. .................... .
Forsythe p. Pendleton County...........
Fort Branch Coal Co. v. Farley....... .
Fortin p. Beaver Coal C o ................. .
Fortner v. Industrial Commission___
Fortney 0. Carter............................... .
Fortune v. Braswell........... ................ .
Foss v. Portland Terminal Co........... .
Foth v. Macomber & Whyte Bope Co.
Fox p. Industrial Accident Commis
sion. ............... .................................
Fox v. Truslow & Fulle.......................
Francisco v. Oakland Golf Club (Inc.).
Franco p. Seas Shipping Corp............
Frandila v. Department of Labor and
Industries................................ ........
Frank v. Deemer Steel Casting C o....
Frank v. National Alliance of Bill
P osters............................................
Frankamp v. Fordney Hotel............. .
Frankfort Marine, etc., Ins. Co. v.
California Artistic Metal & Wire Co_
Franklin Coal & Coke Co. v. Indus
trial Commission..............................
Franko v. William Shellhorn Co....... .
Frank W. Williams Co. v. Industrial
Com................................................
Frasca v. City Coal Co.......................
Fraze v. McClelland Co......................
Frazer et al. v. Shelton....................... .
Fred E. Sander....................................
Fredenburg v. Empire United Bys.
Co................................................ .
Frederick v. Stresenreuter (Inc.)____

Page

417
224
290
224
290
189

263
224
344
309
224

351
264
141
107
89

212

289
336
263
84
271

3$t
189

304
308
67
297
214

246
309
444

163
178
104

290
391

129

344
444
224

192
168
78

391
224

308
347

309

259
243

391

417
344
344
391
344

48
82
73
360

112

201

444
417
309
344
391
152
152
391
189

91
184
345
411
409
287
50
249
239

391
391

402
481
277

221

444
290

217
365

224
391

338
312

444
258

225
224

344
344
417
444
169

352
287
147
67
232
265

444

293

OF CASES

210
146

Bui. Page
Freedman p. Spicer Mfg. C orp..____
Freeman v. State Industrial Accident
Commission.....................................
Freeman’s Case..................................
Frese v . Chicago B. & Q. B. Co..........
Frey v. Karens-Donnewald Coal Co..
Friebel v . Chicago City By. C o ...... .
Friermood v . Oregon-Washington
Bailroad & Navigation Co..............
Frings v. Pierce-Arrow Motor Car Co.
Fritz v. Elk Tanning Co......................
Frost v. U. S. Fidelity & Guaranty Co.
Ft. Smith & W. B. Co. et al. v. Mills..
Fulton Grand Laundry Co. v. Johnson.
Furst Kerber Cut Stone Co. e>. Mayo.
Gabriel v. Opoznauer...........................
Gage v. Arkansas Central B. Co........
Gaglione’s Case..................... ..............
Gale v. Krug Park Amusement Co__
Gallagher v . United Electric Bys. Co.
Gallagher, In re....................................
Gallino v. Boland.................................
Galloway p. Lumbermen’s Indemnity
Exchange...........................................
Gammage p. International Agricul
tural Corp............. .......................
Garbutt v. State of Mississippi...........
Garcia p. Salmen Brick & Lumber Co.
Gardiner et al. v. N ewbert.................
Garrison v. Woodward Iron Co...........
Garside p. Hollywood..........................
Gartin p. Draper Coal & Coke Co___
Gasaway v. Borderland Coal Corp___
Gausman v. B. T. Pearson Co............
Gauthier v. Atchison T. & S. F. By.
Co....................................................
Gavros’ C ase................................... .
Gay n. Hocking Coal Co......................
Gaynor, In re................................ ......
Gazette Printing and Publishing Co.
v. Suits............... ..............................
Geary’s Case........................................
Geis p. Packard Motor Car Co...........
Gekas v. Oregon-Washiugton B. & N.
C o ..______ _________ ___________
General Accident, Fire & Life Assur
ance Corp. v. Industrial Accident
Commission_____ ____ __________
General American Tank Car Corp. v.
Borchardt-—------ -----------------------General American Tank Car Corp. v.
Weirick_________________________
General Construction Co. p. Connaliy.
General Construction Co. p. Indus
trial Commission_________________
Gentile v. Phila. & B. By. Co........ . !
George p. Bailey --------------------------- !
George v. City of Portland__________
George p. Quincy, O. & K. C. B. C o..
George J. Grant Construction Co. v.
St. Paul Building Trades Council—
George Leary Construction Co. p.
Matson _- ____________________ >
George W. Helme Co. v. Middlesex
Common Pleas________ __________
Georgia & Florida By., In re_______
Georgia Casualty Co. p. Darnell_____
Georgia Casualty Co. p. Industrial
Accident Commission____________
Georgia Casualty Co. p. Jones_______
Georgia Casualty Co. v. Little_______
Gerard B. Lambert Co. p. Fleming—
Gerry p. Worcester Consol. St. By.
C o ___________________ __________
Gevas p. Greek Bestaurant Workers’
Club et al------ ---------------- -----------GiamelU p. Bahtz__________________
Gignac p. Studebaker Corp..................
Gilbert p. Chicago, Milwaukee &
Puget Sound By. Co----------- -------Gill Engraving Co. p. D oerr..............
Gillen p. Ocean Accident & Guaran
tee Corp_________________________
Gillespie p. McClintic-Marshall Go__
Gilliland v. Edgar Zinc Co__________

344

362

444
290
391
224

179
35S
92
321
255

246

417
258
246
344
290
344
391
189
391
344
444
444
169
391

61
180
90
394
156
234
464
299
m

353
220

152
227
22

344

397

309
25S
344
250
391
189
152
309
444

399
274
369
166
65
141
209

90
101

344
122
3(k5
344
258 !j
63
1C9 | 211
391
56
417 |
! 221
309
257
183 !

309

298

290

467

344
417

277
139
I

391 !
344 ii
309
417
169

504
113
127
9
75

246

131

309

126

152
169
344

177
50
291

259
391
444
417

168
514
181
74

391

444
391
189

81
389
291

152
169

119
301

152
417
344

200

167
361

294

Ojnley,
r——
—
Girman v\ Hampel
T___
OlftTUgPrSV: Rtfttfl r..,.
__ ____ Glatzl y. Stumpp----------------------------

LIST OF OASES
Bui.

Page

391
391
417
290
246
189
391
391

527
128
150
235
262
287
474

Glendale Coal Co. v. Douglas..------ Glenn v. Reynolds Spring Co------Globe Cotton Oil Mills v. Industrial
Awi'dont Commission
391
Globe Indemnity Co. et al. v. Indus
trial Commission of Colorado______ 290
Gobble v. Clinch Valley Lumber Co._ 417
Goelitz Co., H. G., v. Industrial
Board_________________ - _____ __ 246
189
Goetz v. D uffy._______;____ -_______
Gold Hunter Mining & Smelting Co.
__
fj. Bowden . . .
258
Golden v. Salkeld Coal Co__________
444
Golden Rod Mills v. Green.____ ___ 309
Golden’s Case___________ ______ ___ 309
Goldsmith p. Payne___ ________—
344
/ 112
OompArs, Tn rfi_
\ 152
Gompers v. United States__________ _ 169
Gonier v. Chase Companies.. . _______ 344
Gonsailves v. Morse Dry Dock & Re
pair Co. _______________________ 391
Goode v. Nelson___________________
246
Goodell v. Pope-Shenon Mining Co__ 391
Gooding v. Ott___ _______ __________ 224
Goodyear v. D avis_________________ 444
Goodyear Tire & Rubber Co. v.
M iller.._________ _______________ 444
Gordon v. Industrial Accident Com
mission_________________________
444
Gordon V, Travelars’ Tns. C o .___ .,
444
Gorrell v. Battelle__________ ______ _ 169
Gorski, In re______________________
246
Gottesman v. Barer _______189
Gottlieb v. M atckin..___ __;____ •
___ 344
Gould’s Case__._____________ ______ 152
Gouthro, Ex parte______ ___________ 391
Gove v. Royal Indemnity Co_______
224
Governor, The_____________________ 224
Gowey v. Seattle Lighting Co_______ 290
Govette v. C. V. Watson Co________
391
Graber v. Duluth, S. S. & A. R. Co___ 189
Graham v. Wichita Terminal Eleva
tor C o.__________________________ 391
Grand International Brotherhood of
Locomotive Engineers p. Green..
391
Grand Lodge of International Ass’n
of Machinists v. Reba____________ 344
Grand Rapids Lumber Co. v. B lair- 224
Grand Rapids Trust Co. v. Petersen
Beverage C o ____________________ 344
Grand Trunk Ry. Co. v. Knapp_____ 224
Grand Trunk Western Ry. Co. v.
Lindsay.
___ _______
169
Grannison’s Adm ’r v. Rates &
Rogers Const. Co _______________ 290
Granow v. Adler___________________
344
Grant v. Nihill_____ _______________ 391
Grant v. State Industrial Accident
Commission_____________________
309
Grant Bros. Construction Co. v.
United States____________________ 169
Grant Smith-Porter Ship Co. v.
Rohde_______________ - __________ 344
Grassi Bros. (Inc.) v. O ’Rourke_____
189
Grassi Contracting Co. v. Bennett___ 224
Gray v. Board of Commissioners_____ 246
Great Lakes Dredge & Dock Co. v.
Kierejewski _____ ________________ 391
Great Lakes Dredge & Dock Co. v.
Totzke__________________________ 290
Great Lakes Laundry Co. v. Aetna
Life Ins. Co_____________________
189
Great Lakes S. S. Co. v. Geiger______ 290
Great Northern Ry. Co. v. Brosseau.. 391
Great Northern Ry. Co. v. Donaldson. 258
Great Northern Ry. Co., v. Local
Great Falls Lodge of International
Ass’n of Machinists______________ 344

450
351
272
207
71
62
17
61
327
134
155
218
133
372
48
69
315
280
51
12

155
195
230
223
126
218
209
5
230
212

390
153
100

359
192
187
322
398
82
99
349
63
84
340
48
280
304
194
280
47
413
122

96
251
72
205

Bui. Page
224
Great Northern Ry. Co. p. Otos___ _
110
Great Northern Ry. Co. v. United
127
States;___ _____________________. . . 169
Great Northern Ry. Co. p . Wiles.___ 224
88
Great Western Power Co. p. Pillsbury. 189 /I 266
292
Green v. Appleton Woolen Mills.___
224
73
Green v. Jones............ ........................ 391
40
Greene v. Caldwell-.................
224
242
Greene v. L. Fish Furniture C o ...___ 224
76
Greenfield v. Central Labor Council / 290
262
of Portland....... __................... ......... \ 344
220
Greenwood v . Building Trades Coun
cil of Sacramento et al..__......... .
108
417
Gregg v. Starks.............................. .
82
290
255
Gregutis v . Waclark Wire Works___ _ 169
Griffin v . Baltimore & Ohio R. C o .... 417
67
279
Grinnell v . Wilkinson.....................
224
281
Griswold ». City of W ichita............... 246
388
Gritta’s Case___•........................
344
Gross v . Hudson Reade Corporation.. 444
158
Groveland Coal Mining Co. v . Indus
trial Com........................._.............. . 391
382
Grow v. Oregon Short Line Railroad
92
Co................................................ . . .
169
Gruber v. Kramer Amusement Corp.. 391
366
Gruszewsky v . Director General of
1J5
Railroads........................................... 309
94
Grybowski v. Erie R. Co............ .
189
Gude & Co., Ex parte.......................... 417
196
Guderian v . Sterling Sugar & tty. Co.
303
(Ltd.)............................................. .
344
Guerrieri v . Industrial Ins. Commis
sion_____ ___________ - __________ ; 189
242
Gulf, Colorado & Santa Fe R. Co. v .
McGinnis.......................................... 152
91
108
Gulf, M. & N. R. Co. p. Sanders....... 444
Gulf States Steel Co. p. Cross............ . 444
247
Gulf States Steel Co. p. Witherspoon. 444
160
Gulfport & M. C. Traction Co. p.
115
Faulk.................................. .............. 290
Gulla.0. Barton..................... ...... _•___ 169
297
177
Guse ik Industrial Commission et al.. 444
Guthrie v . Detroit Steamship C o ...... 258
151
Guthrie v . Iowa Gas & Electric Co__ 417
148
54
Gwitt. v . Foss........................................ 417
Haavik p. Alaska Packers’ Ass’n . ..... 391
280
16i
Haddad p. State...........................
290
Haddock v. Edgewater Steel Co......... 290
426
Hagan p. Mason-Hanger Construc
tion Co___________ __ ____________ 391
406
Hagenbeck & Great Wallace Show
343
Co. v . Randall............................ ...... 290
Hahnemann Hospital p. Industrial
188
Board.............................................
258
Hainer ik ChurchilL.......................... .
143
290
231
Haiselden v . Industrial Board..___. . . 224
44
Hale v. Hatch & North Coal Co......... 152
Hale Hardware Co. v. Ragland.... . . . 391
23
Hall ik City of Shreveport.................. 417
192
125
Hailey v. Ohio Valley Elec. Ry. C o... 344
Halpern v. Langrock Bros. C o ........... 189
300
Hamberg p. Flower City Specialty Co. 344
371
Hamberger v . Wolfe-Smith Co..........
494
391
Hammer p. Dagenhart et al................. 258
96
Hammill v . Pennsylvania R. Co......... 189
260
Hanaford v . Stevens & Co. (Inc.)
66
224
Hancock v. Industrial Commission__ 309
254
Handy ». Mercantile Lumber C o ..... 290
154
Hanna Warren.................................. 344
313
Hanna Nielsen, The............................ 309
77
Hansen p. Brann <fc Stewart Co........... 258
170
Hansen v . Dodwell Dock v . Ware
house Co................. —...................... 258
50
Hansen v. Northwestern Fuel Co
419
290
Hanson p. Chicago, B. & Q. R. Co___ 417
17
Hanson v . Innis et al...... .......... ......... 112
161
311
Harbroe, In re......................... ....... . . . 224
Hardie-Tynes Mfg. Co. ». Cruse........ 189
158
Harlan p. Industrial Accident Com
409
mission_____________________ ____ 391
Harmon v . United Mine Workers of
America_____________________ . . . .
417
114
2$0
Harraden, In re.................................... 246
Harrington p. Chicago, B. & Q. R. Co. 189
108

295

LIST OF OASES
Bui.

Harris 0. Calcasieu Long Leaf Lumber
Co....................................
Harris 0. Harris................ ...................... 444
Harris 0. KeystoneCoial & Coke C o.. 246
Harris v. Mayor, etc., of Baltimore... 444
Harrisburg Coal Mining Co. v. Indus
417
trial Com m ission...!............
Hartford Accident & Indemnity Co.
444
0. Board of Education______—
Hartford Accident & Indemnity Co.
391
. 0. Chartrand.^.............................
Hartford Accident & Indemnity Co.
344
v. Englander............................... .......
Hartford Accident & Indemnity Co. 246
444
0. Industrial Commission.................
Harvey 0. Chapm an.......................... 246
Haskell & Barker Car Co. 0. Kay___ 258
Hass, J. I. (Inc.), 0. Local Union No. 17
of Brotherhood of Painters, etc____ 391
Hassell Iron Works Co. v. Industrial
Commission............................. ..........
Hasselman 0. Travelers’ Ins. Co.___ 290
Hatcher 0. Idaho Gold & Ruby Min
ing Co........................................... j___ 290
Hauger 0. H. W. Walker Co................
Haverhill Strand Theater (Inc.) 0.
Gillen................................................... 253
Havey v Erie R. Co...................., ........ 224
Hawkins v. Bleakly............................ 224
Hawkins 0. Smith etal............... ......... 112
Hayes v. Motor Wheel Corp........... . 444
Haywood 0. Ryan.................................. 152
Haywood 0. United States......... ......... 309
Heaps v . Industrial Commission......... 344
Hector 0. Cadillac Plumbing & Heat
ing Co...................................................
Heffernan v . Whittlsey.......................... 169
Heffron, Ex parte................................... 169
Heidemann 0. American Dist. Tele
graph Co............1................................
Heim 0. McCall...................................... 189
Heine 0. Libby, McNeill & Libby.... 344
Heitkamper 0. Hoffman.. . .................
Heitkemper v. Central Labor Coun
cil of Portland and vicinity............. 290
Heitz, In re............................................ 224
fielder 0. Luse Furniture Co.............. 344
Helliwellfl. Sweitzer............................. 246
Helme v. Great Western Milling Co.. 290
HelmeCo.0. Middlesex Common Pleas. 152
Helton 0. Tall Timber Lumber C o.... 309
Henderson, In re.................................... 246
Henderson Telephone & Telegraph
Co. (Inc.) 0. Owensboro Home T. &
T. Co................... ................................ 309
Henderson-Waits Lumber Co.0. Croft. 417
Hendricks 0. Seeman Bros__________ 189
Henry Steers (Inc.) 0. Dunnewald___
Hercules Powder Co. 0. Morris
County Court of Common Pleas___ 290
Herket & Meisel Trunk Co. 0. United 309
Leather Workers’ Int. Union.
391
Herrick, In re.............................. ......... 169
Herrmann 0. Franklin Ice Cream Co_. 444
Hetzel 0. Wesson Piston Ring Co___ 224
Hewitt 0. Casualty Co. of America... 224
Hewitt 0. Magic City Furniture &
Mfg. Co............................................... . 444
Hibberd 0. Hughey............................. 391
Hicks 0. Swift & Co............................
246
Hiers 0. John A. Hall & Co.................. 246
Higgins v. Midland Casualty Co___ 246
Higgins 0. Sweitzer................................ 290
High 0. Liberty Coal & Coke Co......... 417
Hildman v. American Manufacturing
Co..........................................................
Hill 0. Ancram Paper Mills................ . 344
Hill 0. Eagle Glass & Mfg. Co.............
H ill 0. Minneapolis, St. P. & S. S. M.
Ry. Co..............................................
Hillestad 0. Industrial Commission.
Hilley 0. Lunsford.............................
391
444
Hillman 0. Eighmy............. .............
Hills 0. Blair......................................
Hines v. Burns’ Adm’x_____ _

Page

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296
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Bui. Page

Hines &. Henry I. Stetler (Inc.)___ 1 . 309
Hines 0. Industrial Accident Commis
290
s io n ......I ...................... ...............
309
Hines 0. Logan......................-..........
Hines 0. Ross........................................... 309
344
Hines 0. Thurman....................
Hinley 0. Brooklyn Heights R. Co.— 444
Hinton Laundry Co. 0. DeLozier_._._ 309
189
Hirschkorn 0. Fiege Desk Co..........
391
Hiser 0. Davis..............................
f 152
Hitchman Coal & Coke Co. 0. Mitchell [ 246
169
Hoban 0. D em psey....___
444
Hockaday Auto Supply Co. 0. Huff
Hodges 0. Savannah Kaolin Co............ 391
Hodgman 0. Sandy River <fc R. L. R^ ' 290
189
Hoenig 0. Industrial Commission.
Hoey 0. New Orleans Great Northern
R. C o._______ __________________ 417
Hoey 0. Superior Laundry Co.......... . 152
Hogan 0. State Ind. Com.................... 344
Hogarty 0. Philadelphia & Reading f 169
R. Co................................................... (. 246
Holcombe 0. Creamer............................ 25S
Holland 0. Stuckey........... ................... . 444
Holland-St. Louis Sugar Co. 0. Shraluka............. ....................................... 246
Holliday 0. Elkhorn-Piney Coal Min
ing Co.................................................. . 444
Holman Creamery Association v. In
dustrial Commission of Wisconsin
e ta l_____ _____________________ 258
Holmberg 0. Clcveland-Cliffs Iron Co. 344
Holmes 0. Brown................................... 246
Holmes 0. Henry Jenning & Sons........ 417
Holt 0. State............................................ 309
Hooymanp. Reeve........................... . .. 290
Hopkins 0. Matchless Metal Polish
Co......................................................... 391
Hopper 0. Wilson & Co..................... 344
Horst, E. Clemens, Co. 0. Industrial
Accident Comm............................. 290
Horton 0. Oregon-Washington R. &
N. Co.................................................... 152
Hotchkiss 0. District of Columbia___ 189
Hotel & Railroad News Co. 0. Leventhal......................................................... 391
Hotel Co. of Tacoma v. Younger.......... 309
Hours of Labor of Women, D. C.,
Federal Employment......................... 344
Houston 0. Richter................................ 152
Houston Packing Co. 0. Mason........... 444
169
Howard In re............................. ............ rt 290
Howard 0. Nashville, C. & St. L. Ry.
Co............ .............................................. 189
Howat 0. Kansas..................................... 309
Howell, The................ — ....................... 290
Howick Hall, T he................................. 444
Hudgins, Ex parte....... .......................... 290
Hudson 0. Cincinnati, N. O. & T. P.
R. Co----------------------------------------- 152
Hudson v. City of Flint........................ 391
Hughes 0, Indiana Union Traction Co. 169
Hughes 0. Kansas City Motion Pic
ture Machine Operators..................... 290
Hughes 0. State....................................... 152
Hughes 0. Traeger................................... 169
Hulley 0. Moosbrugger......................... 189
Hulo 0. City of New Iberia.............
391
Hulswit 0. Escanaba Mfg. Co__._____ 344
Hume 0. Seattle Dock Co...................... 169
Humphfres 0. Northern Pacific Ry.
Co................................— - ............ 224
Humphrey, In re................................... 246
Humphrey 0. Industrial Commission. 258
Humphreys 0. Raleigh Coal & Coke
Co..................................................... — 169
Hunt 0. Zako............................................ 391
Hunter 0. Colfax Consolidated Coal r 189
Co.................................... .................... I 224
Huntworth 0. Tanner............................ 189
Hurle, In re................................. -.......... 169
Hurley 0. Western Allegheny R.
152
Co..................................................

279
456
111

89
86

148
311
214
99
137
145
303
97
77
138
276
21

185
332
84
97
144
186
240
110

171
323
175
241
66

139
452
305
463
82
140
276
207
57
113
195
213
311
82
170
40
72
76
277
403
77
214
136
56
279
362
344
169
121

229
202

70
485
225
251
123
260
73

296

Hussey 9. Boston & M. R. R . - . . .......
Hustus’ case........................................Hutchinson Lumber Co. v. Industrial
Accident Commissi on . . . . . . . —
1
Hutton v. Link; Oil Co—
Huyett i>. Pennsylvania R. Co...........
Hyett v. Northwestern Hospital.........
Hyman Bros. Box & Label Co. v. In
dustrial Accident Commission— ..
Ice Delivery Co. of Spokane v. Davis.
Illinois C. R. Co. v. Baker..............
Illinois C. R. Co. v. Behrens..........
Illinois C. R. Co. v. Ford...............
Illinois C. R. Co. v. Harris,...........
Illinois C. R. Co. tv Kelly...... ........
Illinois C. R. Co. v. Nelson-----. . . .
Illinois C. R. Co. v. Perry........
Illinois C. R. Co. v. Porter.............
Illinois C. R. Co. v. Rogers............
Illinois C. R. Co. v. United States...,
Illinois C. R. Co. v. Williams,...........
Illinois Publishing & Printing Co. v.
Industrial Commission....................
Illinois Steel Co. v. Industrial Com
mission........................................... .
Indemnity Ins. Co. of North America
v. Scott............................................. .
Indian Creek Coal & Mining Co. v.
Calvert..............................................
Indian Hill Golf Club v. Industrial
Commission...----------- --------------Indiana Manufacturers’ Reciprocal
Ass’n v. Dolby....................... ..........
Indianapolis Light & Heat Co. v.
Fitzwater...... ........................... .......
Indianapolis Traction & Terminal
Co. v. Isgrig................. ................... .
Industrial Accident Commission v.
James Rolph Co................ ..............
Industrial Accident Commission v.
Payne-------------------------------------Industrial Ass’n of San Francisco v.
United States— ------ --------- --------- Industrial Commission v. Aetna Life
Ins. C o,.......... ......... .......................
Industrial Commission v. Brown-----Industrial Commission t>. Crisman— .
Industrial Commission v. Cross..........
Industrial Commission v. Daly Min
ing Co............... ........... ................... .
Industrial Commission v. D ell.,....... .
Industrial Commission v. Ernest
Irvine (Inc.)....... .............................
Industrial Commission v. Hammond,
Industrial Commission v. Hunter___
Industrial Commission v. London
Guarantee & Accident Co. (L td.)...
Industrial Commission v. Newm an...
Industrial Commission v. Nordenholt Corp_______ ______ __________
Industrial Commission v. Pora...........
Industrial Commission v. Roth..........
Industrial Commission v. Russell___ _
Industrial Commission v. Weigandt-tngle v. Landis Tool Co..................... .
Inland, The........................................
Inland Steel Co. v. Lambert..............
Inspiration Consolidated Copper Co.
v. Mendez................. ...................... .
International Agricultural Corp. v.
Cobble.............................................
International Ass’n of Machinists v.
Reba....... ......................... ...............
International Harvester Co. v. Indus
trial Commission................. ............
International Harvester Co. of Amer
ica v. State of Missouri.....................
International Harvester Co. of N. J.
v. Industrial Board...........................
International Indemnity Co. v. In
dustrial Accident Commission....... .
International Stevedoring Co. v.
Haverty........................................... .
Interstate Construction Co. v. Lakeview Canal Co.................................

LIST OF CASES
Bui.

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32
385

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189
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246
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391
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290
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417
309
309
309
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246
344
344

258
417
444

Irvine v. Union Tanning C o ..._____
Irving v. Neal— , . ,., ......................
Itzkowitz v. Finer <fe Bachrach___. . . .
175 Jackson v. A tw o o d ............ ...............
244 Jackson v. Berger.......... ............... ...
225 Jackson v. Berlin Const. Co...............
Jackson v. Chicago, M. & St. P. Ry.
Co......... .................... ............ ........
468 Jackson v. Industrial Board................
14 Jacquemin et al. v, Seymour Manu
153 ;| facturing Co....... .............................
91 H Jahn v. City of Seattle................... .
71 i! James A. Banister Co. v. Kriger.........
67 n Janes, In r e ..,................................... .
302 •! Jansson, In re................................... .
79 ij Jaras v. Wright....................................
91 ;| Jasionowski v. Industrial Commission.
81 Jayson v. Pennsylvania R. C o .........
95 Jefferson & Indiana Coal Co. v. Marks.
115 Jefferson Printing Co. v. Industrial
187
Commission.
............................
Jefferson Slag Co., Ex parte................
284 Jeffersonville Manufacturing Co. v.
Holden.................................... . . . __
410 Jeffrey Manufacturing Co. v. Blagg...
Jeffreyes v. Charles H. Sager C o ...
226 ’ Jellico Coal Co. v. Adkins...................
.Tendrus v. Detroit Steel Products C o..
162 ' Jenkins v. United States Emergency
Fleet C orp.......................................
427 Jennings v. Lee......... - ................ ........
Jennings v. Mason City Sewer Pipe
Co.................................................... .
Jensen v. F. W. Woolworth Co......... .
465 Jensen v. Southern Pacific Co.............
Jersey Ice Cream Co. v. Industrial
Commission......................................
Jewell v. Sturges..................................
349 ; Jirmasek v. Great Northern Ry. C o...
i Johansen v. Union Stockyards Co___
338 | Johanson v. Lundin Bros................. .
Johns v. Patterson....................... .......
182 ! Johnson v. Aetna Life Insurance C o ...
Johnson v. Carolina, Clinchfield <fc
185
Ohio Ry. C o ........................ ..........
305 Johnson v. Endura Manufacturing
262
Co.................................................... .
349 Johnson v. Fuller & Johnson Mfg. Co_.
Johnson v. Hardy-Burlington Mining
209
Co.................................. .................
296 Johnson v. Industrial Accident Com
mission.............................................
469 |l Johnson v. Ismert-Hincke Milling Co.
210 i<Johnson v. London Guarantee & Ac
479 ;; cident Co......................................... .
Johnson v. Nelson................................
320 Johnson v. People........................ .......
223 Johnson v. Republic Iron & Steel Co_.
ji
285 |! Johnson v. State...................... ........
405 Johnson v. Swonder.............................
160 I; Johnson v. Waverly Brick Co.............
Johnson’s Case.....................................
Johnson, T., Co. v. Ind. Com.............
Johnston v. Kennecott Copper Corp..
Jones v. Charleston & W. C. Ry. Co..
252 j; Jones v. Chesapeake & Ohio R. C o ...
Jones v. City of Portland....................
85 11 Jones v. Philadelphia & Reading Coal
& Iron Corp......................................
100 Jcnes v. Princeton Coal Co.................
Jones v. Smith......................................
187 * Jones v. Texas Employers’ Insurance
Assn..................... ...... .................... .
210 Jones et al. v. Industrial Commission..
Jose v. Savage.......................................
49 Juan’s Case..................... ......... ...........
Juergen Bros. Co. v. Industrial Com
200 mission............................................ .
Junior Oil Co. v. Byrd....................... .
202 Jurman r. Hebrew National Sausage
Factory............................................ .
19 Justin Seubert (Inc.) v. Reiff..............
Kaiser, John H., Lumber Co. v. Indus
12 trial Commission.........................

Bui. Page

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514

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309
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189

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436

391
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258
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221

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417

196

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343

297

IilST OF CASES
Bui.
Kaleic v. Newport Mining Co___ ..... 246
Kalmich v. W h i t e . . . . . — . 309
Kamboris v. Oregon-Washington R.
& N. Co.......... .................................. 189
Kancevich v. Cudahy Packing Co___ 258
Kansas City Box Co. v. Connell._.
417
Kansas City, M. & O, By. Co. v. Roe. 290
Kansas City Southern Ry. Co. p.State. 189
Kansas, O. & G. Ry. Co. of Texas v.
P ike..__________ ____ : ................... 391
Kantleberg v. G. M. Standifer Const.
Co....................... ....................... ....
417
Karns v. Atchison, Topeka & S. F. R.
Co........ .......................................... . 112
Karny v. Northwestern Malleable
Iron Co.... ................... ................... .
Karos v. Ocenas____ _______ _______
444
Karpeles v. Heine_______ * „ ...______ '258
290
Katz v. Kadans & Co.......................... 344
Katzenmaier o. D oeren ..................... 344
Kaumagraph Co. v. Stampagraph Co.
309
(Inc.) . . . ....... ................ ........ .......... 391
Kayser v. Fitzgerald............................ 290
Keaney, In re......... ...................... .
169
Keefe v. Straus.............. ...................... 189
Keefover v. Vasey................................ 391
Keegan v. Board of Commissioners... 391
Keith v. State Barber Board,....... ...... 391
Kell v. Rock Hill Fertilizer Co........ .
391
Keller v. Texas Employers’ Ins. Assn. 444
Kelley, In re........................................ 246
Kelley v. Haylock................................ 224
Kelley’s Case, In re.............. ............... 224
Kelley’s Dependents v. Hoosae Lum
ber Co.............................................. 309
Kelly v. Burnham, Williams & Co___
Kemp v. Division No. 241, Amalga
mated Association....... _....... ........... 112
Kenna v. Calumet H. & S. E. R. Co.. 258
Kennedy p. Cunard S. S. Co. (L td.).. 309
Kennedy v. Hub Mfg. Co................... 189
Kennedy v. Spokane, P. & S. R. Co__ 1.52
Kennerson v. Thames Towboat C o.— 189
Kenney v. Seaboard A. L. Ry. Co___ 169
Kenny v. Union Ry. Co....... .............. 189
Kent v. Jamestown Street Railway Co. 112
Kent v. Kent............ ........................... 444
Kentucky State Journal Co. v. Work
men’s Compensation Board............
Keokee Consolidated Coke Co. v.
Taylor............................................... 169
Kerwin v. Amer. Ry. Express Co....... 344
Kettering, C. W., Mercantile Co. v.
Fox........................ .......... ................ 417
Keuffel & Esser v. International Ass’n
of Machinists.......... .......................... 344
Keyes et al. v. New York, O. & W.
Ry. C o ............................................. 290
Keyworth v. Atlantic Mills................. 290
Kibler v. Davis.............................. .
391
Kiernan v. Priestedt Underpinning
Co.....................................................
224
Kill v. Industrial Commission............. 189
Killisnoo Packing Co. v. Scott............ 444
Kimberlin v. Southwestern Bell Tele
phone Co........ ............................ . . .
258
Kimbol v. Industrial Accident Com
mission..... ............ ................... . . . . .
224
King v. Atchison, T. & S. F. Ry. Co.. 309
King v. Berlin Mills Co..................... . 246
King v. Smart....... ................... .......... 344
King v. Viscoloid Co.......................... . 169
King et al. v. Weiss & Lesh Mfg. Co.
290
King’s Case.............. ...........................
Kingsley v. Donovan...........................
Kingston-Pocahontas Coal Co. v.
Maynard........................................... 417
Kinlock Telephone Co. v. Local
290
Union No. 2 .................... .............. .
309
Kinney v. Scarbrough Co.................... 112
Kinzell *>. Chicago, M. & St. P. Ry.
Co................ ........... _____________ _
Kirby Lumber Co. v. Scurlock........
391
Kirk, In re..........................................
344

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272
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Bui. Page
Kirk v. Shewell, Fryer & C o ..............
Kirk v. W3bb............. ..........................
Kirven v. W ild s............... ..............
Kitchen & Co. v. Local Union No. 141.
Klaffki v. Kaufman....... .................
Klawinski 0. Lake Shore & M . S. Co.
Klein v. Len H. Darling C o ..............
Klemmens v. North Dakota Work
men’s Compensation Bureau..........
Klicke v. Allegheny Steel Co...............
Kligo v. Rome Soil Pipe Co.............
Klinck v. Chicago Street Ry. Co____
Kline v. Pittsburgh Stamp Co............
Klippert v. Industrial Ins. Dept.........
Klock v. William A. Rogers (Ltd.)___
Klodek v. May Creek Logging Co___
Kloman v. Industrial Commission___
Klug & Smith Co.>. Kreiner___ ____
Klum v. Lntes-Sinclair C o.................
Knauer v. United States......................
Knickerbocker Ice Co. v, Stewart____
Knight v. Missouri Pac. R. C o . . .___
Knipe Bros. (Inc.) v. White................
Knocks v. Metal Package Corp______!
Knoll p. Shaler........................... .........
Knox & Shouse v. Knox____ ______
Knoxville News Co. v. Spitzer_______
Knudson v. Jackson............................ j
Koch v. Lehigh Valley R. Co....... ......
Koch v. Sift*................................... ...... j
Koester Bakery v. Ihrie........................j
Kohler v. Frohmann._—...................... i
Kolasynski ik Klie................................ j
Koons v. Philadelphia & R. Ry. Co.._i
Kotta, Ex parte......... ............ ......... _J
Koubek v. Gerens................................ i
Koviacs v. Edison Portland Cement
Co.....................................................
Itowalek v. New York Consolidated
R. Co............ ................... ...............
Kowalski v. McAdoo___________ ___
Kraft v. West Hotel Co_____________
Kramer v. Industrial Accident Com
mission..............................................
Kramer v. Sarpent & C o....... ............ .
Krekelberg v. M. A. Floyd Co...........
Kreps v. Brady....... ........................... .
Krichman v. United States......... ........I
Kricinovich v. American Car & j
Foimdry Co.....................................
Kritzer v. Arma Coal C o . . .......... ......
Krobitzsch v. Industrial Accident i
Commission__________ ____ ______ |
Kroger Grocery & Bakery Co. v. Re- |
tail Clerks’ I. P. A. Local N o.42___*
Krug v. City of New York__________ \
Kruse v. Pillsbury................................
Kuetbach v. Industrial Commission..
Kunze v. Detroit Shade Tree Co........
Kunze v. Weber.... ......... ............ ........
Kusnir Pressed Steel Car Co______
Kusturin v. Chicago & A. R. Co.........
Labor Board v. Penn. Co....................
La Casse v. New Orleans, T. & M.
R. R. C o ................................... .
La Chapelle v. Union Pac. Coal C o..
Lacione, In re......... .............................
Ladd v. Foster Bros......................... .
Lading v. City of Duluth....... ............
La Duca v. United States Light &
Heat Corp............................... .........
La France Electrical Construction &
Supply Co. v. International Brother
hood o fE .W .....................................
Lamar v. United States........................
Lambert v. Powers...............................
Lambert v. State........... ......................
La Mere v. Railway Transfer Co........
Lampert v. Siemons................... .........
Lamphere v. Orego® R. & N . Co........
Lancaster v. Dunn........ ......................
Landers v. City of Muskegon..............
Lane v.. Au Sable Electric C o________
Lane v. Horn & Hardart Baking C o ..
Lang v. New York Cent. R. Co.........

m
m
168
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309
im
344

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175
216
270
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503
336
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296
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52
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303
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.71
76

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336
42

290

305

258
309
246
246
224
309
152
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344

116
264
232

169
301
246
891
391

96
371
290
517
496

417

257

391
290
309
189
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273
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240
155
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465

112

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240
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258
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152
2m
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298

Langell, In re______ __________
Langenberg 0. G u y.. . . . _______ ____
Langenberg Hat Co. v. United Cloth
Hst ftnd
M akers,................
Langley 0. City of Dallas....................
Larke v. John Hancock Mutual Life
Tps. Cn
. _
Larsen, Ex parte______________ ___ ■.
Larsen 0. Paine Drug C o .._____ . ___
Larsen 0. R ic e __ ____ ____ _____ ___
Larson 0. Kieburtz....______________
Larson v. Lindwig_________ ________
Lassel v. City of Gloversville___ . . . . .
Laundry Co. 0. Johnson......................
Lauzier 0. Industrial Accident Com
mission__ ________________ _______
La Veck v. Parke, Davis Co__ ______
Lavin v. Wells Bros. Co.......................
Law v. Illinois C. R. Co.......................
Lawhon v. St. Joseph Veterinary
Laboratories.______;______________

LIST OF CASES

Bui.

Page

169
444

330

290
391

264
137

224
224
189
268
152
391
444
344

302
212

261
145
238
52
200

234

290
224
224
169

380
226
230
94

391
169

69
/137
\140
308
311

344
Lawson 0. Wallace & Keeney........ .
Lawton 0. Stewart Dry Goods Co___ 391
Leadbetter *0. Industrial Accident
Commission...................................... 290
Leader Specialty Co. 0. Chapman____ 444
Lecker 0. Valentine et al____________ 444
LeClear v. Smith...............................
391
Lee 0. Central of Georgia Ry. Co....... 290
Lee v. City of Lynn________________ 224
Lee 0. Licking Valley Coal Digger Co.. 417
Lee 0. New River & Pocohontas Con
solidated Coal Co......... ................... 152
Lee's Case.__________________ _____ 344
Legg 0. Swift & Co......... ....................
112
Lehigh Structural Steel Co. 0. Atlantic
Smelting & Refining Works.............. 290
Lehigh Valley Coal Co. 0. Yensavage.. 189
Lehigh Valley R. Co. 0. Barlow_____ 246
Leigh Atchison (Inc.) 0. Industrial
Commission_____________________ 417
Leitz 0. Labadie Ice Co_______
417
Lenname 0. City of Detroit.
391
Lente 0. Lucci...................................... 391
Lftrmnind’s f ’ase............. ....... „
391
Lerner 0. Rump Bros___________
417
Lesh 0. Illinois Steel Co....................... 22*
Lesuer 0. City of L owell...
246
Leva 0. Utah Fuel C o ... .................... 309
Levendusky 0. Empire Rubber Mfg.
Co.......................... .............. ............ 152
Levine 0. General Electric Co___
417
Lewis 0. Lincoln Engineering Corp___ 417
Lewis 0. Louisville Ry. Co...........
391
Liberato 0. Royer................................. / 391
\ 444
Liberti, In re______________________ 246
Liimatainen 0. State Ind. Acc. Comm. 444
Liimatta 0. Calumet & Hecla Mining
Co...................................................... 417
Liliopoulos 0. Oregon-Washington
R. & N. Co.....................
189
Lillard 0. Melton___ __
224 j
Limron 0. Blair____________________
169
Lincoln 0. National Tube Co
309
Lincoln Gas & Electric Light Co. 0.
Watkins............................................. 417
Lindsey 0. Lee_________________
391
Lindstrom 0. Mutual S. S. Co
224
Lindway 0. Pennsylvania Co.............. 309
Linnane 0. Aetna Brewing Co
246
Liondale Bleach, Dye & Paint Works
0. Riker__ ...,________
169
Little Cahaba Coal Co., Ex parte___ 417
Little Cahaba Coal Co. 0. Aetna Life
Ins. Co_________________________
189
Litts 0. Risley Lumber Co.................. 258
Livingston 0. Susquehanna Oil Co__ 391
Llewellyn Iron Works 0. Industrial
391
Accident Commission____________
Lloyd 0. Southern Railway Co........... 169

437
199
170
430
135
56
156
269
365
138
278
69
95
206
163
322
518
355
149
336
281
318
233
259
250
63
358
142
270
141
249
308
131
211

329
200

304
327
325
277
205
227
313
182
312
404
96

Bui. Page
Local No. 497 of Amalgamated Ass’n
of Street and Elec. Ry. Employees
of America 0. Joplin & P. R. C o .... 391
149
Local Union No. 65, Amalgamated
Sheet Metal Workers’ Int. Alliance
v. N a lt y ........................................
106
417
Local Union No. 313, Hotel and Res
taurant Employees’ Int. Alliance 0.
Stathakis_____________ _____ ____ _ 258
124
Loewe 0. Union Savings Bank of Dan
167
bury______ ____ ____ __ _____ _
1.89
London Bros. 0. National Exchange
B a n k ...._____________________ __ 246
179
London Guarantee & Accident Co.
184
(Ltd.) et al. 0. Industrial Commis >444 /\ 204
sion.^..................... ...................____
London Guarantee & Accident Ins.
Co. 0. Vicksburg, S. & P. R. Co__. 391
490
Long 0. Lusk................................ ......
101
224
Longfellow 0. City of Seattle............. 169
74
36
Looney 0. Norfolk & W. Ry. Co . . .
444
245
Loper, In r e;........................................ 246
503
Lopez 0. King Bridge Co .........
391
107
Lorando 0. Gethro................................ 246
Lorchitzky 0. Gotham Folding Box
Co.... ............................................... . 309
333
Los Angeles County 0. Industrial Acc.
254
Com...... ...................................
444
Los Angeles Shipbuilding & Drydock
282
Co. 0. Industrial Accident C om .... 344
305
Lough 0. State Ind. Acc. Commission. 344
Louisville, Henderson & St. Louis Ry.
111
Co. 0. Lyons___________ ______ _
152
113
Louisville & N. R. Co. 0. Barrett___ 189
103
Louisville & N. R. Co. 0. Carter......... 224
99
Louisville & N. R . Co. 0. Layton....... 246
91
Louisville & N. R. Co. 0. Rhoda......... 224
186
Louisville & N. R. Co.* 0. State.......... 246
118
Louisville & N. R. Co. 0. Stewart___ 224
Louisville & N. R. Co. 0. Wingo’s
39
Admx___ __________________ ____
444
131
Loux 0. Harris...................................... 391
Love 0. Grand International Division
236
of B. of L. E..... ......... ............... ...... 290
154
Lovely 0. Gill_____________________
391
Lower Vein Coal Co. 0. Industrial
247
Board_____________ . . . . __________ 309
9
Lubetich 0. Pollock............................ 417
Lumaghi Coal Co. 0. Industrial Com
229
mission___ _____ _______ ______ ___ 417
Lumbermen’s Indemnity Exchange 0.
Vivier__________________________ 344 380
Lumbermen’s Reciprocal Ass’n 0. Gil
519
more__________________________ _
391
24
Lummus Cotton Gin Co. 0. Baugh... 391
69
Lusk et al. 0. Phelps............................ 258
Lyle
0. H. P. Lyle Cider and Vinegar
P a aj; q]
188
444
96
Lynch 0. Boston & Maine R. R _____ 246
281
Lyon 0. Windsor. ............ .................. 224
Lyon & Healy 0. Piano, Organ &
217
Musical Instrument Workers’ I. U_. 290
170
Lyons 0. Jamberg___________ ______ 189
80
Lyons 0. Pease Piano Co_................... 290
45
Mabe 0. Gille Mfg. Co......................... 417
Macbeth-Evans Glass Co. 0. Schnel236
bach____________________________
152
71
Machae 0. Fellenz Coal & Dock Co__ 391
Machenheimer 0. Department of
457
Labor and Industries......... .............. 391
181
Macintosh 0. Abbot________________ 258
Mackay Telegraph-Cable Co. 0. Arm
105
strong_________________ _________ 344
233
Mackin 0. Detroit-Timken Axle Co__ 189
312
Madden, In re______ ______________
224
Maddox 0. Gude & Co____ _________ 417 196
Madera Sugar Pine Co. 0. Industrial
320
Acc. Com________________________ 344
232
Madore 0. New Departure Mfg. Co__ 444
474
Madura 0. City of New York_______
391
274
Maggalet, In re____________________
246
Magnuson 0. McAdam_____________ 169
285
326
Mahowald 0. Thompson-Starrett Co. 224

LIST OF CASES

Maisel v. Sigman___ _
Malette v. City of Spokane___ —
Malky v. Kiskiminetas Valley Coal
Co........................................ —
Mancini v. Scovill Mfg. C o.________
Mandelin et al. v. Kcnneally et al.....
Manford v. Memil Singh................. .
Mangus v. Proctor-Eagle Coal Co___
Mann v. City of Lynchburg-*-___ —
Mann v. Glastonbury Knitting C o ...
Manning v. Pomerene..____ ________
Manor v. Pennington...........................
Mansfield v. Wagner Elec. Mfg. C o..
Manson & MacPhee v. Flanagan..
Manwell v. Durst Bros---------------Marhoffer v. Marhoffer____ ______
Marinelli v. United Booking Offices...
Marion Foundry Co. v. Landes,, City
Auditor......... ................ ...................
Marion Machine Foundry & Supply
Co. v. Redd_______ ______________
Mark Mfg. Co. v. Industrial Commis
sion----------------------------------- ------Markley v. City of St. Paul....... .......
Markley v. M urph y.........................
Marks Arnheim (Inc.) v. Hillman.....
Marland v. Philadelphia & Reading
Ry. Co________ ___________ ______
Marlow v. Mayor and Aldermen of
City of S a v a n n a h ... ....... ...........
Maronen v. Anaconda Mining Co----Marrs v. Oregon Short Line Ry. Co..
Marsh v. Groner___________________
Marshall Field & Co. v. Industrial
Commission____________ ;________
Martin v. Chase_______. . . _______—
Martin v. Francke________ ________,
Martin v. Going— _.---------- ----------Martin v. Metropolitan Life Ins. Co.
Martineau v. Foley............ ...............
Martinelli, In re............ ...................
Martucci v. Hills Bros. Co............... .
Marx m. N. Y. Ribbon Co................
Maryland Casualty Co. v. Chamos...
Maryland Casualty Co. v. Industrial
Acc. C om .........................................
Maryland Casualty Co. v. Peppard__
Mason v. New Orleans Terminal C o..
Massachusetts Bonding & Ins. Co. v.
Pillsbury___ —................................
Matheson v. Minneapolis Street Ry.
Co.....................................................
Mathewson v. Olmstead.-................. .
Mathis v. Western & A. R. R ........... .
Matis v. Schaeffer............................... .
Matsuda v. Hammond...... .................
Matthews v. Industrial Lumber C o ..
Matthiessen & Hegeler Zinc Co. v.
Industrial Board................ ..............
Matwiczuk v. American Car & Foun
dry Co............................. ............... .
Mauch v. Bennett & Brown Lumber
Co....................................................
Maucher v. Chicago, R. I. & P. Ry.
Co.................................................... .
Mauchline v. State Ins. Fund........... .
Maurer v. Northwestern Iron Co____
Max Ams Machine Co. v. Interna
tional Association of Machinists___
M ay Creek Logging Co. v. Pacific
Coast Casualty Co............................
Mayor and Council of Hagerstown v.
Schreiner............................. ............
Mayor, etc., of Savannah v. Jordan...
Maziarski v. George A. Ohl Co...........
McAdoo v. Industrial Acc. Com.........
Me A dow v. Kansas City Western Ry.
C o ....................................................
McAuliffe v. New York C. & H. R. R.
Co......................................................
McBride v. Clark.................................
McBride ». Standard Oil Co. of N. Y .
McCalman v. Illinois C. R. R. Co___

Bui.

Page

391

162
132

112

169
391
444
290
309
309

224
246
246
344
290
258
246
189

466
528
118
294
97
269
310
247
242

112

290
91
289
56

417

444

215

290
290
152

457
383
116
187

258

344
169
309
246

315
73
215
230

258
344
246
344
309
224
169
224
224
391

182
385
127
256
309
186
229
288
63

290
224
258

449
130
213

391
444
309
169

112

218
486
27
263
276
144

258

159

224

341

444

125

224
391

202

112

344
96
164

291
290
169
189
290

420
284
215
470
311

189
417
309

111

82
224:
290

Bui. Page
McCarter v. Baltimore Chamber of
Commercfe-........................ ........... . 189
McCarthy, In re....................
. 246
McCarthy p. Dunlevy-Franklin Co .. ; 391
McCarty v. R. E. Wood Lumber C o.. 169
McCaskey, In re___ ^................ ........ , 246
McCauley v. Imperial Woolen Co___
258
McClary v. Knight.............................. 169
McClaugherty v. Rogue River Elec
tric C o . . . . ........................................ 169
McCormick v. Central Coal & Coke
Co........... ........................................ . 417
McCourtney v. United States___ . . . .
391
M cCoy v. Cline................................. . 417
McCracken v. Missouri Valley Bridge
& Iron Co.........................................
189
McCroskey v. Procter & Gamble Mfg.
Co............. ................................. .
391
McCune v. Wm. B. Pell & Bro....... .
309
McDaniel v. City of Benson et al. *... 444
McDonald v. Industrial Commission. 246
McDonald, Ex parte________ _______ 169
McFarland Co., J. C., v. O’Brien____ 417
391
McGarry v. Industrial Commission... /\ 417
Me Garvey v. Independent Oil &
Grease Co.__......................... ........... 169
McGillvray v. Employers’ Liability
Assurance Corp.............. ................. 152
McGovern v. City of New Y ork ..___ 391
McGovern v. Philadelphia & Reading
189
R. Co__________ _________ ____
McGrady v. Charlotte Harbor &
Northern R. Co---------------- -—
169
Mclnemey v. United Railroads of San
Francisco.---------------------------------309
Melntire v. Dept, of Labor and Indus
391
tries_____________ _>------ ------- ——
McKarnin v. Armour & Co___— ___ 417
McKee v. Ohio Valley Electric R. Co. 224
444
McKee v. White........... .... ......... .
McKenna, In re_------------------------ ...
258
McLaughlin v. Chief Consol. Mining
391
Co.................................... .................
McLaughlin v. Industrial Board..___ 246
McLellan v. McLellan___________ ...
417
224
McManaman’s Case.......— ...............
McMichael et al. v. Atlanta Envelope
Co............. ............ ........................... 309
McMorran & Co. v. Industrial Com
mission------ -------------------------------- 290
McMullen v. Gavette Const. Co_____ 290
McNally v. Diamond Mills Paper Co. 258
McNamara v. Eastman Kodak Co___ 344
McNatt v. Lawther..__________ ____
290
189
McPhee, In re_____________________
189
McQueeney v. Sutphen & Hyer------417
McQuivey v. International R. Co___
169
McRoberts v. National Zinc Co........
McWeeny v. Standard Boiler & Plate
Co____________________ ____ _____ 169
Meade Fiber Corp. v. Starnes_______ 391
Mechanics’ Foundry & Machine Co.
v. Lynch------------ ----------------------309
Mechanics’ Furniture Co. v. Indus
258
trial Board.------------------ --------- —
152
Meese v. Northern Pacific R. Co____ /\ 169
444
Melcher’s Case-----------------------------169
Meley, In re..................................... .
Mellen Lumber Co. v. Industrial
Commission of Wisconsin*._______ _ 152
Meltzner v. Raven Copper Co_—_ -~ . 152
Melville v. Butte-Balaklava Copper
Co._________ — _________________ 152
Melzner v. Northern Pacific R. Co__.. l i 2
Memphis Cotton Oil Co. v. Tolbert.. 189
Meniz v. Quissett Mills_____________ 169
Mepham, George S., & Co. v. Indus
290
trial Commission______________
224
Mercer a. Ott............. ............ -- ---- -290
Merchant’s Case, In re.................
Mercury Aviation Co. v. Industrial
Acc. Com.......................................... 309

317
282
432
284
271
158
65
108
177
253
204
208
520
261
218
275
335
98
404
198
267
266
13
115
75
100

407
165
114
235
213
116
227
25
301
173
364
317
181
131
208
281
264
228
236
232
337
199
204
195
250
245
241
201

60
64
83
217
112

376
295
363
234

300

UST QF CASES
Bui.

Page

417
258
391
344
391
344
891
391
391
290
391

130
167
491
374
135
244
2S2
464
3ot>
257

444
152
189
Middleton v. Texas Power & Light Co. 224
. 290
Midland Coal Co. p . Rucker’s Admin
istrator............... .......... ................... 444
Midwest Box Co. v. Hazzard.............. 417
Mihm v. Hussey------- --------------------- 189
Miller, Ex parte.................. ...... ......... 112
Miller 9. American Steel & Wire Co.. 224
Miller p. Beil................................... .
309
Miller v. Berkeley Limestone Co........ 112
Miller v. Canadian Northern Ry. Co. 344
Miller t’. City of Niagara Falls............ 391
Miller v. New York Rys. Co............... 224
Miller Pillsbury............................... 152
Miller p . Public Service R. Co............ 152
Miller p . Taylor................................... 224
Miller p . Wilson.—.............................
189
Miller & Lux (Inc.) v. Industrial Ace.
Com ..............- ................................ . 248
Miller Tel. Co. p. Minimum Wage
Commission........................... - ......... 280
Millers’ Indemnity Underwriters v.
Boudreaux........................................ 391
Millers’ Indemnity Underwriters v.
B rau d .............................................
444
Millers’ Mutual Casualty Co. v. ' 290
Hoover........................ ..................... 344
Milliken v. A. Towle & Co................. ' 169
Mills v. Mills & Connelly...................
444
Milton’s Case......................................
391
Milwaukee v. Fera.............................. 290
Milwaukee v. Miller............................
152
Milwaukee Coke & Gas Co. p. Ind.
Com..................................................
189
Milwaukee Elec. Ry. & Light Co. v.
Ind. Com......................... ............... 391
Milwaukee Western Fuel Co. p. Ind.
Com................................................... 189
Minimum Wage Law Cases, D. C—
344
Minneapolis & St. Louis R. Co. v.
Bombolis........................................... 224
Minneapolis & St. Louis R. Co. v.
Gotschall....... _........................... ...... 246
Minneapolis & St. Louis R. Co. v.
United States----------------------------246
Minneapolis & St. Louis R. Co. v.
Winters-------------------- ------------ —
246
Minneapolis, St. P. & S. S. M. R.
Co. v. Goneau___________________
444
Minneapolis, St. P. & S. S. M. R.
Co. v. Ind. Com_________________
152
Minnesota Stove Co. v. Cavanaugh... 224
Minto v. Hitchings & C o ___________
391
Mirnek p. West Penn. Power Co....... 391
Missouri, K. & T. Ry. Co. v. United
States.............................. .............. .
152
Missouri, K. & T. Ry. Co. v. W ulf... 152
Missouri Pac. Ry. Co. p . Ault....... .
309
Missouri Pac. Ry. Co. p . Castle......... 112
Missouri Pac. Ry. Co. p . Taber.......... 246
Missouri Pac. Ry. Co. v. United
States......... .............. ...................... . 169
Mitchell v. Hitchman Coal & Coke
Co________ ___ ______ ___________
169
Mitchell p . Phillips Mining Co.......
246
Moana, T h e ...____________________
246
Mockett v. Ashton_______ _________
169
Moler*>. Whisman et al._.......... .........
112
Monroe p. Colored Screwmen’s Be
nevolent Assn..............................
169

194

Meredith ». Carl Youngstrom O o ,...r
Merliao v. Connecticut Quarries C o. Merrick & Coe p. M odliu..- ...............
Merrill t>. Penaseo Lumber Co_______
Messer, Exparte..------- --------- -------Messerall v. Dreyer.............................
Metropolitan Securities Co. v. Orlow.
Meucci v. Gallatin Coal Co...............
Miami Coal Co. p. Peskir..................
Michaels et al p . Hillman...................
Michaelson v. United States................
Michigan Central R. Co. v. Industrial
Commission......, ....... - .....................
Michigan Central R. Co. p . Vreeland..

Bui. Page

244
245

Monterey County v. Rader.......... ...... 444
290
Montgomery v. Pacific Elec. By. Co.. /\ 391
Montgomery p. Southern Pac. C o.—
152
Moody et al. p. Model Window Glass
Co_________________ ________ _ 290
Moore, Ex parte------- — -- -------------- 391
Moore v. Cooks’ Waiters’ & Wait
resses’ Union No. 402................. ...... 290
Moore p. Indian Spring Channel Gold
Mining Co___ ____________ ______ 258
189
Moore p. Lehigh Valley R. Co______
Moore ». Marine Firemen, Oilers &
Watertenders’ Union of the Pacific. 344
Moore p . Peet Bros. Mfg. Co________ 246
Moore p. United States--------------- ------ 290
Moore & Scott Iron Works et al. p.
Industrial Accident Commission___ 258
Moore Drop Forging Co. p . Fisher___ 309
Moore Drop Forging Co. v. McCarthy. 391
Moore Shipbuilding Corp. p . Indus
trial Accident Commission___ ____ 309
Moore’s Case________________ ____ — 444
Moran p. Oklahoma Engineering, etc.,
Co........... .......................................... 391
Moran’s Case....................................... 290
Morgan p . St. Louis, I. M. & S. R. Co. 152
Morin v. Nunan____ _______________ 258
290
Morin v. Rainey.__________ _____ —
Morris v. United States_____________ 417
Morrison p. Commercial Towboat Co. 246
Morse, Ex parte................. ................. 444
391
Morse p . Delany___________________
Morstad v. Atchison, T. & S. F. Ry.
Co........................ ............................ 258
Mosgaard v. Minneapolis St. Ry. Co__ 417
Moss p . Aluminum Co. of America.. . 417
Moss v. Standridge.............................. 444
Moss Federal Coal Co. ct al. v\ Rhea._ 444
Mosshamer p . Wabash Ry. Co______ 391
Mountain Ice Co. v. McNeil et al____ 258
Mountain Timber Co. v. Washington. 224
Mount Olive Coal Co. v. Ind. Com___ 309
Mt. Pleasant Coal Co. et al. v. Watts__ 444
Moyer v. Butte Miners’ Union--------- 224
189
Moyer v. Penn. R. Co___ '__________
417
| Mueller v. Eyman....... .................... .
Mueller v. Klingman_______________ 290
Mulford p. A. S. Pettit Sons (Inc.)___ 246
Mulhall v. Nashua Mfg. C o_________ 344
Mullen v. Little________ _____ _____ 290
Muncie Foundry & Machine Co. v.
Thompson______ ________________ 290
Murdocks. New York News Bureau. 290

117

j 169
Murphy, In re______ ______________ \ 224

200
88

219
245
339
59
58
255
108
306
297
152
107
8

325
214
186
315
133
211

291
352
135
379
334
246
146
508
381

203
202
514

100

115
94
47
211

196
383
123
128
93
216
76
101

129
315
104
1-87
207
101

323

Murphy p. George Brown & C o.........
Murphy v. Sardell__________ _____
Murrel v. Ind. Com. et al___________
Musical Mutual Protective Union v.
Weber_______________________________
Mutimer v. General Elec. Co._...........
i Mutual Oil Co. v. Zehrung et al______
! Muzik v. Erie R. R. Co_____ ________ :
Myers v. Pittsburgh Coal Co _________
Myers v. Wadsworth Mfg. Co...............
Napier v. Atlantic Coast Line R. Co__
Nash v. Longville Lumber Co ______ _
Nashville, Chattanooga & St. L. Ry.
v. Coleman____ __________________
j National Association of Window
I Glass Mfrs. v. United States—...........
! National Cash Register Co. p . Rem
ington Arms C o_________________
National Market Co. p . Maryland
Casualty Co.—______________________
National Power Const. Co. p . Rouleau.
National Woolen Mills v. Local No.
350____ ____________________ ____
Natural Gas Products Co. p . Thur! man_____________ ____ _____
j Navracel v. Cudahy Packing Co_____
i Naylor p . Hdlland*St. Louis Sugar Co.
i Neal p. Hutcheson.................. .........

{ 246
258
417
290

189
245
220

£1

292
221

147
282
194
291
167
203
165
265
252
249
501
404
172
49
114
40
105
113
318
84
250
165
172
123
156
193
252
342
16
190
107
258
408
236
311
306
374
392

229
259
222

163
136
354

391
391
444
169
169
309
444
309

190
415
99
249
70
341
102
86

417

273

391
444

li'

258
391

149
374

444

391
391
309
224

298
448
125
198

LIST OF CASES

Bui.
Neal's Admr. v. Louisville & N. R.
Co.___________ ________ —
444
Neary v. Philadelphia & Beading Coal
& Iron Co_____________________ __ ‘ •TUT)
444
Nease v. Hughes Stone Co__________
Nebraska National Guard v. Morgan. 391
Nederlandsch Amerikaansche Stoomvaart Maatschappij v. Stevedores’
and Longshoremen’s Benev. Soc__ 290
Nega v. Chicago Rys. Co...........______ 417
Neil v. Flynn Lumber Co__________
152
Nekoosa-Edwards Paper Co. v. Ind.
Com______ ___________________. . .
152
Nelson, In re___ ______ ...___________ 169
Nelson v. Ironwood & B, Ry. & Light
290
Co._____ ___________ ___________
Nelson v. Kentucky River Stone &
258
Sand Co_____ _____ _____________
258
Nelson v. Southern Ry. Co_________
Nelson v. St. Joseph & G. I. Ry. C o ... 258
Nesbit v. Giblin................................... 189
Nevada Ind. Com. v. Washoe County. 258
Neversweat Mining Co. v. Ramsey... 344
New Albany Box & Basket Co. v.
Davidson ______
New England Cement Gun Co. v.
169
McGivern____ _____
New Jersey Painting Co. v. Local
No. 28................................................ 391.
New Method Laundry Co. v. MacCarm .......
?46
New Orleans & N. E. R. Co. et al. v.
Harris.
25S
New River Coal C-o. v. Files......... .
444
New York C. & H. R. R. Co. v. Carr- 189
New York C. & H. R. R. Co. v. Tonsellito....................... .................. .
246
New York Central R. Co. v. Bianc—. 290
New York Central R. Co. v. White.. 224
New York Central R. Co. v. Win
field...................................................
246
New York Linen Supply «fc Laundry
Co. (Inc.) v. Schachter....... ............. 417
New York, N. H. & H. R. R. Co.
v. Murphy______ _____
152
New York Shipbuilding Co. v. Bu
ch a n a n ............................................ 152
New York State Rys. v. Shuler.......... 891
Newark Paving Co. v. Klotz.............. 169
Newberry v. Central of Georgia Ry.
Co__................. ...............
344
Newcomb v. Albertson....................... 169
Newhall Land & Farming Co. v. Ind.
Acc. C om ....................... ................. 344
Newman v. Newman_________
189
Newman’s Case, In re......................... 224
Newton v. Rhode Island Co............... 290
Nichols, In re__................. . ........
169
Nicholson v. Atchison, Topeka &
Santa Fe Hospital Assn..........
224
Nickerson, In re................. ................. 169
Nickerson’s Case.................................. 444
Niles-Bement-Pond Co. v. Iron Molders’ Union_________ _____________
246
Nirschl v. Nirschl............................. *
444
No. C-4, The.„.................................... 391
Noel v. Quincy, 0. & K. C. R. Co___ 224
Nordenholt Case........................... ...
344
Noreen v. William Vogel & Bros. (Inc.). 309
Norella v. Maryland Casualty Co___ 444
Norfolk & Western Ry. Co. v. Earnest. 152
Norfolk & Western Ry. Co. v. Hol
brook.................................................
189
Norman v. Hartman Furniture &
Carpet C o ..,............... .................... 444
Normandie Shirt Co. v. J. H. & C. H,
Eagle....................... .............. ; ......... 391
North Alaska Salmon Co. v. Larsen.. 189
North Alaska Salmon Co. v. Pillsbury. 246
North Beck Mining Co. v. Ind. Com. 309
North Carolina R. Co. v. Zachary___ 109
Northcutt v. Davis.............. ............... 391
Northeast Oklahoma R. Co. v. State
Ind. C o m . . . . . . . . ________ _
391

Page

39
439
255
438
184
238
242
216
227
124
179
80
103
275
174
129
448
298
206
79
80
129
92
98
369
232
265
21

91
199
399
251
89
247
395
278
263
357
213
57
265
152
172
109
261
124
285
329
143
92
88

198
259
119
231
236
83
111

340

301
Bui. Page

Northern Pacific Ry. Co. e. Maerkl.. 112
Northern Pacifte Ry. Co.
M eese... 180
Northern Pacific Ry. Co. v. United
States__ _________ __ __ ___ __ _
169 ;
Northwestern Fuel Co. v. Leipus....... 189
Northwestern Iron Co. *>. Industrial / 152
\ 189
Northwestern Malt & Grain Co. v.
391
Ind. C om ....................... .............
Northwestern National Bank of Bel
lingham v. Guardian Casualty &
Guaranty Co...................... .............. 246
Northwestern Telephone Exchange
Co. v. Workmen’s Compensation
309
Novack v. Montgomery Ward Co___ 391
Nupp v. Estep Bros. Coal Mining Co- 344
/ 189
OotoQ 9) TTfllt.Afl
\ 224
O’ Brien, In re....................................... 246
O’Brien v. Albert A. Albrecht Co....... 290
O’Brien v. Fackenthal......................... 417
O’Brien v. Luckenbach S. S. Co......... 391
Ocean Accident & Guarantee Co. v.
Industrial Acc. Com.......... .............. 224
169
O’ Connell v. Simms Magneto Co____
Odrowski v. Swift & C o__................... 246
Oeflein (Walter W.) v. State................ 344
f 417
P a )) TtiH
\ 444
O’Hara v. Luckenbach S. S. Co.......... 444
Ohio Automatic Sprinkler Co. v.
Fender J................................... ......... 391
Ohio Building Safety Vault Co. v.
Ind. Board........................................ 246
Ohio Drilling Co. v. State Ind. Com .. 444
Ohio Valley Electric Ry. Co. v. Brum
field’s Admr........................... ......... 258
Oilmen’s Reciprocal Assn. v. Gilleland........................................... ........ 444
Oklahoma Operating Company v.
Love et al......... ............... ................ 391
i Okmulgee Democrat Pub. Co. v.
State Ind. Com................................ 344
Okrzsezs v. Lehigh Valley R. C o ....... * 189
Old Ben Coal Corp. v. Ind. Com......... 391
Oliphant v. Hawkinson.................... . '309
Oliver v. Northern Pacific Ry. Co___ 112
Olmstead v. Lamphier______ _______ 258
Olsen’s Case......................................... 417
| Olson v. Idora Hill Mining Co............ 224
j O’Neil v. Carley Heater Co................. 224
Opinions of the Justices:
Liability of labor organizations for
tortious acts............... .................. 112
Marking convict-made goods........... 112
Old-age pensions, New Hampshire. 246
Right of discharge...................... ...... 189
;
State engaging in manufacture of
cement.... .................. ................... 309
'
| Opsahl v. Northern Pacific Ry. Co__ 189
Order of Railway Conductors v. Jones. 417
Oregon-Washington R. & N. Co. v.
U. S................................................... 189
Oresnik t>. Cudahy Packing Co........... 417
O’Rourke v. Percy Vittum Co............ 444
Osborne’s Admr. v. Cincinnati, N. O.
& T. P. Ry. Co................................. 169
Ostegaard v. Adams & Kelly Co......... 417
Osterbrink, In re.................................. 258
Oswald, Ex parte................................. 344
Otis Elevator Co. v. Industrial Com .. 344
Otis Elevator Co. v. Miller & Paine... 246
Otmer v. Perry..................................... 290
Outcelt v. Chicago, B. & Q. R. C o ... 344
Overland Publishing Co. v. H. S.
Crocker C o....................................... 391
Overland Publishing Co. v. Union
Lithograph Co............................
344
Owens v. Atlantic Coast Lumber
246
Owens v. McWilliams......................... 444
Oxford Coal Co. v. Fidelity & Casualty
Co. of New York.............................. 189

84
246
125
211

187
277
391
196
211

442
293
314
179
244
446
101

48
310
209
283
197
174
233
120

444
249
189
72
169
287
346
284
497
243
93
226
209
222

319
118
61
182
60
204
94
110

154
269
172
125
254
195
108
404
256
373
119
177
79
86

233
121

302

LIST OF CASES
Bui.

Page

391
Oxford Paper Co. p. T hayer..___ . . . .
Oxner p. Seaboard Air Line Railway
Go..................................................... 258
Pacific Coast Casualty Co. p . Pillsbury.._._.................... . ...................
246
Pacific Coast Coal Go. v, District No.
391
10...... ..............................................
Pacific Live Stock Co. p. Ellison
Ranching Co.......... ............... . ...... 391
Pacific States Lumber Co. p . Bargar___ 444
Pacific Typesetting Co. p . Inter
national Typographical Union......... 391
Packard Motors Co. of Alabama p .
417
T a lly ........................................ . . . .
Padgett p . Seaboard A. L. R y............. 169
Page Engineering Co. v. Ind. Com—.. 444
169
Paine Lumber Co. p. Neal.......... ........ /\ 246
Palloni v. Brooklyn-Manhattan Tran
sit Corp...........i ........................ ....... 444
Palmer v. Main.................................... 417
Panama R. Co. p . Johnson.................. 391
Panama R. Co. P . Minnix................... 344
Panasuk, In re.....................................
Panzieri-Hogan Co. p. Bender............
Papinaw v. Grand Trunk Ry. Co___ 224
Pappas v. North Iowa Brick & Tile Co. 444
Park Utah Mining Co. p. Ind. Com—
Parker p. First Trust & Savings Bank. 290
Parker p. Industrial Commission......... 444
Parker Paint & Wall Paper Co
Local Union No. 813...................
Parker- Washington Co. v. Ind. Board. 224
Parrish, E. II., & Co. p. Pulley.
290
189
Paschal p. State.......................... .
Passini p. Aberthaw Const. C o .......... 344
Pater p. Superior Steel C o .._ .......
290
Patrick p. J..B. Ham Co. et a l ....
309
Patten v. Aluminum Castings Co.
344
Patterson Glass Co. p. Thomas et al. . 290
Patton v. United States..... .................
391
Patton Hotel Co. p. Milner................. 344
Pawlak p. Hayes.................................
224
Payne p. Allen...................................... 309
Payne p. W all.________ ___________
309
Pearce p. Michigan Home and Train
ing School.'....................................... 417
Peavy p. C . W. Merydith Contracting
Co..................................................... 391
Peck p. Fink.................. ................. .
Pecos & Northern Texas Ry. Co. v.
Rosenbloom...................................... 224
Pedersen ^.Delaware, Lackawanna &
112
Western R. Co.................................. 152
Peek v. Northern Pacific Ry. Co-....... 189
Peekskill Theatre (Inc.) v. Advance
Theatrical Co.................................... 391
Peet v. Mills......................................... 152
Pekin Cooperage Co. p.Ind. Com........ 258
Pelow p. Oswego Const. Co.................. 224
Pennell p. Philadelphia & Reading
Ry. Co....... ....................................... 169
Pennsylvania Mining Co. v. Jarnigan. 189
Pennsylvania R. Co. p. Cole................. 169
Pennsjivania R. Co. p. Good..............
Pennsylvania R. Co. p. Donat............
Pennsylvania R. Co. p. Ewing............ 152
Pennsylvania R. Co. v. Knox.............. 189
Pennsylvania R. Co. p. United States. 246
290
Pennsylvania R. Co. p. U. S. Railroad
Labor Board..................................... 344
Pennsylvania R. System and Allied
Lines Federation No. 90 p. Pa. R. Co. 391
Pennsylvania System Board of Ad
justment of Brotherhood of Ry. and
Steamship Clerks, etc., p. Pa. R. Co. 391
People v. Adler..................................... 224
People v. Amanna............ ................... 344
People p. Brazee................................... 189
People p. Charles Schweinler Press. _. 189
People p. Chicago, M. & St. P. Ry. Co. 391
People p. City of Chicago.;.___ ___ . . .
152
People p. Cleveland, C. C. & St. L.
Ry. Co................. ............................. 290

533

56
292

11
55
237
132
90
146
164
176
246
230
43

121

Full text of Decisions of Courts and Opinions Affecting Labor : Decisions of Courts and Opinions Affecting Labor, 1926 : Bulletin of the United States Bureau of Labor Statistics, No. 444

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