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UNITED STATES DEPARTMENT OF LABOR
W. N. DOAK, Secretary

BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner

BULLETIN OF THE UNITED STATES )
B U R E A U OF LA B O R S T A T IS T IC S )
LABOR

LAWS

THE

UNITED

KJ CA O
................... l l O # U *tO
STATES

S ERI ES

DECISIONS OF COURTS AND
OPINIONS AFFECTING LABOR
1929-1930

OCTOBER, 1931

UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1931

Fpr sale by the Superintendent of Documents, Washington, D, C,

- Price $1.00

ACKNOWLEDGMENT

This bulletin was prepared by Charles F. Sharkey and George D.
Patterson, jr., of the United States Bureau of Labor Statistics.
HI

CONTENTS

Introduction_______________________________________________________________
Decisions of the courts___________________________________________________
Admiralty:
Employers’ liability—
effect of State law— stevedore (Northern Coal & Dock Co. et al.
v. Strand et al.)— Wisconsin___________________________________
safe place and appliances— assumption of risk— jurisdiction
(Watkins v. Jahncke Dry Docks (Inc.))— Louisiana__________
Federal liability statute— negligence— unseaworthiness (Slaney v.
Cromwell)— Massachusetts________________________________________
Jurisdiction— unseaworthiness— Federal and State laws (Lindgren v.
United States et al.)— Virginia_____________________________________
Maintenance and cure— negligence— unseaworthiness (Nelson v. The
William Nelson)— New York______________________________________
Wages of seamen— public administrator— unclaimed wages (In re
Buckley et al.)— Massachusetts___________________________________
Workmen's compensation—
effect of State law— jurisdiction (Merchants’ & Miners’ Trans
portation Co. v. Norton et al.)— Pennsylvania__________ _____
evidence— award (Grays Harbor Stevedore Co. et al. v. Marshall
et al., Rothschild & Co. et al. v. Same)— Washington_________
Federal and State laws—
(Employers’ Liability Assurance Corporation (Ltd.) of
London, England v. Cook et al.)— Texas________________
(John Baizley Iron Works et al. v. Span)-r-Pennsylvania___
place of accident— evidence (Pocahontas Fuel Co. (Inc.) et al. v.
Monahan, Deputy Commissioner, et al.)— Maine------------------Blacklist— damages— interference with employment (Goins v. Sargent et
al.)— North Carolina------------------------------------------------------------------------------Constitutionality of law:
Contract of employment— freedom in making— Federal and State
laws (In re Opinion of the Justices)— Massachusetts______________
Examination, licensing, etc., of workmen—
barbers—
(State ex rel. Melton v. Nolan, Treasurer)— Tennessee_____
police power of the State (State v. Lockey)— North Carolina.
electrician— city ordinance (Becker v. Pickersgill, Recorder, et
al.)— New Jersey______________________________________________
Limiting number of apprentices— interference with contract and due
process of law (Marx v. May bury, State Director of Licenses of
Washington, et al.)— Washington__________________________________
Longshoremen’s and harbor workers’ compensation act— jurisdiction
(Obrecht-Lynch Corporation et al. v. Clark)— Maryland__________

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Constitutionality of law— Continued.
Regulation of coal mines— arbitrary and unreasonable classification
(Sun Coal Co. v. State)— Tennessee_______________________________
Statute requiring only qualified voters to be employed— public works
(State v, Caldwell)— Louisiana---------------- --------------------------------------Contract of employment:
Breach—
discharge—
damages—
(Powell Paving Co. of North Carolina (Inc.) v. Scott)—
Georgia______________________________________________
(Detroit Graphite Co. v. Hoover et al.)— Massachusetts.
commissions as earnings (Clinton v. Des Moines Music
Co.)— Iowa__________________________________________
term of employment (Dallas Hotel Co. v. McCue)—
Texas________________________________________________
labor organization as party (Hall v, St. Louis-San Francisco
R. Co.)— Missouri________________________________________
misconduct as ground— life employment (Campion v.
Boston & Maine R. Co.)— Massachusetts------------------------indefinite employment (Peacock v. Virginia-Carolina Chemical
Co.)— Alabama________________________________________________
invention of employee (Engel v. Ansco Photoproducts (Inc.))—
New York--------------------------------------------------------------------------------sickness cause for breach (Fahey v. Kennedy et al.)— New York.
Commissions as earnings—
breach (Parkway Motor Co. (Inc.) v. Charles)— District of
Columbia______________________________________________________
damages for causing discharge— rights to prize (E. D. Lanford
Co. v. Buck)— Alabama_______________________________________
Constitutionality— purchase of capital stock by employee (In re
Opinion of Justices)— Massachusetts______________________________
Damages for breach— authority to hire (Palmer et al. v. New York
Herald Co.)— New York___________________________________________
Discharge—
damages for causing—
rights of employee (Caulfield t>. Yazoo & M. V. R. Co.)—
Louisiana-------- -----------------------------------------------------------------unsatisfactory service (Weisenbach v. McDermott Surgical
Instrument Co. (Inc.))— Louisiana_______________________
unsatisfactory services— commissions as earnings (Fried v.
Portis Bros. Hat Co.)— Georgia_______________________________
Rights to invention— patents (Hoyt v. Corporon)— Massachusetts___
Violation of labor contract law—
breach with fraudulent intent (Golden v. State)— Georgia_____
evidence (Garnto v. State)— Georgia-------------------------------------------Convict labor— articles manufactured in accordance with statute— mark
ing (Ove Gnatt Co. v. Jackson et al.)— Indiana-------------------------------------Eight-hour law— construction— 4‘ waterworks” (People ex rel. S. J. Groves
& Sons Co. (Inc.) v. Hamilton, Industrial Commissioner)— New Y o r k ..
Employers' liability:
Accident— orders of superior— failure to obey instructions (Unadilla
Valley R. Co. v. Caldine)— New York................. ....................................

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Employers’ liability— Continued.
Acts of employees—
assault— course of employment (Horwitz et al. v. Dickerson)—
Texas__________________________________________________________
negligence— assumption of risk (Finney v. Banner Cleaners &
Dyers (Inc.) et al.)— Louisiana-----------------------------------------------third party injured— master and servant (Nagy v. Kangesser)—
Ohio............... ............................................................................................
Admiralty— assumption of risk by seaman— safe place to work
(Engfors v. Nelson Steamship Co. et al.)— Oregon_________________
Assumption of risk—
causal connection—
injury to eye (Moseley v. Reading Co.)— Pennsylvania____
latent danger (Seaboard Air Line R. Co. v. Latham)—
Alabama__________________________________________________
contributory negligence—
award (Johnson v. Boaz-Kiel Const. Co.)— Missouri_______
res ipsa loquitur (Chicago Mill & Lumber Co. v. Jett)—
Arkansas_________________________________________________
evidence—
Inference— safe place and appliances (McClary v. Great North
ern R. Co.)— Iowa________________________________________
interstate commerce (Delaware, L. & W . R. Co. v. Koske)—
New Jersey_______________________________________________
injury in course of employment— going to and from work (Webre
v. Caire & Graugnard)— Louisiana____________________________
interstate commerce— negligence (Feurt v. Chicago, R. I. & P. R.
Co.)— Minnesota______________________________________________
master and servant relation— negligence (Le Blanc v. Sturgis)—
Maine_________________________________________________________
negligence—
(Donahue v. Chicago, M ., St. P. & P. R. Co.)— Minnesota..
proximate cause (Werling v. New York, C. & St. L. R. Co.)—
Indiana___________________________________________________
safe place to work (Los Angeles & Salt Lake R. Co. v.
Shields)— Utah.............................................................. .................
overexertion— preexisting condition (Sweeney v. Winebaum
et al.)— New Hampshire______________________________________
railroad company— proximate cause (Baltimore & O. S. W . R. Co.
v. Beach)— Indiana_____________ ______________________________
Children unlawfully employed—
construction of statute (Plick et al. v. Toye Bros. Auto & Taxicab
Co.)— Louisiana_______________________________________________
contributory negligence— fraud (Anderson Manufacturing Co.
(Inc.) v. Wade)— Mississippi__________________________________
dependents— hazardous occupations (Bagesse v. Thistlewaite
Lumber Co. (Ltd.))— Louisiana______________________________
hazardous occupation (Employers, Casualty Co. v. Underwood
et al.)— Oklahoma________ ____________________________________
Contributory negligence—
assumption of risk (Bell v. Terminal Railroad Association of
St. Louis)— Missouri_________________ _____ __________________
railroad— safe place (Birmingham v. Bangor & Aroostook Rail
road Co.)— Maine____________________________________________

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Employers’ liability— Continued.
Duty of employer to instruct— safe place— release (Miller v. Paine
Lumber Co. (Ltd.))— Wisconsin___________________________________
Employment status—
fraud (Minneapolis, St. Paul & Sault Ste. Marie R. Co. v. Rock)—
Illinois________________________________________________________
loaned employee (Spodick v. Nash Motor Co.)— Wisconsin_____
Evidence— accident— negligence (Newark Gravel Co. v. Barber)—
Arkansas___________________________________________________________
Federal and State jurisdiction—
interstate commerce (Efaw v. Industrial Commission of Wisconsin
et al.)— Wisconsin_____________________________________________
negligence— assumption of risk (Candler v. Southern Railway
Co.)— North Carolina________________________________________
Federal employers’ liability act— assumption of risk— negligence—
contributory negligence (Thrall v. Pere Marquette R. Co.)—
Michigan___________________________________________________________
Federal railroad statute—
action for death— limitations (Flynn v. New York, N. H. & H. R.
Co.)— Connecticut____________________________________________
fraudulent representation— disease (Fort Worth & D. C. R.
Co. v. Griffith)— Texas________________________________________
interstate commerce (Onley v. Lehigh Valley R. Co.)— New
Y ork-............— ____________ ________________________ __________
negligence— safe place (Phillips v. Chicago B. & Q. R. Co.)—
Nebraska______________________________________________________
safe place and appliances— assumption of risk (Fredericks v.
Erie R. Co.)— New York------- -------------------------------------------------safe place to work— assumption of risk (Shortway v. Erie R.
Co.)— New Jersey_____________________________________________
Fellow servant—
assumption of risk— contributory negligence (Wagner v. St.
Louis-San Francisco R. Co.)— Missouri_______________________
going to and from work— employment status (Hamilton Bros.
Co. v. Weeks)— Mississippi______________ _____________________
Independent contractor—
employment status (Williams v. Central of Georgia R. Co.)—
Alabama_______________________________________________________
third-party liability— safe place to work (Baker v. Scott County
Milling Co.)— Missouri________________________________________
Interstate commerce—
assumption of risk—
election of remedy (Prink v. Longview, Portland & Northern
R. Co.)— Washington____________________________________
negligence (Baird v. Ft. Dodge, D. M. & S. R. Co.)—
Iowa______________________________________________________
contributory negligence— evidence (Louisville & Nashville R.
Co. v. Jolly’s Admx.)— Kentucky_____________________________
negligence—
assumption of risk (Emch v. Pennsylvania R. Co.)— Ohio__
last clear chance (Chicago, Milwaukee, St. Paul & Pacific
R. Co. v. Kane)— Montana_______________________________
Invitee— negligence— volunteer (Lucas v. Kelley)— V e r m o n t --^ .,...

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Employers’ liability— Continued.
Limitation— negligence— street railway (Mangum v. Capital Traction
Co.)— District of Columbia________________________________________
Minor illegally employed—
defense (Gill v. Boston Store of Chicago (Inc.))— Illinois________
negligence— State and Federal laws (Chesapeake & Ohio R.
Co. v. Stapleton)— Kentucky__________________________________
Negligence—
assumption of risk—
interstate commerce (Texas & Pacific R. Co. v. Aaron)—
Texas_____________________________________________________
joint tort feasors (Southern Railway Co. v. Hobbs et al.)—
North Carolina___________________________________________
safe place and appliances (Turbeville v. Avery Lumber
Co.)— South Carolina____________________________________
safety appliance (Klotz v. Balmat)— Ohio__________________
contributory negligence (Turk v. Sweeten)— Arkansas___________
evidence—
Federal and State jurisdiction (Pennsylvania R. Co. v.
Johnson)— Indiana_______________________________________
presumption (St. Louis-San Francisco R. Co. v. Smith)—
Arkansas__________________________________________________
railroads (Pullen v. Chicago, M ., St. P. & P. R. Co.)—
Minnesota________________________________________________
fellow servant (Hendricks v. New York, N. H. & H. R. Co.)
New York____________________________________________________
interstate commerce— contributory negligence (New York
Central R. Co. v. Marcone)— New Jersey____________________
ordinary care (Millett v. Maine Central Railroad Co.)— M ain e..
proximate cause— assumption of risk (Rio Bravo Oil Co. v.
Matthews)— Texas____________________________________________
safe place and appliances (Primmer v. American Car & Foundry
Co.) — Missouri________________________________________________
violation of statute— assumption of risk (Suess v. Arrowhead
Steel Products Co.)— Minnesota______________________________
Occupational disease— safe place to work— assumption of risk (Depre
v. Pacific Coast Forge Co.)— Washington__________________________
Overexertion— assumption of risk— contributory negligence (Baker
v. Sterrett Operating Service (Inc.))— District of Columbia_______
Proximate cause— negligence— evidence (Atchison, T. & S. F. R.
Co. v. Toops)— Kansas_____________________________________________
Safe place and appliances—
duty of employer to instruct— “ simple tools” (Middleton v.
National Box Co.)— Mississippi_______________________________
failure to instruct— assumption of risk (Shey v. Central Coal &
Coke Co.)— Missouri__________________________________________
Safe place to work—
assumption of risk— contributory negligence (Wisconsin & Arkan
sas Lumber Co. v. Ward)— Arkansas_________________________
negligence— assumption of risk (International Harvester Co. of
America v. Hawkins)— Arkansas______________________________
occupational disease— constitutionality of statute (Boll v.
Condie-Bray Glass & Paint Co.)— Missouri___________________

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Employers’ liability— Continued.
State and Federal statute— Federal longshoremen's and harbor
workers’ act— interstate commerce (Nogueira v. New York, N. H.
& H. R. Co.)— New Y o r k .........................................................................
Third-party liability—
independent contractor— evidence (Smith Matthews Construc
tion Co. (Inc.),— New York___________ _______________________
negligence (Baker Tow Boat Co. (Inc.) v, Langner)— Alabam a..
Volunteer—
authority to hire (Bloss v. Pure Oil Co.)— New York____________
minor— employment status (Supomick v, Supornick)— Minnesota.
Willful misconduct— injuries causing death— fellow servant (Morris
et al. v. Young & De Britton)— Louisiana_________________________
Factory, etc., regulations— providing seats for female employees (People
v. Wells)— Michigan—__________ . . . . ____________ ___ _____________ ____
Labor organizations:
Action by or against—
Illinois Commerce Commission— sufficiency of findings and order
(Brotherhood of Locomotive Firemen and Enginemen v. New
York Central R. Co.)— Illinois______________ _________________
membership rights— contract of employment (Andrews v. Local
No. 13, Journeymen Plumbers, Gas & Steam Fitters, etc.)—
New York.................................................................................................
Boycott— injunction— restraint of trade (Rockwood Corporation of
St. Louis v. Bricklayers’ Local Union No. 1 of St. Louis et al.)—
Missouri__________________ _________________________________________
Collective agreements— coercion— injunction (Texas & N. O. R. Co.
et al. v. Brotherhood of Railway and Steamship Clerks, etc., et al.)—
Texas______________________________________________________________
Inducing breach of contract— open-shop contract (Moore et al. v.
Whitty et al.)— Pennsylvania______________ ___- _________________
Injunction—
against breach of contract— right to injunction (Ribner v, Racso
Butter & Egg Co. (Inc.))— New York________________________
against secondary boycotts— breach of contract— coercion
(Edelstein v. Gillmore et al.)— New York_____________________
against strikes (Willson & Adams Co. et al. v. Pearce et al.)—
New York__________ . . . ______________________________________
lockout— inducing breach of contract (David Adler & Sons Co.
v. Maglio et al.)— Wisconsin__________________________________
wages— validity of labor union rules (Barker Painting Co. v.
Local No. 734, Brotherhood of Painters, Decorators and
Paperhangers of America et al.)— New Jersey________________
Interference with employment— picketing— violation of injunction
(Wil-Low Cafeterias (Inc.) v. Kramberg et al.)— New York_______
Picketing— inj unction—
(Joe Dan Market (Inc.) v. Wentz et al.)— Missouri______________
conspiracy (Commercial House & Window Cleaning Co. (Inc.) v,
Awerkin et al.)— New York___________________________________
interfering with employment (New England Wood Heel Co. v.
Nolan et al.)— Massachusetts_________________________________
Status and power— constitutionality of statute— injunction (Ruark
et al. v. International Union of Operating Engineers, Local Union
No. 37, et al.)— Maryland_________________________________________

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CONTENTS
licensing business, occupations, etc.:
Pharmacists— powers of board to revoke license (Cavassa v. Off et
al.)— California_______________________________ ______ ______________
Plumber— injunction— against interfering with employment (City of
San Benito et al. v. Hays & Sons)— Texas_________________________
Removal of railroad shops— injunction— interfering with interstate com
merce— jurisdiction (Lawrence et al. v. St. Louis-San Francisco R. Co.)—
Oklahoma________ _________________________________ _____ _____ _____ 183
Retirement of civil employees— retirement system— prior service (In re
Caldwell)— New York_________________________________________________
Seamen:
Assault— negligence (Jamison et al. v. Encarnacion)— New York____
Nonpayment of wages— insolvency (Collie et al. v. Fergusson et al.)—
Virginia____________________________________________________________
Release— workmen’s compensation law— contributory negligence
(W. J. McCahan Sugar Refining & Molasses Co. v. Stoffel)—
Pennsylvania_______________________________________________________
Sunday labor:
Constitutionality of law (State v. Blair)— Kansas____________________
Violation of statute— “ mercantile establishment” (People ex inf.
Hertzberger v. John R. Thompson Co.)— New York_______________
Wages:
Assignments— injunction*—to protect public welfare (State ex rel.
Smith, attorney general, et al. v. McMahon et al., Same v. Harcourt
et al.)— Kansas____________________________________________________
Commissions— refusal to pay— discharge as affecting right to payment
(Monroe v. Grolier Society of London)— California________________
Deductions by employers— payment on discharge (People v. Porter)—
California____________________________________________________ ,_____
Injunction— interfering with employment— assignment of wages
(Bowen v. Morris et al.)— Alabama________________________________
Mechanic’s lien— security for payment (Dodd v. Horan (BeesonMoore Stave Co., Intervener))— Louisiana________________________
Refusal to pay— discharge as affecting right to payment (Whitehead
v. E. J. Deas Co. (Inc.))— Louisiana-----------------------------------------------Scrip— forcing employees to trade at commissary (Hackney v. Fordson
Coal Co.)— Kentucky_______________________________________ _______
Scrip, tokens, etc.— payment to third person (Western Kentucky
Coal Co. v. Nall & Bailey)— Kentucky____________________________
“ Straight time” contract— overtime— Adamson Act (Plummer v.
Pennsylvania R. Co.)— Illinois_____________________________________
Workmen’s compensation:
Accident—
course of employment (Neudeck v. Ford Motor Co.)— Michigan.
coverage— failure to give notice (Sears-Roebuck & Co. v.
Starnes)— Tennessee__________________________________________
hernia—
preexisting condition (Carr v. Murch Bros. Construction Co.
et al.)— Missouri__________________________________________
release (Guillod v. Kansas City Power & Light Co.)—
Missouri__________________________________________________

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Workmen’s compensation— Continued.
Accident— Continued.
hernia— Continued.
temporary total disability—
(Drecksmith v. Universal Carloading & Distributing Co.
et al.)— Missouri_____________________________________
(Lawrence v. Stark Bros. Nurseries & Orchards Co. et
al.)— Missouri_______________________________________
preexisting condition— evidence (In re Larson, Larson et al. v.
Blackwell Lumber Co. et al.)— Idaho_________________________
Accident arising out of and in course of employment—
act of personal convenience— evidence (Bushing v. Iowa Railway
& Light Co.)— Iowa___________________________________________
asphyxiation—
(Adler v. Interstate Power Co. et al.)— Minnesota__________
(Jackson et al. v. Euclid-Pine Investment Co. et al.)—
Missouri_________________________________________________
assault—
(Crippen v. Press Co. (Inc.) et al.)— New York____________
(Indian Territory Illuminating Oil Co. v. Jordan et al.)—
Oklahoma________________________________________________
assumption of risk— asphyxiation (White Star Motor Coach Lines
of Illinois v. Industrial Commission et al.)— Illinois___________
casual employment— burns (Soares’s Case)— Massachusetts____
causal connection— disease (Bass et al. v. Weber King Manufac
turing Co. (Inc.))— Louisiana_________________________________
construction of statute—
intentional and willful act (Sullivan’s Case)— Maine_______
servant transported to church in master’s automobile
(O’ Mara v. Kirch et al.)— New Jersey____________________
death resulting from fall on wet floor— evidence (Industrial Com
mission of Ohio v. Tripsansky)— Ohio_________________________
employment status—
going to and from work (Shegart et al. v. Industrial Com
mission et al.)— Illinois.____ _____________________________
loss of eye (Lampi v. Koponen et al.)— Minnesota__________
evidence—
(Higley v. Industrial Commission et al.)— Utah____________
asphyxiation (Bissinger & Co. et al. v. Industrial Accident
Commission et al.)— California___________________________
inference (Farwell’s Case)— Maine__________________________
failure to obey instructions (Gill v. Belmar Construction Co. et
al.)— New York_________ _____________________________________
freezing as accidental injury— loss of use of member (Eagle
River Building & Supply Co. et al. v. Peck et al.)— Wisconsin.
going to and from work—
(Greer v. Industrial Commission of Utah et al'.)— Utah_____
(Krapf v. Arthur et al.)— Pennsylvania-------------------------------(Wiest v. Bolduc et al.)— Minnesota------------------ ;___________
safe premises (Morucci v. Susquehanna Collieries Co.)—
Pennsylvania_____________________________________________
horseplay— evidence (Talge Mahogany Co. v. Beard)— Indiana..
hotel employee— duties (Spravberrv v. Independence Indemnity
Co. et al.)— Georgia___________________________________________

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Workmen’s compensation— Continued.
Accident arising out of and in course of employment— Continued.
intentional and willful acts (Bullard v. Cullman Heading Co.)—
Alabama______________________________________________________
interstate commerce— jurisdiction (Hart v. Central Railroad Co.
of New Jersey)— New Jersey---------------------------------------- ---------intoxication— proximate cause (City Ice and Fuel Co. v. Karlinsky)— Ohio____________________________________ _______________
jurisdiction— preexisting condition (Hahn v. Industrial Com
mission et al.)— Illinois_______________________________________
loss of eye (Levchuk v. Krug Cement Products Co. et al.)—
Michigan---------------------------------------------------------------------------------personal errand—
(Guivarch et al. v. Maryland Casualty Co.)— Texas________
(Ohmen v. Adams Bros, et al.)— Connecticut_______________
(Pflug v. Roesch & Klinck (Inc.) et al.)— New York_______
(Wickham v. Glenside Woolen Mills et al.)— New York____
street accident—
(Pelletier's Case)— Massachusetts__________________________
(Webb v. North Side Amusement Co.)— Pennsylvania_____
(Wynn et al. v. Southern Surety Co.)— Texas__ ___________
willful misconduct— construction of statute (Stearns Coal &
Lumber Co. et al. v. Smith)— Kentucky______________________
Additional award— partial disability— double recovery (Welden v.
Edgar Zinc Co.)— Kansas____ ____________________________________
Agricultural worker— interpretation of statute— review (Boyer v.
Boyer et al.)— Minnesota__________________________________________
Assault, horseplay, etc.— arising out of employment (Pacific Em
ployers’ Insurance Co. et al. v. Division of Industrial Accidents and
Safety et al.)— California__________________________________________
Award—
assignment (Gregg v. New Careyville Coal Co.)— Tennessee...........
computation of earnings— “ average weekly wage” (O’Loughlin’s
Case)— Massachusetts-------------------------------------------------------------concurrent employment (Perry Canning Co. et al. v. Industrial
Commission et al.)— Utah_____________________________________
failure of employer to comply with statute— l'‘ surplus fund”—
construction of statute (State ex rel. Croy v. Industrial Com
mission of Ohio)— Ohio_______________________________________
medical service— negligence— teeth extraction (Gunnison Sugar
Co. et al. v. Industrial Commission of Utah et al.)— Utah____
release by contract (Walker v. State Compensation Commissioner
et al.)— West Virginia-------------------------------------------------------------review— settlement and release (Wisconsin Mutual Liability Co.
et al. v. Industrial Commission of Wisconsin et al.)— Wisconsin.
temporary total disability— loss of member (Lundgren v. Indus
trial Commission et al.)— Illinois______________________________
total permanent disability— preexisting condition— causal con
nection (Reynold's Case)— Maine_____________________________
voluntary payment— “ wages” (Sullivan v. G. B. Seely Son
(Inc.) et al.)— New York______________________________________
Award as vested right— death from intervening cause (Southern
Surety Co. v. Morris)— Texas_____________________________________

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Workmen’s compensation— Continued.
Award, basis of, etc.—
dependency (Heughan’s Case)— Maine__________________________
lump sum— construction of statute (United States Fidelity &
Guaranty Co. v. Nettles)— Texas____ ________________________
multiple injuries— permanent total disability following tem
porary total disability (Aetna Life Insurance Co. v. Bulgier et
al.)— Texas____________________________________________________
“ Business for gain”— coverage— jurisdiction (Maryland Casualty
Co. et al. v. Stevenson et al.)— Oklahoma_________________________
Casual employment—
contractor— jurisdiction (Le Blanc v. Nye Motor Co. et al.)—
Vermont_______________________________________________________
powers, etc. of commission— procedure (Ingram et al. v. Depart
ment of Industrial Relations)— California____________________
Causal connection—
act of God—
common hazards (Kennedy v. Hull & Dillon Packing Co. et
al.) Kansas . . . ---------------------- —_— _ _ _------------------- _-------_
tornado (American Shipbuilding Co. v. Michalski et al.)—
Ohio______________ ________________________________________
course of employment— heart disease (Cronin v. American Oil
Co.)— Pennsylvania___________________________________________
evidence—
(Francis v. Swift & Co.)— Louisiana________________________
(Republic Box Co. v. Industrial Commission et al.)— Illinoisfailure to use safety device— eye injury (Pino v. Ozark Smelting
& Mining Co.)— New Mexico_________________________________
latent defect— accident arising out of and in course of employ
ment (Patrick v. Grayson & Yeary et al.)— Louisiana_________
limitations— injury result of electric shock (Travelers’ Insurance
Co. et al. v. Ohler)— Nebraska________________________________
occupational disease (Galuzzo v. State et al.)— Connecticut_____
powers, etc. of commission— medical fees (Souza’s Case)—
Massachusetts_________________________________________________
Change of condition— impairment of functions without wage loss—
termination of award (Warner v. Michigan Electric Railway Co.)—
Michigan___________________________________________________________
Claims—
change of condition— injury to eye (Murphy v. W . 0 . Cook Con
struction Co. et al.)— Kansas________________________________
“ employee”— member of firm, etc., as employee (Emery’s Case)—
Massachusetts_________________________________________________
Constitutionality of law—
“ business for gain”— appeal (Brooklyn Children’s Aid Society v
Industrial board of Department of Labor, State of New York
et al.)— New York____________________________________________
settlement and release (Staten Island Rapid Transit R. Co. v.
Phoenix Indemnity Co.)— New York_________________________
Construction of statute—
employment status— member of firm as employee (Columbia
Casualty Co. v. Industrial Commission of Wisconsin et al.)—
Wisconsin______________________________________________________

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275

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279
280
281
282
284
285
286
287
289

290

291
292

293
294

296

CONTENTS
Workmen’s compensation— Continued.
Construction of statute— Continued.
extrahazardous employment— public employment (Village of
Chapin v. Industrial Commission et al.)— Illinois_____________
going to and from work— review by courts (Krebs v. Industrial
Commission et al.)— Wisconsin_______________________________
Contractor—
election— third-party liability (Taylor v. Haynes)— Texas______
employers’ liability— subcontractor (Johnson et al. v. Mortenson
et al.)— Connecticut__________________________________________
employment status—
death (Habrich et al. v. Bent et al.)— Wisconsin____________
review by court (Badger Furniture Co. et al. v. Industrial
Commission et al.)— Wisconsin__________________________
loss of eye (Jacobson v. Weidman Lumber Co. et al.)— Michigan.
Coverage—
accident arising out of and in course of employment— powers of
commission (Kraft v. Industrial Commission et al.)— Wiscon
sin__________________ __________________________________________
casual employment—
(Sturman v. Industrial Commission of Wisconsin)— Wis
consin____________________________________________________
farm labor (Peterson v. Farmers* State Bank of Eyota)—
Minnesota________________________________________________
employment status—
minor (Schanen v. Industrial Commission et al.)— Wiscon
sin------------------- ------------ --------- -------------- -------- -------------------powers of commission (Stiles v. Des Moines Council, Boy
Scouts of America et al.)— Iowa__________________________
farm labor (Adams v. Ross et al.)— New York__________________
limitations— evidence (Kemper v. Gluck)— Missouri____________
public employment— volunteer “ without pay” (Department of
Natural Resources, Division of Fish and Game v. Industrial
Accident Commission et al.)— California_____________________
Death from intervening cause—
pneumonia— proximate cause (Henderson v. Louisiana Power
Co.)— Louisiana_______________________________________________
review (Valier Coal Co. v. Industrial Commission et al.)— Illinois.
Dependency—
claims—
marriage of injured employee (Gleason’s Case)— Massachu
setts______________________________________________________
wife living in foreign country (Gonsiorek et al. v. Inland Steel
Co.)— Indiana____________________________________________
construction of statute—
(Rasor v. Marshall Hall Grain Corporation et al.)— Missouridisobedience of rule (Triola et aL v. Western Union Tele
graph Co.)— Missouri____________________________________
marriage after injury occurs (Austin Co. v. Brown)— O hio..
divorced daughter residing with father— employment status
(Milwaukee Casket Co. et al. v. Kimball et al.)— Wisconsin__
evidence—
(Betor v. National Biscuit Co.)— Montana_________________
(Novak v. Industrial Commission et al.)— Illinois..................

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305

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307

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312

313

315
316

317
318
319
320
322
323
323
324

XVI

CONTENTS

Workmen’s compensation— Continued.
Dependency— Continued.
“ member of family” (Memphis Fertilizer Co. et al. v. Small et
al.)— Tennessee_______________________________________________
minor—
“ employee” (Clark et al. v. White et al.)— Wisconsin______
living apart from parent as ward of the State (Advance
Rumley Co. v. Freestone et al.)— Indiana________________
living with elder brother (Clark v. Appalachian Power Co.)—
Virginia___________________________________________________
marriage of widow (Reliance Coal & Coke Co. et al. v. Fugate
et al.)— Kentucky________________________________________
widow guilty of bigamous marriage (M. Martin Polokow
Corporation v. Industrial Commission et al.)— Illinois____
wife not lawfully married (Atlantic Bitulithic Co. v. Maxwell)—
G eorgia-.._____ _______________________________________________
Dependent— parent’s right to action (Bradley v. Swift & Co., Baltha
zar v. Swift & Co.)— Louisiana_____________________________________
Disability—
disfigurement— injury to teeth (Amalgamated Sugar Co. t;.
Industrial Commission et al.)— U ta h _________________________
fright— negligence (Chiuchiolo v. New England Wholesale Tai
lors)— New Hampshire_______________________________________
Election—
construction of statute— third-party liability (Tocci’s Case)—
Massachusetts_________________________________________________
ignorance of statute— third-party liability (Ott v. St. Paul Union
Stockyards)— Minnesota______________________________________
“ Employee”— evidence— causal connection— freezing as accidental
injury (Ferrara’s Case)— Massachusetts_______________________
Employers’ liability—
insurance company insolvent (Owners’ Realty Co. v. Bailey et
al.)— Maryland________________________________________________
medical and surgical treatment (Whiterock Mineral Springs Co.
et al. v. Horwatich et al.)— Wisconsin_________________________
Employment status—
casual employment— interpretation of statute (Corbett’s Case)—
Massachusetts_________________________________________________
charitable corporation— professional services (Renouf v. New
York Central R. Co. et al.)— New York______________________
construction of statute— review (El Reno Broom Co. et al. v.
Roberts et al.)— Oklahoma____________________________________
contract of employment (Hinds v. Department of Labor and
Industries of State of Washington)— Washington_____________
fraud (Ganga v. Ford Motor Co.)— Michigan-----------------------------general and special employers— loss of eye (Ideal Steam Laundry
et al. v. Williams)— Virginia___________________________________
independent contractor— course of employment— going and
coming rule (Globe Indemnity Co. et al. v. Industrial Accident
Commision of State of California et al.)— California__________
member of firm as employee— employer’s report (Swalley v.
Department of Labor and Industries)— Washington---------------minor— injury “ growing out of and incidental to ” employment
(City of Sheboygan et al. v. Traute et al.)— Wisconsin_______

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327
328
330
331
332
334
335

336
337

339
340
340

341
342

343
345
346
347
348
349

350
352
353

CONTENTS
Workmen’s compensation— Continued.
Employment status— Continued.
necessity— causal connection (Maryland Casualty Co. v. Gar
rett)— Texas__________________________________________________
powers, etc., of commission— third-party liability (Thompson
v. Kiester et al.)— Oklahoma__________________________________
volunteer (Nobles v. Texas Indemnity Ins. Co.)— Texas________
Evidence—
death from intervening cause (Jarnagin v. Wm. R. Warner & Co.
(Inc.) et al.)— Missouri_______________________________________
medical treatment refused— powers of courts to review (Creech
Coal Co. v. Smith et al.)— Kentucky________ *.________________
prior employer’s liability— second injuries (Martin v. Northern
Cooperage Co. et al., Same v. St. Paul Wreckage Co. (Inc.)
et al.)— Minnesota____________________________________________
Extraterritoriality—
elective statute (Industrial Commission of Ohio v. Gardinio)—
Ohio___________________________________________________________
injury arising out of and in course of employment— interpreta
tion of statute (Val Blatz Brewing Co. et al. v. Gerard et al.)—
Wisconsin_____________________________________________________
interpretation of statute— injury outside the State (Pederzoli’s
Case)— Massachusetts________________________________________
loss of eye— permanent total disability (Hargis v. McWilliams
Co. (Inc.))— Louisiana________________________________________
Failure to comply— jurisdiction— limitations— third-party liability
(State ex rel. Woods v. Hughes Oil Co.)— North Dakota__________
Fell ow-servant rule— safe place to work (Jutras v. Amoskeag Manu
facturing Co.)— New Hampshire___________________________________
Foreign guardian— failure to comply with statutory procedure— agree
ment (In re Bones, McBroom et al. v. Callahan Zinc-Lead Mining
Co. et al.)— Idaho___________________________ ______________________
Going to and from work—
causal connection— injury arising out of and in course of employ
ment (Van Gee v. Korts et al.)— New York___________________
injury arising out of and in course of employment (De Rosa et al.
v. Levering & Garrigues Co.)— Connecticut___________________
Hazardous employment—
common hazards— exemptions and exclusions (Pegg v. Postal
Telegraph & Cable Co.)— Kansas_____________________________
construction of statute— coverage (Bryant v. Meyer Coal, Ice,
Storage & Transfer Co.)— Kansas_____________________________
coverage— town marshal (Mashburn v. City of Grandfield et
al.)— Oklahoma_______________________________________________
Hernia—
causal connection (Industrial Commission v. Polcen)— Ohio____
preexisting condition— temporary total disability (Von Cloedt v.
Yellow Taxicab Co. et al.)— Missouri_________________________
Illegal employment— minor— violation of city ordinance (Walsh v.
Myer Hotel Co.)— Tennessee______________________________________
66588°— 31------ 2

XYII

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359

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361

362
364
366
367
370

371

372
374

375
377
378
379
380
381

xvm

CONTENTS

Workmen ’s compensation— Continued.
Independent contractor—
**employee ” (Phillips v. Tennessee Eastman Corp.)— Tennessee. _
employment status— usual course of business (Royal Indemnity
Co. v. Industrial Accident Commission et al.)— California____
evidence—
(Bradley’s Case)— Massachusetts___________________________
(Mallinger v. Webster City Oil Co. et al.)— Iowa___________
Injury arising out of and in course of employment—
act of God— cyclone (Baker v. State Industrial Commission et
al.)— Oklahoma________ _____ ___________________ _____ _______
assault— causal relation (January-Wood Co. v. Schumacher et
al.)— Kentucky_____________ ___________ _____ — .............. ........
award— public employment— policeman (Town of Presque Isle et
al. v. Rutherford)— Wisconsin_________________________________
burns (Dattilo’s Case)— Massachusetts__________________________
causal connection—
(Stakonis v. United Advertising Co. et al.)— Connecticut_____
construction of statute (Industrial Commission of Ohio v.
Dunham)— Ohio__________________________________________
common hazards— fall due to epileptic seizure (Andrews v. L. &
S. Amusement Corporation et al.)— New Y o rk _______________
“ employee”— death (Columbia County Highway Commission
et al. v. Peterson et al.)— Wisconsin___________________________
going to and from work—
(Howes 0. Stark Bros. Nurseries & Orchards Co. et al.)—
Missouri__________________________________________________
assault (Enterprise Foundry Co. et al. t;. Industrial Accident
Commission of California)— California___________________
street accident (Hasslen v. Carlson & Hasslen et al.)— Min
nesota__________ __________________________________________
horseplay—
(Brown v. Vacuum Oil Co.)— Louisiana____ - _______________
(Maddox et al. v. Travelers’ Insurance Co. et al.)— Georgia.
evidence (Baker v. Roberts & Beier et al.)— Iowa__________
interpretation of statute— limitation (Speas v. Boone County)—
Nebraska______________________________________________________
interstate commerce— act of personal convenience (Hanna v. Erie
R. Co.)— New Jersey__________________________________________
lead poisoning— time of contracting disability undeterminable
(Breault’s Case)— Massachusetts______________________________
lightning stroke— powers of the commission (Lickfett v. Jorgenson
et al.)— Minnesota____________________________________________
personal errand—
(Natol v. Booth & Flinn Co. et al.)— Oklahoma____________
(Taylor v. Hogan Milling Co. et al.)— Kansas______________
policeman— watchman (Wilson Berger Coal Co. v. Metcalf)—
Kentucky_____________ - _______________________________________
proximate cause—
evidence (McLain v. New Orleans Public Service (Inc.))—
Louisiana_________________________________________________
preexisting condition (Townsend Grace Co. (Inc.) et al. v.
Ackerman)— Maryland__________________________________ _

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383
384
385

387
387
389
390
391
393
394
395

396
398
399
400
401
402
403
404
405
406
407
409
409

410
411

CONTENTS
Workmen's compensation— Continued.
Injury arising out of and in course of employment— Continued.
review (Metropolitan Casualty Insurance Co. of New York et al.
v. Dallas)— Georgia___________________________________________
risk of the street— willful and intentional misconduct (Morse's
Case)— Massachusetts__________- _____________________________
street accident—
(Frigidaire Corporation et al. v. Industrial Accident Com
mission et al.)— California________________________________
(Klettke v. C. & J. Commercial Driveaway (Inc.) et al.)—
Michigan_________________________________________________
(Schofield's Case)— Massachusetts--------------------------------------errand for employer— (Kahn Bros. Co. et al. v. Industrial
Commission et al.)— Utah________________________________
watchman— evidence (McLaughlin v. Davis Lumber Co.)—
Alabama______________________________________________________
Intentional and willful acts—
violation of regulation— outside scope of employment (Seaman
Body Corporation v. Industrial Commission of Wisconsin et
al.)— Wisconsin_______________________________________________
violation of traffic law (Standard Accident Insurance Co. et al. v.
Pardue)— Georgia_____________________________________________
Jurisdiction—
extraterritoriality (State ex rel. Loney v. State Industrial Accident
Board et al.)— Montana______________________________________
independent contractor— in course of employment (Hill’s Case)—
Massachusetts_________________________________________________
powers of commission— review (United States Smelting, Refining
& Mining Co. v. Evans)— Utah_______________________________
Limitations—
employer withdrawing from compensation act— construction of
statute (Montello Granite Co. t». Schultz et al.)— Wisconsin
notice (Long v. Watts)— Kansas____ __________ - ________________
Lump sum—
basis of award (Bacon v. United Electric R. Co.)— Rhode
Island_________________________________________________________
settlement— review— powers, etc., of commission (Wakenva
Coal Co. v. Deaton et al.)— Kentucky________________________
“ totally incapacitated" (Texas Employers’ Insurance Association
v. Brock)— Texas______________________________________________
Medical and surgical treatment—
evidence— jurisdiction (Southern California Edison Co. v. In
dustrial Accident Commission et al.)— California_____________
liability of insurance carrier— limitations (Pacific Employers’
Insurance Co. v. French et al.)— California___________________
Medical etc., treatment refused—
negligence— injury to member (Du Pont Rayon Co. v. Bryant)—
Tennessee ___________________________________________________
release (American Mutual Liability Insurance Co. et al. v.
Braden)— Georgia______ •______________________________________

XIX

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413

414
415
416
417
418

419
420

421
422
423

424
425

426
428
429

430
431

432
433

CONTEXTS

Workmen’s compensation— C ontinued.
Minor—
dependent— employed parents (Purity Baking Co. v. Industrial
Commission et al.) — Illinois_____________________________ _____
violation of statute— loss of member— increased compensation
(Tesar v. National Ventilating Co. et al.)— New York________
Minor illegally employed—
construction of statute— lump sum (Associated Indemnity
Corporation v. Wilson)— Texas________________________________
double recovery (Dixon v. Pequot Manufacturing Corporation
et al.)— New York____________________________________________
Occupational disease—
accident— preexisting condition (Skelly Oil Co. v. Gaugenbaugh)— Nebraska____________________________________________
causal connection— Bright's disease— accident (Gunter v. Sharp
& Dohme (Inc.) et al.)— Maryland___________________________
lead poisoning (Carmossino’s Case)— Massachusetts____________
prior employer’s liability— causal connection— weakened condi
tion (Santini v. Levin et al.)— Connecticut___________________
Payment of debts from award— construction of statute ( Dimseath v.
Nevada Industrial Commission)— Nevada_________________________
Powers of industrial accident board— medical and hospital services—
unusual case (Meuse’s Case)— Massachusetts______________________
Public employee— construction of statute (Industrial Commission of
Ohio v. Rogers)— Ohio---------------------------------------------------------------------Purpose of employer’s trade or business— assault— place of injury
(Pendl v. Haenel et al.)— New York_______________________________
Review— powers of commission— preexisting condition— heart disease
(Martin v. State Compensation Commissioner)— West Virginia___
Rights of employee— third-party liability— construction of statute
(Hunt v. Bank Line (Ltd.) et *!.';*— Maryland_____________________
Subcontractor— coverage— double recovery (Swartz v. Conradis)—
Pennsylvania_______________________________________________________
Third-party liability—
construction of statute (Robinson v. McHugh et ux.)— Wash
ington_________________________________________________________
election— temporary medical services (City of Nashville v.
Latham) — Tennessee__________________________________________
release— subrogation (Jolly v. United Power & Light Corpora
tion)— Kansas--------- ----------------------------------------------------------------second injuries— independent contractor (Culbertson v. Kieckhefer
Container Co.)— Wisconsin___________________________________
Workmen’s compensation insurance:
Election— damages— burns (Moen v. Melin)— North Dakota________
Exclusion of part of employees— construction of statute— limited
policy (Ocean Accident & Guarantee Corporation (Ltd.) v. Indus
trial Accident Commission et al.)— California______________________

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450

451
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453
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457

BULLETIN OF THE

U. S. BUREAU OF LABOR STATISTICS
No. 548

WASHINGTON

OCTOBER, 1931

DECISIONS OF THE COURTS AND OPINIONS AFFECTING LABOR
1929-1930

Introduction
F o u r t e e n bulletins have preceded the present publication in a
series devoted to the presentation of decisions of courts and opinions
of the Attorney General construing and applying the labor laws of
the United States. Prior to the year 1912 publication was made in
the bimonthly bulletins of the Bureau of Labor Statistics and its
predecessors. Since that date annual volumes have been published
with the exception of the volumes for the years 1919,1920; 1923,1924;
1927,1928; and the present bulletin, which likewise covers two years,
1929 and 1930. The separate bulletins published since 1912 are num
bered 112, 152, 169, 189, 224, 246, 258, 290, 309, 344, 391, 417, 444,
and 517.
As in past years, the National Reporter System, published by the
West Publishing Co., St. Paul, Minn., is the chief source of the ma
terial used. The Washington Law Reporter was reviewed to secure
decisions of interest in the District of Columbia, and also the advance
sheets of the Opinions of the Attorney General for the Department
of Justice were examined for matters of interest. The current bulle
tin, however, contains no opinions from the Attorney General as none
construing labor statutes were received.
In selecting the decisions to be published, cases were chosen which
were of special interest and importance to labor in general and also
to students interested in the relation of employer and employee. De
spite the very general enactment of compensation laws a considerable
number of cases still come before the courts, even in compensation
States, involving suits for damages either under the common law or
its statutory modifications. These cases involve the fellow-servant
doctrine, negligence on the part of the employer, and the assumption
of risk by the employee, and are listed under the general heading
“ Employers5 liability.”

DECISIONS OF THE COURTS

The phrase “ injury arising out of and in the course of the employm ,nt,” found in most of the compensation laws of the United
States, apparently causes the greatest amount of controversy and the
most frequent appeals to the courts. A number of cases listed under
workmen’s compensation involve this question. Various phases of
child labor legislation are also involved in cases under employers’
liability and workmen’s compensation as incidental to the redress of
accidental injuries* Other cases involving legislation and rules of
law as applying to seamen, wages, and contracts of employment are
included. A variety of cases involving the status and power of
labor organizations in their different aspects and activities and the
constitutionality of a number of statutes relating to labor are also
included in this publication.
In the following presentation of individual cases, a brief state
ment of the facts in each case is given, and this is followed by the
conclusions reached by the courts, expressed either in the language
of the courts or in condensed form without quotation.
The decisions used in the present bulletin appeared in the follow
ing reporters for the years 1929 and 1930:
Federal Reporter, volume 29 (2d), page 1, to volume 44 (2d), page 280.
Supreme Court Reporter, volume 49, page 84, to volume 51, page 91.
Atlantic Reporter, volume 143, page 697, to volume 152, page 304.
New York Supplement, volume 231, page 489, to volume 245, page 712.
Northeastern Reporter, volume 163, page 769, to volume 173, page 552.
Northwestern Reporter? volume 222, page 145, to volume 233, page 464.
Pacific Reporter, volume 272, page 1, to volume 293, page 432.
Southeastern Reporter, volume 145, page 609, to volume 155, page 872.
Southern Reporter, volume 118, page 769, to volume 130, page 927.
Southwestern Reporter, volume 10 (2d), page 873, to volume 32 (2d), page
712.
Washington Law Reporter, volumes 57 and 58.

[Quoted matter in the decisions of cases reported in this bulletin has been punctuated
in accordance with the rules for punctuation laid down by the Government Printing
Office for Government publications and does not follow, in all cases, the reported
decisional

Decisions of the Courts

d m ir a l t y —

m ployers’

ia b il it y —

ffect

State

Law —

Northern Cooil & Dock Go. et al. v. Strand et al., Supreme Court of the United Stales (December 10, 1938), 1ft Supreme
Court Reporter, page 88.— The Northern Coal & Dock Co., an Ohio
corporation whose business was mining, hauling, and selling coal,
maintained a dock on Superior Bay, Wis., where it received and un
loaded coal brought by vessels from other lake ports. Charles
Strand was employed by the company to assist in unloading these
vessels, along with some 17 other men regularly employed. On
October 10, 1924, while on the steamer Matthew Andrews assisting,
as his duties required, in the discharge of her cargo, he was struck
by a clamshell and instantly killed.
The widow, Emma Strand, asked the Industrial Commission of
Wisconsin for an award of death benefits against the employer and
insurance carrier. The commission found Strand and his employer
subject to the State compensation act (Wis. Stat., sec. 102.01 et seq.)
and awarded benefits. To review this award the employer brought
an action in the Dane County circuit court. That court sustained
the award and the Wisconsin Supreme Court approved its action.
The case was then carried to the Supreme Court of the United States.
The opinion of this court was rendered by Mr. Justice McReynolds,
who said the right of the parties must be ascertained upon a con
sideration of the maritime law, for Strand was doing stevedore work
on a vessel in navigable waters when killed and the tort was
maritime. He continued, in part, as follows:
S tevedore —

The unloading of a ship is not matter of purely local concern. It
has direct relation to commerce and navigation, and uniform rules in
respect thereto are essential. The fact that Strand worked for the
major portion of the time upon land is unimportant. He was upon
the water in pursuit of his maritime duties when the accident
occurred.
In regard to the question whether the Wisconsin workmen’s com
pensation law applies, the court said, “ the State has no power to
impose upon an employer liabilities of that kind in respect of men
engaged to perform the work of stevedores on shipboard.” How

DECISIONS OF THE COURTS

ever, section 20 of the merchant marine act was cited as applying in
this case. It reads as follows:
S e c . 20. That any seaman who shall suffer personal injury in the
course of his employment may, at his election, maintain an action for
damages at law, with the right of trial by jury, and in such action
all statutes of the United States modifying or extending the commonlaw right or remedy in cases of personal injury to railway employees
shall apply; and in case of the death of any seaman as a result of
any such personal injury the personal representative of such seaman
may maintain an action for damages at law with the right of trial by
jury, and in such action all statutes of the United States conferring
or regulating the right of action for death in the case of railway
employees shall be applicable. Jurisdiction in such actions shall be
under the court of the district in which the defendant employer
resides or in which his principal office is located.
In the case of International Stevedoring Co. v. Haverty (272
U. S. 50, 52, 47 Sup. Ct. 19) the Supreme Court ruled that within
the intendment of the merchant marine act—
“ Seaman ” is to be taken to include stevedores employed in mari
time work on navigable waters as the plaintiff was.
Mr. Justice McKeynolds cited cases previously decided by the
Supreme Court holding the employers5 liability act to be “ compre
hensive and exclusive ” regarding State statutes, and that “ section
20, act of March 4, 1915, as amended by the merchant marine act,
incorporated the Federal employers’ liability act into the maritime
law of the United .States.”
He concluded the opinion by saying:
We think it necessarily follows from former decisions that by the
merchant marine act— a measure of general application— Congress
provided a method under which the widow of Strand might secure
damages resulting from his death, and that no State statute can
provide any other or different one.
The judgment of the lower court was reversed.
A minority opinion was rendered by Mr. Justice Stone in which
Mr. Justice Holmes and Mr. Justice Brandeis concurred. Mr. Jus
tice Stone said that he “ should have found it difficult to say that the
present case is controlled by the maritime law, and so to suggest that
workmen otherwise in the situation of the respondent, but who are
not seamen and therefore are not given a remedy by the Jones Act,
are excluded from the benefits of a compensation act like that of
Wisconsin.” Continuing, Mr. Justice Stone said:
The State act here is contractual, as we have held in Booth
Fisheries Co. v. Industrial Comm. (271 U. S. 208, 46 Sup. Ct. 491),
and the employer is bound to pay compensation in accordance with
the schedules of the act because the parties have agreed that they
shall apply rather than the common or any other applicable law.
The employer, a wholesale coal dealer, owned or controlled no ships

ADMIRALTY

and, except that it owned a dock at which coal was delivered to it
from ships, had no connection with maritime affairs. The em
ployee’s regular work was nonmaritime, and he spent but 2 per cent
of his time unloading his employer’s coal from ships. To me it
would seem that the rights of parties who have thus stipulated for
the benefits of a State statute in an essentially nonmaritime employ
ment are not on any theory controlled by the maritime law or within
the purview of Southern Pacific Co. v. Jensen (244 U. S. 205, 37
Sup. Ct. 524).
Nor would it seem that resort by an employee only casually work
ing on a ship through such a nonmaritime stipulation to a State
remedy not against the ship or its owner, but against the employer
engaged in a nonmaritime pursuit is anything more than a local
matter or would impair the uniformity of maritime law in its inter
national or interstate relations.

A d m i r a lt y — E m p lo y e r s’

L ia b ility — S a fe

P la c e

an d

A p p li

Watkins v. Jahncke
Dry Docks {Inc.), Court of Appeal of Louisiana (December 16,
1929), 125 Southern Reporter, page 469.— W illia m B. Anderson was
a n ces— A ssu m p tio n

R is k — J u r isd ic tio n —

em ployed on the d ry dock o f a steam ship floating in the M ississippi
and owned b y the Jahncke D r y D ocks ( I n c .) .

A n d erson and two

assistants were w orkin g on a scaffold constructed o f
ladders across w hich boards had been placed.

fo u r

step-

As a result o f the

breaking o f one o f the boards on which A n derson was standing, he
fe ll about 20 feet to the floor o f the dock and sustained injuries from
which

he died

nearly

tw o

weeks

later.

F rom

the

evidence

appeared th at—

It became apparent that the planking on which Anderson was
working was not sufficiently wide to afford him reasonable safety,
and he caused his two helpers to descend to the deck of the dry dock
to select and hand up to him additional planks.
Near the ladders there were a few planks, and at about 50 or 75
feet away (so defendant claims) there was a pile of others of various
sizes and grades. Anderson’s helpers handed him a plank which
was near the ladders, but he, noticing a knot almost entirely across
it, rejected it. His helpers then went to the larger pile of lumber
to make a better selection. When they returned some one had placed
in position across the ladders boards where it was intended that
those for which they had gone should be placed, and they did not
hand up the ones which they had brought. A short time later one
of the boards, which had been handed up and placed, broke and
Anderson fell.
Plaintiff charges that one Stinespring, who was superior in author
ity to Anderson, had ordered the particular board to be placed on
the scaffold, and she claims that Anderson was justified in relying
on Stinespring’s superior judgment. Stinespring denies that he had
anything to do with the board and states that he was working on the
other side of the vessel,

DECISION'S OF THE COURTS

Suit was filed by the widow in the civil district court, Parish of
Orleans, La,, and a verdict was rendered in her favor. The Jahncke
Dry Docks (Inc.) appealed the case to the Court of Appeal of Louis
iana, contending (1) that the State courts did not have jurisdiction,
as the question was maritime, (2) that the Dry Docks (Inc.) was not
guilty of negligence, and (3) that the risk was assumed by Ander
son. The court held the State court did have jurisdiction over the
case and that—
The United States Supreme Court has several times held that the
question of jurisdiction as between the Federal courts and the State
courts is not involved in matters of this kind, and that the State
courts may decide the issues presented, subject only to the limitation
that the remedy which the State court may afford shall be such
remedy as is provided by the “ common law ” as distinguished from
some special remedy furnished by particular legislation, such as State
compensation statutes* The right in the State court to proceed
with a matter of this kind results from the saving clause in the
judiciary act of the United States of 1789, section 9, which is now
contained in the third paragraph of section 256 of the United States
Judicial Code (28 U. S. C. A ., sec. 371), which, in matters of ad
miralty and maritime jurisdiction, vests exclusive jurisdiction in the
courts of the United States, but which saves “ to suitors in all cases
the right of a ‘ common-law ’ remedy where the common law is
competent to give it.”
Eegarding the second and third contentions, the court quoted the
general rule as stated in Griffin & Son v. Parker (129 Tenn. 446,
164 S. W . 1142) :
The general rule is that an employer is bound to use reasonable
diligence to furnish the employee a safe place and safe instrumental
ities for the work to be done; but an exception exists in case of a
scaffold where the employer supplies ample material of good quality
and competent labor for the construction of such appliance, which
he is not required to furnish in a completed state, and which the
employees, within the scope of their employment, are themselves
required to construct. In such case the employer is not liable to one
of the workmen for the negligence of a fellow servant in the con
struction of the scaffold.
It was contended, however, by the counsel for the widow that
Anderson was forced to accept the repair and alteration of the
scaffold, in this case, as it was done by his superior.
In concluding the opinion the court said:
Whether or not the circumstances were such that a man of Ander
son’s experience should have noticed the defect in the board is entirely
a question of fact, as is the question of who in fact placed the board,
or ordered it placed. The testimony on these points, as it appears in
cold type in the record, does not appear to us to preponderate either
way, and therefore we do not feel justified in reversing the judge
a quo, who saw the witnesses and was therefore in better position to

ADMIRALTY

weigh the evidence. The fact that the accident happened at night,
and that therefore Anderson’s vision was to some extent limited, and
that consequently he did not notice a defect which in daylight might
have been apparent, is a circumstance which was no doubt taken into
consideration by the judge a quo.
Since we believe that the defendant is liable, it becomes necessary
for us to consider whether or not the amount allowed by the trial
court, $7,000, is adequate. Anderson suffered considerably and did
not die until nearly two weeks after the accident. He had been
earning nearly $200 a month. His age was 52. Taking all these
matters into consideration, we are of the opinion that the amount
allowed was not sufficient and was somewhat below the amounts
allowed in similar cases heretofore. It seems to us that $10,000
would be more nearly correct.
It is therefore ordered, adjudged, and decreed that the judgment
appealed from be amended by increasing the amount thereof to
$10,000, and as thus amended, affirmed.

d m ir a l t y —

F ederal

w o r t h in e s s — Slavey

L ia b il it y

S t a t u t e — N eg lig en ce — U

nsea-

v. Cromwell, District Court, District of Massa
chusetts (.February 20,1980), 88 Federal Reporter (2d), page 801±.—
George J. Slaney was a member of the crew of the schooner Henrietta
which was fishing on the fishing grounds in the Atlantic Ocean,
southeast of Cape Cod, On the 13th day of March, Slaney was
fishing from a “ single dory” and by order of the captain of the
schooner had put out in his dory for a second time that day to con
tinue the day’s fishing; a heavy fog came up and shut off the view
of the vessel from Slaney’s dory. On account of the fog and his
inability to locate the schooner, Slaney went astray and his life was
lost.
Annie M. Slaney, administratrix, filed suit against the employer
to recover for loss of life at sea, under the merchant marine act
(46 U. S. C. A., sec. 688). She alleged two causes for the liability
of the employer; namely, the negligence of the employer and his
agents in failing to keep the whistle in working condition so that
Slaney could be informed of the schooner’s location, and the failure
of the employer to supply the vessel with proper equipment and
appliances to enable Slaney to locate the schooner in time of fog.
Cromwell, the employer, made the contention that the declara
tion set out two distinct claims for the same loss of life, the first
based on the negligence of the master or crew and the second on de
fective and insufficient equipment; that these claims were alternative
and inconsistent and could not be joined in an action under the
Jones Act.
However, District Judge Brewster did not agree with this conten
tion, and held that the only difference between the two counts was

DECISIONS OF THE COURTS

that they described different acts of negligence. The case of Balti
more Steamship Co. v. Phillips (274 U. S. 316, 47 Sup. Ct. 600) was
cited, in which case Mr. Justice Sutherland, in dealing with the
effect of the merchant marine act made this observation:
The effect by virtue of * * * that act (Federal employers’ lia
bility act (45 U. S. C. A ., secs. 51-59)) is to give a right of action for
an injury or death resulting in whole or in part from the negligence
of any of the officers, agents, or employees of the ship, as well as for
an injury or death resulting from defects due to negligence, etc., and
irrespective of whether the action is brought in admiralty or at law.
In concluding the opinion Judge Brewster held that the counts in
the declaration of the administratrix were not for distinct incon
sistent claims, and while they might well have been incorporated in
a single count they did not set up two separate and inconsistent
causes of action precluding joinder.
The judgment was therefore rendered in favor of the adminis
tratrix.
A d m i r a lt y — J u r isd ic tto n — U n s e a w o r th in e s s — F e d e r a l

and

S t a t e L a w s — Lindgren v.

United States et al.. Supreme Court of the
United States (Feb'i^uary 2 ^ 1930), 50 Supreme Court Reporter, page
207.— I n 1926, one B a r fo r d was a seam an em ployed as th ird m ate on
a m erchant vessel owned b y the U n ited States, ly in g in a floating dry
dock at the port o f N o r fo lk , Y a .

W h ile w orkin g in a lifeb o at sw in g

in g on the vessel’s davits, he was th row n to the dock b y the sudden
release o f one end o f the lifeboat and instan tly killed.

An action

was brou gh t by the adm inistrator o f the estate o f B a r fo r d in the
U n ited States D istrict C ourt fo r E astern V ir g in ia .

This court fou n d

that B a r fo r d ’s death was caused by the unseaw orthy device used in
the lifeb o at, and held that—

Although the administrator could not recover under the merchant
marine act, applying the rule under the Federal employers’ liability
act, since the surviving nephew and niece were not dependent, he was
entitled to recover under the Virginia death statute, which provided
that a personal representative might maintain a suit for damages on
account of the death of a person caused by the wrongful act of an
other— under which dependency was not a necessary condition and
the probable earnings of the decedent might be shown; and fixed the
damages under this statute at $5,000, for which the administrator
was given a decree against the United States.
On appeal the circuit court of appeals denied the right of action of
the personal representative and held that the merchant marine act
(46 U. S. C. A., sec. 688) was exclusive and superseded the Virginia
statute. The case was then carried by the administrator to the
United States Supreme Court.

ADMIRALTY

The Supreme Court, speaking through Mr. Justice Sanford,
pointed out the modifications in the maritime law by the merchant
marine act which gave to personal representatives of seamen whose
death had resulted from personal injuries, the right to maintain an
action for damages in accordance with the Federal employers’ liabil
ity act. After citing cases to show the development of the court’s
interpretation of the act, the court said, in part, as follows:
We conclude that the merchant marine act— adopted by Congress
in the exercise of its paramount authority in reference to the mari
time law and incorporating in that law the provisions of the Federal
employers’liabilitv act— establishes as a modification of the prior mari
time law a rule or general application in reference to the liability of
the owners of vessels for injuries to seamen extending territorially
as far as Congress can make it go; that this operates uniformly
within all of the States and is as comprehensive o f those instances in
which by reference to the Federal employers’ liability act it excludes
liability, as of those in which liability is imposed; and that, as it
covers the entire field of liability for injuries to seamen, it is para
mount and exclusive, and supersedes the operation of all State stat
utes dealing with that subject.
It results that in the present case no resort can be had to the Vir
ginia death statute, either to create a right of action not given by the
merchant marine act, or to establish a measure of damages not pro
vided by that act.
A d m i r a l t y — M a i n t e n a n c e a n d C ure — N e g l i g e n c e — U n s e a w o r t h

Nelson v . The William Nelson, District Court, Western Dis
trict of New York (April 19,1929), 33 Federal Reporter (£rf), page
539.— Charles Nelson was a fireman aboard the steamer The William
Nelson and was directed by the first assistant engineer to clean out the
combustion chamber of the fire box. After he had crawled into the
fire box with a shovel and a hose, some one outside the box turned
on the hose and water instantly filled the fire box with steam and
ashes, as the interior had not sufficiently cooled. Nelson suffered
burns on his arm; and his back, knee, left elbow, and right hip were
also injured.
He fifed suit against the steamship alleging negligence because of
its failure to station a man outside the fire box to turn on the hose
when so directed by him and further that the first assistant engineer
was negligent in sending him into the chamber before it had suffi
ciently cooled.
The court, however, found that the steamship was not unseaworthy
and that no defect in her boiler contributed to the injury. Also no
maritime tort for which a maritime lien arose resulted from the act
of the first assistant engineer or his fellow servants or by their failure
to act. For these reasons the court held there could be no recovery of
in e s s —

DECISION'S OP THE COURTS

indemnity for the injuries sustained. However, the court found Nel
son was entitled to maintenance and cure and awarded him $60 as
doctor’s fee and $250 to compensate him for other expenses for treat
ment to relieve his condition.

d m ir a l t y —

ages

S e a m e n — P u b l ic

d m in ist r a to r —

In re Buckley et al., District Court, District of Mas
sachusetts {July 11, 1929), 83 Federal Reporter {2d), page 615.— One

c l a im e d

ages —

Leveroni was appointed by the probate court o f Su ffolk C ou n ty,

Mass., adm inistrator o f 10 deceased seamen who were mem bers o f the
crew o f the steam ship Daniel C. Reed and were lost when she fo u n d
ered at sea in October, 1928.

T h ey belonged to various countries, 2

to the U n ited States, 3 to the P h ilip p in e Isla n d s, 1 to H a w a ii, 2 to
Sw eden, 1 to D en m ark, and 1 to Russia.

The question involved in this case was whether Mr. Leveroni, a
public administrator of Massachusetts, was entitled to receive the sum
paid to the shipping commissioner as wages of the deceased seamen.
Claims had also been filed by the vice consul of Denmark for the
wages of the seaman who was a national of that country, and by one
W . H. Scott, of Portland, Oreg., appointed by the courts of that
State as administrator of Buckley who was a resident of Portland;
and Cresenciana Legazpi, as widow of one of the Filipino seamen,
had filed a claim for his wages. In explaining the case, District
Judge Morton said in part as follows:
Considering first the cases in which no claim has been filed except
Mr. Leveroni’s: The United States attorney has appeared and ob
jected to the payment of the funds to the public administrator, the
ground for his objection being that, if the wages are paid over to Mr.
Leveroni and no next of kin of these decedents are discovered, the
estates will escheat to the Commonwealth, while, if left in the registry,
they will’ find their way into the Treasury fund for disabled and sick
seamen, and that the United States is therefore interested to protect
the Treasury fund.
There can be no doubt as to the power of Congress to provide for
the disposition of the wages and effects of seamen who die in service.
It has undertaken to do so by statutes which provide a complete
scheme of disposition. (Rev. Stat., secs. 4544, 4545.) These sections
recognize that the amounts involved will generally be small, that
the persons entitled to them will often be remote, poor, and unused to
business, and that the money ought to be paid to them with the least
possible trouble and expense. Where the amount is less than $300
the whole matter is therefore left to the discretion of the district
judge to make payment to the person who appears to him to be justly
entitled to the wages. Above that amount payments can only be made
to “ the legal personal representative of the deceased; ” i. e., to his
administrator or executor.

ADMIRALTY

Leveroni contended that, as he had been appointed administrator
by the probate court, he was by right entitled to the amounts over
$300, and that as to the amounts under $300 the court ought in its
discretion to pay them over to him. On the other hand, it was con
tended that the court had no jurisdiction to appoint an administrator
and that a public administrator was not a “ legal personal repre
sentative ” within the meaning of the statute.
The court held that as the wages in the registry were funds within
the Commonwealth the court had jurisdiction to appoint an adminis
trator, and, further, that a “ legal personal representative of the
deceased 55 as there used did include a public administrator. The
court concluded the opinion by saying:
The Commonwealth has no equitable claim on this money. I f
unclaimed, it ought to go where the Federal statute places it; i. e.,
into the fund to help other seamen who are ill or disabled. Because
such funds are paid to an administrator, it does not follow that
they will, if unclaimed, escheat to Che Commonwealth. The adminis
trator takes them to be disposed of according to Revised Statutes,
section 4545; i. e., if no claimant appears, they are to be paid, less
the reasonable expenses of the administration, into the United States
Treasury fund.
It follows that the wages of Golden, which amount to over $300,
will be paid to the petitioner, there being no other claim to them.
In the case of Banal there is a claim by his widow, who lives in the
Philippines. As this amount also is over $300, there must be admin
istration. I see no reason why the public administrator’s appoint
ment should not be recognized. It is for the probate court to say
whether he ought to be superseded by an administrator nominated
by the widow. In both these cases the clerk of this court is to receive
notice of the presentation of the administrator’s final account. In
the case of Buckley, payment may be made to Scott, administrator,
who is acting for the decedent’s father and mother. In the case of
Jensen, the money may be paid to the Danish vice counsel [consul]
on satisfactory proof— it may be by affidavit—that there are next of
kin for whom he is acting. In the other cases the funds are to
remain in the registry.
A d m i r a l t y — W o r k m e n ’s C o m p e n s a t io n — E f f e c t o f S t a t e L a w —
J u r i s d i c t i o n —Merchants'

<& Miners’ Transportation Co. v. Norton
et al., District Court, Eastern District of Pennsylvania {April 16,
1929), 32 Federal Reporter (2d), page 513.— Yigo A . Zachariasen
was employed by the Merchants’ & Miners’ Transportation Co. on
an hourly compensation basis, and he performed his work when and
where on land or sea as directed. He had been directed to go aboard
the steamship Tuscan moored at the pier to repair a dynamo. He
had occasion in the course of his employment to go from the ship
to the pier a distance of about 3 feet, connected by a ladder. As he
was getting off the last rung, the ladder tilted or in some way was

DECISIONS OF THE COURTS

displaced, so that he was precipitated into the water and was
drowned. On October 18, 1928, a petition was filed by the widow
for compensation under the longshoremen’s and harbor workers’ act
(33 U. S. C. A ., secs. 901-950). The deputy commissioner filed an
order for compensation, and the Merchants’ & Miners’ Transporta
tion Co. filed this suit to restrain the enforcement of the order
granting compensation. In delivering the opinion of the district
court, Judge Dickinson said:
The right of recovery in the instant case is thus dependent upon
three findings (ignoring features not in controversy): (1) The
affirmative one that the death resulted from an occurrence “ upon
navigable waters” : (2) the negative one that the laws of Pennsyl
vania do not “ validly provide ” for workmen’s compensation of
which the claimant might avail herself; and (3) that the claimant
before the commissioner is the rightful claimant. The commis
sioner has made all of these findings in favor of the claimant by
making an order in her favor.
The appellate revision by the courts is restricted to the question
of whether the order has been made “ in accordance with law.”
The facts must thus be assumed to be as found. This reduces the
controversy presented to one of whether the benefits of a like law
have been “ validly provided by a State law.” Broadly stated, they
have. This further reduces the question to one of the conflict of the
State law with that of the law maritime. The test of this is in the
application of two propositions: (1) That the law maritime must be
preserved in its integrity, unaffected by State legislation; but that
(2) a State law relating to the subject of the relations and liabilities
of employers and employees, which is of local application only and
which does not affect the general law maritime, may operate with it.
The counsel for the Merchants’ & Miners’ Transportation Co. con
tended (1) that “ the State law (Pa. Stat. 1920, sec. 21916 et seq.)
does apply to the employment now under consideration, and (2) that
this State law is so far local in its application and effects as that
it may be in existence and enforced alongside of and along with
the law maritime.” (Cases cited.) In regard to this contention the
court said:
Upon a cursory reading of these cases it would be gathered that
the Pennsylvania compensation law applied in the instant case, and
in consequence that the United States statute was by its terms in
operative. When, however, these cases are read in the light of
Northern Coal & Dock Co. v. Strand (278 U. S. 142, 49 Sup. Ct.
88), the cases referred to above may be given a wholly different
meaning.
Upon the authority of the Strand case the court decided the State
law was not a “ valid” law. The bill filed by the Merchants’ &
Miners’ Transportation Co. was therefore dismissed. A motion for
reargument was denied after the court explained more fully the
similarity between the Strand case and the case at bar.

DECISIONS OF THE COURTS
A d m i r a lt y — W o r k m e n ’s

C om p en sation — E v id en ce — A w a r d —

Grays Hcorbor Stevedore Go. et al. v. Marshall et al., Rothschild &
Co. et al. v. Same, District Couort, Western District of Washington
( December 16, 1929), 86 Federal Reporter (2d), page 814.— Separate
proceedings were m ade b y the G ray s H a rb o r Stevedore Co. and by
R othsch ild & Co. against W illia m A. M a rsh a ll, deputy com m issioner
of

the

U n ited

States

E m p lo y ee s’ C om pensation

C om m ission, to

review and set aside certain com pensation awards m ade under the

(33 U. S. C. A.,
902 et se q .). It was contended th at no evidence was presented to

longshorem en’s and harbor workers’ compensation act
sec.

support the awards.

In the second case the evidence disclosed that the employee testi
fied that on March 11, 1929, while engaged in lifting he u was hurt
in the back * * * got a wrench in my back, * * * I couldn’t
continue with no work, * * * I had to quit
that thereupon he
drove his car to the hospital, and he is “ still disabled.”
During the hearing the doctors testified that for years the em
ployee “ had been and now is afflicted with arthritis of the spine,
which might disable him at any time; that his lifting aggravated
that condition; and that his present condition rendered it doubtful
if he could presently engage in hard labor.” The court set aside the
award, as the evidence was insufficient, saying, in part:
The evidence is scanty, ambiguous, indefinite, and uncertain in
respect to the elements of effect, continuity, and time, and is not
legally sufficient to warrant what appears to be the deputy’s arbi
trary finding. Neither expressly nor by reasonable implication does
it appear that the employee has been continuously or at all totally
disabled in respect to any and all employment.
Adverting to the first case, the deputy commissioner found that
by reason of injury to his foot the employee suffered temporary total
disability for 67 weeks and permanent partial disability equivalent
to 25 per cent of a foot lost, and he awarded compensation for the 67
weeks plus 25 per cent of 205 weeks. The court held that under
33 U. S. C. A., section 908 (c) (22), compensation for temporary total
disability by reason of injury to a foot is limited to the extent of
the total period in excess of 32 weeks, in addition to a percentage of
205 weeks by reason of permanent partial disability. However, as
the employee’s disability was largely due to a bunion aggravated by
the injury, the court ruled that the evidence in this case was also
insufficient and set aside the award.
Both cases were therefore remanded to the deputy commissioner
with instructions to proceed in accordance with the ruling of the
court.
(56588°— 31------ 3

DECISIONS OF THE COURTS

A dmiralty — W o rkm en ’ s C ompensation — F ederal an d S tate
L a w s — Employers5 Liability Assurance Corporation ( Ltd .) of Lon
don, England, v. Cook et al., Supreme Court of the United States
(April H , 1930), 50 Supreme Court Reporter, page 808.— In January,

1927, while regularly employed by the Ford M otor Co., H a l Cook
was instructed as “ a part o f his contract o f employment to assist in
unloading cargo ” from the steamship Lake Gorian at Houston, Tex.
W h ile at work in the hold o f the vessel he received serious injuries,
from which, it was asserted, he died.

The Ford Motor Co. carried a policy of workmen’s compensation
insurance with the Employers’ Liability Assurance Corporation,
which undertook to protect the assured against loss by reason of
injuries to its employees. Mrs. Myrtis Cook, purporting to proceed
under the workmen’s compensation act of Texas (Rev. Stat. 1925,
arts. 8306-8309), presented to the industrial accident board a claim
for compensation against both the motor company and the insurer
because of Cook’s death. This was denied upon the ground that
the death “ was due to a condition in no way incident to or associated
with his employment.” She refused to abide by the action of the
board and brought a suit in the State court. The cause was removed
to the United States district court, where a judgment was entered
in the widow’s favor. Appeal was taken to the Circuit Court of
Appeals for the Fifth Circuit, which held:
We think it fairly can be said that the matter of unloading these
two ships of the Ford Motor Co. at rare intervals was “ of mere local
concern, and its regulation by the State will work no material preju
dice to any * * * feature of the general maritime law.”
The case was then appealed to the United States Supreme Court
for review. Mr. Justice McReynolds, delivering the opinion, said
in part:
The record plainly discloses that, while in the course of his employ
ment and at work in the hold assisting in unloading a vessel afloat on
navigable waters, Cook received injuries out of which this suit arose.
There is nothing in principle to differentiate this case from Northern
Coal Co. v. Strand (278 U. S. 142, 49 Sup. Ct. 88), and the judgment
of the circuit court of appeals must be reversed. (Nogueira v. New
York, N. H. & H. R. Co., 50 Sup. Ct. 303.)
The proceeding to recover under the State compensation act neces
sarily admitted that the decedent was employed by the insured when
injured. Any right of recovery against the insurance carrier de
pends upon the liability of the assured. Whether Cook’s employment
contemplated that he should work regularly in unloading vessels or
only when specially directed so to do is not important. The unload
ing of a ship is not matter of purely local concern as we have often
pointed out. Under the circumstances disclosed, the State lacked
power to prescribe the rights and liabilities of the parties growing
out of
The fact
the compensation law of the State

the accident.

that

Al>M lB Ai/re

was elective in form does not aid the respondents. The employer did
not surrender rights guaranteed to him by the Federal law merely by
electing to accept one of two kinds of liability in respect of matters
within the State’s control, either of which she had power to impose
upon him.
The judgment of the court below must be reversed. The cause will
be remanded for further proceedings in conformity with this opinion.
Mr. Justice Stone rendered a dissenting opinion, in which Mr.
Justice Holmes and Mr. Justice Brandeis concurred. This opinion
was based upon the view that the local compensation law should
apply when the workman is not given a remedy by the Jones Act
and not within the purview of the Federal employers’ liability act
(45 U. S. C. A., sec. 51).

A dmiralty — W o rkm en ’ s

C ompensation — F ederal

and

S tate

L aws — John Baizley Iron Works et al. v. Span, Supreme Court of

the United States {April
1929), 50 Supreme Cow't Reporter, page
806.— Abraham Span, an employee o f the John Baizley Iron W orks
o f Philadelphia was injured while working on board the ship Bald
Hill, tied up at a pier in the Delaware River at Philadelphia. Span
had gone on board the ship to paint angle irons and to do some repair
work in the engine room o f the vessel, and while so employed sparks
from an acetylene torch used by a fellow employee struck his eyes,
causing serious injuries. A compensation claim was filed by Span
with the Pennsylvania W orkm en’s Compensation Board, and upon
a hearing before a referee an award was granted. The employer
appealed the award and judgment successively to the State compen
sation board, the court o f common pleas, the superior court, and the
State supreme court, the award in each appeal being upheld.

Span, in upholding his claim to compensation under the State act,
contended that he was doing work of a nature which had no relation
to navigation or commerce. The Pennsylvania Supreme Court de
clared that the insurance carrier could be held only to such liabilities
as may be imposed on the employer, and held that when Span was
injured he “ was doing work of a nature which had no direct relation
to navigation or commerce.”
The employer thereupon carried the case to the United States
Supreme Court, which court did not concur in the view expressed by
the Pennsylvania Supreme Court, and in a divided opinion held that
the work which Span was performing was directly related to naviga
tion and com’merce. Mr. Justice McReynolds, in delivering the opin
ion of the court, said in part that—
The Bald Hill had steamed to Philadelphia for necessary repairs.
She was a completed vessel, lying in navigable waters; the employer,
iron works, was engaged in making repairs upon her, painting the

DECISIONS OF THE COURTS

engine room and repairing the floor; the claimant went aboard in the
course of his employment and was there engaged about the master’s
business when hurt. Obviously, considering what we have often said,
unless the State workmen’s compensation act (Pa. Stat. 1920, sec.
21916 et seq.) changed or modified the rules of the general maritime
law, the rights and liabilities of both the employer and the employee
in respect of the latter’s injuries were fixed by those rules, and any
cause arising out of them was within the admiralty jurisdiction.
The judgment of the State court was therefore reversed.
Mr. Justice Stone filed a dissenting opinion which was concurred in
by Mr. Justice Holmes and Mr. Justice Brandeis. The dissenting
opinion was based on the authority of Kosengrant v. Havard (273
U. S. 664) in which recovery was allowed under the local compen
sation law on the ground that the contract of employment had no
relation to navigation and was nonmaritime.

d m ir a l t y —

o r k m e n ’s

C o m p e n sa t io n — P la c e

cc id e n t —

E vidence — Pocahontas

Fuel Co. {Inc,) et al. v. Monahan, Deputy
Commissioner, et al., District Court, Southern District of Maine
{August 8. 1929), 34 Federal Reporter { M ) , page 549.— This action
was brought by the Pocahontas Fuel Co. to set aside an award of
compensation made by the deputy commissioner of the first district
under the provisions of the Federal longshoremen’s and harbor work
ers’ compensation act (3 3 U. S. C . A., secs. 901-950).
The company claimed the above act did not apply and that the
commissioner had no jurisdiction because there was not sufficient
evidence that the death resulted from an injury occurring upon the
navigable waters of the United States.
The court held that the evidence establishing the fact of injury
would necessarily establish the place where the injury occurred.
From the facts it appears that—
The deceased employee was at work in the hold of the ship on the
morning of the accident, cleaning down coal from the beams or
stringers overhead. A fellow workman testified that the last he saw
of the deceased he was picking up lumps of coal and throwing them
at the lumps on the beams to knock them down. No one saw the
accident. Presently the deceased was seen on the wharf holding his
hand to his head, evidently requiring assistance, and made the state
ment, upon inquiry, that he had been struck on the head by a lump
of coal. There was a cut on his head; and on the way to the hospital
where he was taken immediately he made a further detailed statement
to the same effect.
Continuing, the court said:
While his statement that he was struck on the head by a piece of
coal is not corroborated bv any witness who saw the actual occur
rence, there is ample justification from all the evidence and the cir

BLACKLIST

cumstances for the conclusion that the accident occurred on the ship,
and therefore that the longshoremen’s compensation act applies.
This being the case, it is apparent that no conclusions of the deputy
commissioner can be disturbed as not being in accordance with the
law, because they have evidence to support them.
Concluding the opinion, the court said:
The deputy commissioner is given wide authority; his findings are
conclusive if there is any evidence to support them. Having found
that he was justified in taking jurisdiction in the matter, I am not
authorized to interfere unless it appears that his proceedings were
not in accordance with law, and I can not say that such is the fact.
The bill was therefore dismissed and the decision of the lower
court affirmed.
B l a c k l i s t — D a m a g e s — I n t e r f e r e n c e w i t h E m p l o y m e n t — Goins
v. Sargent et al., Supreme Court of North Carolina (January 9,
19t9), lift Southeastern Reporter, page 131.— David Goins, a stone
cutter, prior to January 1,1922, was employed by the North Carolina
Granite Corporation. The corporation discharged him because of
his union membership and refused to deliver stone from its quarry to
any stonecutter employing Goins. He failed to obtain other employ
ment in North Carolina and was compelled to go to other States to
obtain employment at his trade. He filed suit against the corpora
tion and others for damages caused by their action in dismissing
him and in blacklisting him. The superior court, Surry County,
N. C., rendered a verdict in favor of Goins and the corporation
appealed to the North Carolina Supreme Court.
Section 4477 and 4478 of the consolidated Statutes of North Caro
lina of 1919, which are sections 1 and 2 of chapter 858, Public Laws
1909, are in these words:

4477. Blacklisting employees.— I f any person, agent, company, or
corporation, after having discharged any employee from his or its
service, shall prevent or attempt to prevent, by word or writing of
any kind, such discharged employee from obtaining employment
with any other person, company, or corporation, such person, agent,
or corporation shall be guilty oi a misdemeanor and shall be pun
ished by a fine not exceeding $500; and such person, agent, company,
or corporation shall be liable in penal damages to such discharged
person, to be recovered by civil action. This section shall not be
construed as prohibiting any person or agent of any company or
corporation from furnishing in writing, upon request, any other per
son, company, or corporation to whom such discharged person or
employee has applied for employment, a truthful statement of the
reason for such discharge.
4478. Conspiring to blacklist employees.— It shall be unlawful for
two or more persons to agree together to blacklist any discharged
employee or to attempt, by words or writing or any other means

DECISIONS OF THE COURTS

whatever, to prevent such discharged employee, or any employee
who may have voluntarily left the service of his employer, from
obtaining employment with any other person or company. Persons
violating the provisions of this section shall be guilty of a misde
meanor and shall be fined or imprisoned, or both, at the discretion
of the court.
Holding that the complaint came within the terms of this statute
and stated a good cause of action without proof of special malice
on the part of the corporation, the Supreme Court of North Caro
lina said:
In the instant case, defendants, having discharged plaintiff from
their employment, solely because he was a member of an organiza
tion authorized by the laws of this State, notified other persons,
firms, or corporations, who would otherwise have employed plaintiff
as a stonecutter, of the fact of such discharge, and of the ground
for the same, and advised such persons, firms and corporations that,
if any person, firm, or corporation employed plaintiff as a stone
cutter, or in any capacity, defendants would refuse to deliver stone
to such person, firm, or corporation. This notice was given by de
fendants without any request, in writing or otherwise, for the same.
It was given, not to promote the interests of defendants, or of other
persons, firms, or corporations, but to prevent plaintiff from ob
taining employment in this State. I f these facts, now admitted by
the demurrer, are established at the trial by a verdict, then by reason
of the statute plaintiff will be entitled to recover of defendants penal
damages, to be assessed by the jury.
By virtue of the statute, plaintiff is not required to allege or prove
malice or actual damages; both are presumed. The general assembly
of this State evidently thought it just to relieve discharged em
ployees, who were prevented by former employers from obtaining
employment by other persons, firms, or corporations, by notice of
the fact and ground for the discharge, without request, of the burden
of proving either malice or actual damages. The right of a pros
pective employer to obtain from former employers truthful state
ments as to the ground of the discharge is fully safeguarded by
the provisions of the statute. The statute has now been in force in
this State for 20 years, without amendment or alteration. It serves
a useful purpose, and has evidently met with the approval of the
people of this State.
The judgment of the superior court was therefore affirmed.

C o n s t itu tio n a lit y

L aw — C o n t r a c t o f

E m p lo y m e n t— F r e e

In re Opinion of the
Justices, Supreme Judicial Court of Massachusetts (April 15, 1930),
171 Northeastern Reporter, page 23J^.— The House of Representa
tives of the Commonwealth of Massachusetts asked the opinion of
the justices of the Supreme Judicial Court of Massachusetts regard
ing a proposed bill which declared that a contract of employment
d om i n M a k i n g — F e d e r a l a n d S t a t e L aw s —

CONSTITUTIONALITY 01 LiATK

whereby either party agrees not to become or remain a member of
a labor union or of any organization of employers, is against public
policy and void.
The court, in the course of its opinion, cited a number of wellknown cases throughout the United States in which the same prin
ciples were involved, and regarding these cases said as follows:
A contract similar to those described in the proposed bill was
assailed and its validity was under consideration in Hitchman Coal
& Coke Co. v. Mitchell. It there was said at pages 250, 251 of 245
United States? 38 Supreme Court 65, 72: “ That the plaintiff was
acting within its lawful rights in employing its men only upon terms
of continuing nonmembership in the United Mine Workers of
America is not open to question. Plaintiff’s repeated costly expe
riences of strikes and other interferences while attempting to 4run
union 5 were a sufficient explanation of its resolve to run ‘ nonunion,5
if any were needed. But neither explanation nor justification is
needed. Whatever may be the advantages of 6collective bargaining 5
it is not bargaining at all, in any just sense, unless it is voluntary on
both sides. The same liberty which enables men to form unions, and
through the union to enter into agreements with employers willing
to agree, entitles other men to remain independent of the union ana
other employers to agree with them to employ no man who owes any
allegience or obligation to the union. In the latter case, as in the
former, the parties are entitled to be protected by the law in the
enjoyment of the benefits of any lawful agreement they may make.
This court repeatedly has held that the employer is as free to make
nonmembership in a union a condition of employment, as the work
ingman is free to join the union, and that this is a part of the con
stitutional rights of personal liberty and private property, not to
be taken away even by legislation, unless through some proper exer
cise of the cparamount police power.5 It is not necessary to consider
whether the extent of the 6paramount police power5 in this connec
tion can extend beyond provisions to secure that such contracts be
free from coercion because it is plain that the proposed bill does not
avoid insuperable difficulties now to be mentioned.5
In Adair v. United States (208 U. S. 161, 28 Sup. Ct. 277), an act
of Congress was attacked whereby a penalty was imposed upon an
employer of labor for making a contract of the same general nature
as those described in the proposed bill or for discharging an employee
because of membership in a labor union, the acts thus denounced
being declared misdemeanors. It was held in an exhaustive opinion
that the act was violative of the provisions of the fifth amendment
to the Federal Constitution forbidding Congress to enact any law
depriving a person of liberty or property without due process of law.
In Coppage ^. Kansas (236 U. S. 1, 35 Sup. Ct. 240), the main point
for consideration was the validity of a statute of Kansas declaring
it a misdemeanor for an employer to make a contract indistinguish
able in its essential features from those described in the proposed bill.
It was held after elaborate discussion and review of decided cases
that the statute was repugnant to the guaranties contained in the
fourteenth amendment to the Constitution of the United States. It
there was said at page 14 of 236 U. S., 35 Sup. Ct. 240, 243: “ The

DECISIONS OF THE COURTS

principal is fundamental and vital. Included in the right of personal
liberty and the right of private property— partaking of the nature
of each— is the right to make contracts for the acquisition of property.
Chief among such contracts is that of personal employment, by
which labor and other services are exchanged for money or other
forms of property. I f this right be struck down or arbitrarily
interfered with, there is a substantial impairment of liberty in the
long-established constitutional sense. The right is as essential to
the laborer as to the capitalist, to the poor as to the rich; for the
vast majority of persons have no other honest way to begin to
acquire property, save by working for money.” The decision in the
Coppage case was followed and reaffirmed in Adair v. United States.
To the same general effect is the decision in Adkins v. Children’s
Hospital (261 U. S. 525, 545, 546, 43 Sup. Ct. 894). Those decisions,
of course, are binding upon the several States as to the force and effect
of the Federal Constitution touching a statute like that in the pro
posed bill.
The court continued the opinion by saying that “ the principles
thus declared by the Supreme Court of the United States prevail in
this Commonwealth. The provisions of articles 1, 10, and 12 of the
declaration of rights of the constitution of this Commonwealth are
as strong in protection of individual rights and freedom as those of
the fifth and fourteenth amendments to the Constitution of the
United States.” A number of Massachusetts cases were cited up
holding this view. The court then concluded the opinion by saying
that—
The views expressed in these several opinions and decisions, which
need not be further amplified, are decisive of the question here pro
pounded. There is a wide field for the valid regulation of freedom
of contract in the exercise of the police power in the interests of the
public health, the public safety, or the public morals and in a certain
restricted sense of the public welfare. A somewhat extended col
lection of references to such statutes and a review of relevant decisions
were made in Holcombe v. Creamer (231 Mass. 99, 104-107, 120
N. E. 354). None of them go so far as to justify a statute like that
in the proposed bill.
Guided by the decisions of binding authority already cited, we
respectfully answer that in our opinion the provisions of the pro
posed bill, if enacted into law, would be in conflict with the Constitu
tion of the United States and of this Commonwealth.

C onstitutionality of L a w — E x a m in a t io n , L icensin g , etc ., of
W orkm en — B arbers—State ex rel. Melton v. Nolan, Treasurer, Su

preme Court of Tennessee (July 19, 1930), 30 Southwestern Reporter
( M ) , page 6 0 1 . The State of Tennessee, on the relation of one
Melton, filed suit against John F. Nolan, treasurer, challenging the
.constitutionality of chapter 118, Acts of 1929, entitled “A n act to

CONSTITUTIONALITY OF LAW

define and regulate the practice of barbering in the State of Tennes
see and to provide penalties for the violation of the act.”
It was argued that the act was violative of article 1, section 4, of
the constitution of the State of Tennessee in that it provides for a
political or religious test as a qualification for office or public trust.
The court, however, found no such test required by any provision
of the act. As to the contention that it was violative of article 1,
section 6 of the Tennessee constitution which provides for the right
of a trial by jury, the court said, “ The provisions of the act fixing
penalties for its violation in no manner violate this constitutional
right. Due legal procedure is contemplated in its enforcement.”
The court also held that it did not provide for unreasonable and
illegal search and seizures, and said that the inspection of a place of
business during business hours, in the enforcement of reasonable
regulations in the exercise of the police power was not a violation of
this constitutional right. Regarding the contention that the act was
a retrospective law impairing the obligation of contract, the court
said:
We are unable to see wherein this section is violated. Appellant
shows that he is conducting a barbers’ college under a trust pro
vision in the will of his deceased wife, and his theory seems to be
that the regulatory provisions of this act, passed since this business
was established, impair contractual or vested rights which his busi
ness had previously acquired. W e are unable to agree. No contract
or existing right is impaired, in the sense of the constitutional pro
vision invoked, by the enactment under the police power of such
regulations as are contained in this act.
The court held there was no merit to the contention that this act
violated article 2, sections 1 and 2 of the Tennessee constitution pro
viding for the departmental division of governmental powers.
It was also contended that the act was violative of article 11, sec
tion 8 of the State constitution in that it attempted to create unrea
sonable and arbitrary distinctions and exemptions in the application
and enforcement of its provisions. The court said:
The complaint under this head appears to be directed chiefly to
the exemptions provided for by section 4, excluding doctors, nurses,
and ladies’ beauty parlors. It is urged that there is no basis for
exemption of the last-named class. A large discretion is vested in
the legislature in determining the question of proper classification.
It is not necessary that the reasons tor the classification shall appear
on the face of the legislation. The persons, barbers, and their ap
prentices, covered by the act, are a well-defined class, not only by
common knowledge, but by the terms of section 2. I f such a person
practices his calling in a barber shop regularly conducted for that
purpose, he comes under the act. A ladies’ beauty shop is not a
barber shop, and it was within the power of the legislature to ex
clude one engaged therein, even though incidentally performing

DECISIONS OP THE COURTS

some of the work commonly done by a barber. To justify the courts
in declaring legislation invalid under this section of the constitution,
the classification must affirmatively appear to be arbitrary and
unreasonable.
The act was therefore declared to be constitutional, and the decree
of the lower court sustaining a demurrer to the suit was therefore
affirmed.
C o n s t it u t io n a l it y

L a w — E x a m in a t io n , L

ic e n s in g ,

e t c .,

State v. Lockey,
Supreme Court of North Carolina (April 2, 1930), 152 Southeast
ern Reporter, page 693.— C . P. L ockey was arrested and convicted
fo r the violation o f the N o rth C arolin a barbers’ act (P u b . Laws,
1929, ch. 119) by sh avin g and cu ttin g hair fo r various persons fo r

orkmen—

pay

B arbers— P o l i c e P ow er

of t h e

“ w ithout first h av in g obtained

either as

S t a te —

a certificate o f registration,

a registered apprentice or a registered barber, issued b y the

State board o f barber exam iners.”
Lockey had paid the annual tax of $2 as required by the revenue
act, but had failed to pay either the $5 temporary fee or the $3
annual fee as required by the barbers’ act. A fine of $10 imposed
upon Lockey by the recorder was affirmed by the superior court of
Cumberland County. Lockey appealed to the Supreme Court of
North Carolina, contending that the general assembly had no au
thority to create an expense and arbitrarily and unreasonably class
ify the citizens of the State in this manner, and furthermore, that
in taxing the apprentices the State had placed a tax upon “ the hired
man ” or “ daily worker ” for exercising the right of working with
his own hands for a living.
The North Carolina Supreme Court held that these contentions
could not be maintained, as the act comes within the police powers
of the State. The court cited numerous cases laying down the rule
that a State, in the exercise of its police power, has a right to re
quire an examination and certificate as to the competency of per
sons exercising callings, whether skilled trades or professions, which
affect the public and require skill and proficiency.
In the course of the opinion the court quoted Judge Cooley, who
said that the police power of a State—
Embraces its whole system of internal regulation, by which the
State seeks not only to preserve the public order and to prevent
offenses against the State, but also to establish for the intercourse of
citizens with citizens those rules of good manners and good neigh
borhood which are calculated to prevent a conflict of rights, and to
insure to each the uninterrupted enjoyment of his own so far as is
reasonably consistent with a like enjoyment of rights by others.

CONSTITUTIONALITY OF LAW

Continuing the court said:
It goes without saying that barbering requires a degree of skill,
proficiency, and training. Then again, the act requires a high physi
cal and moral standard for the barber. It requires training, skill,
and efficiency for the barber, and requires sanitary regulations in
reference to the barber and barber shop patronized by the general
public. All in the class are treated alike. We think the regulations
reasonable and the whole act in the interest of skill and proficiency,
health and sanitation; and brings the barber and barber shop up to
a high standard for the protection of the health of the public.
In regard to the right of the State to require the payment of the
tax, the court quoted from the Assistant Attorney General, in part,
as follows:
The annual occupation tax of the revenue act is for the privilege
of exercising the trade of barbering and is simply a reveritie act,
whereas, the barbers’ act is an exercise of the public power of the
State to secure the public welfare by requiring proven capacity in
the barbers and sanitary arrangements both in the barber shop and
the tools that are used therein. The fees levied in this act are solely
to pay the expenses of its operation and those of proper inspection
by the State board of health.

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

aw —

x a m in a t io n ,

L ic e n s in g ,

e t c .,

Becker v. PickersgUl,
Recorder et aL., /Supreme Cov/rt of New Jersey (December IS, 1928).
11$ Atlantic Reporter, page 869.— The city of Perth Amboy, N. J.,
passed an ordinance, section 2 of which reads as follows:
An ordinance to provide for the examination and registration of
master electricians and journeymen electricians and fix the fees for
such registrations and to provide penalties for the failure to comply
with the provision thereof.
W

orkm en—

l e c t r ic ia n —

C it y

O r d in a n c e —

Chester E. Becker had been a resident of the city of Perth Amboy
for a period of 2 years and 6 months and for the past 5 years had
been engaged in the electrical contracting business in the various
municipalities of Middlesex County. He entered into a contract for
the wiring of a house in the city of Perth Amboy and on February
23, 1928, he made an application to the city electrician of that city
for a permit to install the electric wiring, complying with the rules
and regulations of the ordinance. The city electrician refused to
accept the application and refused to issue the permit, giving as a
reason for his refusal that the ordinance forbids the granting of such
a permit because Becker was not a master electrician.
Becker proceeded on February 25, 1928, to wire the house and was
convicted for violation of the statute. Becker took the case to the
Supreme Court of New Jersey for a review.

DECISIONS OF THE COURTS

This court answered his first contention, that the city had no
authority to license electricians, by showing that this expressed
authority is conferred upon municipalities in the statute of 1917
(Pub. L., ch. 152, art. 15, sec. 1), which gives authority—
“ To make, enforce, amend, or repeal ordinances to license and
regulate,” inter alia, the various classes of businesses and occupations
designated in subdivision (d), p. 959, “ lumber and coal yards, stores
for the sale of meats, groceries and provisions, dry goods and mer
chandise, and goods and chattels of every kind, and all other kinds
of business conducted in such city other than those herein mentioned,
the place or places of business or premises in which or at which the
different kinds of business or occupations are to be carried on.”
The other contentions are discussed by the court in part as follows:
The second reason advanced, on behalf of the prosecutor, to set
aside the conviction and judgment, is that the ordinance is not
designed to promote the public health, safety, and general welfare.
This assertion is manifestly without any support from a fair reading
and plain purport of the ordinance.
It is a matter of common knowledge, arising out of experience,
that the mechanics of electricity require technical knowledge and
skill in order to guard the safety, health, and general welfare of the
public against harmful and destructive results, through unskillful or
improper installation of electric wires.
The application and use of electricity for locomotion, heating,
lighting, and for other utilities, both public and private, and espe
cially in the installation of the electric wires in public buildings,
stores, and private dwellings are essential factors to be taken into
account on the question of the legal property of a police regulation
to the end to prevent incompetent persons from exercising, without
due authorization, a business or occupation fraught with danger to
the public safety, health, and general welfare. It is a matter of
general history of the use of electrical power that there is much
greater hazard of injury to life, limb, and property as a result of the
use and application of electricity in the hands of the ignorant than
there otherwise would have been if only those who are skilled in the
work were intrusted with the task.
Under point 3 of the brief of counsel of prosecutor, it is argued
that the ordinance is not designed to regulate, and is in fact one for
revenue only.
It is quite clear that the law-making power of this State has dele
gated to municipalities, not only the power to regulate but also the
power to tax for revenue, and that both of these powers may be
unitedly exercised. The ordinance in the instant case does both.
The fourth and last point argued in the brief of counsel of prosecutor is that the ordinance is unconstitutional in that it deprives the
prosecutor of his personal rights and property and is a denial to him
of the equal protection of the law.
The broad assertion of counsel of prosecutor that the ordinance
in question deprives the latter of his personal rights and property
finds no support from a plain reading of the ordinance. One of
the results of being a member of organized society, under the Con

CONSTITUTIONALITY OF LAW

stitution and laws, unquestionably is the yielding by the individual
of certain absolute rights for the benefit and welfare of the com
munity which he join's. Salus populi suprema lex. Such natural
and absolute rights which the individual possessed become as to him,
as a member of civil society, purely relative, and therefore are sub
ject to regulation. The saiety and general welfare of the com
munity require that certain businesses and occupations, because of
their dangerous tendencies to injure the safety, health, or general
welfare of the public, require regulation, and hence the requirement
of a license to carry on such businesses or occupations, and the im
position of a tax for revenue are nothing more than the proper
exercise of the police power to safeguard the community, and such
legislation is permissible.
The judgment was therefore affirmed.

C o n s t it u t io n a lit y o f L aw — L im itin g N u m b er o f A p p r e n tic e s —
I n t e r f e r e n c e w i t h C o n t r a c t a n d D u e P r o c e s s o f L a w — Marx

v.
Maybm*y, State Director of Licenses of Washington, et al., District
Court, Western District of Washington {February 11,1929), 30 Fed
eral Reporter {2d), page 839.— The State of Washington amended
the “ barber law ” by chapter 211 of the Laws of 1927 to provide,
among other things, “ that not more than one student or apprentice
shall be employed in any one barber shop; 55 also that—
No barber school or college shall be issued a permit by the director
of licenses unless such school or college requires * * * as a pre
requisite to graduation a course of instruction of not less than 1,000
hours to be completed within 6 months of not more than 8 hours in
any working-day, such course of instruction to include the following
subjects: Scientific fundamentals for barbering, hygiene, bacteriol
ogy, histology of the hair, skin, nails, muscles and nerve structure of
the head, face, and neck, elementary chemistry relating to sterilization
and antiseptics, diseases of the skin, hair, glands, and nails, mas
saging and manipulating the muscles of the upper body, hair cutting,
shaving and arranging, dressing, coloring, bleaching, and tinting the
hair.
Roy Marx, a master barber and owner of a school for barbers and
of several barber shops, filed suit against Charles R. Maybury. as
director of licenses for the State of Washington to restrain him from
enforcing this act. He alleged the act deprived him of his right to
earn a livelihood by following his lawful trade in violation of the
United States Constitution, particularly the fourteenth amendment
thereof. He further alleged that the provisions of the statute are
unreasonable and unnecessary.
The court held that the practice of barbering was closely related
to public health and that its regulation in the interest of health and
sanitation was reasonable, but that there was no other evidence of

DECISIONS

the

courts

any other basis for its regulation within the police powers of the
State and fhat the limitation of apprentices and the regulation for
barbers’ schools here imposed were not pertinent to the protection
of public health.
In granting the injunctive relief, the court said, in part, as follows:
I f the limiting of the number of apprentices to one to each barber
shop, whether the number of barbers m a particular shop be one or
a dozen or more, has even a remote bearing upon public health, it is
so remote we are unable to see it. We think it an unreasonable and
arbitrary interference with the liberty of the citizen. That the prac
tice of barbering by apprentices does not necessarily imperil the
public health or safety the Washington Legislature recognizes, for by
the act under consideration such practice is expressly authorized.
That being true, the only conditions that may lawfully be imposed
upon the practice are such as fall within the principles we have
stated. If, as contended, apprentices may reasonably be required
to work under the supervision of an experienced barber, no one has
suggested why, if two such barbers operating separate shops can
efficiently supervise two apprentices they can not as well exercise the
same supervision when all four are working in the same shop.
Section 14 sets forth an imposing array of subjects to be covered
by a course of instruction in barber schools and colleges. Doubtless
the legislature did not intend that the student in his “ course of in
struction of not less than 1,000 hours to be completed within 6
months,” should master more than some rudiments of hygiene, bac
teriology, diseases of the skin, hair, glands, nails, etc. It may be
that this course of instruction is not intended to do more than enable
the graduate to successfully pass an examination such as that
prescribed in section 5 in cases of persons from other States applying
“ to practice the occupation of barber.” It is provided in that sec
tion that such an applicant “ shall be examined as to his skill in
properly performing all the duties of a barber, including his ability
in the preparation and care of the tools used, shaving, cutting of the
hair and beard, and all the various services incident thereto, and as
to his knowledge of sanitation as applied to the occupation of bar
bering and as to whether he has sufficient knowledge concerning the
common diseases of the face and skin to avoid the aggravation and
spreading thereof in the practice of the occupation of barber.”
While the section is indefinite as to the extent of knowledge to be
acquired in these various subjects, further than may be indicated
by the time provisions, or possibly as indicated by the provisions of
section 5 (Laws Wash. 1923, ch. 75, p. 230), the director of licenses
would have difficulty in determining when and when not a permit
should issue to a school or college which must be prepared to impart
such instruction. I f the director of licenses should not himself be a
qualified judge of such matters, possibly it was intended to be assumed
he would call on members of the occupation or the health authorities
for advice.
While section 14 on its face appears to make elaborate provision
to guard the health of patrons of barber shops, it is difficult to avoid
the impression that its practical effect is to limit the number of barber
schools or colleges and the number of students, graduates, or ap-

OONSTlTOTfclONALlTY OF LAW

prentices. What, if any, reason could exist why the course is “ to be
completed in six months 55 is not apparent. Nor is it apparent how
the public health is to be protected by the age restrictions. The
entire section, we think, has no real or substantial relation to the
public health, is unreasonable and unnecessary, and an invasion of
rights secured by the Constitution.

C o n s t i t u t i o n a l i t y of L a w — L ongshoremen ’ s a n d H arbor W ork

C ompensation A ct— J u r i s d i c t i o n — Obrecht-Lynch Corporation
et al. v. Clark, District Court, Maryland District (January 2,1929),
80 Federal Reporter {2d), page m .— The Obrecht-Lynch Corpora

ers’

tion employed Alonzo V . Kim bel as a repairman on the steamship
City of Flmt. W h ile so engaged, on December 22, 1927, he was
injured by a heavy tank covering falling against his left leg, causing
contusions above and below the knee.

On January 6 (although he

was no longer confined to his bed he had not yet returned to work)
he became suddenly ill, complained o f great difficulty in breathing,
and died in 10 or 15 minutes.

In due course the widow filed claim for compensation. A hearing
was had, as a result of which the commissioner found Kimbel had*
died from a pulmonary embolism resulting from the injury to his
leg, and awarded the widow compensation.
In this suit in equity the Obrecht-Lynch Corporation contested
this claim on the ground that there was no causal connection between
the injuries which the deceased suffered and his death, and asked
that the longshoremen’s and harbor workers’ compensation act be
declared unconstitutional, that the award be set aside, and for a
temporary stay of all payments until the award be allowed. The
corporation asserted three grounds on which the act was claimed to
be unconstitutional:
First, That it violates the seventh amendment to the Constitution
by /failure to provide for trial by jury; second, that it seeks to limit
the admiralty jurisdiction of the Federal courts; and, third, that no
adequate provision for appeal is made, and that therefore due
process of law is denied them, pursuant to the fifth amendment.
The court, in discussing each of these grounds, said:
As to the first question, namely, failure to provide in the act for
trial by jury, while the New York law does so provide, it is sufficient
to quote from the decision of the Supreme Court in Parsons v. Bed
ford (3 Pet. 433), at pages 445,446 (7 L. Ed. 732), in which as early
as 1830 Justice Story said:
“ It is well known, that in civil causes in courts of equity and
admiralty, juries do not intervene, and that courts of equity use
the trial by jury only in extraordinary cases, to inform the conscience
of the court. When, therefore, we find, that the amendment requires
that the right of trial by jury shall be preserved, in suits at common

DECISIONS OF THE COURTS

law, the natural conclusion is, that this distinction was present to
the minds of the framers of the amendment.
“ In a just sense, the amendment then may well be construed to
embrace all suits, which are not of equity and admiralty jurisdiction,
whatever may be the peculiar form which they may assume to settle
legal rights. And Congress seems to have acted with reference to
this exposition, in the judiciary act of 1789, chapter 20 (which was
contemporaneous with the proposal of this amendment); for in the
ninth section it is provided that 6the trial of issues in fact in the
district courts, in all causes, except civil causes of admiralty and
maritime jurisdiction, shall be by jury’ ; and in the twelfth section
it is provided that 4the trial of issues in fact in the circuit courts
shall, in all suits, except those of equity and of admiralty and mari
time jurisdiction, be by jury’ ; and again, in the thirteenth section,
it is provided that the trial of issues in fact, in the Supreme Court,
in all actions at law, against citizens of the United States shall be by
jury.”
Turning to the second question, namely, that the act limits the
admiralty jurisdiction of the Federal courts, the court said:
The gist of this argument appears to be that since the judicial
power of the United States by article 3, section 2, of the Constitution
is extended to all cases of admiralty and maritime jurisdiction, the
vesting in an administrative officer, such as the deputy commissioner
under the present act, of the power to hear and determine the rights
of the parties in such cases as the present one, is an unwarranted
delegation by Congress of this judicial power which, by article 3,
section 1, of the Constitution, is vested “ in one Supreme Court, and
in such inferior courts as the Congress may from time to time ordain
and establish.” This argument seems to be conclusively overcome by
the language in the Dawson case above quoted and also by the lan
guage in the Jensen case, supra, in which the court said, on pages
214, 215, of 244 U. S. (44 Sup. Ct. 528):
“ Article 3, section 2, of the Constitution, extends the judicial
power of the United States 4to all cases of admiralty and maritime
jurisdiction’ ; and article 1, section 8, confers upon the Congress
power ‘ to make all laws which may be necessary and proper for
carrying into execution the foregoing powers and all other powers
vested by this Constitution in the Government of the United States
or in any department or officer thereof.’ Considering our former
opinions, it must now be accepted as settled doctrine that in conse
quence of these provisions Congress has paramount power to fix and
determine the maritime law which shall prevail throughout the
country.”
The court continued the opinion by saying:
There remains to be considered the third and last constitutional
objection that has been raised to the act, namely, that there is pro
vided no adequate right of appeal, and that therefore complainants
are denied due process of law. What has already been said with
respect to this point would seem to refute any argument that the
right of appeal must be more extensive than that which is actually
granted.

CONSTITUTIONALITY OB* LAW

Similarly, in the recent case of Luckenbach Steamship Co. v.
United States (272 U. S. 533, 47 Sup. Ct. 186), it was held that the
limits placed by Congress on the scope of review by the Supreme
Court of judgments of the court of claims do not deprive deieated
claimants of due process of law under the fifth amendment, the court
saying, at page 536 (47 Supt. Ct. 187), that “ the well-settled rule
applies that an appellate review is not essential to due process of
law but is a matter of grace.”
The court reviewed the evidence and held that the commissioner
was justified in accepting the testimony of one of the physicians,
who claimed the death was a direct result of the accident, even
though there was testimony to the contrary. The court having
found the act to be constitutional and that the compensation ordered
thereunder was wholly “ in accordance with the law,” the complaint
was therefore dismissed and the opinion of the deputy commissioner
affirmed.
C o n s t i t u t i o n a l i t y o f L aw— R e g u la t io n o f C o a l M in e s — A r b i
t r a r y a n d U n r e a s o n a b l e C l a s s i f i c a t i o n —Sum,

Goal Co. v. State,
Supreme Court of Tennessee (December 8, 1928), 11 Southwestern
Reporter (2d), page 893.— By the provisions of chapter 24 of the
Public Acts of 1921, operators of coal mines employing more than
50 persons are required to provide a suitable building equipped with
shower baths and lockers for the use and benefit of employees.
The Sun Coal Co., having been found guilty of a misdemeanor
for failure to comply with this statute, attacked its constitutionality
by appealing the case from the circuit court of Campbell County
to the Supreme Court of Tennessee.
The coal company contended that the requirements of the statute
were in violation of article 1, section 8, and article 11, section 8,
of the constitution of Tennessee and of the fourteenth amendment
to the Constitution of the United States, in that the statute was
partial in its application by creating a class not founded upon any
reasonable basis for classification. It contended that the legislature
had no power to make such a requirement of coal mines, also that
the classification was arbitrary in that the statute was not made to
apply to coal mines in which less than 50 employees were engaged.
The court upheld the constitutionality of the statute and, in answer
ing the contentions made by the coal company, said in part as
follows:
The statute is clearly an exercise by the legislature of its police
power. In its caption the statute is described as one “ to promote
the health of employees by requiring washhouses to be provided at
coal mines.”
66588°— 31-------4

DECISIONS OF THE COURTS

The extent of the industry, the number of employees engaged in
coal mining, the financial ability of the industry to comply with the
regulation, the conditions under which such employees are required
to work, the general state of health of coal miners, the percentage
of mortality among coal miners, the effect of coal dust upon the
health of the miners, are all circumstances which may well be con
ceived as influencing the legislature in the enactment of the statute.
I f, upon consideration of these and other aspects of the industry,
the legislature determined that the regulation was necessary to the
preservation of the health of coal miners, the courts of the State
are without power to review the exercise of legislative discretion and
to say that the regulation was neither necessary nor desirable in the
interest of the public welfare. Certainly we could not say as a
matter of judicial knowledge that the same conditions which im
pelled the legislature to enact the statute exist in equal degree in
other mining or manufacturing enterprises.
Legislation designed to protect the health of coal miners can
not be said to be founded upon an arbitrary classification because
it is not extended to other industries, in which the legislature may
have found that working conditions were dissimilar.
Nor can we say that the failure to make the statute applicable to
mines in which less than 50 employees are engaged is an arbitrary
or unreasonable classification'.
As pointed out in the brief of the learned Assistant Attorney Gen
eral, even though the health of the employees in a smaller mine should
be accorded the same protection, the expense of compliance with
the statute may have been regarded by the legislature as too great
a burden to be required of the smaller mine, and this consideration
would furnish a reasonable basis for the classification.

C onstitutionality of L a w — S tatute R e q u i r i n g o n l y Q ualified
V oters to b e E mployed — P u b l i c W orks— State v. Caldwell, Su

preme Court of Louisiana (May 5, 1930), 129 Southern Reporter,
page 868.— George A . Caldwell was convicted o f employing as a
mechanic, in construction o f certain public work, one who was not
a duly qualified voter, without having first applied to proper author
ities for a list o f qualified mechanics.

This was in violation o f the

provisions o f A ct No. 116 o f 1928, amending A c t No. 271 o f 1908.
Caldwell was general superintendent and agent in charge o f con
struction for certain contractors who were erecting buildings for the
city o f New Orleans.

He appealed to the Louisiana Supreme Court

on three contentions.

First, he contended that the statute violated article 1, section 2,
of the Louisiana State constitution and the fourteenth amendment
to the Constitution of the United States by depriving him and those
whom he wished to employ of their property without due process
of law— freedom of contract, and by depriving those whom he wished

CONTRACT OF EMPLOYMENT

to employ of the equal protection of law— equal opportunity for
employment on public works. The court said this contention was
without merit, for—
As legislator the power of the State is restricted in many respects
in which it is not so restricted with reference to its own property
and business. “ Its commands in such matters transcend, as it were,
the domain of ordinary legislation; it then speaks with dual author
ity, that of sovereign and that of master.” (State v. Board of
Commissioners, 161 La. 361, 363,108 So. 770, 771.)
It is therefore from its status as master in its own house with
reference to the construction of public works, rather than from its
status as legislator, that the State derives its right “ to prescribe the
conditions upon which it will permit public work to be done in its
behalf or on behalf of its municipalities.” (Cf. Lacoste v. Depart*
ment of Conservation, 151 La. 909, 921, 92 So. 381, syl. No. 13.)
The second contention was that—
Act No. 116 of 1928 is broader than its title, in that the body makes
it an offense to employ nonvoters in the “ construction ” of public
buildings and public works, whereas the title to said act purports to
forbid their employment only on such public buildings and public
works.
The court said that “ to employ a mechanic in the construction of
a building or work is to employ him on such building or work,” and
hence the title of the act was sufficiently “ indicative ” of its object
to suffice therefor.
The third contention was that the provisions of the act were so
meaningless as to be inoperative, and again the court ruled against
the contention and held the provisions were sufficiently clear to con
vey the intention of the legislature in passing the act.
The decision of the lower court convicting the contractor was
therefore upheld.
C ontract

m ploym ent—

B reach — D

is c h a r g e —

amages

—

Powell Pawing Go. of North Carolina (Inc.) v. Scott, Court of A p
peals of Georgia (February 18, 1930), 152 Southeastern Reporter,
page 309.— Action was brought by E . Y . Scott against the Powell
Paving Co. of North Carolina to recover damages for the breach of a
contract of employment. A t the trial Scott testified as follows:
I had a transaction with Powell Paving Co., or with Mr. Knetsch
as their representative, on July 16,1927. That transaction was about
working for them. He wanted to know if I would work with him,
and the price wasn’t mentioned right then. He made me an offer
what he would give, and I told him that I wouldn’t take that, because
I had a job with the county at so much a month, but I would accept
if he would give more, and so it went on a few days and he told me
that he would give me $225 a month straight time, and I told him
that the job I had with the county that I couldn’t afford to turn it

DECISION’S OF TH E COURTS

loose for a job just for two or three months, and I could not accept
the job unless it was for 12 months or more, and he said that the job
would last 12 months if not 18, and I told him that I would take it
for $225, providing it would be 12 months’ work in it, and he said
there would be that at $225 a month straight time for 12 months if
not longer, and I told him I would let him know in a few days
whether I would accept it at that price or not, and a few days later I
told hiih I would take it.
The city court of Swainsboro, Ga., rendered judgment in favor
of Scott, holding that the evidence was sufficient to infer the contract
was for one year and the paving company should be held liable for a
breach. The company’s motion for a new trial was overruled and it
appealed the case to the court of appeals. The Georgia Court of
Appeals reversed the judgment of the lower court and held that the
evidence was not sufficient to establish a contract of employment for
one year. The court said the evidence authorized the inference that
the agent of the paving company merely assured Scott that the
paving project would last for a year and that his services would be
needed for that period, and where it does not appear that Scott
agreed to work for the company a year, neither does it appear that
Scott was employed for a year or for any definite period of time.
The evidence is insufficient to authorize a finding that the contract
was one by which the company agreed to employ Scott for any
definite period of time, as for a year.

C ontract of E m plo ym en t — B reach — D ischarge — D amages —

Detroit Graphite Go. v. Hoover et al., Circuit Court of Appeals, First
Gircuit {June 5, 1930), J±1 Federal Reporter (2d), page WO.— The
Detroit Graphite Co., a large manufacturer and distributor o f paint
in Boston and New Y ork , employed W alter T . Hoover shortly after
his graduation from Massachusetts Institute o f Technology in 1913.
In 1919 he went under a written contract to the Pacific coast to
introduce its business in that section o f the United States.

March 31, 1923, he made another written contract with the company
out o f which this controversy arose.

Suit was filed by Hoover against the company to recover damages
as a result of the alleged breach. The United States District Court
for the District of Massachusetts rendered a verdict of $50,000
damages in favor of Hoover, and the company appealed to the
Circuit Court of Appeals, First Circuit, and also filed suit against
Hoover for $11,770.59 for advances made to him under the contract.
In the course of business under the contract, the company paid, on
vouchers approved by Hoover, commissions to the subagents, freight
and storage, cartage charges to the coast, and Hoover’s drawing

CONTRACT OF EMPLOYMENT

account of $1,000 a month, as a minimum— or, until the fall of 1925
when business decreased, $1,250 a month.
On March 17, 1926, Hoover received a letter from Davis, the
president of the company. After referring to earlier letters and
telegrams, pertaining to the unsatisfactory status of relations under
the contract, Davis said:
I would add here that any disbursements made on your account
from March 1 will be charged against your drawing account allow
ance for this month.
This was inconsistent with the company’s obligation under the
contract, and in reply Hoover wired Davis as follows:
Recognize now your desire to force my resignation by your han
dling March check and general attitude. I am entitled to advance
notice relative your decision covering March funds, and assuming
wires had fully covered discussion as doing business as usual; had
counted upon check for $1,000. In view your expressed wish, I
agree mutual cancellation of contract, provided you will wire bal
ance of $500 due me for March. Wire answer at once, please.
Regarding this wire and the reply from Davis on March 18, 1926,
the court said:
Construing this telegram in the light of the surrounding circum
stances, it is not perfectly clear, in at least two particulars: (1)
Hoover takes his position on the theory that Davis is forcing his
resignation. (2) The phrase “ I agree mutual cancellation,” etc.,
is, at least in the light of the conflicting views as to his personal
liability for advances, doubtful. The doubt becomes greater when
we consider the subsequent telegrams. Davis replied March 18:
“ For company I accept your proposal that contract between us be
canceled provided we send you $500 additional on March drawing
account, which is be ing done, and your resignation is hereby accepted.
This cancellation is made effective to-day by your proposal and our
acceptance which constitute a mutual agreement. You are, of course,
to reimburse us for debit balance which your account shows either
cash or in some manner to be agreed upon. You well know that
there has been no desire to force your resignation, but on the con
trary repeated expressions of confidence and desire that you should
continue with us.”
The $500 was sent, but Davis added— to what otherwise might be
construed as a flat acceptance of an offer from Hoover to cancel—
the following: “ You are, of course, to reimburse us for debit bal
ance which your account shows either cash or in some manner to be
agreed upon.”
Hoover’s reply telegram of March 18 makes the situation still more
confused and doubtful. In his telegram he said:
Referring your letter twelfth, second paragraph accepts my resig
nation. which I had never submitted. Your third paragraph sug
gests I resign; hence my wire seventeenth accepts your proposal,
not otherwise. Your wire eighteenth therefore confirms cancellation
on this basis per terms outlined. In consideration of your wiring

DECISIONS OF THE COURTS

me Friday to San Francisco, additional five hundred for purchase
office furniture, including best grade two desks, steno desk, type
writer, two swivel chairs, three new arm chairs, two Wernicke threedraw filing cabinets, six sectional files, and miscellaneous, and giv
ing me full company’s release from any sums or drafts you claim
due from me, I will turn over all my files and records for continued
prosecution your business, also afford aid and good will you desire.
Wire answer San Francisco Friday.
The court construed this reply to mean that Hoover repudiated the
notion that his resignation had been initiated by him; and that he
agreed to cancellation only if Davis took the responsibility of admit
ting that he desired and had initiated steps for it. Regarding these
communications the court said:
It might well be found, or even ruled, from these communications
that Hoover was throughout insistent on two things: (1) That his
resignation should be admitted to have been asked for by Davis and
not submitted by him; (2) that the company should formally release
all claims against him for the debit balance.
It is unnecessary to consider performance or nonperformance of
the first condition, for admittedly the second— the release of the debit
balance— was never made by the company. But the company there
upon treated the contract as at an end and so notified Hoover’s sub
agents. This warranted the jury in finding a breach by the company.
However, the court reversed the decision of the lower court on the
question of damages, saying—
On the whole, we think that it was reversible error to charge the
jury that Hoover’s damages were to be reckoned at $1,000 a month
as a minimum, diminished only by expenses chargeable to his draw
ing account. * * * The judgment of the district court is vacated,
the verdict set aside only as to damages, and the case stands for a new
trial, on damages only.
C ontract of E m p lo ym en t — B reach — D ischarge — D amages—

v. Des Moines Music Co.,
Supreme Court of Iowa (January 21,1930), 228 Northwestern B eporter, page 664.— The Des Moines Music Co. was a corporation
engaged in selling, among other things, musical instruments. Henry
Clinton was employed as a salesman under a contract of employment,
which, according to a letter from the company to Clinton, dated
November 1, 1927, read as follows:

C ommissions

E arnings — Clinton

*
* * Please be advised that the following constitutes an agree
ment between the Des Moines Music Co. (Inc.) and yourself for a
period of 12 months dated October 2 5 ,1 9 2 7 :
The Des Moines Music Co. (Inc.) to pay you $40 per week as a
drawing account. An allowance of 1 per cent on the net sales to
cover car expenditures with a maximum of $25 per month. Your

CONTRACT OF EMPLOYMENT

sales quota on this basis at $25,000 net; $26,000 to $40,000 net, 5 per
cent additional; $40,000 and over, net, 7 per cent additional.
Clinton continued to work under this contract until February 4,
1928, during which time he had made sales in the aggregate of
$11,028. It is claimed by Clinton that on January 24, 1928, the com
pany breached the contract by refusing, without just cause, to allow a
commission of $5 on a $500 sale made by Clinton and accepted by
the company. On account of this refusal Clinton tendered his resig
nation in writing on January 24, to become effective February 24,
1928. Later, on February 1, he wrote a letter amplifying his letter
of January 24. This was followed by a peremptory discharge of
Clinton by the company on Febuary 4, 1928.
Clinton filed suit against the Des Moines Music Co. to recover
compensation for services rendered as a salesman upon a written
contract alleged to have been breached by the company. The com
pany claimed in defense that Clinton breached the contract and that
he voluntarily resigned. The municipal court of Des Moines ren
dered a verdict in favor of Clinton, and the company appealed the
case to the Supreme Court of Iowa. Regarding the legal effect
of Clinton’s written resignation tendered on January 24, the court
*aid:
Under the terms of the contract of November 1,1927, the employ
ment had an absolute limitation of 12 months after October 24,1927,
but in addition thereto it reserved to each of the parties the definite
right to terminate the contract on 30 days’ notice. Plaintiff’s letter
of January 24 can not be constituted otherwise than as an election
on his part to terminate the contract February 24, 1928.
I f the defendant breached the contract on January 24, by failure
to pay the commission which the plaintiff demanded, the plaintiff
was not bound to cancel the contract on that account. He might
have continued to work and reserve his right to recover, if possible,
that item of compensation at a later date. On the contrary, how
ever, he elected to avail himself of the 30-day cancellation clause in
the contract by serving a notice on January 24, 1928. Furthermore,
the defendant’s peremptory discharge of the plaintiff on February
4 did not deprive the plaintiff of his right to recover under the
terms of his contract for the 30 days following January 24, 1928,
or the disputed $5 commission, if properly proven.
In considering the amount of Clinton’s recovery it was necessary
for the court to interpret certain parts of the contract regarding Clin
ton’s commission:
The court construed the words, “ Your sales quota on this basis at
$25,000 net,” to mean that, upon sales made month by month, in ex
cess of one-twelfth of $25,000, the plaintiff is entitled to 5 per cent
commission additional to all other sums of payment, and this regard
less of whether a total of $25,000 net in sales has been made.

DECISIONS OF THE COURTS

On appeal the Iowa Supreme Court placed a different interpreta
tion on the words, “ your sales quota on this basis.” The court said
that the company agreed to pay Clinton a drawing account of $40
per week, and 1 per cent of net sales to cover car expenditures on the
agreement that Clinton would sell $25,000 in the 12-month period.
Continuing the court said:
We think it clearly appears that it was not the intention of the
parties that the additional 5 per cent should be paid until $25,000
net of goods had been sold, and then only on goods sold amounting
to $26,000 and up to $40,000, and the 7 per cent applied only to all
goods sold over $40,000. In other words, these commissions were
not to be paid when the goods were sold at the rate of more than
$25,000 a year, but only paid when more than $25,000 net of goods
had been sold.
The court, therefore, reduced the amount of damages awarded
Clinton by the lower court and upon this condition the judgment
was accordingly affirmed.

C o n t r a c t o f E m p lo y m e n t — B r e a c h — D is c h a r g e — D am ages —
T e r m o f E m p lo y m e n t —Dallas

Hotel Go. v. McCue, Court of vivil
Appeals of Texas (January 25, 1930), 25 Southwestern Reporter
(2d), page 902.— O n Septem ber 30, 1925, M a r y M cC u e entered the
em p lo y o f the D a lla s H o te l C o. as m a il clerk.

Sh e had called upon

M r . Schubert, an assistant m anager o f the hotel, and told h im th at
she was inform ed there w as a vacancy in the position o f assistant
m a ilin g clerk and th at she desired to a p p ly fo r such position.

She

was advised that she m ig h t go to w ork at once, and w ith ou t fu rth er
discussion she assumed the duties o f the position.

Sh e received

$75

per m on th at first, but soon received an increase raisin g her salary

$85 per m onth.
On November 1, 1927, she was discharged, and shortly thereafter
filed suit in the district court of Dallas County for damages for the
breach of the contract, alleging an employment from month to month
at the rate of $85 per month, and sought to recover such sum as
actual damages. She also sought to recover exemplary damages,
basing such claim on the conduct of Mr. Ellifritz, the manager of the
hotel at the time she was discharged. At the trial she testified that—
to

When telegrams or other communications to the hotel for its guests
were received, it was her duty as mail clerk to take the telegrams for
the guests and hold them, unless a guest should telephone down from
his room to have the telegram sent up, or if a guest of the hotel
should telephone or wire her to forward his telegram, then it would
be forwarded to him. * * * That on such morning, when she
went into the mail room to go to work, she saw a telegram lying on
the desk; that Mr. Charninski, appellant’s credit manager, came in
after she had been at work a short time and said that he had opened

CONTRACT OF EMPLOYMENT

a guest’s telegram and that he wanted her to go to the Western Union
Telegraph office and get a new envelope and put the telegram in the
new envelope; that she replied that he had no right to open a guest’s
telegram; that Charninsfei then told her that the reason he had
opened this telegram was that the guest had told him or given him
permission to do so, and told appellee that she must do as she was
told, to which she replied that she would not tamper with any mail
or telegrams; that Mr. Charninsfei said that he would show her, and
that she would have to do as he said; that a short time thereafter
Mr. Ellifritz came in with Mr. Schubert, and the former directed
her to go over to the Western Union Telegraph office and get a new
envelope, put the telegram in it, seal it up, and then apologize to
Mr. Charninski; * * * that, after she had thus refused, Ellifritz
grabbed her by the arm and shoved her, leaving scratches on her
arm; that “ he throwed me out of the room just as roughly as he
could, and told me to get out and not come back ” ; that he left his
finger marks on her arm, the marks being blue.
Among other things, she alleged that as a result of the discharge
she had not been able to get employment since that time, that her
health was broken and her nervous system was giving her consider
able trouble, and that she had not received any money for the work
she had done on the day she was discharged.
Ellifritz testified that Charninski had authority over Miss McCue
and that on the day in question he went with Mr. Schubert to see
Miss McCue and told her:
You will have to put that telegram in an envelope as directed by
Mr. Charninski, and then tell Mr. Charninski that you will obey
him, or you will have to quit; that she replied that she would quit,
and that he and Mr. Schubert then walked out of the office; that he
did not touch appellee while in the mail room.
The case was submitted to the jury on the issues and the jury
returned the following findings: (1) That the employment was from
month to month; (2) that the employer did not have just cause for
the discharge of the employee; (3) that at the time of the discharge
the employee suffered pain and humiliation; (4) that she had been
damaged in the sum of $85,- and was entitled to recover, as exem
plary damages for her wrongful discharge, the sum of $1,500. The
jury also found as a matter of fact that the claimant had used reason
able diligence to secure employment during November, 1927.
The case was appealed to the Court of Civil Appeals of Texas by
the hotel company. It was contended that there was not sufficient
evidence to support the finding that the contract of employment was
from month to month. In interpreting the contract of employment
the court said, in part:
We have seen that, under the interpretation the parties placed on
this contract, wages to be paid appellee were measured by the month.
The intention of the parties being that appellee’s wages as mail clerk

DECISIONS OF THE COURTS

should be $85 a month, we see no reason why the rule adopting the
unit of time for the payment of wages as the unit of time of employ
ment should not be adopted as the rule in this case. For these
reasons, we believe the evidence, even from appellant’s construction
of its meaning, raised an issue of fact as to whether appellee’s
employment was from month to month, that the court did not err
in submitting such issues to the jury, and that the finding of the jury
in this respect is supported by evidence.
The court, however, did not consider the evidence sustaining the
fact that Miss McCue had suffered pain and humiliation sufficient to
support the finding of the jury. The case was therefore reversed.

C ontract of E m plo ym en t — B reach — D ischarge — L abor O rgani
P arty — Sail v. St. Louis-San Frcmcisco R. Go., Springfield

zation as

Court of Appeals, Missouri {May 20, 1930), 28 Southwestern Re
porter {2d), page 687.— S. F . H a ll filed suit against the St. LouisSan Francisco Railway Co. for damages for an alleged w rongful
discharge and refusal to give a service letter as required by section
9780, Rev. Stat. 1919. The first count o f the petition alleged the
employment o f H a ll by the railway company and a discharge in
violation o f an agreement between the railway company and the
Frisco Association o f M etal Crafts, of which H a ll was a member,
and asked both actual and punitive damages. The second count
alleged the employment o f H a ll by the railway company and a
wrongful discharge, and refusal to issue to H a ll, upon his demand,
a service letter, as required by statute, and asked for both actual and
punitive damages.

In the Ripley County circuit court Hall recovered nominal dam
ages on each count and $1,500 punitive damages on the second count.
Both parties appealed. The railway company contended that the
second count was based upon a hiring for three years, a definite
period, and that Hall was allowed to recover upon a violation of the
agreement between the railway company and the union. It was
also contended this was a violation of the rule that a party can not
allege one cause of action and recover upon another. Regarding this
contention the court said:
There is a direct allegation in the petition that the employment
was for a term of three years, but there is also an allegation which
shows that he was working under the agreement between defendant
and the union of which plaintiff was a member. The petition in this
count, in fact, pleads both the hiring for three years and a hiring
under the agreement with the union. There was no motion filed
asking that plaintiff be required to elect, nor was this count attacked
in any way, except by a motion to strike out other portions of it,
which was sustained. Counsel for defendant insists that this count
only alleges one employment and that was a direct hiring for a 3-year

CONTEACT OF EMPLOYMENT

period, and the allegations about the agreement between defendant
and the union and his discharge in violation thereof was only to
show a wrongful discharge and does not amount to an allegation of
employment under the agreement with the union. W e do not agree
with that contention. Our conclusion is that it alleges employment
in both ways and authorized the submission of the case, as was done,
on the theory of an employment under the agreement with the union.
The agreement between the employer and the labor union pro
vided that no employee in service for a period of 30 days would be
discharged for any cause except drunkenness without first being
given an investigation, and it further provided for the right to
appeal to a high official of the employer. From the facts it appears
that Hall was discharged because of certain information reported
regarding his foreman, and he alleged that he was denied the right
to an investigation. Regarding the railway company’s contention
that it had discharged this duty to Hall, the court said :
We do not think so. There is no evidence on the part of either
plaintiff or defendant that plaintiff was ever notified of any claim
by any person that he had been guilty of conduct that might justify
his discharge or that a hearing on that question would be held.
* * * It does not require formal charges to be filed nor a trial
governed by the rules of court procedure, but it does mean that he
shall be notified beforehand of the investigation and be given an
opportunity to secure a fellow employee to assist him, if he so
desired, and also be given a fair opportunity to refute proof of any
alleged misconduct upon his part. It is clear to us that on plaintiff’s
testimony a case for the jury was made on the question of a wrongful
discharge, and the verdict for nominal damages on the first count of
the petition was sustained by the evidence.
The court also found that the company denied the service letter
to Hall, in violation of the statute, and that there was sufficient evi
dence to take the question of legal malice to the jury. The court
said:
While plaintiff’s testimony as to what occurred between him and
Mr. Gamel [the master mechanic] at Memphis tends to show actual
malice against plaintiff by Mr. Gamel, yet it is not necessary to show
actual malice in order to recover punitive damages. Malice in law,
which is the intentional doing of a wrongful act, without just cause
or excuse, is sufficient.
I f the evidence most favorable to plaintiff in this case be true,
and that is all that we can consider in passing upon a demurrer to
the evidence, we are of the opinion that there was sufficient evidence
on the refusal to issue the service letter and of at least legal malice
in that refusal, and that was all that was necessary to take the ques
tion of punitive damages to the jury.
The judgment of the lower court was therefore affirmed.

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

cou rts

C o n tra c t o f E m ploym ent— B rea ch — D isch arge— M isconduct as
Ground — L ife E m p loym en t — Campion v. Boston Maine R. Co., Su

preme Judicial Court of Massachusetts (January 3,1930), 169 North
eastern Reporter page 499.— For several years prior to 1921 James E .

Campion had been in the employment of the Boston & Maine R ail
road, and during that year he was employed as a “ spare ” tower man.
Later during the same year the railroad company published a bulle
tin showing a “ permanent vacancy ” in the W akefield Junction tower
“ second tr ic k 55 which was “ bid off ” by Campion. In 1923 he was
suspended and afterwards discharged on the ground of insubordina
tion. H e filed suit against the railroad company contending that his
contract with the railroad was one of permanent employment and
that the railroad had no right to discharge him. The superior court,
Suffolk County, Mass., rendered a verdict fo r the railroad company
and Campion carried the case to the Supreme Judicial Court o f
Massachusetts. This court held that even though Campion was
hired to fill a “ permanent vacancy ” he could be discharged later
by the railroad at any time it no longer desired his services.

In affirming the decision of the superior court, the court said:
In the case at bar there was no express agreement on the part of the
defendant to employ the plaintiff for any definite period, nor can such
an agreement be implied. The contract could be terminated at the
will of either party. * * *
It is manifest that the invitation for bids to fill a “ permanent
vacancy,” construing these words in the sense in which they were
used and would be commonly understood, did not amount to an offer
to employ for life, or for any definite term, a person who might
accept the invitation and enter the employment of the defendant.
The testimony of the plaintiff to the effect that he understood when
he took the position that he could not be discharged and that he
could not leave the employment for any reason, can not affect the
legal right of the defendant under the terms of the employment to
discharge him for cause or without cause. His testimony can not
be used to define the contract which is to be construed by its terms.
[Cases cited.]
Although under the terms of the employment the plaintiff could be
discharged without cause, the evidence, if believed, warranted a find
ing that he was guilty of insubordination which warranted his dis
charge. “ Insubordination imports a willful disregard of express or
implied directions and refusal to obey reasonable orders. When this
is established it is such a breach of duty on the part of the servant
as to warrant his discharge.

C ontract

m ploym ent—

B r e a c h — I n d e f in it e E

m ploym ent—■

Peacock v. Virginia-Carolina Chemical Co., Supreme Court of Ala
bama (October 23, 1930), 130 Southern Reporter, page 411.— On
September 1, 1926, A. J. Peacock entered into a contract of employ

c o n t r a c t op e m p lo y m e n t

ment with the Virginia-Carolina Chemical Co. Among other things
the contract provided that his salary was “ to be at the rate of $2,000
per annum, payable monthly, beginning October 1, 1926.” Peacock
entered upon the discharge of his duties in accordance with the
agreement and continued satisfactorily to. perform such duties until
May, 1927, when he received a letter from the manager o,f the com
pany, inclosing a salary check for the first 15 days of May, and stat
ing that, to his regret, he was forced to discharge Peacock, although
his work was entirely satisfactory. Peacock then filed suit against
the Virginia-Carolina Chemical Co., alleging that thereafter and
until October 1, 1927, he was able, willing, and ready to continue in
the performance of his duties under the contract, but the company
had not paid him any salary for the period from May 16, 1927, to
September 30, 1927.
As a defense to the suit the company alleged that as no definite
time of employment was contained in the contract it was but an
employment at will, terminable at any time by either party.
The circuit court of Montgomery County rendered a verdict in
favor of the chemical company and the case was appealed to the
Supreme Court of Alabama. The latter court pointed out the dis
tinction between the use of the phrase “ at a certain sum per month ”
and the phrase “ at the rate of a certain sum per month,” and in
affirming the decision o,f the circuit court said in part:
It can not be said that men, in making their contracts, would
always observe a distinction between a salary of a stated amount for
a given period and a salary of a fixed rate per period. But when
contracts are couched in very brief terms, and courts come to seek
their meaning from these words alone, they must note the real differ
ence in the terms employed.
Here we have a contract “ at the rate of ” so much per annum,
“ payable monthly.” It can not be an entire contract for the year in
the sense that no pay would be due unless the employee served a full
year. * * *
Contracts of employment, payable only by the year, are so unusual
in modern times and conditions that courts avoid a construction
leading to such result, a result attempting a definite term at a fixed
wage.
“A t the rate of so much per annum, payable monthly,” may obvi
ously mean merely the fixing of the rate, not the duration of employ
ment.
Indulging the presumption heretofore recognized, and looking to
the writing alone, in the absence of averment of custom or accom
panying circumstances indicating a different intent, it will be so
construed.
C o n tra c t o f E m ploym ent— B reach — In v e n tio n o f Em ployee—

Engel v. Ansco Photoproducts (Inc.), Supreme Court of New York,
Appellate Division (March
1980), %Jfi New York Supplement,

DECISIONS OS' £H E COURTS

page 737.— Tlie Ansco Photoproducts (Inc.), a company engaged in
photographic art, employed Arthur F. Engel as consulting engineer.
He granted the company exclusive license to deal in and sell his in
ventions under a contract requiring the company to prepare and
prosecute applications^ for. a patent and providing for a salary of
$5,000 per year plus the royalties from the inventions. Engel turned
over to the company working models of three devices, after which he
received the minimum sum of $5,000 for the first year. No further
payments were made for three years and the company failed to prose
cute applications for a patent. Engel considered this a breach of
the contract and contended that he was damaged thereby. He filed
suit against the company and the New York Supreme Court entered
a verdict in favor of the employer. Engel appealed to the appellate
division alleging three causes of action as follows:
The first is for Engel’s compensation for two years as a consulting
engineer at the rate of $5,000 per year; the second is for minimum
royalties alleged to be due Engel tor the second and third years of
the contract amounting to $ 10,000; and the third is based on the
alleged expenses to which Engel would be put for preparing patent
applications.
The appeals court reversed the decision and remanded the case for
further hearing. The court said :
The record fails to disclose evidence sufficient to show that plain
tiff’s invention for preventing double exposure of film was not patentable. This invention was separate and distinct from plaintiff’s
camera and could be used on other cameras. As to this, at least,
defendant was obliged, under the contract, to prosecute an application
for letters patent within a reasonable time after the contract was
made. This it failed to do. and we are of the opinion that defendant
must be held to be in deiault in this respect as a matter of law.
This being so, defendant had no right to cancel the contract.
W e are further of the opinion that sections 1450 and 1466 of the
education law are not applicable to plaintiff’s employment. W e also
think that there is no merit in defendant’s contention that it was not
obligated to make the payments provided in clause 7 of the contract
until manufacture. The contract, by clause 8, provided for the first
payment of royalties to be made at the time the contract was exe
cuted and this payment was made, and discloses the true intention of
the contract in this respect.
The judgment should be reversed upon the law and the facts, with
costs to appellant, the action severed and judgment directed in favor
of plaintiff upon his second cause of action for $10,000, with costs.
A new trial should be granted as to the first cause of action because
the question of the amount of plaintiff’s damage must be decided by
a jury.
__________
C ontract of E m plo ym en t — B reach — S ickness C ause for
B reach — Fahey v. Kennedy et al., Supreme Gou/rt of New York, A p

pellate Division, Third Department (June 27,1930), 2^3 New York

CONTRACT OF EMPLOYM ENT

Supplement, page 396.— On November 23,1924, Thomas F. Fahey en
tered into an employment contract with Thomas P. B. Kennedy,
whereby Kennedy agreed to employ Fahey as the superintendent of a
garage in the city of Albany, N. Y . The agreement was for five years,
at a salary of $300 per month for the first year, $350 per month for the
next two years, and $375 per month for the remaining two years.
Fahey accepted the employment by taking charge of the business and
acting as superintendent until December 3, 1927, when he fell ill.
His wages were paid regularly until January 1, 1928. On February
20, 1928, he returned to work and the employer refused to pay the
$375 per month as agreed, contending that Fahey’s illness breached
the contract and relieved him of further liability. He offered to pay
Fahey $60 per week, but Fahey declined this offer and filed suit to
enforce the contract entered into in 1924. The city court dismissed
the suit and on appeal the county court affirmed the judgment in favor
of the employer. Fahey appealed the case to the appellate division
of the New York Supreme Court.
In reversing the judgment of the lower court the New York Su
preme Court said, in part:
The principal controversy here relates to whether or not the con
tract was terminated by the illness of the plaintiff. There is no gen
eral or well-established rule as to whether the illness of an employee
constitutes sufficient cause for the employer to terminate the contract,
or whether the employee, under such circumstances, may be dis
charged from his obligation to perform. Much depends upon the
facts disclosed in the particular case. The period of illness, its na
ture, the kind of service rendered, and many other facts must be con
sidered as bearing upon the question of whether the employee is fairly
performing the obligations he had assumed. That men may become
sick is one of the commonest experiences. Both parties know it when
they make contracts for personal service. Just what they may con
template in that contingency, if nothing is said on the subject in ad
vance, must be determined when the facts of the situation are pre
sented.
The plaintiff, as we have said, became ill on December 3,1927, and
later was taken to a hospital. His condition improved, and during
his convalescence for a time he went away for recuperation on the
advice of his physician. He returned on February 20th in a condi
tion of health to resume his employment. In the meantime the
business had been conducted by a force of men he had organized,
so that the employment of a new superintendent does not appear to
have been necessary. During the time of his illness he was in con
tact with his employers by telephone and by personal calls they
made on him. They had notice of his condition of health and of
his convalescence and departure for recuperation, advised him that
it was all right, and were very considerate in their attitude toward
him. Nothing whatever was said between them concerning any in
convenience they were suffering by his absence, the necessity of em

DECISION'S OF THE COURTS

ploying another in his place, or their purpose to regard the contract
terminated.
We think that the failure of the defendants to notify the plaintiff
during the time he was ill that his contract was ended, their conduct
during that period, and the excuses they finally made when plaintiff
was ready to return to work, do not indicate, as the case now stands,
that they were exercising the election they may have had, but rather
were seizing upon his illness as an excuse to extricate themselves
from a contract becoming burdensome, and to suit purposes of their
own convenience and advantage. (See Gaynor v. Jonas, 104 App.
Div. 35, 38, 93 N. Y . Supp. 287.) Their prior conduct may, as a
question of fact, operate as a waiver of their rights. (Spindel v.
Cooper, 92 N. Y . Supp. 822.) Therefore, they do not now stand
in the place of employers injured by the inability of their em
ployee to perform valuable services imperative to the success of
their business. We regard it as a question of fact as to whether they
were justified in discharging plaintiff under the circumstances above
detailed. For the reason that all of these questions were not sub
mitted to the jury so that they could be passed upon in the light of
proper instructions, we think tjiat there must be a new trial. The
judgment should be reversed on the law, and a new trial granted in
city court, with costs to the appellant to abide the event.

C ontract of E m plo ym en t — C ommissions as E arnings — B reach —

Parkway Motor Co. (Inc.) v. Charles, Court of Appeals of District
of Columbia (March Sy1930), 39 Federal Reporter (2d), page 29%.—
The Parkway Motor Co. (Inc.) filed suit against Charles A. Charles
upon his promissory note for $846.02, with interest, less a credit of
$143.12. Charles admitted the validity of the note, but set up a
counter claim in the sum of $900 for commissions alleged to be due
on the sale of 32 Ford automobiles for which he had obtained orders
while employed by the Parkway Motor Co. (Inc.) as a salesman.
The municipal court of the District of Columbia allowed the counter
claim in full, and the Parkway Motor Co. (Inc.) appealed the case
to the District of Columbia Court of Appeals. The contract of em
ployment between Charles and the Parkway Motor Co. provided that
he should only be entitled to commissions on new automobiles sold
by him and delivered and paid for in full at the time of the termina
tion of the contract, if terminated by him.
It appears that in May, 1927, the Ford Motor Co. discontinued the
manufacture of cars of its former model; there was great delay in
the production of the new-model cars so that Ford dealers generally
were unable to secure sufficient cars to meet the demand. Conse
quently the 32 orders obtained by Charles for new cars were not filled
when he voluntarily terminated his employment. A t the time of
the trial 15 of the cars remained undelivered and unpaid for, while
10 of the orders had been canceled by the purchasers and their

CONTBACT OF EMPLOYM ENT

deposits refunded; only 7 of the 32 cars had been delivered and
paid for.
The appeals court said that Charles, a salesman familiar with the
business, in entering into this contract was charged with notice that
the company had nothing to do with the production of the cars and
was entirely dependent for its supply on the Ford Motor Co. The
failure to deliver the cars was not chargeable to the Parkway Motor
Co.; since the orders were taken contingent upon the supply of new
cars being sufficient to meet the demand, and since Charles volun
tarily terminated the contract, he was in no position to complain that
the cars had not been delivered and settled for in full at the time he
terminated the contract. The court concluded that the written terms
of the contract should be applied in this case and that Charles was
entitled to commission by way of offset only on the number of cars
that had been sold and settled for in full at the time he terminated
the contract.
The judgment of the lower court was therefore reversed.

C o n tra ct o f

E m ploym ent— Commissions

E arn in gs— Dam
D. Lanford Go.

a g e s fo r Causing D ischarge— R ig h ts to P rize— E.

v. Buck, Supreme Cowt of Alabama ( November 7,1929), 12h South

ern Reporter, page 418.— B. B. Buck sued the E. D. L anford Co. in
the circuit court, Etowah County, A la ., claiming a balance due him
for commissions earned by him as salesman for the said company
which was engaged in the automobile business. He also claimed a
$65 prize offered by the company to the salesman selling the greatest
number of cars for a period ending June 17, 1927. Early in June
a controversy arose between the parties as to a commission Buck
claimed to have earned by the sale o f a car, and on June 10 he was
discharged. Buck claimed his salary at the agreed amount per
month for the whole o f the month o f June on the theory that he had
been wrongfully discharged.

The circuit court awarded judgment in favor of Buck and the
automobile company carried the case to the Supreme Court of Ala
bama for review. Regarding Buck’s claim for his salary and com
mission the court said, in part, as follows:
The contract between the parties provided for the payment of a
sum certain per month and a percentage on sales made in addition.
This, without more will be accepted as in the nature of distinct con
tracts, and an action of debt for each monthly wage (and per
centage earned, if any) will lie as it becomes due. (Davis v. Preston,
6 Ala. 85.) * * * According to the principle stated above on the
authority of Davis v. Preston, plaintiff’s statement that he would
quit at the end of the then current month was not a breach of his
66588°— 31------ 5

DECISIONS OF THE COURTS

contract, and if Lanford, without just cause or good excuse to be
determined by the jury, then— June 10— discharged plaintiff, the
latter was entitled to his month’s salary, provided of course he did
not find employment elsewhere— as to which proviso no contention
was suggested in the trial court.
In considering Buck’s right to the $65 prize offered, the court said:
His right was affected by the condition named, viz, that he sell
more cars than any other salesman, but the contract between the
parties, though affected by that condition, if executed in good faith
on both hands, operated to the advantage of defendant as well as
plaintiff. At the time of the breach, plaintiff’s name, according to
his testimony, led all the rest— indeed, there was no dispute as to
that. Nor was there any fact in evidence tending to establish a
change in this order. I f there had been a change, the probative
facts lay within the peculiar knowledge of defendant and should
have been exhibited by him.
The Alabama Supreme Court therefore affirmed the holding of the
circuit court, rendering the judgment in favor of the salesman.

C on trac t

m ploym ent—

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

In re Opinion of Justices, Supreme
Judicial, Court of Massachusetts (May 20, 1929), 166 Northeastern
Reporter, page Ifil.— In answer to questions contained in an order
adopted by the Massachusetts Senate, May 7, 1929, and subm itted by
the senate o f the C om m onw ealth to the Suprem e Ju dicial Court o f
Massachusetts, the justices respectfully submit the fo llo w in g answers:
C a p it a l S t o c k b y E

m plo yee —

The first question in substance is whether under the constitution
legislation may be enacted providing that any written contract of
employment sfiall be void unless at the time of making the same a
copy be delivered to the employee, or prospective employee, signed
by the employer, or prospective employer, or an authorized repre
sentative. This question is answered in the affirmative. The kind of
contract thus described differs in no material respect as to its consti
tutional aspects from other contracts required by legislation to be
in writing.
It is competent for the general court to enact legislation regulat
ing business transactions to the extent indicated in this question
without being in conflict with the Constitution either of this Com
monwealth or of the United States.
The second question in substance is whether under the constitution
legislation may be enacted providing that any contract of employ
ment shall be void whereby is included as a consideration for the
acceptance of such contract by the employer the purchase by the em
ployee of capital stock of any nature in the business of the employer.
This question is answered in the negative. This inquiry touches the
natural, essential, and inalienable rights secured to every member
of society by articles 1, 10, and 12 of the declarat;on of rights of the
constitution of this Commonwealth to enjoy liberty, to acquire,
possess, and defend property, and to seek and obtain safety and

CONTRACT OF EM PLOYMENT

happiness. These rights are secured also against interference by the
several States under the fourteenth amendment to the Constitution
of the United States. These constitutional guaranties include liberty
of contract, and secure protection of that liberty against unwarranted
legislative encroachments. * * * The rights of liberty and private
property guaranteed by the Constitution are subject to such reason
able restraints as the common good or general welfare may require.
There is a broad field of regulation in this particular which is open
to the valid exercise of legislative power. But no case, so far as we
are aware, han irone to the extent of making void contracts of the
nature here inhibited.
The proposed statute attached to the order strikes down as void
every contract of employment whereby employer and employee
agree upon purchase by the latter of capital stock in the business of
the employer. It is an absolute prohibition which declares contracts
of that nature “ null and void.” We are of opinion that legislation
of this nature is an interference with freedom of contract, which can
not be justified under the constitutional mandates above referred to.
Everybody has a right to be free in the enjoyment and use of his
faculties in all lawful ways, to live and to work where and as he
chooses, to contract to earn his living in any lawful pursuit, and to
that end to enter into all proper contracts.

C o ntract

H i r e — Palmer

E m p l o y m e n t — D am ag es

for

B r each — A

u t h o r it y to

et al. v. New York Herald Co., Supi'eme Court of
New York, Appellate Division (February H , 1930), 239 New York
Supplement, page 619.— The New York Herald Co. owned and pub
lished newspapers in the eastern part of the United States. The
company was owned by James G. Bennett, who conducted the com
pany as a 1-man corporation. After his death, Candler, counsel for
the company, called a meeting of the board; it was decided that the
papers were to continue under the direct supervision of the board
and that all business should be handled by the members of the board.
Candler also instructed all heads of departments that no contracts
were to be made, no commitments or action taken, or news matter
printed, which might create any liability against the company with
out referring the matter to him.
De Witt, advertising manager for the company made arrangements
with one John Glass to represent the company in the western terri
tory on a 10 per cent commission basis. De Witt drew up a letter
outlining a contract of employment for three years and forwarded
it to Glass, who wrote “ accepted ” on the letter and signed his name.
Thereupon a copy of the letter was sent to the treasurer of the com
pany and also a copy to the executive committee.
In 1920 the executors of the estate of James G. Bennett contracted
to sell the stock in the company, free of all contracts to Frank Munsey. A letter was written to Mr. Candler respecting the contran

DECISIONS OF THE COURTS

with Glass stating that since the contract was for three year's it would
not be accepted by Munsey. The contract was immediately termi
nated, and Glass was discharged. He filed suit against the company
for an alleged breach of the contract, and upon his death the suit was
continued by Charles M. Palmer.
The supreme court rendered a judgment in favor of Palmer in the
sum of $34,275.68; the board appealed the case to the appellate divi
sion, contending that there was no authority, express or implied, in
the advertising manager, De Witt, to make such a contract as the one
in suit. The board also claimed the court erred in fixing the amount
of damages. Regarding the validity of the contract, the court said,
in part, as follows:
We think that under all the rules applicable to the construction
of a letter of this character it must be held that the contract in suit
was not void for lack of mutuality.
W e think, too, that it must be held besides that the contract was
authorized and ratified and that the defendant corporation is bound
thereby and could not deny validity.
It appears in our judgment that the executive committee itself had
power, express or implied, to authorize De Witt to execute the con
tract for the company or that they had been held out as possessing
such puwer. But whether or not tne committee had power to author
ize De Witt to make the contract with Glass, it would seem to be
obvious that the contract has been ratified.
The Glass contract was in operation for more than a year, and
there is nothing to indicate that any attempt would have been made
to cancel it had it not been for the sale of the Herald and Telegram
to Mr. Munsey.
The only reason assigned in the proof is the letter of Flaherty to
Candler on January 20, 1920, in which he states that the contract
being for a period of three years will not be accepted by Mr, Munsey
and should be terminated.
During all this period the Herald received the benefit of the con
tract and can not now be heard to deny its execution as unauthorized.
However, the court reversed the judgment in part because a correct
rule of damages was not applied. The case was therefore remanded
for a new trial.
C ontract of E m plo ym en t — D ischarge— D amages for C ausing —
R ights of E mployee — Caulfield v. Yazoo & M. V. R. Co., Supreme

Court of Louisiana (March 5, 1930), 127 Southern Reporter, page
585.— George L. Caulfield was employed as a conductor on a passen
ger train of the Yazoo & Mississippi Valley Railroad Co. at a salary
of $430 per month. He had been in the service of the company for
37 years continuously and was one of the senior conductors, with the
expectation of some day retiring on a pension. He was discharged
for an alleged violation or neglect of a rule of the company by

CONTRACT OF EM PLOYM ENT

failing to include in his report to the railroad auditor the fare of a
passenger who rode on his train and by failing to give a satisfactory
account of the omission. The passenger referred to was a colored
man named Forest, who was put aboard the train by the division
superintendent for the purpose of checking up the conductor’s
observance of his duties. The passenger rode from Istrauma to
Walker and no record of the fare, which was only 66 cents, appeared
in the conductor’s report.
The rule regarding the procedure followed in dismissing con
ductors, as stated in the agreement between the railroad and the
Order of Railway Conductors, was as follows:
Conductors will not be dismissed or suspended from the company’s
service without just cause; investigation will be conducted ordinarily
within 10 days. In case of suspension or dismissal, if the employee
thinks his sentence unjust, he shall have the right within 10 days
to refer his case by written statement to the superintendent. Within
10 days from the receipt of this notice his case shall have a thorough
investigation by the superintendent, at which he shall be present.
In case he shall not be satisfied with the result of said investigation
he shall have the right to appeal to the general superintendent and
from him to the general manager. In case the suspension or dis
missal is found to be unjust he shall be reinstated and paid for time
lost. The result of the investigation shall be made known within 10
days. A conductor called in for investigation may be accompanied
by a conductor of his choice, in the employ of the company, who may
be present during the entire investigation, and ask such questions as
might develop facts pertinent to the case, I f the evidence at any
investigation is transcribed, copy will be furnished local chairman
on request.
Caulfield brought this suit for damages, averring that he was
not given a hearing on the charge, that he was not guilty, and
that even if he was negligent, as charged, it was a trivial matter
and not one which would justify his dismissal. He claimed
“ $10,000 for mental suffering, $ 10,000 for injury to his reputation
by the suspicion cast upon his character for honesty and integrity,
$10,000 for the loss of his prospect of retiring upon a pension, and
$430 per month for the loss of salary from the date of his discharge
until the date when he would be reinstated or the date of the final
judgment in the case.”
The district court, nineteenth judicial district, gave judgment in
favor of the conductor for $430 per month from the date of his
discharge until the date of the judgment of the court, but rejected
the demand for the $30,000 damages. He appealed to the Supreme
Court of Louisiana, contending that the investigation made by the
division superintendent was not a thorough one. The court did not
uphold this contention, as no such complaint was made by the con

DECISIONS OF THE COURTS

ductor previous to this appeal. The court affirmed the decision of
the district court, saying in part:
It appears, therefore, that the discharge of the plaintiff was done
according to the rules governing his employment. The railroad
business is one which in its very nature requires strict obedience of
the rules of the company on the part of the employees. The rule
which requires conductors to report and account tor the fares of all
passengers who ride on their trains, and which admits of no deviation
or excuse, is not so harsh as to be opposed to public policy. And
there is nothing contrary to public policv in the agreement between
the railroad company and, the Order of Railway Conductors that,
after a full and fair investigation, the division superintendent of the
railroad, and after him the general superintendent, and after him the
general manager of the road, shall decide finally on the justness of a
suspension or dismissal of a conductor.
The rule is stated thus in 39 C. J. 73, sec. 62:
“ Where a contract of employment provides that any dispute aris
ing in connection with the agreement should be referred to arbitra
tion in accordance with the provisions of the by-laws of an associa
tion, an award adverse to the employee on a reference of the ques
tion of misconduct involved the question of the right to dismiss, as
a dispute arising in connection with the agreement for service, and
is binding upon the employee.”
The same principle is applied to other contracts— other than con
tracts of employment— and particularly to building contracts con
taining the stipulation that the work shall be performed to the sat
isfaction of the architect or engineer.

C o n tr ac t

E m p l o y m e n t — D isch ar g e — D

n sa t isf a c t o r y

S ervice — Weisenbach

am ag es for

C a u s in g —

v. McDermott Surgical In
strument Co. (Inc.), Supreme Court of Louisiana (Jime 17, 1929),
123 Southern Reporter, page 336.— On July 1, 1922, Leo Weisenbach
was employed by the McDermott Surgical Instrument Co. for a period
of two years at a salary of $100 per week. As his sales during that
period showed a gross profit of 41 per cent, his contract was renewed
for another two years at an increased salary of $135 per week. On
September 12, 1925, he was discharged and as a result of this sued
the company for his salary for the unexpired term, alleging he was
discharged without just cause.
The employer made the defense that he was discharged for good
and sufficient cause, and brought facts into court to show that when
the contract with Weisenbach was made he was advised that his sales
must average a gross profit of 33 per cent. The evidence showed
that Weisenbach averaged only 19 per cent during the first six months
of 1925, and that he was dissatisfied with his employment and had
been endeavoring to establish for himself a business to compete with
the McDermott Surgical Instrument Co.
U

CONTRACT OF EM PLOYM ENT

The trial judge of the civil district court, Parish of Orleans, found
the company had sufficient cause to discharge Weisenbach and upon
appeal to the Supreme Court of Louisiana, this decision was affirmed.

C on tract

E m ploym ent— D

ischarge —

n sa t isf ac t o r y

S erv

Fried v. Portis Bros. Hat Co.,
Court of Appeals of Georgia (January &£, 1930), 152 Southeastern
Reporter, page 151.— Harry Fried was employed by the Portis Bros.
Hat Co. under a contract of employment authorizing discharge when
the employer was dissatisfied with the employee’s services. Fried
was discharged upon the ground that his services were unsatisfac
tory, whereupon he filed suit against the employer alleging the dis
charge was wrongful, as the employer had fraudulently claimed his
services were unsatisfactory. The city court of Macon, Ga., rendered
judgment in favor of the employer and Fried carried the case to the
Court of Appeals of Georgia, where the decision of the lower court
was reversed.
Judge Stephens, speaking for the court, said in part as follows:

ices —

C o m m is s io n s

a r n in g s —

Where, by the terms of a contract of employment, the employer
may discharge the employee when dissatisfied with his services, the
employer, when exercising this right, must do so honestly and in
good faith and only when the services are in fact unsatisfactory to
the employer. (Mackenzie v. Minis, 132 Ga. 323, 63 S. E. 900.)
Where the discharge of the employee purports to be upon the ground
that his services are not satisfactory to the employer, yet they are in
fact satisfactory, the discharge, notwithstanding the purported
ground assigned by the employer, is not a discharge because the
employee’s services are unsatisfactory to the employer. Where such
discharge is not otherwise justified it is wrongful and constitutes a
breach of the contract.
The breach of the contract consists in the discharge of the employee
in violation of the contract. Where the contract permits the aischarge when the employee’s services cease to be satisfactory to the
employer, a breach of the contract is shown where it appears that the
employee’s services were not unsatisfactory to the employer, and
that the employer, when discharging the emplovee upon the ground
that the latter*s services were unsatisfactory, falsely, fraudulently,
and in bad faith gave this as a reason for the employee’s discharge.
Regarding the amount Fried was entitled to recover under the
contract, the court said:
A contract of employment under which the employee is to act as
a salesman for the employer for a definite period of time and is
given a “ drawing account ” payable monthly in designated install
ments during the term of the contract, the payments made on the
drawing account to be charged against commissions to be earned
by the employee as a salesman, and which provided that the em
ployer is to advance to the employee amounts to be mutually deter

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

cou rts

mined by them from time to time as traveling expenses for the
employee, and which are to be charged against the commissions to
be earned by the employee, the amounts paid to the employee as
a drawing account, although chargeable against the commissions to
be earned by him, are nevertheless unconditional payments for
services rendered, irrespective of the amount of commissions which
the employee may earn. Where the employee is unlawfully dis
charged before the expiration of the term of employment, and, before
the expiration of the term, brings suit against "the employer for
damages sustained by reason of such discharge, the employee’s
measure of damages is the salary or advancements which he" was
entitled to receive under the terms of the contract for the remainder
of the term subject to reduction by proof at the trial. (Civil Code
1910, secs. 3588, 3589; Roberts v. Rigden, 81 Ga. 440, 7 S. E. 742.)
The Supreme Court of New York (Westchester County) held that an
employer was entitled to cancel the employment contract only because of real
dissatisfaction with the employee’s work. Whether the employer’s claimed
dissatisfaction with employee’s work was real or feigned was a question of
fact for the jury to determine. If not a real dissatisfaction the employee
had a cause of action against the employer for breach of the contract. (Gutner
t>. Success Magazine Corp. et aL (1930), 242 N. Y. Supp. 679.)

C ontract

E m plo ym en t — R ights to I nvention — P atents —

Hoyt v. Gorporon, Supreme Judicial Court of Massachusetts (Oc
tober 6, 1929), 168 Northeastern Reporter, page 9^— George J.
Corporon began working for Frank M. Hoyt in June, 1920, in his
business of blanching peanuts, salting them, and making peanut
butter. Corporon was hired because of his mechanical training and
knowledge, and was employed to exercise supervision over the me
chanical operation of the entire plant, “ including the improvement
of existing, and the development of new or additional machinery,
and the general improvement of production and efficiency.”
In the course of his work Corporon perfected a machine which was
satisfactory. This machine and also another machine later invented
were patented in Corporon’s name, and the employer paid all ex
penses thereto, supposing and expecting the rights would be his.
Hoyt consented that the patent be applied for in Corporon’s name
as a means of complete and adequate protection and as a means of
keeping the machine away from public view.
Corporon was discharged from Hoyt’s employment in January,
1925, and this suit was made to recover the title to the patents.
Corporon defended his right to the patents on the ground ( 1) the
mere fact that one is employed by another does not prevent him from
making improvements on the appliances and machinery used in the
business and obtaining patents therefor as his own property; (2 )
that Hoyt was guilty of laches. “ The patent for the blanching ma

CONTRACT OF EM PLOYM ENT

chine was issued June 7, 1921; the application for the vending
apparatus was filed February 2, 1922; the defendant was discharged
January 15, 1925; and the plaintiff’s bill was filed November 29,
1926.”
The court rendered a decree for the employer and said regarding
his rights:
The plaintiff was not satisfied with the machines he was using; he
desired to perfect them, to improve his processes for blanching and
to bring about a general improvement in production and efficiency.
It was for this purpose the defendant was employed. The results
of his efforts in perfecting the blanching machine and in inventing
the vending machine belong to the plaintiff, and the patents for these
machines are the property of the plaintiff.
Regarding the second contention the court said in part as follows:
In view of the defendant’s conduct, his concealment of his true
intent, and all the facts found by the master, together with the con
fidence reposed in the defendant by the plaintiff, and the absence of
a refusal to assign the patents, although the plaintiff admitted on
cross-examination that he knew in 1921 “ the defendant was claiming
the patent on the blancher to be his own,” in our opinion the plaintiff
was not guilty of laches and did not by his delay deprive himself of
the right to the patents.
C ontract of E m plo ym en t — Y iolation of L abor C ontract L a w —
B reach w it h F raudulent I n te n t — Golden v. State, Gourt of A p

peals of Georgia (November IS, 1929), 150 Southeastern Reporter,
page J^52.— John Golden contracted with Howard-Parker Co. to
work certain turpentine boxes from March 8, 1927, to the end of the
turpentine season, about November 1, 1927. On June 3, 1927, he
approached a member of the firm employing him and borrowed $10
to enable him to go to Savannah and collect money which, he said,
was due him on an insurance policy on his wife’s life, promising at
the time to return and continue his work on June 6, 1927. On June
6 he returned but failed to go to work, his only reason for not
doing so being that he was wworried.” He testified before the jury—
That he was so worried that he could not work; that he went back
to Savannah to try to find the person who had taken his money, and
was taken sick and had not been able to work since; that when he
got back to Effingham County he got a better job; that his employer
agreed to pay a $100 account he had with Howard-Parker Co.; that
he intended to work for Howard-Parker Co., but “ did not promise
to work it out ” ; that after he left on June 6, 1927, he was worried,
and that after he failed to find his insurance money he was taken
sick and was unable to work for about a month; and that he got a
better job when he was able to work.

DECISIONS OF THE COURTS

This testimony was contradicted by the testimony of Parker, a
member of the firm, who said:
That he had offered to settle a $100 account with the defendant,
but that this had nothing to do with the said advancement of $10
or with the present case; that after defendant left on June 6, 1927,
witness made a diligent search for him, but never saw him until he
was arrested about eight months later in Effingham County; that
defendant never worked for his firm after June 6, 1927; that de
fendant never said he was going back to Savannah to look for insur
ance money he stated he had lost; that defendant said he would
come back and work out the money advanced him; and that no one
ever offered to pay defendant’s account.
The case was tried by the city court of Ludowici, Ga., and Golden
was convicted of violating the labor contract act. Upon his appeal,
the Court of Appeals of Georgia held the evidence in the case was
sufficient to show the intent to defraud and to warrant the jury in
finding Golden guilty. The decision was therefore affirmed.

C ontract

E m ploym ent— V

io l a t io n of

L abor C o n tract L a w —

Garnto v. State, Court of Appeals of Georgia {July 9,
1929), H 9 Southeastern Reporter, page 150.— W a lte r G a rn to was
convicted in the superior court, Laurens C ou n ty, Ga., o f v io la tin g
the labor contract law (P en . Code 1910, secs. 715, 716) and appealed
the case to the C ou rt o f A p p e a ls o f Georgia, contending the evidence
E vidence —

w as insufficient to sustain the conviction.

The facts were in dispute. J. M. Gay testified that Garnto had
worked for him for several days prior to September 3, 1927, and
that he had picked 180 pounds of cotton and pulled fodder for sev
eral days. On September 3, 1927, Gay met Garnto in Dublin, Ga.,
and upon his request Gay gave him $5. Garnto promised to begin
picking cotton in Gay’s field the following Monday morning and
continue until all the cotton was picked. Gay further testified that
Garnto did not begin picking cotton the following Monday, in fact
had done no work for Gay, and refused to do any work or to pay
back the $5. On the other hand, Garnto testified that the $5 he
received from Gay was in payment of work already done; that Gay
had refused to allow him to continue work and demanded the $5,
even though he had picked 400 pounds of cotton and pulled fodder
for five days.
The court considered the evidence and upon the authority of John
son v. State (18 Ga. App. 701, 90 S. E. 355) and King v. State (36
Ga. App. 272, 136 S. E. 466) found the evidence adduced upon the
trial of this case insufficient to support the verdict of guilty.
The court of appeals held that the lower court erred in overruling
the motion for a new trial and therefore the judgment was reversed.

DECISIONS OF THE COURTS

C onvict L abor— A rticles M anufactured i n A ccordance w i t h
S tatute — M arking — Ove Gnatt Go. v. Jackson et al., Appellate

Court of Indiana (November 18, 1930), 173 Northeastern Reporter,
page 335.— The Ove Gnatt Co., manufacturers of floral baskets,
brought action against the superintendent and the board of trustees
of the Indiana State Farm, alleging that after the passage of tho
act of 1917 concerning prison labor the superintendent and trustees
of the Indiana State Farm engaged in making and selling floral
baskets from willows raised on the State farm, in competition with
the manufacture of such baskets in the State, and—
That they are sold and are selling such baskets to the trade gen
erally in this and other States at prices 40 per cent below the cost of
production by the use of free labor. That the State, in its institu
tions and political divisions, have not and can not use said floral
baskets, and the defendants are making and selling them without
authority of law and in violation of law; that the defendants are
employing prison labor in making such baskets which are being sold
through sales agents to dealers in Indiana and elsewhere in compe
tition with the plaintiff in violation of law and in excess of the
authority given them by the legislature, the said baskets not being
marked “ prison made.”
A trial by the Putnam County circuit court resulted in a judg
ment for the trustees of the State farm, from which judgment the
Ove Gnatt Co. appealed to the Indiana Appellate Court. In discuss
ing the acts of 1917 concerning prison labor and the nature of goods
allowed to be manufactured under the act the appellate court said:
The extent to which prison labor shall be used and the disposi
tion of the products of such labor, is an administrative question over
which the legislature and not the judicial department has control.
It is well recognized that prisoners in penal institutions can not be
left unemployed, and that they should, as a matter of course, be
employed in such work as will the least affect free labor and legiti
mate business. The problem is a difficult one to solve. Indeed, it
would be hard to conceive of an industry at which prison labor could
be employed that would not, in some degree, come into competition
with free labor and some existing manufacturing establishment.
Section 2 of the act of 1917, page 237, chapter 83 (sec. 12445,
Burns’s, 1926), concerning the labor of inmates of our penal institu
tions, including the State farm, on State account, requires that the
State, its institution and political divisions, shall purchase such
articles at prices fixed by the board of classification. By section 1
of this act the State farm is “ authorized to manufacture such articles
as are used by the State, its institutions and its political divisions
* * * and to sell the surplus, if any, upon the market.”
It was the legislative intent that the penal institutions should use
prison labor only for the purpose of manufacturing such articles as
are used by the “ State, its institutions and its political divisions,”
and to produce such articles and products as may be found prac
ticable and to sell the surplus. Of the 138,612 floral baskets made by

DECISIONS OF THE COURTS

appellees in 1927, only 0.0238 of 1 per cent was sold to the State,
its institutions and political divisions, while 99.9762 per cent was
sold in the open market. It was the intention that all articles manu
factured or produced by prison labor should be sold on State ac
count—that is, to the State and its political divisions— and that if, in
so manufacturing on State account, there should perchance be a sur
plus such surplus might be sold on the open market. The idea was
that the bulk of the articles manufactured should be sold on State
account, and that the surplus, if any? would be so insignificant that
it woula not come into competition with or affect free labor. It was
not intended that the authorization to sell the surplus should give
appellees the right to engage in a manufacturing business mamlv
for the purpose of manufacturing goods and merchandise for sale to
the trade.
It was also contended that the State should be required to mark
all baskets made by it “ prison made,” and that it should be enjoined
from making and selling to the trade floral baskets if such baskets
are not so marked. The statute bearing upon this question was chap
ter 264, Acts of 1901, page 618, section 1, and the court held it was
inapplicable to State penal institutions, being applicable only to those
purchasing prison goods and offering them for sale.
However, the decision of the lower court was reversed as being
contrary to the law.
E i g h t - H o u r L a w — C o n s t r u c t io n — “ W a t e r w o r k s ” — People ex
rel. S . J. Groves & Sons Co. (Inc.) v. Hamilton, Industrial Commis
sioner, Supreme Court of New York, Appellate Division (November
27, 1929), 288 New York Supplement, page 81.— The New York
labor law forbids the employment of labor for more than eight hours
for all classes of employees except those engaged in farm and domes
tic service unless otherwise provided by law. Among the exceptions
are “ employees engaged in the construction, maintenance, and re
pair of highways and in waterworks construction outside * * *
of cities and villages.” (Labor law, sec. 3, and sec. 220, subd. 4,
par. d.)
S. J. Groves & Sons Co. (Inc.) had a contract with the Hudson
River District Regulating Co. for the construction of a dam on the
Sacandaga River, the purpose of which erection was the control and
regulation of river flow. The industrial commission ruled that the
8-hour day should constitute a legal day’s work for the employees
on this project.
The company appealed to the appellate division of the New York
Supreme Court to review the decision of the commission, contend
ing that this work came within the exception noted in the law as
“ waterworks construction.” The court ruled that the term as used

EMPLOYERS9 LIABILITY

in section 220 of the labor law did not relate to the work of river
regulation. The court said:
The interpretation required by the law is that of ordinary use of
the word waterworks in the communities of the State where water
works are located. (Sutherland on Statutory Construction, sec. 242.)
The language of section 220, subd. 4, of the labor law, comprehends
only construction of waterworks outside cities and villages. It is
obvious that within the contemplation of the legislature was only
such waterworks as could be constructed under the law by cities and
villages.
What is meant by u stove works,” u powder works,” “ locomotive
works,” “ gas works,” are the grounds, buildings, machinery, and
plant used to produce stoves, powder, locomotives, or gas. (People
v. Haight, 54 Hum. 8, 7 N. Y. Supp. 89.) So “ waterworks ” in gen
eral parlance, when used by the lawmaking power, mean the grounds,
waters, and structures necessary to prepare water for domestic uses
and carry and distribute the same.
Regarding the interpretation of such laws the court quoted Mr.
Justice Story, who said in U. S. v. Winn (Fed. Cas. No. 16,740, 3
Sumn. 209):
In short, it appears to me that the proper course in all these cases
is to search out and follow the true intent of the legislature, and to
adopt that sense of the words which harmonizes best with the con
text, and promotes in the fullest manner, the apparent policy and
objects of the legislature.
The court confirmed the decision of the industrial commission,
holding that the legislature did not mean “ river-regulating work ”
construction when it used the term “ waterworks construction.”

E mployers’ L iab ility — A ccident— O rders of S uperior— F ailure
O bey I nstructions — Unadilla Valley R. Co. v. Caldine, Supreme

Court of the United States (December 10, 1928), Ifi Supreme Court
Reporter, page 91.— Harold E . Caldine was conductor of train No.
2, operated by the Unadilla Valley Railway Co. upon a track that
passed through Bridgewater, N. Y. He had printed orders that his
train was to pass train No. 15 in the Bridgewater yard, and that
No. 15 was to take a siding there to allow No. 2 to pass. On the
day of the accident after reaching Bridgewater, instead of waiting
there as his orders required him to do, Caldine directed his train to
go on. The consequence was that at a short distance beyond the
proper stopping place his train ran into train No. 15, and he was
killed.
Ernest Caldine, the administrator, brought an action against the
railway company, alleging the collision was due to the negligence
of the other employees and the station agent who failed to notify
Caldine that No. 15 was near.

DECISIONS OF THE COTJKTS

The trial court rendered a verdict in favor of Caldine, but on
appeal the judgment was reversed by the appellate division of the
Supreme Court of New York. The case was carried to the court of
appeals by Caldine and the judgment of the lower court was re
versed, affirming the judgment of the trial court for Caldine. The
case was then appealed to the Supreme Court of the United States.
Mr. Justice Holmes delivered the opinion of the court reversing
the judgment of the New York Court of Appeals. He said in part,
as follows:
It seems to us that Caldine, or one who stands in his shoes, is not
entitled as against the railroad company that employed him to say
that the collision was due to any one but himself. He was in com
mand. He expected to be obeyed and he was obeyed as mechanically
as if his pulling the bell had itself started the train. In our opinion
he can not be heard to say that his subordinate ought not to have
done what he ordered. He can not hold the company liable for a dis
aster that followed disobedience of a rule intended to prevent it,
when the disobedience was brought about and intended to be brought
about by his own acts.
It seems to us even less possible to say that the collision resulted
in part from the failure to inform Caldine of the telephone [call]
from train No. 15. A failure to stop a man from doing what he
knows that he ought not to do hardly can be called a cause of his
act. Caldine had a plain duty and he knew it. The message would
only have given him another motive for obeying the rule that he was
bound to obey.
E

m ployer s ’

L ia b il it y — A

m p l o y m e n t —Horwitz

cts of

E m plo yees — A

ssau lt —

C ourse

et al. v. Dickerson, Court of Civil Appeals of
Texas (<January 9, 1930), 25 Southwestern Reporter (2d), page
966.— Suit was brought by George Dickerson against Will Horwitz,
individually, Horwitz Texas Theaters (Inc.), and Preston Amuse
ment Co., the two latter being corporations, to recover actual and
exemplary damages for an assault alleged to have been made upon
him by Will Horwitz on the 10th day of November, 1928.
From the facts it appears that at the time of the assault there was
in existence a strike of union motion-picture operators who had been
employed in the theaters owned by the two corporations mentioned
above and managed by W ill Horwitz. Certain musicians employed
in the same theaters organized a strike in sympathy with the motionpicture operators who were on strike. The musicians’ local union
No. 65 supplied a band to play, on a truck which the operators had
employed. Banners were placed upon this truck, gratuitously adver
tising all prominent theaters in Houston as being fair to organized
labor, except those under the management of Horwitz. While the
truck was moving over the streets of Houston and the band playing
E

em ployers'

l ia b il it y

thereon, Horwitz procured eggs and threw them at the musicians,
several of the eggs striking Dickerson, resulting in the alleged
damage.
The Harris County district court rendered a judgment in favor
of Dickerson and assessed damages. From this judgment the two
corporations and Horwitz appealed to the Court of Civil Appeals of
Texas, contending—
( 1) That under the undisputed facts of this case they were, as
a matter of law, not liable for the malicious acts of their agent,
Horwitz, as such acts were clearly not performed within the scope
of such agent’s employment; (2 ) that, it they are in error as to the
first contention, still the judgment as to them should be reversed,
because the evidence raised the issue of provocation, and the court
refused, upon defendants’ request therefor, to submit such issue to
the jury; and (3) that the verdict of the jury assessing $500 against
defendants as actual damages for humiliation is excessive, no per
sonal injury being shown.
The court sustained the first of these contentions, and in reversing
the judgment said, in part:
It clearly appears from the evidence as a whole that the parade
instigated by the striking motion-picture operators and musicians
was intended as an affront to appellant Horwitz, and that Horwitz
taking it as such became angry and made the assault as an individual,
and that he was not, in making such assault, acting within the scope
of his authority as general manager of the theaters.
I f the servant, under the guise and cover of executing his master’s
orders, and exercising the authority conferred upon him, willfully
and designedly, for the purpose of accomplishing his own independ
ent, malicious, wicked, or wrongful purpose, does an injury to
another, the master is not liable for the injury done. [Cases cited.]
Th^ court also sustained Horwitz’s contention that the question
of provocation should be considered and held that if the jury found
that the acts of Dickerson and the other musicians provoked the
assault, then the damages should be reduced. The judgment against
the two corporations was therefore reversed, and the judgment
against Horwitz was reversed and the cause remanded for retrial.

E m ployer s ’

L ia b il it y — A

cts

m plo yees

— N egligence —

Finney v. Banner Cleaners <& Dyers (Inc.)
et al., Court of Appeal of Louisiana (March 10,1930), 126 Southern
Reporter, page 573.— The Banner Cleaners & Dyers of New Orleans
was having its building repaired and remodeled. Charles Finney,
a Negro 64 years of age, was engaged as foreman by the subcon
tractor who had a contract for repairing the roof on the building.
It appears that Finney was at work in a public alley located at the
A

ssu m p tio n of

R is k —

DECISIONS OF TH E COURTS

rear of the building, preparing tar and the necessary tools for the
crew that was to go on the roof of the building, and had taken
these tools and buckets from a building on the downtown side of
the alley. Observing that there was a truck coming into the alley
he stepped across the alley to what he considered a place of safety,
placed the buckets on the ground, and stood with his back toward
a double-solid gate, located on the Banner Cleaners & Dyers’ prop
erty. When the truck was in close proximity to him, he was sud
denly, violently, and without warning struck from the rear by this
gate which one of the Banner Cleaners & Dyers’ employees had
opened, causing him to fall in front of the truck which ran over
his left foot, fracturing three bones.
On the trial of the case by the civil district court, Parish of
Orleans, judgment was rendered against Finney and the suit dis
missed. Finney thereupon appealed to the Court of Appeal of
Louisiana. On appeal Finney contended that—
As the employee of the defendant who opened the doors or gates
knew that they opened outwardly and that the alley was a common
one traversed by pedestrians and vehicles, he was guilty of negli
gence and carelessness in suddenly, without warning, and with force
opening the door, through which he could not see, in disregard of
the rights of those who might be using the alley, and therefore
defendant is liable.
The Banner Cleaners & Dyers contended that—
It was not negligence on the part of its employee to open the doors
or gates, as he could not foresee that anyone would be standing by
them and that he did not owe the plaintiff any duty of anticipating
his presence or that of the truck; that the plaintiff saw or should
have seen the double-doors or gates and realized that they might
be used at any moment, and having assumed a position of danger,
he was guilty of contributory negligence which bars his recovery;
and that plaintiff assumed the risk incidental to the use of the alley.
The court held that Finney was not guilty of contributory negli
gence as he had a right to assume that the doors would not sud
denly, forcefully, and without warning be opened so as to knock him
down. Neither did the court uphold the plea of assumption of risk,
as the risk was not incidental to the nature of the work Finney was
doing.
In concluding the opinion, reversing the judgment of the lower
court, the court said in part as follows:
The plaintiff was lawfully in the alley. The defendant’s em
ployee knew that workmen were engaged in the repair and remodel
ing of the building and were frequently using the alley where they
were preparing the material for their work. He also knew that
the doors or gates swung outward into a narrow alley. Defendant’s
employee was therefore at fault in opening the doors suddenly with

EMPLOYERS* LIABILITY

force and without warning when he was unable to see if there was
anyone passing or standing in front of the doors at the time. He
failed to use such care and precaution as an ordinary prudent per
son should have exercised under the circumstances.
Defendant further contended that a reasonably prudent person
could not have foreseen that a truck would be passing at the time
that the doors were opened and that the plaintiff would be knocked
into the path of the oncoming truck. It is immaterial that defend
ant’s employee may not have foreseen or been able to foresee the
particular consequences which followed his negligent act, “ That
the particular injurious consequence was ‘ improbable’ or ‘ not to
be reasonably expected ’ is no defense.” (Payne v. Georgetown Lum
ber Co., 117 La. 983, 42 So. 475, 477.)
It is therefore ordered, adjudged, and decreed that the judgment
appealed from be and it is annulled, voided, and reversed, and it
is now ordered that there be judgment in favor of plaintiff, Charles
Finney, and against the defendant Banner Cleaners & Dyers (Inc.)
in the full sum of $1,363.50 with legal interest from judicial demand
until paid.
E mployers’ L iab il ity — A cts of E mployees— T hird P arty I n
jured— M aster and

S ervant —Nagy v. Kangesser, Court of Appeali
of Ohio, Cuyahoga County {June 4, 1928), 168 Northeastern B eporter, page 517.— Julia Nagy was injured on June 8,1925, in the city
of Cleveland, before the hour of 8 a. m., by an automobile driven by
one Berg, who was en route to the business place of Kangesser where
he was under employment as a collector. The terms of this employ
ment were that during the hours between 8 a. m. and 5 p. m. while
using his own automobile for that purpose (the one in which he was
riding at the time of the accident) he was to act as collector for the
company, and if circumstances were such that it was not feasible or
possible for him to report before 5 p. m. and turn in the collections
of money received, he was to retain the same and deposit them with
Kangesser the next morning when he returned to work with his auto
mobile. Following the accident Julia Nagy brought an action
against M. H. Kangesser, the employer, and it was argued that Kan
gesser was liable under the doctrine respondeat superior, because at
the time of the accident Berg had money in his possession and was per
forming his duty by proceeding to Kangesser’s place of business not.
only for the purpose of resuming work but to feturn the slips of
the day before and deposit the amount of collections.
The court of common pleas sustained a motion on behalf of Kan
gesser for a directed verdict, on the theory that the doctrine of re
spondeat superior did not apply, under the undisputed facts in the
record. The case was taken to the Court of Appeals of Ohio. This
66588°— 31—— 6

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

courts

court affirmed the decision of the lower court and said, in part, as
follows:
It is irrefutable that after 5 p. m. and before 8 a. m. of the fol
lowing day there was no liability between the master and servant,
because there was no business or contractual relationship existing
between them, under the terms of the contract.
Now, inasmuch as the accident happened prior to 8 a. m., there
could be no liability under the doctrine of master and servant, be
cause the employee was not an employee in the performance of any
duty in behalf of the master, unless it can be said that the employee
is on his master’s business while he is en route to his work to perform
his duties. This position obviously is not tenable under the authori
ties, because the master can not be held liable unless the act in ques
tion is part of an actual duty connected with employment.
Continuing the opinion the ruling of the lower court was quoted,
in part, as follows:
I think that there can be no question but that after Berg ceased
his labors for the day, he was then what we might say his own boss
from that time until he reported the next morning and started out
on his day’s labors for that day. There isn’t any question but what,
in the evening, after he quit work, he could use nis automobile to go
where he saw fit, yet he could have the money which he had collected
that day with him, and until the next morning at 8 o’cloc k he could
do as he liked and go where he liked, and the defendant would have
no control over him until he reported at the store at 8 o’clock the next
morning to be given cards for his day’s labor.
The judgment of the common pleas court was therefore affirmed.

E mployers’ L ia b ility — A dmiralty — A ssumption of R is k b y S ea
S afe P lace to W ork— Engfors v. Nelson Steamship Co. et al

m an—

Supreme Court of Oregon (September 17, 1929), 280 Pacific Re
porter, page 337.— Gust Engfors, an employee of the Stout Lumber
Co. o f Oregon, on the 14th day o f January was engaged in work on
the steamship Martha Buehner. He was ordered to descend into the
hold of the vessel to assist in placing lumber as it was delivered.

In going from the place where he was then working to the ladder he
walked along the hatchway coaming and slipped, fell into the hold—
a distance of 15 feet— and received severe and permanent injuries.
He proceeded to s§ek compensation, charging negligence on the part
of the employer in the failure to provide a guard around the hatch
way and in piling lumber on the deck too near the coaming.

The

facts show that only 6 or 8 inches were left between the lumber and
the hatch coaming.

These contentions were met by the employer,

who alleged Engfors was negligent in attempting to proceed by the
route he chose, that there was a safe, obvious, and convenient way

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

for him to have proceeded, and that he was fully aware of the risks
involved.
The circuit court, Multnomah County, Oreg., found that the oper
ator of the vessel failed to provide safety appliances required by
the statute and failed to provide a safe place to work as described by
the statute, and in view of these findings awarded $3,500 to the em
ployee. The Nelson Steamship Co, appealed the case to the Supreme
Court of Oregon, contending Engfors assumed the risk, relieving
them of liability.
The question involved on appeal was the application of assumption
of risk and contributory negligence, as the findings of facts by the
lower court were binding upon the supreme court.
Chief Justice Coshow rendered the opinion of the court, and, re
garding the assumption of risk by the employee, said in part as
follows:
Assumption of risk is only correctly applied when an employee is
held to assume the natural and ordinary risks of his occupation, and
that it should never be said that he assumes the risk of his employer’s
negligence unless the risk is so apparent and obvious that the em
ployee must have known and understood it or of such long standing
that his appreciation and knowledge will be implied. He might be
guilty of contributing to his own injury, but under the said em
ployers’ liability act that is not a complete defense. Contributory
negligence will not prevent an injured employee from recovering
damages; it may be used only to reduce the amount, or more accu
rately speaking, unless he is more guilty than his employer he will
recover some damage. I f it be that he assumed the risk, he can not
recover at all. Under the Federal employers’ liability act (45
U. S. C. A., secs. 51-59), when the injury is caused by the failure of
the master to provide a safe place to work or safe appliances, the
defense of assumption of risk can not be made.
He concluded the opinion by affirming the judgment of the lower
court, as follows:
We conclude, after a thorough examination of all the authorities,
that the findings of the learned circuit court support the judgment.
It is imposs ble to reconcile all of the decisions with their various
shades of difference regarding assumption of risk and contributory
negligence, but it is our conclusion that plaintiff did not assume the
risk of defendant’s negligence in failing to place a suitable guard
around the coaming of the hatchway and in failing to leave sufficient
space for the workmen to pass around the hatchway in safety.

E mployers’ L iab ility — A ssumption of R isk — C ausal C onnec
I n ju r y to E ye — Moseley v. Reading Co., Supreme Court of
Pennsylvania (January 28,1920), lift Atlantic Reporter, page 293.—
De Witt Moseley was employed by the Reading Co. to clean the snow
and ice from the frogs of the switches at Logan Station, Pa. An
tion —

DECISIONS

th e

cou rts

other employee, named Burke, was to work with him. The switches
were cleaned by pouring on oil, which being set on fire melted the
snow and ice, so that it could be shoveled or swept away.
The oil can provided for their use was defective, and Moseley
refused to pour the oil from it. Thereupon the can was given to
Burke, and the foreman directed him to use the can and Moseley to
follow after and clean the switches with a shovel and broom. When
they had been working about two hours the oil can suddenly ex
ploded and was thrown violently back, striking Moseley, who was
working some 15 feet away. He was knocked down and injured.
Within two weeks after the accident a cataract practically blinded
Moseley’s right eye, which had been apparently normal before the
accident.
He filed suit under the Federal employers’ liability act (45 U. S.
C. A., secs. 51-59), and the court of common pleas, Philadelphia
County, Pa., rendered a verdict in favor of Moseley. The Reading
Co. appealed to the Supreme Court of Pennsylvania, contending
Moseley assumed the risk and that contributory negligence barred
recovery. Regarding the first contention, the court said in part:
One answer to this contention is that plaintiff neither used the
defective can himself nor worked at the point where it was used.
Whether by working 15 feet away he assumed a risk so obvious and
immediate that it would have been shunned by a reasonably prudent
man was for the jury. Furthermore, it does not appear that the
danger of explosion was obvious or imminent; in the absence of
this the employee might rely on the superior judgment of the foreman. [Cases cited.]
In regard to the contributory negligence the court said:
While contributory negligence is no defense under the Federal
statute, it was properly submitted to the jury in mitigation of dam
ages. (See Fox et al. v. Lehigh Valley R. Co., 292 Pa. 321, 141
Atl. 157.)
Again, the defendant would under the Federal employers’ lia
bility act be liable to plaintiff for an injury sustained through the
negligence of the coemployee, Burke. (Baumgartner v. Penn. R.
Co., 292 Pa. 106, 140 Atl. 622; McDonald v. Pittsburgh & Lake Erie
R. Co., 27? Pa. 26,123 Atl. 591.)
The court continued the opinion affirming the judgment of the
lower court, saying in part as follows:
The evidence was that plaintiff was burned and injured in the
face and in and about the eye, while two specialists, one who had
treated the injured optic and the other who had repeatedly examined
it, expressed the professional opinion that the cataract resulted from
the accident, and there was no opposing proof. The expert opinion
was that the blow on the eye caused inflammation which blinded it.
A cataract covers the sight with an opaque substance, and may result
from an injury or otherwise, as from infection. In the instant case

EMPLOYERS9 LIABILITY

there was ample proof of the injury, but none of any other pro
ducing cause. The circumstances corroborate the expert opinion;
here a normal eye receives a blow and a burn, and m two weeks,
without other cause, the sight is gone. The lay mind naturally
connects the injury with the result, which fortifies plaintiff’s
contention.
E mployers’ L iab ility — A ssumption of R isk — C ausal C o nnec
L atent D anger— Seaboard Air Line R. Co. v. Latham, Court
of Appeals of Alabama (April 5 , 1930), 127 Southern Reporter, page
679.— Earnest Latham was a section hand working with a group of
other employees under the supervision of a foreman cutting weeds,
briars, and underbrush from the right of way of the Seaboard Air
Line Railway Co. He was using in this service a grass blade called
a scythe; while engaged in the line of his duty, and being unaware
of its presence, he cut into a wasps’ nest. The wasps being disturbed
immediately attacked Latham and in his effort to escape he dropped
or threw down the scythe and began fighting them. While so en
gaged he became entangled and tripped over the blade and was cut
severely on the leg near the foot, which proved to be a permanent
injury.
Suit was instituted under the Federal employers’ liability act for
damages resulting from the injury. Latham alleged that the rail
way’s foreman in charge of the work and having supervision over
him knew of the location of the wasps’ nest and of his proximity
thereto and with this knowledge failed to warn him of his approach
ing danger. The circuit court of Jefferson County rendered a ver
dict in favor of Latham and the railway appealed the case to the
Alabama Court of Appeals, contending that an attack of wasps was
a risk ordinarily incident to the service in which Latham was
engaged and therefore the risk was assumed by him.
The court did not uphold this contention, saying that—
tion —

. Since it was the duty of plaintiff to cut the weeds and briars on
defendant’s right of way under the orders of the foreman, it was
the duty of defendant to use reasonable care to protect plaintiff from
danger in the execution of the orders. I f defendant’s foreman had
not oeen advised of the presence of the wasps and therefore of the
danger incident to the service, defendant could not be held liable.
But with a knowledge of the danger the foreman allowed plaintiff to
proceed with the carrying out of nis order in the usual way of doing
such things when if plaintiff had been warned, the duty could have
been performed in such way as to minimize if not entirely remove
the danger. The evidence here presents no ordinary risk, but is
extraordinary in that it lies outside of the sphere of the normal and
one which might have been obviated by the exercise of reasonable
care on the part of defendant’s foreman.

DECISIONS OP

th e

cou rts

The counsel for the railway also argued that owing to the nature
of the employment and character of the work there was no duty
resting on the foreman to determine if there were wasps ahead
before allowing Latham to proceed with his work. Regarding
this the court said that “ this may be conceded, but * * * the
foreman having knowledge of the latent danger incident to a wasps’
nest hidden in the bushes was under a duty to warn the servant of
its existence, * *
It was next contended that the negligence of the foreman, if any,
was not the proximate cause of the injury, as the chain of action was
broken by an act of Latham.
The court did not agree with this contention, saying in part as
follows:
Under the facts in this case it is clear that the sting of the wasps
was primarily caused by the negligent act of defendant’s foreman,
who with knowledge of the facts failed to warn plaintiff of his
danger. It is equally clear that what followed was a sequence of
the attack of the wasps on plaintiff.
The plaintiff was among the weeds and brush using a scythe
which consisted of a long, sharp, hooked blade fastened to the end
of a stock or handle, itself bent in a peculiar manner and with two
handles sticking out from its side. Through the negligent act of
defendant’s foreman the plaintiff was suddenly attacked by wasps
enraged by the destruction of their nests. In his frenzy to avoid
the danger plaintiff dropped the scythe in order to fight the wasps.
He stumbled over the scythe and was injured. Such injury was
the result of a continuing sequence foreseeable as a result of the
negligent act.
The judgment of the circuit court was therefore affirmed.

E mployers’ L iab il ity — A ssumption of R isk — C ontributory N eg
A ward— Johnson v. Boaz-Kiel Const. Co., St. Louis Court

ligence —

of Appeals (January 7 , 1930), 22 Southwestern Reporter (2d), page
881.— On A p ril 29, 1926, Charlie Johnson sustained injuries while
in the employ o f Boaz-K iel Construction Co., engaged in erecting
an apartment building in the city o f St. Louis.

Johnson was work

ing on the thirteenth floor engaged in laying concrete.

There were

certain places on the floor where the concrete was soft and soggy,
due to the fact that the concrete was deeper at these particular points
than at other places.

The concrete was distributed by means of a

chute and it frequently became necessary to move one section o f the
chute from one section of the floor to another.

A t the time Johnson

was injured the foreman directed him and another employee to move
one section o f the chute.

Johnson remonstrated with the foreman

by telling him it was too much for two men to carry, but the foreman

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

told him to go ahead, that they could move it. Whereupon Johnson
and the other servant proceeded with it toward the place where it
was to be located. In moving the chute Johnson had to walk back
wards; in so doing he stepped upon one of the soft areas and on
account of the extreme weight of the chute his foot sank down
which caused him to fall, and the chute fell upon him, injuring him.
Johnson filed suit against the employer and the St. Louis circuit
court rendered judgment in his favor. The employer appealed to
the St. Louis court of appeals contending Johnson assumed the risk
and also that he was contributorily negligent.
The court held that Johnson could not be convicted of contribu
tory negligence because he was walking backward with an extremely
heavy load under the orders and directions of his foreman and,
even though he knew that there were such soft places in the floor, the
order of the foreman (after Johnson protested) was equivalent to
assurance to the employee that such foreman’s orders could be ob
served with reasonable safety. The danger was therefore not so
obvious as to render Johnson guilty of contributory negligence.
Regarding the assumption of risk by Johnson the court said “ under
the Missouri rule a servant only assumes the risks that are incident
to the employment.”
The court also found no error in the instructions given by the lower
court and held that the award was not excessive. The judgment of
the circuit court was therefore affirmed.

E mployers’ L iab ility — A ssumption
of
R isk — C ontributory
N egligence— R e s I psa L oquitur — Chicago Mill & Lumber Go. v.

Jett, Circuit Court of Appeals, Eighth Circuit (May 6, 1929), 82
Federal Reporter (2d), page 976.— D . S. Jett was employed by the
Chicago Mill & Lumber Co. as engineer at night, coming on duty
about 6 o’clock in the evening. Tw o engines were installed in the
m ill, one a large Corliss engine, which furnished power and light
for the m ill, and a small, light engine used principally to furnish
light for the plant at night. The large engine was generally shut
off along toward midnight and the light engine used. On A p ril 20,
1926, Jett came on duty and found the large engine running. A t
midnight he turned it off and used the light engine until about 4.30
when he again started the large engine.

W hen the engine started

the flywheel burst and Jett was killed.

Alice E. Jett, the administratrix, filed suit in the District Court of
the United States for the Eastern District of Arkansas, alleging negli
gence on the part of the company in allowing parts of the engine to
become corroded and improperly rubricated, causing the engine to

DECISIONS OF THE COURTS

become dangerous. The lumber company answered by alleging Jett
was guilty of contributory negligence and “ was familiar with the
use of the machine which he operated at the time of his death, and
alleged that he assumed the risk incident to the use thereof.”
The district court rendered a verdict in the sum of $3,000 for the
widow and the company appealed to the Circuit Court of Appeals.
This court affirmed the decision of the lower court and in the course
of the opinion said in part as follows:
There is substantial evidence in the case to the effect that on the
Friday morning previous the belt had grease on it and had failed
to start the governor; that Wyse started the belt and governor by
hand; and that it worked all right after being so started. There is
evidence that Wyse reported the incident to the assistant master
mechanic, one Shiftier, but that nothing was done about the matter.
There was no evidence as to the exact time when the belt became
greasy prior to Friday morning, or that the belt was in such condi
tion that the grease was apparent or could be easily discovered.
There is no evidence that Jett discovered that the belt was greasy,
or that it had ever failed to work with him before the time of the
accident. We conclude, therefore, that there was substantial evi
dence of the negligence of the defendant, sufficient to take the case
to the jury on that ground. There was probably in the circum
stances also evidence of contributory negligence on the part of Jett
in not discovering and remedying the condition of the belt. * * *
Contributory negligence, however, in the State of Arkansas is not
a defense but merely reduces damages, the rule of comparative negli
gence prevailing in that jurisdiction. Now, the fact that the acci
dent caused the death of Jett, taken in consideration with his age
and earning capacity and that the verdict was only for $3,000, indi
cates that tne jury took into consideration the question of compara
tive negligence and made due allowance for the contributory
negligence of which Jett may have been guilty.
We now come to consider the question of assumption of risk,
* * *. Now, it must be kept in mind that Wyse was the day man
and Jett was the night man; that the large Corliss engine would be
usually running when Jett came on duty and turned off again along
toward midnight; that the Corliss engine was running when Jett
came on duty on the night of the accident; and that the faulty condi
tion of the belt in question would be likely to produce its effect only
on the starting of the engine. We think we can not say as a matter
of law that Jett had notice of the faulty condition of the belt before
attempting to start the engine early Tuesday morning, April 21st.
* * ♦ The assumption of risk against hidden defect or dangers
requires notice a reasonable time before the accident.

E mployers’ L iab il ity — A ssumption of R isk — E vidence — I nfer
S afe P lace and A ppliances — McClary v. Great Northern R.
Co., Supreme Court of Iowa (November SSI, 1929), 227 Northwestern
Repm'tei', pa#* 61f6.— On September 15, 1927, one MeClary suffered

ence —

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

an injury while in the employ of the Great Northern Railway Co.
He was engaged in the operation of a kerosene engine used for the
purpose of hoisting coal into elevated bins. As a condition to start
ing the engine it was requisite that it be preheated. This was accom
plished by the use of a torch set upon a bracket and under a cone.
The torch was lighted by pouring a small quantity of denatured
alcohol into a saucer and igniting it with a match. When the engine
was sufficiently heated to generate gas from its kerosene contents the
torch was extinguished by the turning of a screw at the end of the
torch pipe.
Immediately after the lunch hour on the day of the accident, McClary proceeded to fire the engine as outlined above. While pouring
the alcohol into the saucer, apparently in the absence of fire or spark
in any form, an explosion occurred in the alcohol can, from which the
injuries resulted.
McClary filed a claim under the employers’ liability act, claiming
a right of recovery on the negligence of the railroad in furnishing
him with defective and dangerous instrumentalities and on failure
to instruct or warn him regarding this dangerous condition. The
railway company used as a defense: ( 1) A general denial; (2 ) con
tributory negligence; (3) assumption of risk.
The district court in Woodbury County rendered a verdict for
McClary, and accepted his theory that the explosion was due to a
leak at the joint of the torch pipe and his contention that the defense
of assumption of risk as pleaded by the railway company was only
the form of assumption of risk which simply negatives negligence,
adding nothing to the defense of a general denial. (Cases cited.)
The railroad company contended the court failed to instruct the
jury properly regarding the defense of assumption of risk; that its
motion for a directed verdict should have been sustained; and that
the evidence was not sufficient to warrant the verdict. The case was
appealed to the Supreme Court of Iowa.
In considering the defense of assumption of risk made by the com
pany the court said:
Turning to the answer of the defendant, we find that it charges
specifically that the plaintiff did know of all the defects of instru
mentalities of which he complains, and that he did know, or ought
to have known, of the deficiencies and faults of method of which he
complains, and that he appreciated, or ought to have appreciated, the
risk and danger therefrom. In other words, it did plead assumption
of risk in its true sense. It was, if proven, a complete affirmative
defense. There was evidence in support of it. The court submitted
to the jury only that form or phase of assumption of risk which con
stitutes a mere negation of negligence. In so doing the court mis
conceived the purport of defendant’s affirmative defense and deprived
it wholly of such defense.

DECISIONS OF THE COURTS

Next the court considered the evidence supporting the theory that
the flame causing the explosion was at the leaking joint of the torch
pipe. It said:
It appears to be conceded on both sides that the explosion could
not have occurred in the absence of a flame as its immediate cause.
Only two possibilities are indicated for the presence of such a flame.
One is that the plaintiff had lighted his match while the alcohol can
was in his hand; the other is that there was a flame burning at a
leaking joint of the torch spout. The alcohol can had no cork or
stopper, either at its top or at its spout. It was attended therefore
with the halo of vapor, which its volatility would generate. The
plaintiff testified that he had not Tghted the match. He insists upon
the inference, therefore, that the explosion must have been caused by
a flame at the leaking joint.
One difficulty confronting him was that it required 100 pounds of
air pressure to keep the tor*, h burning. This pressure filled the pipe
with ^as. The release of the air pressure was the method of extin
guishing the torch. The air being released, the torch became at once
empty. Apparently the same process that extinguished the main
flame of the torch necessarily extinguished the flame at the leaking
joint as well.
Moreover, the final word of the testimony lacked value. The next
result of it was that, if there be sufficient air pressure, the flame might
burn for an hour or more. There was no proof of sufficient air pres
sure. On the contrary, the proof was that the air pressure had been
released. The net result is thereby further diluted and reduced to
th:s syllogism: The air valve might be clogged; if clogged, some air
pressure might remain; if sufficient air pressure remained, the flame
might burn at the leaking joint. The same hypothesis would make
it burn at the spout. It was not burning at the spout.
The court therefore reversed the judgment of the district court and
granted a new trial on the ground that the evidence was insufficient
to sustain the verdict.

m plo y ees ’

L i a b il it y — A

ssu m p t io n

R is k — E vid en ce — I n t e r

L. & W . R. Co. v. Koske, Supreme
Court of the United States (Fehmary 18, 1929), 49 Supreme Court
Reporter, page 202.— John Koske was em ployed in the roundhouse
and coal-chute y ard o f the D elaw are, Lackaw anna & Western R a il
road Co., at H oboken . H is w ork was to put sand into the boxes on
engines and to turn switches fo r them . On June 4 ,1 9 2 5 , at 4 o ’clock

sta te

C o m m er c e — Delaware,

in the m orn in g, w hile a lig h tin g fro m an engine in the course o f his
em ploym en t,

he fe ll into a hole and was injured.

He sued the rail

road com pany under the em ployers’ lia bility act in the circuit court
o f H u d so n C ou n ty, alleging that the railroad com pany n eg ligen tly
“ perm itted an open, uncovered, and unlighted and dangerous hole
to exist between certain parts o f the tracks.”

Koske h ad worked

fo r the railroad com pany fo r about 11 years, and throu gh ou t the

EMPLOYERS* LIABILITY

period of his employment the yard was drained by a shallow open
ditch passing under the ties and for a short distance longitudinally
between the tracks.
The circuit court gave a judgment in favor of Koske upon the
ground that the railroad company was negligent in maintaining the
open drain which caused the injury. This decision was affirmed
when taken to the Court of Errors and Appeals of the State of
New Jersey. The railroad carried the case to the Supreme Court
of the United States, contending that it should not be held liable for
an injury resulting from an open drain in its yard.
Mr. Justice Butler delivered the opinion of the court and regarding
the railroad’s liability under the Federal employers’ liability act,
said:
The Federal employers’ liability act permits recovery upon the
basis of negligence only. The carrier is not liable to its employees
because of any defect or insufficiency in plant or equipment that is
not attributable to negligence. The burden was on plaintiff to adduce
reasonable evidence to show a breach of duty owed by defendant to
him in respect of the place where he was injured, and that in whole
or in part his injuries resulted proximately therefrom. And, except
as provided in section 4 of the act, the employee assumes the ordinary
risks of his employment; and when obvious or fully known and
appreciated, he assumes the extraordinary risks and those due to
negligence of his employer and fellow employees.
He concluded the opinion of the court by saying, in part, as
follows:
The record contains no description of the place where plaintiff
was injured other than that above referred to. Fault or negligence
may not be found from the mere existence of the drain and the
happening of the accident. The measure of duty owed by defendant
to plaintiff was reasonable or ordinary care having regard to the
circumstances. * * * The evidence is not sufficient to warrant
a finding that defendant was guilty of any breach of duty owed to
plaintiff in respect of the method employed or the condition of the
drain at the time and place in question.
The evidence requires a finding that he had long known the location
of the drain and its condition at the place in question. The dangers
attending jumping from engines in the vicinity of the drain, especi
ally in the dark, were obvious. Plaintiff must be held to have fully
understood and appreciated the risk.
The judgment was therefore reversed.

E mployers’ L iab il ity — A ssumption of R isk — I n j u r y i n C ourse
E m ploym ent — G oing to and from W ork— Webre v. Caire <&
Graugnard, Court of Appeal of Louisiana (May 27,1929), 128 South
ern Reporter, page 168.— John Webre was employed by Caire &
Graugnard in their sugar mill in the Parish of St. John the Baptist

DECISION’S OF TH E COURTS

in Louisiana. The employees in the mill worked in 6-hour shifts
and Webre’s brother was foreman of the gang in which Webre
worked. On the day of the accident Webre, while on his way to
the mill, met his brother, who advised him there was no work for
him to do on this “ shift” but to return for the next six hours.
Thereupon the plaintiff and his brother left the premises entirely
and went to a funeral.
While returning to the mill, but before they had reached the mill
premises, a sugarcane train— operated by the mill— came along from
their rear, going towards the factory. Although the rules of the
company prohibited other than trained employees from riding the
trains and although Webre’s brother at that particular time in
structed all those who were with him that they should not go on
the train, Webre attempted to board it and in doing so his foot
slipped under one of the wheels and was cut off.
He sued for damages, which were denied by the twenty-fourth
judicial district court, Parish of St. John the Baptist, La., and he
appealed the case to the court of appeal contending that he did not
hear the instruction not to ride upon the train. The employer met
this contention by claiming that whether or not the instruction was
heard it was manifest that there was no reason whatever, so far as
Webre’s employment was concerned, for him to board the train and
that to do so exposed him to a danger in no way incidental to or
connected with his employment.
Judge Janvier delivered the opinion affirming the lower court,
saying in part as follows:
W e can not see how it can be held that the injury arose out of
the employment, or was in any way incidental thereto. The em
ployer had no control whatever over plaintiff’s movements. Webre
had voluntarily left the premises and gone off on business of his own.
The employer had nothing whatever to do with his movements until
his return to the premises.
In practically all of the cases in which compensation was allowed
for injuries sustained while going to or returning from work, the
transportation was furnished by the employer, or the injury was
sustained so near to the work that it could be reasonably said that it
resulted from a danger incidental to the employment itself.
W e therefore believe that the finding of the trial court, that plain
tiff was not entitled to compensation, is correct for two reasons:
First, because the injury did not arise out of nor as an incident
to the employment, and,
Second, because the cause of the injury was the voluntary assump
tion by the plaintiff of an unnecessary risk entirely apart from his
employment.

Em ployers’ L ia b ility — Assum ption o f
merce— N egligen ce— Feurt v. Chicago,

R isk — I n te r s ta te Com
/.

& P. R. G oS u prem e

em ployers'

l ia b il it y

Court of Minnesota (November 1, 1929), 227 Northwestern Beponder, page 212.— The Chicago, Rock Island & Pacific Railway Co.
operates interstate railway lines between Chicago, Minneapolis, and
Kansas City. A few miles west of Montpelier, Iowa, its tracks are
carried across a gully by a bridge about 140 feet in length. Gabe
Feurt, a bridge carpenter employed by the railway company, was
engaged in laying a walk between the tracks across the bridge.
About 3.30 in the afternoon of July 19, 1928, while Feurt and his
three companions were at work on the bridge, the whistle of an
east-bound freight train announced its approach. They got out
of its way and Feurt went down the other track for a drink of water
near the west end of the bridge. He took his position facing south
westerly, upon the north end of the west-bound track. As he stood
there watching the freight train go by a passenger train approached
from the east at about 45 miles per hour. When within about 800
feet, it gave the customary warning to the carpenters and when
within 400 feet of the bridge, observing that Feurt did not change
his position, gave the stock alarm whistle; this it kept up until
Feurt was struck. The engineer had applied the emergency brakes
when 200 feet away but was unable to stop the train before striking
Feurt.
A claim, based upon the Federal employers’ liability act (45
U. S. C. A., secs. 51-59), was filed by Jennie Feurt as administratrix.
The district court rendered a verdict for the plaintiff, Feurt, and the
railway company appealed the case to the Supreme Court of
Minnesota.
The fact that Feurt was engaged in interstate commerce as thp
servant of the railway company when he met his death was not
disputed. The two questions involved were ( 1) the negligence of
the railway company and (2) the assumption of the risk by Feurt.
In discussing the first question and the duty of Trott, the engi
neer, the court said, in part, as follows:
In our judgment the evidence neither shows nor permits the infer
ence that defendant was negligent. One in charge of a railroad
train is not expected to slow down or stop when employees of the
railroad or others are discovered on or too near the track, but he is
expected to use the means at hand to warn the one exposed to peril.
Here Trott did give such warning incessantly and in the most pro
nounced form. No ordinary person, observing Feurt in the position
he was, where but a single step, not requiring half a second of time,
would have placed him in- safety, could have anticipated that the
piercing stock alarm whistling would not have attracted his atten
tion in time for his escape. But we think Trott did more. TVTien
200 feet from Feurt an emergency stop was made, and there is no
testimony that it was not made as quickly as it was possible to make
a stop with proper equipment

DECISIONS OF TH E COURTS

The court continued the opinion, saying:
The undisputed facts, viewed from another legal ang’ e, would seem
to lead to the conclusion that as a matter of law Feurt assumed the
risk in taking the position he did take in the path of the passenger
train. He was an experienced employee. He knew that, as to the
employees working about tracks, approaching trains gave only the
customary warning whistle and were not expected to slow down or
stop. When, therefore, he partly turned his back to the only direc
tion from which a train might come, with knowledge and appreci
ation that the noise and clatter of the passing freight train inter
fered with his hearing, he assumed the risk arising from the failure
of the usual warnings to reach him. Assumption of risk, if estab
lished, is a defense in this case, where the injury and death was not
due to defendant’s violation of any statute enacted for the safety
of employees. [Cases cited.] And under the facts of this case the
contributory negligence of Feurt may also be held the sole proximate
cause of his death.
The order of the district court was reversed and judgment entered
in favor of the railway company.

E mployers’ L iab ility — A ssumption of R isk — M aster and S erv
R elation — N egligence— Le Blanc v. Sturgis, Supreme Judicial
Court of Maine (November 12, 1920), llfl Atlantic Reporter, page
701.— Frank Sturgis was in the steam sawmill business at a place
called Grindstone, Me. He personally directed the work in his mill
and also was sawyer. Peter Le Blanc was marker in the mill and
another employee performed the duties both of fireman and engineer.
On December 1, 1928, Le Blanc, then standing near a circular saw,
was ordered by Sturgis to assist him in turning the saw. Le Blanc
obeyed the order and was injured due to Sturgis’s failure to have
the steam shut off from the engine.
The case was tried in the supreme judicial court, Oxford County,
where nonsuit was imposed and exception was taken, which brought
the case to the Supreme Court of Maine.
The court sustained the exceptions, saying in part as follows:
ant

The relation of master and servant did not cease to subsist, because
the defendant assisted in the performance of the manual labor neces
sary to execute his order.
True, it is not in evidence that defendant let on the steam; but it
was on, and the giving of the order to turn the saw, when the
defendant, either from his experience must have known, or by
ordinary forethought or reasonable care could have known, that, the
engine being under steam pressure, performance of the order would
be attended with grave danger, would warrant conclusion by the
jury that the defendant was negligent.
A workman, merely by his contract of employment, does not assume
the risk of accident caused by the negligence of his employer.

EMPLOYERS9 LIABILITY

E m plo yer s ’ L ia b il it y — A ssu m p tio n or R is k — N egligence — Dona
hue v. Chicago, M., St. P. & P. R. Co., Supreme Court of Minnesota
(January 10, 1980), 228 Northwestern Reporter, ^#<70 <&56>.— Thomas
C. Donahue, an experienced trainman, having completed his day’s
work, boarded the engine of a passing freight train for the purpose
of returning home. There was a rule forbidding employees other
than those engaged in operating the train from riding on engines,
but the engineers did not enforce this rule against employees who
were leaving the yard to go home. Donahue knew that the train
would not stop at the depot, but would stop a few hundred feet
beyond it. He also knew that a heavy snow removed from the track
by snowplows or flangers formed a ridge along the side of the track.
With 110 duties to perform and solely for his own convenience, he
jumped from the engine near the depot while the train was in
motion and fell under the wheels of the next car and was so badly
injured that he died at the hospital six or seven hours later.
The widow brought action under the Federal employers’ liability
act (45 U. S. C. A., secs. 51-59) to recover damages for his death
alleged to have been caused by the negligence of the railway com
pany. The district court for Dakota County rendered a verdict in
favor of the widow. Thereupon the railway company appealed the
case to the Supreme Court of Minnesota, contending that the con
ceded facts showed as a matter of law that the relation of master and
servant did not exist between Donahue and the railway company at
the time of the accident. In regard to this the Supreme Court of
Minnesota said:

I f the record shows as a matter of law that the relation of master
and servant did not exist at the time of the accident, plaintiff had
no cause of action and could not recover. But we find it unneces
sary to determine that question, for we are unable to escape the con
clusion that Mr. Donahue assumed the risk incident to alighting at
the place and under the circumstances in which he attempted to do so.
Mr. Donahue had taken transfer trains over this same track daily
for a long period, and was perfectly familiar with the situation and
conditions. * * * Conceding that he was in the course of his
employment while returning from the yard on this train and that
defendant was negligent in failing to remove the ridge of snow at
the side of the track, yet the undisputed facts compel the conclusion
that he assumed the risk incident to getting off the train at the place
where, simply for his own convenience, he chose to alight. [Cases
cited.] Most of the cases involving the question of assumption of
risk are cases in which the employee was engaged in performing
duties which his employment required him to perform. But the rule
applies with greater force where an employee with no duties to per
form needlessly exposes himself to a known danger; or where he has
the choice of a safe way or of a dangerous way to leave the
employer’s premises, and he voluntarily selects the dangerous one.
The judgment of the district court was therefore reversed.

76
E m p lo y e r s ’

d e c is io n s o f t h e
L i a b i l i t y — A s s u m p t io n

co u rts
of

R is k — N e g lig e n c e —

P r o x i m a t e C a u s e — Werling

v. New York, G. <& St. L. R . Go. ( Octo
ber 5, 1929), Appellate Court of Indiana, i&S Northeastern Reporter,
— Frank M. Werling was conductor of one of the trains
of the New York, C. & St. L . R . Co. between Fort Wayne and
Chicago. Werling met his death on the night of May 23, 1924,
when he went out the front door of the caboose, which rested in posi
tion on a bridge where the train stopped. The deceased was familiar
with the surrounding conditions, as he had been a freight conductor
running between Fort Wayne and Chicago for the past 25 years.
It was not known what his purpose was in going out of the caboose
or whether his death resulted from falling or jumping or being
pushed into the river.
The widow brought action under the Federal employers’ liability
act, alleging that the death of her husband was due to the negligence
of the company in constructing and maintaining the bridge.
There was a trial by jury, and the railroad company requested the
court to give a peremptory instruction in their favor. This motion
was sustained, and the jury rendered its verdict for the company.
The motion for a new trial was overruled, and the widow appealed
the case to the Appellate Court of Indiana, alleging that—
The court erred in overruling her motion for a new trial, present
ing that the verdict of the jury is not sustained by sufficient evidence,
that it is contrary to law, andf that the court erred in sustaining ap
pellee’s motion to instruct the jury to return a verdict for appellee.
Appellant contends that she has made her cause in regard to the
three essential elements involved in this appeal, which are that the
bridge was negligently constructed and maintained, that such con
struction and maintenance was the proximate cause of decedent’s
drowning, and that the condition of the bridge on the night of his
death and the peculiar location of the caboose thereon were not risks
appreciated by the decedent at the time he stepped from the caboose
and consequently were not risks assumed by him at the time he
engaged to work for appellee or during any of the time he worked
for it.
Appellee contends that the decedent assumed the risks and that,
wholly aside from the question of the assumption of risk, the proxi
mate cause of decedent’s getting into the river is wholly conjectural.
The decision of the lower court was affirmed, the court saying in
part as follows:
It is left purely in the realm of conjecture as to whether he stumbled
and fell from the platform, or whether he tried to alight and get off
the bridge and missed his rooting or his handhold. There is no evi
dence to show that he did not know where he was.
Under the Federal employers’ liability act (45 U. S. C. A., secs.
51-59), decedent assumed all the risks ordinarily incident to his
employment and also assumed the risks of any defects in the place
where he worked that existed long enough for him to have knowl

e m p lo y e r s ' lia b i lit y

edge of those defects or existed long enough so that with ordinary care
he could discover such defects; that is to say, assumption of risk is a
complete bar to an action under the Federal employers’ liability act
And this is the law, notwithstanding the fact that at the time of his
injury he failed to appreciate or recollect the danger.
Where the evidence leaves to guesswork and speculation the proxi
mate cause of the injury, a verdict should be directed. The court
did not err in directing a verdict.

Em ployers’ L ia b ility — Assum ption o f R isk — N egligen ce— S a fe
P la c e to W o rk — Los Angeles c& Salt Lake R. Co. v. Shields, Circuit

Court of Appeals, Eighth Circuit (May 11, 1929), 33 Federal
Reporter (2d), page 23.— Thomas Shields was employed as a mucker
in a tunnel of the Los Angeles & Salt Lake Railroad Co. The com
pany was widening the tunnel to accommodate two main tracks
instead o f one, and Shields was to help in removing the debris and
to do such other work as he might be called upon to perform.
Shields was ordered by O ’Brien, his foreman, to go into a new
section to scale off an uneven place in the roof with the pick so that
supporters and proper timbers fo r the roof m ight be put in. H e
asked O ’Brien i f the roof was safe, and was advised 66Y ou needn’t
be afraid * * * I examined her and she is just fine.” He began
to use his pick as instructed and after a few minutes a part o f the
roof just behind him fell, struck him, carried him down, fractured
his lower vertebrae, and caused permanent paralysis in both legs.

He filed suit in the United States District Court for the District
of Utah and the court rendered judgment in his favor. The com
pany appealed to the Circuit Court of Appeals, contending that the
evidence failed to disclose that they were guilty of any negligence
and that Shields was injured as a result of a risk which he assumed.
In affirming the decision of the lower court the Circuit Court of
Appeals said, in part:
The main controversy is one of fact. O’Brien was an experienced
miner. He testified that he inspected the roof in the usual wav by
sounding, while appellee was away looking for a pick, that from
his inspection he believed the roof was safe and told appellee so
on his return, and that the roof did not sound drummy. * * *
There was, we think, an issue, under the testimony, whether O’Brien
tested this roof by sounding, and if he did, the further issue whether
in doing so he made a reasonably careful test; and those issues, in our
opinion, were properly submitted to the jury. A temporary timber
with a cap would nave held in place the part that did fall. O’Brien
said he could have put in the temporary timber, but he did not
think it was needed, that they timbered bad ground for safetv, but
he did not considered this bad ground. He knew the roof had been
exposed for several days. On that the testimony was that the
66588°—31------7

DECISIONS OF THE COURTS

excavation of the room had been finished for at least eight days,
and passing trains and exposure tended to loosen the roof. He
further said he was not in the habit of leaving so large a space
untimbered in prosecuting the work. Appellee relied on O’Brien’s
assurance that the place was safe, and there is nothing which tends
to show that the dangerous condition was plainly observable or that
he was aware of it. He therefore had the right to assume that his
employer had taken proper care for his safety.

E m p l o y e r s ’ L i a b i l i t y — A s s u m p t io n o f R i s k — O v e r e x e r t i o n —
C o n d i t i o n — Sweeney v. Winebaum et al., Supreme
Court of New Hampshire (February 4,1930), 149 Atlantic Reporter,
page 77.— Jeremiah Sweeney, administrator, brought action against
Harry Winebaum for negligently causing the death of an employee.
The employee died as the result of a strain sustained, in the course
of his employment with Winebaum, while assisting in carrying a
Frigidaire box weighing 220 pounds up a flight of stairs. The em
ployee, a man of normal intelligence, was 20 years old, about 6 feet
tall, weighed 116 pounds, and at that time was suffering from tuber
culosis. Three men assisted in carrying the box up the flight of 18
stairs.
The employer contended that the employee assumed the risk, and
the superior court, Rockingham County, upheld this contention and
rendered a verdict in favor of the employer. The case was appealed
to the Supreme Court of New Hampshire, where the decision of the
lower court was affirmed. The court said in part as follows:
The ordinary manner of carrying a heavy article like the box up a
flight of stairs was attended with no dangers not known or apparent
to one of normal intelligence. It is too common and simple an opera
tion to call for warning and instruction to such a person^ and it is
not to be said that one of the age of 20 and being normally intelligent
is so immature that his appreciation of the danger may not be
assumed. Instruction and special experience are not necessary to tell
him that in the undertaking there will be some irregularity of
progress and some change of balance and weight with more or less
abruptness. The situation makes this obvious to anyone giving the
matter any thought and attention, and there was no danger of which
it can be said the defendants should have informed or warned the
intestate. The evidence discloses nothing to show that the intestate
did not appreciate all the risk he ran in doing the work as well and
as fully as the defendant.
P r e e x is tin g

E m p lo y e r s ’

L i a b i l i t y — A s s u m p t io n

p a n y — P r o x i m a t e C a u s e — Baltimore

R is k — R a ilr o a d

C om

<& 0 . S. W . R. Co. v. Beach
(October 9, 1929), Appellate Court of Indiana, 168 Northeastern
Reporter, page 20Jf.— Ray Beach, an employee of the Baltimore &

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

Ohio Southwestern Railroad Co., was injured on January 21,
.1925. Beach was traveling with Rowe, the company’s foreman of
signal maintenance, in the line of their duties over the company’s
road between Cumminsville and East Norwood on a motor car oper
ated by Rowe. The motor car was being operated at a speed of about
30 miles an hour when a dog came upon the track and Rowe, being
unable to stop the car, ran over the dog, causing the car to be de
railed and Beach to be thrown beneath the car and injured.
Beach brought action against the Baltimore & Ohio Southwestern
Railroad Co. and received a verdict in the Jennings circuit court.
The case was then carried to the Appellate Court of Indiana, where
an objection to Beach’s complaint was overruled. In speaking of this
objection, the court said:
Objection to the complaint is twofold: ( 1) That appellee assumed
* ^ vve’s operation of the car at the high
averments of the complaint show
*x
o n the track at the time was the sole
proximate cause of the injury of which complaint is made. There
is no merit in either of these objections.
The facts averred affirmatively show that the risk was not assumed
by appellee, for it is expressly averred that appellee had no control
of the car on which he was being carried at the time; that the car
was in control of and being operated by appellee’s foreman. It does
not appear that appellee at the time knew that the car was being
operated at an excessive rate of speed; but, if he had become aware
of such fact, it would have availed him nothing, for he was without
authority to control the speed of the car, and it would have been
impossible for him to have alighted from the car at that time.
After considering other questions regarding the evidence and the
filing of a bill of exceptions, the court ordered the decision of the
lower court affirmed.
E mployers’ L iab il ity — C hildren U n l a w fu ll y E mployed — C on
S tatute — Plick et al. v. Toye Bros. Auto & Taxicab

struction o f

Co., Supreme Court of Louisiana (July 8, 1929), 121^ Southern Re
porter, page HO.— Frank Adam s was killed in the city o f New
Orleans while employed as a chauffeur for the Toye Bros. A uto &
Taxicab Co.
and death.

He was 20 years old at the time of his employment
The parents o f Adam s brought action under the em

ployers’ liability act (A ct No. 20 o f 1914, as amended).

The Court

o f Appeal o f Louisiana affirmed a judgment for the taxicab company
and the parents took the case to the Supreme Court o f Louisiana
for review.

The lower court upheld the contention of the company

that the employment o f Adam s did not come under the employers’
liability act because o f a provision in that act to the effect that it was

DECISIONS OF THE COURTS

not applicable to employees of less than the minimum age pre
scribed by law for the employment of minors in certain occupations,
and because of an ordinance in New Orleans requiring one acting
as a chauffeur to be 21 years of age.
The section of the employers’ liability act referred to (Act No.
20,1914, as amended by Act No. 85 of 1926) reads in part as follows:
Any employee of the age of 18 and upwards engaged in any trade,
business, or occupation * * * that may be determined to be
hazardous under the operation of paragraph 3 of section 1, shall
himself exercise the right of election or termination or waiver
authorized by this section. Such right of election or termination or
waiver shall be exercised on behalf of any employee under the age
of 18 by either his father, mother, or tutor, or if neither of these
can readily be gotten to act, then bv the court. Provided, That this
act shall not apply to employees oi less than the minimum age pre
scribed by law for the employment of minors in the trades, busi
nesses or occupations specified in paragraph 2 of section 1, or that
may be determined to be hazardous under the operation of paragraph
8 of section 1.
The question involved on appeal was whether the employment of
minors less than the minimum age prescribed by law as used in
the employers’ liability act included minors employed in violation
of a city ordinance. The court held that it did not include such
minors, saying in part as follows:
There is no State law prohibiting a minor 20 years of age from
seeking employment or being employed as a chauffeur to drive a
taxicab engaged in the business of transporting people for hire.
The fact that one is so employed in violation of a municipal ordi
nance does not so affect the contract of employment as to place
the one employed outside of the employers’ liability act.
The judgment of the court of appeal was therefore annulled.
On application for rehearing filed 14 days later the Supreme
Court of Louisiana ruled the application was filed within the time
allowed, as Act No. 223 of 1908, allowing 14 days in which to
apply for a rehearing, superseded the Act No. 15 of 1900. How
ever, the rehearing was denied as the question whether the occupa
tion was hazardous was left open for decision by the court of appeal
when the case was remanded for further proceedings.

E m p l o y e r s ’ L i a b i l i t y — C h i l d r e n U n l a w f u l l y E m p lo y e d — C o n N e g l i g e n c e — F r a u d — Anderson
Manufacturing Co,
(Inc.) v. Wade, Supreme Court of Mississippi (December 17, 1928),
119 Southern Reporter, page SIS.— Charles Wade brought an action
in the circuit court of Hinds County, Miss., against the Anderson
Manufacturing Co. (Inc.), to recover damages for injuries received
tr ib u t o r y

EMPLOYERS* LIABILITY

by him while in the employ of the company and caused by its alleged
negligence. He recovered judgment in the sum of $3,700 and the
company appealed to the Mississippi Supreme Court, alleging con
tributory negligence on the part of Wade and also fraud in regard
to his being employed in violation of the child-labor statute.
At the time of the injury Wade was a minor, 15 years and 9 months
of age. The Mississippi child-labor statute provided, among other
things, that minors between the ages of 14 and 10 years were pro
hibited from being employed except upon an affidavit of parent or
guardian. Wade claimed the right to recover for his injury under
this statute, as he was employed without being required to produce
an affidavit as required by the statute.
Judge Anderson, in delivering the opinion of the court, cited a
decision of the Louisiana Supreme Court in the case of Flores v.
Steeg Printing & Publishing Co. (78 So. 119), holding—
That a child between the ages of 14 and 16, employed without the
production of the required affidavit, was chargeable with contributended to show he was
seeking and accepting
t. . „
,
„ 0
in contributing to and
bringing about the specific act which immediately caused his injury.
The court found ample evidence to go to the jury tending to show
that Wade, in taking hold of the saw as he did was guilty of negli
gence which proximately contributed to his injury. The court held
that a minor between the ages of 14 and 16 can be guilty of fraud
as well as contributory negligence. The evidence tended to show
that the violation of the statute in employing Wade was brought
about by Wade’s fraud— his false and fraudulent representation as
to his age, in connection with his physical appearance.
The court, in reversing the decision of the lower court and remand
ing the case for further proceedings, concluded the opinion by
saying:
I f appellee was employed by appellant through his own fraud as
defined above, the case will stand exactly as if there were no childlabor statute; and therefore, if appellant was guilty of no negligence
proximately contributing to appellee’s injury, but such injury was
brought about solely by appellee’s own negligence, appellant would
be without liability therefor.

E m p lo y e r s ’ L i a b i l i t y — C h ild r e n

U n la w fu lly

E m p lo y e d — D e

Bag esse v. Thistlewaite Lum
ber Co. (Ltd.), Court of Appeal of Louisiana (December 30, 1929),
125 Southern Reporter, page 322.—Joseph Bagesse, jr., an employee
of the Thistl’ewaite Lumber Co. (Ltd.), was injured on October 23.
1928, while in its service and died from the effects of the injury so
p e n d e n ts— H a z a rd o u s O c c u p a tio n s —

DECISIONS OP THE COURTS

received five days thereafter. His mother, Mrs. Josephine Bagesse,
sued the company in her individual capacity for damages in
the sum of $30,300 and in the alternative, for compensation under the
employers’ liability act.
It was alleged that the company had, in violation of the State
statute enacted in the interest of public policy and particularly of
Act No. 301 of 1908, employed the deceased, Joseph Bagesse, jr., then
a minor, in a hazardous occupation.
The district court, Parish of St. Landry, La., dismissed her claim
for damages, allowing her to continue the suit on her alternative de
mand. She appealed the case to the Louisiana Court of Appeal,
where the decision of the district court was affirmed. The court
quoted from the case of Alexander v . Standard Oil Co. of La. (140
La. 54, 72 So. 806), as follows:
The duty imposed by said statute upon the defendant not to employ
a child in a dangerous occupation is thus imposed for the protection
of the child and in his interest and that of society in general, not in
the interest of the parent of the child. The defendant owed no duty
therefore to the mother of the child, and has been guilty of no fault
toward her which could serve as a basis on her part for a cl'aim of
damages.
Concluding the opinion the court said:
Likewise, in this case, the defendant incurred no obligation toward
plaintiff, in whose favor there exists no ground for her demand in
damages. As she has no basis for such a claim, it follows that she
had no cause of action, which authorized the judgment dismissing
her demand under the exception filed, with due reservation per
mitting the continuation of her suit for compensation.

E mployers’ L iab ility — C hildren U n la w f u l l y E mployed — H a z
a r d o u s O c c u p a t i o n — Employers'

Casualty Co. v. Underwood et al.,
Supreme Court of Oklahoma (<January 7 ,1930), 286 Pacific Reporter,
page 7.— Fred Garrett, a boy under the age of 16 years, was killed
while employed by H. F. Underwood and another, doing business
as partners under the name o f the E lk City Compress & Warehouse
Co. The parents of the boy sued the compress company and the suit
was settled and compromised by the payment of $5,000 to the parents.
The Employers’ Casualty Co., the insurer, was notified o f the pro
posed settlement and in response to the notice advised Underwood
that “ in event it developed that the deceased was legally employed
the company would reimburse Underwood for the amount paid in
settlement, not exceeding, however, the amount o f the liability stipu
lated in the policy.” Thereupon Underwood paid the parents o f the
deceased boy the sum o f $5,000 in fu ll for their claim. A t » later

e m p l o y e e s ' in a b il it y

date, to recover indemnity, suit was filed in the district court of
Oklahoma County by Underwood against the insurance carrier and
judgment was rendered in favor of Underwood. The Employers’
Casualty Co. appealed to the Supreme Court of Oklahoma, con
tending—
That the deceased was not legally employed by the plaintiff, in
that he was employed to work in the compress, ( 1) in operating and
assisting in operating dangerous machinery, (2 ) and operating and
assisting in operating steam machinery; (3) that he was working
in a factory or factory workshop where a machine was being used
operated by steam power and electric power; (4) that the operation
was especially hazardous to life and limb; (5) that the place where
he was employed was a factory or factory workshop within the
meaning of the child labor laws, and that he was a minor under 16
years of age and employed therein without the consent of his parents
and without the age of the boy or his schooling certificate, as re
quired by law, and no record was kept on file or posted showing the
name, age, certificate of the minors employed, hours of work, etc.
That the minor did not have the required schooling to permit him
to work, and that he was employed to work more than eight hours
a day, and all told, therefore, his employment was in violation of
Comp. Okla. Stat. 1921, secs. 7208, 7209, 7211, 7212, 7213, and 7214.
The court, however, considered it unnecessary to consider but two
of the grounds set forth: First, that the boy was operating or assist
ing in the operation of steam machinery; second, that he was
employed or permitted to work in an “ occupation especially hazard
ous to life and limb.”
From the facts it appeared that Garrett was engaged in fastening
the bagging together with hooks as the bales were compressed.
When the cotton was placed in the master press the hooks fell off.
A number of them would fall in an opening between the floor and
the plate connected to the movable plate of the press. The deceased,
after he had been working but a few hours, went under the floor
of the compress and under the giant plate apparently for the pur
pose of recovering these wire hooks, although this was no part of
his work, and he was crushed to death when the press receded.
The insurance carrier contended that because Garrett was not
employed to manipulate the lever, throttle, or valves of the steam
machinery he was not assigned to its operation. Regarding this
contention the court said:
We think such a construction would be subversive of the purpose
of the statutes and would strike down the child labor law in prac
tically all cases where the legislature undoubtedly intended it to
apply. The Negro boy, Willie Easley, who operated the levers which
controlled the machine, perhaps had the safest position of the three
persons operating or manipulating this particular machine called
the 44dinkey ” press. A ll he had to do was to stand some distance

DECISIONS

of t h e

cou rts

away and open and close the throttle. The other persons, including
the deceased^ undertook the greater hazards surrounding that particular machine. The law was intended to throw the arm of protec
tion around children working at or on a steam machine, as well as
the person simply operating the control levers thereto. It would be
but an empty play upon words to say that in operating or putting
to practical use a piece of steam machinery like a paper mill, steel
mill, printing press, or cotton compress by a sufficient number of per
sons necessary to perform the work and purpose for which the
machine was intended, nobody was assisting in the operation of the
machine except the engineer who handled the throttle, valves, or
clutch connecting or disconnecting its power. Such a perversion of
the established meaning of the word operate ” in connection with
machinery so extensive in use in modern life would be ridiculous.
In considering the question whether or not the deceased was em
ployed at an “ occupation especially hazardous to life or limb” the
court reviewed a number of cases decided by courts throughout the
United States, and concluded by saying in part as follows:
These decisions, as well as reason, explode plaintiff’s [Under
wood’s] theory that a person may be employed in a hazardous and
dangerous place or occupation, provided he is assigned some duty
which in itself is not dangerous. To measure legality or illegality of
employment by the particular character of the work assigned to the
employer would render the statute not only impotent but wholly ab
surd. * * * Many duties and much work within itself is neither
hazardous nor injurious, but becomes hazardous because of the un
safe surroundings.
We clearly understand that the testimony indicated that the par
ticular work to which the deceased was assigned, narrowed and cir
cumscribed from other adjacent and proximate dangers, was not
necessarily hazardous. All the witnesses, however, testified that the
large press was an exceedingly dangerous machine; and its deathdealing performance in this case clearly demonstrated that fact. We
can not, therefore, so construe the statutes as to restrict their appli
cation to the nature of the particular work or task to which the child
was assigned, instead of the occupation in which he was engaged—
the particular work with all its concomitant and directly associated
perils— which means those dangerous agencies in proximity of and
surrounding the work assigned to the chili. In simple language, we
may say, the dangerous surroundings.
The court also held there was error in the trial by the lower court
in submitting certain questions to the jury. The judgment of the
district court was therefore reversed.

E m p lo y e r s ’

L ia b ilit y — C o n tr ib u to r t

o f R i s k — Bell v.

N e o l i g e n c e — A s s u m p t io n

Terminal Railroad Association of St. Louis, Su
preme Court of Missouri (May 18, 1929), 18 Southwestern Reporter
(2d), page lfl.— On January 1, 1925, George Bell, with three weeks’
experience as a fireman, entered the service of the Terminal Rail

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

road Association as an extra fireman to fire engines used in moving
cars from St. Louis, Mo., to Relay Station, 111. On January 3,
Bell arrived in St. Louis about 2.30 o’clock with a Pennsylvania
train from Relay Station, and the engineer and Bell were relieved
by another engineer and fireman. Bell was ordered to go to the
Twelfth Street roundhouse for further orders. He remained on the
train and asked the engineer to slow down at Twelfth Street to
permit him to alight. In attempting to alight he descended from
the engine deck to the steps, from which he slipped and was in
jured. The steps at the time of the accident were covered with ice
and snow.
Bell filed suit against the company, charging negligence in their
failure to provide him with a reasonably safe place and reasonably
safe instrumentalities for the performance of his work. In answer
the company made a general denial, with a plea of assumption of
risk and pleas of negligence of Bell 44in assuming a position upon
the step board of an engine while the same was in motion so as to
be in danger of falling therefrom.” The St. Louis circuit court
rendered a judgment in favor of the railroad association, and Bell
appealed the case to the Supreme Court of Missouri.
This court reversed the decision of the lower court and remanded
the case for a new trial on the ground that the charge to the jury
was incorrect regarding the assumption of risk by Bell, as the danger
was not so glaring as to threaten immediate injury. The steps had
been used in that condition by the engineer and fireman from 9 a. m.
to 2.30 p. m. of that day, and Bell was justified in believing no im
mediate injury would follow by his use of the icy steps. The court
also found Bell was not guilty of contributory negligence and that
the other assignments of error were without merit.

E m p lo y e r s ’

L ia b ilit y — C o n tr ib u t o r y

S a f e P l a c e — Birmingham

N e g lig e n c e — R a ilr o a d —

v. Bangor <& Aroostook Railroad C o S u
preme- Judicial Court of Maine (July 31, 1929), lift Atlantic
Reporter, page lift.— George L . Birmingham, while employed by
the Bangor & Aroostook Railroad Co. as brakeman was killed on
March 15, 1927, in the company’s yard at Oakfield, Me. No witness
saw the occurrence. It was evident, however, that young Birming
ham, in using the ladder on the side of a moving refrigerator car,
while attempting to reach the top of the car, lost his hold, fell, and
was killed. This action was brought by the father and adminis
trator under the Federal employers’ liability law (45 U. S. C. A.,
secs. 51-59). On motion from the superior court, where there was
a verdict for Birmingham, the case was carried to the Supreme

DECISIONS

of t h e

cou rts

Judicial Court of Maine. It was contended by Birmingham that his
son came in contact with a semaphore negligently located and main
tained too near the track. No other negligence on the part of the
company was claimed or pleaded or indicated by the evidence. In
denying Birmingham’s contention the court said in part:
The evidence showed that Birmingham’s post of duty at the time
of the accident was on the top of the refrigerator car.
The evidence further shows that the defendant had warned its
employees against using the side ladder on freight cars while switch
ing in yards. This warning was printed upon the employee’s time
cards. The undisputed evidence shows that the plaintiff’s intestate
had in his possession such a card with its warning, which is as
follows: “ Employees are warned not to use the si de ladders of cars
when passing through bridges or on the sides of cars next to buildings
or cars when switching in yards.”
Contributory negligence on the part of the plaint'ff is not set up
in this case, and under the Federal employers’ liability law it is not
a complete defense. Contributory neg^gence implies r*eg*iorence
on the part of the defendant. (18 R. C. L. 129.) In this case no
negligence of the defendant is shown, because in locating its sema
phore it was not bound to foresee and guard against a violation of its
rule and warning.
The motion in the case was sustained and the verdict set aside.

E mployers’ L iab il ity — D u t y of E mployer to I nstruct— S afe
P lace — R elease— Miller v. Paine Lumber Co. (Ltd .) , Supreme

Court of Wisconsin (December 3,1929), 227 Northwestern Reporter,
page 933.— The Paine Lumber Co. operated a sash and door factory
at Oshkosh, W is. On March 30, 1925, Reinhardt M iller entered the
employ o f the company as a common laborer. H is duties were to
assist in the moving o f doors on trucks from place to place in and
about the room in which he was employed. The loads on these
trucks were 6 feet high, and M iller’s duty was to push the truck
and its load from the rear, while another workman was in front
pulling and steering the truck.

A fte r working about 10 days and

after having moved from 800 to 1,000 o f these loads, M iller was
injured by a door falling from the top of the load and striking him
on the head.

I t appeared from the evidence that the door was

brushed from the top o f the load when it came in contact with
the side o f another load abutting on the alleyway.

Miller brought action against the lumber company and the circuit
court for Winnebago County rendered a judgment in favor of the
employer. Thereupon Miller appealed to the Supreme Court of
Wisconsin, alleging that the company failed to furnish him a safe
place of employment by reason of its failure to warn him of Oie
danger of doors falling off the trucks.

EMPLOYERS7 LIABILITY

Regarding the duty of the employer to furnish a safe place the
court said:
It is apparent that a warning concerning dangers incident to the
performance of specific duties within a given place works no change
upon the physical aspects of the place where the work is to be per
formed. I f the place was unsafe before, it continued to be unsafe
after the warning. The effect of the warning is to apprise the em
ployee of the dangers incident to the performance of the service, so
that he may exercise care and caution for his own safety, which he
might not exercise were he insensible to the danger. A mere reading
of the statute reveals the dominant purpose of the legislation to have
been to impose upon the employer the duty to furnish employees
with a safe place to work in a physical sense.
However, that duty exists independent of any statute, and the fail
ure to perform such duty has long been recognized as a ground of
the employer’s liability to an injured employee. It is a common-law
duty, and it has been in no respect modified by the legislation we are
considering.
The employer contended that no duty to warn rested upon the com
pany because the danger was obvious, and that Miller must have
been cognizant of the danger of falling doors. The court said, how
ever, that—
He must be held to have known that if the top door of the truck
became engaged with a door protruding from an adjoining truck
load it would be brushed from the top of his load, and that by force
of gravity it would fall; that it would be brushed to the back of the
load, where he was working, and that in such event it was quite
likely to fall upon him. These things he certainly knew, and the
consequences he must have foreseen, if he paused to consider. But
he was not warned of any sue h danger. He had worked there 10
days, during which time he had moved from 800 to 1,000 truck loads
without anything of the kind happening. Neither his experience
nor warnings from the defendant had encouraged a cautious or
watchful disposition on his part.
In regard to the handling of the case by the lower court, the court
said:
The case was submitted on the theory that the duty to warn was
imposed upon the defendant by statute. I f so, the duty was abso
lute, if reasonably necessary to make the place of employment safe
(Van de Zande v. Chicago & North Western Railway Co., 168 Wis.
628,170 N. W . 259), and the jury was so instructed. This, however,
is not the duty which the rule of the common law imposes on em
ployers. That rule requires merely the exercise of ordinary care.
The rule as applicable to this situation is well stated in Montevilla
v. Northern Furniture Co. (153 Wis. 292, 296, 141 N. W . 279, 280).
It requires a warning “ against dangers which an ordinarily prudent
man may reasonably anticipate may occur in the ordinary course of
the servant’s employment, and then only when the servant may
reasonably be presumed to be ignorant thereof.”

DECISIONS OP TH E COURTS

Although the jury found that the failure to warn rendered the
place of employment unsafe, pursuant to the court’s instruction rela
tive to the absolute duty of the master to furnish a safe place of
employment and in such connection that “ it is the duty of employers
to warn their employees of any dangers known to the employer or
reasonably to be apprehended l>y the employer that are incident to
the employment of such employees,” thev might have found that
ordinary care required such warning under the circumstances here
presented. It seems apparent that the verdict can not be treated as
one finding the defendant guilty of a want of ordinary care by
reason of its failure to so warn tne defendant, and that a new trial
must be had.
The court., in conclusion, considered the question regarding the
release executed by Miller to the company upon receipt of $457.45.
Miller alleged that he could not read, and he thought the release
was a receipt for six month’s compensation when he signed it. In
the trial court the jury found the company falsely represented the
character and purpose of the release, but the court rendered judgment
in favor of the company, expressing the view that these answers were
not sustained by the evidence. The Wisconsin Supreme Court ruled
that this was error on the part of the trial judge and therefore
reversed the judgment.
A case was appealed to the Supreme Court o f Wisconsin and the question
involved was the interpretation of section 101.06, Wisconsin Statutes 1929,
regarding “ safe employment.” The court held that the requirement that the
employer provide a safe employment should be construed to mean more than
a place o f employment safe in a physical sense.
The court also said that the statute requires every employer to furnish em
ployment which shall be safe for the employees therein and the frequenters
thereof, and to furnish safety devices and safeguards, etc., and to do every
other thing reasonably necessary “ to protect the life, safety, and welfare o f
such employees and frequenters.*’ (M iller v. Paine Lumber Co., Supreme Court
o f W isconsin (A pril 29, 1930), 230 N. W. 702.)

E m p l o y e r s ’ L i a b i l i t y — E m p l o y m e n t S t a t u s — F r a u d — Minneapo
lis, St. Paul c6 Sault Ste. Marie R. Co. v. Rock, United States Su
preme Court (May 13, 1929), Ifi Supreme Court Reporter, page
363.— On October 1, 1923, one Joe Rock applied for employment as a
switchman in the railroad yards of the Minneapolis, St. Paul &
Sault Ste. Marie Railway Co., in Kolze, 111. In accordance with the
rules of the company Rock was sent to the company physician for
physical examination. It was found that he had been treated surgi
cally for ulcer of the stomach and removal of the appendix, and that
at the time of the examination he had a rupture. His application
was rejected because of his physical condition. A few days later
Joe Rock, under the name of John Rock, representing that he had

em ployers'

in a b il it y

not heretofore applied, made application for such employment. The
superintendent was deceived as to Rock’s identity, and accepted him
subject to the physical examination. Rock procured a man by the
name of Lenhart to impersonate him and in his place to submit to
the required examination. The physician found Lenhart’s condition
satisfactory, and believing that Lenhart was the applicant Rock,
reported favorably on the application. As a result of the deception
the railroad gave Rock employment and did not learn of the fraud
until December 24, 1924, on which date Joe Rock, while employed
under the name of John Rock, was injured.
Rock brought suit under the provisions of the Federal employers’
liability act in the circuit court of Cook County, 111., and obtained a
verdict for $15,000. This judgment was later affirmed by the Ap
pellate Court of the First District, Illinois. The case was then taken
to the United States Supreme Court. That court reversed the judg
ment of the Illinois court, saying:
We are called upon to decide whether, notwithstanding the means
by which he got employment and retained his position, respondent
may maintain an action under the Federal employers’ liability act,
In reaching the conclusion that Rock did not have a right of action
under the Federal employers’ liability act, the court said that the car
rier owed a duty to its patrons as well as to those engaged in th<.
operation of the railroad to take care to employ only those who are
careful and competent to do the work assigned to them and to exclude
the unfit from their service. Rock’s physical condition was an ade
quate cause for his rejection, as the railway company had a right
to require applicants for work to pass appropriate physical
examinations.
The deception by which he subsequently secured employment set
at naught the carrier’s reasonable rule and practice established to
romote the safety of employees and to protect commerce. It was
irectly opposed to the public interest, because calculated to
embarrass and hinder the carrier in the performance of its duties
and to defeat important purposes sought to be advanced by the act.

Mr. Justice Butler, delivering the opinion, pointed out that Rock’s
position as employee was essential to his right to recover under
the act and that—
He, in fact, performed the work of a switchman for petitioner
[the railway company] but he was not of right its employee, within
the meaning of the act. He obtained and held his place through
fraudulent means. While his physical condition was not a cause of
his injuries, it did have direct relation to the propriety of admitting
him to such employment. It was at all times his duty to disclose
his identity and physical condition to petitioner. His failure so to
do was a continuing wrong in the nature of a cheat. The misrep
resentation and injury may not be regarded as unrelated contempo

DECISIONS OF THE COUBTS

rary facts. As a result of his concealment his status was at all times
wrongful, a fraud upon petitioner, and a peril to its patrons and its
other employees. Right to recover may not justly or reasonably be
rested on a foundation so abhorrent to public policy.

E m p lo y e r s ’

L ia b il it y — E m p lo y m e n t

p l o y e e —Spodick

S ta tu s— L oan ed

v. Nash Motor Co., Supreme ConM of Wisconsin
{November 11, 1930), 232 Northwestern Reporter, page 870.— Peter
Spodick was in the general employ of the Racine Boiler & Tank
Works as a boiler maker. On August 5, 1928, the Nash Motor Co.
asked the boiler and tank works for men to serve them in a repair
job. After looking over the boiler it was decided not to take the
job because more men were needed than the boiler company could
furnish. However, the company let them have one of its men, Peter
Spodick, who worked in repairing the boiler with men from the
Freeman Co. and employees of the Nash Motor Co. Spodick’s wages
were paid by the boiler and tank works, and the motor company was
charged the regular rate. While working under this arrangement,
Spodick received serious injuries and he filed suit against the Nash
Motor Co. to recover damages for the personal injuries. The question
involved in the case was whether Spodick was an employee of the
motor company at the time of the injury; if so, his remedy was under
the workmen’s compensation act and this suit would not be main
tainable.
The municipal court for Racine County held Spodick was an
employee of the Racine Boiler & Tank Works at the time of the
injury and rendered a verdict in his favor. On appeal to the Wis
consin Supreme Court this decision was reversed. The court said:
At the foundation of the relation of employer and employee is a
contract, express or implied, and the consent oi the employee to enter
the services of a special or temporary employer must exist. As sug
gested, this may be given expressly or by acts implying it. In the
case before us the general employer did not undertake to repair the
boiler, but sent one man, who, with others from yet another employer,
and some of defendant’s own employees, were to make up a group
to do this work under the general control of defendant’s agents. This
the plaintiff knew. He was an expert and evidently did not need
much, if any, direction, but he engaged in the business of the
defendant, who at the time had the right to control and direct his
conduct, who could have dismissed him from the service, who at all
times had authoritative control of the work. Plaintiff knew how
the men were procured to do this work under the general manage
ment of the Nash Co. * * * There is no credible evidence to
support a finding other than that the plaintiff at the time of the
accident was in the employ of the defendant. The boiler was being
repaired by the defendant, not by the Racine Boiler & Tank Works,
nor by the Freeman Boiler Co. Men from those concerns were

EMPLOYERS* LIABILITY

loaned to the defendant to assist in repair work. These loaned
employees worked with defendant’s men.
The plaintiff was an employee of the defendant at the time he
sustained his injury and his remedy is under the workmen’s com
pensation act.
The judgment was reversed.

E m p l o y e r s ’ L ia b ility — Evidence— A ccid e n t— N egligen ce— Neu>

ark Gravel Go. v. Barber, Supreme Court of Arkansas {June 17,
1929), 18 Southwestern Reporter (2d), page SSI.— On July 1, 1927,
Cecil Barber was working as a laborer for the Newark Gravel Co.
near the town o f Newark, A rk. Barber and another employee were
carrying railroad ties. The method used was for one laborer to
take one end on his shoulder and the other laborer the other end
and when they reached the place where they were to put the tie
it was thrown from the shoulder. The person behind would give
the signal and both parties would throw at the same time. On July

1, 1927, while carrying railroad ties in this manner, a fellow em
ployee o f Barber, whose duty it was at that time to give the signal,
failed to do so and without any notice threw his end o f the tie.
One end o f the tie rebounded and caught Barber’s left foot and
crushed it. Barber suffered pain and was unable to work for more
than two months. H e filed suit against the Newark Gravel Co.
asking damages in the sum o f $5,000. The circuit court o f Pulaski
County rendered judgment in the sum of $2,000 in favor of Barber,
and the company carried the case to the Arkansas Supreme Court.

The employer alleged that Barber voluntarily exposed himself to
the risk and also that he was guilty of contributory negligence.
Upon appeal the employer urged a reversal of the case on the ground
that the injury was due to an inevitable accident for which he would
not be liable. The court, however, found there was negligence on
the part of the fellow servant in not giving the signal and concluded
that this evidence was sufficient to sustain the verdict of the jury
that it was not a mere accident. In the course of the opinion the
court said:
The fellow servant threw his end of the tie without giving any
warning, and, when the appellee felt the tie moving, then he pushed
it from his shoulder. It was the duty of Austin to give the signal,
and he should not have thrown his end of the tie without giving the
customary signal, and if he did this, threw his end of the tie without
giving any signal, he was guilty of negligence, and, if this negligence
was the proximate cause of the injury, appellee was entitled to
recover.
The court also cited cases showing that a laborer was justified in
acting upon the belief that his follow servant would do his part of

DECISIONS OF THE COURTS

the work in the ordinary way. They found substantial evidence to
support the conclusion that the negligence of the fellow servant was
the proximate cause of the injury and therefore affirmed the judg
ment of the lower court.
E mployers’ L iab ility — F ederal a n d S tate J u r i s d i c t i o n — I n t e r
s t a t e C ommerce — Efaw v.

Industrial Commission of Wisconsin et
al., Supreme Court of Wisconsin (November 5, 1929), 227 North
western Reporter, page 2J$ .— The Great Northern Railway Co. op
erates an extensive system through several States, and about 25 miles
o f this track is in the State o f Wisconsin.

A t Superior, W is ., it has

docks and facilities for unloading and storing coal. Russell B . E fa w ,
a laborer, was engaged most o f the time in repairing and cleaning
the railway structures and water system in the Superior terminal.
On the afternoon o f the accident E faw and his crew had unloaded
several cars o f coal which they had to haul upon the “ load ” track.
W h ile walking down the incline to turn the switch and clear the
“ load ” track for another car loaded with coal, which was for use in
interstate and intrastate commerce, the empty car overtook him and
inflicted serious injuries. H e was awarded compensation by the
Industrial Commission o f Wisconsin, upon the conclusion that E faw
and the railway company, at the time o f the injury, were subject to
the Wisconsin workmen’s compensation statute (W is. Stat., secs.
102.03-102.35).

The case was appealed to the circuit court for Dane County, where
the award was vacated upon the ground that Efaw was engaged in
interstate commerce and therefore was not governed by the W is
consin statute. Efaw then appealed to the Supreme Court of
Wisconsin.
The facts were not in dispute, the only question being whether
Efaw was engaged in interstate or intrastate commerce at the time of
the accident. The industrial commission contended that all the steps
performed by Efaw in his employment on that day were essentially
a part of the operation of putting the coal in the chute and in so far
as they were a part thereof Efaw was assisting and engaged in un
loading coal into the chute at the time of the injury. On the other
hand, the railway company contended that as some of the coal was
to be used by locomotives engaged in interstate commerce, Efaw
was, at the time of his injury, engaged in interstate commerce.
In rendering the decision the court quoted from the case of Erie
Railway Co. v. Collins (259 Fed. 172,175), in part as follows:
In unloading the coal into the chute, from which it was to be taken
by locomotives in interstate and intrastate commerce, it became con
verted into an instrumentality of interstate commerce. The act

EMPLOYERS*

l ia b il it y

of putting the coal into the chutes from which the engines can take
it is an act performed in interstate commerce, as much so as is the
act of putting water into the trough by the side of the tracks to be
scooped by passing engines; and we can not distinguish the act of
putting the coal into the coal chutes for the supply of the engines
irom the act of putting rails alongside of a track into which they
are to be fitted or the bolts by tne side of the bridge, as in the
Pedersen case.
It concluded the opinion by saying:
Efaw, when injured, was engaged in work so closely related to
interstate transportation as to be part of it, and. therefore the in
dustrial commission was in error in concluding tnat at the time of
such injury he and his employer were subject to the provisions of
sections 102.03 to 102.35, Wis. Stats.
The judgment was therefore affirmed.

E m plo yer s ’ L ia b il it y — F ederal

and

S t a te J u r isd ic tio n — N egli

gence — A ssu m p t io n of R is k — Candler v. Southern Railway Co.,
Supreme Court of North Carolina {September 11,1929), 1J$ South
eastern Reporter, page 893.— C. H. Parker was em ployed by the
Southern R a ilw a y Co. as conductor o f a fre ig h t train running fro m
A sh eville, N. C., to K n o x v ille , Tenn. His train was standing in
the com pany’s passenger yard at A sh e v ille , N. C., aw aitin g orders
fo r its m ovem ent on its regular schedule. He had received orders

fo r its m ovem ent, delivered to h im in the office o f the dispatcher,
and was w alkin g across the tracks located between the dispatcher’s
office and the track upon which his train was stan d in g, when he
was knocked dow n by a m o v in g car on one o f these tracks, dragged
a distance o f about

90 feet, and killed.

The car strikin g Parker

had been shunted or kicked into this track, no engine was attached
to it, and no brakem an or other em ployee o f the railw ay com pany
was on the car.

The evidence tended to show the car was shunted

by the sw itch in g crew engaged in m a k in g up a train , in violation
o f rules o f the com pany and contrary to the custom follow ed by the
sw itching crew.

W . W . Candler, administrator of Parker’s estate, filed suit against
the railway company and the superior court, Buncombe County,
N. C., rendered judgment in his favor. Thereupon the railway com
pany appealed the case to the Supreme Court of North Carolina.
In affirming the opinion of the superior court, the North Carolina
Supreme Court said in part as follows:
The liability of defendant to plaintiff in this action, if any, must
be determined in accordance with the provisions of the Federal em
ployers’ liability act (45 U. S. C. A., secs. 51-59), as the same have

DECISIONS OF THE COURTS

been construed and applied by the Federal courts, the law of this
State with respect to the liability of a common carrier by railroad
to its employee for damages resulting from personal injuries sus
tained by him, or to his personal representatives for damages re
sulting from his death, has been superseded by the act of Congress,
when such act is applicable.
There was evidence tending to show affirmatively negligence on
the part of defendant’s employees, in causing the car to be shunted
or kicked a distance of 200 yards from the west yard into the pas
senger yard, without warning to persons or employees rightfully in
the passenger yard, and that this negligence was the proximate cause
of the death of plaintiff’s intestate. He had no duty by reason of his
employment by defendant with respect to said car or with respect to
the train which was to include said car. He was at a place on defend
ant’s premises where he was required to be in order to perform his
duties as a conductor. While he was there, engaged in the perform
ance of his duties, defendant owed him the duty to exercise due care
to furnish and maintain for him a reasonably safe place in which
to perform his duties. There was evidence tending to show a breach
of this duty, which was properly submitted to the jury.
The jury nas found that plaintiff’s intestate by his own negligence
contributed to his death, and under the provisions of the Federal
employers’ liability act, the amount of plaintiff’s recovery in this
action has been reduced in accordance with this finding.
It can not be held as a matter of law, as contended by defendant,
that upon all the evidence plaintiff’s intestate assumed the risk of
injury arising from the negligence of defendant, as found by the
jury. The conflicting evidence as to whether plaintiff’s intestate,
as an employee of defendant, knew of the custom of defendant’s
switching crew, if any such custom existed, to kick or shunt cars
upon the track over wnich he was passing, without warning by sig
nals or otherwise, or of the continued violations of the rules of de
fendant with respect to the movement of cars on its tracks, which
resulted in the abrogation of such rules, was properly submitted to
the jury. Without such knowledge it can not be held that he as
sumed the risk arising .from the negligence of defendant’s switching
crew.
E m p lo y e r s ’
A s s u m p t io n

L ia b ility — F e d e r a l
of

E m p lo y e r s ’

L ia b ility

R is k — N e g lig e n c e — C o n t r ib u t o r y

A ct—

N e g lig e n c e —

Thrall v. Pere Marquette R. G o S u p r e m e Court of Michigan
(March 6, 1930), 229 Northwestern Reporter, page 488.—William
P. Thrall was a section foreman on the Pere Marquette Railway be
tween Holland and Allegan, Mich,, and was injured while return
ing from work with his crew. At the time of the accident they
were riding the track on a motor car. The car was derailed and
Thrall was thrown under it, receiving injuries from which he died.
An action was brought under the Federal employers’ liability act
by Alice A. Thrall, administratrix, for injuries resulting in his
death, which she claimed was caused by the negligence of the rail

EMPLOYERS9 LIABILITY

way company. It was contended that the overloading of the motor
car together with the failure to maintain the track and car in a
safe condition caused the accident. As a defense the railway com
pany pleaded contributory negligence and assumption of risk by
Thrall.
The circuit court, Allegan County, rendered judgment in favor
of the widow, and the railway company appealed the case to the
Supreme Court of Michigan. In regard to the assumption of risk
by Thrall the court said:
It may be true that the decedent assumed the risk as to the de
fective condition of the track and the motor car, though whether
he did so was a question for the jury. But the improper loading
of the drill was the act of fellow employees and, m the absence
of evidence that decedent had actual knowledge of their negligence,
the doctrine of assumed risk does not apply. The evidence leaves
no doubt that the drill was loaded by two fellow employees, Han
son and Baker, and that Baker rode on the car within easy reach
of the drill and could have prevented it from toppling over if he
had used ordinary care. But it is said that decedent also had a
duty to perform in connection with the loading of the drill. As
suming that to be true, and that he failed in his duty and was guilty
of contributory negligence, his right of recovery would not be barred
thereby.
The court was also of the opinion that Thrall did not as a matter
of law assume the risk of the defects in the track and motor car, for
the records show that neither Thrall nor any member of his crew
thought there was any danger in their use of the track in its defective
condition.
As to the defense of contributory negligence, the courts said that
assuming Thrall was negligent, as it was claimed, his negligence was
not an independent cause of the accident. His negligence and the
negligence of the company operated together to cause it. They were
concurring causes and the company would be liable though other
negligence for which it was not responsible contributed directly to
produce the injury. The court cited section 16, Roberts, on Injuries
to Interstate Employees on Railroads, in which it is said that “ if the
injury resulted in whole or in part from the company’s negligence,
the statute can not be nullified and the right of recovery defeated
by calling the plaintiff’s act the proximate cause of the injury.”
The judgment of the lower court was therefore reversed.

E m p lo y e r s ’ L i a b i l i t y — F e d e r a l R a ilr o a d S t a t u t e — A c t i o n f o r
D e a t h — L i m i t a t i o n s —Flynn

v. New York, N. H . & H, R . Co., Su
preme Court of Errors of Connecticut {March 31, 1930), lift Atlantic
Reporter, page 682.— On December 4, 1923, Edward L . Flynn was

DECISIONS OF THE COURTS

injured through the negligence of the New York, New Haven &
Hartford Railroad Co. Flynn died on September 1, 1929, leaving
a widow and five daughters. Following the death of the deceased the
executor filed suit against the railroad to recover damages The rail
road contended there was no cause of action as the injury occurred
in 1923 and death occurred in 1928, the action being barred by the
limitation of a 2-year period; hence, no cause of action accrued after
the death. The action was based upon the Federal employers’ lia
bility act, which was amended April 5, 1910 (36 Stat. 291, ch. 143),
by adding to it section 9 (45 U. S. C. A., sec. 59):
That any right of action given by this act to a person suffering
injunr shall survive to his or her personal representative, for the
benent of the surviving widow or husband and children of such em
ployee, and, if none, then of such employee’s parents; and, if none,
then of the next of kin dependent upon such employee, but in such
cases there shall be only one recovery for the same injury.
Counsel for the railroad cited section 1 of chapter 143 of the act
of 1910, cited above, which provides that “ no action shall be main
tained under this chapter unless commenced within two years from
the day the cause of action accrued.” The superior court, New Haven
County, rendered a verdict for the railroad company and the executor
appealed to the Supreme Court of Errors of Connecticut, which court
affirmed the judgment of the lower court, saying in part as follows:
The act of 1910 in terms covers both of the actions authorized
under section 1 of the act of 1908, and since the decedent did not
bring his action for his own injury within two years from the occur
rence of the accident, the rignt of his representative to bring his
action is barred.
The new right of action given the representative of the designated
relatives to recover for the pecuniarv loss to them through the death
of the decedent is, as we have stated, “ dependent upon the existence
of a right in the decedent immediately before his death to have main
tained an action for his wrongful injury.” * * *
The cause of action for death arises upon the occurrence of the
death, but, if the decedent’s right of action for his wrongful injury
has ceased to exist, it would be, as defendant insists, anomalous to
hold that the right of action for the wrong to the beneficiaries
arising out of the wrongful injury to the decedent is enforceable.
We discover no distinction between a judgment, or a settlement ob
tained by the decedent, and the lapse of the statutory period, in
barring the maintenance of an action under this act.

E m plo yer s ’ L ia b il it y — F ederal R ailroad S t a t u t e — F r a u d u l e n t
R epr esen tatio n — D isease — Fort

Worth <& D. C. R. Go. v. Griffith,
Court of Civil Appeals of Team (April 5 , 1930), 27 Southwestern
Reporter, page 851.— C. O. Griffith sued the Fort Worth & Denver

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

City Railway Co. claiming damages for personal injuries as the
result of the negligence of the railway company and its servants.
It appears that while Griffith was serving as switchman and working
as the foreman of a yard crew, the fire box of the engine exploded,
resulting in Griffith’s injury and the loss of his left eye. He further
alleged that both eyes were injured, the left eye entirely lost and
the right eye impaired about 20 per cent.
The railway company alleged that as Griffith was engaged in in
terstate commerce at the time of the accident the Federal employers’
liability act (45 U. S. C. A ., secs. 51-59) would control the rights
of the parties. It further contended that Griffith assumed the risk
and was guilty of contributory negligence; it also pleaded that the
contract of employment was procured by fraud as Griffith failed to
five required information regarding previous employment and
fraudulently concealed the fact that he was color blind when apply•ng for work; and it further alleged that the condition of Griffith’s
eyes was not the result of the accident but due to the fact that
Griffith was suffering from certain eye diseases. The case was tried
by the district court, Wichita County, and the jury found that—
A t the time of the accident the fuel oil of the engine contained
water, which caused an explosion in the fire box of the engine, and
that allowing water in the fuel oil constituted negligence resulting
in injuries to appellee’s eyes, and that such negligence was the proxi
mate cause of the damages; that the appellant failed to exercise
ordinary care in providing reasonably safe and suitable fuel oil for
the engine, which was a proximate cause of appellee’s injuries; that
he was damaged in the sum of $500, and that the loss of plaintiff’s
sight was due principally to syphilis or some other disease; and that
appellee had not assumed the risk.
From a judgment for Griffith in the sum of $500 the railway com
pany appealed to the court of civil appeals.
The only question considered by the appeals court was the. fraud
perpetrated by Griffith when he made application for employment.
The court said:
This suit being brought under the Federal employers’ liability act,
and because the record shows that, as a switchman, appellee was con
tinually engaged in interstate commerce, the decision of the Supreme
Court of the United States, upon the question involved, will control
whenever there is a conflict between such decision and the decision of
State courts.
The court then cited the case of Minneapolis Ry. Co. v. Rock (279
J. S. 410, 49 Sup. Ct. 363), in which the Supreme Court passed
’pon the rights of an employee who had secured employment by
raudulent means. The Supreme Court, in denying recovery, said in
)art:

While his physical condition was not a cause of his injuries, it did
xave direct relation to the propriety of admitting him to such em

DECISIONS OF THE COURTS

ployment. It was at all times his duty to disclose his identity and
physical condition to petitioner. His failure so to do was a continu
ing wrong in the nature of a cheat. The misrepresentation and
injury may not be regarded as unrelated contemporary facts. As a
result of his concealment his status was at all times wrongful, a fraud
upon the petitioner, and a peril to its patrons and its other employees.
Right to recover may not justly or unreasonably be rested on a
foundation so abhorrent to public policy.
In concluding the opinion reversing the judgment of the district
court the court said:
The general rule is that fraud of this character renders a contract
voidable rather than void, but that rule has been ignored in the Rock
case by the Supreme Court upon the ground that the safety of the
traveling public is involved in a contract of this character, and for
reasons of public policy it is held that the contract is void and, ir
effect, that appellee never became an employee of the appellant. Th<
parties are not in pari delicto, and the false representations made are
material. The fact that the two vision tests made by the appellant
failed to disclose color blindness becomes immaterial in the light of
this record, which shows that appellee resorted to positive and
affirmative fraud in inducing Day to write false statements with reference to appellee’s employment. Being guilty according to his own
testimony, of positive and affirmative fraud and deceit with refer
ence to a matter affecting the public interest, he has no standing in a
court of law or equity.
We are strongly inclined to the opinion that the loss of vision in
defendant’s eye was due to disease and that the proof is overwhelm
ing upon this issue, but do not base the decision upon that ground.
In deference to the holding of the Supreme Court of the United
States, which we feel constrained to follow, the judgment is reversed
and is here rendered for the appellant [railway company].

m ployer s ’

L ia b il it y — F ederal R ailroad S t a t u t e — I n terstate

Ordey v. Lehigh Valley R. Go., Circuit Court of A p
peals, Second Circuit (December 9,1929), 86 Federal Reporter (2d),
page 705.— C harles O n ley was em ployed as a brakem an and worked
C om m er c e —

in the P h illip sb u rg , N .f J ., yard o f the L eh ig h V a lle y R a ilro a d C o.
in a sw itch in g crew helpin g to make up trains.
du rin g the m orn in g o f A u g u st

H e was so em ployed

13,1927. A f t e r h a v in g finished lunch

at noon on that day he returned to work and was told b y the yard m aster to oil an engine.

W h e n this w ork was finished the y a rd -

m aster directed him to back the engine to a certain track and there
test the fire hose with which it was equipped.

T h e engine was takei

to the place as ordered and O n ley held the hose, a fter a fireman hac
attached one end to the engine, w hile the engineer turned on th*
water.

S u d d en ly the hose burst at a point behind O n ley and he waj

severely burned by steam and h ot water.

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

Onley filed an action against the railroad under the Federal em
ployers’ liability act, and the United States District Court for the
Southern District of New York dismissed the case. The defense
used by the railroad in securing the dismissal of the suit was that
Onley was not engaged in interstate commerce when injured. The
case was appealed to the Circuit Court of Appeals, where the judg
ment was affirmed. Circuit Judge Chase in speaking for the court
said that testing a fire hose on an engine might be employment either
in interstate commerce or intrastate commerce, depending entirely
upon what Onley had previously done or what he was about to do.
In regard to the work to be performed in the future he said:
The future is barren of assistance, for he was not employed in
preparing for some definite movement, so that his work was a neces
sary incident of it and became of like character with it; and nothing
is known but that the plaintiff, and we may assume the engine, would
have in the ordinary course of events done such switching as would
have been required. We do not know what would have been required,
except that it might have been wholly interstate switching, wholly
intrastate, or partly both. Obviously the plaintiff has not thus shown
himself to have been engaged in interstate commerce when injured.
The case of Erie Railroad Co. v. Walsh (242 U. S. 303, 37 Sup. Ct.
116) was cited, in which the court held that “ the mere expectation
that plaintiff would presently be called upon to perform a task
in interstate commerce is not sufficient to bring the case within the
act.”
Accordingly the court examined the previous work performed by
Onley and found nothing there to indicate that any operation of
the morning’s interstate or intrastate switching was unfinished when
he stopped for lunch. The court said the hose testing was a detached
and isolated piece of work which had to be done from time to time
to keep the engine in the proper condition for such use as would be
required and was not made necessary by any interstate movement.
The circuit judge concluded the opinion by saying:
Having failed to show that the test was occasioned by any use in
interstate commerce, made in connection with any such commerce,
or having at best more than some remote, indefinite relation to com
merce, interstate and intrastate generally, the plaintiff has not dis
charged the burden of proving that he was engaged when hurt in
performing a task so closely connected to any interstate work that
it was a necessary incident of such work and to be taken as a part
of it. On the contrary, the fact that all previous work had been
completed and no particular work was contemplated gave rise to the
opportunity for taking time to test the hose, and it became a separate
and distinct part of the day’s work performed by the plaintiff for
no other reason than that the yardmaster happened to order it done
when he did. This makes it impossible for the plaintiff to bring
himself within the Federal employers’ liability act.

100

DECISIONS 0 7 THE COURTS

E m ployers’
L ia b ility — F ed e ra l
R ailroad
S t a t u t e — N e g li
gence— S a fe P la c e — Phillips v. Chicago
&
R. Co., Supreme
Court of Nebraska (December 10, 1929), 227 Northwestern Reporter,

page 931.— Theodore H . Phillips brought action under the Federal
employers’ liability act (45 U. S. C. A., secs. 51-59) to recover dam
ages for an injury received while employed as a section foreman by
the Chicago, Burlington & Quincy Railroad Co. From the evidence
it appears that Phillips was injured while replacing a tie in the road
bed. The company provided a common pick as a to o l; while en
gaged in removing the tie from the roadbed the pick slipped out
o f the tie and Phillips tumbled over the embankment and struck a
snag, and was seriously injured.

He filed suit against the railroad company in the district court,
Holt County, Nebr., alleging negligence on the part of his employer
in its failure to furnish him safe tools and appliances. The district
court rendered a verdict in favor of Phillips and the company
appealed the case to the Supreme Court of Nebraska.
In rendering the decision the court said that in a case brought
under the Federal employers’ liability act for damages there can be
no recovery against the employer unless some act of negligence on
the part of the employer be.alleged and proved.
Continuing, the court said in part as follows:
The question squarely before this court for its determination in
this case is whether or not the defendant was negligent in its failure
to furnish tie tongs instead of picks for the use of its trackmen in
removing and replacing ties. The question involved in this case
is not that of a defective tool, which was known to the employer
to be defective, and was continued in use and the employee injured
as a consequence. We must determine whether the furnishing of
one tool for the work rather than another was such negligence as
would sustain a verdict for the plaintiff. The employer is not bound
to supply the best, the newest, or the safest tools to insure the safety
of his employee. It is his duty to use all reasonable care and
prudence for the safety of his employees, by providing them with
machinery and tools reasonably safe and suitable for the use to
which they are to be put. [Cases cited.]
The Federal courts have held that the employer has reasonable
discretion in selecting facilities for the use of employees. It is
the duty of the master to provide reasonably safe machinery or
appliances for the servant to do the work. In making such provi
sion, they are given much freedom of choice, and in the exercise
thereof they must use reasonable care and ordinary prudence.
[Cases cited.]
The pick which was used by the trackmen in this case was not
a tool which was recognized as dangerous in its use. It was a
simple tool, ordinarily used for the purpose, and the failure of the
railroad company to supplv tie tongs in place thereof was not such
negligence as would justify a recovery by the plaintiff under the

EMPLOYEES* LIABILITY

101

Federal employers’ liability act, and the trial court should not have
submitted tne question of negligence to the jury.
Since we have reached the conclusion that the failure of the rail
road company to furnish the parties with a tie tong instead of a
pick for their work as trackmen is not negligence to sustain a verdict
under the Federal employers’ liability act, the judgment is reversed
and the action dismissed.
E

m plo yer s ’

L ia b il it y — F ederal R ailroad S t a t u t e — S af e P lace

A ss u m p t io n of R is k — Fredericks v. Erie R. Co.,
Circuit Court of Appeals, Second Circuit (December 9, 1929), 36
Federal Reporter (2d), page 716.— John F. Fredericks, while in the
course of his employment as a fireman on one of the Erie Railroad’s
switching engines in the yard at Elmira, N. Y ., fell from a running
board while trying to close a drain cock and was severely injured.
At the time of the accident the engine was standing still, but the
running board was somewhat icy and slippery. Being unable to close
the valve with one hand, Fredericks let go the grab rail and used both
hands in trying to close the valve. His pull loosened the pet cock or
the fitting so that it turned and shot up about two inches into the
pipe, which caused him to lose his balance and fall to the ground.
He fil’ed suit under the Federal employers’ liability act (45 U. S.
C. A., secs. 51-59) and the boiler inspection act (45 U. S. C. A., sec.
22 et seq.). The United States District Court for the Western Dis
trict of New York rendered judgment in his favor and the railroad
company carried the case to the Circuit Court of Appeals.
The court said it was the duty of the railroad company to see that
the pet cock was fitted to the engine and maintained in such a way
that the application of manual force by an employee, whose duty it
was to close it, would not pull it loose. The company was not al
lowed to excuse itself for the condition of the fitting by saying that
its servant was too strong and heavy for the job.
To comply with the boiler inspection act requiring the appurte
nances of the locomotive to be in proper condition and safe to operate,
the court cited cases holding that for injuries due to the employer’s
failure to comply with this law, the injured employee may recover
without showing the employer to have been negligent. Regarding
this question the circuit court held that—
and

ppl ian ces —

The evidence was conflicting about the condition of the drain cock
and fitting, and with the defendant’s evidence strongly indicating
that nothing was loose after the accident we can not take it for
granted that the jury found the appliance defective because of inse
cure fastening.
The court also considered the question decided by the jury in the
lower court, that the engine was defective because of the unsafe loca
tion of the drain cock. The court said:

102

DECISIONS OP THE COURTS

W hen, as in this case, the evidence was overwhelming that the drain
cock was located in the o nly place that it could be put and work
properly, and that such location was of necessity uniform ly used on
liftin g injectors by railroads in the territory where the plaintiff was
hurt, it was error to permit the jury to call into play its own ideas
as to a safe and proper location, and allow it to find the engine de
fective because the drain cock was not placed, perhaps, where the jury
thought it should have been put.

The Circuit Court of Appeals also rul'ed that the lower court should
have complied with the request to charge the jury that, if the engine
was not otherwise defective, Fredericks assumed the risk of the loca
tion of the drain cock and also the risk of injury due to the ice on the
running board.
The judgment of the lower court was therefore reversed.

E mployers ’ L iab ility — F ederal R ailroad S t a t u t e — S a f e P l a c e
t o W ork— A ssu m p tio n o f R isk — Shortioay v.

Erie R. Co., Supreme
Court of New Jersey ( December 30, 1929),
Atlantic Reporter,
page 172.— Abram Shortway was a trainman employed by the Erie

14-8

Railroad Co. in its passenger service in interstate commerce.

November 11, 1927, about 3.30 o’clock, he was riding on the rear o f
the train when they were about a half mile from the Jersey City
station. H e noticed the train passed an unlighted signal and he
stopped the train and signaled the engineer to pull in the opposite
direction so as to clear the signal. It was dark and the signal was
unlighted and not visible from the point where Shortway stood.
H e left the train and started to walk in the direction o f the signal
along some planking between the rails, using his lantern as best
he could to light his way. The planking was on a trestle crossing
Jersey Avenue in Jersey City. It extended over the trestle but
when Shortway came to the end of the trestle he fell into a large
excavation about 6 feet deep and suffered injuries.

This excavation

was on the railroad right of way and at the end o f the planking.

Shortway filed suit against the railroad company under the Fed
eral employers’ liability act (45 U. S. C. A ., secs. 5 1 -5 9 ) and the
circuit court of Passaic County rendered a verdict in favor of Short
way in the sum of $ 6,000. The employer appealed the case to the
New Jersey Supreme Court, contending that negligence on the part
of the railroad was not proved and if it were, the risk was assumed
by Shortway. The case of D., L. & W . R . Co. v. Koske (279 U. S.
7, 49 Sup. Ct. 202) was cited to sustain this contention. The court
said the Koske case and the case at bar differed in that—
In the Koske case, the plaintiff stepped into an open drain or
ditch in the railroad yard. There is no evidence that this drain was

EMPLOYERS* LIABILITY

103

not suitable and appropriate for the purposes for which it was in
tended, and obviously no court can dictate to railroads the way in
which they shall meet their yard engineering problems. On the
other hand, in the present case there is nothing to suggest that the
excavation 6 feet deep at the end of the plank walk in a railroad
^ard has any suitable or appropriate purpose, or that any engineer
ing problem is involved in leaving such an excavation at the end
of a plank walk designed for trainmen.
Continuing the court said:
The proofs in this case show that the employee did not know of
this particular risk. He had not been in the yard since the excava
tion was made, or the tracks were elevated, and there was nothing
to warn him of the excavation at the end of his j)ath. It can hardly
be contended that such an excavation is one of the ordinary risks
of railroading.
Certainly a pit at the end of a path designed for workmen to
walk upon is a danger to employees not familiar with the locality
towards dusk or after dark. It would seem absurd to say that such
a pit made the pathway reasonably safe.

E mployers’ L ia b ility — F ellow S ervant — A ssumption of R isk —
C ontributory N egligence— TVagner v. St. Louis-Sam, Francisco R.

Co., Springfield Court of Appeals, Missouri (July 1%, 1929), 19
Southwestern Reporter (2d), page 518.— Taylor W agn er was em
ployed by the St. Louis-San Francisco Railway Co. as a bridge
carpenter. On A p ril 22, 1926, while working on a railroad bridge
under his employer’s direction, engaged in boring holes, he was
warned o f the approach of a push car by H arry Smith, a fellow
employee. A fte r some difficulty he pulled his auger out o f the hole
he was boring and stepped to the side on the guard rail to let the
car go by. Smith, in walking along on the outside o f the push car,
bumped against W agner and knocked him off the bridge. Smith
also fell and struck W agner, inflicting severe and permanent injuries
upon him.

Wagner sued the railroad company, alleging negligence and carelessness on the part of its agent, servant, and employee in handling
the push car. Among the defenses pleaded in the answer were as
sumption of risk by Wagner and contributory negligence on his part.
Wagner received a judgment in the circuit court, Christian County,
Mo., and the company appealed to the Springfield, Mo., court of
appeals.
Judge Bailey, in upholding the defense made by the railway, said
in the course of his opinion in part as follows:
As we view this evidence, plaintiff had timely warning of the
approach of the car. It seems his auger stuck in the hole he was
boring and he spent a few moments in pulling it out. He certainly

104

DECISIONS Off TH E COURTS

was not required to stay with that auger in order to extricate it, if
by so doing he placed himself in danger of being run down. To do
so was negligent. As the car approached, he could do one of three
things; i. e., ( 1) walk ahead to the end of the bridge, ( 2 ) step off
onto a cap, or (3) stand on the guard rail. The first two alternative'
were safe. The last alternative was not safe, but required tht>
exercise of great care in order to avoid being struck because of the
short space between the guard rail and the track. Plaintiff adopted
the unsafe course. He stepped on the guard rail of the bridge with
his back toward the crab car. He apparently made no attempt to
see the car or observe any projections tnat might be extending there
from. For that reason ne failed to see Smith walking back of the
“ bull wheel ” on the side of the car. That plaintiff was guilty of
contributory negligence is beyond dispute.
However, the court said:
The Federal rule as to contributory negligence seems to exonerate
the master only when the servant’s act is the sole cause of the injury
and the act of the master or its servants is no part of the causation.
In deciding whether Wagner’s negligence was the sole cause of the
injury the court considered the alleged negligence of the railway
employee, Smith, whose collision with Wagner caused them both to
fall. Regarding this the court said:
The employee Smith was at a place where in the proper operation
of the “ bull wheel ” he might be expected to be. * * * It seems
unreasonable to say that Smith was under a greater duty to watch
out for plaintiff’s safety than plaintiff was himself. This slowly
moving car was not particularly dangerous if workmen took proper
precaution to step out of the way on its approach and into a place
of safety. Smith no doubt heard the cry of warning the same as
plaintiff testified he himself did. He had a right to assume that such
warning would be heeded. * * ♦ The very fact that Smith also
fell gives rise to an inference that he failed to see plaintiff standing
on the guard rail. There is no evidence as to what Smith actually
did. In so far as this record shows, he may have stumbled, slippea,
or fallen against plaintiff. We are, therefore, of the opinion there
was an entire failure of proof of actionable negligence.
The court also held that under such circumstances the dangers
were obvious and should have been fully appreciated by Wagner
when he assumed this dangerous position on the rail; the conclusion
therefore was that he assumed this risk when he stood on the guard
rail.
The judgment of the lower court was therefore reversed.

E mployers ’ L ia b il ity — F ellow S ervant — G oing to an d prom
W ork— E m plo ym en t S tatus — Tlamilton Bros. Co. v. Weeks, Su

preme Court of Mississippi (December 9, 1929) , 12\ Southern Re
porter, page 798.— Hamilton Bros. Co. was engaged in the roofing

EMPLOYEES9 LIABILITY

105

and plumbing business, with its office and warehouse located in
Gulfport, Miss. On out-of-town contracts it furnished free trans
portation to its employees, carrying them to their jobs in the morning
and bringing them back after the day’s work was completed. While
being so carried the employees received no compensation from the
company, nor were they under any duty to serve the company in any
manner whatever.
J. H . Weeks was an employee of the company and was working
on a job in Gulf Hills. The company’s truck, driven by Walter
Wood, picked up the employees in Gulf Hills and proceeded to Bi
loxi, picking up others until there were 16 on the truck. A t a point
between Biloxi and Gulfport the truck skidded and turned over,
crushing Weeks’s leg, resulting in a serious and permanent injury.
The evidence tended to show that the injury was the result of the
negligence of the driver, Wood. Weeks filed suit against his em
ployer, and the circuit court, Harrison County, Miss., rendered a
judgment in his favor. Hamilton Bros. Co. appealed to the Mis
sissippi Supreme Court, contending—
( 1)
That the evidence showed without conflict, at the time appellee
[Weeks] was injured, the relation of master and servant existed
between him ana appellant, and therefore appellant was not liable
for the negligence of appellant’s fellow servant, Walter Wood, which
negligence brought about the injury; and (2) that the evidence
showed without conflict that appellant was guilty of no negligence
in selecting its truck driver, Walter Wood.
The Mississippi Supreme Court held that the relation of masterservant did not exist at the time of the accident as there was no
contract to transport employees to and from its out-of-town jobs
on which they were engaged. In the course of the opinion the court
said in part as follows:
The appellant’s servants, on out-of-town jobs, could use the for
mer’s trucks in going and returning, if they chose to do so; for the
evidence tended to show that appellant assumed no obligation what
ever in that respect. As stated, appellee and various other employees
of appellant went to, and returned from, out-of-town jobs in their
own cars. Appellant’s trucks were not maintained for the sole pur
pose of transporting its employees to and from out-of-town jobs;
they were used for transporting materials to such jobs. The trucks
were available to appellant’s employees, but it was distinctly under
stood that they were under no obligation to accept that means of
transportation; they were free to use their own cars, or any other
means, instead. They were drawing no wages from appellant while
going to or returning from their work, whether they were carried
on appellant’s trucks or went in their own cars. I'he trips were
made before and after work hours. Appellant’s control over their
services began only when they entered upon their work, and ceased
when that work was over. Therefore the time spent by appellant’s
servants in going to and from their work, whether they were carried

106

DECISIONS OF TH E COTJBTS

on appellant’s trucks or in their own conveyances, was their time,

and not the time of appellant. Appellant had no control whatever
over them during such transportation. Under such circumstances
the servant was enjoying a mere permissive privilege unconnected
with his employment.
In such a case we are of opinion that the better view is that the
relation of master and servant did not exist during the transportation.
[Cases cited.]
The court also held that the lower court did not err in submitting
to the jury the issue as to the competency of Walter Wood, the driver
of the truck at the time of the accident. The court said:
The retention of an incompetent servant after the master has had
reasonable notice, either direct or constructive, of such incompetence,
constitutes negligence on the part of the master; the master is charge
able with knowledge of the incompetency of the servant if by the
exercise of due care he could have ascertained such incompetence.
A master is liable for an injury received by an employee on the
ground of negligence in employing or retaining an incompetent
servant, if such incompetency was the proximate cause of the injury.
The decision of the lower court in favor of Weeks was therefore
affirmed.
Where the employer agreed in an employment contract merely to permit
employee to use employer’s automobile in going between employee’s home and
place of work, and sometimes called on him to use the car in employer’s business
at night, while it was at employee’s home, the Supreme Court of Wisconsin held
that an injury to a third person while the employee was driving the car from
his home to place of work did not render the employer liable. The court ruled
that the car was used to facilitate the employee’s work and not in carrying
out the business of the employer. (Geldnich v. Burg (1930), 231 N. W . 624.)

E m ployers’ L ia b ility — Independent C o n tra cto r— E m p loym en t
S ta tu s — 'Williams v. Central of Georgia R. C oS u p rem e Court of
Alabama ( October 17, 1929), 124 Southern Reporter, page 878.— The
Central o f Georgia Railway Co. let a contract to one Kreis to build
a roadbed in Shelby County, A la .

W illiam s was an employee o f

Kreis while performing this work.

Under the contract Kreis was

to furnish his own locomotive and his own crew to operate it.

the progress o f the work it was necessary for the work train to go
out on the main line. The trainmen o f the Central o f Georgia
belonged to a union, and under their agreement they said that only
union men should be permitted to operate trains.

Thereupon it was

agreed that the trainmen of the Central of Georgia should operate
the contractor’s trains.

T his was done, the contractor paying the

trainmen and the Central o f Georgia paying the excess o f the union
wage over and above the nonunion wage.

W h ile the trains were

e m p lo y e r s ' lia b i lit y

107

being operated in this manner a collision occurred, resulting in a
serious injury to Williams.
He filed suit against the Central of Georgia Railway Co., and the
case was allowed to turn on the question: Whose employee was the
engineer at the time of the collision? The circuit court, Shelby
County, Ala., answered the question in favor of the Central of
Georgia Railway Co., and Williams appealed to the Alabama
Supreme Court. This court affirmed the decision of the lower court,
holding that the engineer was an employee of Kreis at the time of
the accident. The court quoted from the opinion of Chief Justice
Cockburn in Ronoke v. Colliery Co. (2 C. P. Div. 205), as follows:
When one person lends his servant to another for a particular
employment, the servant, for anything done in that employment, must
be dealt with as the servant of the man to whom he is lent, although
he remains the general servant of the person who lent him.
In concluding the opinion the court said:
The ruling of the Supreme Court of the United States in Linstead
v. Chesapeake & Ohio R. Co.. 276 U. S. 28, 48 Sup. Ct. 241, will be
sufficiently shown by the following from the headnote: “ Though
the men were paid by the Big Four (Railroad) and subject to dis
charge or suspension only by it, the traffic was C. & O. (Chesapeake
& Ohio) traffic, * * * and the work was done under the rules
of that railroad and under the immediate supervision of its train
master.” In that case the court quoted Standard Oil v. Anderson,
212 U. S. 215, 29 Sup. Ct. 252, 254, as follows: “ The master’s re
sponsibility can not be extended beyond the limits of the master’s
work. I f the servant is doing his own work or that of some other,
the master is not answerable for his negligence in the performance
of it.”
Applying the principle of the cases to which we have referred it
becomes necessary to hold that the engineer operating the contrac
tor’s engine at the time of plaintiff’s hurt, and of whose negligence
in that operation plaintiff in this cause complains, was not the serv
ant or employee of defendant, but of the contractor, and that the
general charge was properly given on defendant’s request.

E m plo yer s ’ L ia b il it y — I n d e p e n d e n t C ontractor — T

h ir d -P a r t y

Baker v. Scott Comity Milling
Co., Supreme Court of Missouri (June 4 ,19*29), 20 Southwestern Re
porter (2d), page 49£.— The Scott County Milling Co. of St. Louis
had on its premises two steel elevators or grain tanks, which it de
sired to have taken down. Otis Bryant was engaged to perform this
task and he employed Henry Baker and two other laborers to assist
him. While the work was in progress, Baker was severely injured
by the sudden falling of dirt and concrete used in the partitions,
due to the defective wall and the method used in tearing down the
elevator.
L ia b il it y — S af e P lace

ork —

108

DECISIONS OF THE COURTS

Baker filed suit in the St. Louis circuit court against the Scott
County Milling Co. and the court rendered a verdict favoring the
company, upholding their contention that Bryant was an independent
contractor, as he employed the laborers and paid them himself each
week. Baker thereupon appealed the case to the Supreme Court of
Missouri.
The questions involved in the appeal were: (1) Whether the case
should have been submitted to the jury; (2 ) whether Baker was an
agent or independent contractor; (3) whether the Scott County
Milling Co. would be liable for damages resulting from the neg
ligence or wrongful acts of an independent contractor, where the com
pany was negligent in failing to exercise reasonable care in the selec
tion of a competent contractor.
In discussing the first question, the court said the circuit court did
not err in submitting the case to the jury, as the employer was re
quired to exercise ordinary care to furnish to his employee a reason
ably safe place to work and should take such precautions for the
safety of his employees as ordinarily prudent men would take in like
circumstances. The duty was a continuing one, and it was a question
for the jury whether or not the duty was discharged in this case. In
regard to the relation of Bryant and the milling company the court
quoted Judge Thompson on negligence (vol. 2, p. 899), which was
approved by the Supreme Court of Missouri in the case of Gayle v.
Foundry Co. (177 Mo. 427, 446, 76 S. W . 987, 992) :
The general rule is that one who has contracted with a competent
and fit person, exercising an independent employment, to do a piece
of work, not in itself unlawful or attended with danger to others,
according to the contractor’s own methods, and without his being
subject to control, except as to the results of his work, will not be
answerable for the wrongs of such contractor, his subcontractor, or
his servants committed in the prosecution of such work. An inde
pendent contractor is one who renders service in the course of an
occupation, representing the will of his employer only as to the result
of his work and not as to the means by which it is accomplished.
The court in the instant case added that—
Taking into consideration all the facts and circumstances revealed
by the evidence, together with the testimony of plaintiff and his wit
ness as to the directions given and apparent control exercised by
defendant’s president and superintendent, we think it was a question
for the jury whether the actual relationship existing between defend
ant and Bryant was that of owner and independent contractor or
that of master and servant.
In regard to the third issue the court, basing its opinion on the
case of Mallory v. Louisiana Pure Ice & Supply Co. (6 S. W . ( 2d)
617, 626) and section 1531, page 1327, of Corpus Juris, held that an
employee had the same right afforded to third persons injured by
contractors employed in intrinsically dangerous work. It was the

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

109

duty of the employer to use his property so as not to cause injury
to anyone— a duty which he could not delegate to another. In the
instant case the court ruled that Baker had the right to have the issue
submitted to the jury.
The judgment of the lower court was therefore reversed.

E m p lo y e r s’

L ia b ility — I n te r s ta te

Com m erce— A ssu m p tio n

v. Longview, Portland <&North
ern R. Co., Supreme Court of Washington {August 8, 1929),
279 Pacific Reporter, page 1115.— W . H. Prink was employed by the
Longview, Portland & Northern Railway Co. to haul oil to a steam
shovel, which was engaged in changing the main channel of a river
for the protection of the main-line track of the railroad. The Long
view, Portland & Northern Railway Co. had used the track for three
years in carrying on interstate commerce. Prink was required to
build his own road in reaching the steam shovel, wherever it might
be at work along the dike. A switch track was constructed during
the course of the work, and the road Prink built from the tank to
the shovel ran very close to this switch. The foreman gave Prink to
understand he would have the right of way over work trains coming
onto the switch.
On the day of the accident Prink had filled his wagon tank from
the oil-tank car and delivered his load to the steam shovel. While
there a work train backed in upon the switch so that it was not
possible for him to drive out along his prepared road. The Surface
immediately outside his road opposite the train was very rough and
hazardous, though apparently not impossible to drive over. Prink
asked the trainmen to move the train, but they refused and he was
ordered by his foreman to “ go on ” along the side of the road. In
doing so, he drove partially off the road and the wagon tipped over.
Prink was thrown from his seat and received injuries. He brought
action against the company in the superior court, Cowlitz County,
Wash., and was awarded a judgment. The railroad company car
ried the case to the Supreme Court of Washington contending that
Prink assumed the risk, and that he should have been required by
the lower court to elect whether he would seek recovery under the
Federal statute or at common law.
The supreme court affirmed the decision of the trial court and
held that the work was so closely connected with interstate commerce
as to be a part thereof. Regarding the contentions made by the
railway the court said:
R is k — E l e c t i o n o f R em edy —Prink

It is contended that Prink assumed the risk of driving alongside
the work train, partially off his road, in view of his knowledge of

110

DECISIONS OF THE COURTS

conditions there existing. W e think it can not be so decided as a
matter of law. W e have noticed that, while Prink was well informed
as to those conditions, the foreman in direct charge of the work was
equally well informed as to those conditions. Prink drove alongside
the train in compliance with the foreman’s express direction of a
peremptory nature. W e think the danger was not so apparent that
it can be decided as a matter of law that Prink assumed the risk in
proceeding in obedience to the command of the foreman.
Contention is made in behalf of the company that the trial court
erred to its prejudice by refusing at the beginning of the trial to
require counsel for Prink to elect as to whether they would proceed
seeking recovery “under the Federal liability statute (45 U . S. C. A .,
secs. 51-59) or under the common law.” We think our decision in
Archibald v. Northern Pac. R. Co., 108 Wash. 97, 183 Pac. 95, is
decisive against this contention. It is conceded that the pleadings
and the court’s instructions to the jury were correct and applicable,
in the alternative, to both of these theories of recovery, if it be held
that counsel for Prink had the right to have the case so proceed. W e
conclude that he was not required to elect as between these theories
of claimed recovery.
E m plo yer s ’

L ia b il it y — I n ter state

C o m m er c e — A

s su m p t io n

R isk — N eglig ence —Baird v. Fort Dodge, D. M . & S . R. Go., Supreme

Court of Iowa (March 11, 1980), 229 Northwestern Reporter, page
759.— On December 12,1926, the Fort Dodge, Des Moines & Southern
Railroad Co. transported a car of coal from Boone, Iowa, to the
farmers’ elevator at Rockwell City. This was an interstate ship
ment and the crew consisted of four employees, including one Baird,
a brakeman. The car was duly spotted at Rockwell City on the
“ team track ” so that teams and trucks could unload the car. Sev
eral days later it became necessary to move the coal car and it was
necessary to move several empty cars in order to gain access to the
coal car. In the course of this process the trolley left the trolley
wire and before the train could be stopped the trolley pole had come
in contact with two mast arms and broken them. While attempting
to release the trolley wire Baird was thrown from the top of the
car and as a result suffered a severe injury to his knee, causing him
serious disability.
He filed suit against the railroad under the Federal employers’
liability act and the district court, Polk County, Iowa, rendered a
verdict in favor of the railroad on the grounds ( 1) that Baird
failed to prove the railroad was negligent and ( 2) that he failed to
prove that he was engaged in interstate commerce at the time of the
injury. He thereupon appealed to the Iowa Supreme Court.
This court reviewed the testimony of the members of the train crew,
and concluded the opinion by saying:
There was no material conflict in the testimony. It will be ob
served from the foregoing that none of the witnesses knew definitely

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

111

just how or why the accident to plaintiff happened. There is noth
ing in the evidence which would relate the accident to the act of one
member of the party more than to that of another. I f we were to
say that the evidence was such as to suggest negligence on the part
of somebody, yet such negligence would be as attributable to one as
to any or all, and ais attributable to the plaintiff himself as to his
fellow servants. I f it could be said, therefore, that the plaintiff
had shown sufficient circumstances to warrant the finding of neg
ligence on the part of somebody, he has, nevertheless, by such evi
dence connected himself with the negligence as completely as he has
connected his fellow servants therewith. W e think, however, that
a fair analysis of the record sustains the holding of the district court
that the plaintiff failed to prove negligence of his fellow servants.
W e need go no further, therefore, in the consideration of the case.
The judgment of the district court was, therefore, affirmed.

E m plo y er s ’

L ia b il it y — I nterstate

C o m m er ce — C o n tribu to ry

N egligence — E vid en c e — Louisville

& Nashville R. Co. v. Jolhfs
Admx., Court of Appeals of Kentucky (January 11^ 1980),
23 Southwestern Reporter (2d), page 564-— H e n r y C . J o lly was an
engine hostler em ployed b y the L o u isv ille & N ash ville R a ilro ad C o.,

Ky. He was scalded to death b y escaping steam as
of a collision between tw o locom otives.
Jolly was ordered to prepare engine No. 923 for an “ extra job.”
Thereupon he proceeded, without his helper, to move the engine
from the water tank to the coal bins for the purpose of coaling it,
after which he was to place the engine on the ready track for the
train crew to take charge of it for pulling the extra cut of cars.
Before reaching the bins an accident occurred in which the engine
was disabled and Jolly injured.
Suit was filed against the railroad under the Federal employers’
liability act of April 22, 1908 (45 U. S. C. A ., secs. 51-59), as
amended April 5,1910 (45 U. S. C. A ., sec. 59). Two grounds of ac
tion were asserted, one for the death and the other for the conscious
suffering of the injured man. The administratrix recovered a ver
dict on each cause of action and the Kenton County circuit court re
fused a request of the railroad company for a new trial. The dam
ages assessed were “ for conscious pain and suffering at $5,000 and for
the death of Jolly at $28,000, apportioned as follows: To the widow
$10,000, to the oldest child $4,000, to the second child $6,000, and to
the youngest child $8,000.” Thereupon the case was appealed to the
Court of Appeals of Kentucky.
The first question raised on appeal was whether the case came
under the Federal employers’ liability act; that is, whether Jolly
was engaged in interstate or intrastate commerce. In answering this
the court cited a number of cases and held that each case must be
in C ov in g ton ,

the result

112

DECISIONS OF THE COURTS

determined on its own peculiar facts. The court held that in this
case Jolly was engaged in interstate commerce as—
There was evidence also tending to show that only interstate trans
fer cars were handled in this yard between the hours of 12 a. m. and
6 a. m., and that train crews were not called during that period for
local work but only for interstate work; that the “ 1.45 extra job ”
to which engine No. 923 had been assigned was a string of cars to be
delivered in Cincinnati, Ohio, to connecting carriers and was so
delivered shortly after the accident.
I f the employee is hurt in the course of his employment while
going to a car to perform an interstate duty, or if he is injured while
preparing an engine for an interstate trip, he is entitled to the
benefits of the Federal act, although the accident occurred prior to
the actual coupling of the engine to the interstate cars.
It was next urged that Jolly was guilty of contributory negligence.
There was some evidence that Jolly had stopped the engine upon a
crossover track and that he was moving the train without a head
light. However, there was considerable evidence to the contrary.
The court said :
The most that could be said from the evidence was that it afforded
room for opposite deductions, and it was within the province of the
jury to determine the correct conclusion to be drawn. Cf. Union
Pac. R. Co. v. Hadley, 246 U. S. 330, 38 Sup. Ct. 318. The
act of Congress provides (45 U. S. C. A ., sec. 53), that “ con
tributory negligence ” of the injured party “ shall not bar a recovery,
but the damages shall be diminished by the jury in proportion to
the amount of negligence attributable ” to him, with a proviso not
now pertinent. It may be stated generally that under this section
the contributory negligence of an employee is not a bar to an action
for an injury received by him, but operates only to diminish the
damages recoverable for the injury. [Cases cited, j It is only when
the negligence of the injured servant is the sole cause of his injury
that a recovery is denied him. [Cases cited.]
It was also insisted that excessive damages were allowed by the
jury. The court, after considering the fact that Jolly had a wife
and three minor children, that he was only 31 years old and in good
health, and that he had earned during the year 1927 the sum of
$2,518.27, held that the damages were not excessive, saying:
There is no mathematical rule for the measurement of damages,
but the matter must be left to the jury to fix the amounts authorized
by the evidence in the light of the decisions of the Supreme Court
delimiting and defining the elements that may enter into it. And
under the inflexible rule adopted and applied by this court the ver
dict of a properly instructed jury will not be interfered with unless
it strikes the judicial mind at first blush as being so grossly excessive
as to manifest passion and prejudice on the part of the jury where
only deliberation and judgment should prevail.
The court also held that the instruction to the jury complained of
was not erroneous, as it conformed exactly to the decisions of the

EMPLOYERS* LIABILITY

113

Supreme Court in cases arising under the act by which the trial
court and appeals court were bound. The judgment was therefore
affirmed.
E mployers’ L iab ility — I nterstate C ommerce — N egligence— A s
R is k — Emch v. Pennsylvania R. Go., Circuit Court of

sum ption of

Appeals, Sixth Circuit (February 5, 1930), 37 Federal Reporter
(£d), page 828.— Shelby H . Emch was employed by the Pennsylvania
Railroad Co. as brakeman. W h ile stooping over to throw a switch,
in the course o f his employment, he was struck by a passing engine
and severely injured.

He filed suit against the Pennsylvania R ail

road Co., under the Federal employers’ liability act (45 U . S. C. A .,
secs. 51-59). The United States District Court for the Northern
District o f Ohio rendered a verdict in favor of the railroad on the
ground that Em ch had assumed the risk. The case was thereupon
appealed to the Circuit Court o f Appeals, Sixth Circuit.

The appeals court found room to infer negligence by the rail
road, as—
Plaintiff had worked upon this line for some time; then had been
in other employment, and had just returned to his old work. In
these yards where the accident occurred and along the line of the
railroad, to the familiar knowledge of plaintiff during his former
employment, the switch stand levers were placed at about 55 inches
away from the nearest rail. Allowing 22 inches (said in argument
to be the right amount) for the overhang of the cylinder head, this
would give a clearance of 38 inches, which made it reasonably safe
for a man to be operating the switch stand while a train was passing.
This particular switch had been installed to be operated from a
tower, but that method had been abandoned and the usual manual
operating lever had been supplied, spaced 35 inches from the rail,
thus allowing only 13 inches clearance. It had been installed since
plaintiff’s former employment, and this was his first occasion to use
it. No reason appears why it was necessary in this instance to
depart from the usual spacing.
The appeals court also held that Emch did not assume the risk, if
the risk of injury was created by this negligent location, unless he
knew and appreciated the danger or unless it was so obvious that
the law will charge him with such knowledge. The court said:
Emch’s instruction required him to set the distant crossover trans
fer switch, then hasten back to this one, and be prepared to throw
it after the engine and three cars had passed him on the main track
and before the arrival of the last car, which by that time would be
cut off and following at a short distance. A ll this required quick
work on his part. He had never handled this particular switch nor
seen it before. He did not know that it was different from the
standard switches. In some haste he reached it and stooped down to
be ready to lift the lever at the right instant. The difference between

114

DECISIONS OE THE COURTS

55 and 35 inches would be obvious to one who looked at it with care;
not necessarily so, we think, to one who was in haste and familiar
with the standard setting. As he stooped oyer, he faced the track.
The engine was approaching from his left, and he would naturally
assume that the switch stand would not be so placed that it would
be unsafe for him to operate it in the usual manner. * * * Even
though he may have been careless in getting into the danger zone
when he might have kept outside of it, a point which we do not
consider, it can not be said as a matter of law that he assumed the
risk.
The decision of the district court was therefore reversed.

E m ployer s ’ L ia b il it y — I n terstate C o m m er ce — N eg ligence — L a st
C lear C h a n c e — Chiccogo,

Milwaukee, St. Paul <& Pacific R. Go. v.
Kane, Circuit Cowrt of Appeals, Ninth Circuit {July 15, 1929), 33
Federal Reporter (2d), page 866.— The Chicago, Milwaukee, St.
Paul & Pacific Railroad Co. was surfacing and dressing its roadbed
and for this purpose established a gang of men at Alcazar, Mont.
There being no local facilities for boarding and housing the men,
provision was made for them in movable dining and bunk cars. The
bunk cars were oh one side of the tracks and the water supply and
toilet facilities on the other, making it necessary for the men to
cross three tracks.
The men working in this gang were employed by the employment
agencies of the railroad. Kane and five or six others were employed
by the agency in Butte and sent to Alcazar, arriving there some time
in the evening of September 14. The foreman met the men at the
station, where they assisted in unloading some supplies which arrived
on the same train. The men were issued blankets and assigned bunks.
Just before breakfast the next morning Kane was struck and
killed by a passing train while he was walking across the tracks.
Alma Kane, as administratrix, filed suit against the railroad com
pany and received a favorable judgment in the United States District
Court, Montana District. The case was appealed to the Circuit
Court of Appeals. The questions submitted on appeal were:
( 1)
Were Kane’s relations to appellant and the conditions at the
time of the accident such as to bring the case within the range of
the Federal employers’ liability act? (45 U. S. C. A ., sec. 51 et seq.)
(2 ) Was the evidence sufficient to send to the jury the issue of de
fendant’s primary negligence? (3) Did the evidence warrant sub
mitting to the jury the issue of negligence under the doctrine of the
last clear chance?
In answering the first question the court said:
Undoubtedly he was in appellant’s employ, and his service was
interstate. By the conditions of his employment, he was necessarily

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

115

on appellant’s premises, and was making necessary preparations for
the work in which he was to engage an hour and a half later, in a
reasonable manner and within a reasonable time. Appellant’s con
tentions seem to be predicated solely upon the consideration that he
had not yet lifted a pick or stuck a shovel into the ground. But his
employment was definite, and the nature and place of his service for
the day were clearly understood.
The court cited numerous cases upholding its view that deceased
was employed in interstate commerce at the time of the accident,
and in regard to the alleged negligence, the court said in part as
follows:
In short, there was evidence to warrant the jury in finding that
appellant had in camp at that station 120 men under conditions
where it was necessary for them to cross its tracks in going from
the place where they slept and ate, for water and for toilet facili
ties, and returning. A t the hour in the morning when the accident
occurred, in getting ready for the day’s work, they would naturally
be passing back and forth. These conditions were known to the
engineman; the train approached the station at a speed of at least
35 miles an hour; though he observed 25 or 30 men milling around
near and on the tracks when he was a quarter of a mile away, he
did not slacken his speed or give warning by bell or whistle; he
saw Kane when he was nearly that far off, and observed that he
was crossing the tracks with his back toward the train, that he
was walking with his head down, and was apparently unconscious
of the approach of the train.
The court concluded that the facts were sufficient to take to the
jury the question of the trainmen’s negligence under the doctrine
of the last clear chance and in affirming the opinion of the lower
court, said:
If, under the circumstances, the speed of the train and the failure
to give any warning signals, in combination, constituted negligence,
the jury was warranted in finding it to have been the proximate
cause of the accident. To the two blasts of the whistle sounded
when the engine was but a few feet away from him decedent
instantly responded, but it was then too late. Had they been
sounded 200, or even 100 feet farther away, it is reasonable to
assume he would have responded in like manner, and could thus
have escaped injury.
E m plo yer s ’ L ia b il it y — I n v it e e — N egligence — V o l u n tee r — Lucas
v. Kelley , Supreme Court of Vermont (October 1, 1929), llfl Atlantic
Reporter, page 281.— Kelley owned and operated a sawmill in the
town of Derby, Vt. Lucas, an employee of one Ansboro, went to this
mill to get some lumber for Ansboro. He entered the mill and found
Kelley and his son pulling out a stick of timber which they had just
“ sized ” on the board saw which was to be used in repairs on the mill.
Seeing that they were having some difficulty in handling this timber,

116

DECISIONS

THE COURTS

Lucas went to their assistance. When he thought the timber had
moved so far that Kelley could handle it he stepped back, and in
some way his left foot went under the slab saw bench far enough to
be caught by the saw, which was then running. His foot was seri
ously cut and mangled. An action for damages followed.
The Orleans County court rendered a verdict for Kelley, and Lucas
carried the case to the Supreme Court of Vermont.
This court affirmed the decision of the lower court and said in
part:
There was no emergency calling for his aid, and nothing in the
record indicates that the accomplishment of his object in entering the
mill depended in any way upon the movement of the timber on which
the defendant was working. His going to the assistance of the Kel
leys was a departure from the purpose of his entry, and took him to
a place where his business did not require him to go. I f the plaintiff
stands as a mere volunteer he has no right of action here, for the
defendant would not owe him the duty of protection from the mis
fortune that befell him. One owes no duty, except to prevent wanton
or willful injury, to one who merely volunteers to assist in his serv
ice. This is a firmly established doctrine in the law of negligence.
This rule? however, is subject to this important qualification: I f the
party acting has an interest in the work going'on, and for his own
advantage or that of his employer undertakes to assist another or his
servants, at their request or with their consent, he is not a mere vol
unteer but one with an interest, and he is not subject to the disabili
ties of a volunteer but is entitled to such protection as proportionate
care would afford him. (4 Labatt, sec. 1564.)
The only evidence in the record before us that can be taken to indi
cate that the plaintiff was acting in behalf and in the interest of
Ansboro is his statement that he did what he did with the timber the
quicker to secure his boards.
The plaintiff here had (at best) only an incidental interest in the
removal of the timber being handled. Its prompt disposition might
have had a slight effect upon the time when he could secure the
boards he came for. * * * But he had no such interest in the
work he volunteered to assist in as brought him under the protection
of the doctrine he invokes. But it is urged that the defendant knew
he was there near the saw bench pushing on the timber, and that
thereupon it became the defendant’s duty to give him warning of the
dangerous conditions referred to. It may be taken from the record
that the defendant knowingly accepted the plaintiff’s assistance, but
he did no more. But neither knowledge, silence^ acquiescence, nor
permission, standing alone, amounts to an invitation. * * * The
defendant owed him the duty of active care to protect him from in
juries resulting from force negligently brought to bear upon him,
but was not bound to keep the premises safe for him or to warn him
of their dangerous condition.
As the evidence disclosed no duty owed this plaintiff by the de
fendant, the nonperformance of which resulted in the injuries suffered
by the former, the verdict was properly ordered.

117

DECISIONS OF THE COURTS
E

m ployers’

ia b il it y —

L i m i t a t i o n — N e g l ig e n c e — S t r e e t

a il

w a y —Mangum

v. Capital Traction Co., Court of Appeals of District
of Columbia (March 3, 1930), 39 Federal Reporter (2d), page
286.— John William Mangum was employed as a motorman by the
Capital Traction Co., of the District of Columbia, and while operat
ing a street car on March 25,1924, sustained personal injury. While
Mangum’s car was at a standstill for the purpose of discharging
passengers, another car of the traction company coming from the
rear collided with it. The force of the collision threw Mangum
backward, causing him to strike his head against the car, inflicting
severe injuries.
On March 23, 1926, Mangum commenced an action against the
Capital Traction Co., charging that the accident was due to the
negligence of the company and its employees. The Supreme Court
of the District of Columbia rendered judgment in favor of the com
pany on the sole ground that Mangum’s action was barred because
it was not brought within one year from the time when the cause
of the action accrued.
Mangum appealed to the Court of Appeals of the District of
Columbia, contending that the street railway was a “ common car
rier ” and, under the Federal employers’ liability act of April 22,
1908 (45 U. S. C. A ., secs. 51-59), action could be brought within two
years after the cause of action accrued. The traction company con
tended that the street railway was and always had been a street
railway and has never been a railroad in the sense of the employers’
liability acts, and that the limitation of the act of 1906 (34 Stat. 232),
limiting the time within which an action may be brought to one year
after the cause of action accrued, applied in this case.
The court of appeals affirmed the judgment of the lower court and
held the Capital Traction Co. to be a “ street railway ” rather than a
“ common carrier.” The court, speaking through Mr. Chief Justice
Martin, said in part:

The distinction between street railways and commercial railroads
is thus stated in 25 R. C. L ., p. 1115: “ * * * Speaking generally,
then, a street railway is local, derives its business from the streets
along which it is operated, and is in aid of the local travel upon
those streets; while a commercial railway usually derives its business,
either directly or indirectly, through connecting roads, from a large
area of territory, and not from the travel on the streets of those
cities, either terminal or wav stations, along which they happen to
be constructed and operated.”
The record herein discloses that the Capital Traction Co. is the
successor of several earlier companies, none of which ever possessed
the power of eminent domain, nor does the present company have
such power; that the entire trackage of the company in the District
of Columbia is operated for the public convenience as a street railway

118

DECISIONS OF THE COURTS

over the public streets and avenues of the District; that no part of
its line in the District of Columbia is on a private right of way;
and that practically its entire trackage extends through densely
populated sections of the city.

m ployers’

ia b il it y —

in o r

I llegally E

mployed—

efense—

GUI v. Boston Store of Chicago (Inc.), Supreme Court of Illinois
(October 19, 1929) , 168 Northeastern Reporter, page 895.— The Bos
ton Store of Chicago (Inc.) operated a mercantile establishment
engaged in the sale and distribution of merchandise in the city of
Chicago. Thomas Gill, a minor 16 years, of age, was employed by
the Boston Store as a helper on an automobile truck used by them in
the delivery of merchandise. When Gill was employed the store neg
lected to procure any employment certificate as required by section 2
of the Illinois child labor act (Laws of 1921, p. 436). While Gill
was riding on the truck in the performance of his duties he fell off
and the truck ran over him, causing serious injuries. Suit was filed
against the Boston Store, and the superior court of Cook County,
111., rendered a verdict in the sum of $2,000 in favor of Gill. The
Boston Store appealed the case to/the Supreme Court of Illinois on
the ground that by the superior court’s construction of section 2 of
the child labor act of 1921 it was deprived of its property without
due process of law and was deprived of the equal protection of the
law in violation of the constitution of Illinois and the fourteenth
amendment to the Federal Constitution.
The evidence showed that Gill was only 16 years old; however,
when making application for employment he stated he was 19, and
at that time he looked to be 19 years old. The employer contended
that the failure to secure the certificate could not of itself establish
his liability for the personal injuries received by the boy in the course
of his employment. A s to the purpose of the child labor act, the
court said:
The child labor act was passed by the general assembly in the
exercise of its police power, for the protection of children against
the risks of working in certain employments, against whose dangers
they would probably be unable or unlikely to protect themselves by
reason of their immaturity, inexperience, or heedlessness. While the
act does not expressly declare that an employer who violates the act
by employing a minor without complying with its terms shall be
liable tor an action for damages which the minor so employed may
suffer by reason of his employment, nevertheless we have held in
numerous cases that the employer is so liable.
The appellant assumes that the prohibition of the employment of
minors between the ages of 14 and 16 years in, for, or in connection
with, the kinds of business mentioned in section 2, is merely ancillary
to the compulsory attendance features of the school law, and was not

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

119

designed by the legislature to protect such children from any hazards
of employment or as a safeguard of the lives, persons, health, morals,
and the physical, mental, and moral development and welfare of such
children. This assumption can not be sustained. * * * The act
concerns children under 16 years of age, and by section 10 entirely
prohibits their employment in many specifically named occupations
or in any employment which the department of labor finds to be
dangerous to their lives or limbs or where their health may be
injured or their morals depraved.
In continuing the opinion, the court said the violation of the
statute, in employing Gill without the certificate, was the proximate
cause of the injury:
The statute prohibited the plaintiff’s employment without the statu
tory certificate, and created an absolute duty not to employ him,
unless the certificate was secured. Nonperformance of this duty
resulting in injury to another may be pronounced to be negligence as
a matter of law (Terre Haute & Indianapolis Railroad Co. v.
Voelker, 129 111. 540,22 N. E. 20), and we have held in the cases cited
that a liability is created, whether specially so declared or not, for
the violation of this statute. Clearly, the appellee’s unlawful em
ployment was the proximate cause of his injury. It not only occur
red in the course of his employment, but arose out of it. In riding
on the running board, according to the customary method in deliver
ing parcels from the truck, he was jolted off when the truck struck a
depression in the road and received his injury. The injury, having
occurred in the course of the appellee’s service under an unlawful
employment, was enough in itself to show a causal connection, and
the law will refer the injury to the original wrong as its proximate
cause.
The cause of action is for the violation of the statute, and it is not
a defense to show that the child had the physical qualifications to do
the work. The prohibition of employment of all children under 16
years is absolute, in the absence of a certificate of employment, and
all other evidence is immaterial. Compliance with the act is the only
possible justification. * * * This action is for the breach of a
statutory duty, and is not based on negligence, and the rules in regard
to negligence, contributory negligence, negligence of a fellow servant,
and assumed risk do not apply. [Cases cited.]
Regarding the constitutionality of the child labor act the court
said the Boston Store was not deprived of the equal protection of
the laws since liability was enforced against it because of its em
ployment of Gill without procuring the certificate even though
other persons not owning or operating stores or other establish
ments of the kind mentioned in section 2 could employ a boy over
14 and under 16 years to work on delivery trucks without procuring
employment certificates- The court continuing said:
The rule, of course, is recognized that the Legislature may not
arbitrarily select a class of individuals and subject them to peculiar
rules or impose upon them special obligations from which other
persons are exempt. The appellant is only one of numerous classes

DECISIONS OP THE COURTS

120

of employers who are subject to the requirement of procuring a cer
tificate 01 employment if they desire to employ boys under 16 years
of age to work. It is suggested that there may be persons engaged
in business of another kind than those mentioned in section 2 who
may desire to employ children under 16 years of age, and who would
be exempt from the necessity of securing a certificate of employment.
Who these possible employers may be and what the kinds of business
may be in which they are engaged is not stated. It must be borne
in mind that the employment of children of tender years not only
endangers their lives and limbs, but may hinder and dwarf their
rowth and development physically, mentally, and morally. The
tate is vitally interested in the protection of the life, persons,
health, and morals of its future citizens and the length to whicli
it may go in providing measures for the physical, moral, and in
tellectual growth and well being of its helpless and dependent wards
is a question of expediency and propriety which it is the province
of the Legislature to determine.

The court affirmed the judgment of the lower court and concluded
the opinion by saying:
W e hold that the prohibition, contained in section 2, of employ
ment without securing an employment certificate is absolute; that
its purpose is the protection of the lives, persons, health, well being,
and physical and mental development of children under 16 years
of age; that the appellant’s unlawful employment of the appellee
was the proximate cause of the appellee’s injury; that the appellant
was liable to an action upon the statute for the damages suffered
by the appellee; that the appellant’s property has not been taken
without due process of law; and that it has not been deprived of the
equal protection of the law.
E m plo y er s ’

L i a b i l i t y — M in o r

I llegally

S t a te

and

F ederal L a w s — Chesapeake

E m p lo y e d — N eg li

& Ohio R. Co. v.
Stapleton,, Supreme Court of the United States (May 27, 1929), 1ft
Supreme Court Reporter, page 1*1$ .— Tobe Stapleton, age 15, and
his father, Marion Stapleton, were employed by the Chesapeake
& Ohio Railway Co. as section hands and were engaged in main
taining the roadbed and railroad for interstate commerce. Tobe
was directed by his father, the foreman of the gang, to get water for
his companions. In returning with the water he passed between or
under the cars of a train standing on a switch track. The train
moved unexpectedly while he was under the cars and he was run
over and sustained permanent injury.
Suit was brought under the Federal employers’ liability act of
April 22, 1908 (35 Stat. 65.) The case was tried and resulted in
a verdict of $17,500 for Stapleton. The Kentucky Court of A p
peals affirmed the judgment (see B. L. S. Bui. No. 517, p. 85) and
the railway company carried the case to the Supreme Court of the
United States for review. To supply the negligence necessary for
gen ce —

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

121

a recovery under the employers’ liability act it was argued the viola
tion of the Kentucky statute (331a9, Carroll’s Kentucky Stat. 1922)
prohibiting the employment by a common carrier of a worker under
the age of 16 was negligence sufficient to justify recovery.
In considering whether the violation of a statute of a State pro
hibiting the employment of workmen under a certain age and pro
viding for punishment of such employment should be held to be
negligence in a suit brought under the Federal employers’ liability
act, Chief Justice Taft, in delivering the opinion, said:
That the State has power to forbid such employment and to punish
the forbidden employment when occurring in intrastate commerce,
and also has like power in respect of interstate commerce so long as
Congress does not legislate on the subject, goes without saying. But
it is a different question whether such a State act can be made
to bear the construction that a violation of it constitutes negilgence
per se, or negligence at all under the Federal employers’ liability act.
The Kentucky act, as we have set it out above, is a criminal act and
imposes a graduated system of penalties. There is nothing to indi
cate that it was intended to apply to the subject of negligence as
between common carriers and their employees. It is true that in
Kentucky and in a number of other States it is held that a violation
of this or a similar State act is negligence per se, and such a con
struction of the act by a State court is binding and is to be respected
in every case in which the State law is to be enforced. * * * But
when the field of the relations between an interstate carrier and its
interstate employees is the subject of consideration, it becomes a
Federal question and is to be decided exclusively as such.
W e have not found any case in which this question has been pre
sented to the Federal courts, but there are three or four well-reasoned
cases in State courts wherein this exact point is considered and
decided.
After citing several of these cases in which the State courts held
the violation of a statute did not supply the necessary negligence for
action under the employers’ liability act, Chief Justice Taft con
cluded the opinion by saying:
W e think that the statute of Kentucky, limiting the age of em
ployees and punishing its violation, has no bearing on the civil
liability of a railway to its employees injured in interstate commerce,
and that application of it in this case was error.
The decision of the lower court was reversed.

s s u m p t io n or R isk — I n t e r
& Pacific R. Co. v. Aaron, Court of Civil
Appeals of Texas {July 24, 1929), 19 Southwestern Reporter (2d),
page 930.— W . A . Aaron was employed by the Texas & Pacific Rail
way Co. as car inspector in their railway yards at Shreveport, La.
The evidence shows that the yard was divided into three sections,

E m ployers ’ L ia b il it y — N egligence — A

state

C om m er c e — Texas

DECISIONS OF THE COURTS

122

A , B, and C. Each yard contained a number of spur tracks, on which
cars were placed for convenience in making up trains. On the night
of August 24, 1927, freight train No. 53 arrived at Shreveport and
was due to leave some time later for points in the West. It was
necessary to rearrange the cars before the train departed, so the cars
were switched on spur tracks to be arranged in “ station order.” It
was Aaron’s duty to inspect these cars while the switching operations
were going on. While he was making a hose connection between two
of the cars, three other cars were shunted onto the track, striking
the cars Aaron was inspecting. He was knocked some 8 feet and one
of his legs severed.
Aaron filed suit against the railway company alleging negligence
on their part in shunting the cars with such force and violence. The
railway company pleaded assumed risk and contributory negligence.
The district court, Marion County, Tex., rendered a verdict in favor
of Aaron for the sum of $20,000.
The case was carried to the Texas Court of Civil Appeals, where
the judgment was affirmed, the court saying in part as follows:
The testimony of the appellee warranted the jury in concluding
that the prevailing custom was not followed. The verdict therefore
must be interpreted as a finding that his testimony was true and that
the switching operations on that occasion were not conducted in the
usual and customary manner; that the shunting of the cars which
caused the injury was done with unusual violence, creating a situation
more dangerous than that to which the inspector was usually exposed.
The jury was warranted, therefore, in concluding, and evidently did
conclude, that the shunting of the cars in the manner adopted on that
occasion was negligence and created a risk which the appellee as an
inspector did not assume. [Cases cited.]
The court disposed of the assignments of error and held that the
lower court had charged the jury correctly. Furthermore, a new trial
could not be granted on account of the misconduct of the jury as
there was insufficient evidence to support this claim. The judgment
of the district court in favor of Aaron was therefore affirmed.

E m plo yer s ’ L i a b il it y — N egligence — A

s su m p t io n of

R i s k — J o in t

Southern Railioay Go. v. Hobbs et al., Circuit Gowt
of Appeals, Fourth Circuit (October 15, 1929), 35 Federal Reporter
(2d), page 298.— J . B. H ob b s was em ployed by the Southern R a il

T ort F easors—

w a y C o. as an extra sw itchm an and was inju red on the evening o f
D ecem ber

9, 1926, w hile at w ork on top o f a fre ig h t car then being

m oved in interstate commerce b y the railroad com pan y fr o m w ithin
the F o r d M o to r C o .’s p lan t at C harlotte,

N. C.

T h e track into the

plant had been constructed by the F o r d M o to r C o., at the same tim e

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

123

the company also constructed a line of light fixtures, suspended from
the ceiling of the building and immediately over the center of the
track. On the night of the accident Hobbs was on the last car and
had walked some 8 or 10 feet forward when a light fixture struck
him in the face, throwing him onto the track, as a result of which
he sustained serious injuries.
He sued the railway company and the Ford Co. as joint tort feas
ors and the District Court of the United States, Western District
of North Carolina, rendered a judgment against the railway com
pany. From this decision the railway company appealed to the
Circuit Court of Appeals, Fourth Circuit, alleging Hobbs volun
tarily assumed the risk of injury and also that he was guilty of
contributory negligence in not taking reasonable care for his own
safety.
The evidence showed the cars were removed after dark as was the
custom, also that for a switchman of ordinary height, standing on
top of a car, the distance was sufficient to allow him to pass under
the lamp fixture without coming in contact with it. However, the
railway had recently begun using higher and larger cars and the
Ford Co. had promised “ to have these lights moved * *
In affirming the opinion of the lower court, the Circuit Court of
Appeals held that Hobbs did not assume the risk and that the rail
way company was guilty of negligence to which Hodds did not
contribute. Regarding the assumption of the risk by Hobbs, the
court said:
His obligation was to exercise reasonable care for his own safety,
and this included the duty of discovering such dangers as were open
and obvious, or in the exercise of due care were discernible to a man
of his experience. He assumed the risks of such dangers as were
ordinarily incident to the work in which he was engaged, but at the
same time he had a right to assume that the company would not send
him into a place of danger, which, in the exercise of ordinary care
on its part, it could have remedied, and until it was shown, as it was
not shown here, either that he knew of the danger, or that it was
so obvious that an ordinarily prudent person, under the circumstances,
should have observed it, he can not be said in law to have assumed
the risk.
The court also held that the promise of the Ford Co. 66to remove
the lights ” did not relieve the railway from its obligation not to
send its employees without warning into a place of danger. The
fact that the Ford Co. had built the track and placed the light fix
tures in this position was not considered actionable negligence by
the court, as the furnishing of the cars was the duty of the railway
and there was no danger until the larger cars were used. The rail
way company had recently inspected the lights and, realizing the
danger, had requested that the lights be moved. Such knowledge

124

DECISIONS OF THE COURTS

placed upon them the obligation of warning the men required to go
on top of the cars of the danger, or else supplying cars which could
be used without danger. In this case they did neither. The railway
company contended that as the Ford Co. had been acquitted by the
jury, the railway company should also be acquitted. The court held
this contention could not be upheld because—
The negligence of the railway company, as ascertained by the
verdict of the jury, did not depend exclusively upon the negligence
of the Ford Co. in the installation of its lamps, but, on the contrary,
was the direct act of the railway company itself, with knowledge of
the danger, in furnishing a car for use in the Ford plant which did
not permit the necessary clearance. The jury may well have found
from the evidence that this action of the railway company did not
involve lack of due care on the part of the Ford Co., since it had no
knowledge that the car in question was to be used.

E m p lo y e r s 5 L i a b i l i t y — N e g lig e n c e — A ssu m p tio n o f B is k — S a f e

Turbeville v. Avery Lumber Go., Supreme
Court of South Carolina (March 11, 1930), 152 Southeastern Re
porter, page 439.— A . H . Turbeville was employed by the Avery
Lumber Co., of Sumter, S. C. On November 8, 1928, while in the
discharge of his duties at the plant, he was injured when a feed belt
broke. The belt was fastened together by means of “ clipper
hooks,” and when the belt broke one of these hooks was thrown some
distance, striking Turbeville on the nose and eye, causing him serious
and painful injury and resulting in the loss of the sight of one eye.
He filed suit against the company, and the common pleas circuit
court of Sumter County rendered a judgment of $3,000 in his favor.
The lumber company appealed the case to the South Carolina Su
preme Court, contending there was no negligence on its part, that
it was Turbeville’s duty to see that the belt was in good condition,
and that he assumed the risk.
The supreme court found that the lumber company was negligent
in fastening belts together by means of “ clipper hooks,” for when
they pull apart it may be reasonably expected the hooks will fly
through the air, causing injury. There was testimony to the effect
that it was better to fasten belts together with leather lacing, and
if this had been done in the case involved the injury would not have
occurred. The testimony also showed that Turbeville was superin
tendent of “ production ” only and that he had nothing to do with
keeping the machines in repair.
Regarding the contention that Turbeville had knowledge of the
condition of the belt and that he assumed the risk by continuing in
the company’s employment after acquiring such knowledge, the court
said that it did not appear from the testimony that Turbeville knew
P l a c e a n d A p p lia n c e s —

125

EMPLOYERS9 LIABILITY

of the defect in the belt and appreciated the danger. However, the
court also found that the lumber company was charged with such
knowledge as a matter of law, and also was charged with the duty
of apprising Turbeville of this danger.
The Supreme Court of South Carolina, therefore, affirmed the
decision of the lower court awarding judgment in favor of the
injured employee.

E m plo yer s ’

L i a b il it y — N egligence — A

s s u m p tio n

R is k —

v. Balmat, Court of Appeals of Ohio
{February 25,1980), 171 Northeastern Reporter, page 409.— On Jan
uary 13,1927, Joseph Balmat, while in the employ of George Klotz, a
farmer, was engaged in grinding sausage in a meat grinder. While
so engaged the four fingers on his right hand became enmeshed in
the grinder and were amputated.
Balmat filed suit against his employer, alleging that the injury was
occasioned directly by Klotz’s negligence in failing to provide a
guard, that he failed to provide an idle pulley on the machine so
that it might be thrown out of gear, and that Klotz was further
negligent since it was his duty to operate the engine and he did not
shut off the power when advised to do so by Balmat, which delay
increased Balmat’s injury.
The trial court rendered a verdict in favor of Balmat and the
case was appealed to the court of appeals. This court said that the
employee was attempting to bring the employer within the pro
visions of the law applicable to workshops and factories, but that—
Nowhere does he allege that the defendant had in his employ three
or more persons, or that the defendant was a manufacturer, or that
this was not a grinder in common use among farmers in grinding
meat, or that there was any safety device or attachment manufactured
or in common use on the kind of grinder used, or that he was inex
perienced in the work in which he was engaged, or that he refused
or objected to feeding this grinder, or that the accident was caused
by the lack of an instrumentality that would have enabled the plain
tiff to have shifted the belt to an idle pulley. Nor does it appear that
the plaintiff was regularly employed along with others, nor that such
employment was more than casual.
In view of the suggested omissions it is the opinion of this court
that this action is clearly characterized as one of ordinary negligence,
and is only based upon the common-law duty to exercise ordinary
care.
S afety A

pp l ia n c e —Klotz

The court then cited the case of Coal & Car Co. v. Norman (49
Ohio St. 598, 32 N. E. 857), wherein the court held:
In an action by a servant against his master for an injury result
ing from the negligence of the latter in furnishing appliances, or in
66588°— 31------ 10

126

DECISIONS OF THE COURTS

caring for the premises where the work is to be done, the plaintiff
must aver want of knowledge on his part of the defects causing the
injury, or that? having such knowledge, he informed the master and
continued in his employment upon a promise, express or implied, to
remedy the defects. An averment that the injury occurred without
fault on his part is not sufficient.
Continuing the opinion, the court said:
It is fully proven that the plaintiff was a farm laborer, 51 years
of age, performing only casual labor for the defendant, and that he
had full knowledge of the construction and the manner of operation
of an ordinary small size meat grinder such as farmers use— like the
one in this case— and that the grinder and its attachments were open
to his view. And it is proved that there is no known device or
attachment in common use that could have been placed upon this
grinder.
W e are unable to convince ourselves from a study of the complete
record in this case that the defendant was negligent, and we hold the
view that the servant must be held to have assumed the ordinary risk
of the enterprise upon which he voluntarily entered, for such was
apparent and discernible and known to him. The plaintiff was not
or tender years, and he was experienced in that which he attempted
to do and voluntarily did, and the employer can not herein be held
to be the insurer of his servant’s safety.
The judgment of the trial court was therefore reversed.

E m plo yers’ L

ia b il it y —

N e g l ig e n c e — C o n t r ib u t o r y N e g l ig e n c e —

Turk v. Sweeten, Supreme Court of Arkansas (May 12, 1930), 27
Southwestern Reporter (2d), page 1000.— T. W . Sweeten was em
ployed by the Turk Construction Co., which was engaged in road
construction work. He was employed as night watchman and it
was his duty to clean and grease the machinery during the night for
the next day’s work. One night he brought his son with him to
help clean the machinery and on that night he finished his work
about 11 o’clock. He went to a place on the premises where there
was a 10-gallon can of gasoline and told his son to hold the lantern
while he poured some out for the purpose of washing the grease off
his hands. He forced open the can of gasoline and was pouring
gasoline into another can when the gasoline caught fire and Sweeten
was severely burned. The employer had told him to use his coaloil lantern, because the electric lantern was out of order. TlLe
lighted lantern was 3 or 4 feet from the can when Sweeten
was pouring the gasoline. He knew the gasoline was for emergency
use in running the engines and no one had told him to use the
gasoline to wash his hands.
Sweeten filed suit against his employer, alleging the injury was due
to the negligence of the employer. The Franklin County circuit

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

127

court rendered judgment in favor of Sweeten. The construction
company appealed the case to the Arkansas Supreme Court, where
the judgment of the circuit court was reversed and the case dismissed.
The court held that the construction company was not guilty of
negligence, that the injury was the result of Sweeten’s own act for
his own benefit or convenience and not in the line of his duty as an
employee of the company. It was not necessary for him to use the
gasoline and the company owed him no duty to instruct and warn
him while he was acting outside the scope of his employment. The
court also held that Sweeten was not entitled to a judgment because
he was guilty of contributory negligence. Sweeteen was using a
kerosene lantern in the discharge of his duties, and, when he knocked
the top off of the gasoline can and started to pour the gasoline out
into another can within 3 or 4 feet of the lighted lantern, he was
charged with the knowledge that an explosion, which would burn
him, would likely occur.

m ployers’

L ia b ilit y — N e g lig en ce— Evidence— F e d e r a l

and

S ta te Jurisdiction— Pennsylvania R . Co. v. Johnson, Appellate

Court of Indiana (December 19, 1929), 169 Northeastern Reporter,
page 859.— The Pennsylvania Railroad Co. operated trains from the
city of Fort W ayn e, In d., to Chicago. Edward L . Johnson was
employed by the railroad as head brakeman upon one o f these
trains. The tracks o f the railroad ran through Clark, In d., where
a pumping station and water plug were maintained for the pur
pose o f supplying locomotives with water. I t was Johnson’s duty
as head brakeman to uncouple the engine at Clark, so that it could
move forward to the water plug. It was also his duty while the
engine was being supplied with water to look over and inspect the
train and to couple the locomotive onto the train after it had
taken water. Johnson had been employed for a number o f years
as a brakeman, and during the year 1922 he had made 67 round
trips over this route.

On the day in question the train arrived at Clark Station about

6 o’clock in the evening and Johnson performed his customary
duties. After the train had proceeded 3 or 4 miles west it was
discovered Johnson was not upon the train. He was subsequently
found by a member of a work train at Clark Station, sitting in a
chair immediately inside the door of the pump house with the
side of his face covered with blood and otherwise injured, from
which injuries he died shortly thereafter.
Loella Johnson, as administratrix, filed suit in the superior court,
Allen County, Ind., under the Federal employers’ liability act (45
U. S. C. A ., secs. 51-59), alleging that the railroad was negligent in

128

DECISIONS OF THE COURTS

carelessly and negligently constructing and maintaining a water
spout by the side of the track in such close and dangerous proximity
as to be a constant menace and a source of danger to the life and
limb of its employees. She further alleged that Johnson—
Did not know nor did he have equal means or opportunity of
knowing the dangers and conditions as herein set out; but, as a di
rect and proximate result of the carelessness and negligence of the
appellant as herein set forth, and without any fault or negligence
on the part of the appellee’s decedent, he was thrown, jerked, and
hurled against said waterspout or structure and to the ground in
such a manner that his arms were broken and crushed, his limbs
were fractured, his back was broken, and his ribs crushed, and other
wise so injured that he died, as a result of his injuries, approximately
three days thereafter.
The superior court rendered a judgment in favor of the widow
in the sum of $7,500 and the railroad appealed the case to the A p
pellate Court of Indiana, contending there was no evidence, either
direct or circumstantial, upon which the verdict could reasonably
be predicated as to how Johnson met his death, and that the verdict
was merely a conjecture and a speculation.
The appellate court held that as the action came under the Fed
eral employers’ liability act all State laws upon that subject were
superseded and that—
The rights and obligations of the plaintiff depend upon that act
and applicable principles of common law as interpreted by the
Federal courts. The employer is liable for the injury and death
resulting in whole or in part from the negligence specified in the
act, and proof of such negligence is essential to recovery. The kind
and amount of evidence required to establish it is not subject to
the control of the several States. The court will examine the rec
ord, and if it is found that, as a matter of law, the evidence is
not sufficient to sustain a finding that the carrier’s negligence was
a cause of the death, judgment against the carrier will be reversed.
The undisputed evidence in this case showed that the water plug
alleged to have caused the injury was located 7 feet 5y2 inches north
of the center of the track and that the cab of the engine was 10
feet wide at its widest point. Therefore there was a space of 2
feet 5 inches clearance between the cab of the engine and the water
plug.
The appellate court held the evidence was not sufficient to sustain
the verdict of the lower court, which judgment was therefore re
versed, the court saying:
As a final consideration in this case, we are bound to conclude as
a matter of law that there were not sufficient facts proven to jus
tify the conclusion that Johnson met his death by coming in con
tact with the water plug. * * * He may have fainted, or he
may have attempted to get off the engine and slipped and fell, or

EMPLOYEES9 LIABILITY

129

he may have been struck by some other object. There is as much
reason to suppose that he got off the left-hand side of the engine
as there is that he got off the right-hand side, because there is no
evidence either way.
In view of the fact that the water plug was located farther from
the center of the track than the minimum distance required by
statute, and whereas there is no showing that there was any unusual
construction in the locomotive and the cars or the width thereof, and
there is no showing that the roadbed was out of repair, so as to cause
any sudden jerking or other motion that is not usual to a train that
is being started, we hold that, under the undisputed facts of this
case, the appellant was not negligent.

m ployers’

L i a b i l i t y — N e g l ig e n c e — E v id e n c e — P

r e s u m p t io n —

St. Louis-San Francisco R. Go. v. Smith, Supreme Court of Arlcansas
(July 8, 1929), 19 Southwestern Reporter (2d), page 1102.— Sterling
Smith was employed by the St. Louis-San Francisco Railway Co. as
brakeman on a freight train running from Hugo, Okla., to Ash
down, Ark. On the night of July 9,1927, he was killed while attempt
ing to switch three cars upon a side switch. In doing this it was
part of Smith’s duty to uncouple the cars, and after doing that
“ throw the switch.” The evidence showed Smith had uncoupled
the cars and had started toward the switch stand. He was never
seen alive by any person after starting for the front end of the
caboose, and later his mangled body was found upon the track. No
one was able to say just how the accident happened.
The widow filed suit in the circuit court, Little River County,
Ark., to recover damages on account of the death of her husband,
alleged to have been caused by the negligence of the railway. The
judgment was rendered in favor of the widow, and the railway
appealed to the Supreme Court of Arkansas, contending the evi
dence was not sufficient to support the verdict.
In regard to the sufficiency of evidence to establish negligence
under the employers’ liability act the supreme court found that—
The employer is liable for injury or death resulting in whole or
in part from the negligence specified in the act, and proof of such
negligence is essential to recovery. The kind or amount of evidence
required to establish it is not subject to the control of the several
States. The court will examine the record, and if it is found that
as a matter of law the evidence is not sufficient to sustain a finding
that the carrier’s negligence was a cause of the death, judgment
against the carrier will be reversed.
Bearing in mind that the death of Smith must have resulted “ in
whole or in part from the negligence of ” one or more of the rail
way’s employees, and that “ proof of such negligence is essential to
recovery ” the court scrutinized the evidence to determine whether

130

DECISIONS OP THE COURTS

it was sufficient to support the verdict. It was a part of Smith’s
duty to give the signal to the engineer when to “ kick ” the cars away
from the train. The evidence showed that this signal was given
by Rhodes, a fellow brakeman. This was the principal ground of
negligence relied upon, and it is contended by the widow that this
unexpected movement caused Smith to fall and to be thus run over
and killed. There was no direct evidence to support this last con
clusion, but the court was asked to approve it as an inference reason
ably to be deducted by the evidence. In regard to this, the court
said:
Is it an inference reasonably to be deduced from the evidence?
W e think not. There was no sudden, unexpected, unusual jerking
of the caboose, but only a gradual increase in speed not to exceed
10 or 12 miles per hour from the rate it was traveling. It appears
to us that it is just as probable that he got off the caboose to cross
over the north side and throw the switch; that in doing so he either
stumbled and fell in the dark across the track, or was struck by
the car following and was knocked down on the track. One seems
about as probable as the other.
The court quoted from the case of Philadelphia & Reading R. Co.
v. Cannon (296 Fed. 302), wherein the Supreme Court of Pennsyl
vania said:
It is not enough for plaintiff to show his injury might have been
due to more than one possible cause, for only one of which defendant
is responsible. He is obliged to go further and show the cause that
fastens liability upon defendant was the proximate one and the jury
should not be permitted to base a verdict upon a mere conjecture
that the injury was caused by one or the other.
The opinion was concluded by the court as follows:
This is also the rule in this court. Juries are not permitted to
base verdicts on mere conjecture or speculation. There must be
substantial testimony of essential facts, or facts which would justify
a reasonable inference of such essential facts, on which to base a
verdict before it will be permitted to stand. [Cases cited.]
The burden was upon appellee, not only to establish negligence,
but that such negligence was the proximate cause of the injury.
Assuming, therefore, that the act of brakeman Rhodes in giving the
“ kick ” signal constituted negligence, there is a total lack of proof
or inferences reasonably to be drawn therefrom, that such negligence
was the proximate cause of the injury, or that such injury resulted
in whole or in part from such negligence. W e have therefore
reached the conclusion that the verdict and judgment are without
substantial evidence to support them, and must be reversed, and the
cause remanded for a new trial.

E m plo yer s ’ L ia b il it y — N egligen ce — E vid en c e — R ailroads — Pul
len v. Chicago, M ., St. P. <£s P. R. Co., Supreme Court of Mirmesota
(October 25,1929), 227 Northwestern Reporter, page 352.— On April

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

131

12, 1928, a freight train of 60 or more cars left Mobridge, S. Dak.,
for Marmarth, N. Dak., and reached its destination a little after
midnight. Wayne Pullen was rear brakeman and rode in the
caboose on this trip. A t Marmarth it was necessary to switch the
train and place the cars on a side track. In doing this the caboose
became detached from the train and stopped before it cleared the
switch. The engine was switched to an adjacent track and a chain
was used to move the caboose into position. After moving the
caboose several times, the engine stopped, the chain became slack,
but the caboose continued in motion. Pullen stepped between the
chain and the end of the caboose and was caught and crushed.
The administratrix proceeded under the Federal employers’ liabil
ity act, claiming the injury was due to the negligence of the railway.
The trial court rendered a verdict for the railway company on the
ground that no negligence had been proven. The case was appealed
to the Supreme Court of Minnesota.
This court affirmed the decision of the lower court, and said that
the act of Pullen in going between the chain and the caboose was
“ not only unnecessary but obviously dangerous in the extreme.”
The court found no evidence of negligence other than that of Pullen
himself.
E m ployer s ’ L ia b il it y — N egligen ce — F el lo w S e r v a n t — Hen
dricks v. New York, N. H . & H . R. Co., Court of Appeals of New
York (July 11, 1929), 167 Northeastern Reporter, page ]+]$.— Benja
min F . Hendricks was an employee of the New York, New Haven &
Hartford Railroad Co. After the close of working hours Hendricks
was given free transportation by the company to the station nearest
his home. On the day he was injured the train stopped on a trestle
some distance south of the station. Hendricks, fearing the train
would start before he could traverse the length of the train, made his
exit from the rear. As the rear exit on the right was blocked by
a steel girder, he descended from the rear end on the left, alighted
upon planks forming part of the trestle’s deck, and, breaking through
them, fell to the street, sustaining serious injuries.
An action was brought in the New York Trial Term Court by
Hendricks against the New York, New Haven & Hartford Railroad
Co., under the Federal employers’ liability act, and he recovered
judgment for personal injuries. This decision was reversed by the
New York Supreme Court, appellate division, upon the ground that
the employer had not failed in its duty to protect the employee, and
that at the time of his injury he had deviated from his employment.
The case was taken by Hendricks to the Court of Appeals of New
York, where the judgment of the trial term court was affirmed and

132

DECISIONS OF THE COURTS

that of the appellate division was reversed. Judge O’Brien rend
ered the decision of the court, saying, in part:
The evidence warrants the finding that plaintiff assumed no risk
known to him nor one so obvious that he should have been aware of
it and that his use of the trestle as a connecting passage to the street
would have been safe except for the presence of detective planks.
Plaintiff, having assumed no known risk and defendant having
negligently maintained its structure, he is entitled, under this statute,
whether negligent or otherwise, to recover in some amount by way
of apportionment of damage, unless his means of exit constitutes a
deviation from his employment.
He had not severed his employment with defendant. He was yet
on his employer’s premises, the relation of master and servant con
tinued to exist, and he was still engaged in discharging a duty of his
employment.
I f, as matter of fact, plaintiff could not safely alight from the
right side of the train, he did not, as matter of law, deviate from his
employment when he made his exit on the left.

m plo yer s ’

L ia b il it y — N egligence — I n t er stat e

C om merce—

C o n t r ib u t o r y N egligen ce —New

York Central R. Co. v. Marcone,
Supreme Court of the United States (April 14, 1930), SO Supreme
Court Reporter, page 294.— Joseph Marcone was employed in the
roundhouse of the New York Central Railroad Co. at New Durham,
N . J., in which there are 32 engine stalls adjacent to a turntable.
His hours were from 7 p. m. to 3 a. m., and his duty was to fill the
grease cups and pack the journal boxes of engines while in the round
house for inspection. On the night in question, at about 2.15 a. m.,
he was instructed by his foreman to work on engine No. 3835 and
when finished to wait at the inspection wagon between track 7 and
track 8. A t about 2.35 a. m. Marcone’s body, with head and one arm
severed, was discovered on the right-hand rail of track 8 underneath
the trucks of the tender of engine No. 3709, which was then being
backed on track 8 from the roundhouse to the turntable.
Suit was filed by the administrator of Marcone’s estate in the
circuit court of Hudson County, N. J., and at the trial the hostler
who removed the engine from the roundhouse testified that—
Before moving it he inspected track 8, that he saw no one on or
near the track, that he then mounted the engine, started the air pump,
turned on the headlight, rear light, and cab lights, started the engine
bell ringing, and blew three blasts of the whistle as a warning that
he was about to back the engine out and as notice to the operator of
the turntable. A t about 2.30 a. m., some 10 minutes after mounting
the engine, he backed the engine toward the turntable at the rate of
about 4 miles an hour, looking behind as he did so. The operator
of the turntable not responding to the signal, he stopped the engine,
blew three more blasts, and when the turntable was set he again
started the engine and proceeded until decedent’s body was discovered.

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

133

There was also evidence to show that the engine was moved a half
hour earlier than the actual time for its removal. However, the
company contended that there was no regular time for the removal
from the roundhouse to the turntable, as the only time stated was
for its departure from the yard.
Judgment rendered in favor of the administrator was affirmed by
the New Jersey Court of Errors and Appeals. The case was carried
to the United States Supreme Court. Mr. Justice Stone, in deliver
ing the opinion of the court, said:
W e think that there was sufficient evidence of petitioner’s negli
gence to take the case to the jury. Workmen were constantly moving
about the engines stalled in the roundhouse. Any movement of an
engine without warning was dangerous to life and limb. After the
hostler mounted the engine and before it was moved, sufficient time
elapsed for the deceased to come into proximity with it which was
dangerous if, as the jury might have found, he could not be seen
from the engine cab bv the hostler and was not warned of the im
pending movement. On the evidence it was for the jury to say
whether petitioner exercised due care in moving the engine without
a more specific and effective warning and whether failure to give it
was the cause of the death.
The jury, having found, as it might, that the negligence was the
cause of the death, might also have inferred that the deceased was
guilty of contributory negligence, but the trial judge correctlv
charged that under the Federal employers’ liability act (45 U.
C. A ., secs. 51-59) contributory negligence is not a bar to recovery
unless it is the sole cause of the injury or death, and may be taken
into consideration by the jury in fixing the amount of damage.
The engine, No. 3835, on which deceased last worked, was used in
hauling interstate trains. It was not withdrawn from service.
[Cases cited.] But petitioner contends that deceased, having fin
ished his work, was no longer employed in interstate commerce. The
trial court submitted to the jury the question whether deceased had
finished his work on this engine at the time of the accident, and there
was some evidence to support a finding that he had not finished it.
But if we assume that he had completed the work a few minutes
before his death, he was still on duty. His presence on the premises
was so closely associated with his employment in interstate com
merce as to be an incident of it and to entitle him to the benefit of
the employers’ liability act.
The decision of the lower court was therefore affirmed.

E m plo yer s ’ L ia b il it y — N egligence — O r d in a r y C are —Millett v.
Maine Central Railroad Co., Supreme Judicial Court of Maine (Sep
tember 12, 1929), llf.6 Atlantic Reporter, page 903.— Linneous M.
Millett, an employee of the Maine Central Railroad Co., suffered
injuries when a spark lodged in his eye while he was engaged in
burning grass along a right of way. The evidence showed the day

134

DECISIONS OF THE COURTS

was suitable for burning grass and that Millett was an experienced
man at such work. His work required that he walk along the edge
of the location to prevent the escape of fire to contiguous land, and
while so doing the accident occurred. The railroad company did
not assent to the workmen’s compensation act (Rev. Stat., ch. 50, as
amended by Laws 1919, ch. 238). Millett therefore brought action
against the railroad company. A nonsuit was granted and Millett
excepted, taking the case to the Supreme Judicial Court of Maine.
This court overruled the exception, saying in part as follows:
The law permits recovery, under any of the courts, only on the
basis of negligence. Negligence is nothing more or less than a failure
of duty. (Boardman v. Creighton, 95 Me. 154, 159, 49 A tl. 663.)
An employer is bound to exercise ordinary care to provide reason
ably safe and reasonably suitable methods, and such only, to enable
the employee to do his work as safely as the hazards incident to
employment will permit.
But the employer is not an insurer. Plaintiff had the burden to
adduce reasonable evidence which would tend to show, primarily,
a breach of duty owed to him in respect to the method of doing
the work. Negligence may not be found from the mere happening
of accident. Wormell v. Railroad Company, 79 Me. 397, 403, 10
A tl. 49.)
There is no evidence that the method employed was not common
and usual in the occupation.
The plaintiff did not prove a prima facie case. The trial judge
did not err in granting the nonsuit.
Therefore the court held that Millett was not entitled to recover.
E

m ployer s ’

L ia b il it y — N egligence — P r o x im a t e C a u se — A

ssum p

Rio Bravo Oil Go. v. Matthews, Court of Civil
Appeals of Texas (July 28, 1929), 20 Southwestern Reporter (2d),
page 342.— T h e Rio B rav o O il Co. held a m ineral lease on the p a rt o f
the rig h t of w ay o f the T ex a s & N ew O rleans R a ilro ad Co., about 500
t io n

R is k —

feet lon g , w hich crossed Spindletop O il F ie ld in Jefferson C ou n ty,
Tex.

It extended on ly to that portion o f the rig h t o f w ay n ot cov

ered b y the railroad track and roadbed, over w hich the o il com pan y
had no control or authority.
on either side o f the track.

25 or 30 o il wells
No. 54 w as bu ilt w ith in 15 or 20

T h e com pany h ad
W e ll

feet o f the crossties, and the steam pum p was located between the
p la tfo r m and the railroad in such a manner th at the exhaust fr o m
the pu m p was discharged directly across the railroad.

L. J. Matthews, an employee of the oil company, was assigned to
work on well No. 54. On the morning of the accident he had arrived
on the premises of the company and had gone into the dressing room
and changed his clothes before crossing the track to begin his work.
While walking down the track he approached the section where the
exhaust from the pump was discharged directly across the tracks.

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

135

The steam was so dense he could not see through it, and as a result
he was struck by a train approaching from the opposite direction
and was severely injured. He filed suit in the district court of
Jefferson County against the oil company for the damages suffered
by reason of such injuries, alleging that the company was negligent
in that it ( 1) failed to place a watchman on the premises near well
No. 54 to warn its employees of the approach of trains; (2) failed
to place a signal lamp near well No. 54 to warn its employees of
approaching trains; (3) failed to place a barricade along the railroad
track; (4) failed to place an electric bell to warn its employees; (5)
failed to place an electric signal on the premises; ( 6) failed to
provide a way of leaving and entering the place of work; (7) pro
vided the way along the railroad track; and ( 8) placed the pumps so
near the track that the steam was discharged in close proximity to
the railroad track so as to obstruct the view of an approaching train
by those using the track.
The jury found each of these to be a proximate cause of the acci
dent and held that the injury occurred while Matthews was in the
performance of his duties. A judgment of $50,000, exclusive of a
$2,500 doctor’s bill was rendered in favor of Matthews. The Rio
Bravo Oil Co. appealed the case to the Court of Civil Appeals of
Texas. In the appeal the company attacked the theory of master and
servant and contended that Matthews was not performing the duties
of his employment when injured.
The appeals court found that he was not injured on his master’s
premises, but on his way to the premises. The court said further that
“ he was not entitled to claim rights of servant after entering prem
ises originally, since such relationship was severed at time he volun
tarily left premises and walked on railroad track.” His master had
not contracted with him to furnish him a way for this purpose and
he was therefore not in the discharge of his duties when injured.
There was no relation of master and servant at the time of the injury
and issues Nos. 1, 2,4 , and 5 made by Matthews based upon the theory
of master and servant therefore could not stand. The three lastnamed issues could not have constituted negligence for the further
reason that the company had no control over the railroad and no
right to attach signals to the rails. Issues 3, 6, and 7 did not suggest
negligence because they did not violate any duty toward the public.
However, the claim based upon the duty not to create or maintain
a dangerous agency or obstruction across the track applied to the
public as well as to the employees, and the court ruled that if this
duty was violated and if injury proximately resulted therefrom the
company would be liable unless it proved a defense good at law.

136

De c i s i o n s

the

o o t je t s

The defense used by the company was that ( 1) Matthews was
guilty of negligence in walking into the exhaust, and that this was
the sole cause of the accident ; (2 ) the act of the train in striking
Matthews was the sole cause of the accident; and (3) the negligence
in discharging the exhaust was not a proximate cause and the jury’s
verdict on this was without support.
Regarding the eighth issue raised by Matthews, the court said in
part as follows:
On the principles thus stated, the issue of negligence was raised by
discharging the exhaust from the pump and engine across the rail
road track, and the verdict of the jury, convincing appellant of negli
gence on the three divisions of question No. 8, has support.
It knew the condition of the premises. It knew that the railroad
track was being used as a way by many people. It knew that the
railroad company was operating its trains upon this track. It knew
that the exhaust was so dense as to obstruct the view of one using
the track. The finding that it should have foreseen the consequences
of its act in discharging its exhaust as it did has support.
The oil company also complained of several errors in the trial by
the lower court. It complained of the trial court’s definition of
“ proximate cause ” and the refusal of the court to define “ efficient
intervening cause ” and “ natural and continued sequence ” as used
in the charge. Upon this assignment of error the court of appeals
reversed the decision of the lower court and ordered the case for a
new trial.
E m plo yer s ’

L ia b il it y — N egligence — S afe

P la ce

and

p p l i

Primmer v. American Gar & Foimdry Go., St. Louis Court
of Appeals (October 5 , 1929), 20 Southwestern Reporter (2d), page
587.— O n Jan u ary 21, 1924, R obert P rim m er was inju red in the
course o f his em ploym ent w ith the A m erica n Car & F o u n d ry Co.,
ances—

located in the city o f S t. Lou is.

T h e in ju ry was received w hile he

was in the act o f cutting a m etal brake rod upon an electrically-controlled m achine know n as an “ alligator shear.”

Primmer filed suit in the St. Louis circuit court and received an
award of $2,500. The American Car & Foundry Co. appealed to the
St. Louis court of appeals, contending that Primmer was guilty of
contributory negligence. Primmer alleged the company was negli
gent in ( 1) permitting the shears to become dull, worn, and loose
so that they were dangerous to operate, and ( 2 ) that the machine was
so situated as to be dangerous to the employees in their ordinary
work and should have been safely and securely guarded.
The foundry company contended it was part of Primmer’s duty
to sharpen and tighten the blades and therefore his first contention
was attributable to his own neglect and not that of the company.

137

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

The court, however, did not bear out this position. Primmer was
only a helper upon and around the machine, the regular operator
being one Tonko, who in turn received his orders from the foreman.
It was Tonko who decided when the machine should be sharpened
and, on this occasion, he had issued no orders to Primmer to take
the machine apart and sharpen the blade.
The court also upheld Primmer’s contention that the company was
negligent in not furnishing a guard for the machine. They found
that a “ hold-down bar” would have prevented the accident, and
would have involved no change in structure of the machine nor
affected the efficiency of the machine.
The foundry company assigned error in numerous respects to the
instructions of the court. However, the court of appeals found no
error in the trial of the case materially affecting the company’s
rights, and the judgment of the trial court was therefore affirmed.

E m ployer s ’

L ia b il it y — N e g l i g e n c e — V

io l a t io n

S tatute—

Arrowhead Steel Products Co.,
preme Cou/rt of Minnesota (March 28, 1930), 230 Northwestern
porter, page 125.— H e n r y B. Suess brought action again st his
ployer, the A rrow h ea d Steel P roducts Co., to recover dam ages
A

s s u m p t io n of

R is k — Suess v.

Su
Re
em
fo r

injuries to his health, claim in g th at w hile in the em p lo y o f the com
pa n y fo r a period o f six years as superintendent and inspector he

He alleged that the com pany h ad fa iled to
4174, G eneral Statutes 1923, o f M inn esota, and

contracted tuberculosis.
com p ly w ith section

th at by reason th ereof he contracted the disease fro m which he was
suffering at the tim e he brough t action.

T h is disease is n o t com

pensated under the M innesota w orkm en’s compensation act.

Section 4174, General Statutes 1923, upon which the action is based,
reads:
In every place of employment the employer shall provide in each
workroom thereof proper and sufficient means of ventilation and shall
maintain proper and sufficient ventilation. I f excessive smoke,
steam, gas, fumes, vapors, dust, or other impurities are created or
generated by the manufacturing process or handicraft carried on
therein, in sufficient quantities to obstruct the vision, or to be irritat
ing, obnoxious, or injurious to the health or safety of the employees
therein, the rooms shall be ventilated in such manner as to remove
them or render them harmless, so far as is practicable.
The district court, Hennepin County, submitted to the jury the
question whether Suess had assumed the risk, and upon this rule
a verdict was rendered for the company. Suess requested a new trial,
contending that the rule of assumption of risk did not apply, for
the assumption of risk was a result of the contract of employment;
that it was unlawful and contrary to public policy to permit parties

138

DECISIONS OF THE COURTS

to contract either expressly or impliedly to violate a statute; and
that if it is against public policy so to contract, it would seem equally
against public policy to hold that assumption of risk applies where
there is no such contract.
The request for a new trial was denied and the case was appealed to
the Supreme Court of Minnesota. In deciding whether the doctrine
of assumption of risk applied to the case the supreme court said:
The doctrine of assumption of risk is not favored, and should be
limited rather than extended. The latest Minnesota decision called
to our attention, where the doctrine was held to apply in cases based
on the violation of a statute requiring an employer to provide safety
appliances or safe instrumentalities or places of work tor the protec
tion of his employees, is the Glockner case, decided more than 20
years ago. Since then there have been many marked changes in
industrial relations between employers and employees and in legis
lation governing such relations. The first workmen’s compensation
act was passed m 1913 and abolished the defense of assumption of
risk in all workmen’s compensation cases based on the failure of the
employer to provide and maintain safe premises and suitable appli
ances for employees. In 1915 the act governing liability of common
carriers operating steam railways in this State, for death or injury
to employees, was passed. That act, in harmony with the Federal
law, aoolished the defense of assumption of risk in any case where
the violation by the employer of any statute enacted for the safety
of employees contributed to the injury or death of such employee.
In addition to these acts, there has been a rapid growth and extension
of laws providing for the safety and protection of employees in in
dustrial plants and other occupations. The public policy of the
State, as gathered from legislation enacted during the last 20 years
and more, is to make the employer liable for injury to an employee,
caused by the violation by the employer of a statute requiring him
to provide and maintain safe premises and appliances for the pro
tection of his employees, and that the defense of assumption of risk
should not apply in such cases. This conclusion is in harmony with
the line of decisions in this State that a violation of a statute, re
sulting in injury to one for whose benefit the statute was enacted,
is negligence per se, or, as stated in some cases, that the question of
negligence is not involved—that, if a violation of the statute is the
proximate cause of injury to one for whose benefit the statute was
enacted, liability follows, irrespective of any question of negligence
in the ordinary sense of that word. [Cases cited.]
In concluding the opinion the court held that where an action is
based upon the violation by the employer of such a statute and the
injury complained of is a proximate result of such a violation, as
sumption of risk is not a defense open to the employer. The case was
therefore reversed.
E m p lo y e r s ’ L ia b il it y — O c c u p a t io n a l D isease — S a f e P lac e
R i s k —Depre v.

Pacific Coast Forge Co.,
Supreme Court of Washington {April h 1929), 276 Pacific Reporter,

or k —

ssu m p t io n

em ployers'

139

l ia b il it y

page 89.— Andrew Depre was employed by the Pacific Coast Forge
Co., as manager of its galvanizing plant, from March, 1924, until
May, 1926. A part of the plant consisted of a large tank into which
was poured a mixture of muriatic acid, sulphuric acid, and water,
which emitted noxious gases. The ventilation provided was insuffi
cient to remove the gases. As a result Depre’s lungs became inflamed,
making him susceptible to tuberculosis, which disease he subsequently
contracted. The evidence showed that he had complained to his
employer and was promised that the condition would be remedied,
but nothing was done until it was too late to benefit him. He filed
suit against his employer and received a judgment in the superior
court, King County, Wash. The case was appealed to the Supreme
Court of Washington.
The court held that Depre could not recover under the Washington
workmen’s compensation act, as that act covered only the injuries
resulting from some fortuitous event and not occupational diseases.
However, the court also held that this act did not repeal the pro
visions of the factory act (Rem. Comp. Stat., sec. 7659, Laws, 1911,
p. 345) and that the evidence showed the employer had failed to
comply with the requirements of this act with respect to the place
in which he required his employees to work.
The court considered the evidence sufficient to sustain the award
and held that the defense, used by the employer, of assumption of
risk was not available as a defense when the employer failed to com
ply with the requirements of the act. The judgment of the lower
court was therefore affirmed.

E m plo yer s ’

L ia b il it y — O verexertion — A

s s u m p t io n

R is k —

Baker v. Sterrett Operating Service
(Inc.), Court of Appeals of District of Columbia (April 7,1980), 58
Washington Loajo Reporter, page S%2.— On January 23, 1928, Irving
Baker was in the employ of the Sterrett Operating Service (Inc.) as
an apprentice painter. His duties consisted of raising on jacks and
painting the chassis of automobile trucks. He filed suit against his
employer alleging that on the above date he received a hernia by
reason of lifting while in the course of the employment.
The employer, in defense, ( 1) failed to recognize any cause of
action against the company, (2) pleaded that Baker was guilty of
contributory negligence, and (3) that Baker assumed the risk. The
Supreme Court of the District of Columbia upheld this contention
and rendered a verdict in favor of the employer. Baker thereupon
appealed the case to the Court of Appeals of the District of Columbia,
C o n tribu to ry

N egligence —

140

DECISIONS OF THE COURTS

which court quoted the general rule regarding overexertion as stated
in 25 L. R. A . (N. S.) 362, as follows:
It is a general rule that a servant who injures himself by over
straining his muscles in overexerting himself in lifting weights, etc.,
can not hold his master liable, as he himself must be the judge of his
own strength, and this is so even if the work is attempted at the
immediate direction of the master. Even in such cases the servant
is deemed to have assumed the risk.
Following this rule the court affirmed the decision of the lower
court, saying in part as follows:
In our opinion the ruling of the lower court was right. It is not
claimed by the plaintiff that there was any defect in the construction
or condition of the jack which he used at the time of the accident.
Nor did the jack fail to operate as it should. The declaration implies
that plaintiff succeeded in lifting the chassis by means of the jack,
but did not realize at the time that he was exerting unusual physical
effort in doing so, for it is stated that he unconsciously exerted great
and unusual physical pressure in operating the jack, and thereby
unknowingly exerted greater pressure than he was capable of with
out injury to himself. It appears, therefore, that the cause of plain
tiff’s injury was his own overexertion or strain while engaged in his
employment, and that had he not thus overexerted himself he would
not have sustained the injury of which he complains.

E m p lo y e r s ’

L i a b i l i t y — P r o x im a t e

d e n c e —Atchison,

C a u se — N e g l i g e n c e — E v i

T. c& JS. F . R. Go. v. Toops, Supreme Court of the
United States (April H , 1930), 50 Supreme Court Reporter, page
281.— M. G. Toops was a conductor in charge of a freight train owned
and operated by the Atchison, Topeka & Santa Fe Railway Co. He
was killed near the station at Rolla, Kans., while in the course of a
switching operation. Toops and other employees were engaged in
switching cars on the grain elevator tracks. Shortly after the direc
tions were read to the crew, Toops said that he would look out for the
cars. He was last seen alive, standing, lantern and train book in
hand, on the station platform. His body was not found until after
the grain cars had been “ kicked 55upon the elevator tracks. The body
was lying diagonally across the track and the head and shoulders had
been severed. There were no eye witnesses to the accident.
The widow filed suit against the railroad contending that the de
ceased was knocked down and killed as a result of its negligence in
carrying out the “ kicking55 movement of the grain cars without
signal and without placing a flagman or a light on them. A judg
ment was rendered for the widow.
Upon appeal to the Supreme Court of Kansas the judgment was
affirmed and the case was appealed to the United States Supreme

141

EMPLOYERS* LIABILITY

Court. Mr. Justice Stone delivered the opinion of the court and, in
reversing the decision of the State court, said in part:
Proof of negligence alone does not entitle the plaintiff to recover
under the Federal employers’ liability act. The negligence com
plained of must be the cause of the injury. The jury may not be
permitted to speculate as to its cause, and the case must be with
drawn from its consideration, unless there is evidence from which
the inference may reasonably be drawn that the injury suffered was
caused by the negligent act of the employer.
Even though we assume that in all the respects alleged the peti
tioner was negligent, the record does not disclose any facts tending
to show that the negligence was the cause of the injury and death.
The only evidence relied upon by respondent to account for the de
ceased’s presence at the point of the accident was that already stated,
which indicated that he had proceeded to the elevator track in order,
as he had said, to “ look out ” for the kicked cars, whether by climbing
onto them and controlling their movement on the elevator track, as is
usual in such movements, or by assisting in the spotting movement to
be later carried out, can only be inferred.
On respondent’s own theory, deceased was fully cognizant of the
contemplated movement. He knew that the gram cars were to be
kicked onto the elevator track where he went to meet them, and knew
that his train crew, consisting of only two brakemen, and the lanterns
which they carried, would be needed in attending to the switching,
signalling, and uncoupling of cars in order to kick the train of stock
cars onto the passing track, and that the grain cars for which he was
to “ look out ” would be without brakeman or warning light. It is
presumed that deceased proceeded with diligence and due care.
(Looney v. Metropolitan E. E . Co., 200 U . S. 480, 488, 26 Sup. Ct.
303.) The movement of the 15 cars to and across the switch and
onto the elevator track in a quiet neighborhood on a still night can
not be assumed to have given no warning sounds of their approach.
A ll these factors, taken together, render highly improbable the
theory of respondent that deceased was run down by the grain cars
while he was crossing or standing upon the track, and they give sharp
emphasis to the absence of any proof of the fact, indispensable to
respondent’s case, that deceased, while standing on or attempting to
cross the track, was struck by the leading car.

E m ployer s ’ L ia b il it y — S af e P lace

and

p pl ian c es —

D uty

v. National
Box Co., District Carnt, Southern District, Mississippi (February
10, 1930), 38 Federal Reporter (id ), page 89.— Ed. Middleton was
employed in the box factory of the National Box Co., in Mississippi.
He filed suit against the company claiming that—
E m plo yer

I n st r u c t — “ S im p l e T o o l s ” — Middleton

A chisel, among other tools, was furnished him by his employer
with which to do his work; that the chisel was made by the defend
ant of material which it knew, or ought to have known, was unsuit66588°—31----- 11

142

DECISIONS OF THE COURTS

able for the purpose, and which rendered the tool not only defective,
but dangerous to any employee who should use it as the plaintiff was
required to do in the performance of his duties. * * * The end
which is to be struck with a hammer should be soft and malleable
so that it will not chip off or break. The proper way * * * to
have converted the discarded file into a chisel, * * * was to
have put it in the fire and tempered it so that the blunt end would
not be brittle. This * * * was not done, and the chisel fur
nished was “ brittle as glass.”
A s a consequence, Middleton, who was ignorant of these facts,
and while engaged in his duties struck the chisel with a hammer,
a tiny piece of steel chipped off and lodged in his eye causing an
injury which destroyed the sight and caused the subsequent removal
of the eyeball, and the probable impairment of the sight of the other
eye. The company denied either the manufacture or the furnishing
of the tool in question, but claimed to have furnished other safe and
suitable tools in sufficient number.
In delivering the opinion of the court, District Judge Holmes
cited the case of Kilday v. Jahncke Dry Dock & Ship Repair Co.
(281 Fed. 133), in which the court denied liability for injuries to
the eye from a defective chisel which broke from a latent defect.
The negligence charged was the failure to test the chisel. The court
said:
The general rule that it is the duty of the master to supply the
servant with safe tools and appliances is subject to a well-established
exception in case of common and simple tools and appliances. Upon
the theory and for the reason that the servant has as good opportu
nity for ascertaining defects in simple tools, such as a chisel, as the
master has, the law relieves the master of the duty which it imposes
upon him, where he furnishes complicated tools or machinery for
the use of his servant.
The district judge upheld the theory that “ the employee’s knowl
edge of 4simple tools ’ is presumed to be equal to that of the master,”
and as it did not appear by whom the tool was manufactured or
improperly tempered or that the company had any knowledge
superior to that of the employee, the judgment was entered for the
company.

E m p lo y e r s ’ L i a b i l i t y — S a f e P l a c e a n d A p p lia n c e s — F a i l u r e t o

Shey v. Central Coal <& Coke Co.,
Supreme Court of Missouri (October 5 , 1929), 21 Southwestern Re
porter (2d), page 772.— O n A u g u st 23, 1917, E n g elb ert S h ey , em
ployed b y the C en tral C o a l & C oke Co., in its coal m ine at B evier,
Mo., w as inju red b y a prem ature explosion w h ile ch a rgin g a d rill
I n s t r u c t — A ssu m p tio n o f R is k —

EMPLOYERS* LIABILITY

143

hole with blasting powder. He sued for damages in January, 1924,
and the St. Louis circuit court rendered a judgment dismissing the
suit. Shey appealed to the Supreme Court of Missouri, alleging ( 1)
that the company carelessly and negligently failed to furnish him
reasonably safe tools with which to work; and (2) that the company
carelessly and negligently failed to instruct him in the proper use of
tamping tools and especially failed to instruct him that an iron
tamper was highly dangerous and was likely to explode powder
when such tamper came in contact with sulphur in the coal vein.
The company answered by alleging that it was the custom and
practice in coal-mining districts for miners to furnish their own
tools and the selection of tools was left to the discretion of the miner,
and, further, that Shey assumed the risk involved.
The court found Shey had met all the requirements of section 7527,
Rev. Stat. 1919 of Missouri, and even though he was only 18, he had
met all the qualifications of an experienced miner. The company
therefore owed no more duty to him on account of his age than it
would have owed to any other miner qualified to mine under the
statute.
In regard to the equipment used and the company’s failure to in
struct, the court said the coal company—
Was not under obligation to furnish the very best appliances. He
discharged his duty when he furnished tools which were then in gen
eral use and were regarded as reasonably safe. Plaintiff’s main wit
ness testified that he did not know, notwithstanding all his experi
ence, that an iron tamper was unsafe until after the injury to the
plaintiff. No witness testified to any knowledge at the time of plain
tiff’s injury, or prior thereto, that a steel or iron tamper was dan
gerous.
It is quite probable from the evidence that the injury to plaintiff,
apparently the first of its kind in a Missouri mine, and similar in
juries after that, called attention to the danger of using iron tampers
in mines where hard substances are likely to be struck by them. The
evidence is entirely insufficient to charge the defendant with notice,
at the time the plaintiff was furnished an iron tamper, that it was a
dangerous instrumentality.
The plaintiff brought this suit seven years after his injury. I f he
had been of age, the statute of limitations would have barred his
action. It is reasonable to infer that at the time of his injury he was
advised that the defendant owed him no duty to furnish a different
kind of tamper. After he acquired experience in Illinois and else
where, and learned that other and safer tampers were later used, he
saw fit to bring this suit. There is no evidence to show that the de
fendant at the time of the injury had any more knowledge of the
danger of the use of a steel tamper, or of the use elsewhere of any
other kind of a tamper, than the plaintiff and his main witness, Sam
Cook, had.

144

DECISION'S OP THE COURTS

So we are constrained to hold that the evidence fails to show that at
the time the plaintiff was injured the defendant was under any duty
to supply him with a tamper other than the one which was furnished
him.
The judgment of the lower court was therefore affirmed.

E m p lo y e r s ’ L ia b il it y — S af e P la c e

ork —

s s u m p t io n

Wisconsin <& Arkansas Lumber
Co. v. Ward, Cvrcwt Court of Appeals, Eighth Circuit (May 22,
1929), 32 Federal Reporter (2d), page 974.— On August 22, 1926,
Algie Ward was injured as a result of a piece of board thrown back
against his abdomen while he was engaged in operating a ripsaw
machine in the spool mill of the Wisconsin & Arkansas Lumber Co.
Following his death on November 6, 1926, Susie Ward, the widow,
filed suit against the company, alleging that his death resulted from
the accident which was due to the negligence of the company in fail
ing to exercise ordinary care to furnish the deceased a reasonably
safe place to work. The complaint specified that the machine was
dull and worn and the shaft to which it was attached was so worn as
to cause the saw to wobble and kick back close-grained wood; that
the company could easily have prevented this injury by a guard be
tween the saw and the operator. The lumber company denied that
the injury was caused by negligence on its part, and in addition
pleaded the defense of contributory negligence and assumption of
risk by Ward.
The United States District Court for the Eastern District of
Arkansas rendered a verdict in favor of the widow, and from this
judgment the lumber company appealed to the Circuit Court of
Appeals. This court found the evidence sufficient to sustain the
finding of the jury regarding the negligence of the company and
that Ward did not assume the risk unless he knew that the throwing
back of the boards seriously endangered his safety and that the
danger was fully appreciated by him. However, the court did find
errors appearing in the instructions given by the district court and
that it failed to instruct that the burden of proving the cause of the
death was on the counsel for the widow. For these errors the judg
ment was reversed and the cause remanded to the district court with
directions to grant a new trial.
R i s k — C o n t r ibu t o r y N egligence —

E m plo y er s ’ L ia b il it y — S afe P l ace
R i s k —International

or k —

N eglig en ce — A s

Harvester Co. of America v.
Hawkins, Swpreme Court of Arkansas (February 3, 1930) , 24 South

s u m p t io n

EMPLOYERS* LIABILITY

145

western Reporter (2d), page SJfi.—Peter D. Hawkins was employed
by the International Harvester Co., a corporation engaged in selling
harvester machines, parts of machinery, and other merchandise in
the city of Little Rock, Ark. Pursuant to the directions of the fore
man, Hawkins was engaged in making an inventory of parts and
merchandise located in small bins. .A strip of timber was nailed
to the bins at the bottom part and this strip served as a place to
fasten a chair and also to prevent the parts from coming out. While
Hawkins was in the discharge of his duties making the inventory
and using this chair attached to a bin several feet above the floor,
the strip of board broke and caused him to fall, resulting in severe
injuries.
Hawkins filed suit against the company alleging that the com
pany was negligent and careless in failing to furnish a safe place for
him to work. The company denied this allegation and pleaded that
Hawkins assumed the risk in his contract of employment. The
Pulaski County circuit court rendered judgment in favor of Hawkins
and the company appealed to the Supreme Court of Arkansas.
The higher court held that while a master was not required to
furnish an absolutely safe place to work, he was required to exercise
ordinary care to provide safe appliances and a reasonably safe place
to work. The court also pointed out that it was the master’s, not
thft employee’s, duty to make inspection.
The employer contended that negligence could not be inferred
merely from the injury. The supreme court in rendering the deci
sion said:
While negligence can not be inferred merely from the injury,
negligence may be inferred from facts shown in evidence. Ana the
facts here are sufficient to justify the jury under proper instructions
to find that the appellant was guilty of negligence and that this
negligence caused the injury.
Regarding the next contention, that Hawkins assumed the risk,
the court said:
The servant, when he enters into the employment, assumes all of
the ordinary risks and hazards of the employment, but he does not
assume the risk of negligence of the company for which he was
working or any of its servants. And where a servant, engaged in
the performance of his duty for the master, in the exercise of ordi
nary care for his own safety is injured, whether by the negligence
of the company for which he works or by the negligence of any
other servant of the company, he is entitled to recover.
After considering all the evidence the court concluded that the
judgment of the circuit court should be affirmed*

146

DECISIONS OF THE COURTS

E m plo yer s ’ L ia b ility — S a fe P la c e to W ork — O c c u p a t io n a l
Disease— C o n s titu tio n a lity of S ta tu te — Boll v. Condie-Bray Glass

<&Paint Co., Supreme Cou/rt of Missouri (October 1928), 11 South
western Reporter (2d), page Ifi.— John Boll, while in the employ o f
the Condie-Bray Glass & Paint Co., o f St. Louis, M o., as general
utility man, filed suit for damages against his employer in the sum
o f $20,000. H e asked damages from the company on two separate
and distinct causes o f action, each one due to alleged negligence and
each one resulting in personal injuries which he sustained. In the
first count B oll alleged that he suffered an injury due to a rupture
received by him while attempting to move barrels o f lead weighing

700 pounds.

The St. Louis circuit court sustained a demurrer to
this cause o f action and on appeal the Supreme Court o f Missouri

affirmed the decision, saying that “ the master is not responsible for
a servant overtaxing his strength and therefore can not be made to
respond in damages for injuries resulting therefrom.” In the second
count, complaining o f the alleged negligence o f the employer, B oll
pointed out that the employer failed to provide a reasonably safe
place to work, in that there were mixers on the employer’s premises
where dry lead, dry paint, dry zinc, and dry whitening were placed
in large quantities, causing poisonous gas and dust to be emitted in
harm ful quantities; and that the employer negligently failed to pro
vide proper ventilators in the factory where B oll was required to d o
part o f his work and by reason o f such failure B oll was overcome
with fumes and received permanent injuries. This cause o f action
was based upon sections 6817, 6819, 6825, and 6827 o f the Revised
Statutes o f Missouri for 1919, which provides that any employer
engaged in carrying on any work which may produce illness or is
especially dangerous to the health o f the employees shall comply
with certain prescribed requirements for the prevention o f industrial
or occupational diseases.

The employer alleged that the sections above referred to are arbi
trary and unreasonable and do not specify the nature, kind, and
character of the device or facilities to be furnished by the employer
or designate what shall constitute adequate and sufficient devices or
facilities, and that such sections are therefore unconstitutional.
The lower court sustained the contentions of the employer and Bol]
took the case to the Supreme Court of Missouri. That court, on
October 4, 1928, upheld the constitutionality of the statutes above
referred to, saying:
These sections of the statute were enacted for the purpose, the
very laudable purpose, of preventing diseases among laborers, which
diseases are incident to the operation of such business. Courts are
not called upon to pass upon the reasonableness, the wisdom, or the

e m p lo y e r s ' lia b i lit y

147

necessity of a legislative act, as such matters are alone for the con
sideration of the legislative body.
* * * W e have no hesitation in holding that sections 6817,
6819, 6825, and 6827, Rev. Stat. Mo., 1919, are constitutional, and
that they are a reasonable exercise of the police power of the State.
Health measures and measures for the protection of the lives and
limbs of employees have very properly been held to be legislation of
the highest type and indicative of the desire of an enlightened people
to help those who are in need of such assistance.
But respondent is in no position in this appeal to complain of
the statute requiring adequate devices, means, or methods to prevent
such injury, for the evidence shows (appellant’s evidence being all
that was offered) that respondent had no devices, means, or methods
either for carrying off the fumes, dust, and gases or for the pre
vention of the inhaling of the same by its employees. I f the evidence
showed that respondent had had certain devices, means, or methods
for the carrying off of fumes, dust, and gases, then the question could
be considered as to whether or not such devices, means or methods
were adequate; but, having no devices, means, or methods therefor,
such question can not be considered. Here we have a clear violation
of the statute, which establishes a prima facie case of negligence.

Em ployers’ L ia b ility — S ta te a n d F ed era l S t a t u t e — F ed eral
a n d H arbor W o rk e rs’ A c t — I n t e r s ta t e
Com
m erce — Nogueira v. New York, N. H. <&H. R. Go., Supreme Court

L o n g sh o r e m e n ’ s

of the United States {April 14, 1930), 50 Supreme Court Reporter,
page 303.— Yictorio Nogueira was employed by the New Y ork , New
Haven & H artford Railroad Co. as a freight handler loading freight
into railroad cars on a car float in navigable waters at a pier in
New Y ork Harbor. W h ile so employed Nogueira was injured when
a bale of paper slid down a gangplank and threw him on the floor
o f the float, crushing his leg. In an action brought by Nogueira in
the United States District Court for the District o f New Y ork, he
contended that the car float upon which he was working was used
as an adjunct to railroad transportation in interstate commerce, and
that it was not the intention o f Congress to substitute the remedy
under the Federal longshoremen’s and harbor workers’ compensation
act for that afforded by the Federal employers’ liability act.

The district court, however, dismissed the complaint brought under
the employers’ liability act. Upon appeal to the United States Cir
cuit Court of Appeals for the Second Circuit this court affirmed the
judgment of the district court, but assumed that Nogueira would
have been allowed to prosecute his claim under the Federal employ
ers’ liability act if the longshoremen’s and harbor workers’ compen
sation act did not apply, but if the latter did apply the remedy under
that act was exclusive.
The case was then carried by Nogueira to the United States Su
preme Court to review the judgment of the Circuit Court of Appeals.

148

DECISIONS OF THE COURTS

Mr. Chief Justice Hughes delivered the opinion of the court and,
after stating the general scheme and purpose of the Federal long
shoremen’s and harbor workers’ compensation act and defining the
word “ employer,” held that the definition is “ manifestly broad
enough to embrace a railroad company, provided it has employees
who are employed in maritime employment, in whole or in part, upon
the navigable waters of the United States.”
In reviewing the judgment of the lower court, Mr. Chief Justice
Hughes referred to several former cases decided by the court. In
Atlantic Transport Co. v. Imbrovek (234 U . S. 52) a stevedore
was loading a ship lying in port in navigable waters and the court
held that there was no doubt “ that he was performing maritime
service and that the rights and liabilities of the parties were matters
within the admiralty jurisdiction.” Also in the case of Southern
Pacific Co. v. Jensen (244 U . S. 205) it was held that the case was
not within the Federal employers’ liability act, as the ship upon
which the employee was injured could not properly be regarded
“ as a part of the railroad’s extension or equipment.”
From the standpoint of maritime employment, the court said
that it made no difference “ whether the freight is placed in the
hold or on the deck of a vessel or whether the vessel is a car float
or a steamship.” A car float in navigable waters, the court said,
“ is subject to the maritime law like any other vessel.”
The court then considered the exceptions contained in section 3
of the longshoremen’s act and held that the case did not come within
any of these exceptions of the act. Their limited character, the
court said, “ is significant.” “ No exception is made of the em
ployees of a railroad company employed in maritime service on
the navigable waters of the United States or with respect to the
question whether such employment was in connection with an
extension of railroad transportation.”
The Supreme Court, in concluding the opinion, reviewed the
history of the longshoremen’s and harbor workers’ compensation
law while it was pending in Congress, and affirmed the judgment of
the lower courts, holding that a railroad freight handler injured
on a railroad car float in any of the navigable waters of the United
States must seek relief under the Federal longshoremen’s and harbor
workers’ compensation act and not under the Federal employers’
liability act.

E m plo y er s ’

L ia b il it y — T h ir d -P a r t y

C ontractor — E vid ence — Smith

L ia b il it y — I n d e p e n d e n t

Matthews Construction Co.
(Inc.), Supreme Court of New York, Trial Term (April 21, 1930),

e m p lo y e r s ' l ia b i lit y

149

241 New York Supplement, page 689.— John F. Smith was employed
by an elevator subcontractor in the construction of a building.
While he was in the center of the elevator shaft at about the seventh
or eighth floor, sitting on some planks laid across the shaftway and
engaged in untying a chain fall which had been used for hoisting
certain machinery through the shaftway, he was struck on the head
by a brick and sustained injuries.
Smith thereupon filed suit against the Matthews Construction Co.
(Inc.), the general contractor in charge of the construction of the
building, to recover damages for his injury. The court rendered
a judgment in favor of the construction company and in the course
of the opinion said, in part:
The source of the offending brick is not satisfactorily accounted
for. Whence it emanated is a matter of conjecture. There is no
proof that the defendant had or exercised control over the briok,
or as to the duration of the attacked condition; nor does it appear
that the defendant had notice, actual or constructive, of such condi
tion. The plaintiff attempted to show that the defendant main
tained a superintendent on the premises, but there is no convincing
proof that the person sought to Tbe clothed with superintendence was
employed by the defendant or that he actually was or functioned as
superintendent, that he took any part in the performance of the
work other than that of general supervision; nor is there any proof
of active participation by him in any affirmative act of negligence
complained of.
“ It is now well settled that the owner of premises who contracts
for the erection of a building thereon owes no duty of active vigi
lance to protect the employees of one contractor from the negligence
of those of another, and that to the employees of the various con
tractors the only liability on the part of the owner in such case is for
some affirmative act of negligence on his part, as by taking some part
in the performance of the work other than such general supervision
as is necessary to insure its performance in accordance with the
contract.” [Cases cited.]
The plaintiff has received $3,000 from the brick subcontractor for
these same injuries. The testimony concerning the nature, extent,
and permanency of the injuries and their effect on his earning capac
ity is somewhat indefinite.

As the plaintiff has failed to sustain the burden the law casts upon
him, verdict is directed for the defendant.
E m ployers’

L ia b ility — T h ir d -P a r ty

L ia b ility — N e g lig e n c e —

Baker Tow Boat Go. (Inc.) v. Langner, Circuit Court of Appeals,
Fifth Circuit (February
, 1930), 37 Federal Reporter (2d), page
714.— W . E . Langner was employed by the Baker Tow Boat Co.

(In c.) as a carpenter to do repair work on its boats at the plant o f
a shipbuilding company on Pinto Island, which is across the Mobile
River from the city o f Mobile,

Ala.

The boat company had an

150

DECISIONS OF THE COURTS

agreement with the shipbuilding company whereby it paid a per
centage of wages to the shipbuilding company as compensation for
the use of its plant. The shipbuilding company owned and operated
a launch on the river between Mobile and Pinto Island for the con
venience of its own employees but also permitted the tow-boat
company’s employees to ride free of charge. Langner was injured
while riding in the launch on the way to his work, when it struck
an obstruction in the river.
Langner filed suit against the Baker Tow Boat Co. (Inc.) to re
cover damages for the injury, and the United States District Court,
Southern District of Alabama, rendered judgment in his favor on the
theory that the relation of master and servant existed, for the time
being, between the tow-boat company and the man in charge of the
launch. This relation was brought about by the joint adventure
of the shipbuilding company and the tow-boat company under their
agreement for the repair of the latter’s boats at the former’s ship
building plant.
The tow-boat company appealed the case to the Circuit Court of
Appeals, Fifth Circuit, where the decree of the district court was
reversed. The circuit court held that the relation of master and
servant did not exist as the parties to the agreement were neither
partners nor joint adventurers; the payment by the tow-boat com
pany of a percentage of the wages of its employees to the ship
building company was a mere method of providing compensation
for the use of the shipbuilding plant.

E m p lo y e r s’ L i a b i l i t y — V o l u n t e e r — A u t h o r i t y t o
ire—Blass
v. Pwre OU Co., Supreme Court, Madison Cowrdy, New York (Janu
ary 8, 1929), 232 New York Supplement, page 332.— Robert C. Bloss
and one Diefendorf were copartners, conducting a garage at Chittenango, N. Y . The Pure Oil Co. was installing a gasoline pump on
their garage premises. The work was in charge of a Mr. Salisbury
and one or two assistants. In laying the pipe it was necessary to
raise a cement block from the walk on the garage premises. Salis
bury came into the garage and asked Bloss and Diefendorf to help
raise it, which they did. As the block was being lowered it got out
of control of the men, and Salisbury shouted a warning to let go.
The block was dropped, striking Bloss’s hand and foot and causing
injuries.
filed suit against the Pure Oil Co., alleging his injury
was caused by the negligence of the employees of the Pure Oil Co.
The company alleged as a defense that its employee had no authority
to engage the services of Bloss, which made Bloss a mere volunteer,

EMPLOYERS* LIABILITY

151

and if by reason of an emergency Salisbury did have this authority,
then Bloss became an employee and was subject to the fellow-servant
rule.
The court held that Bloss was not a mere volunteer, as he had a
right to be there. Regarding this, the court said :
The cases which have held the doctrine invoked by the defendant
herein have generally been where those rendering the emergency
aid were persons who had otherwise no relation to or essential in
terest in the work being done. Perhaps it was to discourage inter
lopers (well meaning and otherwise) from acquiring rights which
otherwise they could not claim that this common-law rule was so
rigidly applied.
However that may be, I feel that the rule should not apply to
the case at bar. The plaintiff and Diefendorf had an interest in
the work being done. When the emergency arose which necessitated
their help, and when requested by defendant’s foreman, it was right
and proper that they should respond. Plaintiff’s status was more
than that of a mere volunteer. By no stretch of the imagination
can it be said that he was an employee of the Pure Oil Co. Being
properly where he was, it was the duty of the defendant’s servants
to do their work in such a way as not to negligently injure him.
The case of Cannon v. Fargo (222 N. Y . 321, 118 N. E. 796) was
cited by the court. In that case a railway gatekeeper was injured
while helping the express company’s servants in unloading the ex
press baggage. In that case the court said:
While such a man * * * might thus incidentally be of assist
ance and help to the express company and relieve it from some of
its work, yet the widest stretch of the ad hoc doctrine would never
make such an employee a servant of the express company. Such a
theory would be so inconsistent with the actual facts as to render
the whole doctrine an absurdity. * * * The plaintiff in this case
was neither loaned nor hired to the express company, nor was he
subject to the direction and orders of the express messenger. The
fact that the express messenger called the plaintiff at times and
might have given him instructions how to lift out the packages did
not change the relationship.
In concluding the opinion the court held the Pure Oil Co. was not
liable for the injuries to Bloss and the case was dismissed, the court
saying:
Bloss, the plaintiff, was in a sense an employee of his firm, its
agent and servant. I f the master may loan his servant, partly for
his own purposes, as in Cannon v. Fargo, without that servant
becoming the servant of the other master, it must follow that the
plaintiff in part furtherance of his own interests or that of his firm
could give his own services without becoming a servant or employee
of the other party. Therefore, he was not a fellow servant, he was far
from being an interloper, he was more than a mere volunteer, and
he was properly there.

152
E m ployer s ’

DECISIONS OF THE COURTS
L ia b il it y — V

tus —Supornick

olu n teer —

M in o r — E m p l o y m e n t

Sta

v. Supornick, Supreme Court of Miimesota (Novem
ber 30, 1928), 222 Northwestern Reporter, page 275.— Joseph Supornick was arranging for a sale of fire-and-smoke damaged merchandise
stored in a building located in St. Paul, Minn. William Supornick.
his brother, was employed as general agent in charge of the mer
chandise. On Sunday, March 20, 1927, as William Supornick was
preparing to go to the store, his daughter Edna asked for permission
to go with him for the purpose of meeting her cousin. The permis
sion was granted and she accompanied her father to the store, arriv
ing there about 8 o’clock a. m. She remained there until between
12 and 1 o’clock, when she fell into the elevator shaft and received
severe injuries.
Suit was filed by her father in her behalf against Joseph Supor
nick, and the district court, Ramsey County, Minn., rendered a ver
dict awarding damages to the minor. The case was thereupon
appealed to the Supreme Court of Minnesota. The evidence dis
closed that the child had remained at the store “ helping * * *
with the goods,” “ checking bills,” and doing general work in putting
the merchandise in shape for the sale and was injured while directing
some prospective customers to the elevator.
The Minnesota Supreme Court, in affirming the decision of the
district court, said in part as follows:
The theory of plaintiff’s case is that she was an invitee rather than
a licensee. That issue was submitted to the jury and an affirmative
answer is implicit in the verdict. The only question for us is whether
the evidence supports that conclusion.
A ll of plaintiff’s services inured to the benefit of defendant and,
even though plaintiff be considered a volunteer to start with, the
work was done for defendant with the consent of her father, who was
the agent “ in charge ” for him of the work in hand. So, notwith
standing the relationship between father and daughter, the conclu
sion is tenable that the services were accepted by defendant through
his agent, the father.
Plainly, one may go upon the premises of another as a mere
licensee and by remaining there with the consent of the owner and
for his benefit change his position and rights to those of an invitee.
In order to entitle one to the status of a person who has entered
premises or remains thereon by invitation, “ it must appear, it seems,
that his purpose was one of interest or advantage to the owner or
occupant.” [Cases cited.]
Although plaintiff came upon defendant’s premises as a mere vol
unteer, she remained there several hours performing services for his
benefit and with the approval and consent of his agent in charge.
The situation is the same as though plaintiff had worked all of the
forenoon in the immediate presence and with the consent of defend
ant himself. So there are present both the element of the services
being for the benefit of the defendant and his consent to their ren

EMPLOYERS9 LIABILITY

153

dition as they were rendered. Under the authorities those two fac
tors were sufficient to justify the conclusion of the jury that plaintiff
was an invitee and therefore that defendant owed her the duty of
ordinary care.
It does not follow from the foregoing that plaintiff became the
employee of defendant and subject to the workmen’s compensation
law. Under that statute only those are employees who “ perform a
service for hire ” and to whom some “ employer directly pays wages.”
(Gen. Stat. 1923, sec. 4326 (d ).)

Employers’ Liability—W illful Misconduct—Injuries Causing
Death—Fellow Servant—Morris et al. v. Yoimg & De Britton,
Cowrt of Appeal of Louisiana (November 10, 1928), 119 Southern
Reporter, page 277.—Young & De Britton were engaged in road
building by the Louisiana Highway Commission. Lee Morris was
employed by them to perform the duties of foreman of a small squad
of levee laborers near Union, La. In attempting to force one of the
laborers to go on the works Morris cursed and abused the Negro, and
in the course of the argument Morris drew the pistol he was carry
ing and shot him. Thereupon the Negro fired upon Morris and killed
him. An action was brought by Mrs. Tessie Morris as widow, acting
for herself and her three minor children, to recover damages under
the employers’ liability act (Act No. 20 of 1914). Mrs. Tessie Morris
was divorced from Lee Morris in 1910, but claimed the divorce was
not valid and showed that she and the children were dependents.
Following a judgment for the employer the case was appealed from
the Parish of East Baton Rouge to the Court of Appeal of Louisiana
by the widow.
The third and main defense made by the employer to this action
by the widow was as follows:
( 1) That the killing was caused by the said Lee Morris’s willful
intention to injure the Negro (Curley Williams) who killed him.
( 2) That the said injury was caused by the said Lee Morris’s delib
erate breach of statutory regulations affecting safety of life and
limb.
(3) That the said injury was due to the willful misconduct of the
said Lee Morris, and to his illegal and criminal actions.
The evidence presented showed the employer had warned Morris
not to go armed while performing his duties as foreman, and that
Morris knew he was violating a criminal statute in carrying a con
cealed weapon. He had also received express orders to treat the
laborers gently and not to abuse or harass them.
The court found this third defense sufficient to support the judg
ment rendered by the district court and therefore affirmed the
decision.

154

DECISIONS OF THE COURTS

F a c t o r y , e tc ., R e g u la t io n s — P rov id in g S e a ts f o r F e m a le

p lo y e e s — People

v. Wells, Supreme Cou/rt of Michigan (December
3,1929), 227 Northwestern Reporter, page 696.— Carl S. W ells, pres
ident of the Homer Warren & Co., was arrested and convicted in the
recorder’s court of Detroit for his failure to comply with the order
of two inspectors of the Michigan Department of Labor, requir
ing the company to furnish stools or seats in the elevator cabs for
female operators. The statute under which he was convicted pro
vides that all persons who employ females in stores, shops, offices,
or manufactories as clerks, assistants, operators or helpers in any
business, trade, or occupation carried on or operated by them shall
be required to procure and provide proper and suitable seats.
The case was appealed to the Supreme Court of Michigan, which
court reversed the decision of the lower court and held that elevator
operators were not included within the statute. The court said in
part as follows:
The most casual reading of the statute indicates it does not cover
a case of this kind. Defendant was not employing females in a
store as clerks or otherwise; he was not operating a shop; he was
not operating a manufacturing institution; and he was not employ
ing these girls in an office, i f the legislature desires to have girls
employed in elevators covered by the statute, it may be amended;
but the defendant is entitled to any reasonable doubt as to the con
struction of the statute.

Labor Organizations— A c t i o n by o r A g a i n s t — I l l i n o i s C om
merce Com m ission —Sufficiency o f Findings and Orders—Broth
erhood of Locomotive Firemen and Enginemen v. New York Central
R. Co., Supreme Court of Illinois (April 17,1930), 171 Northeastern
Reporter, page 148
23, 1926,

.—On February
the Brotherhood of Lo
comotive Firemen and Enginemen, by Dennis McCarthy, chairman
of the Illinois State Legislative Board, filed a complaint against the
New York Central Railway Co. for its failure to provide adequate
facilities—shower baths, lockers, etc.—for engineers, firemen, and
hostlers at Englewood roundhouse, Chicago, 111., as required to safe
guard the health of such employees and the public. The railway
company filed answer denying the brotherhood was entitled to re
lief, and this was followed by hearings before the Illinois Commerce
Commission. Following the first two hearings of this case a joint
conference was held on December 27, 1926, at which conference rep
resentatives of the brotherhood, the New York Central Railway
Co., and the Illinois Commerce Commission were present. At this
time a memorandum was drawn up and agreed upon between the
representatives of the brotherhood and the railway company as to

LABOR ORGANIZATIONS

155

the necessary improvements properly to safeguard the health of the
employees and the public. The memorandum stated that the com
plaint would be satisfied if the suggested improvements were car
ried out. Without further investigation the Illinois Commerce Com
mission entered an order against the railway requiring it “ to carry
out the aforesaid improvements within a reasonable time.” This
order was sustained by the circuit court of Cook County, and from
this decision and the order of the Illinois Commerce Commission the
railway appealed to the Supreme Court of Illinois, contending that
the Illinois Commerce Commission had no jurisdiction over the mat
ter involved. In support of this contention they argued that no
where in the statute concerning public utilities was any definite or
specific authority given the commission to regulate wash rooms,
lockers, etc., of public utilities, and tjiat—
The Illinois Commerce Commission act was enacted at the same
session of the legislature as the wash-room act (Cahill’s Stat. 1929,
ch. 48, pars. 175-179); that the commerce commission act is a gen
eral statute, whereas the wash-room act is a special statute; that the
general enactment must be taken to affect only such cases within
its general language as are not within the provisions of the par
ticular enactment; and that the subject matter of the present pro
ceeding was consequently governed by the wash-room act to the ex
clusion of the power of the commerce commission to deal therewith.
The court, however, refused to pass upon the powers of the com
merce commission, as neither the findings of the commission nor the
evidence in the record brought the proceedings under the wash
room act. Regarding the memorandum the court said:
In order that the courts may intelligently review the decisions
of the commission, the latter must make its findings sufficiently spe
cific to enable the courts to determine whether such decisions are
based on such findings, otherwise the courts would be helpless in
their efforts to determine that question.
One of the findings of the commission in the present case deals
with an “ understanding and agreement ” between appellant and
appellee; the other is a general finding that present facilities “ are
inadequate and insufficient for the purpose intended.” The order is
that “ the improvements ” be carried out.
A t first glance it might appear that the within order is based
upon a finding of an agreement entered into by appellant. How
ever, the special finding is “ that through conferences and investiga
tions the parties hereto have come to an understanding and agree
ment whereby certain suggested improvements, if carried out, will
satisfy the complaint.” Clearly this can not possibly be construed
as a finding that appellant agreed to do anything. It is merely a
finding that appellee would be satisfied if certain things were done.
In the absence of agreement, if the order is to be supported it must
be upon the finding that the wash room and other facilities pro
vided and now being maintained by the New York Central Eailr
way Co. at their Englewood roundhouse at Chicago, 111., are inade

156

DECISIONS OF THE COURTS

quate and insufficient for the purpose intended.” This is only a
conclusion of law. The inadequacy o f such finding to sustain the
order is established b ™ *
Railways Co. v. Commerce Com. ex
supra, where the commission had
rel. Chicago Motor
made a finding to the effect that “ public convenience and necessity ”
required the operation of motor buses over certain streets in the
city of Chicago. This court said that such finding was not a finding
of fact on which any order granting a certificate of public con
venience and necessity could be based, but was simply a conclusion
drawn from all the evidence, without any finding of fact upon
which the conclusion could be reached. The commission’s order not
containing the necessary findings of fact, it was held void. The
same situation is presented here.
The court held that as the findings of the commission were not
sufficient to support the order entered, such order was consequently
void. The court also said the order was too indefinite and could be
thrown out upon that ground, that—
Even though the question of sufficiency of the findings be left
entirely out of consideration, unless the commerce commission be
held to have power to make and enforce orders characterized by a
very marked degree of indefiniteness, the present one can not be
sustained, and in view of the possibility of further proceedings upon
remandment it is in order to call attention to this deficiency. A p
pellant is first ordered to carry out “ the improvements.” Presum
ably this refers to the improvements outlined in the memorandum
of December 27,1926, but m which it was specifically stated that the
plan should be “ worked up ” for further consideration. * * *
Granting that the order requires an increase in space, and referring
to the testimony for light upon what was really contemplated
thereby, its indenniteness is thus only emphasized. The further ques
tion comes as to what is meant by “ accommodations for those using
same.” What are “ accommodations for those using ” the “ suffi
cient space for 314 lockers” ? Here, again, talk in the testimony
about “ rest-room facilities” only emphasizes the indefiniteness of
the provision.
Unless it conforms to accepted judicial standards of clarity and
definiteness, it does not merit judicial sanction. This order does not
conform to those standards.

L abor

O r g a n iza t io n s — A

c t io n

g a in s t —

M e m b e r s h ip

v. Local No. 13, Jour
neymen Plumbers, Gas and Steam Fitters, and Sprinkler Fitters of
Rochester, N. Y ., Supreme Court, Monroe County, New York
(April 12, 1929), 234 New York Supplement, page 208.— Arthur
Andrews, a member of Local No. 13, Journeymen Plumbers, etc.,
Union, filed suit against the union to restrain it from entering into a
contract with the employers’ association providing for the payment
of compensation to different classes of employees. This contract
R ig h t s — C on trac t

E m p l o y m e n t —Andrews

LABOB ORGANIZATIONS

157

provided for three classes of employees— journeymen, juniors, and
apprentices— and Andrews claimed that under the by-laws of the
national association the classes should be limited to only journeymen
and apprentices.
The union was an unincorporated association of more than seven
members, who, according to Mandell v. Cole (244 N. Y . 221, 155
N. E. 106), were “ liable jointly upon its contractual obligations.”
The general association laws provided that any action against the
union should be maintained against the president or treasurer of the
association.
The court denied relief in this case and dismissed the bill, saying
as follows:
When an unincorporated association is named as defendant, with
out joining therein the individual member thereof, there is no party
before the court capable of being sued, and the mere fact that the
summons and complaint in such action are served upon the presi
dent or treasurer of the association does not make that officer a rep
resentative of the members or authorize him to appear in their
behalf. The officer must be sued as such in order to empower him
to bind the members and property of the association by his acts.
Furthermore, the complaint in this action does not state who is
president of the defendant association, thus showing that the action
is not brought against the president of the association. As the suit
was not commenced against the president of the defendant, service
upon the individual holding that office did not confer upon the court
jurisdiction of the members of the defendant association.
A contract similar to the one sought to be enjoined is annually en
tered into between the employers and the local union. The plaintiff,
a member of the local union for many years, has never taken any step
to have the national officers or organization determine whether such
contract is in conflict with the constitution and by-laws of the parent
body.
The plaintiff has a right to appeal to the general president of the
United Association of Journeymen Plumbers and Steam Fitters of
the United States and Canada. From this decision an appeal may
be taken to the general executive board of the united association
and from the decision of that body to the convention of the united
association.
Generally a member of an association must exhaust his remedies
within the organization before appealing to the courts. This is so,
even though property rights may be jeopardized by the delay.

L abor O r g a n iza t io n s — B o y co t t — I n j u n c t io n — R e st r a in t
T rade —Rockwood

Corporation of St. Louis v. Bricklayers'* Local
Union No. 1 of St. Louis et al., Circuit Court of Appeals (May IS,
1929), SS Federal Reporter (2d), page 26.— The Rockwood Corpora
tion of St. Louis manufactured out of gypsum a fireproof building
66588°—31----- 12

158

DECISIONS OF THE COURTS

material called “ Rockwood lumber.” It brought an action in re
liance on the Sherman Antitrust Act and the Clayton Act (15
U. S. C. A ., secs. 1, 15) against three local labor unions charging
them with a conspiracy to inaugurate a boycott of “ Rockwood lum
ber” and to call strikes on building construction wheresoever the
material might be used.
Complainant further states that the defendants acting individually
and for and in behalf of their associations have unlawfully, wrong
fully, and intentionally conspired with each other, and with various
other persons to the complainant unknown, to injure and boycott
complainant and the products of its factory, and to prevent com
plainant to carry on its business in interstate commerce, and to pre
vent the installing of the products of complainant in buildings being
erected in the city of St. Louis, and St. Louis County, in the State of
Missouri.
A controversy in February, 1927, at a garage then under construc
tion in St. Louis was mentioned in the bill and relied on as tending
strongly to support the main charge. The facts regarding this
controversy were as follows:
The construction contract called for plaintiff’s material in parti
tions in the garage mentioned in the pleadings, and carpenters began
to install it. Brick masons were also at labor on the building. The
members of the two crafts there present entered into a controversial
discussion as to which had the right to put in the material. De
fendant McNamara, agent of defendant Bricklayers’ Local Union,
No. 1, appeared. It is not clear whether he arrived before or after
the discussion between workmen was begun. He took up the claims
of the bricklayers and insisted they should put in the partitions.
The subcontractor for the brickwork seems to have joined with Mc
Namara. The bricklayers on the job quit work for a while; some
testified for about two hours while the discussion was on, others that
they laid off for a day. No strike was called. The result was the
carpenters withdrew and the bricklayers put in the partition.
The bill was dismissed by the District Court of the United States,
and the Rockwood corporation appealed to the Circuit Court of A p
peals. Judge Lewis, in affirming the opinion of the lower court,
quoted from the opinion of the district judge, in part, as follows:
In short, there is not a scintilla of evidence connecting any person
or organization with the act of interference or of calling tne strike
except defendant McNamara alone. Since I find the record to be
utterly barren of any evidence whatever of concerted action here. I
find no restraint of interstate commerce, and I find no evidence oi a
conspiracy. It is but fair to say that all of the acts alleged against
McNamara are denied. I have conceded for argument’s sake that
the fact that the bricklayers were called off for a short time by
defendant McNamara has been proven. He acted upon his own initi
ative and upon his own responsibility, and his acts were not even
ratified by the defendant union or by ,any other defendant in the
case. As I construe the Sherman Antitrust Act, it contemplates

LABOR ORGANIZATIONS

159

concerted action. There is no proof here of any concert of action
between defendant McNamara and any other defendant in the case.
Judge Lewis concluded the opinion by saying:
Moreover, conceding a conspiracy between Bricklayers’ Local
Union, No. 1, and its agent McNamara, that conspiracy was not to
restrain or interfere with interstate commerce. The alleged con
spirators had no such thought, intent, or purpose. They were en
tirely willing, so far as the proof shows, that plaintiffs material
should be used in St. Louis or elsewhere. They had no grievance
other than the claim that as between crafts bricklayers should install
the material. The controversy was wholly between bricklayers and
carpenters, and the result therefrom, in so far as it affected plaintiff,
was an indirect, remote, and unintended obstruction.

L abor

O r g an iza t io n s — C ollective A

g r eem en ts —

C oercion — I n

j u n c t io n — Texas

& N. O. R. Go. et al. v. Brotherhood of Railway
and Steamship Clerks, etc., et al., Supreme Court of the United
States (May 26,1930), 50 Supreme Court Reporter, page 1$7.— The
Brotherhood of Railway and Steamship Clerks, Freight Handlers,
Express and Station Employees, Southern Pacific Lines in Texas
and Louisiana brought suit in the District Court for the Southern
District of Texas against the Texas & New Orleans Railroad Co. to
obtain an injunction restraining the railroad company from inter
fering with or influencing their clerical employees in the matter of
their organization and designation of representatives for the pur
poses specified in the railroad labor act of 1926 (44 Stat. L . 577).
For a number of years the Brotherhood of Railway and Steamship
Clerks had been authorized by a majority of the railway clerks to
represent them in all matters relating to their employment. In the
latter part of 1925 the brotherhood applied to the railroad company
for an increase of wages for the railway clerks. The application
was denied, and subsequently the controversy was referred to the
United States Board of Mediation created under the railroad labor
act of 1926. During the pendency of the wage dispute the railroad
company undertook the formation of a company union known as
the Association of Clerical Employees, Southern Pacific Lines. The
brotherhood contended that in accomplishing this the railroad com
pany had endeavored to intimidate its members, to coerce them to
withdraw from the brotherhood, and to make the company union
their representative in dealings with the railroad company, all of
which was a violation of the third paragraph of section 2 of the
railroad labor act which provided that—
Representatives, for the purpose of this act, shall be designated by
the respective parties in such, manner as may be provided in their
corporate organization or unincorporated association, or by other

160

DECISIONS OF THE COURTS

means of collective action, without interference, influence, or coer
cion exercised by either party over the self-organization or designa
tion of representatives by the other.
The District Court for the Southern District of Texas (see B. L.
S. Bui. No. 517, p. 127) granted a temporary injunction against
the railroad company. Subsequently the railroad company refused
to recognize the brotherhood, stating that the brotherhood did not
represent a majority of the clerical employees, and recognized only
the company union, which the company claimed represented a major
ity of the clerical employees. Contempt proceedings were brought
in the district court, and it was found that the railroad company
had violated the order of injunction. The court (see Labor Review,
June, 1928, pp. 96-98) ordered the railroad to disband its company
union and to deal with the brotherhood “ until such time as these
employees by a secret ballot, taken in accordance with the further
direction of the court, and without the dictation or interference
of the railroad company and its officers, should choose other
representatives.”
The temporary injunction against the railroad was later made
permanent. Thereupon an appeal from such order was taken by
the railroad company to the Circuit Court of Appeals for the Fifth
Circuit (see Labor Review, October, 1929, pp. 78-80), and there the
decree of the district court was affirmed, holding that the injunction
was properly granted.
The railroad company thereupon carried the case to the United
States Supreme Court. The contention relied upon by the railroad
company was that paragraph 3 of section 2 of the railroad labor act
conferred merely an abstract right not intended to be enforced by
legal proceedings; that the act, in so far as it attempted to prevent
either party from influencing the other in the selection of representa
tives, was unconstitutional, because it sought to destroy a right
guaranteed by the first and fifth amendments of the United States
Constitution.
Whether the statute imposed a legal duty upon the railroad com
pany, enforceable by judicial proceedings, the United States Supreme
Court in an opinion by Mr. Chief Justice Hughes said, was the im
portant question of law for the court to consider. The court, after
reviewing two prior cases (Pennsylvania Railroad Co. v. U. S. Rail
road Labor Board (261 U. S. 72) and Pennsylvania Railroad System
and Allied Lines Federation No. 90 v. Pennsylvania Railroad Co.
(267 U. S. 203)) decided by the court, and a brief discussion of events
which led to the enactment of the railroad labor act of 1926, said
that—
It is thus apparent that Congress, in the legislation of 1926, while
elaborating a plan for amicable adjustments and voluntary arbitra

LABOR ORGANIZATIONS

161

tion of disputes between common carriers and their employees,
thought it necessary to impose, and did impose, certain definite obli
gations enforceable by judicial proceedings. The question before us
is whether a legal obligation of this sort is also to be found in the
provisions of subdivision 3 of section 2 of the act (45 U. S. C. A .,
sec. 152, subd. 3) providing that, “ Representatives, for the purpose
of this act, shall be designated by the respective parties * * *
without interference, influence, or coercion exercised by either party
over the self-organization or designation of representatives by the
other.”
It is at once to be observed that Congress was not content with the
general declaration of the duty of carriers and employees to make
every reasonable effort to enter into and maintain agreements con
cerning rates of pay, rules, and working conditions, and to settle dis
putes with all expedition in conference between authorized repre
sentatives, but added this distinct prohibition against coercive meas
ures. This addition can not be treated as superfluous or insignificant,
or as intended to be without effect. * * * While an affirmative
declaration of duty contained in a legislative enactment may be of
imperfect obligation because not enforceable in terms, a definite
statutory prohibition of conduct which would thwart the declared
purpose oi the legislation can not be disregarded. The intent of
Congress is clear with respect to the sort of conduct that is prohibited.
In reaching the conclusion as to the intent Congress had in mind
the court said that—
Freedom of choice in the selection of representatives on each side
of the dispute is the essential foundation of the statutory scheme.
A ll the proceedings looking to amicable adjustments and to agree
ments for arbitration of disputes, the entire policy of the act, must
depend for success on the uncoerced action of each party through its
own representatives to the end that agreements satisfactory to both
may be reached and the peace essential to the uninterrupted service
of the instrumentalities of interstate commerce may be maintained.
There is no impairment of the voluntary character of arrangements
for the adjustment of disputes in the imposition of a legal obligation
not to interfere with the free choice of those who are to make such
adjustments. On the contrary, it is of the essence of a voluntary
scheme, if it is to accomplish its purpose, that this liberty should lie
safeguarded. The definite prohibition which Congress inserted in
the act can not therefore be overridden in the view that Congress in
tended it to be ignored. As the prohibition was appropriate to the
aim of Congress, and is capable of enforcement, the conclusion must
be that enforcement was contemplated.
The Supreme Court cited several cases to emphasize the fact
that there was no doubt as to the constitutional authority of Con
gress to enact the prohibition of the statute, and continuing declared
that—
Exercising this authority, Congress may facilitate
settlements of disputes which threaten the service of
agencies of interstate transportation. In shaping its
this end, Congress was entitled to take cognizance of

the amicable
the necessary
legislation to
actual condi

162

DECISION'S OF THE COURTS

tions and to address itself to practicable measures. The legality
of collective action on the part of employees in order to safeguard
their proper interests is not to be disputed. It has long been recog
nized that employees are entitled to organize for the purpose of
securing the redress of grievances and to promote agreements with
employers relating to rates of pay and conditions of work. (Ameri
can Steel Foundries v. Tri-City Central Trade Council, 257 U. S.
184, 209, 42 Sup. Ct. 72.) Congress was not required to ignore this
right of the employees but could safeguard it and seek to make their
appropriate collective action an instrument of peace rather than of
strife. Such collective action would be a mockery if representation
were made futile by interferences with freedom of choice. Thus
the prohibition by Congress of interference with the selection of
representatives for the purpose of negotiation and conference between
employers and employees, instead of being an invasion of the con
stitutional right of either, was based on the recognition of the rights
of both.
The railroad labor act of 1926, the court said, does not interfere
with the normal exercise of the right of the carrier to select or
discharge its employees, and—
The statute is not aimed at this right of the employers, but at the
interference with the right of employees to have representatives of
their own choosing. As the carriers subject to the act have no con
stitutional right to interfere with the freedom of the employees
in making their selections, they can not complain of the statute on
constitutional grounds.
The United States Supreme Court, in concluding the opinion,
referred to a minor point raised by the railroad company relative
to the granting of the injunction in violation of section 20 of the
Clayton Act (29 U. S. C. A ., sec. 52). The section provides that no
injunction should be granted in any case involving employment
disputes, unless an irreparable injury to property or a property
right was threatened. The court, however, was of the opinion that
it was not necessary to pass upon this point—
For if it could be said that it was necessary in the present instance
to show a property interest in the employees in order to justify
the court in granting an injunction, we are of the opinion that there
was such an interest, with respect to the selection of representatives
to confer with the employer in relation to contracts of service, as
satisfied the statutory requirement.
The decree of the lower court was therefore affirmed.

L abor O r g a n iz a t io n s — I n d u c in g
C on trac t —Moore

B reach

C o n t r ac t — O p e n -

et al. v. W hitty et al., Supreme Court of
Pennsylvania (January 6, 1930), 11$ Atlcmtio Reporter, page 93.—
The W . P. Whitty Co. had a contract for the erection of certain
apartments in the city of Philadelphia. The William Moore Co.,
sh o p

LABOR ORGANIZATIONS

163

being engaged in the business of supplying materials and labor for
the installation of tile and marble in buildings, submitted estimates
for the furnishing and equipping of the bathrooms in the buildings.
Contracts were drawn on printed forms, which contained clauses to
the effect that all work should be done by union labor. Moore called
W hitty’s attention to the fact that, when they were asked to estimate
on the work, Whitty was told they would not do so unless they
could perform the contract “ under open-shop principles.” Moore
stated, however, that they had worked with nonunion men on other
buildings where union men were employed without having trouble
and believed they could do so on these buildings. The clause regard
ing union labor was then stricken out of both contracts before being
signed. Subsequently it appeared the labor union threatened to call
a strike if the William Moore Co. was permitted to proceed with its
work by nonunion men. The W . P. W hitty Co., yielding to the
union’s demands, refused to permit the William Moore Co. to pro
ceed with the contract and arranged to have the work done by
employers of union labor.
Action was instituted in the Philadelphia County court of common
pleas to recover damages for the breach of the contract, and the court
rendered a judgment in favor of the William Moore Co., refusing to
hold that the change in labor condition was sufficient to excuse the
breach of the contract by the W . P. Whitty Co.
The case was appealed to the Supreme Court of Pennsylvania,
where the judgment of the lower court was affirmed. The court said
that the general rule is that mere inconvenience, though it works a
hardship on a party, does not excuse him from the performance of
an absolute and unqualified undertaking to do a thing which is both
lawful and possible. Continuing, the court said:
The fact that the clause requiring employment of only union
workmen was stricken out of the contracts indicates the parties in
tended to eliminate this condition, and left plaintiffs free to employ
whatever labor they saw fit.
Both parties to the contract realized the uncertainty of the labor
situation and the possibility of difficulties arising when union and
nonunion men were expected to work on the same building. They, in
fact, discussed the matter, and plaintiffs’ position as employers of
nonunion men was made clear. Their bid was given with the under
standing that they operated an open shop and, even though they
stated at the time the contract was signed that they had worked on
union jobs with nonunion men and had no difficulty, such statement
can not be construed as a guaranty on their part that they assumed
responsibility of labor difficulties arising under the contract in ques
tion. Defendants were fully informed of all the circumstances and
agreed to omit the clause requiring the employment of union work
men. Having failed to provide against the very contingency which
both parties were aware might occur, the happening of such con

164

DECISIONS

the

COURTS

tingency can not be set up as an excuse for failure to perform.
Furthermore, there is no such impossibility of performance as is
required within the rules governing such defense. There was no
evidence to show inability to complete the work without the aid of
union men, or even to show that it would have been impossible to
complete it with union labor working with nonunion employees.

a bo r

O r g a n iz a t io n s — I n j u n c t i o n — A

g a in s t

reach

C on

I n j u n c t i o n — Ribner v.

Racso Butter cfe Egg Co.
(Inc.), Supreme Court of New York, Special Term (December 20,
1929), 238 New York Supplement, page 132.— On the 28th of
March, 1929, Ribner, acting on behalf of the Retail Dairy and
Grocery Clerks’ Union of Greater New York, Local No. 338, entered
into an agreement with the Racso Butter & Egg Co. (Inc.), regard
ing dealings with their employees. The agreement contained condi
tions and stipulations covering hours of work, wages, and other con
ditions of employment, including an agreement that the company
would be run on a union basis and all employees be members of
Local No. 338.
In September, 1929, three employees were suspended by the union
for failure to pay their dues and fines. The company was notified
of the expulsion from membership in the union and was requested
to discharge the three employees. Upon the failure of the company
to comply with this request, the union brought action requesting an
injunction to compel the company to carry out the terms of the
agreement. The union also alleged that the company had employed
as dairy and grocery clerks persons who were not members of the
union.
The company defended this action by contending that the union
was not entitled to an injunction to force them to carry out the con
tract but should sue for the breach of the contract and recover money
damages. The court granted injunctive relief and said that in a
court of justice the employer and the employee stand on an exact
equality, each case to be decided upon the same principles of law
impartially applied to the facts of the case, irrespective of the
personality of the litigants, and as the court would render assistance
to the employer in such a case the employees should be rendered the
same assistance by the court.
Continuing, the court said:
tract—

i g h t to

The plaintiff in the instant case seeks like relief, namely, that the
defendant be restrained from breaching the contract under which
the defendant agreed to employ only members of the plaintiff union
in good standing for one year from the 29th day or March, 1929.
I am of the opinion that equity affords the only adequate remedy
in the premises. The injury is irreparable and continuous. To

165

LABOR ORGANIZATIONS

deny to the plaintiff union the right to invoke the aid of a court of
equity to prevent an unlawful violation of its contract, it must neces
sarily follow that the right of collective bargaining will be seriously
impaired, leaving the labor union to resort solely to strikes and
picketing, which would entail not only serious financial loss but also
protracted and needless friction and possible breaches of the public
peace and security.
Legislatures and courts recognize the right of labor unions to enter
into lawful contracts on behalf of its [their] members with the em
ployer for the purpose of promoting the welfare of their mem
bers, and in furtherance thereof such agreements should be clothed
with leg;al sanction and afforded the mutual protection of the
law. It is in the interest of good government that labor unions and
employers should be afforded this reciprocal protection in their law
ful contractual undertakings. It is proper and praiseworthy that
a union, as in the instant case, having entered into a contract with
the employer and feeling aggrieved because of an alleged breach
thereof by the employer, should come into a court of equity and
there seek the protection of its rights rather than to resort to picket
ing and strikes to redress its wrongs, with the resultant effect upon
the orderly conduct of business ana inconvenience to the public.
Under the terms of the contract here presented there is mutuality
of obligation. There should be mutuality of remedy. The contract
is valid. The power of a court of equity to issue an injunction to
prevent such alleged violation is well established.

L abor

O r g a n iz a tio n s — I n j u n c t i o n — A g a i n s t

S e c o n d a ry

B oy

Edelstein v. Gilbnore et
al., District C ow t, Southern District of New York (January 25,
1929), 36 Federal Reporter (2d) , page 81.— W illia m E delstein acted
as the personal representative o f actors and actresses. His duties as

c o tt s — B r e a c h

C o n t r a c t — C oercio n —

such included fu rn ish in g advice to his clients and assistance in a
variety o f m atters, such as obtain in g em ploym ent, procu rin g proper
p u blicity, sm oothing out troubles w ith m anagers and producers, etc.

He received as com pensation fo r such service a percentage o f the
earnings o f the artist under contracts lastin g sometimes as lon g as
10 years.

T h e A c to r s’ E q u ity A ssociation is a labor union h avin g

alm ost absolute control o f the su p p ly o f actors and actresses in N ew

York C ity .

O n Septem ber

21, 1928, the A c to r s’ E q u ity A ssociation

adopted the fo llo w in g reso lu tion :

Resolved, That on or after the 9th day of October, 1928, any
member securing an engagement in the legitimate and musical com
edy fields through any employment agent in New York City or
environs and who pays any commission to any employment agent
who does not hold a permit from Equity to do his business as such
with our members, or who pays, directly or indirectly (i. e., either
in money or in kind), more than the commission set by the asso
ciation is guilty of an act prejudicial to the welfare of the association

166

DECISIONS OF THE COURTS

and will in the discretion of the council be either censured, sus
pended, expelled from membership, or otherwise punished.
This resolution is not to be construed as affecting agreements made
prior to the date named in the above resolution with agents or per
sonal representatives who do not take out our permits.
Edelstein filed suit against Frank Gillmore, individually and as
executive secretary and treasurer of the Actors’ Equity Association,
seeking an injunction to prohibit the association from enforcing the
resolution. There was conflict in the evidence as to whether or not
the resolution as adopted contained the last paragraph quoted above.
However, it was the threatened enforcement of the entire resolution
that resulted in this suit.
Edelstein contended that the resolution would deprive personal
representatives of any new business in the legitimate and musical
comedy fields unless they surrendered their rights under old con
tracts, because in the absence of a license neither artists nor producers
would dare deal with him as to new business.
Gillmore sought to justify the action of the association on the
ground that its members had the right to agree among themselves not
to patronize a personal representative who did not comply with their
requirements, provided their purpose was merely to benefit them
selves and not to injure him even though injury to him might
indirectly result.
District Judge Frank J. Coleman, in rendering the opinion of the
court granting a preliminary injunction, said in part:
It is apparent to me that the purpose which the Actors’ Equity
Association has in mind is not merely to regulate the future agree
ments between its members and personal representatives but also
by coercion to compel personal representatives to agree to abandon
previously made contracts, and the means of coercion is the threat
of exclusion from new business.
Consider the case of a personal representative who may be entirely
qualified to act as such and willing to abide by the association^
regulations as to new business, but who refuses to give up his legal
rights in old contracts. Can it be said that a combination to deprive
him of new business because of his refusal is not punitive and not
directed primarily to the purpose of injuring him? His refusal
would not make him less serviceable to new clients and to the pro
fession generally, nor would it make the terms upon which his serv
ices might be procured in the future less advantageous than they
otherwise would have been. In such a case the purpose of the com
bination would be to extort from him an abandonment of rights
which the law secures to him. This I find was actually one of the
purposes of the Actors’ Equity Association in adopting the resolution
and the measures under it, and for that reason, if for no other, the
preliminary injunction should issue. Defendant’s contention that,
however unlawful the conduct of the association, they individually
should not be restrained because they are acting only in a representa
tive capacity is entirely meritless.

DECISIONS OF THE COURTS

167

L a bo r O r g a n iz a t io n s — I n j u n c t i o n — A g a in s t S t r i k e s — Willson
<& Adams Co. et al. v. Pearce et oil., Supreme Court, New York
(.August 10, 1929), 237 New York Supplement, page 601.— The W ill
son & Adams Co. and 27 other dealers in building material, conduct
ing business in Westchester County, N. Y ., brought this action against
Pearce individually and as business agent of Local No. 456 of the
International Brotherhood of Teamsters, etc., of America, and also
against the local agents of the unions of other building trades. This
action was for an injunction to restrain alleged unlawful acts of the
unions. The companies charged:

(1) That the council, acting for all defendants and union mem
bers has called strikes of all trades of building operations to which
plaintiffs, through nonunion drivers or chauffeurs, have delivered
materials, regardless of the fact whether such trades used the deliv
ered materials or not; (2) that in some instances strikes have been
called upon other jobs oi a given contractor, even though such mate
rial handled by nonunion drivers had not been delivered to the other
jobs; (3) that threats have been made to persons conducting building
operations that strikes would be called of all trades thereon if mate
rials furnished by a given plaintiff were used in the operations, this
because the delivery agencies of the given plaintiff were nonunion in
character; (4) that willful attempts have been made to induce
breaches of contracts for materials between plaintiffs and their cus
tomers, builders; and (5) that defendants have tied up operations in
instances where builders have not complied with the defendants’
attempts asserted by plaintiffs to be unlawful.
It appeared that between 1923 and 1925 the agents of the unions
called strikes of all trades on various jobs to which there were non
union deliveries by persons other than those connected with Willson
& Adams Co. and the other companies in the suit. In 1925 employees
on certain jobs to which certain of the above-mentioned companies
were supplying materials struck because of nonunion deliveries.
Following this a meeting was called and the union agents stated
that these strikes were mere incidents in a general plan to force
unionization of all the yards in the county and that the employers
must organize them, and it was indicated that if necessary the union
would injure the companies’ business in order to compel them to
unionize their yards. Following this meeting the companies applied
to the court for injunctive relief:
In discussing the question as to whether the acts of the union done
or threatened as they appeared in the evidence, are countenanced by
law, the court said in part as follows:
Upon the whole case I determine (a) that, whatever may have been
their secondary purpose, the primary purpose of the defendants, act
ing in concert in their said activities, was wholly unlawful; (S) that
their real object was to injure and to threaten to injure, to destroy
and to threaten to destroy, the business of the plaintiffs by making it

168

DECISIONS OF THE COURTS

undesirable for plaintiffs’ customers to do business with plaintiffs—
all to the end that the plaintiffs, in order to relieve themselves and
their property rights from the detrimental consequences of such acts,
would compel, as demanded by the defendants, the teamsters and
other persons in plaintiffs’ employ handling goods to join Local No.
456, the teamsters’ union; and (e) that the existence or such primary
purpose and of such object mate this a proper case for a permanent
injunction restraining the defendants from prosecuting further their
said illegal activities.
The court also quoted from the case of National Protective Assor
ciation of Steam Fitters and Helpers v. Cumming (170 N. Y . 315, 63
N. E. 369) wherein the law relating to what the workingman may
properly do and refrain from doing is stated in part as follows:
Either employer or workman, where the employment is for no fixed
period, may terminate the contract; the workman’s right to quit is
absolute; no one may demand a reason therefor; what he may do
alone he may do in combination with others provided they have no
unlawful object in view; workmen have a right to organize to secure
higher wages, shorter hours of labor, and to improve their relations
with their employers; they have the right to strike, if the object is
not to gratify malice or inflict injury upon others, but to secure better
terms of employment for themselves; a peaceable and orderly strike,
not to harm others, but to improve their own condition, is not illegal.
In conclusion the court said:
In the conceded or proved acts of the defendants herein, as I have
found them above, the defendants had not the immediate and pri
mary purpose and object of higher wages, shorter hours, improvement
of relations and conditions, or betterment of terms of employment of
the teamsters of the plaintiffs. The several general strikes which
were actually called, as well as the numerous others which were threat
ened by the defendants, were for the sole purpose and with the one
object of coercing the plaintiffs to unionize their yards. Such pur
pose and such object were to be attained and accomplished by the
infliction of actual, and the threat of further, injury and harm upon
the plaintiffs, whose customers, in effect, were to be induced to leave
the plaintiffs for persons having union yards and making union de
liveries. In law the acts of the defendants were wanton and mali
cious. They were not done in good faith. High authority has de
clared such acts to be illegal and restrainable by injunction.
Judgment was therefore rendered in favor of the Willson & Adams
Co., and other employers; however, the court said, “ nothing in the
judgment about to be directed will be construed as hampering the
labor unions involved from in any way pursuing activities which the
courts have declared legal.”
In a Maryland case the court decided that employees have the right to
organize labor unions and of their own free will to engage in a strike for the
purpose of organization and during the process of such strike peacefully to
picket and persuade the remaining employees to join them, “ but the law does
not permit either employer or employee to use force or threats of violence.

LABOR ORGANIZATIONS

169

intimidation, or coercion.” It was held that an injunction against a labor
union, though broad and general in its terms, would be proper if it prohibited
only specific unlawful acts; however, if the terms were so broad that it might
appear that all picketing, whether peaceful or otherwise, was prohibited, the
injunction would require modification. (International Pocketbook Workers’
Union v. Orlove (1930), 148 Atl. 826.)

abor

O r g a n iz a t io n s — I n j u n c t i o n — L

ockout—

I n d u c in g B r e a c h

Adler cfe Sons Co. v. Maglio et al., Supreme
Court of Wisconsin (December 3, 1929), 228 Northwestern Reporter,
page 123.— The David Adler & Sons Co. had for many years been a
manufacturer of men’s ready-made clothing. For some years the
relation of the union employees of the company had been regulated
by contracts made with the Amalgamated Clothing Workers of
America. The last of these contracts by its terms expired on April
30, 1928.
As early as January, 1928, the company had determined not to
renew the contracts with the union but to conduct its business as an
open shop. It kept this decision secret, realizing that such a step
would probably be followed by a controversy with organized labor.
It prepared to meet such a struggle by contracting to have a part
of its clothing manufactured elsewhere. Soon thereafter it dis
mantled one of its shops and shipped the machinery used therein
to another city, where it was used in manufacturing clothing. It
discharged over 300 workers, refused to rotate workmen or to attempt
to equalize work among its employees as it was required to do by
its contract.
The employees became restive because of the refusal of the com
pany to abide by the terms of the contract, and finally, after the
officers of the union had tried in vain to secure redress from the
company, a meeting of the employees was held on April 16, 1928.
The company did not await the outcome of this meeting. It
sought to make the meeting a justification for locking out all of its
employees regardless of whether they had participated in this meet
ing or not. It immediately notified the officials of the Amalgamated
Clothing Workers that the existing contract with the union was
terminated upon the sole claim that participation by some of the
company’s employees in this meeting constituted a “ walkout ” and
“ a serious and substantial breach of the contract.”
This resulted in a general strike, followed by action in the circuit
court for Milwaukee County. The case was appealed to the Supreme
Court of Wisconsin, both parties seeking to reverse portions of an
interlocutory judgment which enjoined the union from interfering
with property and property rights of the company and determined
of

C o n t r a c t — David

170

DECISIONS OF THE COURTS

that the company was liable to its former employees for their
wrongful discharge.
A fte r reviewing the acts o f the company the court said th a t-r

It began a course of deliberate and systematic breaches of the
contract then in existence, with the apparent purpose of inducing its
employees to take some action that would throw upon them the onus
of having precipitated this labor controversy.
Continuing, the court said:
The plaintiff had the undoubted right to determine that its busi
ness should be run as an open shop, just as the employees had un
doubted right to refuse to sign the proposed contract and to insist
upon their rights under the existing contract. But neither the
plaintiff nor its employees had a right to resort to violence or un
lawful means to secure the result desired by them.
Had plaintiff exercised its legal right to determine that its busi
ness would be conducted as an open shop, and at the same time
refrained from breaking its contract, and from wrongfully locking
out its employees, a different question would have been presented.
Had plaintiff not pursued a course of conduct naturally calculated,
if not deliberately intended, to bring about the very conditions which
led it to appeal to the courts, equity would entertain jurisdiction
and exercise its extraordinary powers, so far as essential to protect
the rights of the plaintiff.
The things from which plaintiff seeks relief are clearly the fruit
of its own wrongful course of conduct. The whole controversy arises
out of the disturbance of its relations with its former employees,
which was interfered with and finally completely severed because
of the wrongful conduct of the plaintiff. Plaintiff started this con
troversy at a time when the employees were making no demands of
any kind. When they were locked out, they asked no more than
that the plaintiff do those things which it had contracted to do.
In conclusion, the court said:
It is clear, as found by the trial court, that these “ acts and
breaches of contract on the part of the plaintiff * * * in an
appreciable manner affect the equitable relations subsisting between
the parties and are intimately connected with the other matters in
issue herein.” This finding brings the case within the rule stated
in Huntzicker v. Crocker (135 Wis. 38,115 N. W . 340). If, as plain
tiff asserts, it has kept within its legal rights in all that it has at
tempted to accomplish, the fact remains that in so doing it has
pursued a course of conduct which is such as will lead a court of
equity to leave the plaintiff to the remedies which the law affords
to it. Under the facts as established by this record, the plaintiff
is not entitled to relief in equity.
Judgment of the lower court was reversed.

L abor O r g a n iza t io n s — I n j u n c t io n — W
U n io n R ules — Barker

ages —

a l id it y o f

L abor

Painting Co. v. Local No. 73b, Brotherhood
of Painters, Decorators and Paperhangers of America et al., Circmt

LABOR

o r g a n iz a t io n s

171

Court of Appeals, Third Circuit (August 12, 1929), SJf Federal
porter (2d), page S.— The Barker Painting Co., a corporation of
New York, with its home office in New York City, had a contract
for painting at Somerville, N. J. The job was about 30 per cent
completed when the union called off its men by force of the offend
ing rules which required a contractor to pay the wage rate of his
home district or that of the locality of the work, whichever is higher.
The Barker Co. filed a bill in equity and the trial judge issued a
preliminary injunction restraining the workmen from observing
the union rule and from not returning to work. However, all the
men save one returned to work and completed the job. The work
was completed before the United States District Court for the New
Jersey District entered a final decree dissolving the injunction and
dismissing the bill. The Barker Painting Co. appealed the caae
to the Circuit Court of Appeals, Third Circuit.
The court found this case practically the same as the case of
Barker Painting Co. v. Brotherhood (15 Fed. (2d) 16), in which
this court dismissed the bill challenging the validity of the rules
prescribed by the union. Regarding the two cases the court said:
We heard the argument at length. On our study of the record we
of course found the facts in this case different irom those in the
Pennsylvania case as to place of work, personnel, dates, etc., but
similar in character and action, and found no new facts which dif
ferentiate this case from the other or raise any new question of law.
The same questions run through both cases as indeed they do in all
the reported cases on the subject, whether decided on interlocutory
or final decree. * * * [Cases cited.] While we should be more
than satisfied to have this controversy between employer and organ
ized labor finally decided by the higher court, we are constrained,
until then, to stand by the decision which we made not casually but
after serious study and, we confess, much mental disturbance.
In continuing the opinion the court affirmed the decree of the
district court, as follows :
Thus it is clear the questions which the plaintiff has raised are
moot because, having been saved from injury throughout the work
by the preliminary injunction, it has sustained no damage by the
defendants5 abortive enforcement of its rules. While as a matter
of fact, or perhaps, a matter to be inferred from the averments of
the bill or from their past practices, the defendants propose to con
tinue to enforce their rules, it does not follow necessarily that they
will enforce them against the plaintiff or that the plaintiff will con
tinue in business, or that, continuing in business, it will suffer by
the rules’ enforcement. It is just here that two odd things occurred,
one that, though it suffered no damage through the operation of
the brotherhood rules, the plaintiff wants us to review this case and
reverse our decision in the former case for its protection in the
future, and the brotherhood, not satisfied with one pronouncement
by this court sustaining its rules, remained silent (until aroused by

DECISIONS OF THE COURTS

172

the court) as to the moot aspect of the case, with the evident desire
that its rules be further strengthened by another decision to the
same effect.
The case was carried to the United States Supreme Court where
the decree of the circuit court was affirmed on May 19,1930 (50 Sup.
Ct. 356). Mr. Justice Holmes delivered the opinion of the court and
said:
I f the case had needed to be considered on its merits it would
have been likely to involve a discussion more or less far reaching
of the powers of the union, but the plaintiff could not impose a duty
to go into that discussion when before the time for it the resistance
haa been withdrawn and the job had been done.

a bo 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

m ploym en t—

ic k

Wil-Low Cafeterias {Inc.) v.
Kramberg et al., Supreme Court, New York County, New York
(May 7 , 1929), 237 New York Supplement, page 77.— The Wil-Low
Cafeterias (Inc.) owned and operated 22 cafeterias in New York
City; 7 of these were located in or about that section known as the
garment center. An action was brought by the Wil-Low Cafeterias
(Inc.) against the officers of the Hotel, Restaurant, and Cafeteria
Workers5 Union, an unincorporated association, which claimed to be
a branch of the Amalgamated Food Workers’ Union, as a result of a
resolution passed on April 3, 1929, in favor of a general strike of
all cafeteria workers in the garment section.
On April 4, without notice to the owner, a group of about 15 in
number entered the Traffic Cafeteria, which belonged to the W ilLow Cafeterias (Inc.), as though they were intended customers.
They announced in a loud voice that the place was 64on strike ” and
that everybody must get out; they pursued the employees into the
basement, threatened them if they did not cease work, and used tac
tics calculated to strike terror. They ordered everyone out, threw
plates on the floor, scattered food, overturned chairs and tables, and
created considerable havoc. Similar, though less serious, altercations
and damage occurred in other cafeterias. After the announcement
of the strike the union continued to picket the cafeterias. This re
sulted in a large number of arrests each day, charging members of
the union with assault, disorderly conduct, and the violation of sec
tion 600 of the Penal Code. Upon release these members returned
and continued the picketing.
The Wil-Low Cafeterias (Inc.) brought this action asking for an
injunction to prohibit such conduct by the members of the union.
They claimed that a part of the union’s program was to put the
Wil-Low Cafeterias out of business in order that the field might be
e t in g —

io l a t io n

I n j u n c t io n —

LABOR ORGANIZATIONS

173

left free to cafeterias operated by the union; they further claimed
that the union had violated past orders of the court.
The union asserted that their undertaking was to organize the em
ployees of cafeterias and that this strike was to the end that better
conditions and shorter hours might be obtained. The case was tried
before the Supreme Court of New York, in New York County, on
May 7, 1929, and a decree was rendered in favor of the Wil-Low
Cafeterias (Inc.), granting an injunction restraining the members
of the Hotel, Restaurant, and Cafeteria Workers’ Union from the
continuance of such acts.
In the course of the opinion the court quoted from the case of the
Exchange Bakery & Restaurant (Inc.) v. Rifkin (245 N. Y . 269,
157 N. E. 130):
Where unlawful picketing has been continued, where violence and
intimidation have been used, and where misstatements as to the em
ployer’s business have been distributed, a broad injunction prohibit
ing all picketing may be granted. The course of conduct of the
strikers has been such as to indicate the danger of injury to property
if any picketing whatever is allowed.
The court concluded the opinion as follows:
The method by which this strike was started, the violence which
has followed, despite the numerous convictions in the magistrate’s
court of those who have continued to participate, defendants’ unde
nied purpose of crushing plaintiff’s restaurants so they may sup
plant them with restaurants of their own, and the high-handed
methods generally used by defendants, all indicate that the picketing
which the court is now urged to sanction is designed to be and is in
its very nature malicious in purpose, nonpeaceful, and calculated to
continue and provoke further violent altercations. I f defendants had
set out to accomplish a justifiable end by peaceful picketing, there
would have been no occasion for the resort to the violence with which
they initiated their campaign. The picketing shown by the papers
before me constitutes an unjust invasion of plaintiff’s rights in the
legitimate carrying on of its business. Under the well-settled law
of this State plaintiff is entitled to an order restraining pendente lite
these defendants from the continuance of such acts.

L a b o r O r g a n iz a tio n s — P ic k e tin g — I n j u n c t i o n — Joe Dan Market
(Inc.) v. Wentz et al., St. Louis Court of Appeals (October 8,1929),
20 Southwestern Reporter (2d), page 567.— D an iel K o h n , owner and
operator o f the Joe D a n M a rk et ( I n c .) , brought th is suit against
Local U n ion N o . 88 o f the A m a lg a m a ted M ea t C utters’ and B utchers’
W o rk m en o f N orth A m erica to prevent the picketing o f his place o f
business.

K o h n had been operating a butcher shop in S t. Lou is

fo r some 25 years and fo r several years h ad operated the Joe D a n

66588°—31----- 13

174

DECISIONS OF THE COURTS

Market. In June, 1924, he incorporated his business, the incorpo
rators being Daniel Kohn, his wife, and Arthur O’Donnell, who had
been a meat cutter in the employ of Kohn since January, 1924, at
a wage of $45 per week. The union scale of wages was $37.50 per
week. O’Donnell was not a member of the union. The union
resented the employment of O’Donnell by Kohn, also the fact that
he opened his shop earlier in the forenoon and closed it later in the
evening than was provided for in union contracts; however, Kohn
had never entered into a contract with the union.
On May 24, 1924, suddenly and without any warning, Wentz and
other representatives from the union appeared on the sidewalk in
front of the market and began picketing. This action resulted in
several acts of violence. Kohn was assaulted by one of the union
men, his customers were driven away, handbills distributed request
ing people not to continue trading with Kohn, and other acts of
intimidation committed.
On July 31, 1924, upon the hearing of a petition filed by Kohn, a
temporary restraining order was issued, and on June 1, 1925, upon
final hearing, judgment was given perpetually enjoining the picket
ing, and from this judgment the union appealed. This appeal was
taken to the St. Louis court of appeals by the union, contending that
the judgment was unfair because the decree restrained the picketing
of the market even though the picketing be conducted without intimi
dations, threats, violence, or coercion. Regarding this contention the
court said:
This insistence is untenable. The picketing conducted by defend
ants consisted of one continuous transaction, involving unlawful acts
on the part of defendants, and showing, by a systematic course of
conduct and concerted action, their intention to accomplish their
purpose by unlawful means. In such case equity will do complete
justice by enjoining the whole of the unlawful proceedings. Picket
ing conducted as this was, accompanied by intimidation, threats,
violence, and coercion, soon becomes current in the neighborhood, so
that a continuation ot the picketing, even though conducted peace
ably, would probably, if not necessarily, result in intimidation.
The union also contended Kohn was not entitled to equitable relief
because he did not come into court with clean hands, as he had pub
lished bulletins and handbills stating his side of the controversy,
which bulletins were, in part, couched in language that was offensive
and contained offensive epithets. The court did not uphold this
contention of the union and concluded the opinion by saying:
We are unable to accept this view. Some charity should be
indulged in favor of one who, finding his little business in process of
destruction by the unlawful picketing of a large and powerful labor
organization, exhibits a spirit of resentment which leads him to the
use of intemperate language in his efforts to combat and break the

LABOR ORGANIZATIONS

175

force of the picketing. Moreover, the posting of bulletins and the
issuance of handbills occurred only on one day, six or seven weeks
before the temporary injunction was issued herein, but the unlawful
picketing continued throughout that period.
The judgment of the circuit court was therefore affirmed.
The District Court (Southern District of New York) dismissed a bill filed
by the Aeolian Co. against Fischer and the Piano, Organ, and Musical Instru
ments Workers’ International Union of America, as they found no evidence
sufficient to justify a finding that the unions whose members refused to work
on the premises where nonunion organ workers were employed were com
pelled or coerced to do so against their own desires and interests. The
court also held that it was not iUegal for the organ workers’ union to call to
the attention of other trades the presence of nonunion organ workers and to
persuade them, without coercion, to refuse to work side by side with non
union men. (See 29 Fed. (2d) 679, also B. L. S. Bui. No. 517, p. 144, for denial
of preliminary injunction.) (Aeolian Co. et al. v. Fischer et al. (1929) 35
Fed. (2d) 34.)

abo r

O r g a n iz a t io n s — P

i c k e t in g —

I n j u n c t i o n — C o n s p ir a c y —

Commercial House & Window Cleaning Co. (Inc.) v. Awerkin et al.,
Supreme Court of New York, Special Term (March 25, 1930). 21fi
New York Supplement, page 797.— The Commercial House & Win
dow Cleaning Co. (Inc.) maintained an open shop in employing
laborers for cleaning windows and had secured window cleaning
contracts from various customers for definite periods of time. The
Window Cleaners’ Protective Union, Local No. 8, a voluntary unin
corporated association, placed pickets in front of these customers’
places of business carrying placards to the effect that the company
was employing nonunion labor, thereby giving the customers unde
sirable publicity and coercing them to break contracts with the
window cleaning company.
The company brought action against the union alleging that the
members of the union unlawfully and maliciously agreed together,
combined, and formed a conspiracy the purpose of which they are
proceeding to carry out— namely, to cause the customers of the
company to break their contracts with it and to discontinue their
employment of it unless and until the company shall unionize its
business. The company also alleged that it had always maintained
an open shop and had never discriminated against union labor and
that it paid its laborers a weekly wage equal to that paid by the
union.
On the other hand, the union answered and claimed that—
They should have the right to continue this method of picketing,
maintaining that the place of work and the necessity for the work
are created by the buildings of the said customers, and that there
fore these buildings should be considered as the place of business

176

DECISIONS OF THE COURTS

of the plaintiff because the work is carried on there. Furthermore,
the defendants point to the decision of the court of appeals in
Exchange Bakery & Restaurant Co. v. Rifkin, 245 N. Y . 260, 263,
157 N. E. 130,132, in which the court held, among other things, that
the unions “ may call a strike and picket the premises of an employer
with the intent of inducing him to employ only union labor. * * *
Picketing without a strike is no more unlawful than a strike with
out picketing. Both are based upon a lawful purpose. Resulting
injury is incidental and must be endured.”
In comparing this case with the Rifkin case, supra, the court said
that in the case at bar there was no strike or picketing of the com
pany’s place of business, and hence the Rifkin case did not apply.
The court said the activities of the union complained of constituted
an alleged secondary boycott, and the courts of New York have con
sistently maintained that a secondary boycott will not be tolerated.
The court, therefore, granted the permanent injunction restraining
the union from the alleged activity in their attempt to unionize the
company’s business.
L

abo r

O r g a n iz a t io n s — P

E m p l o y m e n t —New

i c k e t in g

— I

n j u n c t io n

— I n t e r f e r in g

England Wood Heel Go. v. Nolan et al.,
Supreme Judicial Court of Massachusetts (June 28,1929), 167 North*
eastern Reporter, page 323.— The New England Wood Heel Co. man
ufactures heels which it sells to shoe manufacturers. The company
had an agreement with the Shoe Workers’ Protective Union prior to
January 1, 1929, under which the company hired only members of
said union as employees in its factory. This agreement expired on
December 31, 1928, and after negotiations for renewal failed, the
company opened its plant under nonunion conditions. The em
ployees were paid in full and notified of the change in policy. The
union called a strike, which was followed by picketing. The union
had a contract with the shoe manufacturers in which it was agreed
that the manufacturers would not work upon any product coming
from a plant where a strike was then in progress. The manufacturers
were notified of the strike within the plant of the New England
Wood Heel Co.
The heel company sought injunctive relief and asked the court to
enjoin the union from interfering with the business of the company,
either by intimidating its employees or by persuading or compelling
its customers not to purchase goods from the company. The injunc
tion was granted by the superior court, Essex County, and the union
appealed to the Supreme Judicial Court of Massachusetts.
The trial judge ruled that the strike, called by the union at the
company’s plant, which resulted in picketing, intimidation of the em
w it h

LABOR ORGANIZATIONS

177

ployees, and an attempt to drive away customers was an unlawful
strike.
Regarding the contention of the union “ that the plaintiff does
not come into court with clean hands in that it had knowledge of the
prior contract of members of the union not to enter into individual
contracts of employment and notwithstanding such contracts ma
liciously induced said members to break them,” the trial judge found
“ upon the evidence that the officers of the plaintiff hired such of its
former employees known to them to be members of the union as
voluntarily sought employment, aware that such individual contracts
of employment were in violation of their union obligations.” He
stated:
But I am unable to find from the evidence that the plaintiff ma
liciously sought to procure or induce such members of the union to
leave the union or otherwise to violate their union obligations.
The union cited article 1, section 3, of the constitution of the Shoe
Workers’ Protective Union which provides:
The approval of an application for membership and the initiation
of the applicant as a member of the Shoe Workers’ Protective Union
constitutes a contract between said member and the said Shoe
Workers’ Protective Union and his local union, and between said
member and every other member of the said Shoe Workers’ Protec
tive Union, whereby, in consideration of the benefits and advantages
secured to him by reason of his membership therein, he agrees: (1)
That he will remain a member of the Shoe Workers’ Protective Union
until he is expelled. (2) That he will not violate any of the pro
visions of this constitution or of the by-laws of his local union nor
the trade rules of the locality in which he works. (3) That he will
not enter into or sign any individual contract of employment with
any person, firm, association, or corporation or any contract or agree
ment which provides that he will not become or remain a member of
the Shoe Workers’ Protective Union or any local union thereof.
I t appeared in evidence “ th at the officers o f the plain tiff knew
o f th is provision.

W h ile there are provisions fo r ex p ellin g a m em

ber, nonpaym ent o f dues is n ot stated as a ground fo r expu lsion.”

Upon appeal the Supreme Judicial Court of Massachusetts found
there was no evidence of any attempt to induce a breach of contract,
and therefore the company was not in court with unclean hands.
The court, in sustaining the lower court, said in part:
Viewing the findings of the judge as a whole, and particularly that
part wherein he finds “ I am unable to find from the evidence that the
plaintiff maliciously sought to procure or induce such members of
the union to leave the union or otherwise to violate their union
obligations,” we infer that the judge believed, and therefore found,
that the evidence warranted no stronger conclusion than that the
plaintiff employed members of the union under individual contracts
which they solicited; that the plaintiff employed them only when
such members voluntarily sought employment; and that the plain

178

DECISIONS OP THE COURTS

tiff did not intentionally induce or procure such members to enter
into individual contracts with it in violation of their duty to the
union. W e have read the evidence and considered the contentions of
the defendants in this respect with great care, and we can not find
that such conclusions of fact were clearly wrong. It results that the
plaintiff can not be said to be before the court with unclean hands,
and because of that supposed fact is not entitled to equitable relief.
On the facts found tne trial judge ruled rightly that the strike was
unlawful. This ruling was not based upon any findings that the
purpose of the strike was to compel the plaintiff to operate a closed
shop; as to which see A. T. Stearns Lumber Co. v. Howiett (260 Mass.
45, 60, 61, 157 N. E. 82) and cases cited. It is plain, in the circum
stances, that it was not lawful for the defendants to call a strike at
the plaintiff’s factorv (1) to prevent the recalcitrant union member
from demoralizing the entire personnel of the union by working for
a less rate than they themselves had participated in adopting as
proper; (2) to prevent the plaintiff from aiding and abetting those
members from carrying out that design; or (3) to compel the plain
tiff to restore to the union members the standard union rates. [Cases
cited.]
L

a bo r

O r g a n iz a t io n s — S t a t u s

and

ow er—

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

S t a t u t e — I n j u n c t i o n —Rua/rh

et cd. v. International Union of Oper
ating Engineers, Local Union No. 37, et al., Court of Appeals of
Maryland (June 26, 1929), llfi Atlantic Reporter, page 797.— The
General Assembly of Maryland passed a statute known as chapter 94
of the Acts of 1910, of which sections 2 and 3 constitute that portion
of the charter of the city of Baltimore, which is as follows:
516. That eight hours shall constitute a day’s work for all laborers,
workmen, or mechanics who may be employed by or on behalf of the
mayor and city council of Baltimore, except in cases of extraordinary
emergency which may arise in time of war or in cases where it may
be necessary to work more than eight hours per calendar day for
the protection of property or human life: Provided, That iii all such
cases the laborer, workman, or mechanic so employed and working to
exceed eight hours per calendar day shall be paid on the basis of
eight hours constituting a day’s work: Provided further, That the
rate of per diem wages paid to laborers, workmen, or mechanics em
ployed directly by the mayor and city council of Baltimore shall
not be less than $2 per diem: Provided further, That not less than
the current rate of per diem wages in the locality where the work
is performed shall be paid to the laborers, workmen, or mechanics
employed by contractors or subcontractors in the execution of any
contract or contracts in any public work within the city of Baltimore.
516A. That all contracts hereinafter made by or on behalf of the
mayor and city council of Baltimore with any person or persons or
corporation for the performance of any work with the city of Balti
more shall be deemed and considered as made upon the basis of eight
hours constituting a day’s work, and it shall be unlawful for any
such person or persons or corporation to require or permit any

LABOR ORGANIZATIONS

179

laborer, workman, or mechanic to work more than eight hours per
calendar day in doing such work, except in the cases and upon the
conditions provided in section 516 of this article.
This statute further provided a fine of not less than $10 nor more
than $50 for every violation of its provisions.
The present case arose when the mayor and city council of Balti
more found it necessary to provide extensive sewers and drains in
various sections of the city. They entered into eight contracts with
independent contractors for the construction of this public improve
ment. The contracts provided that the promisors should indemnify
and protect the municipality, its officers, agents, and servants against
any claim or liability growing out of the violation of the statute.
The contractors began the building of the sewers, and while the
work was being done this bill of complaint was filed against the
municipality, its engineers, and the eight contractors:
The bill of complaint alleges that it would be some time before the
drains and sewers would be completed, and that, in disregard of the
statute and the terms of the contracts, the municipality, its engineer
of sewers, and the eight other defendants were permitting and requir
ing the laborers, workmen, and mechanics while employed in the
building of the several drains and sewers, to work more than eight
hours per calendar day without there being any emergency arising
in time of war or a necessity to protect thereby property or human
life. The plaintiffs further aver that the defendants, although asked
to stop, have continued in this violation of the statute; and that it
is the intention of the defendants “ so to disregard and violate said
provisions and requirements of said sections of the charter of Balti
more city and to disobey, nullify, and set the same at naught,”
unless restrained by the chancellor.
The defendants thereupon objected. The objections were over
ruled and an injunction issued. Appeals were taken from this decree
by the municipality, its engineers, and others.
The court of appeals said that—
The two major questions brought up on these appeals are the con
stitutionality of the statute and the right of the plaintiffs for relief
by way of injunction. As each of these questions goes to the mainte
nance of the complaint in equity, they alone will be discussed.
This court held the statute was constitutional, since it prescribed
a definite standard of conduct which indicates with certainty, to any
reasonable person, what acts will constitute the crime denounced.
The court proceeded to define the terms used in the statute, “ cur
rent rates ” as used therein meaning charge for or valuation of daily
labor in question according to standard generally received or estab
lished by common consent or estimation; “ locality” defining a
region, with the public undertaking as an axis or focal point, through
out which region the daily wage of the particular class to which the
worker belongs is uniform.

DECISIONS OF THE COURTS

180

In regard to the injunction the court said, in part:
An injunction should never issue except with care and caution
(Miller’s Equity, sec. 544), and the necessity for the exercise of this
restraint is accentuated by the novelty of issuing an injunction on
the sole ground of a prospective violation of the criminal law in the
performance of the labor incident to the completion of a public
improvement under a duly authorized and vaiid contract. Upon
principle and on authority there is a distinction drawn between th-3
prevention of public officials from doing a primary act, which is ultra
vires or unlawful, as the making of a contract, of an assessment of
property, of a levy of taxes, or an appropriation of funds, and the
occurrence of secondary errors, irregularities, or criminal conduct in
the course of the performance of a valid, contract or of an authorized
municipal function. The latter acts fall into a different category
and generally do not justify the issuing of an injunction since they
are not of a fundamental character and may be controlled or com
pensated by other remedies, and because equity has no supervisory
power over public corporations and their officers.
In concluding the opinion the court said:
The plaintiffs, therefore, have no legal right, and the defendants
are under no legal liability to the plaintiffs at law or in equity, so
the bill was bad on demurrer and should have been dismissed so far
as the appellants are concerned.

L i c e n s in g

u s in e s s ,

O c c u p a t io n s ,

e t c .—

h a r m a c is t s —

ow ers

Oavassa v. Off et al., Supreme Court of
California (January 29, 1929), 274 Pacific Reporter, page 523.—
H. A . Cavassa was a registered pharmacist in the city of San Fran
cisco and was convicted for the third time of the violation of the
act (Gen. Laws 1923, act 5886) regulating the practice of pharmacy
in California. The California State Board of Pharmacy requested
him to appear before them and show cause why his license should
not be revoked. He did not appear before them as requested, but in
stituted proceedings against the board questioning their authority to
revoke his license to practice pharmacy. The sections of the act to
regulate the practice of pharmacy involved in the controversy were
sections 6 and 12, which are in part as follows:

o f B oard to R e v o k e L ic e n s e —

S ec . 6. I t shall be the duty o f the secretary o f the board to erase
from the register the name of any registered pharmacist or assistant
pharmacist, * * * who in the opinion o f the board has fo r
feited his right under the la,w to do business in this State.
S e c . 12. * * * Any person violating any of the provisions of
this act, when no other penalty is provided, shall be deemed guilty
of a misdemeanor, and upon conviction thereof shall be liable to
punishment by a fine of not less than twenty dollars and not more
than one hundred dollars, or by imprisonment of not exceeding fifty
days, or by both such fine and imprisonment. A ll fines recoverable
under this act shall be paid by the magistrate receiving the same to

LICENSING BUSINESS, OCCUPATIONS, ETC.

181

the State board of pharmacy. Any person convicted of violating
the provisions of this act the third time shall in addition to the
penalties hereinbefore mentioned have his or her registration as a
pharmacist canceled.
In maintaining the rights of the board the attorney general said
that “ section 12 of the act itself revokes the license of a pharmacist
who has been convicted of violating the provisions of the pharmacy
act the third time, and the requirement that the registration of such
pharmacist be canceled calls for nothing more than a ministerial
act upon the part of the board, and its provisions are mandatory.”
However, the California Supreme Court did not fully agree with
this position and said in the opinion as follows:
The right of a person to practice the profession for which he has
prepared himself is property of the very highest character. (Hewitt
v. Board of Medical Examiners, 148 Calif. 590, 84 Pac. 39.) Due to
the severe and exacting tests now generally required before a person
can legally follow a profession at the present day, this right can
only be acquired after years of arduous effort and closest applica
tion. It is generally the only means of the holder thereof whereby
he may support himself and family, and it usually affords sucn
holder the best opportunity to become a useful and sustaining mem
ber of the community in which he resides. This right should not be
taken from one who has thus acquired it, except upon clear proof
that he has forfeited the same and then only in strict conformity
to the statute authorizing its forfeiture. W e are satisfied, for the
reasons given herein, that the board of pharmacy has no authority
under the proceedings instituted by it to revoke petitioner’s license
nor to cancel or erase his name from the list of registered pharmacists
kept by it in the office of its secretary.
In our opinion section 12 of the act relates only to the authority of
the court in which the third conviction may be had, giving it power
to revoke the license of a registered pharmacist upon his third con
viction, and it should not be construed to give to the board of phar
macy this same power, as there is nothing in the section, or in any
other part of the act, which directly or by reasonable implication
confers such power upon said board.

ic e n s in g

B u s in e s s , O c c u p a t io n s ,

e t c .—

lu m ber—

m p l o y m e n t — City

I n j u n c t io n —

of San Benito et al.
v. Hays & Sons, Court of Civil Appeals of Texas {March 13, 1929) ,
15 Southwestern Reporter (2d) ? page 99.— J. H. Hays, H. H. Hays,
and E . H. Hays were engaged in the plumbing business under the
partnership name of Hays & Sons. They were master plumbers
located in the city of San Benito, Tex., where the licensing of jour
neyman plumbers;is required. Ed Warren, a journeyman plumber,
in their employ, was fully qualified in plumbing and had worked at
this calling for about two years. When examined for a license in
A

g a in s t

n t e r f e r in g w i t h

182

DECISIONS OF THE COURTS

August, 1928, there were only three of the five examiners present,
one of these was a competitor of Hays & Sons, and another was a
man in his employ. The license was denied, even though Warren
answered the questions correctly. The facts show that Hays &
Sons were dependent upon Warren’s work to complete their con
tracts, and they instituted this suit to compel them to issue a license
to Warren. TTie order was granted by the district court, Cameron
County, Tex., and the city of San Benito appealed to the Court of
Civil Appeals of Texas, contending that Hays & Sons were not the
proper parties to sue for an order commanding the issuance of a
license to a journeyman, even though he was in their employ. The
court held otherwise and, in affirming the judgment of the lower
court, said in part:
His interests were so intermingled with those of his employers,
and he was so absolutely necessary to them in the prosecution of
their work, that a refusal of the license worked greatly to their
damage, and they in their own interest had the right to apply to a
court to compel the granting of the license. The evidence showed
affirmatively that appellees could not employ another plumber who
could do the work of Warren as he could. The appellees had all
necessary licenses to engage in plumbing at San Benito and were
so recognized by the board of examiners and citv authorities. The
contention that Warren did not pay the fee of his license seems
without force, in view of the fact that the board of examiners refused
the license. While the license is
1 1 *
1
#i
11
be renewed from time to time
devolved upon the board for rene1
/
^
application. The court did not command any one to issue a perma
nent license to Warren or any one else. It is the boast of the citizens
of this great Republic that this is a land of equal opportunity for
all classes and conditions of men, and that every man is guaranteed
the right to prosecute unhindered the vocation he follows to obtain
a livelihood. It is far better to encourage and protect men in
laboring to obtain the necessaries of life than to arbitrarily and
tyrannically place unnecessary obstructions in their way, when they
are seeking an honest livelihood, and to oppress them and drive
them into crime. This is a time in our history when high standards
of living are fixed, and the high price of the necessaries as well as
the luxuries of life have become more burdensome than ever before,
and rather than throw obstacles in the pathway of any citizen desir
ing to earn an honest livelihood, he should be encouraged and have
the door of opportunity thrown wide open to him. In this case
appellees have done everything the law has required at their hands,
and their competitors, placed in places of power, should not be
ermitted to exercise that power in an arbitrary or corrupt manner.
Tot only have the competitors of appellees on the examining board*
in the face of a majority of the board approving the examination oi
Warren, denied the license, but in the face of the command of the
city commission no license was issued, and the city marshal notified
appellees that Warren would not be permitted to work. To cause

REMOVAL OF RAILROAD SHOPS

183

these high-handed, unwarranted measures to cease, and to extend
to appellees the right to pursue their vocation under the law, the
district court was appealed to and gave relief.

Rem oval op R ailroad Shops— In ju n c tio n — I n t e r f e r in g W i t h
I n t e r s t a t e C o m m e r c e — Jurisdiction— Lawrence

et al. v. St. LouisSan Francisco R. Go., Supreme Court of the United States (Jamtary 2, 1929), 1$ Supreme Court Reporter, page 106.— The question
involved in this case was the right o f the St. Louis-San Francisco
Railw ay Co. in removing their workshops and division point from
Sapulpa to W est Tulsa, Okla.

In 1916, when the railway made

plans to remove their shops to W est Tulsa, the citizens o f Sapulpa
requested the corporation commission o f %Oklahoma to issue an in
junction to prevent the removal.
the commission.

This injunction was issued by

Some years later the injunction was renewed and

a date set for a hearing.

Before the date set for the hearing, how

ever, the railway secured an interlocutory injunction from the D is
trict Court o f the Northern District o f Oklahoma, restraining the
State corporation commission from interfering with the removal o f
its shops.

The case was carried to the Supreme Court o f the United

States (47 Sup. Ct. 7 2 0 ), but before the decision o f the Supreme
Court was rendered the railway completed the removal o f the shops
and division point to W est Tulsa. The Supreme Court reversed the
decree o f the district court and reversed the interlocutory injunc
tion. Prom ptly after this decision, Lawrence, acting for the em
ployees o f the railway and the citizens o f Sapulpa, applied to the
district court for an order requiring that forthwith, and before any
further proceeding be taken in the cause, the railway restore the
conditions with respect to its shops and division point existing prior
to the issue o f the injunction. The district court denied the mo
tion and instead issued an order that the railway company “ as a
preliminary step to further hearing o f this cause” apply to the
corporation commission o f the State to dissolve the restraining or
ders theretofore made by it, restraining removal o f the shops and
division point, and to ratify the removal which had been effected.

The commission sustained the objection of Lawrence that the rail
way company acted in contempt of the commission and should not
be heard by the commission until the shop was returned to Sapulpa.
The case went to the district court for a final hearing upon this
question, and that court held the railway did not act in contempt
of the commission and had the right to request a permanent in
junction allowing the shops to remain in West Tulsa. Lawrence
again carried the case to the Supreme Court of the United States.

184

DECISIONS OF THE COURTS

Mr. Justice Brandeis delivered the opinion of the court and said,
in part, as follows:
“ The interlocutory decree,” as we have said, “ set the railway free
to remove the shops before the case could be heard on final hearing.”
(274 U. S. 588, 594, 47 Sup. Ct. 720.) The district court had, when
it issued the injunction, jurisdiction of the parties and of the sub
ject matter; and it has never relinquished its jurisdiction. It is true
that this court has held that the interlocutory decree was improvidently granted. But it did not declare that the decree was void.
Thus, the interlocutory decree relieved the railways from any
duty to obey the restraining order of the commission. Because such
was its effect, the lower court required the railway to furnish the
$50,000 bond. By availing itself of the liberty given to remove the
shops and division point, the railway assumed the risk of being
required to restore them if it should be held that the interlocutory
injunction was improvidently granted, see Bank of United States v.
Bank of Washington (6 Pet. 8,17, 8 L. Ed. 299), Arkadelphia Co. v .
St. Louis Southwestern E. Co. (249 U. S. 134, 145-146, 39 Sup.
Ct. 237), and also the risk of having to compensate the appellants,
to the extent of $50,000, for any damages suffered by reason of the
removal. But it was clear that, upon final hearing, the railway
might prove that it was entitled to a permanent injunction; and
the district court was not obliged to order restitution meanwhile.
Regarding the authority of the district court, Mr. Justice Brandeis
said:
Although it required the bond, and this court held that the inter
locutory injunction had been improvidently issued, the district court
could, in its discretion, refuse to assess the damages until it should,
after the final hearing, have determined whether the plaintiff was
entitled to a permanent injunction. (See Redlich Mfg. Co. v. John
H. Rice & Co. (D. C.) 203 Fed. 722.) It might then refuse to allow
recovery of any damages, even if the permanent injunction should
be denied.
After pointing out the expense of returning the shops to Sapulpa
and the definite advantages of the new location to the employer, the
employees, and the public in general, the court said it must have
seemed probable to the district court that upon final hearing a perma
nent injunction would be issued and that to order restitution mean
while would have been not merely an idle act but one imposing
unnecessary hardships on the railway and the public. Mr. Justice
Brandeis concluded the opinion by saying:
The railway was not in contempt. The terms of the restraining
order had been superseded by the interlocutory injunction. To re
fuse to hear the application, which the district court had directed
the railway to make, was an attempt to inflict punishment for an
innocent act.
The judgment of the district court was therefore affirmed.

DECISIONS OF THE COURTS

185

R etirem en t o f C iv il Em ployees— R etirem en t S y s t e m -P r io r
Service— In re Caldwell, Supreme. Court of New York , Special Term
(April 7,1930), 21^1 New York Supplement, page 1.— Since January
1,1920, Charles P . Caldwell had been a justice o f the court of special
sessions in the city of New York, and from January 14, 1926, he had
been a member o f the New York C ity employees’ retirement system,
as provided in chapter 26 o f the Greater New York charter. Prior
to his appointment as justice he served as a Representative in Con
gress from the State o f New York from March, 1915, to March,
1921. H e made application in June, 1929, for a prior service certifi
cate from the retirement system, claiming credit under the law for
his congressional service from 1915 to 1920. This prior service cer
tificate was refused.

The Greater New York charter (Laws 1901, ch. 466, sec. 1703,
added by Laws 1920, ch. 427, amended by Laws 1923, ch. 142, and
Laws 1929, ch. 415) provides for the issuance of a prior service cer
tificate to members of the employees’ retirement system certifying
the service rendered before October 1, 1920, as city or State official
or “ service in the civil service of the United States Government.”
In 1928 the New York charter was amended (Greater New York
charter, Laws 1901, ch. 466, sec. 1703-a added by Laws 1928, ch.
786) to allow credit for prior service to all persons now in the city’s
service who had become members of the employees’ retirement system
before July 1, 1928.
The New York Supreme Court said that as Caldwell had been a
member of the retirement system prior to July 1, 1928, he should not
have been refused the prior service certificate for which he made
application. It was contended that, according to the charter (sec.
1703), an “ allowance may be made for prior service only to those
who have rendered city service before October 1, 1920, and within
five years prior to the date upon which he renders the service.” In
other words, a member in order to get credit must have joined the
system on‘ October 1, 1920, or become a member within five years
after cessation of previous city service.
The court, however, held that Caldwell came within those em
ployees included in section 1703-a which provides for “ credit for all
prior service ” to any person who was a member of the retirement
system on or before July 1, 1928, notwithstanding the provisions of
section 1703, and 444 prior service ’ is not limited to 4city service.’
but shall be for 4all prior service ’ and necessarily includes the legis
lative provision, 4service in the civil service of the United States
Government.’ ”
The court therefore ordered that a prior service certificate be
issued.

186

DECISIONS OF THE COURTS

S e a m e n — A s s a u l t — N e g l i g e n c e — Jamison et al. v. Encamacion,
Supreme Court of the United States (May 26, 1930), 50 Supreme
Court Reporter, page
— William A . Jamison, a longshoreman,
was employed by Valentin Encarnacion as a member of a crew
loading a barge lying in navigable waters at Brooklyn, N. Y . One
Curren was the foreman in charge of the crew. While Jamison was
upon the barge engaged with others in loading it, the foreman struck
and seriously injured him. Following his death, Inez M. Jamison,
executrix, filed an action in the Supreme Court of New York against
the employer to recover damages. The evidence showed that the
foreman was authorized to direct the crew and to keep them at work.
There was also evidence that he assaulted Jamison without provoca
tion. The trial judge instructed the jury that—

The defendant would not be liable if the foreman assaulted plain
tiff by reason of a personal difference but that, if the foreman, in the
course of his employment, committed an unprovoked assault upon
plaintiff in furtherance of defendant’s work, plaintiff might recover.
A judgment for $2,500 was rendered in favor of the executrix.
The case was thereupon appealed to the appellate division of the
New York Supreme Court, which court held that Jamison’s injury
was not the result of any negligence within the meaning of the Fed
eral employers’ liability act (45 U. S. C. A ., secs. 51-59) and reversed
the judgment. Following this the New York Court of Appeals held
that the Federal employers’ liability act applied, and after quoting
from International Stevedoring Co. v. Haverty (47 Sup. Ct. 19),
said:
As the word “ seamen ” in the act (sec. 33, merchant marine act)
includes 66stevedores,” so the word “ negligence ” (sec. 1, Federal em
ployers’ liability act) should * * * include “ misconduct.”
The court of appeals reversed the judgment of the appellate di
vision and affirmed the decision of the New York Supreme Court.
The case was then appealed to the United States Supreme Court for
review. The court quoted section 33 of the merchant marine act (46
U. S. C. A ., sec. 688), which provides:
T hat any seaman who shall suffer personal injury in the course o f
his employment may, at his election, maintain an action for damages
at law, with the right of trial by jury, and in such action all statutes
o f the United States m odifying or extending the common-law right
or remedy in cases o f personal injury to railway employees shall
apply. * * *

Also section 1 of the Federal employers’ liability act (45 U. S. C. A.,
sec. 51), which reads:
That every common carrier by railroad while engaging in (inter
state) commerce * * * shall be liable in damages to any person
suffering injury while he is employed by such carrier in such com

SEAMEN

187

merce * * * for such injury * * * resulting in whole or in
part from the negligence of any of the officers, agents, or employees
of such carrier. * * *
In determining whether “ negligence ” as there used included the
assault in question in this case, Mr. Justice Butler said in part as
follows:
“ Negligence ” is a word of broad significance and may not readily
be defined with accuracy. Courts usually refrain from attempts com
prehensively to state its meaning. While liability arises when one
suffers injury as the result of any breach of duty owed him by another
chargeable with knowledge of the probable result of his conduct,
actionable negligence is often deemed— and we need not pause to
consider whether rightly—to include other elements. Some courts
call willful misconduct, evincing intention or willingness to cause
injury to another, gross negligence. * * * While the assault of
which plaintiff complains was in excess of the authority conferred
by the employer upon the foreman, it was committed in tne course of
the discharge of his duties and in furtherance of the work of the
employer’s business. ^ As unquestionably the employer would be
liable if plaintiff’s injuries had been caused by mere inadvertence or
carelessness on the part of the offending foreman, it would be unrea
sonable and in conflict with the purpose of Congress to hold that the
assault, a much graver breach of duty, was not negligence within the
meaning of the act.
The judgment of the court of appeals holding the Federal em
ployers’ liability act applied to the case at bar was therefore affirmed.
The United States Supreme Court also held that an assault on a seaman fcy
his foremffn, reprimanding him for tardiness, and compelling him to work was
“ negligence” within the Federal employers' liability act, section 1 (45
U. S. C. A., sec. 51), and the merchant marine act, section 33 (46 U. S. C. A.,
sec. 688). (Alpha S. S. Corporation et al. v. Cain (1930), 50 Sup. Ct. 443.)

S e a m e n — N o n p a y m e n t o f W ages — I n s o l v e n c y — OoUie et al. v.
Fergusson et al.y Supreme Court of the United States (February
1930), 60 Supreme Court Reporter, page 189.— The Dola Lawson,
a power boat licensed for coastwise trade, and Fergusson, her owner,
were court libeled for repairs and materials supplied to the vessel.
The vessel was sold by order of the court and the proceeds, insuffi
cient to satisfy the claims allowed, were paid into the registry of the
court to the credit of the cause.
The employment of two of the seamen was terminated by the
seizure of the vessel. They filed claims in the United States District
Court of Eastern Virginia for their wages and claimed double wages
for waiting time under section 4529 of the Revised Statutes (46
U. a C. A., sec. 596), which provides in part as follows:

The master or owner of any vessel making coasting voyages shall
pay to every seaman his wages within two days after the termination

188

DECISIONS OF THE COURTS

of the agreement under which he was shipped, or at the time such
seaman is discharged, whichever first happens. * * * Every
master or owner who refuses or neglects to make payment in the
manner hereinbefore mentioned without sufficient cause shall pay to
the seaman a sum equal to two days’ pay for each and every day
during which payment is delayed, * * * which sum shall be
recoverable as wages, in any claim made before the court. * * *
The District Court of Eastern Virginia denied the petition of the
seaman for double wages for waiting time, but allowed the payment
of wages due, with interest, as prior liens. The seamen first carried
the case to the United States Circuit Court of Appeals, which
affirmed the decision of the lower court, and then to the Supreme
Court of the United States. They contended that a claim for double
wages, when valid, is by the terms of the statute “ recoverable as
wages.” They argued that the statutory allowance was compensa
tory, that it accrued upon the mere delay in payment of wages and
should be included in the lien for wages.
Mr. Justice Stone, in delivering the opinion of the court, said the
statute must be determined in the light of the purpose of the act,
also that the phrase “ without sufficient cause ” must be taken to
embrace something more than a valid defense to the claim for wages,
for otherwise it would have added nothing to the statute.
He concluded the opinion holding that the insolvency of the owner
and arrest of the vessel was sufficient cause for nonpayment of sea
men’s wages and would avoid liability for double wages for waiting
time, by saying in part as follows:
The words u refuses or neglects to make payment * * * with
out sufficient cause ” connote, either conduct which is in some sense
arbitrary or willful, or at least a failure not attributable to impos
sibility of payment. We think the use of this language indicates
a purpose to protect seamen from delayed payments of wages by
the imposition of a liability which is not exclusively compensatory,
but designed to prevent, by its coercive effect, arbitrary refusals to
pay wages, and to induce prompt payment when payment is possible.
Hence we conclude that the liability is not imposed regardless of
the fault of the master or owner, or his retention of any interest
in the vessel from which payment could be made. It can afford no
such protection and exert no effective coercive force where delay in
payment, as here, is due to the insolvency of the owner and the arrest
of the vessel, subject to accrued claims beyond its value. Together
these obstacles to payment of wages must be taken to be a sufficient
cause to relieve from the statutory liability.
The decree of the lower court was therefore affirmed.

Seam an— R

elease—

N e g l ig e n c e — W.

o r k m en ’s

C o m p e n s a t io n

Law— C

o n t r ib u

J. McCahan Sugar Refining & Molasses
Go, v. Stoffel, Circuit Court of Appeals, Third Circuit (May 27,

tory

SEAMEN

189

1930),
Federal Reporter (2d), page 651.— John Stoffel, a steve
dore, engaged in unloading cargo from a ship in navigable waters at
Philadelphia, Pa., and a “ seaman ” within the meaning of the law,
filed suit against his employer, the W . J. McCahan Sugar Refining &
Molasses Co., to recover damages for personal injuries.
The United States District Court for the Eastern District of
Pennsylvania rendered a judgment in favor of the employee in the
sum of $3,750. The company appealed to the Circuit Court of
Appeals, Third Circuit, contending that Stoffel was guilty of con
tributory negligence; that the hoisting of the draft before signal was
given was not the proximate cause of the injury; and that an agree
ment between the employee and employer whereby the employee
agreed to accept compensation in accordance with the Pennsylvania
workmen’s compensation law was valid.
The appeals court held that, as Stoffel did nothing but “ wait for
the truck to come by,” his action was purely negative and he was
not guilty of contributory negligence. The court also said that “ in
starting the draft before receiving a signal the winchman violated
his duty and, therefore, was guilty of negligence that was the proxi
mate cause of the injury.”
The court turned its attention to the agreement under the work
men’s compensation law of Pennsylvania and declared it void for
the following reasons: (1) Because it was indefinite and incomplete,
a number of blanks had not been filled in, among which was the
number of weekly payments; (2) because of lack of mutuality; (3)
because it depended upon a supplemental agreement “ to be approved
by the workmen’s compensation board ” or upon final payment on
that board’s order, neither of which had been made; (4) because it
was against public policy. Regarding this fourth reason the court
said:
The law regards a longshoreman or stevedore, injured while
engaged in maritime service aboard a ship lying in navigable waters,
as a seaman with all his peculiar rights and immunities. There
has been more -or less protected legislative— and judicial— effort to
bring such seamen, who under Federal admiralty acts are entitled
to sue for compensation for injuries in Federal courts, within the
scope of State compensation acts. The Supreme Court, reviewing
from time to time the position of seamen, the policy of preserving
a uniform maritime law, and the impolicy of bringing seamen under
diverse laws of States, has held such efforts unconstitutional as
destroying the characteristic features of the general maritime law,
contravening its essential purposes, encroaching upon the paramount
power of the Congress to enact national maritime laws, and invading
the jurisdiction which the Congress has conferred upon courts ox
admiralty.
66588°— 31------ 14

190

DECISIONS OP THE COURTS

In the case in hand the respondent tried to do what the Supreme
Court has said State legislatures can not do. The attempt was, pari
ratione, equally void. I f this contract were otherwise good, it would
still be bad because opposed to public policy. But aside from this
vital defect, the contract, with the ingrafted, release, is void for the
three reasons first stated.
The decree of the lower court was therefore affirmed.

S u n d a y L a bo r — C o n s t i t u t i o n a l i t y o f L a w — State v. Blair, Su
preme Court of Kansas (June 7, 1930), 288 Pacific Reporter, page
729.— Sam Blair was arrested and convicted of violating the statute
prohibiting the sale of goods, wares, and merchandise on Sunday and
also the performing of Sunday labor. The offense committed was
the keeping open for business of the Blair Theater in the city of
Mankato, Kans. Section 21-952 of the Kansas Revised Statute
reads:

Every person who shall either labor himself or compel his appren
tice, servant, or any other person under his charge or control to labor
or perform any work other than the household offices of daily neces
sity. or other works of necessity or charity, on the first dav of the
week, commonly called Sunday, shall be deemed guilty of a mis
demeanor, and nned not exceeding $25.
The Jewell County district court convicted him, and Blair appealed
to the Kansas Supreme Court, contending that the statute was uncon
stitutional in that it denied him the religious freedom granted by the
Constitution of Kansas and of the United States, in that it com
pelled him to accept Sunday as a day of rest. He also contended that
the sale of theater tickets did not constitute a sale of “ goods, wares,
or merchandise” as was contemplated in the Kansas statute. In
upholding the constitutionality of the statute the supreme court
said:
T he constitutionality o f statutes similar to the one here under
consideration has been before the courts of this country for considera
tion on a number o f occasions, and nearly always those statutes have
been held to be constitutional and not to violate any right o f religious
freedom. [Cases cited.]

W e are not without decisions of this court which, although not
directly in point, are persuasive that the statute under consideration
does not violate any constitutional provision. [Cases cited.]
In answering the second contention of Blair the court looked to
the purpose of the statute and said:
Its purpose is to prohibit any person from selling or exposing for
sale any land of property except those articles mentioned in the suc
ceeding section which includes drugs, medicines, provisions, and
other articles of immediate necessity. Theater tickets are personal
property which can be sold. Their value is not in the ticket but is in

SUNDAY LABOR

191

the right that the ticket gives to the holder, the right to be enter
tained in the theater at the time and place specified in the ticket.
The terms “ goods, wares, or merchandise ” have been held to include
lottery tickets. (Yohi v. Robertson, 2 Whart. (Pa.) 155,162.) For
the purpose of this case, it is not advisable to attempt to define more
specifically the words “ goods, wares, or merchandise,” nor to attempt
to state all that is comprehended by them. All that is necessary is
to determine whether or not tickets to “ a public moving and talking
picture show and theater ” come within the expression “ goods, wares,
or merchandise.” The majority of the court, after consideration of
the matter, is of the opinion that the words used in the statute in
clude, within their meaning, theater tickets such as are described in
the third count of the information on which the defendant was tried.
The judgment of the lower court was therefore affirmed.

S u n d a y L abor — V

io l a t io n op

S tatute— “ M

er c a n t il e

s t a b l is h

People ex inf. Hertzberger v. John R. Thompson Co.,
Supreme Court of New York, Appellate Division, First Department
(June 23,1930), 243 New York Supplement, page 618.— T h e J o h n R.
Th om pson Co. w as convicted o f v io la tin g the labor law (L a w s 1921,
ch. 50, sec. 161, subd. 3) on the com p lain t o f N ath an iel H ertzberger.
Section 161 provides th a t an em ployer operating a fa cto ry , m ercan
m e n t ”—

tile establishm ent, or fr e ig h t or passenger elevator, w ith certain

24 consecutive hours
3 provides th at before

exceptions, m ust allow every em ployee at least
o f rest in any calendar week.

Subdivision

operating on S u n d ay the em ployer shall conspicuously post on p rem
ises a schedule containing a list o f em ployees perm itted to w ork on
S u n d ay and design atin g a da y o f rest fo r each and sh all file a copy
o f such schedule w ith the com m issioner and th a t n o em ployee shall
be perm itted to w ork on his designated da y o f rest.

The John R. Thompson Co. operated a restaurant on Sunday, and
one Ivan Bureau, an adult, worked in this restaurant on Sunday,
and no schedule was posted and filed with the State industrial com
missioner containing the name of this employee and designating a
day of rest for him. Upon being convicted in the court of special
session of the city of New York, the company appealed to the New
York Supreme Court, contending that a restaurant was not a “ mer
cantile establishment ” and therefore not included in the act. The
court said that—
A reading of this section would seem to show that a restaurant
does not fall within the definition of mercantile establishment as
that term is defined in this same law. As showing that the legisla
ture did not intend to include “ restaurant ” in its definition of mer
cantile establishment we note other sections of this same labor law.
By section 180, of chapter 50, Laws 1921 (the labor law), the
legislature provided that no child under the age of 16 years should

192

DECISIONS OF THE COURTS

be employed “ in connection with any mercantile establishment, busi
ness office, telegraph office, restaurant,55 thus showing that the drafts
men of this law differentiated between a mercantile establishment
and a restaurant. In the same way, in section 150, with reference to
a sufficient number of suitable seats for female employees, it is pro
vided that they shall be “ maintained in every factory, mercantile
establishment, "freight or passenger elevator, hotel, and restaurant.55
As to the contention that restaurants were included in the act
because they are not expressly exempt, as are hotel employees, the
court said that “ no failure to expressly exempt all those not affected
by the section can be held to include those not exempted by the terms
of the statute.”
In conclusion the court said “ it would therefore seem clear that
an employer engaged in the restaurant business under the present
statute is not affected by section 161 of the labor law.55
The decision of the lower court was therefore reversed.

W ages— A ssignm ents— In ju n c tio n — T o
f a r e —State

P r o te c t

ex rel. Smith, Attoi'ney General,
et al., Same v. Harcourt et al., Supreme Court
5, 1929), 280 Pacific Reporter, page. 906.— The
the State o f Kansas sought by court action to

P u b lic

W e l

et al. v. McMahon
of Kansas (October
attorney general of

stamp out the busi
ness o f usurers who prey upon the poorer classes o f working people
in the State, exacting from them yearly rates of interest ranging
from 240 per cent to 520 per cent. Accordingly, a petition was filed
by the attorney general in the district court o f W yandotte County,
A m on g the several allegations set forth

Kans., to suppress the evil.

in the petition o f the attorney general were the fo llo w in g : (1 ) That
the usurers purposely selected poor and necessitous wage earners as
their customers for the purpose o f compelling them to renew their
usurious loans from pay day to pay day, so that once obtained as
customers they would, for a long period o f time, be compelled to
pay the exorbitant rates o f interest; (2) that the borrowers were
compelled to pay the high rate and forced to sign the pretended
wage assignments for fear of losing their job s; (3 ) that threatened
garnishment disturbed the peace o f mind o f the borrowers and jeop
ardized their standing in the eyes o f the employer, thereby depriv
ing them o f “ rights to peacefully follow their respective law ful
occupations without annoyance or in ju r y 55; (4) that the loan busi
ness carried on in the State was “ repugnant to good conscience and
good morals and against public policy,55 and the exaction o f the
excessive rate of interest was in direct violation o f the provisions of
the law o f Kansas.

WAGES

193

The petition concluded by requesting that temporary and perma
nent injunctions be granted, restraining the usurers “ from loaning
money in small sums to laboring men at rates of interest in excess
of 10 per cent per annum.”
The district court denied the petition and the State of Kansas,
through the attorney general, appealed to the supreme court of the
State. The contention of the loan agencies was that the exaction
of usurious interest was of no concern to third parties, even to the
State itself, and that if any of the borrowers were aggrieved they
had a plain and adequate remedy at law.
The State statute (Rev. Stat. 41-102) provided in part that any
person so contracting for a greater rate of interest than 10 per cent
per annum shall forfeit all interest so contracted for in excess of
such 10 per cent. The attorney general maintained that the statute
was annulled by the money lenders and made ineffective until invoked
in some lawsuit. The wage earner, the State maintained, due to his
condition, “ has no time to attend court nor means to employ a lawyer
to invoke the defense to the usurer’s claim accorded by this statute.”
The State’s right to maintain the suit was upheld by the supreme
court, which stated that—
The long-continued subjection of hundreds of indigent debtors to
the usurious exactions of defendants by keeping them in fear of los
ing their jobs if they should have the temerity to assert the rights
accorded them by the beneficent statutes of this Commonwealth pre
sents a situation which can not be tolerated, and one which quite
justifies the institution of this litigation by the State itself.
The court reviewed several cases in which it was held that the
State had the right to initiate litigation over matters primarily of
private concern but secondarily of far-reaching consequence to the
public, and Judge Dawson in his opinion said:
The courts are not helpless to put a stop to such a nefarious business
as that of which plaintiff complains when that business has reached
the widespread prevalence it has attained in the principal industrial
communities of the State.
From the foundation of our Commonwealth it has been a matter of
civic pride that one of this State’s primary concerns has been that
the poor man shall have a fair chance to better his material condition.
To that end we have made the family homestead immune to judicial
process in invitum. The household goods of the family, the tools of
the workmen, and the needful agricultural chattels of the husband
man are generously exempted from execution sale.
The court, continuing, said that precedents for the particular form
of redress sought by the State of Kansas to suppress the evil were
rare, but referred to a New Jersey case (State v. Martin, 77 N. J.
Law, 652), in which it was held that although the taking of usurious
interest was not a criminal offense in New Jersey, yet interest in

194

DECISIONS OF THE COURTS

excess of 6 per cent per annum was forbidden and a loan office where
u the exaction of such usurious interest was systematically practiced
was a disorderly house, for the maintenance of which the usurer
could be indicted and punished.”
After reviewing the Kansas statute prohibiting usury, the court
reversed the judgment of the district court and concluded in part as
follows:
It will thus be seen that the exaction of usurious interest has been
denounced as unlawful and penalized by our legislature although it
is not one of the specific offenses enumerated in our crimes act. It is
not only illegal but it is a grievous antisocial iniquity and, when its
practice assumes the proportions and prevalence alleged by the plain
tiff, a court of equity should not hesitate to suppress it. * * *
The Kansas statute does prohibit usury and does prescribe penalties
(civil penalties inuring to the debtor), and the practice of usury being
unlawful in this State, upon sufficient aggravation, it may be sup
pressed by injunction.
W ages— Commissions— R e fu s a l to P a t — D isch arge a s A f f e c t i n g
R ig h t t o P a y m en t— Monroe v. Grolier Society of London, Swpreme

Court of California (October 28, 1929), 281 Pacific Reporter, page

604-— The

Grolier Society of London, publishers o f an encyclopedia,

appealed from the decision o f the superior court, L os Angeles County,
C alif., awarding $2,180.68 to Monroe, a former general agent o f the
society. The action was based upon a contract entered into by the
parties on June 23,1922, while Monroe was employed by the society.
The contract provided that Monroe should receive 2 per cent com
mission on all business booked subsequent to and 4 per cent on that
booked prior to October 1,1921. The subject o f dispute in this action
was whether Monroe was entitled to the 2 per cent o f net collections,
irrespective o f whether collections were made by him or by some one
else, after his employment had terminated.

The superior court de

cided the agent was entitled to all commissions, and the society ap
pealed the case to the Supreme Court o f California, contending that
Monroe had the duty o f making collections as well as making sales
and the right to commissions was dependent upon collections.

The court quoted 13 Corpus Juris, 625, section 486, in holding that
a contract “ must be construed as a whole and the intention of the

parties is to be collected from the entire instrument and not from
detached portions * *
Continuing the court said in part as
follows:
I f it had been the duty of the plaintiff only to make sales, then this
construction might be held permissible, but, in view of the fact that
the plaintiff had a double duty to perform as manager of the com
pany, we conclude that sales and collections were joint duties and

195

WAGES

obligations, and began and ended with the beginning and termination
of the contract of employment.
The court cited several cases holding that contracts for payment of
commissions did not give to the person employed any right to dues
collected after termination of the contract, and concluded the opinion
by saying:
The contract we have to consider relates to the performance of
the duties which we have herein specified, and when read in the light
of the duties to be performed, we conclude that there is no ambiguity
in the instrument relating to the plaintiff’s compensation, and that
he was to be compensated for the duties performed by him, and not
for the duties left unperformed; that is, his failure to make collec
tions during the term of his employment. This is further evidenced,
as we have nereinbefore said, by the fact that the plaintiff was em
ployed to perform duties left unperformed by his predecessor, and
paid a separate compensation therefor.
It follows from what has been said that, the error of the trial court
consisting only of a misconstruction of the contract, no further pro
ceedings need be had.
The foregoing consideration of the cause impels a reversal of the
judgment and a direction to the trial court to enter judgment in favor
of the defendant for the amount of its counterclaim set forth in its
answer, to wit, in the sum of $769.10, and costs.

ages —

e d u c t io n s

m ployers—

aym ent

is c h a r g e —

People v. Porter, Appellate Department, Superior Court, Los Angeles
County, Calif. (January 29,1930), 288 Pacific Reporter, page 22.—
Charles L. Porter was charged with a violation of section 6 of the
California Acts of 1919, page 294, regarding the payment of wages.
This section of the act makes it a misdemeanor for an employer,
under the conditions and intent therein mentioned, to refuse to pay
the wages of an employee when due and demanded.
It appears that Porter employed a Mrs. Gerrity as manager of
an apartment house under an agreement by which she was to receive
$25 per month and the use of an apartment, and charges for her
laundry, ice, milk, and other articles were to be deducted from her
wages. When she quit, Porter made a settlement with her, as a re
sult of which he gave her a check for $15.57 on which he later stopped
payment.
A t a hearing before the labor commissioner some further deduc
tions were made, and the commissioner found that the amount due
was $12.57, nonpayment of which was the basis of this suit. The Los
Angeles municipal court convicted Porter and he appealed the case
to the appellate division, superior court, Los Angeles County, con
tending that the court should take into consideration certain amounts
owed him by Mrs. Gerrity. The municipal court held that—

196

DECISIONS

th e

courts

No offset against wages due can be shown under this act and in
especial reliance on section 5, which provides a penalty collectible by
the employee for failure to pay wages “ without abatement or re
duction.”
The superior court held that the trial court erred in this ruling.
The court said:
The case was not prosecuted under section 5, but under section 6,
which does not contain the words “ without abatement or reduction.”
But, even if we assume that section 5 throws some light on the pur
pose and meaning of section 6, it has been held that the words “ with
out abatement or deduction ” in a statute similar to section 5, means
merely “ without discount on account of payment thereof before the
time they were payable according to the terms of the contract of
employment,” that they do not prevent the deduction of damages
caused by the employee’s breach of contract where he quits prema
turely, or of credits to the employer on account of money or prop
erty given to the employee in part payment of his wages and that,
if the statute were construed to forbid such deductions, it would be
unconstitutional.
We think a rule must be applied to cases arising under section
6, whereby the employer may show in his defense that he has valid
offsets or counterclaims to the wages the nonpayment of which is
the basis of the charge against him.
Since the ruling of the court below denied the defendant that
right, the judgment must be reversed, and the cause remanded to
the municipal court for a new trial.

a g es—

I n j u n c t i o n — I n t e r f e r in g

ages — Bowen

w it h

m ploym ent—

s s ig n

v. Morris et al., Supreme Court of Alabama
(June 27, 1929), 123 Southern Reporter, page 222.— M. E . Bowen
had been employed for about 16 years as a trainman by the Louisville
& Nashville Railroad Co. For about 11 years he had been employed
as a locomotive fireman.
From the facts in the case it appears that Bowen borrowed $8
from Morris, giving a note for $10. Semimonthly thereafter he
paid $6 for five and one-half months on account of such loan and a
further payment of $15. Notwithstanding the loan was long over
paid Morris presented a bill through a justice of the peace for $91
and induced Bowen to execute a new note, carrying an assignment of
wages as security. A strict rule of the railroad company was to
discharge any employee whose wages are garnished for the third
time. Bowen’s wages had already twice been garnished and a third
would result in his discharge. The present action was by Bowen to
restrain Morris from garnishing his wages and causing a consequent
loss of employment. In the circuit court of Morgan County, Ala., it
was contended that Bowen had an adequate remedy at law, and the
court dismissed the case. The question involved on the subsequent
m e n t of

WAGES

197

appeal to the Supreme Court of Alabama was whether the wrongful
action threatening the relation between Bowen and his employer jus
tified resort to an injunction. The supreme court held that Bowen
was entitled to injunctive relief.
The court in determining whether there was a case for injunctive
relief said:
I f respondent’s claim is spurious, if his present note and security
was acquired without consideration and pursuant to the oppressive
methods of the “loan shark ” as averred, complainant can show such
facts and defeat the garnishment suit, as well as sue on the garnish
ment bond or in case for legal damages. The controlling question is,
Does the wrongful action threatening the relation between the com
plainant and his employer justify resort to injunction?
The right to conduct one’s business, without the wrongful inter
ference of others is a valuable property right which will be pro
tected, if necessary, by injunctive process. (Hardie-Tynes Mfg. Co.
v. Cruise, 189 Ala. 66, 66 So. 657.)
In another case (Tallassee Oil & Fertilizer Co. v. H. S. & J. L.
Holloway, 200 Ala. 492, 76 So. 434) the supreme court declared that
“ a competition in business injuriously affected by a course of busi
ness pursued by his rival in violation of a duty to the public is en
titled to injunctive relief,” and again in the case of United States
Fidelity & Guaranty Co. v. Millonas (206 Ala. 147, 89 So. 732) this
court said that “ one’s employment, trade, or calling is likewise a
property right, and the wrongful interference therewith is an
actionable wrong.”
The court also quoted from court decisions in other jurisdictions
and said that “ on these authorities and the sound principles under
lying them, we are at the conclusion the remedy at law for the wrong
ful acts here complained of is not full, complete, and adequate.”
The court continued:
Necessarily, the actual damages resulting from a discharge of this
complainant by his employer, severing his long relations, and put
ting him to the task of finding a new job, may be one for which he
is untrained, is quite indefinite. This is rendered more uncertain
because of no fixed tenure of employment. Moreover, we have held
that wounded feelings, the humiliation, and anxiety to result from
such wrongful act of respondent is proper matter ox damages. But
such damages are not subject to any pecuniary standard of measure
ment. This fact is one recognized as a basis for injunctive relief.
(32 C. J. 136, sec. 181.)
The decree of the lower court was therefore reversed.

ages — M e c h a n i c s ’

ie n — S e c u r i t y

for

P a y m e n t — Dodd v.

Horan (Beeson-Moore Stave Co., Intervener), Supreme Court of
Louisia/m (November h 1929), 126 Southern Reporter, page 225,-—

DECISIONS OF THE COURTS

198

D. D. Dodd filed suit against J. C. Horan, a stave manufacturer, for
$350 claimed as the balance of a monthly salary for services rendered
in the stave mill. Dodd claimed a lien on the staves manufactured
during the term of his employment, and he asserted the laborer’s
lien and privilege upon all of the staves manufactured during the
period of his employment with Horan and provisionally seized all
staves then in the mill yard.
The Beeson-Moore Stave Co. intervened and opposed the seizure,
claiming that it had bought the staves from Horan without the
knowledge of the claim of Dodd, and also contended that Dodd was
employed by Horan as a bookkeeper only and therefore had no lien
on the staves. The district court found that the stave company had
not bought the staves but had merely advanced money to Horan to
enable him to manufacture them and recognized Dodd’s lien on
the staves and ordered them sold to satisfy the judgment.
Horan did not appeal, but the stave company carried the case to
the Louisiana Court of Appeal, which held that Dodd was em
ployed only as a bookkeeper at the mill and therefore had no lien
on the staves and ordered the staves released from the provisional
seizure.
Dodd carried the case to the Louisiana Supreme Court contend
ing that inasmuch as Horan had not appealed from the judgment
against him the court of appeal was without authority to reverse
the judgment which the district court had rendered in favor of Dodd.
The Supreme Court of Louisiana affirmed the judgment of the
court of appeal, but on a rehearing remanded the case to the court
of appeal with instructions to decide whether the Beeson-Moore
Stave Co. bought the staves which were seized. I f the court found
that the stave company did not buy the staves from Horan previous
to the seizure, the court of appeal was instructed to affirm the deci
sion of the district court.

ages —

R e f u s a l to

P ay— D

ischarge

as A

f f e c t in g

R ig h t to

Whitehead v. E. J . Deas Go. (Inc.), Court of Appeal of
Louisiana (June 28, 1928), 118 Southern Reporter, page 856.—
G eorge S. W h ite h e a d was em ployed by the E. J. D ea s Co. (I n c .)
Payment—

as n ig h t operator o f a m achine used in excavation w ork fo r three
n igh ts o f

10 hours each, at the rate o f 90 cents per hour. A f t e r the
The com pany refu sed to p a y

th ird n igh t W h iteh ea d was discharged.
the

$27 due, and W h ite h e a d brought suit.

U p o n su it b ein g filed the

com pan y offered to p a y W h ite h e a d a reasonable su m fo r the w ork
done, but he refused to accept any sum less th an
date o f the em ploym en t.

$9 per d a y fr o m the

WAGES

199

The first judicial district court, Parish of Caddo, La., awarded
judgment in favor of Whitehead for the amount of the wages
claimed and penalties to the date of the judgment, as provided in
the Louisiana Act No. 150 of 1920. This act provides that if an
employer, upon discharging an employee, refuses to pay the wages
due upon demand he shall be liable for his full wages from that
time until the wages are paid. The district court awarded a judg
ment in this case aggregating $1,053, and from this the Deas Co.
appealed.
The company alleged that Whitehead was hired under the express
agreement that he was competent to operate the machine, but that
it had developed he was incompetent and had not worked for the
full period of 10 hours per day, and while operating the machine
had damaged it to the extent of more than $2.50; that they had
offered to pay him a reasonable sum, but he had refused to accept
this payment.
Judge Webb, of the court of appeal, speaking for the court in
regard to the above facts alleged by the company, said, in part, as
follows:
We are of the opinion that, while it established that plaintiff’s em
ployment was on trial and dependent upon his ability to operate the
machine efficiently, yet it shows that the amount of wages to be paid
was agreed upon and it does not establish that plaintiff had damaged
the machine, or that he had not put in full time, and although the
evidence shows that he was not thoroughly familiar with the ma
chine, and did not operate it efficiently, he was entitled to receive
the wages agreed upon for the time he worked, and that he was
under the statute entitled to demand the penalties for nonpayment;
however, on trial it was shown that, after the suit had been filed,
defendant offered to pay the full amount of wages claimed, and that
plaintiff would not accept the amount due for wages without the pay
ment of the penalties.
The statute must be strictly construed as to the right to recover
penalties, against which equitable defenses may be interposed
(Deardorf v. Hunter, 160 La. 213, 106 So. 831), and the evidence
showing that the defendant, although urging that the employee was
not entitled to be paid the wages claimed, offered to pay same, we
think that the offer should have been accepted and further accumu
lation of penalties stopped.
The judgment of the lower court was annulled and set aside and a
judgment given to Whitehead in the sum of $27, the amount of
wages, and $54 for penalties, or a total sum of $81 with legal interest.

W ages— S crip— F orcing E mployees to T rade a t C ommissary —

Hackney v. Fordson Coal Co., Court of Appeals of Kentucky (June
21,1929), 19 Southwestern Reporter (2d), page 989.— The Fordson

200

DECISION'S OF THE COURTS

Coal Co. operated mines in Pike County, Ky., and in connection with
the mines operated a commissary. Anderson Hackney was engaged
in running a general store in the same locality but was in no way
connected with the Fordson Coal Co.; in fact, he competed with the
commissary for the trade of the employees. On September 1, 1927,
the Fordson Coal Co. notified their employees that it would there
after issue scrip up to an amount not exceeding 70 per cent of each
employee’s earnings. The notice concluded that uAny employee
passing scrip to an outsider, so that it will require the company to
redeem the same, will be discharged.”
Hackney brought this action against the Fordson Coal Co., alleg
ing damages as a result of his loss of trade due to this ruling of the
company. As a basis for this claim he relied upon section 2738sl
of the Kentucky Statutes, which provides in part that—
It shall be unlawful for any of such employers as described in the
first section to exclude from work or to punish or blacklist any of
said employees for failure to deal with any other or to purchase any
article of food, clothing, or merchandise whatever from any other
or at any place or store whatever.
Section 466 of the statutes provides that a person injured by the
violation of any statute may recover from the offender the damages
he has sustained.
The circuit court of Pike County rendered a judgment in favor of
the coal company and Hackney appealed to the Kentucky Court of
Appeals. This court affirmed the judgment of the lower court in
holding section 466 applied only to those persons for whose benefit
the statute was passed. In regard to section 2738sl, the violation of
which gave rise to the complaint, the court said that section—
Was passed for the benefit of employees, to the end that they
should not be coerced into trading at the commissary of their em
ployer, where they might be subject to extortion and all manner of
unfair dealing. The section was never intended to protect those
merchants who were in competition with the employer for the trade
of his employees. Therefore, although an employee of the appellee
may have a right of action for the violation of this statute, if it has
been violated, a point we need not determine, yet, as the appellant
was not an employee or one for whose benefit the statute was passed,
he has no cause of action for its violation.

W ages— Scrip, T ok en s, etc.— P aym en t to T h ird Person—

West

ern Kentucky Coal Co. v. Nall <& Bailey, Court of Appeals of Ken
tucky February 19 1929), H Southwestern Reporter (2d), page
JfiO.— The W est Kentucky Coal Co. operated a coal mine employing
more than 20 persons as laborers. In payment for labor it issued to

its miners brass disc orders ranging in amount from 5 cents to $1-

WAGES

201

Nall & Bailey were merchants located in the same town and running
a mercantile establishment in competition with the coal company’s
store. They brought this suit against, the coal company to recover
$2,050.50, the amount of the metal discs issued by the coal company
to its employees, which they had taken in at their store in payment
for merchandise. They complied with the provisions of the act by
keeping an accurate record of the amount of scrip purchased and the
name of each person from whom it was purchased, the date thereof,
etc., and presented this record when demanding payment.
The circuit court, Webster County, Ky., rendered a verdict in favor
of Nall & Bailey and the coal company appealed to the Kentucky
Court of Appeals, insisting that before the mercantile store could
maintain their action they must show that the parties from whom
they purchased the metal discs were employees of the company.
Holding this contention untenable, the court said:
The statute plainly does not confine the right of action to the person
who buys from the laborer. For the legislature well knew that it is
notorious that the laborers about a coal mine frequently pass these
discs to others; in fact, they furnish a large part of the currency used
there. For this reason the statute requires the employer to redeem
same, at least once in each month, on a regular pay day, from any
person or persons who may present same for payment, and further
provides that any person or persons buying the scrip which has been
issued to employees for labor shall be entitled to sue the person or
firm or corporation issuing the same if payment is refused. In other
words, the statute clearly gives the person who may present the discs
for payment a right to sue the employer thereon, if not paid.
As the discs were used in making change it was further insisted
that the discs offered for redemption were not the identical discs
taken in exchange for merchandise, as shown by the record. The
court held this contention without merit, saying:
The clear purpose of the statute was to protect the employees from
having to buy at the company’s store. The provision that the em
ployee might be credited by the balance, when the person presenting
the scrip had not paid par for it, has no application here, because
the undisputed testimony is that the plaintiffs paid par in merchan
dise for all the scrip they bought. This provision for the protection
of the laborer in no manner affects the right of the purchaser to sue
for the full amount of the scrip, where he has paid par for it to the
person from whom he bought it. The statute must be fairly con
strued to carry out the legislative purpose as expressed in the act.
The court concluded the opinion by saying:
It is contended that the purpose of the statute was to protect the
wage earner against scalpers, who buy trade checks at large discount,
and that the act should be construed to require the purchaser, not
only to make a record of the name of the one from whom he pur
chased, but that he should require also a like list to be furnished him
by the seller, if the seller was not himself the laborer who drew the

202

DECISIONS OF THE COURTS

check, and, further, when a party purchases from another party who
purchased checks, and the seller did not make a list of the names of
the laborers from whom he purchased and deliver it, along with the
checks, to the last purchaser, the act would be violated. But we are
unable to sustain this contention. There is nothing in the statute
from which that construction could be deducted.
The judgment of the circuit court was therefore affirmed.

ages

— “ S t r a ig h t

T im e ”

C on tract — O v e r t im e — A

dam son

v. Pennsylvania R. Go., Circuit Court of Appeals,
Seventh Circuit (December 7,1929), 37 Federal Reporter (2d), page
874.— In January, 1921, Andrew D. Plummer began his employment
“ to ride and assist in the operation of the trains of the Pennsylvania
Eailroad, in interstate commerce, and to watch, protect, and guard
said trains and the goods, merchandise, and passengers transported
thereby from loss or injury at a compensation of $180 per month.”
In May, 1927, when he discontinued working for the Pennsylvania
Eailroad, he brought action against the railroad under the first sec
tion of the Adamson Act (45 U. S . C . A., sec. 65), to recover for
services rendered in excess of eight hours a day for the period of
six years. The applicable part of section 1 of the Adamson Act
provides—
A

ct —Plwrrwier

That beginning January 1,1917, eight hours shall, in contracts for
labor and service, be deemed a day’s work and the measure or stand
ard of a day’s work for the purpose of reckoning the compensation
for services of all employees who are now or may hereafter be em
ployed by any common carrier by railroad, * * * and who are
now or may hereafter be actually engaged in any capacity in the
operation of trains used for the transportation of persons or prop
erty on railroads. * * * (39 Stat. 721 (45 U. S. C. A., sec. 65).)
The United States District Court for Eastern Illinois rendered a
verdict in favor of the railroad company and Plummer appealed to
the Circuit Court of Appeals, Seventh Circuit. The company con
tended that a special officer or train rider did not fall within the
provisions of the section; that the section does not fix wages; and
that compensation for time served in excess of eight hours daily
can not be recovered unless contracted for.
In deciding this case the Circuit Court of Appeals cited the deci
sion of the Supreme Court sustaining the constitutionality of the
act (Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298), in which case
the court held that the first section permanently established an 8-hour
day in the specified employments, but that it did not undertake to
limit the hours of service or to fix wages therefor. It thus remained
within the right of employers and employees to agree between them
selves upon hours to be served and the wages to be paid therefor.

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

203

(Cases cited.) In concluding the opinion affirming the judgment of
the lower court denying recovery for the overtime, the court said:
I f these parties had agreed in writing that the service should be
12 hours daily, and the pay therefor $180 a month, or should be at
the rate of $120 a month for an 8-hour day, and $180 a month for
a 12-hour day, it could not more definitely appear that such was the
contract, than does appear from the fact tnat appellant, for more
than six years, worked 12 hours daily for this employer, and received
therefor $180 for each month worked. From this long uniform
practice there is no room for any other conclusion than that the
minds of the parties met on an undertaking by appellant to serve
12 hours daily and appellee to pay in full for such 12 hours of daily
service $180 each month.

W o r km en ’ s C ompensation — A ccident — C ourse of E m plo ym en t —

Neudeck v. Ford Motor Go., Supreme Court of Michigan (March 6,
1930), 229 Northwestern Reporter, page 438.— Louis Neudeck was
employed by the Ford Motor Co. in the latter part of July, 1928, and
immediately upon being employed he was ordered by the officials of
the Ford Motor Co. to be vaccinated. He was vaccinated thereupon
at the company’s plant, by a doctor employed by the Ford Motor Co.
As an effect of the vaccination Neudeck incurred a streptococcus
poisoning, the focus of infection being the vaccinated arm, and as a
consequence he died September 3, 1928.
Delia Neudeck, the widow, was totally dependent on the deceased
and soon after his death filed claim for compensation. The Michigan
Department of Labor and Industry awarded compensation to the
widow and the Ford Motor Co. appealed the case to the Supreme
Court of Michigan, contending that the injury was not accidental and
not in the “ course of employment.” They cited the case of Krout v.
J. L. Hudson Co. (200 Mich. 287, 166 N. W . 848) in which an em
ployee was vaccinated by a physician from the city board of health
and later contracted infection, the court held it was not a com
pensable accident. However, the court distinguished the case at bar
from the Krout case by saying:
There the vaccination was by a public agency, independent of the
employer and employment. Here the vaccination was performed by
defendant’s physician, was suffered by the employee under direct
order of defendant, neither the employee nor defendant was under
the compulsion of public authorities, but defendant was acting in a
merely discretionary compliance with a request. The vaccination
occurred in the course and out of the employment.
The court concluded the opinion, affirming the award of compensa
tion, by saying:
It may be conceded that the vaccination wound was not an accident
because it was not an 44unforeseen event.” But vaccination is

204

DECISIONS OF THE COURTS

usually harmless, and, under the above authorities, infection there
from is an accident. Of course, no one could testify that he saw a
germ enter the wound, The most that could be done would be to tell
the condition which would render infection probable or possible. No
testimony was introduced to indicate how or when the infection did
or could have occurred or its cause. The only cause, time, and place
indicated in the record are found in the concession in the statement
of facts, that the infection was an effect of the vaccination. This
concession ties the accident of infection to the act of vaccination as
occurring in the course of the employment.

W orkm en ’ s C ompensation — A ccident — C overage— F ailure to
G ive ^OTicm-^-Sewrs-Roebiock <& Go. v. Starnes, Supreme Court of

Tennessee (April 5, 1930), 26 Southwestern Reporter (2d), page
128.— Lois Starnes filed suit against her employer, Sears-Roebuck &
Co., to recover compensation for an alleged injury. The injury for
which compensation was sought resulted from an infection following
the formation of a callous upon the employee’s finger tip. This callous
in turn was occasioned by the operation of a listing machine, which
worked with considerable stiffness, and on which the employee was
required to make about 10,000 operations daily. She had been oper
ating the machine about five weeks when there developed an in
fection upon her finger, and this necessitated a minor operation and
brought about the disability, which in the opinion of the physician
was likely to be permanent.
The Shelby County circuit court rendered a verdict in favor of
the employee, and Sears-Roebuck & Co. appealed to the Tennessee
Supreme Court. The appeal presented three questions for con
sideration :
1. Was the trial court warranted in holding that the appellant
came within the application of the compensation act, there being no
direct proof offered to establish the allegation that it employed as
many as five persons ?
2. Was the employee’s injury compensable?
3. Were the circumstances of the case properly held to have ex
cused the employee from giving the written notice directed by the
statute ?
The supreme court answered the first question in the affirmative,
as the proof showed that the employer operated a department store
and maintained numerous divisions, and also that it maintained a
hospital for the treatment of the employees and that a practicing
physician and a nurse were employed as a hospital staff. From this
evidence the natural and common-sense inference was that the com
pany employed more than five employees, and the court held that
the employees came within the compensation law.

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

205

The employer admitted that the injury arose out of and in course
of the employment, but contended that it was not an “ accident ”
within the meaning of the act. The court cited cases in which this
court and other courts had held that unexpected or unusual events
were “ accidents,” and said:
It is not a far cry from the doctrine thus announced to an allow
ance of compensation in the case before us. In the instant case the
employee might have expected a callous to appear on her finger tip,
just as callouses often do upon the finger tips of stenographers and
violinists, but the appearance of an infection therefrom was some
thing fortuitous, not to be expected, an unusual event or result, and
therefore accidental.
I f it be said that the callous required too long to develop to be
regarded as an accident, it may be answered that it is not the callous
but the superadded infection which constitutes the injury, and that
this manifested itself suddenly, albeit not instantaneously.
Regarding the failure to give notice, the court said that was a
matter left to the discretion of the trial judge by the statute, and
in this case the trial judge evidently thought that when the employer
sent the employee to the hospital, operated on her finger, and inquired
concerning it the employee was under all the circumstances not un
naturally of the opinion that sufficient notice had been given.
The decision of the circuit court awarding compensation was there
fore affirmed.
W orkm en ’ s

C ompensation — A gcident — H ernia — P reexisting

C ondition — Carr v. Murch Bros. Construction Co. et al., St. Louis

Court of Appeals (December 3, 1929), 31 Southwestern Reporter
(3d), page 897.— Abner J. Carr, an engineer employed by the Murch
Bros. Construction Co., suffered a strangulation o f a preexisting
hernia while reaching up to turn off a steam valve o f an engine.
The Industrial Commission o f Missouri awarded compensation and
held that—

Where a preexisting hernia is aggravated and accelerated by an
accident the employer and insurer are liable for the loss of time
occasioned thereby and also for an operation and necessary hospital
and medical cost not exceeding $250.
This is not a claim for compensation for hernia under section 17 (b)
of the act. It is a case of accidental strangulation of a preexisting
hernia, which made an operation immediately necessary to save the
employee’s life. I f an accident hurts a hernia there is no more rea
son for denying compensation than if any other sound or unsound
part of the body is hurt. It is merely an aggravation of a preexisting
condition and is compensable as other aggravations.
The St. Louis circuit court affirmed the award of the commission,
and the employer and insurance carrier appealed the case to the
66588°—31----- 15

206

DECISIONS OF THE COURTS

St. Louis court of appeals. On appeal it was contended that the
evidence did not show that there was an accident resulting in hernia
and that the hernia did not exist in any degree prior to the injury.
Section 7 was cited, showing that the word “ accident ” as used in
the compensation act meant “ an unexpected or unforeseen event,
happening suddenly and violently, with or without human fault and
producing at the time objective symptoms of an injury.” It was
argued that the “ unexpected or unforeseen event ” as used in the
definition meant some unusual event or unintentional act or move
ment of the claimant or other person or thing such as a slip, a fall, or
a blow, or an explosion, or a breaking down, or some unusual per
formance of machinery or appliances.
The appeals court said, however, that such a construction was out
of accord with both the language of the statute and its manifest
purpose. The court concluded by saying that “ the unexpected or
unforeseen event ” as used in the statute included an unexpected or
unforeseen event (result) ensuing from a usual and intentional act or
movement of the claimant done in the ordinary course of his
employment.
The judgment of the circuit court sustaining the award of the
commission was therefore affirmed.

W o r k m e n ’ s C o m p e n s a t i o n — A c c i d e n t — H e r n i a — R e l e a s e — Guil
lod v. Kansas City Power & Light Go., Kansas City Court of Appeals
(June 10, 1929), 18 Southwestern Reporter (2d), page 97.— R. W .
Guillod, in the course of his employment with the Kansas City
Power & Light Co., picked up a coil of wire, weighing approximately
100 pounds, in an effort to place it in a service truck. He felt a sharp
pain in his right side and immediately let the coil drop to the
ground. He continued to work all that day, which was Saturday,
and all of the following Monday (February 7, 1927), when at about
5 o’clock he called upon Dr. Clarence McGuire, who diagnosed the
case as right inguinal hernia at the same place where, in December,
1924, this doctor had operated upon Guillod for the same trouble.
In 1924, Guillod executed a release to the company for any claim
he might have had from said rupture, in consideration of $100.
Upon filing claim for compensation the Missouri Compensation
Commission allowed him the sum of $250 for medical aid and for
temporary total disability of $20 per week for nine weeks. An
appeal to the circuit court of Jackson County, Mo., resulted in a judg
ment sustaining the award. The power company carried the case
to the Kansas City court of appeals, where it was contended the
facts found by the commission and sustained by the trial court did

WORKMEN *S COMPENSATION

207

not support the award and that there was not sufficient competent
evidence in the record to warrant the conclusions reached.
The first contention was that the injury did not result from an
accident. Regarding 'this point the court cited several cases in
which this question was raised. In the case of Manning v. Pomerene
(101 Nebr. 127, 162 N. W . 492) the Nebraska Supreme Court dis
cussed the objective symptoms necessary for “ an accident,” saying
in part as follows:
We are of opinion that the expression has a wider meaning, and
that symptoms of pain and anguish, such as weakness, pallor, faint
ness, sickness, nausea, expressions of pain clearly involuntary, or any
other symptoms indicating a deleterious change in the bodily condi
tion may constitute objective symptoms as required by the statute.
The court continued the opinion by saying:
In the case at bar claimant testified that when he first lifted the
coil of wire there was a sharp pain in his side; that he was nauseated;
that he had recurrent nausea over Sunday and Monday following,
and on the last-named day he went to Doctor McGuire, who exam
ined him and pronounced his trouble inguinal hernia. And, as in
the Nebraska case, the trial court sitting as a jury found the facts
established the occurrence of an accident. We think there was no
error in so holding.
The second contention made by the company was that the injury
was not compensable as Guillod had failed to prove all the things
required in section 17 (b). The court, however, ruled that section 17
(b) applied only to permanent partial disability, and as Guillod was
not asking and was not awarded any compensation for permanent
partial disability section 17 (b) did not apply. The company also
contended that the release secured in 1924 was a bar to any claim
for the recurred hernia, which occurred February 5,1927. The court
did not uphold this contention, saying in part:
It is defendant’s contention that the release of December 24, 1924,
bars recovery herein because the hernia upon which the award was
made was a recurring one. We are not in accord with defendant’s
view in this respect. In making the award the commission pointed
out there is a distinction between a claim for hernia resulting from
an accident and one for aggravation of an existing hernia caused by
an accident. The one is for hernia itself and the other for an injury
to the hernia already existing. * * * In an action for negligence
a release amounting to a contract against future negligence, of course,
would be void as applied to another or independent injury. Con
tracts against liability imposed by the common law, or by statute, are
held to be void. (Hartman v. Railway, 192 Mo. App. 271, 182 S. W .
148.) It is said in Railroad v. Kerrick (178 Ky. 486, 199 S. W . 44)
“ The law is that one may recover for an injury which aggravates
an existing one, or develops a latent one so as to increase the pain
and suffering or results in permanent impairment of the injured

208

DECISIONS OF THE COURTS

person.” It was held in that case that one who had a hernia may
recover where another accident caused a new hernia, or greatly
aggravated the first.
The judgment of the circuit court affirming the award of the work
men’s compensation commission was therefore affirmed.

W o rk m en ’s Compensation— A ccid e n t— H e r n ia — Temporary T o
t a l D isa b ility — Drecksmith v. Universal Carloading <&Distributing

Co. et al., St. Loms Court of Appeals {June 4 , 1929), 18 Southwest
ern Reporter {2d), page 86.— On March 14, 1927, Edward Dreck
smith was in the employ o f the Universal Carloading & Distributing
Co. as a laborer, and while liftin g a box from the floor he felt a sharp
pain.

The box weighed around 130 pounds, and Drecksmith, as

sisted by a fellow
he felt the sharp
and that he lifted
work until noon,

employee, had lifted it about 3 y2 feet high when
pain. H e stated that he did not slip in any way
“ just as he always did.” Drecksmith continued to
and after lunch, about 2.30 p. m ., he consulted a

doctor, who found he was suffering from a hernia, the result o f a
preexisting condition aggravated by the accident.

He filed claims for compensation and was awarded an amount to
cover the temporary disability resulting from an operation for the
hernia. The circuit court of St. Louis later affirmed the award, and
the company appealed to the St. Louis court of appeals, contending
(1) that the injury was not the result of an accident, and (2) accord
ing to the statute it was not compensable, even though the court might
find it resulted from an accident. As to whether the injury resulted
from an accident, the court said in part as follows:
In the present case the employee was not aware that he was predis
posed to hernia, and could not have been expected to anticipate that
the act of lifting the box would bring about the protrusion which
resulted. So far as he was concerned, there were present all the
elements constituting an accident within the terms of the statute as
defined therein.
In the case of Puritan Bed Spring Co. v. Wolfe (120 N. E. 418)
the court said:
“ We recognize that there is a line of compensation cases in other
jurisdictions which give to the word ‘ accident ’ used in the respective
compensation acts, a restricted meaning which in a measure justifies
appellant’s contention, but the weight of authority and the better
reason, we think, favors the adoption of the popular meaning of said
word, which includes 6any unlooked-for mishap or untoward event
not expected or designed.’ This court has given to said word the
popular meaning indicated.” [Cases cited.]

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

209

In considering whether the injury was compensable the court cited
the recently decided case of Yon Cloedt v. Yellow Taxicab Co. et al.
(18 S. W . (2d) 84), in which this court held that—
Under our statute hernia resulting from injury arising out of and
in the course of the employment is compensable upon the same condi
tions as are other compensable injuries, excepting as to compensation
for permanent partial disability, in which cases the legislature has
seen fit to provide as a prerequisite to recovery that there shall be
proof made as provided for in subsection (b) ox section 17.

W o rk m en ’s Compensation— A ccid e n t— H e rn ia — Tem porary

t a l D isa b ility —Lawrence v. Stark Bros. Nurseries & Orchards Go.

et al., St. Louis Court of Appeals (June 4, 1929), 18 Southwestern
Reporter (2d), page 89.— On May 13, 1927, Charles E. Lawrence
filed with the Missouri Compensation Commission a claim for com
pensation for what he designated as an injury to his abdomen but
which was shown to have been a hernia alleged to have been sus
tained by him on March 25,1927, while he was engaged in piling up
a rick of grapes in the packing house of his employer, Stark Bros.
Nurseries & Orchard Co., at Louisiana, Mo.
The commission awarded Lawrence as compensation the sum of
$175 for medical aid and $10 a week for 12 weeks for temporary
total disability together with an allowance of $60 for attorney’s fees.
The rulings of law handed down by the commission were two in
number:
First, that, where an accident so aggravates a preexisting hernia
as to make an operation
snsation is payable under
section 17, paragraph
permanent partial disability, but that compensation is payable under other sections of the
act for the consequences of the aggravation, including the cost of the
operation, temporary total disability caused thereby, and any tem
porary total disability caused by the aggravation; and, second, that
where the employee is unable to work by reason of the attempts of the
insurer to treat a hernia by means of a truss, compensation for
temporary total disability should be paid during such period.
The award was affirmed by the Pike County circuit court (Mis
souri) and the employer and insurer appealed to the St. Louis court
of appeals. The employer denied that an accident as defined by the
statute had occurred, and denied generally that the claim had set
forth facts which made the injury compensable. It was further con
tended that the subsection (b) regarding hernia in section 17, per
taining to permanent partial disability, by its own terms referred
to “ all claims for compensation for hernia resulting from injury
arising out of and in course of the employment.”
In answering these contentions the court cited the case of Von
Cloedt
Yellow Taxicab Co. (18 S. W . (2d) 84), wherein the iden

210

DECISIONS OF THE COURTS

tical questions were presented and upon the authority of this case
the court said in concluding the opinion:
W e have held that hernia, or an aggravation of existing hernia,
sustained by accident arising out of and in the course of the employ
ment, is compensable, absent a limitation in the act as to a recovery
therefor; that the limitation provided by section 17, paragraph (b),
was intended to, and does, extend only to claims for compensation
for permanent partial disability; and that as to the award for medi
cal, surgical, and hospital treatment covered by section 13, and as to
compensation for temporary total disability under section 15, a her
nia stands upon exactly the same footing as any other injury that
has been made compensable under the act.
The St. Louis court of appeals therefore affirmed the award of the
lower court and the industrial commission granting compensation.

W orkm en ’ s C ompensation — A ccident— P reexisting C ondition —
E vidence —In re Larson, Larson et al. v. Blackwell Lumber Go.
et al., Supreme Court of Idaho (July 29,1929), 279 Pacific Reporter,
page 1087.— Andrew Larson was employed by the Blackwell Lumber
Co. as a laborer. On April 19,1927, after lifting some tackle, weigh
ing about 110 pounds, into a wagon and attempting to put a burr
on a bolt underneath the wagon, a latent physical defect, aneurism,
was accelerated or aggravated. He left his place of employment and
walked home, a distance of 1y2 miles. His condition grew worse
and he died on the morning of April 21, 1927.
The widow filed claim with the Idaho Industrial Accident Board
and was denied compensation. This was affirmed by the district
court, Kootenai County, Idaho, and the widow and administratrix
appealed to the Supreme Court of Idaho.
The lumber company received the judgment in the lower court on
the grounds that the injury (1) was not an accident but a “ per
sonal injury ” and (2) was due to an undisclosed preexisting defect.
Regarding the first of these findings by the industrial commission,
the court said, in part, as follows:

The evidence shows without dispute that deceased had been lifting,
that the pain in his chest was simultaneous with his attempt to put
the burr on the bolt, and that the strain deceased was subjected to
caused the happening of the unforeseen event, namely, the dissection
of the wall of the aorta spreading farther. Deceased was unable to
complete what he attempted to do, in the course of his employment.
What he attempted to do, if it did not cause the aneurism, accelerated
or aggravated it, and was an accidental injury.
In dismissing the second finding of the commission the court said:
While there are authorities to the contrary, the weight of authority
and the better reasoned cases lay down the rule that, although a

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

211

laborer may have had an injury or a preexisting physical weakness
which reduces his ability to work below that of a normal man, and be
thereby more susceptible to injury, yet if he is able to do some work
and is employed, and in the course of his employment receives an
injury, he is entitled to an award notwithstanding the former injury.
[Cases cited.]
The court cited the case of Hillhouse’s Estate (271 Pac. 459), in
which it was held that there must be competent and substantial evi
dence to support the findings of the board and district court, and if
such findings are clearly unsupported as a matter of law, it is within
the province of the supreme court to set aside said findings and
decision. Upon the authority of this case, the court concluded the
opinion as follows:
We have reached the conclusion that there is no such conflict in
the evidence as to warrant a holding that the findings of the board
and the court must be upheld, and we are clearly satisfied that the
great weight or preponderance of the evidence is against the findings
and the decision, and that there is no substantial evidence to support
them.
W orkm en ’s C ompensation — A ccident A rising O u t of and i n
C ourse of E m plo ym en t — A ct of P ersonal

C onvenience — E v i

v. Iowa Railway & Light Go., Supreme Court of
Iowa (September 24,1929), 226 Northwestern Reporter, page 719.—
August Bushing was employed by the Iowa Railway & Light Co. as
a fireman in the company’s power plant located at Marshalltown,
Iowa. His duties were the general and ordinary duties of a fireman,
and he also disposed of ashes and shoveled coal in the yard. On the
afternoon of December 8,1917, Bushing went to his work at the usual
time and put in about two hours shoveling coal in the yard. Some
time after 4 o’clock of that day he was missed. A search was insti
tuted, but he was not found until the following morning about 7.30
a. m. His body was found on the balcony above the boiler room, lying
in a position of rest and gave no evidence of any struggle. A short
circuit was found in a wire near by and the physicians who performed
an autopsy on the body were of the opinion that Bushing had died
from an electric shock. The widow filed claim for compensation and
the employer denied liability. The matter was referred to an arbi
tration committee as provided by the Iowa compensation law. This
committee found that the death occurred at a place where his employ
ment did not require him to be, and that he was apparently doing
something that he was not employed, authorized, or expected to do
and therefore the widow was not entitled to compensation.
On June 24,1918, a petition for review was filed, but due to a fail
ure to furnish a copy of the evidence before the arbitration committee,
the hearing was delayed until August 9, 1928. The commissioner
dence — Bushing

212

DECISIONS OF THE COURTS

reversed the decision of the committee, and awarded compensation
for a period of 300 weeks. The award of $2,595 was affirmed later
by the district court on the ground that the death arose out of and in
the course of employment. The railway company carried the case
to the Supreme Court of Iowa. Among the errors relied upon by the
company was the finding that the injury arose out of his employment,
and they contended that the decision was based upon inference hav
ing no evidence to support it. These contentions were answered by
the supreme court in part as follows:
The evidence in this case is ample to show that Bushing’s presence
on the gallery was not in violation of any rules of the employer, and
that if he had desired to open or close the windows, it was his privi
lege to do so. An accident to an employee may arise in the course
of his employment, although he is not actually working at the time
of the injury. Holland-St. Louis Sugar Co. v. Shraluka (64 Ind.
App. 545, 116 N. E. 330). There is nothing in the record which
would tend to show that Bushing intended to abandon his employ
ment, or that his presence on the gallery was for purposes other
than those for which he may have rightfully gone there. We must
hold then that the injury, whatever its cause, occurred in the course
of his employment. The death was evidence enough of the injury
having occurred, and the record disclosed sufficient evidence that
the death was caused by an electric shock. The next question is
whether such injury arose out of the employment. The fact that
there were burns on the left hand and those burns had the appear
ance of being from an extreme heat, and that, in the absence of any
evidence to the contrary, the only manner in which the burns could
have been caused was through an electric current. There is the
further evidence that at and near the place where the body was
found there existed a short circuit of an electric current of high
voltage, which leads to a reasonable inference that the injury was
caused by his coming in contact with such short-circuited electric
current.
We have here a workman at a place where he had a right to be,
and an injury occurred from a source which, by reasonable inference,
was the only source which could have produced such an injury.
Therefore the question as to just what Bushing was doing at the
moment he received the injury is not material to the point. In view
of the record before us, we must hold that there was sufficient com
petent evidence to support the commissioner’s finding that the injury
did arise out of and in the course of his employment.

W o rk m en ’s Compensation— A ccid en t A risin g O u t op and in
o f E m ploym ent— A sp h yx ia tion — Adler v. Interstate Power
Co. et al., Supreme Court of Minnesota (April 17, 1930), 230 North
western Reporter, page 486.— O n September 27, 1928, Edward F.
Adler was in the employ o f the Interstate Power Co., in its plant at
Rochester, Minn., as a stoker. He commenced, work &t 1 o ’clock in

Course

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

213

the afternoon and his first work was the pulling out of a charge
from one of the upper retorts. The evidence showed that this retort
was more difficult to handle, and that Adler was subjected to the
fumes of the coal and coke, perhaps more so than usual. When he
got the charge out and was about to refill it, he complained of a pain
in his head and across his chest, and he felt sick and vomited severely.
A few hours later he was taken home and shortly thereafter he died.
Louise Adler, the widow, filed claim for compensation and the
Industrial Commission of Minnesota denied an award. Thereupon
she appealed the case to the Supreme Court of Minnesota. The com
mission denied compensation on the ground that the claimant failed
to prove the cause of her husband’s death. The Minnesota Supreme
Court said that while “ it is true that the doctor could not testify
as to an exact certainty regarding the cause of the death,” however,
“ in the practical administration of the compensation act, the unas
sailed opinion of the doctor, with the uncontradicted circumstances
attending supporting it, should be taken as a correct statement of
the cause.” The doctors agreed that the cause of his death was the
inhalation of the poisonous gas and the conclusion of the doctor was
not disputed.
The next question before the court was whether the inhalation of
this gas was an accident. The court quoted the definition of an
accident as given in the statute, as follows: “An unexpected or un
foreseen event, happening suddenly and violently, with or without
human fault and producing at the time injury to the physical struc
ture of the body.” (Gen. Stat. 1923, sec. 4326, (h).) The conclusion
of the court was that the evidence in this case showed this was an
accidental injury.
The order of the industrial commission, denying compensation, was
therefore reversed.
W o rk m en ’s Compensation— A ccid e n t A risin g O u t o f and in
of Em ploym ent— A sp h yx ia tion — Jackson et al. v. EuclidPine Investment Go. et al., St. Loms Gov/rt of Appeals (January 7,
1930), 22 Southwestern Reporter {2d), page 849 — James H. Jackson

Course

was employed by the Euclid-Pine Investment Co. in a garage erected
as an adjunct to the Guild H a ll Apartments in the city o f St. Louis,

Mo.

H e was a night employee and was the only person on duty

through the night.

H is duties required him to serve as general care

taker and night watchman for the garage, to wipe, clean, and wash
cars, and to move cars about from place to place inside the garage.

On December 6,1927, shortly before 7 o’clock, Moore, the day man,
came on duty and found Jackson sprawled out in the back seat of an

214

DECISIONS OF THE COURTS

automobile and barely breathing. Moore summoned help, but Jack
son died within a very short while. Later an autopsy was performed
and the cause of the death was found to have been carbon-monoxide
poisoning.
The Workmen’s Compensation Commission of Missouri awarded
compensation and the St. Louis circuit court affirmed the award.
The employer appealed to the St. Louis Court of Appeals, contending
that the accident did not arise out of nor in the course of the
employment.
The owner of the car in which Jackson was found testified that—
He brought the car to the garage between the hours of 10 o’clock
and midnight on the evening of December 5, and he himself parked
it in his allotted parking space, where it was standing the next morn
ing when he returned to the garage to take it out for the day. Just
before bringing the car to the garage he had put 10 gallons of gaso
line in the tank, and after he had placed the car in the proper space
he shut off the motor. When he returned to the car the following
morning he found that the motor was not running, although the
ignition was on; that the gasoline tank was practically empty, so
that he was obliged to put an additional 10 gallons of gasoline into
it; and that the motor was warm, with the heat indicator showing
a temperature for regular driving speed. He testified, further, that
the heater was probably open in the car; that it had a tendency to
throw out an odor when in use; and that when he drove into the
garage the night before he had refused to permit the deceased to
park his car, and had expressly ordered him to leave the car alone.
The court reviewed the evidence and said in part as follows:
There is no doubt in this case that it was the duty of the deceased
to clean cars stored in the garage^ including the very car in which
his body was found; and the showing that he had the dust cloth and
the whisk broom with him in the car warrants the legitimate infer
ence that he had got inside the car for the primary purpose of
cleaning it.
In the determination of the case, let us adopt appellants’ theory
for argument’s sake, and proceed upon the basis that the deceased
did start the motor tor the purpose of generating heat to warm him
self while he was engaged in the work of cleaning the automobile.
Even so, we can not believe that such conclusion would warrant the
finding that death was not by accident arising out of and in the
course of his employment.
Certainly the hazard arising from the presence of carbon-monoxide
gas is one incidental to employment in a garage, and especially is this
true in winter, when a denser smoke comes from the exhausts of the
automobiles, and when the doors of the building must of necessity
be kept closed.
The court concluded, therefore, that in this case there was a suffi
cient causal connection shown between the nature of the employment
of the deceased and the hazards which produced his death to warrant

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

215

the finding that his death was by accident arising out of and in
course of his employment. The judgment of the circuit court sus
taining the award of the commission was therefore affirmed.

W o rk m en ’s Compensation— A ccid en t A risin g O u t or and in
Course or Em ploym ent— A s s a u lt — Crippen v. Press Co. (Inc.) et

al., Supreme Cowrt of New York, Appellate Division (January 15,
1930), 239 New York Supplement, page 102.— Robert H. Crippen
was a printer for the Press Co. (In c .), of Albany, N. Y ., and was
working with others in the place of the regular men who had gone
out on a strike. He was injured in an assault made on him while on
the street in A lbany, presumably by a striker. A t the time o f the
assault he and his wife were returning from a restaurant, where they
had been for their evening meal.

Crippen filed claims for compensation with the State Industrial
Board of New York, and an award was made in his favor. The em
ployer appealed to the New York Supreme Court, appellate division,
contending that the accident did not arise in the course of the
employment.
It appeared that the men were housed at a hotel near the plant.
A representative of the employer was there at all times to send men
to work as needed. The men were called from their rooms or from
wherever they might be, at all hours, and were allowed to go out only
for meals. Crippen was still subject to call when he went with his
wife to the restaurant, as the men were under the control of the
employer and must be available to go to work whenever the employer
wanted to call them. For this reason Crippen contended the accident
arose out of and in the course of the employment.
The appellate division of the New York Supreme Court said, in
the course of the opinion, that it was evident that the employer re
garded these men in its employ during a 24-hour day and retained
direction and control over them. “ Their employment did not cease,”
said the court, “ when they left the plant; they were merely at rest.
It is not difficult, therefore, to reach the conclusion that the accident
arose out of and occurred in the course of claimant’s employment.”
The award of the State industrial board was therefore affirmed.

W orkm en ’ s C ompensation — A ccident A rising O u t of and in
C ourse of E m p lo ym en t — A ssault — Indian Territory Rluminating

Oil Co. v. Jordan et al., Supreme Court of Oklahoma (December 10,
1929), 283 Pacific Reporter, page 21ft.— Doyle Jordan was engaged

216

DECISIONS OF THE COURTS

in a hazardous occupation in the employ of the Indian Territory
Illuminating Oil Co. in Oklahoma. On November 28, 1929, a fight
between Jordan and another employee arose over a wrench for
which Jordan had been sent by his foreman. Prior to the fight an
ill feeling had existed between the participants arising out of matters
not connected with the employment. Jordan filed claim for compen
sation for the personal injury sustained as a result of the fight, and
was awarded $10.39 per week for temporary total disability and
$400 for permanent disfigurement to his left ear.
The employer appealed to the Supreme Court of Oklahoma con
tending that the accident did not arise out of nor in the course of
his employment. The court quoted from the case of Stasmos v.
State Industrial Commission (80 Okla. 221, 195 Pac. 762), in which
they held that—
Injury resulting from an assault by a workman upon a fellow
workman while the latter is engaged in the work of the master
is an “ accidental personal injury arising out of and in the course
of employment ” within the meaning of the term as used in section
1 (art. 2) of the workmen’s compensation act.
The test of liability under the workmen’s compensation law for
injuries arising out of and in the course of employment is not the
master’s dereliction whether his own or that of his representatives
acting within the scope of their authority, but is the relation of the
service to the injury, of the employment to the risk.
The decision in the case cited above settled the law in Oklahoma
concerning such a controversy as presented in this case. The decision
in that case was based upon section 7285 of the Oklahoma statutes
of 1921, which provides in part:
Every employer subject to the provisions of this act shall pay, or
provide as required by this act, compensation according to the
schedules of this article for the disability of his employee resulting
from an accidental personal injury sustained by the employee arising
out of and in the course of his employment, without regard to fault
as a cause of such injury, except where the injury is occasioned
by the willful intention of the injured employee to bring about injury
to himself or of another. * * *
The court said, “ The one fact, in a situation of this nature, that
will relieve the employer is that the injured workman was the
aggressor.” That fact, however, in the case at bar was found in
favor of Jordan, the court saying in part as follows:
A close scrutiny of the finding of the commission reveals that the
assault arose over a wrench for which the injured claimant had
been sent by his foreman, and, while it is true that the commission
found that there existed ill will between the participants in the fight,
which ill will arose from matters not connected with the employ
ment, it is obvious that the difficulty was not wholly disconnected

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

217

from matters pertaining to the employment, but actually grew out
of the scope of and in pursuit of the employment of respondent.
The order of the State industrial commission awarding compensa
tion to Jordan was therefore affirmed.
W o rk m en ’s Compensation— A ccid e n t A risin g O u t o f and in
Course o f Em ploym ent— Assum ption

o f E isk — A sp h y x ia tio n —

White Star Motor Coach Lines of Illinois v. Industrial Commission
et al., Supreme Cowrt of Illinois (June 19, 1929), 168 Northeastern
Reporter, page 113.— H enry Baker, a motor-bus driver employed
by the W h ite Star M otor Coach Lines in Illinois, died on Decem
ber 11, 1926, as a result o f being asphyxiated with carbon-monoxide
gas in the company’s garage in Peoria, 111. On the afternoon of
December 10, 1926, while making his return trip to H enry, the bus
which Baker was driving became disabled.

H e communicated with

the company’s mechanic in Peoria and late that night the mechanic
arrived.

They were unsuccessful in making the repairs and about

2.30 a. m. the follow ing morning they returned to Peoria, so that
Baker could secure one o f the emergency busses and return to Henry
to resume his schedule at 7.30.

They arrived at the company’s

garage at about 4.50 a. m. and decided to rest an hour before the
return trip. They started the engine in one o f the busses, appar
ently to keep warm. A t 7.40 they were found dead.

The widow and minor daughter of Baker filed claims for com
pensation with the industrial commission and an arbitrator made an
award of $15 per week for 273y3 weeks, which was affirmed upon
review before the industrial commission. The circuit court of
Peoria County refused to review the order of the commission and
the case was brought before the Supreme Court of Illinois by the
company. The motor coach company contended the accident was
not one arising out of and in the course of the employment and the
court, after reviewing the evidence, decided the case in its favor,
reversing the decision of the lower court and the industrial com
mission.
In rendering the decision the court said that—
Without any knowledge or acquiescence on the part of his em
ployer, Baker chose a place to rest and sleep which undep all the
circumstances was an unreasonably dangerous place, and by so doing
he exposed himself to an unnecessary risk. He voluntarily incurred
an additional risk not within the contemplation of his contract of
service. An employee can not accept such unnecessary risk and
danger without taking him outside the scope of his employment
In our opinion, by going into the unnecessarily dangerous place
and incurring such additional risk Baker went outside any reason
able requirement of his employment, and compensation should not
be allowed for his accidental death.

DECISIONS OF THE COURTS

218
W

o r k m en ’s

C ou r se

C o m p e n s a t io n — A

c c id e n t

m p l o y m e n t — C asu al

r is in g

Out

and

m p l o y m e n t — B u r n s — Soares's

Case, Supreme Judicial Court of Massachusetts (January 6, 1930),
169 Northeastern Reporter, page bH -— Israel Pokross was engaged
in the real-estate business. He built houses and owned several apart
ment houses which were rented to tenants. Manuel Soares was em
ployed by Pokross as repair man “ to do what was necessary around
the property; carpentry, plumbing, and general work.” In addition
to this employment Soares worked in a textile mill as a doffer.
It appears that Pokross gave a gasoline torch to Soares “ so that
he would have everything necessary to take care of things that hap
pened in the wintertime on the buildings, such as bursting pipes.”
On one cold night Soares was fixing the torch in the kitchen of his
home, as he anticipated the pipes would freeze and he would need
the torch the next morning. While working on the torch the gaso
line exploded, causing burns to Soares resulting in his death.
Mary Gloria Soares, the widow, filed claim for compensation.
Following an award of the Massachusetts Industrial Accident Board
in her favor, an appeal was made to the superior court, Suffolk
County, Mass., which court upheld the award. The insurance carrier,
the Maryland Casualty Co., appealed to the Supreme Judicial Court of
Massachusetts, objecting to the payment of compensation because the
accident did not arise out of and in the course of deceased’s employ
ment. Also the insurer objected because the employee was not em
ployed by the subscriber, nor covered by the policy issued to the
employer.
The court did not agree with the objection made by the insurance
carrier and in affirming the decisions of the lower court and the
industrial accident board the court said:
The policy covered “ all carpentry ” work, all “ masonry,” “ ex
cavation— for cellars,” “ plumbing,” “ plastering,” “ grading.” It
could have been found that the employee was engaged in the usual
course of trade, business, or occupation of Pokross. A part of his
business was the renting of tenements and the care of them. In
Olsen’s case (252 Mass. 108, 147 N. E. 350) and Van Deusen’s case
(253 Mass. 420,149 N. E. 125), relied on by the insurer the employee
was outside of the employer’s regular business when injured. Here
the employee was engaged in what was or could be found to be a
regular.part of his business; he worked on the houses in process
of construction as well as repaired the ones which were ready for
occupation. * * * In this branch of the case there was evidence
to support the findings of the board. Under the classifications of the
policy, plumbing, as well as carpenter and mason work, was covered.
Soares had been employed at this kind of work, and it could be found
that in thawing the pipes or preparing for this work, he was engaged
in the employment of plumbing and that his injury arose out of it.
(See Cox’s Case, 225 Mass. 220, 224, 225,114 N. E. 281.)

DECISIONS OF THE COURTS
W

o r k m e n ’s

C o m p e n s a t io n — A

ccident

r isin g

219
O ut

and

Bass et al.
v. Weber King Manufacturing Go. (Inc.), Court of Appeal of Louisi
ana (December 30, 1929), 125 Southern Reporter, page 456.— Mose
Bass was employed as a log scaler by the Weber King Manufactur
ing Co., in Louisiana. On the morning of September 26, 1927, while
riding to his work on a trailer attached to a train, the trailer was
partially wrecked. Bass did not complain of any injury at the time
of the accident but proceeded to the performance of his duties,
worked as usual and, in the afternoon, after completing his day’s
labor, he climbed into a caboose behind the train to return home.
On the way home, while riding in the caboose, he lay down on a
wooden bench from which he rolled to the floor and died shortly
thereafter.
The widow filed suit for compensation in the district court, Parish
of Vernon, La., and an award was returned in her favor. There
upon the Weber King Manufacturing Co. appealed the case to the
Court of Appeal of Louisiana.
From the evidence it appears that Bass had been suffering from
angina pectoris for some time, and had complained of pains around
his heart all through the day of his death. He smoked cigarettes
incessantly and often indulged in the excessive use of alcoholic bev
erages. The evidence also showed that he was inebriated on the two
days prior to the day of his death.
The cause of his death was shown conclusively to have been an
acute attack of angina pectoris and the majority of the physicians
who testified were of the opinion that the wrecking of the trailer
had not contributed to his death. Others thought that the mental
shock might have contributed to the death of Bass.
The conclusion reached by the court of appeal was that Bass did
not die as the result of any injury by accident arising out of and in
the course of his employment, but that he died from a natural cause,
which in no manner was produced, brought into action, or aggra
vated as a result of his employment. The judgment of the district
court was therefore reversed and judgment was rendered in favor of
the Weber King Manufacturing Co.
C ourse

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

orkmen’s

C ourse

C o m p e n s a t io n — A

ccid ent

E m p l o y m e n t — C o n st r u c tio n

A
of

r isin g

Out

and

S t a t u t e — I n t e n t io n a l

a n d W il l f u l A ct — Sullivans Gase, Supreme Judicial Court of
Maine (October 15,1929), 147 Atlantic Reporter, page 4$1-— A lb e r t
S. S u lliv an , a boy about 18 years o f age, h ad been em ployed in a
woolen m ill in M ain e as a general helper fo r about fo u r weeks. His

220

DECISIONS OF THE COURTS

duty was to carry cloth from one place to another and to assist any
of the operatives who might need him. In one of the mill rooms was
a machine used to shear nap from cloth, and operated by one Taber.
The cloth on this machine ran from a rack up over the front of the
machine, under a rapidly revolving cylinder of knives about 4 or 5
feet from’the floor, and came out into a rack from the back of and
under the machine. When these cuts of cloth were removed from
the last rack it was necessary for the operator to have some one to
assist him. Sullivan had, during the day before, been asked by
Taber several times to assist him and had done so, standing at the
back of the machine. He had seen the blanket of cloth moving up
under the cylinder and knew that the cylinder had knives.
About 8 o’clock in the morning Sullivan walked over to ascertain
whether Taber desired help in removing a cut of cloth from the
machine. As he stood there waiting to be of some assistance he
placed his hand on the blanket “ just out of curiosity,” “ trying to see
how it felt moving along.” He could not explain just what did hap
pen, but his hand was carried quickly to the knives and four fingers
and part of the thumb severed.
He filed claim for compensation for personal injuries. The Indus
trial Accident Commission of Maine agreed with the decision of the
single member in denying compensation, and Sullivan thereupon
appealed to the Maine Supreme Judicial Court. This court affirmed
the decree and, regarding the interpretation of the statute, said in
part as follows:
It was early held by this court that these words “ arising out of ”
the employment mean there must be some causal connection between
the conditions under which the employee worked and the injury
which he received, * * * that the injury must have been due to
a risk “ because employed.”
It was also held in the same two cases that the words “ and in the
course of ” the employment refer to the time, place, and circumstances
under which the accident takes place. Westman’s Case, supra (118
Me. 142, 106 Atl. 532); [holds] that the injury must have been due
to a risk “ while employed.”
The court also agreed with the commissioner in his finding—
That Sullivan’s extending his hand to touch the moving cloth was
his own voluntary act, and, as admitted by Sullivan, done for the
sole purpose of satisfying his curiosity. This finding of fact is
conclusive.
F rom these findings o f fact it would follow as a necessary conclu
sion that the injury was the result o f Sullivan’s own voluntary act,
done only out o f curiosity, entirely independent o f any duty required
to be performed or incidental thereto, and consequently not in the
course o f the employment, and therefore not arising out o f the
employment.

221

DECISIONS OF THE COURTS
W

o r k m e n ’s

C ourse

C o m p e n sa t io n — A

ccident

E m p l o y m e n t — C on struc tion

r isin g
of

and

S tatute— S ervant

to C h u r c h i n M aster ’ s A u t o m o b il e — O'Mara v. Kirch
et al., Court of Errors and Appeals of New Jersey (October
,
1929), 147, Atlantic Reporter, page 511.— Terrence O ’M a r a w as em
p loyed b y M o rg a n C ow perthw aite as a groom and caretaker at $110

T ransported

per m on th, w ith free rent, vegetables, lig h t, fu el, u n ifo rm or liv ery ,
and w ith an agreem ent to transport him to and fro m church on S u n
day.

W h ile bein g so transported on Su n d ay, A u g u st

10,1924, in the

m aster’s car and driven b y the m aster’s chauffeur, O ’M a ra was killed
in a collision w ith another car.

T h is action was brought to recover

(2 C om p. S ta t. 1910, p.
1907, sec. 7 et seq .).
It was contended by the defendant, Morgan Cowperthwaite, that
O’Mara met his death from injuries arising out of and in the course
of his employment; on this ground the motion for the direction of a
verdict in his favor was granted by the trial court. The case was
appealed to the New Jersey Court of Errors and Appeals, where
the verdict was affirmed.
The court in rendering the decision said, in part, as follows:
dam ages under the N ew Jersey death act

The problem presented to us for solution is to find or delimit the
bounds of the workmen’s compensation statute (P. L. 1911, ch. 95,
p. 134, as amended). This is not an easy task. It can not be marked
or defined by any formal rule. It must be fixed by concrete cases,
as they arise; some within, and some just outside of, the bounds or
lines of the statute. It was said, in the case of the Mayor, etc., of
Jersey City v. Borst (90 N. J. Law, 454, 101 Atl. 1033), that the
workmen’s compensation statute is a remedial law of prime import.
It should be liberally and broadly constructed.
In supporting the ruling of the trial court, the court cited an
English case, viz, Richards v. Morris (L. R. (1915) 1 King’s Bench,

221).

In that case, a workman was employed as a farm laborer, on the
island of Ramsay, at yearly wages and board and lodgings. It was
part of his contract of service that he should be allowed at reasonable
hours to cross to the mainland to visit his wife, and be taken across
in his employer’s boat for that purpose. He met with an accident
on Sunday, whilst in the boat on his way home, from the effects of
which he died. It was held that the accident arose u out of ” as well
as “ in the course of ” the employment, and that his widow was
entitled to compensation under the workmen’s compensation act.
In conclusion the court said:
The appellant argues in the brief, as O’Mara was killed on Sun
day, and because some of his work was to be performed on Sunday,
compensation could not be awarded under the workmen’s compensa
tion statute, invoking as authority therefor the vice and immorality

----- 16

66588°—31

222

DECISIONS OF THE COURTS

act, with reference to Sunday labor or travel. (4 Comp. Stat. 1910
of N. J. p. 5712, sec. 1.) But that act expressly provides: “ Provided
always mat no person going to or returning from any church or
place of worship, within the distance of 20 miles, * * * shall
be considered as traveling within the meaning of this act.” Hence
the statute has no application to this case.
The judgment of the supreme court was therefore affirmed.

W o rk m en ’s Compensation— A ccid en t A risin g O u t o f and in
Course o f Em ploym ent— D e a th R e s u ltin g from F a l l on W e t
F lo o r — Evidence— Industrial Commission of Ohio v. Tripsansky,

Court of Appeals of Ohio, Cuyahoga County (May 14, 1928), 167
Northeastern Reporter, page 373.— Gaza Tripsansky, on July 7 , 1925,
was working for Theodore Gutscher Co., o f Cleveland, Ohio, as a
butcher. W h ile he was m oving a barrel toward the “ stuffer,” a
machine used for the filling o f sausage in links, he was seen to lean
against the machinery, and fa ll backward to the floor, receiving
injuries on the head from which he died in a very short time. The
evidence shows the floor was slippery at that time.

The widow proceeded under the Ohio workmen’s compensation
act and an award was made in her favor. From the decision of the
industrial commission the employer appealed to the court of common
pleas of Cuyahoga County where a judgment was rendered awarding
compensation under the provisions of section 1465-68 of the General
Code of Ohio, relating to compensation of employees for injuries
received in the course of their employment. The case was thereupon
taken to the Court of Appeals of Ohio.
The question was whether death resulted from an injury which
Tripsansky received in the scope of his employment. In rendering
the decision of the court Judge Sullivan said in part:
Under the evidence in the case it is clear that immediately prior to
the death the decedent was acting in the scope of his employment, and
there is reasonable ground for the inference that as a direct result
of his employment tne injury and death occurred. This is a plain,
reasonable, and logical inference, and under the rules of liberality or
construction, we are bound to follow the verdict of the jury, on the
facts, and the judgment of law pronounced thereon by the court.
Under section 1465-61, General Code, there is a specific provision
that every employee who is injured and the dependents of such as are
killed in the course of employment, wheresoever such injury has
occurred, shall be entitled to receive compensation as provided in
section 1465-69, General Code. We think the evidence in this case
warrants application of these provisions of the statute.
The judgment of the lower court was therefore affirmed.

DECISIONS OF THE COURTS

223

W o rk m en ’s Compensation— A ccid e n t A risin g O u t o f and i n
Course o f E m p loym en t— Em ploym ent S ta tu s — Going to and from
W o r k — Shegart et al. v. Industrial Commission et al. (October 19,
1929), Supreme Court of Illinois, 168 Northeastern Reporter, page
288.— George K r a ft was injured when a train o f the Illinois Central
Railroad struck a truck in which he was riding. K r a ft was en route
to a place where the P. E. Shegart Construction Co. was engaged in
building an additional embankment along the right o f way o f the
Illinois Central Railroad, and Funk & Griesbaum, subcontractors,
were engaged in putting tile culverts into the embankment. The
truck in which he was riding belonged to the contractors. T he appli
cation for compensation was filed against the principal contractors
under section 31 o f the Illinois workmen’s compensation act because
Funk & Griesbaum, subcontractors, who it was claimed employed
K ra ft, had not insured their employees under the workmen’s com
pensation act. The arbitrator before whom testimony was taken
found K ra ft to be wholly and permanently incapable o f work, and
held the principal contractor as well as the subcontractor liable.
However, upon a review before the Illinois Industrial Commission
liability was found only in the subcontractors.

The subcontractors thereupon carried the case to the circuit court,
and this court found that at the time of the injuries complained of
Kraft was not an employee of either the subcontractors or the prin
cipal contractors, and that the industrial commission was without
jurisdiction to entertain the application. Kraft took the case before
the Supreme Court of Illinois. The question involved was whether
the injuries arose out of and in the course of the employment. Kraft
contended he had been employed for $4.50 per day. Funk contended
he did not employ Kraft but told him if the work suited him he
could take it. The matter of wages was not discussed, and the injury
occurred before they reached the place where the work was to be
done.
In affirming the decision the supreme court said:
It is undisputed that the truck in which plaintiff in error was
riding had not yet reached the place of the employment. The gen
eral rule is that employment does not begin until the employee
reaches the place where ne is to work or the scene of his duties, and
does not continue after he has left. * * * In this case, even
though it be said that the commission were justified in finding that
Kraft had been employed by Funk & Griesbaum, there is no evidence
that he had reached the place of employment at the time of his
injury, and the circuit court was therefore right in setting aside the
award.

DECISIONS OF THE COURTS

224

W o r k m e n ’s C om p en sation — A c c id e n t A r is i n g
C o u rse

E m p lo y m e n t — E m p lo y m e n t

O u t o f and

S t a t u s — Loss

i± f

E ye—

Lampi v. Koponen et al., Supreme Court of Minnesota {July 5, 1929),
226 Northwestern Reporter, page 475.— In the spring of 1928 Koponen
and Nevala were engaged in getting out forest products in St. Louis
County, Minn. John Lampi agreed with Koponen to cut and pile
timber on part of the land. Koponen furnished the tools, and a house
free of rent, in which Lampi and two of his friends who were helping
with the work, lived. Payment was made on the basis of an agreed
amount per piece of timber cut and piled. Koponen counted and
inspected the timber and paid each man for the work which he did.
Lampi claims that on April 14, 1922, while chopping, a twig hit
him in the eye and the injury resulted in its subsequent loss. He
filed claim for compensation and the Minnesota Industrial Commis
sion rendered an award. This order of the commission was appealed
to the Supreme Court of Minnesota. The court affirmed the decision
of the industrial commission, saying in part as follows:
There is nothing in the evidence requiring a finding that Lampi
was an independent contractor, furnishing the men and agreeing
to cut the timber from the whole 80, nor that the three jointly under
took the work as independent contractors. * * * Nor does the
evidence require1a finding that Lampi, in what he did personally,
was an independent contractor. * * * The finding ot the com
mission that Lampi was an employee is sustained and was the one
proper to be made.
The court also held that the evidence sustained the finding of the
commission that the employee sustained an injury to his left eye
which arose out of and in the course of his employment.

o r k m en’s

C o m p e n sa t io n — A

cc id en t

r isin g

O ut

of a n d

v. Industrial Cormnission et al., Supreme Court of Utah {January 24, 1930), 285 Pacific
Reporter, page 306.— The International Smelting Co. owned and
operated an aerial tramway extending,from Bingham, Utah, over
the mountains westerly to its smelters near Toole. There was a con
trol station located in a desolate place midway between, where two
men were employed by the company. These men were furnished a
place to live by the company, and the apartments were fully equipped
with furniture. In the room occupied by Larson, one of the em
ployees, a 80-30 Winchester rifle was hanging over the door. It was
the property of the company and had been brought there by the
company a number of years before during some labor troubles at
Bingham.
C ourse

E m p l o y m e n t — E v id enc e — Higley

w o r k m e n 's

c o m p e n s a t io n

225

On May 20, 1927, three repairmen, including one Glen Higley,
stopped at the station to repair a worn cable near the station.
Higley did not proceed with the other two men directly to the place
where the work was to be done, but advised them that he was “ going
down to the house a minute.” The men waited some 45 minutes and
as he did not show up they began to search for him. Higley was
found in Larson’s apartment, lying near the rifle with a bullet
wound over his left eye. There was no witness to the accident and
no one talked with Higley after he left his two companions.
Vera A . Higley, as guardian, filed claim for compensation, which
was denied by the Industrial Commission of Utah. The commission
found—
(1) T hat“ the injury which resulted in the death of the deceased ”
was not an accidental injury but was intentionally self-inflicted; and
(2) that at the time the deceased sustained the injury which resulted
in his death he had departed from the course of his employment and
was engaged in a venture not connected with or arising out of his
employment.
The case was appealed to the Supreme Court of Utah, which court
held that the only question presented for their determination was
whether there was any substantial competent evidence to support the
findings of the commission.
The court said:
This court has frequently and uniformly held that if there is “ some
substantial competent evidence” to support the findings and con
clusions of the commission on questions of fact within its jurisdiction,
such findings are final and may not be disturbed by this court. The
only purpose of review in such cases—and our authority on review in
such case is so limited— is to ascertain whether the findings are sup
ported by any such evidence.
Regarding the evidence the supreme court said it was the burden
of the guardian to show by a preponderance of the evidence that the
fatal gunshot wound received by the deceased arose out of or was
sustained in the course of his employment. The court pointed out
that Higley left his fellow workmen as they were actually in progress
to where the work was to be done, and that there was absolutely no
evidence to support the contention that Higley was engaged in
removing the shells from the gun, thereby rendering the place safe
for employees living in the apartments.
The court concluded:
The lineman did not have access to the apartment except upon the
invitation of those who lived there. He said nothing about the gun
being dangerous to anv of the men in the control station. He made
no statement to any of the men as to his intention, if any he had, to
go to the house for the purpose of removing the shells from the gun.
If, as it is assumed by the plaintiff’s brief, the deceased went to the

226

DECISIONS OF THE COURTS

house to remove the shells from the gun, his conduct in that regard
can only be looked upon, in the light of the facts before us, as an
effort to arrogate to himself duties which he was neither engaged nor
authorized to perform. It is certain that he went to the house on his
volition, and if he chose to step outside the sphere of his employment
and to do something he was not expected or requested to do, he did so
at his own risk and was not under the protection of the compensation
act.
A fair and impartial consideration of the evidence, together with
the situation of the parties, the character of the employment, and
the reasonable inferences which may be drawn from the evidence,
leads to the conclusion that this finding of the commission must be
sustained.
W o r k m e n ’s C om p en sation — A c c id e n t A r is in g

O u t o f and in

Bissinger d k
Co. et al. v. Industrial Accident Commission et al., District Court
of Appeal, First District, Division 2, California (May 1, 1930), 287
Pacific Reporter, page SJfi.— W a lte r Carpenter w as em ployed b y
B issin g er & C o. as a trav elin g salesman. O n Septem ber 10, 1929,
C o u rse

E m p lo y m e n t— E v id e n ce — A s p h y x ia t io n —

and fo r a short tim e prior thereto, he h ad possession o f, and was
entitled to use, an autom obile owned b y his em ployer.

His em

p loy er paid fo r the upkeep and repairs on the car but perm itted
C arpenter to use the car fo r h is private uses as w ell as fo r business,
and to keep the car in his garage.
on Septem ber

W h ile out rid in g w ith his w ife

10 C arpenter to ld her he w ould have to fix the g aso

line gauge and the m otorm eter before starting on another tr ip as
th ey were n ot w o rk in g properly.

T h a t n ig h t, a fter his w ife had

12.20 o’clock, he w ent into the basem ent where the
car w as kept. He was fou n d sittin g in the car the n ex t m orn in g
retired, about

w ith the engine o f the autom obile running and the lig h ts turned on.
T h e garage was filled w ith gas and C arpenter was dead at the tim e o f
the discovery.

Mrs. Carpenter presented her claim to the Industrial Accident
Commission of California and an award was made in her favor.
Thereupon the employer and insurance carrier instituted action in
the District Court of Appeal, First District, Division 2, Califor
nia, contending there was no evidence showing that Carpenter’s
death arose by reason of an accident “ arising out of his employ
ment when overcome by monoxide gas while working on his em
ployer’s automobile.”
The evidence showed the deceased had taken off his coat and vest;
that a screw driver, theretofore kept upstairs, had been taken down
into the basement; and that the deceased had a spot of dirt on his
arm. The inference drawn from these facts was that he had been

w o r k m e n 's

227

c o m p e n s a t io n

working with the car. The court said, however, that the real ques
tion was whether the death was caused by accident or by natural
causes. In answering this question the court said:
The decedent went into his garage and started the engine in
motion. That is a proper and legal inference. Thereafter large
quantities of monoxide gas accumulated. When discovered, the
decedent was dead. As there was no evidence of a post-mortem
examination or any other evidence to the contrary, it will be pre
sumed that things happened according to the ordinary course of
nature. (Code Civ. Proc., sec. 1963, subd. 28.) Therefore, as his
dead body was found enveloped in a deadly gasL it will be presumed
that he was asphyxiated by that deadly gas. I f the petitioners be
lieved that death followed natural causes, they should have intro
duced evidence rebutting the foregoing evidence.
He was not in the act of taking a drive, because the doors of the
garage were closed. He was not there to amuse himself, because
that act at that time of day was not “ the usual propensity” of
men, nor was it shown to be “ the particular propensity” of the
decedent. Therefore he must have been making adjustments to
the car. When there are two different inferences which may be
drawn, one of which will support and the other of which will
overthrow the judgment, in support of the judgment we must pre
sume the fact-finding body adopted the former and not the latter.
The court did not discuss the question whether Carpenter’s acts,
in the nature of making adjustments to automobiles at midnight,
came within his employment, as that question was not presented to
the commission.
The award of the industrial commission was therefore affirmed.

W o r k m e n ’s C om p en sation — A c c id e n t A r is in g

O u t o f and

FarweWs Case,
Supreme Judicial Court of Maine (August 19, 1929), llfl Atlantic
Reporter, page 215.— M a rie F a rw e ll was inju red w hile em ployed as a
C o u rse

E m p lo y m e n t — E v id e n c e — I n f e r e n c e —

w aitress b y the B elgrade H o te l C o., B elgrade, M e.

I n addition to her

w ork as waitress she was required to do such w ork as cleaning floors,
carryin g lau n dry, and doin g errands.

O n the n ig h t o f A u g u st 5 ,1 9 2 7 ,

upon com pletin g her w ork in the dinin g room about 9 o ’clock, she
w ent to her room in a cottage near the hotel and fro m there to the
d ru g store and the post office on a personal errand.

W h ile passin g

the hotel in returning to her room , the m anager called her and re
quested that she locate the w atchm an.

O n her w ay to find h im she

fe ll into a coal chute and fractured her leg.

She filed claim fo r com

pensation under the M a in e w orkm en’s com pensation act, but b y a
decision o f the legal associate m em ber o f the industrial accident com
m ission, her petition was dism issed, upon the grou n d th at the acci
dent did n ot arise out o f and in the course o f her em ploym ent.

U pon

228

DECISIONS OF THE COURTS

appeal, the court held the commissioner “ misunderstood and mis
stated the testimony of the claimant in an important respect, and
upon the misunderstanding based his decision denying compensa
tion.” 1 Rehearing was had and a second decision of the commis
sioner ordered the petition dismissed.
The case was then taken to the Supreme Judicial Court of Maine
for review. The decision of this court was rendered by Mr. Justice
Barnes, who said in part as follows:
As the legislature has prescribed, in the absence of fraud, the deci
sion of the commissioner upon all questions of fact shall be final.
(Rev. Stat., ch. 50, sec. 34 (as amended by Laws, 1919, ch. 238, sec,
34).) His decision, however, must be based on facts proven by evi
dence and on natural inferences logically drawn therefrom.
“ There must be some competent evidence. It may be 6slender.5
It must be evidence, however, and not speculation, surmise, or con
jecture. * * * While no general rule can be established applica
ble to all cases, certain principles are clear. I f there is direct testi
mony which, standing alone and uncontradicted would justify the
decree, there is some evidence, notwithstanding its contradiction by
other evidence of much greater weight. Whether the finding of fact
is supported by legal evidence is the limit of passing in review.”
I f the commissioner’s conclusion is one of fact, it must be of facts
deduced by him, for the only ground on which the decree can rest
is that on the evidence the commissioner drew the deduction that the
errand on which the petitioner was busied was a gratuitous accom
modation, an act to which she was urged by feelings of humanity, and
not a service which she had contracted to perform.
I f logical inferences from the testimony could be drawn to sub
stantiate such a conclusion, the decree should stand.
But the case affords no evidence to support the decree and none
from which a rational mind, functioning logically, may infer that
the service rendered at the time of the accident did not arise out of
and within the course of petitioner’s employment.
The appeal was therefore sustained, the decree of the lower court
reversed, and the case remanded to the industrial accident commission.

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

r is in g

O ut

and

Gill v.
Belmar Construction Co. et al., Supreme Court of New<York, Appel
late Division, Third Department (September 19, 1929), 236 New York
Supplement, page 879.— James Gill was employed by the Belmar
Construction Co. as chauffeur and was from time to time assigned to
other work. On May 8, 1928, he was directed to assist the foreman
who had charge of blasting work. The foreman ordered him to
bring some sticks of dynamite and caps to the place of work. He
had picked up a number of sticks of dynamite and six caps when he
C o u r se

m ploym ent—

a il u r e

O b e y I n s t r u c t io n s —

1 See U. S. Bureau of Labor Statistics Bui. No. 517, p*. 409.

W O R K M E N ^ COMPENSATION

229

noticed that one of the caps did not have the usual wire attached.
He informed the foreman, who told him to bring it over. Since his
hands were full the foreman told him to put it in his pocket. When
he delivered the dynamite and other caps, he neglected to deliver the
one in his pocket. He continued to work in the afternoon, and then
went to the hotel where the men were boarding.
The next morning, when dressing, he put his hand in his pocket,
where the cap still was, to take out a safety pin. The pin came in
contact with the cap in such a manner that an explosion occurred
and injuries were sustained.
He filed a claim for compensation under the workmen’s compen
sation law of New York, and the State industrial board made an
award. The employer and insurance carrier appealed to the Supreme
Court of New York, appellate division, third department, contending
the accident did not arise out of or in the course of employment.
The New York Supreme Court reversed the award of the indus
trial board and dismissed the claim, saying in part as follows:
When claimant reached the hotel, his employment ended. * * *
He was not then in the course of his employment when injured,
unless because of the fact that he still had the dynamite cap in his
pocket. This fact, we think, did not extend the field of his employ
ment to include the hotel room in which he slept and was dressing.
The cap was in his pocket solely because he failed to obey the instruc
tions given him, and forgot to deliver the cap at the job, as he did
the sticks of dynamite and other caps. His employment was not
the cause of carrying it to his boarding place; but, the cap absent,
there would have been no accidental injuries. The risk was not
related to his employment, or to any service being rendered to his
employer. (See Marks’ Dependents v. Gray, 251 N. Y . 90, 167 N. E.
181.) * * * By carrying it to the hotel he was rendering no
service to, or in the interest of, his employer. The injuries did not
arise out of or in the course of his employment.

W o rkm en ’s C ompensation — A ccident A rising O u t o f

and

C ourse o f E m plo ym en t — F reezing as A ccidental I n j u r y — L oss o f
U se o f M ember— Eagle River Building & Supply Co. et al. v. Peek
et d>., Supreme Court of Wisconsin (June 4, 1929), 225 Northwestern
Reporter, page 690.— James W . Peck, aged 70, was employed by the
Eagle River Building & Supply Co. to load bolts into a sleigh. He
was required to perform his work outside in the open on a cold day,
with the temperature ranging from 9 to 27° below zero.

W hile so

employed he accidentally froze his left foot and made claim for com
pensation to the Industrial Commission o f Wisconsin. A n award
was made to Peck.

The Eagle River Building & Supply Co. brought

&n action and the award o f the industrial commission was set aside

230

DECISIONS OP THE COURTS

by the circuit court for Dane County, Wis., on the ground that the
risk was common to all persons who were employed out of doors in
that locality at that time of the year. Peck appealed the case to the
Supreme Court of Wisconsin.
The court, in rendering its opinion, cited the case of Hoenig v.
Industrial Commission (159 Wis. 646,150 N. W . 996), saying in part
as follows:
In that case the industrial commission found as facts that the
deceased was not exposed to a hazard from lightning stroke peculiar
to the industry or differing substantially from a hazard from light
ning stroke of any ordinary outdoor work, and that his death was not
proximately caused by accident within the meaning of that term as
used in the act. The commission and the court came to that conclu
sion largely by giving the language of our act in that respect the
same meaning as in the English act, which compensated injuries
which grew out of the employment, basing such construction on the
report of the interim legislative committee’s report in which the bill
as enacted was presented. That committee reported: “ Compensa
tion is paid whenever three facts appear, namely: (1) The employee
was injured; (2) such injury grew out of and was incidental to his
employment; (3) such injury was not caused by willful misconduct.
It makes no difference whose fault it was or who was to blame; it is
sufficient that the industry caused the injury.”
The court also cited the case of Schroeder & Daly Co. v. Indus
trial Commission (169 Wis. 567, 173 N. W . 328), where a salesman
was injured when he slipped on the public street. The commis
sion awarded compensation and the case was appealed to the supreme
court; it was contended the hazard was not peculiar to the industry
but was common to all walking on the streets. The court affirmed
the award, saying, “ It is not the nature of the hazard that is the
determinative thing, but rather whether or not it is a usual or neces
sary incident to the employment.”
In conclusion the court said:
From the foregoing it is clear that we can not reconcile all that
has been said on the subject, and that confusion remains; therefore,
it is well to go back to first principles. The report of the legislative
committee, cited as interpretative of the act in the Hoenig case, says
that liability attaches where the “ injury grew out of and was inci
dental to the employment.” This is what was held in the Hoenig
case, and it was the exact holding in the Schroeder & Daly case, when
applied to the facts of that case. W e think that is the fundamental
idea of the compensation act. The injury is compensable when it
results from a hazard incidental to the industry.
The injury in the instant case clearly grew out of and was inci
dental to the employment. It makes no difference that the exposure
was common to all out-of-door employments in that locality in that
kind of weather. The injury grew out of that employment and was
incidental to it. It was a hazard of the industry.

w o r k m e n 's

c o m p e n s a t io n

231

The judgment of the circuit court was reversed with directions
to sustain the award of the commission.

W o rk m en ’s Compensation— A ccid e n t A risin g O u t o f and in
Course o f E m ploym ent — Going to and from W o r k — Greer v. In-

dustrial Commission of Utah et al., Supreme Court of Utah (July
13, 1929), 279 Pacific Reporter, page 900.— H. C. Greer was an em
ployee o f the Union Stockyards at Ogden, U tah, as foreman and
carpenter. It was his duty to look after the tools and see that they
were kept sharpened. It was Mr. Greer’s custom to take the com
pany’s saws to his home and there sharpen them and bring them
back to the stockyards the next morning. He was proceeding to the
company’s place o f business one morning, follow ing the usual course
o f travel, and carrying a saw belonging to the company. He was
offered a ride by a fellow workman in an automobile and while
crossing from the pedestrians’ walk to the waiting automobile he
was struck by a truck and severely injured, resulting in his death
the follow ing day.

The widow, Mrs. Emma Greer, filed claims with the Industrial
Commission of Utah for an award, which was denied by the commis
sion on the ground that she failed to prove the accident arose out
of or in the course of his employment.
The case was carried by the widow to the Supreme Court of Utah
for review. This court affirmed the findings and conclusion of the
industrial commission and held that even though the deceased was
carrying the saw belonging to the company he did not come within
the exceptions to the general rule that one is not covered by the
compensation act while traveling from his home to his place of busi
ness. The authority for this decision was the case of London Guar
antee & Accident Co. v. Industrial Accident Commission et al. (190
Calif. 587, 213 Pac. 977), which said in part as follows:
Exceptions to the general rule are cases where an employee, either
in his employer’s or his own time, is going to or from his place of
employment on some substantial mission for his employer growing
out ox his employment. In such cases it is held that the employee
is within the protection of the act. But the mission must be the
major factor in the journey or movement and not merely incidental
thereto; that is to say, if incidental to the main purpose of going to
or from the place or employment, it would not bring such person
under the protection of the act. If, on the other hand, the main
purpose of going or coming was to perform some act arising out of
his employment, he would be under the protection of the act although,
incident to the performance of such duty, he might be going or
coming from his home.

232

DECISIONS OF THE COURTS

Continuing the opinion, the court said in part as follows:
Under the facts in the instant case, it is clear that the deceased
was not upon any special mission for his employer at the time of the
accident. There was nothing that he was doing for his master at
the time which exposed him to the perils of the street. He was
merely going from his home to his place of employment. The fact
that he was carrying the saw was merely incidental'. The employee
did not come within any of the exceptions to the general rule.
In this case the deceased was not injured while sharpening the saw
at his home. The accident did not occur while he was actually
engaged in the performance of a duty for the employer. The dangers
of the street between his home and the stockyards were not incident
to his employment, but were dangers common to all.
The order of the industrial commission denying compensation was
therefore affirmed.
W o rkm en ’ s C ompensation — A ccident A rising O u t of a n d i n
C ourse of E m plo ym en t — G oing to and from W ork—Krapf v.

Arthur et al., Supreme Court of Pennsylvania (July i , 1929), lJfi
Atlantic Reporter, page 89b.— Benjamin M. Arthur conducted a
wholesale lumber business at Lansford, Pa., where Andrew L. Krapf
was employed as a bookkeeper and salesman at a salary of $150 per
month, with an additional allowance of $10 per month for his trolley
fare between Lansford and Tamaqua, his home. His office hours
were from 8 a. m. to 5 p. m. whenever he worked as a bookkeeper in
the office. He usually left Tamaqua for Lansford on the 7 a. m.
trolley. He received instructions from time to time as to what he
was to do each day.
Pursuant to instructions received from his employer at the office
of the latter on October 27, he left his home at Tamaqua on the.
morning of October 28 on a 2-day selling trip. After soliciting
business in numerous towns on October 28 and 29, he returned to his
home at Tamaqua about 7.30 p. m. on October 29 and spent the night.
The next morning he took the 7 a. m. trolley for Lansford to report
the results of his trip and to receive further instructions. While
on his way to Lansford he was accidently injured in a collision be
tween two trolley cars.
Krapf claimed compensation under the Pennsylvania workmen’s
compensation act and the board affirmed the award of the referee
concluding that claimant sustained injuries while “ in the course of
his employment.” The employer and insurance carrier appealed the
case to the Court of Common Pleas of Pennsylvania, *where the
award was reversed. Later the Pennsylvania Superior Court re
versed the decision of the common pleas court. The employer and
insurance carrier then carried the case to the Supreme Court of

w o r k m e n 's

c o m p e n s a t io n

233

Pennsylvania. In rendering the decision this court quoted the
opinion of the superior court, in part, as follows:
W e are of the opinion that the claimant’s trip was not ended when
he returned to Tamaqua. He was employed by the defendant to
perform a dual service. When he worked as a bookkeeper he had
regular hours of employment on the defendant’s premises, but when
he went out to sell lumber he did not have regular hours of employ
ment. We agree with the court below that, if the claimant had been
hurt in a similar collision on his way home to Tamaqua after leaving
the premises of the defendant on October 27, it could not be held
that he was hurt in the course of his employment. * * * But
when he started from Tamaqua the next morning, on his 2-day trip,
his status was not that of bookkeeper, an employee with fixed hours
of service, but that of a salesman who was in the course of his em
ployment until he returned to the defendant’s place of business at
Lansford and reported the results of his trip to his employer, unless
in the meantime he temporarily departed from his employer’s service.
The supreme court concluded the opinion by stating that it agreed
with the ultimate conclusion—
That plaintiff, who had been sent on a business trip, had not com
pleted his mission at the time of the accident ; when injured, he was
on the way to his employer’s office, traveling at the latter’s expense,
to report the result of his work.
The judgment of the lower court was therefore affirmed.

W o rk m en ’s Compensation— A ccid e n t A risin g O u t o f and in
Course o f E m ploym ent— Going to and from W o r k — Wiest v. Bol

duc et ai,., Supreme Cowrt of Minnesota (October 18, 1929), 227
Northwestern Reporter, page 48.— Bolduc & Co. were engaged in
constructing a bridge at Saga H ill, M inn., some 26 or 28 miles west
o f Minneapolis. They had a small crew and only the fireman and
engineer stayed at night. The others rode to and from Minneapolis
with the foreman. W iest was hired on August 11, 1928, and the
arrangement was that he should go to and from work in Bolduc’s
car. The third day o f W ie st’s employment Bolduc had to go to
Chicago and he made arrangements with the county bridge inspector
to take W iest out and back.

In returning on the afternoon of Sat

urday, August 18, the automobile went into a ditch and W iest was
injured.

Wiest proceeded under the Minnesota workmen’s compensation
act and was allowed compensation by the industrial commission.
The case was then taken to the Supreme Court o f Minnesota for
review.

234

DECISIONS OF THE COURTS

The court quoted the provisions of the General Statute (Gen. Stat.
1923, sec. 4326 (j), as follows:
(j) Without otherwise affecting either the meaning or interpreta
tion of the abridged clause “ personal injuries arising out of and in
the course of employment ” it is hereby declared:
Not to cover workmen except while engaged in, on, or about the
premises where their services are being performed, or where their
services require their presence as a part of such service, at the time
of the injury, and during the hours of service as such workmen;
Provided? That where the employer regularly furnishes transporta
tion to his employees to or from the place of employment, such em
ployees shall be held to be subject to this act while being so trans
ported, but shall not include an injury caused by the act of a third
person or fellow employee intended to injure the employee because
of reasons personal to him, and not directed against him as an em
ployee, or because of his employment.
After reviewing the evidence the court concluded that—
It sustains the finding of the commission that transportation was
regularly furnished within the meaning of the statute, as a part
of the contract of employment; that while being so transported Wiest
was injured; and that his injury arose out of and in the course of his
employment.
The order was therefore affirmed.

W o rkm en ’s C ompensation — A ccident A rising O u t of and in
C ourse of E m plo ym en t — G oing to an d from W ork— S afe P rem
ises— Morucci v. Susquehanna Collieries Co., Supreme Court of

Pennsylvania {September 30, 1929), llfl Atlantic Reporter, page
533.— One Morucci was employed by the Susquehanna Collieries Co.
to work in its colliery, located 1 mile from Glen Lyon, Pa. A special
trip o f empty cars was provided by the company each morning to
transport, over its narrow-gauge railroad, the 50 employees from
that place to their work.

They could return home by a footpath

which led from the mouth o f the colliery to Glen Lyon.

Permission

was not given the employees to ride on the loaded cars en route to
Glen Lyon, yet the company issued no orders not to ride on these
cars, and it was the custom o f the employees to ride home on the
loaded cars.

Morucci was riding home from work on one of such trips when an
accident occurred. The train had proceeded about 1,700 feet when
the car on which he was riding became derailed, throwing him to
the track, causing injuries from which he died. A claim was filed
by the widow, under the Pennsylvania compensation act (Pa. Stat.
1920, sec. 21916 et seq., as amended) and allowed by the referee and
the board. On appeal to the court of common pleas of Luzerne

w o r k m e n 's

235

c o m p e n s a t io n

County, Pa., the award was refused. The case was appealed to the
Supreme Court of Pennsylvania.
This court, in disposing of the case, said in part:
As said by the court below, in a case arising from the same acci
dent, “ The employee Stashak had ceased work and was returning
to his home. He was not then engaged in the furtherance of the
business or affairs of his employer; the accident did not happen upon
his employer’s premises within the meaning of the act (Shickley v.
Phila. & Reading C. & I. Co., 274 Pa. 360,118 Atl. 255); it happened
upon other property of the defendant, occupied, under the control of
and on which the employer’s business was being conducted. To sus
tain the award under these circumstances, it is necessary to find that
the employee’s presence upon the loaded coal car was required by the
nature of his employment. (Rotola v. Punxsutawney Furnace Co.,
277 Pa. 70, 72, 120 Atl. 704.) We are forced to the conclusion,
therefore, that the accident did not occur in the course of employ
ment, for the accident clearly occurred at a point distant about a
thousand feet from the employer’s premises—the No. 1 drift, where
plaintiff was employed— and the presence of plaintiff was not re
quired upon the loaded coal cars by the nature of his employment.
When the employee placed himself upon the loaded coal car, he
became a mere licensee or trespasser and the relation of master and
servant ceased to exist, although still upon the employer’s property,
and the fact that he was accustomed to thus do, could not alter the
situation.” We concur in the finding.
Judgment was therefore affirmed.

orkm en’s

C o m p e n s a t io n — A

c c id e n t

r is in g

O ut

and

Talge Mahogany
Go. v. Beard, Appellate Court of Indiana (<Jarmory 15, 1930), 169
Northeastern Reporter, page 51$.— On November 13, 1928, Jeremiah
Beard, while in the course of his employment by the Talge Mahog
any Co., received an injury for which he was awarded compensation.
At the hearing before a single member of the Indiana Industrial
Board an employee of the mahogany company was present, but not
being an attorney was not allowed to appear on behalf of the com
pany. The company did not file an answer of denial to the appli
cation for compensation as provided by rule 10 of the industrial
board. Rule 10 also provides that if a special defense, such as will
ful misconduct, violation of a statute, or intoxication is to be relied
upon, such special defense shall be pleaded by an affirmative answer
at least five days before the date set for the hearing. No such answer
was filed in this case.
On April 23, 1928, the employer filed an application for a review
by the full board and that permission be granted to produce evidence
showing that Beard a-t the time of the accident was engaged in
C o u r se

m ploym ent—

orseplay—

E v id e n o e —

236

DECISIONS OF THE COURTS

horseplay, and that in a scuffle over a board he fell off a pile of
lumber and was injured. This was denied, as the employer had not
complied with rule 10 regarding a special defense, and on June 7,
without hearing further evidence the full board made and entered
the award of compensation.
The employer thereupon appealed to the Appellate Court of
Indiana contending that he was entitled to introduce and have con
sidered the evidence which tended to establish that Beard’s injuries
did not arise out of his employment, but were the result of horse
play and were received while he was engaged in a fight, thereby com
mitting a misdemeanor and violating the law.
The court found the decision of the industrial board was in error
and the award was reversed, the court saying:
An injury, in order to be compensable, must not only arise in the
course of the employment, but it must also arise out of the employment.
The burden in the instant case was on appellee to prove that his inju
ries arose out of as well as in the course of his employment. It is not
necessary for an employer to file a special answer to an application
for compensation in order to entitle him to introduce evidence to
show that the injury did not arise out of the employment. A special
answer is only required under rule 10 when the employer confesses
or admits that the injury arose out of and in the course of the em
ployment. I f an employee is injured in the course of his employ
ment, in a fight which did not arise out of the employment, such
injury is not compensable. (Mercantile-Commercial Bank, Rec., v.
Koch (1925), 83 Ind. App. 707, 150 if. E. 25; Mueller v. Klingman
(1919), 73 Ind. App. 136, 125 N. E. 464.)
In order to determine whether an injury arises out of the employ
ment it is not only proper, but it is necessary, to know all the facts
and circumstances connected with the transaction. In proceedings
by an employee for compensation, the employer is not required to
file a special answer in order to warrant the introduction of evidence
to show that the injury to the employee grew out of a fight which
did not grow out of or was not connected with the employment.
The application for compensation in the instant case was heard
by the single member and by the full board upon the theory that
evidence tending to show that appellee’s injury was caused" by a
fight not arising out of his employment was not admissible without
a special answer. This was error. Parties to a proceeding for com
pensation are entitled to a hearing on a correct theory.

W o rkm en ’ s C ompensation — A ccident A rising O u t of an d i n
C ourse of E m p lo ym en t — H otel E mployee — D uties — Sprayberry

v. Independence Indemnity Go. et al., Court of Appeals of Georgia
(.February 15 1980), 152 Southeastern Reporter, page 125.— Mrs.
Birdie Sprayberry was employed as housekeeper by the General
Oglethorpe H otel Co, of Savannah, Ga.

She was required to live

w o r k m e n 's

c o m p e n s a t io n

237

in the hotel and received as a salary $100 per month and room and
board. On the night of December 13, 1927, she attended a “ party ”
in the rooms of guests of the hotel, where intoxicating liquors were
served. It did not appear that Mrs. Sprayberry partook of the
refreshments. After remaining in these rooms for about two hours,
she left with the intention of returning to her room. She entered
the service elevator of the hotel, which she was permitted to use at
all times when in the discharge of her duties as housekeeper for the
hotel. She was allowed to operate the elevator herself in the ab
sence of the operator. The elevator stuck between the floors, and in
attempting to leave it she fell and received .injuries for which she
claimed compensation.
The claim for compensation was denied on the ground that the
accident did not arise out of nor in the course of her employment.
The Chatham County superior court (Georgia) affirmed the order
of the industrial commission, and the case was appealed to the Court
of Appeals of Georgia, where the judgment was reversed, the court
holding the injury arose out of and within the course of the employ
ment. The appeals court said that it has been repeatedly held that
an employee who has temporarily abandoned the employer’s busi
ness and gone off on business of his own is, when legitimately re
turning to work and reentering the employer’s premises by a route
for that purpose, still in the discharge of his duties, and an injury
received by him when thus returning to work arises out of and in
the course of his employment.
Judge Stephens, in continuing the opinion of the court, said in
part as follows:
There is nothing in the evidence, other than the fact that Mrs.
Sprayberry was present in a room in the hotel in company with
the manager’s wife and two gentlemen guests where intoxicating liq
uors were being served, which could authorize an inference that Mrs.
Sprayberry, during her presence in the room, while these festivities
were going on, was not still on duty as housekeeper of the hotel,
and was not there in the discharge of her duties as housekeeper.
Since the duties of a housekeeper of a hotel may require her pres
ence in the discharge of her duty in a guest room of the hotel at
any time, the mere fact that she is present in a guest room of the
hotel while festivities are going on there, in which she participates,
does not of itself, without more, take her without the scope of her
duties as housekeeper and render her status, while in the room par
ticipating in the festivities, as that of an employee who has aban
doned her employer’s business.
There is no evidence to authorize the inference that Mrs. Spray*
berry went to these rooms in the hotel for the purpose of attending
this party or for the purpose of doing anything other than attend
ing to her duties as housekeeper. She herself testified that her pres66588°—31------17

238

DECISIONS OF THE COURTS

ence there was in response to a request from the guest inviting
her to come to the room on a matter which was clearly within the
scope of her duties as housekeeper.
The situation is the same as if the liquor was nonintoxicating or
only food was served in the rooms. The test is whether her con
duct was such as to deprive her while in the rooms of her status
as housekeeper of the hotel. * * * If, while she was in the
rooms, her conduct with respect to the liquor could be considered
as in violation of law, its criminal character certainly could not
effect a denial of what otherwise is a fact that she was at the time
on duty as the housekeeper of the hotel.
The judgment of the superior court was therefore reversed.
The judgment o f the court o f appeals was reversed by the Supreme Court o f
Georgia in 1931. (Industrial Indemnity Co. et al. v. Sprayberry, 156 S. E. 230.)

W orkm en ’s C ompensation — A ccident A rising O u t of an d in
C ourse of E m plo ym en t — I ntentional and W illfu l A cts— Bullard
v. Cullman Heading Co., Supreme Court of Alabama (May SO, 1929),

124 Southern Reporter, page 200.— Cohan Bullard was injured while
employed by the Cullman Heading Co. He proceeded under the
Alabam a workmen’s compensation act and was denied compensation.
Upon appeal the circuit court o f Cullman County, A la ., rendered
judgment in favor o f the Heading company, and Bullard carried
the case to the Alabam a Supreme Court for review. The sole ques
tion presented for review was whether or not Bullard was injured
by an accident“ arising out of and in the course o f his employment.”

The facts of the case showed Bullard was employed to “ bear off
heading from a heading machine.” He took the heading from the
“ conveyor ” and handed it to a fellow employee to be stacked. Bul
lard requested his foreman to allow him to exchange jobs with a
fellow employee, whose duties were to clean the floors in the plant.
After Bullard had been cleaning the floors a short time, he, without
any authority, knowledge, or acquiescence upon the part of the
company or foreman, left his job and began to operate a bolting
saw, and within a few minutes was injured.
As the evidence was undisputed, the Supreme Court of Alabama
was in accord with the conclusion of the lower court and affirmed
its decision, that such a departure from his regular work removed
him from the protection of the workmen’s compensation act.
The case was denied a rehearing because the Supreme Court of
Alabama had repeatedly held that the findings of the trial court
would not be disturbed where there was any legal evidence in support
of the conclusion, and this rule applied to cases where the award
was denied as well as to cases where there was a judgment favorable
to the plaintiff.

DECISIONS OF THE COURTS

239

W orkm en ’ s C ompensation — A c c i d e n t A r i s i n g O u t o f a n d i n
C ourse o f E m p lo ym en t — I n t e r s t a t e C ommerce— J urisdiction —

Hart v. Central Railroad Co. of New Jersey, Supreme Court of New
Jersey (November 7, 1929), 147 Atlantic Reporter, page 733.— Stan
ley H art, a car inspector employed by the Central Railroad Co. of
New Jersey, was killed while in the performance o f his duty. H is
widow filed claim under the New Jersey workmen’s compensation
act and was awarded compensation which was affirmed in the Hudson
County court, and was taken to the Supreme Court o f New Jersey for
review.

The facts indicated that Hart was killed by the movement of a
string of empty baggage cars on track No. 2. On this track were cars
of the Baltimore & Ohio Railroad Co., the Reading Railroad Co.,
and of the Central Railroad Co. None of these cars were in actual
service, however, one was marked to show that repairs were needed
and it was in the vicinity of this “ crippled ” car that the deceased
was last seen with tools in his hands. The fundamental question for
determination was whether Hart was engaged in interstate or intra
state commerce at the time of the accident. The railroad company
contended that as the major part of these cars belonged to the Balti
more & Ohio Railroad and the Reading Railroad companies, cor
porations of other States, the cars were permanently devoted to inter
state service. The court held, however, that the cars had not been
assigned to work in either interstate or intrastate commerce and said
that it is settled “ that movable rolling stock that is not in course of
interstate service is not engaged in that service, and the rights of the
employees are in such case remitted to the workmen’s compensation
law of the State.”
Regarding the question of interstate and intrastate commerce, the
court said:
We think the result reached below should not be disturbed. Hart
was a car inspector, employed by the prosecutor, whose duty it was
to inspect cars that came into the yard of the Central Railroad Co.
in Jersey City. When killed, it could be inferred that he was in
specting, or was about to inspect, cars which came into the yard,
and which might be used in interstate or intrastate service or Doth.
In the present case these cars were not in any actual service, nor
were they in contemplation of actual service; none of them had been
segregated for a service in either; none of them had been assigned to
a train in contemplation of movement, though liable thereto, nor left
off of a train, intending to complete later a journey already begun.
We do not understand that mere liability of a car at rest to be called
into either service is therefore impliedly in interstate commerce, and,
if not, it necessarily has only an intrastate relation to the workmen.
In addition, it must be recognized that the present action is not
against either of these foreign compauies, but against the Central
Railroad Co., a corporation of this State, by whom deceased was

240

DECISIONS OF THE COURTS

employed, and the cars in question were on its tracks. I f the peti
tioner has shown, as we think she has, that the cars on these tracks
were not in interstate operation, her rights under the compensation
laws accrued, and she was entitled to recover thereunder.
The judgment was therefore affirmed.

W o rk m en ’s Compensation— A c c id e n t A risin g O u t o f and in
Course o f E m ploym ent— In to x ic a tio n — Proxim ate Cause— City

Ice <& Fuel Co. v. Katrlinshy, Court of Appeals of Ohio, Cuyahoga
County (April 22,1929), 168 Northeastern Reporter, page 475.— One
Karlinsky was employed by the City Ice & Fuel Co.

W h ile K a r -

linsky was driving a team o f horses attached to a coal wagon and
making the return trip after delivering some coal, one o f the wheels
o f the wagon went into a hole in the street, startled the horses and
threw him from his seat. He struck his head on the pavement,
broke his arm, became unconscious, and died shortly thereafter.

It was shown that Karlinsky was intoxicated when the accident
occurred.
A claim was made for compensation by the widow, Anna Kar
linsky, and was denied on the ground that the death of the husband
resulted from alcoholism and not from an injury. Upon appeal,
this decision was reversed in the Ohio Common Pleas Court and the
company then carried the case to the Court of Appeals of Ohio,
Cuyahoga County. This court affirmed the decision of the lower
court and said in part as follows:
We think the question in this case is whether this man received his
injury while in the course of his employment. Now, upon that point
there can be but one answer, and that is that he was employed to
deliver coal for the plaintiff in error company, and was returning
with their team and wagon from delivering coal when the accident
occurred. Whether that injury resulted in his death might be ques
tionable, but as to the question of receiving an injury while in the
course of his employment there can be but one answer, and that to
the effect that he did receive such an injury; and, even though he
was intoxicated, that would not make him any the less an employee
of the company, nor would it make him any the less entitled to
compensation.
W e think there was evidence in this record that would warrant
the judgment that was rendered in the common pleas court. We
think that the record shows that this man died from the injuries that
were received while he was in the course of his employment, and
that the defendant in error was a dependent and filed her claim in
the proper manner, and, that being refused, a proper appeal was
taken to the common pleas court. The case was properly tried, and
we can see no error in the judgment rendered.

DECISIONS OF THE COURTS

241

W o rkm en ’ s C ompensation — A ccident A rising O u t of an d i n
C ourse of E m plo ym en t — J urisdiction — P reexisting C ondition —
Hahn v. Industrial Commission et al., Supreme Court of Illinois
(October 19, 1929), 168 Northeastern Reporter, page 65%.— Clyde
C. H ahn was employed by the Y ellow Sleeve Y alve Engine W orks
(In c.) as a pipe fitter. O n January 4 ,1 9 2 5 , H ahn was standing on
top o f a ladder with a chisel in one hand and a hammer in the other,
and with both hands above his head he was cutting a groove in a post
in which to place a wire.

H e fell from the ladder, struck the guard

rail around a lathe, and his body landed on the floor between a post
and the lathe.

There was a scalp wound in his head about 1 inch

long, from which blood flowed.

H e was carried into the hall en

trance where he died.

The widow, Eunice R. Hahn, applied for compensation under the
Illinois workmen’s compensation act and an award was denied by
the arbitrator. The Industrial Commission of Illinois affirmed the
finding of the arbitrator denying compensation after the body of the
deceased was exhumed and an autopsy held. The case was reviewed
by the circuit court of Rock Island County, 111., and the decision of
the commission confirmed. The case was then taken to the Supreme
Court of Illinois.
The contention of the employer and the industrial commission was
that Hahn did not fall from the ladder as the result of an accident or
on account of anything which he did in the prosecution of his work,
but that he died from natural causes and fell because he was struck
by death.
The widow contended, however, that while Hahn was prying with
the chisel, he exerted enough force to tip the ladder and that his
death was the result of the fall rather than heart failure as suggested
by the employer.
The court adopted the opinion reported by Commissioner Partlow,
which concluded as follows :
The burden of proof was upon the plaintiff in error to prove by
the preponderance of the evidence that the death was the result of
an accident which occurred in the course of the employment. The
same rules govern the admission of evidence and the burden of proof
before the industrial commission as are applied in courts oi law.
(Inland Rubber Co. v. Industrial Com., 309 111. 43, 140 N. E. 26.)
The findings of the commission on the facts will not be disturbed by
this court unless such findings are against the manifest weight of the
evidence. (County of Cook v. Industrial Com., 327 111. 79,158 N. E.
405.) I f a workman dies from a preexisting disease which is accel
erated under circumstances which can be said to be accidental, his
death is the result of accidental injury. The liability of an employer
under the compensation act (Smith-Hurd Rev. Stat. 1929, ch. 48,
secs. 138-172) can not be based on a choice between two views equally

242

DECISIONS OF THE COURTS

compatible with the evidence, but the liability must be based upon
facts established by the evidence, and, where the cause of the injury
or death is equally consistent with an accident and with no accident,
compensation will be denied (Ryan v. Industrial Com., 329 111. 209,
160 N. E. 353).
The arbitrator, the industrial commission, and the circuit court
each found that this death was not the result of the accident. When
the evidence is considered in its entirety, we can not say that such
findings are contrary to the manifest weight of the evidence, and the
judgment will be affirmed.

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

m p l o y m e n t —Loss o f

r is in g

O ut

and

v. Krug Cement
Products Co. et cd., Supreme Court of Michigan (June 3, 1929), 225
Northwestern Reporter, page 559.— The Krug Cement Products Co.
operated a plant in the city of Detroit, where cement blocks were
manufactured and it also owned and operated a gravel pit several
miles north of Detroit. Makary Levchuk was employed by the com
pany to take charge of the gravel pit and assist in loading the trucks.
In accordance with directions given to him by his employer on the
previous day, Levchuk on January 24,1928, went to the Detroit plant
at 7 o’clock in the morning, where he was to be picked up and taken
to the gravel pit by one engaged in hauling gravel for the Krug Co.
Levchuk was riding on the right-hand side of the front seat when
a fowl of some kind, probably a pheasant, flew against the windshield
of the truck. The impact was sufficient to shatter the glass and a
portion of it struck and injured Levchuk’s left eye. He filed claim
for compensation under the Michigan workmen’s compensation act.
The Michigan Department of Labor and Industry denied the claim
on the ground that the accident did not “ arise out of the employ
ment.” The employee carried the case to the Supreme Court of
Michigan for review.
In rendering the opinion of the court Chief Justice North cited
the case of Hopkins v. Michigan Sugar Co. (184 Mich. 87,150 N. W .
325), which held that—
C o u r se

y e —Levchuk

The causative danger must be peculiar to the work and not common
to the neighborhood. It must be incidental to the character of the
business, and not independent of the relation of master and servant.
It need not have been foreseen or expected, but after the event it must
appear to have had its origin in a risk connected with the employ
ment and to have flowed from that source as a rational consequence.
He also quoted California C. I. Exch. v. Industrial Acc. Comm.
(190 Calif. 433, 213 Pac. 257) in part as follows:
There must be some causal connection between the employment
and the injury in the sense that, by reason of the employment, there

w o r k m e n 's

243

c o m p e n s a t io n

was an unusual or additional exposure of the injured party to the
kind or character of hazard and danger, * * * which caused
the injury.
In this case, however, it was found that Levchuk was not at the
place of his employment at the time of the accident. He was merely
on his way. It was of no consequence to the Krug Co. whether the
plaintiff walked to the gravel pit, rode a bicycle, or went in a truck,
but because he happened to be in the truck he sustained his injury.
No part of his work took him out upon the highway and the ordinary
risks of the street were not made incidental to his employment. In
view of these findings the court concluded as follows:
The commission was right under the undisputed facts in this case
in holding that plaintiff’s injury did not arise out of his employment,
and in denying him an award of compensation.
The determination of the commission was affirmed. The decision
was rendered by a divided court, however, and Mr. Justice McDonald
rendered a dissenting opinion calling for a reversal of the award,
saying in part as follows:
It is conceded that the accident to the plaintiff arose in the course
of his employment, but it is insisted that it did not arise out of his
employment. My brother argues that it did not arise out of his
employment, because the danger to which he was exposed in this
truck on the highway was no greater or different than that of other
members of the general public similarly situated. He quite over
looks the fact that it was a condition of the plaintiff’s employment
that he should be there on the highway at that time. His employer
sent him from the factory to a gravel pit. He could not go as he
pleased. The vehicle in which he was to ride was selected for him.
He was required to ride on this truck, and while thus riding he was
performing his master’s business as truly as he would have been had
he been working in the factory or the gravel pit. So, whatever were
the hazards to which he was then exposed, they were connected with
his employment and incidental thereto. In this sense there was a
causal connection between the injury and the employment.

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

r is in g

O ut

m ploym ent—

P ersonal

r r a n d — Guivareh

and

et al. v.
Maryland Casualty Go., Circuit Court of Appeals, Fifth Circuit
(January 30, 1930), 37 Federal Reporter (2d), page 268.— Louis
Guivareh was an employee of the Jacobson Dredging Co., which was
engaged in dredging work in Mobile Bay, Ala. He was employed
as a leverman on the dredge Matagorda, stationed in the waters of
the bay 400 or 500 yards from the land. The employer maintained
a houseboat about 100 yards from the dredge, on which the employees
took their meals and slept. While off duty Guivareh went to visit
C o u r se

DECISIONS

244

th e

courts

his wife in Mobile, using his skiff in going to and from the shore.
While returning to the houseboat, he was drowned in Mobile Bay.
Ella Guivarch filed claim under the Texas workmen’s compensa
tion law to recover compensation for the death of her husband.
Compensation was denied by the industrial board, and the widow
filed suit in the district court to recover compensation from the in
surer. The United States District Court for the Southern District
of Texas rendered a verdict in favor of the insurer and the widow
appealed the case to the Circuit Court of Appeals, Fifth Circuit,
contending that the death of the deceased was due to a risk incident
to his employment by reason of the fact that the injury resulting in
his death was sustained at a place furnished by the employer for use
by employees in getting to and from their place of work. Judge
Walker, in delivering the opinion of the circuit court, said that the
widow was not entitled to the relief sought unless the deceased came
to his death as a result of an “ injury sustained in the course of em
ployment” which included 46injuries of every kind and character
having to do with and originating in the work, business, trade, or
profession of the employer, received by the employee while engaged
in or about the furtherance of the affairs or business of his employer
whether upon the employer’s premises or elsewhere.”
In concluding the opinion, affirming the judgment of the district
court, Judge Walker said:
The waters of the bay between the shore and the employer’s dredge
can not properly be regarded as having been furnished by the em
ployer for the use of its employees, and were not for use of employees
only, but were open to the public generally for use. Where an
employee is injured while he is not engaged in the work or business
of his employer or in or about the furtherance thereof, and at a place
not provided by his employer for use of employees only, the injury
is not one sustained in the course of employment, though at the time
it was sustained the employee, using his own vehicle or means of
conveyance and a route chosen by himself, was going to or from his
place of work. [Cases cited.]
We conclude that the evidence adduced had no tendency to prove
that the death of the deceased was due to an injury sustained in the
course of his employment. It follows that the claim asserted by the
appellants was not sustainable.

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

r is in g

O ut

and

Ohmen v . Adam* Bros.
et alSuprem e Court of Errors of Connecticut (July 10, 1929), llfi
Atlantic Reporter, page 825.— Alfred Ohmen was a carpenter who
worked for Adams Bros, off and on for some four years. The em
ployees of Adams Bros, had no fixed place of employment, but went
C ou r se

m ploym ent—

ersonal

E rrand—

w o r k m e n 's

c o m p e n s a t io n

245

to such points as their employers instructed them to go, and where
they had work for them. It was Ohmen’s custom, during the entire
term of his employment, to go from his residence to such points as his
employment called him. His wages began at 8 a. m. whether he had
reached the job or not. During his employment with Adams Bros.
Ohmen had asked and received permission from them to go to Warren
village to attend all elections and town meetings. October 3, 1927,
was the annual town meeting day in Warren and the employer had
given Ohmen permission to go there to vote. On this morning Ohmen
went from his home to the village of Warren, was the first voter of
the day, and immediately thereafter proceeded toward the place of
his employment in Washington Green some 6 or 7 miles away. While
making this trip, at about 9.20 a. m., a car collided with Ohmen’s
car, wrecking it and inflicting serious injuries upon Ohmen.
He filed a claim under the Connecticut workmen’s compensation act
and the commissioner found Ohmen had sustained a personal injury
arising out of and in the course of his employment and made an
award. The award was later affirmed by the Superior Court of Con
necticut and Adams Bros, then carried the case to the Supreme Court
of Errors of Connecticut, where the decree was again affirmed. The
court said in part:
While the plaintiff was proceeding from his home to vote by the
permission of his employer, he was serving his own purposes, al
though doing this with his employer’s express consent and after his
day’s pay had begun, and could not recover compensation for an in
jury then suffered. As to whether he was in the course of his em
ployment from the time he left the village of Warren after voting up
to the time he reached the junction of the main highway with the
branch road leading to his residence we have no occasion to express
an opinion upon. From the time he reached the main highway and
was proceeding to his place of work he was in the course of his em
ployment. It was then past the hour T*hen his pay began. He was
going by the direction of his employers to his work, in a customary
conveyance of which they had knowledge, and by a route which was
the shortest route to the place of his work, and one which it was
reasonable for him to take. * * * I f, then, the injury arose in
the course of the employment, did it arise out of it? The injury was
the result of a risk incident to plaintiff’s employment, and was liter
ally within the terms of his contract of employment.
While the general rule is undoubted that an employee injured upon
a public highway while going to and from work at a fixed place of
employment is not entitled to compensation, we point out in Whitney
v. Hazard Lead Works (105 Conn. 513,136 Atl. 105), that the rule is
subject to many exceptions. The instant case falls within the fourth
of the named exceptions: “ Where the employee is using the highway
in doing something incidental to his employment, with the knowledge
and approval of the employer.” * * * The injury was the result
of a risk incident to a condition of the employment under which it
was required to be performed.

246

DECISIONS OF THE COURTS

The judgment of the superior court affirming the award and dis
missing the appeal was fully justified.

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 A r i s i n g

O ut of

and

Pflug v. Boesch <&
Klmek (Inc.) et al., Supreme Court of New York, Appellate Divi
sion (March 87, 1930), 21ft New York Supplement, page 7Jfi.—
Edward Pflug was a salesman in the employ of Eoesch & Klinck
(Inc). On June 4, 1929, he was given permission to take an auto
mobile, left at the garage by a customer to be resold, and to demon
strate it, and to make a sales contract with a certain prospect by
the name of Lopez, who lived at Blasdell, 4 miles south of Buf
falo, N. Y . Pflug visited Lopez and made a contract for the sale of
the car. The contract was, however, subject to the approval of the
company and the owner of the car.
Instead of returning to Buffalo, Pflug went in the opposite direc
tion, to Hamburg. There he went to a “ speak-easy” and met a
friend with whom he visited for about an hour and a half. He took
the friend to ride in order to demonstrate the car to him. They had
not proceeded a mile when, apparently through reckless driving on
the part of Pflug, there was an accident in which Pflug was killed.
Anna M. Pflug, mother of the deceased, filed claim for compen
sation, claiming the accident arose out of and in the course of the
employment as Pflug was demonstrating the car to his friend when
the accident occurred. The New York State Industrial Board made
an award and the employer appealed the case to the New York Su
preme Court, appellate division. The court held that the accident
did not arise in the course of the employment as the work created
no necessity for his visit at Hamburg. The court said that the er
rand which had taken him ffom Buffalo in the car he was permitted
to use had been discharged when he made a contract with Lopez and
the risk on his visit to Hamburg, which was for pleasure and social
enjoyment, was personal.
In reversing the decision of the State industrial board the court
also said that in workmen’s compensation cases referees sit in a
quasi judicial capacity to determine facts afid to interpret to some
extent the law, and during hearings their minds should be open and
their attitude impartial in order that substantial justice may be done
between contending parties.
C ou rse

E m p lo y m e n t— P e r s o n a l

o r k m e n ’s

C o m p e n s a t io n — A

E rra n d —

c c id e n t

r is in g

O ut

and

TVickham v . Glenside
Woolen Mills et al., Ccmrt of Appeals of New York (October 16,

C o u r se

E m p l o y m e n t — -P e r s o n a l E r r a n d —

w o r k m e n 's

247

c o m p e n s a t io n

1929), 168 Northeastern Reporter, page
— Charles J. Wickham
was employed as helper in the spinning department of the Glenside
Woolen Mills. Among other duties, he carried spools from the spin
ning room to the card room. On the day of the accident he had
carried some spools and left them in their proper place. On the way
back to his starting point, he stopped to ask a fellow employee for
a chew of tobacco. This errand took him a few feet out of his direct
course. After he had spoken to the man he started to go on and
slipped on a greasy floor. As a result of the fall his arm was caught
in a machine and his hand amputated. An award of compensation
by the New York State Industrial Board was affirmed by the New
York Supreme Court, appellate division (225 App. Div. 838, 232
N. Y . Supp. 917), and the employer and insurer appealed. The
award for compensation for the loss of a hand was affirmed, the court
of appeals saying in part as follows:
An accident befalls a man “ in the course of ” his employment if
it occurs while he is doing what a man so employed may reasonably
do within a time during which he is employed, and at a place where
he may reasonably be during that time to do that thing. (Moore v.
Manchester Liners (1910), A . C. 498, 500.)
Workmen situated as claimant was may reasonably be expected to
chew tobacco and to ask their fellow workmen for tobacco for that
purpose. The practice is nothing to which the employer would
ordinarily object. * * * Claimant’s employment did not cease
when he went out of his way a few feet to ask for a chew. In a sense,
the act was done for “ his own purpose,” but it was none the less
something which he was free to do in the course of his employment,
at least in a shop where, as in this case, no objection was made to the
practice.
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 A r is in g

O u t o f a n d itf

E m p l o y m e n t — S t r e e t A c c i d e n t —Pelletier's

Case, Su
preme Judicial Court of Massachusetts (December 31, 1929), 169
Northeastern Reporter, page
— Michael Pelletier, an employee
of James Charamella, who conducted a wholesale fruit and produce
business, met his death February 28, 1929, while riding in his own
automobile, operated by the employer’s son. Pelletier’s duties con
sisted of covering, in his own automobile, a certain designated terri
tory while soliciting orders for his employer. He was paid a fixed
sum each week plus an additional weekly sum for the use of his
automobile. The employer gave Pelletier instructions as to when
he should go over a certain route, but gave no instructions as to
the manner in which he should operate the automobile.
The employer’s son, somewhat over 16 years of age, had been
employed at times by the insured to help salesmen in soliciting
orders. The day before the accident the employer had told Pelletier
C ou rse o f

248

DECISIONS OF THE COURTS

to give his son instructions in running the automobile and requested
him to take the son with him on the following day. Pelletier
drove the automobile during the first part of the trip and then after
making a call on a customer, permitted the son to operate it.
The ground was covered with snow and when the son attempted to
put on the brakes to avoid hitting a wagon an accident occurred,
resulting in Pelletier’s death.
Claim for compensation was filed and a single member of the
board found that—
The employee’s death was caused by the overturning of the auto
mobile driven by a fellow employee, who went with him under
instructions from the employer “ to learn the business,” including
the running of the automobile used by Pelletier in furtherance of his
employer’s business; that the automobile skidded and got out of the
control of the fellow employee, ran wild over an embankment, and
dropped with its occupants into a river 30 feet below, causing the
death of Pelletier by drowning, and that he was at the time of
his fatal injury engaged as a salesman in soliciting orders for his
employer.
Compensation was awarded by the Industrial Accident Board of
Massachusetts and the award was later affirmed by the superior
court, Suffolk County, Mass. Thereupon the insurer appealed to
the Supreme Judicial Court of Massachusetts, where the decision
of the lower court was upheld, the court saying in part as follows:
The findings of the member of the board that Pelletier’s injury
arose out of and in the course of his employment, and that at the
time he was in the course of his duty for the employer* were war
ranted on the evidence. The skidding of the automobile under the
circumstances could have been found to be an ordinary risk of the
street. Pelletier was actually engaged in the business and under
takings of his employer, and, although he owned the automobile, it
was being operated at the employer’s request by the son to teach him
to run it for the benefit of the employer’s business. The automobile,
under these circumstances, could have been found to be an appliance
of the employer’s business being used in his behalf. (Mannix’s Case,
264 Mass. 584, 585, 163 N. E. 171.) The facts in this case distin
guish it from the cases in which the employee in operating his own
automobile was not a servant of the employer, but an independent
contractor (Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574, 149
N. E. 541; Khoury v. Edison Electric Illuminating Co. (Mass.),
164 N. E. 77), and bring it within the terms of statutes, 1927, chapter
309, section 3, which authorizes compensation in a defined class of
cases where the injury arises from ordinary street risks.

orkm en’s

C o m p e n s a t io n — A

c c id e n t

r is in g

O ut

and

Webb v . North Side
Amusement Co., Supreme Court of Pennsylvania (.November 25,
1929), lift AtlanMo Reporter, page 81fi.— Earl C . Webb was in the

C ou rse

m ploym ent—

S treet A

c c id e n t —

w o r k m e n 's

c o m p e n s a t io n

249

employ of the North Side Amusement Co. in Pittsburgh, Pa, He had
a dual employment since he was hired as a chauffeur by the amuse
ment company and as a private driver and houseman by its general
manager, Nathan Friedberg. On July 25, 1928, Friedberg with
Amdur, the assistant manager, and another were driven by Webb to
New York City in the general manager’s car. It was a business trip
made by the two managers for the purpose of inspecting talking
motion pictures with a view of later installing them in the theater
which the company operated. When this inspection was completed,
on Friday, July 27, the party drove to Atlantic City for purely
recreational purposes. They remained until the following Sunday
when Friedberg, with Webb acting as chauffeur, began the homeward
journey from Atlantic City to Pittsburgh. En route both were killed.
Lillian E. Webb, the widow, was awarded compensation and the
court of common pleas, Allegheny County, Pa., affirmed the award.
The employer thereupon appealed the case to the Supreme Court of
Pennsylvania, contending that—
The trip to Atlantic City constituted a deviation from defendant’s
business or employment. This operated as a suspension or aban
donment of the deceased’s employment with defendant. The de
ceased’s relationship as employee of defendant was still under suspen
sion at the time of his death, [so that] the deceased was not in the
course of his employment with defendant corporation at [that]
time.
Regarding this contention that the excursion to Atlantic City
was not at an end when Webb and the manager started home, the
court said:
In this connection it is to be noted, as pointed out in the opinion
of the compensation board, that, “ even though Atlantic City is not
on the shortest and most practicable route for a return trip [from]
New York to Pittsburgh, it so happened that when the accident
occurred he [Webb] was on the most used and possibly the shortest
motor car route between [those two points].” The homeward trip
wTas a necessary part of the business excursion and, since there is
nothing in the facts here presented indicating that the general man
ager, who was in charge of the trip, intended that the journey home
be otherwise than the final step of the business expedition, we
have been shown no reason which would require the finders of facts
to interpret it as a continuation of the recreational deviation to
Atlantic City.
The judgment of the lower court sustaining the award was there
fore affirmed.
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 A r i s i n g
C o u r s e o p E m p l o y m e n t — S t r e e t A c c i d e n t — Wynn

O ut op a n d in

et al. v. Southern
Surety Co., Court of Civil Appeals of Texas (March 13, 1930),

250

DECISIONS OF THE COURTS

26 Southwestern Reporter (2d), page 691.— H. D. Wynn was
employed as field man for the Laney Creamery Co. (Inc.), of San
Antonio, Tex., his duties being to visit creameries located in a certain
territory in Texas. He was employed on a salary of $125 a month
and expenses and was furnished an automobile in which to cover his
territory. On March 6, 1926, he arrived in Waco, Tex., and due to
bad roads and heavy rain was required to remain there. Under the
terms of his employment Wynn was expected to work on Sunday
when necessary. There were two customers in Waco that he was
expected to see while there, namely, the M. B. Ise Kream Co. and the
Purity Ice Cream Co. On Saturday afternoon he called the M. B.
Ise Kream Co. to ascertain if it would be open on Sunday, and was
told that it would be. Nothing further is known about Wynn’s
movements until 6.30 Sunday afternoon, March 7, at which time he
secured his evening meal at a restaurant on South Sixth Street in
Waco. In attempting to cross Sixth Street, going toward the hotel
where he was registered, he was struck by an automobile and killed.
The Industrial Accident Board of Texas awarded compensation to
Pearl S. Wynn, the widow, and the employer’s insurer immediately
instituted suit to set aside the award on the ground that the accident
did not arise in the course of the employment. The district court,
McLennan County, Tex., rendered a judgment in favor of the insurer,
the Southern Surety Co. Thereupon the widow appealed to the
Court of Civil Appeals of Texas.
The court reviewed a number of cases where the injury occurred
after the employee left the premises of his employer and was upon
the street or highway not in any way under the control of the
employer, and found that the courts have uniformly held that any
injury which the employee might receive as a result of accidents that
are common to the general traveling public is not received “ in the
course of his employment.” Continuing, the court affirmed the
judgment of the lower court, saying in part as follows:
A traveling salesman, while eating his meals or sleeping at hotels,
or attending church or theaters or going on picnics or private errands
for his own pleasure or profit, is not, within the contemplation of the
workmen’s compensation act, engaged in his employer’s business, and
an injury received by him while performing said acts or engaged in
said recreations is not, within the purview of said law, an injury
received “ in the course of his employment.”
We do not think it could be presumed that, because Mr. Wynn was
a traveling salesman, away from home, during Sunday, and
especially between 6 and 7 o’clock Sunday evening, he was doing
any act in the course of his employment or performing any services
for his employer. Under the undisputed facts in this case, we think
the trial court properly instructed the jury to return a verdict for
appellee,

DECISIONS OF THE COURTS

251

W o rk m en ’s Compensation— A ccid e n t A risin g O u t o f and in
Course o f Em ploym ent— W i l l f u l M isconduct— C o n stru ctio n o f
S ta tu te — Steams Goal & Lumber Go. et al. v. Smith, Court of A p
peals of Kentuclvy (October 25, 1929), 21 Southwestern Reporter
(3d), page 277.— Inman Smith was injured while employed by the
Stearns Coal & Lumber Co. The accident occurred in the morning
when he was preparing to enter the mine for the purpose o f per
forming his duties. I t was the custom of the miners to arrange with
the motormen in charge of mine cars to carry into the mine articles
used in connection with their work.

Sm ith attempted to board a

motor car that was passing into the mine, for the purpose o f re
questing the motorman to carry his dinner bucket, which he had left
at the mouth o f the mine. In attempting to board the car his foot
slipped out o f the stirrup, which was bent, and he fell under one
o f the wheels. H is foot was so badly mangled that it was necessary
to amputate it. H e filed claim for compensation and the W orkm en’s
Compensation Board o f Kentucky found that he was guilty o f w ill
fu l misconduct and further that the accident did not arise out o f
and in the course of his employment, therefore compensation was
denied. A petition for review was filed in the circuit court, M cCreary County, K y ., and that court set aside the judgment and re
manded the case to the compensation board. The company and the
board thereupon appealed to the Kentucky Court o f Appeals. This
court held the accident did arise out o f and in the course o f the
employment, saying, in p art:

Here the appellee was on his master’s premises, and was making
preparations incident to his work during the day. It was just as
necessary for him to provide himself with food to eat during the
noon hour in order to further his master’s business as it was to equip
himself with proper tools with which to work. In arranging for a
motorman to carry a bucket containing his food to a place in the
mine where he was to work, he was not doing an act wholly for his
own benefit, but one which was necessary to enable him to perform
his duties properly, and hence was an act designed to promote the
work of his employer.
Regarding the willful misconduct alleged, the appeals court quoted
from the case of Big Elkhorn Coal Co. v. Burke (206 Ky. 489, 267
S. W . 142), as follows:
It seems clear to us that the legislature meant to provide that the
intentional violation of a safety rule should not amount to such
willful misconduct as to defeat recovery under the act, or to take
the employee out of the course of his employment, but only to require
the diminution of the compensation awarded by the 15 per cent
provided for.
The court concluded the opinion by saying:
It may be that appellee’s act in attempting to board the motor car
amounted to gross negligence, but to constitute willful misconduct

252

DECISIONS OF THE COURTS

within the meaning of the act it must have amounted to something
more than gross negligence. * * ♦ There is some conflict in the
evidence as to whether or not the appellee intentionally violated a
lawful rule of appellant for the safety of its employees, but this is
a matter for the determination of the board, if the diminution of the
compensation by 15 per cent is sought.
Being of opinion that the judgment of the circuit court reversing
the award of the compensation board is correct, it is affirmed.

W orkm en ’ s

C ompensation — A dditional A ward — P artial

a b ility — D ouble

D is

R ecovery— Welden v. Edgar Zinc Co., Supreme

Court of Kansas {January 11, 1930), 283 Pacific Reporter, page
618.— W elden, an employee o f the Edgar Zinc Co., was injured on
June 9, 1925, while in the course o f his employment. He was paid
fu ll compensation until he returned to work on September 1, 1925.
U pon his return he was employed at the same class and kind o f
labor he was doing before the injury and continued to do that work
until October, 1927, for which he was paid the wages which he had
formerly received. He did his work during that period with some
discomfort and more or less pain, and after the compensation period
had elapsed he asked for additional compensation for the 2-year
period because he had done the work with discomfort and pain.
Additional compensation was denied and the case was appealed to
the Supreme Court o f Kansas.

In discussing the difference between a recovery under the work
men’s compensation act and a recovery of damages for negligence,
the court said:
The fact that he did this work with some discomfort and pain
might have been an element of recovery in an ordinary action to
recover damages for negligence. The compensation law is a marked
departure from the theory of actions based on the wrongs or negli
gence of employers. It is based on the theory of taxing the industry
for the loss sustained by accidental injury to a workman while em
ployed in such industry, and compensation is to be paid regardless
of the negligence of the employer or even the fault of the workman.
The theory is that the compensation is to be measured, not as dam
ages for pain and suffering, but for the loss sustained by the inca
pacity of the workman resulting from the accidental injury. In
eneral it may be said that the test to be applied is the difference
etween average earnings of the workman before the accident and
his average earnings after the accident. The statute schedules the
amount of compensation for certain injuries, and fixes minimum and
maximum limits of recovery in other cases. The industry is not to
be taxed for accidental injuries beyond the workmen’s loss of earn
ing capacity measured as the statute provides. Here the workman
earned and has received full wages for the entire period for which

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

253

compensation is sought. He has received more even than he would
have been paid if he had not returned to work.
Several cases were cited in which the Kansas Supreme Court had
awarded additional compensation, but the court said:
These and like cases where work was done and a regular wage
earned by the help of others or by the use of tools especially designed,
to enable him to overcome permanent defects, where the compensa
tion period had not elapsed and where the getting and holding of
a job at full wages was problematical, are not deemed to be ap
plicable to the case at hand.
Regarding this case the court said:
Here the period of compensation had elapsed within which any
compensation was or could be claimed. The work had been done
and full wages had been paid for it. There was nothing uncertain
about the workman’s condition or his future earning capacity. The
work, it is true, was done with discomfort and some pain for a period
of two years, but that did not diminish his earning capacity. The
back pay asked by plaintiff because of discomfort and pain would be
more than the loss of earning capacity, something more than the
compensation provided by the act. An allowance for pain and suf
fering would be something in the nature of damages for the negli
gence or wrong of the defendant, which is inconsistent with the
substituted remedy of compensation.
The decision of the lower court denying an additional award was
therefore affirmed.
W o r k m e n ’s C o m p e n s a t io n — A g r i c u l t u r a l W o r k e r — I n t e r p r e t a
S t a t u t e — R e v ie w —Boyer v. Boyer et al., Supreme Court of
Minnesota (November 29, 1929), 227 Northwestern Reporter, page
661.— John H. Boyer lived with his parents upon a farm, but he did
not own or operate the farm. He owned a threshing machine, a silo
cutter and filler, and other farm machinery, and characterized his
business as that of a commercial thresher. Joseph L. Boyer was
employed by him on August 1, 1928, to help in this work. On
October 29, 1928, Joseph Boyer was sent to a farm where his em
ployer had secured a job of silo filling and during that afternoon,
in the operation of the machine, his left hand accidentally got caught
in the cutter, resulting in the maiming of two fingers.
Joseph Boyer filed claim for compensation and the award was
denied by the Minnesota Industrial Commission. The accidental
injury was found to have arisen out of and in the course of his em
ployment in operating the silo filler, but as a conclusion of law the
commission held that he was a farm laborer at the time of the injury
and compensation was denied.
The employee took the case to the Supreme Court of Minnesota
for review. In rendering the opinion the court quoted part of sub
t io n of

254

DECISIONS OF THE COURTS

division (m) of section 4326, Gen. Stat. 1923 Minnesota (sec. 4326,
Mason’s Minn. Stat. 1927), chapter 91, Laws 1923, as follows:
(m) The term “ farm laborers ” shall not include the employees of
commercial threshermen or of commercial balers. Commercial
threshermen and commercial balers are hereby defined to be persons
going about from place to place threshing grain, shredding or shell
ing corn, or baling hay or straw, respectively, as a business. * * *
In view of this definition the court concluded:
Relator [Joseph L. Boyer] was the employee of a commercial
thresherman. The employer so designates himself and the evidence
is conclusive that that was his business, and that relator on the morn
ing of the very day of the accident worked as a thresher. It is also
to be noted that the employer here by merely ceasing the work of
threshing did not withdraw his employees from the compensation act
under the definition above given. He was a contractor, going from
place to place 44threshing grain, shredding or shelling corn ” as a
business. He owned and operated a shredder, and we may take
notice of the fact that the season for operating corn shredders is
not through by October 29. In our opinion relator was not a farm
laborer at the time of his accidental injury, since his employer was
in a business which excluded the employees from that designation.
The decision of the industrial commission was therefore set aside,
with directions to award compensation.

W o r k m e n ’ s C o m p e n s a t io n — A s s a u l t , H o r s e p l a y , e t c . — A r i s i n g
O u t o f E m p l o y m e n t —Pacific

Employers* Insurance Co. et al. v.
Division of Industrial Accidents and Safety et al., Supreme Court of
California (June 26, 1930), 289 Pacific Reporter, page 619.— Joseph
Fiore was employed as a sewing-machine operator in a tailoring
establishment. In the same room the 44cutter ” was located at a
counter to which the machine operator went for the materials for his
work. A salesman for the employer had left his bag of golf sticks in
the room. In an idle moment the 44cutter ” was practicing swinging
one of these golf clubs at a place close to the table where he did the
cutting. As Fiore approached the cutting table for materials, the
swinging club struck him in the face, inflicting serious injury, for
which the California Industrial Accident Commission awarded
compensation.
The insurance carrier appealed to the Supreme Court of California,
contending that the accident did n o t44arise out of the employment ”
as the employees were indulging in 44horseplay.” The court annulled
the award, saying that Fiore was exposed to no greater danger of
being struck by this golf club, because of his employment than would
have been any customer or acquaintance of the employer who might
have visited the place of business. The accident therefore did not

W O R K M E N S COMPENSATION

255

arise out of the employment and was not compensable. The court
quoted from the case of Coronado Beach Co. v. Pillsbury (158 Pac.
212), in which the court said:
The accidents arising out of the employment of the person injured
are those in which 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. * * * It “ arises
out of ” the occupation when there is a causal connection between
the conditions under which the servant works and the resulting
injury. It need not have been foreseen or expected, but after the
event it must appear to have had its origin in a risk connected with
the employment, and to have flowed from that source as a rational
consequence.
The award was therefore annulled.
Where two employees on a ranch, who had been directed to count cattle and
shoot any coyotes or dogs which might be found running the stock and while
returning to the bunk house drew their guns in fun to see which one could
draw faster, one shot the other, the Supreme Court o f Colorado held that it was
not an “ accident arising out o f the employment ” so as to make the master liable
under the workmen’s compensation law. (M cK night v. Houck et al. (1930),
286 Pac. 279.)
The Minnesota Supreme Court held that an employer who intentionally and
maliciously assaults and beats an employee, while engaged in the employment,
inflicting injuries which disable, could not avoid his liability for damages on
the ground that compensation was available. (B oek v. W ong H ing (1930), 231
N. W . 233.)
W o r k m e n ’ s C o m p e n s a t io n — A w a r d — A s s i g n m e n t — Gregg v.
New Careyville Coal Co., Supreme Court of Tennessee (October 18,
1980), 31 Southwestern Reporter (2d), page 693.— D. L. Gregg, an
employee of the New Careyville Coal Co., was injured. The coal
company recognized its liability to its injured employee but expected
the insurance company carrying its compensation insurance to settle
the claim. Gregg understood this and also that the insurance com
pany was delaying the settlement. Pending settlement, Gregg needed
supplies for himself and family but was unable to obtain credit. In
order to obtain the supplies needed, he entered into a written agree
ment with his employer that when the amount of his compensation
was fixed, any sum then due for goods purchased by him should be
deducted from the award. Upon the faith of this agreement Gregg
bought goods and was extended credit by the coal company for the
sum of $285.05. He also agreed that the company should deduct
from his compensation so awarded the further sum of $28.90 on ac
count of supplies furnished before the injury.
Unable to adjust the claim of compensation with the insurance
company, he filed suit against the coal company. After the suit was

256

DECISIONS OF THE COURTS

commenced the insurance company agreed to an adjustment of the
claim and compensation was fixed at $900. As $228 had been paid
to Gregg prior to the adjustment a judgment for the lump sum of
$672 was entered in Gregg’s favor. From this amount the sums of
$285.05 and $28.90 were deducted by the employer according to the
agreement.
Gregg filed suit to recover these deductions, as being a violation
of section 18 of the workmen’s compensation act. Section 18 reads
as follows:
No claim for compensation under this act shall be assignable, and
all compensation and claims therefor shall be exempt from claims
of creditors.
The decree of the chancery court, Campbell County, Tenn., dis
missing the suit, was reversed by the court of appeals and both
deductions allowed. The case was carried to the Supreme Court of
Tennessee, where the decision of the appeals court was modified.
The Tennessee Supreme Court said, in part as follows:
The compensation act does not forbid the employer and employee
from contracting in good faith, pending a settlement for the claim
for compensation, for advancement by the employer to the employee
either in money or merchandise, nor does it forbid them contracting
that such advancement shall be deducted from the amount of com
pensation when awarded. But such an agreement and assignment
could not cover antecedent debts of the employer [employee] with
out violating the letter and the spirit of the compensation act.
To the extent that the agreement covered complainant’s antecedent
debt of $28.90, it was in direct contravention of the compensation
law and void. But to that extent only. The employee could not be
permitted to obtain money or necessary supplies in the form of ad
vancements upon the faith of a written agreement that the employer
should deduct the advancements so made from the sum of compensa
tion when awarded and then avoid the payment by resort to the
provision of the act referred to and above quoted. Complainant’s
recovery, therefore, must be reduced to $28.90, being the amount of
the antecedent debt which his employer deducted from the award.
As modified, the judgment of the court of appeals is affirmed.

orkm en ’s

C o m p e n s a t io n — A

w ard—

C o m p u t a t io n

arn

”— O^Loughlirts Case, Supreme
Judicial Court of Massachusetts (February 4 , 1930), 169 Northeastem Reporter, page 907.— Patric O’Loughlin was injured on January
31, 1929, while piling sugar in the Boston, Mass., storehouse of the
American Sugar Refining Co. The evidence showed that he worked
for the company when the boats came in and had been doing this
work for 16 or 17 years, “ but not steady ” ; and when not working
for the refining company “ he did other work as a longshoreman
in g s —

“A

verage

eekly

age

WOEKMEN's COMPENSATION

257

wherever he could get work.” During the 52 weeks preceding the
date of the injury the employee worked 10 weeks for the refining
company and earned during the 10 weeks $119.50 or an average of
$11.95 a week. A fellow employee doing the same work for the
refining company as O’Loughlin worked 46 weeks during the 52week period and earned $738.14 or an average of $16.05 per week.
The Massachusetts workmen’s compensation statute (Gen. L., ch.
152, sec. 1 ( 1 ) ) provides that the “ average weekly wage ” is—
The earning of the injured employee during the period of 12
calendar months immediately preceding the date of injury, divided
by 52; but if the injured employee lost more than 2 weeks’ time dur
ing such period, the earnings for the remainder of such 12 calendar
months shall be divided by the number of weeks remaining after the
time so lost has been deducted. Where, by reason of the shortness of
the time during which the employee has been in the employment of
his employer, or the nature or terms of the employment, it is im
practicable to compute the average weekly wages, as above defined,
regard may be had to the average weekly amount which, during the
12 months previous to the injury, was being earned by a person in
the same grade employed at the same work by the same employer, or,
if there is no person so employed, by a person in the same grade
employed in the same class of employment and in the same district.
The single member of the Massachusetts Industrial Accident
Board found that the employee’s weekly wages could not be deter
mined under the first part of section 1, paragraph 1, because the
employment by the refining company was for too short a period. He
further found that—
Coyne, a fellow employee of O’Loughlin, who was employed at the
same grade of work, lost 1,356*4 hours during the year immediately
preceding the claimant’s injury; that 54 hours constituted a normal
working week; that the 1,356*4 hours represented 25.11 weeks’ lost
time; that Coyne’s average weekly wages based on this computation
were $26.99; that O’Loughlin’s average weekly wages were the same,
that is, $26.99, and awarded compensation at the rate of $17.99 a
week.
This finding was affirmed by the industrial accident board. The
case was then carried to the superior court, Suffolk County, Mass.,
where a decree was entered that the average weekly wages of
O’Loughlin were $16.05 and that compensation was due him at the
rate of $10.70 a week and as he had been paid compensation at the
rate of $12 a week no further compensation was due him.
The employee appealed from the decree of the superior court modi
fying the award of compensation, to the Supreme Judicial Court of
Massachusetts, which court affirmed the decree of the lower court,
saying in part as follows:
The industrial accident board did not act in accordance with the
statute in awarding compensation. Assuming the board was right

258

DECISIONS OF THE COURTS

in finding that compensation was not to be determined by the first
sentence of section 1 (1) of Gen. L., ch. 152, but was to be determined
according to the sentence following, which enacts, if because of the
shortness of the time of the employment or because of its nature or
terms it is impracticable to compute wages according to the first
sentence of the statute, regard may be had to the average weekly
amount earned during the previous 12 months by a person in the
same grade employed at the same work by the same employer.
Coyne was employed at the same work by the same employer in the
same grade as O’Loughlin and Coyne’s average weekly wages, if
adopted as the standard, could not be measured by hours and 54
hours taken as a normal week. There is nothing in the statute al
lowing this division. Coyne’s wages were to be taken week by week;
a standard of what constituted a week divided into hours could not
be adopted. The total amount received by Coyne during the year
should be divided by the number of weeks he worked; this is re
quired by the statute and is the definition adopted by it. This rule
was followed and approved in Bartoni’s case (225 Mass. 349, 114
N. E. 663). It was followed by the superior court in entering the
decree. The judge ascertained the total amount earned by Coyne
during the 12 months preceding the injury of O’Loughlin and
divided this amount by the number of weeks he worked, with the
result that O’Loughlin’s average weekly wages were found to be
$16.05 and his compensation allowed at $10.70 a week. This compu
tation was sufficiently favorable to the employee. He was not entitled
to the compensation allowed him by the industrial accident board.

orkm en’s

C o m p e n s a t io n — A

w ard—

C oncurrent E

m ploym ent—

Perry Carming Go. et al. v. Industrial Commission et al., Supreme
Court of Utah (August 26, 1929), 281 Pacific Reporter, page 467.—
J. H. Ward was employed by the Perry Canning Co. of Perry, Utah,
and the Brigham City Canning Co., located about Sy2 miles south of
Brigham City. His duties were to inspect crops of fruit and to
solicit contracts to purchase them for both companies. He was
injured on the public highway while in the course of his employment,
when his automobile overturned. The Utah Industrial Commission
made an award against the Perry Canning Co., but not against the
Brigham City Canning Co. The Perry Canning Co. brought this
action for a review claiming that the finding and conclusion made by
the commission that Ward “ at the moment of the injury ” was
engaged solely in a duty performed for and on behalf of the Perry
Canning Co. were against and not supported by the evidence and that
the evidence without substantial conflict showed that the injury
resulted in the course of his employment with both companies and
hence the award ought to have been made against both.
The award of the commission was based upon the fact that Ward
was on his way to see a particular fruit grower at the suggestion of

259

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

the Perry Co., when the accident occurred. However, the court
thought this was unimportant and not a determinative factor,
justifying splitting, or segregating the applicant’s employment,
which, as found by the commission, was a joint employment with
both companies.
To uphold this opinion the Utah Supreme Court pointed to the
fact that Ward had made contracts for the Brigham City Canning Co.
on the morning of the day of the accident, and even though the Perry
Co. suggested that he call on the fruit grower it was quite possible
that the grower would have made a contract with the Brigham City
Canning Co., as it could not be told whether the grower would have
contracted with the one company or the other or with both or with
neither.
The court, therefore, concluded that the award ought to have been
made against both companies and the case was remanded to the
commission to make such an award.

W o rk m en ’s Compensation — A w a r d — F a ilu r e

Em ployer to

Comply w it h S ta tu te — “ S u rp lu s Fund ”— C on stru ction o f S t a t
u te — State ex rel. Croy v. Industrial Commission of Ohio, Supreme

Court of Ohio {March 5, 1980), 170 Northeastern Reporter, page

6H -— John H.

Croy, while employed in the remodeling o f a building
jointly owned by H arry Thew and Joseph Askins, was injured on
October 12, 1925, while in the course of his employment. Thew and
Askins did not carry State insurance, although they were employing
five or more workmen at the time o f the accident. In due course
Croy filed his claim for compensation with the Industrial Commis
sion o f Ohio against Thew, and upon its being discovered later that

Askins was a joint owner o f the premises with Thew, the commission
made Askins a joint defendant in the case and notified him o f the
proceedings.

On September 15, 1926, the commission awarded Croy a total sum
of $894.72 for compensation and for hospital and medical expenses.
Thew and Askins, having failed to pay the award, the commission
certified the award for collection to the attorney general of the State.
More than six months later the attorney general brought suit for the
amount of the award and accrued interest against both Thew and
Askins. In that action Thew filed his answer denying liability and
shortly thereafter filed his petition in bankruptcy in the Federal
court, where he was adjudged a bankrupt on January 21, 1928.
Askins also filed his answer wherein he denied the facts pleaded
against him. In February, 1929. a judgment was obtained against
Askins, granting Croy the amount of his compensation, and later a
new trial was granted.

260

DECISIONS OF THE COURTS

In 1928 Croy filed application for additional compensation and on
October 4, 1929, the commission made an award of a further sum,
compensating him for the total loss of his right leg at the rate of
$17.87 per week for a period of 175 weeks and ordered the amount
of that award certified to the attorney general for collection.
John H. Croy petitioned that a writ of mandamus be issued com
pelling the industrial commission to pay the full amount of the sums
awarded him under the several orders of the commission.
The attorney general urged two reasons why this relief should not
be granted. First, he contended that an employee who had obtained
an award against a noncomplying employer was not entitled to pay
ment of the award out of the surplus fund before a court or jury has
affirmed the finding of the commission. He based this contention
upon the last paragraph of section 1465-74, General Code, which
reads as follows:
The payment of any judgment recovered in the manner provided
herein shall entitle such claimant to the compensation provided by
this act for such injury, occupational disease, or death. The attorney
general shall, as soon as the circumstances warrant, and not more
than two years after the date of such award made by the commission,
certify to the commission the result of his efforts to recoup the State
insurance fund as herein provided, and if he certifies that such award
can not be collected in whole, the award shall be paid from the
surplus created by section 1465-54, and any sum then or thereafter
recovered on account of such award shall be paid to the commission
and credited to such fund as the commission may designate.
The court did not agree with the attorney general in this view, and
said:
W e are unable to arrive at that conclusion. The payment of the
judgment certainly entitles the claimant to compensation; so also
does the nonpayment of the judgment, or a certificate that the award
can not be collected, equally entitle the claimant to compensation,
for the statute explicitly states that, upon the making of such certifi
cates, “ the award shall be paid from the surplus created by section
1465-54.” The payment o f the award is not made contingent upon
the securing of a judgment by the State, but upon its payment, or
upon a certificate of noncollectability made within two years alter
the date of the award. The ultimate purpose of the State’s suit is
the recoupment of the surplus fund, and any sum, whether “ then or
thereafter recovered,” is to be paid into and credited to that fund.
Second, the attorney general pleaded that section 1465-74, Gen
eral Code, did not authorize the commission to pay any portion of
the award at the present time. Kegarding this contention the court
said:
The statute clearly provides that the award can not be paid from
the surplus until payment of a judgment, or until certification is
made by the attorney general; but it is equally clear that he must

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

261

make such certificate within two years after the date of the award:
if he fails to so certify, within his legal time limit, his failure should
not inure to his benent nor deprive the injured workman of his just
right to compensation.
The court granted the writ of mandamus in part and concluded
the opinion by saying:
W e are of the opinion therefore that mandamus will not lie to
compel the commission to pay the award out of the surplus fund,
unless (a) the attorney general has certified that such award can
not be collected in whole, or (&) more than two years have elapsed
and no certification has been made to the commission during that
period as required by law.
In the following cases this court awarded the writ where two
years or more had elapsed since the date of the award: State, ex. rel,
Davis v. Industrial Commission, 118 Ohio Stat. 340, 161 N. E. 32;
State, ex rel. Thompson v. Industrial Commission, supra.
Since the first award of the commission was made on September
15, 1926, more than two years prior to the bringing of this action,
a writ of mandamus will be issued compelling the commission to
pay the amount of that award. However, since we are unable to
determine from the petition its exact amount, if counsel can agree
the amount may be incorporated in the journal entry. Since two
years have not elapsed from the date of the second or additional
award, this action to compel its payment is prematurely brought,
and a writ compelling the commission to pay the amount of that
award at the present time will be denied.

o r k m e n ’s

C o m p e n s a t io n — A

w ard—

M e d ic a l

S e r v ic e — N e g l i

Ghmnison Sugar Co. et al. v. Industrial
Commission of XJtah et al., Supreme Court of Utah (February 20,
1929), 275 Pacific Reporter, page 777.—William Duffin, an employee
of the Gunnison Sugar Co., received, in the course of his employ
ment, an injury to his back. Neither he nor the employer thought
the injury of much consequence. Duffin laid off for about three days
and then went back to work. However, he continued to suffer with
pains in his back and consulted a physician, who gave him treat
ments. He continued his employment but gradually grew worse
and, as the physician who had treated him had moved to another
State, he consulted another physician. This physician diagnosed
Duffin’s condition as that of rheumatism, which he told the employee
was due to his teeth. In obedience to the advice of this doctor, he
had all of his teeth extracted. They were all in a good and healthy
condition and, as later proved, were in no manner the cause of his
condition. He was examined at a clinic and was found to be suffer
ing from a dislocated joint, and was operated upon and cured.
He filed claim for compensation with the Industrial Commission
of Utah and in addition to the compensation awarded him for the
gence—

T eeth E

x t r a c t io n —

262

DECISIONS OF THE COURTS

injury to his back he was awarded $777 for the loss of time, for the
disfigurement, and the cost of having his teeth extracted. From this
part of the award the sugar company appealed to the Supreme Court
of Utah. This court affirmed the award of the industrial commis
sion and held that the employer was liable for such injury to the
employee. In the opinion, the court said in part as follows:
The question thus is whether, under the circumstances, the loss
sustained by the employee because of the extraction of his teeth
may be attributable to the accident and injury thereby sustained
by him. Under our compensation act (Comp. L. Utah, 1917, sec.
3138, as amended by Laws Utah 1919, ch. 63), the commission was
authorized to allow compensation for disability, disfigurement, and
loss of bodily function. By section 3147 (as amended) an em
ployer, or his insurance carrier, in addition to other compensation,
is also required to pay a reasonable sum for medical, nursing, and
hospital service, and for medicines, etc. Such obligation is an
affirmative one on the part of the employer or his insurance car
rier to provide and furnish an injured employee with such service.
When the employer neglects or fails to do so, the employee may
procure such service, and the employer or insurance carrier becomes
liable for the reasonable value thereof. (Schneider, Workmen’s
Comp. L., p. 1231.)
The assistant superintendent of the sugar company, under whose
direction the employee worked, within a few minutes after the
accident, was informed of it and the manner in which it occurred.
He also knew that the injury necessitated intermittent periods of
loss of time by the employee for several months. On the record it
is also inferable that he knew that the employee had sought medical
treatment and was being treated for his injury. No offer was made
by the employer to furnish or provide the employee with any
treatment.
Had the employer furnished and provided the physician who
wrongfully diagnosed the employee’s condition as that of rheuma
tism, and because of negligence or unskillfulness of such physician
the injury or condition of the employee was aggravated (without
any negligence on the part of the employee) we think the employer
under such circumstances would be liable therefor even though he
had not been negligent in employing or furnishing the physician.
So, though it be assumed that the physician who diagnosed the
employee’s condition as that of rheumatism was negligent or un
skillful, or incompetent, and that in consequence thereof the em
ployee’s teeth were extracted? yet, inasmuch as no claim is made
that the employee was negligent in seeking or employing such
physician, the aggravated loss or condition of the employee so occa
sioned by the negligence or unskillfulness of such physician can not
be said to be due to an independent and intervening cause but must
be held attributable to the accident resulting in injury which as a
primary cause set in motion a train of events from which the aggra
vated condition resulted.

263

DECISIONS OF THE COURTS

W o rk m en ’s

Compensation — Aw ard — R e l e a s e

C o n tra c t —

"Walker v. State Compensation Commissioner et al., Supreme Court
of Appeals of West Virginia (September 10, 1929), lift Southeastern
Reporter, page 604•— H enry W alker, now totally blind, attributed
the loss o f his sight to a piece o f coal which struck him in the right
eye while he was engaged in a coal mine. A fte r a delay o f almost a
year and when he had practically lost his vision, a report was made
by his employer to the W est Virginia compensation commissioner,
and after some investigation an award o f “ total disability ” for life
was entered. Thereupon the employer protested and subsequent pay
ments were suspended pending further investigation. No further
payments being made, the employee placed his claim before the
appeal board.

A letter from the compensation commissioner to the board of
appeals explained the situation as follows:
Evidence was taken and filed in the matter of protest, and later,
attorneys representing the claimant and the employer appeared at
the department and stated that an agreement had been reached be
tween the parties, by which if claimant were paid compensation for
the months of June to October, both inclusive, his claim for com
pensation would be considered adjusted and settled. He had pre
viously been paid compensation for the month of May. Pursuant to
this agreement, there was issued on November 5th, check for $315.38,
paying compensation for the period indicated, for which claimant
executed and signed a receipt.
The appeal board determined upon an amount of $500 as justly
due in addition to the sums paid Walker. Thereupon Walker
brought action in the Supreme Court of Appeals of West Virginia
to have this order set aside and an order entered directing the com
pensation commissioner to pay him according to the terms of the life
award. He pointed out that the original finding of total disability
had never been set aside and that it still remained in force. In re
versing the decision of the compensation appeal board, the court
said in part as follows:
To allow an agreement to close the account to stand in such cases
might in many cases prove very disadvantageous to the claimant.
An employer, by threats of having a case reopened and of statements
of what he expected to prove, might cause many a timid and worthy
claimant to accept a lesser sum rather than run a possible chance of
losing all. Neither will the fact that payment was received preju
dice a claimant’s rights of appeal. (McShan v. Heaberlin, 105 W.
Va., 447,143 S. E. 109.)
Inasmuch as the agreement before the commissioner is of no legal
effect, the action of the appeal board based thereon likewise falls.
The order of the appeal board, therefore, will be set aside, and the
claimant left to his legal remedy*to collect the amount now accrued,
over and above the $1,285.38 actually paid him, and such amount as

264

DECISIONS OF THE COURTS

may become due pending future rulings of the compensation com
missioner on the evidence now or hereafter brought before him; the
jurisdiction of the compensation commissioner in such cases being
continuing.
W orkm en ’ s C ompensation — A ward — R eview — S ettlement and
R elease— Wisconsin Mutual Liability Co. et al. v. Industrial Com

mission of Wisconsin et oil., Supreme Court of Wisconsin (November
11, 1930), 232 Northwestern Reporter, page 885.— A n action was
brought in the circuit court o f Dane County, W is ., by an employer
and its insurer to vacate an award made to the widow o f an employee
by the-Industrial Commission o f Wisconsin under the workmen’s
compensation act (Stat. 1929, sec. 102.01 et seq.). The employee,
Gervase Hannon, was in the employ o f a circus organization which
was about to move from Manitowoc, W is . Its equipment was dis
mantled and loaded on wagons. Tractors were pulling the wagons
to the railroad for loading on flat cars, when a tractor ran over
Hannon and killed him.

Two contentions were made by the insurer: (1) That Hannon was
not performing any service at the time of the accident and (2) that
a settlement entered into by the widow barred recovery in excess of
the amount stipulated, which was less than the amount of the award.
The award was sustained by the circuit court and the case was
appealed to the Wisconsin Supreme Court. Regarding the first
contention made by the insurer, the latter court said:
Hannon’s duty was to load equipment on a wagon, see that the
wagon was taken to the train, and stay with the wagon until it was
loaded on the train. He was seen beside his wagon shortly before
he was run over, waiting for it to be taken. He had probably lain
down near it and gone to sleep and was run over while so lying. It
seems plain enough that Hannon was on duty when injured, and, if
he was on duty, he was performing service incidental to his employ
ment. Under such circumstances “ he also serves who only waits.”
The facts regarding the settlement entered into by the widow are
as follows:
On November 23, 1927, the widow, the show company, and its in
surer entered into a stipulation for settlement. It provided that by
way of settlement the second parties offer and the first party agrees
to accept $1,650 in full payment and discharge, and states that all
parties request the industrial commission to affirm the settlement and
make an award thereon. Payment was not made pursuant to the
stipulation. The stipulation was received by the commission shortly
after December 1. The commission on January 30, 1928, wrote the
insurer that they wanted further information before acting on the
stipulation, and" on July 30 wrote* that on their present informa
tion they could not approve the award. They made further investi
gation, however, and on February 23,1929, the chairman of the com

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

265

mission wrote the insurer that “ on Saturday last the commission
gave consideration to the proposed compromise and unanimously
agreed that it should not be affirmed,” and citations for hearing to
conclude the proceedings were thereupon issued. The insurer ob
jected to further proceedings because of failure of the commission
to approve or reject the compromise within one year from its receipt.
In support of the second contention, the insurer relied upon section
102.16, Wisconsin Statutes, which provides that compensation “ shall
be subject to be reviewed by, and set aside, modified, or confirmed by
the commission within one year from the date that such compromise
is filed with the commission, or from the date an award has been
entered, based thereon.” The court, however, said the case at bar
differed from the stipulations outlined in the statute. The court said:
The parties did not treat it as an absolute settlement. They did
not make and accept payment in accordance with it. They requested
the commission to “ afiu*m the settlement.” These two things indi
cate that it was not intended as a settlement unless the commission
should approve it. that it would become effective only in such case;
in other words, tnat it was a conditional rather than an absolute
settlement. The letter of July 30, above referred to, clearly indi
cated that the commission had considered and taken action on the
stipulation and that they did not “ affirm ” it and would not do so
unless they received further information to cause a change of mind
and reversal of action. We are of opinion that this was in effect a
“ review ” and a “ setting aside ” of the stipulation within the mean
ing of the statute. Actions of the commission should be liberally
construed to bring them within the purview of the statute and as
effecting its purpose. The commission’s action. “ though somewhat
informal in manner, was nevertheless action by ” the commission.
The decree affirming the award was therefore affirmed.

W orkm en ’ s
bility —Loss of

C ompensation — A ward— T emporary T otal D isa
M ember—Lundgren v. Industrial Commission et al.,

Supreme Court of Illinois (December W, 1929), 169 Northeastern
Reporter, page 161.— On March 23, 1922, Edward M . Iverson, while
employed by Carl A . Lundgren, received an accidental injury which
arose out of and in the course of his employment. The injury con
sisted of a fracture of the left femur. Iverson received medical
treatment over a period of several years, but no cure was effected
and he continued to have very little use of the injured leg. Although
he was unable to resume his former occupation, he was able to do
work which did not require the use of his injured leg.
Lundgren voluntarily paid compensation to Iverson at the rate of
$17 per week for 250 weeks or until $4,250 had been paid, this
amount being the maximum amount which could have been recov
ered as a death benefit.

266

DECISIONS OF THE COURTS

On January 31, 1927, Iverson made application to the Illinois
Industrial Commission for further compensation. The decision
of the arbitrator denying further compensation was reversed by the
commission and compensation was allowed for the permanent and
complete loss of the use of his left leg. The case was appealed to
the superior court, Cook County, and on August 9, 1927, while the
case was pending, Iverson died. The superior court confirmed the
award but reduced the amount to $17 a week from January 12, 1927,
to August 9, 1928.
The case was appealed to the Supreme Court of Illinois by the
employer, and in considering the question involved the court said:
Did the act of 1921 provide further compensation under para
graph (e) of section 8 where the employee had received, as tempo
rary total compensation, an amount equal to the maximum award
which could have been allowed as a death benefit under the act, if
the employee had died as a result of the injury at the time thereof?
Paragraph (e) of section 8 of the act of 1921, under which the
claim for additional compensation was brought, provides as follows:
“ For injuries in the following schedule the employee shall re
ceive, in addition to compensation during the period of temporary
total incapacity for work resulting from such injury, in accordance
with the provisions of paragraphs (a) and (b) of this section, com
pensation for a further period, subject to the limitations as to time
and amounts fixed in paragraphs (b) and (h) of this section, for
the specific loss herein mentioned, as follows, but shall not receive
any compensation for such injuries under any other provisions of
this act.”
The Supreme Court of Illinois held that the compensation act
limited the amount of compensation payable for an injury such as
Iverson received. The court in reversing the judgment of the
superior court and rendering a judgment denying further compensa
tion said:
The total amount which an employee may receive is limited to the
amount which could have been recovered as a death benefit if he
had died as a result of the injury at the time thereof. In this case
the maximum amount which Iverson’s heirs could have recovered, if
he had died at the time of the injury, was $4,250.
The intent of the legislature to limit the total amount which an
employee could recover to the maximum amount of the death benefit,
except in the one case of permanent total disability, is manifested
throughout the act, and particularly in paragraphs (a) and (d) of
section 7, where it is provided that any compensation payments
other than medical, etc., shall be deducted m ascertaining the amount
payable at death. The policy of the act to limit the amount which
an employee may recover to the amount which could be recovered
as a death benefit, if the employee had died, is further evidenced by
the fact that there is only one specific exception made in the act;
that one being in the case of an award for total permanent disability
under paragraph ( f ) of section 8. I f the legislature has specifically

WORKMEN *S COMPENSATION

267

provided for this one exception in the entire class of injuries, the
injuries not so excepted must be deemed to be in the general class,
and all other situations are limited to the amount of the death bene
fit. We think the intent of the legislature to limit the amount which
an employee can recover to the amount which could be recovered as
a death benefit in case the employee had died is clearly apparent
throughout the act, and we are of the opinion that an employee
having recovered the maximum amount as temporary total dis
ability can not recover a further award under the schedule of specific
losses provided in paragraph (e) of section 8. In this case, the em
ployee, Iverson, had been paid the maximum amount which he could
have recovered under paragraph (b) of section 8. He was clearly
not entitled to a pension for total permanent disability under para
graph ( f ) of section 8. Having received the full amount which he
could recover under the limitations of paragraph (b), he was not
entitled to any further award.

W o rk m en ’s Compensation— A w a r d — T ota l, P erm a n en t D isa b il

Reynold?s Case.
Supreme Judicial Court of Marne {March 21, 1929), 145 Atlantic
Reporter, page 435*— O n December 3, 1927, one Reynold, employed as
i t y — P r e e x i s t i n g C o n d i t i o n — C a u sa l Con nection —

a carpenter, fell while performing a part o f his duties and injured
his left arm and shoulder. Following this injury he received com
pensation until June 2, 1928, when he signed a “ settlement receipt ”
with the insurance carrier, which was duly approved by the Maine
Industrial Commission. Reynold, thereupon, returned to work and
attempted to take up the lightest and simplest o f carpentry. Two
weeks later he petitioned for further compensation as he was unable
to perform any work involving the use o f his left arm. The fracture
o f his left arm had resulted in an abnormal' condition causing pressure
on nerve centers o f the brain, and prevented his using his limbs or
fingers to such a degree that he could not do carpenter’s work. This
mental deficiency was termed by experts “ cerebral congestion.” The
Maine Industrial Commission awarded further compensation for
disability as a result o f Reynold’s mental condition and the case was
appealed to the Supreme Judicial Court o f Maine.

This court held that the mental disability of an employee, which
is the sequence or effect of injury received in the course of his em
ployment and arising out of it, and which incapacitates him to do
the work of his employment, is compensable. The judge held that
the mental abnormality was either caused by the injury or that a
preexisting state of mental abnormality was excited and caused to
flame up with overpowering vigor as a result of the injury, and that
compensation should be paid for such a disability.

DECISIONS

268
W o r k m e n ’s

the

courts

C o m p e n s a tio n * — A w a r d — V o l u n t a r y

P a y m e n t—

“ W a g e s 55—Sullivan v. G. B. Seely Son (Inc.) et al., Supreme Court
of New York} Appellate Division,, Third Department (September 19,
1929), 236 New York Supplement, page 377.— Lawrence T. Sullivan
was injured September 20,1928, in the course of his employment with
G. B. Seely Son (Inc.). During the entire time Sullivan was dis
abled the employer continued to pay him his full salary of $60 per
week. He therefore met with no economic loss during the period he
was unable to work. Under the compensation law his weekly allow
ance would have been $25. Sullivan filed claim with the State indus
trial board for an award under the New York workmen’s compensa
tion law. The board awarded him $25 per week as compensation on
the ground that the wages paid to him by the employer were a “gift,”
and the employer, G. B. Seely Son (Inc.), and the insurance carrier
appealed to the Supreme Court of New York, appellate division,
third department.
After reviewing the evidence the court found it was quite evident
that the purpose of the employer was to continue to pay the employee
wages as a matter of justice in pursuance of its general policy. The
court dismissed the contention that the payment was purely a “ g ift 55
because the employee rendered no service for the weekly wages paid,
by saying it was for the employer to determine whether it received
a benefit in good will and loyal service when it adopted the policy
“ to continue to pay the man his wages.”
In conclusion the court said:
It is sufficient to say that the employer, for reasons of its own,
continued to pay the employee weekly wages, and therefore the lat
ter has suffered no loss of earnings. Having freely consented to ac
cept a substantial benefit from his employer, all equitable rules would
hold the claimant estopped from recovering another sum, not based
on a loss arising during the term of disability.
The award of compensation for disability was reversed and the
claim dismissed.

o r k m e n ’s

C o m p e n s a t io n — A

w ard

I n t e r v e n i n g C a u s e —Southern

e ste d

ig h t —

eath

Surety Co. v . Morris, Court of
Civil Appeals of Texas (January 8,1930), 22 Southwestern Reporter
(2d), page 1098.— On October 12, 1927, O. E. Morris was in the
employ of the Kroeger-Brooks Construction Co., and while acting
in the course of employment in San Antonio, Tex., he sustained
an injury to his right eye which resulted in the total loss of the sight
of his eye. The employer was a subscriber under the Texas work
men’s compensation act and the Southern Surety Co. had issued a

from

w o r k m e n 's

c o m p e n s a t io n

269

compensation policy covering the employees, which was in force at
the time of the injury.
Claim for compensation was duly filed but before the Texas In
dustrial Accident Board rendered its decision Morris died, the death
occurring February 21, 1928, and being from natural causes in no
way connected with the injury to the eye. Thereafter the industrial
board duly rendered its judgment and awarded compensation for
100 weeks at the rate of $20 per week.
The Southern Surety Co. appealed to the courts to set aside the
award of the board, contending that as Morris had continued to work
as usual after the injury and received his usual wage up to the date
of his death, no compensation payments were necessary, and that the
death of Morris from causes not resulting from said injury termi
nated its liability to pay compensation to the heirs of the deceased.
The case was tried by the Bexar County district court of Texas and
on the authority of Moore v. Lumbermen’s Reciprocal Ass’n (258 S.
W . 1051) judgment was rendered in favor of Mrs. O. E. Morris for
compensation for 100 weeks at $20 per week.
The insurer appealed the case to the Texas Court of Civil Appeals,
where the judgment was reversed, the court saying in part as follows:
As said in Southern Casualty Co. v. Morgan (Tex. Com. App., 12
S. W . (2d) 200, 201): “ The workmen’s compensation law consists in
agreement (a) of the employer, (b) the employee, and (e) the in
surer. (Middleton v. Texas Power & Light Co., 108 Tex. 96, 185
S. W . 556.) * * * A proceeding for compensation, brought
against an insurer in respect to a policy issued to a subscriber duly
authorized by the statute, is at bottom and in essence a suit upon a
contract.”
The many cases presented in the briefs, when accessible, have been
carefully examined, and they confirm us in our belief and conviction
that the judgment of the trial court is wrong. W e follow the opinion
of Judge Pleasants in United States Fidelity & Guaranty Co. v.
Salser (Tex. Civ. App., 224 S. W . 557), which is directly in point
and is supported by good authority, and properly construes our
statute.
This leads to a reversal of the judgment and it is ordered that Mrs.
Morris take nothing by her suit.

Workmen’s Compensation—Award, Basis of, etc.—Depend
ency — Heugharts Case, Supreme Judicial Court of Maine ( Febru
ary
1930), IJfi Atlwitic Reporter, page 151.— Kenneth Heughan
was killed on August 29, 1928, in an accident arising out of and
in the scope of his employment. The mother and father of the
deceased filed claim for compensation as partial dependents. At
the hearing before the Maine Industrial Accident Commission it
was found that the claimants were partially dependent on the de66588°— 31------ 19

270

DECISIONS OF THE COURTS

the

ceased son, a minor 17 years of age. It was agreed between
counsels and so found by tfie commission that during the year pre
ceding the death, the deceased employee’s cash earnings were $350,
all of which, with the exception of $75 expended by him for cloth
ing and spending money, was turned over to his parents to be used
toward the support of the family. The commission awarded com
pensation for partial dependency at the rate of $9.95 per week for
300 weeks. It was later agreed that the amount should be reduced
to $8.10 per week to take into account a period of 193 days the
deceased lived with his parents without paying board.
The case was carried to the Supreme Judicial Court of Maine
to decide whether or not in determining the amount contributed to
the parents there should be deducted from the total sum the cost
of the deceased employee’s board during the 193 days he lived at
his parent’s home and paid no board.
In answering this question the court cited several cases from the
State of Massachusetts, a State having the same provisions in the
compensation act as those in the Maine act. The court in the former
State held, in reaching the amount of compensation, that the cost
of the deceased son’s maintenance should not be deducted from the
amount contributed by him to the dependents.
In concluding the opinion the Maine court said:
We agree with the reasoning and words of Loring, J., in Gove’s
Case (111 N. E. 702), where he says: “ Where the claimant is wholly
dependent upon the deceased it is of no consequence whether he
contributed all his wages or only a fraction of them to the depend
ent, and it is of no consequence whether the deceased did or did
not receive any benefit from the dependent. The sum to be paid
is measured by the wages of the deceased, not by the injury done
to the dependent. Where the dependents were only partly depend
ent upon the earnings of the deceased the amount to be paid is
a weekly compensation equal to the same proportion of the weekly
payments for the benefit of persons wholly dependent as the amount
contributed by the employee (to such partial dependents) bears
to the annual earnings of the deceased at the time of his injury.
(The same language essentially as in the Maine act.) The amount
to be paid in case the dependent was partly dependent * * *
only is to be a portion of that paid in case of those wholly depend
ent and the amount is to be determined on the same basis— that is
to say, it is to be measured not by the injury done the dependent,
but by that portion of the average weekly wages of the deceased
which the amount of the wages contributed by him to the depend
ents bore to the amount of his annual earnings, without regard
to the benefits, if any, received by the deceased from the dependents.”
We therefore hold in this case that, in determining the amount
“ contributed to dependents,” no deduction of the cost of the de
ceased employee’s board, while living at his parents’ and paying
no board, should be made.

DECISIONS OF THE COURTS

271

Workmen’s Compensation—Award, Basis o f , etc.—Lump Sum—
Construction o f Statute — United States Fidelity & Guaranty Go.
v. Nettles, Court of Civil Appeals of Texas {October 3, 1929), 21
Southwestern Reporter (2d), page 81.—Mrs. W. R. Nettles was
injured on May 25, 1927, in the course of her employment with the
Goldstein-Migel Co. of Waco, Tex. The claim was duly presented
to the Texas Industrial Accident Board and an award was made by
the board. The insurer, the United States Fidelity & Guaranty Co.,
appealed to the district court, McLennan County, Tex. The jury
found Mrs. Nettles had suffered injuries resulting in total permanent
incapacity and that this was a special case in which manifest hard
ship and injustice would result if her compensation were not paid in
a lump sum. The court thereupon entered judgment for Mrs. Nettles
for $4,602.22, allowing a discount of 6 per cent on future payments
in arriving at the amount to be paid in a lump sum. The insurance
carrier then appealed to the Court of Civil Appeals of Texas, con
tending there was no evidence to support the verdict awarding com
pensation for total and permanent incapacity. The court reviewed
the evidence showing Mrs. Nettles had been disabled for two years
and had suffered severe pains as a result of the injury; reviewed the
testimony given by four doctors that Mrs. Nettles was permanently
disabled, and dismissed this proposition by saying that—
We have not set out all the evidence favorable to the appellee upon
the issues here involved, but sufficient, we think, not only to show the
issue of fact, as to whether appellee was totally and permanently
disabled, was made by the evidence, but we thins the finding of the
jury that she was so disabled is sufficiently supported by the evidence,
and we can not say said finding is against the overwhelming weight
and preponderance of the evidence. [Cases cited.]
The next proposition in which the insurer contended the court
erred was in rendering a verdict for a lump sum as there was no way
the court could determine the correct method of discount for future
maturing installments, and furthermore, the evidence did not show
this to be a case where manifest hardship and injustice would result
in case lump-sum settlement was not allowed.
Regarding the first of these contentions the court said, in part:
There is no complaint of the action of the trial court in reading
into the contract sued upon said statutory provisions, resulting in
appellant being charged with 6 per cent on the past-due installments.
This is admittedly correct. We think the court was equally correct
in discounting the future maturing installments at the same rate.
It was certainly equitable and just for the rights of both parties to be
determined by the same standard of measurement.
The court also dismissed the second contention by saying:
The record shows that appellee is a widow, has two sons and an
orphan child dependent upon her for support and education; that die

272

DECISIONS OF THE COURTS

owes $5,000 on her home; that her only means of support was her
wages and what she could make from renting rooms; that since her
injury she has not been able to work either for wages or in keeping
roomers. The jury found that this is a case in whim manifest hard
ship and injustice would result if a lump-sum settlement was not
allowed. We think this finding of the jury is amply supported by
the evidence, and hence this court has no right to interfere with such
finding. [Cases cited.]
The court considered the other contentions made by the insurance
carrier regarding the testimony and questions asked in the course of
the trial and sustained the ruling of the trial court regarding them.
The court, having considered all of appellant’s propositions and
found no reversible error, overruled the same and affirmed the judg
ment of the district court.

Workmen’s Compensation—Award, Basis of, e t c .— M u l t i p l e In
juries—Permanent T o ta l Disability F ollow ing Temporary T ota l
D isability—Aetna Life Insurance Co. v. Bulgier et al., Court of Civil
Appeals of Texas (June 8, 1929), 19 Southwestern Reporter (2d),
page 821.—The Aetna Life Insurance Co. brought this action in the
Texas Court o f Civil Appeals against Mrs. Ida Mae Bulgier and
her husband to set aside an award made by the Texas Industrial

Accident Board.
The facts in the case show that in August, 1926, Mrs. Bulgier, while
in the employ of the Marcy Lee Manufacturing Co., of Dallas, Tex.,
accidentally fell and fractured her right arm. She remained at home
under medical treatment until March, 1927, when she returned to
the same character of work for her employer. In August, 1927, she
again ceased work until November, 1927, when she returned to work
in her regular employment until January, 1928. After that time
she did not perform any work except “ light work ” for about one
week for another employer. The industrial board awarded her $7
per week for 29 weeks as compensation, covering the period from
the time she was injured until she again resumed work. In that
claim the injury was described as a fracture of the arm, and no
further damage alleged. She later claimed as damages the maximum
allowance of 400 weeks for total permanent incapacity, alleging that
as a result of the injury and the impingement and injury to the
nerves radiating from her wrist and arm she suffered injury to her
shoulders, back, and spine, as a result of which she became totally
and permanently disabled from doing any kind of physical labor.
The Aetna Life Insurance Co. made the defense that in paying
compensation from the time of the injury until the time she returned
to work they had fully satisfied all legal demands upon them. Fur
thermore, the injury described by Mrs. Bulgier was an injury to the

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

273

arm and the compensation act provided that no compensation could
be paid for such an injury to the arm for a longer period than 150
weeks. In regard to this latter defense, the court said:
We overrule appellant’s contention that appellee, having given
notice to appellant and to the accident board of a specific injury, to
wit, an injury affecting the right arm, in that there were fractures on
the bones of said arm in and around the wrist, that she is held, under
the workmen’s compensation law (Rev. Stat. 1925, arts. 8306-8309),
to a claim for only a specific injury to the arm. We do not under
stand this to be the construction given the law by our higher courts
in cases where the ultimate result of such injury was not confined to
the injured member. The intention of the law is to give full re
muneration under its schedule of allowances for the injury actually
received, and the results actually flowing from such injury.
The testimony of appellee and one or two physicians was to the
effect that a total incapacity to perform any kind of manual labor,
resulting to appellee on account of her injury, was not confined to the
arm, but involved other portions of her body, including her shoulders,
back, and spine, because of the diseased condition of certain nerves
caused by the injury. While this evidence was sharply contradicted
by other competent medical testimony, it is a sufficient warrant for
the jury’s finding that the result of the injury totally disabled
appellee for a period of 300 weeks.
The court continued the opinion:
Did the fact that appellee resumed the work of her previous em
ployment after the elapse of 30 weeks from the date oi her injury,
and did this work for a number of weeks, establish the fact, as a
matter of law, that her total incapacity to labor ended on the date
she resumed such work? We do not think so, for the evidence in this
case, in our opinion, clearly raised a jury issue on this question.
* * * The circumstances under which appellee testified that she
did this work was to the effect that her husband was an invalid and
unable to work; that she had at home two small children and did not
own a home, but had to pay rent; that under such circumstances she
endured the pain and suffering attending the work, and attempted
to earn money necessary for a living. The test is: Was her physical
condition so impaired by the injury as that she is unable to secure
and hold employment for physical labor? This evidence certainly
raised the issue as to her legal incapacity to work during the time
she did perform the labor mentioned above, and that she is unable
to hold employment.
The court therefore overruled all assignments of error and affirmed
the decision of the district court awarding compensation for 300
weeks in the sum of $7 per week.

W o r k m e n ’s C o m p e n s a t io n — “ B u s i n e s s f o r

G a i n w— C o v e r a g e —

Casualty Co. et al. v. Stevenson et al.,
Supreme Court of Oklahoma (June
1930), 888 Pacific Reporter,
page 954.— On September 21,1928, Joe W . Stevenson suffered a per

J u r i s d i c t i o n — Maryland

DECISIONS OF THE COURTS

274

sonal injury while in the employ of the Lincoln Park Golf Club Co.
The injury resulted in the total loss of the right eye. The State In
dustrial Commission of Oklahoma rendered an award of compensa
tion and the insurance carrier appealed to the Oklahoma Supreme
Court, contending that the golf club was not carried on for pecuni
ary gain and therefore was not covered by the workmen’s compen
sation act. Regarding this, the court said:
I f the golf club is carried on for pecuniary gain, then the indus
trial commission had jurisdiction to make the award. If, however,
it is not carried on for pecuniary gain, then it did not have such
jurisdiction. The land is owned by Oklahoma City. The golf club
is owned and operated by a private corporation. Mr. Jackson, the
secretary and manager ox the Lincoln Park Golf Club Co., testified
that the club was incorporated as a nonprofit organization. A fee
is charged for the privilege of playing golf. The evidence discloses
there never has been any real surplus in the treasury. All the money
collected, after paying the salaries and all charges, is put back in
improvements on the golf course. The testimony of Mr. Jackson
that the club was operated as a nonprofit organization is more or
less a conclusion. Nevertheless, it is not denied, and there is no
evidence in the record to indicate that the club is organized and
operated for pecuniary gain.
While it is our duty to give the compensation laws of this State a
liberal construction, this does not relieve the claimant from proving
facts sufficient to bring his cause within the meaning of the act.
Under the facts as disclosed by this record, and under the rule an
nounced in the above cases, we do not think the Lincoln Park Golf
Club Co. is operated for pecuniary gain. Since we have reached that
conclusion, it necessarily follows that the industrial commission had
no jurisdiction to make the award. The order granting the award
is vacated, with directions to dismiss the cause.
The award w^as therefore vacated.

o r k m e n ’s

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

J u r is d ic t io n — Le

m ploym en t—

C ontractor—

Blanc v. Nye Motor Co. et alSuprem e Court of
Vermont (October 1, 1929), llfl Atlantic Reporter, page 265.— W il
fred Le Blanc began work for the Nye Motor Co. in April, 1925, under
an oral contract, by the terms of which he was to sell both new and
used automobiles on a commission basis. He was a stonecutter by
trade, and it was understood that he could work at his trade during
the usual working hours and that under this arrangement he would
work for the motor company only “ after hours,” Sundays, and holi
days. On June 13,1926, “ while so employed,” he was demonstrating
a car on a highway, near a one-way bridge. As he approached this
bridge he saw a car coming from the opposite direction and stopped
on the right hand side of the road to allow the car to cross the bridge
first. It crossed the bridge at a rapid speed and collided with Ms

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

275

car, causing the injuries for which compensation was sought. Le
Blanc proceeded under the workmen’s compensation act of Vermont
and the commissioner held Le Blanc was at the time of the accident
an employee of the motor company, that his employment was not
purely casual, and that the accident arose in the course of such em
ployment. From this holding the company appealed to the Supreme
Court of Vermont.
After restating the facts, Mr. Justice Slack delivered the opinion
of the court, saying in part as follows:
On these findings it can not be said that the commissioner erred in
holding that claimant was an employee of the motor company. The
master test in determining whether one who is performing work for
another is a servant or an independent contractor is the right of the
latter to control the work, to direct the means and methods by which
it shall be done. [Cases cited.] But it is said in the former case, and
cases there cited, that it is the right to control1the work that deter
mines, actual interference being unnecessary. The motor company,
as we have seen, had complete control respecting the terms of all
sales, unless, pernaps, sales for cash. While it appears that it exer
cised no control over claimant’s work in other particulars, it does not
appear that it did not have the right to do so.
The second holding of the commissioner which is challenged by
defendants’ appeal was erroneous. Whether employment is “ purely
casual ” within the meaning of our statute is to be determined by the
contract for service.
It is the uncertainty and irregularity of claimant’s service under
this contract, as it appears, and not the fact that what he might do
would be done outside the hours he worked at his trade, that char
acterizes the nature of his employment. Nor does the fact that the
accident occurred more than a year after the contract was entered into
change the situation, since there is no finding respecting the regularity
of his services in tne meantime. While it may be difficult m some
instances to determine whether service is purely casual or otherwise,
in order to entitle a claimant to any standing under our statute some
thing more concerning the regularity and certainty of the service
must appear than is disclosed in the instant case.
Since claimant’s employment was purely casual, the commissioner
was without jurisdiction to make the other rulings appealed from,
therefore they are not considered.
The order was therefore vacated and the proceedings dismissed.

Workmen’s Compensation— Casual Employment—Powers, etc.,
or Commission—Procedure —Ingram et al. v. Department of Indus
trial Relations, Division of Industrial Accidents and Safety et al.,
Supreme Court of California (January 6, 1930), 284 Pacific Re
porter, page 212.— J. A. Stoolfire, an independent contractor engaged
in carpentry work, was employed by J. E. Ingram, a lawyer, to
perform certain finish carpenter work on the inside of a house. The

276

DECISIONS OF THE COURTS

house was not Ingram’s home, but it was acquired by Ingram and
his wife, and the title was taken in the name of the wife. They
owned no other similar property and it was their purpose to repair
and improve the place for rental or for sale.
It was necessary that Stoolfire await the completion of the lathing
and plastering before he could commence his inside carpentering
work. In the meantime he was engaged by Ingram to do odd jobs
outside of the house and about the place at 75 cents per hour.
While Stoolfire was painting the roof of the house at Ingram’s
request, he fell and received an injury, for which compensation was
sought.
The California Industrial Accident Commission made an award in
November, 1926, whereupon Ingram filed a petition for rehearing,
which was denied in January, 1927. In February he filed a “ Petition
to set aside order denying rehearing and for rehearing and for order
under section 16, workmen’s compensation act.” The commission
granted this petition, referring in its order to the petition as one for a
“ rehearing.” Following this “rehearing” the award theretofore made
was rescinded and annulled, and a final decision and award made
on July 27,1928. Minnie H. Ingram, the wife, then filed a petition
for a rehearing of this award and the petition was denied by the
commission on August 20, 1928. Her husband did not petition for
a rehearing at this time.
J. E. Ingram and his wife appealed to the Supreme Court of Cali
fornia to annul the final award made by the commission. The court
first considered the question of procedure to determine whether the
court had jurisdiction of the case. The court concluded that where
the commission treated a petition to set aside an order denying a re
hearing as a petition for rehearing, the petitioner could petition for
review, though he did not file a petition for rehearing following the
final decision. This holding allowed both husband and wife to peti
tion the court for review.
The next point urged by Ingram was that the employment of
Stoolfire was both casual and not in the course of the trade, business,
profession, or occupation of the employer. The court cited the Rissman Case holding that the employment must not only be casual but
also not in the business, etc., of the employer in order that the em
ployee be excluded from the benefits of the act. The court said:
It was therein said, at page 622 of 190 Calif., 213, Pac. 992: “ The
defense of casual employment is not available unless the employment
was not only casual as defined by the act, but also not in the trade,
business, profession, or occupation of the employer. I f either of
these conditions be present, the employee comes within the provi
sions of the act.” Therefore, when the commission, as here, found
on sufficient evidence that the employment of Stoolfire was not casual,

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

277

the fact that his employment did not tend toward the preservation,
maintenance, or operation of the business, business premises, or busi
ness property of his employer did not necessarily exclude him from
the benefits of the act.
Finally it was contended that the claim was barred as
Minnie H. Ingram by limitation of time under section 11 of
Stoolfire had, within six months, filed his claim against J. E.
alone, and not until a later date was the wife’s name added.
This contention was upheld by the court and Minnie H.
was relieved of liability. However, the award against J. E.
was affirmed, the court saying in part as follows:

against
the act.
Ingram
Ingram
Ingram

The petitioner, Minnie H. Ingram, was guilty of no act of com
mission or omission prior to the running of the statute in her favor
by which the status or rights of the employee or the authority of the
commission were in any wise prejudiced, and at no time has she
waived her rights under the statute. When she was ordered into the
proceeding as a party, she interposed the bar of the statute, and has
at all times relied upon the same. “ The general rule is well settled
that, when new parties are brought in by amendment, the statute of
limitations continues to run in their favor until thus made parties.
The suit can not be considered as having been commenced against
them until they are made parties.” (37 Cor. Jur. 1066, and cases
therein cited.)
It is assumed that, on the facts as they developed during the addi
tional hearings before the commission in this matter, the petitioners
herein were subject to a joint and several liability on account of the
injury. Satisfaction from one would therefore be satisfaction as to
both. Consequently this is not a case where the bringing in of an
additional party is essential to a recovery against the person already
a party. The claim for compensation is against the employer or
employers if there be more than one. In a case of this sort the
statute affords the claimant 6 months to proceed against his employer,
and the words “ f urther claims ” do not relate to an additional em
ployer, but to additional claims against the same employer.
From what has been said it follows that the award as to Minnie H.
Ingram must be annulled, and that the award as to J. E. Ingram
must be affirmed.

Workmen’s Compensation—Causal Connection—A c t o f God—
Common Hazards— Kennedy v. Hull & Dillon Packing Co. et cd.,
Supreme Court of Kansas (March 5, 1930), 285 Pacific Reporter,
page 537.— Samuel G. Kennedy was employed as a traveling sales
man by the Hull & Dillon Packing Co. and given as his territory

towns in certain counties o f Kansas, Oklahoma, and Missouri. He
lived in Pittsburg, Kans., where the packing company was located,
and covered his territory in an automobile. On the morning o f
June 20, 1928, he started on a trip from Pittsburg, expecting to
make his first call at Crestline in Cherokee County, Kans. When

278

DECISION’S OF THE COURTS

he reached a point 8y2 miles south of Pittsburg, he ran into an
electric wire which had been thrown across the road in a storm, and
was killed.
His widow made a claim for compensation and was allowed com
pensation in the amount of $4,000 and the sum of $150 for funeral
expenses. The employer and insurance carrier appealed to the dis
trict court, Cherokee County, and the court affirmed the award of
the commission. The case was then appealed to the Supreme Court
of Kansas by the employer, who contended that Kennedy’s death
did not arise out of and in course of his employment in that he was
on his way to assume the duties of his employment but had not
reached the first stopping place on the trip. The Kansas Supreme
Court held that Kennedy should be regarded as within his territory
and in the course of his employment when the accident occurred.
The court said his work differed from one employed in a factory
who might have been injured on his way to the factory where his
work was to be performed. In such a case the worker would not be
entitled to compensation, but the present case differs, in that—
Kennedy’s work required that he travel from place to place in the
allotted territory in an automobile, calling on regular customers and
in seeking to procure new ones. It was left to him to determine the
roads he would travel over in doing his work. He was expected to
keep in touch with the plant in Pittsburg, and to promptly phone
in orders obtained. While out canvassing the territory he was under
the supervision of the defendant, and subject to its orders. The
place of work was not the boundaries of towns where orders were
solicited or collections made. All contemplated that travel was nec
essary for the performance of his duties, and that it would take him
through the counties named.
It was also contended that the employer should not be liable as the
death of Kennedy was caused by “ an act of God.” The court said,
however, that Kennedy was not killed during the storm or exclu
sively by the violence of nature; he came to his death by coming in
contact with high-voltage wires, an instrumentality of human agency.
In concluding the opinion the court affirmed the judgment of the
lower court and held that there was a causal connection between the
employment of Kennedy and the injury.
The court said:
It is said that the hazard was one common to all persons using the
highway. His work involved daily traveling over the highways in
the performance of his duties, and it became his place of work. His
employment enjoined upon him traveling from place to place within
his territory almost continuously in the discharge of his duties. He
was using the highway in his employer’s service when he was injured
and was much more exposed to its hazards than people generally.
We think that the service and injury was clearly an incident of his
employment.

DECISIONS OF THE COURTS

279

W orkm en ’s C ompensation — C a u s a l C onnection — A ct o f G od—
T ornado— American Shipbuilding Go. v. Michalski et al., Court of

Appeals of Ohio (September 28, 1928), 164 Northeastern Reporter,
page 128.— On June 28, 1924, a destructive tornado passed over the
city of Lorain, Ohio, doing great damage and causing the death o f
more than 70 persons. On that day Joseph Michalski was in the em
ploy o f the American Shipbuilding Co. as a fireman, and was work
ing in the power house at the time the tornado passed over the plant.
A s the wind began to blow unusually hard, the foreman o f Michalski
directed him to close one o f the large steel doors in the front of the
power house. W h ile the foreman started toward the rear door with
the intention of closing that himself, but before it was accomplished,
he realized that it was especially dangerous for Michalski to attempt
to close the front door, and thereupon attempted to call Michalski
back but was unable to make him hear. The wind blew out a por
tion o f the side o f the building where Michalski was sent to close
the door, and he was killed during the storm. A fte r the tornado
had passed, Michalski was found some 200 feet away from the build
ing. The foreman who gave the order was not injured, and if
Michalski had remained where he was when the order was given he
probably would not have been injured.

The Ohio Industrial Commission denied compensation to Sophia
Michalski, the widow. She thereupon appealed to the Court of
Common Pleas of Ohio, where she was awarded compensation. The
company then appealed the case to the Court of Appeals of Ohio,
Lorain County, claiming that Michalski was killed by the forces of
nature and not by a cause which arose out of or was connected with
his employment. As authority they cited the case of Slanina v.
Industrial Commission (117 Ohio St. 329,158 N. E. 829), wherein the
Ohio Supreme Court stated the law to be:
In case an employee, in the discharge of the duties of his employ
ment, is injured as a result of the unexpected violence of the forces
of nature, to wit, “ a destructive tornado,” where his duties do not
expose him to a special or peculiar danger from the elements which
caused the injury, greater than other persons in the community, such
employee is not entitled to compensation under the workmen’s
compensation act.
The court considered this case different from those cited by the
counsel for the company and after a discussion of the questions
involved in the case, concluded the opinion by saying:
We have reached the conclusion that, upon principle, the holding
should be that the giving of said order, under the circumstances
indicated, exposed Michalski to danger in such a way that his
employment had a causal connection with his death; that he was not

280

DECISIONS

the

courts

but was exposed to a special danger to which his fellow employees
and other persons in the community were not exposed.
We hold that where, during a tornado, an employee, by specific
order of the master, is directea to go to a place of increased aanger
for the purpose 01 preserving the master’s property, and while
obeying such order is injured by such tornado, such injury constitutes
an accident arising out of his employment, within the meaning of the
workmen’s compensation act, and that the trial court reached the
correct conclusion in this case when compensation was awarded. The
judgment is therefore affirmed.

W o r k m e n ’ s C o m p e n s a t io n — C a u s a l C o n n e c t i o n — C o u r s e o f

E m

Cronin v. American Oil Co., Supreme
Court of Pennsylvania {November 25, 1929), 148 Atlantic Reporter,
page 476.— On August 28, 1928, J. A . Cronin was employed as a
service station attendant by the American Oil Co. His hours of
labor were from 3.30 p. m. to midnight. He collected the proceeds
of sales made and a safe was provided at the station for their de
posit; the company also carried burglary insurance. No order re
quired that he keep the funds in his own charge after hours, though
the evidence showed that ordinarily he carried the day’s receipts to
his home, returning with them the next afternoon. This custom was
neither expressly approved nor dissented from by the company.
On the night in question within a few minutes after closing time
Cronin left for his home, carrying funds of the company amounting
to $1.85. When he had gone 10 or 11 blocks from the station he was
robbed by three men. There was no evidence that the highwaymen
were aware that Cronin was an employee of the oil company or that
he was accustomed to carry cash belonging to the oil company.
Others arrived at the scene and the assailants fled. Cronin ran into
the street and fell in the middle of the car tracks bruising his left
side.
He reported at work the next day and continued his occupation
without interruption until September 30, then left and returned on
October 24. His service lasted until December 16, when he became
incapacitated and was taken to the hospital, where he died on Feb
ruary 24 following. No claim for compensation was made during
his lifetime, but thereafter the widow demanded payment and peti
tioned for an award. The Pennsylvania Workmen’s Compensation
Board awarded compensation to the widow and the award was ap
proved by the Allegheny County court of common pleas. The em
ployer appealed to the Supreme Court of Pennsylvania, contending
that the injury was not in the course of the employment and, further,
that no adequate proof was shown of a causal connection between
p l o y m e n t — H e a r t D is e a s e —

w o r k m e n 's

c o m p e n s a t io n

281

the employment and the death, which the employer contended was
the result of heart disease.
In reversing the decision of the lower court and denying compen
sation the Pennsylvania Supreme Court said in part:
Cronin was a mere volunteer in carrying the money of the com
pany, another place for its deposit having been provided, and his
employment ceased when he left the filling station. The practice to
act as he did, though it may have been known to defendant, does
not constitute an extension of the course of employment, so as to
cover the intermediate distance to his home, and what would neces
sarily follow.
It may further be noted that there is nothing to show that the
deceased was attacked by the robbers 10 or 11 blocks from his place
of work because of their knowledge that he carried the company’s
funds or might have such in his possession. He was set upon, as
might have been any other pedestrian passing on the highway.
Though the defendant, upon whom the burden of proof rested, failed
to show affirmatively that the injury was inflicted as a result of per
sonal enmity toward the one assaulted, thus excusing the employer
* * * je t the evidence does disclose that the robbery had no
relation to the employment of the deceased and that he was not at
the time in the course of his regular service. The hold-up was
unconnected with the allotted duty of Cronin. His presence on the
street after midnight, occasioned by his hours of service, gave con
venient opportunity for its commission, but his employment was not
the cause of the wrongful act. At the time of the injury he was no
longer engaged in furtherance of the master’s business. It follows,
from what has been said that no award can be made in the present
case.
The Supreme Court of Michigan held that the death of an oil station em
ployee as the result of an accidental discharge of a revolver in the hands of a
fellow employee did not arise out of the employment within the Michigan work
men’s compensation act (Comp. L. 1915, secs. 5423-5495), in view of evidence
that it was not the employer’s policy to permit employees to keep firearms at
such stations, that they were instructed not to resist hold-ups, and that the
employer did not know the employees had a revolver at the station. (Bull et
al. v. Wayco Oil Corporation et al. (1930), 229 N. W . 597.)

o r k m e n ’s

C o m p e n s a t io n — C a u s a l

C o n n e c t io n — E v id e n c e —

Francis v. Swift & Co., Court of Appeal of Louisiana (March 10,
1930), 126 Southern Reporter, page 699.— George Francis filed suit
against Swift & Co., alleging that on February 25,1928, he was en
gaged in sweeping oil from the bottom of an oil-tank car belonging
to Swift & Co. and that due to the slippery condition of the tank
car he fell, and in some manner his right leg was caught in a series
of coils into which steam had been pumped, and that before he could
extricate his leg it was severely burned.

DECISIONS OF THE COURTS

282

From the evidence it appeared that following the accident the com
pany paid him compensation at the rate of $8.13 per week from the
date of the accident until July 14, 1928, when further compensation
was refused him.
Francis contended that as a result of the burns which he received
on his right ankle an injury had been caused to his nerve and muscle
structure, causing him to be totally disabled from doing work of any
reasonable character. The Twenty-fourth Judicial District Court of
Louisiana rendered a verdict in favor of the company and dismissed
the suit. Thereupon Francis appealed to the Court of Appeal of
Louisiana. Swift & Co. contended that Francis had entirely recovered
from his injury and that there was no connection between his present
condition and the injuries received while working in the tank car.
The appeal court in affirming the decision of the lower court deny
ing compensation, said in part as follows:
Not one of the four or five medical experts, whose testimony ap
pears in the record, appears very certain as to the reality of the pain
of which the plaintiff complains; but, assuming his condition to be
as serious as he contends, the evidence is overwhelmingly to the effect
that sciatica, neuritis, etc., could not have been caused as a result of
the burn on his right ankle. In the first place, an injury to the nerve
in the region of the ankle can not affect the sciatic nerve in the hip,
since the doctors explain that nervous degeneration takes place from
the nerve center and not to it, the anatomical construction of the
nerves being such that impulses go from above downward. Nor is
there any support in the record for the theory advanced by plaintiff’s
counsel to the effect that the injury to plaintiff’s ankle served to
awaken into activity a dormant disease which manifested itself in
this case in the form of sciatica.
W e are asked to disregard the medical testimony in the record,
though it is admittedly given by men of the highest standing in their
profession, and to consider only the fact that prior to the injury
plaintiff had no sciatica and subsequently thereto he developed this
trouble without any apparent reason. * * * In the case at bar it
has been demonstrated to our entire satisfaction that whatever malady
affects the plaintiff, whether permanent or otherwise, it has nothing
to do with the original accident, the burn to plaintiff’s ankle, and
there can be no liability on defendant’s part except for the conse
quences of the injury received in the course of plaintiff’s employment.
In cases of this kind we must to a great extent rely upon the testimony
of medical experts.
W

o r k m e n ’s

C o m p e n s a t io n — C a u s a l

C o n n e c t io n — E

v id e n c e —

Republic Box Co. v. Industrial Commission et al., Supreme Court of
Illinois {October 19, 1929), 168 Northeastern Reporter, page 300.—
Oscar Williams, on October 20, 1925, while in the course of his em
ployment with Republic Box Co., ran a sliver into his hand, from
which an infection followed. Williams died on May 19, 1926. The

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

283

widow and children of the deceased filed application with the Illinois
Industrial Commission. The arbitrator recommended that no award
be made, but on review the industrial commission awarded compensa
tion. The case was taken to the circuit court, which court “ reversed
the commission and remanded the cause for further hearing on the
question of the causal connection between the death of the deceased
and the accident. On rehearing an award was reentered by the com
mission and another review sought by. certiorari in the circuit court.
On this hearing the court set aside the award on the ground that
the records did not show the happening of an accident.”
Following this action the case was taken to the Supreme Court
of Illinois for review and attention was called to the report made
by an insurance company as sufficient proof of the accident.
In rendering the opinion of the court, Mr. Justice Stone said:
The record here presents two questions: (1) Whether the death
of the deceased is shown to have been caused by the accident claimed
to have occurred; and (2) whether the report of the insurance com
pany to the industrial commission is competent evidence and may
be taken as prima facie evidence of the occurrence of the accident.
To sustain the award for compensation entered there must be
evidence in the record showing that the death was traceable to an
injury which arose out of and in the course of the employment of
the deceased. An award may not be based upon imagination, specu
lation, or conjecture, but must be based upon facts established by a
preponderance of the evidence. [Cases cited.] In this case, though
it be assumed that an accident to the hand of the deceased occurred
on October 20, 1925, which arose out of and in the course of the
employment of the deceased with defendant in error, there is no
evidence that that injury caused or contributed to the death of the de
ceased. The only expert testimony which could be said to in any
way tend to establish causal connection between the death and the
injury was the statement that myocarditis might have been caused
by tliis infection to the hand. There is no evidence here that in
any way tends to show that it was so caused. The deceased died of
myocarditis seven months after the alleged injury, and, as the evi
dence shows, more than six months after infection to his hand
had entirely nealed without glandular involvement. It is also shown
that myocarditis may arise from one of many causes. To say that
it arose from an infection to the hand received on October 20, 1925,
in the face of the testimony that the hand wras completely cured
of the infection by November 16, when the deceased returned to
work, would be to base the cause of: death on mere conjecture. This
the commission is not permitted to do. The award is without foun
dation in the evidence.
Since for this reason the award can not be sustained, it is not
necessary to determine the admissibility of the report of the insur
ance company to the industrial commission as evidence of the
occurrence of the accident.
The judgment of the circuit court is affirmed.

284

DECISIONS OF THE COURTS

W o rk m en ’s Compensation— C a u sa l C on n ection — F a ilu r e to
U se S a f e t y Device— E y e I n ju r y — Pino v. Ozark Smelting & Min

ing Go., Supreme Court of New Mexico (July 17, 1930), 290 Pacific
Reporter, page 409.— On September 1, 1926, Lorenzo Pino received
an injury to his eye while in the course of his employment. The eye
was hit and abrased by a piece o f rock flying from a hammer with
which he was breaking ore. A cataract formed and later caused total
blindness.

As both the employer and employee were covered by the

New Mexico workmen’s compensation act, compensation was awarded
to the injured employee. Suit by the company followed in the
Socorro County district court, where the award was affirmed. Both
parties appealed the case to the Supreme Court o f New Mexico, the
employer contending there was no causal connection between the
injury and the cataract. Regarding this, the court sa id :

Perhaps, upon the opinion evidence alone, there would be warrant
for defendant’s contention that it would support only a conjecture
as to the cause of the cataract. But there were other facts which
the jury might consider. Traumatic cataract is of frequent occur
rence. No one suggested any cause for this cataract other than the
wound. The time sequence is favorable to plaintiff’s theory. He
testified that he had suffered no other injury, had never previously
had trouble with the eye, and that, so far as he knew, it was normal,
and that he hadn’t “ seen anything with it ” since the injury, that it
pained him a good deal, and required covering with bandage or
dark glass for three months. One physician was of opinion that
such facts indicated infection. I f the jury believed plaintiff’s testi
mony it could not reasonably reach any different conclusion than
it did.
The employee also appealed from that part of the judgment pro
viding for a 50 per cent reduction in compensation because he failed
to use a safety device furnished by the company. As to this, the
court said in part:
Plaintiff contends finally that the evidence does not warrant hold
ing the goggles to have been a reasonable safety device. There was
evidence that the men refused to wear them in the belief that the
glass increased rather than lessened the hazard; that in one instance
a glass had been broken, though no injury resulted; that soon after
plaintiff’s injury the use of glass goggles was abandoned for wire
goggles. But there was also evidence that the use of the goggles
was well calculated to prevent such injuries as that suffered by
plaintiff; that the real reason the men objected to them was that
they were hot, would sweat and interfere with vision; that the gog
gles were so constructed that upon the breaking of the glass it would
fall outward and cause no injury. Certainly the purpose of fur
nishing them was to promote safety, and the court, in concluding
that it was a reasonable requirement, is well within the evidence.
The decision of the lower court was therefore affirmed.

DECISIONS o r THE COURTS
W o r k m e n ’s

C o m p e n s a t io n — C a u s a l

C o n n e c t io n — L a t e n t

285

D e

f e c t — A c c i d e n t A r is in g O u t o f a n d i n C o u r s e o f E m p lo y m e n t—

Patrick v. Grayson de Yeary et a lC o u r t of Appeal of Louisiana.
(March 24, 19-30), 127 Southern Reporter, page 116.— Ivan Patrick
began work for Grayson & Yeary about the 1st of February, 1929,
and on the 5th of March, while attempting to crank an engine used
to operate a pump which furnished water for the sawmill and planer,
he felt a severe pain in his back. He was forced to sit down and
remain there about 10 minutes before he could get up. As soon as
he was able to do so he returned to the mill, a distance of approxi
mately a half mile, and reported to Mr. Yeary, one of the partners,
who was in charge of the mill, that he had hurt his back trying to
start the engine. About a week or so after the accident, Patrick, on
his own accord, visited a physician, who doctored him and diagnosed
his trouble as a sprain of the sacroiliac joint. His back continued to
hurt him and on May 10, 1929, he quit work. He stated that he
44worked under difficulty and did not do any more than he had to,”
that other men in the mill assisted him in his work, and that he
really was not able to carry on the work. There was evidence, how
ever, that Patrick was suffering from arthritis of longer duration
than the time of the injury.
The first judicial district court, Parish of Caddo, La., awarded
compensation to Patrick in the sum of $15 per week for a period of
not exceeding 300 weeks. From this judgment the employer appealed
to the Court of Appeal of Louisiana, coiitending that 44one who
suffers an injury at a time he is suffering from a disease or disability
must show to what extent the injury received by him in the course
of his employment and growing out of it increased the disability.”
The case of Bauman v. Newman (5 La. App. 119) was cited as
authority.
The court, however, citing cases holding 44that the compensation
paid injured workmen under the workmen’s compensation act is
based upon disability, and that it is immaterial whether the injury
alone, or in conjunction with a latent systemic infection, caused the
disability,” concluded, 44we see no good reason for adopting the
rule in the case of Bauman v. Newman which, we think, is erroneous,
and will adhere to the well-settled jurisprudence of this State on
this point.”
The counsel for the employer also contended that the injury
received by Patrick was not due to any accident such as is contem
plated by the Louisiana Act No. 20 of 1914; that there was no
specific strain sufficient to cause injury or accident as provided by
the compensation act. In answering this contention the court quoted
60588°—31----- 20

DECISIONS OF THE COURTS

286

from the case of McMullen v. Louisiana Cent. Lumber Co. (2 La.
App. 773), in which case the court said:
The term “ accident,” as employed in the compensation acts, is
broad enough to include an injury from muscular strain or physical
overexertion, such as hernia or rupture or bursting of blood vessels.
This is true although the physical condition of the employee is such
as to predispose him to the injury. But it has been held there must
be a definite, particular occurrence to which the injury can be attrib
uted. * * *
Acceleration of a diseased bodily condition may constitute a per
sonal injury, and an injury may be by accident, although it would
not have been sustained by a perfectly healthy individual.
The court felt that this decision and others cited were decisive of
the issue and that Patrick was injured by accident as contemplated
in the compensation act. The court therefore affirmed the judgment
of the lower court.

o r k m e n ’s

C o m p e n s a t io n — C a u s a l C o n n e c t io n — L

im it a t io n s —

S h o c k — Travelers’

Insurance Co. et al.
v. Ohler, Supreme Court of Nebraska (November 14, 1929), %27
Northwestern Reporter, page 449.— On October 3, 1926, while Harry
C . Ohler was in the performance of his duties as an employee of the
Patriot Manufacturing Co. he received an electric shock. He
received treatment on two occasions shortly thereafter from his
employer’s physician. He did not consider the injury very serious at
the time, but continued his work with slight interruptions until
October 29, 1927, when he voluntarily quit work because of his
alleged incapacity to perform his duties.
He filed a claim for compensation under the Nebraska workmen’s
compensation law, alleging that as a direct result of the accident he
had suffered a loss in weight, suffered severe and continuous head
aches, and was incapable of concentrating his mind upon his work.
The district court for Lancaster County, Nebr., denied the compen
sation on the grounds—
I n ju ry R

esu lt of

l e c t r ic

(1) That the disabilities of appellant were not caused nor contrib
uted to by the accident; (2) that no notice of claim for compensation
was given within six months from the date of injury; and (3) that no
action was commenced by filing a claim before the compensation
commissioner until more than a year had elapsed from the date of
the accident.
From this decision Ohler appealed the case to the Nebraska
Supreme Court. The supreme court had ruled in previous cases
that the findings of the trial court would not be disturbed in compen
sation cases if supported by competent evidence. After reviewing
the evidence, the court said in part as follows:

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

287

We are required, therefore, to determine whether the finding of
the trial court is supported by sufficient competent testimony, or
whether it is clearly wrong. There is no conflict in the record that
appellant suffered an electric shock, nor of the fact that thereafter he
became afflicted in the manner above indicated, and that he is now
practically disabled from performing his ordinary duties. The only
conflict is as to whether that condition is the result of the electric
shock. Upon a consideration of the entire record, we think that the
great weight of the testimony indicates very clearly that appellant’s
disability is a result of the electric shock which he received in
October, 1926. Indeed, one of the experts called by appellees
admitted that his condition was in part due to the electric shock.
An examination of the entire record convinces us that the finding of
the trial court is not sustained by sufficient evidence and is so contrary
to the weight of evidence as to be clearly wrong.
Having determined that Oilier had sustained a compensable
injury, the court considered whether he should be deprived of com
pensation because of his failure to give notice of claim and to
commence his action within the time prescribed by the statute.
After citing several cases the court said:
The record in the present case discloses that the injury received by
appellant was of a latent character and did not develop so that he
was aware of the fact that he had a compensable injury until long
after the time for filing claim and commencing action, by the strict
letter of the statute, had expired. We think the facts presented in
this case bring it within the rule announced in the authorities just
cited, and that the defense that notice of claim was not given, or the
action commenced within the statutory period, is not available to the
appellees in this case.
The judgment of the district court was reversed, with directions
to award compensation according to the statute.

W o r k m e n ’s

C o m p e n s a t io n — C a u s a l

t i o n a l D i s e a s e — Galuzzo

C o n n e c tio n — O ccu p a

v. State et al., Supreme Court of Errors
of Connecticut {March 31, 1930), 11$ Atlantic Reporter, page 778.—
Vincenzo Galuzzo was in the employ of the State highway depart
ment on March 5, 1928. He was a regular and energetic worker
and had lost but two or three days’ time during his five years’ em
ployment. On March 5, 1928, after working in the open air along
the highway where the temperature was about 28°, at 3 o’clock in
the afternoon he became sick. The foreman took him home and a
physician was called the following morning, who found “ a begin
ning pneumonia ” which progressed and caused his death on the
13th. The widow filed claim under the Connecticut workmen’s com
pensation law for compensation, contending that the deceased suf
fered a compensable injury— pneumonia— caused by the exposure
to which deceased was subjected on the previous day while work

288

DECISIONS OP THE COURTS

ing on his job and therefore it arose out of and in the course of
his employment. The commissioner decided adversely to this claim
and denied compensation, saying that if the pneumonia were trace
able in any degree to the employment it could only be traced through
weakened resistance and lowered vitality. It therefore came within
the prohibition of chapter 307, section 7, of the Public Acts of
1927 of Connecticut providing that “A personal injury shall not
be deemed to arise out of the employment unless causally traceable
to the employment other than through weakened resistance or
lowered vitality.”
The conclusions of the commissioner were unsuccessfully attacked
upon the appeal to the superior court, New Haven County, and the
widow appealed to the Supreme Court of Errors of Connecticut,
on the ground that they were not only inconsistent with the sub
ordinate facts but unreasonable and unsound. In discussing the
widow’s right to recover, the court said:
First, it should be noted that pneumonia is not an “ occupational
disease 55 within the meaning of the act, for the latter is “ a disease
peculiar to the occupation in which the employee was engaged and
due to causes in excess of the ordinary hazards of employment as
such.” (Gen. Stat. sec. 5388, amended by Pub. Acts 1919, ch. 142,
sec. 18, by Pub. Acts, 1921, ch. 306, sec. 11, and Pub. Acts 1927, ch. 307,
sec. 7.) Since compensation is now given only for personal injury
and occupational disease, the claimant’s right to compensation in
this case must therefore rest upon proof that the deceased suffered
a “ personal injury,” and this must be “ only accidental injury which
may be definitely located as to the time when and the place where
the accident occurred.” (Pub. Acts 1927, ch. 307, secs. 2 and 7.)
The court cited several cases previously decided wherein they
allowed compensation not only for occupational diseases but for any
disease arising out of and in course of the employment, even though
it was not traced to a definite happening or event. The court said,
however, that these cases were decided according to the amendment
of 1919 and were therefore inapplicable to the case at bar as the
amendment of 1927 applied.
After reviewing the medical testimony regarding pneumonia, the
court concluded the opinion in part by saying—
We interpret the consensus of these medical views to be that a
lessened vitality and an increased susceptibility to infection could
have been the direct and contemporaneous result of the exposure;
that this lowered resistance permitted the pneumococcus germ to gain
a foothold and thereafter resulted in tne disease of pneumonia.
« * * * xhe contemporaneous consequences of the decedent’s
exhaustion was not a localized injury, but a general or systemic con
dition of weakened resistance to disease, from which pneumonia
developed in the ordinary course and without the intervention of a
localized injury contemporaneously caused by the conditions of his

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

289

work.” (Dupre v. Atlantic Refining Co., 98 Conn. 650, 651, 120
Atl. 288, 290.)
It appears quite conclusively that the pneumonia was not a con
temporaneous result of the exposure and that the only contempora
neous result which could have been caused was a weakened resistance
and a lowered vitality.
We hold therefore that the conclusion of the commissioner that
the pneumonia in this case “ could only be traced through weakened
resistance and lowered vitality ” of the deceased was a sound and
reasonable one.
The statute of 1927 forbids compensation where the injury is
causally traceable only “ through weakened resistance or lowered
vitality,” and we must concur with the commissioner and the trial
court in holding that this is not a case of compensable injury.
In a case where claimant’s husband died of pneumonia resulting from
unusual exposure during the course of his employment in the Lehigh Valley
coal mine, the Supreme Court of Pennsylvania held that an injury following
an extraordinary exposure to wet and cold may be compensable under the
workmen’s compensation statutes on the same principle as a prostration
resulting from heat, as may death from pneumonia caused by an injury or
unusual exposure. (Broch v. Lehigh Valley Coal Co. (1929), 147 Atl. 899.)

o rkm en ’s

C o m p e n s a t io n — C a u s a l C o n n e c t io n — P

ow ers,

e t c .,

Souza?s Case, Supreme Judicial
Court of Massachusetts (December 31, 1929), 169 Northeastern*,
Reporter, page I$5.— On August 6, 1919, Emili Souza, an employee
of the Globe Yarn Mill at Fall River, Mass., sustained an injury to
her thumb by having it drawn into a calender roller. A t a hearing
before a member of the Massachusetts Industrial Accident Board
it was decided, on conflicting evidence, that the employee as the
result of' her accident was suffering from hysterical paralysis of
the right extremities. This was approved by another member at a
later date and compensation was awarded.
On October 1,1926, the employee requested a hearing by a member
of the industrial board upon the petition of several doctors asking
that the insurer be charged with the payment of their bills for medi
cal services rendered her as a result of the injury. The member of
the board decided that the insurer should not be charged with the
payment of these bills.
On October 27, 1927, on request of the employer for approval of
the hospital bill, a hearing was had on the question “ whether or not
this is an unusual case ” as referred to under Gen. L., Massachusetts,
chapter 152, section 30. The board decided that this was not such
a case and declined to approve the hospital bill. The decision of
the board was affirmed in the superior court, Bristol County, Mass.,
and an appeal was taken from that decree by the employee to the
op

C o m m is s io n — M

e d ic a l

ees —

290

DECISIONS OF THE COURTS

Supreme Judicial Court of Massachusetts. This court upheld the
decision of the lower court affirming the decree of the board, and
said in part:
The testimony given at the hearings before the single members,
in connection with the additional testimony which was before the
industrial accident board on the petition of October 21, 1927, was
sufficient to warrant the finding of the board that this is not an unus
ual case under Gen. L., chapter 152, section 30. More specifically,
the testimony of the physician for the insurer, the testimony of the
impartial physician, and that of the physician called by the employee
on cross-examination, warranted the board in finding that the em
ployee had been hysterical all her life; that she was suffering from
hysterical paralysis of the right side of her body; that that condi
tion was not primarily caused by the injury to her thumb; that the
injury itself was only of a slight nature; and that her condition at
the time of the hearing was not causally related to her accident.

W o rk m en ’s Compensation— Change o f Condition— Im pairm ent
o f F u n c tio n s W it h o u t W a g e Loss— T erm in ation o f Aw ard—

Warner v. Michigan Electric Railway Go., Supreme Court of Michi
gan (October 7, 1929), 226 Northwestern Reporter, page 887.—
R oy W arner was injured on M ay 20, 1927, while at work for the
Michigan Electric Railway

Co.

as a motorman on an interurban

passenger car. H is left arm was broken near the shoulder and he
was otherwise injured. A t that time he was earning 54 y2 cents per
hour. He was paid compensation until September 10, 1927, when
he went to work as foreman o f a gang o f men and as such earned
greater wages than when injured. Thereupon the railway company
filed a petition to discontinue the compensation, but the commis
sioner denied this relief and ordered the compensation continued for
total disability. This was upheld upon review before the Michigan
Department o f Labor and Industries.

The company carried the

case to the State supreme court, contending that—

(A ) The plaintiff was not a skilled workman engaged in skilled
employment at the time of his injury, but was a common laborer,
and subsequently obtained employment as a common laborer with
earnings as great as he was receiving at the time of his employ
ment; and (B) that plaintiff is not in fact disabled from perform
ing the labor or the work of an interurban motorman.
In rendering the opinion the court cited a previous case in which
it held—
Evidence that claimant, at the time of hearing had been able dur
ing his employment by defendant railway company, after his in
juries, to earn about as much as before, and that he had been em
ployed at other labor after losing his position and had earned as

w o r k m e n 's

291

c o m p e n s a t io n

much as he had prior to the accident, did not preclude the board
from granting the additional award, under testimony of his earning
capacity.
Regarding the contention that a motorman is a common laborer,
the court cited the opinion of Justice Steere in Leitz v. Labadie Ice
Co. (211 Mich. 565, 179 N. W . 291), as follows:
In that case plaintiff when injured was a motorman on defendant’s
railway, running an electrically propelled car in the city of Detroit,
an employment of responsibility in the business of railroad trans
portation of passengers, presumably requiring training, skill, and
judgment beyond that of a common laborer.
The court then referred to the statute (Mich. Comp. Laws 1915,
sec. 5441) which provides that the loss of wages suffered by an in
jured employee is to be measured by “ the impairment of his earning
capacity in the employment in which he was working at the time of
the accident,” and according to the court this rule was correctly
applied in this case.
The order, denying the company’s application to be relieved from
making further payments on the aw^ard, was therefore affirmed.

W orkm en ’ s

C ompensation — C laims — C hange

C ondition —

I n ju r y to E ye — Murphy v. W. 0 . Cook Construction Co. et al., Su

preme Court of Kansas (March 8, 1930), 285 Pacific Reporter, page
OOlf.— J. C. Murphy was employed as a laborer about a cement mixer
operated by the W . O . Cook Construction Co. in Topeka, Kans.

January 19,1929, while he was dumping cement into the mixer a gust
of wind blew some cement into his eyes. The right eye was blinded
within a few hours and was removed by a surgical operation. On
February 23, 1929, the workman filed an application for compensa
tion for the injury and loss o f his right eye. In the hearing before
the Kansas compensation commissioner all the pertinent facts were
amicably stipulated by the workman, his employer, and the insur
ance carrier, and an award for the loss o f the eye was made in accord
ance with the statutory schedule.

On May 25, 1929, Murphy filed another application for compensa
tion alleging that his left eye had also been injured in the same
accident. The commission denied the application, and Murphy
appealed to the district court of Shawnee County, Kans., which
court dismissed the case. Thereupon Murphy appealed to the Su
preme Court of Kansas, where the decision of the district court was
affirmed. The court said the propriety of the judgment of the dis
trict court could readily be seen by noting that the accident and
injury occured on January 19, 1929, and that the present application

DECISION’S OF THE COURTS

292

was made on May 25,1929, four months and six days after the acci
dent. The court pointed out that the compensation statute explicitly
stated that proceedings for compensation shall not be maintainable
unless a claim for compensation has been made within three months
after the accident. I f Murphy had made a timely claim for com
pensation for injury to his left eye and some award had been made
therefor and not paid in full, it might very well be shown by lapse
of time and subsequent developments that such award was insufficient
and ought to be increased; but such was not the case before the court.
On the belated date, May 25,1929, for the first time, Murphy made a
claim for compensation for an injury sustained four months and six
days before; therefore the statutory provisions for the modification
of a prior award were not applicable to the case.

o r k m e n ’s

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

m ployee

”— M

em ber

m p l o y e e — Emery's

Case, Supreme Judicial Court
of Massachusetts (March 26,1930), 170 Northeastern Reporter, page
839.— Alberta Emery was treasurer of the National Wood Heel Co.
and owned 74 shares of the company’s stock. She worked in the
company’s office up to June, 1928. In the latter part of that month,
on account of business conditions, she went to the “ turning room ”
and ran a “ hand-concaving machine,” and while operating this
machine she received an injury. She filed claim for compensation
before the Massachusetts Industrial Accident Board and the find
ings of the reviewing board upon this issue were as follows:
F

i r m , e t c ., a s

Alberta Emery was an employee of the corporation, * * * of
which she was a stockholder; * * * she was expressly included
within the terms of the policy of insurance; * * * toward the
latter part of June, 1928, she took upon herself the duties of a
“ workman ” within the meaning of paragraph A of the policy of
insurance, working in the “ turning room ” on a hand-concaving
machine until September 19, 1929 (during which time she was car
ried on the books of the corporation as a “ workman ” at a weekly
wage of $30), when the knife connected with the machine took on
the end of her left middle finger; * * * this injury arose out
of and in the course of her employment. * * *
The industrial accident board ordered payment of compensation
for partial incapacity and the superior court, Essex County, Mass.,
affirmed this award. The insurer appealed the case to the Supreme
Judicial Court of Massachusetts, contending that a stockholder or
officer of a corporation should not be included among its employees
and, as her remuneration was not considered in determining the
premium to be paid, she should be excluded from the policy.

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

293

The court cited cases holding that “ in the absence of special cir
cumstances, a stockholder or officer of a corporation in its service
is ‘ in the service of another’ within the meaning of the statute,
since the corporation is a legal entity distinct from any of its stock
holders or officers.”
In concluding the opinion the court upheld the decree of the
lower court affirming the award of compensation by the industrial
accident board and said in part as follows:
The report of the accident gave her occupation as “ treasurer of
the corporation,” but there was no other testimony to this effect.
From this and other evidence the inference was warranted that the
claimant, when injured, was running the machine as an “ employee ”
of the corporation, and that her weekly wage was paid to her as
such “ employee ” and not as a stockholder or officer. The evidence
does not show special circumstances which preclude a finding that
she was an “ employee.” This is true even if the statement m the
report of the accident that she was treasurer of the corporation is
accepted as correct.
No estimate of remuneration for the treasurer as “ workman”
was included in the policy as issued, and, according to the claim
ant’s testimony, remuneration for her was excluded from the audit
of May, 1928, upon which the estimated premium was based. It
did not follow, however, from the exclusion of remuneration for her
from this audit and from the estimate that if she later performed
the duties of a “ workman ” her wages therefore were to be excluded
from the remuneration actually earned, upon the basis of which
the premium was to be adjusted at the end of the period covered
by the policy. According to the evidence her wages as a “ work
man” were included in the corporation pay roll. A t the time of
the hearing no audit for the purpose of adjusting the premium had
been made2but it could have been found that, according to the terms
of the policy, in such an adjustment her wages should be included
in the remuneration actually earned, and that she was covered by
the policy.
W o r k m e n ’s C o m p e n s a t io n — C o nstitutionality o p L a w — “ B u si
n e s s f o r G a in ”— A ppeal— Brooklyn

Children's Aid Society v. Indus
trial Board of Department of Labor of State of New York et al.,
Supreme Court of New York {February 15, 1980), 2Ifi New York
Supplement, page 70.— Follow ing an amendment to the New Y ork
workmen’s compensation law (Law s o f 1928, ch. 755) the department
o f labor directed the Brooklyn Children’s A id Society to take out
compensation insurance.

The society is a charitable corporation

engaged in philanthropic services and not operated for pecuniary
gain.

Upon receiving this notice the society filed suit against the

industrial board attacking the constitutionality o f the amendment
as interpreted by the board.

The compensation law in force before

the amendment defined the term “ em ploym ent” as employment

DECISIONS OF THE COURTS

294

“ only in a trade, business or occupation carried on by the employer
for pecuniary gain” (sec. 2, subd. 5). The amendment under
consideration reached beyond these enumerated groups, extending
generally to 44all other employments,” and brought all charitable
corporations within the compensation act, according to the interpre
tation placed upon it by the industrial board.
The society relied upon the proviso to the constitutional amend
ment : “ That all moneys paid by an employer to his employees or
their legal representatives, by reason of the enactment of any of the
laws herein authorized, shall be held to be a proper charge in the
cost of operating the business of the employer.”
Upon appeal to the New York Supreme Court that court held
that the proviso was inserted as a permission to a private employer
to offset any claim that his property was being taken without due
process and was not an underlying or fundamental principle of the
constitutional amendment. The court pointed out that the word
“ business ” should be used with a broad and liberal meaning, as
“ the business of the conduct of its philanthropic activities.” The
court cited Bailey v. School District No. 5, Town of Leicester, Cuylerville (198 N. Y . Supp. 247), in which Mr. Justice Hinman said,
in reference to a provision of the workmen’s compensation law which
definitely dispensed with any requirement that the State should be
in business for pecuniary gain, “ No good reason can be urged for
interpreting that clause of our State constitution as meaning a
limitation on the otherwise paramount power of the legislature to
allow a compensation claim against the State or any subdivision
thereof, which in good morals ought to be allowed if it requires it of
a private employer under similar circumstances.”
The court said the case under consideration was simply another
application of the same logic to hold that the legislature may con
stitutionally dispense with that requirement as to charitable organi
zations so far as concerns employees engaged in hazardous work.
Judgment was therefore rendered in favor of the industrial board.

W o r k m e n ’s

C o m p e n s a t io n — C o n s t i t u t i o n a m t y

Law— S e t

$ taten Island Rapid Transit R. Co. v.
Phoenix Indemnity Co., Supreme Court of the United States
(March 17, 1980), 50 Supreme Court Reporter, page <21$.—Joseph
Perroth, in the course of his employment by one Anderson, was
killed through the negligence of the Staten Island Rapid Transit
Railway Co. Perroth left surviving him his widow. Tlie admin
istratrix of Perroth brought an action against the Rapid Transit
Railway Co. to recover damages caused by Perroth’s death, and

tle m e n t

and

R e le a s e —

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

295

the claim was settled by the payment of an amount in excess of
that which the dependent would have been entitled to receive under
the New York workmen’s compensation law. Under these circum
stances there was no right of recovery by the dependent of Perroth
against his employer, as subdivisions 8 and 9 of section 15 of the
workmen’s compensation law apply.
This section provides that the employer or insurance carrier shall
pay to the State treasurer for every case of injury causing death
in which there are no persons entitled to compensation the sum of
$500. Under this provision the Phoenix Indemnity Co., the em
ployer’s insurer, paid to the State treasurer the amount of two
awards of $500 each. The indemnity company then brought suit
to recover this amount from the railway company which had wrong
fully caused the death, under section 29 of the workmen’s compen
sation law, which provides—
In case of the payment of an award to the State treasurer in ac
cordance with subdivisions 8 and 9 of section 15, such payment shall
operate to give the employer or insurance carrier liable for the
award a cause of action for the amount of such payment, together
with the reasonable funeral expenses and the expense of medical
treatment, which shall be in addition to any cause of action by the
legal representatives of the deceased.
The case was tried before the Supreme Court of the State of New
York and that court held that the State treasurer was entitled to the
awards made in his favor and paid by the insurance carrier; and
that the Phoenix Indemnity Co. was entitled to recover the amount
paid the treasurer from the railway company by reason of section 29
of the compensation law. The court of appeals affirmed the decision
and the case was carried to the Supreme Court of the United States.
The contention was made that section 29 of the workmen’s compen
sation law violated the fourteenth amendment to the Constitution
in that it denies due process of law and equal protection of the laws.
Mr. Chief Justice Hughes rendered the opinion of the court
declaring that section 29 did not violate the Constitution. He said
in part as follows:
There is no question here as to the validity of the provisions for
the creation of the special funds in the hands of the State treasurer,
in order to provide additional compensation to employees in cases
requiring special consideration, or as to the validity of the require
ment of payment by employers and their insurance carriers in order
to maintain such funds. The constitutionality of these statutory
provisions has been sustained by this court. (R. E. Sheehan Co. v.
Shuler, 265 U. S. 371, 44 Sup. Ct. 548; New York State Railways v.
Shuler, 265 U. S. 379, 44 Sup. Ct. 551.) These provisions were an
appropriate part of the plan of the workmen’s compensation law.
It was not considered that the due-process clause was violated

296

DECISIONS OF THE COURTS

because the additional compensation, to be made in the described
classes of cases, was not paid to the injured employees by their
immediate employers or because payment was to be made out of
public funds established for the purpose. (R. E. Sheehan Co. v.
Shuler, supra.) Thus, the respondent is in no proper sense a
stranger to the wrongful act of the appellent. The respondent under
the law of the State insured the employer of the deceased, and, as
insurer, was required by the statute to make the payments in question
to the State treasury. As these payments became obligatory because
of the death caused by the appellant’s wrongful act, the indemni
fication of the respondent was a natural and reasonable requirement
in consequence of that act. In creating the cause of action in order
to obtain this indemnification, there was no lack of due process of
law, as there was none in the means afforded by the State for
enforcing the liability.
Nor do we find any sufficient ground for the contention that the
statutory provisions in question denied the equal protection of the
laws. The classification is attacked as arbitrary because is is said to
rest on the circumstance whether or not there are persons entitled to
compensation under the statute in the particular case, and that this
depends on the further circumstance whether there are dependents,
and if there are, whether they recover at least as much as the compen
sation for which the act provides. But this is the classification with
respect to the requirement of the payments by the employer of his
insurer for the maintenance of the special funds. That can not be
said to be an unreasonable classification, as it provides for those
cases where there are no persons entitled to compensation under the
act, and thus the immediate employer and his insurer are relieved
of the obligation to pay compensation.
The decision of the lower court was therefore affirmed.

W orkm en ’ s C ompensation — C onstruction o f S tatute — E m ploy
S tatus — M ember o f F irm a s E mployee — Columbia Casualty

ment

Co. v. Industrial Commission of Wisconsin et al., Supreme Court of
Wisconsin (.November 6, 1929), 227 Northwestern Reporter, page
293.— Joseph Batranek owned 76 shares o f the stock o f the Muench
C o .; the remaining 31 shares were owned by his son. Joseph
Batranek was secretary and treasurer and his son president o f the
company, engaged in the wholesale oyster business.

In the course o f

his work Batranek helped with the books, made out bills, and did
selling and buying for the company— did anything and everything in
connection with the business and its work, as occasion required.

was injured while running a can-capping machine and filed claim for
compensation.

The

Wisconsin

Industrial

Commission

made

award which was upheld by the circuit court.

The insurance carrier appealed the case to the Supreme Court of
Wisconsin for review, contending that Batranek was a member of the
firm and not an employee as defined under the compensation act.

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

297

The supreme court compared this case with a case previously de
cided (Leigh Aitchison (Inc.) v. Industrial Commission, 188 Wis.
218, 205 N. W . 806), but concluded that the former ruling would not
apply, as the organization of the company was different; also the
duties of the injured parties differed. Batranek was not the whole
corporation, although he owned a majority of the stock. The court
held in this case Batranek was a workman, he was injured while per
forming his work, and the fact that he was secretary and treasurer
did not exclude him from classification as an employee. He was per
forming the duties ordinarily undertaken by superintendent, fore
man, or workman, and the insurer was entitled to include his salary
in the aggregate on which the premium was based and should be
estopped from claiming that he was not entitled to compensation.
The judgment of the lower court was therefore affirmed.

W orkm en ’ s C ompensation — C onstruction of S tatute — E xtra E m plo ym en t — P ublic E m plo ym en t — Village of Chapin
v. Industrial Commission et al., Supreme Court of Illinois (October
19, 1929), 168 Northeastern Reporter, page 286.— Guy Grady was
hazardous

employed by the village o f Chapin,

111., to haul dirt and fill up holes

He furnished his own team and received 50 cents an
hour for his work. He worked under the immediate direction of
in the streets.

Allen and Sm ith, members o f the village board o f trustees, who
directed him where to work. Smith worked with him most o f the
time, and was doing so on A p r il 4, 1927, when Grady was thrown
from the wagon, breaking his leg.

He proceeded under the Illinois workmen’s compensation act and
was awarded damages by the State industrial commission. This
award was set aside by the circuit court of Morgan County, 111., and
Grady brought the case before the Supreme Court of Illinois.The question in the case was whether the village was under the
compensation act by virtue of the provisions of section 3.
The workmen’s compensation act, after the amendment of 1917,
applied automatically to the State and the various municipal corpo
rations and their employees only engaged in the extrahazardous
occupations mentioned in section 3. The general assembly in 1919
(Laws, 1919, p. 538) again amended section 3 by inserting in the
section as amended in 1917 the State and the various municipal cor
porations included in the statutory definition of “ employer” con
tained in section 4, so as to make section 3 read: u The provisions of
this act hereinafter following shall apply automatically, and without
election to the State, county, city, town, township, incorporated
village, or school district, body politic or municipal corporation, and
to all employers and their employees, engaged in any of the following
enterprises or businesses which are declared to be extrahazardous.

298

d e c is io n s o f

the

courts

namely,” followed by eight subparagraphs in the same language
as the amended section 3 of 1917, except that to subparagraph 3,
which in the amendment of 1917 read: “ Carriage by land or water
and loading or unloading in connection therewith,” was added,
“ including the distribution of any commodity by horse-drawn or
motor-driven vehicle where the employer employs more than three
employees in the enterprise or business, except as provided in subparagraph 8 of this section.”
It is argued that the act clearly distinguishes between State, county,
village, etc., as employers and all other employers “ by providing that
employers other than State, county, village, etc., are not under the
act automatically and without election unless engaged in some depart
ment of the enterprises or businesses enumerated in paragraphs 1 to
10, inclusive, of section 3.”
The court answered this contention by saying:
There certainly was no such classification in the amendment of
1917, which declared the act should apply automatically and without
election to all employers and their employees engaged in the described
occupations declared to be extrahazardous.
By the amendment of 1919 there is no change in this part of the
section except to name specifically the State and municipal corpora
tions which were included in the general language of the section
before its amendment. This change would have made no difference
in the meaning of the section.
In conclusion the court said:
The case of McLaughlin v. Industrial Board, supra, holds that a
common dirt road is not a wstructure ” within the meaning of that
term as used in paragraph (b) of section 3 of the workmen’s compen
sation act, and the making or maintaining of such a road in the
ordinary way is not a dangerous or extrahazardous occupation.
The employment of the plaintiff in error was not such as brought
him within the terms of the workmen’s compensation act.
The judgment of the circuit court was therefore affirmed.

W orkm en ’ s C ompensation — C onstruction
to and from

S tatute — G oing

W ork— R eview b y C ourts— Krebs v. Industrial Com

mission et cil., Supreme Court of Wisconsin (November 5, 1927),
227 Northwestern Reporter, page 287.—W . D. Krebs, an employee
under the Wisconsin workmen’s compensation act, was injured when
he was about 20 feet from the employer’s plant at which he worked.
He was walking on the sidewalk adjacent to the plant on his way to
check in for work, when he was struck by a motor cycle driven by a
boy, not an employee, who was bringing an employee to work. He
filed a claim for compensation under the Wisconsin workmen’s
compensation act and the industrial commission denied compensa
tion on the ground that Krebs was not covered by the act when

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

299

injured. The circuit court for Dane County, Wis., affirmed the
order of the industrial commission denying compensation. Krebs
then appealed to the Supreme Court of Wisconsin, contending that
the amendment to the compensation act (Stat. 1927, sec. 102.03)
covered employees going to and from work.
Section 102.03 of the Wisconsin act provides that an employee
going to or from his employment in the ordinary and usual way,
while on the premises of the employer shall be deemed to be per
forming service growing out of and incidental to his employment,
and therefore would be covered by the workmen’s compensation act.
As Krebs was going to work in his “ ordinary and usual way,” the
sole question was whether he was on the employer’s premises when
injured. In affirming the judgment of the circuit court denying
compensation, the Wisconsin Supreme Court said in part:
Originally the act did not provide for injuries to employees re
ceived on the employer’s premises while going to or from work.
Injuries so received had to be recovered for by common-law action,
if at all. The provisions under which plaintiff claims, was [were]
by amendment added at the end of the section as it originally stood.
The precise question for determination is: Was the place of injury
within the purview of the amendment ? The purpose of the amend
ment apparently was to relieve both the workman and the employer
from the hazards of a common-law action. The one was subject tc
the hazard of defeat by reason of the defenses permissible in the
common-law action, and the other to the hazard of a much greater
payment than the act provides and the risk under the amendment
would be covered by the liability insurance provided for by the act.
The terms of the amendment should not be stretched by forced con
struction to include situations not clearly within their intendment.
No recovery existed to plaintiff at common law under the situation
here involved, and none is given by the amendment.

W o rk m en ’s Compensation — C o n tra cto r — E le c tio n — T hirdP a r ty L ia b ility — Taylor v. Haynes, Court of Civil Appeals of

Texas (June 19, 1929), 19 Southwestern Reporter (2d), page 850.—
J. M. Taylor was employed by the Gunter Hotel Co., a corporation
owning and operating the Gunter Hotel in the city of San Antonio,
Tex. J. P . Haynes was engaged in repairing, remodeling, and
renovating the hotel building. As a result of Haynes’s alleged
negligence in doing the work, Taylor, while in the performance of
his duties, received injuries and the Texas Industrial Accident
Board awarded him compensation as an employee of the hotel cor
poration. He subsequently filed suit against Haynes to recover
damages under the common law in addition to his compensation
under the workmen’s compensation act.

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

300

cou rts

The district court, Bexar County, Tex., found that Haynes was
not an independent contractor but was an “ agent55 of the hotel
company, and therefore rendered judgment denying any recovery
to Taylor. He appealed to the Court of Civil Appeals of Texas,
The sole question raised in the appeal was whether Haynes was
agent, servant, or employee of the hotel company or whether he
was an independent contractor.
The facts show that Haynes was being paid a weekly salary of
$200 and that the men working for him were paid direct by the
company, and because of this he contended that he was an “ agent,
servant, or employee ” of the hotel company and that under the
provision of article 8306, section 3, Texas Revised Statutes, he was
exempt from liability for injuries to the hotel employees. How
ever, the higher court found that this did not make him an agent
or employee of the company. The opinion, in part, is as follows:
The excavation work was for the time being an independent un
dertaking by appellee as a contractor, having exclusive control and
management of the undertaking, freed of any intervening right
or duty of the hotel company’s agents or officials over those actually
doing the work, who were in fact employed, directed, and controlled
by appellee, and performed their duties under his exclusive direc
tion. The fact that appellee was paid a weekly salary, instead of
a lump sum for the work in hand, and that his employees were paid
directly by the owner, instead of through appellee, does not have
the effect of distinguishing his status from that of an independent
contractor, and did not make him an agent, servant, or employee
of the “ subscriber,” as contemplated in article 8306, section 3.
The opinion of the district court was therefore reversed.

W o r k m e n ’s

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

m ployers’

L ia b il

Johnson et al. v. Mortenson et al., Supreme
Court of Errors of Connecticut (November 7, 1929), lift Atlantic
Reporter, page 705.— Oscar L . Johnson, a general contractor, in 1927
took a contract to build a house in West Hartford, Conn., and Chris
Mortenson held a subcontract to do certain work, including the dig
ging of a trench for sewer connection. Antonio S. Pascoal had a
contract of employment with Mortenson, and while he was engaged
in digging the sewer trench, it caved in, causing his death. In con
sequence the Connecticut compensation commissioner made an award
in favor of the dependent widow and minor children of Pascoal
against both Johnson and Mortenson and this award was affirmed
on appeal. The premium on the compensation insurance held by
each was based upon his pay roll. The pay roll on which the
premium on Mortenson’s insurance was based included Pascoal, but
that on which Johnson’s was computed did not. This action is by

it y —

S u bcontractor—

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

301

Johnson against Mortenson for a judgment determining the rights
and liabilities between the parties. The case was reserved by the
superior court of Connecticut for the advice of the State supreme
court of errors.
The claim made by Johnson was that—
Although he as general contractor and Mortenson as subcontractor
are both, without distinction as between them, liable for compensa
tion on account of Pascoal, yet, except in favor of such employee, the
obligation to pay compensation is primarily that of Mortenson, the
immediate employer of the injured workman, and the situation of
the general contractor is such as to entitle him to reimbursement by
such immediate employer, for compensation payments to which he is
subjected by reason of the award.
In answering this contention the court said in part as follows:
As we have seen, section 5345 has been construed as recognizing
no distinction between principal contractor and subcontractor as to
liability to a claimant for compensation, but as making both pri
marily liable to him. The better view and practice of the com
pensation commissioners appears to have been to regard their juris
diction as limited to determination <5f the right of the employee to
compensation and as to who is liable therefor to such claimant,
leaving the rights and liabilities between those held jointly liable
to the claimant “ to be worked out in such proceedings, among
themselves, as may be brought for the purpose.”
Pascoal’s contract of emplOTment with Mortenson gave him no
right to recover wages from Johnson, and the latter had no power
or direction over him. The presence of section 5345 in the act
evinces, of itself, that no relation exists between a contractor and
the employee of a subcontractor which, unaided by the provisions
of this section, would involve any right to compensation from the
contractor as an employer of the claimant.
As between Johnson and Mortenson, the liability of the latter
should be regarded as primary and that of the former as secondary
only.
“ There is always at least an implied contract between the parties
which obliges a principal to reimburse his surety when the latter
has paid the debt; he then becomes a creditor of the principal, and,
the debt having matured and become due, is entitled to recover
from the latter the amount so paid.”

In conclusion the court said:
The plaintiffs are entitled to recover from the defendants any
sums which they have paid or may pay, in good faith, upon ma
tured obligations, or have been forced to pay or may hereafter be
forced to pay toward the satisfaction of the award referred to. in.
the complaint.
W o r k m e n ’s C o m p e n s a t io n — C o n t r a c t o r - — E m p l o y m e n t S t a t u s —
D e a t h —Hcdbrieh

et dL. v. Bent et al,, Supreme Court of Wisconsin
(December S, 1929), 227, Northwestern Reporter, page 87,7.-—
66588°—31.----- 2L

Joe

302

DECISIONS OF THE COURTS

Habrich was general manager of Forest Lake (Inc.), a corporation
owning the land surrounding Forest Lake in Vilas County, Wis.
He entered into a contract with the corporation to build a road
around the lake and three roads leading from this main road to the
shore of the lake at specific points. He sublet the contract of build
ing the main road to Walter Bent, who was a contractor and was
equipped with heavy machinery necessary for the building of roads.
According to Habrich’s testimony, after Bent completed the main
road, Habrich—
Asked Bent if he would go in with his men and machinery and
finish these branch roads for him. It was not necessary for me to
have any supervision as to how it was built, because he was considered
a better man than I was, as far as the actual building goes. It
wasn’t [because] I knew that he was an expert in building roads,
that I wanted him to go in and build the roads; it was because he
was there with his equipment. He was actually in control and
supervised the work. That was because I felt that he knew more
about building roads than I did.
On June 2, 1927, while completing the work on the branch road
Bent sustained injuries while blasting, resulting in his death. The
Industrial Commission of Wisconsin made an award in favor of
his widow, Etta Bent, under the provisions of the State workmen’s
compensation act. (Stat. 1927, secs. 102.01-102.41.) Upon appeal
the circuit court for Dane County affirmed the award of the commis
sion and the case was carried to the Supreme Court of Wisconsin by
Habrich, who contended that Bent was not acting as an employee
at the time of the accident, but that he was an independent contractor.
In sustaining the judgment of the lower court affirming the award of
the industrial commission, the court said in part:
We see very little in this evidence to indicate that Bent was an
independent contractor. He was on the job to do whatever Habrich
told him to do. He was not there to complete any certain piece of
work. He was not there to work any given length of time. He had
no control over the details of the work which it was not within the
power of Habrich to veto. That was evidently the understanding of
Habrich, and we discover nothing in the oral testimony relating to
what this contract was that seems to deprive Habrich of that power.
Habrich did not exercise it because he did not deem it necessary.
He felt that Bent knew more about the work than he did, and he
had confidence in him. The question is not, however, whether he
exercised it but whether he had the right to exercise it. Habrich says
lie thought he had that right, and it seems clear to us that there was
nothing in the contract which deprived him of the right. We dis
cover no reason for disturbing the conclusion of the industrial com
mission that at the time of the accident Bent was an employee of
Habrich.

w o r k m e n 's

303

c o m p e n s a t io n

Regarding the contention that there was no competent evidence
before the commission by which it could determine whether Bent
was an employee or an independent contractor, the court said:
The workmen’s compensation act is a beneficent law enacted for a
beneficent purpose. The accomplishment of that purpose is not pro
moted by imposing upon the dependents of one who has come to his
death in the service of his employer the burden of proving the exact
terms of the contract under which the services were performed. In
cases such as this the favorite of the law might well become the victim
of a rule of evidence. Such a result would illy comport with the
purposes of the workmen’s compensation act. The law should be
consistent. It should not offer compensation with one hand and
withdraw it with the other. When the inquiry has proceeded to the
point where it appears that a workman has been injured while ren
dering service for his employer, let it be presumed that he rendered
such service in the character 01 an employee and let the burden of
proving otherwise rest upon the one who would defeat the right to
compensation.
W

o r k m e n ’s

t u s — R e v ie w b y

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

m ploym ent

Sta

Furniture Co. et al. v. Industrial
Commission et al., Supreme Court of Wisconsin (November 5,
1929), 227 Northwestern Reporter, page 288.— John Brisbane, under
contract with the Badger Furniture Co. to sell furniture on com
mission, was killed in a collision between his automobile and an
engine on the railroad track near Sun Prairie, Wis.
His widow, Julia Brisbane, made a claim before the Wisconsin
Industrial Commission for compensation under the State compen
sation act. The commission awarded compensation to the widow,
and the Badger Furniture Co. and its insurance carrier brought
an action in the circuit court to review the award of the commis
sion. The circuit court set aside the award and the industrial com
mission appealed to the supreme court of the State.
The facts were not in dispute; the sole question was whether Bris
bane was an employee of the Badger Furniture Co. or an independ
ent contractor. In answering this question the court said:
C o u r t —Badger

Whether or not a person is an independent contractor or a servant
depends upon the right of control by the principal over the person
engaged to do the work. The mere fact that the principal exercises
such control is not significant, if he has no right of control.
In this case the contract was oral, and we have only the testimony
of one party to the contract; hence it is important to consider the
course of conduct of the parties to determine the control actually
exercised by the Badger Furniture Co. in construing the contract.

304

DECISIONS OF THE COURTS

After examining the letters written Brisbane by the Badger Fur
niture Co., the court said:
It is clear from these letters that the Badger Furniture Co. did
not attempt to exercise control over the deceased, but that it gave
him from time to time advice of mutual concern.
The supreme court also found from the correspondence that it
clearly appeared that Brisbane, while on his way to Lake Geneva,
was on his own business, according to his own arrangements. The
court continued the opinion, in part, as follows:
The testimony is undisputed that deceased furnished his own
car in traveling from place to place; that he paid his own expenses,
and his compensation was based only upon commission on sales
he made. Further, it appears without dispute that he was at liberty
to take on other lines of goods, and that during a portion of the
time, at least, he did have other lines of goods, and that he did
represent other independent concerns in selling other lines of goods.
He therefore furnished his own instrumentalities for doing his
work, and his place of work was wholly away from the location
of the Badger Furniture Co., and where the furniture company
could exercise but little supervision or control, if it chose to do so.
It is likewise clear that the parties themselves did not intend to
create the relation of employer and employee.
The judgment of the circuit court was therefore affirmed.

W o r k m e n ’ s C o m p e n s a t io n — C o n t r a c t o r — Loss o f
ye— Jacobson
v. 'Weidman Lumber Go. et al., Supreme Court of Michigan {March
29, 1929), 224 Northwestern Reporter, page 355.— The Weidman
Lumber Co. was constructing a bed for a logging railway; and Mag
nus Jacobson, together with three companions, took the job of clear
ing and grading about 1,800 feet of the way at $13 per 100 lineal
feet and agreed to pay $1 per day for board and lodging at the
lumber company’s camp. The first day, while Jacobson was work
ing on the job, a chip from a tree he was chopping struck his right
eye. He received treatment and the injury healed with a retention
of only 10 or 20 per cent vision in the eye.
Jacobson filed claim for compensation under the Michigan work
men’s compensation act and the department of labor and industry
awarded him compensation for the loss of an eye. The lumber
company carried the case to the Supreme Court of Michigan for re
view, claiming that Jacobson was an independent contractor, and
that he had not suffered the complete loss of an eye.
After reviewing the facts the Supreme Court of Michigan vacated
the award and found Jacobson to be an independent contractor
rather than an employee of the lumber company. The court em

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

305

phasized the fact that he was “ master of his own time in perform
ing the work,” and the inspection of the work or the furnishing of
tools by the lumber company did not change his relation to that of
master and servant.
W

o r k m en ’s

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

c c id e n t

r is in g

O ut

Kraft v.
Industrial Commission et al., Supreme Court of Wisconsin (April 1,
19S0) , 280 Northwestern Reporter, page 86.— Maynard Schuh lived
in the vicinity of Elcho, Wis. Some time in December 1926, he re
ceived a letter from a Mr. Shepard who was superintendent of an
estate owned by J. L. Kraft, at the same place. The letter read as
follow’s :
a n d in

C o u r se

m ploym en t—

ow ers of

C o m m is s io n —

I f you have nothing definite on hand maybe you would be inter
ested in my offer. I am getting ready to fill in more dirt in the
swamp here we covered last year and if you care to come to work
I will pay you $3.50 per day and you can live in our house on the
farm and have your wood and house rent free until the 1st of April
and from then on you can work by the month as we talked of this
fall. Please let me know at once, as I would like to get started as
soon as possible.
Schuh accepted this offer and he and his wife moved on the place,
which consisted of about 250 acres. About 16 acres were under
cultivation and the rest was used by Kraft for his summer outings.
Schuh was engaged to build a road across a swamp on the estate.
However, as spring came on there was no change in the contract, and
Schuh continued to work by the day under the direction of Shepard
at whatever he was required to do. Sometimes he worked at culti
vating the land and at other times he worked around the cottages.
The firewood furnished Schuh was not cut stove length, so it was
necessary for it to be cut. On October 24, 1927, in the evening after
supper, Schuh was using a sawing machine to cut up poles into wood
of stove length, when he was injured by reason of a pulley breaking
and striking his leg.
Upon filing claim for compensation two questions arose: (1)
Were the parties under compensation and (2) was Schuh perform
ing services growing out of and incidental to his employment? It
was contended that Schuh was employed at farm labor and because
of that he was not covered by the compensation act. The Wisconsin
Industrial Commission found that Schuh was engaged otherwise
than in farm labor, and was covered by the compensation act. The
circuit court, Dane County, Wis., made the same finding upon
appeal, and sustained the award. The case was appealed to the

d e c is io n s

306

the

courts

Wisconsin Supreme Court, which court, regarding the question of
farm labor, said:
This question seems to be strictly one of fact, and if so, the deter
mination of the industrial commission is final. Schuh testified that
the greater part of his work was not farm labor, and that he was
not hired as a farm laborer. It is clear from the letter employing
him that he was not engaged for farm labor, and there seems to be
credible evidence that the dominant part of his employment was
other than what would be considered farm labor. * * * On this
question we think the finding of the industrial commission must
prevail.
It was also contended that Schuh was not injured while in the
course of his employment or incidental thereto. This question
hinged upon the interpretation of the contract regarding “ free
wood.” The court said:
The real question is whether or not the contract to furnish free
wood meant wood prepared for the stove. I f the contract can be
reasonably so interpreted to include stove wood, ready for use, then
it must be held that although working after hours, he was working
for his employer at the time he was injured, and is entitled to com
pensation. It is the function of the commission to draw the proper
inferences from the facts.
The employee was to have “ wood and house rent free.” “ House
rent free ” undoubtedly meant a house ready and fit for occupancy,
and it is equally reasonable to hold that “ free ” wood meant wood
ready for the use and purpose for which it was intended. That
would be wood properly cut, delivered at the house. That being so,
when Schuh was cutting the wood he was doing work for his em
ployer at the time.
The decision of the lower court sustaining the award of the com
mission was therefore affirmed.
However, in proceedings for compensation by a superintendent of a mining
company, for an injury to his thumb while splitting wood to be used in pre
paring the evening meal, the Supreme Court of Idaho held that the splitting
of wood did not constitute part of his employment even though the company
had agreed to furnish the employee with wood, water, lights, and dwelling.
The court drew a distinction between the agreement to “ furnish ” wood and
the “ splitting” of wood by the employee. (Stewart v. St. Joseph Lead Co.
et al. (1930), 286 Pac. 927.)

o r k m en ’s

C o m p e n s a t i o n — C ov e ra ge — C a s u a l

m ploym ent—

Sturman v. Industrial Commission of Wisconsin, Supreme Court of
Wisconsin (.November 11, 1980), 282 Northwestern Reporter, page
864.— One Sturman was engaged in the business of operating a softdrink parlor and for several years had employed George Klobucnik
as a bartender and handy man. Occasionally Klobucnik was
required to do some repairing or cleaning of some of the five houses

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

307

which his employer owned and rented during the years 1925-1927.
On August 2, 1927, he was injured while helping another man to do
some painting at one of these houses. He applied for compensation
under the Wisconsin workmen’s compensation act and the industrial
commission, concluding that he and the employer were subject to the
provisions of the act, awarded compensation.
The award was sustained by the circut court of Dane County and
the case was appealed to the Supreme Court of Wisconsin. It was
contended that Sturman came under the compensation act by reason
of having had four persons in his employment in painting and
repairing the houses in 1926. Regarding this evidence the court said:
The evidence admits of a finding that four persons had been
employed by plaintiff for several days to do that work. The fact
that he then had three or more employees would, by virtue of section
102.05 (2), Stats., have brought him within the terms of the act (in
the absence of his filing, in accordance with its provisions, a notice
not to come under its terms), unless their employment was not “ in
the course of a trade, business, profession, or occupation ” of the
plaintiff. (Sec. 102.07 (4), Stats.) None of these employees, with
the exception of Klobucnik, were engaged in plaintiff’s soft-drink
business. He might, of course, have had some other trade, business,
profession, or occupation, as to which he could have come auto
matically under the act, upon employing three or more persons in a
common employment in such trade, business, profession, or
occupation.
However, the court found that the evidence did not establish that
Sturman was ever engaged in any other trade, business, or profession
than his soft-drink business, and work other than this was casual
employment. In reversing the decision of the lower court, the
Wisconsin Supreme Court said:
The occasional cleaning and repairing of his own houses did not
constitute a trade, business, profession, or occupation of the plaintiff,
and the casual or fugitive employment of three or four men for a
few days to do such repairing did not constitute employment in the
course of a trade, business, profession, or occupation of the plaintiff,
within the contemplation or purview of the compensation act. Con
sequently, the plaintiff was not within the act, and was entitled to
have the award to Klobucnik vacated and set aside in this action.
Judgment of the lower court was therefore reversed and the award
of the industrial commission set aside.

o rk m en ’s

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

a bo r —Peterson

m ploym en t—

Farmers’ State Bank of Eyota, Supreme
Court of Minnesota (March 28, 1930), 230 Northwestern Reporter,
page 12^.— Julius Peterson, by trade a carpenter, was employed by
F

arm

DECISIONS OF THE COURTS

308

the Farmers’ State Bank of Eyota to repair the buildings on a farm
owned by it, and while so engaged he sustained an accidental injury.
Compensation was sought under the Minnesota workmen’s compen
sation act and the State industrial commission made an award in
Peterson’s favor. The employer appealed the case to the Supreme
Court of Minnesota, contending that Peterson was a farm laborer
at the time of the injury and that such laborers have no protection
under the compensation act.
The Minnesota Supreme Court held, however, that a workman is
not a farm laborer simply because, at the moment of the accident,
he is doing work on a farm; nor because the task on which he is en
gaged happens to be what is ordinarily considered farm labor. The
court said:
Neither the pending task nor the place where it is being performed
is the test. The whole character o f the employment must be looked
to to determine whether he is a farm laborer. That is what is meant
by the statement that it is “ the character of the work which the em
ployee is hired to perform, which is the test of whether the employee
is a farm laborer.” (Austin v. Leonard, 177 Minn. 503, 225 N. W .
428.)
Peterson was employed by the bank to repair the buildings on a
farm owned by it, this was necessary to meet the requirements of the
tenant and therefore the employment was not casual. The court
said that Peterson was employed to work on a farm but he was not
employed “ to perform the work ordinarily done there,” and he was
no more a farm laborer while plying his special trade on the farm
than would have been a garage mechanic specially employed to re
pair or adjust the farm tractor.
The order awarding compensation was therefore affirmed.

o r k m e n ’s

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

S tatus—

Schanen v. Industrial Commission et al., Supreme Court of
Wisconsin (<Jammy 7 ,1930), 228 Northwestern Reporter, page 520.—
On D ecem ber 18, 1926, Clarence. R illin g was engaged in settin g pins
up on the b o w lin g alley, owned and operated by N. J. Schanen, and
M in o r —

sustained accidental injuries to his rig h t thum b necessitating its
am putation at the distal join t.

He filed claim fo r com pensation,

and it developed, upon the hearing before the W isco n sin In d u stria l
C om m ission, th a t the prin cipal question in the case was whether or
not Schanen had three em ployees in com m on em ploym en t, thereby
placin g h im w ith in the State w orkm en’s com pensation law .

The commission found Schanen had three such employees and
awarded compensation. Action was begun in the circuit court for

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

309

Dane County, Wis., to review the award of the industrial commission,
and in disposing of the question raised the trial court said:
While the evidence as a whole in this case is such that the commis
sion might well have found in favor of the contention of the employer
that he never had three employees in common employment, yet there
is credible evidence in part set forth in detail in the attorney gene
ral’s brief, enabling the commission, under the liberal rules estab
lished for its guidance, to find an award as it has; and, in accordance
with the law as abundantly set forth in the decisions, this court is
not permitted to interfere with the commissioner’s opinion on the
evidentiary facts where there is any evidence which furnishes a
basis for such opinion.
The case was appealed to the Supreme Court of Wisconsin by
Schanen, who contended he had only two employees for, on the night
in question, in addition to Rilling, one other boy was setting pins.
The pin setting was done among a group of six or seven boys who
lived in the neighborhood, no one boy being regularly employed,
The facts regarding the alleged third employee were as follows:
About a month before the happening of the accident, the plain
tiff was at the poorhouse and tnere met one Nic Schlim, whom he
had known for 25 years. Schlim was 68 years of age, not competent
to do hard work, and begged the plaintiff to take him along and let
him stop at his home while he looked for a job. There was no
agreement as to compensation or for the performance of any serv
ices. Schlim did come to the plaintiff’s place of business, and while
there he at different times performed slight services, such as cleaning
spittoons and tending the furnace fire. Prior to the date of the
injury to plaintiff, Schlim had left to work for one Gust Wegner
at Grafton; he worked for Wegner a couple of weeks and again
returned to the plaintiff’s home; he would then look for another
job and would be away as long as the job lasted. He had borrowed
money from the plaintiff, and at the time of the hearing owed him
$10 or $15 and had nothing with which to pay him.
The Wisconsin Supreme Court, after reviewing the facts in the
case concluded that Schlim was not an employee within the work
men’s compensation act, and in reversing the judgment of the trial
court sustaining the award of the industrial commission, the court
said in part as follows:
A careful study of the record convinces us that Schlim was not
an employee in the sense in which that term is used in the statute.
He did not come to the plaintiff’s premises at the request of the
plaintiff; he did no work in or about the premises at the request of
the plaintiff. He was an old acquaintance and friend who had fallen
into misfortune and begged to be taken out of the hands of the
public authorities and to be permitted to come and stay with the
plaintiff until he could find a job. He not only earned no money,
but he borrowed money; he had no assigned duties; he came and
went as he pleased; he was no part of the establishment; when he
was gone, it went on exactly as it had before he left. The evidence

DECISIONS OF THE COURTS

310

discloses that at the time Schlim left the poorhouse to go with the
plaintiff to the home of the plaintiff, the relationship which existed
between the parties was that of host and guest, and there is no evi
dence to the contrary. * * * There was no contract of hire, ex
press or implied. It is true that the plaintiff testified that it was
understood that he was to work for his board, but the only under
standing that was had in regard to it was the fact that he came there
under the circumstances indicated; that nobody expected him to pay
board; and that whatever he did was done of his own accord. In mat
sense and no other he worked for his board. I f Schlim had fallen
and injured himself while living with the plaintiff, would he have been
entitled to compensation as an employee? We think not. A mere
charity should not be held to impose liability upon the plaintiff.
Upon the whole case, it is considered that Schlim was not an em
ployee within the meaning of that term as used in the workmen’s
compensation act.

o r k m en ’s

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

m ploym ent

S tatus—

v. Des Moines Council, Boy Scouts
of America et al., Supreme Court of Iowa (March 18, 1930), 229
Northwestern Reporter, page 81^1.— The Des Moines Council of Boy
Scouts conducted a summer camp located in Boone County, Iowa,
where all boy scouts were permitted to go upon payment of a small
fee. A staff composed of the executives of the Des Moines council,
together with boy scouts of the higher ranks, was organized each
year to take charge of the camp. Ray C . Stiles, jr., a scout of the
highest rank, voluntarily joined the staff of workers and was will
ing to go with the junior staff, receiving no salary but given board
and lodging while at camp. On June 7, 1928, he, with other boy
scouts, went to the camp to prepare for the reception of the regular
boy scout visitors. Among the other duties to which Stiles was
detailed by the staff was the exercising of the horses; the purpose
being to “ gentle ” the animals for use by the younger scouts. On
June 8, 1928, while engaged in riding a horse, Stiles received an
injury by being kicked by a horse in charge of another scout.
A petition was filed before the Iowa industrial commissioner,
seeking compensation for his injury, and an award was made by
the deputy industrial commissioner. The case was carried to the
district court, Boone County, Iowa, by the Des Moines council,
contending that at the time of the injury Stiles was in pursuit of
pleasure, recreation and self-development, and therefore could not
secure compensation for the injury. The court affirmed the decision
of the commissioner who found that—
P

ow ers of

C o m m i s s i o n — Stiles

The Des Moines Council of Boy Scouts of America qualified, as
an employer, within the meaning of the Iowa workmen’s compensa
tion statute, that the appellee was duly employed by such employer,

W O R K M E N 's COMPENSATION

311

and that the disability sustained arose out of and in the course of
such employment. * * *
The case was then appealed to the Supreme Court of Iowa and
after a review of the evidence the court held that Stiles was not an
“ employee ” within the Iowa workmen’s compensation act (Code
1927, sec. 1363) so as to be entitled to compensation. In the course
of the opinion reversing the decision of the district court, the Iowa
Supreme Court said in part as follows:
The workmen’s compensation act provides that any decision of
the industrial commissioner may be modified, reversed, or set aside
on one or more of four grounds only (sec. 1453) among which are
the following: (3) I f the facts found by the commissioner do not
support the order or decree. (4) I f there is not sufficient competent
evidence in the record to warrant the making of the decision. Be
fore an award can be made under the terms of the workmen’s com
pensation act, it must conclusively appear that the employer has
come within the scope of the act and also that the claimant is a
workman or employee of the employer, or, in other words, that the
relationship of master and servant existed between the parties at
the time or the injury and that such injury occurred in the course
of such relationship and arose out of the employment.
The appellee was a boy scout of high rank. He had received the
benefits of the organization since his enrollment therein. Those who
had advanced in scouting before him assisted him in his advance
ment, and it was obviously his duty to lend what assistance lie could
to those scouts who were following him up the ladder of scouting.
He had passed the required tests to show his qualifications to render
what assistance he could to his younger brother boy scouts, and he
voluntarily undertook to do whatever his duty as an Eagle Scout
required him to do. The fact that he was to be relieved from ex
pense while attending the camp did not, of itself, constitute re
muneration for his services nor make him a workman or employee
within the terms of the workmen’s compensation act.
The fact that a policy was issued did not, in any manner whatso
ever, change the status of the Des Moines Council of Boy Scouts of
America as an employer, nor did it operate to bring that institution
within the scope of the workmen’s compensation law.
The record does not contain sufficient competent evidence to war
rant the making of the decision as was made by the Iowa industrial
commissioner, and therefore the district court erred in affirming the
decision and entering judgment against the Des Moines Council of
Boy Scouts of America ana the Federal Surety Co.

W o r k m e n ’ s C o m p e n s a t io n — C overage — F a r m L abo r — Adams v.
Ross et al., Supreme Court of New York, Appellate Division, Third
Department (June 27,1930), 21^3 New York Supplement, page
—
Chester Adams received injuries April 2, 1928, resulting in the loss
of the sight of his left eye. These injuries were accidental and in
curred in the course of his employment, while engaged in spraying

DECISIONS OF THE COURTS

312

a chicken house with a hand spray pump, on the premises of the em
ployer, Charles Ross. Adams filed claim for compensation and the
New York State Industrial Board sustained the employer’s conten
tion that Adams was employed as a farm laborer, and the claim was
disallowed. Adams appealed to the Supreme Court of New York,
which court said:
The evidence does not sustain such a finding. The employer is
evidently a retired business man, who owns a costly and pretentious
estate situate in the city of Auburn on an old residence street near
the center of the city. The residences on this street have been and
now are the homes of men of wealth and position. * * * There
are about 19 acres of land, of which about 7 are occupied by the
house and surrounding lawns. The remaining lands appear to be
devoted to pasture and grass land, vegetable garden, and to chicken
houses and yards. A very few cows are kept and grass is cut to
feed them. This work is not performed by the regular employees,
but is let out to others. There is one horse, but the purpose f o.r which
it is used is not stated. There are a few farming implements, but
nothing is stated as to their use. It appears that there are 400 to
500 chickens regularly kept on the premises and that eggs and broilers
are sold, and also a few vegetables from the garden. It appears that
the work of the regular employees, including claimant, is the care
of the buildings, grounds, and shrubbery, with some incidental work
in the chicken houses and garden.
Neither in the common acceptance of the term nor in the definition
found in dictionaries is the occupation of the employer, as above de
scribed, a “ farmer ” nor is he engaged in the business of farming.
There is no tilling of the soil or engaging in an allied industry as
an occupation either for profit or as a means of subsistence. There
is no devotion of the property to agriculture. What little is done
in the nature of agricultural work is either a pastime or is incidental
to the maintenance of the estate.
The court cited section 3, subdivision 1, group 18, of the New York
workmen’s compensation law which provides that all employments
(with certain exceptions) in which there are employed four or more
workmen or operatives regularly, come within the compensable pro
visions of the act, unless such operatives are farm laborers, domestic
servants, and persons engaged in voluntary service not under contract
of hire. The court held that the employment was not farm labor,
but the record was too indefinite to permit the court to say whether
the employer had four or more employees engaged in the work with
a reasonable degree of regularity during the year.
The decision was therefore reversed and the matter remitted to the
State industrial board.

orkm en ’s

C o m p e n s a t io n — C ov e ra ge — L i m i t a t i o n s — E v id e n c e —

Kemper v. Gluck, St. Lovis Court of Appeals (December 3, 1929),
21 Southwestern Reporter (2d), page 922.— On November 27, 1926,

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

313

Lillian Kemper sustained personal injuries while in the employ of
Otto F. Gluck, who conducted a restaurant in St. Louis, Mo.
While in the course of her employment, the waitress slipped upon
the floor. She brought an action in the St. Louis circuit court
alleging that the employer was negligent in allowing water and soap
to accumulate on the floor and so failed to exercise ordinary care
to furnish a safe place in which to work. The employer denied the
allegations and pleaded contributory negligence and assumption of
risk. The St. Louis circuit court rendered a verdict in the sum of
$6,000 in the employee’s favor. The employer thereupon appealed
the case to the St. Louis court of appeals where the motion for a
new trial was overruled on May 7,1928. During this time, however,
the Missouri Supreme Court handed down a decision stating that the
Missouri workmen’s compensation act became effective on November
2, 1926, rather than on January 9,1927, as had been generally under
stood. The counsel for the employer argued on appeal that the case
came within the terms of the workmen’s compensation act as the
accident occurred on November 27,1926, and would be covered by the
law adopted on November 2, of the same year. He therefore con
tended that it was necessary that Kemper prove not only that the
employer was negligent but also that the case was not covered by the
workmen’s compensation law. The court reviewed a number of the
State compensation laws and concluded that the case was based on a
master and servant relationship, and that the accident occurred at a
time when the compensation law was in full force and effect. Having
decided the compensation law applied, the court raised several ques
tions for consideration, such as whether the employer and employee
would be presumed to have accepted the act and whether Kemper was
barred by the limitation of time. The court concluded that the facts
were not sufficient to decide these questions and in reversing the
decision, the court said:
While it is true that the petition for the reason stated is insuffi
cient to support the judgment rendered, substantial justice, and the
peculiar and unusual circumstances of the case, would clearly seem to
warrant the giving to plaintiff of an opportunity to plead the true
facts, as she knows them or believes them to be, in a manner not
inconsistent with the views herein expressed.
The judgment of the circuit court was therefore reversed.

o r k m e n ’s

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

it h o u t P a y ” — Department of Natural Resources,
Division of Fish and Game v. Industrial' Accident Commission et al.,
Supreme Court of California (August b
M , 1929), 279 Pacific Reporter,

olunteer

“ W

314

DECISIONS OF THE COURTS

page 987.— Frank Machado applied to the California Fish and Game
Commission for appointment to the position of volunteer deputy fish
and game warden in the region of Watsonville, and on October 15,
1927, received his certificate of appointment as such volunteer deputy.
While serving in that capacity on June 10, 1928, Machado was acci
dentally drowned through the capsizing of his motor boat in Pinto
Lake in Santa Cruz County, Calif., while actively engaged in per
forming the duties incident to his employment.
The California Industrial Accident Commission, upon receiving the
claims filed by his widow, awarded $1,150 compensation. The de
partment of natural resources carried the case to the Supreme Court
of California for review, contending that the commission erred in its
interpretation of the compensation act. In defining the term 44em
ployee,” section 8, subdivision (a), of the compensation act (Stats.
1917, p. 835), provides in part as follows:
The term “ employee ” as used in sections 6 to 31, inclusive, of this
act shall be construed to mean: * * * All elected and appointed
paid public officers, and all officers and members of boards of direc
tors of quasi-public or private corporations, while rendering actual
service tor such corporations for pay, but excluding any person
* * * holding an appointment as deputy clerk, deputy sheriff, or
deputy constable appointed for the convenience of such appointee,
who receives no compensation from the county or municipal corpora
tion or from the citizens thereof for services as such deputy: Pro
vided, That such last exclusion shall not deprive any person so depu
tized from recourse against any private person employing him for
injury occurring in the course of and arising out of such employment.
Under a rule of the department relating to volunteer deputies it is
provided that “ each volunteer deputy will be paid a salary of $5
for the first month’s services to compensate him for the bond
premium. Thereafter his services will be volunteer and without
compensation.” The facts showed Machado had received only the
$5 provided for in this rule, since his appointment, and the question
before the court was whether this placed him among those excluded
from compensation as being a “ volunteer without pay.”
The court reviewed the history of the amendments to the compen
sation act and cited the case of County of Monterey v. Industrial
Accident Commission (199 Calif. 221, 248 Pac. 912) in which—
This court differentiated between those deputies of public officers
who were engaged in the public service and were serving chiefly for
their own convenience and without pay and those who were serving
for pay in their particular official capacity j and held that as to the
f ormer class it was the clear intent of the legislature in its amendment
to the workmen’s compensation act adopted in 1917 to exclude those
who were thus serving without pay from the beneficial provisions
of the act.

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

315

The court concluded the opinion by saying:
Following that decision by this court, the legislature, while other
wise making various amendments in the workmen’s compensation
act at the several sessions thereof, has undertaken to make no change
in the provisions thereof relating to those public officers who are to
be held to come within the term “employees ” for the purpose of
being brought within the beneficial provisions of said statute. We
therefore see no escape from the conclusion that public officers of the
class of the decedent herein who are serving without pay are not to
be held included within the beneficial provisions of said act so as
to entitle themselves, or, in the event of their death, their heirs or
dependents, to receive an award at the hands of the industrial
accident commission.
The award of the industrial accident commission was therefore
annulled.
In regard to the definition of the terms employee, workman, operator, as
applied to public officials in a case before the Court of Appeals of Ohio, it was
held that deputy county officers were not “ officials ” within the meaning of the
Ohio statute, defining the terms employee, workman, and operator as every
person in public service except any official of the State or of any county, city,
or township. This decision was based upon a prior decision of the Ohio court in
the Jennings Case (49 N. E. 404, 405) wherein it is stated:
The most important characteristic which distinguishes an office from an
employment or contract is that the creation and conferring of an office involves
a delegation to the individual of some of the sovereign functions of govern
ment, to be exercised by him for the benefit of the public; that some portion
of the sovereignty of the country, either legislative, executive, or judicial,
attaches for the time being, to be exercised for the public benefit. Unless the
powers conferred are of this nature, the individual is not a public officer.
(State ex rel. Alcorn v. Beaman, County Auditor et al., Court of Appeals
of Ohio, June 24, 1929, 170 N. E. 877.)

o rk m en ’s

C o m p e n s a t io n — D

eath

from

n e u m o n ia —

r o x im a t e

C a u s e —Henderson

I n t e r v e n in g C a u s e —

v. Louisiana, Power Go
Court of Appeal of Louisiana (Jtme 28, 1928), 121 Southern Re
porter, page 217.— Samuel Henderson, while employed by the Louisi
ana Power Co., sustained an injury in an accident arising in the
course of and out of his employment. An axe was thrown into the
air by a falling tree, the blade striking Henderson on the forehead.
After receiving treatment he was taken home and in a few hours
thereafter he became seriously ill and developed a fever which con
tinued until his death five days later. The medical authorities pro
nounced the cause of his death as pneumonia.
Suit was instituted by the parents of Henderson to recover com
pensation for the death of their son. The power company used as
a defense the fact that Henderson had died with a disease, pneu
monia, and alleged that the injury had not caused or contributed
to his death.
P

DECISIONS OF THE COURTS

316

Following a judgment for the company in the fourth judicial dis
trict court, Parish of Ouachita, La,, the parents appealed to the
Louisiana Court of Appeal. The appeal court reversed the judg
ment of the lower court and awarded compensation, saying, in part:
A ll of the physicians agreed the fever which developed in the after
noon following the injury was the result of the blow, and the evi
dence establishes that the illness continued until death, and, con
sidering this fact with the facts first above stated, the presumption
is that the injury caused the illness or aroused the disease resulting
in death, and defendant is liable. [Cases cited.]
Had deceased recovered, it would hardly have been contended that
defendant was not liable for the disability, although it may have
been prolonged by the disease, pneumonia, as in compensation cases,
where the injury results in disability which is continuous, the law
does not attempt to distinguish between that caused by the injury
and that which may be more particularly attributed to disease (Cald
well v. City of Shreveport, 150 La. 465, 90 So. 763), and, while there
may be some distinction drawn between cases where the claim is for
disability and where the claim is for death as the result of the injury,
we are of the opinion that the distinction should not be drawn unless
the evidence establishes that the disease which was developed during
the period of disability and illness therefrom could not have been
aroused or contributed to by the injury or illness naturally resulting
therefrom, and that the evidence in the present case does not establish
such facts.
W o r k m e n ’s

C o m p e n s a t io n — D e a t h

R e v i e w — Valiev

from

I n t e r v e n in g

C ause—

Goal Go. v. Industrial Commission et al, Supreme
Court of Illinois (April 17, 1930), 171 Northeastern Reporter, page
627.— On May 26, 1926, Nick Barrack, an employee of the Valier
Coal Co., received an injury in the course of his employment, when
coal weighing from 800 to 1,000 pounds fell from the face of the
mine and covered him. The coal was removed and he was found in
a semiconscious condition. There were three cuts on his head, his
chest and the pelvis had been squeezed, and there were other bruises
and contusions on his body. He was sent to the hospital and re
ceived treatment for about a month. He returned home where the
physician, as the company’s representative, continued to treat him,
except for a short time in 1927 when he was sent by the company’s
representative to a physician in Chicago. After returning from Chi
cago the physician noticed a marked improvement. However, after
a few months he again was confined to his bed and on August 23,
1927, he died.
His widow, Veronica Barrack, filed petition for compensation and
the cause was heard by an arbitrator, who made an award. On re
view by the Illinois Industrial Commission the award by the arbi
trator was affirmed. The case was appealed and after a hearing the

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

317

circuit court of Franklin County, 111., remanded the case to the indus
trial commission with the specific direction that the commission call
as a court witness the physician who had attended Barrack.
After a rehearing, the commission made an award, the same as
was made by the arbitrator. This was later affirmed by the circuit
court and the case was appealed to the Illinois Supreme Court. The
employer contended that the evidence failed to show that Barrack’s
death was the result of the injuries received by him May 26, 1926.
The testimony of several physicians was to the effect that his death
was probably caused by a syphilitic condition existing prior to the
injury. However, other experts and his attending physician testi
fied that the death was caused by an infection of the lung resulting
from the injury. The evidence also showed that prior to the accident
Barrack was a strong healthy man who never lost any time from
work and that after the accident he was not able to work.
The Supreme Court of Illinois therefore held that even though the
death may have been caused by a condition existing prior to the
accident, “after considering all the evidence in the case we are of
the opinion that the industrial commission was justified in finding
that Barrack received an injury in the course and scope of his
employment, which proximately contributed to cause his death.”
The judgment of the circuit court sustaining the award of the
industrial commission was therefore affirmed.

W o r k m e n ’s C om p en sation — D ep en d en cy — C la im s— M a r r ia g e o f
E m p l o y e e — Gleason's Case, Supreme Judicial Court of
Massachusetts {January 3, 1930), 169 Northeastern Reporter, page
409.— On July 3, 1928, George W . Gleason received an injury arising
out of and in the course of his employment with the Hersey Manu
facturing Co. He was married to Ida V. Gleason on August 4, 1928,
while he was a patient at the Boston City Hospital. He was then
80 years of age and she 76. On August 18 he left the hospital, but
returned again August 28 and remained there until' his death on
September 22,1928.
Mrs. Ida V. Gleason filed claim for compensation alleging she was
dependent upon the deceased. The single member of the industrial
accident board found that Mrs. Gleason was a member of the em
ployee’s family at the time of the injury and that she, having been
the employee’s wife at the time of his death, was entitled to the com
pensation due as his widow. The reviewing board, however, found
that the claimant was not a member of the employee’s family at the
time of the injury and that she, not being then married to him, was
I n ju red

06588°—31----- 22

DECISIONS OF THE COURTS

318

not a dependent w ith in the m eaning o f the statute, although she was
his w ife at the tim e o f his death.

Upon appeal to the superior court, Suffolk County, this court sus
tained the decree of the industrial board denying compensation; and
the case was appealed to the Supreme Judicial Court of Massachu
setts, where the judgment was affirmed, the supreme court saying in
part as follows:
The board had power to reverse the findings of fact of the single
member upon the evidence reported by him. * * * G. L. ch. 152,
sec. 1 (3), defines dependents as 64members of the employee’s family
or next of kin who were wholly or partly dependent upon the earn
ings of the employee for support at the time of the injury.” It is
not necessary to decide whether the evidence of the claimant would
support a finding that she was a member of the employee’s family at
the time of the accident, for the board were not obliged to believe
this testimony, and we can not say that they erred in finding that she
was not a member of his family at that time.
Since the claim ant was neither next o f kin n or a m ember o f the
em ployee’s fa m ily at the tim e o f the in ju ry she can not recover.

o r k m e n ’s

C o m p e n sa t io n — D e p e n d e n c y — C l a im s — W

if e

L iv in g

Gonsiorek et al. v. Inland Steel Go., Appellate
Gourt of Indiana (December 12, 1929), 169 Northeastern Reporter,
page 55.— O n Ju n e 13, 1926, one Jan Gonsiorek was in the em p lo y o f

F oreign C o u n t r y —

the In la n d Steel Co. and on th at date suffered an in ju ry w hich re
sulted in his death.

C laim

fo r com pensation was filed w ith the

In d u stria l B o a rd o f In d ian a by Franciszka G onsiorek, cla im in g to
be the w idow o f the deceased, and fo r Julianna and Joseph G onsiorek,
their children.

T h e claim fo r com pensation was denied as the board

fou n d the evidence fa iled to show that the deceased was the same
and identical person w hom the w idow claim ed to have been her
husband and the fath er o f the children.

The industrial board found that about 1905 the deceased was
married in Poland and about four years thereafter came to the United
States, leaving his wife and children in Poland. Gonsiorek never
returned to them; the wife and children continued to reside in Poland
and never thereafter saw the deceased. The testimony of the wit
nesses upon whom the board was compelled to depend for identifica
tion, contained contradictions in their evidence and because of this
the board refused to grant compensation. The case was carried to
the Appellate Court of Indiana where the judgment of the industrial
board was affirmed, the court saying:
The only question for our consideration, as stated above, is as to
the sufficiency of the evidence to sustain the finding of the industrial
board that the deceased was not identified as the same person whom

WORKMEN*S COMPENSATION

319

appellant Franciszka claimed to have been her husband and the
father of appellants Julianna and Joseph, and as to whether they
were dependent upon him for support at the time of his death.
While appellant Franciszka, by her deposition, testified that there
Avere two children, the witness upon whom the industrial board was
compelled to depend for identification testified that there were four
children, naming three of them and stating that he did not remember
the name of the fourth. There were other marked discrepancies in
his testimony. It is apparent that the industrial board chose not to
believe the unsupported testimony of witnesses with such a glaring
contradiction in their evidence as here appears. Under circum
stances such as here, where a husband has left his wife in a foreign
country and they have not lived together for so long a period of time
as here appears, before compensation is awarded, the proof that such
an award is justified should be clear and convincing. We fully agree
with the industrial board that an award based upon such unsup
ported and contradictory evidence was not justified. There was no
evidence to support the dependency of appellants except the bare
statement of these two witnesses. I f money were sent by the de
ceased to appellants, it must have been by checks, drafts, or money
orders in some form. Better evidence of such remittances should
have been produced. The industrial board was justified in denying
compensation.
W

o r k m e n ’s

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

u t e — Rasor

S tat

v. Marshall Hall Grain Corporation et al., St. Louis
Court of Appeals {March 11,1930), 25 Southwestern Reporter (2d),
page 506.— Willis Rasor was killed on August 22, 1927, while in the
employ of the Marshall Hall Grain Corporation. The mother of
Rasor filed her claim before the Missouri Workmen’s Compensation
Commission on November 11, 1927. The employer admitted all the
statements in the claim for compensation, but denied that she was
dependent upon her son for support.
Laura Rasor, a widow 60 years of age, lived on a farm 10 miles
from Mountain Grove, Mo. The farm land was of such a poor
quality that cultivation was not profitable; she lived on it without
paying any rent and for a while her son lived with her. While at
home he secured employment and gave his earnings to his mother,
and after he secured employment elsewhere he continued to contrib
ute to her support. From May, 1926, until the time of his death
he had given her about $317.50 and had purchased some cows and
chickens from which an income of about $12 per month was received.
This income from her son’s property together with the amount he
sent her, was her total income and sole source of livelihood with the
exception of some vegetables which she grew in the garden.
The commission found upon this evidence that the claimant was
only a partial dependent and awarded her a compensation of $6 per

DECISIONS OF THE COURTS

320

week for a total of 200 weeks. This was later affirmed by the St.
Louis circuit court and thereupon the widow appealed to the St.
Louis court of appeals.
It was urged by the employer that it was apparent from the
language of the workmen’s compensation act of Missouri (Laws 1927,
p. 490) that the legislature intended for the commission to determine
the question of dependency solely upon the basis of contributions
made from the wages of a deceased employee. The appeals court,
however, held that the legislature intended for the commission to
determine the amount due a dependent solely upon the basis of the
wages received by a deceased employee, and the determination of
dependency rested upon other facts. The court reversed the de
cision of the lower court and held that the claimant was totally
dependent within the meaning of the law, saying in part as follows:
The house in which she lived and the little farm were evidently of
so little value that its owner did not care to charge rent therefor.
The cows were purchased by the deceased, and this was also true
with respect to the chickens. We can not conceive of a case where
the question of total dependency was more clearly shown than in
this one. The claimant had no income of any substantial value aside
from that which she received directly or indirectly from the de
ceased. She did not own any property, and did not have any rela
tives from which she received a single cent, gratuitous or otherwise,
except that which she received from her son, the substantial portion
of which consisted of that part of his wages which he contributed to
her support. She was therefore a total dependent within the mean
ing of the law.
W

o r k m en ’s

C o m p e n s a t io n — D

ependency

— C o n s t r u c t io n

Tviola et al. v. Western TJnion
Telegraph Co., St. Louis Court of Appeals (March 11, 1930), 25
Southwestern Reporter (2d), page 518.— Angelo Triola, 17 years of
age, died as a result of injuries received November 5, 1927, in an
accident arising out of and in course of his employment with the
Western Union Telegraph Co. He was riding his bicycle on the
sidewalks in St. Louis, in violation of a city ordinance, and a rule
•of the employer requiring the employees not to ride bicycles upon
city sidewalks. Triola was struck by a truck and received injuries
resulting in his death.
Upon a hearing before the Missouri Industrial Commission, the
parents were allowed the full amount asked for, subject to a credit of
$150 for burial expenses. An appeal was taken to the circuit court
of St. Louis by the employer where the award of the commission
was affirmed. The employer thereupon appealed the case to the St.
Louis court of appeals, contending that the parents were only partial
dependents and that the award should be decreased accordingly.
S tatute— D

is o b e d ie n c e

ule—

W O R K M E N ^ COMPENSATION

321

The facts show that at the time of the death, Angelo was earning
.an average weekly wage of $15.24; his brother was earning an
average weekly wage of $21.00; and his father an average weekly
wage of $22.80. The family consisted of 10 members and the total
family income amounted to $59.04 per week. After hearing the
contention of both parties, the court said:
We have three theories advocated in this case: First, that this
court was right in its original opinion as to the amount a partial
dependent should receive (25.8 per cent of total death benefit.)
Second, that the part a partial dependent is to receive is determined
by the proportion of his contributions, and that if he contributes
three-fourths of his income to partial dependents, such partial de
pendents would receive three-fourths of the total death benefit, or
if he contributed all his earnings, the partial dependents would
receive the total death benefit, or the same amount the total depend
ents would receive. The third theory is that the death benefit is the
same in all cases, whether there be total or partial dependents, but
the method of distributing to partial dependents is determined by
the percentage which each partial dependent would receive as com
pared to the employee’s total contributions.
We have given this case much thought and careful consideration,
and have come to the conclusion that the second theory above re
ferred to is the correct one, and the one which was really intended
by the legislature.
The court cited sections of the Missouri workmen’s compensation
act (Laws 1927, p. 503) applicable to the facts of this case. Sec
tion c answered the question involved in the case, as to the amount
that a partial dependent should receive, as follows:
I f there be partial dependents, and no total dependents, a part
of the death benefit herein provided in the case of total dependents,
determined by the proportion of his contributions to all partial de
pendents by the employee at the time of the injury j shall be paid
by the employer to each of such dependents proportionately.
The court concluded that section <?, when properly construed,
meant that the part of the death benefit which partial dependents
received, was determined by the proportion of the employee’s wage
which he contributed to such partial dependents and not such
amount as the total contributions bear to the total family income.
As the circuit court awarded compensation on this basis, the award
was affirmed. The court also held that the violation of the city
ordinance and the employer’s regulation did not come within sec
tion 3 of the act, providing that the award be reduced 15 per cent
for violation of regulations, as section 3 did not apply to accidents
occurring on the streets of St. Louis and not immediately connected
with the employer’s business. The court held that such rules,
adopted by an employer and referred to in section 3, were rules
where the employees are engaged in work on the premises of the
employer and where safety devices can be used.

DECISIONS OF THE COURTS

322
W

o rkm en’s

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

Austin Co. v. Browny
Supreme Court of Ohio (June 5, 1929), 167 Northeastern Reporter,
page 874.— Edward Brown was injured October 3,1919, in the course
o f his em ploym ent w ith the A u stin Co., a self-in su rer under section
1465-69, O h io General C ode, section 22 o f the w orkm en’s com pensation
act. B ro w n was awarded com pensation at th e rate o f $15 per
S t a tu t e — M arriage A

fter

I n j u r y O ccurs —

week, w hich was p a id to h im continuously to the date o f h is death,

9, 1925, a tota l sum o f $4,290. T h erea fter his w id o w , S tella
14 m onths a fter the in ju r y , m ade
claim fo r death benefits under section 1465-82, O h io G en eral C ode,
w hich claim was allow ed by the com m ission in the sum o f $6,500
less $4,290 already paid. A f t e r a reconsideration, the order was
A p r il

B row n , to w hom he was m arried

vacated and the claim denied.

T h e w idow then carried the case to

the C ra w fo rd C ou n ty com m on pleas court, O h io , where the claim
was held to be v alid

and

aw ard

granted.

The

A u stin

Co.

appealed the case to the Suprem e C ou rt o f O h io a fter the court o f
appeals affirmed the decision o f the low er court.

T h e em p lo y er

claim ed the w idow was not entitled to com pensation under p a r a

A o f subsection 5.
The supreme court affirmed the decision of the lower court, saying
in part as follows:
I f this case be considered as only presenting a question of the
interpretation of section 1465-82, no great difficulty is found. It
is quite clear that the language found in the latter part of subsection
5 applies to “ all clear cases, meaning thereby all cases other than
a wife living with her husband at the time of his death and children
living with the parent at the time of his death. A wife not being
one of the other cases referred to is not governed by the provisions
relating to other cases.
It is claimed, however, that there is a latent spirit running through
the constitutional provision and the workmen’s compensation act
forbids any one being adjudged a dependent unless the claimant has
received support from a deceased employee as such, that is to say,
received support out of the actual earnings of his employment.
It is claimed that by reason of this claimant never having received
support out of the wages of the deceased employee, she is not a de
pendent within the intent and meaning of that term as employed in
the constitution and the workmen’s compensation act.
We think the answer to the question propounded in this case is
found in the essential nature of workmen’s compensation. It is
neither charity, nor pension, nor indemnity, nor insurance, nor wages,
though, if a definition of each and all of these terms were placed in
parallel columns with a definition of compensation, certain elements
would be found common to all.
The entire subject of workmen’s compensation is statutory. Rights
may be created and destroyed at will by the legislature. It has power
to place limitations upon the rights of widows, and could limit or

g ra p h

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

323

deny altogether any compensation to a widow of a marriage con
tracted after an injury resulting in death. It has not done so. The
judgment must be affirmed.

o r k m e n ’s

C o m p e n sa t io n — D e p e n d e n c y — D ivorced

aughter

Milwaukee Casket
Co. et al. v. Kimball et al., Supreme Court of Wisconsin (April 29,
1930), 230 -Northwestern Reporter, page 627.— W illia m W . D olb ear

R esid in g

w it h

F ath er— E m p lo y m e n t S tatus—

died as a result o f an accidental in ju ry received w hile em ployed by
the M ilw aukee Casket

Co.

B oth were subject to the w orkm en’s com

pensation act at the tim e o f the accident.

L au ra D olb ear K im b a ll,

a daughter o f the deceased, was at the tim e o f her fa th er’s death a
divorced w om an, about

50 years o f age, h av in g a daughter about

20 years o f age, both o f w hom resided w ith the deceased and were
supported b y h im .

She filed claim fo r com pensation and the W i s

consin In d u stria l B o a rd m ade an aw ard in her fa v or.

T h e circuit

court, D an e C ou n ty, W i s ., sustained the aw ard, and the em ployer and
insurer appealed to the Suprem e C ourt o f W isco n sin to set aside the
aw ard.

It appears that in 1920, Laura D. Kimball left her husband and,
together with her child, came to live with her parents. From
November, 1922 to November, 1924, she was employed by a doctor at
$100 per month. Her mother was in failing health at that time and
the daughter quit her employment, assumed the management of the
household, and cared for her mother. Shortly thereafter the de
ceased began giving her $15 per week, and he did this regularly until
his death, besides furnishing the daughter and her child with their
living.
The employer, on appeal, contended that as the daughter was
receiving $15 per week, she was therefore a wage earner and not
dependent upon her father. However, the court held that the evi
dence was u quite satisfactory that the relation was the family
relation of father and daughter rather than employer and employee.”
The court said “ at least it presented a question of fact for the com
mission and its finding is therefore conclusive.” The judgment of
the circuit court sustaining the award of the commission was there
fore affirmed.

W o r k m e n ’ s C o m p e n s a t io n — D e p e n d e n c y — E v id e n c e — Bet or v.
National Biscuit Co., Supreme Court of Montana (July 16, 1929),
280 Pacific Reporter, page 6^1.— The Supreme Court of Montana
ruled in this case that “ actual dependency ” was necessary to secure
compensation, as a major dependent, for an employee’s death.

324

DECISIONS OF THE COURTS

The facts in the case show that Arthur Betor, while employed as
a salesman for the National Biscuit Co., was accidentally killed on
August 6, 1926, while performing his duties. The Industrial Acci
dent Board of Montana awarded the mother of Betor $9.23 per
week for 400 weeks as a major dependent, and this award was
affirmed by the district court of Lewis and Clark County, Mont.
The employer appealed the case to the Supreme Court of Montana,
contending that Anna Betor was not a dependent as defined by the
statute and cited cases to uphold this view. The facts showed
Arthur Betor contributed $40 in May and $40 in June toward the
support of his mother, but the court held this was not evidence of
her dependency upon him. Blibal Betor, the father, was living and
although at the time of the trial he was in debt, the court found he
had been successful financially and “ was a good provider for his
family.” The Supreme Court of Montana reversed the decision of
the lower court and the industrial board, saying that—
The industrial accident board and the trial court gave undue
weight to certain statements of the claimant but overlooked the
controlling and undisputed facts. The positive assertions of a wit
ness can not be taken alone without regard to what he says elsewhere
in his testimony. “ The legal value of a body of evidence is to be
determined by its entire content, and not by any single feature, the
effect of which may be destroyed by admissions or contradictions
emanating from the same source.” (Hood v. Murray, 50 Mont. 240,
146 Pac. 541; Bachman v. Gerer, 64 Mont. 28, 208 Pac. 891.)
Two of the justices dissented and delivered an opinion in which
they held “ the test applied by authorities generally is not whether
the claimant would have been without the necessities of life m the
absence of the contributions, but rather, were the contributions
actually made and relied upon?” They were of the opinion that
there was competent evidence of partial dependency and as there
was such evidence to support the finding and decision of the board
its action should not be reversed by the courts.

W o r k m e n ’ s C o m p e n s a t i o n — D e p e n d e n c y — E v i d e n c e —Novak v.
Industrial Commission et dl., Supreme Court of Illinois (April 17,
1930), 171 Northeastern Reporter, page 158— George Stranz re
ceived a fatal injury arising out of and in the course of his employ
ment in the mines of the Skinner Coal Co. in Illinois. Upon the
application of his mother, Mary Novak, for compensation under the
Illinois workmen’s compensation act, an arbitrator made an award
of $1,650 in her favor, which the State industrial commission upon
review set aside.
On appeal the circuit court of Cook County set aside the award of
the industrial commission and entered the same award as the arbi

w o r k m e n 's

c o m p e n s a t io n

325

trator, whereupon the employer appealed the case to the Supreme
Court of Illinois. The only question for review was the dependency
of the mother and the only evidence heard was her testimony which
was taken before the arbitrator. From her testimony it appears
that her son George Stranz was 21 years of age and unmarried at
the time of the accident, that his father was dead, and that she had
married Thomas Novak with whom she was then living. There were
five children of the first marriage— two girls, who were working in
Chicago; two boys, Harry and George, who had started to work at
the mine; and the youngest, a girl of 15, who lived at home and was
unemployed. Thomas Novak, age 6, a son of the second marriage,
was living at home. Her husband worked for the Sunlight Coal
Co. as a driver for $7.50 a day. She also stated that—
Georg;e was not a boarder and paid no board but lived as one of
the family, turning all his wages over to his mother for her use in
the support of the family. * * * In October, 1927, the month
of George’s death, the three were employed in the mines, and their
wages that month amounted to $322.55, which she received. With
that she bought clothes and groceries and paid expenses for lights
and other things.
The counsel for the employer compared Mrs. Novak’s statement
of expenses with the yearly income of her husband and offered this
comparison as proof that she was in no way dependent upon her son
for support. The court did not sustain this view however, and said
that—Counsel for the plaintiff in error have compared the expense
account of the family with the income of the defendant in error’s
husband, based upon his earnings in October, 1927, and find the
income to be from $2,080 to $2,184 a year and the expenses from
$1,844 to $1,960, and conclude from their calculation that the defend
ant in error was supported by her husband and was not dependent
in any degree upon the assistance of her son for her support This
calculation makes no allowance for the clothing of the family, for
the occasional visits of the doctor, for the payment of taxes, and the
various miscellaneous and incidental expenses incurred by a familv
of five persons and included in Mrs. Novak’s statement, “ I can’t
think of everything else.” Neither does it take into account the
fact that, although the husband in October, 1927, was earning $7.50
a day, during the preceding months he had had employment only
part of the time and at only $3.20 a day, and that during this time
George had contributed to his mother the whole of his earnings of
$3.20 a day. She was at least partially dependent on this contribution
for her support and relied on the aid of George’s earnings for her
means of living.
The court also commented on the fact that the calculation of the
employer’s counsel also ignored the fact that the employment of
Novak was in a coal mine— a seasonal occupation in which working-

DECISIONS OF THE COURTS

326

days were not constant throughout the year but were subject to
considerable interruption. The court concluded the opinion by
saying:
The fact that her husband and her two boys received in October,
and gave to her, $300 received for their work in the coal mines,
did not justify the conclusion that Mrs. Novak’s income from their
joint receipts was $3,600 a year, or that the wages of her husband fur
nished an adequate support for the family or made her independent
of the assistance of her two sons.
The finding of the industrial commission that George Stranz
left surviving him no person entitled to compensation is manifestly
against the weight of the evidence, and the judgment of the circuit
court setting aside the order of the commission and entering an
award of compensation to the defendant in error is affirmed.

W o r k m e n ’s

C om p en sation — D e p e n d e n c y — “ M em ber

Fam

Memphis Fertilizer Go. et al. v. Small et al., Supreme Court
of Tennessee (<January 18, 1980), 22 Southwestern Reporter (2d),
page 1087.— Roosevelt S m a ll, while in the em ploy o f the M em p h is

i l y ”—

F ertilizer C o., received injuries resulting in his death.

B eatrice

S m a ll, his alleged com m on-law w ife, filed suit to recover com pensa
tion fo r herself and fo r her 6-y ear-o ld daughter.

T h e circuit court

o f S h elby C ou n ty, T en n ., granted an aw ard to Jew ell Stevenson, the
daughter, but denied an award to the w ife.
appealed to the Suprem e C ourt o f Tennessee.
chapter

Thereupon the case was
T h e court quoted fr o m

123, A c ts o f 1919, as fo llo w s :

S ec . 30. Be it further enacted, that for the purposes of this act the
following described persons shall be conclusively presumed to be
wholly dependent:
(1) A wife, unless it be shown that she was voluntarily living
apart from her husband at the time of his injury, and minor children
under the age of 16 years. * * *
(3) Wife, child, husband, mother, father, grandmother, grand
father, sister, brother, mother-in-law, and father-in-law who were
wholly supported by the deceased workman at the time of his death
and for a reasonable period of time immediately prior thereto shall
be considered his actual dependents, and payment of compensation
shall be made to them in the order named.

Construing the provisions of the act quoted above, the supreme
court held that subsection 1 of section 30 applied to legitimate chil
dren, while subsection 3 embraced other and different classes of chil
dren who were wholly supported by the deceased workman at the
time of his death and for a reasonable time immediately prior
thereto. Dependency and not relationship was the test.
The eourt concluded that the trial court correctly held that Beatrice
Small was entitled to no compensation.. The facts of the case did not

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

327

even show that she was a common-law wife, and the court held that
it was not the intention of the legislature to provide compensation
for such a person.
Construing section 30, the court said, subsection 1 applies to a
lawful wife who is not voluntarily living apart from her husband,
while subsection 3 refers to a lawful wife not included in subsection. 1.
The decision of the circuit court was therefore affirmed.

C o m p e n s a t io n — D e p e n d e n c y — M i n o r — “ E m
”— Clark et al. v. White et al., Supreme Court of Wisconsin
(January 8, 1929), 222 Northwestern Reporter, page 823.— Owen
Merrick, a minor about 16 years of age, was struck by an automobile
while working on a highway, and sustained injuries that caused his
death. He was the eldest member of a family of seven children.
His father was insane and his mother was dead. Merrick and his
sisters were living at the home of an uncle, who received $70 a month
from the county for their support.
With the help of Merrick the uncle carried on his 93-acre farm
without hiring other help. Merrick attended school and worked
about the farm nights, mornings, and Saturdays, and during the
entire summer. The value of the service rendered exceeded the cost
of supporting the boy. This was one of the considerations which led
the uncle to agree to care for and maintain the younger children.
The uncle was employed by plaintiff Clark in the work of improv
ing a highway, and Merrick had taken his uncle’s place on the day
he was killed.
The Industrial Commission of Wisconsin found that the six sisters
were partially dependent on Merrick and awarded compensation,
which award was affirmed by the circuit court of Dane County, Wis.
The employer thereupon appealed to the Wisconsin Supreme Court.
Mr. Justice Stevens rendered the opinion of the court affirming the
decision of the lower court in granting compensation to the sisters.
He said in part as follows:
W

o r k m e n ’s

ployee

The proof clearly establishes the fact that the work performed by
the deceased during the last year of his life constituted a material
contribution to the support of his sisters. They were in fact par
tially dependent upon his contribution for their support. The serv
ice rendered by the deceased was as clearly a contribution to the sup
port of the sisters as would have been the payment of cash of equal
value.
The deceased was an employee, within the meaning of the term as
used in the workmen’s compensation act, which so defines an em
ployee as to include “ all helpers and assistants of employees, whether
paid by the employers or employee, if employed with the knowledge,
actual or constructive, of the employer.” (Stats. 1925, sec. 102.07,

DECISIONS OF THE COURTS

328

subd. (4).) Deceased was the helper or assistant of his uncle, who
was the employee of the plaintiff. Deceased was at work with the
actual knowledge and express consent of the foreman in charge of the
work.
The commission properly fixed the compensation at double the
amount of the support which the commission found that the sisters
mi ' t reasonably have anticipated that they would have received
from the deceased but for his untimely death. Deceased was a minor
of permit age, who was at work without such permit. Under sub
division (7) (a) of section 102.09 of the Statutes of 1925, it was the
duty of the commission to fix compensation at double the amount that
would otherwise have been recoverable.

W o r k m e n ’s

C o m p en sa tio n — D e p e n d e n c y — M i n o r — L iv in g

a s W a r d o f t h e S t a t e — Advance Ruwiley Go.
Freestone et al., Appellate Court of Indiana (Jidy 2 , 1 9 2 9 ) ,
167
Northeastern Reporter, page 8 7 7 .— A lo n z o Freestone died
O ctober 3, 1927, as the result o f an accident w hich arose out o f and

A p a r t fr o m P a r e n t
v.

in the course o f his em ploym en t b y the A d va n ce R u m ley C o.

F ree

stone’s tw o su rvivin g sons, b y their guardian , filed an application
fo r com pensation.

I n D ecem ber,

1916, M a r y Freestone, the m other

o f these boys, was divorced fro m A lo n z o Freestone and was aw arded
the custody, education, and maintenance o f E rn e st, an in fa n t
m onths old.
support.

T h e fa th er was ordered to p a y

$5 per m on th fo r his

M rs. Freestone m arried again and at th e tim e o f A lo n z o

Freestone’s death, she and E rn e st lived w ith her second husband
on a fa r m in M ich ig a n .

T h e fa th er was g iv en the care and cus

Amos, aged 2 years, u n til fu rth er order o f the court. Amos
lived w ith the fa th er u n til June 23, 1927, when the court com m itted

tod y o f

him to W h it e ’s M a n u a l L a b o r In stitu te at W a b a sh as a delinquent.
A m o s was thereafter under the care and custody o f th a t institution
u n til a fter the fa th e r’s death, when the probation officer o f L a
P orte C ou n ty gave a letter to an uncle o f A m o s fo r h is release in
order th at he m ig h t attend the funeral.

As a result of proceedings under the Indiana workmen’s com
pensation act, compensation was awarded to Amos for 300 weeks
at the rate of $12.07 per week and to Ernest at the rate of 61 cents
per week.
The employer appealed to the Appellate Court of Indiana con
tending that neither of the boys was entitled to compensation. The
basis of this contention was that—
Section 38 of the workmen’s compensation act, as amended in 1919
(Acts 1919, p. 165, ch. 57; sec. 9483, Burns’ Ann. Stat. 1926), provides
that: “ The following persons shall be conclusively presumed to bb
wholly dependent for support upon a deceased employee: * * *
(c) A child under the age of 18 years upon the parent with whom he

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

329

or she is living at the time of the death of such parent, (d) A child
under 18 years upon a parent with whom he or she may not be living
at the time of the death of such parent, but upon whom, at such time,
the laws of the State impose the obligation to support such child.
* * * In all other cases, the question of total dependency shall
be determined in accordance with the fact as the fact may be at the
time of the death, and the question of partial dependency shall be
determined in like manner as of the date of the injury, i f there is
more than one person wholly dependent, the death benefit shall be
divided equally among them, and persons partially dependent shall
receive [no] part thereof. I t there is no one wholly dependent and
more than one person partially dependent, the death benefit shall be
divided among the partial dependents according to the relative extent
of their dependency.”
The court answered this contention, in part, as follows:
Under the workmen’s compensation act as originally enacted (Acts
1915, p. 392, ch. 106, sec. 38), the fact that Amos was not living with
his father at the time of the latter’s death would in itself have ex
cluded him from the class of children conclusively presumed to be
wholly dependent for support upon his father. The amendment
under which he claims compensation (Acts 1919, p. 165, ch. 57),
extends the presumption to certain children not living with the
parent at the time of his death, but only to those “ upon whom, at
such time, the laws of the State impose the obligation to support.” It
is not to oe assumed that the legislature, in using the quoted words,
was creating a new and enlarged obligation on the part of the father
to support his children, but was merely referring to and embodying
therein the existing law of this State, under which the obligation is
largely dependent upon the right to custody. We can not enlarge
the scope of this amendment by reading into it language which would
materially change the existing law, and extend the legal obligation of
a father to support to a case like the present, where the custody of
the child had been taken from the father and transferred to a cus
todial institution, without a decree of the court requiring him to pay
anything toward its support.
It was not necessary for the court to state, in the decree depriving
the father of the custody of his child and committing him to an
institution, that the father was relieved of his prior legal obligation
to support such child. The legal effect of the decree depriving him
of the custody of his child was to relieve him of his legal duty to
support such child so long as the decree of the court remained in
force. I f the court had, by a decree, ordered the father to pay the
whole of the cost of supporting the child while in the institution,
the law would have imposed upon him the obligation to support
such child. The award as to Amos must be, and the same is, reversed.
The award in favor of Ernest is affirmed.
A strong dissenting opinion was delivered by Judge Lockyear,
who said in part as follows:
No order of any court relieving the father of Amos Freestone from
his legal duty to support his children ever having been made, and
if he was not relieved l>y law from his duty to support his child, he

330

DECISIONS OF THE COURTS

was still under a legal obligation to support his child at the time of
his death. When a child is to be sent to an institution, other than a
State institution, unless the father is called before the court and
excused from the obligation imposed upon the father by law, the
obligation remains upon him to support his child while in the insti
tution. In this case, the father was not relieved by law, but was
compelled by the law to support his child.
While the parent’s duty to support his child and his right to
custody and services of the child are usually reciprocal, the parent
remains liable for the support of the child where he is deprived of
its custody on account of his own misconduct or wrongdoing, and
the fact that, as between the parents, the custody of the children has
been awarded to the mother, does not relieve the father of the duty
to support.

W orkmen’ s Compensation—D ependency—M inor—L iving with
E lder B rother— Clark v. Appalachian Power Co., Supreme Court
of Appeals of Virginia (September 1 9 , 1 9 2 9 ) , l l f i Southeastern Re
porter, page 6 1 8 .— C. E. Clark, an employee o f the Appalachian

Power Co., was accidentally killed while engaged in the performance
o f his duties. On July 23, 1924, without contest from the employer,
an award was entered by the Industrial Commission of Virginia
directing the payment of $12 per week, plus cost of medical attention
and burial expenses, to Louise F. Clark, the alleged widow. Under
this award there was paid to Louise F. Clark a payment of $44 and
two additional payments of $48 each. Shortly after the last of these
payments the father of the deceased notified the employer that the
alleged Louise F. Clark had never been married to his son. There
upon, no further payments were made by the employer and in July,
1928, the industrial commission canceled the previous award.
Following that action a claim was filed by Fred Clark, a brother of
C. E. Clark, in which he alleged total dependency and asked for an
award upon that basis. The facts show that at the time of C. E.
Clark’s death, this minor brother, about 16 years of age, had lived
with him for a period of about 11 months. However, he had
returned to Pulaski and was living with his father and mother when
the accident occurred. His father was an engineer for the Norfolk
and Western Railroad, and was making at least $2,700 per year.
The industrial commission refused to grant compensation and the
case was appealed to the Supreme Court of Appeals of Virginia.
The counsel for the employer advanced three reasons for refusing
the claim:
1. Claimant was barred by the statute of limitations.
2. Claimant was not a dependent.
3. Admitting for the sake of argument that claimant was a de
pendent, there was a change in condition to total nondependence
at the time and immediately following the accident.

W pR K M E N 'S COMPENSATION

After reading
Fred Clark was
unnecessary for
In affirming the
as follows:

331

the evidence the court reached the conclusion that
not a dependent of the deceased, therefore it was
them to consider the first and third contentions.
decision of the commission, the court said in part

It is very true, as heretofore said, that the commission found as a
fact that the claimant was a total dependent, and the claimant and
various members of his family have testified that he was a total
dependent; but the facts upon which they based their conclusion do
not justify it.
The deceased never made any cash contribution to the claimant,
and at the time of the accident claimant was not staying with the
deceased and the latter was not contributing anything to his support.
The bare fact that the claimant spent about 11 months with his
brother does not, under the circumstances of this case (and we wish
to confine our remarks to the facts of this case), show the existence
of dependency. Claimant did not go to his brother’s because of
necessity or because of dependency upon him, but at the request of
his brother and as a convenience and accommodation to the latter.
Claimant’s father was amply able to support him and, so far as the
record shows, never refused to do so. * * * The legal obligation
to support his son rested upon his father, who, as heretofore stated,
was amply aWe to take care of not only his son but of his family.
The bare iact that the claimant baldly states that he is a dependent is
not conclusive upon the court, where the undisputed facts show that
there was no actual dependence.

W o r k m e n ’s C om p en sation — D e p e n d e n cy — M in o r — M a r r ia g e or
W i d o w —Reliance

Goal <& GoTce Go. et al. v. Fugat

Full text of Decisions of Courts and Opinions Affecting Labor : Decisions of Courts and Opinions Affecting Labor, 1929-1930 : Bulletin of the United States Bureau of Labor Statistics, No. 548

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