sons, in absence of negative covenants to the contrary, to follow any of the common occupations of life. This right of a citizen to pursue any calling, business, or profession he may choose is a property right to be guarded by equity as zealously as any other form of property. See Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231. "Labor is property. The laborer has the same right to sell his labor, and to contract with reference thereto, as any other property owner." Gillespie v. People, 188 Ill. 176, 58 N. E. 1007 [Bul. No. 35, p. 797]. It can not, indeed, be questioned that an employee, in a case such as this, retains the right to work for a rival laundry if he so chooses, or, having established a laundry business himself, to serve all persons who voluntarily offer him their trade. But in such competition, he must act with utmost fairness, resolving every doubt rather in favor of the interests of the former employer than against them, and exercising, at all times, every precaution to avoid violating, in letter or spirit, the confidence reposed in him.

The judgment of the lower court also finds support in sound principles of public policy. To restrain a person, lawfully engaged in a laundry business, from receiving unlaundered goods from certain former patrons is to sanction, to that extent, the establishment of a trade blacklist, thereby depriving such patrons, without any fault on their part, of the right to have their laundry work done where they will. The constitutional guaranties of liberty include the privilege of every citizen to freely select those tradesmen to whom he may desire to extend his patronage, and equity can not invade or take away this right, either directly or indirectly, without due process of law.

Discussing the claim that the permission to receive work would lead to evasion which would amount to a solicitation, Judge Lawlor said in part:

The decree expressly forbids defendant from in any manner soliciting or attempting to induce, directly or indirectly, such customers to withdraw their patronage from plaintiff. Clearly, conduct on the part of the defendant, his agent, or others in his behalf, such as suggested, would be contra bonos mores and a deliberate invasion of the injunction issued to plaintiff.

Injunctive relief, in any case, must depend upon broad principles of equity rather than on the particular wording of any decree. Conceivably, cases may arise where the court would be warranted in restraining a person, engaged in a business, from "receiving" trade of certain members of the community, but the facts presented here do not demand such relief.

EMPLOYER AND EMPLOYEE-TRADE SECRETS-USE BY FORMER EMPLOYEE-Aronson et al. v. Orlov et al., Supreme Judicial Court of Massachusetts (July 3, 1917), 116 Northeastern Reporter, page 951. The plaintiffs, Abraham Aronson and others, manufactured petticoats in Boston, and sold them to large retail dealers in various parts of the country. In November, 1912, Aronson invented a method of improving the product by making the seams elastic. The

garments were put on the market under the trade name "Flexo Seam." The defendants Fatherson and Wachtel were employees of the plaintiffs, and learned this trade secret through this connection. Later they withdrew from their employment, and with Orlov began the manufacture of a similar article, calling it by the designation of "Wunder Seam." They advertised by letters to the trade in various States, including those who were customers of the plaintiffs, and were known to the defendants to be such. A decree granting the plaintiffs an injunction was entered in the superior court of Suffolk County, and this was affirmed by the Supreme Judicial Court. Judge Rugg delivered the opinion, which was largely taken up with questions as to the rights of the parties arising out of applications for patents on the invention. The following, relating to the use of trade secrets by former employees, is quoted from the opinion:

Apart from the questions arising because of the applications for patents, it is plain that the plaintiff's make out a case for equitable relief on the facts found by the master. The idea of the improvement in the manufacture of garments was Aronson's. It was not a mere nebulous phantom of the fancy, but a definite conception of a material device so simple that its mere statement would convey as clear a notion as would a model of a complicated mechanism. This idea was used rightfully by the plaintiffs. Fatherson was the first of the defendants to know of that idea and he learned of it solely by reason of and in the course of his employment by the plaintiff's. The doctrine is well settled that an employee can not lawfully use for the advantage of a rival and to the harm of his employer confidential information which he has gained in the course of his employment. This rests upon the implied contract, growing out of the nature of the relation, that the employee will not after the termination of his service use information gained during the period of his employment to the detriment of his former employer. This doctrine has been frequently applied in this Commonwealth and it prevails generally. [Cases cited.]

It is also true, as decided by these and other cases, that equity will enjoin interference with the rights of a manufacturer to his own trade secrets and will prevent continuance of violation of duty by a former employee in divulging them, and will give relief in damages for injury already inflicted. There is a plain distinction between instances where employees leave one employer and use their own faculties, skill and experience in the establishment of an independent business or in the service of another, and instances where they use confidential information secured solely through their employment to the harm of their previous employer. The plaintiff's have a clear cause of action against their former employees, Fatherson and Wachtel. The former, at least, has appropriated the Aronson idea for improvement in dress design acquired solely through his employment. The latter participated in, if he did not frame, the scheme whereby Orlov was to embark in the business of manufacturing petticoats in competition with the plaintiff's by the use of the information which

€1919-18-Bull, 246- -6

he and Fatherson had acquired wholly through their employment by the plaintiffs. Orlov in this respect stands no better than the other two defendants. The Aronson idea was communicated to him by one or both of his codefendants. At the first meeting of the three, the previous employment and experience of Fatherson with the plaintiffs formed the subject of the conference. Orlov and Wachtel were well acquainted. The inference is irresistible that one of his dominating motives in forming the arrangement with the other two was the knowledge that there would be at his disposal the Aronson idea of garment design. Under these circumstances he is on the same footing and subject to the same liabilities as Wachtel and Fatherson.

EMPLOYERS' LIABILITY-DEFENSES-CONSTITUTIONALITY OF STATUTE-Superior & Pittsburg Copper Co. v. Tomich, Supreme Court of Arizona (July 2, 1917), 165 Pacific Reporter, page 1101.-Frank Tomich, having been injured in the mine of the company named, brought action against it for damages. Judgment was in his favor in the Superior Court of Cochise County, and the company appealed, alleging that the law was unconstitutional. This question, as far as some of the most important considerations were concerned, had been settled by the decision in Inspiration Consolidated Copper Co. v. Mendez, 166 Pac. 278 (see p. 85), in which it was held that the enactment of such a law declaring liability without fault was within the power of the legislature. Other complaints as to the constitutionality of the statute were held not to be well founded, Judge Cunningham delivering the opinion and saying:

Appellant contends that chapter 6 of title 14 is void for the reason its terms conflict with sections 5 and 7 of article 18 of the State constitution. Section 5 is that:

"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury."

This section does not restrict the power of the legislature to modify or abolish the defense of contributory negligence. The restriction contained in the section is clear that no law shall be enacted which attempts to make the defenses of contributory negligence or assumption of risk, when interposed, determinable by the courts as matters of law, but such defenses are made to depend upon facts when they are properly interposable, and, interposed, they are required to be established by a preponderance of the evidence to the satisfaction of the jury. Whether the plaintiff's negligence contributed to the wrong, or whether the plaintiff assumed the risk and danger from which the wrong arose, must be determined as a fact from the evidence by the jury.

Section 7 commands the legislature to enact an employers' liability law, by the terms of which any employer shall be liable for the death or injury of workmen employed in all hazardous occupations named, and any other industry designated by the legislature, whenever such death or injury is caused by any accident due to a condition or con

ditions of such occupation, except when such death or injury has been caused by the negligence of the employee killed or injured. The only restriction placed upon the legislative power in carrying out said constitutional mandate found in the section of the constitution is the exception, viz.:

Liability is incurred "in all cases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured."

In all other cases the legislative power is unlimited by said sec

tion 7.

A careful examination of chapter 6 of title 14 discloses no violation of such limitation on the power of the legislature. The exception is carefully preserved in paragraph 3154 of the statute. If the injury resulted from an accident arising out of and in the course of labor, service, and employment in a hazardous occupation, and was due to a condition, or conditions, of such occupation or employment, and was not caused by the negligence of the employee the liability to damages exists. If, however, the injury was caused by negligence to which the injured workman contributed, the liability of the employer remains to an amount of the full damages, less the amount of damages attributable to the employee's negligence. In other words, the damages are to be apportioned to the parties, employer and employee, as the negligence attributable to the one is to the negligence attributable to the other. "The fact [appearing] that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee," are the words of the statute. The statute is in full harmony with the constitutional mandate and with its restrictions.

Questions as to the excessiveness of the damages awarded by the jury, and as to the admission and rejection of evidence, and the conduct of the trial, in which the jurors had been allowed to ask questions of the witnesses rather freely, were resolved also in favor of the plaintiff, and the judgment of the lower court was affirmed.

EMPLOYERS' LIABILITY-GUARDS FOR DANGEROUS MACHINERY-ASSUMPTION OF RISK BY SUPERINTENDENT-CONSTITUTIONALITY OF STATUTE-Bowersock v. Smith, Supreme Court of the United States (Mar. 6, 1917), 37 Supreme Court Reporter, page 371.-Sumner I. Smith, superintendent of the Lawrence Paper Co., while engaged in adjusting some unguarded dryer rolls, was crushed between them and killed. His administratrix sued J. D. Bowersock, owner of the factory, for damages, relying upon sections 4676 to 4783 of the General Statutes of Kansas of 1909, which provide for the guarding of dangerous machinery, and for recovery where absence of such guards contributes to death or injury. In defense it was pleaded that it was not practicable to guard the dryer, and that Smith was guilty of contributory negligence; also that he had assumed the risk of injury, as it was his

duty as superintendent to safeguard the machinery. Judgment in favor of the plaintiff was affirmed by the supreme court of the State. Mr. Chief Justice White delivered the opinion, again affirming this judgment, and saying for the most part:

The court instructed the jury, over the objection of the defendant, that, under the statute, contributory negligence was no defense, and that the fact that Smith was employed as superintendent of the factory, with authority to safeguard the machinery, would not bar a recovery, and charged with reference to the burden of proof, in accordance with the provision of the statute relating to that subject. It was held, following previous decisions, that the common-law defenses of contributory negligence, fellow servant, and assumption of the risk were not applicable to suits under the statute. The court, further construing the statute, held that it embraced all employees of every class or rank in the factories to which it applied, and that merely because the deceased was employed as superintendent did not exclude him from the benefits of the act nor relieve the owner from responsibility under it. And it was held that a different result was not required because the deceased had contracted with the owner to safeguard the machinery under the circumstances of his employment. In so ruling the court referred to the evidence, and pointed out that although there was testimony as to the authority of the deceased, under his contract, to safeguard the machinery, at the same time the evidence showed that, in the exercise of such authority, he was under the control of three superiors, all of whom had testified that they did not consider it practicable to safeguard the dryer rolls. Attention was also directed to the notice which the defendant posted with reference to guards on machinery, as showing a control over that subject by the owner. 95 Kan. 96, 147 Pac. 1118.

The case is here because of the asserted denial of rights guaranteed by the fourteenth amendment.

That Government may, in the exercise of its police power, provide for the protection of employees engaged in hazardous occupations by requiring that dangerous machinery be safeguarded, and by making the failure to do so an act of negligence upon which a cause of action may be based in case of injury resulting therefrom, is undoubted. And it is also not disputable that, consistently with due process, it may be provided that, in actions brought under such statute, the doctrines of contributory negligence, assumption of risk, and fellow servant shall not bar a recovery, and that the burden of proof shall be upon the defendant to show a compliance with the act. [Cases cited.]

While not directly disputing these propositions, and conceding that the Kansas statute contains them, and that it is not invalid for that reason, nevertheless it is insisted that the construction placed upon the statute by the court below causes it to be repugnant to the due process clause of the fourteenth amendment. This contention is Lased alone upon the ruling made by the court below that, under the statute, the deceased had a right to recover although he had contracted with the owner to provide the safeguards the failure to furnish which caused his death,-a result which, it is urged, makes the owner liable and allows a recovery by the employee because of his neglect of duty. We think the contention is without merit. It is