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has ever been recognized by this court. On the contrary, it has often been held that an act consciously done--that is, proceeding from the free and voluntary will—is willful, within the statute."
The dissenting opinion is as follows: We do not agree with the majority that every failure on the part of a mine examiner to discover a dangerous condition in a mine is a willful violation of the statute, nor do we think that the cases cited in the majority opinion support that doctrine. A willful violation of this statute must necessarily be a conscious or knowing violation. To hold that a mine examiner is bound to discover a dangerous condition in the mine, even though by the honest application of every known means it is impossible to detect it at the time of the examination, and that a failure to discover such condition under such circumstances is willful, is to read into the statute that which is not there, and is to require of a mine operator that which is impossible for him to perform. This statute is not meant to make the operator an insurer against every accident in his mine which results from dangerous conditions, but only requires him to cause an examination to be made by an authorized examiner to make the required records of the examination, and to mark such places as are found, upon proper examination and the honest use of approved methods, to be dangerous. It is only a failure to make such an examination that constitutes a willful violation of the statute in respect to guarding against dangerous conditions in mines.
PICKETING-POLICE POWER—MUNICIPAL REGULATIONS— Ex parte Williams, Supreme Court of California, 111 Pacific Reporter, page 1035.-J.J. Williams had been arrested for the violation of a municipal ordinance of the city of Los Angeles prohibiting certain acts, among them the picketing of places of employment for the purpose of intimidating, threatening, and coercing employees therein. Williams applied for a writ of habeas corpus, which was denied, as appears from the following opinion of Chief Justice Beatty, who spoke for the court:
This is a petition for a writ of habeas corpus which has been denied by the court.
The prisoner was arrested upon a complaint accusing him of violating a penal ordinance of the city of Los Angeles. The ordinance is quite comprehensive in its enumeration of the acts which it declares to be misdemeanors, and the prisoner was charged in the information with two distinct offenses, as defined by the ordinance: First, with "loitering” on a public street in front of the Fulton Engine Works, for the purpose of inducing and influencing persons to refrain from doing and performing services and labor at said works; second, with "picketing in front of said works, for the purpose of intimidating, threatening, and coercing such persons.
It is argued in support of the petition that the ordinance is invalid. As to the provision concerning “picketing,” for the purpose of intimidation, threatening, etc., I have no doubt that it is a valid exercise of the powers of the local legislature. As to the provisions relating to loitering,” I have very serious doubts. They are so vaguely comprehensive that a person stopping on the street anywhere in the vicinity of a place of business for the purpose of dissuading an employee from continuing in his employment might be convicted of a misdemeanor.
I therefore concur in the order denying the writ, only upon the ground that the charge of picketing for the purpose of intimidation, etc., gives the police court jurisdiction to try the charge.
DECISIONS UNDER COMMON LAW.
BOYCOTTINJUNCTION-LABOR ORGANIZATIONS AS PARTIES INTERFERENCE WITH EMPLOYMENT-PROOF-Irving v. Joint District Council, United Brotherhood of Carpenters, etc., United States Circuit Court, Southern District of New York, 180 Federal Reporter, page 896.-Irving & Casson, partners operating a factory in the State of Massachusetts for the production of fine interior woodwork, had been made the objects of a movement by labor organizations of carpenters and joiners to influence them to run their factory as a closed shop. Letters had been written by officers of the unions to a number of persons with whom Irving & Casson were in business relations, actual or prospective, and instances were set out in the complainant's affidavits in which they had lost business because of notifications coming from the unions that they regarded the firm as unfair. Threats were also shown to have been made to take all union labor off contracts on which Irving & Casson were interested to the extent of furnishing some of the material. An injunction to restrain such acts was prayed for and granted, the case having been heard in July, 1910.
As defendants there were named the unincorporated labor organization of carpenters and joiners and a number of officers and members named individually. The objection was raised that an organization of this sort could not be brought before the court, as to which Judge Ward, who delivered the opinion of the court, said:
The defendants object that the Joint District Council, being a voluntary unincorporated association, is not a citizen of any State, and therefore the court has no jurisdiction of it or of its members generally. I think this objection good. (Chapman v. Barney, 129 U.S. 677, 9 Sup. Ct. 426, 32 L. Ed. 800; Taylor v. Weir, 171 Fed. 636, 96 C. C. A. 438.) The bill may be dismissed as to the Joint District Council and its members generally, and stand as to the other defendants, in accordance with the practice indicated in Oxley Stave Co. v. Coopers' Union (C. C.) 72 Fed. 695, affirmed 83 Fed. 912, 28 C. C. A. 99. There are intimations that service upon some of the members of such associations may be good as against the association and the other members in United States v. Coal Dealers Ass'n (C. C.) 85 Fed. 252, American Steel and Wire Co. v. Wire Drawers' Unions 1 and 3 (C. C.) 90 Fed. 598, and Evenson v. Spaulding, 150 Fed. 517, 82 C. C. A. 263, 9 L. R.A. (N. S.) 904. If these cases mean more than that members of the associations not served may be held guilty of contempt if they knowingly assist in the violation of an injunction which has been granted, I am not disposed to follow them.
The question of sufficient proof of interference with business was raised by the defendants, the various instances of alleged loss of business on account of the action of the organization and its officers being declared not sufficiently precise and authentic. As to this Judge Ward said:
No doubt more and better evidence would be required on final hearing, but all that is needed upon a motion for a preliminary injunction is to satisfy that a cause of action exists and that irreparable injury will be done the complainants unless they are protected. In such a case a preliminary injunction ought to issue.
The court then took up the more general question of the right of the firm to an injunction, which he allowed, speaking as follows:
The right of workingmen to unite for their own protection is undoubted, and so is their right to strike peaceably because of grievances; but their right to combine for the purpose of calling out the workmen of other employers who have no grievances, or to threaten owners, builders, and architects that their contracts will be held up if they or any of their subcontractors use the complainants' trim, is quite another affair. To take the converse of the proposition: Will the defendants admit that employers may combine to prevent any employer from using union labor? May the employers agree not to sell to or contract with anyone who deals with an employer who uses union labor ?
Either of these propositions is destructive of the right of free men to labor for or to employ the labor of anyone the laborer or the employer wishes. See the language of Justice Harlan in Adair v. United States, 208 U. S. 161, 174, 28 Sup. Ct. 277, 52 L. Ed. 436. If the struggle is persisted in between labor and capital to establish a contrary view, ultimately either the workmen or the employers will be reduced to a condition of involuntary servitude.
Whether the complainants do a large business, or, as the defendants allege, a small business, there is no doubt that the defendants by combination between themselves and with others have determined to force them against their will to maintain a closed shop in Massachusetts or go out of business, and to compel all persons in their employment, whether they will or not, to become members of the union or lose their employment. Of certain suggestions in the defendants' papers that the complainants are seeking to prevent the workingmen from organizing and striking and from communicating with each other, it may be said in the words of Brown, J., in the supreme court of Pennsylvania, in Purvis v. Local No. 500, United Brotherhood of Carpenters and Joiners, 214 Pa. 348, 63 Atl. 585:
“The zeal of counsel may account for, but can hardly excuse, the statement in appellants' paper book of the questions involved on this appeal. They are there stated to be: 'Is the dissemination by means of printed notices by a lawfully constituted lodge of union laborers to its members and employers of labor, of its adopted rules by virtue of its constitution forbidding its members to work nonunion material, an unlawful conspiracy? Is it lawful by peaceful means to make effective such rules?' 'From an examination of the averments of plaintiffs' bill, the ample proofs submitted in support of them, and of the facts found by the court below, it is most manifest that the only question before us is whether the appellants were properly enjoined from injuring and destroying the business of the appellees, in pursuance of a conspiracy to do so, as a penalty for their refusal to unionize their mill. This would mean to the appellees, as they aver, that they would be compelled to employ only union workmen, and to yield their free and unrestricted right to select their own employees in the conduct of their business; that they would be compelled to submit themselves to the control of the union, and to put themselves within its power to dictate to them the number of hours to constitute a day's work in their mill, the compensation to be paid therefor, the time of payment thereof, and the selection of their employees. It would be a recognition of the power of the agents of the union to practically control their business.
The particular acts sought to be enjoined in this case are the calling out of the employees in other trades, who have no grievance against their employers, and the notification of owners, builders, architects, and third persons that they are likely to have their operations held up if they use the complainants' trim. Whether the complainants may be found to have other rights on final hearing, and whether persons not parties may be guilty of contempt if they knowingly assist in the violation of the preliminary injunction to be issued, need not now be considered.
Motion granted, with leave to the parties to submit within one week forms of order which they respectively think appropriate under this opinion.
EMPLOYER AND EMPLOYEE-INJURY TO THIRD PERSON BY EMPLOYEE— LIABILITY OF EMPLOYER—SCOPE OF AUTHORITY—Tillar v. Reynolds, Supreme Court of Arkansas, 131 Southwestern Reporter, page 969.-Mattie Reynolds, administratrix of the estate of William Reynolds, sued T. F. Tillar to recover damages for the wrongful death of her husband, William Reynolds. At the time of injury alleged to have occasioned Reynolds's death he was a prisoner working out a sentence of fine and imprisonment for a misdemeanor and was leased to Tillar under a contract with the county of Lincoln in the State of Arkansas. After having been on the convict farm for a week or two Reynolds died as the result, it was alleged, of an assault and whipping at the hands of one Gentry, who was Tillar's warden. Judgment was rendered Mrs. Reynolds in the amount of $3,750, whereupon Tillar appealed, raising three objections: First, that there was a misjoinder of actions; second, that the instruction of the lower court charging the employer with responsibility for his employee's actions was erroneous; and, third, that the evidence did not sustain the verdict. It was also claimed that the verdict was excessive. The joinder of actions referred to was that of bringing together the suit for the benefit of the widow and next of kin of the decesased and the other for the benefit of his estate. This the court held to be proper, stating that if the two actions had been brought separately they could have been consolidated by the court itself.
The instruction complained of was as follows: “You are further instructed that the employer who puts his agent or employee in a place of trust or responsibility, or commits to him the management of his business, is responsible when the agent or employee acting within the scope of his authority, through lack of judgment or discretion, or under the influence of passion, inflicts an unjustifiable injury upon another, even though he go beyond the strict line of his duty or authority.” The portion of the instruction objected to was the clause "even though he go beyond the strict line of his duty or authority.” It appeared from the evidence that the warden compelled Reynolds to strip and lie down across a log or block, face downward, and that he whipped him on the bare back with a leather strap 30 inches long, and from one-half to three-fourths of an inch thick. This strap was fastened to a staff which Gentry used, striking with both hands from 12 to 15 hard blows; one witness stated that he whipped him on the small part of the back. A rule of the penitentiary board prohibits whipping of any convict on his naked body, or at all except by authority of the superintendent, and limits the number of strokes to be administered to ten at any one time.
The court held that the instruction as to the employer's liabilty for his servant's act was not objectionable, saying:
It is undisputed that Gentry, the warden, was defendant's agent in charge of the convict farm at the time Reynolds was delivered to the farm and at the time of his death, and for months thereafter, and that he was instructed to observe the rules laid down by the penitentiary board governing the convicts confined in the penitentiary, and charged by defendant not to depart from said rules in the management and punishment of the convicts placed on the farm. He had the authority to punish, and was acting within the scope of it when he inflicted the injury.
In Ward v. Young, 42 Ark. 543, 544, in discussing, the liability of the master for the tort of his servant, this court said: “If Hawkins was clothed with the authority to protect the property, then his act was, in law, the act of Ward, notwithstanding it may have been contrary to express orders. Having employed the servant to protect his property or to maintain his possession, he is liable for all the acts done in pursuance of his employment, and within the power implied therefrom, even though he expressly directed the servant what to do. Having set in motion the agency for producing mischief, he is bound at his peril to prevent the mischievous consequences." Further: “It is not necessary, in order to fix the master's liability, that the servant should at the time of the injury have been acting under the master's orders or directions, or that the master should know that