Page images
PDF
EPUB

The record of this case does not give the opinion of the supreme court, delivered when it affirmed the action of the superior court, but the syllabus of the same, prepared by the supreme court, is shown, and is in the following language:

Congress not having legislated upon the subject of the offense of aiding articled seamen or apprentices to desert or leave a foreign vessel while in the waters of this State, the legislature of the State had the right and power to enact section 655 of the penal code, making it a misdemeanor for any person to aid or induce an articled seaman or apprentice to desert from or leave his vessel while in the waters of this State. The act in no way attempts to regulate or interfere with commerce, but is an aid thereto. Where the subject is local, and not national, in its nature, and does not require a uniform system of regulation, then, in the absence of legislation on it by Congress, it may be regulated by the State.

COXSTITUTIONALITY OF STATUTE-PAYMENT OF WAGES— Commonwealth v. Hillside Coal Co., 58 Southwestern Reporter, page 441.--An indictment against the above-named company for failing to pay an employee in lawful money was dismissed in the circuit court of Muhlenberg Courty, Ky., and the Commonwealth appealed the case to the court of appeals of the State.

Said court rendered its decision September 27, 1900, and reversed the decision of the lower court, and its opinion, delivered by Chief Justice Hazelrigg, fully sets forth the facts in the case. It reads as follows:

The appellee is engaged in the mining industry, employing more than 10 men, and although able financially to do so, failed to pay in lawful money an employee on the 16th of April, 1899, the wages due bim for the preceding month. A demurrer to the indictment, which was found on April 26, 1899, and which charged substantially the foregoing facts, was sustained by the trial court; hence this appeal by the Commonwealth. Section 244 of the constitution provides that all Wage-earners in this State employed in factories, mines, workshops or by corporations shall be paid for their labor in lawful money. tion 1350 of the Kentucky statutes provides that one who violates the provisions of section 24 of the constitution shall be deemed guilty of a misdemeanor, and be punished by a fine of not exceeding $500 for each violation. A still later statute (section 2739a, Ky. St.), it being the law under which the present indictment was found, provides as follows: “Sec. 2739a. (1) That all persons, associations, companies and corporations employing the service of ten or more persons in any mining work or mining industry in this Commonwealth, shall on or before the sixteenth day of each month, pay for the month previous, such servant or employees on his or their order in lawful money of the United States the full amount of wages due such servant or employees rendering such services. But if such person, corporation or company, after using due diligence, is unable to make said payment as above required, he or it shall within fifteen days thereafter make out a pay-roll and statement of amount due each employee and also a duebill for said sum bearing interest from said sixteenth day of the month, and deliver same to each of said employees.” A succeeding section makes it unlawful for one employing such servants or employees to coerce or require them to deal with, or purchase merchandise from, any person or company, or at any place or store, or to exclude laborers from work, for failing to deal with any person, or at any place or store, or to blacklist them for such failure, etc. A third section makes a violation of the preceding sections a misdemeanor, and fixed the punishment of the offender at a fine of not less than $50, nor more than $100.

A preliminary objection to the indictment by the appellant is that, as the operator has fifteen days after failing to pay within which to execute his duebill, no indictment can be found until after the expiration of this time. It will be seen, however, that one who is able to pay is given no such time. The averment of the pleading is that the appellee is amply able to pay the wages in question, and hence the indictment charges an offense under the terms of the law, and was not prematurely found.

In the second place, it is claimed that the statute is a special one, in that its operation is limited to those mine owners who work ten or more miners, and is therefore obnoxious to the constitutional provision prohibiting special legislation “regulating labor, trade, mining, or manufacturing.” (Subsection 24, sec. 59, Const.) The constitution does so prohibit, but we do not regard this as special legislation, within the meaning of the law. In so far as the statute may discriminate in favor of wage-earners engaged in mining work or industry-a discrimination vigorously denounced in some jurisdictions and as vigorously upheld in others—the statute simply follows the lead of the organic law [the constitution] and can not, therefore, be said to be contrary to it. And, when we look to the purpose in view in the adoption of such legislation, we think the classification or apparent discrimination made in the statute is permissible, because it is natural and reasonable, and, moreover, entirely consistent with the end sought to be accomplished by the organic law. The abuse sought to be cor rected was the imposition practiced on the miners by the operation of mines by forcing them, directly or indirectly, into dealing with the “company stores," where goods at exorbitant prices were paid for wages instead of money. This evil can hardly be practiced at small concerns, or where less than ten miners are employed. In effect, the lawmakers said there is in small concerns using less than ten men practically no such evil as the constitution seeks to suppress; therefore we ignore the small concerns, and apply the benefit of the constitutional provision to that portion of the class only which needs the benefit. The organic law makes the general classification in the first instance, and this fact cuts short all discussion of its constitutionality which might otherwise grow out of the special application to miners. The statute then erects a class within a class, and this is allowable if based on reasonable, natural, and consistent grounds. We think the indictment charges an offense under the law, and the demurrer ought to have been overruled. Judgment reversed for further proceedings.

EMPLOYERS' LIABILITY-CONSTRUCTION OF STATUTE-NEGLIGENCE OF THE EMPLOYER—Stewart v. Ferguson, 58 Northeastern Reporter, page 662.-An action was brought in an inferior court of the State of New York by Thomas C. Stewart, administrator, against John W.. Ferguson to recover damages for alleged negligence causing the death of Andrew C. Stewart, the plaintiff's intestate. Said intestate was in the employ of the defendant, Ferguson, and while engaged in laying brick in the wall of a building which the defendant was erecting, the scaffold upon which he was standing, which the defendant had caused to be erected, fell and caused his death. He recovered a judgment as a result of the trial, which was affirmed by the supreme court of the State, appellate division, first department, upon appeal. From this decision the defendant appealed the case to the court of appeals of the State, which rendered its decision November 20, 1900, and affirmed the judgments of the lower courts.

The opinion of the court of appeals, delivered by Judge Landon, contains the following language:

There was evidence tending to show how the scaffold was constructed, but not tending to show any particular structural weakness. There was no evidence tending to prove the cause of the fall of the scaffold other than the fall itself. The trial court instructed the jury that the falling of the scaffold raised a presumption of the negligence of the defendant in its construction, and he refused to charge that the happening of the accident created no presumption of negligence on the part of the defendant. The charge was not excepted to, but the refusal was; but both charge and refusal may be considered, because the charge made the refusal more pointed and impressive. Before the passage of the labor law (chapter 415, Laws 1897) it had been held that the falling of a scaffold without any apparent cause was prima facie evidence of negligence on the part of the person bound to provide it.

At this point the opinion cites a number of cases, and then continues as follows:

These cases proceeded upon the theory that, if the scaffold nad been properly constructed, in the absence of other ascertained cause of its fall, negligence in its construction or maintenance might be presumed. In Butler v. Townsend, 126 N. Y., 105; 26 N. E., 1017, the negligent act which caused the fall of the scaffold was ascertained, and the question in controversy was whether it was the negligence of the master or of his servants. The court held that the scaffold was not a place in which to perform labor, but an appliance for use in its performance, and therefore the master's duty was that which he owed his servants in respect of appliances, and not of places; and that his duty to his servants was performed in respect of the scaffold by furnishing proper materials for its construction, and competent workmen to construct it; and that he could commit the details of its construction to such servants; and that their negligence in the execution of these details resulting in an injury to a fellow servant was not the master's negligence. In Kimmer v. Weber, 151 N. Y., 417; 15 N. E., 860, a scaffold fell,

and the same rule was applied. Assuming the law to be as stated in the two classes of cases, the case before us falls within the class in which no other cause of the fall of the scaffold was ascertained except as inferred from the fall itself, and not within the class in which it was otherwise ascertained. But, if within the latter class, then we think sections 18 and 19 of the labor law enlarge the duty of the master or employer, and extend it to responsibility for the safety of the scaffold itself, and thus for the want of care in the details of its construction. These sections provide:

“Sec. 18. Scaffolding for use of employees. A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechan. ical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.

“Sec. 19. All swinging and stationary scaffolding shalĩ he so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon, when in use," etc.

This section differs from section 1, c. 314, Laws 1885, in this respect: That section provides for the punishment of knowingly or negligently doing the acts mentioned in this section. This section omits the words “knowingly or negligently,” and declares that the acts shall not be done. The plaintiff would have to prove either knowledge or actual negligence under the earlier act, and the defendant, no doubt, could invoke for his protection upon the charge of negligence the distinction between his negligence and that of his servants, as laid down in the case of Butler 2. Townsend, supra. This probably explains why the earlier act was not noticed in Butler v. Townsend, Kimmer v. Weber, supra, and in the cases in the appellate division cited by the appellant. Section 18 is a positive prohibition laid upon the master without exception upon account of his ignorance or the carelessness of his servants. The evidence tended to show that this scaffold was not orerloaded, but was bearing the weight usually required in the performance of the labor for which it was an appliance. Prima facie it was so constructed as to bear less than one-fourth the weight required by section 19. Its fall, in the absence of evidence of other producing cause, points to the omission of the duty enjoined by the statute upon the defendant to the plaintiff in its construction, and points to it with that reasonable certainty which usually tends to produce conviction in the mind in tracing events back to their causes. It is circumstantial evidence, and, if it does convince the jury, it justifies their verdict.

EMPLOYERS' LIABILITY--- RAILROAD COMPANIES — FELLOW - SERV. ANTS-CONSTRUCTION OF STATUTE- Missouri, Texas and Kansas Rail. way Co. v. Baker, 58 Southwestern Reporter, page 964.-In the district court of Hill County, Tex., a hearing was had upon the suit of S. M. Baker against the above-named railway company for damages for injuries sustained by him while in its employ. He alleged that the injury

was caused by the negligence of a foreman of a switching crew, of which he himself was a member, while the crew was engaged in making up a train to be sent out on the road. The company put in a special plea, alleging, among other things, that if Baker's injuries were caused by the negligence of any of its employees that said employees, admittedly members of the same switching crew with the plaintiff, were his fellow-servants, for whose negligence the company was not liable. The plaintiff filed a demurrer to this plea, alleging that such a case as the plaintiff's was excepted from the operation of the fellow-servant rule of the common law by article 4760f of Sayles's Civil Statutes. The court sustained this demurrer and rendered a judgment in favor of the plaintiff, and the defendant company appealed the case to the court of civil appeals of the State, which rendered its decision October 13, 1900, and sustained the judgment of the district court.

The opinion of the court of appeals was delivered by Judge Templeton, and the following is quoted therefrom:

It is provided by article 1760f, Sayles's Civ. St., that railway companies shall be liable for all damages sustained by any servant thereof, while engaged in the work of operating the cars, locomotives, or trains of the corporation by reason of the negligence of any other ser ant. The appellant insists that this statute applies only to train crews. We think that the language of the statute is broad enough to include all of the employees of the company engaged in operating its locomotives and cars in the yards, as well as on the road, and to embrace those handling the locomotives and cars in making up trains to be sent out on the road. The cars and locomotives, while being propelled about the yards to be made into a train, are being operated as much as when they are being propelled along the road after they have been made into a train, and a : witchman engaged in directing the movements of the cars and locomotives in the yards and in making couplings is as much engaged in operating the same as a brakeman or porter while doing similar work on a made-up train.

DECISIONS CNDER COMMON LAW.

BLACKLISTING-ACTION FOR DAMAGES-SUFFICIENCY OF DECLARATION

- Me Domald 1. Illinois Centrul Railroad Co., 58 Virtheastern Reporter. page 103.-Action was brought against the above-named railroad company and others by William F. VeDonald to recover damages for blacklisting. He alleged that he had been for five years in the employ of said company as a switchman and conductor; that on or about June 26, 1994, he voluntarily left the service of the company as one of a number of strikiny employees; that said company and the other defendant railroad companies entered into a conspiracy, agreement, and understanding with other railroad companies, having lines of railway running into the city of Chicago, to the effect that they would furnish, each to the other, information as to all their employees who had left their service during the strike which commenced on or

« PreviousContinue »