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about June 26, 1894, and ended on or about August 6, 1894, commonly known as the "A. R. U." or "American Railway Union" strike, and as to all their employees who were members of the A. R. U., and that such employees of any and all said companies would not be employed by any of said companies without a release and consent from the railway company by which any such employee was last employed, such release and consent being commonly called by railroad men a “clearance,” and that on account of said conspiracy, etc., he was prevented from obtaining employment. In the trial court, an inferior court in the State of Illinois, the defendants entered a demurrer to the plaintiff's declaration, which was sustained by the court and a judg ment in favor of the defendants was rendered. The plaintiff appealed to the appellate court for the first district of the State and said court affirmed the judgment of the lower court. He then carried the case upon a writ of error to the supreme court of the State, which rendered its decision October 19, 1900, and affirmed the judgment of the appellate court.

The opinion of the supreme court was delivered by Chief Justice Boggs, who used the following language therein:

Counsel for plaintiff in error [McDonald], in support of his insistence that the circuit court erred in holding the declaration did not state a cause of action, says: "The question presented by the declaration and demurrer (when shorn of legal phraseology) is simply this: Is it lawful for all the employers in any line of industry to combine and agree that they will not hire any of each other's employees who have left the service of any one of them, unless the employer whose service he has left gives his consent that such employee may be employed? Or, to put it in another form: Is it lawful for all the employers in any line of industry to combine and conspire together to punish a man who leaves their service during a strike by refusing him employment, and thus preventing him from securing employment at his trade, unless his former master emancipates him by giving his consent to his employment?"

We do not think the question in either of its forms was presented to the trial judge by the pleadings. The allegation of the declaration is: Said defendant railroad companies [defendants in error and other railroad corporations named therein] entered into a conspiracy, agreement, and understanding that they, the said railroad companies, would furnish erch to the other information as to all their employees who had committed offenses, or who were charged with having committed offenses, and also as to all their employees who had left their service during the strike which commenced on or about June 26, 1894, and ended on or about August 6, 1894, commonly known as the 'A. R. U.' or American Railway Union' strike, and as to all their employees who were members of the A. R. U., or American Railway Union, and that such employees of any and all said companies would not be employed by any of said companies without a release and consent from the railway company by which any such employee was last employed, such release and consent being commonly called by railroad men a clearance."" The meaning of the averment is equivocal. Counsel for plaintiff in

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error, ignoring a portion of the language, construes the declaration to charge that said defendant corporations agreed that former employees of either company should be required to have an instrument expressing the consent of the former employer to the subsequent employment by another company. That portion of the averment, alone considered, would as well bear the other construction: that the agreement was that such employee should show he had been released from his former employment or had quit with the consent of his employer. But the averment in its entirety is to be resorted to to ascertain the true meaning of the instrument denominated a "release and consent," and, if two or more meanings present themselves, that which is most unfavorable to the pleader is to be adopted. (4 Enc. Pl. & Prac., 759.) The pleader, in obedience, as we must assume, to his duty to state issuable facts, distinctly and definitely declares the "release and consent" referred to to be that which is commonly known as, and called among railroad employees, a "clearance." The trial court then properly held the averment of the declaration to mean that the "release and consent" instrument referred to in the declaration was the ordinary clearance or clearance card in common use among railroad corporations and their employees.

Under every rule of construction of pleadings, there is no issuable averment that the companies defendant agreed the consent of either should be essential to the employment by the other of such companies of a discharged employee, but only that an employee who had voluntarily quit the employ of either of the companies during the strike should not be employed by the other unless he could produce the "clearance" or "clearance card" in common use among railroad circles, and commonly called by railroad men a "clearance. The declaration, by its own language, explains that the instrument of "release or consent" referred to by the pleader is simply that known and commonly called a "clearance" among railroad men. It is not averred the defendant companies (defendants in error here), or any of the corporations named in the declaration, agreed or had an understanding that employees who had joined in the strike mentioned in the declaration should not be granted "clearance cards." On the contrary, the inference deducible from all that is said on the point in the declaration is that the railroad companies continued to grant clearances after the strike as before, and that plaintiff in error applied to defendant in error, the Illinois Central Railroad Company, for a "clearance card.” The declaration does not charge said defendant company refused to grant him a "clearance card" or a "clearance" setting forth truthfully all facts proper to be stated in a "clearance card," but the language of the declaration is that said company refused to give him such an instrument as would "enable him to obtain employment in the railroad business."

In what respect the release and consent or clearance which it is plainly inferred the company was willing to give the plaintiff was insufficient to enable him to obtain employment from other railroad corporations is not disclosed. The declaration does not charge that the Illinois Central Railroad Company refused to state fully and fairly all facts proper to be inserted in such an instrument, or that it inserted or desired to insert in the clearance any statement that was false or injurious to him, or that had no proper place in his clearance paper. The company was not required to give him a clearance that would enable him to get

employment from other companies operating railroads. As we said in the Jenkins case [174 Ill., 398]: "Such a card is in no sense a letter of recommendation, and in many cases might, and probably would, be of a form and character which the holder would hesitate and decline to present to any person to whom he was making application for employment." Whether the charge included in the question formulated by the counsel for the plaintiff in error would constitute a cause of action was not presented to the trial court by the declaration, and we agree with the view entertained by the trial court, that the declaration failed to state a cause of action.

EMPLOYERS' LIABILITY-CONTRACT OF INDEMNITY-RIGHTS OF EMPLOYEE AGAINST INDEMNITOR-Beacon Lamp Co. et al. v. Travelers' Insurance Co. et al., 47 Atlantic Reporter, page 579.-This was a bill brought in the court of chancery of the State of New Jersey by the Beacon Lamp Company and Aaron Moses, its trustee in bankruptcy, against the Travelers' Insurance Company and Mary Bardzik to recover an amount for which it had insured the lamp company against loss from liability for damages on account of personal injuries to employees caused by the negligence of the assured. The defendant insurance company demurred to the bill and to the answer by way of crossbill of its codefendant, Mary Bardzik. The court of chancery rendered its decision November 7, 1900, and overruled the demurrers. Vice-Chancellor Pitney delivered the opinion of the court, in which he stated the facts of the case and several interesting points of the decision in the following words:

The complainant [the lamp company] and its trustee in bankruptcy claim to occupy the position of a surety for the defendant insurance company, which they claim occupies the position of principal debtor to the defendant, Mary Bardzik. The object of the original bill is to enforce the payment by the insurance company to the other defendant, Bardzik, of the debt so due in exoneration of the bankrupt's assets. The crossbill of Miss Bardzik is aimed at the insurance company, and is based, not upon any privity of contract between her and the insurance company, but upon the fact that she has a demand by judgment against the complainant, against which demand complainant is indemnitied by the insurance company; and she claims that out of these facts arises an equity on her part to demand payment directly from the insurance company.

The lamp company, complainant, being engaged in carrying on a factory, purchased from the insurance company, defendant, a policy of insurance, by which it agreed to indemnify the lamp company, for the term mentioned, against loss from common-law or statutory liability for damages on account of bodily injury accidentally suffered by any employee caused by the negligence of the assured, to the extent of not more than $5,000 incurred and suffered by one individual, and subject to certain enumerated conditions and exceptions not necessary here to be stated, except the fifteenth, which provides that "no action shall lie against the company, as respects any loss under this policy, unless it shall be brought by the assured himself to reimburse him for loss actually sustained, and paid by him in satisfaction of a judgment

after trial of the issue." During the life of this policy Miss Bardzik was employed by the lamp company in its factory, and suffered personal injury under such circumstances as to render the lamp company liable to her for damages, and upon a recovery by her against the lamp company to render the insurance company liable to indemnify the lamp company to the extent of not more than $5,000. This is admitted by counsel of the insurance company. Miss Bardzik brought suit against the lamp company, the defense of which was conducted by the insurance company, and resulted in a verdict for $6,000. The facts show, and it is admitted by the counsel of the insurance company, that, if the lamp company had paid Miss Bardzik this judgment, a cause of action at common law would have arisen at once in its favor against the insurance company. What actually occurred was this: On the day that judgment was entered, and before execution was levied, the lamp company was thrown into bankruptcy on the petition of one of its creditors, and enjoined from paying Miss Bardzik, and she was enjoined from enforcing her judgment against it. The complainant Moses was duly appointed trustee in bankruptcy. This state of facts seems to me to clearly place the three parties to this suit in the relation toward each other which the complainant and Miss Bardzik claim that they occupy. As between Miss Bardzik and the lamp company, and without regard to the policy of insurance, the lamp company is the debtor and Miss Bardzik is the creditor; and they bear the same relation to each other that the owner of land who has given a bond and mortgage does to the holder of the mortgage. But when we introduce the element of the policy of insurance given by the insurance company, the situation of the parties is, in equity, changed, precisely as it is in the case where the giver of a bond and mortgage conveys the land, and the grantee assumes the payment of the bond and mortgage as a part of the consideration money. once, in such a case, in the view of a court of equity, as between the grantor and grantee of the land, the grantee becomes the principal debtor to the holder of the bond and mortgage, and the bondsman and mortgagor becomes surety for the grantees; and that change of relationship inures to the benefit of the mortgagee. He may still treat his bondsman as his debtor, and sue him at law; or he may treat him as a surety, and claim through that relation the benefit of the covenant of the grantee to pay the debt; and this he may do notwithstanding the insolvency of the mortgagor.

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The principal point, however, made by the insurance company against the complainant's bill is based upon the severe language found in the condition above recited: "No action shall lie against the company as respects any loss under this policy, unless it shall be brought by the assured himself to reimburse him for loss actually sustained, and paid by him in satisfaction of a judgment after trial of the issue.” This language, when strictly construed, does certainly go a long way toward sustaining the defendant's position. But the effects ascribed to it by counsel are so contrary to the manifest right and justice of the case that the court will not adopt such construction, unless clearly compelled thereto. Counsel for complainant and for Miss Bardzik contend, first, that the complainant's bill in equity is not such an action as is forbidden by the clause; that an action at law is there contemplated, resulting in a peremptory judgment for a fixed sum; and that

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the clause was intended to protect against actions at law being brought before the liability of the insured to the injured party was established by a judgment; and to avoid such actions as Sparkman v. Gove, 44 N. J. Law, 252; and Hoppaugh . McGrath, 53 N. J. Law, 81; 21 Atl., 106; and, further, that this suit is not based, strictly speaking, on the contract, but rather on the complainant's equity arising out of the facts of the case. Now, although it is well settled that at law the ordinary contract of insurance is treated as a direct one between the parties, leading to the relation of debtor and creditor, yet this particular form of contract leads to the relation of principal and surety. The real creditor is Miss Bardzik, and the real debtor is the insurance company, and the insured named in the contract, the lamp company, occupies the position of a mere surety. Hence, it is argued, the right of the complainant is based upon that relation, and not on contract. In fact, the action is one for the specific performance of the contract by the insurance company to indemnify the complainant, and such actions are so classed by the commentators. Hence, it is argued, the case appears from an equitable standpoint precisely as if there were no contractual relations between the insurance company and the lamp company, and the attitude of principal and surety between those parties arose, as well it might, and often does, arise, out of the bare facts. I am inclined to think this view is sound. Giving the clause in question its strictest construction, it yet seems to me that a chancellor will not permit it to stay his hand in enforcing a plain equity.

As to the crossbill, I think the objections raised have less force, if possible, than as against the complainant. Miss Bardzik has a claim against the lamp company based upon her judgment. Under the peculiar circumstances of the case that is really the debt of the insurance company, and on the principles previously stated she is entitled to have the benefit of the insurance company's covenant, notwithstanding the insolvency, and her inability to realize her judgment against the lamp company.

EMPLOYERS' LIABILITY-DUTIES OF THE EMPLOYER-ASSUMPTION OF RISK BY THE EMPLOYEE-Felton v. Girardy, 104 Federal Reporter, page 127.-This was an action brought by the administratrix of Charles Beckert to recover damages for the negligent death of the intestate while in the employ of the defendant, one Felton. The evidence showed that Beckert was employed in an engine repair shop; that he was ordered by the foreman of the shop to get into the fire box of a locomotive engine and remedy a leak; that though the fire had been drawn the steam gauge still showed a pressure of 16 pounds; that leaky boiler flues are often plugged to prevent the escape of steam and water into the fire box; that sometimes the end of such a flue is threaded and a brass screw plug is tightly screwed in, and that at other times a tapering iron plug is driven in with a hammer; that both methods were in use in this engine; that when a flue plug leaks it is first necessary to determine whether it is a screw or driven plug, and if it is a screw plug the leak can often be stopped by tightening it with a wrench, and if it is a driven plug it is ordinarily tightened

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