« ForrigeFortsett »
an employer to agree with a union to discharge a nonunion workman for an arbitrary cause at the request of the union. Berry v. Donovan, 188 Mass. 353, 74 N. E. 603. A fortiori a labor union cannot by a strike refuse to work with another workman for an arbitrary cause. For the general proposition that what is lawful for an individual is not necessarily lawful for a combination of individuals see Quinn V. Leathem  A. C. 495, 511; Mogul Steamship Co., Limited, v. McGregor, Gow & Co., 23 Q. B. D. 598, 616, on appeal  A. C. 25, 45; Gregory V. Brunswick, 6 M. & G. 205, on appeal 3 C. B. 481. It is in effect concluded by Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330.
These being the general principles, we are brought to the question of the legality of the strike in the case at bar, namely, a strike of bricklayers and masons to get the work of pointing, or, to put it more accurately, a combination by the defendants, who are bricklayers and masons, to refuse to lay bricks and stone where the pointing of them is given to others. The defendants in effect say we want the work of pointing the bricks and stone laid by us, and you must give us all or none of the work.
The case is a case of competition between the defendant unions and the individual plaintiffs for the work of pointing. The work of pointing for which these two sets of workmen are competing is work which the contractors are obliged to have. One peculiarity of the case therefore is that the fight here is necessarily a triangular one. It necessarily involves the two sets of competing workmen and the contractor, and is not confined to the two parties to the contract, as is the case where workmen strike to get better wages from their employer or other conditions which are better for them. In this respect the case is like Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, on appeal (1892] A. C. 25.
The right which the defendant unions claim to exercise in carrying their point in the course of this competition is a trade advantage, namely, that they have labor which the contractors want, or, if you please, cannot get elsewhere; and they insist upon using this trade advantage to get additional work, namely, the work of pointing the bricks and stone which they lay. It is somewhat like the advantage which the owner of back land has when he has bought the front lot. He is not bound to sell them separately. To be sure the right of an individual owner to sell both or none is not decisive of the right of a labor union to combine to refuse to lay bricks or stone unless they are given the job of pointing the bricks laid by them. There are things which an individual can do which a combination of individuals cannot do. But having regard to the right on which the defendants' organization as a labor union rests, the correlative duty owed by it to others, and the limitation of the defendants' rights com
ing from the increased power of organization, we are of opinion that it was within the rights of these unions to compete for the work of doing the pointing and, in the exercise of their right of competition, to refuse to lay bricks and set stones unless they were given the work of pointing them when laid. See in this connection Plant v. Woods, 176 Mass. 492, 502, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330; Berry v. Donovan, 188 Mass. 353, 357, 74 N. E. 603.
The result to which that conclusion brings us in the case at bar ought not to be passed by without consideration.
The result is harsh on the contractors, who prefer to give the work to the pointers because (1) the pointers do it by contract (in which case the contractors escape the liability incident to the relation of employer and employé); because (2) the contractors think that the pointers do the work better, and if not well done the buildings may be permanently injured by acid; and finally (3) because they get from the pointers better work with less liability at a smaller cost. Again, so far as the pointers (who cannot lay brick or stone) are concerned, the result is disastrous. But all that the labor unions have done is to say you must employ us for all the work or none of it. They have not said that if you employ the pointers you must pay us a fine, as they did in Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287. They have not undertaken to forbid the contractors employing pointers, as they did in Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330. So far as the labor unions are concerned the contractors can employ pointers if they choose, but if the contractors choose to give the work of pointing the bricks and stones to others, the unions take the stand that the contractors will have to get some one else to lay them. The effect of this in the case at bar appears to be that the contractors are forced against their will to give the work of pointing to the masons and bricklayers. But the fact that the contractors are forced to do what they do not want to do is not decisive of the legality of the labor union's acts. That is true wherever a strike is successful. The contractors doubtless would have liked it better if there had been no competition between the bricklayers and masons on the one hand and the individual pointers on the other hand. But there is competition. There being competition, they prefer the course they have taken. They prefer to give all the work to the unions. rather than get nonunion men to lay bricks and stone to be pointed by the plaintiffs.
Further, the effect of complying with the labor unions' demands apparently will be the destruction of the plaintiff's business. But the fact that the business of a plaintiff is destroyed by the acts of the defendants done in pursuance of their right of competition is not decisive of the illegality of them. It was well said by Hammond, J., in Martell
v. White, 185 Mass. 255, 260, 69 N. E. 1085, , example Lord Watson at page 99; Lord 1087, 64 L. R. A. 260, 102 Am. St. Rep. 341, Herschell at page 129; Lord McNaghten at in regard to the right of a citizen to pursue page 168) that it was lawful for either to his business without interference by a com strike to get this work from the other. But bination to destroy it: “Speaking generally, the decision in Allen v. Flood went off on however, competition in business is permitted, another ground. See Lord Halsbury, Ch., although frequently disastrous to those en in Quinn v. Leathem  A. C. 495. gaged in it. It is always selfish, often sharp, The defendants have urged upon us the and sometimes deadly.”
case of Bowen v. Matheson, 14 Allen, 499. We cannot say on the evidence that point But although so far as the third cause of ing is something foreign to the work of a action here in question is concerned we bricklayer or a stone mason, and therefore have reached the result arrived at in that something which a union of bricklayers and case, we have reached it an other grounds. stone masons have no right to compete for That case came up on demurrer and the or insist upon and so to bring the case ground on which the case was decided was within Carew V. Rutherford, 106 Mass. 1, that on the allegations in the declaration 8 Am. Rep. 287; March v. Bricklayers' and it was to be treated as one of the class of Plasterers' Union No. 1 (Conn.) 63 Atl. 291; cases of which Parker v. Huntington, 2 and Giblan v. National Amalgamated Labour Gray, 124, is the leading case in this comers' Union (1903] 2 K. B. 600. On the con monwealth, and Bilafsky V. Conveyancers' trary the evidence shows that in Boston Title Ins. Co. (Mass.) 78 N. E. 534, is the the pointing is done to some extent by last, namely cases in which the allegations bricklayers and stone masons, and there is of conspiracy are not allegations of a torno evidence that the trade of pointing exists tious act in and of themselves, but are outside that city.
simply allegations that the defendants joined The protest of the defendant unions in doing acts otherwise
alleged to be against the plaintiffs' being allowed to or tortious. It is not now material to inganize a pointers' union is not an act of quire whether Bowen v. Matheson should or oppression. It is not like the refusal of should not have been held to belong to this the union in Quinn V. Leathem  A. class of cases, for it is settled in this comC. 495, to work with the nonunion men or monwealth, as we have already said, that to admit the nonunion men to their union. the line within which a combination of inThe defendants' unions are not shown to dividuals like a labor union must confine be unwilling to admit the plaintiffs to mem its actions is a much narrower one than bership if they are qualified as bricklayers that within which the same individuals actor stone masons. But the difficulty is that ing separately are confined. the plaintiffs are not so qualified. They The plaintiffs have asked us to find on are not bricklayers or masons. The unions the evidence that the actions of the unions and have a right to determine what kind of of the business agents and other officers and workmen shall compose the union, and to of the members in compelling L. P. Soule & insist that pointing shall not be a separate Son Company to discharge “the plaintiffs was trade so far as union work is concerned. due in part to a desire to further and They have not undertaken to say that the protect their own interests, or what they contractors shall not treat the two. trades conceived to be such, but more to a reckas distinct. What they insist upon is that less and wanton, if not malicious, disregard if the contractors employ them they shall of the rights of the plaintiffs and of others employ them to do both kinds of work. engaged in the business of pointing and to
The application of the right of the de a determination to force them out of busifendant unions, who are composed of brick
ness and thereby deprive them of their aclayers and stone masons, to compete with customed means of earning a livelihood.” the individual plaintiffs, who can do nothing
We find on the evidence that the plaintiffs but pointing (as we have said), is in the
have not made out the fact that the decase at bar disastrous to the pointers and fendants' action was due to a reckless and hard on the contractors. But this is not wanton, if not malicious disregard of the the first case where the exercise of the rights of the plaintiff's and of others enright of competition ends in such a result. gaged in the business of pointing. Under The case at bar is an instance where the these circumstances we do not find it necevils which are or may be incident to com essary to decide what would have been the petition bear very harshly on those interested result had we found that fact. See in but in spite of such evils competition is nec this connection Bowen, L. J., in Mogul Steamessary to the welfare of the community. ship Co. v. McGregor, 23 Q. B. D. 598, 615.
So far as previous decisions go the case It follows that the third clause of the which comes nearest to the case at bar in the decree, which follows the third prayer of kind of question raised is that of Allen v. the bill, must be stricken out. Flood (1898] A. C. 1. In that case there This brings us to the legality of the strike was a dispute between shipwrights and boiler by the union bricklayers and masons emmakers as to iron work in shipbuilding. ployed by the L. P. Soule & Son Company was stated by some of the judges (see for on other buildings because that corporation
was doing work on a building on which & North Michigan Railway v. Pennsylvania work was being done by pointers employed not Railroad, 54 Fed. 730, 19 L. R. A. 387; by the L. P. Soule & Son Company but by Loewe v. California State Federation (C. C.) the owners of the building.
139 Fed. 71; Hopkins v. Oxley Stave Co., That strike has an element in it like that 83 Fed. 912, 28 C. C. A. 99; Casey v. Cinin a sympathetic strike, in a boycott and cinnati Typographical Union (C. C.) 45 Fed. in a blacklisting, namely: It is a refusal to 135, 12 L. R. A. 193. It is settled in this work for A., with whom the strikers have no commonwealth by a long line of cases that dispute, because A. works for B., with whom a defendant is liable for an intentional and the strikers have a dispute, for the purpose unjustifiable interference with the pursuit on of forcing A. to force B. to yield to the the part of the plaintiff of his calling, whethstrikers' demands. In the case at bar the er it be of labor or business. Walker V. strike on the L. P. Soule & Son Company Cronin, 107 Mass. 555; Carew V. Rutherwas a strike on that contractor to force ford, 106 Mass. 1, 8 Am. Rep. 287; Vegelahn it to force the owner of the Ford Building V. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 to give the work of pointing to the defendant L. R. A. 722, 57 Am. St. Rep. 443; Plant v. unions. That passes beyond a case of com Woods, 176 Mass. 492, 57 N. E. 1011, 51 petition where the owner of the Ford Build L. R. A. 339, 79 Am. St. Rep. 330; Martell ing is left to choose between the two com V. White, 185 Mass. 235, 69 N. E. 1085, 64 petitors. Such a strike is in effect compel L. R. A. 260, 102 Am. St. Rep. 341. ling the L. P. Soule & Son Company to For the reason that the strike on the buildjoin in a boycott on the owner of the Ford ings being erected by the L. P. Soule & Son Building. It is a combination by the union Company was not a strike in a trade dispute to obtain a decision in their favor by forcing between the union and that corporation, the third persons who have no interest in the first and second clauses of the decree were dispute to force the employer to decide the in substance correct. Robert H. Pickett, dispute in their (the defendant.unions') fav however, is the only plaintiff who is shown or. Such a strike is not a justifiable inter to have had any interest in the work on ference with the right of the plaintiffs to the Ford Building, and therefore the second pursue their calling as they think best. In clause of the decree alone should stand. our opinion organized labor's right of coer A few matters of detail remain to be cion and compulsion is limited to strikes on dealt with. persons with whom the organization has a All that the Bricklayers' Union No. 27 trade dispute; or to put it in another way, seems to have done was to adopt working we are of opinion that a strike on A., with
rules making pointing a part of the trade whom the striker has no trade dispute, to of bricklaying. There is no evidence that compel A. to force B. to yield to the striker's they authorized the sending of the circular demands, is an unjustifiable interference letter or took part in the strike. That union with the right of A. to pursue his calling and the members of it should be stricken as he thinks best. Only two cases to the from the decree. contrary have come to our attention, namely: No objection has been taken to the decree Bohn Mfg. Co. v. Hollis, 54 Minn. 233, 55 in favor of Robert H. Pickett on the ground N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. that damages would have given him ade319, and Clothing Co. v. Watson, 168 Mo. quate compensation for breach of his con133, 67 S. W. 391, 56 L. R. A. 951, 90 Am. tract. For that reason it is not necessary to St. Rep. 440. The first of these two cases consider whether his proper remedy was an was overruled on this point in Gray v. Build action at law, for damages as in Carew v. ing Trades Council, 91 Minn. 171, 97 N. W. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; 663, 63 L. R. A. 753, 103 Am. St. Rep. 477. Walker v. Cronin, 107 Mass. 555; Berry V. The conclusion to which we have come is Donovan, 188 Mass. 353, 74 N. E. 603; and supported by My Maryland Lodge v. Adt, Quinn v. Leathem  A. C. 495. 100 Md. 238, 59 Atl. 721, 68 L. R. A. 752; There is a point of practice which must be Gray v. Building Trades Council, 91 Minn. noticed. As we have said, the plaintiffs 171, 97 N. W. 663, 63 L. R. A. 753, 103 Am. have undertaken to make three unincorporatSt. Rep. 477; Purington v. Hinchliff (I11.) ed labor unions parties defendant. That 76 N. E. 47, 2 L. R. A. (N. S.) 824; Beck is an impossibility. There is no such entity v. Railway Teamsters' Protective Union, 118 known to the law as an unincorporated asMich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 sociation, and consequently it cannot be Am. St. Rep. 421; Crump v. Commonwealth, made a party defendant. That was conceded 84 Va. 927, 6 S. E. 620, 10 Am. St. Rep. 895; in Taff Vale Railway v. Amalgamated SociState v. Glidden, 55 Conn. 46, 8 Atl. 890, 3 eties of Railway Servants  A. C. 426. Am. St. Rep. 23; Purvis v. United Brother The point decided in that case was that the hood of Carpenters (Pa.) 63 Atl. 585; Gat labor union defendant in that case could be zow v. Buening, 106 Wis. 1, 81 N. W. 1003, sued because it was registered under Trades 49 L. R. A. 475, 80 Am. St. Rep. 1; Barr Union Act 1871, c. 31, and Trades Union v. Essex Trades Council, 53 N. J. Eq. 101, Act 1876, c. 22. At law, if the objection is 30 Atl. 881; Temperton v. Russell,  properly taken, every member of an unin1 Q. B. 715; Taft, J. in Toledo, Ann Arbor corporated association must be joined as a
party defendant. In equity, if the members are numerous, a number of members may be made parties defendant as representatives of the class. The practice in Massachusetts in suits against members of unincorporated labor unions generally has been in accordance with these well settled principles. See Bowen v. Matheson, 14 Allen, 499; Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330; Martell v. White, 185 Mass. 255, 69 N. E. 1085, 64 L. R. A. 260, 102 Am. St. Rep. 341. A trade union was made a party defendant in Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443, and the anomaly seems to have escaped attention. The judge who entered the decree in the case at bar made it apply to the unions "and each and every member thereof." He seems to have treated the case as a case where a numerous body bad been properly represented by defendants joined for that purpose. Possibly, so far as the trial of the case was concerned, the members of these two unions were in fact represented by the individual defendants. But there is nothing on the record which justifies a decree against "each and every member" of the three unions on the ground that the defendants were joined as representing the individual members of the unions constituting a numerous class of defendants. The three unions should be stricken from the bill as parties defendant, and proper allegations should be made to bind the members of the two unions as parties defendant. If the individual defendants were proper representatives of the members of the unions in question, and these members would suffer no damage from the bill being so amended now, that can be done. The cases are collected in Fay v. Walsh, 190 Mass. 374, 77 N. E. 44.
Upon the bill being so amended within 60 days the decree may be modified as hereinbefore set forth, and on being so modified, affirmed; otherwise the decree must be reversed.
2. SAME - INJURIES TO SERVANT - ACTION SUFFICIENCY OF EVIDENCE-NEGLIGENCE.
In an action for injuries to a servant owing to the bursting of a steam main in the master's factory, plaintiff was not required to show the particular cause of the accident, but it was suficient for him to show defects in the construction of the main, which, coupled with its breaking, might warrant the jury in inferring that the accident was due to the master's negligence.
[Ed. Note.--For cases in point, see vol. 34, Cent. Dig. Master and Servant, &$ 954, 955, 959.] 3. EVIDENCE-OPINIONS-CAUSE OF ACCIDENT.
In an action for injuries to a servant, owing to the bursting of a steam main in the master's factory, it was competent for plaintiff to offer the opinion of an experienced witness as to whether there were unusual risks in the use of cast iron in the particular place where it was installed by defendant, and whether the accident resulted from such use.
[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, $8 2317, 2318.] 4. MASTER AND SERVANT-INJURY TO SERVANT-NEGLIGENCE OF MASTER.
In an action for injuries to a servant, owing to the bursting of a steam main in the master's factory, plaintiff claimed the accident to have been caused by defective construction of the main, and defendant asked its master mechanic, "Is it customary, in well-conducted concerns with which you are familiar, to adopt a hydraulic test, or a hammer test, on a steam line of this description, after installation and operation?" Held, that the exclusion of the question was sustainable as witbin the discretion of the trial court, as the materiality of the inquiry did not clearly appear, and the information was remote from the issue, and the ground of exclusion might have been that the witness' experience with other plants was not sufficiently wide.
Exceptions from Superior Court, Worcester County; Edwd. P. Pierce, Judge.
Action by Annie M. Johnson, as administratrix of Alfred Johnson, deceased, against the American Steel & Wire Company of New Jersey, and actions by Carl Erickson and by Edward G. Matthews against the same defendant, which actions were consolidated and tried together, and from judgments in favor of plaintiffs, defendant brings exceptions. Exceptions overruled.
Webster Thayer and Hollis W. Cobb, for plaintiff Matthews. Victor E.
Victor E. Runo, for plaintiff Erickson. John A. Thayer and Chas. B. Perry, for plaintiff Johnson. Frank B. Smith, T. H. Gage, Jr., and Frank F. Dresser, for defendant.
(193 Mass. 119) ERICKSON v. AMERICAN STEEL & WIRE CO. JOHNSON V. SAME. MAT
THEWS V. SAME. (Supreme Judicial Court of Massachusetts.
Worcester. Oct. 17, 1906.) 1. MASTER AND SERVANT-APPLIANCES-CARE REQUIRED OF MASTER.
Where a master undertook through his own agents to design, manufacture, and install a steam plant, he could not relieve himself of his duty to use proper care to provide safe appliances by a mere showing that he employed competent engineers to design and set up the appliances in question or to inspect them after being in place.
[Ed. Note. For case in point, see vol. 34, Cent. Dig. Master and Servant, $ 175.]
RUGG, J. The fundamental question in these cases is, whether the defendant was neg. ligent in the construction and maintenance of its steam power plant. The plaintiffs were employés of the defendant working in a room adjoining the boiler room, in which a steam main burst, causing their injuries. Seventeen horizontal boilers were placed side by side in the boiler room. The steam maiu connecting with the boilers, including an expansion pipe on the end, was about 145 feet long, with an inside diameter of 14 inches and a thickness of 148 inches to 144 inches.
The steam main was composed, outside of the expansion pipe, of 17 headers, so-called, made of cast iron, 1 for every boiler, each 8 feet long with flanges on both ends, so tha: they could be bolted together, thus making a continuous steam main or pipe. Out of the lower side of each and connecting with it by a nozzle or T-shaped piece, coming out of and forming a part of the header, was a 6-inch wrought iron pipe which, after making an angle, entered vertically its boiler.
The dimensions of these headers were sufficient, if of cast iron without flaw or defect, to sustain a steam pressure of 125 to 150 pounds to the square inch, with a factor of safety of 21, which means that it would carry a pressure 21 times as great before breaking.
The line of headers which constituted the steam main was supported on brackets attached to brick piers. The headers rested on rollers on the brackets, which permitted the steam main to move back and forth lengthwise on them, as it expanded with the heat. The expansion of the entire length was about 3 inches.
Between boilers 10 and 11 there was a blank flange or cut-off so that boilers 1 to 10 could be run at one pressure and 11 to 17 at another pressure, and they were being so run at the time of the accident, although when the plant was first installed in 1896, the boilers which were first put in use were all run at the same pressure.
At the time of the accident, boilers 1 to 10 were carrying 150 pounds of steam pressure and those numbered 11 to 17, 126 pounds pressure. At the high pressure end the main was anchored through a brick wall with a nut and rod so that it could be tightened and stop the vibration. When tightened, it could not expand over half an inch at that end. At the other end of the steam main was a goose-neck, so-called, which was a 10inch pipe sloping downward from the main for a considerable distance and then up again in another part of the building. This device permitted expansion at that end. There was no drip-cock upon this goose-neck, but an elbow, designed to take return water and condensed steam back to the boilers. Upon the main steam line there was no expansion valve or drip-cocks.
The headers were purchased by the defendant at a reputable foundry, where they were tested, but the machine work upon the castings was done at the defendant's shop and the steam main was put together and in place with its connections to the boilers by the defendant's employés, and according to a design, both as to construction and connections, made by the defendant's engineer. It was examined by one Allen, who was a steam engineering inspector of wide experience, during construction and in part tested by him, who approved it in most, if not all, respects. The defendant applied to the headers and the steam main the usual tests be
fore the plant was put in use and made the customary inspection while the plant was in operation.
On the day of the accident, the header of boiler 13 blew out on the back side opposite where the steam went in, leaving the main pipe in place and blowing out a space 18 or 20 inches in length.
Examination showed that at the place of the break, the cast iron was spongy, stogy or porous, but this condition was concealed by a skin of good iron on the outside one-sixteenth to one-eighth of an inch in thickness and on the inside one-fourth to one-half an inch in thickness. The porous part did not show on the inside or outside of the pipe. At the defective place the good iron was between one-fourth and one-half an inch thick which should bear over 1000 pounds pressure of steam.
There was evidence from several of the witnesses, whose familiarity with the construction and operation of steam plants was not in question, that the plan of this steam pipe line with its boiler connections and anchorage was defective. The professor of steam engineering at the Worcester Polytechnic Institute testified that it was not a mechanically proper construction, because sufficient arrangements were not provided for the expansion of the steam main, whereby there would be a tendency to weaken the joints throughout the length of the pipe, and that drip-cocks along the line of the pipe were necessary, although none were provided, and that cast iron was an unsuitable material of which to make the headers, because of its brittleness or rigidity, and that the method of connecting the feed pipes from the boilers to the main was improper. This testimony was supplemented in important particulars by another witness of acknowledged experience. The defendant invokes the rule applied in Fuller v. New York, New Haven & Hartford Railroad Company, 175 Mass. 424, 36 N. E. 574, to the effect that it had performed its whole duty when it purchased the castings, out of which the main steam pipe was made, from a reputable manufacturer. One of these castings proved to be to some extent defective by reason of spongy metal, but this defective material was covered on both sides by good metal of a thickness sufficient, upon the undisputed evidence, to withstand a steam pressure of 1000 pounds, while it was being subjected at the time of the accident to only 150 pounds pressure. This evidence strongly points to some other cause for the accident than the defective casting. But this rule has no application to the facts here disclosed, for the reason that the castings after being so purchased were by the defendant finished and incorporated into a structure according to a design prepared by its own engineer, which, apart from any hidden defect in the castings, was claimed by the plaintiffs to have been defective in