tard, hinder, or make it harder or more difficult for the government to recruit and enlist men in the military service; hence there is great and wholesome reason for the statute, and the reason for its rigid enforcement is just as potent and overpowering. Nothing should interfere with the military and naval forces of the United States, nor with the work of recruiting or enlistment of the men that go to make up such forces. Any means employed by which to cause the evils enumerated, or any one of them, is denounced. You will note that the term 'willfully' is employed in the statement of the statute as to what will constitute the offense. This means that the acts complained of must have been done with knowledge on the part of the defendant of what he was doing, and that he, having such knowledge, intentionally did the acts and intended thereby, and had such purpose therein, that the result of doing such acts would be to cause insubordination, disloyalty, or refusal of duty in the military service, or would tend to impede or hinder the recruiting and enlistment of men into the service, to the injury of the United States."

It is contended on behalf of the defendant that the government was required to prove that the defendant's statement accomplished an actual obstruction as distinguished from an attempt to obstruct and proof of injury resulting therefrom to the service or to the United States. In support of this contention, the attention of the court is called to the fact that the act under consideration was amended by the Act of May 16, 1918, c. 75, § 1, 40 Stat. 553, Comp. St. 1918, § 10212c (Public No. 150, 65th Congress), so that the clause of the statute under consideration now reads:

"Whoever shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States."

This amendment was only one of many provisions amending the statute relating to various acts obstructing the government in the prosecution of the war, and was evidently intended to overcome certain technical objections, and enlarge the scope of the statute, so as to include every possible obstruction that might be interposed against the efforts of the government to prosecute a successful war. But it does not follow that the facts in this case did not bring it within the terms of the original statute. We think they did. The loyalty of Davis to the government and his spirit of patriotism was clearly diverted and obstructed by the defendant's statement that "we had no business in the war, no call whatever to be in the war," and his advice to witness "not to enlist, not to get into the army until after he was drafted." All this had its effect upon Davis, and it was not until after he had talked with other people that he came back to his true course.

The decision of Judge Bourquin in U. S. v. Hall (D. C.) 248 Fed. 150-153, upon a similar state of facts, does not convince us to the contrary, and an examination of the various cases where this question has been considered reveals the fact that nearly all the District Judges, where this statute has been under consideration are in accord with Judge Wolverton's instructions to the jury in this case. These cases are reported in Bulletins issued by the Department of Justice, as follows: Bulletin No. 4 (U. S. v. Daniel H. Wallace); Bulletin No. 15 (U. S. v. C. H. Pierce [D. C.] 245 Fed. 878); Bulletin No. 49 (U. S. v. Kate O'Hare); Bulletin No. 53 (U. S. v. Orlando Hitt); Bulletin No. 55 (U. S. v. Perley Doe); Bulletin No. 56 (U. S. v. W. B.

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Tanner); Bulletin No. 76 (U. S. v. S. J. Harper); Bulletin No. 78 (U. S. v. Leonard Foster); Bulletin No. 79 (U. S. v. C. H. Waldron); Bulletin No. 81 (U. S. v. J. H. Wolfe); Bulletin No. 82 (U. S. v. Gistave Pundt); Bulletin No. 83 (U. S. v. Harold Mackley); Bulletin No. 85 (U. S. v. Henry Fredricks); Bulletin No. 86 (U. S. v. H. M. Hendrickson); Bulletin No. 89 (U. S. v. Conrad Kornmann); Bulletin No. 90 (U. S. v. Joseph Zittel); Bulletin No. 106 (U. S. v. Rose Pastor Stokes); Bulletin No. 108 (U. S. v. Gustave Taubert); Bulletin No. 109 (U. S. v. Emiel Herman); Bulletin No. 112 (U. S. v. Dick Windmueller); Bulletin No. 120 (U. S. v. J. I. Graham); Bulletin No. 122 (U. S. v. Amos Hitchcock).

In the Second Circuit, in Masses Pub. Co. v. Patten, 246 Fed. 38, 158 C. C. A. 250, L. R. A. 1918C, 79, in the Third Circuit in United. States v. Krafft, 249 Fed. 919, - C. C. A. —, in the Fourth Circuit in Kirchner v. United States, Bulletin of Department of Justice No. 174, in the Eighth Circuit in O'Hare v. United States, 253 Fed. 538, C. C. A., and in Doe v. United States, 253 Fed. 903-906, C. C. A., the Circuit Courts of Appeals in these circuits affirm judgments where the objections were of the same character here presented.

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[4] It is contended that the court was in error in overruling defendant's motion in arrest of judgment on the ground that the indictment failed to allege the intended recruiting or enlistment in the military or naval forces of the United States of William Mitchell or Luther Davis, and for the further reason that the indictment failed to charge defendant with knowledge or notice of their intended enlistment or recruiting in such service. That statute does not require such allegations in the indictment or such proof as elements of its violation. The indictment follows the words of the statute with such statement of facts and circumstances as sufficiently identify the acts charged as an offense against the defendant. This is all that is required.

The refusal of the court to grant a new trial is an objection, as has been repeatedly stated, that can only be made in this court as a ground for reversal when there was no evidence to support the verdict. There is no such ground for reversal in this case.

The judgment of the court is affirmed.


(Circuit Court of Appeals, First Circuit. February 12, 1919.)

No. 1363.


The use by a manufacturing company of removable steps leading down to the floor of a boiler room from an outer door, without warning to employés that they were removable and were frequently removed for cleaning the floor, held negligence, which rendered it liable for injury to an employé who unknowingly stepped through the door when they were not in place.


That negligence of a fellow servant may have contributed to injury of an employé does not relieve the master from liability for his own negligence, which was the primary cause.



Instructions in an action for injury to a servant held not erroneous, in view of the evidence.

In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.

Action at law by George H. Gagne against the Burgess Sulphite Fibre Company. Judgment for plaintiff, and defendant brings error. Affirmed.

George F. Morris, of Lancaster, N. H. (Sullivan & Daley, of Berlin, N. H., and Drew, Shurtleff, Morris & Oakes, of Lancaster, N. H., on the brief), for plaintiff in error.

Alexander Murchie, of Concord, N. H. (Hollis & Murchie, of Concord, N. H., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge. This is a writ of error from a judgment recovered by George A. Gagne in the District Court for New Hampshire against the Burgess Sulphite Fibre Company in an action for personal injuries sustained December 27, 1910, while in the employ of that company. The plaintiff is a citizen of New Hampshire and the defendant a corporation organized under the laws of the state of Maine.

In its assignments of error the Fibre Company complains that the court erred in denying its motion for a directed verdict, in the admission of certain testimony, in instructions given to the jury, and in refusing a requested instruction.

At the defendant's request the plaintiff was ordered to specify the acts of neglect on which he relied, and in compliance therewith stated:

"The plaintiff's injury was caused by the absence or insufficiency of certain steps and the insufficiency of a certain door leading into the wood boiler room from the gangway. The defendant failed to furnish the plaintiff a safe place to work and also failed to make reasonable rules and regulations."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

[1] The plaintiff was employed by the defendant as its chief engineer and the evidence disclosed that his duties required him to supervise the operation and repair of all the engines of the company througout its extensive plant; that among the engines under his supervision was a forced draft engine, located in what was known as the wood boiler room; and that it was while he was on his way to this engine that he was injured. The direct route for him to reach this engine was through a passageway between the boiler room building and the time office building, leading to a gangway or loading platform, and thence through a door and down some steps into the boiler room. He was entering this door at the time he was injured. It was a door commonly used by the employés of the company for entering and leaving the boiler room. It was a blind door-that is, it had no window in it and swung inwardly. It was rigged with a pulley attachment carrying a heavy weight to keep it closed. From the threshold of the door to the floor of the boiler room was a drop of 18 to 24 inches, and wooden steps with two risers had been placed there. They were unsecured, and at the time of the accident had been removed. When the plaintiff undertook to enter the boiler room, he grasped the handle of the door and gave a hard push. At the same time a workman from the inside gave the door a pull, causing the plaintiff to enter more quickly than he had anticipated; and instead of his foot meeting the steps, which had been removed, it struck the floor below. He retained his grasp on the handle without falling, but was swung around in such a manner as to wrench his leg and back and displace his sacro-iliac joint, causing a severe injury. The plaintiff did not know that the steps had been removed, or that they were so constructed that they might be removed. Although they were fairly heavy steps, they were not fastened, and were often removed on Sundays for the purpose of taking out ashes that accumulated on the floor of the boiler room around the steps; but plaintiff did not know this. The accident occurred on Tuesday. The preceding day the mill was not in operation, as it was set apart for celebrating Christmas.

In view of the state of the proof, we think the jury might properly find that the defendant was at fault in failing to provide permanent steps, or, in case they were to be removed, in failing to establish reasonable regulations for the safety of its employés; that the plaintiff was without fault and did not assume the risk; and that the cause of his injury was the defendant's failure in the particulars above mentioned.

[2] The defendant complains that the court erred in refusing to give the following instruction to the jury as to the removal of the steps:

"If you find it was removed by the negligence of a fellow servant, and by that I mean any employé of the defendant, the plaintiff cannot recover."

This request was properly refused for the reason that it assumed that the evidence did not warrant the jury in finding the defendant at fault, even though the steps had been removed through the negligence of a fellow servant. The fact that negligence of a fellow serv

ant may have contributed to cause the accident would not excuse the fault of the defendant (Matthews v. Clough, 70 N. H. 600, 49 Atl. 637; Vaisbord v. Mfg. Co., 74 N. H. 470, 473, 69 Atl. 520); and, there being evidence from which the jury could find that the defendant was negligent, the request could not properly have been given.

[3] The defendant also contends that the court erred in charging the jury as follows:

"If you come to the question in respect to the plank steps, the first question that would naturally arise would be whether the plaintiff under the circumstances was in the exercise of due care. I do not think you will have much trouble on that phase of the case, because the plaintiff himself says that he had never seen the steps out of place, that he was going along in the usual way, acting upon the idea that the situation was safe, and that as he opened the door, somebody pulled on the other side at the same time and that he stepped down and fell, because there was no step on which his foot would rest and hold his weight. While I am not going to say that you should find that question of fact one way or another, there is no substantial controversy about it and you probably will have no difficulty in finding that he was in the exercise of reasonable care if the situation was as he explained it. If you should find-and I leave it to you to find whether he was in the exercise of due care as he approached this door-then the question will be, Was the step there?"

The ground of exception to this portion of the change was that it did not leave open the question whether any one pulled the door from the inside at the time the plaintiff entered and whether in consequence of that he fell without seeing where he was going. To meet defendant's objection in this respect, the court further charged the jury as follows:

"Counsel for the defendant thinks that I stated his contention incorrectly in respect to the plaintiff's care. He thinks that I did not state his position correctly in saying that there was no substantial contention that the plaintiff was careless. I did not intend to say that. I meant to say that upon the evidence you would probably not be troubled much upon that question, provided the story of the plaintiff as to his approach was accepted as the correct one, and that is all the evidence there is on that branch of the case, and I think that is what I did say, but Mr. Morris thinks that I said that there was no substantial contention against that. He says that he does contend. and argues that the plaintiff was careless, in the first place, that the plaintiff did not fall as he said he did, and if he did fall that he was careless in not looking, and even if the steps were not there that due care required that he should have looked before opening the door and stepping; so I leave the question with you to determine it."

To the latter statement of the court the defendant also excepted, on the ground he had there told the jury that all the evidence there was on this branch of the case was, what the plaintiff had stated. We think that the first instruction complained of, if erroneous in any respect, was fully taken care of when the court later told the jury that the defendant did contend that the plaintiff was careless and pointed out the particulars wherein it so contended. Although the court commented upon the weight of the evidence bearing upon the question of contributory negligence, he nevertheless expressly left it for the jury to say whether the plaintiff was in the exercise of due care as he approached the door; and we do not think that they were misled when, in undertaking to explain his previous charge, he said:

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