The order should further provide that the defendants have five days from the date of the service of the order to elect whether they will give a bond in lieu of the injunction. Such bond should be in the sum of $25,000 with surety approved by the court, conditioned that the defendants will pay to the complainants any damages which they may receive by reason of the defendants doing any act or acts prohibited by the order.

In case the defendants elect to substitute a bond the injuction will, of course, be suspended and no bond will be required of the complainants.

In case the amount of the bond in force is found at any time to be inadequate, a motion may be made by the aggrieved party to increase it.

Let Sympathies Prevail

An instance of how juries allow their sympathies to run away with them in the face of evident fact is afforded in a report of a reversal by Mr. Justice Garrow, of the Ontario court of appeal, in reversing a judgment for $3,975 rendered in a lower court in favor of an English lad named Smith against the Canadian Yacht Club..

Smith, 18 years old, entered the yacht club's employ in June, 1910, and part of his duties were to assist Charles Tabbert, a head porter, in firing a small brass cannon morning and evening. One morning Tabbert was absent. Smith was asked if he knew how to fire the cannon. He said he did, and was told to do it and that there would be some more money for him. The first day it worked all right, but the second day

to see.

own

In the judgment of the court of appeal, delivered by Mr. Justice Garrow, he said that he was clearly of the cpinion that the action should have been dismissed upon the ground that there was no evidence from which the jury could reasonably infer that any act of negligence on the part of the defendant had caused the injurythat in fact the injury, on the undisputed evidence was solely caused by the plaintiff's extraordinarily careless act in using the shell which exploded in the manner described. How could there be any question for the jury of the defendants' system in carrying on their operations or of the proximate cause other than the plain and obvious one he was quite unable And he was equally at a loss to see how the plaintiff's case could be supported upon the ground of the alleged failure to instruct. The plaintiff was not a baby or even a youth of tender years. He had been in Canada, first in Quebec and afterwards in Ontario, earning his living for several years. He was filling a man's place and getting a man's pay. He had received certain instructions which he was not following when he was injured. He had not, it is true, been told not to use a loaded and capped shell as a hammer, an instruction which would scarcely have been regarded as necessary by the most careful of masters. When he received his promotion he stated to the defendants' representative that he knew how to fire the cannon, which, of course, included loading it; and if, at variance with this statement, he intended to rely upon an ignorance so gross as to be almost inconceivable in one of his years and experience, he certainly ought to have had the courage to pledge his oath to the fact.

There was, in the judge's opinion. under all the circumstances, no proper evidence to warrant submitting the questions which were submitted to the

jury, and the action should have been dismissed.

The appeal should, therefore, be allowed and the action dismissed, both with costs, if demanded. (Smith vs. Royal Canadian Yacht Club, 30, W. N., 19.)

Employer is Not Liable

The following court decision is to the effect that an employer cannot be held for damages under the New York state labor law of 1910 provision, holding him liable for the negligent act of a superintendent merely because a competent fellow servant assigned by a superintendent or foreman to a duty commits a single negligent or incapable act, resulting in injury. The report reads:

Employers' liability law of 1910 (article 14 of labor law). Negligence of superintendent. Plaintiff, while in the employ of defendant, was injured by an electrically-operated printing press. He was adjusting the press and, while so engaged, ordered a fellow servant to turn on the electric power. This was done so unskillfully that plaintiff was struck by the moving part of the press and severely injured. In the supreme court plaintiff secured a judgment for $800, from which defendant appealed. The second appellate department reversed the verdict and ordered a new trial. The action was brought under section 200, subdivision 2 of the labor law, as amended in 1910. According to the provision, the employer is liable for injury to an employe "by reason of the negligence of any person intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employe in the performance of the duty of such employe." Plaintiff contended that the fellow workman, Freund, whom the foreman, Vogel, had detailed to assist him, was incompetent and that Vogel knew or should have known of this incompetency. Because of this, Vogel was

charged with negligence and his employer charged with liability, under the above quoted section. In deciding adversely to the plaintiff, the court said in part:

"The alleged negligence here complained of on the part of Vogel arose in the exercise of his 'authority to direct, control or command any employe in the performance of the duty of such employe,' as the statute prescribes. This brings us to the question whether the plaintiff made out a prima facie case of negligence on the part of Vogel and Freund. If the accident occurred simply through the negligence of Freund, no liability arose against the defendant, for Freund was concededly a fellow servant, acting at the very time under the direction of

plaintiff. To charge Vogel with personal negligence, it was necessary for him to show that Vogel, as superintendent, knowingly and carelessly assigned Freund to do work that he was not competent to do. The only ground of incompetency urged against Freund, according to the plaintiff's testimony, was that he had little or no experience in the feeding and operation of this particular machine. particular machine. No proof whatever, was given that Freund had ever before shown an incapacity in the performance of his work in that printing. shop, although he had been working there the greater part of five years before the accident. There were other presses there, likewise operated by electrical power, and which Freund had worked upon as a helper frequently in a period covering several years. The press on which the accident happened, differed from the others chiefly in the fact that it was selffeeding and in the mechanism by which the electrical power was turned on. On this mere circumstance there was not enough to hold Freund as an incompetent fellow servant to the extent of imposing liability on the master. The mere happening of the accident does not prove incompetency. could have happened simply from the negligence of an otherwise competent person and in that case there would be no liability." Wesel vs. The W. F. Powers Co., 147 App. Div. 167.

Must First Make Tender

Judge H. B. Chapman, of the court of common pleas of Cuyahoga county (Cleveland, O.), June 10, 1912, in allowing a continuance in case No. 107,458, Arthur Frederick vs. The Norcross Co., reaffirmed former Ohio decisions that, if a person receiving an injury accepts a settlement and afterwards sues to recover damages, his case cannot receive consideration until he has tendered back the money he received in the settlement. Frederick had been injured while working for the defendant, a contracting company, and lost a leg by the falling of a heavy slab of stone. While in the hospital, he accepted a a settlement, thought better of it afterwards and began suit. After the court had indicated to Frederick's lawyer that the case had no standing until a tender back of the settlement money should be made, the attorney took the continuance for the purpose of trying to raise the money for the tender. The decision was quite informal, the court referring to a comparatively recent decision, as follows:

In the case of Harvey Conrad vs. The Keller Brick Co., the circuit court of this county, Judge Henry deciding judge, Judges Winch and Marvin concurring, the decision being afterwards affirmed by the Ohio supreme court. The court said: "This is a personal injury case, wherein judgment on the pleadings was issued for defendant. The answer pleads a written release by plaintiff of his alleged cause of action for a money consideration paid to him. The reply admits that plaintiff signed said release and received said money; but avers that the money was paid to him not for a release of the cause of action asserted in his petition, but by way of insurance. benefits to which he was then informed his injury entitled him. further alleges he was unable to read said release, but does not allege that he made any effort to have it read to him. Neither does he tender back the money paid him. On this state of the pleadings the court below applied the rule of the Manhattan Life Insurance Co. vs. Burke, 69th Ohio State, 294,

He

that a reply alleging a repayment or tender of the amount received is not responsive to the answer and is insufficient in law. True that case was founded on contract, whereas this sounds in tort. But we cannot see that this distinction is material. There are undoubtedly cases where it is permitted to ignore the fact of a pretended release of the liability, and to withhold repayment of the consideration paid therefor; but in Ohio at least, and but with few exceptions elsewhere, such cases upon analysis seem to involve contracts that are not merely voidable for fraud, but contracts which are absolutely void for total failure of consideration, as Dayton Insurance Co. vs. Kelly, 24 Ohio State, 345; illegality of consideration as in Insurance Co. vs. Hull, 51 Ohio State, 270; or other like infirmity rendering such agreement invalid at initio.

"Where, however, as in this case, the contract is not void, but merely voidable for fraud, it is incumbent upon the plaintiff before asserting his cause of action to which the contract of release, so long as it remains in force, is a bar, to rid himself of that obstacle by appropriate measures for its avoidance. Tender back of the consideration received is in this case a prerequisite to such avoidance."

Reasonable Care Only

The third appellate department of the New York courts has recently handed down the doctrine that an employer is not required to guard machinery so that an accident cannot possibly happen, but only to guard against such accident as may reasonably be expected to occur.

Plaintiff, while operating a planing machine in defendant's factory, had his hand drawn in between the rollers so that his arm was crushed and broken. In an action brought in the supreme court a verdict for $12,000, which was reduced by stipulation to $7,000, was secured, from which appeal was taken by defendant. The

third appellate department revised the judgment and ordered a retrial. Plaintiff claimed he slipped on some shavings upon the floor and to save himself from falling involuntarily thrust his hand into the machine. Defend ant denied that the accident occurred in this manner and contended that it was due to plaintiff's carelessness. The court said in part:

"If it be assumed that the accident happened in the manner described by the plaintiff and that his fall was the proximate cause of the injury and was caused by defendant's negligence, still we are of opinion that the verdict of the jury, that the rollers were insufficiently guarded, is against the weight of the evidence and must be set aside. Notwithstanding the fact that Section 81 of the Labor Law (Gen. Laws, Chap. 32, Laws of 1897, Chap. 415, as amended by Laws of 1906, Chap. 336) requires that certain machinery shall be properly guarded, the machinery may be so located and the situation may be such that as a matter of fact no guard is required. Wynkoop & Ludlow Valve Mfg. Co. (196 N. Y. 324). In other cases the necessity for guarding and the sufficiency of the guard are questions of fact to be passed upon by a jury, Glens Falls P. C. Co. vs. Travelers' Ins. Co. (162 N. Y. 399); Walker & Newton Falls Paper Co. (99 App. Div. 47), and if their verdict be against the weight of evidence it must be set aside.

"A master is not required to guard. machinery in such a way that an accident cannot possibly happen. It is only against such accidents that might reasonably be expected to occur that he is bound to guard even the machinery enumerated in the statute. (Wynkoop vs. Ludlow Valve Mfg. Co., Sup.) The office of the straight bar across the machine, because of the absence of which the plaintiff complains, was not primarily to guard against accidents, but to protect the machinery from injury while being fed with lumber. The hood was strong enough to answer the same purpose. Had a straight bar been across the machine, doubtless, the accident to the plaintiff would not have happened.

but the finding of the jury that the guard that remained in the form of the hood was insufficient was against all the evidence and should be set aside." Campbell vs. Kerlscher & Co., 146 App. Div. 384.

Eight Hour Bill Unwise

In holding that a Massachusetts proposed law pending in the senate of that state and establishing an eighthour work day for employment upon public work was constitutional upon that point, the supreme judicial court of Massachusetts has indicated very sensibly that it does not regard the provision as wise and also says that the law of the land is that it is not constitutional to forbid a day's work longer in duration than eight hours. The Massachusetts court based its decision on the right of the state, through its legislature, to dictate the contractural terms between itself and those it did business with, the same as any private citizen.

The court held that the law in respect to regarding the performance of more than eight hours work in one day by a man to be prima facie evidence that he had violated the law, to be unconstitutional. The opinion is contained in a recent labor bulletin of the bureau of statistics of Massachusetts. Justices Knowlton, Morton, Hammond, Loring, Braley, Sheldon and Rugg answered a demand for information by the senate. The report reads as follows:

Ordered, that the justices of the supreme judicial court be required to give their opinion to the senate upon the following important question of law:

Are the provisions of the bill to constitute eight hours a day's work for public employes now pending in the senate and particularly the provisions of section 5 of said bill constitutional?

To the honorable senate of the commonwealth of Massachusetts:

We, the justices of the supreme judicial court, have received the order requiring our opinion upon the question, a copy of which is hereto an

nexed, and we respectfully answer as follows:

The right "of acquiring, possessing and protecting property" is secured to every citizen by the constitution of Massachusetts as well as by the constitution of the United States. These rights include the right to use one's powers and faculties in any reasonable way for the promotion of his interests and the right to make contracts with others. Those rights can be regulated by the legislature in the exercise of police powers, only in the interest of the public health, the public safety, or the public morals, and, in a certain restricted sense, of the public welfare. The general principles touching this subject have been considered repeatedly by the justices of this court and by the supreme court of the United States. See Commonwealth vs. Pear, 183 Mass. 242; Commonwealth vs. Strauss, 191 Mass. 545; Welch vs. Swasey, 193 Mass. 364, 373; Opinions of the justices, 193 Mass. 605, 609, 612; Wyeth vs. Cambridge Board of Health, 200 Mass. 474, 478; Mutual Loan Co. vs. Martell, 200 Mass. 482, 484; Dewey vs. Richardson, 205 Mass. 430, 432.

It was decided by the supreme court of the United States in Lochner vs. New York, 198 U. S. 45, that a state cannot limit a citizen in the exercise of his right to make contracts and to use his powers by the enactment of a statute forbidding his employment for more than eight hours a day. This judgment of our highest federal court is the law of the land, binding upon the courts and citizens of this commonwealth.

It rests upon the ground that there is nothing in ordinary labor by men of full age, for more than eight hours a day that calls for prohibition in the interest of the public health, the public safety, the public morals or the public welfare. It is obvious that many of the most successful men could not have attained the prosperity which they have enjoyed if prohibited from working for themselves or contracting to work for others more than a small part of the hours of each day.

The question before us relates only to employment upon public works

by the commonwealth, the counties and such cities and towns as have accepted the provisions of two earlier acts. These are divisions of government established in the public interest. The legislature is supreme in the control of these instrumentalities of government subject only to the provisions of the constitution. It may direct by proper enactment the method in which any one of these divisions of government shall conduct its public business. It may enlarge or limit the kinds of contract that either of these divisions

may make. It may compel the conduct of the public business in a way that does not promote the prosperity of individuals. Even though it may

be considered an interference with individual rights and a detriment to the best interests of the community, which depend largely upon the success of individuals, it may determine that in the construction of their public work the several divisions of government shall make no contracts except of particular kinds. It may determine that in such construction no work shall be done except by persons who are willing to submit to contractural limitations, which it could not impose on men generally in their dealing with one another in their private affairs. A person desiring to perform or furnish labor upon a public work must submit to such terms as the proprietor may impose as a condition of his employment. The legislature, representing and controlling these several divisions of government, stands in the place of a proprietor. Because the business to be done is that of one of these divisions of government persons can engage in doing it only in accordwith the requirements of the controlling authority.

ance

We answer this branch of the question in the affirmative, not because we think that such regulations in regard to the hours of labor for men in common employment would be wise or constitutional, but because it is in the power of the proprietor of a business to prescribe the methods under which it shall be conducted. This conclusion is supported by Atkin vs. Kansas, 191 U. S. 207.

As to the provision in the fifth