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to its members and employers of labor, of its adopted rules by virtue of its constitution forbidding its members to work nonunion material, an unlawful conspiracy? Is it lawful by peaceful means to make effective such rules ? From an examination of the averments of plaintiffs' bill, the ample proofs submitted in support of them, and of the facts found by the court below, it is most manifest that the only question before us is whether the appellants were properly enjoined from injuring and destroying the business of the appellees, in pursuance of a conspiracy to do so, as a penalty for their refusal to unionize their mill. This would mean to the appellees, as they aver, that they would be compelled to employ only union workmen, and to yield their free and unrestricted right to select their own employees in the conduct of their business; that they would be compelled to submit themselves to the control of the union, and to put themselves within its power to dictate to them the number of hours to constitute a day's work in their mill, the compensation to be paid therefor, the time of payment thereof, and the selection of their employees. It would be a recognition of the power of the agents of the union to practically control their business.
The particular acts sought to be enjoined in this case are the calling out of the employees in other trades, who have no grievance against their employers, and the notification of owners, builders, architects, and third persons that they are likely to have their operations held up if they use the complainants' trim. Whether the complainants may be found to have other rights on final hearing, and whether persons not parties may be guilty of contempt if they knowingly assist in the violation of the preliminary injunction to be issued, need not now be considered.
Motion granted, with leave to the parties to submit within one week forms of order which they respectively think appropriate under this opinion.
EMPLOYER AND EMPLOYEE-INJURY TO THIRD PERSON BY EMPLOYEE—LIABILITY OF EMPLOYER-SCOPE OF AUTHORITY— Tillar v. Reynolds, Supreme Court of Arkansas, 131 Southwestern Reporter, page 969.—Mattie Reynolds, administratrix of the estate of William Reynolds, sued T. F. Tillar to recover damages for the wrongful death of her husband, William Reynolds. At the time of injury alleged to have occasioned Reynolds's death he was a prisoner working out a sentence of fine and imprisonment for a misdemeanor and was leased to Tillar under a contract with the county of Lincoln in the State of Arkansas. After having been on the convict farm for a week or two Reynolds died as the result, it was alleged, of an assault and whipping at the hands of one Gentry, who was Tillar's warden. Judgment was rendered Mrs. Reynolds in the amount of $3,750, whereupon Tillar appealed, raising three objections: First, that there was a misjoinder of actions; second, that the instruction of the lower court charging the employer with responsibility for his employee's actions was erroneous; and, third, that the evidence did not sustain the verdict. It was also claimed that the verdict was excessive. The joinder of actions referred to was that of bringing together the suit for the benefit of the widow and next of kin of the decesased and the other for the benefit of his estate. This the court held to be proper, stating that if the two actions had been brought separately they could have been consolidated by the court itself.
The instruction complained of was as follows: “You are further instructed that the employer who puts his agent or employee in a place of trust or responsibility, or commits to him the management of his business, is responsible when the agent or employee acting within the scope of his authority, through lack of judgment or discretion, or under the influence of passion, inflicts an unjustifiable injury upon another, even though he go beyond the strict line of his duty or authority.” The portion of the instruction objected to was the clause “even though he go beyond the strict line of his duty or authority.” It appeared from the evidence that the warden compelled Reynolds to strip and lie down across a log or block, face downward, and that he whipped him on the bare back with a leather strap 30 inches long, and from one-half to three-fourths of an inch thick. This strap was fastened to a staff which Gentry used, striking with both hands from 12 to 15 hard blows; one witness stated that he whipped him on the small part of the back. A rule of the penitentiary board prohibits whipping of any convict on his naked body, or at all except by authority of the superintendent, and limits the number of strokes to be administered to ten at any one time.
The court held that the instruction as to the employer's liabilty for his servant's act was not objectionable, saying:
It is undisputed that Gentry, the warden, was defendant's agent in charge of the convict farm at the time Reynolds was delivered to the farm and at the time of his death, and for months thereafter, and that he was instructed to observe the rules laid down by the penitentiary board governing the convicts confined in the penitentiary, and charged by defendant not to depart from said rules in the management and punishment of the convicts placed on the farm. He had the authority to punish, and was acting within the scope of it when he inflicted the injury.
In Ward v. Young, 42 Ark. 543, 544, in discussing the liability of the master for the tort of his servant, this court said: “If Hawkins was clothed with the authority to protect the property, then his act was, in law, the act of Ward, notwithstanding it may have been contrary to express orders. Having employed the servant to protect his property or to maintain his possession, he is liable for all the acts done in pursuance of his employment, and within the power implied therefrom, even though he expressly directed the servant what to do. Having set in motion the agency for producing mischief, he is bound at his peril to prevent the mischievous consequences.” Further: “It is not necessary, in order to fix the master's liability, that the servant should at the time of the injury have been acting under the master's orders or directions, or that the master should know that the servant was to do the particular act that produced the injury in question. It is enough if the act was within the scope of his employ, ment, and, if so, the master is liable, even though the servant acted willfully, and in direct violation of his orders.” Continuing on page 553: “It is generally sufficient to make the master responsible that he gave to the servant an authority or made it his duty to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment.” “The master who puts the servant in a place of trust or responsibility or commits to him the management of his business or the care of his property is justly held responsible when the servant through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances or the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury upon another." (Conley (Cooley ?) on Torts, p. 538.) In Railway v. Hackett, 58 Ark. 387, 24 S. W. 882, this court said: “The question is, Was he acting in the course of his employment ?” “If he was, the company is liable in damages for any wrongful act of his in the course of his employment, resulting in injury to another, though he exceeded his authority as such night watchman.” “A servant may do an act expressly forbidden by his employer, and yet if it be within the scope of his authority, the employer may be liable for resulting injury. This rule is constantly enforced in the cases against railroads, electric light, and gas companies, and it applies to private persons who employ servants to transact their business.” (Pine Bluff W. & L. Co. v. Schneider, 62 Ark. 116, 34 S. W. 548, 33 L. R. A. 366.) This court on a question of this kind quoted with approval Clark & Skyles Law of Agency: “It is a well-established rule that a principal is liable for all torts, negligence, or rather malfeasances committed by his agent in the course of his employment and for the principal's benefit, although such torts or negligences are not authorized by the principal, or even though he had forbidden or disapproved of them and the agent disobeyed or deviated from his instructions in committing them.” "This rule is not based on the ground that the agent had authority, express or implied, to commit the tort, as is the case with contractual obligations binding on the principal; but is based on the ground that in such cases the agent represents the principal, and all acts done by the agent in the course of his employment are of the principal, and it is also on the ground of public policy that, where one of two innocent persons must suffer from the agent's wrongful act, it is just and reasonable that the principal, who has put it in the agent's power to commit such wrong, should bear the loss rather than the innocent third person.” (St. L., I. M. & S. R. Co. v. Grant, 75 Ark. 585, 88 S. W. 582.). There was no error in giving the instruction, and, on the whole, the instructions fairly presented the issues of fact to the jury. The evidence, although somewhat contradictory, tended strongly to show that the deceased was unlawfully and brutally whipped and beaten on his bare back with a leather strap 4 inches wide, and from one-half to three-fourths of an inch thick, and about 30 inches long, attached to a staff or handle about 18 inches long, by defendant's agents and warden; that he wielded the strap with both hands striking more licks than felons in the penitentiary are permitted to be whipped and on the bare skin, even if against defendant's directions; that deceased was compelled to work thereafter in the sun till he reeled and staggered like a drunken man, and was sent from the field groaning with pain and urinating blood, and died that night early without being furnished any medical attention; that the beating might have and probably did produce death, and the jury so found, and the evidence amply sustains the verdict.
With reference to the question as to whether or not the verdict was excessive the court said:
Was Wm. Reynolds' life of the value of $3,750 to his widow and minor children? He was a strong man of sound bodily health, the sole support of his wife and children, about 31 years old, with an expectancy of life of 34 years, and shown to have been earning shortly before his death from $50 to $60 a month, most of which was contributed to the maintenance and support of his family, and the jury fixed the damages at that sum which we do not regard excessive.
Finding no error in the case, it is affirmed.
EMPLOYERS' LIABILITY-INCOMPETENT FELLOW SERVANT-EviDENCE-Robbins v. Lewiston, Augusta and Waterville Street Railway Company, Supreme Judicial ('ourt of Maine, 77 Atlantic Reporter, page 537.-This case was an action by Oceolar Robbins, employed as a motorman by the defendant company, to recover damages for an injury received by him on July 20, 1907, through the negligence, as was alleged, of an incompetent crew on another car. The particular negligence of Taylor, the motorman, and Sanborn, the conductor, of the other car, consisted in the violation of an order to stop the special car which they were operating at the proper place, whereby a collision with the plaintiff's car was occasioned, resulting in serious and permanent injuries. Judgment was awarded Robbins in the supreme judicial court of Kennebec County, and exceptions were taken to the admission of evidence as to prior acts of the members of the negligent crew such as made the employing company liable for injuries resulting from their retention in service. These exceptions were overruled and the judgment of the lower court stood.
The views of the appellate court appear in the following extract from its opinion, which was delivered by Judge Spear, August 15, 1910. Having stated the facts, Judge Spear said:
From this statement it will be seen that the plaintiff's action rests upon the claim that the defendant was negligent in the selection and retention of its servants Taylor and Sanborn, especially Taylor, the motorman, when it knew, or by the exercise of due care should have known, his incompetency. The negligent act complained of was the running into the block without orders and against orders in violation of the rule.
The fate of the motion depends upon the result of the exceptions. If the exceptions prevail, the evidence in support of the verdict disappears. If the exceptions fail, the verdict is well founded. In other words, the evidence, if admissible, amply sustains both the charge of unfitness of the servant and such notice thereof to the defendant that it knew or by due care ought to have known of his incompetency.
But it is contended that the negligent acts of the servant which by the verdict we must assume to be proven were not of such a character as to fairly warrant the conclusion of incompetency. We think differently. Time after time he ran his car, in violation of rules and orders and against the protest even of the conductor, round curves at an excessive rate of speed. So persistently and recklessly did he do this that one conductor, after repeated reports of these willful acts of misconduct to the superintendent of the defendant company, resigned his position rather than continue the hazard of further employment with this young man acting as motorman. He violated the controller handle rule, which forbids a motorman to leave the car without taking his controller handle with him. He ordered the substation to shut down the power, clearly exceeding his authority. He refused to exchange passengers as ordered, thereby disobeying the direct order of the superintendent. He refused to obey the conductor's signal bells.
These varied acts of insubordination seem to us more potent in their tendency to establish character for willful disobedience than the repetition for an equal number of times of the same act, involving the precise element of character. The conduct of this servant as manifested by these various acts fully brings him within the rule of legal incompetency. In the legal sense, incompetency or unfitness is not predicated solely upon a want of ability and comprehension. It may be found side by side with even eminent skill, respecting the particular thing to be done, and yet that skill so often and persistently exercised in violation of rules, orders, and regulations as to establish a character for such reckless acts as to render a person, in every way mentally competent, legally incompetent. Such is the theory of the decisions.
In Consol. Coal Co. v. Seniger, 179 Ill. 370, 53 N. E. 733, the court say: “One is incompetent who is wanting in the requisite qualifications for the business intrusted to him. (He) was incompetent, if he was wanting in the qualifications required for the performance of the service, whether arising out of lack of knowledge or capacity, or other imprudence, indolence, or habitual carelessness." In Maitland v. Gilbert Paper Co., 97 Wis. 476, 72 N. W. 1129 [65 Am. St. Rep. 137), the court say: “A competent man is a reliable man. Incompetency exists not alone in physical or mental attributes, but in the disposition with which a person performs his duties, and, though he may be physically and mentally able to do all that is required of him, his disposition toward his work, and toward his employer and toward fellow servants, may make him an incompetent man. And it has been said in the recent case of Hamann v. Bridge Co., 127 Wis. 550, 105 N. W. 1084: "Incompetence in the law of negligence means want of ability suitable to the task, either as regards natural qualities or experience, or deficiency of disposition to use one's abilities and experience properly.”
Therefore, if the evidence of these specific acts of the servant was admissible to prove both incompetency and knowledge, then, the defendant being amply charged with knowledge, the jury were