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Mass. 464, 111 N. E. 358, L. R. A. 1916D, , cluding his employers provides, that “* 371. And the trial for alleged infraction of so long as these local unions are in a posihis obligations having been conducted as the tion to furnish help to do the work no other master finds in accordance with the constitu- help may be employed.” The defendants tion, his expulsion is not reviewable and nevertheless were not seeking its protection the bill as amended cannot be maintained un- for the economic purpose of furnishing work der the first prayer, that the defendants be for their own members, where if this were enjoined "from excluding him from access not done there would not be enough work to their meetings and from membership." to keep them employed, which was the moSpilman v. Supreme Council of the Home tive underlying the strike decided to be lawCircle, 157 Mass. 128, 31 N. E. 776. But ful in Minasian v. Osborne, 210 Mass. 250, 96 upon severance his interest in the funds and N. E. 1036, 37 L. R. A. (N. S.) 179, Ann, Cas. property, of the association ended, nor was 1912C, 1299. Nor were they actuated by a he bound by the purposes, or amenable to desire to conserve and promote the welfare the penal code of the body with which he of the plaintiff and his employers through had been affiliated, and in so far as the de- the offer of friendly advice. Tasker v. Stanfendants were concerned his right to dispose ley, 153 Mass. 148, 150, 26 N. E. 417, 10 L, R. of his own labor according to his own will A. 468. But to preserve and to compel dishad not been abrogated or restricted. Mc- cipline in their own ranks they intended to Fadden v. Murphy, 149 Mass. 341, 21 N.' E. proscribe the plaintiff, who had become a SOS; Plant v. Woods, 176 Mass. 492, 57 N. member of a rival organization and business E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. competitor of the association. It may be 330; Berry v. Donovan, 188 Mass. 353, 74 added, that at the date of the agreement X. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. the plaintiff had been employed for many Rep. 499, 3 Ann. Cas, 738.

years under a contract at will which does The first paragraph of the amended bill not appear to have been dependent upon a alleges and the answer admits, that when condition that he should be and remain a expelled he had been employed at lasting member of any organization. The plaintiff's shoes in a local factory for nearly eight expulsion did not automatically terminate years; and the master reports that his work this employment, and his continuance at being satisfactory, he would have been re his work until retired solely through their tained except for the concerted action and efforts, did not as between themselves conconduct of the defendants. Their dominant stitute a breach of the peace pact or agreepurpose and controlling motive in procuring ment for which he would be liable to the his discharge shortly after expulsion, as well defendants in damages. Warren v. Stearns, as his discharge when he subsequently ob- 19 Pick. 73; Byrne v. Dorey, 221 Mass. 399, tained employment with another shoe com- | 404, 109 N. E. 146; Moran v. Dunphy, 177 pany which knew that he was no longer a Mass. 485, 59 N. E. 125, 52 L. R. A. 115, 83 member of the United Shoe Workers is found Am. St. Rep. 289. to have been, “to punish him and hold him The report while stating that the plaintiff up as an example before their membership,” has lost the benefit of his contracts of emand the letters which they caused to be sent, ployment goes further. It is specifically were "to induce the plaintiff's employer in found "that by reason of the control which each instance to discharge” him. The jus the defendants and their organization estification pleaded in the sixth paragraph of ercised over the shoe industry of the city of the answer is, that the plaintiff "had been Lynn it will be impossible for the plaintiff a party to an agreement a copy of which is to obtain work with at least ninety per cent. hereto annexed, and that the employers men- of the shoe manufacturers of Lynn in which tioned by him in his bill of complaint were the labor is controlled by the United Shoe also parties to said agreement; that the Workers of America and further as a marked plaintiff violated his agreement and that if man it is highly improbable that he could any action was taken by his employer or any obtain and keep employment in the remainother person which resulted in injury to ing ten per cent. of the shoe factories of him,

said action was the direct | Lynn." result of his own unlawful acts in violating (5, 6] The plaintiff manifestly is a sufferer and repudiating his agreement."

from the consequences of an intentional and It is unnecessary to pass on the validity a successful boycott. If he had ceased to of the agreement which is an instrument un. work at his calling and had engaged in trade der seal, or to decide whether the manu- the attempt to deprive him of his customers facturers or the members of the association and to destroy his business by the methods could have compelled specific performance, described would have been under the masfor in the light of the findings quoted this de- ter's findings an actionable wrong. Burnfence vanishes.

ham v. Dowd, 217 Mass. 351, 104 N. E. 841, [4] It is true that the fifth, and in this 51 L. R. A. (N. S.) 778. The right to acconnection the important, article of this quire property by labor is coequal with the agreement or "Peace Pact” entered into by right to acquire property by contract and the association when the plaintiff was a having the same right to sell his labor as he



nighest bidder, it is no less an actionable ssion of the contracting union's right, which wrong where the right to his handiwork as would be enjoined. a means of subsistence has been malevolently

[Ed. Note.-For other cases, see Injunction,

Dec. Dig. Om 63.] taken away or impaired under industrial conditions which the defendants knew would so 5. APPEAL AND ERROR 173(6) UNTRIED

THEORIES-REVIEW. operate as to make his further employment

In a suit by members and representatives of in the community where he resides extremely a labor union to enjoin another union from precarious if not practically impossible. Ber- breaking certain agreements between plaintiff unry v. Donovan, 188 Mass. 353, 355, 74 N. E. ion and employers, where the trial did not pro603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. and violation of Stats. 1911, c. 503, added to the

ceed on the issues of the defense of monopoly 499, 3 Ann. Cas. 738, and cases cited; Hoban answer by amendment, it was unnecessary to v. Dempsey, 217 Mass. 166, 170, 104 N. E. consider such issues on appeal. 717, L. R. A. 1915A, 1217, Ann. Cas. 1915C, (Ed. Note.-For other cases, see Appeal and 810; Cornellier v. Haverhill Shoe Manu- Error, Cent. Dig. $ 1088; Dec. Dig. 173(6).] facturers Assn., 221 Mass. 554, 561, 109 N. Appeal from Supreme Judicial Court, SufE. 643, L. R. A. 1916C, 218; Bogni v. Perotti, folk County. 224 Mass. 152, 112 N. E. 853; Martin's Mod. Suit in equity for an injunction by Michael ern Law of Labor Unions, § 132. While it J. Tracey and another against Robert M. is apparent upon the record that the plain- Osborne and others. Decree for plaintiffs, tiff cannot be effectively aided by injunctive and defendants appeal. Decree afirmed. relief he is entitled to damages. Perry v.

Philip A. Kiely, of Lynn, for appellants. Pye, 215 Mass. 403, 413, 102 N. E. 653; New Fredk. W. Mansfield, of Boston, for appellees. England Cement Gun Co. v. McGivern, 218 Mass. 198, 204, 105 N. E. 885, L. R. A. 1916C,

RUGG, C. J. The plaintiffs are members 986. The decree dismissing the bill is reversed and a decree with costs is to be enter the United Shoe Workers of America. The

and representatives of a labor union called ed for the amount assessed by the master.

defendants formerly members of the same Ordered accordingly.

union, are now members and representatives of another union called the Lasters' Protec

tive Union of Lynn. Both these unions are (226 Mass. 25)

voluntary unincorporated associations. This TRACEY et al. v. OSBORNE et al.

is a suit in equity whereby the plaintiffs (Supreme Judicial Court of Massachusetts.

seek to restrain the defendants from taking Suffolk. Jan. 26, 1917.)

any action to cause or intended to cause any

parties to break certain agreements, to which 1. APPEAL AND ERROR O907(2)—FINDING OF the plaintiffs are parties, to employ members MASTER-CONCLUSIVENESS.

Where the evidence is not reported, a mas- of the plaintiff union, and particularly from ter's general finding must stand.

calling any strike directed to that end. (Ed. Note.-For other cases, see Appeal and The case was sent to a master, whose findError, Cent. Dig. 88 2911-2913, 2915, 2916; ings so far as now material are that for sevDec. Dig. C907(2).]

eral years prior to 1915, there existed in the 2. APPEAL AND ERROR Om 931(10)–FINDINGS city of Lynn several local branches of the -PRESUMPTION. In the absence of specific findings, it may be

United Shoe Workers. Composed of three presumed in favor of the master's general find- delegates from each of these branches was ing that certain agreements between a labor un- a suborganization known as Joint Council ion and certain manufacturers were proper and No. 1, designed to secure concentration of executed in the manner and by the agencies pro- authority and efficiency of administration. vided by the constitution of the union that the It was authorized by the constitution of the powers exercised might be delegated by the upion's general executive board.

union “to make agreements with manufac[Ed. Note.–For other cases, see Appeal and turers when prices and conditions are satisError, Cent. Dig. § 3728; Dec. Dig. Om931(10).) factory to said Joint Council. Said agree3. CONSPIRACY Om8 CONTRACTS WITH EM-ment (sic) to be of a uniform nature and to PLOYERS-LEGALITY.

be issued by the General Executive Board." An agreement stipulating that one named in the early part of 1915, at the initiative of labor union, so long as it was able to do it, should have all the work of a particular em

one Enwright, the publisher of a newspaper ployer, freely entered into for no purpose other in Lynn, there was a movement for the purthan the mutual advantage of the contracting pose of formulating some agreement between parties, was within the limitation of allowable manufacturers and workmen to promote incompetition, and legal.

dustrial peace. [Ed. Note.-For other cases, see Conspiracy,

As a result an agreement Cent. Dig. $8 7-11; Dec. Dig. 8.)

popularly known as the “Peace Pact" was 4. INJUNCTION OM 63 – INDUCING BREACH OF

framed. These agreements, identical in form, CONTRACT.

each to be signed by a representative of the Where a labor union and certain employers Joint Council No. 1 of the United Shoe stipulated that the union, so long as it was able Workers, and by some manufacturer who to do it, should have all the employers' work, another labor union's exertion of pressure upon chose to adopt it, were to continue in force the employés to break the contract was an inva-l one year with stipulation for further exten

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

sion and provided for the adjustment of any plaintiff union, or for any purpose other than differences that might arise between the con- the mutual advantage of the contracting par. tracting parties and that there should be no ties. It was entered into freely and not strikes or lockouts or cessation of work pend- under compulsion or coercion. It was not ening a decision as to differences, and that all tered into with a purpose to harm anybody. work of the employer in certain designated This does not infringe upon the principles esrooms and departments should be done by tablished in Berry V. Donovan, 188 Mass. members of the United Shoe Workers, and 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 that, so long as there was a sufficient num- | Am. St. Rep. 499, 3 Ann. Cas. 738, and Shinber of these to do the work, no other help be sky V. Tracey, 114 N. E. 957, for decisive employed. Other clauses regulated different facts there present are not found in the aspects of the relations between the employer case at bar. The case at bar also is distinand the members of the plaintiff union. guishable from Folsom v. Lewis, 208 Mass.

[1, 2] The master found that the agree- 336, 94 N. E. 316, 35 L. R. A. (N. S.) 787, ments were prepared and executed in the Hanson v. Innis, 211 Mass. 301, 97 N. E. 756, manner and by the agencies provided by the and similar decisions. constitution of the United Shoe Workers. [4] The finding that the defendants have There are no subsidiary findings inconsist- sought to exert pressure upon some of the ent with this general conclusion and, since employers to break their contracts of em. the evidence is not reported, it must stand.ployment with members of the plaintiff unThe form of the agreement was indorsed ion is direct and unequivocal and is supportunanimously by the resident committee of the ed by ample facts set forth in the report. general executive board and copies of it were Such conduct was a clear invasion of rights printed by the general executive board and of the plaintiff for which the law will provide furnished to the Joint Council No. 1. This a remedy. Berry v. Donovan, 188 Mass. 353, might have been found to be a substantial 74 N. E 603, 5 L. R. A. (N. S.) 899, 108 Am. compliance with terms of the governing arti- St. Rep. 499, 3 Ann. Cas. 738; Truax iv. cle of the constitution, The general execu- Raich, 239 U. S. 33, and cases cited at 38, 36 tive board appears to have acted in some re- Sup. Ct. 7, 60 L. Ed. 131. L. R. A. 1916D, 545. spects through what is termed a resident The rights secured to the plaintiffs under committee. Its powers by custom or other their contracts are such as are protected in wise are not set out in the master's report. the ordinary case by injunction. Beekman In the absence of specific findings it may be v. Masters, 195 Mass. 205, 80 N. E. 817, 11 L. presumed in favor of the general finding that R. A. (N. S.) 201, 122 Am. St. Rep. 232, 11 the powers here exercised may be delegated Ann. Cas. 332. This principle often has been by the general executive board. So far as the applied to labor cases and is pertinent to the agreement was modified, after approval by facts here disclosed. Bogni v. Perotti, 224 the general executive board, if indeed in any Mass. 152, 153, and cases cited at 153, 112 N. instance there was a material change, it does E. 853; Fairbanks v. McDonald, 219 Mass. not appear to affect any of the manufactur- | 291, 106 N. E. 1000; Burnham v. Dowd, 217 ers referred to in the report as having signed Mass. 351, 104 N. E. 841, 51 L. R. A. (N. S.) the contract.

778; Reynolds v. Davis, 198 Mass. 294, 84 N. [3] The contract in its general outlines is E. 457, 17 L. R. A. (N. S.) 162. similar to that held legal in Hoban.v. Demp [5] The defense of monopoly and violation sey, 217 Mass. 166, 104 N. E. 717, L. R. A. of St. 1911, c. 503, was added to the answer 1915A, 1217, Ann. Cas. 1915C, 810. In this by amendment after the master's report was aspect the case at bar is governed by that de filed. It is manifest that the trial did not cision. It is putting in the form of an agree proceed on these issues. The mind of the ment a stipulation that one named labor master was not directed to them. The report union shall have, so long as it is able to do is not framed with a view to the determinait, all the work of the particular employer, tion of these questions, and it is lacking in a a demand held to be within the limits of al. inding of facts directed to that end and eslowable competition in Pickett v. Walsh, 192 sential for a decision. Hence it is unnecesMass. 572, 584, 78 N. E. 753, 6 L. R. A. (N. sary to consider these points. See Hoban v. S.) 1067, 116 Am. St. Rep. 272, 7 Ann. Cas. Dempsey, 217 Mass. 166, 104 N. E. 717, L. R. 638. The contract does not appear to have A. 1915A, 1217, Ann. Cas. 19150, 810, and been made for the purpose of injuring the cases cited at 171. defendants, who then were members of the Decree affirmed with costs.

(186 Ind. 67)

Under the provisions of section 1391, Burns GREER v. LAKE et al. (No. 23199.) 1914, jurisdiction in such event is given to (Supreme Court of Indiana. Feb. 1, 1917.) this court. Chicago, etc., R. CO. V. Anderson, 1. HIGHWAYS 41(1)→REPORT OF VIEWERS 182 Ind. 140, 105 N. E. 49; P., C., C. & St. LAND ACQUIRED-STATUTE.

L. Ry. Co. y. Sneath Glass Co., 183 Ind. 138, Under Burns' Ann. St. 1914, § 7717, re- 107 N. E. 72. Appellant was the contractor quiring road viewers and the surveyor to pre to build a free gravel road under the gravel pare a report containing the plans and specifications of the proposed highway which shall be road law. Section 7711 et seq., Burns 1914. accompanied by an accurate profile made by The act complained of was that of removing the engineer, and section 7718, providing that soil from certain of appellees' lands lying the report shall remain on file ten days during which any party interested may examine it, adjacent to the road constructed. and that the viewers shall assess damages just There is no dispute as to the facts. It aply due to any infant or incompetent person, and pears that the road in question was duly ortherefor on account of the uppropriation or in- dered built and the contract regularly let, jury to his property by the establishment or and that the engineer and superintendent of improvement of the highway, and that no dam- construction was properly appointed; that nges shall be recovered by any competent per appellees made no application to the viewers son unless claim shall have been made to the for damages as provided by section 7718, viewers before filing the supplemental report showing the damages awarded, a party inter- Burns 1914, and none was allowed; that a ested is required to examine only the report report was properly filed by the engineer and of the viewers to determine what land is to be viewers containing complete plans and spectaken, and a notation on the profile, made by the engineer, that additional land was to be ifications together with a profile of the road. taken, is not notice thereof, since it was the It also appears that there was written on the intention of the Legislature to authorize land profile, at the time it was submitted with the to be taken and to require the report to de: plans and specifications, the following notascribe the land sufficiently, so that owners could determine what was to be taken and make claim tion: therefor,

"At all places along the line of this road where (Ed. Note.-For other cases, see Highways, cuts or fills make it necessary to have a right Cent. Dig. $$ 90, 108-111, 114-116; Dec. Dig? of way wider than 30 feet, the said right of mw41(1).]

way shall be wide enough to enable the con

tractor to build the subgrade 20 feet wide with 2. EMINENT DOMAIN w234(2)—ACQUISITION ditches and side slopes as herein specified. OF LAND-DESCRIPTION-SUFFICIENCY.

“At all places where it is necessary to go A memorandum that, at all places where it outside of the line of the road to get dirt for emwas necessary to go outside the line of the pro- bankments, it shall be taken from a strip of posed highway to get dirt for embankments, it ground 33 feet wide on either side of said emshould be taken from the strip of ground of a bankment, but the inner edge of such excavation certain width on either side of said embankment, shall not be nearer than 3 feet to the edge of but that the inner edge of such excavation should said embankment. not be nearer than a certain distance to the "The dirt for such purpose is hereby conedge of the embankment, and that the dirt for demned." such purpose was thereby condemned, is too uncertain and indefinite to appropriate the lands

At the trial appellant offered this notation required for the taking of such dirt, since it as evidence and offered also to prove that would require the owner to employ an engineer all the damage complained of was within to determine whether any of his lands were the specification of this notation. The court to be taken and how much.

refused both offers of evidence. Appellant (Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 591; Dec. Dig. Cm 234(2).] admitted that he had taken the land com

plained of. Appeal from Circuit Court, Morgan Coun In this court appellant assigns as error the ty; Nathan A. Whitaker, Judge.

action of the court in overruling his motion Action by Martin Lake and others against for a new trial. The only errors thus asJames W. Greer for damages for trespass to signed and relied on in appellant's points real property. Judgment for the plaintiffs and authorities are the error of the court in for $40, and defendant appealed to the Ap- refusing the offered evidence above referred pellate Court, which transferred the cause to, and in giving, over appellant's objection, to the Supreme Court (114 N. E. 699). Judg. instruction numbered 5. Instruction 5 is as ment affirmed.

follows: Kivett & Kivett, of Martinsville, for appel in question, but insists that in doing so he was

"The defendant admits the taking of the dirt lant. Wm. H. Pigg and Homer L. McGinnis, acting under a contract with the board of comboth of Martinsville, for appellees.

missioners to construct and build a highway. I

instruct you that said contract did not authorize LAIRY, C. J. This appeal is from a judg. the defendant to go outside of the lines of

said highway, and, if he did so, he would be liament in the trial court for damages in the ble to the owner of the real estate from which sum of $40 for trespass to real property own- he took such dirt for the damages to said esed jointly by appellees. As the amount in tate." controversy is less than $50, nó appeal (1) The evidence in question was exclud. would lie to either the Supreme or Appel- ed and the instruction given on the theory late Courts except for the fact that there is that the strip of land from which the dirt in controversy the construction of a statute. I was taken had not been condemned. Appel

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and lodexes 114 N.E.-61

lant asserts that the plans, specifications, determining whether or not there was a and profile contained notice of the intention declaration of an intention to appropriate to condemn the land which was taken, and any part of his land, a party interested that, if appellees desired to receive compen- would be required only to examine the resation therefor, they were required to pro- port of the viewers, and a notation indorsed ceed in accordance with section 7718, Burns on the profile prepared by the engineer would 1914. Section 7717 of the statute provides be no notice to him of such intention, even that it shall be the duty of the viewers and though it were in proper form and otherwise surveyor to prepare and file in the office sufficient. of the county auditor a report prepared by [2] The memorandum on the profile was them containing, among other things, com- too uncertain and indefinite to constitute a plete plans and specifications of the pro- notice to any one of an intention to approposed highway, which report "shall be ac- priate any part of his lands for the procompanied by an accurate profile of each posed improvement. It does not specifically highway or part of highway to be improved, describe any land which would be affected showing by proper lines and figures the ele by the construction of the proposed cuts vation thereof at each one hundred feet of or grades or from which dirt would be reits length and the changes to be made there- moved in their construction in the manner in by excavation or filling, which profile proposed. It is evident that it would require shall be made by the engineer.” It must the services of an engineer to ascertain what be observed that the report containing the lands would be affected by the removal of complete plans and specifications is required dirt to make the fills. It cannot be presumed to be made and filed by the viewers, and that the lawmakers intended that private that the profile is to be made by the engi- property should be taken for a public use neer and is to accompany the report when without some more definite notice to the made. Section 7718 provides that said re

owner of the intention to make the approport shall remain on file ten days, during priation. which time any party interested may ex There was no error in giving the instrucamine it. This section further provides that tion complained of or in refusing to admit during such time said viewers shall assess the offered evidence. such damages as shall be justly due to any Judgment affirmed. infant, idiot, or person of unsound mind, and to any other person or corporation making

(186 Ind. 471) written claim therefor, on account of the

CINCINNATI, H. & D. R. CO. v. GROSS. * appropriation of or injury to his property

(No. 23209.) by the laying out or establishing of any (Supreme Court of Indiana. Jan. 30, 1917.) such new highway or any improvement of 1. APPEAL AND ERROR 193(9)–FAILURE TO any highway prescribed in such report. The DEMUR-EFFECT. section also provides that, at the next reg

In view of Acts 1911, c. 157, § 2, enumerular term of the board of commissioners, ating grounds of demurrer to a complaint and

providing that when a demurrer is filed on the after the expiration of the said ten days, ground that the complaint does not state a cause the viewers shall file a supplemental report of action, a memorandum shall be filed, stating setting forth the sums allowed as damages, wherein such pleading, is insufficient, and that together with a description of the property waive his right and therefore to question the

the party so demurring shall be deemed to in each case on account of which such dam- same for any defect not so specified, in a railages have been allowed, and that no dam- road servant's action for injuries, by failing ages shall be recovered by any person other to demur to a complaint, defendant waived å than an infant, idiot, or person of unsound of action, and cannot, on appeal, predicate error

consideration of its sufficiency to state a cause mind unless claim therefor shall have been in the giving of an instruction which authorized made by him to such viewers before the a verdict upon proof of material allegations of filing of such supplemental report.

the complaint.

(Ed. Note.--For other cases, see Appeal and The sections of the statute to which refer- Error, Cent. Dig. 88 1232–1236; Dec. Dig. ence has been made clearly indicate an in- 193(9); Pleading, Cent. Dig. 8 1366.) tention on the part of the Legislature to 2. APPEAL AND ERROR E171(3) — REVIEW – authorize the appropriation of land for the THEORY OF CASE. laying out of a new highway or for the im

Where a complaint is fairly open to the conprovement of any highway as prescribed in struction, placed on it by the trial court, that

construction will be adopted on appeal though the report. It is equally clear that the re- the complaint is open to another and equally port must show an intention to appropriate reasonable interpretation. lands with a sufficient description thereof

[Ed. Note. For other cases, see Appeal and to enable a person whose lands would be af- Error, Cent. Dig. SS 1056–1061 ; Dec. Dig.

171(3).] fected thereby to determine from an ex

3. APPEAL AND ERROR Om 216(2)-PRESERVAamination of such report that it was the TION OF GROUNDS OF REVIEW-INSTRUCTION purpose to appropriate a specific part of his -NECESSITY OF REQUEST. lands, otherwise he could have no oppor- utory rule that contributory negligence under

Where instructions which applied the stattunity to make a claim for damages as pro federal Employers' Liability Act, April 22, 1908, vided by the statute. For the purpose of c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, 88 For other cases sec same topic and KEY-NUMBER in al! Key-Numbered Digests and Indexes

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