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ness without the license. 11 This case is not only not overruled 12 by the cases last cited, but has recently been cited with approval.13 The net result seems to be that it is constitutional to use an absolute power of exclusion or expulsion to punish a failure to refrain from federal rights, but unconstitutional to bring the same pressure to bear to induce the making of an agreement whose vice is its tendency toward the same result.

If, then, it be unconstitutional to require agreement to a condition not to resort to the federal courts, it must be because the condition is of itself unconstitutional. Accordingly, it would seem that the presence of such a condition in a license issued to a corporation upon its entrance into a state could not prevent it, upon the acquisition of property, from becoming “a person within the jurisdiction" under the protecti of the Fo teenth Amendment, nor thereafter operate as an infirmity existing in the license ab initio to take it out from such protection. However, a recent case, wherein a corporation had acquired property under a license terminable upon a resort to the United States courts, holds that upon later breach of the condition the corporation ceased to be a person within the jurisdiction, and so allows this discriminatory expulsion. State ex rel

. Kimberlite Mining & Washing Co. v. Hodges, 169 S. W. 942 (Ark.). Even if the Fourteenth Amendment had not been violated, the result seems doubtful in the present state of the authorities. The cases permitting the expulsion of foreign corporations for seeking the federal courts 14 have recently been cited only to be distinguished,15 and it has since been held that a state cannot, by the threatened exercise of an absolute power of prohibiting the carrying on of intrastate business indirectly extort contributions measured by the interstate business of a company engaged in both.26 More recent language of the court recognizing the inviolability of the constitutional right to invoke federal jurisdiction in proper cases,? and in another place, hinting at the unconstitutionality of imposing upon the entrance of foreign corporations conditions violating constitutional rights,18 makes one wonder whether indirect state attack upon the right to resort to federal courts will any longer be permitted.19

11 Barron v. Burnside, 121 U. S. 186. The principal federal case based its result on this decision although the corporation had not expressly agreed in advance not to sue in the federal courts.

12 See Security Mutual Life Ins. Co. v. Prewitt, supra, 253.
13 See Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 36.
14 See note io, supra.

15 See Harrison v. St. Louis & San Francisco R. Co., 232 U. S. 318, 333; Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 45.

16 Western Union Telegraph Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56; Ludwig v. Western Union Telegraph Co., 216 U. S. 146. These cases are perhaps explainable on the ground that the inseparability of the interstate and intrastate business made the prohibition of the latter a burden upon the former. See Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 85, 86.

17 “. . . The states are in the nature of things without authority to penalize or punish one who has sought to avail himself of the federal right of removal on the ground that the removal asked was unauthorized or illegal.” White, C. J., in Harrison o. St. Louis & San Francisco R. Co., supra, at 329.

18 “For example, a state may not say to a foreign corporation, you may do business within our borders if you permit your property to be taken without due process of law. . . Day, J., in Baltic Mining Co. v. Massachusetts, supra, 83.

19 For a general discussion of similar conflicts between state and federal powers, see an article entitled “Nullification by Indirection," 23 Harv. L. REV. 441.

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Right OF MASTER, LIABLE UNDER EMPLOYERS' LIABILITY ACT, TO REIMBURSEMENT FROM ONE WHO INJURES SERVANT. – Though recovery has almost invariably been granted to anyone who has been intentionally injured by being deprived of a contractual or similar right, through action upon a third party, nevertheless, except in the historically anomalous suits for loss of services, if such injury to the plaintiff was negligent and unintentional, though occasioned even by an intentional injury to a third person, recovery has generally been denied. Accordingly when an employer is compelled, under an employers' liability act, to compensate his employee for an injury caused by the negligence of a third person, it is no surprise that a recent New Jersey case denies the right of the employer to recover from the tortfeasor. Interstate Telephone and Telegraph Co. v. Public Service Electric Co., 90 Atl. 1062.4 But, with all question of the policy of the employers' liability act aside, there seems to be no reason why recovery should be denied. In civil actions, since no question of punishment or correction is involved, no general distinction should be made between intentional injuries and injuries caused by acting without “due care” when damage to the plaintiff is a foreseeable result. If the duty and the causation are clear, it is not a valid reason for denying recovery that the damage would not have occurred but for the existence of some obligation or some chance of profit.

Often, however, where the plaintiff thus suffers loss from injury to a third party, the injury to the plaintiff is not separate. Thus where the plaintiff has insured the injured party, if it is a true contract of indemnity, the operation of the contract is merely to shift the burden of the primary injury to the plaintiff's shoulders. In such cases, as, for example, marine and fire insurance, the plaintiff's redress should therefore be by subrogation, since to allow an independent recovery would make the defendant liable in two actions for a single harm.? But in con

1 Lumley v. Gye, 2 L. & B. 216; South Wales Miners' Federation v. Glamorgan Coal Co., (1905] A. C. 239; Walker v. Cronin, 107 Mass. 555; Hughes v. McDonough, 43 N. J. 459; McNary v. Chamberlain, 34 Conn. 384.

2 Husband suing for injury to wife: Brockbank v. Whitehaven Junction Ry. Co., 7 H. & N. 834; Mewhirter o. Hatten, 42 Ia. 288. Father suing for injury to child: Dennis v. Clark, 2 Cush. (Mass.) 347; Dixon v. Bell, 5 M. & S. 198. See Hall v. Hollander, 4 B. & C. 660. Master suing for injury to servant: Ames v. Union Ry. Co., 117 Mass. 541; Berringer v. Great Eastern Rý. Co., 4 C. P. D. 163. The fact that the wife cannot sue for an injury to her spouse, nor a child for an injury to its parent, demonstrates that these cases are not distinguishable on the ground that the injury to the plaintiff is by deprivation of a relational as distinguished from a contractual right. Feneff v. New York Central & H. R. R. Co., 203 Mass. 278, 89 N. E. 436.

3 Anthony v. Slaid, 11 Metc. (Mass.) 290; Byrd v. English, 117 Ga. 191, 43 S. E. 419; Dale v. Grant, 34 N. J. L. 142; Davis v. Condit, 124 Minn. 365, 144 N. W. 1089; see 27 HARV L. Rev. 689. But see Metallic Compression Casting Co. v. Fitchburg Ry. Co., 109 Mass. 277; Cue v. Breeland, 78 Miss. 864, 29 So. 850. The problem of liability when the plaintiff has been injured through being deprived of a chance of gain, is considered in the discussion of the case of Central Georgia Power Co. v. Stubbs, 80 S. E. 636 (Ga.), 27 Harv. L. REV. 689.

• A fuller statement of this case appears in RECENT CASES, P. 333. 5 See POLLOCK, TORts, 9 ed., p. 22.

6 See Phænix Ins. Co.v. Erie & estern Transportation Co., 117 U. S. 312; Home Mutual Ins. Co. v. Oregon Ry. & Nav. Co., 20 Ore. 569, 26 Pac. 857.

? That subrogation becomes valueless in cases when some rule of law bars the insured from recovering from the tortfeasor, does not demonstrate that the harm to the


tracts for the payment of a compensation, not of an indemnity, where, as in life and accident insurance, payment cannot be accurately adjusted to the loss, the injury to the plaintiff is clearly additional to that to the party directly harmed, and subrogation is properly denied. 8 Unfortunately, direct remedy for the plaintiff's separate injury has here been likewise refused.' In the case of employers' liability, the facts that the compensation is determined according to an arbitrary scale, and that only partial wages are paid during incapacity, strengthened by the analogy to life and accident insurance, clearly show that the compensation is in the nature of a bonus and not an indemnity.10 So no remedy by subrogation can be given. But if the fact of the servant's employment is known, even under an optional form of employers' liability act, it is abundantly foreseeable that an injury to him might involve an injury to his master. This injury to the master is therefore the proximate result of negligent injury to the servant, and a duty of care to the master likewise arises. Thus, although the principal case is in accord with the weight of authority in analogous cases, the principles of tort liability demand that direct recovery be granted.

But does the policy of employers' liability acts change this common law situation? The broad scope and the essentially remedial nature of these acts demand that the fundamental purpose of the legislation be made operative by a liberal construction. It is generally insurer is separate; it merely means that the harm which the insured has been able to shift to the insurer is an injury for which the law allows no recovery.

8 Life insurance: Insurance Co. v. Brame, 95 U. S. 754. Accident insurance: Ætna Life Ins. Co. v. J. B. Parker & Co., 96 Tex. 287, 72 S. W. 168, 621.

9 Conn. Mutual Life Ins. Co. o. New York, etc. Co., 25 Conn. 265.

10 See RUEGG, EMPLOYERS' LIABILITY, 6 ed., 360. For the schedule of payment under the New Jersey act in force in the principal case, see N. J. P. L., 1911,

p. 133. 11 See Jeremiah Smith, “Legal Cause in Actions of Tort,” 25 Harv. L. Rev. 103, pp. 114-123.

12 Many courts have enunciated a rule that statutes in derogation of the common law must be strictly construed. See State o. Cowper, 120 Tenn. 549, 533, 113 S. W. 1048, 1049; Dean v. Metropolitan E. R. Co., 119 N. Y. 540, 547. A dictum in an old case applies this rule to a special statute very similar to an employers' liability act. See Beeson v. Busenbark, 44 Kan. 619, 623, 25 Pac. 48, 49. The trend of presentday opinion, however, is increasingly against any such principle. See Professor Pound, “Common Law and Legislation, 21 Harv. L. Rev. 283. Furthermore, it is a generally accepted doctrine that remedial statutes must be construed liberally and so as to make the intended remedy effective. See Becker v. Brown, 65 Neb. 264, 269, 91 N. W. 178, 180; Goss v. Cahill, 42 Barb. (N. Y.), 310, 315. Employers’ liability acts, though imposing on the employer a new liability, are essentially remedial legislation. Cf. Va. & S. W. Ry. Co. v. Clower, 102 Va. 867, 871, 47 S. E. 1003, 1004. Again, the large application of these acts makes a strong reason why they should be broadly interpreted. See Jeremiah Smith, “Sequel to Workmen's Compensation Acts," 27 Harv. L. REV. 235, 250, 330. In determining the extent of “accidents arising out of and in the course of the employment,” the courts have unfailingly construed the acts very liberally. Trim District School Board v. Kelley, (1914) A. C. 667, see especially the opinion of Lord Haldane on p. 680; Riley v. William Holland & Sons, (1911) 1 K. B. 1029; Moore v. Manchester Liners, (1910) A. C. 498; In re Hurle, 104 N. E. 336 (Mass.); Bryant v. Fissell

, 84 N. J. L. 72,86 Atl

. 458. In two decisions, though maintaining the collateral common-law rights of the employees, it was expressly declared that a liberal construction in favor of the employees must be given these acts. See Ryalls v. Mechanics Mills, 150 Mass. 190, 193, 22 N. E. 766, 767; Colo. Milling, etc. Co. v. Mitchell, 26 Colo. 284, 287, 58 Pac. 28, 30. Indeed it has been argued that these acts have created a relational status between employer and employed. Dicer, LAW AND PUBLIC OPINION IN ENGLAND, 281-283.

conceded that this purpose is to cause the employer, who is able to transfer the burden to the consumer,13 to give a prompt and certain pecuniary relief to the workman who has been injured in his employment.14 Though to allow the employer to recover from one employee for the negligent injury to another for which the act has forced the employer to pay compensation, would undeniably be to place upon the employee the burden of an industrial injury, the acts do not contemplate giving the employee any other relief than compensation for industrial casualties. A fortiori, a negligent stranger is not given any protection by the act.16 That many of the recent statutes have expressly given to the employer, to the extent of the compensation paid, a right of recovery over against the tortfeasor, yet, with but three exceptions, have not distinguished the negligent servant from the stranger, strengthens these conclusions.16 However, it is more consistent economically to cause the industry as a part of the cost of production not only to supply relief to the incapacitated servant, but to assume the burden of all industrial injury of its employees. Hence, as legislation, statutes which forbid recovery by the employer against his negligent employee are preferable. Still the right of the master to recover on the principles of tort liability is not denied by the present statutes.17


TAXPAYER'S SUIT TO ENJOIN ELECTIONS ALLEGED NOT TO BE LEGALLY AUTHORIZED. — When a public official purporting to perform the duties of his office commits an illegal act, not only may the state call him to account by the exercise of the so-called prerogative writs, but equity, at the suit of any person injured by the wrongful proceedings, will enjoin the violation of the plaintiff's rights. The authorities are in confusion,


2 TaussiG, PRINCIPLES OF ECONOMICS, 326. 14 See Professor Wambaugh, “Workmen's Compensation Act,” 25 Harv. L. Rev. I 29, 132.

15 This problem is dealt with at length by Jeremiah Smith in his article on “Sequel to Workmen's Compensation Acts,supra.

16 Recovery over to the extent of the compensation paid is granted the employer without qualification in the following statutes: Cal. L. 1913, ch. 176; Conn. L. 1913, ch. I 38; ILL. BILL 845, I913; Iowa L. II 3, ch. I47; KAN. L. I9II, ch. 2 I8; NEB. L. 1953, ch. I98; NEV. L. II 3, ch. I98; N. J. L. ISI 3, che 95; R. I. L. I91 2, ch. 831; Wis. L. 1911, ch. 50; 60 & 61 Vict., c. 37, 86. In New York, the right of subrogation is limited to cases where the tortfeasor was not in the same employ. L. 1913, ch. 81; CONSOLIDATED Laws, ch. 67. In Oregon and Washington the right of recovery over is limited to accidents away from the employer's plant. ORE. L. 1913, ch. 112; WASH. L. I9II, ch. 74.

17 The opinion in the principal case describes the compensation paid the employee as past wages, and therefore not subject to recovery. This, it is submitted, overlooks the fact that the obligation is contingent, be the compensation in the nature of wages or otherwise, and therefore the liability thrust upon the employer is a damage which he would not otherwise have suffered.

1 For a learned discussion of the relation of injunction to the legal prerogative writs, see State v. Lord, 28 Ore. 498, 510, 43 Pac. 471, 474. When the plaintiff has the alternative to apply for mandamus, he may be denied equitable relief. Larcom 9. Olin, 160 Mass. 102, 35 N. E. 113.

2 Crampton v. Zabriskie, 101 U. S. 601; Osborn v. Bank of United States, 9 Wheat. (U. S.) 738; Board of Liquidation o. McComb, 92 U. S. 531.

however, as to the extent of the latter jurisdiction in such cases and the theory upon which the right to relief is based. Particularly conflicting are the decisions upon the right of a taxpayer to enjoin unauthorized acts by a state official which involve the expenditure of public funds and thereby affect the burden of taxation borne by the plaintiff. In a recent New York case a taxpayer was refused an injunction to restrain state election officials from proceeding with an election of delegates to a constitutional convention which was alleged not to be legally authorized. Schieffelin v. Komfort, 212 N. Y. 520.3

In suits of this nature the jurisdiction of equity rests not upon the defendant's breach of a "public trust," although this is sometimes stated, for of course it is not the sort of a technical trust the existence of which gives equity jurisdiction. It rests instead upon the invasion of the plaintiff's right of substance, or, as it is commonly expressed, a property right. This is well shown by the fact that although there may be a breach of public duty, no injunction will be granted if the taxpayer can show no pecuniary damage. And as the courts cannot enjoin the state, either as such or as represented in its executive officers, relief must be denied where the injury to the plaintiff is being caused by officers acting under valid authority but in abuse of the discretion given them.? If, however, the act complained of is plainly unauthorized by law, as where it is the execution of an unconstitutional statute, the official in committing it does not represent the state and is as much subject to the decree of the court as a private person. In the principal case, illegality of both kinds was alleged: in counting the ballots cast for and against holding the convention, and in having held the first election under an unconstitutional statute. Equity could not take jurisdiction upon the first ground, not only because it was a matter of official discretion, but also because the court was bound to follow the facts as to the number of votes cast which had been determined by the executive department. But on the latter ground equity had jurisdiction.

Although jurisdiction exists, before granting injunctive relief, the court should balance any possible public harm its decree might cause against the injury done the plaintiff. It is obvious that there are cogent

3 See, for a full statement of this case, this issue of the REVIEW, page 327.

* See City of Chicago v. Collins, 175 III. 445. This was also stated to be the ground of the jurisdiction in 26 Harv. L. Rev. 455.

6 Against state officials: State v. Pennoyer, 26 Ore. 205, 37 Pac. 906; 28 Ore. 498, 43 Pac. 471; Sherman v. Bellows, 24 Ore. 553, 34 Pac. 549; Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683; Whitbeck v. Hooker, 133 N. Y. Supp. 534; State o. Cunningham, 83 Wis. 90, 53 N. W. 35; and see Slack v. Jacob, 8 W. Va. 612; Frost v. Thomas, 26 Colo. 222, 56 Pac. 899. Against county or municipal officers: Ex parte Lumsden, 41 S. C. 553, 19 S. E. 749; Morgan v. Wetzel County Court, 53 W. Va. 372, 44 S. E. 182; Jones v. Black, 48 Ála. 540; Fletcher v. Tuttle, su pra; In re Reynolds, 202 N. Y.430, 96 N. E. 87.

6 See the authorities digested in a note to Louisville & N.R. Co.o. Burr, 63 Fla. 491, 58 So. 543, in 44 L. R. A. N. S. 189.

7 See Hutchinson v. Skinner, 49 N. Y. Supp. 360; Long v. Johnson, 127 N. Y. Supp. 756; Duncan v. Heyward, 74 S. C. 560, 54 S. E. 760. It will not do, however, to say that only ministerial acts may be enjoined. Granted that the statute is unconstitutional, the amount of discretion purported to be given by the void act is immaterial. But see Noble v. Union R. L. R. Co., 147 U. S. 165, 172, following Mr. Justice Bradley, in Board of Liquidation v. McComb, supra, 541.

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