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only the question for consideration as to whether or not the statute itself is constitutional. Judge Lurton then said:

That any one of the persons engaged in the retail lumber business might have made a fixed rule of conduct not to buy his stock from a producer or wholesaler who should sell to consumers in competition with himself is plain. No law which would infringe his freedom of contract in that particular would stand. But when the plaintiffs in error combine and agree that no one of them will trade with any producer or wholesaler who shall sell to a consumer within the trade range of any of them, quite another case is presented. An act harmless when done by one may become a public wrong when done by many, acting in concert, for it then takes on the form of a conspiracy, and may be prohibited or punished, if the result be hurtful to the public, or to the individual against whom the concerted action is directed. (Callan 1. Wilson, 127 U. S. 555, 556, 32 L. ed. 228, 8 Sup. Ct. Rep. 1301.)

But the plaintiffs in error say that the action which they have taken is purely defensive, and that they can not maintain themselves as independent dealers, supplying the consumer, if the producers or wholesalers from whom they buy may not be prevented from competing with them for the direct trade of the consumer.

For the purpose of suppressing this competition, they have not stopped with an individual obligation to refrain from dealing with one who sells within his own circle, and thereby deprives him of a possible customer, but have agreed not to deal with anyone who inakes sales to consumers, which sales might have been made by any one of the seventy-seven independent members of the association. Thus they have stripped themselves of all freedom of contract in order to compel those against whom they have combined to elect between their combined trade and that of consumers. That such an agreement is one in restraint of trade is undeniable, whatever the motive or necessity which has induced the compact. Whether it would be an illegal restraint at common law is not now for our determination. It is an illegal combination and conspiracy under the Mississippi statute. That is enough if the statute does not infringe the fourteenth amendment.

The argument that the situation is one which justified the defensive measures taken by the plaintiffs in error is one which we need neither refute nor concede. Neither are we required to consider any mere question of the expediency of such a law. It is a regulation of commerce purely intrastate,-a subject as entirely under the control of the State as is the delegated control over interstate commerce exercised by the l'nited States. The power exerci-ed is the police power reserved to the States. The limitation upon its exercise, contained in the Federal Constitution, is found in the fourteenth amendment, whereby no State may pass any law by which a citizen is deprived of life, liberty, or property without due process of law. A like limitation upon the legislative power will be found in the constitution of each State. That legislation might be so arbitrary or so irrational in depriving a citizen of freedom of contract as to come under the condemnation of the amendment may be conceded.

In dealing with certain Kansas legislation in regulation of state commerce, which was claimed to be so extreme as to be an unwar


ranted infringement of liberty of contract, this court, in Smiley ". Kansas, 196 U. S. 117, 157, 19 L. ed. 516, 551, 25 Sup. Ct. Rep. 289, 291, said:

- Undoubtedly there is a certain freedom of contract which can not be destroyed by legislative enactment. In pursuance of that freedom, parties may seek to further their business interests, and it may not he always easy to draw the line between those contracts which are heyond the reach of the police power, and those which are subject to prohibition or restraint. But a secret arrangement, by which, under penalties, an apparently existing competition among all the dealers in a community in one of the necessaries of life is substantially destroyed, without any merging of interests through partnership or incorporation, is one to which the police power extends. That is as far as we need to go in sustaining the judgment in this case."

We confine ourselves to so much of the act assailed as was construel and applied in the present case. If there should arise a case in which this legislation is sought to be applied where any interference with freedom of contract would be beyond legislative restraint, it will be time enough for interference by the courts.

The excessive penalties provided by the Mississippi statutes have been urged as making the act inconstitutional under Ex parte Young, 209 U. S. 123, 28 Sup. Ct. Rep. 441. No penalties were demandeid in the present case, the State contenting itself with a bill in equity to dissolve the association. The penalty provisions are plainly separable from the section under which such a combination is declared illegal. The penalty section not being invoked, we are not called upon to give any opinion in respect to it.

It is enough to say that the act, as construed and applied to the facts of this case by the supreme court of Mississippi, exhibits no such restraint npon liberty of contract as to violate the Federal Constitution. The decree must therefore be aflirmed.

EMPLOYERS' LIABILITY-FELLOW-SERVANTS-COURSE OF EMPLOYMENT-LIABILITY OF FOREMEN- Joyse 1. Vorthern Pacific Railurry Company, Supreme Court of Jontano, 108 Pacific Reporter, page 1062.-E. E. Moyse was a conductor in the employment of the railroad company named and had secured judgment against the company and two of its employees, yard foremen in the yard in which Mouse was injured. From this judgment an appeal was taken, with the result that as to one of the foremen the action was dismissed and as to the company and the other foreman the judgment was affirmed.

Moyse had brought his train to the freight yard at Butte, Mont., and having registered his arrival on the evening of August 16, 1906, was notified that he would not be required to go on duty again until the morning of the 18th. IIe, with the brakemen of his train, spent the day in the city of Butte, returning at night to the freight yard to sleep in the caboose, as was the fixed custom of the employees of the company. The caboose was placed on a spur track ending at an

excavation, with no protection to prevent its running into the same. There was a slope toward the excavation, but with the brakes set, barring accidents, it was considered reasonably safe to occupy the caboose for sleeping purposes. After the men had retired the yard crew ran other cars upon the spur on which the caboose stood and left them standing, apparently held securely by their own brakes. During their brief absence these cars and the caboose disappeared, having been released in some manner and running together into the excavation. Whalen, who was the head foreman of the yard and a joint defendant with the company, had gone off duty some time before the accident occurred, and had left Doyle, next in rank, in charge of the work.

Numerous contentions were made by the company, among others that loyse was not actually an employee of the company at the time of the accident so as to be within the protection of the law fixing the relation of master and servant; also that he was guilty of contributory negligence, and that he assumed the risk of such injuries as he sustained. The two foremen interposed the same defenses in separate answers. The opinion of the court was delivered by Judge Brantly and was based principally on the ground that the relation of employer and employee continued and that the master therefore owed to him the duty of providing a safe place. The opinion is in part as follows:

The complaint is framed upon the theory that the defendant company is liable to the plaintiff, as one of its employees, for injuries received while engaged in the discharge of his duties, through the negligence of other employees, and that the other defendants are liable because they were personally guilty of the acts of negligence which caused the injury. It declares upon the statute which abolishes the fellow-servant rule. (Rev. Codes, sec. 5251.) The acts charged as negligence are the handling of the cars by the yard crew in making up the train in such manner as to permit ihem to escape and collide with the caboose, driving it into the excavation, and the omission by defendants to provide some device, at the brink of the excavation, to prevent the caboose from being precipitated therein, if from any cause it escaped.

The first contention made by the counsel is that the evidence is insuficient to ju-tify the verdict, for that it appears that at the time the plaintiff was injured he was not engaged actively in the discharge of duties for which he was employed by the company, but was a mere licensee upon its property, to whom it and its employees owed no duty other than to refrain from doing him a willful or wanton injury; and hence that no liability can be predicated upon the statute. In support of this contention counsel argue that, while one is in the employ of another under a contract, he is, in a popular sense, an employee during the entire period covered by the contract; yet the rights and duties incident to the relation of master and servant, in a legal sense, do not subsist, except during the time which, under his contract, he must actively devote to the duties of his employment. To make the statement in another way: Unless the servant is at a particular time under the control of the master, giving his time and attention to the particular duties he is employed to do, he is pro hac vice a stranger, to whom the master, as such, owes no duty whatever, except such as he must observe toward any other stranger under the social compact.

While the statute has to do exclusively with those persons who sustain toward each other the relation of master and servant, it does not undertake to define who those persons are, but merely imposes certain rights and liabilities upon them, leaving it to the courts to determine when persons have assumed the relation.

The facts and circumstances which appear from the statement of the evidence before us furnish support for the inference that, during the entire time when the plaintiff was away from his home terminal, he was, except when notified that his services were not wanted, subject to be called on duty. He was required to be within call, and, as he understood the rules, was subject to discipline if he was not. It is also a fair inference that though he was not under his contract required to occupy the caboose at night, he was nevertheless expected to do so, and not only this, but that he had a right to do SO,

because it was under all the circumstances a substantial privilege accorded to him under the contract, which the company was not at liberty to withdraw at will. If these inferences are permissible, and we think they are, then the conclusion seems inevitable that he was in the caboose in the course of his employment, and that the members of the yard crew were his fellow-servants, for whose negligence the company is liable under the statute.

The conclusion we have reached, that the plaintiff was in the caboose for the purpose of being within call by the defendant company to go on duty, and was therefore in the discharge of his duties, involves the conclusion, also, that he was not there as a mere licensee, and that the rule of liability declared by the statute applies to the case made by the evidence. It is not at all conclusive that the pay of the plaintiff ceased when he registered in on his arrival at Butte. In the light of the evidence, under the contract of employment it was within the contemplation of both parties that he should hold himself subject to the order of the company after his pay had ceased; and it seems clear that a contract including a stipulation of this kind, express or implied, is not open to any legal objection.

Under the circumstances disclosed, the obligation was upon the company to use ordinary care to provide a reasonably safe place for the use of plaintiff, and to maintain it in that condition.

The evidence tends to show that but for the escape of the loaded cars, which the ordinary precaution of securely setting the brakes would have prevented, the accident would not have occurred. For this lapse of duty the defendant company is liable, as is also the defendant Doyle; for, for the time being, he stood in the place of the company, and it was his personal duty to see that the proper precautions were observed. But we are of the opinion that a separate motion for nonsuit, made on behalf of Whalen, should have been sustained. It is true that he was foreman of the yards and had general direction of the operations there, as the immediate superior of Doyle. Yet he was off duty at his home at the time of the accident. He was not, under the evidence, responsible for the unguarded condition of the excavation. It was a primary duty of the company to take precaution with reference to it; and under the rule he was not required to do anything further than to direct the movement of cars and observe the precautions attending the performance of that duty. And since he was not actively on duty in this regard at the time of the accident, he can not be held either for personal neglect of duty, nor as an intermediate agent of the company.

It is said that the plaintiff knew and understood the danger of the situation, and therefore, by going to sleep in the caboose, he assumed the risk. There is no merit in this contention. That the place was not safe is apparent. He assumed the risk of all dangers ordinarily incident to the handling of cars under the circumstances as he saw them. Among these was a likelihood of injury due to the bumping of cars against the caboose during the making up of a train; but he had no cause to think when he went into the caboose that the yard crew would omit to observe ordinary precautions to secure the cars by means of the brakes, and thus add to the perils which he did assume. He was entitled to assume, looking to all the conditions as they actually were, that the place was reasonably safe. It was not apparent to him, nor was he bound to know, that the yard crew were going to be so negligent in the course of their employment that he would certainly be injured if he remained in the caboose. The true test to be applied is not whether the injured servant exercised reasonable care to discover the dangers, but whether the danger was known or plainly observable. (Choctaw v. McDade, 191 U. S. 61, 24 Sup. Ct. 24, 48 L. Ed. 96; McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701; Andersone, Northern Pacific Rý. Co., 34 Mont. 181, 85 Pac. 884.) The evidence fairly presented a case for the jury on this point.

The judgment and order are affirmed as to the defendants railway company and Doyle; as to the defendant Whalen they are reversed, and the cause is remanded, with directions to the district court to dismiss the action as to him.


EMPLOYERS' LIABILITY--RAILROAD COMPANIES- ACCEPTANCE RELIEF BENEFITS—CONSTITUTIONALITY OF STATUTE-McNamara 1. Washington Terminal Company, Court of Appeals of the District of Columbia, 38 Washington Law Reporter, page 343.- Edward McNamara was a fireman employed by the above-named company, and as a result of an accident due to its alleged negligence suffered the loss of his right arm, together with other injuries. He was a member of the relief department of the Baltimore and Ohio Railroad Company and paid monthly the sum of $2 as a contribution to the relief fund, from which he was to receive certain benefits in case accident or sickness disabled him for service. Death benefits were also provided for. It was agreed in the application that the acceptance of benefits from the relief department, whether for injury or death, should operate as a release of all claims against the company or any company over whose property the Baltimore and Ohio Railway has

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