author: BLAND, Acting Associate Justice.

text:
    DISTRICT OF COLUMBIA v. TOTTEN.
    (Court of Appeals of District of Columbia.
    Submitted December 2, 1924.
    Decided May 4, 1925.)
    No. 4072.
    1. Municipal corporations @=742(5) — Exclusion of evidence showing enhanced realty in vicinity of nuisance held not error.
    In action against municipality for damages for nuisance arising from manner in which defendant constructed and maintained workhouse near plaintiff’s property, exclusion of evidence to show that other realty in vicinity had been enhanced in value after establishment of workhouse was not error.
    2. Municipal corporations @=745i/2 — Municipality not liable for negligence of officers performing governmental function.
    Municipality engaged in exercise of its police power and acting in performance of a governmental function is not liable in damages for negligent omissions or commissions of its officers.
    3. Municipal corporations @=734 — Maintaining prison governmental function.
    Municipality, in maintaining prison or place of detention for prisoners, is acting in performance of governmental function.
    4. Municipal corporations @=736 — Municipality liable for nuisance.
    Municipality so performing any function, governmental or otherwise, as to commit nuisance, is liable in damages, to one injured thereby.
    5. Nuisance @=7 — Negligence not essential element.
    A nuisance does not necessarily grow out of acts of negligence, but may result from skillfully directed efforts taken without due regard to rights of others.
    6. Nuisance @=71 — Ordinarily action will not lie for public nuisance.
    Ordinarily an action will not lie for damages for public nuisance.
    7. Nuisance @=72— Individual suffering special injury from public nuisance may sue.
    Private nuisance may still remain such, though it affects a number of individuals, and acts which create a public nuisance and also cause private and special injury to an individual are actionable at suit of latter.
    8. Nuisance @=l — “Nuisance” defined.
    A “nuisance” is anything that works or causes injury, damage, hurt, inconvenience, annoyance, or discomfort to one in legitimate enjoyment of his reasonable rights of person or property, or that which annoys, vexes, irritates, or is offensive or troublesome, and may exist, not only in commission, but in omission.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Nuisance.]
    9. Municipal corporations @=736 — Municipality held liable for nuisance caused by conduct of workhouse.
    Municipality’s construction and maintenance of workhouse ih close proximity to plaintiff’s property in manner that prisoners constantly escaped, terrorized and annoyed plaintiff, and hindered him in conduct of his business, held maintenance of nuisance, for which it was liable in damages.
    10. Municipal corporations @=736— Individual may recover for nuisance maintained by municipality, though others may have sustained injury from same source.
    A municipality has no right to create and maintain nuisance, and if it does so act, to damage of adjacent property owner, action at law will lie for him, though others may have sustained injury from same source.
    Martin, Chief Justice, dissenting.
    Appeal from Supreme Court of the District of Columbia.
    Action by Howe Totten against the District of Columbia. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. H. Stephens and R. L. Williams, both of Washington, D. C., for appellant.
    H. E. Davis, of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BLAND, Judge of the United States Court of Customs Appeals.
   BLAND, Acting Associate Justice.

The appellee, Howe Totten, recovered a judgment in the Supreme Court of the District of Columbia against the District of Columbia, appellant, in the sum of $7,500, from which judgment appellant appeals.'

The declaration charges the defendant with having maintained a nuisance as respects plaintiff in the use, occupation and •enjoyment of his home. It declares that plaintiff was the owner and in possession of a certain tract of land in Fairfax county, Va., and had been in such possession for about five years prior to April 1,1910, when the defendant began to use a neighboring and partly contiguous tract of land and to construct certain temporary structures thereon, to be used as a workhouse and place of detention for prisoners convicted of divers criminal offenses in the District of Columbia; that on or about September 1,1910, the defendant began the erection of permanent structures and buildings for use as a workhouse and place of detention or prison; that there were about 300 prisoners detained there; that in the defendant’s said operations it left the prisoners unguarded and, without guarding officers or agents and employees to watch them, and to keep them from harming and molesting plaintiff and his family; that the control over the prisoners was lax and inefficient; that a large number of the convicts sent to the place of detention escaped; that such escaped prisoners annoyed and frightened the employees of the plaintiff as well as his family; that the escaping prisoners were dangerous; that after escaping they would approach near the plaintiff’s premises in large numbers, and would trespass upon plaintiff’s land; that the unguarded prisoners wandered up and down the public highway in front of plain.tiff’s land, near his dwelling house; that the construction was done by prisoners, and that during the early portion of said construction period there were no adequate means provided for restraining them, either in the way of suitable prison buildings or guards; that the plaintiff was required to go armed on his own premises; that on account of the conditions complained of he and his family were compelled to abandon their premises and live elsewhere, and that he was thereby deprived entirely of the comfortable enjoyment of his home as a residence, and prevented from giving the time and attention necessary for the proper care and maintenance of certain valuable and pedigreed animals, which he was breeding and raising as a business; that by the reason of these facts he suffered irreparable damage in the use and enjoyment of his premises in the particulars heretofore related, and in the depreciation of the value of his land and premises.

The proof showed that the large tract of land, consisting of several thousand acres, upon which the prison was being constructed, was covered with woods and thick underbrush; that, in clearing the woods, prisoners had easy opportunity of escaping, and did escape in large numbers; /that the prisoners were not shackled, nor handcuffed, nor had leg balls or other impediments which would prevent them from escaping; that they wore striped clothes; that the prison was located on the opposite side of the river from the village of Oeeoquan; that plaintiff’s land was within one-half mile of the railroad station of Lorton, and four miles from the village of Oeeoquan; that the escaping prisoners most frequently, after escaping, traveled in the direction of Washington City, and in doing so passed over or near plaintiff’s premises; that escaping prisoners and pursuing guards were on his place almost daily; that escaped prisoners broke into the tenement houses; that on account of the conditions complained of, after plaintiff moved from the premises, he could not get a tenant to live on the place rent free; that escapes from the prison were frequent and recaptures were infrequent; that the same condition applied to others owning land in the immediate neighborhood during the construction of the prison; and the evidence, we think, discloses that, on account of the frequency of the escapes of dangerous men, the entire neighborhood lived in fear and were prevented from leaving their homes and enjoying the occupancy of their premises.

The appellant assigns as error the refusal of the court to grant the motion of the defendant for a directed verdict in its behalf, and that the court erred in charging the jury to the effect that plaintiff could recover in the case on the evidence showing damages growing out of the establishment and maintenance of the workhouse and reformatory. Further assignments of error were predicated upon the refusal of the court to permit the defendant to show that the property values in and around the neighborhood of the workhouse and reformatory were enhanced by the establishment of the institution. It is also assigned as error that the court refused to grant certain instructions.

The instructions of the court, while not as clear as they should have been, in view of the allegation in the declaration that the value of the land and premises was greatly depreciated and reduced, we think reasonably and fairly confines the recovery of damages to those sustained by the plaintiff on account of his being deprived of the enjoyment of the use of his premises, on account of a nuisance maintained by the defendant in the manner in which it attempted to perform the function of keeping prisoners and using prison labor to build the prison in which to keep them. While the jury may have concluded that the market value of plaintiff’s land had been greatly reduced, and while the admission of certain excluded testimony as to the market value of certain adjacent real estate might have removed this impression from the minds of the jury, we think the instructions, as a whole, tended to remove any such impression. The record does not disclose any attempt oh the part of the defendant to have the declaration as to the reduced value of the real estate stricken from plaintiff’s declaration, nor do we find any objection interposed, or motions to strike out of the evidence statements of witnesses tending to show depreciation in value.

We find no reversible error in the instructions given by the court, or in its refusal to give instructions offered by the defendant. Under the circumstances, it was not reversible error for the court to refuse to permit the defendant to show the enhanced value of real estate around the neighborhood of the workhouse after its establishment.

The two questions raised by the appellant are stated, in its brief, as follows: “(1) Is the District of Columbia exercising a governmental function in the operation and maintenance of its workhouse and reformatory located at Oeeoquan, Va.; and, if this be answered in the negative, (2) were the workhouse and reformatory so maintained and operated by the District of Columbia during the period of time complained of by the appellee as to. constitute an actionable nuisance V

There are few questions upon which the courts have passed that are so hopelessly in conflict and so unsatisfactorily settled as the question as to when a municipality is performing a governmental function. The rule is unmistakably laid down in numerous very respectable and apparently well-reasoned authorities that a municipality, while engaged in the exercise of its police power and acting in the performance of a governmental function, is not liable to answer in damages for the negligent omissions or commissions of its officers which result in damages to an individual.

While the decisions do not definitely nor satisfactorily settle the question as to just what acts a municipality may do in the performance of a governmental function without liability for the negligence of its servants and officers, we recognize that there has been a long-continued effort on the part of the courts to differentiate between acts done in the performance of a governmental function carrying out a legislative mandate, and those acts which are frequently referred to as municipal acts or the exercise of corporate powers. The difference seem to rest in the fact that in the first instance the municipality is performing the mandate of the Legislature as related to a public duty generally, and in the other instance it is related only to the exercising of its private rights as a corporate body.

Unquestionably the authorities agree that the conduct of a prison for the retention of criminals who prey upon society generally is the performance of a governmental function, in which the public generally is concerned, and in which the police power of the state is exercised. So, as far as the ease at bar is concerned, leaving out the question of the authority of the District of Columbia to establish a prison outside of the District under a special act of Congress, we feel that we are well supported by the great weight of authority in holding that the acts of the District in actually maintaining a prison for the retention of prisoners is the performance of a governmental function. District of Columbia v. Tyrrell, 41 App. D. C. 463; Brown v. District of Columbia, 29 App. D. C. 273, 25 L. R. A. (N. S.) 98; Coates v. District of Columbia, 42 App. D. C. 194; Jones v. District of Columbia, 279 F. 188, 51 App. D. C. 319. (It will be noted that these cases apply the doctrine of governmental function in cases involving negligence.)

It may also be asserted, with reasonable assurance of verity, that the courts generally hold that a municipality is not liable for damages to an individual who is injured by the negligence of a servant, officer, or employee of the municipality while it is engaged in the performance of a governmental function.

Where the municipality, in its attempts to perform a governmental function, so performs as to commit a nuisance from which an adjacent landowner is damaged in the enjoyment of his ownership, he may have an action for damages. Palmer v. District, of Columbia, 26 App. D. C. 31, 1 L. R. A. (N. S.) 878; Roth v. District of Columbia, 16 App. D. C. 323. In Palmer v. District of Columbia, supra, a judgment was rendered against the Public Printer for the violation of the smoke law in the District of Columbia. The court held that, regardless of whether he was performing a governmental function or not, he was amenable to the law for creating a nuisance. The court said:

“It might have availed a defendant even in the days of personal government in England, when the infamous maxim was in force that the king could do no wrong, and his officers were shielded by his privilege. But, we cannot see how, jn our country, and in this age' and generation, a public official, charged with the commission of a public nuisance, which the legislative power of the state has endeavored most rigidly to prohibit, can protect himself by the claim that in the performance of the act he represents the state. We have held, in the ease of Roth v. District of Columbia, 16 App. D. C. 323, that the municipality, even in the course of its performance of its governmental functions, is not entitled to perpetrate a nuisance. And the same rule will apply still more strongly to the executive officers of the government, whose duty it is to execute and obey the laws, not to violate them.”

In Roth v. District of Columbia, supra, this court said:

“The mere maintenance or location of an ambulance stable, although possibly annoying and inconvenient to the residents of a neighborhood, may not of itself be held to be a nuisance, since it is a necessary and proper appliance of governmental authority; but the negligent, improper, and unlawful manner of its maintenance, which is the thing of which complaint is here made, is not warranted by any requirement of governmental duty, and is, on the contrary, directly antagonistic to the demands of such duty. That the District of Columbia is liable for the existence and maintenance of this nuisance, if nuisance there is, which of course remains to be established, seems to us to be very plain. ® * " Some argument has been based upon the theory that a municipality cannot be held liable at the suit of a private person for the failure to perform a public duty, when it receives no profit or special advantage to itself from the performance of such public duty. But the matter of profit or absence of profit has no place in the present case. A municipality owning property stands in no different position from- a natural person in respect of the duty not to permit it to become a nuisance. It would be strange indeed if the question of the liability of a municipality for a nuisance committed or permitted by it upon its own property to the detriment of the neighborhood were dependent upon the amount of gain derived by it from the existence of the nuisance. As we hav.e said, the -municipality is not in the performance of any public duty, but rather in the “violation of its public duties, when it permits the maintenance of a nuisance upon its property.”

The following authorities sustain the general principle that a municipality, regardless of the kind of function it may be exercising, is liable in damages to one who has been injured by the commission of a nuisance by the municipality: Brower v. Mayor of N. Y., 3 Barb. (N. Y.) 254; City of New Albany v. Slider, 21 Ind. App. 392, 52 N. E. 626; Clayton v. City of Henderson, 103 Ky. 228, 44 S. W. 667, 44 L. R. A. 474; Miles v. City of Worcester, 154 Mass. 511, 28 N. E. 676, 13 L. R. A. 841, 26 Am. St. Rep. 264; 2 Wood on Nuisances, § 748; Mayor of Cumberland v. Willison, 50 Md. 138, page 160, 33 Am. Rep. 304; Winona v. Botzet, 169 F. 321, 94 C. C. A. 563, 23 L. R. A. (N. S.) 204; Cogswell v. R. R. Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701; Baltimore City v. Fairfield Imp. Co., 87 Md. 352, 39 A. 1081, 40 L. R. A. 494, 67 Am. St. Rep. 344; Hines v. Rocky Mount, 162 N. C. 409, 78 S. E. 510, L. R. A. 1915C, 751, Ann. Cas. 1915A, 132; 28 Cyc. 1293.

In District of Columbia v. Tyrrell, supra, damages were sought for the injury of a workman in the basement of a school building, owing to the negligence of the District in permitting the gas pipes to remain in dangerous condition. The court held that‘the District, in the maintenance of schools, was exercising a governmental function, and was not liable for personal injuries caused by the negligence of its servants. The ruling opinion held that the District of Columbia could be held liable for the commission of a nuisance working injury directly to the occupant of adjacent property (citing Roth v. District of Columbia, supra), but held that the death, in the ease under consideration, was not the result of a nuisance for which the defendant could be held liable. The escaping gas in the basement was not a nuisance, although it was sufficient to start an explosion that killed the workman. The court said:

“In the instant ease there was no wrongful act as a result of which the gas was permitted to escape and become a nuisance to the public outside of the building, working discomfort or danger of itself.”

The inevitable conclusion to be drawn from this ease is that, had the gas escaped from the school building, and continued to escape after notice, to the damage of an adjacent property owner, the District would have been held liable.

In City of New Albany v. Slider, supra, the court said:

“It is argued that, in the collection of garbage and removing it from its streets and alleys, the city was exercising the authority conferred upon it by the Legislature; that in exercising such powers the city stood in the place of the state; and that, as the state assumes no responsibility in the discharge of its governmental duties, the city, as a branch department of the state, likewise assumes no liability in the discharge of such duties. This argument resolves itself into the question whether a city can create an actionable nuisance. * * * The rule seems to be well recognized that a municipal corporation is liable for torts, the same as an individual, in certain classes of eases; among which are included nuisances. Thus in 2 Addison, Torts (Dudley & Baylies’ Ed.) p. 1315, it is said: ‘A' municipal corporation has no more right to maintain a nuisance than an individual would have, and for a nuisance maintained upon its property, the saíne liability attaches against a city, as to. an individual.’ This rule was recognized as correct in Haag v. Board, etc., 60 Ind. 511. See 2 Hilliard, Torts, 4th Ed. 387, 388; Stein v. City of Lafayette, 6 Ind. App. 414; City of Valparaiso v. Moffit, 12 Ind. App. 250.”

In Clayton v. City of Henderson, 103 Ky. 228, 44 S. W. 667, 44 L. R. A. 474, the following statement of the rule is made:

“It is further contended on behalf of the city of Henderson that, even if the act of 1886 was not repealed, the city cannot be held liable, because the act does not make the corporation responsible, but only the officers who shall violate its provisions, and further because the act complained of, being forbidden by statute, was beyond the scope of the powers of the municipality, was ultra vires, and therefore imposed no liability upon the corporation. But in the contention that the act imposed no responsibility upon the corporation, the common-law liability for establishing a nuisance which inflicts special damages upon an individual is overlooked; and as it is not necessary that the word ‘nuisance’ should be used in the pleading, but only that facts be stated which show the existence of a nuisance and the damage resultant therefrom, we think a cause of action has been stated against the city. ‘A pesthouse, erected by town, municipality or county authorities near the premises of another, injuring the health of his family or exposing them to contagious disease, is a nuisance for which an action will lie, and' in the ease of a county against the board of officers erecting it.’ Wood’s Law of Nuisances (2d Ed.) § 66. And in Haag v. Vandenburgh County, 60 Ind. 511, 28 Am. Rep. 654, suit was brought against the board of commissioners of the county, which was held to be, in lawful contemplation, the county, and the court held that it was a well-recognized rule that municipal corporations are liable for torts in certain classes of eases, including nuisances, in the same manner as natural persons, referring to 2 Hilliard on Torts, p. 273, Shear. & Red. on Negligence, § 120, and 2 Dillon’s Municipal Corporations, p. 766.”

The following quotation from Miles v. City of Worcester, 154 Mass. 511, 28 N. E. 676, 13 L. R. A. 841, 26 Am. St. Rep. 264, sustains the proposition that a municipality is liable for damages arising from a nuisance committed by it:

“It is obvious that the defendant’s wall, in 'its present position upon the plaintiff’s land,must be deemed an actionable nuisance, unless the defendant can claim exemption from responsibility on some special ground. * * Defendant suggests that it is not liable, because the wall was built and maintained solely for the public use, and with the sole view to the general benefit and under the requirement of general laws, and that the ease cannot be distinguished in principle from the line of cases beginning with Hill v. Boston, 122 Mass. 344, and ending with Howard v. Worcester, 153 Mass. 426. We are not aware, however, that it has ever been held that a private nuisance to property can be justified or excused on that ground. The-verdict shows a continuous occupation of the plaintiff’s land by the encroachment of the defendant’s wall. The question of negligence in the building of the wall is not material. The erection was completed, and was accepted by the defendant, and is now in the defendant’s sole charge, and if it is a nuisance the defendant is responsible. * * * Such an occupation of the plaintiff’s land cannot be excused, for the reasons assigned. A city cannot enlarge its school grounds by taking in the land of an adjoining owner by means of a wall or fence. The public use and the general benefit will not justify such a nuisance to the property of another. If more land is needed, it must be taken in the regular way, and compensation paid, but if, by the' action of the elements or otherwise, without the plaintiff’s fault, the defendant’s wall comes upon the plaintiff’s land and continues there, it becomes a nuisance, for which the defendant is responsible, and so are the authorities. Gorham v. Gross, 125 Mass. 232, 239; Khron v. Brock, 144 Mass. 516; Eastman v. Meredith, 36 N. H. 284, 296; Hay v. Cohoes Co., 2 Comst. 159; Tremain v. Cohoes Co., 2 Comst. 163; Weet v. Brockport, 16 N. Y. 161, 172, note; St. Peter v. Denison, 58 N. Y. 416, 421; Mayor & City Council of Cumberland v. Willison, 50 Md. 138; Harper v. Milwaukee, 30 Wis. 365; Pumpelly v. Green Bay Co., 13 Wall. 166, 181; Dillon, Mun. Corp. § 985.”

Long v. Elberton, 109 Ga. 28, 34 S. E. 333, 46 L. R. A. 428, 77 Am. St. Rep. 363, contains the following statement of the law pertinent to the ease at bar: -

“While the authorities have a right to use and maintain it [a prison] for the purposes intended, the duty rests , up on them to maintain it in a proper manner, and if such maintenance after its erection should prove a nuisance, it is the right of any citizen of El-berton, or other person interested, either to abate the same, or, if special and particular damage is caused to him, to’obtain proper compensation for his injury.” 2 Wood on Nuisances, § 748.

In Mayor of Cumberland v. Willison, 50 Md. 138, 33 Am. Rep. 304, Judge Alvey, in delivering the opinion of the court, said:

“While an act of the Legislature may be perfectly valid simply as an authority for doing acts of a certain character generally, it does not necessarily follow that particular individuals should be made to suffer all ’ the consequences that may result from doing any particular act of the denomination authorized by the statute. A statute may authorize the making of grades and drains for the benefit and improvement of the town, and to that extent be perfectly valid; yet if, by making a particular grade or drain, the private property of an individual is flooded and rendered useless, or is thereby seriously injured, the silence of the statute upon the subject can offer no reason why he should not be compensated. In such ease it is not to be presumed that the Legislature intended that the statute should be made to operate to the detriment, it may be to the ruin, of the citizen. The power delegated should be exercised with due respect to the rights of private property [eases]; and if the municipal corporation invades those rights, though it be acting under a general power derived from the Legislature, it should be made to respond in damages in like manner and to the same extent that an individual would be liable for a similar injury — that is to say, for the actual damage sustained.”

In Winona v. Botzet, 169 F. 321, 94 C. C. A. 563, 23 L. R. A. (N. S.) 204, in an opinion by Judge Sanborn, citing Pine City v. Munch, 42 Minn. 342, 44 N. W. 197, 6 L. R. A. 763, and Hill v. Mayer, 139 N. Y. 495, 34 N. E. 1090, the following clear statement of law of the case is found:

“But counsel contend that the city is not liable to pay damages for the injuries inflicted by the whistle, heeause, in locating it and blowing it, it was exercising one of its governmental powers in the establishment and maintenance of its fire department and fire alarm system, and this upon the ground that for the acts and omissions of its officers and agents in the exercise of a ’governmental power of this nature it is, like the state, exempt from civil liability. There is more than one answer to this argument. In the first place, if the blast of the whistle which caused the injuries had been made in the exercise of the city’s power to protect against fires, it would not have been exempt from liability, because the blowing of the whistle was a public nuisance, and it was not necessary for the city to create or to continue that nuisance in order to rightly exercise its power to establish and maintain a fire department. It could have exercised that power as completely and as beneficially without locating or blowing this whistle daily within 110 feet of this bridge. If the exercise of a legislative power does not necessarily and naturally create a nuisance, but that results from the manner .of exercising the power, the legislative grant is no defense to an action for the damages it causes.”

It is needless to quote more extensively from the opinions in the eases cited. The principle of law that a municipality, though performing a governmental function, which commits a, nuisance in connection with the performance of the same, is liable in damages to an injured adjacent landowner, is sustained, we think, by the great weight of authority.

Appellee’s case does not rest upon the theory of negligence on the part of the officers of the District of Columbia, but upon the commission of a nuisance by them. There is a distinction between classes of negligence and of nuisance or consequential damage. Joyce, Law of Nuisances, par. 18; Hauck v. Pipe Line Co., 153 Pa. 366, 26 A. 644, 20 L. R. A. 642, 34 Am. St. Rep. 710. A nuisance may not, necessarily, grow out of acts of negligence, but may be the result of skillfully directed efforts — efforts which may be skillfully directed towards accomplishing the desired end, but which may not have' due regard for the rights of others.

We are next concerned with the question as to whether the acts, charged in the declaration and shown by the evidence, constitute actionable nuisance. Ordinarily an action will not lie for damages for a public nuisance. It is therefore urged that in cases like the one at bar the nuisance must be shown to have been a private one.

While some fine distinctions have been made between a private nuisance and a public nuisance and a mixed nuisance, it is settled that what may have been a private nuisance to plaintiff may also have been a private nuisance to his neighbor similarly situated. A private nuisance may still be so regarded, even though it develops that it affects a number of individuals. Willcox v. Hines, 100 Tenn. 538, 45 S. W. 781, 66 Am. St. Rep. 761. Where the acts which create a public nuisance cause also private and special injury to an individual, an action at law will lie. Walker v. Shepardson, 2 Wis. 384, 60 Am. Dec. 423; Wesson v. Iron Co., 13 Allen (Mass.) 95, 90 Am. Dec. 181; Aldrich v. Wetmore, 52 Minn. 164, 53 N. W. 1072.

The authorities define a nuisance as follows: “A nuisance is anything that'works or causes injury, damage, hurt, inconvenience, annoyance, or discomfort to one in the legitimate enjoyment of his reasonable rights of person or property,” and “may exist not only by reason of doing an act, but also by omitting to perform a duty.” Joyce on Nuisances, p. 2; North Shore St. Ry. Co. v. Payne, 192 Ill. 239, 61 N. E. 467; 3 Blackstone’s Comm. 215.

In Baltimore & Pot. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 S. Ct. 719, 27 L. Ed. 739, actionable nuisance is defined as that which renders the ordinary use and occupation by a person of his property uncomfortable to him. Funk & Wagnalls New Standard Dictionary defines a nuisance as “that which annoys, vexes, or irritates; something offensive or troublesome; an annoyance; a source of annoyance, harm or trouble; anything that by its use or by its permitted existence works annoyance, harm, inconvenience, or damage to another.”

While the calling of a thing a nuisance does not make it a nuisance, it seems clear -to us that under the foregoing definitions of an actionable nuisance and applying the numerous decisions of the courts on the question, the allegation in the declaration, charged the commission of an actionable private nuisance, and the evidence adduced at the trial, abundantly warranted the finding of the jury that there had been a nuisance committed by the District of Columbia, which had damaged appellee in the use and enjoyment of his lands.

In our view of the ease, it makes no difference whether, in the fine technicalities of the law, the nuisance would be declared to be a private one or a publie one. A municipality has no right to create or maintain a nuisance, and if it does so act, to the damage of an adjacent property owner, an action at law will lie for him, even if others may also sustain injury from the same source. Weet v. Brockport, 16 N. Y. 161, 172, note.

The judgment is affirmed, with costs.

Affirmed.

MARTIN, Chief Justice, dissents..


source: Caselaw Access Project

author: YAN ORSDEL, Associate Justice.

license: Public Domain

text:
    WRIGHT et al. v. WARDMAN et al.
    (Court of Appeals of District of Columbia.
    Submitted April 9, 1925.
    Decided May 4, 1925.)
    No. 4180.
    1. Statutes <§=>219 — Construction placed on statute by department charged with its execution will generally control.
    Where construction of statute, ordinance, or regulation is doubtful, and open to two different interpretations, that placed on it by department charged with its execution will generally control.
    2. District of Columbia <§=>19 —Zoning ordinance construed; “additional buildings.”
    Zoning regulation, authorizing “the erection of additional buildings” for garage purposes within 35 feet of lawful establishment used for such purpose, without consent of surrounding property owners, held to authorize, not only construction of additions to existing buildings, but erection of new buildings, if with-' in limit prescribed.
    Appeal from Supreme Court of District of Columbia.
    Suit by John H. Wright and others against Harry Wardman and others, Commissioners of the District of Columbia, and others. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.
    W. J. Lambert and R. H. Yeatman, both of Washington, D. C., for appellants.
    F. H. Stephens, G. P. Barse, D. T. Wright, and Philip Ershler, all of Washington, D. C., for appellees.
    Before MARTIN, Chief Justice, and ROBB and YAN ORSDEL, Associate Justices.
   YAN ORSDEL, Associate Justice.

Appellants, plaintiffs below, filed a bill in equity in the Supreme Court of the District of Columbia for an injunction to restrain the District commissioners from issuing to defendant Wardman a permit to erect g publie garage within the first commercial district of the city of Washington. From a decree dismissing the bill, this appeal was taken.

Plaintiffs, property owners in the immediate vicinity where the proposed garage was to be located, sought the injunction on the ground that its erection would be detrimental to their property, and to the property in the immediate vicinity. The ease may be disposed of on the construction of the proviso to section 4 of the Zoning Regulations of the District of Columbia, prescribing regulations for the establishment of publie garages, bakeries, laundries, or milk distributing stations, as follows:

“A public garage in whicb the repair facilities are incidental to its primary use for storage, may be established or erected in the first commercial district if when permit is issued there are on file with the commissioners of the District of Columbia the written consents of the owners of 75 per cent, of the property within 200 feet of the proposed establishment : Provided, further, that if such establishment fronts on a public alley and no part of it is -located in a building any portion of which is less than 50 feet back from any building line, consents of the owners of two-thirds of the property within 90 feet of the proposed establishment shall be required.
“Ño consents will be required for the enlargement of buildings used for the purposes named in the preceding paragraph nor for the erection of additional buildings used for-these purposes if they are within 35 feet of any wall of a lawful establishment used for any one of these purposes: Provided, however, that no part of sueh establishment erected without consents shall be located within 50 feet of the boundary line of the residential district.”

The application for the permit was based on the second paragraph of the proviso. It it conceded that the building to be erected is within 35 feet of the wall of a lawful establishment used as a public garage, and it is further conceded that no part of the building to be erected is located within 50 feet of the boundary line of the residential district.

The construction to be given the words “for the erection of additional buildings used for these purposes” will dispose of this appeal. Counsel for plaintiffs insist that the word “additional” cannot be applied to a new building to be erected, separate and apart from an existing building, but that it obviously means an addition to be constructed to a building already in existence and used for garage purposes. On the other hand, counsel for defendant contend that this clause of the regulation provides for the issuance of a permit without consents for either the enlargement of a building used for garage purposes, or for the erection of a new building for a similar use, if the enlarged or new building extends to a point within 35 feet of the wall of a building already established and used as a public garage.

It appears that the commissioners, on two previous occasions, without the consent of adjoining property owners, had issued permits for the erection of new public garages situated within 35 feet of an established public garage, and that this action had been taken by the commissioners on the advice of the corporation counsel.

We think the rule of construction that where the language of a statute, ordinance, or regulation is doubtful' and open to one of two different interpretations, the construction placed on it by the department charged with its execution, will generally control its interpretation, is applicable here. St. Paul, M. & M. Ry. Co. v. Phelps, 137 U. S. 528, 11 S. Ct. 168, 34 L. Ed. 767. In the present case, an interpretation favorable to defendant is prompted, not only by conformity to the above rule, but for the further reason that it sustains the right of the property owner to apply his property to whatever lawful use he may desire, which right will be presumed to exist, in the absence of a clear restriction to the contrary. The language here used is not so clear as to remove the interpretation of the regulation from the realm of doubt; hence it is a ease calling for adherence to the construction adopted by'the authorities charged with its execution, and the presumptions favorable to the unrestricted use of property.

The decree is affirmed, with costs.


author: MARTIN, Chief Justice.

text:
    CLAUDY et al. v. DUVALL.
    (Court of Appeals of District of Columbia.
    Submitted March 2, 1925.
    Decided May 4, 1925.
    Motion for Rehearing Denied May 15, 1925.)
    No. 4214.
    1. Estoppel <©=4 — -Widow of decedent-held not estopped to assert that his actual residence had been other than alleged in-petition for appointment of administrator.
    That widow of decedent, who had in fact been resident of Dlinois, filed petition in District of Columbia praying for appointment of administrator, which alleged decedent had been resident of the District, helé not to estop her from subsequently denying that decedent was in fact resident of District, and claiming right to succeed to his estate under law of Illinois (Starr & C. St. 111. c. 39, par. 1, d. 3), rather than under laws of District.
    2. Executors and administrators <©=>32(2) — Widow held not guilty of laches, precluding her denial that decedent was in fact resident of District of Columbia.
    Widow, who petitioned for appointment of administrator for her husband’s estate, alleging that he had been resident of District of Columbia, helé not guilty of laches, precluding her from denying, approximately a year later, that he was. in fact resident of District.

      3. Exeoutors and administrators <@=»5I3(9)— Settlement of administrator’s first and final account held not res judicata of distributee’s rights.
    Settlement of administrator’s first and final account, which contained statement of manner in which residue would be distributed, helé not res judicata of distributee’s rights, in view of Code D. G. §§ 3fi4, 365, 394, and probate rule 16.
    4. Executors and administrators @=-12— Appointment of administrator over estate located entirely within District held proper, though decedent was not resident of District.
    Where decedent’s estate is located physically entirely within District of Columbia at time of his death, probate court of District may properly appoint administrator, though decedent was actually domiciled without District.
    Appeal from Supreme Court of District of Columbia.
    Suit by Gertrude R. Duvall against Carl H. Claudy, administrator of the estate of William S. Duvall, deceased, and Clara E. Claudy. Decree for plaintiff, and defendants appeal.
    Affirmed.
    W. G. Johnson, L. H. David, and P. E. Lesh, all of Washington, D. C., for appellants.
    J. E. Laskey, of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.
   MARTIN, Chief Justice.

This appeal relates to a decree of the Supreme Court of the District of Columbia, requiring Carl H. Claudy, as administrator of the estate of William S. Duvall, deceased, to distribute the entire surplus or residue of said estate to the decedent’s widow, Gertrude R. Duvall. Erom that decree the administrator and Clara E. Claudy, the administrator’s wife, who was a sister of the decedent, and claims as sjich to share equally with the widow in the residue, have appealed to this court.

William S." Duvall died intestate in the city of Chicago on June 28, 1920, and was bnried in the District of Columbia on July 2d. He left an estate composed wholly of personal property, a large part of which consisted of deposits in banks located in the District. His only surviving relatives, in so far as this ease is concerned, were his widow, Gertrude R. Duvall, and his said sister, Clara E. Claudy. On July 2, 1920, the day of the funeral, the widow, with the -assistance of the present administrator, filed a petition in the probate court, alleging that the decedent was a resident of the District at the time of his death, and, waiving her right to administer upon the estate, prayed for the appointment of. Carl H. Claudy, the. husband of decedent’s sister, as administrator. That appointment was made by the court, and the administrator duly qualified.

On July 12,1921, the first and final account of said administrator was filed in court, showing that the debts of the estate had been fully paid, including the sum of $723.24 as administrator’s commissions, and $250 as attorney’s fees, and that there remained a distributable residue in the sum of $11,713.92. The account contained the following concluding statement, to wit:

Distributable according to law as follows, to wit..............$11,713 92

(31) To Gertrude R. Duvall, widow, one half Amount advanced $ 100 00

Balance due...... 5,756 96 - $ 5,856 96

(32) To Clara F. Claudy, sister one half.................... 5,856 96

$11,713 92 $11,713 92

This notation was not intended to signify that the administrator had already paid these sums to the widow and sister of the decedent, for in fact no such payment had been made; the entire residue being yet in the administrator’s possession. It was designed only to serve as a statement of the manner in which the residue should be distributed, as understood by the administrator.

On August 12, 1921, the administrator, in compliance with probate court rule 16, notified both the widow and the sister of the decedent that the first and final account of the estate had been filed, that" the administrator claimed a commission of 5 per cent., amounting to $723.24, and attorney’s fees, amounting to $250, and that, unless cause should be shown to the contrary, the account would be presented to the court for approval on August 22, 1921.

It appears that in the month of July, 1921, the widow first learned of the difference which eoneededly exists between the inheritance laws of the District of Columbia and those of the state of Illinois; that under the. District laws the widow and decedent’s sister would share equally in the distribution of the residue, whereas under the law of Illinois the widow would be the sole distributee. She thereupon asserted that decedent in fact was a resident of the state of Illinois at the time of his death, and that the distribution should be made according to the laws of that state. She employed an attorney to represent her, who in the month of July notified the administrator and his counsel of her claim, but by reason of an alleged misunderstanding the claim was not presented to the court. Accordingly, on August 22, 1921, the account of the administrator, as above set out, was presented to the court without objection or exception, and was examined, approved, and passed. The court, however, made no express finding or order regarding the distribution of the residue¡ but entered only the following order at' the foot of the account, to wit:

“In the Supreme Court of the District of Columbia, Holding a Probate Court. On this 22d day of August, A. D. 1921, the foregoing account, being now presented for approval, the same is, after examination by the court, approved and passed.”

This was signed by the. justice then sitting in probate matters. No appeal was taken from the order. On October 17, 1921, the administrator paid to decedent’s sister the sum of $5,856.96, being the one-half of said residue, and tendered a like sum to the widow, which she declined to receive.

Afterwards, on March 30, 1922, the widow filed a petition in the Supreme Court of the District, naming the administrator and decedent’s sister as defendants, alleging that the decedent in fact was a resident of the state of Illinois at the time of his death, and that the residue of his estate should be distributed in accordance with the laws of that state; that she had been fraudulently misled into signing the petition for the appointment of the administrator, in which the statement appeared that decedent was a resident of the District of Columbia at the time of his decease, and she prayed that the administrator should be removed, his account revoked and canceled, and that she be decreed to be the sole distributee of said surplus. To this petition the defendants answered, claiming that decedent in fact was a resident of the District of Columbia at the time of his decease,, pleading also the defense of estoppel, lach-es, and res adjudieata as against the widow, and denying all allegations of fraud. The court referred the issues to the auditor, who heard the evidence and filed a report, in which he sustained the allegations and claims of the widow, except the claim of fraud, which was overruled. The report of the auditor was thereupon approved and confirmed by the court, the first and final account of the administrator was revoked and canceled, and the administrator was directed to file an amended account, providing for the distribution of the entire surplus or residue of the estate to the widow in accordance with the laws of the state of Illinois. The present appeal was taken from that decree.

We have examined the testimony, and we content ourselves with the statement that it fully sustains the findings reported by the auditor. We agree, moreover, with the conclusion that the widow was not estopped from maintaining the claim that decedent was a resident of Illinois at the time of his decease; also that she was not barred by laches from prosecuting her present demand. It is true that her first petition to the court contained the statement that decedent was a resident of the District of Columbia at the time of his decease, which statement also was repeated in subsequent proceedings; but it is doubtful whether the widow at the time actually knew that she was subscribing to such a statement, and it is certain that she then had no knowledge of its legal effect in respect to her rights as distributee. Moreover, the administrator was not misled to his prejudice by reason of these statements, for he was afterwards notified of her claim before he presented his account to the court for approval, and consequently before he distributed any part of the residue. Nor is it claimed that Clara H. Claudy, the wrongful distributee, who is the wife of'the administrator, is insolvent. The acts and state, ments of the widow, therefore, should not estop her from maintaining her present demand, nor was she negligent under the circumstances in bringing it to the attention of the administrator.

It is proper to add that under the circumstances of this ease the administrator was not justified in considering himself as a mere “stakeholder” of the surplus of the estate. It must be remembered that he was acting as a trustee for the widow, as well as for all others interested in the estate. He had been notified, before he presented his account, that she objected to the payment of one-half of the surplus to his wife as a distributee, and that she claimed to be entitled to the entire surplus under the Illinois law. When the administrator failed to bring this claim to the attention of the court, and elected to stand upon a formal order of approval of the account, taken ..without a special hearing upon this subject, he took upon himself the risk of such a procedure.

We cannot agree with the contention of the appellants that the settlement of the administrator’s first and final account should be given the effect of an adjudication of the present issue. Sections 364 and 365 of the District Code specify the subjects to be in-eluded in such an account, but do not name tbe distribution of the surplus as one of them. Neither does the Code require the service of notice to the distributees upon the filing of such accounts. Probate rule 16 requires that notice be served upon every party whose interest in the estate is diminished by commissions and attorney’s fees included in the account, but such notice need state only the day when the account will be presented, and the amounts claimed therein for commissions and fees. If no commissions or fees be included in an account, no notice to the distributees is required. It may be observed that the notice which was served upon the widow in the present case stated the amount of the commissions and attorney’s fees, and the time when the account would be presented to the court, but .made no mention whatever of a distribution of the surplus. It must follow that the order whereby the probate court formally approved of the administrator’s account was ex parte only, in so far as it related to the subject of distribution, and does not sustain the plead of res adjudieata. The Code, however, contains a special provision for an adjudication of such an issue arising under circumstances like these. This appears in section 394, which reads as follows:

“Any administrator shall be entitled to appoint a meeting of persons entitled to distributive shares or legacies or a residue, on some day by the court approved, and payment or distribution may be there made under the court’s direction and control.”

This provision is identical with the Maryland act of 1798 (chapter 101, sube. 14, § 12). In Hanson v. Worthington, 12 Md. 418, which involved a settlement of an executor’s account by proceedings similar to those now in question, the Supreme Court of Maryland said:

“In the administration of the estate, the duty of the executors was to ascertain the persons entitled to the fund; their proceedings in the orphans’ court were ex parte; no steps were taken by them, under the Act of 1798, c. 101, sube. 14, § 12, in appointing a meeting of claimants, nor was the distribution made under any order of the court; it was not conclusive on the complainants, even if they had been sui juris.”

See Conner v. Ogle, 4 Md. Ch. 450; Hanson v. Worthington, 12 Md. 418; Scott v. Fox, 14 Md. 388; Wilson v. McCarty, 55 Md. 277; Miller-Shoemaker Co. v. Sturgeon, 31 App. D. C. 406.

These findings do not tend to impeach the order whereby the present administrator was appointed in this jurisdiction. The estate of the decedent was almost entirely located physically in the District at the time of his decease; therefore, even if the court had been correctly informed concerning decedents residence, it would have been justified in making the appointment. Nevertheless the distribution of the surplus of the estate must follow the law of decedent’s domicile. Hansel v. Chapman, 2 App. D. C. 361, 368; In re Estate of Henry Coit, 3 App. D. C. 246, 249; Overby v. Gordon, 13 App. D. C. 392, 409, aff. 177 U. S. 214, 20 S. Ct. 603, 44 L. Ed. 741; Cassilly v. Meyer, 4 Md. 1; Wilkins v. Ellett, Administrator, 108 U. S. 256, 258, 2 S. Ct. 641, 27 L. Ed. 718. It is not denied that under the laws of Illinois the widow is made the sole distributee in cases like this. Starr & Curtiss’ Illinois Statutes, c. 39, par. 1, § 1, cl. 3.

The decree of the lower court is therefore affirmed, with costs.


author: GILBERT, Circuit Judge

text:
    GRAYS HARBOR STEVEDORE CO. v. FOUNTAIN et al.
    (Circuit Court of Appeals, Ninth Circuit.
    April 27, 1925.
    Rehearing Denied June 2, 1925.)
    No. 4429.
    I. Shipping @=84(2) — Duty of owner of vessel to stevedores, stated.
    Owner of vessel owes to stevedores engaged upon vessel the duty of exercising reasonable diligence to furnish a reasonably safe place in which to perform services, a reasonably safe passageway to and from their work, and appliances such as are reasonably suited to purpose for which they are used and are customary and usual for similar ships, and to give stevedores notice of any latent dangers or defects in ship or appliances.
    . 2. Shipping @=84(2) — Failure of owner to advise stevedore of dangerous condition of manhole covers held actionable negligence.
    Owner of /ship, who failed to inform stevedore that manhole covers which stood at angle of 70 degrees, propped one against the other, were not supplied with hook, latch, rope, or other device or means of sustaining them in position, though manholes on other ships and those to which stevedore was accustomed were so constructed that covers would either lie back on deck when opened or would open at. such an angle that they could not fall, so that stevedore was not advised of the latent danger of manhole covers on such owner’s ship, helé negligent and liable for injuries sustained by stevedore when manhole cover fell upon him.
    Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.
    Libel by Joseph Fountain against the United States and the Grays Harbor Stevedore Company, From a decree for libelant (298 F. 939), against respondent Stevedore Company, it appeals; and from that portion of decree dismissing the United States, libel-ant appeals.
    Remanded, with instructions.
    The appellee, Joseph Fountain, hereinafter called the libelant, received personal injuries while working as a stevedore in loading the vessel West Ison then docked at the port of Aberdeen, Wash. The vessel was being loaded by the appellant, which hired all the longshoremen who were engaged in that service. At the time of the injury the hatches over holds 4 and 5 in the after part of the ship and the manholes leading into said holds had been opened. The libelant first reported for work shortly before 8 o’clock in the evening, and as he started down the manhole into hold No'. 5, the cover of the manhole fell upon him, causing injury to his right hand. The manholes on the ship were constructed in pairs with their covers opening back to back and were so close together that when one was open the cover thereof almost completely covered the other. When both were open the covers stood at an angle of about 70 degrees, propped the one against the other. - They were not supplied with hook, latch, rope, block, or other device or means of sustaining them in position. They were of iron, each weighing about 50 pounds. It was necessary that both the manholes to holds 4 and 5 should be open while the cargo was being stowed in those holds, for a bulkhead between the two holds prevented the men from passing from one to the other.
    The libel alleged that the shipowner was negligent in furnishing unsafe and unsea-worthy manhole covers, and that the appellant was negligent in failing to furnish the libelant a safe place in which to work, and a safe passage to his work, and in directing covers of the manholes to be opened without using some device to prevent ,them from falling, and without giving the libelant warning of the conditions. The court below found that the vessel was seaworthy and that the hatch covers were safe when closed, and dismissed the libel as to the owner; but held that the hatch covers were unsafe when open and left unfastened, and that the stevedore company was negligent in failing to fasten the same or to warn the libelant of the danger. A decree was rendered in favor of the libelant against the stevedore company. The stevedore company appeals, and the libelant appeals from that portion of the decree dismissing the owner.
    Theodore B. Bruener, of Aberdeen, Wash., for appellant and cross-appellee.
    James R. Gates, of Seattle, Wash., for ap-pellee and cross-appellant Fountain.
    Ira Bronson, J. S. Robinson, H. B. Jones, and Robert E. Bronson, all of Seattle, Wash., for the United States.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above). The evidence is without dispute that the manholes on the ship were of an extremely unusual construction. No such arrangement of manholes and covers thereto had been seen in the harbor of Aberdeen. The stevedores had never known manholes that required that the covers be fastened when open. The work boss for the appellant testified that he had never had occasion .to take any precaution against the falling of manhole covers. The evidence was that standard manholes were so constructed that the covers would either lie back on the deck when opened or would open at such an angle that they could not fall. Capt. Numa, the chief officer of the ship, admitted that the manholes were unsafe when open while in port and while discharging and receiving cargo, and he testified that on previous occasions he had cautioned stevedores to use blocks or wedges as a protection, and that when at sea when a pair of manholes were open at the same time the covers would be tied by means of a lanyard; and that while in port he would drop wedges between the hinges of the two covers. Capt. Ames, local inspector of steam vessels, testified that he had never seen manholes placed together as they were on the Ison; MeNaught, marine surveyor, testified that he had never seen such construction and that this was an oversight in the designing. Ingham, assistant naval architect, testified that he had never constructed ór seen ships with the manhole covers back to back; that a suitable hook and eye would have held these covers together firmly. Nordstrum, naval architect, testified that the arrangement of the manholes was undesirable, that he had never seen two manholes thus placed back to back, that he would consider the covers unstable, liable to fall, and that this might be, prevented by a pair of rings on either side so that a lashing could be passed through them. All of these witnesses who so testified were witnesses for the owner. The testimony makes it clear, we think, that these manholes were mantraps and they constituted a latent danger of which the stevedores were unadvised. There had been nothing in their experience to lead them to look for peril from manhole covers, and while the master stevedore in pursuance of his duty inspected the winches, the hatches, the passageway, and the machinery to be used by the stevedores, it is not surprising that he paid no attention to the manholes. The libelant, when he went to work, entered one of them without giving the covers even casual inspection. He testified that he saw the covers standing back to back, but he though there were hooks on them or something to hold them, and that there was nothing apparent to him to suggest danger. His whole past experience had led him to believe that no danger from manhole covers was to be apprehended. The officers of the ship knew that both the manholes would be open during the loading. They knew from their past experience that the vibration of the machinery incident to loading might cause them to fall and that it would be necessary to use some device to prevent their falling. They gave to the stevedores no intimation of that danger, and they furnished no device to be used to forestall it. But the owner says, in answer t.o this, that hatch cover wedges lay visible upon the deck and that they could have been used. The mere presence of those wedges, if indeed they were then visible and had not been covered by the deck load of lumber which had been received during the day, furnished no suggestion that they were designed to be used or might be used for any purpose other than that for which they had been provided.

The owner of a vessel owes to steve- ' dores engaged upon the vessel the duty of exercising reasonable diligence to furnish a reasonably safe place in which to perform their services and a reasonably safe passageway to and from their work and appliances reasonably suited to the purpose for which they are used and such-as are customary and usual for ships of that kind, and it is the duty of the shipowner to give such stevedores notice of any latent dangers or defects in the ship or the appliances. These general principles are well established and are not questioned. Hamburg-Amerikanische Packetfahrt A. G. v. Gye, 207 F. 247, 124 C. C. A. 517; The Chicago (D. C.) 156 F. 374; Frederick Leyland & Co. v. Holmes, 153 F. 557, 82 C. C. A. 511; The Joseph B. Thomas, 86 F. 658, 30 C. C. A. 333, 46 L. R. A. 58; The William Branfoot, 52 F. 390, 3 C. C. A. 155. In The Red Jacket (D.. C.) 110 F. 224, it was held that a ship is liable to a stevedore for injuries sustained while taking off the covers of a hatch by a section falling in because of an athwartship sprung out of line so that when one of the covers was taken off it failed to support the remaining covers, the defect’ being one that inspection would have shown. In the Earl of Dunmore (D. C.) 120 F. 858, where the officers of the ship knew that a hatch covering was so constructed that if the hatch were opened in the usual way it would fall, it was held that the failure to give warning of the danger to a •stevedore was negligence which rendered the ship liable for injury resulting from the falling of the hatch while he was removing the cover in the customary way. In The Colon, 249 F. 460, 161 C. C. A. 418, the ship was held liable for injury to a ’stevedore resulting from a. dangerously defective hatch cover furnished by it to the stevedores for their use. In Citta di Palermo, 230 F. 602, 145 C. C. A. 12, the court said, “The stevedores had a right ‘to assume that the covers as placed when the ship was turned over to them were properly placed, arid, as they were not warned to the contrary, they were not guilty of negligence in using them without close inspection,” and the court held that the peculiarities of the hatch covers constituted a latent danger so far as the stevedores were concerned. A similar ease is The Thomas Cranage (D. C.) 189 F. 1003.

We think that the court below correctly found that the appellant was negligent, but we are of the opinion that the ship also was negligent in the respects above indicated and is concurrently liable for the injuries to the libelant. The cause is remanded, with instruction to modify the decree accordingly.


author: GILBERT, Circuit Judge.

text:
    CARLSEN et al. v. A. PALADINI, Inc.
    (Circuit Court of Appeals, Ninth Circuit.
    April 27, 1925.
    Rehearing Denied May 25, 1925.)
    No. 4452.
    1. Shipping @=166(4) — Evidence held to sustain finding that owner of motorship was not guilty of negligent failure to inspect bridle.
    Evidence held to sustain finding that injuries to persons on motorboat caused by defective bridle were not due to negligence on part of owner to properly inspect bridle.
    2. Shipping @=166(1) — Res ipsa loquitur doctrine held inapplicable to injuries sustained on breaking of bridle when motorship was towing barge.
    Doctrine of res ipsa loquitur held not ap-licable to injuries sustained by persons on oard motorship on breaking of bridle while ship was towing barge.
    3. Shipping @=267 — Persons on board ship held not “passengers” so as to deprive charterer of protection of Limited Liability Law.
    Where charterer of motorship, who agreed with contractor to deliver materials and supplies to place where wharf was being constructed and to transport all equipment back to certain place, permitted contractor’s employees to accompany ship during transportation of such equipment without exacting or expecting pay, the charterer, on injury to such employees, was entitled to protection of Limited Liability Law (Comp. St. §§ 8020-8027), since such employees were not passengers within Rev. St. § 4493 (Comp. St. § 8269).
    TEd. Note. — For other definitions, see Words and Phrases, First and Second Series, Passenger.]
    Appeal from the Southern Division of the Northern District of California; John S. Partridge, Judge.
    Petition for limitation of liability by A. Paladini, Ine., against William Carlsen and others, claimants of the motorship Three Sisters. Petition sustained, and claimants appeal.
    Affirmed.
    Heidelberg & Murasky and Joseph J. McShane, all of San Francisco, Cal., for appellants Carlsen and Sauder.
    Redman & Alexander and Bell & Simmons, all of San Francisco, Cal., for appellant Ætna Life Ins. Co.
    Homer Lingenfelter and Ira S. Lillick, both of San Francisco, Cal., for appellee.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   GILBERT, Circuit Judge.

This appeal is taken from the decree of the court below, sustaining the appellee’s petition for limitation of liability for the personal injuries sustained by the appellants Garlsen and Sauder while on the motorboat Three Sisters to the value thereof. Said appellants had filed in the superior court of the state of California actions at law to recover damages for the injuries. Those actions were stayed, and they filed their claims and answers to the petition in the limitation proceeding.

The facts were substantially these: The Healey-Tibbitts Construction Company, a corporation, had a contract with the appel-lee, the owner of the Three Sisters, for the construction of a wharf for the appellee at Point Reyes. The appellants, Carlsen and Sauder, were employees of the Healey-Tib-bitts Company in the construction of the wharf. The contract required the appellee to deliver at Point Reyes all materials and equipment necessary to complete the wharf and to deliver supplies for the men on the wharf three times a week, and upon the completion of the wharf to transport all equipment back to San Francisco. The appellee chartered from the owners thereof a barge, assuming by the charter party all risks arising from the appellee’s use thereof. On the completion of the wharf on June 8,1923, the appellee started to tow the barge with a pile driver and piles on board from Point Reyes to San Francisco. The barge was made fast to the Three Sisters by a seven-inch Mianila line, one end of which was attached to the mast of that vessel, the other to a thimble and swivel, which were connected to a bridle made of steel cable about 70 feet in length, the ends of which were made’fast to towing bitts on the forward port and starboard corners of the barge, respectively. The employees of the construction company went aboard the Three Sisters. Four of them sat down in the stern to play cards, and two of them were severely injured when, upon the vessel encountering ground swells, the two steel cables parted and the hawser attached to the Three Sisters swung around and struck them. The court below upon the evidence held that the bridle had been subjected to proper inspection, that the accident was either inevitable or it was due to the force of the ground swells. The appellants in their answer to the petition alleged the specific act of negligence of the appellee to have been the use of a rotten, unsound, and defective towline and bridle. Upon that issue the court below found against them. There was no evidence at all that the towline was defective, hut it was contended that it was too short. The testimony as to its length was conflicting. None of it was based on measurement, hut it all consisted of estimates of witnesses on the tug as to the distance that separated the tug from the tow after the commencement of the voyage. The estimates varied from 150 feet to 600 feet. The court below was not convinced, nor are we from anything that appears in the record, that deficiency in the length of the hawser contributed to the accident.

It is urged that the appellee was negligent in that the bridle was defective. As to the condition of the bridle, one of the workmen who were returning upon the boat testified that a month before the day of the accident he had noticed the bridle and had seen that it was rusty, and the swivel was so rusty that it would not turn. Another of the workmen testified that shortly before the accident he noticed the condition of the bridle and found that it looked a little rusty. “That is all I noticed. I did not pay much attention to it.” He went on to say that there were a few strands broken around where it was made fast to the shackle. On behalf of the appellee, the testimony of its port engineer was that he inspected the towline and bridle when the Three Sisters started out from San Francisco to Point Keyes to bring hack the barge, and that the bridle, which was a seven-eighth inch, steel, galvanized cable, was in good condition, that the swivel was turning freely and that it was turning in the shackle. The prior port engineer of the appellee testified that just before the barge and pile driver were towed to Point Reyes he inspected the bridle, which he said was a seven-eighth inch cable and galvanized, and that it looked all right, and that the swivel was turning, and that the bridle was not rusty at all. On this conflicting testimony the trial court observed: “The evidence in regard to condition of the bridle and the length of the hawser is conflicting. I am satisfied, however, that the bridle was subjected to a proper inspection.” We see no ground for disturbing the conclusion of the trial court, based as it was upon the testimony of witnesses whose hearing and demeanor he had the opportunity to observe. The appellants point to the failure of the appellee to preserve the pieces of the broken bridle so as to produce them in evidence. Such failure to preserve evidence has often been held to justify the inference that it would have proven, defective equipment. But here the effect of the failure is greatly lessened by the fact that the actions by the injured men were not begun until a year after the accident, and that the appellee, according to its president’s testimony, which is not disputed, had no intimation until six or eight months after the accident that a claim for damages would be made against his company. His testimony is not discredited by the fact that he had denied responsibility for the care of the injured men. '

The appellants invoke the doctrine of res ipsa loquitur, but we think it is inapplicable. From the fact that the bridle parted it does not follow that the appellee was negligent. If in fact the bridle was defective, there is absence of evidence of negligence on the part of the appellee or proof that it had knowledge of the defect or failed properly to inspect the bridle. The, .appellants belittle the testimony which tends to indicate that an unusual strain was placed upon the cable. The court below was of the opinion that the cause of the accident was the heavy ground swells encountered by tug and tow. The captain testified to meeting the ground swells and said, “The further we got, the bigger the ground swells got”; that when she was going ahead part of the time the line would be in the water and sometimes it would jump right out; that every once in a while he would take a look toward the barge and “give her the once over when she bounced around.” He accounted for the accident on the ground that the barge was swinging from one side to the other and going with the sea, and sometimes the tug would go ahead and jerk the line when it got between the seas and running with the sea. Capt. Mohr tes: tifying as an expert, answering the question, “Under what circumstances does reasonably proper and safe tow equipment break?” said, “By cross-seas or by tow or launch or a tug being in different positions, such as the barge being up in one sea and the tug being down in the other.”

It is contended that the petitioner is not entitled to the protection of the Limited Liability Law (Comp. St. §§ 8020-8027) for the reason that it used the Three Sisters to carry passengers without having her inspected or obtaining a certificate of inspection, citing section 4493, Rev. Stats. (Comp. St. § 8269), which defines the liability of masters and owners for damages sustained by passengers. It is true that the petitioner had no inspection certificate. The Three Sisters was not a passenger carrying vessel. “A passenger in the legal sense of the term is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier as to payment of fare or that which is accepted as an equivalent therefor.” 5 A. & E. Encye. of Law, 486. The Three Sisters was in no sense a public conveyance. The appellee had no contract with the appellants or the men associated with them, either express or implied, as to payment of fare or an equivalent therefor. It did not hold the vessel out to be a common carrier. Her business was that of towing upon occasional engagements. The appellee had a contract with the construction company to deliver materials at Point Reyes and supplies there three times a week and to transport all equipment back to San Francisco. It was not under contract to carry the employees of the construction company. The captain testified that the. men wanted to go down on the Three Sisters, and that he answered, “All right.” They did not pay, nor did they expect to pay, any fare for transportation.

The ease is not dissimilar to The Downer (D. C.) 171 F. 571, where a carpenter was injured while being taken to New York on a vessel after the completion of his work. In The Vueltabajo (D. C.) 163 F. 594, the libel-ant was employed by the owners of a steamship to go to Cuba, there to operate a gasoline launch for the steamship, his services to begin on arrival in Cuba, transportation to be furnished by the owners. The court said that while the libelant was a passenger in the sense that he was a traveler, he was not a passenger in the legal sense of the term. In United States v. Guess (D. C.) 48 F. 587, where the wife and neighbors of a tug owner went upon the tug during a trial trip, it was held that they were not passengers within the meaning of the statute requiring passenger boats to be inspected and licensed. The appellants rely on The Steamboat New World, 16 How. 469, 14 L. Ed. 1019, where it was held that a steamboat man carried gratuitously on a vessel engaged in business as a common carrier was a passenger in view of the established custom of the masters of steamboats to permit steamboat men to go to and from place to place free of charge. The court reasoned that although no fare was received, there was a compensation accruing to the vessel from the custom, in that it rendered it easier for the vessel to obtain the services of steamboat men to supply its needs. No such reasoning applies to the present case. In principle, Shoemaker v. Kingsbury, 12 Wall. 369, 20 L. Ed. 432, is applicable. It was there held that when contractors for building a railroad running a construction train consented to take a passenger for hire on their train, they were private carriers for hire and were not required to prove that their servants in charge of the train were competent or skillful or qualified for the business in which they were engaged.

We are not convinced that the court below was in error in holding that the accident was not caused by the design or the negligence of the appellee and did not occur with its privity or knowledge.

The decree is affirmed.


author: DENISON, Circuit Judge MACK, Circuit Judge,

text:
    O’BRIEN et al. v. FACKENTHAL.
    (Circuit Court of Appeals, Sixth Circuit.
    May 16, 1925.)
    No. 4110.
    Injunction @=>63 — Sheet metal manufacturer employing union carpenters to install his prod-duct held entitled to injunction restraining interference by Sheet Metal Workers’ Union claiming right to such work.
    Complainant, constructor of sheet metal doors and frames, who employed union carpenters to install his product, and who had contract with city for furnishing and installation of metal doors and casings in municipal buildings under construction, held entitled to injunction restraining officers of Sheet Metal Workers’ Union, claiming that under award of National Board they were entitled to such'work, from interfering with plaintiff by strikes or coercion of city inducing it to break its contract with complainant.
    Mack, Circuit Judge, dissenting.
    Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. West-enhaver, Judge.
    Suit in equity by Joseph'D. Eaekenthal, ancillary receiver of the Central Metal Prod-uets Corporation, against William O’Brien, individually and as secretary of Local No. 65, and as vice president of the Amalgamated Sheet Metal Workers’ International Alliance, and others. Decree for plaintiff, and defendants appeal.
    Affirmed.
    This controversy is immediately between a Sheet Metal Workers’ Union and a Carpenters’ Union, at Cleveland. The facts are fully stated by the District Court in its first opinion. 278 F. 827. From the injunction entered upon this opinion there was an appeal; but we dismissed the appeal because the buildings, to work upon which the contest related, had been finished and the appeal had become moot. 284 F. 850. After remand, a supplemental bill was filed, and it was made to appear that there were issues still alive, particularly as to the more general rights involved. The district judge filed a supplemental opinion, parts of which are printed herewith, again ordered an injunction, and this appeal was taken.
    To recapitulate briefly: Plaintiff below, appellee here, is a factory constructor of sheet metal doors, frames, etc. He also employs workmen and installs his product in the erection of the buildings where it is used. He employs union carpenters for that purpose. A so-called jurisdictional dispute has long existed between union carpenters and union sheet metal workers as to which 'craft had the right to install sheet metal doors and frames. It is' claimed that this dispute was submitted by those representing the respective unions, to a building trade arbitration tribunal and decided against the carpenters. To this decision the Carpenters’ Unions have refused to yield, for various stated reasons.
    The city of Cleveland was engaged in erecting two buildings, upon each of which some sheet metal work was required which indisputably called for the employment of sheet metal workers. Upon one of these buildings plaintiff became subcontractor for furnishing -and installing metal doors and frames and this work was in progress through his union carpenters. Thereupon the Sheet Metal Workers’ Union threatened the city of Cleveland that unless it discharged plaintiff from his subcontract, or persuaded him to discharge the carpenters and employ the other union, they would strike upon both of these buildings, and one or both of these strikes in fact followed. There being no other sheet metal workers obtainable except those who had struck, the city yielded and discharged plaintiff'from his subcontract. The injunction forbids a further continuance of this course of conduct.
    Luther Day and Wm. J. Dawley, both of Cleveland, Ohio (J. Paul Thompson, of Cleveland, Ohio, on the brief), for appellants.
    Walter Gordon Merritt, of New York City (Stanley & Horwitz, of Cleveland, Ohio, on the brief), for appellee.
    Before DENISON, MACK, and DONAHUE, Circuit Judges.
   DENISON, Circuit Judge

(after stating the facts as above). The majority of the court think that the judgment should be affirmed and, in the main, for the reasons stated by the district judge in both opinions. Judge MACK thinks otherwise. Under these circumstances it seems sufficient to state the conclusions of the majority without elaboration.

1. So far as the injunction may forbid the Sheet Metal Workers’ Union from inducing and procuring other crafts to strike in aid of its position, neither the practical effects of the injunction nor the facts involved are clear enough to justify consideration. We do not think that particular subject-matter is necessary to be decided.

2. So far as the injunetion forbids threats of strikes and coercion of that nature as to a building upon which plaintiff is not engaged and no carpenters are employed in the disputed work, the right to injunction has a stronger foundation than as to buildings upon which this dispute has become concrete; but the decree below cannot be wholly sustained by restricting it to this situation.

3. The sheet metal workers say that the carpenters have refused to abide by the controlling union laws; and, if this is true, then, so far as we can see, the carpenters have become, for this purpose and from the viewpoint of the sheet metal workers, nonunion men, and the legal 'aspect of the controversy is just the same as if between union and nonunion workmen.

4. The right to strike and threaten to do so, as a means of coercing an employer with whom the strikers.have a direct controversy, and as a general right, is not questioned upon this appeal; it is the limitations upon that right which are here involved.

5. There is not and never was any employer-employee relation between the plaintiff and the Sheet Metal Workers’ Union. There was no controversy between the building owner and this union. A valid contract existed between plaintiff and the city, and the defendants compelled the city to break it; and the city doubtless became, in a sense, engaged in a joint conspiracy with the sheet metal workers to compel the plaintiff to conduct his business in a way distasteful to him. The effort of the sheet metal workers is to succeed over their immediate opponent, the carpenters’ employer, by injuring and threatening to injure third parties, the building owners, who are strangers to the controversy.

6. While the ease does not show the malicious enticement of the Hitehman ease, and while it does not present a secondary boycott in the precise aspect of the Duplex and Truax eases, we conclude that it is governed by the underlying principle of the two cases last named, and that the decree below was therefore justified upon that principle.

7. It is more than doubtful whether the Carpenters’ Union was bound to submit or did submit this jurisdictional dispute to the arbitral tribunal. If not — as the district judge was inclined to think and as appellee forcibly argues — the questions chiefly relied on by appellant disappear from the case. At any rate, plaintiff was not bound by the arbitration, and cannot be compelled to conduct his business accordingly.

The decree is affirmed.

MACK, Circuit Judge,

dissents.

The specified parts of the District Court opinion follow:

“2. Defendants are, in my opinion, proved to be engaged in a conspiracy, the objects of which are not lawful and the means adopted to carry it out are not lawful means. This is true for the reasons stated in my former opinion, which need not now be repeated. This conclusion is not only supported but compelled by the following cases: Loewe v. Lawlor, 208 U. S. 275, 28 S. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815; Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Lawlor v. Loewe, 235 U. S. 522, 35 S. Ct. 170, 59 L. Ed. 341; Hitchman Coal Co. v. Mitchell, 245 U. S. 229, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461; American Steel Foundries v. Tri-City Council, 257 U. S. 184, 42 S. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360; Truax v. Corrigan, 257 U. S. 312, 42 S. Ct. 142, 66 L. Ed. 254, 27 A. L. R. 375; United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762. See, in addition, eases cited in my former opinion. These decisions of the United States Supreme Court define what are and what are not the lawful objects of a labor organization; what are and what are not lawful means to carry out those lawful objects; what is and is not a dispute between an employer and employees concerning terms or conditions of employment; what may and may not be done to third persons in furtherance of a labor dispute between an employer and its present, past, or expectant employees in a dispute concerning such terms or conditions of employment. These cases declare it unlawful to boycott third persons in aid of either party to that labor dispute. Whatever views I may entertain to the contrary, or whatever conflicting expressions may be found in decisions of other courts, must yield to these carefully considered declarations of the United States Supreme Court.

“3. Defendants’ main reliance and chief justification for their conduct is that they are engaged in enforcing the award of a National Board of Jurisdictional Awards. This contention was dealt with in my former opinion so briefly and is reiterated so earnestly that some supplementary observations will be made. The Amalgamated Sheet Metal Workers’ International Alliance is a national, if not an international, labor organization of' sheet metal workers. It is also locally organized and has local organizations or unions. One of these locals, known as No. 65, has jurisdiction within the Cleveland territory. These unions assert that the work and labor of installing and hanging interior sheet metal trim of No. 10 gauge or lighter, such as doors, door frames, window frames, and transoms belong to their trade or craft; in other words, that it is a sheet metal workers’ job and hot a carpenters’ job. The National Board of Jurisdictional Awards is an extralegal tribunal, said to be composed of members of the American Institute of Architects, the Engineering Council, the Associated General Contractors of America, the National Association of Building Trades Employers, and the Building Trades Department of the American Federation of Labor. It is said that a board of eight members, consisting of representatives designated by these several bodies, has heard this dispute between the sheet metal workers and the carpenters and have made an award that the work in question belongs to members of the Amalgamate ed Sheet Metal Workers’ Union, and that the members of the United Brotherhood of Carpenters and Joiners refuse to respect or abide by this award.

“It is this so-called award that the defendants have combined and conspired to enforce against plaintiff. In enforcing this award, they contend that any means short of actual violence are lawful means, and that it is lawful to boycott owners or contractors who have let contracts to plaintiff and others who will not agree to employ members of the Sheet Metal Workers’ Union; coerce or induce them to break contracts with plaintiff and others who will not do so; and call and induce strikes against owners and other contractors if plaintiff and others are permitted to install sheet metal trim with workers not members of the Sheet Metal Workers’ Union. Needless to say that the United Brotherhood of Carpenters ahd Joiners claim and exercise the same right whenever contractors attempt to install sheet metal trim, employing members only of the Sheet Metal Workers’ Union.

“Defendants’ contentions involve the assertion of a number of impossible rights. If their contentions are admitted, the members of the sheet metal workers’ organizations are the only persons within the United States or at least within such parts thereof as the sheet metal workers may be organized, who have the right to work or labor in installing metal trim; that their members have obtained a monopoly of this kind of work to the exclusion of all other labor ready and willing to work; and that they may exclude from working at this kind of labor not merely members of the United Brotherhood of Carpenters and Joiners, but all other persons. If their contentions are sustained, then no owner or contractor wishing to have done a job calling for metal trim has the right to employ or contract with persons ready, willing, and able to do such work in competition with members of the sheet metal workers’ organizations or without their consent. The legal consequence of admitting these asserted rights is that all persons not members of the sheet metal workers’ organizations are thus deprived of liberty and property without due process of law. The right of every free man to work without interference for whoever may be willing to employ him, is denied. The right of every person wishing to have done a job of work calling for sheet metal trim, is denied his lawful right to employ freely others to do that work and have it done without interference. Congress may not thus deprive persons of liberty or property without violating the Fifth Amendment to the Constitution. No state may do so without violating the Fourteenth Amendment to the Constitution. These constitutional guaranties to each and every citizen of the right to life, liberty, and property, are vital, living principles, and have recently received most emphatic vindication by the United States Supreme Court in Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A. L. R. 1446, decided June 4, 1923, holding void state laws prohibiting any one from teaching German to children under ten years of age; and in Wolff Packing Co. v. Court of Industrial Relations of Kansas, 262 U. S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280, decided June 11, 1923, holding void certain provisions of the Kansas law creating its court of industrial relations.

“Should we admit, however, that it is lawful to combine and conspire to enforce a monopolistic award of this nature, defendants’ combination must nevertheless be denounced because the means resorted to in its enforcement are unlawful. Briefly stated, these means are efforts to induce owners and principal contractors to break their contracts with plaintiff; efforts to induce owners and principal contractors to refuse to perform contracts lawfully entered into with plaintiff; coercive efforts to compel plaintiff to discharge employees satisfactory to it with whom it has established contract relations, which efforts are nonetheless illegal even though such employment is at the will of both parties. The coercive means used are threats and intimidation against plaintiff and owners and principal contractors with whom it hád valid and subsisting contracts; actual and threatened strikes of workmen employed by the owners, principal contractors, or other contractors, on the same or other jobs; indeed, the coercion and intimidation has extended even to the creation of a reasonable fear or apprehension that strikes in other building trades than the sheet metal working line would or might be called if plaintiff continued to employ union carpenters or if owners and principal contractors refused to break their contracts with plaintiff. As already said, these methods axe unlawful. They are not means used in furtherance of the legitimate objects of a labor organization in a labor dispute between an employer and employees concerning terms and conditions of employment. These acts are directed towards third persons and are properly classifiable as secondary boycotts. Even if it be admitted that peaceable requests or persuasion might be used to induce plaintiff to discharge its union carpenters or to induce owners and principal contractors not to let contracts to plaintiff because of plaintiff’s unwillingness to employ only members of the Sheet Metal Workers’ Union, it is never lawful to induce or to attempt to induce peaceably or by persuasion, mueh less by threats, coercion, the calling of strikes, and the starting of boycotts, one to break an existing contract with another. Whenever this is the object of the conspiracy, it is always held to he an illegal conspiracy, and all interference to prevent its performance, with knowledge of its existence, is unlawful.

“The utter absence of any legal basis to support defendants’ contentions will, I think, be realized even by them if the situation were reversed. Let us assume that the Congress of the United States or the legislature of the State of Ohio should pass acts providing that all sheet metal trim should be done only by members of the United Brotherhood of Carpenters and Joiners of America; that such work should not belong to or be done by members of the Sheet Metal Workers’ Union, or by any other labor or group of laborers, organized or unorganized; that no owner or contractor desiring this kind of work to be done, should or could hire any one so to do not a member of said United Brotherhood. This is the converse of the rights asserted by defendants. Any such law would be promptly declared void by any tribunal worthy to be called a court, as depriving men of the right to liberty and property without due process of law, in violation of the Fifth and Fourteenth Amendments to the Constitution. What Congress or the Legislature may not do directly, no group of labor organizations nor any extra-legal National Board of Jurisdictional Awards may do indirectly. The asserted rights and the adopted means are a step in advance of any ever heretofore asserted by a labor organization.

“If defendants may assert these rights and combine to enforce them, so likewise may the employers. That aspect of the situation has been so well summed up by Circuit Judge Ward in Irving v. Joint District Council (C. C.) 180 F. 896, that I adopt his statement as my own. At page 900 he says: ‘The right of workingmen to unite for their own protection is undoubted, and so is their right to strike peaceably because of grievances; but their right to combine for the purpose of calling out'the workmen of other employers who have no grievances, or to threaten owners, builders, and architects that their contracts will be held up if they or any of their sub-contractors use the complainants’ trim, is quite another affair. To take the converse of the proposition: Will the defendants admit that employers may combine to prevent any employer from using union labor? May the employers agree not to sell to or contract with any one who deals with an employer who uses union labor? Either of these propositions is destructive of the right of free men to labor for or to employ the labor of any one the laborer or the employer wishes. See the language of Justice Harlan in Adair v. United States, 208 U. S. 161, 174, 28 Sup. Ct. 277, 52 L. Ed. 436. If the struggle is persisted in between labor and capital to establish a contrary view, ultimately either the workmen or the employers will be reduced to a condition of involuntary servitude.’ ”