Fisher v. Walsh

• Decision Date: 21 February 1899
• Citation: 78 N.W. 437,102 Wis. 172
• Parties: FISHER v. WALSH ET AL.
• Court: Wisconsin Supreme Court

102 Wis. 172

78 N.W. 437

FISHER

v.WALSH ET AL.

Supreme Court of Wisconsin.

Feb. 21, 1899.

Appeal from superior court, Douglas county; Charles Smith, Judge.

Action by Mrs. A. W. Fisher against W. P. Walsh and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

This was an action to recover $25.50, for 15 days' personal services rendered by one McKillop to the appellants in June and July, 1896, the claim having been assigned by McKillop to the plaintiff. The answer, after a general denial, contained a counterclaim, alleging that McKillop was employed under an entire contract for the season of 1896, and that he breached said contract without cause, and claimed damages for such breach. On the trial it appeared that the defendants, as co-partners, had entered into a contract with various railroad and steamboat companies for the loading and unloading of vessels and cars upon some of the docks at West Superior for the season of 1896, and had given bond for the prompt performance of such contract in a considerable sum. In order to perform this work, two classes of men were employed. One class, to which McKillop, plaintiff's assignor, belonged, were known as “day men,” who were regularly employed under a contract which stipulated that they should work throughout the season of 1896, and should receive pay at a stipulated rate per day for every working day, whether work was provided for them or not. Of this class there were about 80 men. The other class, known as “hourly men,” were employed casually, as the occasion arose, and paid by the hour for the time they in fact worked. Of these, the defendants had employed at times some 300. McKillop, in common with the other day men, had entered into a written agreement of employment, which, in addition to the terms above mentioned, provided several ways in which it might be terminated; among others, the following: First, by first party or his agents discharging second party for any violation of this agreement in any respect; third, by the neglect, refusal, or inability of the second party at any time to obey the orders of the first party or his foreman, or to perform a fair and reasonable day's work; fourth, by the failure of the second party to perform any agreement therein. It further provided that, in case of termination for either of the above-mentioned causes, the first party might retain any wages then earned by the second party, not exceeding 15 days' wages in all, to his own use, as and for liquidated damages for the breach thereof, which said sum was agreed to be the ascertained damages for such termination and breach, and a fair and full compensation therefor. It was also provided that payment should be made on the fifteenth of each month for the work done during the preceding month. The plaintiff knew or had heard when he signed the contract that the defendants had contracted with railroad and steamship companies as aforesaid, and were under bonds; that a large force was required to carry out their contracts; that boats and cars were liable to come in at all times of the day or night, and would have to be loaded or unloaded; and that it required a few experienced men to work with the inexperienced ones to safely and speedily conduct the work. It appears by the evidence that on the evening of the 6th of July, 1896, the so-called “hourly men” quit in a body, or “struck,” demanding an increase of wages; and that the “Longshoresmen Union,” on the following day, July 7th, discussed the question of that strike, and assumed control and jurisdiction of it for the hourly men, and served on the defendants a notice signed by their officers, demanding an increase of pay for the hourly men. It appears that McKillop had for something like a year been a member of the Longshoresmen Union, but had dropped out of active connection with it, and did not know that the union was having anything to do with the strike of the hourly men. The day men, continuing to work during the 7th and 8th of July, were interfered with by squads of the striking hourly men, and threatened with serious violence unless they also quit work. This interference did not occur at the docks where they were at work, but upon the streets, as they were going to and from their work. These threats were of personal injury, and, as plaintiff's assignor and others of the day men testified, put them in serious fear; so that on the evening of July 8th a considerable number of the day men, including McKillop, attended a meeting of the Longshoresmen Union, at which it was demanded that the day men also quit work, unless wages were raised both for the hourly and day men, and that such quitting take place at noon of the following day, unless the demands were acceded to; and a resolution was offered and passed that the day men must quit accordingly, unless such concessions were made. It does not appear that McKillop voted on this resolution, nor whether he entered into any agreement other than that which may be inferred from the fact that he was a member of the union, and hence impliedly bound to abide its decisions. McKillop testifies that he was again interfered with on the morning of the 9th on his way to work, by seven or eight of the strikers; and at noon he quit work, as did also all of the day men who belonged to the union, the defendants having declined to accede to their demands. McKillop testifies: “I was stopped on my way to work the morning of the day I quit. There were seven or eight of them. They asked me if I was going to quit. I said I didn't think I would. They said, if I didn't quit, they would club me to death; they would murder half of us down there. I said nothing more, but kept on going. I worked until noon that day. On our way home, we were met by another gang, and they told us to stay home that afternoon. I don't know who those men were. I didn't go back to work that afternoon. I was kind of scared of those men down there in the yard. I boarded at the corner of Third street and Banks avenue. I didn't consider it safe at any time after I quit, until the strike was over, for me to go back to work, and for that reason I remained away. I heard of men getting held up and attacked after I quit. I don't know what men they were. They were working for Mr. Walsh. I quit because I feared those men I met in...