Arkansas and the Michigan rules substantially deprive the accused of a jury trial and therefore are improper.

Courts in some jurisdictions have the right to comment on the evidence; it is always their duty to instruct the jury on the law applicable to the case and to instruct them as to what issues are involved. The exercise of each and all of these rights and duties may border on a direction to convict. The difficulty lies in telling just when a directed verdict results therefrom. We have seen that in Michigan the court may tell the jury that it is their duty to convict, providing the evidence in the case warrants it. It would seem that this amounts to a comment on the evidence equivalent to directing a verdict and results in the predetermination by the court, made known to the jury, that the facts of the particular case demand a conviction. Such a determination is the sole province of the jury. The fact that the question is in the end submitted to them for their "additional" determination, does not sufficiently right the wrong done. Also, where the intent of the accused enters in as a factor in the crime being tried, the court's comment on the evidence, its instructions as to the law applicable, and particularly its instructions as to the issues involved, may be such that the jury are in effect directed to ignore the very important matter of intent. And in Alabama, however undisputed the testimony of the state's witnesses may be, and though the witnesses go unimpeached, where there is the intent of the accused to be considered, as in the instant case, it would seem improper to charge the jury that if they believe the evidence in the case beyond a reasonable doubt they must convict the accused. Intent is a fact to be inferred usually, and the inference must be drawn by the jury. Therefore the charge would seem to be incomplete and misleading, though not constituting a directed verdict.

Robert H. Dann.

Equity: Injunction: Legality of peaceful picketing.-With the rush of labor controversies to the forefront among legal problems of the past three decades, the legality of picketing has been much under consideration. Originating as a term for certain military tactics,1 picketing today connotes primarily "The placing of relays of guards in front of a factory or the place of business of an employer, for the purpose of watching who may enter or leave the same.' That this device is a favorite of the labor strategist is known to all who are at all conversant with the continual warfare raging between organized capital and organized labor. What part is played in this field by the courts?

12

All jurisdictions agree that any picketing for an illegal purpose may be enjoined, as a tort resulting in irreparable injury. Thus, picketing will always be enjoined when in furtherance of an illegal strike, or when it induces an unjustifiable breach of contract. But, conceding

116 R. C. L. 453.

2Cumberland Glass Mfg. Co. v. Bottle Blowers' Ass'n, 59 N. J. E. 49 at 54, 46 Atl. 208 (1899).

32 C. J. 183, notes 87 and 94. For a recent case, see Bittner v. W. Va. Coal Co. 15 Fed. (2nd) 652 (CCA, 4th 5th 1926).

the legality of the end, there yet remains the question of the means. When the picketing is by force, threats, violence, physical assault, abusive and insulting language, or coercion, there is again unanimity: the acts will be enjoined. It is only within the remaining narrowed area that conflict arises among the courts. Can there be such a thing as peaceful, and therefore lawful picketing? New York holds: "The picketing of the neighborhood***by a few strikers*** is not unlawful ...unless accompanied by threat intimidation, coercion, or force;" and the weight of authority accords with this view. 5a Chief Justice Taft, on the other hand, declared in Truax v. Corrigan that: "We there held [in the Tri-City case] that peaceful picketing was a contradiction in terms;" while another case argues that: "There is and can be no such thing as peaceful picketing any more than there can be chaste vulgarity, or peaceful mobbing, or lawful lynching." The most recent case noticed, Gevas v. Greek Restaurant Workers' Club, oscillates non-commitally between these two views, citing decisions on both sides.

10

8

What are the implications of this conflict? It must be noted that the opinions differ only as to whether or not the picketing constitutes a tort. Once this is affirmatively answered, the courts, in the absence of an anti-injunction act,1o do not hesitate to enjoin the wrong, because of the irreparable nature of the injury, or the continual character of the wrong, or the difficulty of ascertaining damages." Then is picketing tortious per se? An answer to this question involves the more general question of tort liability in the abstract. In the wise words of Mr. Justice Holmes, "in numberless instances the law warrants the intentional infliction of temporal damages because it regards it as justified. It is on the question of what shall amount to a justification, and more especially on the nature of the considerations which really determine or ought to determine the answer to that question,

432 C. J. 179, note 54.

"Krebs v. Rosenstein, 31 Misc. 661, 66 N. Y. Supp. 42 (Sup. Ct. 1900) aff'd 56 App. Dv. 619, 67 N. Y. Supp. 385 (1st Dept. 1900).

baMARTIN, MODERN LAW OF LABOR UNIONS, $169, and cases cited.

257 U. S. 312 at 340, 42 Sup. Ct. 124, 132 (1921). Actually, in American Steel Foundries Co. v. Tri-City Central Trades Council, 257 U. S. 184, 42 Sup. Ct. 72 (1921) the court allowed "one representative for each point of ingress and egress in the plant or place of business... (with right of) observation, communication, and persuasion." The learned chief justice evidently does not regard this as picketing. Nor does the AMERICAN FEDERATIONIST, which remarks: "This lone individual might be permitted under the Supreme Court decision to proceed with proper Chesterfieldian grace and courtesy to announce quietly to the passing multitude the fact that a strike existed." (1922) 29 AMERICAN FEDERATIONIS 44-45.

Atchison, etc. Ry. Co. v. Gee, 139 Fed. 582, 584 (Cir. Ct., S. D. Iowa, 1905). 134 Atl. (N. J.) 309 (1926).

See pp. 311-2 of the opinion.

10Such acts, while not legalizing peaceful picketing, as does the English statute, (32 C. J. 184, note 8) deprive the employer of the injunctive remedy. See 38 U. S. Stat. 738 (1914); Kansas, Gen. Stats., 1915, § 7146; Minn. Acts of 1917, ch. 493; Mont. Rev. Code, 1921, § 9242 para. 8; N. D. Acts of 1919, ch. 171; Or. Laws 1920, §§6814-9; Wash. Acts 1919, ch. 185; Wis. Stats 1923, § 133.05, .07 and .08; N. J. Laws 1926, ch. 207; Ill. Laws 1925, ch. 22, § 58.

"The possibility of balancing conveniences before issuing the injunction seems not to have been considered by the courts.

that judicial reasoning seems to me often to be inadequate. The true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and still more rarely, if ever, capable of unanswerable proof."12

Accepting this theory of the elements in tort liability, a prima facie case in justification of peaceful picketing can readily be made out. A strike with a legitimate purpose has been called. The union responds. By enlisting the services of other men, the employer continues the successful operation of his business. The union cannot hope to win, unless it can persuade these men to quit. Often they are unskilled, uninformed drifting job-seekers, not aware of the dispute, and innocent of any hostility to the union. If approached in person -the only effective medium of persuasion-they are likely to be convinced. To spread fear as a new motive for quitting the employment, may be unlawful means; but persuasion, which is merely pointing to already existing reasons for leaving, is surely not illegal.

An analysis of the reasons advanced in opposition to this view indicates these objections to peaceful picketing: (1) Since some annoyance to employer and employees is inevitably consequent, it should not be left to the individual judge to draw the line, according to his own bias.13 (2) A picket inevitably tends to cause crowds, riots, and breaches of the peace.14 (3) Regardless of theory, it is common knowledge that picketing is always designed to intimidate. Otherwise, the unions would not lavish their funds upon this activity, as they so cheerfully do.15

As to the first of these, it must be conceded that the employer and his workers are always annoyed by a picket. But this is equally true of a lawful strike, of a cut in prices by a rival merchant, of a devastating new patent that ruins his business, of a breach, 16 or the inducement of a breach of contract, or the violation of a technical property right,18 for a socially beneficial purpose, and also of the very formation of trade unions, originally considered unlawful but eventually recognized as useful to society, and therefore legalized either by court decision or by statute.19 The all important consideration is economic

Vegelahn v. Guntner, 167 Mass. 92., 44 N. E. 1077 (1896).

"Barnes v. Chicago Typographical Union, 232 Ill. 424, 83 N. E. 490 (1908). 14Pierce v. Stablemen's Union etc., 156 Calif. 70, at 79, 103 Pac. 324 (1909). 15 Supra, note 14 and American Steel Foundries Co. v. Tri-City Central Trades Council, Supra note 6.

16Springfield Power Co., v. N. & W. Ry. Co., 260 Fed. 254 (S. D. Ohio 1919); note (1919) 33 HARV. L. REV. 605.

17Brimelow v. Casson, 93 L. J. Ch. 256; [1924] 1 Ch. 302, notes (1924) 38 HARV. L. REV. 115; (1924) 34 YALE L. J. 213.

18City of Valparaiso v. Hagen, 153 Ind. 337, 54 N. E. 1062 (1899); Penn. Coal Co. v. Sanderson, 113 Pa. 126, 6 Atl. 453 (1886); Robb v. Carnegie Bros., 145 Pa. 324, 22 Atl. 649 (1891).

1916 R. C. L. 418–420; Martin, MODERN LAW OF LABOR UNIONS, § 6, and cases cited.

justification; or, to quote Dean Pound, "The main problem to which sociological jurists are addressing themselves to-day is to enable and to compel law-making, and also interpretation and application of legal rules, to take more account, and more intelligent account, of the social facts upon which law must proceed and to which it is to be applied."20

The second reason is not an accurate statement of fact. The writer recalls an instance where the pickets chose confortable restingplaces, sat down, and did no more than scowl at the scabs, and note down their names if they recognized them. In this sort of picketing, there is no inevitable tendency to rioting. The object of the picket is to persuade men to quit work; and inherently there is nothing to prevent its being peacably accomplished.

This leads to the ultimate objection: that the defenders of the picket system are splitting hairs, and overlooking the actual facts. Of course, if this is true if every case of picketing is obviously tortious no injustice will be done, since an injunction will issue accordingly. On the other hand, if there is some possibility of a particular picket remaining within the law, to preclude it from functioning by a sweeping injunction is clearly unjust. There are other answers. The case described in the preceding paragraph illustrates the existence of lawful methods of picketing. Chief Justic Taft in the Tri-City case recognizes the lawfulness of accosting persons to influence their actions. This is essentially the task of the picket. Where it is enjoined, the union must resort to other methods of reaching the men. Sometimes an elaborate espionage system is devised, and the homes of the workers canvassed. Sometimes the union secretly mans the plant with its own members, and carries on its propaganda within the enemy's camp. Are these more devious tactics any more lawful than peacefully approaching the men on the streets? Even if the peaceful picket is an infrequent phenomenon, the fact that it occasionally is to be found seems sufficient justification for the majority view. To deny this right to the union is to weaken. its effectiveness-and it is now settled law as well as settled social philosophy that the effectiveness of the trade union, when rightly utilized, is not only unobjectionable, but even advantageous to society at large.

Nathan Katz.

Insurance: Murder of beneficiary by insured.-An insurance policy provided that if the beneficiary precedeased the insured, the proceeds should revert to the estate of the latter; and also that the insured could change the beneficiary at any time he pleased. The insured murdered the beneficiary, then named his heirs as the new beneficiaries. After his execution for the crime, a contest arose, in Allen v. Diamond,1 between his heirs and the executor of the first bene

20(1912) 25 HARV. L. REV. 512-3.

113 Fed. (2nd) 579 (C. C. A. 7th, 1926).

ficiary. Thus we have a case differing from Smith v. Metropolitan Life Insurance Co.2 only in the fact that the insurance company here makes no claim to the proceeds. Contra to the New York decision, the federal court allows the heirs of the insured to recover. Without pausing to consider the objections usually urged to such a view-that it means recovery by the heirs of a wrongdoer, and that it enables the insured to mature the policy by his own act-the court points out that forfeiture for crime is almost obsolete, and that by express contract the heirs were entitled to the proceeds. While it is perhaps to be regretted that the court did not dwell at greater length upon the considerations involved, it is with satisfaction that we note this addition to the increasing number of liberal decisions of this question. Nathan Katz.

Master and Servant: Workman's Compensation Act: Construction of statutory excuse for failure to give written notice of injury.-Under the New York Workman's Compensation Act,1 failure to give written notice of injury may be excused provided: (1) "That notice for some sufficient reason could not have been given;" (2) "That the employer, or his or its agents in charge of the business in the place where the accident occurred or having immediate supervision of the employee to whom the accident happened, had knowledge of the accident;" (3) "That the employer has not been prejudiced thereby."

In Finch v. Buffalo Envelope Co., et. al., 217 N. Y. Supp. 744 (3rd Dept. 1926), the question arose whether the want of written notice was properly excused. The claimant had verbally reported his accidental injury to his superintendent on the same morning that it happened. The court held that since the employer had knowledge, he was not prejudiced by the failure of the claimant to give written notice of it. An employer, according to the court, has knowledge of the accident within the meaning of the statute if he or his agent is promptly advised of it by the injured employee or anyone who knew the facts. Surprisingly, the court divided three to two. The dissent held: (1) that the Legislature had in mind actual knowledge of an accident which happened in the presence and within the sight and hearing of the employer or his agent, and not mere possession of information; (2) that under such circumstances verbal notice, irrespective of its value, becomes equivalent to written notice and the statutory requirement is destroyed.

The question as to what constitutes knowledge has not arisen before in New York. It was anticipated but not decided. There is a dictum in Combs v. Geibel, that if knowledge of an alleged injury

2125 Misc. (N. Y.) 670, 211 N. Y. Supp. 755 (Sup. Ct. App. Term, 2nd Dept., 1925).

(1926) 11 CORNELL LAW QUARTERLY 390.

1Sec. 18.

Bloomfield v. November, 223 N. Y. 265, 119 N. E. 705 (1918); Calderera v. Nathan & Co., 200 App. Div. 298, 192 N. Y. Supp. 737 (3d Dept. 1922). 3226 N. Y. 291, at 296, 123 N. E. 452 (1919).