of the suit in 1904, in reality a citizen of ably did have, some floating intention of the last-mentioned state? returning to Michigan after the determination of certain litigation and the disposition of his property in Connecticut, should he succeed in disposing of it for what he considered it worth. But, as we have seen, a floating intention of that kind was not enough to prevent the new place, under the circumstances shown, from becoming his domicil. It was his place of abode, which he had no present intention of changing; that is the essence of domicil. This matter of domicil has been often before this court, and was last under consideration in the case of Williamson v. Osenton, supra. In that case the definition of domicil, as defined by Mr. Dicey, in his book on "Conflict of Laws," 2d ed. 111, is cited with approval. There change of domicil is said to arise where there is a change of abode and "the absence of any present intention to not reside permanently or indefinitely in the new abode." Or, as Judge We find no error in the conclusion of Story puts it in his work on "Conflict of the District Court upon the question of Laws," 7th ed. § 46, page 41, "If a person jurisdiction, and its judgment is therefore has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicil, it is to be deemed his JEFFREY MANUFACTURING COMPANY, place of domicil, notwithstanding he may entertain a floating intention to return at some future period." "The requisite animus is the present intention of permanent or indefinite residence in a given place or country, or, negatively expressed, the absence of any present intention of not residing there permanently or indefinitely." Price v. Price, 156 Pa. 617, 626, 27 Atl. 291. affirmed. Plff. in Err., V. (235 U. S. 571) HARRY O. BLAGG, by Joseph M. Down- CONSTITUTIONAL LAW (§ 42*)-STATUTES- 1. An employer cannot object to the discrimination, so far as it affects employees by themselves, which the Ohio workmen's compensation act (1 Page & Adams's Anno. Gen. Code [Ohio] §§ 1465-37 et seq.) makes as between employees in shops with five or more employees and those in shops having a lesser number. Applying these definitions to the conduct of plaintiff, we have no doubt that the court was right in holding that he had acquired a new domicil in the state of Connecticut. He removed there with his family, and occupied a house to which he held the title. CONSTITUTIONAL LAW (§ 238*) — “EQUAL [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. § 42.*] PROTECTION OF THE LAWS"-WORKMEN'S 2. Employers having five or more employees are not denied the equal protection ply with the terms of the Ohio workmen's compensation act (1 Page & Adams's Anno. Gen. Code [Qhio] §§ 1465-37 et seq.) by paying into a state insurance fund thereby created the premiums required by that act deprives them in negligence suits of the defenses of contributory negligence, assumed risk, and the negligence of fellow servants, while those employing four or less employees are still privileged to make either or all of these defenses. of the laws because their failure to com He owned other real estate in Connecticut, inherited from his uncle. He took a letter from his church in Michigan to a church in Danbury, Connecticut. For about ten years he was not back in Michigan, except for a short time, and then for a temporary purpose. The Michigan homestead and much of the furniture used there were sold upon the removal to Connecticut. For more than ten years he resided continuously with his family in the same house in Danbury, Connecticut. While the plaintiff did not vote in Connecticut, as far as the record shows, it is in evidence that he declared to another his intention of becoming a voter there. To some witnesses he declared his purpose to reside in Connecticut. As against this testimony, it appears that he left his desk with his brother-in-law in Michigan, which he declared was for the purpose of "holding his residence there." To some witnesses he declared his inten-Argued December 1, 1914. Decided January tion to live in Michigan, and expressed his [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 688, 690, 695, 706-708; Dec. Dig. § 238.* For other definitions, see Words and Phrases, First and Second Series, Equal Protection of the Laws.] [No. 511.] 5, 1915. State of Ohio to review a judgment which affirmed a judgment of the Court of Appeals of Franklin County, in that state, preference for that state as a dwelling-IN ERROR to the Supreme Court of the place. He continued to pay membership dues to orders to which he belonged in Michigan. It is apparent from all the testimony affirming a judgment of the Court of Comthat the plaintiff may have had, and prob-mon Pleas of that county, in favor of *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes suit. Af plaintiff in a personal-injury suit. firmed. The facts are stated in the opinion. Messrs. II. B. Arnold and W. Wilson Carlile for plaintiff in error. Messrs. Fred C. Rector, James I. Boulger, F. M. McSweeney, and Mr. Timothy S. Hogan, Attorney General of Ohio, for defendant in error. The constitutionality of the act was sustained against many objections after full consideration by the supreme court of Ohio in State ex rel. Yaple v. Creamer, 85 Ohio St. 349, 39 L.R.A. (N.S.) 694, 97 N. E. 602. The validity of the act in a single feature is here brought in question. To decide it renders necessary some examination of its provisions, as outlined in §§ 1465-37 et seq. of vol. 1, Page & Adams's Annotated Gen Mr. Justice Day delivered the opinion of eral Code of Ohio. The act is intended to the court: This action was brought in the court of common pleas of Franklin county, Ohio, to recover for injuries received by Harry O. Blagg, while in the service of the Jeffrey Manufacturing Company, a corporation engaged in man"acturing at Columbus, Ohio. The allegation was that the injury happened to the plaintiff because of the standing of certain freight cars upon a switch, with an opening left between them for the use of employees; that the plaintiff was directed by the defendant to assist in removing certain lumber from a point on the north side of the switch, and, in so doing, it was necessary for the plaintiff to pass, as directed and instructed by the defendant, through the opening between the fourth and fifth cars on the switch; that whilst he was so doing, defendant caused to run against the car standing on the cast end of the switch a long cut of car pushed by an engine, with the result that the cars on the switch were jammed and pushed to gether, and the plaintiff was caught and seriously injured. The negligence charged was (1) in causing said cut of cars to be pushed upon and against the car standing upon said switch while plaintiff was between said cars; (2) in failing to warn or notify the plaintiff of the intention of the defendant to push said cars into or upon said switch or against the car on the east end thereof; and (3) in having an insufficient number of men or employees engaged in the handling and switching of said cut of cars. A recovery was had in the court of common pleas, and the judgment was affirmed in the court of appeals and in the supreme court of the state, and the case was brought here by writ of error. The constitutionality of the act of the general assembly of the state of Ohio, known as the workmen's compensation law, is brought in question because of th fact that manufacturing companies, employing five or more, who do not take advantage of its provisions, and the plaintiff in error did not, are deprived in negligence cases of certain defenses otherwise available: (1) negligence of fellow servants; (2) defense of assumed risk; and (3) defense of contributory negligence. create a state insurance fund for the benefit of injured, and the dependents of killed, employees. The general scheme of the law is to provide compensation by means of procedure before a board, for injuries not wilfully self-inflicted, received by employees in the course of their employment. The employer who complies with the law is relieved from liability for injury or death of an employee who has complied with the terms of the act, except the injury arise from the wilful act of the employer, his officer or agent, or from failure to comply with laws enacted for protection of the employee, in which event the injured may sue for damages or recover under the act. It is one of the laws which has become more or less common in the states, and aims to substitute a method of compensation by means of investigation and hearing before a board, for what was regarded as an unfair and inadequate system, based upon statutes or the common law. The purpose of the act, as appears from its title, is to provide a fund out of which reparation in such cases shall be made. For that purpose the employments are classified by the state liability board of awards, with reference to their degree of hazard and risk, and rates of premiums fixed, based upon the total payroll and number of employees in each of the classes of employments, the purpose being to establish a fund adequate to provide for the compensation required in the act, and to create a surplus sufficiently large guarantee a state insurance fund from year to year. General Code, § 146553. Every employer who employs five workmen or more regularly in the same business or in the same establishment, who pays into the fund in accordance with the require ments of the act, is not liable to respond in damages at common law or by statute, save as in the act provided, for injuries or deaths of any such employees, provided the employees remain in the service with notice that the employer has paid into the state insurance fund the premiums required by the act. General Code, § 1465-57. Section 1465-60 provides that "all employers who employ five or workmen or operatives regularly in the same business, or in or about the same establishment, who shall not pay into the state insurance fund | mits it to those concerns which employ the premiums provided by this act, shall be less than five. Much of the argument is liable to their employees for damages suf- based upon the supposed wrongs to the emfered by reason of personal injuries sus- ployee, and the alleged injustice and arbitained in the course of employment, caused trary character of the legislation here inby the wrongful act, neglect, or default volved, as it concerns him alone, contrasting of the employer, or any of the employer's an employee in a shop with five employees officers, agents, or employees, and also to with those having less. No employee is the personal representatives of such em- complaining of this act in this case. The ployees where death results from such in- argument based upon such discrimination, juries, and in such action the defendant so far as it affects employees by themselves shall not avail himself or itself of the fol- considered, cannot be decisive; for it is the lowing common-law defenses: The defense well-settled rule of this court that it only of the fellow-servant rule, the defense of hears objections to the constitutionality of the assumption of risk, or the defense of laws from those who are themselves affectcontributory negligence." There are pro-ed by its alleged unconstitutionality in the visions of the act concerning other features feature complained of. Southern R. Co. v. not necessary now to consider. King, 217 U. S. 524, 534, 54 L. ed. 868, 871, As the plaintiff in error, employing a 30 Sup. Ct. Rep. 594; Engel v. O'Malley, large number of men, did not pay into the | 219 U. S. 128, 135, 55 L. ed. 128, 135, 31 state insurance fund the premiums provided by the law, it was held not entitled to the defenses of the fellow-servant rule, the assumption of risk, or of contributory negligence. "The sole question presented," says the counsel for the plaintiff in error, "is whether the Ohio workmen's compensation act contravenes the provisions of § 1 of the 14th Amendment to the Constitution of the United States in that the classification of employers and employees created by the act is arbitrary and unreasonable." This is said to result from the fact that, in denying the defenses, industries are classified by the number of employees,-those employing four or less are still privileged to make either or all of these defenses, while if the employer has five or more employees, and has not paid into the state insurance fund the premiums provided by the act, he is deprived of the benefit of such defenses. In other words, the legislature has selected for the application of this act only establishments employing five or more, and which comply with the terms of the act by paying the assessments required, and the law does not apply to establishments having less than five employees. Sup. Ct. Rep. 190; Standard Stock Food Co. v. Wright, 225 U. S. 540, 550, 56 L. ed. 1197, 1201, 32 Sup. Ct. Rep. 784; Yazoo & M. Valley R. Co. v. Jackson Vinegar Co. 226 U. S. 217, 219, 57 L. ed. 193, 194, 33 Sup. Ct. Rep. 40; Rosenthal v. New York, 226 U. S. 260, 271, 57 L. ed. 212, 217, 33 Sup. Ct. Rep. 27, Ann. Cas. 1914B, 71; Darnell v. Indiana, 226 U. S. 390, 398, 57 L. ed. 267, 272, 33 Sup. Ct. Rep. 120; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 58 L. ed. 713, 719, 34 Sup. Ct. Rep. 359; Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642, 648, 58 L. ed. 1135, 1137, 34 Sup. Ct. Rep. 678. The question now is: Are employers who fail to come into the plan of the statute by complying with its requirements, who employ five men or more, arbitrarily discrimi nated against, because of the provisions of the act which deprive them of the benefit of the defense of contributory negligence of the employee, while the smaller employers, employing four or less, may still find such defense available? This court has many times affirmed the general proposition that it is not the purpose of the 14th Amendment in the equal The fact that the negligence of a fellow protection clause to take from the states servant is more likely to be a cause of the right and power to classify the subjects injury in the large establishments, employ- of legislation. It is only when such ating many in their service, and that assumed tempted classification is arbitrary and unrisk may be different in such establishments reasonable that the court can declare it bethan in smaller ones, is conceded in argu-yond the legislative authority. Lindsley v. ment, and, is, we think, so obvious that Natural Carbonic Gas Co. 220 U. S. 61, 78, the state legislature cannot be deemed guilty of arbitrary classification in making one rule for large and another for small establishments as to these defenses. The stress of the present argument, in the brief and at the bar, is upon the feature of the law which takes away the defense of contributory negligence from establishments employing five or more and still per 55 L. ed. 369, 377, 31 Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160, and previous cases in this court cited on page 79. That a law may work hardship and inequality is not enough. Many valid laws, from the generality of their application, necessarily do that, and the legislature must be allowed a wide field of choice in determining the subjectmatter of its laws, what shall come within them, and what shall be excluded. Classifi-1 but if the state has the right to pass police cations of industries with reference to police regulations based upon such differences,regulations, based upon the number of em- and this court has held that it has,-we ployees, have been sustained in this court. must look to general results and practical Consolidated Coal Co. v. Illinois, 185 U. S. divisions between those so large as to need 203, 46 L. ed. 872, 22 Sup. Ct. Rep. 616. regulation and those so small as not to In that case, an inspection law of the state require it in the legislative judgment. It was sustained, which was applicable only is that judgment which, fairly and reasonto mines employing five men or more at ably exercised, makes the law; not ours. any one time. This case was cited with approval, and its doctrine applied, in McLean v. Arkansas, 211 U. S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206, where a law regulat ing the payment of wages in coal mines in Arkansas was sustained though made applicable only where not less than ten miners were employed. We are not prepared to say that this act of the legislature, in bringing within its terms all establishments having five or more employees, including the deprivation of the defense of contributory negligence where such establishments neglect to take the benefit of the law, and leaving the employers of less than five out of the act, was Certainly in the present case there has classification of that arbitrary and unreabeen no attempt at unjust and discrimina-sonable nature which justifies a court in tory regulations. The legislature was declaring this legislation unconstitutional. formulating a plan which should provide It follows that the judgment of the Sumore adequate compensation to the bene-preme Court of the State of Ohio is affirmed. ficiaries of those killed and to the injured in such establishments, by regulating concerns having five or more employees. It in (235 U. S. 522) cluded, as w have said, all of that class MARTIN LAWLOR et al., Plffs. in Err., of institutions in the state. v. DIETRICH E. LOEWE and Marvin Fuchs, MONOPOLIES (§ 14*)-CONSPIRACY OF MEM- 1. Irrespective of compulsion or even No employer is obliged to go into this plan. He may stay out of it altogether if he will. Not opening the door of the statute to those employing less than five, still leaving them to the obligations and rules of the common and existing statute law, the legislature may have believed that, having regard to local condition, of which they must be presumed to have better knowledge than we can have, such regulation covered practically the whole field which needed it, and embraced all the establishments of the state of any size, and that those so small as to employ only four or less might be regarded as a negligible quantity, and need not be assessed to make up the guaranty fund, or covered by the methods of compensation which are provided by this legislation. This is not a statute which simply declares that the defense of contributory negligence shall be available to employers having less than five workmen, and unavailable to employers with five and more in their service. This provision is part of a general plan to raise funds to pay death and injury losses by assessing those establishments which employ five and more persons and which voluntarily take advantage of the law. Those remaining out and who might come in because of the number employed are deprived of certain defenses which the law might abolish as to all if it was seen fit to do so. If a line is to be drawn in making such laws by the number employed, it may be that those very near the dividing line will be acting under practically the same conditions as those on the other side of it; [Ed. Note. For other cases, see Monopolies, 2. The rights of the defendants in an action under the Sherman anti-trust act of July 2, 1890 (26 Stat. at L. 209, chap. 617, Comp. Stat. 1913, §§ 8820, 8829), against members of labor organizations to recover the damages caused to an interstate trade of hat manufacturers by a combination to compel them to unionize their factory, through the use of the boycott and "we don't patronize" or "unfair" lists, were sufliciently guarded by an instruction that if such members paid their dues and continued to delegate authority to their officers unlawfully to interfere with the plaintiffs' that they knew or ought to have known, and such officers were warranted in the belief that they were acting in the matters interstate commerce in such circumstances For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes within their delegated authority, then such APPEAL AND ERROR (§ 1064*) - INSTRUC- Comp. Stat. 1913, §§ 8820, 8829), against members of labor organizations, to recover the damages caused to the interstate trade of hat manufacturers by a combination to compel them to unionize their factory through the use of the boycott, and "we don't patronize" and "unfair" lists. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*] [No. 358.] 3. No injustice was done in an action under the Sherman anti-trust law of July 2, 1890 (26 Stat. at L. 209, chap. 647, Comp. Stat. 1913, §§ 8820, 8829), against members of labor organizations to recover the damages caused to the interstate trade of hat manufacturers by a combination to Argued December 10 and 11, 1914. Decided compel them to unionize their factory, January 5, 1915. through the use of a boycott and "we don't patronize" and "unfair" lists, because theN ERROR to the United States Circuit court spoke to the jury of "proof" that, in carrying out the object of the associations, to review a judgment which affirmed a unlawful means had been used with their judgment of the District Court for the approval, where the court cautioned the District of Connecticut in favor of plainjury with special care not to take their view tiffs in a suit to recover treble damages of what had been proved from him, and the under the Sherman anti-trust act. Affirmed. context plainly shows that the word "proof" See same case below, 126 C. C. A. 445, was used in a popular way for "evidence," 209 Fed. 721. and must have been understood in that sense. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*] MONOPOLIES (§ 28*)-DAMAGES-FOR WHAT TIME RECOVERABLE ACCRUING SINCE ACTION BEGAN 4. Damages accruing since the action began, if the consequence of acts done before, and constituting part of the cause of action declared on, are properly allowed in an action under the Sherman anti-trust act of July 2, 1890 (26 Stat. at L. 209, chap. 647, Comp. Stat. 1913, §§ 8820, 8829), against members of labor organizations, to recover the damages caused to the interstate trade of hat manufacturers by a combination to compel them to unionize their factory, through the use of the boycott, and "we don't patronize" and "unfair" lists. Court of Appeals for the Second Circuit The facts are stated in the opinion. Messrs. Alton B. Parker and Frank L. Mulholland for plaintiffs in error. Messrs. Daniel Davenport and Walter Gordon Merritt for defendants in error. Mr. Justice Holmes delivered the opinion of the court: This is an action under the act of July 2, 1890, chap 647, § 7, 26 Stat. at L. 209, 210, Comp. Stat. 1913, §§ 8820, 8829, for a combination and conspiracy in restraint of commerce among the states, specifically directed against the plaintiffs (defendants in error), among others, and effectively carried out with the infliction of great damage. The declaration was held good on demurrer in 208 U. S. 274, 52 L. ed. 488, 28 [Ed. Note. For other cases, see Monopolies, Sup. Ct. Rep. 301, 13 Ann. Cas. 815, where Cent. Dig. § 18; Dec. Dig. § 28.*] MONOPOLIES (§ 28*)-EVIDENCE-NEWSPAit will be found set forth at length. The PERS-ACTION UNDER ANTI-TRUST ACT. substance of the charge is that the plain5. The introduction of newspapers, etc., tiffs were hat manufacturers who employed in an action under the Sherman anti-trust nonunion labor; that the defendants were act of July 2, 1890 (26 Stat. at L. 209, members of the United Hatters of North chap. 647, Comp. Stat. 1913, §§ 8820, 8829), against members of labor organizations, to America and also of the American Federarecover damages caused to the interstate tion of Labor; that in pursuance of a gentrade of hat manufacturers by a combina-eral scheme to unionize the labor employed tion to compel them to unionize their factory, through the use of the boycott and "we don't patronize" and "unfair" lists, was proper in large part to show publicity in places and directions where the facts were likely to be brought home to the defendants, and also to prove the intended and detrimental consequence of the principal acts. by manufacturers of fur hats (a purpose previously made effective against all but a few manufacturers), the defendants and other members of the United Hatters caused the American Federation of Labor to declare a boycott against the plaintiffs and against all hats sold by the plaintiffs to dealers in other states, and against dealers who should deal in them; and that they carried out their plan with such success 6. Reasons given by customers for refus- that they have restrained or destroyed the ing to deal with sellers of plaintiffs' hats, plaintiff's commerce with other states. The including letters from dealers to plaintiffs, were admissible in evidence in an action case now has been tried, the plaintiffs have under the Sherman anti-trust act of July got a verdict, and the judgment of the dis2, 1890 (26 Stat. at L. 209, chap. 647,trict court has been affirmed by the circuit [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*] MONOPOLIES (§ 28*)-EVIDENCE-RELEVAN CY-INTENT. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |