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giving directions to the men. Of course, if a man was engaged nine-tenths of the time, or perhaps three-fourths of the time, or more than half the time, in actual manual labor, giving up entirely during that period all idea of superintendence or direction, throwing off his responsibility and becoming altogether a common laborer, and having no reference to the direction of the work or outlook upon what was going on, then it probably would follow that he was not a superintendent, or not a superintendent whose chief duty was superintendence. But if at the same time that he was laboring he was giving directions, and adhering to his right to direct and superintend, and was actually keeping an outlook and directing, then it would become a question for you to determine, notwithstanding the fact of manual labor for a greater or less portion of the time; it would be a question for you to settle upon all the evidence, taking into consideration all the evidence, the amount of labor, the importance of superintendence, the extent of direction,-all together,for you to determine whether his chief duty was that of superintendence.'

If the instructions had rested where the court first left them, the charge would, perhaps, have been deficient. It cannot, however, be doubted that what the court added after the defendant made the request which we have cited materially modified what it had before said. In making this modification, the court so fully expressed itself to the jury that there is no question that whatever detrimental impressions the first instructions may have made were removed. Therefore the case fairly turns on the question whether or not the final instructions were correct, and sufficiently full, in view of the request made by the defendant.

We will consider in their chronological order the various decisions of the supreme judicial court of Massachusetts, cited to us by either party.

In Malcolm v. Fuller, 152 Mass. 160, 25 N. E. 83, the nisi prius court, in charging the jury, used these expressions with reference to the person claimed to have been intrusted with superintendence:

"If generally or principally he is at work manually with his hands, then he is not a man whose sole or principal duty is that of superintendence.” "That is, if Stewart was set to work with a gang of men, and expected to do his share, either of holding or pounding the drill, and was generally engaged in that employment, or in manual employments about the quarry, then he is not a man whose sole or principal duty is that of superintendence."

These instructions, however, were not passed on by the court in bench, for the case turned on the proposition that the act which caused the injury was not an act of superintendence. The same is true as to Cashman v. Chase, 156 Mass. 342, 31 N. E. 4, in which the court found that it was evident that in operating the engine the person who was alleged to be in superintendence "was doing the work of a laborer, acting upon the directions of others, and not directing them." Also, in Shepard v. Railroad, 158 Mass. 174, 33 N. E. 508, the court failed to state why it held that the section foreman in that case was not charged with superintendence, within the meaning of the statute, and the question of the meaning of the word "principal" in the statute was not specifically raised. Prendible v. Manufacturing Co., 160 Mass. 131, 35 N. E. 675, also fails as an authority for either party before us.

In O'Brien v. Rideout, 161 Mass. 170, 36 N. E. 792, the substance of all the evidence was reported in the bill of exceptions. The court below ordered a verdict for the defendant, and the plaintiff excepted.

The court in bench overruled this exception. The foreman stood in similar relations to his co-employés as Anderson in the case at bar, because, while the plaintiff was at work with a circular saw, sawing butternut wood, the foreman, while employed with the same gang, was giving orders, attending to grinding tools, piling lumber, and keeping busy generally. The court said that the evidence would not justify a finding that the foreman came within the statute, and added what was said by one of the witnesses, to the effect that the foreman was "at work pretty much all the time in getting out lumber, or piling it up, or arranging it, or in operating saws." While it While it is quite possible that this case would have justified us in sustaining a verdict. for the defendant, if it had been ordered by the court below, and all the evidence were before us, it fails to state specifically anything by which it can be understood whether or not it intended to lay down an arbitrary rule by which the statute is to be construed, or whether it only referred to the testimony which it quoted as a leading fact, which, under the circumstances, brought it to the conclusion which it reached.

Dowd v. Railroad Co., 162 Mass. 185, 38 N. E. 440, so far as the specific point which we have before us is concerned, is subject to the same observation as Prendible v. Manufacturing Co.

A case which is thought to give much support to the defendant's position is O'Neil v. O'Leary, 164 Mass. 387, 41 N. E. 662. This came up on exceptions to a refusal at nisi prius to give the following instruction requested by the defendant, appearing at page 389, 164 Mass., and page 662, 41 N. E.:

"There is no evidence that McDonald was employed as a superintendent, whose sole or principal duty was that of superintendence, so that the defendant can be held liable for the negligence of McDonald."

The court in bench, considering only the evidence for the plaintiffs, held that this instruction should have been given. It abstracts that evidence at page 390, 164 Mass., and page 663, 41 N. E., and then proceeds as follows:

"In a sense, it is undoubtedly true that superintendence is more important than manual labor; and so, if superintendence is intrusted to a man who also works with his hands, it may be said that his principal duty is that of superintendence. But if the statute had intended that every person exercising superintendence should not be considered a fellow servant with a person injured, there would have been no need of the words 'whose sole or principal duty is that of superintendence.' These words must have a reasonable interpretation given to them; and a majority of the court is of opinion that it cannot be said of a person who works at manual labor, to the extent shown in this case, that his principal duty is that of superintendence."

It is to be observed that the plaintiff's case contained no proof like that referred to in the charge in the case at bar, to the effect that while the alleged superintendent was at work he "was also engaged in the line of superintendence," and that, "even if working with his hands, he was engaged in keeping an outlook upon the work, and giving directions to the men." In other words, the charge before us went on the ground that, even if the labor performed by Anderson was continuous, the jury might find, on the evidence, that it was of such a character as did not prevent him from also at the

same time giving superintendence to the work, and, further, that he did give such superintendence continuously, or substantially so. Of course, we cannot say judicially that this proposition involves any inconsistency. Therefore the precise circumstances under which the case at bar was left to the jury were not brought to the attention of the court in O'Neil v. O'Leary.

Geloneck v. Pump Co., 165 Mass. 202, 216, 43 N. E. 85, is too indefinite to be of use. Crowley v. Cutting, 165 Mass. 436, 43 N. E. 197, by implication, reaffirms the conclusion in O'Neil v. O'Leary; but it had no occasion to pass precisely on the particular question before us. Reynolds v. Barnard, 168 Mass. 226, 46 N. E. 703, is not of importance, except that it again recognizes the conclusion in O'Neil v. O'Leary. The case turned on the fact that the proofs were conflicting, and that therefore the issue was properly submitted to the jury. It again failed to propound the precise question which the evidence and the charge in the case at bar raise.

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In Gardner v. Telegraph Co., 170 Mass. 156, 48 N. E. 937, there was a verdict for the defendant; and the sole question was on the admissibility of certain evidence offered by the plaintiff and excluded. The court held that it was admissible on the question of superintendence; using this expression, which we will refer to again: "This" (that is, the evidence excluded) “would have justified the jury in finding that he" (that is, the alleged superintendent) "was something more than a mere laborer in charge of a gang.' Riou v. Granite Co., 171 Mass. 162, 50 N. E. 525, turned on the fact that the act out of which the injury arose was not an act of superintendence. The court, by referring to Reynolds v. Barnard, 168 Mass. 226, 46 N. E. 703, reaffirmed whatever there is in O'Neil v. O'Leary, 164 Mass. 387, 41 N. E. 662. Eaves v. Manufacturing Co., 176 Mass. 369, 373, 57 N. E. 669, is wholly indefinite, so far as concerns the question which we have to determine.

The result of these decisions undoubtedly establishes as a general rule what is restated in Reynolds v. Barnard, 168 Mass., at page 228, 46 N. E. 704,-that, when an employé works with his hands the greater portion of the time, he cannot superintend, within the purview of the statute; but they do not compel us to the conclusion that this rule is absolute, and to be applied without qualification under exceptional circumstances. When, as said in what we have already quoted from Gardner v. Telegraph Co., the alleged superintendent is only "a mere laborer in charge of the gang," this general rule might well be applied, if not as a rule of law, at least as a rule of presumption of fact so forcible that the court would not allow a jury to disregard it. To go further, however, than to state it ordinarily as illustrative for the guidance of juries, would give an artificial construction to a statute which seems simple, plain on its face, and reasonable in its purpose; and it would also hold that the court could assume to know that a man cannot work constantly with his hands, and yet exercise superintendence in such manner that that is his principal duty. Such an assumption would be so forced as to exclude the possibility, which the common mind knows to exist,—that not only may an employé be engaged at all times in labor with his

hands, and yet exercise superintendence under such circumstances that that is his principal duty, but that, also, he may be so engaged under such peculiar circumstances that quite continuous laboring with his hands is a necessary part of the duty of superintendence. Since none of the decisions which have come to our observation were rendered under circumstances which brought to the attention of the court the exceptional facts in support of which the plaintiff produced evidence in the case at bar, and since, therefore, we are not concluded thereby with reference to such exceptional facts, and since, moreover, the defendant's proposition would compel us to give an artificial and narrow construction to a remedial statute, contrary to the just and reasonable rules ordinarily applicable, and since, also, the alleged superintendent in this case was, as we have shown, "something more than a mere laborer in charge of a gang," we are unable to determine that the instructions given the jury were not suitable and sufficient.

(113 Fed. 72.)

The judgment of the circuit court is affirmed, with interest, and the defendant in error recovers the costs of appeal.

DE FORD et al. v. MARYLAND STEEL CO.

(Circuit Court of Appeals, Fourth Circuit. February 4, 1902.)

No. 416.

1. BREACH OF CONTRACT-DAMAGES-EXPENSE INCURRED-LOST PROFITS. Damages based on the estimated expenses incurred and losses of profits sustained by reason of defendant's failure to complete and deliver certain vessels within a specified time are not recoverable in an action for breach of a contract to complete and deliver the vessels within the specified time, though the purpose for which the vessels were intended was understood by the parties, such damages being entirely conjectural.

2. SAME-REMOTENESS OF DAMAGES.

Damages based on the loss of vessels in a hurricane are too speculative to be recoverable in an action for breach of a contract to construct and deliver the vessels within a specified time at a designated place, their destruction occurring at another place.

3. SAME MEASURE OF DAMAGES.

In the absence of special circumstances, a party failing to complete and deliver vessels within a specified time is liable only to the amount of the interest on the payments made prior to their delivery for the time of the delay.

In Error to the Circuit Court of the United States for the District of Maryland.

Charles Morris Howard, for plaintiffs in error.

Alexander Preston (J. Alexander Preston and Robert Ludlow Preston, on the brief), for defendant in error.

Heard by GOFF and SIMONTON, Circuit Judges, and JACKSON, District Judge.

GOFF, Circuit Judge. The defendant below, also the defendant in error, contracted with the plaintiffs below, who are also the plain

tiffs in error, under a written contract dated September 6, 1899, to build for them, in accordance with certain specifications, one steel screw tug, and to complete and deliver the same to said plaintiffs on or before the 1st day of January, 1900, unless prevented by providential occurrence, fire, strikes of workmen, or other obstacles beyond their power to control, for the sum of $15,750. The defendant also contracted with plaintiffs, by written contract dated December 6, 1899, to construct for them, in accordance with certain described plans, two barges, and to endeavor to complete and deliver said barges to the plaintiffs on or before the 1st day of February, 1900, unless prevented by providential occurrences, fires, strikes of workmen, or obstacles beyond their power to control, for the sum of $11,500. The vessels so contracted for were to be delivered at Sparrow's Point, in the state of Maryland. For various reasons, not necessary to be here set forth in full, the tug and barges were not actually delivered to the plaintiffs until July 21, 1900. The last installment of pay for said vessels was made by the plaintiffs to the defendant on the day the same were so delivered, and the plaintiffs on that day duly served on the defendant a protest in writing, reserving to themselves all rights and claims that they might be entitled to because of said delay. The plaintiffs were engaged in the business of manufacturing and selling sugars, having places of business in Boston and Porto Rico, and the vessels so contracted for and delivered were intended to be used during the sugar season of 1900. The tug and barges left for Porto Rico under the tow of a larger tug on the day they were delivered to the plaintiffs, and, after having experienced tempestuous weather off of and south of Cape Hatteras, both of the barges were lost; one of them on July 26th, and the other on the following day. The tug was compelled to return to Norfolk, but afterwards went to Porto Rico under her own steam. On the 5th day of January, 1901, the plaintiffs instituted an action at law in the circuit court of the United States for the district of Maryland, claiming damages from the defendant because of its failure to complete and deliver said vessels according to the terms of the contract mentioned. It is alleged in the declaration that the failure to complete and deliver said vessels was not caused by providential occurrences, fires, strikes of workmen, or other obstacles beyond the defendant's power to control, but was owing to the negligence of the defendant; and it was further alleged that said vessels were intended by the plaintiffs for use in connection with their sugar business in Porto Rico, and that they were known to be so intended by both parties to said contract, and that by the failure of the defendant to deliver the vessels within the time stipulated, the plaintiffs were subjected to great expense for freight and for lighterage, and that they were deprived of the profits of valuable contracts in connection with such vessels, which profits they would otherwise have made, and that by reason of the delay and of the failure of the defendant to complete and deliver said vessels in accordance with the terms of the contract, the plaintiffs were subjected to great additional expense; and the plaintiffs also alleged that the 21st day of July in every year is the beginning of the hurricane season in the locality for which said

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