KANSAS CITY, MEMPHIS, & BIRMING-329; Taylor v. Hawkins, 16 Q. B. 307; HAM RAILROAD COMPANY, Plff. in Err., Weatherston v. Hawkins, 1 T. R. 110.

Odgers, Libel & Slander, pp. 129, 176; Miller v. Donovan, 16 Misc. 453; King v. Payne v. Western & A. R. Co. 13 Lea, 507, Waring, 5 Esp. 15; Smith v. Wood, 3 Campb. 49 Am. Rep. 666; Southern Exp. Co. v. Fitz323; Fonville v. M'Nease, Dud. L. 303, 31ner, 59 Miss. 581, 42 Am. Rep. 379; Isaacs Am. Dec. 556; Sutton v. Smith, 13 Mo. 120; v. Third Ave. R. Co. 47 N. Y. 122, 7 Am. Rep. Irish-American Bank v. Bader, 59 Minn.

McAlister, J., delivered the opinion of the court:

Delaney commenced this suit in the circuit court of Shelby county against defendant company to recover damages for an alleged libel contained in the following letter:

Kansas City, Memphis, and Birmingham
Railroad Co. J. H. Sullivan, Superintendent.
Memphis, Tenn., May 16th, 1896.

To Whom It May Concern:

The bearer, J. P. Delaney, worked for the company as foreman of blacksmith shop, and was considered very competent. Like many others, he left our service during the strike. But I think he is thoroughly convinced that he got on the wrong track, and that na trouble from this source need be apprehended from him again. For his family's sake, I hope he may obtain employment, and I believe he will prove a faithful man hereafter.

J. H. Sullivan, Supt.

this letter ever came to the knowledge of any persons other than Speed and Delaney. It does show that Delaney himself showed it to Capt. Slusser, master mechanic of the Louisville & Nashville Railroad at Memphis, for the purpose of securing employment.

Speed at the time said letter was delivered, and at his urgent request, but were made known, by defendant's or said Sullivan's acts, to no other person. Defendant avers that the contents of said letter are true in substance and in fact." On the trial below it was not controverted that the letter was written, but it was insisted that it was written at the request of plaintiff, and delivered to his agent, Mr. Speed. The latter went to Sullivan, superintendent of the Kansas City, Memphis, & Birmingham Railroad, to get a letter recommending Delaney to Capt. Slusser, of the Louisville & Nashville Railroad for employment. Sullivan refused to give a letter to Slusser. Thereupon Speed represented to Sullivan that Delaney was a poor man, had a large family, and would like a letter from him "To Whom It may Concern;" that it might do him some good. After some hesitation, Sullivan finally agreed to give such a letter, saying he felt sorry for Delaney, and would like to see him After setting out the letter, the declara- get something to do. Speed testified that tion proceeded: "The aforesaid writing was he showed the letter to no one, and had not known by the defendant to be false when it communicated its contents to anyone exceptmade and published the same. The plaintiffing Delaney. The record fails to show that did not leave the service of the defendant during the strike, and this fact was well known to the defendant. Plaintiff took no part in said strike, and this fact was well known to the defendant. The aforesaid written and published false statement was made wilfully and maliciously, for the purpose of injuring plaintiff in his trade and calling." There was a demurrer to the declaration upon the ground that it did not make any sufficient averment of special damages suffered by the plaintiff in conse quence of the libelous words spoken of and concerning him. The point of the demurrer was that, the words not being libelous per se, the action could not be maintained with out an averment of special damages. The demurrer was overruled. The defendant pleaded "Not guilty," and justification. The latter plea, in full, is as follows: "It says that, at the special instance and request of the plaintiff, one R. A. Speed, acting as the plaintiff's friend and agent, went to J. H. Sullivan, who was employed by defendant company as superintendent of operating department of its railroad, and asked him to give him (Speed) a letter, addressed To Whom It May Concern,' recommending plaintiff, as well as the facts would justify, for employment; at the same time stating that he knew that said Sullivan could not give him a letter addressed to any railroad because Delaney had been connected in some way with the strike. He further stated to said Sullivan that, if he would give him a letter of recommendation addressed as above, he thought Delaney could get employment with the L. & N. R. R., of Memphis. Accordingly, said Sullivan, with intent to aid and assist plaintiff, and without malice, wrote the letter dated the 16th day of May, 1896, declared upon, and delivered the same to said Speed, to be delivered by said Speed to said Delaney. The contents of said letter were made known by said Sullivan to said

There was evidence tending to show that on the 3d of July, 1894, a time long anterior, Delaney was working in the shops of defendant company at Memphis in the capacity of railroad blacksmith. On that day what was known as the "Debs Strike" was begun, and the shops of defendant company were immediately closed. Delaney, it appears, was a member of the American Railway Union and, after the shops were closed, attended a meeting of that organization at the courthouse in Memphis, and, in a public speech, stated that, as the Kansas City Railroad Company had acceded to the demands of the strikers not to haul Pullman cars, he would have nothing to do with the strike. Delaney testified that he told Briggs, the master mechanic of defendant company, under whom he had worked, that he was ready and will. ing to work at any time; that Briggs asked him if he was a member of the American Railway Union, and, on his admitting that he was, Briggs discharged him. This was denied by Briggs. Evidence was introduced by the company tending to show that on the 5th or 6th of July, while the shops were still closed, it became necessary to have the rigging of a passenger coach repaired, and Briggs sent for Delaney to do the work. Delaney came, and, on being to what was wanted, said he would have t consult the Blacksmith's Union, whereupon Briggs discharged him. Sullivan, the superinterdent, was afterwards told that Delaney had been discharged for refusing to do the work required. It is claimed by Sullivan that he was acting on this information when he stated in the letter that Delaney, "like many

statement of

any

instance

in

others, left our service during the strike." damages. The allegation of damage is "that It will be observed that this suit is not plaintiff has been greatly injured in his to recover damages for the breach of a con- business, he has been unable to obtain emtract, or for discharging Delaney from the ployment, he has been deprived of the right to service of the company, but is for the pub- follow the vocation of his choice, to his great lication of a libel based upon the following damage, $10,000." This allegation is not language in the letter, namely: "Like many sufficient. In Pollard v. Lyon, 91 U. S. 225, others, he left our service during the strike." 23 L. ed. 308, the words were not actionable It will be remembered that this letter was per se. The allegation of damage was that written at the urgent solicitation of Mr. plaintiff had been damaged and injured in Speed, acting as the friend of Mr. Delaney, her fame and name. The court said that in Neither Delaney nor Speed expressed any such cases the declaration must set forth dissatisfaction with it at the time it was precisely in what way the special damage rewritten, but received it and attempted to sulted from the speaking of the words. The make use of it. The only publication of the judgment in that case in favor of the plainletter was in making its contents known to tiff was arrested. In Fry v. McCord Bros. Speed. No witness was produced who had 95 Tenn. 678, the words were not actionable refused to employ Delaney on account of the per se. The declaration in that case alletter, nor were any special damages alleged leged that plaintiff was greatly injured in or proved. There is no evidence of publica- his good name and credit, brought into pubtion in this record. The proof is undisputed lic scandal, infamy, and disgrace, and that that this letter was written by Sullivan at he was prevented from getting any of the the request of Mr. Speed, who was acting necessaries of life, goods, wares, and merby authority of plaintiff. Speed accepted it, chandise; that "he has suffered great anxiety and delivered it to plaintiff, who used it in and pain of mind, and become incapacitated seeking employment. Under the authori- for business and hence is damaged $5,000.” ties, the company is not liable for any of the The court said, viz.: "But there is consequences of the act of Delaney in mak- no ing publication of the letter after it reached which his credit was impaired or credit his hands. If a person receives a letter con- refused him, or in which he failed to taining libelous matter, he will not be justi- procure the necessaries of life, or any other fied in publishing it. Sylvis v. Miller, 96 particulars; nor any names of any persons Tenn. 94; Wilcox v. Moon, 64 Vt. 450, 15 L. given, nor any reason given for the failure R. A. 760. In view of the facts of this case, to give names or identify persons."-citing was the delivery of the letter by Sullivan to Newell, Defamation, p. 867, § 41. The court Speed a publication? Unquestionably not. held that, for want of proper allegation of It was precisely the kind of letter that Speed special damage, the declaration was bad in expected to get, and he accepted it without substance, and reversed the ruling on demurobjection or complaint. The court instruct-rer, and dismissed the case. The present ed the jury that the letter was not libelous or actionable per se, which we hold to be correct. But, when words are not libelous in themselves, it is necessary to allege in the declaration, and prove, special damages, as a condition of recovery. Continental Nat. Bank v. Boudre, 92 Tenn. 723; Fry v. Mc-not hesitating to do anything to the injury Cord Bros. 95 Tenn. 679. The objectionable of the company's property," etc. The court words are, "Like many others, he left our held this language libelous per se, and that service during the strike." The court corit was unnecessary to allege or prove special rectly instructed the jury that these words damages, since the charge was necessarily are not libelous or actionable per se, because hurtful, and that, if false, plaintiff might they are not of such a nature that they "nec-recover general damages. In that case this essarily must or presumably will, as their natural or proximate consequence, occasion pecuniary loss, without any allegation or evidence of damage other than that which is implied or presumed from the fact of publication." Pollard v. Lyon, 91 U. S. 227, 23 L. ed. 310; Continental Nat. Bank V. Bowdre, 92 Tenn. 736, The letter does not contain a charge which must necessarily occasion injury, and the law requires proof, and will not presume damages. It was therefore necessary to allege and prove special 45 L. R. A.

case is not at all analogous to the case of Railroad Co. v. Johnson (decided by this court at its April term, 1897). In that case the libel charged was "that plaintiff had been discharged for insubordination, as well as being at the head of a disreputable mob,

court affirmed a judgment in favor of the plaintiff for $1,500. This case does not present such language as constitutes a libel per se, and there being no special damages alleged, the action cannot be sustained.

versed, the demurrer sustained, and the The judgment of the Circuit Court is resuit dismissed.

McFarland, Special Judge, being disqualified, did not participate in the decision of this case.

UTAH SUPREME COURT.

B. L. SHORT, Appt.,

บ.

BULLION, BECK, & CHAMPION MINING
COMPANY, Respt.

2.

3.

during the overtime.

A limitation of the duration of a day's work in certain employments, known as the "Eight-Hour Law," is a valid exercise of the police power of the state, and creates for the employee a legislative protection which is without his power to waive.

A servant may claim neither an express nor an implied contract to pay for services rendered under a contract of em

ployment which is in violation of laws fixing a penalty for doing the act upon which re

covery is sought, and in no case can a con

tract be implied when the parties to it are in pari delicto, and where plaintiff, to make his case, must resort to the illegal transaction in proof and pleading.

(Baskin, J., dissents.)

(June 9, 1899.)

APPEAL by plaintiff from a judgment of

the District Court for the Fifth District in favor of defendant in an action brought to recover compensation for overtime during which plaintiff was at work for defendant in addition to the hours designated by statute as a legal day. Affirmed.

The facts are stated in the opinion.
Messrs. James A. Williams and F. H.
Holzheimer, for appellant:

party becomes entitled to claim the promise or payment due in respect to them.

2 Addison, Contr. Abbott's notes 1883, 732, note 1; Schermerhorn v. Talman, 14 N. Y. 93; Tracy v. Talmage, 14 N. Y. 163, 67 Am. Dec. 132; Clark, Contr. Hornbook Series, p. 491; Logan County Nat. Bank v. Townsend, 139 U. S. 67, 35 L. ed. 107; Duval v. Wellman, 124 N. Y. 156; Mount v. Waite, 7 Johns. 434; Wheaton v. Hibbard, 20 Johns. 290, 11 790; Schroeppel v. Corning, 6 N. Y. 107; Am. Dec. 284; Browning v. Morris, 2 Cowp. Manchester & L. R. Co. v. Concord R. Corp.

66 N. H. 100, 9 L. R. A. 689, 3 Inters. Com.

Rep. 319; Walter A. Wood Mowing & R.
Mach. Co. v. Caldwell, 54 Ind. 270, 23 Am.
Rep. 641, 16 Am. L. Reg. N. S. 554, and note.
A loan made in violation of the charter of
a bank or the statute law may be recovered.
Lester v. Howard Bank, 33 Md. 558, 3 Am.
Rep. 211; Vining v. Bricker, 14 Ohio St. 331;
Shoemaker v. National Mechanics' Bank, 2
Abb. (U. S.) 416; Stewart v. National Union
Bank, 2 Abb. (U. S.) 424; O'Hare v. Second
Mo. 1; Foley v. Greene, 14 R. I. 618, 51 Am.
Nat. Bank, 77 Pa. 96; Bell v. Campbell, 123
Rep. 419.

The labor of a working man is his own capital, and no power on earth can prevent him from vending it in the markets.

Plaintiff was not particeps criminis with the defendant, and much less in pari delicto with it.

Keener, Quasi Contr. 272 et seq.; Wood, Mast. & S. §§ 206-209; Bachelder v. Bickford, 62 Me. 526; Smith v. Cuff, 6 Maule & S. 165; Williams v. Hedley, 8 East, 378; Browning v. Morris, 2 Cowp. 791.

Messrs. Ferguson & Cannon, for respondent:

Even if the statute were not prohibitory, there is no implied contract.

Wood, Mast. & S. § 86; Guthrie v. Merrill, 4 Kan. 187; Luske v. Hotchkiss, 37 Conn. 221, 9 Am. Rep. 314; McCarthy v. New York, 96 N. Y. 1, 48 N. Y. 601; Helphenstine v. Hartig, 5 Ind. App. 172.

The corporation after working its men twelve hours per day instead of eight, and after receiving and keeping the benefit of said service for four hours, cannot come into court and say: "You were a party with us in violating this statute; you are in pari de-ited by the law. licto and cannot recover.'

There is a distinction between contracts made about matters mala in se, and those made about matters which are not wicked and bad, but merely prohibited by statute.

It does not always follow that parties are in pari delicto, for there may be, and very often are, very different degrees in their guilt.

Ray, Contractual Limitations, 143; Manchester & L. R. Co. v. Concord R. Corp. 66 N. H. 100, 9 L. R. A. 689, 3 Inters. Com. Rep. 319.

After such contracts are executed, the *Headnotes by MINER, J.

The law will not imply a contract prohib

Bank of United States v. Owens, 2 Pet. 538, 7 L. ed. 512.

An act done in disobedience to the law cre

ates no right of action.

Miller v. Ammon, 145 U. S. 422, 36 L. ed. 761; Wood, Mast. & S. §§ 200, 207, 208; Bernara v. Lupping, 32 Mo.241; State v. Goff, 20 Ark. 289; McGrath v. Merwin, 112 Mass. 467, 17 Am. Rep. 119; Edgar v. Fowler, 3 East, 225; Biggs v. Lawrence, 3 T. R. 454; Camden v. Anderson, 6 T. R. 730.

Services rendered in any business prohibited by statute cannot be recovered for. De Begnis v. Armistead, 10 Bing. 107; Badgley v. Beale, 3 Watts, 263; Wood, Mast.

NOTE. As to a statutory limitation of hours | 29 L. R. A. 79; Holden v. Hardy (Utah) 37 of labor, see note to People v. Phyfe (N. Y.) 19 L. R. A. 103; and State v. Holden (Utah) 37 L. R. A. 141; also Low v. Rees Printing Co. L. R. A. 108. (Neb.) 24 L. R. A. 702; Ritchie v. People (Ill.)

& S. § 211; Bank of United States v. Owens, | quest, twelve hours per day; that the overtime 2 Pet. 538,7 L. ed. 512; Prescott v. Battersby, 119 Mass. 285; Smith v. Arnold, 106 Mass. 270; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 674.

The consideration was illegal, and the alleged contract is nudum pactum.

work of four hours per day amounted to 591⁄4 days; that said labor was reasonably worth $2.50 per day, or a total of $148.15, for overtime worked; that said sum of $148.15 has not been paid. No promise is alleged on the part of the defendant to pay for the overtime 2 Kent, Com. 597; 9 Am. & Eng. Enc. Law, worked. This court is asked to imply a p. 909; 6 Am. & Eng. Enc. Law, 2d ed. p. 757; promise to pay from the fact that plaintiff Raguet v. Roll, 7 Ohio, pt. 1, p. 76; Ohio L. was requested to work twelve hours per day, Ins. & T. Co. v. Merchants' Ins. & T. Co. 11 which request plaintiff complied with. ChapHumph. 1, 53 Am. Dec. 742, 769, note; Milter 72, p. 219, Sess. Laws 1896, and § 1337, ton v. Haden, 32 Ala. 30, 70 Am. Dec. 523; Buck v. Albee, 26 Vt. 184, 62 Am. Dec. 564; Ryan v. School Dist. No. 13, 27 Minn. 433; Gardner v. Tatum, 81 Cal. 370.

Even if plaintiff was guilty of no crime, yet he must show a violation of the statute in order to maintain his action, and therefore he cannot recover.

Gray v. Roberts, 2 A. K. Marsh. 208, 12 Am. Dec. 383; Storz v.Finklestein, 46 Neb. 577, 30 L. R. A. 644.

Miner, J., delivered the opinion of the

court:

Rev. Stat. 1898, which are pleaded and made a part of the complaint in force when the work was performed, read as follows:

"Sec. 1. The period of employment of workingmen in all underground mines or workings shall be eight (8) hours per day, except in cases of emergency where life or property is in imminent danger.

"Sec. 2. The period of employment of workingmen in smelters and all other institutions for the reduction or refining of ores or metals shall be eight (8) hours per day, except in cases of emergency where life or property is in imminent danger.

"Sec. 3. Any person, body corporate, agent, manager, or employer, who shall violate any of the provisions of §§ 1 and 2 of this act shall be deemed guilty of a misdemeanor."

Section 6, art. 16, of the Constitution of the state of Utah reads as follows: "Eight hours shall constitute a day's work on all works or undertakings carried on or aided by the state, county, or municipal governments; and the legislature shall pass laws to provide for the health and safety of employees in factories, smelters, and mines." The statute above referred to was held constitutional by this court in State v. Holden, 14 Utah, 71, 37 L. R. A. 103, and the Supreme Court of the United States affirmed such decision in Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, holding that the act in question was a valid exercise of the police power of the state of Utah. By the provisions of this statute the period of employment of the plaintiff in defendant's mill and reduction works was

Plaintiff claims in his complaint: "That between the 1st day of June and the 1st day of November, 1896, plaintiff was employed in a mill owned and operated by the said defendant at Eureka City, state of Utah, for the purpose of treating and reducing ore, by said defendant, at the rate of $2.50 per day, and at defendant's request. (3) That the laws of the state of Utah found on page 219 of the Laws of Utah for 1896, and § 1337 of the Revised Laws of 1898,-an act regulating the hours of employment in underground mines,-made eight hours a day's labor in such places, which act is hereby made a part of this complaint. (4) That between the 5th day of June and the 1st day of November, 1896, plaintiff worked in said mill and reduction works, at the request of the defendant, twelve hours per day. That said services were not performed in cases of emergency, or when life or property was in imminent danger. (5) That the overtime worked of four hours each day amounted to fifty-eight hours of each twenty-four hours, and nine and one-quarter days. (6) That said work and labor was reasonably worth the sum of $2.50 per day; a total of $148.15. (7) That the said $148.15 has not been paid, nor any part thereof." The plaintiff also sets out twelve other causes of action of a similar character. The defendant filed a demurrer to each cause of action on the ground that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained. The plaintiff declined to amend his complaint, and elected to stand thereon. Thereupon the court dismissed the complaint, and rendered judgment against the plaintiff for costs. From this judgment plaintiff appeals, alleging that the court erred in sustaining the demurrer and in dismissing his complaint.

Plaintiff claims in his complaint that between the 5th day of June, and the 1st day of November, 1896, he worked in defendant's mill and reduction works, at defendant's re

any person, body corporate, agent, manager, or employer, who violated the provisions of the act were deemed guilty of a misdemeanor. The word "employment," as used in the stat ute, has a plain and definite meaning. Webster defines it as follows: "Employment. The act of employing or using; also the state of being employed." The plaintiff claims that he was employed by the defendant to work for twelve hours per day, and that he worked for it twelve hours per day, or four hours more than the law allowed him to work. There could be no period of employment for the plaintiff, under his complaint, without an employer. The defendant could not well violate the law unless someone was employed and performed labor prohibited by the statute. When the plaintiff voluntarily performed services at the request of the defendant in the mill, and worked twelve hours instead of eight hours, there was a violation of the statute. Had he worked eight hours