And we plosion was not caused by them. if a violation of section 2 of the Boiler Inspection Act contributed to cause his death. See Great Northern Ry. Co. v. Donaldson, 246 U. S. 121, 124, 38 S. Ct. 230, 62 L. Ed. 616, Ann. Cas. 1918C, 581; St. Louis Iron Mountain & S. Ry. v. Taylor, 210 U. S. 281, 294, 28 S. Ct. 616, 52 L. Ed. 1061; Louisville & Nashville R. R. Co. v. Layton, 243 U. S. 617, 620, 37 S. Ct. 456, 61 L. Ed. 931. That act was passed to promote the safety of employees and is to be read and applied with the federal Employers' Liability Act. Under the latter, defendant is liable for any [3-5] But we agree with the Circuit Court negligence chargeable to it which caused or of Appeals that, under section 2 of the stat- contributed to cause decedent's death (secute, there was sufficient evidence to sustain tion 1), and he will not be held guilty of conthe verdict, wholly apart from the broken tributory negligence (section 3) or to have asstaybolts. Defendant's duty to have the boil-sumed the risks of his employment (section 4) er in a safe condition to operate so that it could be used without unnecessary peril to its employees was absolute and continuing. No notice to the defendant, actual or constructive, of the defects or unsafe condition of the boiler was necessary to plaintiff's case. Defendant is liable if its breach of duty contributed to cause the death. We are bound to assume that the condition of the boiler at Foster, a very short time before the explosion, was as indicated by the testimony of the brakeman above referred to. His credibility and the weight properly to be given to his testimony were for the jury. And if the boiler was in the condition he described, it would not be unreasonable to conclude that a breach of duty of defendant caused or contributed to cause the explosion. We think it did not conclusively appear that the failure of deceased properly to operate the engine was the sole cause of the explosion. It follows that the evidence made a case for the jury. [6-9] 3. The court, in harmony with the provisions of section 2, instructed the jury that the standard of defendant's duty was to put and keep the locomotive in proper condition and safe to operate, and that it would be a violation of defendant's duty if the engine, as to the crown sheet, was permitted to be in such a condition that it could not be employed in the active service of the carrier *528 moving the *traffic without unnecessary peril to life or limb, and further instructed as follows: * "If you shall say and find that the standard of duty imposed by the law required a fusible safety plug to be installed, then the absence of the fusible safety plug would impose upon the defendant here an absolute liability, and the plaintiff would be entitled to recover if the absence of it contributed in whole or in part to cause the explosion and the resulting death. * * An interstate carrier, as well as any railroad carrier, owes the duty, of course, of availing itself of the best mechanical contrivances and inventions in known practical use which are or would be effective in making safe a locomotive boiler as against explosions. It is not bound to introduce a new appliance the moment somebody suggests it or discovers it, but is entitled to a reasonable time and opportunity to test it out and make any changes. * ** If you shall find ble safety plug was required by that standard, and that it was a mechanical means and contrivance in known practical use and effective more than was any other that had been installed by the defendant on this engine, then its absence would be a violation of the Boiler Inspection Act. * By the last-mentioned section, defendant was bound absolutely to furnish what before, *529 under the common law, *it was its duty to exercise ordinary care to provide. The carriers were left free to determine how their boilers should be kept in proper condition for use without unnecessary danger. The things required for that purpose were not prescribed or changed by the act; but use of boilers unless safe to operate as specified was made unlawful, and liability for consequences follows violation of the act. It is a well-established rule that the master is not bound to furnish the latest or best tools or appliances for the use of his servants. That rule is applicable here, and we hold that defendant was not liable for failure to furnish the best mechanical contrivances and inventions or to discard appliances upon discovery of later improvements, provided the boiler was in proper condition and safe to operate, as required by the statute. Chicago & Northwestern Ry. Co. v. Bower, 241 U. S. 470, 474, 36 S. Ct. 624, 60 L. Ed. 1107; Patton v. Texas & Pacific R. R. Co., 179 U. S. 658, 664, 21 S. Ct. 275, 45 L. Ed. 361; Washington, etc., Railway Co. v. McDade, 135 U. S. 554, 570, 10 S. Ct. 1044, 34 L. Ed. 235. er. The jury was by the charge authorized to find that the act required defendant to have a fusible plug in the crown sheet of the boilThere is nothing in the act or in any rule, regulation or order authorized by it, which specifies the use of fusible plugs. This, however, does not relieve the defendant of the duty to have and keep its boilers safe for use as required by the act. Great Northern Ry. Co. v. Donaldson, supra, 128 (38 S. Ct. 230). The use of fusible plugs has been known for a long time. The record does not contain a complete showing of the extent of their use; but it appears that the Erie Rail*that a fusi-road uses them, and that for some years defendant used them; that defendant has now about 2,700 locomotives, and does not have fusible plugs in any of them; and it was shown that they are not used by the New York Central, the Chicago, Burlington & Quincy, the Illinois Central, or the Nickel *530 (45 S.Ct.) or absence of a fusible plug was a matter properly to be taken into consideration in connection with other facts bearing upon the kind and condition of the boiler in determining the essential and ultimate question; i. e. whether the boiler was in the condition required by the act. Plate. In 1899, the American Railway Master Mechanics' Association, whose members represent nearly all the railroads in *the country, passed a resolution expressing the sense of the association to be "that the use of fusible plugs in the crown sheets of locomotive fire boxes is not conducive to the prevention of the overheating of the crown sheet." It appears that, among practical men experienced in such matters, there is a difference of opinion as to the usefulness of such plugs. If the question whether the standard of duty fixed by the act required defendant to have a fusible plug in the crown sheet of the boiler were one for the determination of a jury, we think there was evidence which would sustain a verdict in the affirmative or in the negative. But we think the question was not for the jury. Southern Pacific Co. v. Seley, 152 U. S. 145, 150, 14 S. Ct. 530, 38 L. Ed. 391; Tuttle v. Detroit, G. H. & M. R. Co., 122 U. S. 189, 194, 7 S. Ct. 1166, 30 L. Ed. 1114; Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478, 483, 3 S. Ct. 322, 27 L. Ed. 1003; Kilpatrick v. Choctaw, O. & G. R. (Argued Oct. 21, 1924. Decided Jan. 5, 1925.) But we think the court erred in instructing the jury that defendant was bound to avail itself of "the best mechanical contrivances and inventions in known practical use which are or would be effective in making safe a locomotive boiler as against explosions," and also erred in authorizing the jury to decide that "the standard of duty imposed by the law required a fusible safety plug to be installed," and that "the absence of the fusible safety plug would impose upon the defendant here an absolute liability." Judgment reversed. (266 U. S. 531) UNITED STATES v. MORROW. No. 98. Army and navy 27-Proviso for increased pay of headquarters clerks in Philippine Islands held not applicable to clerks in Quartermaster's Corps employed at salaries fixed by War Department. Proviso in Army Appropriation Act April 27, 1914, and Act March 4, 1915, relating to increase in pay of clerks and messengers at headquarters of territorial departments held applicable only to headquarters clerks and messengers, when serving in the Philippine Islands, and not to include clerks in Quartermaster's Corps, employed at salaries fixed by War Department. Co., 121 F. 11, 57 C. C. A. 255; Richards v. *531 2. Statutes 228-"Proviso" defined. The general office of a "proviso" is to except something from the enacting clause, or to qualify and restrain its generality, and prevent misinterpretation, and its grammatical and logical scope is confined to the subjectmatter of the principal clause, and, although sometimes used to introduce independent legislation, it will be presumed to refer only to provisions to which it is attached. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Proviso.] Appeal from the Court of Claims. Action by Charles A. Morrow against the United States. Judgment for plaintiff (58 Ct. Cl. 20), and defendant appeals. Reversed. ers, engine tenders and appurtenances *are to #522 *The Attorney General and Mr. Merrill E. Otis, of St. Joseph, Mo., for the United States. Mr. George A. King, of Washington, D. C., for appellee. Mr. Justice SANFORD delivered the opin For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This case involves the construction of a proviso in the Army Appropriation Acts of 1914 and 1915, relating to an increase in the pay of clerks and messengers at headquarters of territorial departments. 38 Stat. 351, 355, c. 72; 38 Stat. 1062, 1067, c. 143. This proviso follows a special appropriation made in substantially identical language in the two Acts. In the Act of 1915 this provision reads: "Pay to Clerks, Messengers, and Laborers at Headquarters of the Several Territorial Departments, Territorial Districts, Tactical Divisions and Brigades, Service Schools and Office of the Chief of Staff. *533 "One chief clerk, at the office of the Chief of Staff, $2,000 per annum. Fifteen clerks, at $1,800 each per annum. Fifteen clerks, at Thirty-eight *clerks, Seventy clerks, at Sixty-five clerks, at Two messen $1,600 each per annum. * * * * charged against him as having been erroneously paid, and deducted from the pay then accruing to him as a captain in the quartermaster's corps. Thereupon he brought this action to recover the amount claimed, and was awarded judgment. 58 Ct. Cl. 20. It is conceded that Morrow was a clerk in the quartermaster corps, and not one of the headquarters2 clerks included within the first paragraph of the appropriation. [1] The contention of the United States 3 is that the proviso applied only to the headquarters clerks and messengers employed at the statutory salaries fixed by the appropriation, and did not include clerks in the quartermaster corps employed at salaries fixed by the War Department; that is, that it merely increased the statutory salaries of the clerks and messengers provided for by the specific appropriation when they should serve in the Philippine Islands. [2] This we think is its plain meaning. gers, at $840 each per annum. Fifty-nine The general office of a proviso is to except messengers, at $720 each per annum. One laborer, at $660 per annum. Two laborers, at $600 each per annum. One laborer, at $480 per annum. In all, $312,320. "Additional pay while on foreign service, $9,000. * * * "Provided, That on and after July first, nineteen hundred and fourteen, the pay of clerks and messengers at headquarters of territorial departments, tactical divisions, brigades, and service schools, who are citizens of the United States, shall be increased $200 each per annum while serving in the Philippine Islands, such service to be computed from the date of departure from the continental limits of the United States to the date of return. * * * "And said clerks, messengers, and laborers shall be employed and assigned by the Secretary of War to the offices and positions in which they are to serve. By a separate provision in the Act a lump sum appropriation of $1,833,127 was made for incidental expenses of the quartermaster corps, including the "hire of laborers" and "compensation of clerks and other employees to the officers" (page 363.) 1 something from the enacting clause, or to qualify and restrain its generality and prevent misinterpretation. Minis v. United States, 15 Pet. 423, 445, 10 L. Ed. 791; Georgia Banking Co. v. Smith, 128 U. S. 174, 181, 9 S. Ct. 47, 32 L. Ed. 377; White v. United States, 191 U. S. 545, 551, 24 S. Ct. 171, 48 L. Ed. 295; Cox v. Hart, 260 U. S. 427, 435, 43 S. Ct. 154, 67 L. Ed. 332. Its grammatical and logical scope is confined to the subject-matter of the principal clause. United States v. Whitridge, 197 U. S. 135, 143, 25 S. Ct. 406, 49 L. Ed. 696. And although sometimes used to introduce independent legislation, the presumption is that, in accordance with its primary purpose, it refers only to the provision to which it is attached. United States v. *535 Falk, 204 U. S. 143, 149, 27 S. Ct. 191, 51 L. Ed. 411. Here it clearly appears that the proviso was employed in its primary sense. tended to apply only to the headquarters clerks and messengers employed at the statutory salaries fixed by the special appropriation, and related to the $9,000 provided for the additional pay of such employees while on foreign service; and it plainly had no reference to clerks and messengers in the quartermaster corps whose salaries were fixed by the War Department under the lump sum appropriation. The entire context shows that it was in Morrow, a citizen of the United States, went to the Philippine Islands in 1899. From May 15, 1914, to January 17, 1917, he served as chief clerk of the depot quartermaster's office, at the headquarters of the Philippine Department of the Army, in Manila. He received a salary of $2,000 a year, which was fixed by the War Department and paid out of This is emphasized when the proviso is the lump sum appropriations for the quarter-examined in the light of prior legislation, master corps. Later he submitted to the Auditor a claim for additional pay at the rate of the condition it was evidently intended to $200 a year for the period of his service aft *534 er July 1, 1914, under *the proviso in the acts increasing the pay of clerks and messengers at headquarters of territorial departments while serving in the Philippine Islands. This was allowed and paid; but was thereafter 1 A like provision was contained in the Act of 1916 (p. 1074). 2 The term "headquarters" is used in this opinion as including the various army stations mentioned in the special appropriations. (45 S.Ct.) correct, and its legislative history. Brusha- staff corps and departments should receive, in addition to the $200 increase given them by the War Department, a second increase of like amount under the terms of the proviso. It is entirely clear that Morrow's service in the quartermaster's office in the Philippines was not within the scope *of the proviso. It is unnecessary to review in detail the various contentions urged in his behalf. We do not find them sufficient to sustain the judgment; and it must be and is Nov. 17, 1924. In all of the Army Appropriation Acts from 1895 to 1914 special ap propriations were made for a designated number of clerks and messengers at headquarters and army stations, at specified rates of pay; but no provision for any increase in their pay while on foreign service. Lump Reversed. *537 (266 U. S. 494) LAW v. UNITED STATES. (Argued Dec. 8, 1924. Decided Jan. 5, 1925.) No. 550. sum appropriations were also made for staff *536 Appeal and error 850(1) Judgment based on general finding not reviewable on facts and law. In an action at law tried by the court without a jury, on review of judgment rendered on general finding for plaintiff, the appellate court cannot inquire into facts or conclusions of law. 2. Courts 518 Jurisdiction under War Risk Insurance Act at law not concurrent with Court of Claims. An action on war risk insurance contract, under Act October 6, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 514a, 514k et seq.), invokes that jurisdiction of the District Court which is exercised under the rules govthat exceptional jurisdiction concurrent with tions at law for money compensation, and not Court of Claims. 3. Appeal and error 882(16)—Error in granting its motion for trial by court without jury not assignable as error by movant. wrote to the Speaker of the House of Representatives, stating that the pay of the headquarters clerks who were serving in the Philippines was not commensurate with their work and less than that of any other similar government employees in the Islands, and that as there were "no means" by which the War Department could remedy this condi-erning the usual procedure of the court in action, he recommended that Congress insert in the next appropriation for headquarters employees a proviso that the pay of such clerks and messengers be increased 20 per centum while serving in the Philippines. This recommendation was renewed by the succeeding Secretary of War, prior to the consideration of the Army Appropriation Bill for 1915. Thereafter Congress added to the appropriation the $9,000 for additional pay while on foreign service, and the proviso relating to the increase of pay while serving in the Philippines, in the form in which they have been quoted; these additions being adopted after the proposed increase had been changed, on a report of the Conference Committee, from 20 per centum, the amount recommended by the Secretaries, to $200 a year, the increase given by the War Department to clerks in the staff corps and departments.5 In the light of this history there is no room to doubt-even if it were not plain from the face of the Act itself-that the proviso was intended to apply merely to the headquarters clerks and messengers included within the specific appropriation. It manifestly was not intended that clerks in the 63d Cong., 1st Sess., H. R. Doc. No. 46. 551st Cong. Rec., pt. 6, p. 5592; 63d Cong. 2d Sess., Sen. Doc. 469. The United States will not be heard to complain that the trial court erroneously granted its motion to hear action under War Risk Insurance Act as amended Oct. 6, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 514a, 514k et seq.) without jury. 4. Appeal and error 265(1)—In absence of exception, denial of special findings not assignable as error. The government, not excepting to the trial court's denial of special findings in a law action, has no ground for complaint on appeal. In Error to the United States Circuit Court of Appeals for the Ninth Circuit. Action by De Witt T. Law against the United States. Judgment for plaintiff (290 F. 972) was reversed by the Circuit Court of Appeals (299 F. 61), and plaintiff brings error. Judgment of Circuit Court of Appeals reversed. *495 *Mr. De Witt T. Law, of Missoula, Mont., for plaintiff in error pro hac vice. Mr. Assistant Attorney General Donovan, for the United States. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Mr. Justice BRANDEIS delivered the opinion of the Court. [2-4] The jurisdiction possessed was that to be exercised in accordance with the laws governing the usual procedure of the court in actions at law for money compensation. Crouch v. United States, 266 U. S. 180, 45 S. Ct. 71, 69 L. Ed. -; United States v. Pfitsch, 256 U. S. 547, 552, 41 S. Ct. 569, 65 L. Ed. 1084. The District Court, having erroneously decided that it was the exceptional jurisdiction concurrent with the Court of Claims, granted the Government's motion to sit without a jury. Of this error the Government cannot complain. Nor can it complain of the denial by the trial court of the motion for special findings. It did not except thereto. Whether special findings can ever avail where there was no stipulation in This is an action at law brought in the federal court for Montana on a contract for insurance issued under the War Risk Insurance Act as amended by Act October 6, 1917, c. 105, 40 Stat. 398, 409 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 514a, 514k et seq.). The United States filed an answer denying liability and moved for trial without a jury. The motion was granted. At the close of plaintiff's evidence the defendant moved for judgment. The motion was denied. No special findings of fact were made. Judgment for $3,335 was entered for the plaintiff upon a general finding. 290 F. 972. Upon writ of error sued out by the government the Circuit Court of Appeals re-writing waiving the jury, we need not conversed the judgment and directed the District Court to enter judgment for the defendant. 299 F. 61. The case is here on the plaintiff's writ of error under section 241 of the Judicial Code (Comp. St. § 1218). sider. Compare Kearney v. Case, 12 Wall. The action was brought by the insured. The contract provided for payment in installments in case of total and permanent disability. Whether the plaintiff was so disabled was the main issue. The evidence in- SANITARY DIST. OF CHICAGO v. UNITED troduced by him occupies forty pages of the printed record. It disclosed, among other STATES. No. 161. (266 U. S. 405) I. Attorney General 9-Attorney General may sue to enjoin withdrawal from Lake Michigan of water in excess of that authorized by Secretary of War. things, that, at the time of enlistment, plain- (Argued Dec. 8, 9, 1924. Decided Jan. 5, 1925.) tiff was a common laborer with but several months of recent high school education; that he was seriously wounded overseas; that, after discharge, he resumed his studies; that later, in the rehabilitation process, he entered upon the study of law; and that he acted as his own counsel in the trial of the case. The government's motion for judgment was made on the ground, among others, that plaintiff had failed to prove that he ever had been, or then was, totally disabled, within the meaning of the contract of insurance. *496 [1] The Court of Appeals held that the motion should have been granted. Its judgment must be reversed and that of the District Court must stand, because the case was tried without a jury and there was only the general finding for the plaintiff. Neither the evidence, nor the questions of law presented by it, were reviewable by the Court of Appeals. To inquire into the facts and the conclusions of law on which the judgment of the lower court rests was not permissible. Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; Insurance Co. v. Folsom, 18 Wall. 237, 21 L. Ed. 827; Boardman v. Toffey, 117 U. S. 271, 6 S. Ct. 734, 29 L. Ed. 898. The bill of exceptions and the assignment of errors do not attempt to present any other question which is substantial. The petition confessedly set forth a good cause of action. The District Court had jurisdiction of the parties and of the subject matter. Its decision is final. authority, may sue to enjoin withdrawal of wa- The United States, in the exercise of its control navigable waters within its jurisdiction, sovereign power to regulate commerce and to and to carry out obligations under treaty with foreign nation providing against uses of water of Great Lakes affecting natural level or flow of boundary waters, may enjoin withdrawal of water from Lake Michigan in excess of that authorized by the Secretary of War under Act effect of such diversion is to lower level of March 3, 1899, § 10 (Comp. St. § 9910), where lake, though water is being used for removal of sewage of city of Chicago, under Act Ill. May 29, 1889 (Laws 1889, p. 125). 3. Commerce 8(1)-Power of federal gov ernment to remove obstructions to interstate and foreign commerce is superior to that of states to provide for welfare of inhabitants. The power of the United States to remove obstructions to interstate and foreign commerce is superior to that of the states to provide for the welfare or necessities of their in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |