716

THE COLLIERY GUARDIAN.

April 1, 1915.

LETTERS TO THE EDITORS.

The Editors are not responsible either for the statements
made, or the opinions expressed by correspondents.

All communications must be authenticated by the name and
address of the sender, whether for publication or not.
No notice can be taken of anonymous communications.

As replies to questions are only given by way of published
answers to correspondents, and not by letter, stamped
addressed envelopes are not required to be sent.

MINING DISCUSSIONS.

Sirs,—I ought to thank your correspondent, “ M. C.,”
for the advice he gives me. If, however, you will pardon
the “bull,” I may say that I had followed his advice
for many years before it saw the light in your last
week’s issue.

“ M. C.” is mistaken if he imagines that mine is any
purely personal interest. Anything I have written in
the past, and anything I may write in the future, may
be attacked in whatever way and with whatever weapons
the attacker chooses—-I shall never grumble, provided
that I am permitted to reply in kind. In fact, I rather
enjoy being ■attacked in a “ devil-pull-baker-pull ” w’ay
(as “ M. C.” has it). It gives me a chance—which I
never fail to utilise—of putting the “ devil ” or the
“ baker,” as the case may be, in his proper place. But
I never start the “ row ” myself.

All men, however, are not so thick-skinned as I. Some
are of a retiring disposition, and easily brow-beaten into
silence. Yet many of them have something to say
worth hearing—-I want to hear it. I am ready to learn
from anyone, and I strongly object to these inoffensive
ones being bullied and discredited (in the eyes of the
“ gallery ”) before they have had their say, and for no
other reason than that their say does not happen to
agree with some particular person’s precious “ practice.”

Such a “ policy of frightfulness ” frightens other timid
men out of expressing their views at all, and the final
result is to erect a solid barrier against progress. Yet I
know of no field of operations in this country where
progress is more badly needed, nor any wherein we lag
further behind foreign and colonial practice, than in
the field of mining operations.

7, Mafeking-road,	H. W. Halbaum.

Roa th Park, Cardiff,

March 28, 1915.

LAW INTELLIGENCE.

HOUSE OF LORDS.—March 29.

Before Lord Loreburn, Lord Atkinson, and Lord Parker
of Waddington.

Workmen’s Compensation .- Medical Examination.

Smith v. D. Davis and Sons Limited.—This was an appeal
by the workman in an action between Charles Smith, 36,
Madeline, Pontygwaiith, Glamorgan, and Messrs. Davis and
Sons, of No. 7 Pit, Tylorstown. The facts are stated -in the
judgment.

Lord Loreburn said Charles Smith, a workman, who was
injured by accident so as to 'be entitled 'to compensation
under the Workmen’s Compensation Act, complained of
an order suspending his right to proceed under that Act
until he submitted himself to examination by a medical
practitioner on behalf of his employer. The injury occurred
on January 27, 1911. Without any proceedings before an
arbitrator, the employer paid him a weekly sum as com-
pensation under the Act. In June 1911 the workman
resumed work, and continued till August 1912, receiving no
payment from his employers for compensation during that
time. In August 1912, Smith stopped w'ork owing to an
illness not due to the accident, namely, Bright’s disease.
On June 18, 1913, he had recovered from the Bright’s
disease, but as he claimed Ito be partially incapacitated by
the old accidental injury, he served his employers with notice
that unless he could obtain from them some light employ-
ment, he must have full compensation under the Act. There-
upon the employers required him to submit to medical
examination, and he was accordingly examined on June 26,
1913, by their medical man. On September 10 he filed a
claim in the county court, asking for compensation from
August 12, 1912. The employers denied liability, alleging
that he had recovered. On September 22 the employers
required him again to submit to a medical examination, and
he refused. Upon this the employers asked for, and on
November 6, 1913, obtained from his Honour Judge Bryn
Roberts, an order suspending proceedings under the Work-
men’s Compensation Act until he complied with that require-
ment. The question was whether the learned judge had
power to make that order. In substance, the point argued
was whether or not the workman was bound to submit
himself to this examination, it being freely admitted that
there was nothing unreasonable in the requirement. The
scheme and effect of the Act and Regulations were that after
the workman had given notice of an accident, there was a
period preliminary to any decision. The employer might
desire to learn from his own medical adviser what was
the physical condition of the workman, in order that he
might determine what to do. Either he would admit
liability, and agree to make weekly payments, or he would
dispute liability in whole or in part, and prepare himself
for the trial. His right to require a medical examination
during this, which might be termed the first period, was
defined by paragraphs 4 and 15 of the first schedule to the
Act. It might be that these paragraphs covered more than
this, but he would not pursue that question. Clearly they
applied to this first period. Then came a second period,
during which a similar medical examination might be
required. If either by agreement or by the award a weekly
payment had to be made by the employer, the amount might
have to be reviewed and ended, or diminished, or increased.
An employer’s right to require such medical examination
during this period was defined in paragraphs 14 and 15,
and in Regulations 1 and 2 of June 28, 1907. “ Any work-
man receiving weekly payments under this Act ” was from
time to time to submit himself for medical examination
(paragraph 14),. but not otherwise, nor at more frequent
intervals than was prescribed by Regulations (paragraph 15).
And the Regulations prescribed certain intervals applicable
to the case of “ a workman in receipt of weekly payments.”

(2nd Regulation of June 28, 1907.) Now, he did not think
they were at liberty to read any qualifying words into these
provisions. He could not see why they were not applicable
to the case of a man who was receiving weekly payments by
oral -agreement, just as much as if a memorandum had been
recorded, or as if the sums were payable under an award.
The purpose seemed to be exactly what the words said. If
the workman was receiving weekly payments under the Act,
it did not signify whether there was a memorandum or an
award or an unrecorded agreement, provided that the man
was, in fact, being paid in respect of the rights conferred
upon him by the Act. It would be different if the money
were being paid as an act of mere charity or benevolence,
for in that case no part of the Act had any application.
His lordship was of opinion that paragraph 14 had nothing
to do with the present appeal, because though payments
had been made under the Act, the man was not receiving
weekly payments under it at the time the medical exami-
nation was required, and had not been receiving them for
many months. But there was also another contingency
which might arise, and had arisen in the present case. It
might be that weekly payments had been made and were
then discontinued because of the workman’s recovery or for
other reasons. The specific contingency was not expressly
and in particular terms provided for. In his opinion,
paragraph 4 related primarily to the first period, before the
employer’s liability had been admitted or adjudicated by the
arbitrator. But he thought it also covered more than that.
The paragraph took effect “ where a workman had given
notice of an accident.” If there had been an agreement or
an award, and weekly payments under the Act were being
made, then paragraph 4 would be superseded by the more
particular provisions of paragraph 14. In this case it
would apply, for here the workman had given notice of an
accident. The workman must submit to examination if so
required by the employer, but neither paragraph 4 nor
paragraph 15 said how often, nor was there any regulation
saying how often. It was out of the question to say that
only one such examination could be required. It followed
that under paragraph 4 the workman must submit to exami-
nation when it was reasonably demanded by the employer.
In the present case it was not suggested that the require-
ment was unreasonable, or that the learned county court
judge, who was the person to decide, was asked to treat it
as unreasonable. He had full power, and was perfectly
right to make the order complained of, and the appeal must
be dismissed with costs.

The other lords concurred, and the appeal was dismissed
with costs.

SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.—March 26.

Before the Lord Chief Justice, Lord Justice Swinfen
Eady, and Mr. Justice Bray.

Checkweigher as Workmen’s Inspector.

Date v. Gas Coal Collieries Limited.—This case, which
raised the question whether a checkweigher can be appointed
an inspector of a mine under the Coal Mines Act, 1911, was
heard on March 12, when, at the end of a somewhat long
argument, the court reserved judgment. In July last the
plaintiff claimed against the defendants a declaration that,
having been duly appointed by the workmen employed in
the Meiros Mine, South Wales, which belonged to the defen-
dants, to inspect the mine on behalf of the workmen under
the provisions of section 16 of the Coal Mines Act, 1911, he
was entitled to exercise all the powers conferred by that
section upon persons so appointed. The defendants resisted
this claim on these grounds. It appeared that on October 29,
1913, the plaintiff was a checkweigher at the Meiros Colliery,
appointed in accordance with the provisions of section 13 of
the Coal Mines Regulation Act, 1887, by the workmen
employed thereat. On that date he was appointed at a
general meeting of 'the workmen -to inspect the mine under
the provisions of section 16 of the Coal Mines Act, 1911. At
the same time a deputy checkweigher was appointed. The
plaintiff fulfilled the requirements of the section as to the
persons to be appointed thereunder, that is to say, he was not
a mining engineer, he had been a “ practical working
miner,” and had had “ not less than five years’ experience
of underground work.” The plaintiff duly informed the
defendants of his appointment, -and on November 25, 1913,
applied to the manager of the colliery to be allowed to make
an inspection of the mine. The defendants refused to allow
him to do so, on the ground that, being a checkweigher, he
was not eligible for appointment as inspector. The action
came before Mr. Justice Bailhache in the King’s Bench
Division, sitting without a jury. His lordship granted the
plaintiff the declaration claimed, and the colliery owners now
appealed from that decision.

For the appellants, it was maintained that the duties of
an inspector, if performed by a checkweigher, would inevit-
ably lead to a breach of this rule. If he found anything
about which to complain, he would have to report it, and
in that way the management of the mine would subse-
quently be interfered with. In the Coal Mines Regulation
Act, 1908, it had been thought necessary to state specifically
that a checkweigher might be appointed a timekeeper. The
Act of 1911 was in general terms, and contained no parti-
cular reference ito checkweighers, and, therefore, the special
terms of the Act of 1887 should be read into it, with the
result that a checkweigher could not be appointed an
inspector.

For the respondent, it was argued -that though in 1887
there might have been very strict regulations as to what
other offices a check weigher might hold, that was no longer
so. The law had been altered by the Coal Mines Act,
1905, which made it possible for a deputy checkweigher to
be appointed. That would render it no longer necessary for
a checkweigher to be always at his post himself. Moreover,
there was nothing in the Act of 1911 to prevent a check-
weigher from being appointed an inspector. It was impos-
sible to say that if an inspector made a complaint about
something in a mine, that that was an “ interference ’\with
the management of the mine.

The Lord Chief Justice, in a written judgment, said that
it had been suggested that section 13 of the Coal Mines
Regulation Act, 1887, prohibited a checkweigher perform-
ing any other duties than those of a checkweigher. If that
was true, the general words of section 16 of the Coal Mines
Act, 1911, would have to be read . with that prohibition.
But if it was not true, there was nothing to prevent the
appointment of a checkweigher as inspector. The effect of
section 13, subsection 3, of the Act of 1887 was to limit the
powers of the checkweigher at the mine, and of subsection 4,
to provide for their removal under certain circumstances.
There were no words in subsection 3 expressly prohibiting a
checkweigher from acting as inspector of a mine, nor could
such a prohibition be implied from the language of the

Statute. The appellants had further contended that by
section 2 of the Coal Mines Regulation Act, 1908, workmen
in a mine might appoint one or more persons, “whether
holding the office of checkweigher or not,” as timekeeper at
the pit head, and that the insertion of those words showed
that when the Legislature intended to permit a check-
weigher to act as timekeeper, it was necessary to introduce
express words to that effect. Those words, however, could
not affect the construction of section 13 of the Act of 1887,
and that argument did not impress his lordship. It was
further urged by the defendants that if a checkweigher was
appointed to act as inspector,. there would be no one who
could perform his duties whilst he was away. But under
the Coal Mines (Weighing of Minerals) Act, 1905, a deputy
could be appointed to act in the absence of the checkweigher
for “ reasonable cause,” and absence to perform the duties
of an inspector would be “reasonable cause.” Moreover,
section 16 of the Act of 1911 expressly excluded mining engi-
neers from appointment as inspectors, and had it been
intended to exclude checkweighers also, similar language
could have been used in reference to them. In his lordship’s
opinion, there were no words in the Statutes which meant
that a checkweigher could not be appointed as an inspector
whilst retaining his appointment as check weigher.

Lord Justice Swinfen Eady and Mr. Justice Bray gave
judgment to the same effect.

March 30.

Fillers and the Minimum Wage.

Before Lords Justices Buckley, Pickford, and Bankes.

Churm v. The Dalton Main Collieries Limited.—This was
an appeal of the defendant company, proprietors of various
South Yorkshire coal mines, from a judgment of Mr. Justice
Bailhache, and was a test case under the Coal Mines
(Minimum Wage) Act, 1912, similar to two other cases that
have been before that Court—Richards v. Wrexham Main
Collieries Limited and Higginson v. Blackwell Colliery
Company Limited. The plaintiff, in the present case, Isaac
Churm, of Rotherham, was a filler employed at the defen-
dants’ Silverwood Colliery, and the question was whether
the company or the collier with whom be worked contracted
to pay his wages. Mr. Justice Bailhache held on the facts
of the case that the company contracted to pay the man his
wages. In the Wrexham case the filler was paid a daily
rate of wages by the collier, whereas in the present case it
was agreed between them to share the total money received
from the colliery company at a tonnage rate, with certain
proportions. Mr. Justice Bailhache expressed the view that
the difference in the method of remuneration a.s between a
day rate and sharing was crucial, and said that, although
if it had been a day rate he should have held that the
employer was the collier for the purposes of the contract,
inasmuch as. the men shared the earnings, the company, and
not the collier was the employer. Counsel urged that it
followed from that ruling that in a colliery where it was the
practice to pay a day rate, all the men had to do if they
wanted to shift the burden of the Minimum Wage Act on to
the company was to arrange between themselves 'to share.
During the particular week -in question the filler worked for
five days and the collier for only four. When the total
earnings were averaged out, the filler’s share was not suffi-
cient to bring it up to the local minimum rate, and he
brought the action against the company to recover the
balance, at the same time asking for a declaration that the
company was his employer within the meaning of the
Statute. Counsel submitted that, as the company had no
voice in the method or quantum of the filler’s remuneration,
it was the collier who was his employer.

For the workman, it was contended that there was a con-
tract to pay as well as to employ the filler by the company.
The company paid a lump sum to the cutter, which was to
be divided and paid put to the fillers in his sett according
to the rules in force lin that particular district.

Lord Justice Bankes pointed to the case of a collier who
employed a son as his filler, and because the son lived at
home he agreed to work at a lower rate of wages for his
father. The collier would be entitled to say to his son,
“As between you and me you are to get only so much,” but
as between the collier and the company he was entitled to
say,. “ You (the company) must allow my filler the full
minimum wage.”

Counsel thought that would be so. The company found
that the filler was well able to look after himself, and no
difficulty in practice was experienced on that ground. But
the cutter could agree to pay his filler too much. As a
matter of fact, a company paid a “ number,” and not a
particular cutter by name, 13s. 4d. per ton for every ton
sent up from a particular place. The company were fully
aware that though this contract was to pay one man, it was
a payment for a twofold process of work—getting and filling
—•which involved the labour of more than one man. In a
sense, therefore, the contract to pay the filler was one by
the company. That was the view the learned trial judge had
taken, and he submitted that the balance claimed by the
filler to bring his wages for the five days he worked up to the
minimum wage was right.

Lord Justice Buckley, in giving judgment, said it was to
be noted that the colliers’ pay note was made out on a
tonnage rate, and the evidence given in the case showed
that as between the collier and the filler there was an
agreement to which the colliery company were no party.
The aggregate earnings were to be divided between the
collier and the filler in a manner which they thought fit,
and in these circumstances he thought it impossible to hold
that the colliery company should be liable to pay to the filler
a wage as to the amount of which they had no voice. There
was no obligation whatever on the part of the colliery com-
pany in the matter of wages to the filler, and he should hold
that the colliery company were not the plaintiff’s employers
within the meaning of the Act of Parliament.

Lords Justices Pickford and Bankes concurred, and the
appeal was therefore allowed, with costs.

Mr. D. A. Thomas, interviewed in New York, said he
considered that the coal trade in the United States was in a
decidedly bad condition, and he did not believe that United
States coal would participate to any extent in the present
big foreign commerce, the reason being that transportation
and freight rates precluded competition with the British coal-
fields. He pointed out that the present Cardiff vessel rate
to South American ports was about 3 dots. less than the
United States rate. The advantage was to the British,
because the vessels could get a return cargo. This indi-
cated that the United States would not get much of the
South American coal trade. Asked if he intended to pur-
chase coal or land in the United States, he fought shy, but
replied, “ If I see a chance of bargains I may take it.”