Duarte v. Franstel of CT Corp.
The claimant was represented by Brendan T. Canty, Esq., The Law Office of B.T. Canty, Esq., P.C., 193 East Avenue, Norwalk, CT 06855.
Respondent Franstel of CT Corp., was represented by Randi Haraj-Sai, Esq., Williams Moran LLC, P.O. Box 550, Fairfield, CT 06824.
Respondent Second Injury Fund did not appear at oral argument. At proceedings below, the Second Injury Fund was represented by Assistant Attorney General Catherine Rawson, Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06106.
The trial commissioner, having determined that all of the parties were subject to the provisions of the Connecticut Workers’ Compensation Act, Chapter 568 of the Connecticut General Statutes, made the following factual findings which are pertinent to our review. At the formal hearing of October 26, 2010, the claimant offered the following testimony. On January 12, 2010, Jesus Alvarado, an employee of the respondent Franstel of CT Corp., asked the claimant to work with him on a job removing branches.3 Frank Serpe, the owner of Franstel of CT Corp., had made the request by way of a phone call to Alvarado that morning.4 The claimant and Alvarado first went to Serpe’s home because they did not have any gas in the truck, then to Serpe’s garage to pick up the equipment needed for the job, and then to the job site. Serpe accompanied the claimant and Alvarado to get the gas but the claimant did not speak with Serpe. The claimant did not know the name of the gas station but said it was located on Hope Street. When he and Alvarado reached the job site, the claimant set up a ladder and began cutting branches from a tree. At some point during the removal of the first two branches, the owner of the home came out and told the claimant he was doing a good job. However, while the claimant was attempting to cut down a third branch, another branch fell and hit the claimant’s ladder, causing him to fall forty feet.
Unable to walk, the claimant dragged himself to the truck, where Alvarado called Serpe to tell him the claimant was injured. Although Serpe told Alvarado to go to the hospital, Alvarado took the claimant to Serpe’s home to show him that he had really been injured. However, Serpe was not at home so the claimant and Alvarado went to the hospital. The claimant only worked one day and did not know his rate of pay. The claimant testified at his deposition on August 4, 2010 that Serpe had told Alvarado to tell the doctor the claimant had slipped on the ice and Serpe told the claimant “he was going to help [him] with the medicines.” Respondent’s Exhibit 1, p. 24.
At a deposition held on October 12, 2010, Jesus Alvarado testified as follows. On January 11, 2010, Serpe called Alvarado and asked him to bring another person to work with him on a job scheduled for the following day because the individual with whom Alvarado usually worked was going with Serpe’s wife to clean houses. On January 12, 2010, before Alvarado and the claimant went to the work site, they stopped at Serpe’s home so Alvarado could “show him” the claimant. Joint Exhibit 1, p. 18. Serpe, Alvarado and the claimant then went to get gas for the truck. Alvarado did not know the name of the gas station. After returning from getting the gas, Alvarado went into Serpe’s garage and picked up a ladder and a chain saw before leaving for the work site. Alvarado did not know the address of the work site, and identified it only as being “around Westover.” Id., at 14.
Alvarado and the claimant arrived at the job site between 9:00 a.m. and 10:00 a.m. and Alvarado did not remember the homeowner being there. Alvarado and the claimant were planning to cut down three branches but at 1:00 p.m., after cutting the second branch, the claimant fell approximately thirty feet. Alvarado tried to pick up the claimant but he could not stand up; when he and the claimant got back into the truck, Alvarado called Serpe to tell him the claimant had been injured and Serpe told him to take the claimant to the hospital. Serpe also said to tell the hospital personnel that the claimant had fallen on the sidewalk, not that he had fallen out of a tree. Instead, Alvarado took the claimant to Serpe’s home “to show him how beat up he was” id., at 22, because “maybe he wouldn’t believe that he had fell.” Id., at 23. However, Serpe was not at home, and Alvarado and the claimant proceeded to the hospital.
Frank Serpe also testified in this matter, offering the following. Franstel of CT Corp., is a general landscaping and snow removal company. Serpe, the owner of the business, owns two ladders, one a twelve-foot step ladder and the other an eighteen-foot extension ladder which, when fully extended, cannot reach forty feet. He identified the instant work site as 19 West Hill Road in Stamford, Connecticut and indicated that he subcontracts all of his tree work for this property to Catolino’s Tree Service because his company’s tree-cutting services are restricted to trimming low-lying branches of twelve feet or less and cleaning up any branches that may have fallen during storms. He identified Alvarado as an employee who was allowed to park the truck at his residence and use it for side jobs. Alvarado was also responsible for picking workers up in the morning and dropping them off after work. Serpe did not speak with Alvarado on January 11, 2010, and Alvarado did not have the authority to subcontract employees on Serpe’s behalf. Alvarado was scheduled to work from 9:00 a.m. to 12:00 a.m. on January 12, 2010, cleaning out Serpe’s garage; however, Alvarado did not stop by Serpe’s house on that date and they did not go together to get gas. The closest place to get gas is a “Mini Mart” on Cove Road and Serpe usually gets his gas there.5 Serpe denied receiving a phone call about the claimant falling from a tree and telling Alvarado to take the claimant to the hospital and lie about the nature of the claimant’s injury.
Serpe’s cell phone records for the month of January, which were submitted into evidence, indicated that on January 12, 2010, Serpe received incoming calls from the claimant’s cell phone at 10:02 a.m., 11:54 a.m., 12:22 p.m., 2:19 p.m., 3:29 p.m. and 10:04 p.m. However, Serpe testified that one of the phone calls from Alvarado on the morning of January 12, 2010, concerned putting something in the garage and the call at 12:22 p.m. was to alert Serpe that Alvarado had finished the job. Serpe also testified that the claimant was drunk when he called him at 10:04 p.m. and didn’t realize he had called Serpe. Serpe estimated that it would take forty-five minutes to get from the work site at 19 West Hill Road in Stamford to Serpe’s home and then to the Stamford Hospital.
Michael Cantanzarita of Cat Investigative Services, LLC, reported that the travel time from the work site to Serpe’s residence to Stamford Hospital takes twenty-seven minutes. The Stamford Hospital medical records indicate that the claimant arrived at the hospital at 12:53 p.m. and the claimant was injured by slipping on ice; the emergency room physician, Ravi Thakur, M.D., reported that the claimant fractured his back. However, on March 17, 2010, William C. DeAngelo, R.R.T., D.C., a chiropractor, reported that the claimant’s injury was “directly related to a severe compressive force to the lumbar spine which correlates from falling from a significant height. It is not probable that this [type] of injury can happen from a slip injury.” Claimant’s Exhibit C.
On September 20, 2010, Sandra Aviles, a Special Investigator for the State of Connecticut, Office of the Treasurer, filed a report indicating that Franstel of CT Corp., did not have workers’ compensation insurance on January 12, 2010.
Having reviewed the foregoing, the trial commissioner arrived at the following conclusions. Noting that she found the claimant’s testimony more persuasive and credible than that of Serpe, and that she also found Alvarado’s testimony persuasive and credible, she determined that Serpe is the owner of Franstel of CT Corp., and that the company provided landscaping and tree service for 19 West Hill Road in Stamford. She found that Alvarado presented the claimant to Serpe on January 12, 2010 before going to the job site. The trial commissioner concluded that the phone call that was placed from the claimant’s cell phone to Serpe at 12:22 p.m. was to alert Serpe that an accident had occurred, thereby establishing that the actual time of injury was closer to 12:00 p.m. than 1:00 p.m., and that Alvarado and the claimant were therefore mistaken about the time the accident occurred. She also deemed credible the investigative report provided by Michael Cantanzarita which estimated that it takes twenty-seven minutes to get from the work site to Serpe’s home and then to Stamford Hospital, and found that the claimant checked into Stamford Hospital at 12:53 p.m., thirty-one minutes after the phone call to Serpe alerting him that the claimant had been injured.
Noting that all of the Stamford Hospital records reflect that the claimant was injured by falling on ice, the trial commissioner determined that the medical records lack probative value because she found the testimony of the claimant and Alvarado credible regarding Serpe’s instructions to them “not to be truthful” about how the claimant sustained his injuries. Conclusion, ¶ K. She also found credible the Stamford Hospital emergency room report of Dr. Thakur indicating that the claimant had fractured his back and the March 17, 2010 report of Dr. DeAngelo indicating that the claimant’s back injury correlates with a fall from a significant height rather than a slip.
The trial commissioner concluded that Alvarado was an employee of the respondent Franstel of CT Corp., and “was authorized to act as an agent for the Respondent-Employer to hire the Claimant on January 12, 2010 to remove branches from a tree at 19 West Hill Road, Stamford,” Conclusion, ¶ E. The trial commissioner also determined that because Serpe, in his capacity as the owner of Franstel of CT Corp., provided the tools to the claimant and “had the right to control the work” done by the claimant, an employer-employee relationship existed between the claimant and Franstel of CT Corp. on January 12, 2010. Conclusion, ¶ N. The injuries sustained by the claimant on said date therefore arose out of and in the course of the claimant’s employment with Franstel of CT Corp., which did not have a workers’ compensation policy in place on the date of injury. Accordingly, the trial commissioner ordered Franstel of CT Corp., to pay all workers’ compensation benefits associated with the claimant’s injury of January 12, 2010, including but not limited to medical and pharmaceutical bills and travel expenses.
We begin our analysis with the respondent’s contention that the trial commissioner erroneously denied its Motion to Correct. Before turning to the respondent’s specific allegations, it is helpful to review the standard of review governing such motions. As this board has previously observed, we “may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts.” Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998), citing, Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (February 6, 1995). “A material fact is one that will affect the outcome of the case.” Tovish v. Gerber Electronics, 32 Conn. App. 595 (1993), appeal dismissed, 229 Conn. 587 (1994). Thus, “[a] Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings.” Pallotto, supra, citing, Knoblaugh, supra. See also, Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (November 7, 1994).
On appeal, the role of this board is to assess whether the trial commissioner was compelled to grant any of the respondent’s proposed corrections in light of this rather stringent standard. As the respondent correctly points out, the claimant’s claim is indeed “predicated on Mr. Alvarado having received direction from Mr. Serpe to ‘hire’ the Claimant for one day.” Appellant’s Brief, p. 5. Moreover, there is no question that Alvarado and the claimant gave conflicting testimony relative to when Alvarado retained the services of the claimant.7 We also note that the call detail records submitted into evidence do not list any phone calls between the respondent and the claimant’s cell phone on January 11, 2010 and the first phone call on January 12, 2010 between Serpe and Alvarado did not occur until 10:02 a.m. Respondent’s Exhibit 3, Claimant’s Exhibit D.
In light of the foregoing, the respondent queries how the trial commissioner could have found that the claimant and Alvarado commenced work on January 12, 2010 at 9:30 a.m., given that the record demonstrates that no cell phone call between the parties occurred either on January 11, 2010 or before 9:30 a.m. on January 12, 2010. The respondent relies on these phone records as well as the inconsistent testimony of the claimant and Alvarado for its contention that “Serpe could not have directed or permitted Mr. Alvarado to engage the Claimant’s services for the day as he never had the opportunity to speak to either of them prior to their commencement of work or arrival at the job site.” Appellant’s Brief, p. 6. The respondent avers that the other events alleged to have occurred on January 12, 2010 also could not have happened, and if the trial commissioner had included all of the above-referenced facts in her Finding and Award, she would not have been able to conclude that the claimant was employed by Serpe.
We are not so persuaded. There is no question that the claimant, Alvarado and Serpe provided inconsistent testimony relative to the communications which resulted in the claimant accompanying Alvarado to the work site on January 12, 2010.8 In fact, given the inconclusive nature of the evidence presented, it may be confidently stated that it is impossible to identify with any degree of precision the actual time line of events for the date in question. Nevertheless, the trier obviously concluded that despite the inconsistencies between the phone records and the parties’ testimony, the uncertainty created therefrom did not form an insurmountable barrier to the reasonable inference that at the time the injury occurred, an employer-employee relationship existed between the respondent and the claimant. It is axiomatic that determinations regarding the weight of the evidence and the credibility of the witnesses lie solely within the province of the trier. Mele v. Hartford, 118 Conn. App. 104, 107 (2009). Given, then, that the additional factual findings propounded by the respondent regarding the precise circumstances under which Alvarado retained the services of the claimant did not change the trier’s ultimate conclusion that an employer-employee relationship existed between the respondent and the claimant, the trier was under no compunction to grant the sought-for corrections. As this board has previously observed, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).
Similarly, the respondent asserts that the trial commissioner, in rejecting its proposed corrections, failed to give appropriate credence to Serpe’s testimony regarding his practice of using a sub-contractor for large treetrimming projects. The trial commissioner also erroneously failed to assign appropriate evidentiary weight to the respondent’s submission of receipts, invoices and a canceled check attesting to the respondent’s use of a sub-contractor for treetrimming at the subject residence on several dates, none of which included the date of injury. Again, it is the prerogative of the trier to assess the probative value of the testimony and exhibits, and if the corrections sought by the respondent did not persuade the trier to alter her findings in its favor, then this board cannot reverse these findings on appeal.
In Hanson v. Transportation General, Inc., 245 Conn. 613 (1998), our Supreme Court, articulating the distinction between an employee and an independent contractor, stated that the “ultimate test” for determining whether a worker is an employee as defined by the Workers’ Compensation Act “is the right of general control of the means and methods used by the person whose status is involved.” Id., at 617, quoting Ross v. Post Publishing Co., 129 Conn. 564, 567 (1943). This board has previously observed that the Hanson court established a “totality of the evidence” test which obligates a trial commissioner to “weigh all the factors relevant to employment status prior to reaching a decision. This decision will be driven by the specific facts of each case presented.” (Emphasis in the original.) Maskowsky v. Fed Ex Ground, 5200 CRB-3-07-2 (July 28, 2008); see also, Hanson, supra, at 624. In addition, “[i]t is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.” (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697 (1995). “As a general principle, a hiring entity retains control only over the results of an independent contractor’s work, while an employer’s will governs the employee ‘regarding both the fruits of [their] labor and the mode and manner in which [their] services are performed.’” Lema v. Eoanou, 5056 CRB-4-06-2 (January 29, 2007), quoting Morrissey v. Lannon-Norton Associates, 3085 CRB-4-95-6 (December 23, 1996).
In the instant matter, the respondent asserts that “[t]here exists only one factor in the present case on which the Commissioner could have relied in finding that the Claimant was Mr. Serpe’s employee: the Claimant’s contention that Mr. Serpe provided him with tools to perform the tree cutting.” Appellant’s Brief, p. 9. See also October 26, 2010 Transcript, p. 7. However, our review of the record indicates that at his deposition, the claimant also testified, in direct contradiction to Serpe’s testimony, that he had met Serpe prior to the date of the injury because “Jesus Alvarado used to work for him, and he always was coming to the house.” Respondent’s Exhibit 1, p. 8. The claimant indicated that Serpe frequently came over because he had given Alvarado the use of the truck, and denied that Serpe’s truck was being garaged there because there was no room to store it in Stamford. Id., at 8-9. The claimant stated that he spoke briefly with Serpe on the morning of the accident before they all went to get gas but that “mostly [Serpe] spoke about the job with Jesus because I answered the phone and I passed the phone to Jesus.” Id., at 11. Although the claimant did testify that Serpe did not supervise Alvarado and him at the job site, he also stated that “I was told by Jesus what we were supposed to be doing.” Id., at 16.
We got a call in the morning that the boss was calling Jesus Alvarado. That he go do some work of getting rid of some branches. Because he had no one else to go work with, Mr. Alvarado, he asked me if I could go work with him because I have done that kind of work before. He talked to the boss and he told him it was all right.
October 26, 2010 Transcript, p. 7.
The claimant also repeated that he had previously met Serpe at the residence he shared with Alvardo and that Serpe had given Alvarado a truck to use on the job. Id., at 8-9. The claimant again testified that he worked with Alvarado on the subject property and Alvarado told him what they were supposed to be doing.9 Id., at 10. When queried under cross-examination regarding the discrepancy between the time the claimant remembered receiving the phone call from Serpe and the fact that he thought they arrived at the job site before that time, the claimant said, “I don’t know. If that’s the call, that’s the call. But we got a call early.” Id., at 13. When asked why he testified that they arrived at the job site at 9:30 a.m., the claimant answered, “[t]hat was more or less what I put because I didn’t know what was going on.” Id. When pressed further, the claimant again replied, “Is it correct? I don’t know. How much more? That’s what I said because after the call I went there. That’s all.” Id., at 14. Later, while still under cross-examination and being repeatedly questioned regarding the time line for the date of injury, the claimant said, “I don’t remember. I’m very bad with this. I don’t know.” Id., at 19. He stated several times that he didn’t know, he was “very bad,” and, ultimately, “I’m confused.” Id., at 19-20.
The evidentiary record demonstrates that Jesus Alvarado’s memory was similarly vague regarding the exact date and sequence of the events in question. Alvardo testified that the gentleman with whom he usually worked went with Serpe’s wife on a housecleaning job and Serpe called him the day before “to get another person to go and cut the trees.”10 Joint Exhibit 1, p. 15. While Alvardo’s testimony was inconclusive vis-a-vis the exact time when he actually spoke with Serpe on the date of injury, he testified that he thought he and the claimant began working between 9:00 a.m. and 10:00 a.m. and that beforehand, he “stopped by [Serpe’s] house to tell him I don’t have any gas and show him the helper I had.” Id., at 17-18. Alvarado also testified that he worked with the claimant all morning. Id., at 20. For his part, at trial, Serpe testified that Alvarado did keep his truck at Alvarado’s house for “convenience purposes” because Alvarado “would pick up the workers in the morning and drop them off after work.”11 February 17, 2011 Transcript, p. 6. Although the phone records do not show a cell phone call between Serpe and Alvarado on January 11, 2010, Serpe admitted that Alvarado worked on January 12, 2010 and his time sheet for that day indicated that he worked from 9:00 a.m. to 12:00 p.m.12 Id., at 12. Serpe conceded that he received a number of phone calls from the claimant’s cell phone on January 12, 2010 and explained that the first call at 10:02 a.m. was Alvarado calling to ask where to put something in the garage. Id., at 14. Serpe offered no explanation for the other phone calls and denied that Alvarado ever called regarding the claimant’s injury. Id.
Having reviewed the foregoing, it is readily apparent that the trial commissioner was obliged to sift through a great deal of contradictory testimony in order to reach her conclusions in this matter. Moreover, although the respondent points out that the interactions between Serpe and the claimant were minimal at best, our review of the trier’s findings reveals that she specifically found that Alvarado was authorized to act as Serpe’s agent when he hired the claimant. Conclusion, ¶ E. Under this legal doctrine, the trier therefore inferred that Alvarado had “stepped into the shoes” of Serpe and assumed his role as the employer.
Our Supreme Court has defined apparent authority as “that semblance of authority which a principal, through his own act or inadvertences, causes or allows third persons to believe his agent possesses.” Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 665 (1967) (citation omitted).
Our cases make it clear that apparent authority is to be determined, not by the agent’s own acts, but by the acts of his principal. And the acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.
Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69 (1969) (citations omitted).
However, the instant respondent challenges the trier’s application of agency doctrine, asserting that “[e]ven if one is to accept, as the Commissioner did, that Mr. Alvarado was Mr. Serpe’s agent, that factor alone does not alter the fact that the Claimant was not an employee. Neither the Claimant nor Mr. Alvarado claim that Mr. Alvarado oversaw the Claimant’s work in any way.” Appellant’s Brief, p. 12. We disagree, finding that even the most cursory reading of the claimant’s testimony previously set forth herein reveals that the claimant not only believed Alvarado was acting on Serpe’s behalf but he also believed Alvarado was responsible for supervising his actions as the job site. Moreover, although the claimant testified that he did not discuss payment with either Serpe or Alvarado, it cannot be reasonably inferred from the instant record that the claimant agreed to climb a ladder in January and trim tree branches without any expectation that he would be paid for his efforts. Rather, the more logical inference is that the conversation about payment which would have occurred upon completion of the job was pre-empted by the accident and the severity of the claimant’s injuries.
Thus, in light of the trier’s conclusion that Alvarado was acting as Serpe’s agent, we find unavailing the respondent’s argument that the record demonstrated insufficient interaction between Serpe and the claimant such that the existence of an employer-employee relationship could be reasonably inferred. In addition, while the respondent set forth a great deal of case law to buttress this argument, we find the examples cited unpersuasive when viewed through the prism of the agency relationship between Serpe and Alvarado. Moreover, the trier ultimately chose to place more credence in the testimony of the claimant and Alvarado than that of Serpe. This determination was her prerogative as a fact-finder and one which we, as an appellate body, are prevented from second-guessing on appeal.
The respondent also contends that even if one assumes that “Serpe did have the right to control the Claimant’s actions on the day he was injured, the Claimant was, at best, a casual employee and thus exempt from workers’ compensation coverage.” Appellant’s Brief, pp. 13-14. “As used in our Act, the casual employment means the occasional or incidental employment, the employment which comes without regularity.” Thompson v. Twiss, 90 Conn. 444, 451 (1916). Casual employees are exempt from workers’ compensation coverage pursuant to the provisions of § 31-275(9)(B)(ii) C.G.S., which states that an employee “shall not be construed to include: . . . [o]ne whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business.” In order to prove that an employee is exempt from coverage, a respondent therefore “must establish that both prongs of this test are met, i.e., the claimant’s employment was not frequent or systematic and that it was not for the purposes of the respondent’s trade or business.” Mangual v. Andrew LeBlanc d/b/a Express Tiles, 4957 CRB-1-05-6 (April 26, 2006).
We concede that the instant record illustrates that the claimant’s employment with Franstel of CT Corp., was neither frequent nor systematic. As the respondent points out, the claimant allegedly worked for less than one day and the claimant himself testified that he had never worked for Serpe before and only expected to work for the one day. October 26, 2010 Transcript, p. 10. Respondent’s Exhibit 1, p. 17. The case law cited by the respondent “illustrate[s] the fact that a claimant’s expectation that his work for the respondent will continue for some period of time is a necessity in determining that an employer-employee relationship existed.” (Emphasis in the original.) Appellant’s Brief, p. 15. Clearly, the claimant had no such expectation.
However, in order for a respondent employer to claim the exception, the second prong of the legal standard must also be satisfied. In rendering this assessment in prior cases, we have generally examined whether the activities carried out by the claimant “went to the core functions of the respondent’s ... business.” Mangual, supra. In the instant matter, we recognize that Serpe testified that his business did not engage in the practice of tree-cutting and he would sub-contract out requests that he received for treecutting to another company. Respondent’s [Second Injury Fund] Exhibit 2, p. 45; February 17, 2011 Transcript, p. 4. In addition, as mentioned previously herein, the respondent submitted receipts, invoices and a post-dated check attesting to the fact that he had used a tree service at the subject property on dates other than the date of injury. Respondent’s Exhibits 5, 7, 8. However, we also note that at trial, Serpe testified that his company would trim “low-lying” branches up to heights of approximately twelve feet, February 17, 2011 Transcript, p. 4, and that in addition to snow-plowing in the winter, his employees would also “do some brush removal if any tree limbs had fallen during the winter, if there’s no snow on the ground, depending. I try to keep the guys with a couple hours and there, if possible.” Respondent’s [Second Injury Fund] Exhibit 2, p. 30.
In light of the foregoing testimony and referenced exhibits, the respondent contends that the activities engaged in by the claimant were outside the scope of the respondent’s business and certainly did not constitute a “core function.” Nevertheless, the trial commissioner, on the basis of the entire record, was not persuaded that the treecutting engaged in by the claimant was so far removed from the core functions of the respondent’s landscaping service that the second prong of the legal standard for casual employment was satisfied. In Thompson, supra, our Supreme Court, in concluding the claimant’s activities relative to the land owned by the respondent also did not satisfy this second prong of the legal standard for casual employment, remarked, “[t]he development of this land was one of the businesses of Mr. Twiss, not evidently his main business, and yet a very substantial one. The plaintiff was injured in the pursuit of Mr. Twiss’ business, and his employment was not of a casual nature within the meaning of our Act.” Thompson v. Twiss, 90 Conn. 444, 452 (1916). In the instant matter, although the respondent testified that his landscaping business did not engage in tree-cutting, the trial commissioner inferred otherwise. Accordingly, she declined to find that the activities performed by the claimant on the date in question brought him under the rubric of casual employment as defined by our Act. We will not reverse this finding on appeal. “It is ... immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).
Having found no error, the October 24, 2011 Finding and Award of the Commissioner acting for the Seventh District is hereby affirmed.
Commissioner Daniel E. Dilzer concurs in this opinion.


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Australien (Südland) auch Polynesien oder Inselwelt, insgemein der fünfte Welttheil genannt. Altteilkolor. Kupferstichkarte bei J. Walch. Augsburg, 1802. 47,5 x 60 cm.
presso Antonio Zatta, 1802. Dieci tomi in cinque volumi di cm. 19, 2.500 pp. complessive ca. Graziosa legatura coeva in cart. rigido marm. con titoli in oro su tass. al dorso. Lievi e sporadiche fioriture. Esemplare fresco e ben conservato. Jean Domat (1625-1696) è considerato, da parte della storiografia, il più grande civilista francese del Settecento; ebbe il merito di elaborare un riassetto del diritto nazionale utilizzando l'exemplum del diritto romano classico, non attraverso il metodo filologico cinquecentesco, bensì attraverso una ricerca di rigorosa sistemazione. Interessante traduzione napoletana, soprattutto alla luce del contesto storico rivoluzionario. Non comune edizione Zatta. Cfr. Iccu. .
Ausführliche theoretisch-praktische Anleitung zum Ziegelbrennen mit Torf und zweckmäßigen Neu-Bau der dazu erforderlichen Oefen.
London: Printed for J. Stockdale. J. Johnson, Etc , 1802. Book measures 7 x 4 1/2 inches. Collation, xii,300pp, engraved frontis, and 3 engraved plates. Bound in modern antiquarian style full leather, raised bands, blind lines, red leather title label, full gilt edges. Binding in very good clean firm condition. Internally, previous owners inscription dated 1809, occasional minor staining, browning to plates. Pages and plates in good condition. A very nice copy. . Full Leather. Very Good Plus. 12mo - over 6¾" - 7¾" tall.
- altkolorierter Kupferstich in Punktiermanier v. J. Barney, dat. 1802, 56 x 41 Klein 50 - Anmerkungen. - Zeigt den Strohdachdecker beim Aufstieg aufs Dach mit seinem Werkzeug und Material.
Philadelphia, 1802. 127,pp. Dbd. Slight chips to lower edge of titlepage. Contemporary ownership inscription at head of titlepage. Some dust soiling, light tanning, scattered foxing. Good plus. A virulent Federalist tract against Jefferson, attributed to Thomas Evans. The appendix includes extracts from the General Assembly of Virginia, the text of letters and speeches by Jefferson, and extracts from diplomatic correspondence involving Jefferson. HOWES E229. SHAW & SHOEMAKER 2198. SABIN 94189.
Philadelphia, 1802. ,324pp. Half title. Contemporary three-quarter morocco and marbled boards, spine gilt, leather label. Some scattered foxing, lightly toned. Almost very good. An important record of the evolution of American law and the development of judicial independence in the early republic. This is one of two printings of the debates over the repeal of the Judiciary Act of 1801. This version is edited from a Federalist perspective, with critical comments on the debates as recorded in the NATIONAL INTELLIGENCER, an organ of the Jeffersonian Republicans. The debate over the repeal of the Judiciary Act of 1801 addressed issues of judicial review and the role, size, and authority of the judiciary branch, issues which led ultimately to the landmark case of Marbury v. Madison. The 1801 act, passed by a Federalist Congress, reduced the number of Supreme Court justices from six to five, created new circuits, and allowed outgoing President John Adams to appoint several new federal judges, the so-called "midnight judges." Jefferson opposed the 1801 act, and though it was overturned by the Judiciary Act of 1802, the federal judiciary remained fundamentally unaltered. The Marbury v. Madison decision of 1803 solidified the notion of judicial review of legislation and elevated the Supreme Court to a level of equality with the executive and legislative branches. A vital document, exemplifying the debates over the judiciary in the Federalist era, and emblematic of the political skirmishes of the day. COHEN 1058. SABIN 19105. SHAW & SHOEMAKER 3273. OXFORD COMPANION TO THE SUPREME COURT, pp.474-75.
D'Anvil dis. & Zuliani Felice e Joseph edit.
L'EUROPE PARTAGEE DANS SES PRINCIPAUX ETATS OUTRE LA SUBDIVISION INTERIEURE DE LA FRANCE EN CENT TROIS DEPARTEMENTS & LES NOUVEAUX ARRANGEMENTS DE LA POLOGNE, DE L'ITALIE, & DE L'ALLEMAGNE.
London: M. Jones, 1802. Octavo, with an engraved title page and 14 hand-coloured plates (including frontispiece), contemporary full polished calf (a bit scuffed and rubbed), morocco label. The first book to contain coloured illustrations of Sydney.This is the first book edition of Barrington's famous work, following its original issue in fourteen weekly parts. The History, with its fourteen full-page plates, is one of the first books to show proper settlement in New South Wales - only Collins's Account of the Colony... published in 1798 contains earlier depictions. Despite questions about its actual authorship, this is a substantial and important account of early Sydney. The preface claims justifiably that 'no prior attempt has been made to produce a complete history of the Country itself, from its discovery, and an account of its inhabitants, their customs and manners...'.George Barrington had been transported to Sydney on the Third Fleet of 1791, already a legend as a rogue. Over the next decade English publishers used his notoriety to produce books on transportation and the new colony for a public eager for information.This copy contains the letterpress half-title page, but does not include the list of plates and directions to the binder. Standard collation is not a feature of this book, as noted by Garvey: 'it is also common to find parts of the apparatus omitted'.
Die Pocken sind ausgerottet! Ein Handbuch für Aerzte und Nichtärzte, die die Geschichte der Kuhpocken in ihrem ganzen Umfange kennen lernen und die Impfung der Schutzblattern, die gröste Entdeckung des achtzehenten Jahrhunderts, zweckmässig anwenden und befördern wollen, I-II. [TWO VOLUMES].
Erfurt, Henning, 1802.. Two volumes. Crown octavo. Pp. xi, 232; viii, 136. original printed wrappers, these of first volume gone; both edge frayed, spine panel worn off, bookblock loosening. That in mind, a very good set internally, preserved entirely in the original state, untrimmed, wide-margined. ~ First edition. Very rare treatise on the eradication of smallpox. August Friedrich Hecker (1763-1811). Of utmost rarity in the original state.
Edinburgh: W. Creech, 1802. Fifth edition with notes, tables and considerable additions. 14 folding plates, 2 folding tables. xlvii, [i], -417; viii, -276pp. 8vo. Half contemporary calf and marbled boards. Frobt hinge repaired, toned and foxed. Signed by John Steele and William Northall, 1826, on title-page of Vol. I. Fifth edition with notes, tables and considerable additions. 14 folding plates, 2 folding tables. xlvii, [i], -417; viii, -276pp. 8vo.
- Migneret, Paris 1802, 13x20cm, 5 volumes reliés. - Edition. Leganti pieno della marina di cartone blu, indietro liscio decorato con reti dorate triple, come pezzi di pelle di pecora rosa antico, alcune tracce di attrito sulla parte posteriore, due tappi superiori robuste, graffi su alcuni piatti, fette giallo, leganti del tempo. Alcuni foxing molto leggero senza gravità, un chiaro bagnatura sulle prime pagine del primo volume, ex-dono a penna sul frontespizio sporgenza del secondo volume. Insieme stabilito in uniforme contemporanea vincolante e ben completa la quinta appendice del volume. - [FRENCH VERSION FOLLOWS] Edition originale. Reliures en plein cartonnage bleu marine, dos lisses ornés de triples filets dorés, pièces de titre de basane vieux rose, quelques traces de frottements sur les dos, deux coiffes supérieures accidentées, épidermures sur certains plats, tranches jaunes, reliures de l'époque. Quelques très légères rousseurs sans gravité, une claire mouillure sur les premiers feuillets du premier volume, ex-dono à la plume sur la page de faux-titre du deuxième volume. Ensemble établi en reliure uniforme de l'époque et bien complet du cinquième volume d'appendice.
Mittheilungen aus den Memoiren des Satan. (Bde. 1-3 in 3 Bdn.).
12, 324 312 360 S., HLdr. der Zeit, goldgeprägt. in späteren Schuber, Kanten berieben, Vorsätzet etwas stockfleckig, etwas gebrauchspurig. Hinterer fliegender Vorsatz des 3. Bdes. mit Eckabriss. Rücken des 3. Bds. am Fuss etwas angebrochen. Der 1. Bd in zweiter Auflage, restliche in EA. . Der 3. Bd. wurde von Wit, genannt von Dörring postum herausgegeben.- Gleich nach dem ersten Märchenalmanach, Hauffs Erstling, erschien das vorliegende Werk. Der junge Autor fand hier Gelegenheit, sein Talent zum Humor u. seine Neigung zur Satire u. Persiflage zur Geltung zu bringen. Bd. 1 enth. u. a. Unterhaltungen des Satans mit dem Ewigen Juden u. Satans Besuch bei Herrn Göthe. Die Fortsetzungen nach dem frühen Tod Hauffs sind v. Wit, gen. Dörring (Bd. 3) u. v. H. v. Canitz (Bd. 4 - fehlend) mit einem zweiten Titel Streifereien des Satans auf der Erde. Aus dem diabolischen übersetzt...-- Wilhelm Hauff (1802-1827 in Stuttgart, Königreich Württemberg), deutscher Schriftsteller der Romantik. Er gehörte zum Kreise der Schwäbischen Dichterschule.
Newark, [NJ]: John Wallis, 1802. The second American edition. vii, -141,  pages. 12mo. Bound in contemporary quarter American red morocco, gilt spine, marbled boards. VG, small hole on p.81. The second American edition. vii, -141,  pages. 12mo. Washington Irving's Copy. Signed by "W. Irving" on verso of leaf preceding the title-page.
The Works of Robert Burns; with an Account of his Life, and a Criticism on his Writings. To which are prefixed, some observations on the character and condition of the Scottish Peasantry. In four volumes. The second edition.
[BIBLE  NEW TESTAMENT  SYRIAC].
Novum Domini nostri Jesu Christi Testamentum Syriace. Antwerp, Christoffel Plantin, 1575. Long 24mo (11 x 6.5 cm). With Plantin's woodcut golden compasses device. Set in Hebrew type (4 sizes of meruba) with incidental roman. Recased in old vellum, new endpapers.
Adams B1802; Darlow & Moule, 8952; Voet 668. Plantin's lovely little miniature edition of the New Testament in the ancient Syriac language, probably published in this pocket-sized format for the convenience of students and other scholars. Plantin's son-in-law Franciscus Raphelengius, who had begun to establish his reputation as an orientalist when he helped prepare the Polyglot, added an appendix to this edition, giving unpublished variant readings from an important Cologne manuscript. The New Testament relates stories that would have first been told (and in some cases probably also written down) in Aramaic, the vernacular language of Palestine in Jesus's time. Syriac, another dialect of Aramaic, served as the vernacular language of much of the Middle East. The Syriac text therefore provides valuable clues to the Aramaic sources of the New Testament.In very good condition. A lovely little Syriac New Testament, well printed by Plantin.
zu Bischofsheim und dahin gehörige Aemter. Erlassen im Jahre 1802. Pergamenthandschrift von Franz Joseph Wirth mit eigenhändiger Signatur.
Mahomet. Trauerspiel in fünf Aufzügen, nach Voltaire.
1st edition. Tübingen: Cotta'schen 1802. 102 + [2 blank] pp. Clean, well-preserved and totally uncut copy bound in contemporary plain halfleather. * Meyer 645.
Kst.-Karte von 2 Platten von Jäck nach D.F. Sotzmann bei S. Schropp im Berlin, "General Karte von den Königl. Preußischen Staaten nach den neuesten u. zuverlässigsten Hülfsmitteln auf das genaueste entworfen u. hrsg. 1799".
- dat. 1802, 64 x 50 (H) Bedeutende Karte des Königreich Preussen, zweite nach dem Frieden von Luneville herausgegebene Ausgabe (EA erschien 1799); reicht von Memel im Norden bis Ansbach im Süden, von Kleve im Westen bis Grodno im Osten; kalligrafischer Titel unten rechts, mit französischem Kopftitel; jedes Blatt mit Mittelfalz, sonst tadellos.
Paris, Didot, 1802. In-folio (53,5 x 34 cm.). Mezza pelle coeva, tassello sul dorso; minime tracce d'uso. Con un'antiporta, un frontespizio figurato, 2 carte geografiche e 65 tavv. f.t. finemente inc. in rame, alcune ripiegate o a doppia pagina. VIII, 190, (2) pp.; lievi ingialliture ma buon esemplare in barbe. Edizione originale della celebre opera. Per le magnifiche vedute di Trieste, Pola, Spalato e altre località dell'Istria e della Dalmazia, è considerata la più bella descrizione della regione. Cohen-De Ricci 205. Berlin Katalog 1910. Cremonini 85. First edition of this superb travel account, beautifully illustrated with a frontispiece, an engr. title, 3 head-pieces, 2 double-page maps and 65 plates, mostly of views, some folding or double-page, all finely engr. Contemp. half calf, slightly worn; paper occasionally toned but a good, large and uncut copy.
Die Cultur, Fabrikatur und Benutzung des Tabacks in ökonomischer, medicinischer und cameralistischer Hinsicht.
Anleitung zur Technologie, oder zur Kenntniß der Handwerke, Fabriken und Manufacturen, vornehmlich derer, welche mit der Landwirthschaft, Polizey und Cameralwissenschaft in nächster Verbindung stehn. Nebst Beyträgen zur Kunstgeschichte. 5. verbesserte und vermehrte Auflage.
London: W Bulmer, 1802. First Edition. Hardcover. Good+. from Cairo to Mourzuk, the Capital of the Kingdom of Fezzan in Africa in the years 1797-8. Quarto. 195 pp, 2 large folding maps by Rennell. First English edition. Horneman was the first European (0ver 200 years ago) to visit the northeastern Sahara. He set out from Cairo with hopes of exploring the Niger River. Good +: text is mostly clean but there are some pages with foxing, also small 1/3" x 1 1/4" piece clipped from table of contents page and top 1' missing from title page. Maps are clean and crisp as most of the text is very nice. The paper covered boards show wear at corners and the leather spine shows some rubbing. The contrasting colored gilt spine label is nice. An interesting early work. Horneman's progress was delayed when the French arrived and imprisoned all Europeans but he was released after Bonaparte arrived and special arrangements were made for transmission of his despatches to London.
Travels through Sweden, Finland and Lapland to the North Cape in the Years 1798 and 1799.
2 vols. London: Printed for Joseph Mawman, in the Poultry, 1802. With engraved portrait of the author, 10 engraved plates showing views and costumes, 5 handcoloured engraved plates showing Lappish birds and insects, and large folded engraved map. Pages 325-36 in vol. II with engraved Finnish and Lappish music. 4to. XXIV + 396; VIII + 380 pp. Clean and well-preserved copy with wide margin and chiseled edges bound in nice green half morocco with raised bands and goldprint on the faded spines, with goldlines on boards and with book stamp of Mr. Thore Virgin in gold on frontboard. The bindings signed with ticket G. Hedberg. * First edition, first issue. The most controversial and interesting travel account from Sweden late 18th century. Joseph Acerbi (1773-1846) Italian explorer and scientist, undertook 1798 a journey through Denmark, Sweden, Finland and Lapland; and the following year he reached North Cape, which no Italian had previously visited. He was accompanied in the latter part of the journey by the Swedish colonel Skiöldebrand, an excellent landscape painter. On his return Acerbi stayed for some time in England, and published his Travels, etc. His account was met with much disapproval in Sweden, and the Swedish government tried to prevent it to be published abroad, however it was translated and spread all over Europe. "Uppriktigare och säkert sannare än Rosenhane tecknar en främmande iakttagare, Giuseppe Acerbi, Gustav III:s del i vetenskapernas tillbakagång i landet", [Lindroth IV, 26]. Bring 309. Schiøtz 36 a. Bibl. Norv. II, 5336. Skougaard III, 255.
1802. Mm. 220 x 160, cc. (95) + 10 cc. bianche + (15) [Indice della materia contenuta negli articoli e rispettivi paragrafi di questo Trattato di diritto criminale] + 3 cc. bianche + (23) [Apparecchi circa la proposizione per gli esami sul diritto criminale] + 3 cc. bianche. Legatura coeva in cart. alla rustica con titoli ms. al dorso. Qualche strappetto (senza lesioni al testo, all'angolo bianco di poche cc., sporadiche e fisiologiche macchiette. Ben conservato e in barbe. Tommaso Nani (1757-1813), importante criminalista originario di Morbegno (Sondrio), fu professore all'UniversitÃ di Pavia. Fu consigliere di Stato e membro, iniseme a Giuliani e Romagnosi, della commissione nominata il 30 agosto 1808 per la redazione di un nuovo progetto di codice penale per il primo Regno d'Italia. Dall'indice: Discorso preliminare (Saggio di giurisprudenza criminale) - Parte I. Dei delitti - Parte II. Delle pene - Parte III. Dei delitti in specie - Parte IV. Della procedura..
W.P. Young. Hardcover. W.P. Young, Charleston, 1802. Hard cover, first edition. 'Presented to James Simons, Esqr by his friend the author' is stamped in gilt on the front cover. This is also hand-written at the top of the first page of chapter one. The large folding map of the state has been torn out, the other fold-outs are all present and in Good condition. A contemporary review of the book has been pasted to the second flyleaf; there is also a collection of newspaper articles about the hurricanes of 1804 and 1752 laid in, one of which is dated 1804 and one 1806. There is foxing throughout the text and some minor wear to the edges of the cover; otherwise Good condition. . Good. 1802.

matches: v. v. v. v. v. v.


The above map shows the split between the jurisdictions on the duty in take-home asbestos exposure cases. While the majority of the states have not specifically addressed the issue in the asbestos exposure context, of those that have, most have held that there is no duty. The courts that have ruled there is no duty to warn household members of the dangers of “take-home” asbestos exposures have done so based on a lack of foreseeability, often examining the state of the knowledge during the years of the alleged exposures, and/or based on a lack of relationship between the parties. However, nine jurisdictions have held that a duty exists.
Take-home exposure cases, also called secondary, bystander, or non-occupational exposure, are anticipated to increase over the coming years and prolong asbestos litigation that has generated hundreds of thousands of claims. The allegations generally pertain to a spouse or parent who worked with or around asbestos-containing products, who unintentionally brought the asbestos fibers into the household. Laundering of the work clothes, exposures in the family vehicles, or personal contact are usually involved in transmitting the alleged exposures. The summaries below discuss the major decisions and laws addressing take-home asbestos exposure.
Bobo v. TVA , 2015 U.S. Dist. LEXIS 130741 (N.D. Ala. Sept. 29, 2015). Mrs. Bobo alleged exposure to asbestos from laundering her husband’s work clothes from his work at the Tennessee Valley Authority (TVA) nuclear plant at Browns Ferry, Ala., from the mid-‘70s to the mid-‘90s. She also alleged exposures to asbestos from her father’s work with friction products on farm tractors, and her husband’s work with asbestos at another employment. The court certified two questions to the Alabama Supreme Court as to 1) whether a premises owner has a duty to protect the family members of persons who work on the property owner’s premises from secondary exposure to a toxic agent, such as asbestos, used during the course of the property owner’s business; and 2) what causation standard applies when multiple exposures to a toxic agent, such as asbestos, combine to produce the plaintiff’s injury. The Alabama Supreme Court declined to hear those certified questions. The trial court then held that the premises owner (the TVA), owed a duty to the family members, and emphasized that the primary factor in the duty analysis is foreseeability under Alabama law. The court stated that decedent’s asbestos exposure was foreseeable in light of the existence of OSHA regulations and defendant’s own workplace standards, especially those aimed at preventing asbestos fibers from clinging to employee’s skin, hair, or clothing and being carried off defendant’s property. Policy considerations further supported the court’s decision, particularly in light of the low-cost methods of preventing secondary asbestos exposure.
In April 2017 the 11th Circuit affirmed the U.S. District Court’s decision and held that Alabama courts would impose a duty of care on employers like TVA to prevent take-home asbestos where a plaintiff’s injury is foreseeable, and public policy considerations also weigh in favor of there being a duty. The federal appellate court stated that the TVA had acted affirmatively by using asbestos-containing products, failing to prevent take-home asbestos exposure, and knew of the risk of injury from asbestos being taken home on employees’ clothes. The court also held that the public policy concerns weighed in favor of imposing a duty on TVA in this case. Bobo v. TVA, 2017 U.S. App. LEXIS 7364 (11th Cir. Apr. 26, 2017).
Kesner v. Super. Court , Nos. S219534, S219919, 2016 Cal. LEXIS 9431 (Dec. 1, 2016) – The California Supreme Court held in two consolidated cases,Kesner v. Superior Court (S219534) and Haver v. BNSF Ry. Co. (S219919), that “the duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers” where it is “reasonably foreseeable” that workers “will act as vectors carrying asbestos from the premises to household members.” The court additionally held that such a duty “extends only to members of a worker’s household.” In Kesner, a man alleged his mesothelioma was caused by exposure to asbestos dust transferred from his uncle’s soiled work clothes, who worked at a plant in the 1970s and was allegedly exposed to asbestos fibers released in the manufacture of brake shoes. In Haver, the wife of a former railway employee alleged her mesothelioma was caused by exposure to asbestos from her husband’s soiled work clothes. The husband worked as a fireman and hostler for the railway company in the 1970s and was allegedly exposed to asbestos from pipe insulation and other products. The cases were premised on two separate negligence theories: Kesner alleged negligence in the manufacture of brake products, and Haver alleged negligence under premises liability. The California Supreme Court determined that both theories implicated “the general duty to take ordinary care in the conduct of one’s activities,” and were, therefore, viable where the secondary harm from exposure to asbestos was reasonably foreseeable. The court determined that the harm was foreseeable – the “predominant factor” in the state’s duty analysis – because a “reasonably thoughtful person making industrial use of asbestos during the time periods at issue in this case (i.e. the mid-1970s) would take into account the possibility that asbestos fibers could become attached to an employee’s clothing or person, travel to that employee’s home, and thereby reach other persons who lived in the home.” The court concluded the duty existed, in part, due to the federal regulations and standards of the time (e.g. 1972 OSHA Standard) warning of the hazards associated with asbestos products.
Stegemoller v. AC&S, Inc ., 767 N.E.2d 974 (Ind. 2002) – Under Indiana Product Liability Act, Ind. Code Ann. § 34-20-1-1 “consumer” includes “any bystander injured by the product who would reasonably be expected to be in the vicinity of the product during its reasonably expected use,” and the such use of “asbestos products encompasses the cleansing of asbestos residue from one’s person and clothing at the end of the workday.” Therefore dismissal of insulator’s wife’s claim was reversed and reinstated.
Francis v. Union Carbide Corp ., 116 So. 3d 858 (La. Ct. App. 2013). The appellate court reversed a summary judgment ruling holding that there was evidence Mr. Rendon, who had mesothelioma, was exposed to asbestos from his father’s work clothes from working at the Pendleton Shipyard from 1943 to 1945.
Chaisson v. Avondale Indus., Inc. , 947 So. 2d 171 (La. Ct. App. 2006). The appellate court upheld the trial court's determination that the employer owed a duty to the wife of an employee, who worked at shipyard from 1963 to 1976 and 1982 to 1986, for her asbestos-related injuries. The court considered the 1972 OSHA standards regarding the hazards of household exposure to asbestos, and the moral, social and economic factors in holding a duty existed.
Zimko v. American Cyanamid, 905 So. 2d 465 (La. Ct. App. 2005). Decedent wife, who died of mesothelioma, claimed exposure to asbestos from her husband’s work clothes, who worked at a sugar refinery from 1977 to 2001. The court found the employer had a general duty to act reasonably in view of the foreseeable risks of danger to household members of its employees resulting from exposure to asbestos fibers carried home on its employee’s clothing, person or personal effects.
Olivo v. Owens-Ill., Inc. , 895 A.2d 1143 (N.J. 2006). The New Jersey Supreme Court held that the defendant land owner had a duty to the spouses of workers based on the foreseeable risk of exposure to asbestos. Plaintiff Anthony Olivo had worked as a steamfitter/welder for several independent contractors at various sites in New Jersey over the course of more than 35 years, including Exxon Mobil’s refinery in Paulsboro, N.J. Plaintiff alleged that his deceased wife, who died of mesothelioma, was exposed to asbestos brought home on his work clothes. The court held that, “to the extent Exxon Mobil owed a duty to workers on its premises for the foreseeable risk of exposure to friable asbestos and asbestos dust, similarly, Exxon Mobil owed a duty to spouses handling the workers’ unprotected work clothing based on the foreseeable risk of exposure from asbestos [brought] home on contaminated clothing.” The court made it clear that any duty owed to a spouse is derivative, therefore, if no duty was owed to the husband-worker, then no duty was owed to the spouse.
Satterfield v. Breeding Insulation Co ., 266 S.W.3d 347 (Tenn. 2008). The estate of a woman who died from mesothelioma at the age of 25, alleged she was exposed to asbestos from her father’s work clothes from his employment at an Alcoa Aluminum plant from 1978 to 1984. The Tennessee Supreme Court held that a duty of reasonable care arises whenever a defendant’s conduct poses an unreasonable and foreseeable risk of harm, and that the relationship analysis is misplaced under Tennessee tort law. The court found the employer was aware of the high volumes of asbestos on its employees’ clothes and that exposure to asbestos created a substantial health risk. The court held the alleged risk was foreseeable, and affirmed the appellate court’s reversal of the judgment on the pleadings.
Quisenberry v. Huntington Ingalls Inc., No. 171494, 2018 Va. LEXIS 137 (Va. Oct. 11, 2018). In a certified question of law from the U.S. District Court for the Eastern District of Virginia, the Virginia Supreme Court ruled in a 4-3 decision that an employer owes a duty of care to an employee's family member for take home exposures to asbestos. The facts alleged were from 1942 to 1977 Ms. Quisenberry lived with her father and in 1954 began laundering his work clothes that exposed her to asbestos from his employment at the Newport News Shipbuilding and Dry Dock, now Huntington Ingalls Inc. In 2013 she was diagnosed with pleural mesothelioma. The Virginia high court held that there is a duty when there is "sufficient relation to place plaintiff within reach of defendant's conduct." The duty is owed to "such persons in the recognizable and foreseeable are of risk."
Rochon v. Saberhagen Holdings, Inc., 2007 Wash. App. LEXIS 2392 (Wash. App. 2007). Mrs. Rochon had alleged asbestos exposure from laundering her husband’s work clothes caused her mesothelioma. Her husband worked for Scott Paper Co., (predecessor to Kimberly-Clark), from 1956 to 1966. The trial court held no duty of care was owed to Mrs. Rochon, but the appellate court reversed holding that Kimberly-Clark had a duty to prevent her injury if its use of asbestos was unreasonably risky and her injury was foreseeable.
Quiroz v. Alcoa, 2016 Ariz. App. LEXIS 218 (Ariz. Ct. App. Sept. 20, 2016). Dr. Ernest V. Quiroz, who died of mesothelioma, was allegedly exposed to asbestos from his father’s clothes who worked at Reynolds Metal Co. in the 1950s and 1960s. Having reviewed the policy considerations including, the potential liability to anyone who ever came in contact with an employee, the court held that the drawbacks of recognizing a duty of care in take-home exposure cases outweigh any potential benefits. The court also held that Reynolds owed no duty of care after examining the foreseeability of harm.
Martin v. Cincinnati Gas & Elec. Co ., 561 F.3d 439 (6th Cir. 2009). Mr. Martin alleged exposure to asbestos from 1952 to 1963 from his father’s clothing who worked for Cincinnati Gas & Electric (CG&E) with asbestos products. After analyzing the information that was available to CG&E in the 1950s, the Sixth Circuit ruled that under Kentucky law there was no duty based on secondary exposure to asbestos because defendants could not have known of the risk of secondary exposure.
Dube v. Pittsburgh-Corning Corp ., 1988 U.S. Dist. LEXIS 5739 (D. Me. Mar. 27, 1989) – Four asbestos product manufacturers sought contribution from the federal government for settled claims paid to a Portsmouth Naval Shipyard employee’s daughter who died of mesothelioma in 1984. She had alleged exposure to asbestos from her father’s person and clothing from the age of 9 in 1959 until she left the family home in 1973. Her father had worked as an insulator or pipe coverer at the naval shipyard. The court held that under Maine law the United States was not negligent for any exposures prior to 1964 because there was no evidence in the case that prior to research released in October 1964 that the public was aware that secondary exposure to asbestos from dust on clothing presented a risk of disease to domestic bystanders. The court then held that the United States was one-third responsible for the post-1964 exposures, but the discretionary function exception protected the United States from liability.
Rohrbaugh v. Owens-Corning Fiberglas Corp ., 965 F.2d 844 (10th Cir. 1992). The representatives of the estate of an insulator’s wife, who died of mesothelioma, alleged exposure to asbestos from insulation products the husband brought home on his work clothes during the 1960s. Applying Oklahoma law, the 10th Circuit held that the insulation manufacturers did not have a duty to warn because they could not foresee that household members would be affected by their products, and there was no evidence that in the 1960s it was known to them that amosite or chrysotile asbestos fibers could cause mesothelioma. The trial court had erred in its jury instructions that imposed a duty to warn the decedent of asbestos exposure risks.
Hudson v. Bethlehem Steel Corp ., No. 1991-C-2078, 1995 WL 17778064 (Pa. Ct. C.P. Dec. 12, 1995). Mrs. Hudson died of mesothelioma in 1991 and representatives of her estate alleged she was exposed to asbestos from washing her father’s clothes for about 20 years from about 1940 to 1960, who worked at Bethlehem Steel. The court held Bethlehem Steel did not have a duty to Mrs. Hudson "[b]ecause Bethlehem Steel could not have foreseen that [she] would be exposed to the asbestos fibers … .").
Alcoa, Inc. v. Behringer , 235 S.W.3d 456 (Tex. Ct. App. 2007). The appellate court reversed a $12 million actual damages, and $2 million exemplary damages jury award for the wife of a worker at an Alcoa plant for four years in the mid-1950s. The appellate court held Alcoa did not owe Mrs. Behringer a duty because the danger of non-occupational exposure to asbestos dust on workers clothing was neither known nor reasonably foreseeable to Alcoa in the 1950s.
Quiroz v. Alcoa, Inc., 416 P.3d 824 (Ariz.2018). Dr. Ernest V. Quiroz, who died of mesothelioma, was allegedly exposed to asbestos from his father's clothes who worked at Reynolds Metal Co. in the 1950s and 1960s. The Arizona Supreme Court held that Alcoa owed no duty to Mr. Quiroz because there was no special relationship (no employer-employee, no landowner-invitee, no landowner-licensee relationship), and he was not injured on Defendant's property. The Court also analyzed foreseeability, however Arizona law rejects foreseeability as a factor in determining duty. The Court wrote: It would be "'simpler' if everyone owed a legal duty of care to all people all the time,...but [l]ife will have to be made over, and human nature transformed' before such a duty could 'be accepted as the norm of conduct.'" Quoting Palsfraf v. Long Island R. Co., 162 N.E. 99, 100 (N.Y. 1928) Id., at 843.
Simpkins v. CSX Transp., Inc ., 965 N.E.2d 1092 (Ill. 2012). Representatives of Mrs. Simpkins, who died from mesothelioma, alleged exposure from asbestos on her husband’s clothing who had worked for CSX Transportation from 1958 to 1964. The Illinois Supreme Court considered relationship the “touchstone” of the duty analysis. Foreseeability is an integral factor to the existence of duty, the court wrote, and because the complaint failed to detail the specific facts supporting the foreseeability question, the court remanded the matter with directions to file an amended complaint. Further, in Illinois appellate court decisions, the court concluded that there was no duty because the defendant had no legal relationship with the victim of secondhand asbestos (Estate of Holmes v. Pneumo Abex, L.L.C., 955 N.E.2d 1173, 1178 (Ill. App. Ct. 2011)); and that the defendant owed no duty for lack of a legal relationship (Nelson v. Aurora Equip. Co., 909 N.E.2d 931, 938 (Ill. App. Ct. 2009)).
Van Fossen v. MidAmerican Energy Co. , 777 N.W.2d 689, 698-99 (Iowa 2009). Mr. Van Fossen, who worked as an independent contractor at power plants from 1973 to 1981, alleged his wife who had died of mesothelioma was exposed to asbestos from his work clothes. The Iowa Supreme Court held that employers of contractors owed no general duty of reasonable care for policy reasons and did not examine foreseeability. “If employers of independent contractors were to bear an unlimited general duty to exercise reasonable care … the universe of potential persons to whom the duty might be owed is unlimited,” the court wrote.
Georgia Pacific, LLC v. Farrar, 69 A.3d 1028 (Md. 2013). The Maryland Court of Appeals overturned the appellate court’s affirmance of a $5 million verdict for the granddaughter of a construction worker who claimed exposure to her grandfather’s work clothes who worked near other workers using joint compound in 1968 to 1969. The court examined the information available about household exposures to asbestos in the 1960s and 1970s. It then found that even if Georgia-Pacific should have foreseen in 1968-69 that household members were “in the zone of danger, there was no practical way that any warning given by it to any of the suggested intermediaries would or could have avoided that danger.” The court ruled the product manufacturer did not owe a duty to the plaintiff.
See also: Estate of Schatz v. John Grane, Inc., 239 Md. App. 211, 196 A.3d 74 (2018).
Adams v. Owens-Illinois, Inc., 705 A.2d 58 (Md. Ct. Spec. App. 1998). In a decision addressing several plaintiffs’ matters, Mrs. Wild claimed her asbestosis was caused from handling and washing her husband’s clothing from his work at Bethlehem Steel. Focusing only on the relationship between the parties, the appellate court upheld the defense verdict stating: [I]f liability for exposure to asbestos could be premised on Mary Wild’s handling of her husband’s clothing, presumably Bethlehem would owe a duty to others who came in closed contact with [Mr. Wild] including other family members, automobile passengers, and co-workers.” Bethlehem owed no duty to strangers based upon providing a safe workplace for employees.
Miller v. Ford Motor Co., (In re Certified Question), 740 N.W.2d 206 (Mich. 2007). Representatives of the estate of Mrs. Carolyn Miller, alleged she developed mesothelioma from washing her stepfather’s clothes who worked at Ford facilities in Michigan from 1954 to 1965. In an opinion to address a question certified from a Texas appellate court, the Michigan Supreme Court analyzed the foreseeability aspect, and found that the risk of “take home” asbestos exposure was not foreseeable by Ford from 1954 to 1965. Also, examining the relationship issue, the court stated “imposing a duty on a landowner to anybody who comes into contact with somebody who has been on the landowner’s property,” … “would create a potentially limitless pool of plaintiffs.” Lastly, the court declined to find a duty existed under the inherently dangerous activity doctrine.
Holdampf v. A.C.&S., Inc. (In re N.Y.C. Asbestos Litig.), 840 N.E.2d 115 (N.Y. 2005). Elizabeth Holdampf, who was diagnosed with mesothelioma, washed her husband’s clothes from 1971 to the 1990s who worked with asbestos at the Port Authority of New York. Holding that foreseeability does not define duty, it merely determines the scope of the duty once it is determined to exist, the court refused to “upset" the "long-settled common-law notions of an employer's and landowner's duties" to include members of an employee's household.
Palmer v. 999 Quebec, Inc. , 2016 N.D. 17 (Jan. 14, 2016). Plaintiff’s decedent, who died of mesothelioma, claimed exposure to asbestos from decedent’s father’s work clothes who worked for an asbestos insulation supplier/installer. The trial court granted summary judgment for the supplier/installer holding there was no special relationship between the decedent and the supplier/installer, and the supplier/installer did not manufacture any of the asbestos-containing products it supplied and installed. The North Dakota Supreme Court upheld the summary judgment holding there was no evidence to establish either a special relationship between the supplier/installer and the decedent, or the supplier/installer’s knowledge of the dangers of asbestos while decedent’s father was employed by the supplier/installer. There was no evidence from which a reasonable person could conclude the supplier/installer owed the decedent a duty of care, the court ruled.
Boley v. Goodyear Tire & Rubber Co. , 929 N.E.2d 448 (Ohio 2010). Mary Adams claimed her mesothelioma was caused by asbestos from her husband’s work clothes, who worked at Goodyear from 1973 to 1983 as a pipefitter. The Ohio Supreme Court upheld summary judgment for Goodyear because under an Ohio statute, R.C. § 2307.941(A)(1), a "premises owner is not liable in tort for claims arising from asbestos exposure originating from asbestos on the owner's property, unless the exposure occurred at the owner's property."
Code Ann. § 2307.941(a)(1) – See also discussion of Boley decision above.


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MATIAS S. CARILLO, Petitioner, v. THE COURT OF APPEALS and CEDAR U. DE LA VICTORIA, CORNELIO DE LA REY, and MUNICIPALITY OF MATANAO, DAVAO, Respondents.
Artemio Al. Loyola & Emmanuel D. Galicia for Petitioner.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro and Solicitor Augusto M. Amores for Respondent.
In his complaint, petitioner herein, Matias S. Carillo, sought his reinstatement as chief of police of the municipality of Matanao, province of Davao, claiming that he was validly appointed to said position but was subsequently replaced by the respondent Municipal Mayor Cesar U. de la Victoria with the appointment of the other respondent Cornelio de la Rey as chief of police.
The Court of First Instance on motion of respondent-public officials dismissed Carillo’s complaint holding that the evidence of Carillo does not establish an essential element for the validity of his appointment which is the approval or consent of the municipal council. Carillo appealed to the Court of Appeals but the latter court affirmed the trial court’s order of dismissal. 2 Hence, this Petition for Review on Certiorari.
"Petitioner-appellant was appointed Chief of Police of Lower Matanao effective July 8, 1957; (Exh. E).
"He was again appointed to that position effective July 8, 1958, but his appointment was ’subject to the provision of Section 1 of Republic Act No. 1551.’ (Exh. F).
"Petitioner-appellant had previously qualified in the examinations for Chief of Police conducted on January 11, 1963 (Exh. G) and for patrolman taken on August 21, 1937 (Exh. H).
"Pursuant to Memorandum No. 1 s. 1960, issued by the newly elected Mayor Cesar U. de la Victoria, petitioner-appellant was called to the Mayor’s Office and asked to resign (Exhs. J, J-1 and J-2).
"On January 11, 1960, petitioner-appellant applied for and was granted leave of absence for sixty days (Exhs. B and B-1).
"On March 13, 1960, the petitioner-appellant notified the appellee Mayor that he was not willing to serve as detached service but that he will serve only as Chief of Police (Exh. A or 1).
"On May 15, 1960, appellee de la Rey was appointed Acting Chief of Police of Matanao, Davao, vice ’Matias S. Carillo (Lesser Civil Service Eligibility),’ effective May 16, 1960, and was attested by the Provincial Treasurer under Section 20, Republic Act No. 2260. This appellee was then a regular junior teacher and regular senior teacher civil service eligible.
"On May 16, 1960, appellant could not discharge his duties as Chief of Police because appellee de la Rey had already assumed office (Exh. D)." (pp. 192, appellee’s brief).
It is claimed by petitioner that the requirement of the law that an appointment of a chief of police be made with the consent of the municipal council was complied with in his case when the municipal council of Matanao in a special session held on July 11, 1957, approved the plantilla of personnel with his name appearing as incumbent in the position of chief of police for the fiscal year ending June 30, 1958. Such approval of all intents and purposes constituted consent by the municipal council to his appointment, petitioner asserts.
Petitioner’s submittal is without legal basis.
Moreover, petitioner Carillo’s assertion of a substantial compliance with the law loses its validity in the face of the uncontrovertible — that the approved plantilla carrying his name as chief of police was only for the fiscal year 1957-58, after which he accepted a new appointment effective July 8, 1958 which was "subject to the provisions of Section 1 of Republic Act No. 1551" (Exh. F, per appellee’s brief). Inasmuch as the new appointment of Carillo states expressly that it is subject to the consent and approval of the municipal council (Sec. 1, R.A. 1551), and the record of the case is ominously silent on the existence of such a consent, express or implied, there is no complete appointment to speak of.
It is argued that Carillo was the only one qualified to the position of chief of police as there was nobody in the ranks of the police force of Matanao with higher civil service eligibility than him. 7 That fact, however, even if true is inconsequential, for his civil service eligibility affords him no protection or guarantee of security of tenure of office after he had accepted a conditional appointment which was temporary in nature while the condition was not fulfilled.
"Petitioner’s appointment being temporary, it can be terminated at pleasure even if he is a civil service eligible. And this holds true notwithstanding his badge of eligibility for, having accepted a temporary appointment, he cannot invoke the security of tenure guaranteed by our Constitution. In fine, to him cannot apply the safeguard embodied in Section 32 of the Civil Service Act of 1959 which provides: ’No officer or employee in the civil service shall be removed or suspended except for cause as provided by law and after due process." ’ (Edgardo R. Hojilla v. Hon. Salvador L. Mariño, Et Al., L-20574, Feb. 26, 1965, 13 SCRA 293, 206. See also Tolentino v. De Jesus, supra).
Petitioner Carillo argues further that his appointment (Exh. F) was duly attested to and approved by the Civil Service Commissioner and it was such approval which gave validity to his appointment. 8 This alleged approval is not admitted however in appellee’s brief. At any rate, We repeat that Carillo’s appointment, Exhibit F, was by its very terms subject to Section 1, Republic Act 1551, and that the appointment was not completed since the condition imposed by the foregoing provision of law had not been fulfilled. An appointment becomes complete upon the performance of the last act required by law of the appointing power. 9 The last act is the approval of the municipal council. It is preposterous to state that the consent or approval of the municipal council provided for in the law can be substituted by the approval of the appointment by the Civil Service Commissioner. The purpose of one is distinct from the purpose of the other as We have indicated earlier.
It now follows that inasmuch as petitioner Carillo holds no valid right or title to the position of chief of police, the dismissal of his quo warranto suit is in order.
We agree with respondent appellate court that "one who cannot show that he is entitled to occupy a public office, lacks the legal personality to institute quo warranto proceedings; in which case, it is not necessary to inquire into the right of the respondent to occupy said office (Guekeko v. Santos, 76 Phil. 237; Topacio Nueno v. Angeles, 76 Phil. 12)." 11 It is axiomatic that where there is a right, there is a remedy. In the instant case petitioner has not established any right to the office he claims, hence, no remedy or relief of reinstatement may be accorded him.
PREMISES CONSIDERED, We affirm the dismissal of petitioner’s complaint without pronouncement as to costs.
2.	The decision of the Special Sixth Division in CA-G.R. No. 32477-R was promulgated on February 22, 1965, with Justice Gregorio S. Narvasa, ponente, and Justices Francisco R. Capistrano and Antonio G. Lucero, concurring, pp. 10-13 rollo.
3.	Villanueva v. Balallo, L-17745, Oct. 31, 1938, 9 SCRA 407, 410-411.
4.	106 Phil. 638, 644-645. See also Aguila v. Castro, Et Al., L-23778, Dec. 24, 1965, 15 SCRA 565, 568; Valdez v. Gutierrez, Et Al., L-25819, May 22, 1968, 23 SCRA 661.
5.	Aguila v. Castro, supra, p. 568, citing Tolentino, Et. Al. v. Torres, 96 Phil. 522; Pineda v. Velez, 100 Phil. 1085. See also Tulawie v. Provincial Agriculturist of Sulu, L-18945, July 31, 1964, 11 SCRA 611; Hojilla v. Mariño, L-20574, Feb. 26, 1965, 13 SCRA 293; Santos v. Chico, L-24155, Sept. 28, 1968, 25 SCRA 343; Barangan v. Hernando, Et Al., L-28652, Feb. 28, 1969, 27 SCRA 239; Ramos v. Romualdez, L-27946, April 30, 1970, 32 SCRA 590; Mendiola v. Tancinco, 52 SCRA 66; Tolentino v. De Jesus, 56 SCRA 167; Alfiler v. De los Angeles, L-27314, Sept. 26, 1974, 60 SCRA 17.
6.	2 SCRA 412, 417, citing U.P., Et. Al. v. CIR, Et Al., 107 Phil. 848 Montero, Et. Al. v. Castellanes, 108 Phil. 744.
To the same effect, following a long line of decisions, are these cases, among others: Ferrer v. Hon. De Leon, Et Al., 109 Phil. 202; Quitiquit v. Villacorta, 107 Phil. 106; Mendez v. Ganzon, Et Al., 101 Phil 48; Quiatchon, Et. Al. v. Villanueva & City of Bacolod, 101 Phil. 989; Paña, Et. Al. v. City Mayor of Ozamis, 94 Phil. 103; Orais, Et. Al. v. Ribo, Et Al., 93 Phil. 985; Cuñado v. Gamus, L-16782, May 20, 1963, 8 SCRA 77; Jimenea v. Guanzon, L-24795, Jan. 29, 1968, 22 SCRA 224; Santos v. Chico, L-24155, Sept. 28, 1968, 25 SCRA 343; Barañgan v. Hernando, Et Al., L-28652, Feb. 28, 1969, 27 SCRA 239.
See also the cases under footnote 4.
7.	p. 8, appellant’s brief.
8.	pp. 3, 6, appellant’s brief.
9.	Villanueva v. Balallo, supra.
10.	Moran, Rules of Court, Vol. 3, 1970 ed., pp. 208-209; Acosta v. Flor, 5 Phil. 18; Concordia v. Tolentino, 93 Phil. 471; Adante v. Dagpin, 96 Phil. 789; Castro v. Solidum, 97 Phil. 278; Lota v. CA, L-14803, June 30, 1961, 2 SCRA 715; Batario, Jr. v. Parentela, Jr., L-20485, Nov. 29, 1963, 9 SCRA 601; Caraan-Medina v. Quizon, L-23162, Oct. 29, 1966, 18 SCRA 562; Bongbong v. Parado, L-30361, June 28, 1974, 57 SCRA 623; Philippine Public School Teachers Association (PPSTA) v. Apostol, Et Al., L-26966, Feb. 28, 1974, 55 SCRA 743.

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The Virginia Freedom of Information Act, § 2.2-3700 through § 2.2-3714 of the Code of Virginia, was established in order to make government entities throughout the Commonwealth of Virginia more open to the public. The Virginia Freedom of Information Act, § 2.2-3700 through § 2.2-3714 of the Code of Virginia, is the primary state law governing citizen access to public records and entry to meetings of public bodies. The Virginia FOIA Law guarantees citizens of the Commonwealth of Virginia and representatives of the media access to public records held by public bodies, public officials, and public employees. By law, the Freedom of Information Act (FOIA) requires a response to requests within five working days.
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text:
A. B. THOMPSON, Jr., et al.
According to the court below the 'riot' was underway when the officer returned and attempted to arrest A. B., the officer's actions being referred to as an attempt to 'quell a riot that had been instigated and encouraged by this appellant's cursing and obscence language to excite the crowd.' Miss., 269 So.2d 641. Since appellants challenge the facial constitutionality of a statute which, according to the Mississippi Supreme Court, defines the congregation of blacks in this case as a 'riot,' the fact that A. B. and Leon Thompson forcefully resisted the police intervention does not end the case. The fact that their action might fall within the statute if it were constitutionally narrowed, does not negate their ability to challenge the statute. Gooding v. Wilson, 405 U.S. 518, 521.
Any statute which classifies the congregation of blacks in this case as a riot raises serious constitutional questions. The state court places no limiting construction upon the statute. It first notes that the statute is similar to the Federal Riot Control Statute, then discusses whether other Mississippi statutes are constitutional, and finally concludes that the challenged statute 'sufficiently informed the defendants of the essential elements of the offense.' Miss., 269 So.2d 641. The challenged statute is not like its federal counterpart. 18 U.S.C. 2102, unlike the Mississippi statute, necessitates a clear and present danger of property damage or personal injury. The conclusory statement that these defendants were sufficiently informed of the essential elements, in not an answer to the matter of overbreadth.
I would note probable jurisdiction.
[Footnote *] There was further testimony that he pointed the gun at A. B.'s chest and said: 'You don't believe I'll shoot you.' R. 149, 162. There is a great deal of conflicting testimony but the record strongly suggests that the officer's provocative conduct engendered the crowd mumbling and 'rambling' which the court below held a 'riot.' This merely underscores the desirability of our hearing appellant's claim.
'Because a claim of constitutionally protected right is involved, it 'remains our duty in a case such as this to make an independent examination of the whole record.' Edwards v. South Carolina, 372 U.S. 229, 235; Blackburn v. Alabama, 361 U.S. 199, 205, n. 5; Pennekamp v. Florida, 328 U.S. 331, 335; Fiske v. Kansas, 274 U.S. 380, 385-386.' Cox v. Louisiana, 379 U.S. 536, 545, n. 8, 85 S. Ct. 453.


text:
Standard Oil Co. v. Southern Pacific Co.
Shafer v. Farmers Grain Co.
Missouri Pacific R. Co. v Reynolds-Davis Grocery Co.
Banton v. Belt Line Ry. Corp.
Cami v. Central Victoria, Ltd.
United States v. Gulf Refining Co.
Edwards v. Cuba Railroad Co.
William Danzer & Co., Inc. v. Gulf & Ship Island R. Co.
Davis v. L. L. Cohen & Co., Inc.
Lee v. Osceola & Little River Road Imp. Dist.

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