#### World’s Columbian Exposition v. Adolph Liesegang.

1. Employee and *Employe—Refusal to Obey*Orders.—An employe who prefers to obey the orders of a union of which he is a member, rather than the orders of his employer, can not recover.

Memorandum.—Assumpsit. Appeal from a judgment of the Superior Court of Cook County; the Hon. Nathaniel C. Seaes, Judge, presiding. Submitted at the October term, 1894.

Reversed and remanded.

Opinion filed March 5, 1895.

Statement oe the Case.

This was an action of assumpsit brought by appellee to recover under a contract by which he was, as conductor of a military band, to assist the musical director in any capacity he might desire, for the World’s Columbian Exposition at Chicago.

Among other provisions the contract contained the following :

“ It is hereby mutually understood that fire, war, strikes, plague, or the act of God, will annul this agreement.”

Five bands were engaged by appellant. Desiring to have a mass concert, it was arranged that the Chicago and Cincinnati bands should, on October 7th, play together.

Appellee made out the programme for such concert.

The Cincinnati band not being members of the union, the Chicago band refused to play with it.

Appellee’s conduct under the circumstances was, by him, thus set forth:

“ The concert of the three bands was to come off before ours. On October 7th our concert was to come off, the consolidated concert of the Chicago band and the Cincinnati band.”

Q. State what occurred. A. Mr. Wilson knew that the Cincinnati band was also non-union men, and" I told him so, and at the time I said: “ I understand that the Cincinnati band will join the union;” and I was ready to come *595upon the stand and start the concert. When I came upon the stand I saw that the Chicago musicians were not willing to play because the Cincinnati band had not joined the union. Then I told the men—

Q. What did they say ? A. I told them—they refused to play. I told them, “We have got to have music because it is advertised, and I don’t want to disappoint the audience.” So I started in with the .concert with the Chicago band, and after I had played several pieces, Mr. Wilson came up and ordered me off the stand, which hurt me very much. I reported the following Monday morning with the band.

Q. State what Mr. Wilson said this time. He ordered you off the stand? A. Yes, sir, because we did not play together, and he give the Cincinnati band the preference to finish the concert..

Q. Was the Cincinnati band on the-stand at the time ? A. Yes, sir.

Q. You say that he ordered you off ? A. He ordered me and the band off the stand.

Q. What band ? A. The Chicago band.

Q. And he also ordered the Cincinnati band to remain there ? A. Yes, sir.

Q. On the stand? A. Yes, sir; and finish the concert. I did not refuse to lead the band. That was all he did at that time, to order me off the stand.

Cross-examination:

It is true that the Chicago band did on one occasion play in mass concert with the Cincinnati band, at the beginning of the fair. They made some objection then in some respects. It was only the first time, but they played. The Cincinnati members all gave out that they were going to join the union. That would have cost them five dollars apiece, and they would have an engagement for six months, and they refused to pay it.

Q. Then their objection for not playing with the Chicago band, and objections for not playing with you, they refused to be taxed five dollars apiece ? A. That is what I understand.

*596Q. What was your position as conductor of that band ? What control did you have over the band ? A. Nothing at all, only to conduct them; that is all.

Q. They didn’t have to obey your orders at all ? A. As long as they were on the stand.

Q. As long as they were on the stand you had absolute control over the men ? A. So far as the concerts were concerned.

Q. Weren’t they obliged to obey your instructions? A. Yes, sir. It is true that if any of the men had refused to obey my instructions, I could have sent them off the stand, and got rid of them.

Q. How did you first learn that these men would refuse to play with the Cincinnati band; did they come together in a meeting, or did they come individually? A. No; it "was a general talk; Mr. Wilson knew all about it. I told Trim of it, and he said that he did not recognize the union.

Q. Do you mean to say that Mr. Wilson knew that.these people were not going to play on this day? A. Not exactly; I think it was straightened out because they promised to join the union—the Cincinnati band, and when I went upon the stand, I thought everything was all right, and I told Mr. Wilson; and I said: “Mr. Wilson, I am going up to begin the concert;” and I expected everything all right, but when I came up there the Cincinnati men had not joined the union. The Chicago musicians refused to play. ' ■

Q. Did you reteognize the union yourself ? A. I am a member of the union.

Q. You are a member of the union ? A. Yes, sir.

Q. Did you endeavor to compel the proceedings by using the power which was vested in you to play with the Cincinnati band, in order to carry out the instructions ? A. In that matter I Avas entirely powerless; I can not tell them to work against the rules of the union.

Q. You can not? A. No, sir. If the men were instructed through me to appear at three o’clock on any particular day in order to play in concert, they Avere obliged to follow my instructions.

*597Q. Yon would have done everything in your power to compel them to play at three o’clock ? A. Yes, sir.

Q. Then in this case, these men refused to play with the Cincinnati band, and I believe you say you went ahead and were playing alone? A. Yes, sir.

Q. You followed the order of the union,-then, and had the Chicago band play alone there without the Cincinnati band? A. Yes, sir.

Q. Those were the orders I believe given by the union, weren’t they ?

(Objected to by Mr. Weber; objection overruled.)

A. What every musician knows-—•

Q. What I want to get at is this : Isn’t it a fact that when you learned from the Chicago band that they refused to obey the instructions which were given by the Musical Bureau, their employers, but wanted to obey the instructions given by the union, that you proceeded to follow the orders given by the union; that is to say, you permitted them to play alone? A. Yes, sir.

Q. You did that ? A. Yes, sir, not wanting to disappoint the public.

Q. But you did not insist upon their playing together in order to follow your instructions explicitly as given ? A. Well, if I had insisted upon it to play together, there would not have been any music; so I thought to make the best of it, and started in with the Chicago band alone.

Q. But your instructions were to the contrary, that the bands should play together ? A. Yes, sir.

George A. Wilson, being duly sworn on behalf of defendant, testified:

That he was employed by the World’s Columbian Exposition as secretary of the Bureau of Music; plans were made for a massed concert on October 7th, by consolidating the Chicago and Cincinnati bands, of fifty members each; this arrangement was made about two weeks before October 7th; “ I think it may have been advertised about ten days before; probably one week before. The instructions were given to Mr. Liesegang, and to Mr. Brand, the leader of the Cincinnati band.”

*598Q. Will you state in detail what the arrangement was ?

(Objected to by Mr. Weber.)

A. It was a very simple plan. In adding to the enjoyment of the people at the Exposition it seemed an interesting thing to arrange for massed concerts of one hundred or more players, and such an arrangement was consummated by asking the Cincinnati and Chicago bands to mutually prepare a programme and perform it a certain time, such time as agreeable.

Q. And who was to lead that joint band? A. Both leaders were to have an equal share. It was arranged between them, I understood.

(Objected to by Mr. Weber.)

Q. Don’t you know of your own knowledge, that these leaders were to interchange in the leading of the joint bands ? A. Certainly.

Q. When did you first visit the band stand, where this joint concert was supposed to be going on? A. About ten minutes after three; ten minutes after the advertised hour.

Q. The concert was advertised to begin at three? A. Yes, sir.

Q. What did you find when you got there to the band stand ? what state of affairs ? A. I found the Chicago O band playing under its own leader, Mr. Liesegang, and the members of the Cincinnati band most of them scattered about the foot of the stand.

Q. Down below ? A. Yes, sir, there may have been a few on the stand, I am not sure on that point.

Q. What question did you ask Mr. Liesegang ? A. I asked him if he understood—if he did not understand that the Exposition, the Bureau, expected him to join with the other band as part of a massed concert in the programme already announced to be given that afternoon at three o’clock ?

Q. What did Mr. Liesegang answer? A. I don’t know; I don’t remember what his reply was. But a second question was, “Why did you disobey instructions?” in *599other words, “Why are not the two bands playing together?”

Q. What was his answer to that ? A. He said, “ My men were ordered not to play.” I said, “Who ordered them not to play ? ” and he said, “ The Musical Union.” I returned reply that the Exposition Company could not recognize the Musical Union, and that I must suspend himself and his members, and report them. Then I asked him to leave the band stand.

Walker & Eddy, attorneys for appellant.

Louis Weber, attorney for appellee.

Mr. Justice Watermah

delivered the opinion of the Court.

It is manifest that appellee declined to direct the Chicago band to play with the Cincinnati band because the union had directed otherwise, and being himself a member of the union, he felt that he could not command its members to disobey its orders.

Appellee does not pretend that he made the least effort either in the way of direction or request to induce the Chicago band to play with the Cincinnati band; no member of a band plays at a concert except as directed by the leader. Appellee did not call upon the members of -the Cincinnati band to play at all. They made no refusal; he called upon and led the Chicago band which had “ struck,” and refused to obey the orders of its employer, the Exposition Company. Instead of acting with the band that was willing to carry out the arranged programme for the mass concert, in obedience to the orders of its employer, he calls upon the Chicago band. Appellee chose to be governed by the behest of the union rather than the orders of his employer. He has the consciousness of having served the union faithfully, but as he did not faithfully serve his employer, he is not entitled to be paid for services he has never rendered.

The judgment of the Superior Court is reversed, and the cause remanded.