81 W. Va. 449 | W. Va. | 1917
Plaintiff sued to recover damages for the loss of the services «of his fifteen year old son, who was injured while engaged -with other employees in digging a trench to be used by defendant to lay a pipe line to market gas, a business in which
There is no question raised as to the form of the pleading or the sufficiency of its averments, or as to the constitutional power to enact Avhat is known as the "Workmen's Compensation Act, being chapter 15P, Code. The only question argued and to be decided is whether the declaration state's a cause of action such as entitles plaintiff to the recovery he seeks. The pleading avers the qualifications of the defendant to invoke the protection and claim the benefit of the provisions of that act, and thereby to defeat recovery in this action. There is no averment charging failure to comply with any requirement of the statute, whereby defendant could not avail itself of its provisions in bar of the action. Such compliance the declaration specifically avers.
But plaintiff does allege, and his counsel insist, that, although defendant has in all respects done what the act requires to entitle it to the immunities and prescriptions thereof, the act does not purport to work an exoneration from liability for the loss of the services sued for. Or, differently stated, the conclusion is that, as the compensation allowed an injured minor servant in lieu of a recovery for the injury in a common law action by the minor is personal and limited to him alone, the statute was not intended to and does not operate to bar an action by a parent to compel restitution for the loss occasioned to him by such injury, when he neither consented to nor was cognizant of the employment of the minor as the servant of the defendant. Want of knowledge or notice on the part of the plaintiff of the employment, and absence of his consent thereto, are reiterated and emphasized in the pleading and in the argument in his behalf, and, indeed, constitutes whatever merit the issue between the parties has.' Béyond these contentions it is unnecessary to extend this discussion, because unless the compensation fixed by our Workmen’s Compensation Act is a substitute for all common law recoveries for injuries, however occurring, including recovery by a parent for Toss of services, generally recognized as re
. There can be no doubt that at the common law the father ordinarily had and still has, where that law remains in force, as in this state except to the extent altered or modified by statute, the right to the control and custody of his minor children and to have the benefit of their earning powers until they attain their majority, unless sooner manumitted by him, and that he is entitled to maintain an action for a loss resulting to him by the wrongful interruption of such right. Taylor v. Railway Co., 41 W. Va. 704. But this concession does not necessarily preclude the exercise of legislative authority to change, modify or entirely abrogate such right of compensation, or to substitute in lieu thereof another more or less comprehensive, speedy and convenient mode of obtaining restitution for such deprivation of the minor’s services.
Whether the legislature, when enacting the Workmen’s Compensation Act, intended such substitution, and the act signifies or expresses that intention, must be determined upon an examination of the provisions of the act itself. Section 22 says: “Any employer subject to this act who shall elect to pay into the workmen’s compensation fund the premium provided by this act, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after such election and during any period in which such employer shall not be in default in the payment of such premium; provided, the injured employee has remained in Ms service with notice that his employer has elected to pay into the workmen’s compensation fund the premiums provided by this act. The continuation in the service of such employer wijth. such notice shall be deemed a waiver by the employee and by the parents of any minor employee of the right of action as aforesaid which the employee or his or her parents would otherwise have”.
The defendant, the declaration avers, is an employer subject to the act, has paid the premiums thereby provided, and in all respects complied with its requirements, and was not in default as to any of them. If so, does defendant still remain
Reliance on King v. Viscoloid Co., 219 Mass. 420, cited by plaintiff, can not avail him as an authority for the proposition for which he contends, or for saying that the language employed in section 22 of the act does not include denial of the right to maintain this action. When that case was decided there was no such provision in the Massachusetts statute as is found in ours. The court itself noted the difference when saying “in our statute there is no direct enactment taking away the parent’s right of action, and we find nothing which takes it away by necessary implication”. Though the King ease does decide that the act considered by the court does not deprive a parent of his common law right of action for loss of the services of his minor child, the decision has no applicability and. furnishes no aid in the interpretation of a statute which, as we think, expressly abrogates such right of action.
It is contended, however, that, because plaintiff had no personal notice or knowledge of the employment of his son in the service of the defendant before and at the time of the injury, and did not assent to the employment, it was for that reason unlawful, and that the unlawfulness thereof deprives the defendant of the protection of the act, notwithstanding compliance with its requirements. That contention lies at the very foundation of the right claimed by plaintiff, which, though elaborately discussed in the briefs of counsel, seems to be answered fully by the concluding provision of section 22, already quoted, and by section 23 of the act, which so far as now material reads: “Each employer electing to pay the premiums provided by this act into the workmen’s compen
Of the superabundance of decisions dealing ivith injuries to minors engaged in industrial occupations, none found hold the master liable as for unlawfulness on the ground that fee did not obtain the assent of the parent. In most instances the cause of action is based on negligence in operation, as in failing to provide a safe place and safe appliances in and with which to work, or to instruct and warn against danger, unless the occupation is one in which the employment of minors within specified ages is prohibited. Yet, while mere employment of a minor without such assent inherently is not •unlawful, in itself entailing liability in damages, negligence by the master is not essential to maturity of a cause of action for loss of services. That right may accrue likewise from an injury due merely to the ordinary risks and hazards of the employment. Cook v. Urban, 167 S. W. (Tex.) 251; 29 Cyc. 1640; Taylor v. Railway Co., 41 W. Va. 704.
Nothing in our Workmen’s Compensation Act prohibits
These reasons lead to the conclusion that the declaration does not aver a cause of action warranting a recovery for plaintiff, and, therefore, that the ruling upon the demurrer is erroneous.
Reversed, and cause remanded.