60 So. 583 | Ala. | 1912
Lead Opinion
Section 1035 of the Code of 1907 says: “No woman or boy under the age of fourteen years, shall be employed to work or labor in or about any mine in this state.” This statute was intended to protect women and children of a tender age from incurring the hazard and danger incident to the operation of mines by imperatively preventing the employment of same, and requires the employer to see and know that those whom they employ are not within the prohibited class, and it should be liberally construed so as to effectuate the humane intent of the Legislature. As was said by the New York court, in the case of Lee v. Sterling Mfg. Co., 47 Misc. Rep. 182, 93 N. Y. Supp. 560: “This is a statute Avhich makes an epoch in the progress of humanity, and the courts should not get in its way or whittle it down, as courts have done in the past.” It is not a question of whether or not the employer thought the child was over the prohibited age, but whether or not he was. Nor is it necessary that injury must result as the proximate cause of some act or omission of the minor in the discharge of the duty assigned him, but the right of action arises if the injury resulted from the employment and was incident
The New York court, while in line with other authorities that assumption of risk and contributory negligence is not available against a violation of this statute, holds, in effect, that the employer is not liable unless he violates the statute knowingly or negligently, but we follow the other cases which make him liable for violating it, whether done negligently or not. In other words, he must, in effect, be an insurer of the boy’s age when he employs him. — American Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766; Swift v. Rennard, supra; Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. Rep. 389. The statute in question must not be confused with the “child labor” law regulating the employment of children in a mill, factory, or manufacturing establishment, and Avhich is contained in chapter 184 of the Criminal Code of 1907, as there is a provision there for requiring the
There ^ was no reversible error in the second part of the oral charge excepted to by the defendant. Whether the court did or did not correctly state the rule as to the contributory negligence of infants under 14 years of age, generally speaking, error, if any, could be of no avail in the instant case as the court could, as matter of law, have instructed that' the plaintiff was not and could not be guilty of contributory negligence.— Lenahan v. Pittston, 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885, and authorities supra. The case of Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. Rep. 389, presents a well-considered opinion by the Indiana court, wherein many authorities are cited in support of the ■holding that: “The employer of a child in violation of a specific statute cannot screen itself from liability for an injury sustained by the child in its service because the injury was occasioned through such negli
There was no reversible error in giving plaintiff’s written charge 5. It was abstractly correct without the exception, and, as the exception related to contributory negligence, the fact that it may have required the absolute establishment instead of the “reasonable” establishment of the pleas of contributory negligence was error without injury, as there was no contributory negligence, and the court could have charged out said pleas. The trial court did not err in refusing the general charge as to the whole complaint or as to any of the counts which went to the jury. Each of the counts (1, 6, 7, and 8) are for a wrongful, not negligent, employment of the plaintiff in violation of section 1035 of the Code, and there was proof that the boy was under 14 years of age both at the time of employment and
The refusal of the defendant’s charge 21, if error, was without injury, as the undisputed evidence sIioavs that the plaintiff was injured by a fall either from the car or while alighting from same.
There ivas no error in overruling the demurrers to counts 1, 6, 7, and 8, as amended. They set up a wrong- ' ful employment, and did not have to charge negligence. They also plainly and clearly shoAv that the plaintiff was not only under 14 years of age Avhen employed, but was under said age when injured. The counts aver that the plaintiff was a minor 13 years of age; that is, that he was 13 years of age at the bringing of the suit. If the complaint avers that he was 13 years of age when the suit was brought, he must have been under 14 Avhen injured, as the injury is set out as having been inflicted prior to the bringing of the suit.
There was no error in refusing the motion for a new trial. The judgment of the city court is affirmed.
Affirmed.
Dissenting Opinion
(dissenting.) — It is decided in this case that if a boy 13 years of age, and his parents, together, by misrepresenting his age, thereby induce a coal mine operator to employ the boy, and the boy while so engaged in that business, is injured in consequence of his own negligence or wrong, the coal mine operator is liable to the boy in damages for his self-inflicted injuries, and for no other reason than that the operator alloAved himself to be deceived and thus defrauded, by the deceitful and fraudulent representations of the
If the decision of the majority is correct in this case, then, if the self-inflicted injuries of the boy had resulted in his death, his administrator, for the benefit of his parents, would recover damages of the operator, who was so deceived by the boy and his parents by misrepresentations as to a fact which was peculiarly, if not exclusively, within their knowledge. This necessarily follows, because the statute says in terms that the administrator may recover in all cases in which the injured person could have recovered had death not resulted, which statute, in connection with those of descent and distribution, makes the parents the distributees in such cases.
The writer feels impelled to say that he did not so read or interpret the statute when he twice assisted in the codification of the statute of which this section forms a part, or he would have placed the appropriate headlines to this section 1035 of the Code, instead of those now appearing, and which also appeared in the Code of 1896. I also feel impelled, in justification of my Brothers, as to their construction of this statute, to say that I am surprised that they have found and cited some decisions which seem to support their conclusion. Yet I feel perfectly safe in saying that both in number and in weight the authorities are against them in their construction of this statute. It seems
These specified acts as to the number of hours in which servants should be employed in one week were expressly prohibited, and the statute was knowingly
As before stated, the Illinois court seems to be the only court that has gone to the full length to which the decision in this state has gone. I am not sure of this, but from my limited examination of the question this is the result. That the rule of construction as to similar statutes, as for the sale of intoxicating liquors to minors and inebriates, the rule in Illinois is shown to be different from that in this state in the particular respect as to which I complain. This is in terms pointed out in the Illinois decision cited and relied upon in the majority opinion. It is there said: “The dramshop act forbids the sale of intoxicating liquors to minors. This court has held, under that statute, that it is immaterial whether the dramshop keeper knew the purcha
It is said in Duncan v. State, 7 Humph. (Tenn.) 150: “It is a sacred principle of criminal jurisprudence that the intention to commit the crime is of the essence of the crime, and to hold that a man shall be held criminally responsible for an offense, of the commission of which he was ignorant at the time, would be intolerably tyranny. It is right and proper that the commander of a steamboat, who receives and carries off the slave of another, should be severely punished. But to-hold that he shall be so punished, when the boat has received him and carried him off without his knowledge or consent, would be shocking to common sense. The statute does not punish for the mere act of carrying off, but punishes for the receiving and carrying off. This makes the punishment consistent with justice,- for the word ‘receiving’ necessarily implies an act knowingly done, for no man can receive without his knowledge
in this case of Gordon v. State, 52 Ala. 308, 309, 310 (23 Am. Rep. 575), wherein he cites the Tennessee case above quoted from, said: “Ignorance of law is never an excuse, whether a party is charged civilly or criminally. Ignorance of fact may often be received to absolve a party from civil or criminal responsibility. On the presumption that every one capable of acting for himself knows the law, courts are compelled to proceed. The precise time when a man arrives at the age of 21 years is a fact, knowledge of what he derives necessarily from his parents or other relatives or acquaintances having knowledge of the time of his birth. If acting in good faith, on information fairly obtained from them under an honest belief that he had reached the age, he votes, having the other necessary qualifications, illegal voting should not be imputed to him.”
We have statutes prohibiting the gift or sale of intoxicating liquors to minors and also to inebriates except upon certain conditions, but it has always been held that knowledge of the minority or the inebriety, or negligence in not ascertaining the fact, was a necessary element of the offense declared or denounced by the statute. In Tatum’s Case, 63 Ala. 151, Stone, J., said: “Three essential facts must have.been established to the satisfaction of the jury, beyond a reasonable doubt, to authorize a conviction: First, that there was a sale or gift of spirituous, vinous, or malt liquor; second, that the sale or gift was to a person of intemperate habits; third, that at the time the seller or giver knew the person to whom he furnished the liquor was of intemperate habits.”
Why a plain, simple, statutory regulation like this must be so construed as to make a man civilly liable for an injury which he did not proximately cause and did not know that he indirectly caused, and one which he could not, with all proper caution, have prevented, I am unable to understand. A law which will make a citizen liable for an injury or death which he did not cause and could not have prevented is intolerable and wicked, and the mere fact that it will chiefly hurt corporations is no just excuse for its existence or continuance.
It is an ancient, wise, and righteous maxim of the law that no one shall take advantage of, or profit by, his own wrong. The record in this case conclusively shows that the only persons who have committed any wrong — the plaintiff and his parents — will profit by their Avrong, and that at the expense of the person Avho Avas so Avronged by them. A decision or construction of a statute which produces such results must be Avrong. Another ancient, sound, and sacred maxim of the laAv is, “So use your oavu property as not to injure that of your neighbor”; but this does not mean that if your neighbor, by fraud or deceit practiced upon you, uses your property and therewith injures himself by his oavu wrong, you must be mulcted in damages to compensate him for his self-inflicted injuries. Yet it seems to me that, by the construction placed upon the statute in question, the opposite meaning is made to appear;
In Mutch’s Case the railroad company was knowingly violating an ordinance of Opelika regulating the speed of its trains, and a boy 9% years old attempted to grasp and climb a ladder attached to one of the cars of the passing train and was injured. The jury, as in this case, returned a verdict against the corporation for violating the law. The trial court refused to set the verdict aside, and the railroad company appealed to this court, and this court, notwithstanding the finding of the jury and the action of the trial court in refusing to disturb it, set the verdict aside on the sole ground that the conscious violation of the ordinance in running the train at an excessive rate of speed was not the proximate cause of the injury. This was one of the great opinions of that great Chief Justice, Stone, and therein he used language which ought to be remembered by this court when called upon to set aside unrighteous verdicts and judgments against corporations. In that opinion, among many other truths, he said: “We hold, as matter of law, that there was no proof whatever in this case tending to show a causal connection between the negligence charged and the injury suffered. ' In the jury box, and under the oath, the
In the case of King v. Henkie, 80 Ala. 505, 60 Am. Rep. 119, the defendants were sued civilly for knowingly violating a statute in giving intoxicating liquor to an inebriate. It was alleged in the complaint that one King, plaintiff’s intestate, was “in a helpless state of intoxication, destitute of sense and reason, his sense and reason being overthrown by the use of intoxicating liquors, and his mental faculties thereby so impaired that he did not know what he was doing, and incapable of knowing what he did, and incapable of consenting to anything; and in this condition of helplessness and mental darkness the defendants, then and there knowing his mental condition, his want of mental power to
Two well and fully considered cases, on very similar lines, which hold contrary to the decision in this case, are those of Norman v. V. P. C. Co., 68 W. Va. 405, 69 S. E. 857, 31 L. R. A. (N. S.) 504, and Darsam v. Kohlmann. 123 La. 164, 48 South. 781, 20 L. R. A. (N. S.) 881- Many courts in cases of this kind, as well as in others of a servant against the master, have confused the doctrine of assumption of risk with that of
The majority opinion quotes a New York case to sustain its conclusion, which has been expressly overruled in that same case by the New York Court of Appeals. It also cites Mr. Thompson, and yet Mr. Thompson is of the opinion that the rules announced in.this case are not sound. The case of Norman v. V. P. C. Co., 68 W. Va. 408, 69 S. E. 858, 31 L. R. A. (N. S.); 504, is the best considered case I have found on the subject of liability of the master to' the minor for personal injuries, when the employment was in violation of an express statute. Four of the judges wrote opinions in that case, which shows that the question was thoroughly considered. While some of the justices dissented, the decision and opinions are valuable. I think the true rules are thus stated in the majority opinion in that case: “The true rule is believed to be — -and comparatively few cases when carefully studied will be found to be in conflict Avith it — that the fact that the defendant’s act complained of was a violation of a statute or ordinance is merely a circumstance to be considered by the jury on the question of negligence, except when the court can say, as a matter of laAV, that the consequences against Avhich the statute or ordinance was intended to provide have actually ensued from its violation. — 21 Am. & Eng. Enc. Law (2d Ed.) p. 480. The doctrines in relation to assumption of risk and of felloAV servants do not apply, if the evidence es
I do not mean to say that there are not dicta in other opinions than those of the courts of Illinois to support all the conclusions reached in this case, but I do say that this decision is against the weight and number of authorities, and that the courts of Illinois are the only ones that have gone to the full length of the decision in this case. The opinion in effect holds that the pleas of contributory negligence are not availing in an action for damages by the minor based upon a violation of this statute. To this I cannot agree. If the violation of the statute gives rise to a cause of action, it is one for negligence only; and, if so, a plea of contributory negligence must he availing, because it confesses the negligence alleged, but alleges the
There were pleas of contributory negligence in this case, hut the court says they could not be proven, and might he charged out, no matter what the evidence was. To this I cannot agree. I do, of course, agree that a plea which alleges an impossibility, whether it be a legal or a physical impossibility, cannot be proven, and may he charged out of the case; but in fact, in law, and in physics, it is not at all impossible, or even improbable, that a boy 13 years of age may injure himself and be alone responsible for his act, although he was employed to work in a coal mine, and Avas so working Avithin the line of his employment when he so injured himself. Moreover, in this particular case there was ample evidence, if believed, to support a finding that the boy Avas 14 years old when employed, and when injured, and for this reason, if for no other, the affirmative charge could not have been properly given for the plaintiff. If there Avas no dispute in the evidence as to this fact, and the opinion in this case is correct, then the affirmative charge ought to have been given as to all the counts declaring upon a violation of the statute, as well as upon the pleas of contributory negligence, because there Avas not dispute of the employment of the plantiff nor that he Avas injured while so employed, and, under the opinion of the court, this Avas all that was necessary to fix liability on the defendant.
While, as I have before stated, I admit that there are authorities and precedents to support the holding of
How could this employer have protected himself against this result? The majority answer by saying he ought not to have employed the plaintiff. The defendant is now painfully conscious of that fact, but he was not when he employed the plaintiff, but honestly believed that he ought. It is shown that he had this statute in mind, and did all that prudence dictated to comply with it, and thought that he had done so. He went to the fountain sources to obtain his information as to the age of the boy; that is, to the boy and to his parents and acquaintances. They, with one accord, assured him the boy was 14 years of age. It is shown that the Bible which contained the record of the boy’s birth was not in the possession or custody of the boy or of his parents. It was not their family Bible, and it is not shown who made the entries, or when they were made.