145 Minn. 171 | Minn. | 1920
Action for personal injuries sustained by the plaintiffs intestate while in the employ of the defendant. The beneficiaries are the father and mother. The deceased was less than 16 years of age and was employed about dangerous machinery in violation of G. S. 1913, § 3848. The answer alleged that the deceased assumed the risk and that his negligence contributed to his death, and, further, that he and his father and his mother represented that he was more than 16 at the time of his employment and thereby procured it. These allegations were stricken on the motion of the plaintiff. The defendant appeals from the order striking them. The record presents two questions:
(1) Whether contributory negligence or the assumption of risks is a defense.
(2) Whether the representation by the deceased, and by his father and mother, the beneficiaries of the action, that he was more than 16, thereby inducing his employment, prevents a recovery.
“Provided, that in any action brought against an employer of any child under sixteen (16) years of age on account of injuries sustained by the child while so employed, if the employer shall have obtained, and kept on file in like manner as herein provided for employment certificates, an affidavit of the parent or guardian, stating in substance that the child is not less than sixteen (16) years of age, such employment shall not be deemed a violation of this act. Any person employing any child in violation of the provisions of this section shall be guilty of a misdemeanor.”
The purpose of the statute is to protect children in life and limb, by prohibiting their employment in dangerous occupations where, because of their immaturity, they are likely inappreeiative of risks and prone to be careless and heedless. So the statute altogether prohibits their employment and malees it a misdemeanor. A very great weight of authority establishes the doctrine that an employer who violates such a statute cannot assert contributory negligence, nor the assumption of risks as a defense. Pinoza v. Northern Chair Co. 152 Wis. 473, 140 N. W. 84; Reiten
A few cases make a distinction between assumption of risks and contributory negligence, holding the latter a defense and the former not. Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. 1912B, 797; Elk Cotton Mills v. Grant, 140 Ga. 727, 79 S. E. 836, 48 L.R.A.(N.S.) 656.
In Anderson v. C. N. Nelson Lumber Co. 67 Minn. 79, 69 N. W. 630, it was held that the failure of an employer to respond to a statutory duty to guard dangerous machinery, did not change the rule of law as to contributory negligence and assumption of risks by one working about the unguarded machinery. This holding has been followed with a suggestion that if changed it should be changed by the legislature. It has some force in the present connection. In a number of cases we have assumed that, under statutes resembling in some respects the one before us and prohibiting the employment of children in dangerous occupations, the ordinary rule as to the assumption of risks and contributory negligence prevailed, and we have discussed contributory negligence and assumption of risks as if they were effective defenses. In none of such eases was it necessary to hold that they were or were not for the verdict negatived them, nor was there such a holding. Perry v. Tozer, 90 Minn. 431, 97 N. W. 137, 101 Am. St. 416; Fitzgerald v. International F. T. Co. 104
The statute makes the forbidden employment a misdemeanor. It establishes the definite policy of the state upon one phase of child labor. The employer must not employ 'about dangerous machinery boys under 16. We hold in harmony with the holdings elsewhere that contributory negligence and assumption of risks are not defenses open to the employer.
That the child is not himself barred because of his own representation has been held often and it is the accepted doctrine. Beauchamp v. Sturgis & B. Mnfg. Co. 250 Ill. 303, 95 N. E. 204, affirmed in 231 U. S. 320, 34 Sup. Ct. 60, 58 L. ed. 245, L.R.A. 1915A, 1196; Braasch v. Michigan Stove Co. 153 Mich. 652, 118 N. W. 366, 20 L.R.A. (N.S.) 500; Sanitary Laundry Co. v. Adams, 183 Ky. 39, 208 S. W. 6; Syneszewski v. Schmidt, 153 Mich. 438, 116 N. W. 1107; Krutlies v. Bulls Head Coal Co. 249 Pa. 162, 94 Atl. 459, L.R.A. 1915F, 1082; Stetz v. F. Mayer Boot & Shoe Co. 163 Wis. 151, 156 N. W. 971, Ann. Cas. 1918B, 675; De Soto Coal M. & Dev. Co. v. Hill, 179 Ala. 186, 60 South. 583; Norman v. Virginia-Pocahontas Coal Co. 68 W. Va. 405, 69 S. E. 857, 31 L.R.A. (N.S.) 504; Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. 389; Feir v. Weil, 92 N. J. Law, 610, 106 Atl. 402; American C. & F. Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766.
And it is held that he is not barred by a representation of his parent. Glucina v. Goss Brick Co. 63 Wash. 401, 115 Pac. 843, 42 L.R.A.(N.S.) 624; Stetz v. F. Mayer Boot & Shoe Co. 163 Wis. 151, 156 N. W. 971, Ann. Cas. 1918B, 675.
The defendant contends that the parents, having misrepresented the boy’s age' and thereby having induced his hiring, the administratrix cannot for their benefit recover for his death. Their argument is not without force. It finds support in Dickinson v. Stuart Colliery Co. 71 W. Va. 325, 76 S. E. 654, 43 L.R.A.(N.S.) 335, and Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 South. 702, and indirectly in Stryk v. Mnichowicz, 167 Wis. 265, 167 N. W. 246, 1 L.R.A. 297. Naturally enough no. sympathy for their financial loss through the death of their
We hold that misrepresentations of the boy and of his father and mother that he was over 16 do not bar an action in which the father and mother are the beneficiaries.
Order affirmed. ■