Green v. Appleton Woolen Mills

| Wis. | Jan 11, 1916

BaRnes, J.

The appellant argues that the judgment is erroneous (1) because no guardian ad litem was properly appointed; (2) because the case falls within the Workmen's Compensation Act; (3) because so much of sub. 2, sec. 1728a, Stats. 1911 (ch. 479, Laws 1911), as prohibited the employment of minors under the age of sixteen years in operating carding machines is void as to defendant, in that it impaired the obligation of a contract; (4) because such portion of said act denies due process of law, in that it is arbitrary and not the result of a legitimate exercise of the police power, and is therefore void; (5) because defendant was not permitted to offer evidence to show that carding machines like the one iu question were not dangerous; (6) because the special verdict is incomplete, in that it fails to find negligence, proximate cause, or that the machine was a dangerous one, or one on which a minor under the age of sixteen years might not be employed under the statute; (7) because the court erred in charging the jury; and (8) because the damages are excessive.

The guardian ad litem was appointed by the county court,, and it is claimed that under sec. 2613, Stats., the appointment should have been made by the court or a judge of- the-court in which the action was to be prosecuted. On objection being made on the trial, the circuit court named the appointee of the'county court as guardian and ordered the trial to proceed.

Sec. 2613 provides that the guardian may be appointed by the court in which the action is prosecuted or by a judge thereof. It does not require that a guardian must be so appointed. But if there was any irregularity about the appointment it did not affect the cause of action, but amounted to a disability to bring it, and the court clearly had the right, to appoint a guardian on the trial and proceed to try the action. Hepp v. Huefner, 61 Wis. 148" court="Wis." date_filed="1884-10-14" href="https://app.midpage.ai/document/hepp-v-huefner-6604477?utm_source=webapp" opinion_id="6604477">61 Wis. 148, 20 N. W. 923; Sabine v. Fisher, 37 Wis. 376" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/sabine-v-fisher-6601779?utm_source=webapp" opinion_id="6601779">37 Wis. 376; Redlin v. Wagner, 160 Wis. 447" court="Wis." date_filed="1915-04-13" href="https://app.midpage.ai/document/redlin-v-wagner-8191720?utm_source=webapp" opinion_id="8191720">160 Wis. 447, 152 N. W. 160; Hafern v. Davis, 10 Wis. 501" court="Wis." date_filed="1860-02-07" href="https://app.midpage.ai/document/hafern-v-davis-6597988?utm_source=webapp" opinion_id="6597988">10 Wis. 501; Smith v. Peckham, 39 Wis. 414" court="Wis." date_filed="1876-01-15" href="https://app.midpage.ai/document/smith-v-peckham-6601996?utm_source=webapp" opinion_id="6601996">39 Wis. 414, 418; Webber v. Ward, 94 Wis. 605" court="Wis." date_filed="1896-12-15" href="https://app.midpage.ai/document/webber-v-ward-8185379?utm_source=webapp" opinion_id="8185379">94 Wis. 605, 69 N.W. 349" court="Wis." date_filed="1896-12-15" href="https://app.midpage.ai/document/collins-v-corwith-8185362?utm_source=webapp" opinion_id="8185362">69 N. W. 349.

On October 2, 1911, the defendant elected to come under-the provisions of the Workmen’s Compensation Act. The accident happened on the day following. The plaintiff had not exercised his right of election. It is obvious that the act did not apply to him, because his contract of employment was made before the employer became subject to the terms of the-act, and the thirty days within which he might make an election under sub. (2) of sec. 2394 — 8 had not expired when he was injured.

We shall spend little time in discussing the constitutional questions. The right of the legislature to prohibit the employment of minors around dangerous machinery, who have-not reached the age of sound discretion, is recognized by the courts generally, if not universally. It has been recognized by this court at all times and in numerous cases. Primarily it is for the legislature to say when the youthful mind and judgment become sufficiently mature so that a minor may properly be permitted to engage in a hazardous occupation. The limit here has been fixed at the age of sixteen, and the lawmaking power was acting clearly within its discretion in placing it there. So, too, the legislature were justified in putting a machine having live rolls into which the hands of the operator might be drawn, such as the carding machine in •question, on the prohibited list, and the court properly rejected testimony tending to show that the machine was not dangerous. The fact of injury would seem, in a measure at least, to demonstrate the necessity for and wisdom of the law. Perhaps as many cases of injuries caused by live rolls have ■come before this court as can be charged up to any other one •cause, and in many of the cases the argument has been advanced in good faith that the machine was absolutely safe. If the statute had simply forbidden, the employment of the minor at a dangerous machine, the question whether the machine was dangerous would ordinarily be for the jury. But legislators, bringing to bear their knowledge and experience, may very properly place machines having power-driven rolls so located that the operator may get caught in a class of machines which those under sixteen years of age may not operate.

We do not find any evidence that the contract of employment was for any definite period of time, and hence do not see where the matter of violating any contract arises. The extent to which a minor may bind himself by contract is peculiarly within the field of legislative discretion. If the contract was made before the 1911 law was passed and extended beyond the time of the accident, the legislature might in the legitimate exercise of the police power abrogate it. Manitowoc v. Manitowoc & N. T. Co. 145 Wis. 13" court="Wis." date_filed="1911-01-31" href="https://app.midpage.ai/document/city-of-manitowoc-v-manitowoc--northern-traction-co-8190108?utm_source=webapp" opinion_id="8190108">145 Wis. 13, 129 N.W. 925" court="N.D." date_filed="1910-10-21" href="https://app.midpage.ai/document/state-ex-rel-kramer-v-kiefer-6736469?utm_source=webapp" opinion_id="6736469">129 N. W. 925.

The only question the jury was asked to pass npon was the. amount of damages. This was right. Under our former decisions defendant was liable because it violated the statute, and contributory negligence on the part of the plaintiff would not defeat his action. It is obvious that if plaintiff had not. been employed on the machine he would not have been hurt while operating it; so there was no issue raised on proximate cause. Pinoza v. Northern C. Co. 152 Wis. 473" court="Wis." date_filed="1913-02-18" href="https://app.midpage.ai/document/pinoza-v-northern-chair-co-8190860?utm_source=webapp" opinion_id="8190860">152 Wis. 473, 140 N. W. 84; Kowalski v. American C. Co. 160 Wis. 341" court="Wis." date_filed="1915-03-23" href="https://app.midpage.ai/document/kowalski-v-american-candy-co-8191705?utm_source=webapp" opinion_id="8191705">160 Wis. 341, 151 N. W. 805; Sharon v. Winnebago F. M. Co. 141 Wis. 185, 124 N. W. 299.

1 Four sentences found in the charge are excepted to and error is assigned as to each of them. The charge read as a whole was fair and correct and was not at all calculated to mislead the jury or to prejudice the defendant. It would serve no useful purpose to discuss these assignments of error in detail.

The damages assessed are high. The injury, however,, was severe, and inasmuch as the trial court did not see fit to reduce the damages we cannot say that they are excessive to the extent that this court should interfere.

Complaint is also made about the offer in evidence of a photograph and the remarks of plaintiff’s counsel in arguing the case to the jury. The photograph is not in the record, and, as we understand it, was withdrawn from evidence without having been shown to the jury. In any event there is no showing that defendant’s rights were prejudiced by what transpired in reference to the photograph. Counsel for plaintiff do not seem to have gone outside of the usual latitude permitted in arguing cases to juries.

By the Court. — Judgment affirmed.