No. 26759. | Miss. | Feb 13, 1928
Lead Opinion
The appellee was thirteen years of age at the time of his injury. When he was employed by appellant he was put to work at a planing machine, the operating part of which consisted of revolving rollers with knives bolted on them to plane lumber which was passed through the machine. Short pieces of timber were being run through this machine, and it was the duty of the appellee to receive these timbers as they came from the machine and stack them near by. The appellee had never worked *473 around machinery before, and he was injured on the third day after he was employed. At the time of the injury no timbers were being fed into the planing machine, for the reason that the foreman was endeavoring to make some adjustment of a piece of tin or screen that had been attached to the machine for the purpose of keeping shavings from flying from the machine into the faces of the employees around it. The machine was running at the time, and with his hands the appellee undertook to brush some accumulated shavings from around the rollers to which the planing knives were attached. His right hand and arm were caught by these rollers, and the arm was torn off about three inches from the shoulder.
There was some effort to show that the mother of appellee consented to his employment by the appellant, and, while the testimony does not show any express consent, it tends to show that she did not protest or endeavor to prohibit such employment. As to whether the appellee was instructed in regard to the dangers of his employment, the testimony is conflicting; but under our view of this case we do not deem it necessary to set forth the testimony upon these two points.
The appellee invokes the Child Labor Law, sections 5137 to 5145, Hemingway's 1927 Code, and the court below held that the employment of the appellee in violation of the provisions of this statute was negligence per se and was the proximate cause of the injury.
The Child Labor Law was first enacted as chapter 164, Laws of 1914, and was amended by chapter 314, Laws of 1924, the provisions of the latter act which are here material being sections 1 and 3 thereof (sections 5137 and 5139, Hemingway's 1927 Code), which read as follows:
Section 1. "That no boy or girl under the age of fourteen years shall be employed or permitted to work in any mill, cannery, workshop, factory or manufacturing establishment within this state."
Section 3. "That it shall be unlawful for any person, firm or corporation to employ, or detain, or permit to *474 work, in any mill, cannery, workshop, factory or manufacturing establishment in this state, any child under the age of sixteen years without first requiring said child to present the affidavit of the parent or guardian, or person standing in parental relation to such child. stating the place and date of the birth of such child, and also stating the last school attendance of such child, the grade of study pursued, and the name of the school and the name of the teacher in charge. The employer shall preserve such affidavit and keep a complete register of all such affidavits, showing all the facts contained therein."
Under the provisions of section 1 of this act the employment of any boy or girl under the age of fourteen years in any mill, workshop, factory, or manufacturing establishment within this state, either with or without the consent of the parent or guardian of such minor, is absolutely prohibited, while under the provisions of Section 3 of the act children over the age of fourteen and under the age of sixteen years may be lawfully employed in such plants, provided the employer shall take and preserve the affidavit of the parent or guardian of such child that is required by said section. Section 1 of this act definitely establishes an age limit under which children shall not be employed in industrial plants where they will be exposed to the danger of personal injury from the machinery used therein. It is a legislative declaration that on account of the immaturity of youth, such a child does not possess sufficient experience, discretion, and judgment to engage in work around machinery which may be inherently dangerous, or which may be dangerous to children on account of their lack of experience and judgment, and the employment of a minor under fourteen years of age, in violation of this statute, is negligence per se which will render the employer civilly liable for any injury to the child which is, in a legal sense, the proximate result of the violation of the statute, and *475 therefore within its protective purposes. There must, of course, be some causal connection between the unlawful employment and the injury to the child, but, in order that the unlawful employment may be held to be the proximate cause of the injury, it is not necessary that the injury be the proximate result of some act or omission of the minor in the discharge of the particular duty assigned to him, but the employer will be held liable if the injury resulted from the employment and was incident to any of the risks or dangers in and about the business, or inherent in its environment.
While the provisions of the said chapter 314, Laws of 1924, have not been previously construed by this court, the great weight of authority supports the view that the employment of a minor in violation of a statute absolutely prohibiting such employment is negligence per se. In volume 4, Labatt's Master and Servant, section 1571a, in discussing this question, the author used the following language:
"Having regard to the character of the facts involved in cases which involve the employment of children under the age limited by a statute, it seems clear that, whenever the injury resulted directly from exposure to the ordinary risks of the employment, the plaintiff is, at the very least, entitled to have his right of recovery determined by the jury. But in the opinion of the present writer, a court would, in such circumstances, always be warranted in holding, as a matter of law, that the illegal employment was the proximate cause of the injury. There appears to be no ground upon which it can reasonably be contended that an injury so received was not a natural and probable consequence of the tortious act. In fact, the very consideration which has led to the enactment of statutes of this description is that, in certain employments, children are so likely to be injured that it is desirable, as a matter of public policy, to prevent them entirely from engaging in those employments. In this *476 point of view the statutory prohibition may be regarded as being essentially a legislative pronouncement with regard to the question of proximate cause."
In 18 R.C.L. par. 65, p. 552, it is said that: "After some hesitation and questioning it has become the rule of the majority of courts that a violation of a statute forbidding the employment of children and subjecting the employer to a penalty is to be deemed conclusive evidence of negligence whenever such violation can be seen to have been the natural and proximate cause of an injury. In other words the violation of the statute is negligence as a matter of law, or negligence per se. . . . If the injury be received while the child is actively engaged in the performance of the duties of the employment, the unlawful employment is generally held to be the proximate cause of the injury. The fact that the injury was received while the child was doing a forbidden act or one outside the scope of his duties does not destroy the causal relation between the employment and the injury."
In 39 C.J. section 424, in discussing the effect of statutes prohibiting the employment of children of less than specified ages, it is said that "in accordance with the general rules by which a finding of negligence may be predicated upon a violation of a duty imposed by statute, the violation of such a statute by the master is negligence per se, or prima-facie evidence of negligence, or evidence of negligence for the jury," and in support of the view that such a violation is negligence per se, the author cites cases from twenty-one states; while in support of the holding that the violation of such a statute is onlyprima-facie evidence of negligence, or evidence of negligence for the jury, cases from only three states are cited.
The court below held that the minor appellee, who was employed in violation of the provisions of the statute prohibiting the employment of minors under the age of *477 fourteen years, was guilty of contributory negligence, and that under the provisions of our contributory negligence statute, section 516, Hemingway's 1927 Code, the damages recoverable should be reduced in proportion to the amount of negligence attributable to the appellee, and from this ruling of the court the appellee prosecuted a cross-appeal. This cross-appeal presents for decision the question of whether or not a minor under the age of fourteen years, who is employed in violation of a statute prohibiting such employment, is chargeable with contributory negligence.
Upon reason and authority we have reached the conclusion that a minor so employed is not chargeable with contributory negligence. The very purpose of the statute is to protect the child under fourteen years of age from the consequences of imprudence, negligence, or lack of care and caution, which on account of the immaturity of youth and the lack of experience, discretion, and judgment is characteristic of children within the prohibited age; and to hold that a child employed in violation of this statute is chargeable with contributory negligence would defeat the very purpose of the statute.
In 39 C.J., p. 906, in discussing this question, the following language is used:
"In many states, statutes have been enacted which forbid the employment of minors under a designated age and make disobedience thereof an offense. In most of these jurisdictions, where a minor hired in violation of such statute is injured in the service, the defense of contributory negligence is not open to the employer. And it is immaterial that, at the time of the injury, the child was doing work he was not authorized to perform or had in fact been forbidden to do, or that he was employed as a result of misrepresentation as to his age."
In support of the above-quoted text of Corpus Juris, cases are cited from Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky, Minnesota, Missouri, New Jersey, *478 New York, North Carolina, North Dakota, Pennsylvania, Tennessee, Texas, Virginia, and Wisconsin.
In the case of Louisville Nashville R.R. Co. v. Lyons,
"The manifest purpose of the statute, as it relates to the matter before us, was to protect the lives and limbs of children by prohibiting their employment in certain occupations that the legislature deemed dangerous or injurious to life or limb, and to save children from accidents that their own heedlessness or carelessness might bring about. This being the very purpose of the statute, if the defense of assumed risk or contributory negligence could be relied on in an action brought by the child to recover damages for injuries sustained, the object of the statute would, in a large measure, be defeated. . . . If the child is to assume the risk of danger that follows his thoughtlessness or want of care or is to be charged with negligence because his immature judgment and youthful habits caused the accident, then in many cases on the child and not the employer would be put the consequences of the unlawful act of the employer. . . .
"We therefore hold that neither the doctrine relating to assumed risk of fellow servants or contributory negligence has any place in the application of this statute. The employer takes all the risk, the child none. It is true this construction makes the employer an insurer of the safety of the child, and so he should be. The lives and limbs of children are too valuable to be sacrificed in dangerous employments, and if an employer, in violation of the statute, engages the services of a child in such an employment, he must see to it that no harm comes to him, or, if it does, he must compensate him, in so far as money can do, for the injury inflicted."
In Lenaham v. Pittston Coal Min. Co.,
"This rule is founded on the principle that, when the legislature definitely established an age limit under which children should not be employed, as it had the power to do, the intention was to declare that a child so employed did not have the mature judgment, experience and discretion necessary to engage in that dangerous kind of work. A boy employed in violation of the statute is not chargeable with contributory negligence or with having assumed the risks of employment in such occupation."
In the case of Karpeles v. Heine,
"In the case of an infant employed in violation of the direct unqualified prohibition of the statute public policy requires that a recovery for injuries received by such a child in the course of his unlawful employment shall not be defeated by the very negligence, lack of care and caution that the statute was designed to prevent and make impossible, by prohibiting the employment of such a child in such a capacity."
The reasons for the rule are very clearly stated in the case ofStehle v. Jaeger Automatic Machine Co.,
"The plaintiff is within a class of persons whom the law seeks to protect in the matter of their employment, because as a rule they are not able to adequately protect themselves. There can be no doubt that one of the chief purposes of the law in forbidding their employment in industrial establishments, was to prevent their exposure to the danger of personal injury from the machinery used therein. If the danger in their case were only such as the adult is exposed to, there would be little justification for the law. It contemplates a special danger to persons of this class in connection with such employment, because of the characteristics incident to the immaturity of youth — imprudence, lack of judgment, heedless curiosity and playfulness — and so it makes their employment unlawful. When a child has been employed in violation *480 of law and is injured in the place where he is employed, to allow the employer to escape liability because the injury resulted from the imprudence or negligence of the child, would be to defeat the purpose of the law and render it absolutely futile. It was because a child under fourteen years of age is likely to be imprudent and negligent, and is therefore exposed to greater danger to himself and others as well, that his employment in industrial establishments is forbidden. So it is never a question of risk of employment or of contributory negligence."
Without expressing any views as to whether the award of damages to the cross-appellant would be disturbed if the court below had applied the proper rule of law in assessing the same, we are of the opinion that the decree of the court below must be reversed in so far as it fixed the damages recoverable for the reason that the court improperly charged the appellee with contributory negligence.
The decree of the court below adjudging the liability of the defendant will therefore be affirmed; but, in so far as the decree fixed the amount of damages and ordered a sale of the property, the decree is reversed and the cause remanded for the assessment of damages only.
Affirmed in part, and reversed in part.
Dissenting Opinion
I go with the majority of the members of the court in holding that a violation by an employer of section 1 of the Child Labor Statute, constitutes negligence per se on the part of the employer, and where the child receives an injury while so employed, such negligence on the part of the employer is the proximate cause of the injury. But I cannot go with the majority opinion in holding further that the statute means that the child under fourteen years of age so employed is incapable of contributory negligence. In considering this question it should be borne in mind that the statute does not provide civil liability by an employer for a violation of its terms. It is a criminal statute, intended to *481
conserve the moral, mental, and physical welfare of children under the ages named therein. In order to carry out that purpose, I think the courts are justified in imposing civil liability on the employer for an injury resulting from a violation of the statute. But why go further? What sound reason is there for holding that the statute meant to declare that a child under fourteen years of age is incapable of contributory negligence? The statute does not say so, either expressly or impliedly. Under the common law, a child under fourteen years of age, of sufficient understanding and judgment, is capable of contributory negligence. When a statute undertakes to change the common law, it must either do it expressly or by necessary implication. A statute in derogation of the common law is to be strictly construed. It is to be construed in reference to the principles of the common law. It is not to be presumed that the legislature intended to make any innovation upon the common law, further than the necessity of the case absolutely required. Edwards v.Goulding,
The majority opinion, in effect, holds that the Child Labor Statute repeals, in part, the Comparative Negligence Statute, chapter 312, Laws 1920 (Hemingway's 1927 Code, section 516) which provides that all actions for personal injuries, or where such injuries have resulted in death, or for injuries to property, the fact that the person injured, or the owner of the property, or person having control over the property, may have been guilty of contributory negligence, shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.
When that statute was enacted the common-law rule in this state was that, where the negligence of the plaintiff *482
injured, or whose property was injured, proximately contributed to such injury, the plaintiff was barred from recovery therefor. The purpose of the statute was to abolish contributory negligence as a complete defense in such cases, and to provide that it should be a partial defense — that such negligence could only be used by the defendant in mitigation of damages. This statute applies, as did the common-law rule, which it modified, to any person capable of contributory negligence, whether such person be an adult or a minor. Certainly the Child Labor Statute, by its express terms, does not conflict with the Comparative Negligence Statute. This court has declared, time and time again, that the repeal of a statute by implication will be looked upon with disfavor by the courts; that where statutes are seemingly in conflict the courts will, if possible, adopt such a construction as will give effect to both; that the intention of repealing an existing statute by implication must clearly appear in the repealing act; that the two acts must be irreconcilable; that both cannot stand up together. A few of these decisions by our court are Smith v. Vicksburg,
I am unable to see any reason why the Child Labor Statute, the common-law rule that a minor capable of contributory negligence is chargeable therewith, and the Comparative Negligence Statute, may not all stand up together. There is no provision in either of them which conflicts, either expressly or impliedly, with any provision in the other.
The holding of the majority opinion is not necessary in order to accomplish the purpose of the statute. A minor of sufficient judgment and discretion to be guilty of contributory negligence, who accepts employment in *483 violation of the Child Labor Statute, thereby participates in the wrong done by the employer; morally one is as guilty of the wrong as the other. I am unable to see any difference between this class of cases and other cases of negligence on the part of defendants and contributory negligence on the part of minor plaintiffs.
It is true that 39 C.J. pp. 906 and 907, states that the rule laid down by the controlling opinion in this case is the majority rule; still, the cases in the notes to support each rule are set out, and it is rather difficult to tell from them which is the majority rule. Certain it is, though, that the notes show that the minority rule is supported by ample authority from several different states.