54 Pa. Super. 626 | Pa. Super. Ct. | 1913
Opinion by
Shortly after May 9, 1907, the plaintiff Ilko Hrabchak applied for employment to the defendant’s outside foreman, and presented a certificate in the following form:
“Mayfield, Pa., May 9, 1907.
“Personally appeared before me the subscriber Mike Rapcak and while under oath declares and swears that his son Alek Rapcak is 14 yrs. old.
his
Mike x Rapcak.
mark
Sworn and subscribed before me
(seal) Samuel Mendleson, J. P.
Justice of the Peace,
Commission expires first Monday, May, 1910.’-’
The foreman put the boy at work picking slate, but about fifteen months later, without further inquiry or proof as to his age, took him from the slate picking part of the breaker and, to quote the boy’s testimony, “He told me I should go to run the slush engine and oil it and clean it, and he would give me an extra hour; he sent me up there to run the engine.” ■ About six weeks later, while with one hand oiling the engine in motion, and with the other hand cleaning it, two of his fingers were caught in the cogs and cut off. He admitted on the witness stand that he was given the extra hour to clean the engine after it had stopped for the day, and that he was told by the foreman not to oil it while it was in motion. According to the testimony adduced by the plaintiff, he was born July 26, 1894, and, therefore, he was twelve years and nine months old when he was first employed, and between fourteen and fifteen years old when he was put at work running the engine and when he was injured. It will be noticed that the affidavit stated that he was fourteen years old, that is, on May 9, 1907. Rut the boy’s father testified that he told the
Section 8, art. V, of the Act of June 2, 1891, P. L. 176, commonly known as the Anthracite Mine Law, provides as follows: “No person under fifteen years of age shall be appointed to oil the machinery, and no person shall oil dangerous parts of such machinery while it is in motion.” In Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, wherein this section of the act was under construction, it was held that the legislature, under its police power, may fix an age limit below which boys shall not be employed, and when that age limit is so fixed an employer who violates the act by engaging a boy under the statutory age, does so at his own risk, and if the boy is injured while engaged in the performance of the prohibited duties for which he was employed, his employer will be liable in damages for injuries thus sustained. In the later case of Stehle v. Jaeger Auto. Machine Co., 220 Pa. 617, s. c., 225 Pa. 348, wherein the Act of May 2, 1905, P. L. 352, was under construction, the same general principle was
The other ground upon which the defendant relies to defeat the action is, in effect, that it was entitled to rely on the affidavit which the boy produced when he was first employed. The statutory provision bearing upon this contention is contained in sec. 2, art. IX, of the Act of June 2, 1891, P. L. 176, and reads as follows: “When an employer is in doubt as to the age of any boy or youth applying for employment in or about a mine or colliery, he shall demand and receive proof of the said lawful employment age of such boy or youth, by certificate from the parent or guardian, before said boy or youth shall be employed.” Passing the technical objection that the paper was not in form a certificate, and overlooking the fact that it was not presented at the time the plaintiff was put at the prohibited employment, the serious objection remains, that what purported to be the affidavit of the boy’s father was not his affidavit, if his testimony be believed, and was not obtained from him directly or indirectly. In the face of this testimony the court would not have been justified in giving the jury binding direction that the defendant had complied with the law by demanding and receiving proof of the lawful employment age of the boy by certificate from his parent.
But it is urged that the relation of master and servant having been induced by the act of the boy in offering an affidavit purporting to have been made by his father, he must be considered in law as of the age which the affidavit stated he was, and the common-law rule of negligence applies. We find nothing in the statute to sustain this proposition. If it can be sustained at all, it must be on the ground of estoppel in pais. But we fail to see how the father, who did not make the affidavit, or certificate, who did not present it, or assent to
The judgment is affirmed.