Larson v. Berquist

34 Kan. 334 | Kan. | 1885

The opinion of the court was delivered by

Johnston, J.:

This action was brought to recover damages for the alleged willful negligence and misconduct of the defendants toward the plaintiff’s minor child while she was in the service of the defendants. The question raised by the defendants’ demurrer, and the only one presented for our determination, is, whether the plaintiff in his petition states a cause of action against the defendants. It is conceded that the parent is entitled to indemnity for wrongful injury to his minor child where a loss of service results from such injury. In such a case the loss of service is the gist of the action, and where there is no injury in that respect, no recovery can be had. It is alleged that the plaintiff’s daughter was a minor child of tender years, and was employed for a period of two years as a house servant to perform such service as was suitable for a person of her years and strength. As compensation she was to receive board and clothing for the first eighteen months of the term of service, and during the last six months of the term she was to be paid, in lieu of clothing $1.25 per week. In such a case it was the duty, and there was an obligation upon the defendants, implied by the law as an incident to the contract, to treat the plaintiff’s daughter humanely and reasonably. They were bound to exercise ordinary care and diligence to protect her from injury in the course of the employment, and their failure in that respect will make them responsible in damages. A higher degree of care and a greater precaution is required of the master where the servant is an infant, and has not yet reached the years of judgment and discretion, than in a case where the servant is an adult person of ordinary intelligence and judgment. (Robinson v. Cone, 22 Vt. 213; Rauch v. Lloyd & Hill, 31 Pa. St. 358; Coombs v. New Bedford Cordage Co., 102 Mass. 572; O’Connor v. Adams, 120 id. 427; Smith v. O’Connor, 12 Wright, 218; Hill v. Gust, 55 Ind. 45; Sullivan v. India Mfg. Co., 113 Mass. 396; East Saginaw City Rly. Co. v. Bohn, 27 Mich. 503; Cooley on Torts, 553, and cited cases.)

It is stated in the petition that the plaintiff’s daughter was an inexperienced girl of tender years, and that during the employment her menses began, causing her great pain and sickness; that after gaining her confidence the defendants took advantage of her weakness, youth and inexperience, and in order that she might continue in their service and perform a great and unusual amount of labor for them, they negligently, willfully and wickedly advised her that menstruation was a dangerous disease, likely to cause insanity and death, and that the best and only known remedy therefor was hard and unremitting labor. It is alleged further, that by reason of these representations and the influence wrongfully exerted upon her by the defendants, she was exposed to danger and hardship, made to do work for them far beyond her strength, and that they compelled her to perform the labor of two persons, by reason of which she became very sick, was permanently crippled and disabled, and ever since that time her father has been not only deprived of her assistance and service, but has been required to expend for necessary care, nursing and medical attendance, the sum of $500.

, , ot-1'iictiouoause stated.

vunt-duty of employers. If the facts are as recited in the petition, they show that the defendants not only failed in their duty, but were grossly negligent of the plaintiff’s daughter. Their conduct toward her was wanton and cruel in the extreme, for the consequence of which, if there is no concurrent negligence of the plaintiff, the defendants are answerable. By the strongest principles of morality and good faith, they should have given her reasonable care and honest counsel. At no period of her life was such care more important or necessary. She was a motherless girl of tender years, who relied, as the defendants knew, upon their ad vice. For the purposes of gain they misused her confidence, took advantage of her immaturity and her lack of discretion and judgment, and directly caused and compelled her to do that which resulted in great and permanent injury to herself, and a consequent loss to her father. It is said by the defendants that she was under no obligation to perform labor beyond her strength, and might have declined the service exacted, under the requirements of the contract; and also that she had no right to rely upon misrepresentations of the defendants, as she had equal means of information with them. This would be true if the person injured had been an adult of ordinary prudence and discretion; but as we have seen, a different rule applies in the case of a child of tender years, who is unable to appreciate the dangers to which she would be subjected in performing the service required of J ° 1 her. It is said that the petition does not state the age of the plaintiff’s minor child, and that there is nothing to show that she had not the intelligence and judgment of an adult. In this respect the petition is somewhat faulty; but if they desire to assail the petition upon the ground of indefiniteness and uncertainty, it should be done by a motion instead of a demurrer. While the exact age of the plaintiff’s daughter is not stated, enough is alleged to make it appear that she was immature and did not have the capacity and discretion to understand her condition and the dangers of the extraordinary service which the defendants wrongfully induced her to perform. Besides, it is averred in express terms that she was a delicate, inexperienced girl of tender years. She was therefore not bound to the same rule of care and diligence in avoiding the consequence of the defendants’ neglect that would be required of adult persons of ordinary intelligence and discretion. If it should appear upon the trial, as is now claimed by counsel for defendants, that no willful wrong was done by defendants, and that the girl was of sufficient age and capacity to understand the dangers incurred by her in doing the work directed to be done, and that she neglected the duty of self-protection, no recovery could be had by the plaintiff, as the negligence of the girl would be Imputed to the father; and if the father consented to the wrongful action of the defendants, or in any way cooperated in producing the injury, it would defeat a recovery in his favor. However, these are matters of defense which do not appear upon the face of the petition, and therefore need no consideration now.

We are of opinion that the court erred in sustaining the demurrer. Its judgment will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.