90 Ala. 13 | Ala. | 1890
If the employment of the plaintiff’s minor son by the defendant was against the will of the former, his rights would thereby be made to appear in a more favorable light. The complaint alleges the employment, and is silent as to whether it was with or without the father’s consent. In this absence of averment, a familiar rule of pleading requires us, construing the complaint most strongly against the plaintiff, to hold that the contract of service was entered into by the son with the consent of the father. Moreover, the averment is that the defendant employed the minor. This, without-more, implies a legal employment, involving the parent’s con-, sent. Similarly the complaint is silent as to the age of the sou, further than that he was a minor. Hence it does not appear but that he was over the age of fourteen years, from and! after which period the prima facie presumption that he was capable of the exercise of judgment and discretion is indulged'..' Had he been under that age, the opposite presumption would be indulged, and might have had an important bearing, favor-. able to the plaintiff, on the claim for damages he now asserts. Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371. The proper observance of the rule adverted to above, imposes on us the duty of reading the complaint as if it had averred the minor to be over the age of fourteen, as, had the fact been otherwise, we must assume it would have been so laid.—City Council v. Hughes, 65 Ala. 201.
The case presented, therefore, by the complaint involves a contract, to which the father assented, made by the defendant with a minor “of sufficient discretion to comprehend and guard against the dangers of the employment, when fully explained to him.” The authorities are uniform at common law to the
Thus the question stands and is settled at the common law. Has the doctrine been modified by statutes in this State? Appellant insists that it has. Section 2588 of the Code is relied on, of its own force, and also in connection with what is known as the “Employés’ Act,” now constituting sections 2590 to 2593 of the Code, as authorizing a recovery by the father for injuries resulting in the death of his minor son, occasioned by the negligence of fellow-servants in an employment such as the complaint discloses. It is unnecessary, we think, to go into an exhaustive history of this legislation, to arrive at a just interpretation of it. A brief resume Avill suffice. At common law, and under our statutes prior to the passage of the act of January 29,1885, the father, in no case, had a right of action for the killing of his child — a former attempt by the legislature to give him the right having aborted by reason of the unconstitutionality of the act passed to that end. Just prior to that attempt, the act “to prevent homicides” had been enacted, giving to the personal representative of any person, whose death was caused by the wrongful act or omission of another,, a right of action for the recovery of damages in all cases in which the deceased, had the injury fallen short of death, could have recovered. This act — now § 2589 of the Code — applied as well to infants as adults. But it did not, and does not, create any right of action in the father or mother. Conceiving, doubtless, that the parents of minors were entitled to their services absolutely during minority, and hence had a more direct and tangible interest in their lives than that to be sub-served by a distribution of their estates, the General Assembly attempted in 1872, and again with success in 1885, to allow the parents or personal representative to sue for a wrongful act causing the death of a minor. — Acts 1884-5, p. 99; Code, § 2588. The sole purpose and effect of this statute was to extend the right of action already lodged in the personal representative to the father, and, in certain contingencies, to the mother. Its reference to the personal representative was
So much for section 2588 of the Code. Under it, neither the minor living, nor, death having ensued from the injury complained of, his father, can recover for an injury occasioned, by his co-employé, in a service lor which he has contracted with the father’s consent. Does the “Employés’ Act,” Code, §§ 2590-2593, authorize the father to sue under such circumstances ? The question must be determined on the terms of that act itself, and without reference to section 2588 of the Code, or any other statute. It relates to a class of cases in which before no cause of action existed — to a class of injuries the damages for which, at common law, and under our statutes, had been bartered away before they accrued. The statute was one of enlargement purely. No existing right was curtailed, limited, or taken away. The only limitations in the act were upon causes of action created by the act-, and having
A critical examination of the complaint demonstrates, that each of its four counts is framed under the “Employés’ Act,” and seeks to recover for the negligence of fellow-servants of plaintiff’s minor son. The first count, in its averment with respect to the failure of the defendant to provide a sufficient number of brakemen, &c., appears at a casual view to charge negligence on the part of the defendant; but a closer reading develops the absence of any averments that the injury was caused by this failure to provide the requisite number of brakemen.
The demurrers, which were based on the theory that the suit could only be prosecuted by the personal representative, were properly sustained, and the judgment of the City Court is affirmed.