171 A. 114 | Pa. Super. Ct. | 1933
Argued November 21, 1933. This appeal was taken by the defendant from a judgment in favor of a minor plaintiff in an action of trespass, for damages sustained in consequence of an injury received while operating a machine in defendant's factory; his employment by the defendant *396 being in violation of the Act of May 13, 1915, P.L. 286, known as the Child Labor Act.
It is not disputed that the boy was fifteen years old at the time of the accident; nor that the defendant company, which employed him, had not complied with the 8th section of the Act of 1915, supra, which requires, as to minors under sixteen years of age, that before they "shall be employed, permitted or suffered to work in, about or in connection with any establishment, or in any occupation, the person employing such minor shall procure and keep on file, and accessible to any attendance officer, deputy factory inspector, or other authorized inspector or officer charged with the enforcement of this act, an employment certificate as hereinafter provided, issued for said minor"; nor with section 21 of said act, which provides: "It shall be the duty of every person who shall employ any minor, under the age of sixteen years, to post and keep posted, in a conspicuous place in every establishment wherein said minor is employed, permitted or suffered to work, a printed copy of the sections of this act relating to the hours of labor, and a list or lists of all minors employed under the age of sixteen years."
Appellant contends that a violation of these sections of the Act of 1915, does not render it liable in damages to the plaintiff unless the injury was directly caused by the violation complained of, which it is alleged, did not here appear. The court below ruled that employment of the minor plaintiff, in violation of the Act of 1915, constituted negligence per se, and no other causal connection was required to permit recovery in the action. We think the decisions of the Supreme Court sustain the ruling of the lower court.
In Stehle v. Jaeger Automatic Machine Co.,
This was followed by the case of Krutlies v. Bulls Head Coal Co.,
This pronouncement of the Supreme Court was confirmed in the case of Chabot v. Pittsburgh Plate Glass Co.,
Appellant seeks to escape the force of these decisions by arguing that the Act of 1915 (P.L. 286), now in force, does not forbid the employment of minors who are fourteen years old or over, but under sixteen, as definitely as the Acts of 1909 (P.L. 283 and 375) which were construed in those cases. In our opinion the Act of 1915 puts additional conditions and limitations on the employment of minors, and requires, in order that the employment of a minor under sixteen years of age may be lawful, not only that the employer secure and file the employment certificate and post the list of minors under sixteen years of age who are working in said establishment, required by the Acts of 1909, but also that minors between fourteen and sixteen years of age shall attend school as provided in section 3, and further limits the hours and periods of labor (sec. 4). The language of the seventh section of the Act of 1909 (P.L. 283), "No minor under the age of sixteen years shall be employed in or about or for any establishment or industry named in sections three and four of this act — [the latter of which specifically permitted the employment of minors over fourteen years old in certain establishments] — unless the employer procures and keeps on file ...... the employment certificate hereinafter provided," etc., and of the third section of the Act of 1909 (P.L. 375), "No minor under the age of sixteen years shall be *401 employed in or about or for any establishment or industry named in section one of this act [coal mines or breakers], unless the employer of said minor procures and keeps on file ...... the employment certificate hereinafter provided;" is no stronger than that used in the eighth section of the Act of 1915: "Before any minor under sixteen years of age shall be employed, permitted or suffered to work in, about or in connection with any establishment, or in any occupation, the person employing such minor shall procure and keep on file ...... an employment certificate as hereinafter provided, issued for said minor." And the duty to keep posted a list of all minors employed under the age of sixteen years is just as explicit under the Act of 1915 (sec. 21) as under the Acts of 1909 (P.L. 283, sec. 7; P.L. 375, sec. 3).
The Supreme Court recognized this in the case of Pinter v. Baker,
The Act of 1915, as construed by the Supreme Court, provides:
1. That no minors under fourteen years of age shall be employed in any establishment; and any violation of this provision constitutes negligence per se: Faiola v. Calderone,
2. Minors fourteen years old and upwards but less than sixteen may be lawfully employed in occupations or establishments not forbidden as hazardous by section 5, provided only, (1) they attend school as directed by section 3; (2) do not work in excess of the hours and periods fixed by section 4 (Pinter v. Baker, supra); (3) if the employer, before they are employed or permitted to work, procures and keeps on file an employment certificate issued for said minor (sec. 8); and posts and keeps posted a printed copy of the sections of the act relating to hours of labor and a list of all minors employed under the age of sixteen years (sec. 21). Any employment in violation of these provisions constitutes negligence per se: Krutlies v. Bulls Head Coal Co., supra; Chabot v. Pittsburgh Plate Glass Co., supra; Pinter v. Baker, supra. An employer who has complied with these provisions will likewise be held guilty of negligence if he directs or permits a minor so lawfully employed to engage in work forbidden by the statute to minors of that age, and he is injured while so engaged in work: King v. Darlington Brick Mining Co.,
3. Misstatement by the minor of his age does not relieve the employer of liability: Krutlies v. Bulls Head Coal Co., supra; Hrabchak v. D. H. Co.,
4. If the employment of the minor was in violation of law and he is injured while at work, his remedy is by action of trespass; not under the Workmen's Compensation Act: Lincoln v. Nat. Tube Co.,
5. If the employment of the minor is lawful, but he is directed, or permitted, by the employer to perform work which is in violation of the statute and is injured while doing so, he may recover in trespass: King v. Darlington Brick Mining Co., supra; Johnson v. Endura Mfg. Co., supra.
There is nothing in the cases of Hess v. Union Indemnity Co.,
This disposes of the main question. The other points raised do not require extended discussion.
1. A litigant has no right to have any particular man or men on the jury or any particular set of men from whom to select the jury: Com. v. Payne,
2. The court having withdrawn the question of the defendant's negligence from the jury and ruled upon it as matter of law the colloquy between the trial judge and the defendant's witness, Hackett, who was called as a witness on the question of negligence, did the defendant no harm: Gallagher v. Hildebrand,
3. The verdict of the jury was not so large as to shock the conscience of the court. In one respect the trial judge charged more favorably to the defendant than it deserved, for it took away from the consideration of the jury the question of the loss of the minor plaintiff's earning power, and left for them only the question of pain and suffering and disfigurement. It is a question of fact for the jury, rather than one of law for the court, to decide whether the loss of the *405 first two phalanges of a finger constitutes a disability impairing one's earning power. The Workmen's Compensation Act, section 306 (c), as amended, recognizes it as a disability, and not as a disfigurement. Both the trial judge and the court below felt that the amount of damages given by the jury was not unconscionable and we find no such error, in this respect, as requires us to set the judgment aside.
The assignments of error are overruled and the judgment is affirmed.