68 W. Va. 405 | W. Va. | 1910
Lead Opinion
By the statute law of this State it is provided: “No boy under fourteen years of age * * * * * * *■ shall be permitted to work in any coal mine, and in all cases of doubt, the parents or guardians of such boys shall furnish affidavits of their ages.” Code, Supplement 1909, chaper 1511, section 17. Following this inhibition, punishment by fine or imprisonment is prescribed to be imposed upon any operator, agent or mine foreman who shall be convicted of knowingly violating the mandate. This statute is enforceable as a criminal or penal one. Its terms prescribe no other liability for its violation than fine or imprisonment. The ease which we are now to consider involves the applicability of this statute to a suit for damages arising from an injury alleged to have been caused by its violation.
Many and varied are the views that have been expressed as to the consideration of evidence in regard to violation of a statute in cases like the one at hand. It is not our purpose to cite and review the' decisions on the subject. In explanation of the state of judicial holding in this behalf, it suffices to quote from two well known texts: “Upon this subject one idea is, that the hiring of a boy under twelve years of age in violation of a statute declaring it to be a misdemeanor, constitutes negli-' gence per se, such as will render’the employer liable for injuries suffered in consequence of and in the course of the employment. Another view is, that to employ a child in violation of such a statute to operate a dangerous machine is evidence of negligence in case the child is injured while so working, because the statute indicates that such children are unfit by reason of their immaturity and indiscretion to be so employed. But the view which more nearly comports with juridical analogies is, that such an unlawful employment of a' child does not per se~ constitute negligence which will render the employer liable for
The point is one of first instance with us. We adopt the view that seems consonant with reason. Briefly stated, it is this: The violation of the statute is actionable negligence whenever that violation is the natural and proximate cause of an injury. The true question to be determined in an action based upon a
The statute does not provide that an employer shall respond in damages for all injuries sustained by a boy under fourteen years through employment in a coal mine. It merely provides that the employer shall be guilty of a misdemeanor and punished therefor. While the boy may have a civil remedy for injury sustained in the unlawful employment and resort to the violation of tbis statute for evidence of the negligence which caused the injury, still the statute does not say, or even imply, that the employer shall respond in damages other than those given by tbe common law. Tbe statute does not put an absolute liability on him for civil damages. It puts no liability on him in that regard. But it may be shown that be is liable for damages at the common law for an injury sustained by reason of its violation. So as a matter of law it cannot be said that the employer is chargeable in damages with all injuries that result. The evidence must prove that he is chargeable — that the injury indeed proceeded from tbe unlawful employment,
But the doctrines in relation to assumption of risk and of fellow servaney do not apply, if the evidence establishes that the statute against employment of boys in mines lias been violated. If the employment of a boy in a mine is unlawful, be cannot be held to have assumed the risks incident to the employment, among which are those proceeding from the acts of. fellow servants. Assumpjtion of risk must stand upon the contract of employment, whether tbe risks assumed are viewed as
The doctrine of contributory negligence, however, is not based upon contract of employment, and is open as a defense in cases like this one. How far that defense may apply in view of the consequences to be anticipated from a violation of the statute, and in consideration of the proximate cause of the injury, is a question to be particularly discriminated in any trial in which the defense is raised in such case as the one before us. In this connection, an excellent authority says: “Where the negligent act of defendant naturally induced or afforded opportunity for the subsequent act of a child, such act being of a character common to youthful indiscretion, and which, concurring with defendant’s earlier wrongful act produced the injuries complained of, the defendant will, in general, be held liable. Children, wherever they go, must be expected to act upon childish instincts and impulses, a fact 'which all persons who are sui juris must consider and take precautions accordingly. A person who places in the hands of a child an article of a dangerous character and one likely to do injury to the. child itself or to others, is liable in damages for any injury resulting which is a natural result of the original wrong, though there may be an intervening agency between the defendant’s act and the injury.” Watson on Damages for Personal Injuries, section 111.
The statute was made to prevent a class of immature youths from subjecting themselves to dangers which they presumably do not have the capacity to appreciate. Thus -it was made to prevent injury to them by their own contributing negligence through the curiosity, indiscretion, or heedlessness that naturally belongs to their age. That contributing negligence from incapacity to appreciate danger and from childish inclination is a natural result of the violation of the statute, and the employer is bound to anticipate it; Therefore, if he disobeys the law, he is chargeable with the results which he should have anticipated,
Let us assume that an employer has knowledge of the fact that a boy has unusual capacity and appreciation of danger— that he is beyond the class of his age. If the employer hires the boy and puts him to work, he.unquestionably subjects himself to conviction for a misdemeanor. The statute so subjects him
In most eases, it is for the jury to say whether the boy contributed to his injury by the immaturity, indiscretion and heedlessness belonging to his age, which contributing to his injury the employer should anticipate as a natural consequence of unlawfully employing him, or 'whether he possessed such unusual capacity and appreciation of danger, or so wilfully contributed to his own injury, as to have done that which was hot an anticipated consequence of the unlawful employment.
Some of the decisions hold that under no. circumstances can contributory negligence avail in a case like the one at hand. But the weight of authority is the other way, and, to our minds, consistent with legal principles. The statute does not- in .words abrogate the defense. A civil action does not get its force from that statute. It only looks to the violation of the statute for evidence to support the action. Why shall not common law principles apply? Bishop on Non-contract law, section 140, and smpra; 20 Am. & Eng. Enc. Law 151; Watson on Personal Injuries, section 267;’ Queen v. Dayton Coal & Iron Co., 95 Tenn. 458; Rolin v. Tobacco Co., 114 N. C. 300; Sterling v. Union Carbide Co., 142 Mich. 284; and other cases.
Though the boy may have misrepresented his age, still he may recover if he makes a case. He is not precluded from the action
The employer must ascertain the age of the boy. He must not be negligent in this particular. Unless he actually knows the age so that he may safely rely on the fact before a jury, he must do what the statute directs — he must secure the affidavit of the parent or guardian. The statute requires him to get this affidavit “in all cases of doubt.” If there is not certainty there must be doubt. If he does not actually know the age so that he may safely rely on the knowledge he has obtained in that regard, he is only uncertainly informed and it is a case of doubt. We think the statute virtually says that the employer must clear up all 'uncertainty that exists by securing the affidavit. Only that affidavit or absolute proof that the boy is over fourteen years will protect him. He “knowingly” violates the statute when he does not settle all doubt in advance of the employment. Representations, appearances, and good faith cannot take the place of the affidavit or unfailing proof which the statute requires. The . purpose of the act, and the very spirit 'which it discloses through its words, sanction this construction.
How, when we view the case in the light of the principles announced, we observe the verdict and judgment to be fully justified. The pleadings and evidence warrant the recovery of damages for an injury caused by the act of the defendant in unlawfully employing plaintiff in a coal mine. That injury was the loss of a leg, for which the jury awarded $1500. There is' evidence supporting a finding that the plaintiff 'was under the age of fourteen years, and that the injury was a natural and probable consequence of his unlawful employment. The happening by which the injury came to plaintiff was one which the employer must have reasonably anticipated would follow the employment of a person so immature. The evidence does, not take the boy out of the class for the benefit of which the statute was enacted. It does not raise his capacity over that generally presumed. Ho affidavit of the boy’s age- was sought or furnished. It is plainly shown that the defendant’s agent even doubted the boys statement as to his age. Defendant cannot, as it undertakes to do, rely on evidence of the boy’s mis
Affirmed.
Concurrence Opinion
(concurring):
This being the first case in this state involving this statute, I am insistent that it be given a construction such as 'will answer the design of the Legislature. To employ a minor in a coal mine is a wrongful act. This statute was enacted to save the lives of children; it was made for the benefit of children. The act being wrongful, action lies. Can it be defeated by the contributory negligence of the child? I assert, as the New York court asserted, that the statute shows that the Legislature “declares that a child under the age specified presumably does not possess the judgment, discretion, care and caution necessary for engagement in such a dangerous vocation, and is .therefore not, as a matter of law, chargeable with contributory negligence”. Marino v. Lehmaier, 173 N. Y. 534. But if held capable of contributory negligence, it is only because he possesses judgment, discretion, care and caution, whereas the Legislature has declared that he does not possess these capacities. You thus make him capable,, when the statute says he is not. That construction opens the door to evidence upon his capacity, when the statute closes it by fixing a certain age as one of incompetency. That éonstruction would greatly deprive the statute of effect to protect children. While the whole country is crying out against the employment of children in coal mines, and our state has yielded to the strength of this cry, we are asked to emasculate its act and defeat its purpose. “The object of the statute was to entirely prevent the employment of children under the age of fourteen in the occupations named, and it should be given a construction that will effectuate that'purpose.” American Co. v. Armentrout, 214 Ill. 509. If the boy had not been in the mine, he would not have been hurt, and if he had not been employed, he would not have been in the mine to be hurt or to be guilty of contribu-' tory negligence.
After writing the above I find the late case of Stehle v. Jaeger Co., 225 Pa. St. 348, is a well considered one. The boy was cleaning a pipe outside his -duty, when he had been warned against it. The court held, “In such a case the proximate cause of the injury was the employment of the boy in violation of the act. It is because a child under fourteen years of age is likely to be imprudent and negligent, and is therefore exposed' to greater clangers 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.” The court said that it was not dealing with an adult; that the statute “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 emplojunent unlawful. When a child has been employed in violation 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 is 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 indusftrial establishments is forbidden. So it is never a question of risk of employment or of contributory negligence.” The statute was made to save all boys, competent or incompetent. Inquiry as to capacity is irrelevant. As Judge Cox said in Bare v. Goal Company, 61 W. Va. 33, the statute had no bearing on that case, the boy being over twelve, the age of competenc}*' under the Code before the change to fourteen by Acts 1907, chapter 78. The principles of the Bare Case do not apply to this ease.
Concurrence Opinion
(concurring):
Seeing no error in the rulings of the trial court, I concur in the decision and in the substance of what is said in the opinion of President EobiNSON, concerning the effect of violation of the statute. It seems to me, however, there is no warrant in the statute for the restricted view, that it was intended merely to protect certain classes of individuals from personal injury. ITnlike a great many other similar statutes, the considerations and policy which induced this enactment are not stated. Mining is not declared a pursuit or occupation, peculiarly dangerous to females and children under 14 years of age. There are many other vocations equally dangerous. One of the purposes may have been protection against injury to persons of immature judgment and discretion, but it seems to me that, in view of our knowledge of the grounds upon ’which such legislation is usually demanded, we might well say the policy of the legislature was rather to prevent children and mothers, or those who may become mothers, from following an occupation, which, on account of its peculiarities, including impure air, exclusion from light and weight of the burden upon the physical nature, tends to the deterioration of the race, neglect of care of infants and demoralization likely to result from association of men and women under such conditions. This broad view of the purposes and objects of the statute reinforce and emphasizes, in my opinion, the conclusion that the legislature did not intend to impose absolute civil liability upon the employer for violation of the statute.
I do not agree that, under this statute, employers must either obtain the affidavits of the parents or guardians of boys to the effect that they are 14 years of age or over, or decide the question for themselves at their peril. There is not a word in the statute which says no evidence other than such affidavit may be considered by the employer. On the contrary, its language imports that he may consider other evidence and satisfy himself beyond doubt that the boy is 14 years of age. He is not required to obtain such an affidavit unless he is in doubt. If he has no doubt, this requirement does not apply. What is a doubt? It is an unsettled state of mind. It is not the question upon which the mind deliberates, ’weighing the evidence pro and con.
On this subject, as 'well as the extent of civil liability for violation of the statute, I am disinclined to add anything to its terms. When the legislature has signified its intention, by some statute, to establish a certain line of public policy, courts are often, indeed almost always, called upon to extend that policy, in various ways, so as to include things not expressed by the legislature at all, either as acts forbidden, duties imposed, or measures of enforcement. It is competent for the legislature to define the extent to which it will pursue any given line of public polic3r, and when it has declared that extent, I find no warrant in the law for any addition thereto by the courts. It is likewise competent for the legislature to determine and prescribe such measures or methods as it sees fit, within the constitutional limitations, for the enforcement of its' policy, when it has been declared; and, finding that certain measures or methods, and no others, have been adopted and prescribed, it seems to me the courts ought to presume that no others were intended. Expressio wiwus esb exclusio adterius. Failure to apply this maxim, in such cases, leads to a course of judicial legislation, which might find support in precedents, but none in sound reason or well settled law. I think it safest and best, as well as more consistent with law, to let the legislature declare its own will and purpose.
None of the rulings of the trial court, concerning the duty of inquiry as to age, are at variance with the views I have expressed. Several instructions, offered by the defendant, were refused, but none of them were in proper form.
In the case of Burke v. Big Sandy C. & C. Co., decided simultaneously with this one, some instructions, intended to enforce the principles I have stated, were refused, but another equivalent in effect was given.
Concurrence Opinion
(concurring):
I concur in the affirmance of the judgment, but I dissent ■
I concur in the views expressed in the note by Judge BRAN-nof, and, in addition to the authorities cited by him, I cite the following which hold that contributory negligence in such a case is no defense: Marquette &c. Coal Co. v. Dielie, 110 Ill. App., which is affirmed'in 208 Ill. 116; Odin Coal Co. v. Denman, 185 Ill. 413; Centerville Coal Co. v. Abbott, 181 Ill. 495; Starnes v. Mfg. Co., (N. C.) 61 S. E. 525; Lenahan v. Coal Mining Co., 218 Pa. St. 311.