Soldanels v. Missouri Pacific Railroad

23 Mo. App. 516 | Mo. Ct. App. | 1886

Philips, P. J.

I. Defendant insists that its demurrer to the evidence should have been sustained. We hold otherwise.

The answer, in effect, admits the employment by defendant of the plaintiff ’ s son. The evidence is uncontradicted that he was-a minor at the time. Martin, who made the contract of employment, must have known of this fact. The boy had only a short time prior to this last employment been discharged from defendant’s service because he was a minor. Plaintiff had notified Martin of his wish that the. boy should not go on the railroad, that he wished him to go to school. Martin, having charge of the railroad yard, with power to employ and discharge employes therein, is to be regarded, in this action, as a vice principal. Moore v. Railroad, 85 Mo. 588. Martin was not even put on the witness stand to contradict any of these statements.

The general rule of law is, that a person hires a minor at his peril.. “ It is his duty to ascertain the legal status of the child, and if he neglects to do so, the fault, as well as the consequence, is his own.” Wood on Master and Servant, section 14.

The plaintiff’s evidence, if credited by the jury, was that he did not know his son was- at work in the yard at the time of the accident, that he supposed’ he was attending school. And even if he had known for the short period, or a part of it, intervening between the first and eighteenth days of October, that the boy was at work there, in view of plaintiff’s express wishes, made known to the very agent who employed the boy, we discover no affirmative act of the plaintiff which would create any estoppel against his right to maintain an action for any loss, recognized by the law, resulting from this contumacious act' of the agent of defendant. Nor can we accede to the proposition insisted on by counsel, that plaintiff had practically emancipated his son, and, therefore, as the action is to be viewed practically, as one per quod, servitium amis it, the plaintiff ■ought not to recover.

Waiving any discussion as to whether the facts and circumstances in evidence touching the employment of the minor on the railroad prior to October, 1883, justified the inference of an implied emancipation, we can discover no proper foundation for such position at the time of the employment in question.

The consent of a parent that his minor child may work and receive pay for himself or herself is but a ’license, an indulgence from the parent, revocable at will by the parent as between him and the child. It is only where the implied emancipation has been acted upon by some third party dealing with the child, in good faith, that the parent will be estopped to assert his customary right against such third person. Schouler Dom. Rel., sect. 267 ; Everett v. Sherpy, 1 Iowa, 356.

Knowing as Martin did the father’s wishes, in connection with the fact that the boy had been discharged from defendant’s employ on account of his minority, he had no right to rely upon an implied emancipation predicated upon anterior occurrences. He took the boy at his peril, and the legal effect of defendant ’ s conduct is little distinguishable, on principle, from that of one who harbors knowingly an absconding child. Taking the minor under such circumstances, and putting him to a hazardous work, the defendant should be held, in favor of the non-assenting parent, to the strictest accountability for all the consequences, resulting in loss of the services of the minor to the parent, following directly from such employment. The plaintiff could have recovered the value of the service of the boy from defendant, although.it had previously paid the boy under its contract with him. Wood Master and Servant, sect. -14.

It should logically follow that when, as a result of such hazardous employment against the known wishes of the father, he is deprived of the permanent, or partial, services of his child during the remainder of his minority, he ought to be compensated therefor by the-wrongdoer. In such action I much question whether the want of due care and j udgment on the part of the minor, such as would preclude him from recovering for the personal injury, should apply against the parent.

The parent ’ s loss would not have occurred but for the wrong of defendant in putting the boy, against his express wish, to such dangerous service. The case of Frost v. Union Pacific Railroad (2 Dillon, 258), gives strong color to this suggestion. It did not appear in that case, as it does in this, that the minor was taken into defendant’s employ against the wish of the parent. Yet, inasmuch as the minor was put upon extra hazardous work by defendant’s agent, it was held to take the-case out of the operation of the rule that exempts the-employer from liability to one servant for the negligence-of a fellow servant in the same common service.

The defendant in the case at bar, however, had, under the instructions of the court, the full benefit of the proposition that the plaintiff could not recover if the minor in making the coupling was guilty of contributory negligence ; and, further, that he took upon himself the risks incident to his employment.

II. If there was any departure, as suggested by appellant, in the instructions of the court, from the issues-tendered in the pleadings, the defendant adopted the-error in its instructions asked and given, and had the benefit of a questionable proposition of law.

Taken as a whole the instructions are not so inconsistent as to constitute reversible error. They quite favorably presented the law for defendant. The amount of the verdict is not unreasonable.

The judgment of the circuit court is affirmed.

All concur.