Woodward Iron Co. v. Curl, 44 So. 974

44 So. 974 | Ala. | 1907

SIMPSON, J.

— This was an action by the appellee against the appellant for damages on account of injuries received by Clinton Curl, the 19 year old son of the plaintiff, while in the employment of the defendant. The first assignment of error relates to the action of the court in overruling the demurrer to the first count of the complaint; the grounds of demurrer insisted upon being (1) that the count failed to aver that the plaintiff’s son was a member of his family and dependent upon him, and (2) that it fails to show that the employment was a hazardous one. This count does not allege any act of negligence on the part of the defendant, but rests upon the allegation that said son was employed by the defendant without the knowledge or consent of the plaintiff, and while engaged in such employment was injured.

As to the first proposition, while it is true that our statute, providing for the right of the parent to sue for the injury to the child, does use the words, “a member of the family,” yet, in so far as this refers to the right of a father to sue for the loss of the services of his minor child, this is but an affirmation of the principle already recognized by the common law, which presumes, unless the contrary be shown, that the minor child is a member of the family of the father, fixes upon him the duty of supporting his minor children, and confers on him the correlative right to the services of the child, and to an action against any one who wrongfully deprives him of them. — Vanhorn v. Freeman, 6 N. J. Law, 322, 329; Note to Carey v. Berkshire R. R. Co., 1 Cush. (Mass.) 475, 48 Am. Dec. 622 et seq.; Fairmount, etc., R. R. v. Stutler, 54 Pa. 375, 93 Am. Dec. 714, 715; Williams v. S. & N. Ala. R. Co., 91 Ala. 635, 638, 9 South. 77. The first count is sufficient as to said first ground of demurrer insisted upon.

As to the second insistence, said count does not allege any act of negligence, but relies upon the claim that the defendant employed said minor without the consent of the plaintiff. This court has held that one who employs a minor child without the consent of his father, and without such consent places him to work at a dangerous place or upon a dangerous work, is liable to tbe father for any injury suffered by the minor as the result of being placed at such work. — Williams v. S. & N. Ala. R.. Co., supra; Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 South. 914, 1 Labatt’s Master & Servant, § 21, p. 41; Gulf, etc. Ry v. Redeker, 75 Tex. 310, 12 S. W. 855, 16 Am. St. Rep. 887. In the Marbury Lumber Company Case, just cited, the court said: “The gravamen of the action obviously is the alleged wrong of the defendant in putting the plaintiff’s minor son to work at a dangerous place or upon a dangerous work without her (the parent’s) consent.” Page 183 of 121 Ala., page 916 of 25 South. It MIoavs, that the first count in this complaint should have alleged that the Avorlc at AAdiich the plaintiff’s son was put by the defendant aauis dangerous, and that the demurrers should have been sustained on the second ground insisted upon.

The second assignment relates to the action of the court in OA'erruling the objection to the question to the plaintiff as a Avitness, “What was the value of the time you lost from your Avcrk about coming down and staying here and nursing your son and going back before you Avent to Avork?” In this the court erred. The measure of damages on account of nursing his son Avas not the amount of his Avages lost, “but the value of his services Avhile so attending and nursing.” — So. Ry. Co. v. Crowder, 135 Ala. 418, 428, 429, 430, 33 South. 335; Barnes v. Keene, 132 N. Y. 13, 29 N. E. 1090. In this action the parent was entitled to recover, as expenses, only those amounts which Avere necessarily and reasonably expended in and about the treatment and cure of his child. Hence it Avas error to allow proof as to the amount of his railroad fare in going from his home at Porters-ville to the home of his son at Bessemer. — 13 Cyc. 146.

The court erred in giving charge numbered 3, on the request of the plaintiff, because, first, said charge does not hypothesize that the minor was employed at all by the defendant; and, second, it ignores the dangerous nature of the business in which said minor was engaged. The court erred in giving charge numbered 4, requested by the plaintiff, as that charge would make the defendant liable for the mere employment of the minor, although the work for which he was employed was not dangerous. There was no error in the giving of charge numbered 5, at the request of the plaintiff.

The evidence in this case shows that the minor who was injured was 18 years of age; that he had been in the employ of the defendant 'for a number of years; that on January 18, 1900, the father (plaintiff) had signed a paper giving his consent that the defendant should employ his said son, “and to pay him his wages, that may be agreed upon between him and the said Woodward Iron Company, until I revoke this consent, of which revocation I am to give the Woodward Iron Company 10 days’ notice.” This paper was delivered to said defendant and by it produced at the trial. According to some of the testimony, the plaintiff and his said son had continued in the employment of said defendant until about 13 and 14 days before the accident, when the father went to Portersville, to engage in other work, and left his son to continue working with defendant. According to the plaintiff’s testimony, his said son had been out of the employment of defendant during the year 1894 to December; but he did continue to work there after that date with his father’s consent, collected his wages each month, and handed them over to his father. The plaintiff testified that at some time in 1900 he told one Ludwig, who was then superintendent of defendant, that he did not wish his son to continue to work there; hut he does not remember whether that was before he signed the paper, or afterward. After the plaintiff went to Portersville (just how long, does not appear) he wrote to his son, telling him that he could get a better job for him at that place, and telling him to come there and take the job that he had for him there. The son states that, after receiving the letter from his father he “laid off” for about a week, and then went to Mr. Skews, the superintendent, and told him that his father had a job for him and wanted him to come to Portersville, and that he wanted the money that was due him; that Skews told him that the rule of the company was not to pay until pay day, but he could go back to work until pay day, and he would then get his money. This he did, and during that time he received the injury.

It is evident that, even if the written permission expired, by reason of the fact that the young man was out of the employment and back again during the time, yet it is uncontroverted that the last time he was employed it was with the consent of his father, who worked near him, and who expressly told him to remain in the employment until he found a better place for him. It is evident, also, that this employment was continuous until the time of the accident; for, although the young man says that he laid off for a week, yet' he explains that by saying that he simply meant that he did not work. There was no such quitting as required a new employment. There was no new agreement as to pay or work, but he was simply told that he could go on working until pay day. There was no notice to the company that the father revoked his permission for him to work there, but only that he wished him to come to where he was, to get a better job. He did not specify any time, but evidently left it to the young man himself as to when he should go; and the young man very properly understood that he ivas not to go until he received Ms “pay.” Under all the facts of this case, the proof does not sustain the allegations that said Clinton Curl “Avas employed by the defendant without the knowledge or consent of the plaintiff,” and that the defendant “wrongfully and without the consent” of plaintiff caused said Clinton to work. Consequently the general affirmative charge requested by the defendant should have been given.

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Anderson and Denson, JJ., concur.