Adkins v. Hope Engineering & Supply Co.

• Decision Date: 27 November 1917
• Parties: ADKINS v. HOPE ENGINEERING & SUPPLY CO.
• Court: West Virginia Supreme Court

94 S.E. 506

81 W.Va. 449

ADKINS v. HOPE ENGINEERING & SUPPLY CO.

Supreme Court of Appeals of West Virginia.

November 27, 1917

Submitted November 20, 1917.

Syllabus by the Court.

The common-law right of a father to the custody and control of his minor child, and, unless sooner manumitted by him, to demand and receive the benefit of its earnings in any employment during minority, and compensation for the impairment or deprivation of the earning capacity of such minor, obtains in this state except in so far as the Legislature, in the exercise of the power impliedly conferred by the Constitution, has abrogated or modified such right.

By the exertion of such power, the Legislature has, by chapter 15P, Code 1916, known as the Workmen's Compensation Act substituted a mode of compensation for such deprivation or impairment different from and in lieu of the common-law right of redress therefor.

The appropriateness and applicability of that act and the substituted compensation aforesaid, in lieu of a recovery in such common-law action for an injury sustained by a minor while in the service of another, resulting in deprivation or impairment of his earning capacity, do not depend upon the knowledge by the parent of the employment or his consent or want of consent thereto.

Sections 9, 22, and 23 of the act aforesaid, when read together and properly construed, show (section 9) that minors lawfully may be employed in any business, industry, or occupation except when prohibited by sections 24, 59, 71, and 72 of chapter 15H, or section 16d4 of chapter 144, Code; and (sections 22 and 23) that when the employer has in the manner therein required given the notice likewise required, and the employé though an infant, thereafter continues in the employment, the continuation and notice combined operate a waiver of any common-law right of action for redress the parent or minor might have had but for such statute.

When not expressly or impliedly prohibited by statute, the employment of a minor in any legitimate business or occupation is not unlawful merely for want of knowledge or consent by the parent or guardian.

Certified from Circuit Court, Cabell County.

Suit by Marice Adkins against the Hope Engineering & Supply Company. Demurrer to declaration overruled, and case certified. Decree reversed, and cause remanded.

Marcum & Shepherd and J. W. Perry, all of Huntington, for plaintiff.

Simms & Staker, of Huntington, for defendant.

LYNCH, P.

Plaintiff sued to recover damages for the loss of the services of his 15 year old son, who was injured while engaged with other employés in digging a trench to be used by defendant to lay a pipe line to market gas, a business in which it seems defendant then was engaged. Having sustained the declaration as sufficient on demurrer, the court, upon the application of the parties, certified the case here according to the provisions found in section 1, c. 135, Code.

There is no question raised as to the form of the pleading or the sufficiency of its averments, or as to the constitutional power to enact what is known as the Workmen's Compensation Act, being chapter 15P, Code. The only question argued and to be decided is whether the declaration states a cause of action such as entitles plaintiff to the recovery he seeks. The pleading avers the qualifications of the defendant to invoke the protection and claim the benefit of the provisions of that act, and thereby to defeat recovery in this action. There is no averment charging failure to comply with any requirement of the statute whereby defendant could not avail itself of its provisions in bar of the action. Such compliance the declaration specifically avers. But plaintiff does allege, and his counsel insist, that, although defendant has in all respects done what the act requires to entitle it to the immunities and prescriptions thereof, the act does not purport to work an exoneration from liability for the loss of the services sued for. Or, differently stated, the conclusion is that, as the compensation allowed an injured minor servant in lieu of a recovery for the injury in a common-law action by the minor is personal and limited to him alone, the statute was not intended to and does not operate to bar an action by a parent to compel restitution for the loss occasioned to him by such injury, when he neither consented to nor was cognizant of the employment of the minor as the servant of the defendant. Want of knowledge or notice on the part of the plaintiff of the employment, and absence of his consent thereto, are reiterated and emphasized in the pleading and in the argument in his behalf, and, indeed, constitutes whatever merit the issue between the parties has. Beyond these contentions it is unnecessary to extend this discussion, because unless the compensation fixed by our Workmen's Compensation Act is a substitute for all common-law recoveries for injuries, however occurring, including recovery by a parent for loss of services, generally recognized as recoverable by him at common law, the declaration does state a good cause of action; otherwise it does not. This is the very gist of the controversy.

There can be no doubt that at the common law the father ordinarily had and still has, where that law remains in force, as in this state except to the extent altered or modified by statute, the right to the control and custody of his minor children and to have the benefit of their earning powers until they attain their majority, unless sooner manumitted by him, and that he is entitled to maintain an action for a loss resulting to him by the wrongful interruption of such right. Taylor v. Railway Co., 41 W.Va. 704, 24 S.E. 631. But this concession does not necessarily preclude the exercise of legislative authority to change, modify, or entirely abrogate such right of compensation, or to substitute in lieu thereof another more or less comprehensive, speedy, and convenient mode of obtaining restitution for such deprivation of the minor's services.

Whether the Legislature, when enacting the Workmen's Compensation Act, intended such substitution, and the act signifies or expresses that intention, must be determined upon an examination of the provisions of the act itself. Section 22 says:

"Any employer subject to this act who shall elect to pay into the workmen's compensation fund the premium provided by this act, shall not be liable to respond in damages at common law or by statute for the injury or death of any employé, however occurring, after such election and during any period in which such employer shall not be in default in the payment of such premium: Provided, the injured employé has remained in his service with notice that his employer has elected to pay into the workmen's compensation fund the premiums provided by this act. The continuation in the service of such employer with such notice shall be deemed a waiver by the employé and by the parents of any minor employé of the right of action as aforesaid which the employé or his or her parents would otherwise have."

The defendant, the declaration avers, is an employer subject to the act, has paid the premiums thereby provided, and in all respects complied with its requirements, and was not in default as to any of them. If so, does defendant still remain liable to respond in damages at common-law for the injury to the employé, the minor son of the plaintiff, however occurring, notwithstanding the explicit and imperative language of this section? We know no rule whereby to justify a construction or interpretation not in accord with the plain purport of the language employed to express the legislative intent; and counsel suggest none. That intent is expressed too plainly to permit different...