Alexander v. Standard Oil Co. of Louisiana

• Decision Date: 24 April 1916
• Docket Number: 20479
• Citation: 72 So. 806,140 La. 54
• Court: Louisiana Supreme Court
• Parties: ALEXANDER et al. v. STANDARD OIL CO. OF LOUISIANA

72 So. 806

140 La. 54

ALEXANDER et al. v. STANDARD OIL CO. OF LOUISIANA

No. 20479

Supreme Court of Louisiana

April 24, 1916

On Rehearing, October 30, 1916

SYLLABUS

(Syllabus by the Court.)

While the employment of a boy under 14 years of age, but apparently several years older, upon his representation that he was 16 years old, may be a violation of section 1 of Act No. 301 of 1908, making it unlawful to employ any child under the age of 14 years in certain industries and callings, and therefore subject the employer to the prescribed penalty of fine and imprisonment, or both, there is no provision of the statute that makes such employer the insurer of the boy against accidents caused by his own fault or negligence.

In Darsam v. Kohlmann, 123 La. 164, 48 So. 781, 20 L. . A (N. S.) 881, this court held that a similar statute (Act No 34 of 1906) did not abrogate the ordinary rules of law relating to contributory negligence. We reaffirm this doctrine, as applicable to the case at bar, where an intelligent lad, on his own motion, left his safe place of work on a certain scaffold, and while proceeding along a dangerous way to another scaffold, or while on said scaffold, fell to the ground and was badly injured. O'Niell, J., dissenting.

James E. Smitherman, of Shreveport, and Taylor & Porter, of Baton Rouge, for appellant.

Hunter C. Leake and Johnston Armstrong, both of New Orleans, for appellee.

O'NIELL, J., dissents.

OPINION

LAND, J.

Plaintiff, a widow, sues individually and as natural tutrix of her minor son, Lucius Alexander, to recover for herself the sum of $ 6,081, subject to credits of $ 1,250 and $ 131, and to recover for her minor son the sum of $ 23,050, on allegations substantially as follows:

That on June 12, 1912, about 8 a. m., Lucius, while in the employ of the defendant, and while working for said company as a rivet heater, and while discharging his duties as such, was thrown from the top of condenser box No. 53 to the ground, a distance of about 26 feet. That in consequence of said fall, Lucius suffered a compound fracture of his right leg between the knee and the hip, and his left leg was also broken between the knee and the hip.

That the proximate and sole cause of said fall and resulting injuries was the defective and careless construction and dangerous condition of a platform or scaffold erected by the defendant, its employes and agents, on top of an open steel box known as condenser box No. 53, about 13 feet deep, and erected upon walls of the same height, a portion of which scaffold gave way under the said Lucius and threw him to the ground. That said scaffold was constructed by placing loose planks of irregular lengths, widths and thickness across the corner of the said open steel box. That defendant failed to place around the scaffold such ropes or railings as would have prevented the injury to the said Lucius, who did not know of the dangerous condition of the scaffold and had not been warned of its dangers.

That the said Lucius was at the time of said fall in a place where he had a right to be, in the discharge of his duties as rivet heater, and was free from contributory negligence.

That Lucius was not yet 14 years of age, yet nevertheless he was placed by defendant and required to work in said extremely dangerous position, without the knowledge or consent of his mother, against her repeated requests not to place him in a dangerous place to work.

That, as the result of said injuries caused by the gross carelessness and negligence of the defendant, Lucius' right leg is smaller than it should be, is not apparently growing, is weak and crooked, and the right knee is stiff; his left leg is crooked and weak, and his right foot has lost its spring or elasticity; that he is still lame, and walks with great difficulty and with a shuffle. That for 7 months after he was injured, he was unable to work; and his earning capacity has been reduced from $ 2.25 to 75 cents per day, or at the rate of $ 450 per year. Plaintiff alleged that she was a widow, and has three other minor children, and that she depended on the wages of her son, Lucius, for a support.

That plaintiff is entitled to the wages of her son until he reaches majority, and that his loss of earning capacity during the interval will amount to $ 3,150.

That the charges of surgeons, physicians, nurses, hospitals, etc., necessitated by his injuries amount to $ 1,300, of which sum the defendant has voluntarily paid about $ 1,250. That plaintiff is entitled to recover of the defendant the sum of $ 500 for loss of time and care of her son while injured and unable to help himself, and $ 1,000 for her pain and mental anguish over her son's pitiful condition.

That the defendant also placed Lucius on its pay roll at 75 cents a day for 175 days while he was unable to work, making a total of $ 131, for which amount plaintiff wishes to give the defendant credit. That Lucius is entitled to recover for loss of earning capacity after his majority the sum of $ 17,550, and $ 3,000 for pain and suffering, and the further sum of $ 2,500 for annoyance, embarrassment, and humiliation caused him and to be suffered by him in the future because of his crookened and misshapened limbs and uncertain step and shuffling gait.

The answer of the defendant denies most of the allegations of the petition; and as to the alleged age of boy, the answer for lack of information neither admits nor denies --

'but the defendant avers that at the time Lucius Alexander was employed, he stated to the defendant that he was 16 years of age, and that he was a well-grown and well-developed lad, appearing to be the age stated, and that defendant had no reason to believe that he had misstated his age at the time of his employment; that had defendant known he was not 16 years of age, he would not have been employed.'

Defendant specially denies that the platform was in a dangerous condition, and avers that there was no danger except that of falling therefrom, as to which plaintiff's son had been specifically cautioned. Defendant specially denies that plaintiff's son was thrown from the top of condenser No. 53, as alleged in the petition. Defendant avers that the highest wages ever paid Lucius was 75 cents a day, and specially denies that it was then paying him a larger sum; the truth being that the boy returned to defendant's employ and was paid 75 cents a day until he of his own volition quit about the time this suit was brought.

Defendant avers that the sum of $ 1,250, referred to in the petition, was not paid because of any legal liability to the plaintiff, but was expended for humanitarian principles and on account of sympathy for one of its employes. Defendant makes a similar averment as to the sum of $ 131, wages paid during the disability of plaintiff's son.

In a supplemental answer, the defendant avers that Lucius was not acting in the discharge of his duties as rivet heater at the time that he sustained the injuries set forth in the petition, but was neglecting his duties, and had left the platform to which he had been assigned, but that he fell from the top of another platform through his own gross negligence and carelessness.

The cause was tried before the judge on the issues raised by the pleadings, and in due course judgment was rendered in favor of the defendant. The plaintiff has appealed.

The judge assigned oral reasons for his judgment, and we are therefore unable to say whether his decision was based on the nonnegligence of the defendant, or on the contributory negligence of the plaintiff's son.

While not alleged in the petition, it appears from plaintiff's motion for a new trial that her counsel urged on the trial that the employment of plaintiff's son, a minor under the age of 14 years, was contrary to the laws of Louisiana, and constituted negligence per se.

In its answer to the motion for a new trial, defendant admitted that the evidence established the fact that Lucius was a minor of the age of 13 years when employed by defendant, but averred that such employment was not negligence per se, and that the said Lucius was not in the discharge of his duties at the time he was injured, and was not injured because of the negligence of the defendant, its agent and employes.

Plaintiff sent her son to defendant to obtain employment because she needed his wages for her support. The boy was questioned by Mr. Clark, a foreman of the defendant, one of whose duties was to hire laborers, and, from the boy's answers which were entered on his application card, it appears that he stated that he was 16 years of age, and gave the name of his last employer.

The foreman was induced by the answer of Lucius, and by his physical appearance, to believe that the boy was 16 years old, and thereupon employed him as water boy at a wage of 75 cents per day. The employment of boys under 15 years of age was against the orders of the defendant company.

Dr. Kemp testified that at the dictation of the plaintiff, he wrote down the age of her son as 17, in an application for an accident or sick benefit policy of insurance.

Lucius admits in his testimony that he told Mr. Clark that he was 16 years old. The boy's height was 5 feet and 7 1/2 inches, and his photograph shows that he was well proportioned.

The evidence makes it clear that the false answer of Lucius as to his age, seemingly corroborated by his physical appearance, induced Foreman Clark to employ him.

Plaintiff's contention is that defendant's employment of said minor was in violation of section 1 of Act No. 301 of 1908, making it unlawful --

'for any person, agent, firm, company, copartnership, or corporation to require or permit or suffer or employ any child under the age of 14 years to...