Anderson Mfg. Co., Inc. v. Wade
| Decision Date | 17 December 1928 |
| Docket Number | 27424 |
| Citation | 119 So. 313,151 Miss. 820 |
| Court | Mississippi Supreme Court |
| Parties | ANDERSON MFG. CO., INC., v. WADE. [*] |
1. MASTER AND SERVANT. Employee fifteen years old made prima-facie case of negligence contributing to injury by showing employment by defendant without affidavit required (Hemingway's Code 1927, section 5139).
Employee fifteen years and nine months of age at time of injury made out prima-facie case of negligence contributing proximately to his injury by simply showing his employment by defendant without production of affidavit of parent or guardian required by Hemingway's Code 1927, section 5139.
2. NEGLIGENCE. If negligence of employee fifteen years old contributed to injury, Ms damages should be reduced proportionately, though employed without affidavit (Hemingway's Code 1927, section 5139). If employee fifteen years and nine months of age at time of injury, was guilty of negligence in handling of saw which caused injury and negligence contributed proximately to such injury, he should be charged therewith and his damages reduced proportionately, though he was employed without affidavit of parent or guardian required by Hemingway's Code 1927, section 5139.
3. MASTER AND SERVANT. fifteen-year-old boy was employed without affidavit through his fraud, and injury was caused solely by his negligence, employer was not liable (Hemingway's Code 1927, section 5139).
If minor, fifteen years and nine months of age, was employed without affidavit from parent or guardian, required under Hemingway's Code 1927, section 5139, through his own fraud, case stood as if there were no Child Labor Statute, and, if employer was guilty of no negligence proximately contributing to minor's injury, but injury was brought about solely by minor's own negligence, employer was not liable therefor.
APPEAL from circuit court, First district, Hinds county, HON. W. H. POTTER, Judge.
Action by Charles Wade, minor, by next friend, Mrs. Willie Boone, against the Anderson Manufacturing Company, Inc. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Reversed and remanded.
John Sivley Rhodes, for appellant.
Cited: 18 R. C. L., par. 65; 48 L. R. A. (N. S.) 664; Steel Car Forge Co. v. Chec, 184 F. 868; Platt v. So. Photo Material Co., 60 S.E. 1068; Schmidt v. Bruen, 106 N.Y.S. 443; Lachmanowitz v. Finkelstein, 125 N.Y.S. 1036; Smith v. Y. & M. V. R. R. Co., 82 Miss. 656; Hartwell Handle Co. v. Jack, 115 So. 586; 18 R. C. L., par. 130; 39 C. J. 907, par. 1138; Flores v. Steeg Printing Co., 78 So. 119; Dalherin v. New Orleans Con. Co., 71 So. 214; Fortune v. Hall, 122 A.D. 250, 106 N.Y.S. 787.
The force of the reasoning in the Flores case, supra, can and should be applied by this court to the case at bar. Under section 3 of the Child Labor Laws of this state it may be presumed that the Mississippi legislature felt that children over fourteen were capable of taking care of themselves in ordinary occupations, and therefore might be found to be negligent in case of accident. The Child Labor Laws of the state of Mississippi do not provide directly or by implication that contributory negligence of a child over fourteen years of age cannot be pleaded or shown. Nor did this court in the case of Hartwell Handle Co. v. Jack, supra, hold that contributory negligence of a child over fourteen and under sixteen years of age cannot be pleaded or shown.
McNeil & Hendrick, for appellee.
The rule announced in 18 R. C. L., par. 65, and also in 48 L. R. A. (N. S.) 664, seems now to be the minority rule and is not sustained by the leading authorities of America. In other words, the leading courts take the position that the employment of a minor without procuring the requisite employment certificate is as serious a wrong to the child as to employ it at an age at which the employment is absolutely forbidden. See Frorer v. Baker, 137 Ill.App. 588; Kilicks v. Alleghany Steel Co., 119 C. C. A. 312, 200 F. 933; Kircher v. Iron Clad Mfg. Co., 118 N.Y.S. 823; Queen v. Dayton Coal & Iron Co., 95 Tenn. 464, 30 L. R. A. 82.
It was held in the case of Hartwell Handle Co. v. Jack, 115 So. 586, that the employment of a minor in violation of law prescribing age limit is negligence per se, rendering employer liable for injury proximately resulting.
The only question to be considered by the court is whether or not an employer is denied the right to plead contributory negligence on the part of the child where the employment is in violation of the law.
A great many of the authorities hold that where a minor is employed in violation of a criminal statute, that the relation of master and servant does not exist and that the liability of the employer does not arise out of the relation of master and servant, but from the violations of a criminal statute. We think this is the correct rule. See Midwest Box Co. v. Hazzard (Ind.), 146 N.E. 420 (1925); Terry Dairy Com. v. Nalley (Ark.), 225 S.W. 887; Ideal Laundry & Dry Cleaning Co. v. Mackowiak, 143 N.E. 615; American Car Co. v. Armentrant, 114 Ill. 509, 73 N.E. 766; Kawalczyk v. Swift & Co., 160 N.E. 588; Iron & Wire Co. v. Green, 108 Tenn. 161, 65 S.W. 399; O'Neal v. Rovatsos (Neb.), 206 N.W. 753; Dusha v. Virginia & Rainy Lake Co. (Va.), 176 S.E. 432; Leidgen v. Jones (N. D.), 179 N.W. 714; Volpe v. Hammersley Mfg. Co. (N. J.), 115 A. 665; Wlock v. Fort Dummer Mills (Vt.), 129 A. 311; Washburn v. Empire Printing Co. (Mo.), 249 S.W. 709; Bradas & Gheens v. Hawkins (Ky.), 258 S.W. 969; Louisville, Henderson & St. L. R. R. Co. v. Lyons, 155 Ky. 406, 159 S.W. 976, 48 L. R. A. (N. S.) 667; Rost v. G. H. Noble & Co. (Ill.), 147 N.E. 259; Capitol Rattan Co. v. Fancher (Ind.), 116 N.E. 593; Inland Steel Co. v. Yedinak, 127 Ind. 425.
Watkins, Watkins & Eager, in reply for appellant.
There is a decided conflict upon the question whether the employment of a minor without the procuring of a certificate of employment is in itself negligence, or evidence of negligence, where the minor has reached the age when the employment would be legal had such certificate been obtained. 18 R. C. L. 553, par. 65.
We believe that the sounder and better rule is that the employment being otherwise unlawful, and the statute not absolutely prohibiting the employment between the ages of fourteen and sixteen, that at least the master is entitled by way of defense to show any contributory negligence on the part of the minor. See Flores v. Steeg Printing & Publishing Co. (La.), 78 So. 119; Birmingham News v. Andrews, 204 Ala. 649, 87 So. 168; Beghold v. Auto Body Co. , 149 Mich. 14, 112 N.W. 691, 14 L. R. A. (N. S.) 609.
Appellee brought this action in the circuit court of Hinds county against appellant to recover damages for injuries received by him while in the employ of appellant, a manufacturing plant engaged in the manufacture of furniture, fixtures, etc., caused by the alleged negligence of appellant, and recovered judgment in the sum of three thousand seven hundred dollars. From that judgment the appellant prosecutes this appeal.
At the time of the injury, appellee was a minor fifteen years and nine months of age. The injury occurred in appellant's industrial plant while appellee was employed therein. Appellant's plant was of the character in which, under section 2, chapter 314, Laws of 1924 (section 5138, Hemingway's 1927 Code), the Child Labor Statute, minors under the age of fourteen years are prohibited from being employed, and, under section 3 of that act (section 5139, Hemingway's 1927 Code), minors between the ages of fourteen and sixteen years are prohibited from being employed except upon an affidavit of parent, or guardian, or person standing in parental relation to such child, stating the place and date of birth of such child, and also stating his last school attendance, the grade of study pursued by him, and the name of the school, and the name of the teacher in charge thereof. Appellee claimed the right to recover for his injury under the latter section which, in full, is as follows:
The evidence showed that the appellant employed the appellee without requiring the production of the affidavit provided by the statute. The trial court ruled out evidence tending to show that appellee's own negligence proximately contributed to his injury, and refused instructions requested by the appellant in which it was sought to inform the jury that, if appellant's own negligence proximately contributed to his injury, they should reduce his damages in proportion to such negligence. The action of the court in that respect is assigned and argued by the appellant as error.
It was held in Hartwell Handle Co. v. Jack, 149 Miss. 465, 115 So. 586, section 2 of the Child Labor Statute, that the employment of a minor under fourteen years of age in a manufacturing plant of the character defined by that statute, which employment is prohibited by the second section of the Child Labor Statute, constitutes negligence per se, rendering the employer...
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