Augusta Factory v. Barnes

• Decision Date: 08 April 1884
• Citation: 72 Ga. 217
• Parties: THE AUGUSTA FACTORY v. BARNES.
• Court: Georgia Supreme Court

72 Ga. 217

THE AUGUSTA FACTORY v. BARNES.

Supreme Court of Georgia.

April 8, 1884

September Term, 1884.

1. An action by a father for the loss of services resulting from injury to his minor child, caused by the negligence of the agent at a factory where she was employed, is not a case for vindictive or exemplary damages, and a charge to that effect was error; but the amount found by the verdict did not exceed the actual loss proved, and the error in the charge, having done no injury, will not require a new trial.

2. The test to determine whether a plea amounts to a justification so as to give the defendant the right to open and conclude is whether such plea sets up facts which could not have gone in evidence under the general issue.

( a. ) To an action by the father of a factory operative for an injury to his minor daughter, resulting from the negligence of the defendant's agents, a plea admitting that, on a day named, the daughter was employed by the company in its spinning room, and while so employed was injured, but denying that she was in the discharge and performance of her lawful duty, or that the company employed or continued to employ incompetent agents or officers, or that their acts were negligent, and asserting that, at the time of the injury, the girl was acting in violation of her instructions and outside of the scope of her employment, and that the injury resulted from her own negligence, was not a plea of justification.

3. There was no error in refusing a non-suit in this case. Whenever a prima facie case is made out, questions of fact should be left to the jury.

4. In an action by a father against a factory company for injury to his minor daughter, the defendant having pleaded and proved that the daughter received her semi-weekly wages from it that they were always paid to her and never to the father and that the rent of the house which his family occupied was paid from this source; and it being argued from this that she had been emancipated from his control, and that he had relinquished all right to her earnings, it was admissible to show, in rebuttal of this, that she regularly accounted for and paid to him her wages.

5. A young girl received a terrible and painful injury while employed in a factory, and subsequently died from it; about half an hour after the injury, upon the return of her father to his home on receiving information of the accident, she stated to him that they put her to work on some new frames that she refused to go, and the second hand cursed her and told her to go to work; that this frame was different from the old frame, and she did not want to run it; that they had to " duff" and stop the machinery to clean it off, and that the agent who directed the work at this frame started it without giving the usual signal. It was shown that she was injured while cleaning machinery, and that the person named as starting the machinery directed the work of the operatives at that particular frame and gave the signal prior to starting:

Held, that the statement was admissible as a part of the res gestæ .

( a. ) Where the competency of evidence is doubtful, it should go to the jury, that they may consider how far its force is impaired by sorrounding incidents.

( b. ) The death of the person making the statements which form part of the res gestæ is no ground for their exclusion from a evidence. Section 3854 of the Code does not apply to such a case.

6. What one physician stated to another as to the cause of the disease of which the girl died was hearsay and inadmissible; nor did it appear that the physician was inaccessible or incompetent as a witness.

7. In case of the injury of an adult by the negligence of a co-employé, where the injured servant used all ordinary care and diligence to avoid the injury from the principal's other servants with whom he was disconnected at the time, and where he was acting in obedience to the orders of another servant over him, whose orders he was bound to obey, this court has held that he had a right to recover for the injury inflicted. Where the injured employé is a child of tender years, the master is bound to a higher degree of care.

( a. ) Although an infant employé in a factory may not have been in the line of her duty at the time of an injury to her, yet if she was set to work on a particular frame, and what she did in cleaning the machinery was done under the direction of the superintendent of that work, and he did not forbid her engaging therein, he was bound to ordinary diligence in supervising her conduct, and if necessary to her protection, he not only might use coercion to restrain her from exposure and risk, but it was his duty to do so, and for neglecting his obligation in this respect his principal would be responsible.

( b. ) The act of 1853 (Code, §§1885, 1886) does not lessen the obligation of the employer to look to the safety and protection of the minor operative, or interfere with the right of the parent to the earnings of his minor child, but affords another safeguard against the personal abuse of the minor by limiting the authority over him so far as it expresses, but no farther.

Master and Servant. Parent and Child. Damages. Negligence. Principal and Agent. Non-suit. Res gestæ . Pleadings. Evidence. Before Judge RONEY. Richmond Superior Court. October Term, 1883

C. G. Barnes brought suit against the Augusta Factory to recover damages for an injury to his minor daughter, which it was alleged resulted in her death.

The evidence for the plaintiff was, in brief, as follows:

Anna E. Barnes, the daughter of plaintiff, was fourteen years of age. She was employed by defendant. Cason was the second hand in the spinning room. This room was divided into sections, and Carter was in charge of one section. (At another part of the plaintiff's testimony, Carter is also called the second hand.) It was a part of his duty to give the signal for the frames to start. This is generally done by striking together two caps which are on the frame, or by striking the frame with a bobbin. There were three new frames in the room, which were in charge of two girls of the name of Sheehan. Anna Barnes was put at one of these frames to help in connection with it. When the machine was stopped for the purpose of taking off full bobbins and putting on empty ones (called " duffing" ), she was engaged in cleaning some of the machinery. It was the duty of Carter to give the usual signal before starting the machinery, but he failed to do so, and the hand of Anna Barnes was caught in the gearing, and badly torn and lacerated, so as to render the amputation of one finger necessary. She did very well for a few days, and was able to go to the factory, which was close by, and to the place near by where her father was at work. She soon, however, had symptoms of convulsions and of lock-jaw ( tetanus ), and died several weeks, after the injury from the effects of it. She only had measles a few days before her death. They had broken out and recovered before that time. The death resulted from lock-jaw, as just stated. Exposure with measles might complicate the case. She was carried home at once after the injury, and her father was sent for. On his arrival shortly afterwards, and while she was suffering from the wound, she made a statement as to how it occurred. (One or two of the witnesses speak of this statement as having been made " immediately after she was hurt." The father, who first detailed it, stated that he was sent for, and upon his arrival the statement was made to him. It was between eight and nine o'clock A. M. Another witness testified that the accident occurred about eight o'clock A. M.) This statement and the attendant circumstances were thus detailed by the father as a witness: " My daughter left my house about six o'clock in the morning, and I saw her again between eight and nine o'clock the same day. When I saw her, one of the fingers of her right hand was all cut up, and the other finger ripped up and a bruise on the top of the hand; a piece of the cog-wheel was in her hand, and she made this statement to me as soon as I saw her. She said at that time that they put her on some new frames, and that she refused to go on, and Mr. Cason, the second hand, cursed after her and told her to go to work; that this frame was different from the old frames, and she did not want to run it, but after he cursed her she went on anyhow; that they had to ‘ duff’ and stopped the machinery, and she was cleaning off; and that Mr. Carter started it off without giving the signal." She also stated that it was a part of her duty to clean off the gearing while the " duffing" was being done. The cause of the injury was the failure of Carter to give the signal. It was his duty to go around and overlook the frames and see that work was done. At the time of the accident, Anna Barnes did not have any frame to take care of; she was helping another girl to clean her frame. Her father had never relinquished his parental right to receive her wages. She received the pay tickets from the factory and drew the money, but paid it to him.

There was other evidence as to the value of services. etc.

The court refused a non-suit, on motion therefor.

Plaintiff further introduced testimony that, after the injury and shortly before the girl's death, she sent for Carter and had a conversation with him, in which he admitted that he started the frame without giving the signal, but said he did not think anybody was in the frame; that he did not see her, or he would not have done it for the world. She told him she forgave him. The injury was on March 31, and she died on April 26.

The evidence for the defendant was, in brief, as follows: Cason the second hand in the spinning room, told Anna...