Berry v. Majestic Milling Co.

Decision Date25 February 1919
Docket NumberNo. 2376.,2376.
PartiesBERRY v. MAJESTIC MILLING CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Laura A. Berry against the Majestic Milling Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

J. A. Potter and I. V. McPherson, both of Aurora, and Howard Gray, of Carthage, for appellant.

Carr McNatt and John L. McNatt, both of Aurora, for respondent.

FARRINGTON, J.

The plaintiff took an involuntary nonsuit With leave to set the same aside. A judgment for nonsuit was entered, and in due time a motion was filed, which was denied by the trial court, and the case is brought here by plaintiff on appeal.

The plaintiff is the mother of Raymond Berry, who was employed by the defendant to assist in operating its corn or meal grinding machine used in connection with its milling. His hand was injured by being caught in the rolls which grind the meal. The mother's petition contained two counts, the first alleging that her son was 15 years of age and was hired in violation of such statute to work around dangerous machines. This count was dismissed, and the trial proceeded on the second count, under which count she alleged that her son was a minor, and that the defendant had employed him to work in and around a dangerous and hazardous employment without having gotten the consent of his mother; she being his only living parent and entitled to his services during minority. The suit is for loss of services by a parent, occasioned, as alleged, by a wrongful hiring of her minor son to do a dangerous work without her consent.

The undisputed testimony shows that the boy was 15 years old, and that an agent of the defendant with power to hire help solicited him to work in the corn mill, and that he was placed in a part of the mill and given the duty to hold sacks on a spout. It is not contended that this employment was within itself a dangerous one, but it Is charged that in the room where he was there was being operated dangerous machinery, and that her son was seen by the vice principal to do other things in connection with the operation of the corn mill which were attended with danger, in that, he had been seen by the foreman unchoking spouts, greasing the machinery, cleaning the cogs, and working around the place where this machine was being operated, doing practically everything that was necessary to keep the mill going. Plaintiff contended that while the defendant had given the boy employment, such as holding the sacks, which was not a dangerous employment, yet by implication he had employed him to do whatever was necessary with the machinery to keep it going, and produced evidence, testified to by the son, that he had done a number of things which would amount to a dangerous work in the presence of the foreman of the corn mill.

The defendant pleaded several grounds of defense, but denied that it employed the plaintiff's minor son without procuring the consent of his mother, the party who was entitled to his services. In the trial it developed, and was admitted by the plaintiff, that she had given her written consent for her son to work at this mill. The mother at the time of his employment was away from home, when she gave her written consent, but says on examination that she did not know what kind of work her son would be required to do at the mill.

The case for decision here, when narrowed down, amounts to this: Can a, parent who is entitled to the services of her minor child recover at common law for an injury to her child received while in the employ of the defendant, who had procured the written consent from the parent permitting the minor to work in the mill of the defendant? The trial court held that no recovery could be had, and we are inclined to the same view. The law is well settled as to the right of a parent to recover for loss of services from one who had employed a minor in a dangerous business without the consent of the parent, where he is injured. Soldanels v. Railway Co., 23 Mo. App. 516; Coleman v. Land & Lumber Co., 105 Mo. App. 254, 79 S. W. 981; 20 Ruling Case Law, § 29, p. 620; Labatt's Master and Servant (2d Ed.) vol. 7, § 2641, p. 8128. See note, citing many cases, Ann. Cas. 1913C, 234.

These cases further hold that the right to maintain this action is based purely on the wrongful hiring of the minor without the consent of the parent, and that the question of negligence, assumption of risk, acts of fellow servants, and the usual defenses in negligence cases have no place, or is no defense to such action. "

The law is also well settled that if a parent gives consent for the minor to work at a dangerous occupation, then the action for loss of services, occasioned by an injury to the minor, cannot be maintained. See cases above cited and also, 29 Cyc. p. 640, subsec. 6. See, also, Hendrickson v. Railroad Co., 137 Ky. 562, 126 S. W. 117, 30 L. R. A. (N. S.) 311; Haynie v. Electric Power Co., 157 N. C. 503, 73 S. E. 198, 37 L. R. A. (N. S.) 580, Ann. Cas. 1913C, 232; Railway Co. v. Redeker, 75 Tex. 310, 12 S. W. 855, 16 Am. St. Rep. 887; Daniels v. Thacker Fuel Co., 79 W. Va. 255, 90 S. E. 840, 14 N. C. C. A. 833, loc. cit. 841; Dimmick Pipe Co. v. Wood, 139 Ala. 282, 35 South. 885; Pecos & N. T. Ry. Co. v. Blasengame, 42 Tex. Civ. App. 66, 93 S. W. 187; Wolf v. Railway Co., 88 Ga. 210, 14 S. E. 199.

These cases further illustrate the rule that if a parent gives consent for a minor to do a certain kind of employment, the defendant or master will be held liable if he places the minor at a different and more hazardous and dangerous service.

As we understand the contention the appellant makes here, it is that she did consent for her son to work at defendant's corn mill, but that she impliedly consented that he would not be put at a dangerous and hazardous work, and that her permission for him to work for defendant at its mill would only carry with it the implied consent that he be put at a reasonably safe place for a boy 15 years old to work.

The only case cited by appellant which would seem to uphold this contention is that of Lumber Co. v. Westbrook, 25 South. 914 (121 Ala. 179), the syllabus of which holds that the parent did not impliedly consent to the employment at the wheel of defendant's plant because she knew that the boy worked at the mill. On reading that case, however, it will be seen that the boy had been hired by defendant to do a certain work prior to the time he was working when he was injured, and plaintiff gave consent for him to work at this mill, and the court held that the consent would be limited to the character of work which she knew he had been doing, and that the defendant would be liable if he took him out of that work and put him at a more dangerous work. This case, when analyzed, holds no more than the other cases above cited, and that being that consent to do a certain work does not give the master or an employer the right, after having gotten that consent, to place the minor at a more dangerous and hazardous work, because, when he does place him at a more dangerous and hazardous work he has done so without the consent of the parent. In the case at bar, the plaintiff admitted that she gave her written consent for her son to work in defendant's mill, and she admitted that she did not know the character of work that he would be required to do when she gave that consent. The consent was general, the giving of which she had a right to do, and under the law, if she gave him a right to be used in dangerous work, then she cannot recover for the loss of his services if he is injured in it, and there is nothing in the case from which any one could draw the inference and there was an implied consent for him to do a certain character of work, or that the master had, without the consent of this plaintiff, the parent, changed the character of the minor's employment to a more dangerous employment than was implied and carried with the general consent for him to work in the mill.

The court was clearly right in sustaining a demurrer to the evidence, and the judgment will be affirmed.

STURGIS, P. J., concurs.

BRADLEY, J. (dissenting).

I do not agree with my Associates in the conclusion reached in the majority opinion. The record shows that the defendant hired the minor in the beginning without the knowledge and consent of plaintiff, his mother, who was at that time away from home. The boy was employed by defendant on October 31, 1916, and was 15 years old on November 6th, thereafter. He had worked three weeks and four days before the injury. At the time plaintiff's son was employed he was going to school; but after he had been at work about two weeks plaintiff's daughter and son-in-law wrote her, asking permission for Raymond to work at defendant's mill. In answer to the letter plaintiff "wrote the folks at home" that "Raymond may go ahead and work. It will be allright with me. If they want me to sign anything send it to me."

Plaintiff's contention is that her general consent would not extend to work in the mill that would be dangerous for the ordinary youth of 15 years to undertake to perform. Defendant does not challenge this contention in its answer, but rather confirms it. In its answer defendant says:

"Further answering said second count, defendant avers that the plaintiff's son was working for defendant, and was employed to perform service not dangerous, and the plaintiff well knew and consented to said employment."

Further emphasizing this feature, defendant avers:

"Defendant denies that the plaintiff's son was injured by the negligence of the defendant, as pleaded in said second count, but avers and alleges the fact to be that the plaintiff's son, if he was injured at the time and place and in the manner set forth in said petition, was at the time not engaged in any duty or in the act of employment of the defendant, but that,...

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4 cases
  • Dodson v. Ferrara
    • United States
    • Missouri Supreme Court
    • April 19, 2016
    ...services action is not dependent on the death of the minor child, nor does it hinge on proof of negligence. See Berry v. Majestic Milling Co., 210 S.W. 434, 434–35 (Mo.1919). The loss of services action in James, which sounds in contract, is not analogous to a modem wrongful death claim, wh......
  • Berry v. Majestic Milling Co.
    • United States
    • Missouri Supreme Court
    • July 17, 1920
    ...appealed to the court of appeals, which transferred the case to the Supreme Court (202 S. W. 622). Judgment reversed. See, also, 210 S. W. 434. John T. Moore, of Ozark, Carr McNatt, of Aurora, and John L. McNatt, of Joplin, for I. V. McPherson and James A. Potter, both of Aurora, and Rufe S......
  • Shannon v. Hines
    • United States
    • Missouri Court of Appeals
    • December 16, 1920
  • Shannon v. Hines
    • United States
    • Missouri Court of Appeals
    • December 16, 1920

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