Bobbs v. Morgantown Press Co.

• Decision Date: 11 October 1921
• Citation: 89 W.Va. 206
• Court: West Virginia Supreme Court
• Parties: Mildred Bobbs, by etc. v. Morgantown Press Co.

89 W.Va. 206

Mildred Bobbs, by etc.

v.Morgantown Press Co.

Supreme Court of Appeals of West Virginia.

Submitted October 4, 1921.

Decided October 11, 1921.

Master and Servant Allegation of Unlawful Employment Held Sufficient.

A count in a declaration for personal injuries based on negligence in employing a girl between the ages of 14 and 16 years to work in a gainful occupation without first having obtained a work permit as required by sections 3 and 4 of chap. 17, Acts 1919, and averring that by reason of such unlawful acts, negligence and carelessness the injuries resulted, is not bad on demurrer, for failure to allege in terms that such unlawful employment was the natural and proximate cause of plaintiff's injuries.

Case certified from Circuit Court, Monongalia County.

Suit by Mildred Bobbs, by, etc., against the Morgantown Press Company, for personal injuries. Demurrer to third count of declaration sustained and at plaintiff's request and on its own motion the circuit court certified the case for review.

Demurrer overruled and case remanded.

Moreland & Guy, for plaintiff. Glasscock & Glasscock, for defendant.

Lively, Judge:

Having sustained a demurrer to the third count in the declaration, the circuit court, at the request of plaintiff and on its own motion, has certified its ruling to this court for review.

The count alleges that the defendant owned and operated a printing shop containing such machinery and equipment as is usually found in such establishments, including a platen printing press operated by electricity, and the operation of which required great skill and experience in the operator in order to avoid being injured; that the plaintiff was a child between the ages of 14 and 16 years; and that defendant unlawfully, carelessly and negligently employed her to work in such establishment, the same being a gainful business or occupation, without having first procured a work permit from the superintendent of schools of the city or county, or from some person authorized by him in writing; and with having failed to keep such permit on file and accessible to officers charged with the enforcement of sees. 3 and 4 of chap. 17, Acts 1919 (the Child Labor Law); by reason of which unlawful acts, negligence and carelessness of defendant the right hand of plaintiff was caught in the machinery, a printing press at which she was working by order of defendant, and mutilated and mangled, causing the loss of three fingers thereof, to her damage of $10,000.00. The count also avers for reasons therein stated that defendant is not entitled to protection under the Workmen's Compensation Act. The grounds of the demurrer are: (1) That it fails to aver a cause of action; (2) it fails to allege any specific act of negligence; (3) it fails to show that the unlawful employment was the proximate cause of the injury.

The controlling question here presented is whether the employment of a child between the ages of 14 and 16 years in a gainful occupation, without first having obtained the work permit from the authorities designated by statute is prima facie negligence of the employer sufficient to sustain an action for damages resulting from an injury to the child arising out of and in the course of the employment.

In the cases which have been considered by this court where the employment in a coal mine was of a minor under the age fixed by the statute, making it unlawful to employ such minor (12 years of age. afterwards raised to 14 years of age), we have decided that the unlawfulness of the employment and subsequent injury of the employee resulting from and in the course of the employment make out a prima facie case of negligence on the part of the employer. Norman v. Coal Co., 68 W. Ya. 405; Daniel v. Big Sandy Coal and Coke Co., 68 W. Va. 491; Blankenship v. Coal Co., 69 W. Va. 74; Dickinson v. Stuart Colliery Co., 71 W. Va. 325; Griffith v. American Coal Co., 75 W. Va. 686; and Mangus v. Coal Co., 87 W. Va. 718. These cases hold, following the Norman case, that the violation of the statute is rightly considered the proximate cause of an injury which is the natural, probable and anticipated consequence of the employment; that the infant does not assume the risks incident thereto, including the risk of injury by a fellow servant; and that the defense of contributory negligence could only be asserted where the injury is such as could not reasonably be anticipated as a probable consequence of the nonobservance of the statute; and to avail the employer as a defense it must be shown not only that such contributory negligence was not such as the statute was intended to provide against, but that the infant was possessed of such wisdom, experience and sagacity as to take him out of the class of boys under the prohibited age which the statute was intended to protect. This leading case, Norman v. Coal Co., was...