Braswell v. Garfield Cotton Oil Mill Co.

Decision Date10 December 1909
Docket Number2,033.
Citation66 S.E. 539,7 Ga.App. 167
CourtGeorgia Court of Appeals

Syllabus by the Court.

Where a father hires his minor son to an employer to do a certain work, and the employer, without the father's consent puts the son to a different and more dangerous employment and the latter is injured, the father has a cause of action against the employer for the recovery of such diminution in the value of the child's prospective services, between the date of the injury and the date of his attaining his majority, as the injury may have occasioned.

Error from City Court of Swainsboro; Frank Mitchell, Judge.

Action by R. Braswell against the Garfield Cotton Oil Mill Company. Judgment for defendant, and plaintiff brings error. Reversed.

Williams & Bradley, for plaintiff in error.

Saffold & Larsen, for defendant in error.

POWELL J. (after stating the facts as above).

When a father hires his minor child to another, the contract of employment, as in general is true in cases of masters and servants, tends to define the reciprocal rights and duties of the relationship (see Brown v. Rome Machinery & Foundry Co., 5 Ga.App. 142, 62 S.E. 720); and the father, suing for the loss of services of his minor son, occasioned by injuries received pending the employment, is held to have assumed, through the contract by which he hired the child to the master, the risks of the particular employment included in the contract, to the same extent that the child would have assumed them if he had been an adult and had made the contract of employment himself. But, when the employer puts the minor to doing work not contracted for, the reason fails and the rule is different.

Touching the service of an infant, it may be said, upon surest footings of reason and of law, that the father has a property right. In the case of Shields v. Yonge, 15 Ga. 356 60 Am.Dec. 698, the question is asked and answered: "May a father treat his minor son as his servant, and sue for an injury to the son, as for an injury to a servant? If the son be old enough to render service, the father may." This statement is cited and approved in Amos v. Atlanta Ry. Co., 104 Ga. 809, 812, 31 S.E. 42. In Lewis v. McAfee, 32 Ga. 465, the Supreme Court decided that if one hired his slave to a railroad company for a particular service, and the latter used the slave for a different purpose of service, and an accident happened, causing the slave's death, the railroad company was liable to the owner for the value of the slave; and the court, in the course of the opinion, places the case upon the old and well-recognized common-law proposition that if the thing hired is used for a different purpose than that which was intended by the parties, or in a different manner, or for a longer period, "the hirer is not only responsible for all damages, but, if a loss occurs, although by inevitable casualty, he will generally be responsible therefor."

In this case, when the mill boss or superintendent put the plaintiff's son to the doing of work other than that for which he had been employed, and more dangerous, the mill company could no longer rely upon those contractual assumptions of risk by which it might have otherwise have defended against the father's suit for personal injuries resulting from the dangers incident, to the business. That an employer, putting a minor child, without its parent's consent, to do work by which the child is injured, commits an actionable wrong, which will authorize the parent to recover for the loss of such service as he should...

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