Brilliant Coal Co. v. Sparks

• Decision Date: 04 February 1919
• Docket Number: 6 Div. 505
• Citation: 81 So. 185,16 Ala.App. 665
• Parties: BRILLIANT COAL CO. v. SPARKS.
• Court: Alabama Court of Appeals

81 So. 185

16 Ala.App. 665

BRILLIANT COAL CO. v. SPARKS.

6 Div. 505

Court of Appeals of Alabama

February 4, 1919

Rehearing Denied March 18, 1919

Appeal from Circuit Court, Marion County; C.P. Almon, Judge.

Action by Julius Sparks by his next friend against the Brilliant Coal Company, for damages for injuries received in a mine. Judgment for plaintiff, and defendant appeals. Affirmed.

A.F Fite, of Jasper, and E.B. & K.V. Fite, of Hamilton, for appellant.

Leith &amp Powell, of Jasper, for appellee.

SAMFORD J.

The complaint in this case is based upon subdivision 11 of section 6 of an act of the Legislature approved February 24 1915 (Acts 1915, p. 193), which reads as follows:

"No child under the age of 16 years shall be employed, permitted or suffered to work in any capacity *** (11) nor in, about or in connection with any mine, coal breaker, coke oven or quarry."

Section 1035 of the Code of 1907 is in all respects similar to the act referred to, except that the age of the child is fixed in the act at 16 years. This statute has been construed by the Supreme Court, so as to make an employer of a child under 16, in any of the occupations named in the acts, an absolute insurer of the child's safety, against injury, while it is in and about the forbidden place. De Soto Min. & Dev. Co. v. Hill, 179 Ala. 186, 60 So. 583; Cole v. Sloss-Sheffield S. & I. Co., 186 Ala. 192, 65 So. 177, Ann.Cas.1916E, 99.

That being the case, a complaint that alleges the operation of a mine by the owner, its agents or employés, or causing its operation, under its supervision or direction, the employment of a child under 16 years of age, in and about a mine, or that the defendant permitted or suffered such child to be so employed, and an injury to such child while the child was at the forbidden place, which injury resulted from the employment and was incident to any of the risks or damage in and about the business, states a substantial cause of action. Authorities supra. It is the duty of every mine owner, who operates or retains supervision over a mine that is being operated, by agent or contractor, to see to it that no child under 16 years of age is employed in the mine. This is a duty fixed by statute, and when there is failure to perform this duty, and injury thereby occurs, the cause of action is complete. The complaint, though subject to demurrer on specific grounds, states a cause of action when the necessary allegations can be reasonably inferred from the allegations made. As illustration, the complaint in the instant case fails to specifically allege that the defendant retained supervision and control of the mine to such an extent that it could have prevented the employment of plaintiff. If this were so, the defendant could not be held liable for the injury. Good pleading would require the authority of the defendant to be stated in clear and unequivocal allegations, but no ground of demurrer takes this point, and where not taken, if a reasonable inference can be drawn from the language of the complaint that such was the case, the complaint will be held sufficient to sustain a verdict. The complaint alleges that the injuries complained of were proximately caused by defendant's agents or servants, who were at the time intrusted by the defendant with superintendence, and while acting within the line and scope of their authority permitted or suffered plaintiff to be employed, etc. From this the necessary inference will be drawn to sustain a verdict.

The defenses of assumption of risk and contributory negligence cannot be invoked in a case of this kind, and hence pleas 3 and 6 were properly eliminated on demurrer. De Soto Coal M. & Dev. Co. v. Hill, supra.

For the same reason, assignment of error No. 4 is not well taken. The fact that some one in charge of the mine told him not to lie down and go to sleep, that a car would run over him, would not excuse the defendant from the duty to keep the child out of the mine.

The appellant contends that the trial court erred in its various rulings relative to the admissibility of testimony regarding a certain note claimed to have been written by Susie Sparks the mother of appellee, to one Goodwyn, the superintendent of the South Brilliant Coal Company, in December, 1914, and these rulings are made the basis of assignments of error 5, 6, 7, and 8. The only reference to the note in the testimony of Susie Sparks is the narrative statement: "I did not write a note to Mr. Goodwyn in December, 1914." John Powell, a witness for the defendant, while being examined, was asked the question: "After you went to work at the office (South Brilliant Coal Company), did you not see there in the files, signed by the mother of Julius Sparks, and addressed to Mr. Goodwyn, the superintendent, a note in which it was stated, in substance, that Julius was over 14 years of age, and requesting Mr. Goodwyn to give him a job in the mines?" To this the witness answered, "Yes." The plaintiff objected to the question, and moved to exclude the answer, which objection and motion were sustained. R.H. Pollard, another witness for the defendant, when being examined, testified: "I saw the note to Mr. Goodwyn, signed by Mrs. Sparks, week before last at Brilliant Coal Company's office." Witness was then asked the question: "What was the substance of that note addressed to Mr....