Dale v. Wheeling Steel Corp., (No. 7053)

• Decision Date: 19 April 1932
• Docket Number: (No. 7053)
• Citation: 112 W.Va. 138
• Parties: Paul E. Dale v. Wheeling Steel Corporation
• Court: West Virginia Supreme Court

112 W.Va. 138

Paul E. Dale

v.Wheeling Steel Corporation

(No. 7053)

Supreme Court of Appeals of West Virginia.

Submitted March 24, 1932.

Decided April 19, 1932.

1. Master and Servant

A count in a declaration alleging injuries received by a child fifteen years of age, while employed in a gainful occupation, without the work permit required by Code 1923, chapter 15-H, section 73, and charging that the failure of the employer to obtain the permit was the proximate cause of the injury is good on demurrer. Bobbs v. Press Co., 89 W. Va. 206, 108 S. E. 879.

2. Same

Sections 71, 72 and 73 of chapter 15-H, Code 1923, discussed.

Error to Circuit Court, Ohio County.

Action by Paul E. Dale against the Wheeling Steel Corporation. Judgment in favor of the plaintiff, and the defendant brings error.

Affirmed.

Wright Hugus, J. E. Bruce and B. A. Klieves, for plaintiff in error.

John P. Arbenz, for defendant in error.

Hatcher, President:

This is an action of damages for a personal injury. Prom a judgment in favor of plaintiff, the defendant secured a writ of error in this Court.

The defendant demurred to the declaration and each count thereof in the lower court, and now insists upon its demurrer here. The declaration has two counts, which will be taken up as numbered.

First count. This count alleges, in brief, that on February 8, 1926, the defendant was engaged in manufacturing and preparing for sale and shipment, metal sheets and metal products of various kinds; that it was its duty to employ such workmen as it might lawfully employ, but that it disregarded the laws of West Virginia and unlawfully employed the plaintiff, who was then only fifteen years and eight months of age, who was without experience in the work of defendant, and who was given no instruction (in the language of the count) "as to the dangerous character of the work at which he was thus unlawfully employed; and as the proximate result of his said unlawful employment by the defendant, as aforesaid, he * * * was then and there severely * * * injured", etc. This count was drawn with reference to Code 1923, ch. 15-H, sec. 72, which forbids the employment of a child under the age of sixteen years in any mine, quarry, tunnel or excavation and "in any occupation danger- ous to the life or limb * * * of such child." The count contains no allegation and no statement of facts showing that the occupation of plaintiff under the defendant was dangerous. As the count is predicated solely on the theory that the work conducted by defendant was unsafe and the employment of plaintiff unlawful under the statute, the danger of the occupation should not be left entirely to a mere recital or to judicial inference. The court might assume that some of the work in manufacturing and shipping metal products is necessarily perilous, but the court must also assume that some of the work (office work for instance) in such a business is not inherently hazardous. The count is, therefore, defective in failing to contain averment that the work assigned to plaintiff was dangerous, and the demurrer to it should have been sustained. This error does not affect the integrity of plaintiff's judgment, however, as his counsel announced in his opening statement at the trial that he would base his case solely upon an unlawful employment, and consistent therewith he offered no evidence to show that the work was dangerous to children.

Second count. This count quotes the paragraph of sec. 73 of ch. 15-H, Code, which provides that no child between the ages of fourteen and sixteen shall be permitted to work "in any gainful occupation", unless the employer "obtains and keeps on file * * * a work permit issued by the superintendent of schools", etc.; and the count alleges that the defendant did not secure such permit, and as the proximate result thereof, the plaintiff was injured. A count based on this very section and similar in all material respects to this count was held sufficient "to show prima facie negligence" in the well considered case of Bobbs v. Press Co., 89 "W. Va. 206, 210, 108 S. E. 879. Consequently, the sufficiency of this count is not an open question, and the demurrer thereto was properly overruled.

At the trial the plaintiff rested his case on proof of his age and his injury in the employment of defendant, and that it had not secured the statutory work permit. This proof made a prima facie case. "The employment of a child in a gainful occupation without such permit is as much of a violation as the employment of the child under the age prohibited by the statute. The object of each is the same. The principle accentuated in our decisions above cited controls here. We therefore conclude that the employment of such child without the work permit, and the subsequent injury in the...