Daly v. Swift & Co.
| Decision Date | 20 May 1931 |
| Docket Number | 6747. |
| Citation | 300 P. 265,90 Mont. 52 |
| Parties | DALY v. SWIFT & CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Frank L. Riley Judge.
Action by Philip Daly against Swift & Co. From a judgment for plaintiff, defendant appeals.
Cause remanded, with directions to modify judgment, and judgment as modified, affirmed.
John K Claxton and A. C. McDaniel, both of Butte, for appellant.
Lowndes Maury and R. Lewis Brown, both of Butte, for respondent.
Appeal from a judgment in favor of plaintiff, Philip Daly, and against Swift & Co., a corporation, for the sum of $2,000 damages, with interest, for the death of plaintiff's infant son resulting from injuries received while working in the basement of defendant's meat packing house at Butte.
Stripped of its formal parts and condensed, the complaint filed alleges that in August, 1928, defendant entered into a contract with the York Ice Company for the removal of an old ice plant from the basement and the installation of a new one. The removal of the old plant could not be effected by the use of defendant's freight elevator, as defendant did not agree to the "boring" of the wall of the building. The York Ice Company sold the old ice plant to David Mottleson, a junk dealer, on condition that he remove it, and, although the ice company and Mottleson were "so-called independent contractors," yet, in making the contracts and doing the work, they were "furthering solely and entirely the plan of work and the business desires and designs of defendant" within its plant, "occupied, owned, controlled and possessed by it." A part of the machinery to be removed was an iron wheel, six feet in diameter and ten inches thick, which was divided into halves, each half weighing approximately 1,350 pounds. It is alleged that the moving of a half of the wheel required the services of four or more grown men of skill and experience, which fact was known to Swift & Co., but who negligently permitted the moving by only two men and the child, Stewart Daly; that this work was "inherently and intrinsically of greatest danger to all persons concerned about the work, even if due and extraordinary care were exercised," and the duty to exercise due care was nondelegable; that the work constituted an attractive and dangerous nuisance to boys of the age of Stewart Daly, and defendant negligently failed to prevent his access thereto.
It is further alleged that young Daly, under 12 years of age, was, without the knowledge of his parents, employed by Mottleson "as a casual servant of Mottleson and was an invitee of Swift & Company" in and about the basement and elevator for a period of four days, helping to remove the machinery. On the fourth day, by reason of inherent defects in the elevator and its unskilled handling by Mottleson, a half of the wheel described was upset, crushing the boy's foot, from which injury he died three days later. The actions of the parties at the time of the catastrophe are described in detail.
The complaint further alleges that Swift & Co. knowingly, negligently, and wrongfully permitted the boy to be employed in its place of business, unknown to his parents, "and such conduct of Swift & Company was a proximate and efficient and direct cause of the injury."
Defendant filed a demurrer in which, in addition to the statement that the complaint does not state facts sufficient to constitute a cause of action, it alleged that the complaint was uncertain, ambiguous, and unintelligible in many particulars pointed out. The demurrer was overruled, and thereafter defendant answered, denying liability, but admitting the facts alleged. The answer then sets up three "affirmative" defenses. The first of these in effect admits knowledge of the boy's employment and that he was working in defendant's building as alleged, but alleges that he was employed by Mottleson and took orders from him alone, and that "any injuries inflicted upon said Stewart Daly were caused by the said negligence of his fellow servant and employer." The second defense is that the ice company and Mottleson were independent contractors and neither was under the control of the defendant. The third was evidently abandoned and need not be mentioned.
The proof on the part of plaintiff established the facts as alleged, except that the superintendent and foreman of defendant company admitted knowledge of the boy's presence and activities in carrying tools and picking up bolts on but one day, the day before he was injured, and as a part of their testimony stated that Mottleson was instructed not to attempt to operate the elevator, but to call upon an employee of defendant for that service, which instruction he disobeyed and was operating the elevator himself at that time.
Plaintiff having rested, defendant moved for nonsuit, and, on the overruling of the motion, submitted the case on plaintiff's testimony; consequently there is no conflict in the evidence.
1. The defendant first contends that the court erred in overruling its special demurrer to the complaint.
Recognizing the rule declared in Pue v. Wheeler, 78 Mont. 516, 255 P. 1043, that answering over waives demurrer on the grounds of uncertainty, ambiguity, and unintelligibility, counsel declare that it is based solely on Lynch v. Bechtel, 19 Mont. 548, 48 P. 1112 "which is without reason or authority," and, without the citation of authority to the contract, insist that these cases should be overruled.
While, in the cases criticised, this court did not state the reason for the rule or cite authorities in support of it, the reason for the rule is that the objections urged have to do only with the manner in which the necessary allegations of a complaint are set out, and do not suggest that any necessary element of plaintiff's cause of action is lacking. When, therefore, notwithstanding the original contention that a complaint is so uncertain or ambiguous or unintelligible that defendant cannot frame an answer to it, the defendant answers, he, in effect, concedes that he was wrong in his contention and admits the sufficiency of the complaint and his understanding thereof to enable him to frame his answer.
The rule announced in Pue v. Wheeler, above, is the general rule; it being generally declared that such action amounts to a withdrawal of the demurrer. The following rule is in accord with our decisions on the subject: "If the demurrant wishes to take advantage of any supposed error in overruling the demurrer, he must let final judgment be entered upon it; for if he shall answer, after such ruling, he waives any objection to the pleading, except for the two radical defects, and the question cannot be afterwards raised." Bliss on Code Pleading (3d Ed.) 634. "The general rule seems to be well settled"--citing authorities. Lonkey v. Wells, 16 Nev. 271. It originally prevailed in California, but was abrogated after the Legislature of that state had provided that "a demurrer is not waived by filing an answer at the same time." (Cal. Code Civ. Proc. 472), the court declaring "a fortiori it is not waived by filing an answer, upon leave given by the court, subsequently to the filing and overruling of the demurrer" (Curtiss v. Bachman, 84 Cal. 216, 24 P. 379). We have no such provision as section 472, above. Defendant waived its special demurrer by answering over.
2. The principal question presented is whether or not the complaint states a cause of action (failure to do so being one of the "radical" defects mentioned by Bliss as an exception to the rule just announced), showing, as it does, that deceased was in the employ of Mottleson as an independent contractor.
Section 3095, Revised Codes 1921, provides that "any person *** or corporation engaged in business in this state, or any agent, officer, foreman, or other employee having control or management of employees, or having the power to hire or discharge employees, who shall knowingly employ or permit to be employed any child under the age of sixteen years, to render or perform any service or labor, whether under contract of employment or otherwise, in, on, or about any *** freight elevator, or where any machinery is operated *** shall be guilty of a misdemeanor."
Counsel for defendant assert that this statute has no application to this case, first contending that it is rendered inapplicable, as defendant had no "control or management" of, or power "to hire or discharge," Stewart Daly. These phrases, however, follow the enumeration of employees of the person or corporation doing business, who may also be liable under the act, without a comma, and therefore have that enumeration as a predicate. Omitting as, practically, a parenthesis, that portion of the statute, we have the applicable provisions of the act reading: "Any *** corporation *** who [which] shall knowingly employ or permit to be employed any child under *** sixteen years, to render or perform any service or labor, whether under contract of employment or otherwise, in, on, or about any *** freight elevator *** shall be guilty of a misdemeanor."
Had plaintiff sought to hold the superintendent or foreman, the fact that such employee of the company had no control over the boy who was injured and no power to discharge him would have been a defense to the action, and the statute under consideration would have been inapplicable, but where the action, as here, is against the owner or operator alone, these matters are unimportant; the question being whether or not such a defendant knowingly permitted the boy to be worked in or about any of the prohibited employments.
The act relied upon, generally referred to as the Child Labor Law, is a penal statute. "Evidently the Legislature considered the question of the employment of...
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