Daniels v. Charles Boldt Co.
| Decision Date | 04 April 1916 |
| Docket Number | 2835. |
| Citation | 88 S.E. 613,78 W.Va. 124 |
| Parties | DANIELS v. CHARLES BOLDT CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
The declaration in this case by an infant is good on demurrer, as one alleging a general employment, the relationship of master and servant, and defendant's duties in respect thereto and a breach of those duties, but is not sufficient as one alleging a special contract of employment, and breaches thereof, resulting in personal injuries to complainant.
To have the protection afforded under chapter 10, Acts of the Legislature of 1913 [Code 1913, c. 15P, §§ 1-55, secs 657-711], known as the Workmen's Compensation Act, an employer must not only have paid the premiums provided thereby, but the injured employé must have had actual notice that his employer had elected to pay into the Workmen's Compensation Fund, the premiums provided by said act; but typewritten or printed notices thereof, when duly posted in conspicuous places about his place or places of business, as required by said act, will, as provided thereby, constitute sufficient notice to all his employés that he has made such election.
Defendant's instruction numbered 2 was rightly rejected, and number 3 properly modified, as not presenting clearly and without confusion the law of the Workmen's Compensation Act applicable to the facts proven on the trial.
It is actionable negligence for an employer who has employed an infant to work in a safe place, in or about the construction of a building, to order him to work in another place, of known danger for employés of that age, and from which place he falls and is injured.
The verdict in this case, $2,500, for permanent injuries to a boy 15 years of age, is not excessive.
Error to Circuit Court, Cabell County.
Action by Charles H. Daniels, who sues by his next friend, against the Charles Boldt Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Vinson & Thompson, of Huntington, for plaintiff in error.
Marcum & Shepherd and J. W. Perry, all of Huntington, for defendant in error.
Plaintiff, an infant, suing by next friend, recovered against defendant a verdict and judgment for twenty-five hundred dollars, for alleged personal injuries, the result of the alleged negligence of defendant while he was employed as a water carrier about defendant's building, then in the course of construction.
The first point of error relied on to reverse the judgment is the overruling of defendant's demurrer to the declaration. We think the pleading good, as one averring a general employment, the relationship of master and servant, and of the general duty of the master arising out of that relationship to use "due, reasonable and ordinary care" to provide the plaintiff with a reasonably safe place to work "in and about" the building of the defendant, and the duty to use reasonable care for the safety of plaintiff, an infant employee, while engaged about his work; and also breaches of those duties, and that the demurrer was therefore properly overruled.
In the brief of his counsel it is asserted that plaintiff's contract of employment was made with his mother, and upon the terms "that the boy was not to be employed at dangerous and hazardous work, nor at a place where he could get hurt," this because of his youth and inexperience, and the trial seems to have been conducted by plaintiff's counsel on the theory of such a special contract, and negligence of defendant in breaching it, resulting in the injuries sustained, and for which damages were sought.
But no such special contract of employment was pleaded. There was perhaps an attempt to do so in the paragraph averring breaches of duty under the general contract of employment, but what is in fact there averred is not a contract, but that plaintiff's mother warned defendant not to permit plaintiff to work at any other place than upon the ground floor of said building, and not to permit him to work on the second and third stories thereof. There is an attempt in the same paragraph to aver disregard of these warnings by defendant, but as an attempt to allege a special contract on the part of the defendant, and a breach thereof, we think the effort was entirely abortive, and ineffectual. But as stated, the declaration being good as one averring a general employment, and the duty because of plaintiff's youth and inexperience to use reasonable care for his safety, and breaches of those duties by defendant respecting his employment, it was good as presenting that kind of a case.
But notwithstanding the character of the declaration the evidence of the plaintiff's mother, tending perhaps to prove such a special contract of employment, was offered and received without apparent objection, and the case seems to have been tried upon that theory; though no instructions were offered or given to the jury upon this theory of the case.
Plaintiff's counsel in their brief seem to urge this theory of the case in support of the judgment. The law seems to be that a parent in his contract of employment may stipulate the kind of work his infant child is to be employed in, and that a breach of such a contract by the employer will support an action for the death or injury of the child, due to negligence of the employer therein. Haynie v. N.C. Electric Power Co., 157 N.C. 503, 73 S.E. 198, 37 L.R.A. (N. S.) 580, Ann.Cas. 1913C, 232. But such a case must be presented by the pleadings as well as by the proof. Union P. R. Co. v. Fort, 17 Wall. (U. S.) 553, 559, 21 L.Ed. 739.
The case here presented is not like that of Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 So. 914. There the gravamen of the action was the employment of an infant at a dangerous place without the consent of his parents. It involved no alleged breach of duty, growing out of the contract of employment, to use due care to furnish the employee with a reasonably safe place to work, as alleged in this case.
Next, it is complained that the court erroneously rejected defendant's instruction numbered 2, and erroneously modified and gave as modified instruction numbered 3. By special plea filed, and on which issue was joined, defendant pleaded in bar the benefit of chapter 10, Acts of the Legislature of West Virginia, 1913, known as the Workmen's Compensation Act, and compliance by it with all the terms and provisions thereof, by paying the monthly premiums, dues and assessments, required by said act, and notice thereof to all its employees, and specially to plaintiff before the injuries sustained by him.
Sections 22 and 23 of said act provide:
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