Dusha v. Va. & Rainy Lake Co.

• Decision Date: 20 February 1920
• Docket Number: No. 21603.,21603.
• Citation: 176 N.W. 482,145 Minn. 171
• Parties: DUSHA v. VIRGINIA & RAINY LAKE CO.
• Court: Minnesota Supreme Court

145 Minn. 171

176 N.W. 482

DUSHA

v.VIRGINIA & RAINY LAKE CO.

No. 21603.

Supreme Court of Minnesota.

Feb. 20, 1920.

Appeal from District Court, St. Louis County; Bert Fesler, Judge.

Action by Katherine Dusha, administratrix of the estate of William Novak, deceased, against the Virginia & Rainy Lake Company. From an order striking certain allegations of the answer defendant appeals. Order affirmed.

Syllabus by the Court

The statute, Gen. St. 1913, § 3848, prohibits the employment of a child under 16 in certain dangerous employments. The defense of the child's contributory negligence, or of his assumption of risks, is not open to an employer who violates the statute.

The statute provides that in an action brought against the employer of such a child such employer shall not be deemed to have violated the statute if he has obtained and kept on file and affidavit of the parent or guardian to the effect that the child is not less than 16. This, when the child is under 16, is the only defense against the charge of a violation of the statute; and a representation by the boy, and by his father and mother, who are, under the statute, the beneficiaries of a cause of action for his death, that he was not less than 16, is not a defense to such an action. Abbott, MacPherran & Gilbert, of Duluth, for appellant.

John Jenswold and John D. Jenswold, both of Duluth, for respondent.

DIBELL, J.

Action for personal injuries sustained by the plaintiff's intestate while in the employ of the defendant. The beneficiaries are the father and mother. The deceased was less than 16 years of age and was employed about dangerous machinery in violation of G. S. 1913, § 3848. The answer alleged that the deceased assumed the risk and that his negligence contributed to his death; and, further, that he and his father and his mother represented that he was more than 16 at the time of his employment and thereby procured it. These allegations were stricken on the motion of the plaintiff. The defendant appeals from the order striking them. The record presents two questions:

(1) Whether contributory negligence or the assumption of risks is a defense.

(2) Whether the representation by the deceased, and by his father and mother, the beneficiaries of the action, that he was more than 16, thereby inducing his employment, prevents a recovery.

[1] 1. The deceased was employed in the defendant's sawmill, working about machinery, as a lath puller. He was under 16 years of age. His employment was in violation of G. S. 1913, § 3848. The statute has the following proviso:

‘Provided, that in any action brought against an employer of any child under sixteen (16) years of age on account of injuries sustained by the child while so employed, if the employer shall have obtained, and kept on file in like manner as herein provided for employment certificates, an affidavit of the parent or guardian, stating in substance that the child is not less than sixteen (16) years of age, such employment shall not be deemed a violation of this act. Any person employing any child in violation of the provisions of this section shall be guilty of a misdemeanor.’

The purpose of the statute is to protect children in life and limb by prohibiting their employment in dangerous occupations where because of their immaturity they are likely inappreciative of risks and prone to be careless and heedless. So the statute altogether prohibits their employment and makes it a misdemeanor. A very great weight of authority establishes the doctrine that an employer who violates such a statute cannot assert contributory negligence nor the assumption of risks as a defense. Pinoza v. Northern Chair Co., 152 Wis. 473, 140 N. W. 84; Reiten v. Stearns Lbr. Co., 166 Wis. 605, 165 N. W. 337;Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N. E. 229, 139 Am. St. 389; Waverly Co. v. Beck, 180 Ind. 523, 103 N. E. 332;Marino v. Lehmaier, 173 N. Y. 530, 66 N. E. 572,61 L. R. A. 811;American Car, etc., Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766;Rookstool v. Cudahy Packing Co., 100 Neb. 118, 851,158 N. W. 440, 583;Sanitary Laundry Co. v. Adams, 183 Ky. 39, 208 S. W. 6; Louisville, etc., Co. v. Lyons, 155 Ky. 396, 159 S. W. 971,48 L. R. A. (N. S.) 667;Stehle v. Jaeger, etc., Co., 220 Pa. 617, 69 Atl. 1116,14 Ann. Cas. 122;Lenahan v. Pittston Coal Co., 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885; Glucina v. Goss Brick Co., 63 Wash. 401, 115 Pac. 843,42 L. R. A. (N. S.) 624;Krutlies v. Bulls Head Coal Co., 249 Pa. 162, 94 Atl. 459, L. R. A. 1915F, 1082;Beauchamp v. Sturges, etc., Co., 250 Ill. 303, 95 N. E. 204, affirmed in 231 U. S. 320, 34 Sup. Ct. 60, 58 L. Ed. 245, L. R. A. 1915A, 1196. A few cases make a distinction between assumption of risks and contributory negligence, holding the latter a defense and the former not. Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. 1912B, 797;Elk Cotton Mills v. Grant, 140 Ga. 727, 79 S. E. 836,48 L. R. A. (N. S.) 656.

In Anderson v. C. N. Nelson Lumber Co., 67 Minn. 79, 69 N. W. 630, it was held that the failure of an employer to respond to a statutory duty to guard dangerous machinery did not change the rule of law as to contributory negligence and assumption of risks by one working about the unguarded machinery. This holding has been followed with a suggestion that if changed it should be changed by the Legislature. It has some force in the present connection. In a number of cases we have assumed that under statutes resembling in some respects the one before us and prohibiting the employment of children in dangerous occupations, the ordinary rule as to the assumption of risks and contributory negligence prevailed; and we have discussed contributory negligence and assumption of risks as if they were effective defenses. In none of such cases was it necessary to hold that they were or were not for the verdict negatived them, nor was there such a holding. Perry v. Tozer, 90 Minn. 431, 97 N. W. 137,101 Am. St. Rep. 416; Fitzgerald v. International, etc., Co., 104 Minn. 138, 116 N. W. 475;Jacobson v. Merrill & Ring Mill Co., 107 Minn. 74, 119 N. W. 510,22 L. R. A. (N. S.) 309.

The statute makes the forbidden employment a misdemeanor. It establishes the definite policy of the state upon one phase of child labor. The employer must not employ about dangerous machinery boys under 16. We hold in harmony with the holdings elsewhere that contributory negligence and assumption of risks are not defenses open to the employer.

[2] 2. The question whether a recovery is prevented by the representations of the boy, and of his father and mother, the beneficiaries of the action, that he was not within the prohibited age, is one of some...