Emp'rs Cas. Co. v. Understood
| Decision Date | 07 January 1930 |
| Docket Number | Case Number: 18698 |
| Parties | EMPLOYERS CASUALTY CO. v. UNDERSTOOD et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Master and Servant--Infants--Boy Under 16 Engaged in Fastening Bagging Around Cotton Bales at Compress Held "Assisting in Operation of Steam Machinery" in Violation of Child Labor Law.
In a mill or plant for compressing cotton to facilitate its transportation, where it is first subjected to a preparatory process performed by subjecting the cotton bales to pressure by means of a primary or low pressure press, and the bands thereby removed, and such low pressure press being operated by steam, it is steam machinery within the classification set out in Comp. Stat. 1921, sec. 7208; and a person employed to perform this work at the press, and whose duties were to stand at one side of the press, and by use of the wire hooks, tie or fasten together the bagging or covering partially over the cotton bales in order to hold the same temporarily intact, is assisting in the operation of steam machinery. And the employment of a child under 16 years of age to perform said work is prohibited by the child labor laws of this state, as set forth or promulgated in the foregoing section of the statutes.
2. Same--Test for Determining Whether Child's Occupation Dangerous.
Where a child over the age of 14 years and under the age of 16 years is employed in an occupation or position especially hazardous to life or limb, and the employer fails to comply with all the provisions of the law set forth and enumerated in sec. 7214, Comp. Stat. 1921, to determine the legality or illegality of the employment, the question of whether the employment of such child to engage in such occupation especially hazardous to life and limb, does not depend on whether these services required of the child, or the particular work to which the child is assigned, could not be performed without danger to life or limb, but on whether the employment, considering the inevitable wear and tear of the strain of the position, and the excitement due to youthful emotion, and the indifference to danger that would naturally follow from childish curiosity and inexperience, when the surrounding perils are considered, renders the position or occupation dangerous.
3. Same--Insurance--Boy Held Employed in Cotton Compress in Violation of Child Labor Law and Indemnity Insurance Company not Liable to Employer for Amount of Damages Recovered for Accidental Death of Boy.
Plaintiff employed a child under the age of 16 years to work in a cotton compress. The work to which the child was assigned rendered it necessary for him to stand by the side of a low pressure cotton compress, and, as the bands were removed from the cotton bale, fasten together the covering or bagging over the cotton, which fastening was done by means of steel wire hooks. One hundred and twenty bales of cotton were run through this press each hour, and the process or operation of fastening the covering together was repeated during the processing of each bale. After each operation, the cotton bale was removed 15 or 20 feet distant to a giant or high pressure press, the plates or jaws of which weighed several tons. The under jaw or plate moved by means of direct steam pressure and power exerted from a piston and cylinder beneath the floor. It was no part of the boy's duty to go nearer the high pressure press than 15 or 20 feet. On one occasion, however, only three or four hours after he was employed, he either voluntarily or involuntarily, for some purpose, went under the giant or high compression press, and the movable plate of the press made a downward stroke and crushed him to death. Held, that the child was employed in a position or occupation whereby his life or limb was especially endangered in violation of Rev. Laws 1910, sections 3728 and 3734, and hence a master, after being cast in an action for damages sustained by the child, cannot recover over against an indemnity insurance company on a policy excepting the company from liability for injuries suffered by any person employed in violation of law.
Commissioners' Opinion, Division No. 2.
Error from District Court, Oklahoma County; Wyley Jones, Judge.
Action by H. F. Underwood and John F. Wright, partners, doing business under the name of Elk City Compress & Warehouse Company, against the Employers Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed with directions.
Cheek & McRill, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter and J. N. Townsend, for defendant in error.
¶1 Defendant in error, hereinafter referred to as plaintiff, commenced this action against plaintiff in error, hereinafter referred to as defendant, to recover indemnity on a policy of insurance.
¶2 The policy is a combination employer's liability and indemnity contract. Paragraph 1 (d) of the policy was to "indemnify this employer against loss by reason of the liability imposed upon him by law on account of such injury to such employees (of the insured) as are legally employed. * * *"
¶3 During the period which the policy was in force, Fred Garrett, a boy under the age of 16 years, was killed while employed by plaintiff in its cotton compress in Elk City in this state. The parents of the boy sued the plaintiff, the compress company, for damages in the sum of $ 30,000, and while the cause was pending in the district court, the action was settled and compromised by the payment of $ 5,000 to the parents. The defendant was notified of the proposed settlement and in response to the notice advised plaintiff that "in event it developed that the deceased was legally employed," it would "reimburse plaintiff for the amount paid in settlement," not exceeding, however, the amount of the liability stipulated in the policy.
¶4 Plaintiff thereupon settled with and paid the parents of the deceased boy the sum of $ 5,000 in full for their claim. This action was then commenced to recover under the indemnity provisions of the policy. The defense is that the deceased was not legally employed by the plaintiff, in that he was employed to work in the compress: (1) In operating and assisting in operating dangerous machinery; (2) and operating and assisting in operating steam machinery; (3) that he was working in a factory or factory workshop where a machine was being used operated by steam power and electric power; (4) that the operation was especially hazardous to life and limb; (5) that the place where he was employed was a factory or factory workshop within the meaning of the child labor laws, and that he was a minor under 16 years of age and employed therein without the consent of his parents and without the age of the boy or his schooling certificate, as required by law, and no record was kept on file or posted showing the name, age, certificate of the minors employed, hours of work, etc.; that the minor did not have the required schooling to permit him to work, and that he was employed to work more than eight hours a day, and all told, therefore, his employment was in violation of Comp. Stat. 1921, sections 7208, 7209, 7211, 7212, 7213, and 7214.
The issues were tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.
¶5 It is conceded that the only question involved is whether or not the employment of the deceased, Fred Garrett, was legal. If the employment was legal, the plaintiff properly prevailed. If the employment was illegal, the judgment was contrary to law.
¶6 It is conceded that the boy at the date of his employment and injury was over the age of 15 years and under the age of 16 years. Whether his employment was legal depends upon two important factors; (1) The nature of the work he was employed to perform in regard to the character of the machinery involved; and (2) the nature of the place, in regard to hazards at and about where he was employed to work.
¶7 The purpose of the cotton compress was to compress cotton, which we assume is everywhere understood as converting a bale of cotton into more compact form. The word suggests its definition. The particular method used at this compress was to give the bale of cotton a preliminary pressing and preparation before subjecting it to a high pressure press. This primary press was known as the "dinky" press, and was operated substantially as follows: A bale of cotton was placed between the two plates, one of which under the force of steam power moved in the direction of the opposite plate. When the bale of cotton was inserted, power was applied and the bale of cotton was compressed to sufficient dimensions to permit the removal of the iron ties which had been placed thereon at the gin. After the ties were removed, in order to hold the bale of cotton together, a person on each side of the bale used hooks made of light steel wire, and with these hooks fastened together the covering containing the cotton, so that after it was released from the press the bale of cotton would remain temporarily intact. This process was repeated every 30 seconds. The manipulation of this machine required three men, or boys, one of which was a negro named Willie Easley, and one of the other two, the deceased, Fred Garrett. The negro boy operated the lever or throttle which raised or lowered the movable plate of the press. One boy worked on one side of the press fastening the bagging together with the hooks and another boy worked on the other side. One of these persons was Fred Garrett, the deceased.
¶8 After the cotton was removed from the so-called "dinky" press, it was taken to another press--the master press--about 15 or 20 feet away, and there subjected to powerful force, and the bale compressed to one-third of its original size. The work was performed with great speed. One hundred and twenty bales an hour were turned out of each of these presses. When the cotton was placed in the master press, of course the hooks fell off, or, with...
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