Frye's Guardian v. Gamble Brothers
| Decision Date | 30 April 1920 |
| Citation | 188 Ky. 283 |
| Parties | Frye's Guardian v. Gamble Brothers, Incorporated. |
| Court | Kentucky Court of Appeals |
Appeal from Jefferson Circuit Court. (Common Pleas, Division No. 1).
JAMES H. SPEED, J. K. CLAXTON, IRWIN & IRWIN and J. L. RICHARDSON for appellants.
HUMPHREY, CRAWFORD, MIDDLETON & HUMPHREY for appellees.
This suit involves primarily the construction of section 4911, vol. 3, Kentucky Statutes, which is section 30 of the act of the general assembly commonly known as the Workmen's Compensation Act, being chapter 33 page 354 of the acts of 1916; and incidentally there is also involved the construction, or rather the application, of subsection 10 of section 331a to the provisions of the section first above mentioned, which is in these words:
So much of subsection 10 of section 331a referred to, which is a part of the statute commonly known as the Child Labor Law, as bears upon the question involved, says:
Subsection 1 of section 331a names certain employments at which no child under fourteen years of age may be employed, and provides that a child under that age may not be employed in any character of service while the public schools are in session in the district where it resides. Subsection 2 prescribes how a child between the ages of fourteen and sixteen may be employed at the places prohibited in subsection 1 by procuring a certificate from the authority therein designated; while subsection 9 expressly forbids the employment of infants under sixteen years of age to do certain classes of work, or work at certain machinery therein designated, although the certificate provided by subsection 2 may have been obtained.
The questions presented arise in this way: Appellant and plaintiff, Harvey Frye, who sues by his statutory guardian, A. F. Dyer, was employed by the appellee and defendant, Gamble Brothers, a corporation, to work in its planing mill used in connection with its business of wholesale lumber dealers. He sustained injuries to his hand while working at a planer or joiner, and he brought this suit to recover damages therefor, alleging in substance that he was under sixteen years of age at the time of his employment, as well as at the time of the injury, and that he was put to work at one of the machines or places mentioned and prohibited in subsection 9, supra; that he was thereby, at the time of his injury, "employed in willful and known violation by the employer" (the defendant) of the statute in this state "regulating the employment of minors," which, as he contends in his petition, authorized his guardian to elect to sue for his injuries in a court of law instead of applying for and accepting compensation under the Workmen's Compensation Act, as provided by section 4911, supra, the terms of which act had been accepted by both parties in the manner provided therein, and under which the plant of the defendant was being operated at the time.
It was also averred in the petition that the machinery at which plaintiff was working at the time he sustained his injuries was dangerous; that it was not guarded in the manner provided in subsection 10 of section 331a, supra, and it is insisted that the failure of the defendant to so guard it constituted such an employment of plaintiff "in willful and known violation" of the statute pertaining to the employment of minors, as is contemplated by section 4911, supra, and that his guardian was thereby authorized by that section to elect to sue for his injuries rather than accept compensation under the Workmen's Compensation Act, although plaintiff may have been, at the time of his employment, or at the time of his injury, over sixteen years of age.
The court struck from the petition the latter allegation with reference to the machinery being unguarded in violation of the provisions of subsection 10, and sustained a demurrer to the petition, which, upon plaintiff's declining to plead further, was dismissed, and complaining of these rulings of the court plaintiff prosecutes this appeal.
The ground upon which the court sustained the demurrer to the petition was that the legislature intended by the enactment of section 4911 to provide that before the election by the guardian of the infant, or in case of his death by his representative, to sue as therein permitted, the Compensation Board must first determine the facts upon which the right of election depended, towit, the employment of the infant "in willful and known violation" of the Child Labor Law under a reference to it for that purpose, after which the guardian or representative, as the case might be, might exercise such right, and that the finding by the board of such precedent fact would be conclusive upon the parties to any suit which the guardian or representative might thereafter institute. In other words, the court held that it was the intention of the legislature in enacting section 4911 to withhold from the guardian or representative of the infant the right to determine for themselves the existence of the facts authorizing the election, and to lodge that right exclusively with the Compensation Board, whose finding thereon would be conclusive in any subsequent suit.
The argument of the court, as well as the attorneys for appellee, in support of that construction is in substance, that workmen's compensation laws were intended to remedy many existing evils with reference to the remuneration of injured servants, and that they should be broadly and liberally construed so as to effectuate the purpose of the legislature in their enactment; that since the election by the guardian or personal representative of the infant to sue under section 4911 is a waiver of any right to subsequently claim compensation under the act, it was not intended by the legislature that such far reaching consequences affecting the interests of the infant employee should be entrusted to the individual determination of such fiduciaries. That the premise for the conclusion reached by the court is true, i. e., that such statutes should receive a broad and liberal construction, there can be no doubt. Young v. Duncan, 218 Mass. 346; In re Petrie, 215 New York 335; City of Milwaukee v. Miller, 154 Wis 652; Foth v. Macomber & Whyte Rope Co., 161 Wis. 549, and Phil Hollebach Co. v. Hollenbach, 181 Ky. 262. But, howsoever worthy the end to be accomplished, courts can not amend statutes under their power to liberally construe them. Such power of amendment is possessed only by the legislature, and to that authority the salutary reasoning of the court, and the like argument of the counsel in this case might be appropriately addressed.
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... ... employment of minors, in such event the guardian or personal ... representative of the minor may sue to recover damages as ... In the ... cases of Frye's Guardian v. Gamble Bros., 188 ... Ky. 283, 221 S.W. 870, and D. E. Hewitt Lbr. Co. v ... ...