Gibson v. The Kansas City Packing Box Company

• Decision Date: 07 July 1911
• Docket Number: 17,168
• Parties: JAMES GIBSON, Appellee, v. THE KANSAS CITY PACKING BOX COMPANY, Appellant
• Court: Kansas Supreme Court

116 P. 502

85 Kan. 346

JAMES GIBSON, Appellee, v. THE KANSAS CITY PACKING BOX COMPANY, Appellant

No. 17,168

Supreme Court of Kansas

July 7, 1911

Decided July, 1911.

Appeal from Wyandotte district court.

Cause reversed.

SYLLABUS

SYLLABUS BY THE COURT.

"FACTORY ACT"--Gives No Right to Father for Loss of Services of Minor Son. A father sued the proprietor of a manufacturing establishment for loss of services resulting from an injury received by his minor son by reason of failure to guard the machinery as required by the factory act. (Laws 1903, ch. 356, Gen. Stat. 1909, §§ 4676-4683.) Held, that such act gives the father no rights in this respect in addition to his rights at common law, and only the son himself can recover for such injury.

J. C Rosenberger, Kersey Coates Reed, and A. L. Berger, for the appellant.

Thomas A. Pollock, and Edward C. Little, for the appellee.

OPINION

WEST, J.:

This case presents a new question. Can a father recover for loss of his minor son's services by reason of injuries caused to the son by failure to observe the requirements of the factory act? That act (Laws 1903, ch. 356, Gen. Stat. 1909 §§ 4676-4683), is entitled "An act requiring safeguards for the protection of all persons employed or laboring in manufacturing establishments, and providing civil remedies for all persons so engaged, or their personal representatives, in cases where any such person may be killed or injured while employed or laboring in any manufacturing establishment which is not properly provided with the safeguards required by this act." Section 1 requires elevators, hoisting shafts or well-holes to be properly and substantially enclosed, "in order to protect the lives or limbs of those employed in such establishments." Sections 2 and 3 require certain hand-rails, doors, fire-escapes and drop-ladders. Section 4 requires machinery, where practicable, to be properly and safely guarded "for the purpose of preventing or avoiding the death of or injury to the persons employed or laboring in any such establishment."

Section 5 is as follows:

"If any person employed or laboring in any manufacturing establishment shall be killed or injured in any case wherein the absence of any of the safeguards or precautions required by the act shall directly contribute to such death or injury, the personal representatives of the person so killed, or the person himself, in case of injury only, may maintain an action against the person owning or operating such manufacturing establishment for the recovery of all proper damages. In cases where the action is brought by the personal representative of the deceased, said action shall be governed in all respects not herein provided for by the provisions of the statutes now in force which authorize and regulate the bringing of actions to recover damages in cases where the death of one is caused by the wrongful act or omission of another; provided, action shall be commenced in the county where the accident occurred."

Section 6 provides that in all actions brought under the act it shall be sufficient to prove in the first instance that the death or injury resulted in consequence of the failure to provide safeguards as required by the act, or that the failure directly contributed to such death or injury.

The plaintiff sued the defendant company for loss of services of his minor son, who was injured in the plant of defendant, the first cause of action being squarely under the factory act and the second under the common law. A demurrer to the first cause and a motion to elect were overruled and the trial proceeded on the petition as drawn, resulting in a verdict for plaintiff. The pleadings, the evidence and the instructions so commingle the statutory and common-law liability that it is impossible to determine whether the plaintiff would or should have recovered on the latter alone, hence, unless he had a right to proceed on both a reversal is imperative. Two theories are advanced: one, that the parent may recover for a failure of duty toward the son whether such duty be one arising from the common law or by statute; the other, that the factory act created a duty beyond that required at common law, and that its terms themselves indicate no legislative intention to add to the parent's right whatever, in case of an injury, such right being limited to the son himself. It is said that the ordinary liability in such cases is based on compensation, but it would be more accurate to say that the object to be effected is compensation, and that the liability arises out of a violation of the maxim "sic utere two, ut alienum non laedas." A manufacturer employing a workman owes him ordinary care, and likewise owes the father of a minor similar care, as a lack thereof may cause physical and financial injury to the one and financial loss to the other. It was well said in Faris v. Hoberg et al., 134 Ind. 269:

"In every case involving actionable negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) A failure by the defendant to perform that duty; and, (3) An injury to the plaintiff from such failure of the defendant." (p. 274.)

"When these elements are brought together they unitedly constitute actionable negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient." (29 Cyc. 420.)

A statute creating a duty can be invoked only by one to whom such duty is owed. In Atchison T. & S. F. R. Co. v. Reesman, 60 F. 370, it was held that a railroad employee could recover for an injury caused by the company's failure to erect and maintain sufficient fences, for the reason that the statute requiring such fences was designed to protect persons on trains as well as cattle owners, and cases are there cited to the effect that an act requiring a duty to the public, may give a right of action to anyone injured by failure to observe its requirements. It was held, however: "The purpose of fence laws, of this character, is not solely the protection of proprietors of adjoining fields. It is also to secure safety to trains." (p. 373.)

In St. L. & S. F. Rly. Co. v. Payne, 29 Kan. 166, one whose horses were hitched at a mill about one hundred yards from a railroad crossing sued for damages caused by a train frightening them, so that they ran into it and were injured. The action was brought on the theory that the railroad company owed plaintiff the duty to sound a whistle eighty rods from the crossing, which, if sounded, would have enabled him to get his team to a place where they would not have been frightened. While the statute requires such a warning, it was held that the company owed no duty in that respect to one not on the highway at or near the crossing.

In Clark v. Mo. P. Rly. Co., 35 Kan. 350, 11 P. 134, it was held that it was not negligence toward one on a road or street which did not cross the track to fail to sound the whistle.

In Faris v. Hoberg et al., 134 Ind. 269, 33 N.E. 1028 it was held that the owner of premises is under no legal duty to keep them free from pitfalls or obstructions for the accommodation of mere licensees, citing Thiele et al. v. McManus, 3...