Gwitt v. Foss

• Decision Date: 03 April 1925
• Docket Number: No. 93.,93.
• Citation: 203 N.W. 151,230 Mich. 8
• Parties: GWITT v. FOSS et al.
• Court: Michigan Supreme Court

230 Mich. 8

203 N.W. 151

GWITT

v.FOSS et al.

No. 93.

Supreme Court of Michigan.

April 3, 1925.

Error to Circuit Court, Bay County; Saml. G. Houghton, Judge.

Action by Ignatius Gwitt, a minor, by Mary Gwitt, his next friend, against Edgar H. Foss and others. Judgment for plaintiff, and defendants bring error. Affirmed, on condition of remittitur.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Weadock & Weadock, of Saginaw, for appellants Edgar H. Foss and Edith Hope Foss.

M. L. Courtright, of Bay City, for appellant Walter I. Foss.

Henderson & Patterson, of Bay City, for appellee.

SHARPE, J.

Plaintiff sustained an injury resulting in the loss of his left arm just below the elbow, while working in defendants' box factory in Bay City at about midnight on May 22, 1923. He had verdict and judgment for $6,166. While there are many assignments of error, they may be conveniently discussed under a few headings.

1. The Declaration.-There were six counts. At the close of plaintiff's proofs, the request of defendants' counsel that certain of them be withdrawn from the consideration of the jury was overruled. In his charge the court instructed the jury that the defendants were guilty of negligence in employing the plaintiff, a boy less than 15 years of age, to work in their factory in violation of the statute. 2 Comp. Laws 1915, §§ 5330, 5331, as amended by Act No. 341, Pub. Acts 1919. This instruction was in harmony with the holding of this court in Grand Rapids Trust Co. v. Petersen Beverage Co., 219 Mich. 208, 189 N. W. 186, and Szelag v. Jordan, 223 Mich. 672, 194 N. W. 501. In view of this instruction, the fact that negligence was charged in different ways in the several counts of the declaration was immaterial and could in no way have been prejudicial.

2. Contributory Negligence.-(a) The first section of the Workmen's Compensation Act (2 Comp. Laws 1915, § 5423) reads as follows:

‘In an action to recover damages for personal injury sustained by an employé in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:

‘(a) That the employé was negligent, unless and except it shall appear that such negligence was willful.

‘(b) That the injury was caused by the negligence of a fellow employé.

‘(c) That the employé had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.’

At our suggestion, counsel in this case and in Brancheau v. Monroe Binder Board Co., 203 N. W. 149 (handed down herewith) have filed briefs discussing the application of this statute to the facts presented. It is clear that the title to this act and its several provisions apply only when the relation of employer and employee exists. There is no such relationship when a minor is employed in violation of a statute. Kruczkowski v. Polonia Pub. Co., 203 Mich. 211, 168 N. W. 932;Grand Rapids Trust Co. v. Petersen Beverage Co., supra; Acklin, etc., Co. v. Kutz, 98 Ohio St. 61, 120 N. E. 229, annotation and note in 14 A. L. R. 819.

(b) Is the defense of contributory negligence open to a defendant who employs a minor in violation of the statute? In Beghold v. Auto Body Co., 149 Mich. 14, 112 N. W. 691,14 L. R. A. (N. S.) 609, it was said:

‘The general rule is that a plaintiff cannot recover damages if the injury could have been avoided by the exercise of ordinary or reasonble care on his part. This rule obtains in cases where the negligence of defendant is negligence in law, arising from violation of a statute.’

Many authorities are cited to sustain the holding. The rule as stated was followed in Woods v. Kalamazoo Paper Box Co., 167 Mich. 514, 133 N. W. 482;Pequignot v. Germain, 176 Mich. 659, 142 N. W. 1092;Radic v. Thomas Jackson & Co., 178 Mich. 618, 146 N. W. 136;Kruczkowski v. Polonia Pub. Co., supra; Gee v. Brunt, 214 Mich. 679, 183 N. W. 949.

It is urged that the trend of recent decisions in other courts of last resort indicates that the rule so announced should be abandoned, or at least modified. These cases are collected and discussed in the cases in 61 L. R. A. 811, 12 L. R. A. (N. S.) 462, 20 L. R. A. (N. S.) 876, and 48 L. R. A. (N. S.) 667, and the notes thereto. These are so readily accessible that it seems unnecessary to cite them. They disclose a lack of harmony, unfortunate in view of the question presented. In many of the more recent cases, the courts seem inclined to hold the employer to a very strict responsibility for injury to a minor employed in violation of the law. They but give voice to the humanitarian instinct which prompted the enactment of such statutes. The courts, however, have no right to legislate. The statute here under consideration was enacted in 1909. Act No. 285. It must be presumed that the members of the Legislature at that time were fully informed of the rule announced in the Beghold Case, decided in 1907, and followed in the later cases above cited. The sections under which plaintiff's right to recover is predicated were amended in 1917, 1919, and 1923. Pub. Acts 1917, No. 280; Pub. Acts 1919, No. 341; Pub. Acts 1923, No. 206. The question presented is whether the statute changes the rule of the common law which requires a plaintiff in such an action to aver and prove that his injury was not due to his own negligence. This court held that it did not. It is the duty of the courts when construing a statute to ascertain and give effect to the legislative intent. When enacting the present law or amending it, the Legislature might easily have provided otherwise. No such action having been taken, we must assume that it was content with the construction which had been placed on the similar provisions of the former act.

Defendants' motion for a directed verdict because the contributory negligence of plaintiff was the proximate cause of his injury was overruled. On such a motion, the testimony must be considered in the light most favorable to plaintiff. There were 11 tables in the factory, each equipped with a ripsaw and a cut-off saw, with aisles separating them. These saws were running when the plant was in operation. On the night in question, plaintiff was employed in bundling...