Harper v. Cook, 10626

• Decision Date: 11 June 1954
• Docket Number: No. 10626,10626
• Citation: 82 S.E.2d 427,139 W.Va. 917
• Court: West Virginia Supreme Court
• Parties: HARPER, v. COOK.

Page 427

82 S.E.2d 427

139 W.Va. 917

HARPER, v. COOK.

No. 10626.

Supreme Court of Appeals of West Virginia.

Submitted April 27, 1954.

Decided June 1, 1954.

Dissenting Opinion June 11, 1954.

Syllabus by the Court.

1. The employment of a child in violation of provisions of Article 6 of Chapter 21 of the Code, as amended, is actionable negligence only when such violation is the natural and proximate cause of an injury.

2. In an action based on negligence in the employment of a child in violation of the child labor act, an employer is not liable for having permitted or suffered a child to continue in his employment unless he knew, or should have known, that the child was performing work for the employer.

3. 'A controlled fire used to destroy trash and other refuse is not a dangerous instrumentality or agency, such as is required to be guarded against the possibility that children may be attracted thereby and suffer injury therefrom.' Syllabus, Tiller v. Baisden, 128 W.Va. 126 .

4. 'The so-called 'attractive nuisance' doctrine is not recognized in this state.' Point 1, syllabus, White v. Kanawha City Co., 127 W.Va. 566 .

Fletcher W. Mann, Beckley, for plaintiff in error.

Ezra H. Lilly, Madison, for defendant in error.

GIVEN, President.

Plaintiff, Billy Harper, an infant, who sues by his next friend, instituted his action against defendant, R. L. Cook, doing business as Cook Lumber Company, in the Circuit Court of Boone County, for recovery of damages resulting from burns to his feet incurred at a sawmill owned and operated by defendant. The jury returned a verdict for plaintiff in the amount of $7,500. The circuit court denied a motion to set aside the verdict, and entered judgment thereon. This Court granted a writ of error to the judgment.

Sometime in May, 1951, defendant moved his sawmill to a site on West Fork Creek. The mill was located in a small bottom along that creek, about three miles from the nearest residence, near Twilight. A road had been constructed previously by defendant from Twilight to the site, mainly through woodland. At the site, the road was located immediately to the left of the creek, looking up the creek. From forty to sixty feet from the road, farther to the left, was the mill, situated parallel to the road and occupying a space approximately thirty feet in width. Still farther to the left, from seventy-five to niney feet from the mill, was a fire pit where a fire was kept burning continuously, to which mill waste was carried by a chain conveyor.

The father of plaintiff, Hansford Harper, was employed by defendant sometime in May, 1951, as night watchman at the mill. His duties, in his own language, were: 'I was hired as night watchman; and the work I had to do was clean up the mill, up stairs and down stairs, and sweep it, and clean up the slabs and sawdust. And I had to remove all of it from there and put it in the chain drag at the mill. Then after I got all that done up, and had it open up there, then I had to come down under the mill and clean out the saw dust under there, wheel it out, and take it out and put it on the fire, and look after the fire. Get it out from under the mill, clean up what slabs I got out of the slab drag, and if we got fouled up--a lot of times the drag would run over and throw lots of them out, and I would have to clean them up and put them into the fire.'

On Saturday, September 22, 1951, Hansford Harper moved his family, including plaintiff, a boy a little less than twelve years of age, to one of the temporary dwellings constructed by defendant near the mill site for use by his employees. So far as the record indicates, plaintiff was never about the mill from the time its operation commenced until the family moved there. On the Tuesday, Wednesday and Thursday following the day on which the Hansford Harper family moved to the dwelling near the mill site, plaintiff attended school. The injury was suffered by plaintiff between twelve o'clock midnight of Thursday, September 27, 1954, and one o'clock A.M. of the following morning, about five days after the family had moved to the dwelling near the mill.

On September 27, 1951, about four o'clock P.M., the mill shut down for the day, and the father of plaintiff commenced work at about that time. Sometime later in the day plaintiff went to the mill where his father was working and, according to the evidence offered in behalf of plaintiff, assisted his father in the work about the mill. The mother of plaintiff and his small brother also visited the mill later in the day and, according to the testimony of the mother, all assisted the father in his work about the mill. When the mother returned to her home in the evening, she attempted to have plaintiff return with her, but failed. She testified that the father '* * * told him to come back with me', but that plaintiff stayed with the father at the mill. Plaintiff testified:

'Q. When she left, did you--what did you do when she left? A. They wanted me to go home, and I said no, there was no school on Friday, and she tried to get me to go home, and I wouldn't. They tried to get me to come home.

'Q. Your mother and father both tried to get you to go home? A. Yes, sir.

'Q. And you didn't want to go? A. No, sir.

'Q. And you just stayed on there? A. Yes, sir.'

Later in the night plaintiff went to sleep near the fire maintained by defendant at the mill for the purposes pointed out above and, in his own language, when he awakened '* * * I missed my father, and there was some noise there, and I was going to get him, and I went the wrong way'. In going the wrong way he ran through the burning coals, which were apparently covered with ashes, and severely burned both feet.

There is some evidence tending to establish that plaintiff, on certain occasions other than the time of the injury, helped his father about the mill, and that defendant and certain of his employees knew of that fact. The father testified:

'Q. Did your son ever help you do any of this work up there? Such as sweeping, and so on? A. Yes, sir.

'Q. Mr. Harper, do you remember when your son was injured up there at the mill? A. Yes, sir.

'Q. Had your son worked up there several evenings and nights before? A. He had.

'Q. What kind of work did he do while he was up there? A. Well, he would help me clean up there in the mill, the saw dust. Put it into the chain line, and what small pieces of slabs and stuff he could handle he would help take out, and whatever it was, if it was wheeling saw dust from under the mill, and going on the chain drag from the mill to the fire, and he took out the slabs and whatever it was he could handle, and put them in the fire; and he helped me to do the work, the same kind of work as I done, except the big pieces where he couldn't handle.'

The father also testified to the effect that defendant knew plaintiff was doing such work and that on one occasion defendant came through the mill when the father, the mother, plaintiff and plaintiff's small brother were working, and that defendant remarked: 'Well, we've got a gang of night watchmen here tonight'. The mother testified:

'Q. Would Billy be up there working too at the same time? A. Me and him and the other boy and my husband were at the mill a lot. We worked there a lot.

'Q. Just what kind of work did you do? A. Well, we would sweep and shovel the saw dust from all around the saws and where it fell, and we took and throwed it in the chain line. We would sweep it up and get it on the shovel, and Billy would carry it and throw it in the chain line.'

Plaintiff testified that a Mr. Miller, foreman at the mill, saw him working on one occasion and asked him, 'Are you working hard?' and, after plaintiff had answered in the affirmative, remarked: 'That's the way you can get it done'.

There is no contention made on behalf of plaintiff that defendant or any representative actually hired plaintiff to work at the mill for any fixed compensation. No fixed duties were ever assigned to him by defendant or any representative. The most that can be gathered from the evidence, as it relates to such employment, is that plaintiff, with permission from his father, occasionally in the evenings would assist the father in the performance of certain work which had been assigned to the father, and that defendant, knowing such facts, 'permitted' or 'suffered' plaintiff to continue to assist the father. The testimony of defendant, and of the witnesses testifying in his behalf, denied any employment of plaintiff and denied any knowledge that plaintiff ever assisted his father at the mill. In view of the verdict, we are bound to view the evidence in the light most strongly favoring plaintiff.

One of the theories on which plaintiff's case was tried in the circuit court was that the employment of plaintiff by defendant was in violation of Code, 21-6-1, as amended, relating to child labor, which reads: 'Except as permitted and authorized by the provisions of this article, no child under sixteen years of age shall be employed, permitted or suffered to work in, about, or in connection with any gainful occupation other than agriculture, horticulture or domestic service in a private home.'

In Norman v. Virginia-Pocahontas Coal Co., 68 W.Va. 405, 69 S.E. 857, 858, 31 L.R.A.,N.S., 504, the Court, after considering authorities relating to liability of an employer who employs a minor in violation of a statute, reached this conclusion: 'The point is one of first instance with us. We adopt the view that seems consonant with reason. Briefly stated, it is this: The violation of the statute is actionable negligence whenever that violation is the natural and proximate cause of an injury. The true question to be determined in an action based upon a failure to obey a statute like the one under consideration is: Did the unlawful employment cause the injury? The trial of the case must be guided by this question. If the injury complained of it a natural...