Hartwell Handle Co. v. Jack

• Decision Date: 13 February 1928
• Docket Number: 26759
• Court: Mississippi Supreme Court
• Parties: HARTWELL HANDLE CO. v. JACK. [*]

115 So. 586

149 Miss. 465

HARTWELL HANDLE CO. v. JACK. ^[*]

No. 26759

Supreme Court of Mississippi

February 13, 1928

(In Banc.)

1. MASTER AND SERVANT. Employment of minor in violation of law prescribing age limit is negligence per se rendering employer liable for injury proximately resulting (Child Labor Law).

Employment of a minor under fourteen years of age in violation of Child Labor Law (Hemingway's Code 1927, sections 5137-5145) forbidding employment of minors under fourteen years of age in industrial plants, constitutes negligence per se rendering employer civilly liable for any injury to child which is proximate result of violation of statute.

2 NEGLIGENCE. Minor under fourteen years employed in violation of law is not chargeable with contributory negligence requiring reduction of damages (Child Labor Law; Hemingway's Code 1927, section 516).

Minor under the age of fourteen years employed in violation of Child Labor Law (Hemingway's Code 1927, sections 5137-5145), is not chargeable with contributory negligence so as to require reduction of damages in proportion to amount of negligence in accordance with Hemingway's Code 1927 section 516.

HON. C LEE CRUM, Special Judge.

APPEAL from chancery court of Chickasaw county, First district. HON C. LEE CRUM, Special Judge.

Action by Elkin Shell Jack, a minor, by Mrs. Mary Shell Jack, his mother and next friend, against the Hartwell Handle Company. From the decree, defendant appeals, and plaintiff cross-appeals. Affirmed in part, and in part reversed and remanded.

Affirmed in part, and reversed in part.

Leftwich & Tubb, for appellant.

The learned chancellor found that employing the boy was negligence per se and no matter how or when the injury occurred about the factory that the appellant was responsible and was an insurer of the boy's safety. We are compelled to admit that some courts have held in the interpretation of Child Labor Statutes elsewhere that an injury to the child while discharging his task is negligence per se.

We stop here to observe that the statute itself gives no civil right of action for any injury that happens to the minor hired in violation of the statute. The penalty inflicted by the statute itself upon the employer is criminal punishment by fine and imprisonment both. That is the only penalty inflicted. The right to sue civilly for the violation of a statute is an invention of the court. They have reasoned that if the employment was forbidden by statute the person injured should have a right of action for civil damages, but it must be observed here and now that this right of action is a common-law right of action. The learned chancellor wholly failed to put any causal connection logically between the employment and the injury: Norman v. Va.-Pocahontas Coal Co., 68 W.Va. 408, 31 L. R. A. (N. S.), 504; Berdas v. Tremont & Suffolk Mills, 209 Mass. 489, Ann. Cas. 1912B, 797; Bare v. Cain Creek Coal Co., 123 Am. St. Rep. 966, 8 L. R. A. (N. S.), 580; 4 Thompson on Negligence, 3827; and 18 R. C. L. 554.

In the first authority cited, 31 L. R. A. (N. S.), 504, the question is discussed with great reason and astuteness the case is at length annotated, and in substance held that the violation of the statute is not rightly considered the proximate cause of the injury unless the injury is the natural, probable and anticipated consequence of the nonobservance of the statute by the employer.

The learned court in his opinion after illogically holding that the bare fact of the employment of the minor in violation of the statute was the proximate cause of the injury goes on to apply to the minor the doctrine of contributory negligence. We submit that our comparative negligence statute cannot serve the appellee because the record overwhelmingly discloses that the injury to the boy was solely and only caused by his own gross negligence and his own failure to observe ordinary intelligence to save his own limb. The plea of contributory negligence necessarily implies that the defendant who pleads it was guilty of some negligence himself. The defendant below did not plead contributory negligence but that the plaintiff's injury was suffered solely and only because of his own carelessness. The rule is well illustrated by 20 R. C. L., p. 106, sec. 92. "When the defendant has exercised every possible care and caution, negligence fails to exist, and an injury resulting, it must occur only by the negligence of the plaintiff, which cannot be considered contributory but original negligence."

The learned counsel in his argument below invoked the doctrine not only that the employment was the proximate and sole cause of the injury, but if it were not that the appellant was forbidden to plead contributory negligence and the law would not hear him. It is plain from the authorities that if the employer were guilty of negligence the comparative statute applies to the minor and the damages suffered would have to be reduced accordingly. For this court to hold that the appellant were estopped if he saw fit to plead contributory negligence would be tantamount to the conclusion that the Child Labor Statute of 1924 repealed the contributory negligence statute in force for some years in the state of Mississippi. Repeals by implication are never favored. It is useless to argue, and certainly in this case, where the complainant below founds his right of action on the common law, to the effect that where a prohibitive statute is involved and has been violated an action for tort in favor of him for whom the statute was enacted will arise, a doctrine that is the creature of the common law as we have stated. That also by virtue of its own force and extermination powers the Child Labor Statute repeals the statute of comparative negligence found in section 516, Hemingway's Code 1927.

In Berdos v. Tremont & Suffolk Mills, supra, the Supreme Court of Massachusetts in dealing with the Child Labor Statute of that state uses the following language: "this statute by prohibiting the employment of children under fourteen years of age in certain employments does not purport in terms to change the ordinary rules of negligence applicable to actions of tort arising between master and servant, as do certain other statutes. This court has many times held that children of sufficient intelligence to understand the hazards of their employment are subject to the ordinary rules of negligence. Dobbins v. Lookout Oil Ref. Co., 133 Miss. 248, 97 So. 546; Railroad Co. v. Price, 72 Miss. 870; Worthington v. Goforth, 266 So. 504; Tatum v. Crabtree, 130 Miss. 462; A. & V. R. R. Co. v. Jones, 111 Miss. 196, 71 So. 318; Rose v. Pace, 144 Miss. 374, 109 So. 861.

J. H. Ford, for appellee.

Section 5137, Hemingway's Code 1927, reads as follows: "No boy or girl under the age of fourteen years shall be employed or permitted to work in any mill, cannery, workshop, factory or manufacturing establishment within this state." Section 5139, Hemingway's Code 1927, reads as follows: "It shall, be unlawful for any person, firm or corporation to employ, or detain, or permit to work in any mill, cannery, workshop, factory or manufacturing establishment in this state, any child under the age of sixteen years without first requiring said child to present the affidavit of the parent or guardian, or person standing in parental relation to such child, stating the place and date of the birth of such child, the grade of study pursued, and the name of the school and the name of the teacher in charge. The employer shall preserve such affidavit and keep a complete register of all such affidavits, showing all the facts contained therein." These statutes in the strongest terms made it unlawful for appellee to "be employed or permitted" by appellants to work in this mill and factory. On this subject, see 4 Labatt, on Master and Servant, 1571a, 4756; 18 R. C. L. 552 par. 65; 39 C. J. 297, sec. 424; 4 Thompson on Negligence, sections 4599, 4600, and 4601.

It is immaterial here whether the violation of the Child Labor Statutes of this state is negligence per se, or prima-facie evidence of negligence, or evidence of negligence to be submitted to the jury, for the court found from the evidence that "this employment in violation of the law, is the proximate cause of the injury sustained" by appellee. In other words, the learned chancellor sitting as both judge and jury found as a fact that appellee sustained his injuries while in the actual performance of the duties for which he was employed in violation of the prohibitory statute and hence sustained his injuries by reason of such employment.

The statute fixed the age of fourteen years as that under which there can be no lawful employment or permission to work in a factory regardless of intelligence, size or any other condition. Marine v. Lehmaier, 173 N.Y. 530, 66 N.E. 572, 61 L. R. A. 811. Appellants argue at length that appellee was thoroughly instructed as to the dangers of his employment. This is one of the disputed questions of fact in this record with the weight of the evidence to the contrary in favor of the plaintiff. But if that were a fact appearing beyond question, it is no defense to this action. "The fact that the child was given full instructions is not available as a defense to the employer when sued for damages for an injury received by a minor while employed contrary to statutory prohibition." 39 C. J. 304; Brilliant Coal Co. v. Sparks, 16 Ala. 665, 81 So. 185, 82 So. 161; Stehle v. Jaeger Automatic Mach. Co., 220 Pa. 617, 69 A. 1116, 14 Ann. Cas. 122.

J. H. Ford, on cross-appeal, for appellee.

The court found that the appellee was guilty of "contributory negligence that contributed to his injury," and gave "to the defendant, in awarding damages to the...