Humphries v. Boxley Bros. Co

• Decision Date: 18 November 1926
• Citation: 135 S.E. 890
• Parties: HUMPHRIES v. BOXLEY BROS. CO.
• Court: Virginia Supreme Court

135 S.E. 890

HUMPHRIES

v.BOXLEY BROS. CO.

Supreme Court of Appeals of Virginia.

Nov.18, 1926.

Error to Circuit Court, Alleghany County.

Action by Humphries, by, etc., against the Boxley Bros. Company. A demurrer to the declaration was sustained, and plaintiff brings error. Affirmed.

R. B. Stephenson and Revercomb & Revercomb, all of Covington, for plaintiff in error.

F. W. King, of Clifton Forge, for defendant in error.

BURKS, J. This was a common-law action by an infant against the defendant to recover damages for a personal injury. The declaration contained three counts. The first count alleges that the plaintiff was an infant under the age of 16 years, and the defendant employed him and put him to work without having first obtained the employment certificate required by law. The second that the defendant had employed the plaintiff and had suffered and permitted him to work in and about excavation and construction work contrary to law. The third count averred that the defendant had placed the plaintiff in a position in which his life was endangered contrary to law. There was a demurrer to the declaration and to each count thereof which the trial court sustained. To that judgment a writ of error was awarded.

The real question, and the only one we have to decide, is whether or not the right tobring this common-law action is barred by the Workmen's Compensation Act (Acts 1918, c. 400). There are a number of cases, hereinafter more particularly mentioned, which hold that, unless there is a lawful contract of employment, the Workmen's Compensation Act does not apply. Owing to differences in the phraseology of the various Compensation Acts and the divergent views of the courts in the interpretation thereof, we have not gotten a great deal of assistance from the decisions in the other states. The question is a difficult one, growing largely out of the effort to harmonize the Child Labor Law with some of the provisions of the Workmen's Compensation Law. The principal object of the Child Labor Law Is the protection of the infant. He is also entitled to the equal protection of the law with adults, and if benefits and protection are afforded to adults by the Workmen's Compensation Law, they should be extended to infants also whenever it can be done consistently with the language and spirit of such laws. The care and welfare of the infant should be carefully borne in mind in the interpretation of these statutes.

The chief child labor statute was enacted in 1914, and is found in the Code of 1919, § 1809, and following. It has been amended and other statutes for the protection of infants have been since enacted, from time to time. Code 1924, §§ 180Sa to 180Sq; Acts 1922, p. 855. These statutes forbid the employment of infants within certain ages in gainful occupations (with some exceptions), or within designated hours, except upon terms designated within the statutes, and annex penalties upon employers, parents, guardians, etc., for their violation. These penalties are the means provided by law for enforcement of obedience to the statutes. Prior to the enactment of the Workmen's Compensation Act, if these statutes were violated, there was no remedy against the wrongdoer except to enforce the penalties and a common-law action by the injured party, aided by the provisions of section 5785 of the Code. This common-law action was subject to all the common-law defenses.

In 1918 the Workmen's Compensation Act was passed, which, by express terms, included minors among the employees entitled to its benefits. It is said to be in the nature of a compromise between employer and employee to settle their differences arising out of personal injuries, but it is a compromise greatly to the advantage of the employee. By it the question of the negligence of the employer is eliminated, the common-law doctrines of the assumption of risk, fellow servants, and contributory negligence are abolished, and the rules of evidence are laxly enforced—so laxly that an award may be made on hearsay evidence alone, if credible, and not contradicted. The relief afforded is fixed, certain, and speedy, and at a time when most needed. Under it there is no doubt or uncertainty as to the right of recovery or the amount thereof. The damage resulting from an accident is treated as a part of the expense of the business and to be borne as such, as much as the expense of repairing a piece of machinery which has broken down.

In speaking of the compromise nature of such acts, it is said in Stertz v. Industrial Ins. Commission, 91 Wash. 588, 158 P. 256, Ann. Cas. 1918B, 354:

"Both had suffered under the old system, the employers by heavy judgments of which half was opposing lawyer's booty, the workmen through the old defenses or exhaustion in wasteful litigation. Both wanted peace. The master in exchange for limited liability was willing to pay on some claims in future where in the past there had been no liability at all. The servant was willing not only to give up trial by jury but to accept far less than he had often won in court, provided he was sure to get the small sum without having to fight for it. All agreed that the blood of the workman was the cost of production, that the industry should bear the charge. * * * To win only after litigation, to collect only after the employment of lawyers, to receive the sum only after months or years of delay, was to the comparatively indigent claimant little better than to get nothing. The workmen wanted a system entirely new. It is but fair to admit that they had become impatient with the courts of law. They knew, and both economists and progressive jurists were pointing out, what is now generally conceded, that two generations ought never to have suffered from the baleful judgments of Abinger and Shaw."

This is what was offered to all employees, "including a minor, " in lieu of a common-law action. Not only so, but it is also provided that all contracts of employment made subsequent to the act "shall be presumed to have been made subject to the provisions of this act, " unless notice to the contrary shall be given before injury, and then this significant clause:

"A like presumption shall exist equally in the case of all minors, unless notice of the same character be given by or to the parent or guardian of the minor."

The act further provides that the remedy given by the act "shall exclude all other rights and remedies of such employee, " and that if he refuses to accept its provisions and they are accepted by the employer, the employee may have his common-law action, but that the employer "may avail himself of the defenses of contributory negligence, negligence of a fellow servant and assumption of risk, as such defenses exist at common law." Code 1924, §§ 1887 (6), 1887 (12), and 1887 (17).

The relation of employer and employee can only exist by virtue of contract, express or implied, in the ordinary contract of hiring of an infant to an adult the contract, though binding upon the adult, is voidable by the infant, and he may either sue upon the contract or repudiate the contract and recover upon a quantum meruit, but it is entirely within the power of the Legislature to fix any age at which an infant may enter into a contract of a particular character. The authority to an infant to accept the benefits of the Workmen's Compensation Act renders the infant sui juris as to such acceptance, and the acceptance must be upon the terms prescribed by the act.

The Virginia act gives to the employee who accepts its terms no choice of remedies for the injury he has sustained, for it expressly provides that the remedy afforded by the act "shall exclude all other rights and remedies of such employee, " and the presumption of acceptance, in the absence of notice to the contrary, exists "equally in the case of all minors, " regardless of age. The injury to the infant may, in many eases, be due to the contributory negligence of the infant, or the negligence of a fellow servant, or to a risk assumed, any one of which would defeat recovery in a common-law action, or he may not be able to prove the negligence of an employer, in all of which cases he could recover nothing in a common-law action, and yet would be entitled to an award of compensation under the statute, if allowed to accept its benefits. Furthermore, in the instant case three years have elapsed since the injury was inflicted, and the infant is just where he was when the injury was sustained. Under these circumstances the infant should not be excluded from the benefits of the act unless the intent to exclude him is so manifest that no other conclusion could be reached.

When we come to the decided cases, it may be conceded that the weight of authority is apparently contrary to the views hereinbefore expressed. We say apparently, because many of the cases cited in support of the rule requiring a lawful contract of employment of the infant are controlled by the language of local statutes. For instance, in Illinois, Minnesota, Michigan, and other states, the acts are limited to minors "who are legally permitted to work for hire under the laws of the state, " or words to that effect.

In Kentucky, the statute, in terms, gives the infant an option to proceed either under the statute or at common law.

In New Jersey, Oklahoma, Pennsylvania, Tennessee, and West Virginia, apparently a lawful contract of employment of the infant is required in order to put the infant under the Compensation Law, without any special language in the statute so requiring. Acklin Stamping Co. v. Kutz, 98 Ohio St. 61, 120 N. E. 229, 14 A. L. R. 812, and notes; Western U. Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S. W. 858, 33 A. L. R. 330, and notes; Hetzel v. Wasson Piston Ring Co., 89 N. J. Law, 201, 98 A. 306, L. R. A. 1917D, 75, notes.

The last-mentioned case fairly represents the position of the courts, taking the view that there must be a lawful contract of employment of the infant to make the...