Kirkpatrick v. Ferguson-Palmer Co.

• Citation: 116 Miss. 874,77 So. 803
• Decision Date: 18 February 1918
• Docket Number: 19754
• Court: United States State Supreme Court of Mississippi
• Parties: KIRKPATRICK ET AL. v. FERGUSON-PALMER COMPANY

77 So. 803

116 Miss. 874

KIRKPATRICK ET AL. v. FERGUSON-PALMER COMPANY

No. 19754

Supreme Court of Mississippi

February 18, 1918

APPEAL from the circuit court of Chickasaw county, HON. J. L. BATES Judge.

Suit by Lucretia Kirkpatrick and others against the Ferguson-Palmer Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Thos E. Pegram and Jeff Busby, for appellant.

We do not insist, nor did we so insist after the proof was in the lower court, that there was such negligence in the felling of the tree by the servants of the appellee as would entitle the heirs or legal representatives of Buddy Kirkpatrick to recover for the loss of his life.

The declaration as amended states a cause of action occurring to Mrs. Kirkpatrick by reason of the fact that the appellee employed her minor son without her consent and put him to work at a dangerous undertaking and in a dangerous locality and that he was injured while in said employment and in said place, said injuries resulting in his death, and that by reason of said events she lost the services of her son during his minority.

Opposing counsel, in urging that a parent cannot recover for the loss of services of a child when death is instantaneous if that loss results from the wrongful employment of the child against the parents' consent, cites a multitude of authorities, all of which we have not had the opportunity to examine; but an examination of those at hand demonstrates most conclusively the error into which he has fallen. He has failed to distinguish between an action brought by the parent for the death of the child against one who has negligently killed it, and an action brought by a parent against one who has wrongfully employed the minor child without the parent's consent and placed the child to do a dangerous work or work in a dangerous place whereby the child is injured or killed. In the one instance the gist of the action is the negligent killing, and in the other it is the wrongful employment. He has apparently overlooked the fact that the parent has a property right in the services of the child.

In Braswell v. Oil Mill (Ga.), 66 S.E. 539, we find this language: "Touching the services of an infant, it may be said upon the surest footings of reason and law the parent has his property right. In Shields v. Younge, 15 Ga 356, 60 Am. Dec. 698, the question is asked and answered 'May a father treat his minor son as his servant and sue for an injury to the son as for an injury to a servant?' If the son be old enough to render services he may. This statement is cited and approved in Amos v. Atlantic, R. R. Co., 104 Ga. 809, 31 S.E. 42. In Lewis v. McAfee, 32 Ga. 465, the supreme court decided that if one hired his slave to a railroad company for a particular service, and the latter used the slave for a different purpose of service, and an accident happened causing the slave's death, the railroad company was liable to the owner for the value of the slave; and the court in the course of the opinion places the case on the old and well-recognized common-law doctrine that the thing hired is used for a different purpose than that intended by the parties, etc. "That an employer putting a minor child, without the parent's consent to do work by which the child is injured, commits an actionable wrong, which will authorize the parent to recover for the loss of such services as he should have received during the child's minority, is a principle almost universally recognized wherever the common law prevails."

Our opponent admits that it is the rule in Georgia that in case of the death of the infant, the parent may recover the loss of the child's services for the wrongful employment, but with much assurance states that such is not the rule in any other state in the Union. If the logic of the Georgia court is sound, that the father has a property right in the services of his infant son and may treat such son as his servant, and that the rules of law governing the two relations are the same, then our own Mississippi court is in line with the former court holding that at common law a master may recover for the death of his slave where that slave was employed for a certain purpose and to work in a certain place, and was by the employer taken to another place which resulted in the slave's death. Wallace v. Seales, 36 Miss. 53.

In the case of Haynie v. Power Company, 157 N.C. 503, 73 S.E. 198, Ann. Cases, 1913C, which is a case where the boy was instantly killed the court, in referring to the editor's notes to the case of Hendrickson v. Railroad Co., reported in 30 L. R. A. (N. S.) 311, said: "the sum and substance of the many cases cited in those notes are that the general rule is that an employer, putting a minor servant, against his parent's consent, to do work by which the child is injured, commits an actionable wrong for which the employer is liable, although there is no evidence of negligence on his (the employer's) part. Railroad Company v. Fort, 17 Wall. 553, 21 U.S. (L. Ed.) 739, and cases there cited in Rose's notes annotating this case."

This was no statutory action on the part of Haynie. To our mind, however, the case which most satisfactorily disposes of the question raised and urged by appellee, is the case of Williams v. Railroad Company (Ala.), 9 So. 77. There the infant son of Thos. Williams had been instantly killed by the railroad company.

Under the Alabama statute, section 2590, of the Code which is in many respects similar to our own chapter 214, of the Laws of 1914, except that in case of death the right of action was vested in the personal representatives of the deceased and not in the father. In that case the father sued without qualifying as the personal representative, and the declaration consisted of several counts, some of which were for the negligent and wrongful killing of his son, and in these particular counts it was not negatived that the employment was with the father's consent, and that since this was not done the father could not, under the common law, maintain his action. However, there were other counts of the declaration by which the father sued for the loss of services of his son, alleging that the son was employed without his consent to do the work of a railroad brakeman and was killed while about said work. This phase of the suit was brought under the common law and section 2588 of the statute which is most nearly in terms, chapter 214, Laws 1914, and the Alabama court held that those counts stated a good cause of action.

Of all of the cases cited in the brief of opposing counsel which we have had the opportunity to examine, the cause of action was brought by the parent for the death of the child without statutory authority, and in none of those cases, except the Railroad Company v. Beal, 61 Tex. 310, do we find that there were any allegations to the effect that the infant was employed without the consent of the parent. In fact, it appears from an examination of the authorities that the precise question here raised by appellee has not been passed upon so numerously, and that the Georgia, North Carolina, and Alabama courts have settled it according to our contention, and that the Texas court in the one case is favorable to the contention of the appellee.

The foregoing is stated in an effort to show that even at common law a parent could recover for the loss of services of his child during minority under the character of case in question.

In addition to the above we insist most earnestly that chapter 214, of the Laws of 1914, is sufficiently broad in its terms to enable Mrs. Kirkpatrick to maintain this suit for the loss of her son's services during minority.

The legislature has from time to time so changed and widened this particular statute, and has thereby so revolutionized the common-law rules as regards injuries resulting in death that there is hardly a conceivable case where a party could recover for injuries not resulting in death, yet would be deprived from recovery on the ground that death did result. To put the case differently, the legislature has, without leaving any room for question or quibble, abolished all distinctions, as to right of recovery, between those injuries from which death ensues and those from which it does not.

The court, of course, has the entire chapter in mind, but those parts thereof which particularly emphasize what is above stated are: "And the fact that death was instantaneous shall, in no case, affect the right of recovery." . . "All parties may join in said suit and there shall be but one suit which shall inure to the benefit of all parties interested." "In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all of the damages of every kind to the decedent, and all damages of every kind to any and all parties interested in said suit." It will be found that the learned trial judge, in rendering his opinion stated that Mrs. Kirkpatrick might maintain her action for the loss of the boy's services during minority under this section.

There can be but one suit, where injury results in death. Foster v. Hicks, 93 Miss. 219, 46 So. 533; Mississippi Oil Co. v. Smith, 95 Miss. 528, 48 So. 735. The case of Natchez etc., R. R. Co. v. Cook, decided in 1885, and cited by counsel for appellee as putting this question at rest in his favor turns out to demonstrate conclusively appellee's erroneous position, as will be seen.

Section 1510 of the Code of 1880 vested in the father alone the right of action for the death of a child, and did not vest such right in the mother. In the Cook case the mother brought the action for the injuries which resulted in the death of...