Kness v. Truck Trailer Equipment Co.

• Decision Date: 28 September 1972
• Docket Number: No. 42249,42249
• Citation: 501 P.2d 285,81 Wn.2d 251
• Parties: Robert KNESS, as Guardian and Litem for Russell M. Waite, Jr., a minor, Appellant, v. TRUCK TRAILER EQUIPMENT COMPANY, a corporation, Respondent.
• Court: Washington Supreme Court

Page 251

81 Wn.2d 251

501 P.2d 285

Robert KNESS, as Guardian and Litem for Russell M. Waite Jr., a minor, Appellant, v. TRUCK TRAILER EQUIPMENT COMPANY, a corporation, Respondent.

No. 42249.

Supreme Court of Washington, En Banc.

Sept. 28, 1972.

Rehearing Denied Nov. 14, 1972.

Jackson, Ulvestad & Goodwin, Daniel G. Goodwin, James A. Grutz, Seattle, for appellant.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Craig P. Campbell, Steven V. Lundgren, Seattle, for respondent.

HALE, Associate Justice.

When Russell M. Waite, Jr., was injured in an automobile accident while driving home after working a double shift, he had not yet reached the age of 18. In this action against his employer, the main question is whether violation of the state's regulations limiting employment of minors to one 8-hour shift constituted negligence as a matter of law. Russell's father-in-law, Robert Kness, commenced suit in Russell's interest as guardian ad litem. Russell Waite, Sr., obtained the job for him at Truck Trailer Equipment Company in June, 1967, telling the company that, although his son was only 17 years old, the boy needed the work because he was married.

Defendant's business is largely that of repairing and servicing large trucks and manufacturing trailers for commercial use. As a major part of its operation, it operated a truck service station, and young Waite was assigned the job of service station attendant. His duties included refueling the trucks with either gasoline or diesel oil, checking the oil and water, testing the tires with a hammer and putting in air if necessary, washing the windshields, and doing all of those things ordinarily expected of a service station attendant. He did not perform mechanical repairs and there was nothing about the job which appeared to be too difficult, taxing or arduous for a young man of 17 years.

Both Russell and his father lived in Burlington--a community north of Everett and about 70 miles from the job. During the approximately 7 months preceding the accident that Russell worked for Truck Trailer Equipment Company, Russell's father, who worked nearby, regularly stopped for Russell at his house in Burlington in the morning, took him to his job and drove him home in the afternoon; his father did the driving.

January 19, 1968, Russell, while still only 17 years old, rode to work as usual with his father and clocked in at 7:56 a.m. During that first shift, he was asked by a fellow employee if he would also work the evening shift for him. Russell agreed to work the double shift that day, discussed it with the station manager and, because he would not be able to ride with his father, requested transportation home. The truck service station manager then asked permission of Mr. DeVore, one of the owners of defendant Truck Trailer Equipment Company, for Russell to drive the defendant company's Ford Econoline truck to his home in Burlington that night after he had completed the second shift. Mr. DeVore assented to Russell's taking the 1964 vantype truck home after the second shift.

Russell punched out at 11:42 p.m. after working the second shift. There was testimony that some 12 minutes earlier, at about 11:30, he had telephoned his wife to tell her that he would stop to get a hamburger on the way home and for her not to wait up for him. He had called her earlier that evening at 8 p.m., explaining that it was raining heavily in Seattle where he worked. There was evidence that Russell, after his working shift, customarily took a shower in facilities at the service station.

At about 2:30 a.m., while driving home in the defendant's truck, Russell ran into a concrete pillar supporting a railroad overpass over the northbound lanes of Interstate 5 at a point about 5.2 miles north of Marysville. He sustained very serious and permanent injuries and, because of an amnesia induced by the impact, was unable to relate the circumstances leading up to the accident. He could remember nothing whatever about it, he said. A state trooper testified that Russell's truck struck a retaining wall, drifted across three lanes and struck the pillar without first slowing, indicating a sleeping driver. From a verdict for the defendant and judgment entered thereon, plaintiff now appeals and summarizes the question as follows:

The sole issue presented in this appeal is whether the Child Labor Laws of the State of Washington and the regulations promulgated pursuant thereto apply to the factual situation presented. Stated in another way, do the Child Labor Statutes and Regulations have any bearing on defendant's civil responsibility to the plaintiff and if so, what effect do they have.

The main assignment of error, we think, are those directed to the court's refusal to instruct the jury that by statute and regulation minors are not to be employed more than 8 hours in any 1 day except in seasonal industries or in case of emergency, and that violation of a statute or lawful regulation governing the employment of minors is negligence as a matter of law. These points, with respect to the negligence arising from a violation of a positive statute and lawful state regulation governing the employment of minors, are, we think, well taken.

Since 1913, this state has had a code of statutes and regulations designed to provide special protection for women and children from conditions of labor 'which have a pernicious effect on their health and morals.' Laws of 1913, ch. 174, § 1, p. 602; RCW 49.12.010. That statute created and authorized the industrial welfare commission--subsequently called 'committee'--to establish reasonable 'standards of wages and conditions of labor for women and minors.' RCW 49.12.030. The industrial welfare commission was empowered to issue orders governing the condition of labor for minors in a particular occupation or industry. RCW 49.12.120. RCW 49.12.170 makes it a misdemeanor to employ a minor under conditions of labor prohibited by order of the committee or in violation of RCW 49.12.010 through RCW 49.12.180.

That young Waite, under the state labor statutes and regulations, would be deemed a minor even though married, is seen in WAC 296--125--015 promulgated by the industrial committee defining a minor as a person of either sex under the age of 18 years, and making no exception due to marital status. The want of such an exception appears to be consistent with the declared purposes of the statutes and regulations, and tacity recognized that married persons, because of the responsibilities of marriage, might well be inclined to waive the protection afforded and accept the evils forbidden by the regulations intended to protect minors. We find no substantial reasons, therefore, why marriage would remove a minor from the very class that the statute is specifically designed to protect. To give full effect to the legislative purpose under the labor statutes affecting minors, an individual of either sex, though married, thus remains a minor under the laws governing regular employment in this state until he reaches his 18th birthday.

Lack of notice or knowledge that the employee is a minor affords no defense on the merits. The industrial committee requires work permits for the employment of minors (WAC 296--125--010), which permits the employer, before putting the minors to work, must obtain from the division of women and minors of the Washington State Department of Labor and Industries (WAC 296--125--020). The permit shall be kept in the...