Mt. Vernon Woodberry Cotton Duck Co. v. Frankfort Marine Accident & Plate Glass Ins. Co.

• Decision Date: 01 December 1909
• Parties: MT. VERNON WOODBERRY COTTON DUCK CO. v. FRANKFORT MARINE ACCIDENT & PLATE GLASS INS. CO.
• Court: Maryland Court of Appeals

75 A. 105

111 Md. 561

MT. VERNON WOODBERRY COTTON DUCK CO. v. FRANKFORT MARINE ACCIDENT & PLATE GLASS INS. CO.

Court of Appeals of Maryland

December 1, 1909

Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott Judge.

Action by the Mt. Vernon Woodberry Cotton Duck Company against the Frankfort Marine Accident & Plate Glass Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE WORTHINGTON, and THOMAS, JJ.

Edward Duffy, for appellant.

George Dobbin Penniman, for appellee.

THOMAS J.

This is an action brought by the Mt. Vernon Woodberry Cotton Duck Company against the Frankfort Marine Accident & Plate Glass Insurance Company, to recover on a policy of indemnity issued by the defendant to the plaintiff, whereby the defendant, in consideration of the warranties therein contained and of the sum of $1,650, agreed to indemnify the plaintiff "for the term of twelve months, beginning on the 20th day of March, 1906, at noon, and ending on the 20th day of March 1907, at noon, *** against loss arising from legal liabilities for damages on account of bodily injury or death suffered by any employé or employés of the assured resulting from any and every accident of whatsoever nature or cause happening in, upon or about the premises and in the business of the assured as described on the back" of the policy. Issues were joined on the pleas of "never promised as alleged" and "never indebted as alleged," and by agreement of counsel defendant's third plea was withdrawn, "all errors in pleading" were waived, and the case was submitted to the court on an agreed statement of facts by the following agreement: "Eighth. It is further agreed that article 100 of the Code of Public General Laws shall be considered in evidence, and that the Acts of 1894, chapter 317, and 1902, chapter 566, shall be considered in evidence, and they may be read in the lower court and in the Court of Appeals, either from the printed volumes or from certified copies thereof or of parts thereof; and it is further agreed that this case shall be tried before the court, and that it is submitted to the court for its opinion on the law, and the court is requested to render a judgment in accordance with its said opinion, and if the said opinion of the court on the facts hereinbefore stated and agreed to is that, notwithstanding the terms of paragraph 11 of the aforesaid policy, the said policy applies to and covers the injury suffered by said John H. Ball, the judgment of the court shall be for the plaintiff for an amount equal to the amount paid in satisfaction of the judgments aforesaid, to wit, the sum of $3,150, with interest thereon from March 1, 1908, plus the amount of $313.67 paid as aforesaid by the plaintiff for costs, and the amount of $150 paid as aforesaid by the plaintiff for counsel fees, either or both, provided the court shall be of opinion that under the terms of said policy the plaintiff is entitled to be reimbursed for either or both of said amounts, with interest on the amount so allowed on account of fees and costs from March 1, 1909. It is further agreed that either party shall have the right to appeal from the judgment rendered." By section 11 of the policy it was agreed: "That this policy shall not apply to or cover any injury suffered by a child employed by the assured contrary to law, nor to any child under ten years of age where no statute restricts the age of employment, nor to any injury suffered by others caused by or resulting from such employment."

It further appears from the statement of facts that the plaintiff, who was carrying on in Baltimore City the business of manufacturing cotton duck, on the 26th of June, 1906, employed one John H. Ball to work in its mill in said city, known as the "Meadow Mill." At the time of such employment, John H. Ball was between 11 and 12 years of age (of which fact the plaintiff had knowledge before the accident), having arrived at the age of 11 years on the 20th of March, 1906, and resided in Baltimore with his father, John T. Ball. He was not dependent upon such employment for self-support, and just prior thereto had been attending a public day school, which had closed for the summer vacation, and it was at the request of his father, who was not an invalid and was in the employ of the plaintiff, that he was employed to work in the mill during said vacation. While so employed, and while working for the plaintiff on the premises mentioned in the policy, the said John H. Ball, on the 29th of June, 1906, had his right hand cut off by coming in contact with a revolving fan in said mill, and subsequently brought suit against the plaintiff to recover for such injury. His father, John T. Ball, also brought suit against the plaintiff to recover the loss he sustained by reason of said accident. The defendant was given due notice of the accident and of the suits, as required by the policy, but refused to defend the suits on the ground that John H. Ball had been employed by the plaintiff contrary to law. These suits were defended by the plaintiff, but resulted in a judgment in favor of John H. Ball, for $2,500 and $281.92 costs, and judgment in favor of John T. Ball for $800 and $31.75 costs. The judgment in favor of John H. Ball was entered satisfied upon payment by the plaintiff of $2,350 and costs, and the judgment in favor of John T. Ball was paid in full by the plaintiff, and it was for the recovery of these amounts so paid by the plaintiff, and the sum of $150 paid by plaintiff to counsel for defending such suits, that this action was brought.

The appeal is from a judgment of the court below in favor of the defendant, and it is conceded by counsel for the appellant that if Acts 1902, c. 566, is a valid enactment, there was no error in that judgment. The contention of the appellant is: (1) That Acts 1894, c. 317, is unconstitutional because its title is defective, and that Acts 1902, c. 566, is based on the act of 1894, and is therefore also unconstitutional; and (2) that the acts of 1894 and 1902 are in conflict with the fourteenth amendment to the Constitution of the United States.

1. Acts 1894, c. 317, is as follows:

"An act to amend article one hundred of the Code of Public Local Laws of Maryland, title 'Work, Hours of, in Factories,' by adding thereto a section, to be known as section 4, regulating the employment of children under twelve years of age, in mills and factories in this state.

"Section 1. Be it enacted by the General Assembly of Maryland, that article one hundred of the Code of Public General Laws of Maryland, be amended by adding thereto the following section, to come in immediately after section three of said article, and to be known as section four."

"Sec. 4. No proprietor or owner of any mill or factory in this state, other than the establishments for manufacturing canned goods, or manager, agent, foreman or other person in charge thereof, shall, after the first day of October in the year eighteen hundred and ninety-four, employ or retain in employment in any such mill or factory, any person or persons under twelve years of age; and if any such proprietor or owners of any such mill or factory, or manager, agent, foreman or other person in charge thereof, shall willfully violate the provisions of this section, he shall be fined not less than one hundred dollars for each and every offence so committed, and pay the costs of prosecution, one half of the fine to go to the informer and the other half to the school fund of the county or city in which the offence shall have been committed; provided, that nothing in this act shall apply to Frederick, Washington, Queen Anne's, Carroll, Wicomico, Caroline, Kent, Somerset, Cecil, Calvert, St. Mary's, Prince George's, Howard, Baltimore, Worcester and Harford counties."

It is claimed, upon the authority of Whitman v. State, 80 Md. 410, 31 A. 325, that it is an attempt, under an act entitled an act to regulate the employment of children under 12 years of age, to prohibit the employment of children under that age, and, for that reason, is in violation of section 29 of article 3 of the Maryland Constitution, which requires the subject of an act to be described in its title. Assuming this contention to be sound, the act of 1894 was repealed and re-enacted by Acts 1902, c. 566, the title of which is "An act to repeal and re-enact section 4 of article 100 of the Code of Public General Laws, as enacted by chapter 317, Acts of 1894, title 'Work, Hours of, in Factories,' regulating the employment of children," and which prohibits the employment in any mill or factory other than establishments for the manufacturing of canned goods, of any person under 14 years of age, "unless such child is the only support of a widowed mother or invalid father, or is solely dependent upon such employment for self-support." It cannot be said, nor do we understand counsel for the appellant as seriously contending, that under an act entitled an act to regulate the employment of children generally the employment of children under a certain age may not be prohibited, as a part of the regulation. In the case of Osborn v. Charlevoix, 114 Mich. 655, 72 N.W. 982, the court was considering an act entitled "An act to regulate the catching of fish in the waters of this state, by the use of pound or trap nets, gill nets, seines, and other apparatus," and said: "The alleged unconstitutionality of Act No. 151 is ascribed to a defective title, in that it prohibits, during a portion of the year, while it professes to regulate, the taking of fish. It is said that this prohibition is not mentioned in the title, and, again, that prescribing certain methods and apparatus is a...