O'Neill v. Rovatsos

• Decision Date: 30 December 1925
• Docket Number: 23436
• Parties: JOHN D. O'NEILL, APPELLANT, v. GUST M. ROVATSOS ET AL., APPELLEES
• Court: Nebraska Supreme Court

206 N.W. 752

114 Neb. 142

JOHN D. O'NEILL, APPELLANT, v. GUST M. ROVATSOS ET AL., APPELLEES

No. 23436

Supreme Court of Nebraska

December 30, 1925

APPEAL from the district court for Douglas county: CHARLES A. GOSS JUDGE. Reversed.

REVERSED.

H. E Kuppinger and Sullivan, Wright & Thummel, for appellant.

Kennedy Holland, DeLacy & McLaughlin and Baker & Ready, contra.

Heard before MORRISSEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

DEAN, J.

John D. O'Neill is a minor who was under 14 when the facts occurred on which this action is based. He sued in the district court for Douglas county by his mother Rozanna Garries, as next friend, to recover damages from defendants for personal injuries sustained in Omaha by being struck by an automobile which it is alleged was then being driven at an unlawful rate of speed, to-wit, in excess of 25 miles an hour. The automobile was owned by J. Kahn, an automobile liveryman, and when the accident happened it was being driven by Walter Lowe, a driver then in Kahn's employ. Plaintiff was riding a bicycle at the time, and his counsel's contention is that he was then engaged in the work for which he was employed. This is denied in the answer. But defendants produced no witnesses, and at the close of plaintiff's evidence the court, pursuant to motions being filed therefor, dismissed the action generally as to defendant Rovatsos, the employer, whose name, awhile before the trial, was changed to Rogers. The action was also dismissed as to Kahn, and as to defendant Walter Lowe the action was dismissed, but without prejudice as to him. Plaintiff has brought the record here for review.

From the evidence it appears that plaintiff was an Omaha school boy, and during a part of the summer vacation period he was hired by defendant Rogers who was a merchant florist engaged in the business of retailing and delivering flowers from his store to his customers in and about Omaha. Plaintiff was Rogers' delivery boy, and he used his own bicycle in delivering the packages, making from one to ten trips daily. When he was not delivering flowers he worked generally in Rogers' store. For his services Rogers paid him a wage of $ 6 a week.

From the evidence submitted on the part of plaintiff it appears that he sustained injuries in the collision. But, as the case is for retrial, we will not, of course, in the present state of the record, discuss the extent of the injuries. The only question before us now is in respect of the court's ruling wherein plaintiff was nonsuited upon submission of his evidence.

It appears that plaintiff left his employer's store about 5 or 5:30 in the evening, but before leaving Rogers gave him a quantity of canary bird seed in a large tin container, and directed him to deliver it at his home. And it was while he was on his way to deliver this package at Rogers' home that the accident happened. Counsel contend that plaintiff's day's work was ended when he left the store and that Rogers is not therefore liable. But whether Rogers handed the boy a package of bird seed or a package of flowers, or any other commodity, with directions to deliver it while he was on his way to his own home, is immaterial so far as the nature of the package is concerned. The vitally important and material fact is that he did give him a package to deliver and plaintiff was injured while in his employ and while making the delivery. And liability thereby arises because the hiring was an express violation of the minor child statute. Nor is it material that plaintiff and his mother and Garries, his stepfather, had been living at Rogers' home and on the day of the accident were moving or were about to move away to another location in the city. We are not in accord with defendant's insistent argument that plaintiff's employment had ceased for the day and that he was not therefore in the employ of Rogers when he left the store. We do not need to discuss this question more than to say that the errand with which plaintiff was entrusted by his employer had not been completed when he was struck by the passing automobile.

Plaintiff's contention is that liability attaches, as against defendant Rogers, under the child labor law, namely, section 7669, Comp. St. 1922, which among other recitals contains this:

"No child under fourteen years of age shall be employed, permitted or suffered to work in, or in connection with any theater, concert hall, or place of amusement, or in any mercantile institution, store, office, hotel, laundry, manufacturing establishment, bowling alley, passenger or freight elevator, factory or work-shop, or as a messenger or driver therefor within this state."

The proposition has long been recognized that a minor child, in a peculiarly important and personal sense, is a ward of the state. This solicitude for child welfare is shown in many legislative enactments in Nebraska. Among these are the laws for the establishment of a home for dependent children, the child labor law, and the law for...