Nichols v. Smith's Bakery, Inc.

• Decision Date: 20 December 1928
• Docket Number: 1 Div. 528
• Citation: 119 So. 638,218 Ala. 607
• Parties: NICHOLS v. SMITH'S BAKERY, Inc.
• Court: Alabama Supreme Court

119 So. 638

218 Ala. 607

NICHOLS v. SMITH'S BAKERY, Inc.

1 Div. 528

Supreme Court of Alabama

December 20, 1928

Rehearing Denied Jan. 24, 1929

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

R.P Roach, of Mobile, for appellant.

Smiths Young & Johnston, of Mobile, for appellee.

BOULDIN J.

The action is by an administrator under the Homicide Act, Code 1923, § 5696.

At the conclusion of plaintiff's evidence the trial court gave the affirmative charge for defendant.

The action is based upon the alleged wrongful act of defendant in that decedent, a boy 12 years of age, was "permitted or suffered" to work in and about the bread making plant of defendant in violation of the Child Labor Law, and as the proximate result, he fell through a skylight at the top of the building, landing upon a concrete floor about 45 feet below, receiving injuries from which he died.

Code, § 3494, forbids that any child under 14 years of age be permitted or suffered to work in any gainful occupation except as provided.

A violation of this section renders the party liable for injuries to such child resulting proximately therefrom whether such injury result from the inherent dangers of the work, or from the hazards of the environment, including those of place.

Section 3499, for the protection of children under 16 years of age, forbids work at defined occupations and places. Among these is: "(1) Operating or assisting in operating: *** (n) dough brakes or cracker machinery of any description," also the inclusive clause "(t) *** work in or about a *** manufacturing establishment, which is hazardous, or dangerous to health, limb or life."

The complaint alleges the decedent was not an employee of defendant. The evidence tended to show the work done by him was assisting drivers of wagons for defendant, who engaged his services and paid him on their own account.

This was sufficient to carry the case to the jury upon that issue; sufficient to support a finding of no relation of employer and employee between the child and defendant company, and so take the case without the provisions of the Workmen's Compensation Law. Code 1923, §§ 7534-7595. The inclusion of "permitted or suffered" in the Child Labor Law is aimed, among others, at cases of this sort.

The complaint contained six counts. We find no evidence that decedent was permitted or suffered to work at and about the skylight; that he had ever worked at it; nor that he was working about it at the time of his fall. Counts 1 and 2 based on such averments were properly charged out.

Neither was there evidence that any agent of defendant sent him at the time to close the skylight. Hence counts 3 and 4 were not sustained.

Plaintiff offered to prove a dying declaration of decedent, saying: "They sent me up there to close the window of the skylight." This was properly refused. Dying declarations are inadmissible in any form of civil action. We are not unmindful of the criticisms leveled at this rule. We are not disposed to debate them further than to say like criticisms are indulged as against their admission on the doctrine of necessity in murder trials. We adhere to the law as written. Yates v. Huntsville Hoop & Heading Co. (Ala.Sup.) 39 So. 647; Shell v. State, 88 Ala. 14, 7 So. 40; 22 C.J. 258.

There is no evidence that decedent attempted to close the skylight and fell in such attempt. Count 5 was, therefore, properly charged out.

This leaves count 6, which is set out in the report of the case. Avoiding any discussion of the evidence in detail, we are at the conclusion there was some evidence that the child was "permitted or suffered" to work in and about the plant within the meaning of the statute; that such work carried him on the inside where there was dangerous machinery as averred. That it was a...