Pitzer v. M. D. Tomkies & Sons

• Decision Date: 06 November 1951
• Docket Number: No. 10393,10393
• Citation: 67 S.E.2d 437,136 W.Va. 268
• Court: West Virginia Supreme Court
• Parties: PITZER, v. M. D. TOMKIES & SONS.

Page 437

67 S.E.2d 437

136 W.Va. 268

PITZER, v. M. D. TOMKIES & SONS.

No. 10393.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1951.

Decided Nov. 6, 1951.

Syllabus by the Court.

1. A declaration filed in an action predicated upon a violation of Code, 21-6 as amended and re-enacted, is good on demurrer when the allegations thereof sufficiently charge the statutory duty of the defendant, its breach, the resulting injury suffered by the plaintiff, and facts disclosing that such violation is the proximate cause of the injury.

2. The violation of a statute forbidding the employment of a child under the age of sixteen years in a gainful occupation is actionable negligence whenever such violation is the natural and proximate cause of an injury.

3. A failure to obey the mandate of a lawfully enacted statute will be treated as the proximate cause of an injury 'which is a natural, probable and anticipated consequence of the non-observance.' Pt. 2., Syl., Norman v. Coal Co., 68 W.Va. 405 .

4. Contributory negligence of a child between the ages of seven and fourteen years who has been illegally employed and injured as a result of such employment is not available as a defense in an action based on such illegal employment. Pt. 5., Syl., Norman v. Coal Co., 68 W.Va. 405 ; Syl., Honaker v. Coal Co., 71 W.Va. 177 ; and Pt. 5., Syl., Griffith v. Coal Co., 75 W.Va. 686 , in so far as inconsistent with this syllabus, are overruled.

R. G. Lilly, M. E. Boiarsky, Charleston, Paul J. Carr, Sr., Hinton, for plaintiff in error.

D. D. Ashworth, Beckley, Walter M. Elswick, Hinton, for defendant in error.

LOVINS, Judge.

This action, brought in the Circuit Court of Summers County by John R. Pitzer against M. D. Tomkies & Sons, a corporation, had for its object the recovery of damages for an injury suffered by plaintiff on December 20, 1941, in the course of his employment with defendant. A jury trial resulted in a verdict for plaintiff in the amount of $2,500.00. The trial court, after overruling a motion to set aside the verdict, entered judgment. On application of defendant, this Court granted a writ of error and supersedeas.

This action, commenced on or about March 2, 1950, is grounded on allegedly illegal employment of the plaintiff by the defendant in violation of Sections 1 and 3, Article 6, Chapter 75, Acts of the Legislature, 1939. Such chapter is hereinafter designated as Code, 21-6, as re-enacted and amended.

The plaintiff was approximately twenty-two years of age at the time this action was brought. In August, 1941, plaintiff, then about thirteen years and seven months of age, was employed by the defendant in and about the operation of a grocery store in the City of Hinton. There is some conflict in the testimony as to the exact nature of his employment, plaintiff testifying that he was, required to weigh various commodities until he became familiar with the store; and thereafter he was required to deliver groceries to customers of the defendant. He purchased a bicycle, using in part payment of the purchase price the sum of $1.50 lent him by one of the officers and stockholders of the defendant.

Defendant denies that plaintiff was required to deliver groceries by means of a bicycle. But since the jury has found a verdict in favor of plaintiff, we treat the plaintiff's version of his duties as being true.

At and before the time of plaintiff's injury, he had been working part time at defendant's store and was attending public school in the City of Hinton.

Plaintiff, while delivering groceries for defendant and traveling on a public street in the City of Hinton, turned the bicycle, on which he was riding and carrying groceries, to his left in order to avoid colliding with the automobile immediately in front of him going in the same direction. In so doing, he struck the front fender of an automobile going in the opposite direction. The collision resulted in a fracture of the left femur, fracture of bones in his hand, and contusions. Plaintiff, in testifying, admitted in effect that the collision was his fault. The automobile with which plaintiff collided was driven by a person who had no connection with defendant, except possibly on occasions he had been one of defendant's customers.

Neither the plaintiff nor his parents have made any demand upon or attempted to collect damages from the owner and driver of the automobile which injured him.

Defendant demurred to the original declaration and assigned various grounds which will be hereinafter discussed. The demurrer was overruled. Thereafter, plaintiff filed an amended declaration which later, on his own motion, was withdrawn from the record. The issues of fact arising upon the original declaration and defendant's plea of not guilty resulted in the verdict and judgment as above stated.

This record presents the following controlling questions: (1) Was defendant's demurrer to the original declaration properly overruled? (2) Should the motions made by defendant to strike the evidence and direct a verdict have been sustained? (3) Was it error to give plaintiff's instructions 1 and 2 and refuse defendant's instructions A and 2? (4) Is there any reason for sustaining defendant's motion to set aside the verdict and grant defendant a new trial?

The gravamen of plaintiff's action is the alleged violation of defendant of Sections 1 and 3 of Code, 21-6, as re-enacted and amended. Section 1, id., reads as follows: 'Except as permitted and authorized by the provisions of this article, no child under sixteen years of age shall be employed, permitted or suffered to work in, about, or in connection with any gainful occupation other than agriculture, horticulture or domestic service in a private home.' Section 3, id., permits the employment in gainful occupations of children under the age of sixteen years upon performance by the employer of certain conditions. None of the conditions were met by defendant. Hence, a recital and discussion of those conditions are unnecessary. Various other provisions contained in Code, 21-6, as amended and re-enacted, are likewise not pertinent. It may be noted, however, that Section 10 of Article 6, id., provides for fines and imprisonment to be assessed and enforced against persons violating the provisions of such article. No civil liability is imposed upon a defendant who violates the provisions of Code, 21-6, as amended and re-enacted, but Code, 55-7-9, in general, permits the recovery of damages sustained by reason of the violation of any statute.

The declaration in the case at bar is challenged on the following grounds: (a) that it alleges no cause of action, (b) that it fails to allege any specific act or acts of negligence which possibly caused injuries to plaintiff, (c) that it does not allege that the violation of the statutes was the proximate cause of the injury, (d) that it fails to allege the injury suffered by plaintiff was a foreseeable and probable result of his employment, or that an inference of such result might be made from the facts alleged, (e) that the declaration shows that the employment of plaintiff was not the proximate cause of plaintiff's injury, (f) that the declaration shows that the proximate cause of the injuries to plaintiff was the collision between plaintiff's bicycle and the automobile driven by a stranger, and (g) that no actionable negligence of defendant is charged.

A declaration which does not expressly aver that the unlawful employment was a natural and proximate cause of the injury is nevertheless good on demurrer. Bobbs v. Morgantown Press Co., 89 W.Va. 206, 108 S.E. 879; Dale v. Wheeling Steel Corporation, 112 W.Va. 138, 164 S.E. 245. It suffices to say that a cause of action is clearly and explicitly alleged in the declaration in the instant case. True, the declaration does not aver that the injury suffered by plaintiff was a foreseeable and probable consequence of his employment, but from the facts alleged it may be inferred that when the plaintiff was illegally employed to deliver groceries in the City of Hinton it was foreseeable and probable that he might be injured by a motor or other vehicle using the streets of that city.

We think that defendant's contention that the declaration does not sufficiently allege that the proximate cause of the injuries to plaintiff was a collision between the bicycle on which he was riding and the automobile driven by a stranger is untenable. The declaration alleges the duty of the defendant to refrain from employing children without a work permit, the breach of that duty, and the resultant injury to plaintiff.

The demurrer to the declaration was properly overruled.

All of the contentions made by the defendant resolve themselves into three points: (1) That the illegal employment of plaintiff and failure to obtain a work permit were not the proximate cause of plaintiff's injury. (2) That plaintiff's contributory negligence was the proximate cause of his injury. (3) That there was an entirely independent and unrelated cause which intervened between the negligence of defendant and the actual occurrence of the accident, which was the proximate cause of the accident.

It is a rule of general application in this jurisdiction that the violation of a statute or ordinance which proximately causes an injury gives rise to a cause of action. Oldfield v. Woodall, 113 W.Va. 35, 166 S.E. 691; Powell v. Mitchell, 120 W.Va. 9, 196 S.E. 153; Skaff v. Dodd, 130 W.Va. 540, 44 S.E.2d 621; Rich v. Rosenshine, 131 W.Va. 30, 45 S.E.2d 499.

The violation of statutes forbidding the employment of children under fourteen years of age, whenever that violation is the natural and proximate cause of an injury, constitutes actionable negligence. Norman v. Virginia-Pocahontas Coal Co., 68 W.Va. 405, 69 S.E. 857, 31 L.R.A.,N.S., 504; Burke v. Big Sandy Coal & Coke Co., 68 W.Va. 421, 69 S.E. 992; Daniel v. Big Sandy Coal & Coke Co., 68 W.Va. 490, 69 S.E. 993; ...