Platt v. Southern Photo Material Co.

• Decision Date: 30 March 1908
• Docket Number: 1,008.
• Citation: 60 S.E. 1068,4 Ga.App. 159
• Parties: PLATT v. SOUTHERN PHOTO MATERIAL CO.
• Court: Georgia Court of Appeals

60 S.E. 1068

4 Ga.App. 159

PLATT v. SOUTHERN PHOTO MATERIAL CO.

No. 1,008.

Court of Appeals of Georgia

March 30, 1908

Syllabus by the Court.

A pauper affidavit filed to avoid payment of costs in this court in a case brought by an infant through his next friend should verify the next friend's poverty and inability to pay the costs.

[Ed Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 2073, 2074.]

The employment of a child under the age prescribed by the child labor law (Acts 1906, p. 98) in a factory or manufacturing establishment is negligence per se; and, if the child is injured by reason of being so engaged, he has as a matter of law a cause of action against the employer. However, if the child employed is above the designated age, a failure on his employer's part to take and file the affidavit prescribed by section 5 of that act, though criminal, is not such an act of negligence, relative to the child, as to make the employer liable as a matter of law for his injuries.

(a) The words "per se," when used as descriptive of negligence, merely refer to the method by which its existence is to be ascertained from the facts of the case. If the lawmaking power in dealing with a subject involving duties goes into concrete specifications as to what shall or shall not be done, the court takes judicial cognizance that the precise duty exists, and that a breach of it is negligence. This is called negligence per se in contradistinction to those wrongs or derelictions that arise from violations of those duties which have received recognition in the law, but which have not been defined, or have been defined only in such general or abstract language that there must be a finding as a question of fact (usually by a jury) that the particular transaction involves a violation of the duties so imposed before the existence of negligence is to be regarded as established.

(b) Before negligence per se, or any other form of negligence, is actionable in a given case, it must appear that the broken duty was due the plaintiff personally or as a member of a class; also, that it has directly and proximately caused legal injury to him.

(c) In determining whether the violation of a statute is such negligence as to support an alleged cause of action, the court is called upon to examine the law in respect to its purposes; for, if it appears that notwithstanding the violation, none of the things contemplated and sought to be guarded against have ensued, or that the plaintiff is not the person or does not belong to the class to whose benefit or for whose protection the enactment was made, the court will not declare that there is a case of negligence per se as to that cause of action or that plaintiff.

[Ed Note.-For other definitions, see Words and Phrases, vol. 5 pp. 4764-4765.]

The child labor law by specifically providing that the employment of children under a designated age in certain occupations shall be absolutely unlawful has in nowise limited the general law in regard to putting immature persons of tender years to work at or near dangerous machinery. In a case not covered by the statute the question of the defendant's negligence in employing the young person at the particular occupation is usually one for the jury.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1006.]

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Fred Platt, by next friend, against the Southern Photo Material Company. Judgment for defendant, and plaintiff brings error. Reversed.

Andrews & Skeen and W. R. Hammond, for plaintiff in error.

Evins & Spence, for defendant in error.

POWELL J.

1. Upon the call of this case for argument the clerk brought to the attention of the court the fact that the costs had not been paid, and that the pauper affidavit which had been filed by the next friend did not verify his own poverty and inability to pay the costs, but only that of the infant plaintiff in error. The court took the matter under advisement, and, having reached the conclusion that the affidavit is insufficient for the reason stated, has caused the costs to be paid. The question whether the affidavit made to submit a case brought to this or the Supreme Court by an infant through his next friend in forma pauperis should verify the poverty and inability of the infant or of the next friend has not been, so far as we can find, decided in any reported case. However, by a practice of long standing, the Supreme Court has required the affidavit to relate to the next friend and not to the infant. Indeed, in the case of Shelly v. Haslett in the Supreme Court at the October term, 1900, the point was directly made. A pauper affidavit in that case verified the poverty and inability only of the next friend, and a motion to withdraw the case presented the question whether the affidavit was sufficient so as to relieve counsel for the plaintiff in error from responsibility for the costs, and the court instructed the clerk, in an opinion, written and preserved in the clerk's office, though never printed, that the affidavit was in proper form. Ordinarily it is true the affidavit must relate to the financial ability of the real party plaintiff in error; and in a case prosecuted by a person in a representative capacity, such as an administrator, executor, trustee, etc., must relate not to his personal inability, but to that of the estate he represents. Such, however, is not the case as to suits of infants. The reason for the difference seems to be this: The power to contract a liability for costs by filing or prosecuting a suit is, according to a long array of authorities, beyond the capacity of an infant. Execution cannot issue against him for costs; "for it is said costs came in lieu of the common-law amercement of the plaintiff pro falso clamore and the infant could not be subject to amercement, and, of course, could not be liable to its substitute." Cook v. Adams, 27 Ala. 294. That there may be protection in the matter of costs to parties, officers, and others entitled, as well as for the further purpose that there shall be in charge of the case some discreet person, who may receive the necessary notices, accept service of papers, and attend to other matters incident to the prosecution of the cause, the law will not permit an infant, over objection, to prosecute a suit in the courts by himself alone. The appointment of a next friend or guardian ad litem-and between the two there is but little or no difference for all practical intents and purposes-is a matter primarily for the court, but usually in his petition the infant names the next friend, who consents to act, and the court by allowing the action to proceed ratifies that appointment. The court might refuse to recognize the next friend named in the petition, and would have the power to appoint another. The next friend by assuming to act assumes primary responsibility for the costs. Nance v. Stockburger, 112 Ga. 90, 37 S.E. 125, 81 Am.St.Rep. 22.

So far as the payment of costs is concerned, every infant is always, theoretically at least, in a state of inability; for all his moneys, etc., are, or should be, in the hands of his legal guardian. No court can by execution or otherwise compel an infant to pay costs; nor should a court allow him voluntarily to pay them, for this would be an expenditure from his estate that should be sanctioned only by that court or officer which has cognizance of his financial affairs. The court, therefore, looks to the next friend or guardian ad litem for the costs. As to this incident of the case he is the party, the person, against whom the judgment immediately goes, and the infant is not. The infant's estate is ultimately responsible for the costs if the expenditure is bona fide and for the infant's apparent good. The court, having his estate under its jurisdiction, may, therefore, upon proper application, direct the legal guardian or other trustee having possession of the funds to pay the costs to the next friend or guardian ad litem, or to the officers of the court if they have not been paid. If the court in which the suit is filed appoints or accepts a next friend who on account of poverty is unable to pay the costs, this court will not for his failure to perform that duty refuse to entertain the writ of error if the fact of his poverty and inability is formally verified in the manner prescribed by the statute. The infant's poverty or inability to pay the costs is immaterial; for, although he should be a pauper, the next friend, who is primarily responsible, should and must pay the costs if he is able to do so.

2. Counsel, having been informed of the views of the court on the question of the costs, have caused them to be paid, and we come now to a consideration of the case presented by the record. The broadest contention of the plaintiff in...