Raynes v. Nitro Pencil Co.

• Decision Date: 01 March 1949
• Docket Number: 10075.
• Parties: RAYNES v. NITRO PENCIL CO.
• Court: West Virginia Supreme Court

52 S.E.2d 248

132 W.Va. 417

RAYNES v. NITRO PENCIL CO.

No. 10075.

Supreme Court of Appeals of West Virginia.

March 1, 1949

Syllabus by the Court.

Subsection 3 of Code, 21-6-2, which prohibits the employment of a child under eighteen years of age in certain manufacturing plants includes only plants where 'the heating, melting or heat treatment of metals is carried on;'.

Salisbury, Hackney & Lopinsky, Emerson Salisbury, M. O. Litz and H. D. Rollins, all of Charleston for plaintiff in error.

Campbell McClintic & James, J. Hunter McClintic, Charles C. Wise and Larry W. Andrews, all of Charleston, for defendant in error.

KENNA Judge.

This action in trespass on the case was brought in the Circuit Court of Putnam County by Brooks Raynes, an infant under the age of Twenty-one years, who sued by Frances V. Raynes, his legal guardian, against Nitro Pencil Company, a corporation seeking the recovery of $25,000.00 damages for the loss of three of the plaintiff's fingers in the course of his employment by the defendant at its Nitro factory while operating a defective rotating roller. Demurrers were sustained to both an original and an amended declaration, the latter being spoken of hereafter as the declaration, and the action dismissed. This writ of error was granted upon the petition of the plaintiff below.

The declaration alleges that the plaintiff, at the time of his injury, was seventeen years of age and therefore that his employment by the defendant was in violation of Code, 21-6-2. The position of the defendant upon demurrer to the declaration was, first, that the employment of plaintiff by defendant was not one of the employments of a child under eighteen years of age prohibited by Code, 21-6-2, and that consequently the plaintiff's sole right of recovery was under the Workmen's Compensation Law which protected the defendant from a common law recovery for injuries sustained by its employees in the course of and resulting from their employment; and, second, that if the statute in question did apply the declaration of plaintiff was still defective because its allegations do not bring the plaintiff's work at the time of his injury within any of the employments specifically prohibited, and hence do not allege that the violation of the statute was the proximate cause of that injury.

The contention of the plaintiff in error plaintiff below, was and is that his employment by the defendant was in violation of Code, 21-6-2, which provides that no child under eighteen years of age shall be employed in '* * * (3) Ore reduction works, smelters, hot rolling mills, furnaces, foundries, forging shops, or in any other place in which the heating, melting or heat treatment of metals is carried on; * * *'. The declaration alleges that 'furnaces' were used within the defendant's plant...