Reiten v. J. S. Stearns Lumber Co.

• Decision Date: 05 February 1918
• Parties: REITEN v. J. S. STEARNS LUMBER CO.
• Court: Wisconsin Supreme Court

166 Wis. 605

165 N.W. 337

REITEN

v.J. S. STEARNS LUMBER CO.

Supreme Court of Wisconsin.

Feb. 5, 1918.

Appeal from Circuit Court, Ashland County; G. N. Risjord, Judge.

Action by Bernard Reiten, by guardian, against the J. S. Stearns Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for personal injuries. The plaintiff, a boy 15 years and some months of age, was hired by defendant Saturday May 27, 1916, to throw edgings from live rollers carrying boards and edgings, without a permit first having been obtained under section 1728a, Stats. 1915. On the following Monday morning he was injured by a board carried by the live rollers striking his thigh and inflicting an injury resulting in a bony growth which was removed by a hospital operation on October 9, 1916. February 15, 1917, another operation was had because of its regrowth, and on May 22, 1917, it was found that the bony growth was recurring, and that another operation would probably be necessary. The trial court submitted to the jury only the question of damages, which were assessed at $5,500. The court gave plaintiff the option of a new trial on the ground of excessive damages or a judgment for $2,500 and costs. Plaintiff elected to take the latter, and from a judgment entered accordingly the defendant appealed.A. W. McLeod, of Washburn, for appellant.

W. P. Crawford, of Superior, for respondent.

ESCHWEILER, J. (after stating the facts as above).

The court below submitted but the question of damages for the jury's consideration, holding, as appears from his written decision herein, that there was an absolute liability on the part of the defendant on both of the two grounds asserted in the complaint: First, on the theory that the defendant was liable because the accident happened while the plaintiff, a minor between the ages of 14 and 16, was employed in defendant's sawmill without a written permit having first been obtained according to the provisions of section 1728a, 1; and, secondly, that in addition thereto there was actionable negligence in that the place where the plaintiff was employed was dangerous and unsafe, and liable to result in injury to plaintiff and other employés, in that the place where plaintiff was required to work was limited in area, and was in connection with a table or platform with live rollers upon it carrying planks and edgings from an edging or cutting machine, the trial court holding as to this second ground that the employment was a prohibited one under section 1728a, 2 (c) (14) which is hereinafter quoted.

In sustaining the liability on the first ground the court below held, and it is asserted by plaintiff's counsel here, that the case is controlled in favor of the plaintiff by what was determined by this court in the case of Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 151, 156 N. W. 971. This case was decided in May, 1916, and was for an injury occurring in September 1913.

The provision for the requirement of permits to enable minors within certain ages to be lawfully employed at gainful occupations has stood for many years substantially as it is found now in subsection 1, § 1728a. The provisions thereof material in this case are substantially to the effect that:

“No child between the ages of 14 and 16 shall be employed, required, suffered or permitted to work at any time in any factory or workshop, * * * unless there is first obtained from the commissioner of labor, * * * a written permit authorizing the employment of such child within such time or times as the said commissioner of labor, * * * may fix.”

No provisions for any penalties or forfeiture for breach of this particular section have been found incorporated at any time as a part of that section itself, but have always been found in other sections of the statutes.

Section 1728a, 2, which had just been substantially amended by chapter 466, Laws of 1913, taking effect in June of that year, and therefore in force at the time of the injury and decision in the Stetz Case, of the injury in this case, and now, provided, in substance, so far as material for consideration here: That no employer shall employ, require, permit, or suffer any minor or any female to work in any place of employment or at any employment dangerous or prejudicial to the life, health, safety, or welfare of such minor or such female; that the Industrial Commission shall have power and authority to make classifications of employment or places of employment, and shall issue general or special orders forbidding the employment of minors or females in any employment or place of employment so found by it to be dangerous; and that until such time as the said commission shall determine and fix the classification certain employments and places of employment specified in that section are designated as being deemed dangerous or prejudicial to the life, health, safety, and welfare of minors under the ages therein specified, or a female. Then follows a list of such employments or places of employment, subdivided, to some extent, with reference to limitations to the age of the minors forbidden to be employed in such occupations; subdivision (a) prohibiting the employment of all minors under 21 years of age at certain employments; subdivision (b) as to minors under 18 years; subdivision (c) to those under 16, and in that one, being the one concerned here, and the one relied upon by the trial court in its decision, is said subsection 14 of schedule (c), and hereinafter quoted.

The penalties and forfeitures for violations of labor regulations and employment of minors were specified in several subdivisions of section 1728h, Stats. Wis., at the time of the occurring of the accident passed upon by the Stetz Case; section 1728h, 1, then reading as follows:

“1. Any person, firm or corporation, agent or manager of any firm or corporation who, whether for himself or for such firm or corporation, or by himself or through agents, servants or foremen, * * * violates or fails to comply with any of the provisions of * * * sections 1728a, 1728b, 1728c, 1728d, 1728e, 1728f, 1782g, 1728h, 1728i, 1728a1, 1728a2, 1728a3, 1728a4, 1728a5, or 1728a6, * * * shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than $25 nor more than $100 for each offense or imprisoned in the county jail not longer than thirty days.”

In the Stetz Case, supra, it was held upon former decisions, such as Pinoza v. Northern Chair Co., 152 Wis. 473, 140 N. W. 84, that when it appeared that at the time of the injury the employment of such minor subjected the employer to the penalties prescribed in section 1728h, 1, just above quoted, there was gross negligence as a matter of law on the part of the employer as to which he could not interpose such defenses as that of the contributory negligence of the employé, this being on the well-established...