Sanitary Laundry Co. v. Adams

• Decision Date: 24 January 1919
• Citation: 208 S.W. 6,183 Ky. 39
• Parties: SANITARY LAUNDRY CO. v. ADAMS.
• Court: Kentucky Court of Appeals

208 S.W. 6

183 Ky. 39

SANITARY LAUNDRY CO. v. ADAMS.

Court of Appeals of Kentucky.

January 24, 1919

Appeal from Circuit Court, Kenton County, Common-Law and Equity Division.

Action by Virginia Adams, by her next friend, against the Sanitary Laundry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

S.D Rouse, of Covington, for appellant.

Samuel W. Adams, of Covington, for appellee.

THOMAS J.

The question involved in this case is purely a legal one, and is whether an infant under the age of 16 years may be estopped to insist that she was employed contrary to the provisions of the child labor law, forbidding the employment of infants under 16 years of age in certain employments. The particular law involved is subsection 9 of section 331a of the Kentucky Statutes.

The facts are that appellant (who was defendant below) is a corporation operating a laundry in the city of Covington, Ky. Some time in June, 1916, defendant employed appellee Virginia Adams (who was plaintiff below), to work in its laundry. In August following plaintiff sustained injuries to one of her hands, which were inflicted by the machine at which she was working, known as a mangle. She brought this suit by next friend against the defendant, seeking to recover damages for the injuries which she sustained, and upon trial recovered a judgment for $1,250, and, complaining of it defendant prosecutes this appeal.

Plaintiff's pleading as amended alleged that she was under the age of 16 years at the time she was employed, which allegation, as well as others charging liability, were denied, and by a separate paragraph it was alleged that plaintiff represented to defendant at and before the time she was employed that she was above 16 years of age, and that defendant relied upon such representations, but for which it would not have employed her, and these facts were relied on as constituting an estoppel. A demurrer was sustained to this paragraph, and the defense sought to be interposed thereby was denied throughout the trial. Upon this alleged error defendant chiefly relies to secure a reversal, for it is insisted that, if plaintiff is denied the benefit of the plea of infancy because of her representations, defendant may avail itself of all defenses, including those of assumed risk and contributory negligence, which it insists are abundantly established by the testimony.

It has been held by all courts, so far as we are aware, that where a master employs an infant in contravention of a statute, and the infant sustains injuries proximately resulting from and having a causal connection with the employment, the master is liable and cannot escape such liability through the intervention of any ordinary defenses available against adults, including the affirmative ones of contributory negligence, assumed risk, etc. Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N.E. 229, 139 Am.St.Rep. 389; Marino v. Lehmaier, 173 N.Y. 530, 66 N.E. 572, 61 L.R.A. 811; Iron, etc., Co. v. Green, 108 Tenn. 161, 65 S.W. 399; American Car, etc., Co. v. Armentraut, 214 Ill. 509, 73 N.E. 766; Perry v. Tozer, 90 Minn. 431, 97 N.W. 137, 101 Am.St.Rep. 416; Sullivan v. Hanover Cordage Co., 222 Pa. 40, 70 A. 909; Sipes v. Mich. Starch Co., 137 Mich. 258, 100 N.W. 447; Leathers v. Blackwell, etc., Tobacco Co., 144 N.C. 330, 57 S.E. 11, 9 L.R.A. (N. S.) 349; and Louisville & Henderson Ry. Co. v. Lyons, 155 Ky. 396, 159 S.W. 971, 48 L.R.A. (N. S.) 667.

In the Lyons Case above referred to this court had under consideration the effect of the employment of infants contrary to the provisions of our statute, supra, and after considerable discussion in which cogent reasons for denying the defense are stated, summed up its conclusion by saying:

"We therefore hold that neither the doctrine relating to assumed risk or fellow servants or contributory negligence has any place in the application of this statute. The employer takes all the risk; the child none. It is true this construction makes the employer an insurer of the safety of the child, and so he should be. The lives and limbs of children are too valuable to be sacrificed in dangerous employments, and if an employer, in violation of the statute, engages the services of a child in such an employment, he must see to it that no harm comes to him, or, if it does, he must compensate him, in so far as money can do, for the injury inflicted."

The same construction had been given to the statute in the prior case of Casperson v. Michaels, 142 Ky. 314, 134 S.W. 200.

The court in the present case submitted to the jury only the issue as to whether plaintiff was under 16 years of age at the time she was employed, and refused to submit any of the affirmative defenses relied on, upon the ground that plaintiff's representation as to her age did not, through the doctrine of estoppel, give defendant the right to rely upon such defense, and in support of the contention that this was error, the case of County Board of Education v. Hensley, 147 Ky. 441, 144 S.W. 63, 42 L.R.A. (N. S.) 643, is relied on.

In that case an infant who had all the appearance of being 21 years of age deeded to his vendee a tract of land, representing himself at the time to be above 21 years of age. He...