Sechlich v. Harris-Emery Co.
| Decision Date | 16 November 1918 |
| Docket Number | 32160 |
| Citation | 169 N.W. 325,184 Iowa 1025 |
| Parties | JAKE SECKLICH, Administrator, Appellee, v. HARRIS-EMERY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--THOS. J. GUTHRIE, Judge.
ACTION at law. The material facts are stated in the opinion.
Affirmed.
Stipp Perry, Bannister & Starzinger, for appellant.
Jordan & Jordan and Miller & Wallingford, for appellee.
Kate Secklich, a girl under 14 years of age, was employed by the defendant to perform services in its department store in the city of Des Moines. While so engaged, the girl fell into the shaft of an elevator used in the store, and was killed. This action is brought to recover damages to the estate of the deceased, on the alleged ground that the death of the intestate was caused by the negligence of the defendant. The charge of negligence includes the following specifications:
1. Failure to provide and maintain a safe place to work.
2. Employing a child of tender years, contrary to law, and without the consent of her parents.
3. Failure to give the deceased proper instruction and warning.
4. Overloading the deceased with bundles and packages, thereby preventing her from seeing the danger to which she was exposed.
5. Leaving the elevator shaft unguarded.
6. Employing an unskilled, negligent, and incompetent operator of the elevator.
To this petition the defendant demurred on the ground that the court was without jurisdiction to hear or try this case, and that the recovery, if any, is to be had by applying for compensation under the provisions of the Workmen's Compensation Act. The demurrer was overruled, and thereupon, defendant filed an answer in which, after denying the petition generally, it admits its ownership and operation of the store above mentioned; admits that, on February 17, 1917, it employed Kate Secklich to perform services, in said store, where she remained until March 7, 1917, when she was injured. It is further alleged that, before she entered said service, the deceased applied to defendant for employment, stating and representing that she was of the age of more than 15 years; and that defendant, believing and relying upon such representation, did enter into a written agreement or promise to give her employment, and agreed to return her work permit at the expiration of such employment, in case one was issued by the proper authority. It further alleges that, having obtained the said written agreement of the defendant, the deceased went to the proper officer, who issued her a permit, allowing her to enter the defendant's employment, and stating the date of her birth to be September 1, 1901, thus making it appear that she was then more than 15 years of age; and thereafter, the defendant, in good faith, believing that the girl was more than 15 years old, and that, if injured in its service, she would accept compensation therefor according to the provisions of the Workmen's Compensation Act, did take her into its said employment. The answer further alleges that the parents of the girl knew she was employed in defendant's store, and not until some time after her injury did they make any claim that she was under 15 years of age, or that she had been unlawfully employed. It is also pleaded that defendant has at all times been, and now is, ready, able, and willing to pay and make compensation for the injury and death of Kate Secklich, according to the terms and provisions of the Compensation Act.
Plaintiff attacked the answer by motion to strike therefrom as immaterial all the matter therein alleged and pleaded, except its admission and denials of matters stated in the petition. The motion was sustained, the matter objected to was stricken from the answer, and defendant appeals.
I. If the deceased was under 14 years of age, then defendant could not lawfully take her into its employment. This we do not understand is denied by counsel. They contend, however, that while such violation of the statute, if in fact it was violated, might render defendant liable to the prescribed penalty, it is none the less true that, whether the relation was or was not lawfully begun, defendant was, in fact, the girl's employer, and she was, in fact, its employe, and that this is sufficient to bring the case within the scope of the Compensation Act, which provides that, where not excepted by its terms, the act applies to "every employer." But this theory ignores the fundamental fact that, under the Compensation Statute, the right of the employe to exact compensation from his employer for personal injury, according to its terms, and the right of the employer to exemption from all other liability than is there provided, are, in their last analysis, a matter of contract. Neither party is bound by the terms of the contract as to compensation until he expressly or impliedly accepts its terms. The employment of a child under the prescribed minimum age being forbidden, the child cannot lawfully consent to take employment under the statute, nor can the employer, by such void contract, limit his liability for injury to such child to the compensation fixed by the act, to which it was incapable of giving consent. This would seem to be the necessary result, even without resort to the aid of precedent; but it has already been so held by several courts. Whether, if a child makes a claim under the Compensation Act, the employer could successfully...
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