Seglinski v. Baltimore Copper Smelting & Rolling Co.

• Decision Date: 13 January 1926
• Docket Number: 35.
• Citation: 131 A. 774,149 Md. 541
• Parties: SEGLINSKI v. BALTIMORE COPPER SMELTING & ROLLING CO.
• Court: Maryland Court of Appeals

131 A. 774

149 Md. 541

SEGLINSKI v. BALTIMORE COPPER SMELTING & ROLLING CO.

No. 35.

Court of Appeals of Maryland

January 13, 1926

Appeal from Baltimore City Court; Duke Bond, Judge.

"To be officially reported."

Action by John W. Seglinski against the Baltimore Copper Smelting & Rolling Company. Judgment for defendant on its demurrer, and plaintiff appeals. Reversed, and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and PARKE, JJ.

William Curran, of Baltimore (Curran & Leach, of Baltimore, on the brief), for appellant.

Mason P. Morfit, of Baltimore (Sappington & Morfit, of Baltimore on the brief), for appellee.

PATTISON J.

The appeal in this case is from a judgment for the defendant, the appellee in this court, in an action brought against it by the appellant for the loss of services of his son, who was injured while in its employment.

As stated in the declaration, the plaintiff sued the defendant:

"For that at the time of the happening of the injuries hereinafter complained of, and before and afterwards, the defendant the Baltimore Copper Smelting & Rolling Company was carrying on the business of copper manufacturing, in the city of Baltimore, and state of Maryland; that on or about the 26th day of April, 1924, the defendant employed one Joseph Seglinski, the infant son of the plaintiff, as a shearman's helper; that at the time of said employment the said Joseph Seglinski was a minor 17 years of age, which fact was known to the defendant; that the said employment was with the written consent of the plaintiff; that said employment was a nondangerous occupation; that later in the afternoon of the said 26th day of April, 1924, the said Joseph Seglinski was transferred and placed at work as a roller's assistant; that thereafter, while so employed and while working in the plant mentioned hereinabove on the 2d day of May, 1924, the defendant by its agents and servants placed the said Joseph Seglinski to work as a shearman on a shear machine, a dangerous occupation; that, while so working as a shearman on said shear machine, the said Joseph Seglinski, on the 2d day of May, 1924, aforesaid, had the distal phalanges of all four fingers of his right hand cut off by being caught under the shears of said shear machine at which he was then working; that said Joseph Seglinski has thereby been permanently disabled and incapacitated from earning his livelihood at any of the mechanical trades; that the said transfer of said Joseph Seglinski to the work of shearman was without the knowledge or consent of John W Seglinski, the plaintiff herein; that said injuries to the said Joseph Seglinski, the minor son of the plaintiff, John W. Seglinski, were the proximate result of the wrongful act of the defendant, its agents, and servants in the premises in placing and employing said Joseph Seglinski to perform said dangerous work on said dangerous machinery, without the knowledge or consent of his father, the plaintiff; that as a direct result of said injuries to said Joseph Seglinski, caused by the wrongful act of the defendant as aforesaid, the plaintiff has permanently lost the services of his said minor child." A demurrer was interposed to the declaration, and, upon its being sustained without leave to amend, a judgment for defendant's cost was entered.

The question arising under the demurrer and presented by this appeal is whether an employer is liable to the father for the loss of his son's services, caused by injuries received in his employment, where the employer, with the consent of the father, employs his son, a boy not more than 17 years of age, knowing him to be a minor, to do work not of a dangerous character, and afterwards, without the consent of the father, transfers him to dangerous work, and the son is injured while engaged in such work, not due to any negligence of the employer, to the extent of rendering him unable to perform the services to which his father is entitled.

In 20 R. C. L. 620, it is said:

"It is the general rule that a person who employs an infant without his parent's consent, and requires him to do dangerous work in the performance of which the child is injured, commits an actionable wrong, for which the employer is liable, although there is no evidence of negligence on his part. The wrong inherent in the employment makes proof of a subsequent wrong, as by negligence, unnecessary. The loss of the service is the gist of the action. Knowledge of the minority of a child, employed without the parent's consent, appears to be essential to the maintenance of the action. But this may be shown by circumstantial evidence. The plaintiff is not required, however, to prove that the master knew that he objected to the employment. One hires a minor at his peril; and it is his duty to know that the father is willing before he hires him, especially if the employment is dangerous."

The author, in support of the principles enunciated, cites the following cases: Louisville, etc., R. Co. v. Willis, 83 Ky. 57, 4 Am. St. Rep. 124; Haynie v. North Carolina Electric Power Co., 157 N.C. 503, 73 S.E. 198, 37 L. R. A. (N. S.) 580, Ann. Cas. 1913C, 232; Gulf, etc., R. Co. v. Redeker, 67 Tex. 190, 2 S.W. 527, 60 Am. St. Rep. 20; Id., 75 Tex. 310, 12 S.W. 855, 16 Am. St. Rep. 887; Texas, etc., R. Co. v. Brick, 83 Tex. 526, 18 S.W. 947, 29 Am. St. Rep. 675; Hendrickson v. Louisville, etc., R. Co., 137 Ky. 562, 126 S.W. 117, 30 L. R. A. (N. S.) 311.

In Louisville, etc., R. Co. v. Willis, supra, the court said:

"The duty of the father to educate and maintain the son entitled the former [[the father] to the son's services, and placed him in the attitude of a master to him, or created the relation of master and servant. * * * If one engages the servant of another in an obviously dangerous business, he renders himself responsible for any injury the servant may sustain while so engaged, and which can rationally be attributed to the undertaking; and this is so, even if the injury results immediately from the neglect or unskillfulness of the servant, owing to the fact that the person, by so illegally interfering, assumes all the risk incident to the service."

In Hendrickson v. Louisville, etc., R. Co., supra, it was held the father may recover damages for injuries to his minor son because of his employment, without his knowledge, as brakeman by a railroad company, which knows of his minority, and the fact that the son assumes the risk of his employment, so that he could not recover...