Shirts v. Shultz

• Decision Date: 14 June 1955
• Docket Number: No. 8255,8255
• Citation: 285 P.2d 479,76 Idaho 463
• Parties: Floyd SHIRTS and Mrs. Floyd Shirts, Plaintiff-Appellants, v. Preston SHULTZ and Betty Shultz, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 479

285 P.2d 479

76 Idaho 463

Floyd SHIRTS and Mrs. Floyd Shirts, Plaintiff-Appellants, v. Preston SHULTZ and Betty Shultz, Defendants-Respondents.

No. 8255.

Supreme Court of Idaho.

June 14, 1955.

Rehearing Denied July 12, 1955.

Stephen Bistline, Sandpoint, for appellants.

Raymond T. Greene, Jr., James E. Hunt, Sandpoint, for respondents.

ANDERSON, Justice.

This action was brought by the parents of a deceased 16-year-old boy under Section 5-310, I.C., which authorizes parents to maintain an action for the injury or death of a minor child when such injury or death is caused by the wrongful act or neglect of another. The second amended complaint in substance alleges the facts hereinafter stated.

LaVern Shirts, a minor 16 years of age, died May 5, 1953, from injuries sustained the same day, while and during the course of his employment by the defendants; that his death was caused by the wrongful acts or neglect of the defendant Preston Shultz.

The deceased was for his age strong, well and able, and was employed by the defendants to drive a caterpillar-type farm tractor, commencing at 6 p. m. in the evening and lasting until 6 a. m. the following morning.

Defendant Preston Shultz stated to the plaintiffs that he would not work LaVern Shirts on such shifts, for such hours, without adequate supervision.

The plaintiffs thoroughly appreciated the dangers to life and limb attendant to their son in his working such long hours, on night shifts, and conditioned his employment on the assurances of the defendant Preston Shultz that there would at all times be some other and older person working at the same time. It was foreseeable that a boy of the deceased's age, who worked such long and monotonous hours, would fall asleep while driving said tractor, and thereby be greatly injured or killed.

The complaint alleges the defendants did wrongfully and neglectfully work and employ the deceased on May 5, 1953, from 6 p. m. in the evening until his death, without any supervision whatever, and with no other person working or then and there being present, that such actions on the part of the defendants did proximately cause the death of LaVern Shirts; that he fell asleep while driving the tractor, and as a result thereof ran into a drain ditch, overturned and drowned.

The defendants filed a motion to strike certain portions of the second amended complaint, and also filed a general demurrer to the said complaint. The motion was granted, and the demurrer sustained by the trial court without leave to amend, and a judgment of dismissal entered from which this appeal was taken.

The first question to consider in this case is whether or not the second amended complaint states a cause of action. The original and first amended complaints are in the transcript, and are discussed in part in the briefs. When the second amended complaint was filed, all former complaints became functus officio. People ex rel. Huston v. Hunt, 1 Idaho 433; Colgrove v. Hayden Lake Irr. Dist., 40 Idaho 489, 235 P. 434; Cable v. Olson, 52 Idaho 389, 15 P.2d 737.

Sec. 44-1304, I.C., provides:

'No person under the age of sixteen years shall be employed or suffered or permitted to work at any gainful occupation more than fifty-four hours in any one week, nor more than nine hours in any one day; nor before the hour of six o'clock in the morning nor after the hour of nine o'clock in the evening.'

The deceased being 16 years of age at the time of the accident did not come under the terms of the above statute, and therefore his employment was not illegal per se. The child labor laws protect minors of the age within the confines of the statute, and not others. Inland Steel Co. v. Yedinak, Inc., 172 Ind. 423, 87 N.E. 229.

It is to be noted that nowhere in the second amended complaint is there any allegation as to how many nights the deceased had worked long hours, if any, nor how long he had worked between 6 p. m. and midnight on May 5, 1953, before the accident which resulted in his death. If he started work at 6 p. m. and was killed the same day, as the complaint alleges, he could not have worked over six hours. In each case cited by appellants in support of their contention that the negligence was the result of long hours, overwork and fatigue, the hours varied from 18 to three days.

In the case of Conkey v. Larsen, 173 Ind. 585, 91 N.E. 163, 165, 29 L.R.A., N.S., 116, the court stated:

'The vital question, therefore, is: Was the danger to which the plaintiff was exposed, as shown by his complaint, of such a character as was not open and apparent to the observation and apprehension of appellee upon the proper exercise of his faculties assuming that he was giving due care and attention to the work in which he was engaged? The contrary not being averred, it will be presumed that the plaintiff was endowed with all the natural faculties, and that his judgment and powers of reason were developed to the extent usual to one of his age. It is alleged that he was 16 years of age when hurt, and was at the time engaged in the work he was employed to perform; that he had operated the injuring machine at intervals daily since his employment. It is not averred how long he had been so employed and had operated the machine, and, in the absence of such averment, we may presume that his use of the machine had covered a period of time which, if alleged, would at least not have aided his cause of action, under the firmly established rule that a party's pleading is presumed to be as strongly in his favor as the facts will warrant.'

In our opinion, the second amended complaint in the case now before us fails to show facts sufficient to state a cause of action for negligence causing deceased's death as the result of too long hours, overwork or fatigue. Nor does it state any cause of action based on contract.

The case of Ford v. Connell, 69 Idaho 183, 204 P.2d 1019, relied on by appellant, is readily distinguishable from the case now before us in that the evidence was conflicting and therefore was a question for the jury to decide as to whether or not the employer directed the employee to drive the tractor...