Sjoberg v. White

• Citation: 119 Utah 562,230 P.2d 331
• Decision Date: 20 April 1951
• Docket Number: No. 7482,7482
• Parties: SJOBERG, v. WHITE.
• Court: Supreme Court of Utah

Page 331

230 P.2d 331

119 Utah 562

SJOBERG, v. WHITE.

No. 7482.

Supreme Court of Utah.

April 20, 1951.

H. A. Sjostrom, M. M. Morrison, Logan, for appellant.

Bullen & Olson, Logan, Thatcher & Young, Ogden, for respondent.

WADE, Justice.

L. E. Sjoberg, appellant herein, brought this action under the provisions of Section 104-3-10, U.C.A.1943, for damages for the death of his minor son who was injured while in the employ of J. B. White, respondent herein.

Appellant in his complaint alleged that the minor, a 17-year old boy, had been employed by White to help with chores on respondent's farm. Prior to the time of the accident, the boy had been required by White to herd, tend and haul tank water to turkeys he was raising in the hills in Avon, Utah, about three miles from his farm. For the purpose of hauling the water, the minor was supplied with a team of horses and a wagon of ordinary dimensions upon which was placed a tank 14 feet long, 2 1/2 feet wide and 3 feet deep. This tank made the wagon top heavy and liable to tip over in that hilly country. The minor had no previous experience in driving a team and wagon and on July 10, 1947, while driving the team and tank-laden wagon up a steep hill to the turkeys the wagon tipped over and crushed the boy to death. At the time of the accident, the deceased had been alone in the hills for a couple of days with no one to help or advise him as to the dangers inherent in the work. Respondent pleaded contributory negligence and assumption of risk of both deceased and appellant herein. The jury brought in a verdict of no cause of action and this appeal is from the judgment thereon.

Appellant assigns as error (1) The exclusion by the court of testimony proffered by him as to conversations with the decedent in which he had requested decedent to discontinue his employment as a herder and tender of turkeys because the job was too dangerous and because he had been hired to work around respondent's barns and not in the hills; and (2) The giving of instruction No. 12 by the court to the jury wherein they were told: 'You are instructed that the father of an employee is not entitled to recover damages for injuries sustained as a result of working in a dangerous place or with dangerous equipment, even when the danger is created by the negligence of the employer if the danger was known to the father or was so open and obvious that it must be supposed that he knew of it.'

Appellant brought this action under the provisions of Section 104-3-10, U.C.A.1943, which provides that a parent or guardian 'may maintain an action for the death or injury of a minor child when such injury or death is caused by the wrongful act or neglect of another'. In his complaint, he alleged that the wrongful acts or neglect of the defendant consisted of requiring the minor to work without the consent of appellant at a place and with equipment which was dangerous to a person to decedent's age and lack of experience.

From the portion of the transcript of the evidence which appellant has brought to this court, it appears that he visited with his son at least three times while he was working in the hills and that he had conversations with him about his work there. He was not allowed to testify as to what those conversations were. He testified that after these conversations with his son he tried to find the respondent but could not. He was asked if he had consented to his son's working in the hills but his answer was stricken. Appellant proffered to prove that he first heard of his son's working in the hills when the son came home and told him that he had been working up in the hills for fourteen days; that appellant told his son that the agreement was that he should stay around the barns, but the boy replied that respondent had promised him a bonus of $25.00 if he would stay until the school season, and he had promised him that he would; that appellant spoke to his son several times after this conversation but could not prevail upon him to quit.

In his complaint, appellant pleaded that he had not given his consent to the employment of his son in the hills to tend turkeys but consented only to his being employed to do ordinary chores around respondent's farm. Respondent pleaded contributory negligence of the appellant.

In determining whether this evidence is admissible, two questions are presented: (1) Does the appellant's failure to protest to the employer after he knew that the boy was engaged in hazardous work preclude a recovery? and (2) May he recover because respondent supplied the boy with defective equipment?

Appellant alleged that respondent wrongfully employed his minor son in hazardous work without his consent and negligently supplied him with dangerous equipment. Under the first issue, we must determine whether appellant consented to this employment. Such consent may be either express or implied. Appellant alleged that he had given consent to respondent to employ his son only to do chores around the farm. Appellant admitted that he knew of his son's employment in the hills as a herder and tender of turkeys for sometime before the accident. Knowledge by a parent of a child's employment in a hazardous work without protest to the employer or a reasonable effort to make such protest is deemed consent thereto, even though no consent thereto was originally given. See Warrior Mfg. Co. v. Jones, 155 Ala. 379, 46 So. 456; Tennessee Coal, Iron & R. Co. v. Crotwell, 156 Ala. 304, 47 So. 64; Wolf v. East Tennessee V. & G. R. Co., 88 Ga. 210, 14 S.E. 199; Louisville & N. R. Co. v. Davis, 105 S.W. 455, 32 Ky.Law Rep. 306, and Mauck v. Southern R. Co., 148 Ky. 122, 146 S.W. 28. In the cases cited above, it was held that a parent could not recover for the injuries to a child where there was no negligence on the part of the employer other than employing a minor in a hazardous work where the parent had knowledge of such employment and did not protest, even though the parent had given no initial or actual consent to the employment.

Appellant contends that the proffered testimony to the effect that he had requested his son to discontinue...