De Soto Coal Mining & Development Co. v. Hill

Decision Date12 November 1912
Citation179 Ala. 186,60 So. 583
PartiesDE SOTO COAL, MINING & DEVELOPMENT CO. v. HILL.
CourtAlabama Supreme Court

Rehearing Denied Dec. 17, 1912.

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Jim Hill, by next friend, against the De Soto Coal, Mining & Development Company for damages for injuries received. From judgment for plaintiff, defendant appeals. Affirmed.

The following is the complaint: Count 1: "The plaintiff, Jim Hill, who is a minor, who is of the age of 13 years, and who sues by W. J. Hill, as his next friend, claims of defendant the sum of $40,000 as damages, for that heretofore, to wit the defendant was engaged in and about the business of operating a coal mine, known as Indio mine, in Jefferson county, Alabama, with shafts, entries, and rooms therein, and with mine tracks and cars operated thereon; that on that date plaintiff was employed by the defendant in said mine as a trapper, and while engaged in and about his duties in said mine plaintiff was caused to fall or be thrown from a mining car in said mine, whereby he was greatly injured and bruised [here follows catalogue of injuries], and to be crippled for life and rendered permanently less able to follow his usual avocation and employment. And plaintiff avers that he received his said injuries as a proximate consequence of the wrongful conduct of the defendant's officers and agents whose names are unknown to plaintiff, while engaged in the line and scope of their employment, which said wrongful conduct consisted in this: That said officers and agents of defendant, while engaged in the line and scope of their employment, did wrongfully employ the plaintiff, then a boy 13 years of age, to work or labor in or about the defendant's mine in violation of section 1035, Code 1907. [Here follows the said section.]" Count 6: Same as 1 down to and including the words "avocation and employment," where they occur together in said count and adds: "And plaintiff says that he received his said injuries as a proximate consequence of his wrongful employment by one P. H. Savage, then defendant's superintendent, who was acting in the line and scope of his authority, in violation of section 1035 [and then sets out said section]." Count 7: Same as 6, except that it has the additional allegation that the plaintiff was then a boy only 13 years of age. Count 8: Same as 1, down to and including the words "avocation and employment," where they therein occur, and adds: "And plaintiff says that he received his said injuries as a proximate consequence of the negligent conduct of the defendant's officer and agent, one P. H. Savage, while the said Savage was engaged in the scope of his employment by the defendant, which said negligence consisted in this: That the said P. H. Savage, while engaged in the line and scope of his employment by the defendant, did negligently employ the plaintiff, then a boy of 13 years of age, to work and labor in and about the defendant's mine, in violation of section 1035, of the Code of Alabama of 1907 [and the section is then set out]."

The demurrers to the first count are the usual demurrers as to vagueness, indefiniteness, and uncertainty, as to violation of duty, and, further, that it does not appear that defendant owed any duty to the plaintiff which it negligently failed to perform, and that the averments set up do not show any liability on the part of the defendant, and because the counts fail to state any act of negligence which would render the defendant liable, and because the section mentioned does not authorize the plaintiff to maintain the suit under the facts set out, and it does not appear that the defendant unlawfully employed the plaintiff at the time he was injured. The pleas were that plaintiff himself was guilty of contributory negligence, and that the plaintiff represented himself, at the time he applied for employment, to be over 14 years of age, and that he did this in order to get employment, and that, acting on this information, which he believed to be true, defendant employed plaintiff to work in its mine.

The exceptions to the court's oral charge are as follows: (1) "If you are reasonably satisfied of that fact [that plaintiff was under 14 years of age at the time he was injured], then the plaintiff would be entitled to recover in this case such damages as he may have suffered by reason of the alleged wrongful employment or alleged negligent employment." (2) "Now, in other words, a boy--or the plaintiff, for that matter--could be guilty of contributory negligence if he possesses a degree of special intelligence greater than that of boys of the same age. However, there would have to be some distinct characteristics of intelligence, brightness, or smartness that would distinguish him from boys of the same age."

The following charges were given at the instance of the plaintiff: (5) "I charge you, gentlemen of the jury, that if you believe from the evidence in this case that plaintiff was unlawfully employed by the defendant in violation of section 1035 of the Code of Alabama, you have the right to find for the plaintiff, unless you believe that defendant has established one or more of its pleas of contributory negligence." (13) "I charge you, gentlemen of the jury, that in considering the evidence in this case, in connection with defendant's pleas of contributory negligence, you are bound to take into account the age, judgment, surroundings, degree of intelligence, and other characteristics of boys of defendant's age, in determining whether or not plaintiff was guilty of contributory negligence."

The following charges were refused to the defendant: (1) The affirmative charge, and affirmative charges as to each count. (21) "I charge you that the burden of proof is on the plaintiff to reasonably satisfy you from the evidence that the fall of the plaintiff from the car, or when he started to get off the car, proximately caused his injury, in order to entitle him to recover."

Mayfield and Sayre, JJ., dissenting.

J. T. Stokely and R. H. Scrivner, both of Birmingham, for appellant.

Vassar L. Allen, of Birmingham, for appellee.

ANDERSON J.

Section 1035 of the Code of 1907 says: "No woman or boy under the age of fourteen years, shall be employed to work or labor in or about any mine in this state." This statute was intended to protect women and children of a tender age from incurring the hazard and danger incident to the operation of mines by imperatively preventing the employment of same, and requires the employer to see and know that those whom they employ are not within the prohibited class, and it should be liberally construed so as to effectuate the humane intent of the Legislature. As was said by the New York court, in the case of Lee v. Sterling Mfg. Co., 47 Misc. 182, 93 N.Y.S. 560: "This is a statute which makes an epoch in the progress of humanity, and the courts should not get in its way or whittle it down, as courts have done in the past." It is not a question of whether or not the employer thought the child was over the prohibited age, but whether or not he was. Nor is it necessary that injury must result as the proximate cause of some act or omission of the minor in the discharge of the duty assigned him, but the right of action arises if the injury resulted from the employment and was incident to any of the risks or dangers in and about the business. Of course, there would be no causal connection if the boy got sick or was injured in some way foreign to the master's work or business, although in or near the mine; but if the injuries are produced while the boy is at the forbidden place--that is, in or about a mine by some cause not foreign to the master's mine or business--there is such a causal connection with the forbidden employment as would render the master liable. The weight of authority also is that false representations by the minor or any one else, as to his age, would not estop him from a recovery for injuries sustained. Neither can the defense of assumption of risk or contributory negligence be invoked by the master as a defense to injuries sustained as a result of the wrongful employment. This statute was evidently borrowed from some of the other states and was enacted after it had there received a well-known interpretation, and we find that the holding in nearly all of the states, wherein statutes similar to this one exists, and which have been interpreted, is in full accord with the foregoing conclusion. Thompson on Negligence, vol. 1, par. 10; Queen v. Dayton Coal Co., 95 Tenn. 458, 32 S.W. 460, 30 L. R. A. 83, 49 Am. St. Rep. 935; American Car Co. v. Armentraut, 214 Ill. 509, 73 N.E. 766; Rolin v. Reynolds Tobacco Co., 141 N.C. 300, 53 S.E. 891, 7 L. R. A. (N. S.) 335, 8 Ann. Cas. 638; Starnes v. Albion Mfg. Co., 147 N.C. 556, 61 S.E. 525, 17 L. R. A. (N. S.) 606, 15 Ann. Cas. 470; Swift Co. v. Rennard, 119 Ill.App. 173; Strafford v. Republic Co., 238 Ill. 371, 87 N.E. 358, 20 L. R. A. (N. S.) 876, 128 Am. St. Rep. 129; Braasch v. Michigan Stove Co., 153 Mich. 652, 118 N.W. 366, 20 L. R. A. (N. S.) 500; Nairn v. National Biscuit Co., 120 Mo.App. 144, 96 S.W. 679; Stehle v. Jaeger Co., 220 Pa. 617, 69 A. 1116, 14 Ann. Cas. 122; Lenahan v. Pittston Coal Co., 218 Pa. 311, 67 A. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 885; Sullivan v. Hanover Co., 222 Pa. 40, 70 A. 909. We do not mean to hold that a representation by the parent that the boy was over age would not estop said parent in an action for violating the statute, but do hold that the boy is not estopped from a recovery, either by his own misrepresentations or those of his parent as to his age. These representations, either by the boy or the parent, are evidential facts to be considered in determining the true...

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