Star Fire Clay Co. v. Budno

• Decision Date: 13 December 1920
• Docket Number: 3413.
• Parties: STAR FIRE CLAY CO. v. BUDNO.
• Court: U.S. Court of Appeals — Sixth Circuit

269 F. 508

STAR FIRE CLAY CO. v. BUDNO.

No. 3413.

United States Court of Appeals, Sixth Circuit.

December 13, 1920

In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D.C Westenhaver Judge.

P. M Smith, of East Liverpool, Ohio, for plaintiff in error.

W. A O'Grady, of Wellsville, Ohio, for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

This proceeding in error is brought to reverse the judgment of the United States District Court, Northern District of Ohio, Eastern Division, in an action in which Michael Budno, Sr., as administrator of the estate of Michael Budno, Jr., deceased, sought to recover damages for the benefit of next of kin of decedent. The petition filed in the District Court avers that the death of Michael Budno, Jr., was caused by and through the negligence of the defendant, the Star Fire Clay Company; that the decedent left surviving him his father and mother, Michael Budno, Sr., and Mary Budno, who sustained a pecuniary damage by his death, and two brothers and five sisters, who sustained a nominal pecuniary loss and damage by the wrongful death of the decedent.

The petition further avers that the Star Fire Clay Company was negligent in several particulars, but the trial court, in view of the fact that defendant was protected under the Workmen's Compensation Law of Ohio (102 Ohio Laws, p. 524), confined the issue submitted to the jury to the question of unlawful employment of Michael Budno, Jr., at the time of the injury resulting in his death. In respect to this the petition averred that he was then under the age of 14 years and was employed by the defendant in violation of section 12993 of the General Code of Ohio, which provides that:

'No male child under fifteen years * * * of age shall be employed, permitted or suffered to work in, about or in connection with any mill, factory, workshop, mercantile or mechanical establishment,' etc.

The answer averred, among other things, that Michael Budno, Jr., deceased, was employed at the request of his parents and brother. The reply denied this allegation in the answer. On the trial of the case evidence was introduced directed to the issue so joined. The jury was instructed by the court to disregard, for all practical purposes, the brothers and sisters of Michael Budno, Jr., in assessing damages, if the jury should find upon the evidence for the plaintiff.

The defendant requested the following charge to be given: '(3) If you should find the parents of Michael Budno, Jr., knew of his employment by the defendant in its factory, and consented thereto, and knew their son was under 16 years of age, these facts would prevent you from finding any verdict in this case for the benefit of the consenting parent or parents to the employment of their son in the manufactory of the defendant, would bar them from recovering any sum whatever because of his death.'

The court refused to give this charge, but, on the contrary, charged as follows:

'You will also disregard any defense urged upon you on the theory that the parents of the decedent were negligent, and that their negligence is to be imputed to the deceased boy, in suffering or permitting him to be employed or to work in or about that factory. The law forbidding the employment of or the suffering or permitting infants under the age of 15 years to work in or about forbidden employment cannot be nullified, or the effect thereof obviated, by charging the parents or next of kin with the responsibility for permitting them to be so employed. The burden is upon the employer or the owner of a factory, mill, or workshop of the forbidden character to see that they are not so employed or suffered or permitted to work there.'

The defendant excepted to the refusal of the court to give in charge to the jury its request No. 3 and also to the foregoing portion of the charge as given. Several other special exceptions and a general exception were also taken to the charge as given; but the principal question presented for the consideration of this court by this proceeding in error is the correctness of the charge given by the court touching the negligence, if any, of the parents of the deceased, for whose benefit this action was brought in the name of the administrator.

The plaintiff in error, however, insists that the contributory negligence of Michael Budno, Jr., as shown by the evidence in this case, also bars a recovery. Section 12993 of the General Code of Ohio is for the benefit of infants under the age of 15 years. One of the principal reasons, if not the sole reason, for the enactment of this statute, was undoubtedly the fact that a child of less age than 15 years is incapable of protecting itself from the dangers necessarily incident to employment in mill, factory, workshop, or other places named therein. The plaintiff in error cannot avail itself of contributory negligence on the part of a child for whose protection and benefit this act was passed, to avoid its liability for violation of its provisions.

It is urged in the brief and oral argument of counsel for plaintiff in error that there is no evidence tending to show that the violation of this statute by the Star Fire Clay Company in the employment of a minor under 15 years of age was the proximate cause of the injury, but it is evident that by reason of this employment this child was exposed to the danger from which this statute sought to protect him. The fact that he may have disobeyed the superintendent, and was playing about others parts of the factory at the time he received his injury, is no defense whatever. That is just what a child of this age might have been expected to do, so that the approximate cause of this injury was the negligence of the defendant in placing this immature child in proximity to dangerous machinery, in defiance of the purpose and intent of the statute to protect him and all other children under 15 years of age from dangers of this character.

If the plaintiff in error violated the provisions of this section, such violation was negligence per se, and if such negligence was the approximate cause of the injuries to Michael Budno, Jr., which injuries resulted in his death, the administrator is entitled to recover for and on behalf of the beneficiaries named in the statute, unless for other reasons such beneficiaries are not entitled to recover. Variety Iron & Steel Co. v. Poak, 89 Ohio St. 297, 106 N.E. 24; Railroad Co. v. Van Horne, 69 F. 139, 16 C.C.A. 182; Narramore v. Railway Co., 96 F. 298, 37 C.C.A. 499, 48 L.R.A. 68.

Section 13007-- 9 of the General Code of Ohio provides in substance, that any person, firm, or corporation who employs any child, and whoever having under his control, as parent, guardian, custodian, or otherwise, any child, permits such child to be employed or to work in violation of any of the provisions of chapter 11, title 1, of General Code of Ohio, shall upon the first offense be punished by a fine, etc.

The right to recover in this action is based solely upon the violation by the defendant of the provisions of section 12993. However, it is not the intention or purpose of that section to create a right of action for damages for its violation, either in favor of the person injured or in favor of his administrator for the benefit of next of kin, where the injury results in death. That right is based upon other provisions of the Ohio General Code, and upon the construction by the Supreme Court of that state, that the violation of penal statute of this character is negligent per se.

Where the injury, occasioned by negligence, results in the death of the injured person, section 10772 of the General Code of Ohio provides that the action shall be brought in the name of the personal representative of the deceased person, but that:

'Such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then the parents and next of kin of the person whose death was so caused.'

It has been held by the Supreme Court of Ohio that in such action--

'The administrator is a mere nominal party, having no interest in the case for himself or the estate he represents, and such actions are for the exclusive benefit of the beneficiaries in said sections named. ' Wolf, Adm'r, v. Railway Co., 55 Ohio St. 517, 45 N.E. 708, 36 L.R.A. 812; Steel v. Kurtz, 28 Ohio St. 191.

It is therefore apparent that the beneficiaries are in no better position to secure a judgment for damages by and through an action in the name of the administrator than if action had in fact been brought in their own names. If Michael Budno, Jr., was a child under 15 years of age, under the control of his parents, and his parents requested, permitted, or suffered him to be employed in violation of the provisions of section 12993 of the General Code of Ohio, they were equally guilty with his employer, the Star Fire Clay Company, of an offense under this statute, and liable to the same punishment in a criminal prosecution under the provision of section 13007-- 9 as the corporation employing him.

Section 12993 expressly declares a wise public policy for the protection of children as against, not only the cupidity of employers, but also as against the cupidity of parents guardians, and others having custody and control of such children. Therefore, if a violation of this statute is negligence per se on the part of the employer, it is equally negligence per se on the part of parents, guardians, or others having control of male children under 15 years of age. Nor would it add anything to the maintenance and enforcement of this wise and salutary public policy to permit one who violates this...