Stirling v. Bettis Mfg. Co.

• Decision Date: 16 June 1913
• Citation: 159 S.W. 915
• Parties: STIRLING v. BETTIS MFG. CO.
• Court: Texas Court of Appeals

159 S.W. 915

STIRLING v. BETTIS MFG. CO.

Court of Civil Appeals of Texas. Galveston.

June 16, 1913.

Rehearing Denied October 9, 1913.

Appeal from District Court, Jefferson County; John M. Conley, Judge.

Action by Murphy Stirling, by his next friend, against the Bettis Manufacturing Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Blain & Howth and M. G. Adams, all of Beaumont, for appellant. Geo. D. Anderson and Crook, Lord, Lawhon & Ney, all of Beaumont, for appellee.

REESE, J.

Murphy Stirling, not quite 14 years of age, was employed by Mack Clapp, foreman of the Bettis Manufacturing Company, as "clean-up boy" in the manufacturing establishment of defendant. His duties were to clean up the trash and pieces of lumber around the saws and other machinery on the second floor. On the second day after he was put to work at this employment, while he was trying to rip a piece of plank on the ripsaw, his hand came in contact with this saw, and he was seriously injured. He thereupon, through next friend, instituted this action for damages against defendant. A trial with a jury resulted in a verdict and judgment for defendant, from which plaintiff appeals.

There are 23 assignments of error, all of which, with one exception, complain of the charge of the court and of refusal, to give special charges requested by appellant. Without discussing the several assignments in detail, we will dispose of the several questions which are sufficiently presented by these assignments. Objection is made by appellee to a consideration of the assignments as not prepared in accordance with the rules; but we think that they sufficiently present the several questions which are here passed upon. The court submitted substantially only the issues of the defective condition of the ripsaw as the proximate cause of the injury, and the failure to warn appellant, if the jury found that he was inexperienced.

The accident happened on October 4, 1910. The suit was instituted October 15, 1910, and was tried in May, 1912. One of the acts of negligence charged against appellee was the employment of appellant, then under the age of 14 years, in violation of the terms of the statute then in force making it a misdemeanor to employ him in the circumstances alleged, being chapter 28, acts of the regular session of the Twenty-Eighth Legislature, approved March 6, 1903. It was alleged in the petition that appellant was at the time of said employment, and of the accident in question, under the age of 14 years, that he could not read and write simple sentences in English, and the other facts bringing the case under the terms of the act were alleged, and were substantially established by the undisputed evidence, except that appellant could not read and write simple sentences in the English language. The court did not submit this issue to the jury in the main charge, and refused to give special instructions requested by appellant embodying this issue. Appellant submits assignments of error upon this failure and refusal of the trial court, and also special assignments that, if for any reason the special charges requested were not correct, they were sufficient to call the attention of the court to the omission to submit this issue in the main charge and to require a correct charge from the court on this issue. So, as the matter is presented by the assignments of error, if the issue should have been submitted, the error is properly presented for our consideration.

The statute referred to was expressly repealed by section 3 of an act of the Thirty-Second Legislature, approved March 13, 1911 (chapter 46, Acts 32d Legislature, p. 75), and was therefore not in force when this case was tried, and it is contended by appellee that its provisions are not applicable to this case. The latter act is much more comprehensive in its terms than the former, and makes it a misdemeanor to employ a person under the age of 15 years "in or about any manufacturing or other establishment using dangerous machinery," etc., without any of the conditions embodied in the former act which tended decidedly to weaken its force. According to the provisions of this latter act, it was clearly unlawful for appellee to employ appellant in the work at which he was engaged. Whatever the law may be in other jurisdictions, it is settled in this state by an unbroken line of decisions that an act prohibited by positive law is negligence per se, where any person is injured as a proximate consequence of such act. Street on Personal Injuries in Texas, 111 et seq., with authorities cited. The principle of law invoked by appellee, that actions to recover forfeitures and penalties imposed by statute abate with the repeal of the statute, has no application to the present case. I. G. N. Ry. Co. v. Culpepper, 38 S. W. 818, approved by Supreme Court; s. c., 90 Tex. 627, 40 S. W. 386. In so far as the statute affected the quality of appellee's act in employing appellant, making it negligence per se, its subsequent repeal could have no effect. This action is not based upon the statute in the sense that would cause the repeal of the statute to abate the action. There has never been a moment of time in fact since the passage of the act of 1903 when it was not unlawful for appellee to so employ appellant if he came under the provisions of that act.

But we are of the opinion that the court did not err in refusing to submit this issue, on the ground that the undisputed evidence showed that appellant at the time of this employment "could read and write simple sentences in English." There was considerable evidence on this point from appellant himself, which we have carefully examined, and our conclusion is that its conclusive effect is that appellant possessed these simple educational requirements. We feel sure that appellee could not have been properly convicted in a criminal prosecution for violation of this statute in any view of this evidence. The evidence of the witness Farmer, which was excluded on objection of appellee, as set out in appellant's fifth assignment of error, if it could be considered by us, really strengthens this conclusion, and its exclusion was not harmful to appellant. If upon another trial the evidence should leave any doubt upon this issue, it would be proper to submit the issue to the jury, and, if it should be then determined that at the time of his employment appellant could not read and write simple sentences in the English language, the principle of law making such employment per se negligence should be applied without regard to the fact of the repeal of the act of 1903.

The petition presented also the issue whether, independently of the statute, appellee was negligent in employing appellant and setting him to work in a place where he was surrounded by dangerous machinery, constantly in operation, and the danger of injury from which, on account of his youth, lack of experience, and general immature intelligence, he was incapable of understanding and appreciating, even though he had been properly warned and instructed as to such dangers. This allegation of negligence was in addition to allegations charging negligence in so putting appellant to work without warning as to...