Tampa Shipbuilding & Engineering v. Adams

Decision Date14 April 1938
Citation181 So. 403,132 Fla. 419
CourtFlorida Supreme Court

Rehearing Denied June 7, 1938.

Error to Circuit Court, Hillsborough County; Harry N. Sandler Judge.

Action by Fred Adams against Tampa Shipbuilding & Engineering, a corporation, for death of plaintiff's son under age sixteen in defendant's employment. Judgment for the plaintiff, and the defendant brings error.



Herbert S. Phillips, of Tampa, for plaintiff in error.

L. D McGregor and Hampton, Bull & Crom, all of Tampa, for defendant in error.


CHAPMAN Justice.

This cause is before the court on writ of error to a final judgment for plaintiff below entered by the circuit court of Hillsborough county, Fla. The declaration was drawn under sections 5943 and 5944, C.G.L., and the count submitted to the jury is, viz.:

'Plaintiff further sues the defendant for that on or about the 6th day of November, 1934, defendant was engaged in conducting a workshop or foundry, operating a foundry and shipbuilding plant in Hillsborough County, Florida, in which was included, among other things, an electric elevator which consisted of a platform elevated and lowered by means of electric machinery; and well knowing the premises, the defendant at said time and place had in its employ in connection with the operation of said plant, a minor child of the plaintiff under sixteen years of age, whose name was Fred Lee Adams, who was employed, permitted and suffered to work in said foundry and workshop; but at said time and place the defendant had not complied with the terms and conditions of section 4, chapter 6488, Laws of Florida 1913, Com.Gen. Laws 1927, § 5944, and never had complied with the same at the time or during the employment of said child; and plaintiff avers that while so employed, said minor child entered upon the platform of said electric elevator and attempted to operate the same; that in such attempt to operate said elevator, while the same was ascending, said minor child either fell from or became frightened and jumped from said elevator, as a result of which he was crushed, mangled and received injuries from which he died.

'Plaintiff further avers that he is the father and next of kin to said minor and by reason of the injuries to said minor the plaintiff has lost and been deprived of the services of said Fred Lee Adams, and plaintiff's wife, Mary Adams, the mother of said Fred Lee Adams, together with the plaintiff, has been subjected to great mental pain and suffering by reason of the death of said minor child as aforesaid; and plaintiff has been compelled, by reason of the wrongful death of said Fred Lee Adams, to expend the sum of $250.00 in and about funeral expenses for the burial of said child; that said minor child was earning at the time of his injury $6.50 per week.

'Wherefore plaintiff says he has been injured and sustained damages in the sum of $15,000.00.'

Several pleas were filed by the defendant to the declaration, supra, but a demurrer was sustained thereto and the action was tried on pleas 1 and 2 of the defendant, which are, viz.:

'Now comes the defendant, Tampa Shipbuilding & Engineering Company, a corporation, by its undersigned attorneys, and pleads to the declaration, the same being the fifth count of the declaration, the first four counts having been eliminated by order of the court.

'1. For a first plea the defendant says that it is not guilty.

'2. And for a second plea the defendant denies the allegation of the declaration that the plaintiff's son, Fred Lee Adams, was, at the time of his alleged employment and injury, a minor under sixteen years of age, and defendant further alleges the truth to be that at the time of his employment and at the time of his injury and death the said Fred Lee Adams was over sixteen years of age.'

This court had before it the statutes, supra, under which this action was brought in the case of J. Ray Arnold Lumber Corp. v. Richardson, 105 Fla. 204, text 205, 207, 141 So. 133, 134, when it was said:

'The cause was tried upon the theory that, if the defendant 'employed,' 'permitted,' or 'suffered' the plaintiff to work in the manner described, and the plaintiff received the injury complained of while at work, the defendant was guilty of negligence per se by its act of employing, permitting, or suffering the child to work in violation of the positive inhibition of the statute, and was consequently liable for the damages occasioned by the child's injury, regardless of the manner in which the injury came about. In other words, the position of the plaintiff is that the illegal employment, or permitting, or suffering to work is, in such case, to be regarded as the proximate cause of whatever injury occurs in the course of the work that the child is permitted or suffered to do, and that it is only essential to prove the illegal employment, or suffering to work, and its casual connection with an injury in the course of it, to establish a ground for recovery.

'The violation of such a statute as section 5943, C.G.L., supra, has been universally held to give rise to a cause of action, because statutes for the protection of the lives and limbs of children are held to create a liability for damages due to their infraction whether provided for in so many words in the statute or not. Morris v. Stanfield, 81 Ill.App. 264; Koester v. Rochester Candy Works, 194 N.Y. 92, 87 N.E. 77, 19 L.R.A.,N.S., 783, 16 Ann.Cas. 589; Leathers v. Blackwell Durham Tobacco Co., 144 N.C. 330, 57 S.E. 11, 9 L.R.A., N.S., 349; Norman v. Virginia-Pocahontas Coal Co., 68 W.Va. 405, 69 S.E. 857, 31 L.R.A.,N.S., 504; Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N.E. 876, Ann.Cas.1912B, 797. See, also, Labatt's Master and Servant (2d Ed.) Vol. 5, p. 5885, par. 1899.

'And such statutes, being to effectuate a humane purpose and intended for the progress of humanity, should be liberally construed. Cole v. Sloss-Sheffield Steel & Iron Co., 186 Ala. 192, 65 So. 177, Ann.Cas.1916E, 99; DeSoto Coal Co. v. Hill, 179 Ala. 186, 60 So. 583; Nolan v. Moore, 81 Fla. 594, 88 So. 661. '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.' Lee v. Sterling Silk Mfg. Co., 47 misc. 182, 93 N.Y.S. 560.

'The statute was enacted in pursuance of a wise, humane, public policy to prohibit the parents of children under fourteen years of age from hiring them out to work not only in, about, but 'in connection with' any mill, factory, work-shop, mechanical establishment, laundry, or on the stage of any theater, and to make the observance of it effective by prohibiting the owners or operators of such places from employing children under age to work in, about,or in connection with, the named establishments.

'In so enacting it, the Legislature not only took into account the likely hazardous nature of the work usually done in the prohibited places, but also exercised its power and duty to provide for the protection of the young children of the state from growing up in servility and ignorance, rendering them unfit to discharge the duties of citizenship. Not the least of the statutory objects was to prevent children from being deprived of educational advantages while hired out through the cupidity of parents or guardians in connection with those particular works where child labor was known to be most generally employed, or frequently sought, owing to its own well-known cheapness and adaptability to be used as an auxiliary to adult labor. Leathers v. Blackwell, Durham Tobacco Co. (N.C.) supra.

'We hold, therefore, that a declaration alleging a violation of the quoted statute, coupled with an allegation of injury as a result thereof, is sufficient to state a cause of action under the rules of pleading prevailing in this state, and that the declaration in the instant case was sufficient under this rule to withstand the defendant's demurrer and motions for compulsory amendment, which the lower court overruled. Triay v. Seals, 92 Fla. 310, 109 So. 427; Pillet v. Ershick, 99 Fla. 483, 126 So. 784; Dowling v. Nicholson, 101 Fla. 672, 135 So. 288.'

Under sections 5943 and 5944 C.G.L., and J. Ray Arnold Lumber Corp. v. Richardson, supra, we think the declaration states a cause of action. A demurrer was by the lower court sustained as to the third plea of the defendant which in substance alleged that at the time the minor, Fred Lee Adams, was employed, he represented himself to be seventeen years of age and that the defendant gave due weight to his statement as to his age and gave him employment. We feel that this defense is precluded by the statutes, supra.

The lower court sustained a demurrer of plaintiff to the fourth plea of defendant which set forth that Fred Lee Adams was employed to perform nonhazardous work; that he was not employed to operate the elevator; that he had been instructed not to attempt to operate the elevator but to use the stairs that the boy was using the elevator at the time of the accident without the knowledge of the defendant; that he was of sufficient mental capacity, intelligence, and judgment to appreciate all dangers incident to the operation of the elevator; that the use and operation of the elevator by the boy was negligence which contributed to his injury and death. Counsel for plaintiff in error has cited a number of authorities to sustain its plea of contributory negligence. It is difficult to follow these authorities when this court in the construction of the statutes under which the suit was brought, in J. Ray Arnold Lumber Corp. v. Richardson, supra, said: 'The defendant was guilty of negligence per se by its act of employing,...

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