Terry Dairy Co. v. Nalley

• Decision Date: 13 December 1920
• Docket Number: (No. 53.)
• Citation: 225 S.W. 887,146 Ark. 448
• Parties: TERRY DAIRY CO. v. NALLEY.
• Court: Arkansas Supreme Court

225 S.W. 887

146 Ark. 448

TERRY DAIRY CO. v. NALLEY.

(No. 53.)

Supreme Court of Arkansas.

December 13, 1920.

Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge.

Action by Charles Nalley, by W. A. Nalley, his next friend, against the Terry Dairy Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles Nalley, a minor, by his father and next friend, W. A. Nalley, brought this action against the Terry Dairy Company to recover damages for personal injuries alleged to have been caused by the defendant's negligence.

The Terry Dairy Company is a corporation engaged in the retail and wholesale ice cream business and in the general dairy business in the city of Little Rock, Ark. In August, 1919, the company employed Charles Nalley for $5 per week, to drive one of its delivery wagons drawn by a mule. On the 30th day of August, 1919, while Charles Nalley was driving the delivery wagon west on West Ninth street for the purpose of making deliveries of ice cream and milk, he was thrown from the wagon by a sudden lunge forward of the mule hitched to the wagon, and his right foot and leg were caught in the spokes of the wheel, thereby causing his leg to be broken.

According to Charles Nalley's own testimony, something came up behind the delivery wagon which he was driving and he fell off of the wagon. He did not know whether the approaching vehicle hit his wagon or not, but when they picked him up he looked around and saw a street car just behind his wagon.

Another witness said that he thought the boy got overbalanced by striking at the mule with the lines. He said that the boy hit at the mule, missed him, and then fell off of the wagon, catching his legs in the wheel.

Charles Nalley denied that any one at the Terry Dairy Company asked him how old he was when he was employed, and denied that he told any of the employees of the Terry Dairy Company that he was 16 years of age at the time he was employed. He said that nothing was asked him with regard to his age.

W. A. Nalley, the father of Charles Nalley, testified that the boy was born on December 10, 1905. On cross-examination he stated that he did not know that the boy was working for the Terry Dairy Company until about a week before he was hurt, and said that he did not notify the Terry Dairy Company how old the boy was.

The defendant offered to prove that Charles Nalley had stated to the witness that the street car hit him and bumped him off of the wagon. The court refused to permit the defendant to prove this, and the defendant duly saved its exceptions. The defendant also offered to prove that its agent who employed the boy asked him how old he was before he he was employed, and the boy stated that he was over 16 years of age; that the company believed this statement to be true, and but for this statement would not have employed the boy.

The defendant duly excepted to the ruling of the court in refusing to allow it to prove these facts.

Evidence was adduced in favor of the plaintiff tending to show the character and extent of his injuries.

The court directed the jury to find for the plaintiff, but submitted to the jury the question of the amount of damages to be recovered.

The jury returned a verdict for the plaintiff in the sum of $1,000, and from the judgment rendered the defendant has appealed.

Hendricks & Snodgress and Carmichael & Brooks, all of Little Rock, for appellant.

Mehaffy, Donham & Mehaffy, of Little Rock, for appellee.

HART, J. (after stating the facts as above).

Under the facts stated in the abstract, the court directed a verdict in favor of the plaintiff on the question of the liability of the defendant. This suit was brought under Initiative Act No. 1, providing for the health, safety, and welfare of minors, by forbidding their employment altogether under a certain age, and by forbidding their employment in certain occupations under a certain specified age, and the issues raised by the appeal involved the construction of this act. See Acts of Arkansas 1915, p. 1505.

Sec. 1 of the act reads as follows:

"No child under the age of fourteen shall be employed or permitted to work in any remunerative occupation in this State, except that during school vacation children under fourteen years may be employed by their parents or guardians in occupations owned or controlled by them."

Sections 2 and 3 provide that no child under 16 shall be employed or permitted to work in certain specified occupations. Sections 7 and 8 provide for the issuance of employment certificates in certain instances allowing children under the age of 16 years to work in certain establishments, or occupations. Section 13 makes it a misdemeanor to violate the provisions of the act.

It is first contended by counsel for the defendant that the judgment should be reversed because the act under which the suit was brought is unconstitutional. Child labor laws have been enacted in most of the states and in Canada. They have been uniformly upheld as being within the police power of the state, and it has been said that the legislative judgment in regard to such regulations will not be interfered with by the court. It is specially insisted that the present act is unconstitutional because it prohibits children under 14 years of age from engaging in any occupation, exept that during the school vacation children under 14 years may be employed by their parents or guardians in occupations owned or controlled by them. The constitutional guaranty of the liberty of contract does not apply to children of tender years, nor prevent legislation for their protection.

In discussing the question, Mr. Tiedeman says:

"The constitutional guaranty of the liberty of contract does not, therefore, necessarily cover their cases, and prevent such legislation for their protection. So far as such regulations control and limit the powers of minors to contract for labor, there has never been, and never can be any question as to their constitutionality. Minors are the wards of the nation, and even the control of them by parents is subject to the unlimited supervisory control of the state." Tiedeman on State and Federal Control of Persons and Property, vol. 1, p. 335.

Again, the learned author said:

"But children under ages, stated in and varying with the provisions of the different states, are in some states prohibited altogether from working outside of their homes, while in others they are only prohibited from engaging in certain kinds of work. The total prohibition is designed to aid in the enforcement of the attendance upon the school, and both the total and partial prohibitions of child labor are designed to promote their physical and mental growth, by the removal of all strains, which may be caused by excessive labor. Id., vol. 1, pp. 240, 241.

Prof. Freund says that the constitutionality of legislation for the protection of children is rarely questioned, and that the Legislature is conceded a wide discretion in creating restraints. Continuing he said:

"But even the courts which take a very liberal view of individual liberty and are inclined to condemn paternal legislation would concede that such paternal control may be exercised over children, so especially in the choice of occupations, hours of labor, payment of wages, and everything pertaining to education, and in these matters a wide and constantly expanding legislative activity is exercised. While different grades in the age of minority have not been constantly fixed, it is a reasonable principle which in practice is observed, that the exercise of control must decrease as the age advances." Freund on Police Power, § 259.

See, also, Starnes v. Albion Mfg. Co., 147 N. C. 556, 61 S. E. 525, 17 L. R. A. (N. S.) 602, 15 Ann. Cas. 470, and cases cited, and In re Spencer, 149 Cal. 396, 86 Pac. 896, 117 Am. St. Rep. 137, 9 Ann. Cas. 1105.

Therefore we are of the opinion that the statute is not unconstitutional.

It is next contended that the trial court erred in holding that the employment of a minor under 14 years of age is contrary to the provisions of section 1 of the act and constituted negligence per se. The authorities on this point are in decided conflict. It has been said that the violation of a statute forbidding the employment of children under a certain age, or their employment at certain kinds of work or without complying with certain conditions, is held by the weight of authority to be negligence as a matter of law, in an action by the child for injuries received during the course of the employment. See case note to 7 L. R. A. (N. S.) 335 and 48 L. R. A. (N. S.) 657. Numerous cases from the various courts of last resort of the several states where child labor laws have been adopted are cited in support of each view. A leading case supporting what is termed the "minority rule," or the rule that the unlawful employment is only evidence of negligence, is the case of Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. 1912B, 797. The case of Elk Cotton Mills v. Grant, 140 Ga. 727, 79 S. E. 836, 48 L. R. A. (N. S.) 656, is a leading case holding that the employment of a minor under the prescribed age in a factory, in disobedience of a statute forbidding such employment, is negligence per se, and, if the injury to such child proximately results from the employment, a right of action in its favor arises. Many decisions are cited in the case note in support of the rule.

In Thompson on Negligence, § 10, it is said that—

"The general conception of the courts, and the only one that is reconcilable with reason, is that the failure to do the act commanded, or the doing of the act prohibited, is negligence as a mere matter of law."

In the next section the learned author says that it is to be regretted that some courts have fallen into the aberration of holding that the violation of said statutes does not establish negligence per se, but is merely evidence of negligence, that is to...