Woodward Iron Co. v. Curl

• Decision Date: 21 November 1907
• Citation: 44 So. 974,153 Ala. 205
• Parties: WOODWARD IRON CO. v. CURL.
• Court: Alabama Supreme Court

44 So. 974

153 Ala. 205

WOODWARD IRON CO. v. CURL.

Supreme Court of Alabama

November 21, 1907

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by I. S. Curl against the Woodward Iron Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The following charges were given by the court at the request of the plaintiff: "I charge you, gentlemen of the jury that three things are necessary to entitle plaintiff to recovery: (1) That Clinton Curl was a minor; (2) that the company did not have the father's consent to such employment; (3) That the said minor was injured as a proximate consequence of the employment." Charge 4 "I charge you, gentlemen of the jury, that if you find from the evidence that Clinton Curl was a minor, and if you further find that he was employed by the Woodward Iron Company without his father's knowledge and consent, then it is not necessary that you find the father objected to such employment because of its dangerous character; but you should find in favor of the plaintiff if you believe from the evidence that said Clinton Curl was injured as a proximate consequence of such employment." Charge 5: "If you find from the evidence in the case that defendant employed plaintiff's minor son at work which was highly dangerous to him, or at a place which was highly dangerous to him after notice that plaintiff objected to such employment, and as a proximate consequence to such employment he was injured as alleged in the complaint, then your verdict must be for the plaintiff."

Tillman Grubb, Bradley & Morrow, for appellant.

T. T. Huey and Ward & Ward, for appellee.

SIMPSON J.

This was an action by the appellee against the appellant for damages on account of injuries received by Clinton Curl, the 19 year old minor son of the plaintiff, while in the employment of the defendant. The first assignment of error relates to the action of the court in overruling the demurrer to the first count of the complaint; the grounds of demurrer insisted upon being (1) that the count failed to aver that the plaintiff's son was a member of his family and dependent upon him, and (2) that it fails to show that the employment was a hazardous one. This count does not allege any act of negligence on the part of the defendant, but rests upon the allegation that said son was employed by the defendant without the knowledge or consent of the plaintiff, and while engaged in such employment was injured.

As to the first proposition, while it is true that our statute, providing for the right of the parent to sue for the injury to the child, does use the words, "a member of the family," yet, in so far as this refers to the right of a father to sue for the loss of the services of his minor child, this is but an affirmation of the principle already recognized by the common law, which presumes, unless the contrary be shown, that the minor child is a member of the family of the father, fixes upon him the duty of supporting his minor children, and confers on him the correlative right to the services of the child, and to an action against any one who wrongfully deprives him of them. Vanhorn v. Freeman, 6 N. J. Law, 322, 329; Note to Carey v. Berkshire R. R. Co., 1 Cush. (Mass.) 475, 48 Am. Dec. 622 et seq.; Fairmount, etc., R. R. v. Stutler, 54 Pa. 375, 93 Am. Dec. 714, 715; Williams v. S. & N. Ala. R. Co., 91 Ala. 635, 638, 9 So. 77. The first count is sufficient as to said first ground of demurrer insisted upon.

As to the second insistence, said count does not allege any act of negligence, but relies upon the claim that the defendant employed said minor without the consent of the plaintiff. This court has held that one who employs a minor child without the consent of his father, and without such consent places him to work at a dangerous place or upon a dangerous work, is liable to the father for any injury suffered by the minor as the result of being placed at such work. Williams v. S. & N. Ala. R. Co., supra; Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 So. 914, 1 Labatt's Master & Servant, § 21, p. 41; Gulf, etc., Ry. v. Redeker, 75 Tex. 310, 12 S.W. 855, 16 Am. St. Rep. 887. In the Marbury Lumber Company Case, just cited, the court said: "The gravamen of the action obviously is the alleged wrong of the defendant in putting the plaintiff's minor son to work at a dangerous place or upon a dangerous work without her (the parent's) consent." Page 183 of 121 Ala., page 916 of 25 South. It follows, that the first count in this complaint should have alleged that the work at which the plaintiff's son was put by the defendant was dangerous, and that the demurrers should have been sustained on the second ground insisted upon.

The second assignment relates to the action of the court in overruling the objection to the question to the plaintiff as a witness, "What was the value of the time you lost from your work about coming down and staying here and nursing your son and going back before you went to work?" In this the court erre...