McGowan v. Ivanhoe Manufacturing Co.

Hoke, J. . Our statute, Rev., sec. 1981 (a), provides that, from and after 1 January, 1908, no child under 12 years of age shall be employed or worked in any factory or manufacturing establishment within this State, and, by section 3362, the willful violation of the former section, on the part of mill owner, superintendent, or other person acting in behalf of the establishment, is made a misdemeanor, except in oyster canning and packing manufactories where the work is paid for by the gallon or bushel. In several decisions on this subject, notably Starnes v. Mfg. Co., 147 N. C., 556, and Leathers v. Tobacco Co., 144 N. C., 330, it is held that a violation of the statute causing injury to the minor constitutes an actionable wrong, and that it is not necessary to establish a causal connection that the child should have received the injury when engaged in the very work he was employed to do or by reason of it, but it will be held to exist whenever the injury may fairly be said to arise from placing a child of immature years at work in a mill and subjecting it to the risks naturally incident to such work or environment. Speaking to the question in Starnes’ case, Associate Justice Brown, delivering the opinion, said: “It is true that the plaintiff was not engaged in performing his duties in the spinning room, and had gone to the lower floor, where the carding machines were, and got his hand caught in one and badly cut. Under such circumstances there are respectable courts which hold that the injury is not the proximate result of a violation of the statute, because not received in performing the work the child was assigned to do, and that therefore the employer is not liable. We are not impressed with the persuasive authority of those precedents and are not inclined to follow them. To do so would, in our *195 opinion, unduly restrict tbe liability of tbe employer and would be contrary to tbe evident intention of tbe Legislature. Tbe act was designed not only to protect tbe bealtb, but tbe safety, of children of tender age from tbe indiscretion and carelessness characteristic of immature years. One wbo knowingly and willfully violates its provisions is not only guilty of an indictable offense,, but be commits a tort upon tbe rights of tbe child, and should be judged as a culpable wrongdoer and not as one guilty of mere negligence. Tbe injury done tbe child is a willful wrong and does not flow from -the negligent performance of a lawful act. Tbe distinction between tbe two is well stated by Mr. Justice Walker in Drum v. Miller, 135 N. C., 208. We think that the breach of tbe statute constitutes actionable negligence wherever it is shown that tbe injuries were sustained as a consequence of tbe wrongful employment of tbe child in tbe factory, in violation of tbe law. In this case we think there is a direct causal connection between tbe unlawful employment- of tbe plaintiff and tbe injuries sustained by him. By employing this boy of 10 years in violation ■of tbe law, the defendant exposed him to perils in its service which, though open to observation, be by reason of bis youth and inexperience could not fully understand and appreciate. “Such cases,” says Judge Cooley, “must frequently occur in tbe employment of infants.” In that case tbe duties of tbe minor were to sweep out tbe spinning room and make bands, but, on tbe day in question, be went to another part of tbe factory, as be' bad frequently done before, to see bis father, wbo was running a carding machine. When tbe father was 20 steps distant, tending another machine, tbe child attempted to pick a pad of ■cotton off tbe card, and got bis band caught and injured in tbe cylinder of one of tbe machines, and it was held: “There was direct causal connection between tbe unlawful employment of tbe child and tbe injuries sustained by him, for which tbe defendant is liable, occasioned by bis being employed on tbe premises where be was subject, through childish carelessness incident to bis years, to tamper with dangerous machinery.” In tbe cases referred to, tbe fact of tbe minor being a regular employee was unquestioned, while in this present case it may become a matter of dispute, but tbe language of tbe act is that no child under 12 shall be employed or worked in any factory, etc.; and if this child, though not on tbe regular pay roll, was permitted to work at tbe mill to tbe knowledge of tbe owner, superintendent, or other agent, fairly representative of tbe management, or if be worked there so openly and continuously that tbe management should have observed and noted bis occupation and conduct, bis case would come within tbe terms and meaning of tbe law. According to tbe facts in evidence as they now appear, this plaintiff bad for a length of time been continuously at work *196 in tbe mill, witb tbe knowledge and approval of tbe superintendent and tbe foreman; one witness saying be bad observed tbis boy putting on bobbins every day be was there. Tbe plaintiff bimself testified that Gordon, tbe superintendent, bad bimself paid him for work at tbe mill. In addition, plaintiff testifies that on tbis occasion, Jaek Johnson, “who bad charge of tbe machinery in tbe lapper room” (see evidence of Lonnie Carlisle, Eecord, p. 13), ordered plaintiff to do some work there, and when be refused, be grabbed plaintiff and forced him to do tbe work. It is argued for defendant, as we understand bis position, that tbis was a wanton act on tbe part of Johnson, for which tbe company can, in no sense, be made responsible, and an excerpt from tbe opinion in Starnes’ case is relied upon: “That although defendant bad violated tbe statute in employing a child of tender years, tbe defendant. was not liable for an injury caused by tbe willful and malicious act of a workman in knocking him against dangerous machinery.” Tbe entire portion of tbe opinion on tbis point is as follows: “We do not mean to bold that tbe employer violating tbe act would be liable in damages for every fatality that might befall the child while in its factory. For instance, bad tbe plaintiff died of heart disease, or from a stroke of paralysis, or been seriously injured by tbe willful and malicious act of a workman in knocking him against a machine, or injured from some cause wholly disconnected from tbe unlawful employment, tbe defendant could not be held liable in damages simply on account of tbe employment in violation of tbe statute.” . It will thus be seen that tbe writer was referring to tbe willful and wanton act of some ordinary employee who, of bis own malicious purpose, might have assaulted tbe child, and tbe suggestion gives no support to ’ defendant’s position on tbe facts of tbe present appeal. As tbe matter now stands, there are facts in evidence which permit tbe inference that Johnson was in charge of tbe machinery of tbe lapper room and, in tbe course and scope of bis employment, ordered tbe boy to do tbe work, and, when be refused, compelled him to do it, and tending to fix responsibility for tbis injury on tbe defendant, either witb or without tbe provisions of tbe statute, under tbe principles presented in Jackson v. Telegraph Co., 139 N. C., 347. There was error in entering judgment of nonsuit, and tbe same must be set aside. New trial.