Jefferson Fert. Co. v. Burns

WALKER, P. J. Evidently in the framing of the complaint in this case use was made of the complaint set out in the opinion in the case of Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 South. 914. The basis of the recovery sought is the alleged wrong of the defendant in causing the plaintiff’s minor son, without the plaintiff’s consent, to work at a place or at work which was dangerous to the minor, because of his youth and inexperience. As pointed out in the opinion in the case above cited, the charge involves no issue, of negligence. The liability asserted is for an invasion of the parental rights of the plaintiff. If the defendant,- without the plaintiff’s consent, caused the latter’s minor, son to work as alleged, and the son was injured in consequence, the defendant is liable to the plaintiff in damages, regardless of negligence vel non on its part, and also regardless of contributory negligence vel non on the part of the minor. As the plaintiff’s right of recovery was not dependent upon his shoAving that the defendant was negligent in failing to warn the minor of the dangers of the employment in which he engaged, the ruling made in the case of Louisville & Nashville R. R. Co. v. Wilson, 162 Ala. 588, 50 South. 188, as to what is requisite to show negligence in that regard for Avhich an employer is liable to a minor employee, is not applicable. That was a suit by the minor himself, seeking to charge the defendant Avith liability under the Employers’ Liability Statute (Act [306] April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), and for the plaintiff in that case to maintain his action the averments of his complaint had to show negligence for which his employer, the defendant, was responsible. We are not of opinion that the complaint in the case at bar was subject to the demurrer which was interposed to it. The question asked the defendant’s witness Horton on his redirect examination, an objection to which was sustained, called for a repetition of a statement to which the witness had already deposed, and the defendant could not have been prejudiced by the action of the court in sustaining the objection. The defendant was not deprived of any testimony which it was entitled to adduce as the result of the action of the court in sustaining objections to two questions to its witness John Bruce, asked on his direct examination, as subsequently the witness was permitted to state fully what was done as to forbidding or permitting employees whose work was in other parts of the factory to go into the building in which the plaintiff’s son was hurt. There is no merit in the exception reserved to a part of the court’s oral charge. Plainly it was not the purpose of the court, in using the language excepted to, to assert that it was dangerous to work around the fertilizer factory. Evidently the statement had reference to Avhat the complaint alleged. Other parts of the charge show that the question of the employment being at a dangerous place was unequivocally left for the determination of the jury from the evidence in the case. That the court did not commit a reversible error in giving written charges A and B is shown by the ruling made in the similar case of Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 South. 914. [307] To cause a boy 11 years old to work in such a place as the evidence shoAved the defendant’s fertilizer factory to be may involve peril to him, though there is no danger in the work to Avhicli he is assigned or in the particular place in which that work is done. The danger may arise from the surroundings resulting from the employment, from the opportunities and temptations it affords for the indulgence of the natural instincts and propensities of a normal boy of that age, who may be expected to expose himself to dangers there may be at other places on the premises to which he may have access either Avhile going to or coming from his work, or at any time when he may not be under a restraining influence. If the presence of the boy at such a place of danger at the time he was hurt may be attributed to his employment, it cannot be said, as a matter of law, that he should be regarded as a trespasser or a mere licensee because he was on the premises a half hour sooner than his attendance Avas required, as accuracy as to the proper time for going to the place of employment may not be expected of one of such an age, especially if his employment is without the knowledge or consent of his parents. It follows that the court was not in error in refusing to give written charges 4 and 5 requested by the defendant. It is not necessary to inquire if the father’s right to maintain his action Avould have been affected if, at the time his minor son was hurt, the latter was at a place to which his employer had forbidden him to go, as there was evidence tending to prove that the boy Avas allowed by his employer to go to the place at which he Avas hurt to get in out of the Aveather Avhen it Avas cold, and that he was hurt in going there to get warm a short time before that at Avhich he was to commence a day’s work. [308] There was evidence tending to support the material averments of the complaint, and the court was not in error in refusing to give written charges 1 and 2 requested by the defendant. Under the rules applicable to the review on appeal of .the action of a trial court on a motion for a new trial, it cannot be said that the record shows that the court was in error in overruling the defendant’s motion for a new trial. Affirmed.