Handy v. Mercantile Lumber Co.

Sykes, J., delivered the opinion of the court. The appellee, Mitchell Handy, as plaintiff, by next friend, filed suit in the circuit court of Hinds county against the defendant, Mercantile Lumber Company, for damages for personal injuries. The declaration, in short, alleges that the lumber company violated the ten-hour labor law in his case by permitting him to work all day and all night. This law is found in chapter 239 of the Laws of 1916, sections 4523 and 4524, Hemingway’s Code, and in part provides that: “It shall be unlawful for any person, firm or corporation engaged in manufacturing or repairing, to work their employees more than ten hours per day, except in cases of emergency, or where the public necessity requires in such departments.” The declaration negatives the necessity or emergency requiring the plaintiff to work for over ten hours. The duties of the plaintiff and the manner in which he sustained his injuries are thus alleged in the declaration : “That the particular duty of the plaintiff that night was to climb up into a car of lumber and hand out pieces of lumber therein to fellow employees on said platform, who loaded same on two-wheel carts and rolled it to the planing machinery near by for immediate planing, and who immediately returned with other empty cars for more lumber from the car for planing, the same as in the daytime. That plaintiff before said hour of 4 o’clock a. m. had grown.very weary, fatigued, sleepy, and listless as the result of his many continuous hours of labor and lack of rest and sleep as aforesaid; and about said hour of 4 o’clock a. m., plaintiff and his fellow employees having just finished unloading a car of lumber, plaintiff, as was his duty as said employee of defendant, climbed up into another car of lumber which was next to be unloaded, prepara [505] tory to unloading the same by the time his said fellow employees returned from carrying the last of the lumber to the planers from the ear just unloaded, and plaintiff, in his weary, fatigued, sleepy, anl listless condition, the result as aforesaid of his many hours of continuous labor and lack of rest and sleep, must have fallen asleep momentarily, for suddenly he noticed that everything was quiet about him, and his fellow employees absent. And by reason of his weary, fatigued, sleepy and listless condition, the result of his many hours of continuous labor and lack of rest and sleep as aforesaid, plaintiff thought his said fellow employees would not return; and, by reason of his said condition, plaintiff thought it his duty to ascertain what had become of his said fellow employees, which it would have been had the orders to them been changed and orders given them by defendant to unload some other car than the one in which plaintiff was; and, in. order to ascertain what had become of his said fellow employees, plaintiff undertook to climb down out of said car, and by reason of his said weary, fatigued, sleepy, and listless condition, the result as aforesaid of his many hours of continuous labor and lack of rest, plaintiff lost his footing and hold and fell between the said cars and platform to the ground, whereby one of his legs was broken and plaintiff otherwise bruised in his body.” There Avas a demurrer interposed and by the lower court sustained to this declaration. It is unnecessary to set out the grounds of the demurrer. From this judgment of the circuit court this appeal is presented. One of the contentions of the appellee is that, the plaintiff being a minor, his rights and liabilities in this case are governed alone by chapter 165 of the Acts of 1912, sections 4508-4514, Hemingway’s Code, and that under this act there can be no liability; Bledsoe v. Lumber Co., 113 Miss. 118, 73 So. 881. [506] It is not, however, necessary for us to decide in this case whether or not chapter 239 of the Laws of 916, sections 4523 and 4524, Hemingway’s’ Code, only applies to adults, for the reason that the plaintiff fails to state a case in his declaration under this law as construed by the decisions of this court. The particular work performed by the plaintiff on the night of his injury was that of unloading cars by giving the lumber to other servants on a platform, and these other servants then loaded the lumber on two-wheeled carts and rolled the lumber then into the planing mill near by. From the declaration it will thus be seen that the plaintiff was not engaged in working with the machinery, that he was not working about the machinery, that his work had nothing to do with the starting or stopping of the machinery, that his movements did not have to conform to the movements of the machinery. He could have unloaded the car while -the machinery was not running. On the other hand, the machinery could be running while plaintiff was idle. There is no such connection between the work of the plaintiff and the operation of the machinery that brings the plaintiff within the protection of this law. It was not necessary for the plaintiff to go where the machinery was running. So far as the declaration shows, he may have been many feet away from any part of the machinery. Such an employee does not come •within the protection of this law. In construing this law in the case of State v. Newman Lumber Co., 103 Miss. 263, 60 So. 215, 45 L. R. A. (N. S.) 858, it is said: “Thinkers, working to conserve the mental and physical health of toilers in the modern manufactories, have discovered, or think they have discovered, that the concentration 'of the human mind and muscle, for many consecutive hours, upon the watching and manipulation of rapidly moving machinery, tends to weary the body [507] of the worker, and to weaken his reasoning faculties, and, ultimately, to permanently impair his physical and mental efficiency. When the legislature prohibited employers engaged in manufacturing from employing laborers for more than ten hours, we think, it was the indention to promote the general welfare and protect the workers in that class of manufacture using machinery of a character which requires in its operation constant tension of mind and body. In other words, it was believed that there are manufactories in this state Avhose operatives could not work longer than ten consecutive hours without impairing their health, and without endangering their lives and their bodies, and yet competition forced the laborer to take the risk or starve. Believing this, the legislature, in the exercise of the police power of the state, enacted the law under reidew. ’ ’ Again this law was under review in the case of Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 660 So. 775. In that opinion this language is used: “In order for appellant to he guilty, it must not only he engaged in manufacturing, but the employees alleged to have been worked by it overtime must be of the class protected by the statute. In the Newman Lumber Company Case Ave held that all possible employees of a manufacturing establishment are not within the protection of the statute; but it necessarily folloAvs from the construction there put upon the statute that all employees who compose the organized force and work with machinery, whose work supplements that of. the machinery, and must he performed while it is, and in order that it may be kept in operation, are within its protection. The legislature clearly intended to protect the employee who is confined to the precincts of the manufacturing establishment, and who is practically held in bondage by the machine with, or in connection Avith, which his work is performed, making it com [508] pulsory upon him to answer all of its motion with corresponding action. This is the settled construction qf the statute by this court. The judgment of the lower court is affirmed. Affirmed.