Henrie v. Rocky Mountain Packing Corp.

196 P.2d 487, 113 Utah 415, 1948 Utah LEXIS 103

• Court: Utah Supreme Court
• Decided: July 2, 1948
• Docket: No. 7052.
• Status: Published

Opinions

WOLFE, Justice.

Appeal by the defendant, a corporation, from a verdict and judgment of the Seventh District Court awarding plaintiff damages in an action for the wrongful death of his minor son. The parties will be referred to as they appeared in the court below.

The deceased, a 16 year old boy, was electrocuted, when he attempted to operate a freight elevator owned and operated by defendant corporation as part of its canning plant at Manti, Utah. At the time of his death, decedent was employed by defendant as a filling machine operator in its plant.

The fundamental question involved in this case, is whether or not plaintiff is entitled to maintain this action. It is the position of the defendant, that plaintiff’s only remedy is under the Workmen’s Compensation Act. By the terms of Section 42-1-57, U. C. A. 1943, the right of the employee to recover compensation against the employer for injuries or death sustained during the course of his employment, is his exclusive remedy, with certain exceptions not here material. Plaintiff, on the other hand, contends that the employment of young Henrie by defendant was illegal, and, therefore, under the rule of Ortega v. Salt Lake Wet Wash Laundry, 108 Utah 1, 156 P. 2d 885, plaintiff had the right to pursue his common law remedy. The theory upon which plaintiff maintains that the employment of his deceased son was illegal, is that defendant’s plant was “a place of employment, dangerous or prejudicial to the life, health, safety or welfare” of a minor within the meaning of Section 14-6-3, U. C. A. 1943, which provides as follows:

“No minor tinder eighteen years of age shall be employed, permitted, or suffered to work in any place of employment, dangerous or prejudicial to the life, health, safety or welfare of such minor. It shall be the duty of the industrial commission of Utah and the said commission shall have power, jurisdiction, and authority, after hearings duly held, to issue general or special orders, which shall have the force of law, prohibiting the employment of such minors in any place of employment dangerous or prejudicial to the life, health, safety or welfare of such minors.”

It should be noted at this point that both the Child Wel-fore Act (Title 14, Chapter 6, U. C. A. 1943), and the Workmen’s Compensation Act (Title 42, Chapter 1, U. C. A. 1943), both of which are involved in this case, were extensively amended in 1945. However, this case arose prior to the time of those amendments, and we are here governed by the statutes as they existed on July 19,1944, the date of the fatal accident.

The question posed for our determintion, then, is whether or not the deceased minor was employed in a place of employment dangerous or prejudicial to his life, health, safety, or welfare within the meaning of Section 14-6-3. If he was, then his employment was unlawful and plaintiff is entitled to maintain this action. But if the decedents’ employment did not violate the provisions of Section 14-6-3, then the accident was one falling within the exclusive jurisdiction of the Industrial Commission, and plaintiff cannot maintain the action. Before treating the physical facts relating to the defendant’s plant, and young Henrie’s employment therein, we shall consider the meaning of Section 14-6-3, and especially the phrase “dangerous or prejudicial to the life, health, safety or welfare” of a minor.

The word “dangerous” has been defined as “full of or attended with danger,” “risky,” “hazardous,” “perilous,” “full of risk,” etc. See Funk & Wagnall’s New Standard Dictionary of the English Language and Webster’s New International Dictionary, 2d Ed., Unabridged. The antonym of “dangerous” is “safe.” There is no place which is “absolutely safe,” i. e. where there is no possibility of accident or injury of any type occurring. What is generally meant by a “safe place,” is one which is relatively safe, one where an accident or injury is not likely, or is very unlikely, to occur. A “dangerous place” on the other hand is one where there is considerable risk, or danger, or peril, one where accidents and injuries are very apt to occur.

When the legislature prohibited the employment of minors in places “dangerous * * * to the life, health, safety,” etc., it did not prohibit employment of minors in all places which were not “absolutely safe.” Such a construction would amount to a general prohibition against the employment of minors, since as already pointed out, there is no such thing as an “absolutely safe place.” Clearly the legislature did not intend this. What the legislature meant by a “dangerous place” was one not merely where there was some risk or peril or bare possibility of accident or injury, but one where the likelihood of accidental injury occurring is materially and appreciably greater than in what is considered a “safe place.” The words “dangerous” and “safe” are both relative terms.

The meaning and purpose of Section 14-6-8, is to declare a policy that certain places of employment are unfit for the employment of minors under 18 years of age because it is to be anticipated that in such places hazards will be encountered to which such minors should not be exposed because of their lack of experience and judgment and which employees of experience and maturity are better able to avoid, and that certain kinds and places of employment are unsuited to minors and they should not be employed therein for reasons of their health, safety, and welfare. The same section of the statute gives to the Industrial Commission power to seek out places of employment which are dangerous or prejudicial to the life, health, safety, or welfare of minors, and to issue orders having the force of law banning the employment of minors under the age of 18 in such places. But the prohibition of the statute is not limited to those places of employment condemned by order of the Industrial Commission; it extends to all places of employment which are dangerous or prejudicial to the life, health, safety or welfare of minors, regardless of whether or not the Industrial Commission shall have prohibited the employment of minors in such places.

Was employment of minors in defendant’s plant of the type sought to be prohibited by Section 14-6-3? Was defendant’s plant dangerous to the life, health, safety, or welfare of young Henrie within the meaning of the statute? Were there risks, dangers, or hazards there, which by reason of his youth and inexperience in life he should not have been subjected?

The facts relating to Henrie’s employment at the plant are these:

The defendant employed a few persons on a permanent or year-around basis, but during the busy time of the year —during the canning season — in summer months when school was not in session, it was the custom of defendant to employ youths of high school age to work in its plant as additional temporary help.

On about July 15, 1944, four days before the fatal accident, Henrie was employed by defendant to work in its plant as a filler, or filling machine operator. There is nothing in the record to indicate that there was anything about the operation of the filling machine that was inherently or intrinsically dangerous. Nor does plaintiff so contend.

It appears that occasionally cans came through the filling machine improperly filled, and when this happened it was young Henrie’s duty to remove such cans from the machine. From time to time, when there was a lull in operations, it was the duty of Henrie to gather up these partially or improperly filled cans and remove them to the second or third floor.

As heretofore noted, in conjunction with the operation of its plant, and as a part thereof, defendant ran an electric freight elevator. The elevator was operated by means of a cable which ran the length of the shaft. Persons using the elevator operated it by pulling the cable up or down, thus throwing an electric switch, whereby the machinery was thrown into operation and the elevator caused to move up or down. Prior to 1944 defendant had experienced some trouble with the elevator, and occasionally employees had received light shocks when touching the control cable. Defendant had had the elevator machinery inspected, and the electrician had taped a certain electric conduit, (not the control cable) and it was thought that the trouble had been eliminated. However, just before the opening of the 1944 canning season, or “campaign,” as it was commonly called by the witnesses, it was discovered that there was a short circuit in the motor which permitted electricity to leak into and through the control cable. This could be corrected only by rewinding the motor, but to have this work done, would have necessitated dismantling the motor and shipping it to Salt Lake City, thus taking it away from the plant at the time it was needed most — during the campaign.

The electrician advised the superintendent of the plant that the elevator could be made reasonably safe for operation by taping the control cable. Accordingly, defendant had the control cable taped with both rubber and friction tape for a space of several feet at every landing.

The elevator was located about 60 feet from the filling-machine where young Henrie was required to work. There was a stairway leading to the second and third floors somewhat closer to the filling machine. It is contended by the plaintiff, that decedent had the option of using either the stairway or the elevator when taking cans to the floor above. This contention finds no support in the record. Garbe, the plant superintendent, testified quite positively that he instructed young Henrie to use the stairs, and • expressly prohibited him from using the elevator. Several witnesses who were permanent or year around employees, testified that there were notices on the elevator prohibiting employees from using it without permission of the superintendent. There is no evidence whatsoever that Henrie was ever given express permission to use the elevator. Insofar as the record shows, Henrie had never attempted to operate the elevator prior to the time of the fatal accident. It does appear that Henrie had been on the elevator a few times with Devon Anderson, when Anderson was hauling caps and Henrie was assisting Anderson. But in these instances neither Anderson nor Henrie, but some other employee, operated the elevator. It was necessary for Anderson to use the elevator to haul caps, but the evidence is clear that the cans required to be transported upstairs by Henrie were light, and could easily be carried by hand. There is some evidence that in years prior to 1944 fillers had either express or implied permission to use the elevator, but the record is barren of any evidence that during the 1944 campaign fillers were permitted to use the elevator without permission of the superintendent. The evidence conclusively shows that Henrie’s duties did not require him to use the defendant’s freight elevator.

It further appears that from time to time there would be temporary halts in the operations of the plant. If there was to be a long halt, a whistle would be blown, signifying a rest period, and employees could leave their stations and go outside the building. However, if there were no whistle, employes were required to remain at their stations and be ready to resume work, whenever operations should be renewed. During the time production was suspended employees were expected to clean up around their stations, and otherwise prepare for a resumption of operations. It was during these short stops which were not rest periods that young Henrie was expected to collect the defectively filled cans which had accumulated around his station during the course of operations and to transport them to the second or third floor.

On July 19, 1944, at about 3:30 p. m. there was a temporary suspension of operations. This was not one of the rest periods during which employees were permitted to leave their stations. Young Henrie called to a Miss Chapman, a young lady of his acquaintance who was working nearby, and suggested that they take an elevator ride to the roof of the building. At the same time, it was suggested that they take a box of cans to the top floor. Miss Chapman was aware that it would be an infraction of the rules to leave her post, but she consented, apparently rather re luctantly, to accompany Henrie on his proposed adventure. They walked over to the elevator and Henrie told her to take hold of the control cable and bring the elevator to the ground floor. Miss Chapman was not familiar with the operation of the elevator, and was unsuccessful in her attempt to start it. Whereupon Henrie reached for the cable. As Henrie reached for the cable Miss Chapman glanced back toward her station to see whether or not operations had resumed. When she looked toward Henrie again, he was slumped over the gate which extended across the entrance to the elevator shaft. Nobody saw young Henrie grasp the control cable, but the reasonable inference from the surrounding facts and circumstances is that he grasped the control cable above the insulation of tape heretofore mentioned and was electrocuted. At the time of the accident, Henrie’s clothes were wet with brine.

On the record before us it cannot be said that defendant’s plant was a place of employment dangerous to the life, health, safety or welfare of minors within the meaning of Section 14-6-3. No claim has been made, and there is nothing in the record to suggest, that there was anything about the filling machine, or about young Henrie’s duties in relation thereto that was dangerous or hazardous to a greater degree than the situations ordinarily encountered in every day life. The only thing about the plant which has been suggested as presenting unusual hazards or dangers greater than those ordinarily encountered by an individual in his every day life, was the presence of the freight elevator, with the defect permitting electric current to pass through the control cable. As we have heretofore noted, Henrie’s duties not only did not require him to make use of the elevator, but there is strong evidence that he was positively prohibited from using the elevator. There is no evidence in the record to show express or implied permission to operate the elevator. Deceased’s duties did not require him to come within the zone of potential harm of the elevator.

The mere existence of defects in the electrical circuit of defendant’s elevator did not thereby render 'the plant a place of employment dangerous to the life, health, and safety of Henrie. The cable was not so situated that employees of the plant were apt to come into contact with it inadvertently. Moreover, the cable had been insulated for a space of several feet at every landing, for the purpose of protecting those employees whose duties required them to use the elevator. Defendant had been advised by the city electrician of Manti that an insulation of tape would make the elevator reasonably safe for operation. And had it not been for the fact that Henrie grasped the cable above the insulation, and for the further fact that at that time he was well grounded because of the saturation of his clothes with brine, the fatal accident never would have occurred.

It might have been negligence for defendant not to have insulated the cable for so great a space that an employee could not possibly reach an exposed portion of the cable. It might have been negligence not to have used heavier insulation. It might have been negligence not to have posted large warning signs. Perhaps it was negligence to use the elevator at all. But these are questions with which we are not now concerned. What we are concerned with here is whether or not the presence of this elevator in its defective condition upon defendant’s premises thereby rendered its plant a place of employment dangerous to the life, health, safety or welfare of its minor employees as meant by Section 14-6-3. Our judgment is that it did not. Defendant’s plant was not within the class of places of employment for minors prohibited by the statute.

One other point must be noticed. At the time of his death young Henrie was unmarried, childless, and left no dependents. The Industrial Commission took jurisdiction of this accident and ordered defendant to pay $1,000 into the state treasury as provided by Section 42-1-64(1), and in addition thereto, to pay $150 toward the burial expenses of decedent. These orders were complied with by defendant. However, plaintiff now contends that payment of $1,000 into the state treasury is not a benefit to him, and hence not compensation and therefore he is entitled to prosecute this action under Article XVI, Section 5, Constitution of Utah, which provides as follows:

“The right of action to recover damages for injuries resulting in death, shall never he abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where corns-pensation for injuries resulting in death is provided for by law.” (Italics added.)

And section 104-3-10 provides, insofar as material here, as follows:

“Except as provided in chapter 1, of Title 42, a father, or, in ease of his death or desertion of his family, the mother, may maintain an action for the death or injury of a minor child when such injury or death is caused by the wrongful act or neglect of another; * * (Italics added.)

Under the constitutional and statutory provisions above quoted plaintiff is entitled to maintain this action, unless the death of his son falls within the compensation provisions of the Workmen’s Compensation Act. The- question posed for us is this: Where the decedent dies without dependents, are the payment of money into the state treasury, as provided by Section 42-1-64(1), and the payment of the statutory sum for burial expenses, “compensation” within the meaning of the above quoted constitutional provision?

The above quoted section of the Constitution, as it was orginally worded, did not include the italicized words. They were added by a constitutional amendment adopted in 1920 and effective January 1, 1921. The purpose of this amendment, and the reason for it, are revealed in its history.

The original Workman’s Compensation act was enacted by our legislature in 1917. As originally enacted, the statute gave the dependents of a workman killed in the course of his employment the option of (a) suing under the wrongful death statute; or (b) accepting the death benefits provided by the compensation act. Comp. Laws Utah 1917, Sec. 3127. The statute was necessarily in the alternative form, since to have made the death benefits provided by the act the exclusive remedy of the dependents would have been a clear violation of Article XVI, Section 5 of the State Constitution as it then existed. In order to remedy this situation, the section was amended by adding thereto the words italicized by us in the quotation of the section. The next session of the legislature then amended the compensation act by providing that employers who complied with the provisions of the compensation act should not be liable under the wrongful death statute for death of employees, except as otherwise provided by the act. Laws of Utah, 1921, C. 67, Section 3127. For the more complete history, see the opinion of Mr. Justice Hanson in Hailing v. Industrial Commission, 71 Utah 112, 263 P. 78.

As we have seen, the compensation act was enacted and effective prior to the adoption of the amendment to Article XVI, • Section 5 of the Constitution. Consequently, the amendment to the Constitution is to be construed in the light of the statutory provisions existing at the time of its adoption. Section 3140(1), Comp. Laws of Utah 1917, was similar to Section 42-1-64 (1), U. C. A. 1943. It provided that in case the deceased workman left no dependents, the employer or insurance carrier should pay the burial expenses of the deceased, and should pay into the state insurance fund the sum of $750. And Section 3112 (6), Comp. Laws of Utah 1917, defined compensation as “the compensation and benefits provided for in this title.” This is substantially the same as Section 42-1-42 (6), which defines compensation as “the payments and benefits provided for in this title.”

Also: Workmen’s Compensation Acts were designed to correct what had become a generally recognized evil. Prior to their enactment, the personal representatives or heirs of a workman killed in the course of his employment could not recover for his death, unless negligence on the part of the employer could be established. Moreover, the defenses of contributory negligence, voluntary assumption of risk, and the fellow servant rule, frequently defeated the cause of action. Even where recoveries were had, they usually came only after months or years of expensive litigation, and were largely reduced by attorney’s fees and other costs. On the other hand, where recoveries were allowed, sympathetic juries frequently returned grossly excessive verdicts. The situation was well stated in Stertz v. Industrial Commission, 91 Wash. 588, 158 P. 256, Ann. Cas. 1918B, 354.

The intention of the acts, then, was to secure workmen and their dependents (not heirs or personal representatives) against becoming objects of charity, by making reasonable compensation for calamities incidental to the employment, and to make human wastage in industry part of the cost of production. 28 R. C. L. 713, Workmen’s Compensation Acts, Section 2.

Compensation is a concept wholly different from that of damages. Damages are based upon fault, are generally limited only by the findings and conscience of the jury, and in death cases are payable to heirs or personal representatives without regard to dependency. Compensation, on the other hand, generally has no relation to fault, is fixed or limited by statute, and is payable to dependents only. See 28 R. C. L. 757, Workmen’s Compensation Acts, Section 51.

Plaintiff contends that because the money paid by defendant or its insurance carrier into the state treasury did not benefit him, it was not compensation within the meaning of Article XVI, Section 5 of the Constitution. Viewed in the light of the history of that section of the Constitution, and of the Workmen’s Compensation legislation, the contention is untenable. The amendment to the Constitution was not designed or intended to preserve all of the rights formerly guaranteed, and also to create new rights. On the contrary its very purpose was to abrogate some of the rights formerly held by persons entitled to sue under the wrongful death statute. “Compensation,” as used in the amendment to the Constitution, means the same as it is used and defined in the compensation act, i. e. any pay ment required by the act to be made to a workman or to his dependents, or for their benefit, or into the state treasury for the special purposes of the compensation act. This includes disability payments, death benefits, medical and hospitalization expenses, burial expenses, and payments into the state treasury as provided by the act. Compensation does not connote or require payment to, or for the direct benefit of a non-dependent parent, who would have been able to maintain an action for wrongful death prior to the amendment to the state Constitution. The payment of part of decedent’s burial expenses and of $1,000 in the state treasury in accordance with the order of the Industrial Commission, and as provided by statute, was payment of “compensation” within the meaning of Article XVI, Section 5, of the Constitution. Plaintiff has no constitutional or statutory right to maintain this action.

The judgment below is vacated and it is hereby ordered that judgment be entered in favor of the defendant and against the plaintiff, no cause of action. Costs to appellant.

McDONOUGH, C. J., and PRATT and LATIMER, JJ., concur.