Schmidt v. Wisconsin Sugar Co.

186 N.W. 222, 175 Wis. 613, 1922 Wisc. LEXIS 120

• Court: Wisconsin Supreme Court
• Decided: January 10, 1922
• Status: Published

Opinions

Eschweiler, J.

Giving this complaint the most liberal construction to which it is entitled under our rules, it must nevertheless be held that it fails to state sufficient facts upon which a legal conclusion could be based that there was by defendant (respondent here) any unlawful employment of Fred S. Schmidt, a minor, so that the accident in question could create a liability on its part for either of the alleged causes of action. This view makes it unnecessary to'pass upon any other question presented on this appeal.

Assuming, but only for the present purpose,' that the complaint sufficiently states an employment of the minor by the respondent at the time of the accident, the only allegations in this complaint upon which either of the causes of action attempted to be set forth could be predicated -are in substance these, namely: that such driving of the automobile at the time in question was an employment dangerous to life and limb and in contravention of sec. 1728a, Stats.; and secondly, that such injury resulting in his death a few minutes thereafter was proximately caused by such alleged unlawful employment. No other statements are made or facts alleged indicating what particular one of the many provisions of sec. 1728a, Stats., it is claimed defendant violated, nor is any such satisfactorily pointed out to us by appellant on the argument, nor can we find any that would bring the situation as presented by the complaint within any of its particular terms.

Sec. 1728a, Stats., found in ch. 83, entitled “Hours of Labor and Employment of Children, and Boards of-. Arbitration,” provides by sub. 1 that written permits shall be obtained for the employment of children between the ages of fourteen and seventeen years in certain specified occupations, or at any gainful occupation or employment, directly or indirectly. Sub. 2 prohibits the employing, requiring, permitting, or suffering of any minor to work in any place of employment or at any .employment dangerous or preju: dicial to the life, health, safety, or. welfare of such'minor or other employee. It also provides that it is the duty of the industrial commission to determine and fix reasonable classifications of employments and places of employment for minors and females and to issue general or speciál'or-ders regarding the same. It then provides that until' such commission shall, after investigation, so determine as to other employments and places of employment, those on a certain specified list are declared to be deemed dangerous of prejudicial to the life, safety, health, or welfare of minors under certain specified ages, or of females. Then follows the schedule of such employments or places of employment declared to be dangerous or prejudicial. For instance, sub’, (a), employment during the nighttime in the delivery of messages for telegraph companies or of goods of ány minor under twenty-one years of age; sub. (b), excluding the employment of all minors under eighteen years of age in a numbered list of thirteen specific employments, including, for example, blast' furnaces,’ the running of elevators, explosives, ’ matches, quarries, or mines, railroads, etc.'; sub. (c), excluding minors under sixteen years of age in a list of at least twenty-two specified employments, incltiding, for example, bakeries, bowling alleys, boilers, and a varied number of machines, paints, or poisons, theaters, concert halls,, tobacco warehouses, etc.; and ending with sub. (23) relied upon by appellant and reading as follows: “Any other employment dangerous to life or limb, injurious to the health, or depraving to the morals.”

But nowhere do we find any specific provision declaring expressly, nor, so far as we can see, by implication even, that the driving of an automobile is considered by the legislature as dangerous or hazardous either as an occupation by itself or as a place of employment.

To uphold this complaint as stating a cause of action it is evident that we would be required to say that it is covered by and included with the general language of sub. (23) just above quoted. This we do not feel prepared to say.

This court has said in Steffen v. McNaughton, 142 Wis. 49, 52, 124 N. W. 1016, 26 L. R. A. n. s. 382, that the automobile as a vehicle cannot be placed in the category of in-strumentalities like locomotives or such a substance as dynamite or other dangerous contrivances and agencies, citing a number of cases from other jurisdictions, to which list may be added Daily v. Maxwell, 152 Mo. App. 415, 423, 133 S. W. 351; Neubrand v. Kraft, 169 Iowa, 444, 151 N. W. 455, L. R. A. 1915D, 691, note. In the chapter on police regulations as to the use of the highways, sec. 1636 — 49, Stats., makes it unlawful for a person under the age of sixteen, unless accompanied by parent, guardian, or other adult person, to operate or drive any automobile upon the public highway, inferentially lending support to the view that the legislature did not intend to absolutely prohibit or make unlawful the driving of such vehicles by minors under sixteen when accompanied by some older person, the conceded situation here.

That other states have expressly classified the driving of such machines as a hazardous or dangerous employment does not persuade us that we should now read into the general language of said sub. (23), supra, by implication or construction, such a broad field of employment or places of employment as would necessarily have to be done to include the driving of automobiles. For instance, in New York under their workmen’s compensation law (Civil Code, sec. 2032), which provides for payment for injuries sustained or death incurred by employees engaged in “the following hazardous employments,” mahy separate groups being specified, including many such as are found detailed in our sec. 1728a, and in their group 41 is included “operation, otherwise than on tracks, on streets, highways, . . . engines propelled by steam, gas, gasoline, electric, mechanical or other power or drawn by horses.” Cases based, therefore, upon such express statutory provisions as are cited by appellant from New York and other jurisdictions are inapplicable here. A list of such cases is found in L. R. A. 1918F, 234.

In all cases such as are here presented based upon a claim of liability for injury consequent upon some violation of a penal statute, there must be some causal connection between such violation and the particular injury. Where the causal connection is clear from the facts stated and proven, it is for the court; when not clear, it may be a question for the jury. Haswell v. Reuter, 171 Wis. 228, 233, 177 N. W. 8. See, also, Benesch v. Pagel, 171 Wis. 620, 177 N. W. 861; Steinkrause v. Eckstein, 170 Wis. 487, 490, 175 N. W. 988; Pizzo v. Wiemann, 149 Wis. 235, 239, 134 N. W. 899, 38 L. R. A. n. s. 678; note in L. R. A. 1915E, 516.

The language in the complaint to the effect that there was a violation of sec. 1728a, Stats., and that the injury to and death of the minor was proximately caused by such violation, are but conclusions of the pleader rather than the statement of essential facts. Emond v. Kimberly-Clark Co. 159 Wis. 83, 86, 149 N. W. 760; Herrem v. Konz, 165 Wis. 574, 576, 162 N. W. 654; Howard v. Redden, 93 Conn. 604, 107 Atl. 509.

Upon the complaint as it is presented, therefore, the trial court was right in holding that it was insufficient and properly sustained the demurrer.

By the Court. — Order affirmed.