Squires v. Brown

174 N.W. 548, 170 Wis. 165, 1919 Wisc. LEXIS 29

• Court: Wisconsin Supreme Court
• Decided: November 4, 1919
• Status: Published

Opinion

Siebecker, J.

The trial court held that since the plaintiff at the time of the accident was a minor of the age of seventeen years the rights and liabilities of the plaintiff and defendant arising under the facts and circumstances shown are governed by the child-labor statutes embraced in sub. 2, sec. 1728a, sub. (1) and (11), sec. 239-1 — 41, and sec. 1728A, Stats.

The court held that the facts indisputably show that plaintiff was injured while employed by defendant in pulling stumps with a stump-puller; that this employment of plaintiff was an engagement in an agricultural pursuit involving the use of mechanical power; that defendant’s negligence in failing to furnish a stump-puller properly equipped with a “dog” or safety device for its safe operation made the employment and place of employment not as free from danger to the life and safety of plaintiff as the employment and place of employment would reasonably permit; and that plaintiff’s contributory negligence constituted no defense in the action, because this employment of plaintiff while a minor by defendant subjected defendant to criminal liability for violation of the child-labor law within the rule of Pinoza v. Northern C. Co. 152 Wis. 473, 140 N. W. 84, and other cases.

Did the court err in holding that the employment of the plaintiff was in violatien of sub. 2, sec. 1728a? This statute provides that

“No employer shall employ, require, permit or suffer any minor ... to work in any place of employment, or at any employment dangerous or prejudicial to the life, health, safety or welfare oí such minor. . .”

This provision is followed by others in the same section imposing duties and conferring powers on the industrial commission to ascertain and fix “such reasonable classifications of employments and places of employment” of minors, “and to issue general or special orders prohibiting the employment of such minors . . . and to carry out the purposes of sections 1728a to 1728/, inclusive, of the statutes.” The provisions of secs. 2394 — 41 to 2394 — 70 are made a part of this statute so far as applicable and consistent therewith, to empower the commission to order the classification and for testing the validity thereof and enforcing the same in judicial proceedings, and provide that the penalties prescribed in these last sections shall be applied and imposed for any violation of secs. 1728a to 1728/, inclusive. These provisions are followed by this clause:

“Until such time as the said commission shall so investigate, ascertain, determine and fix the classifications provided in this section, the employments and places of employment designated in the following schedule shall be deemed to be dangerous or prejudicial to the life, safety, health or welfare of minors under the ages specified,” or dangerous to the life, etc., of others where such minor is employed.

A schedule of employments or places of employment dangerous or prejudicial to the life and safety of minors under the ages specified are designated in the act, denominated “a,” “b,” and “c.” These schedules classify minors according to age, schedule “a” embracing those between eighteen and twenty-one years of age. The terms and provisions of this statute indicate that the legislature intended to ascertain, de- ‘ termine, and fix'a classification of employments and places of employment which were in fact dangerous or prejudicial to the life, health, safety, and welfare of minors and enumerated them in the appended schedules. It is expressly enacted that such schedules are to remain as the classification until the industrial commission shall, under the powers conferred on it in the Statutes, make a different classification. The commission has not changed the classification so made by the legislature. An interpretation of sub. 2, sec. 1728a, requires that all its provisions be construed together, and when so treated it is evident that the legislature condemned the employment of minors and females in what the legislature considered dangerous and unhealthful occupations. To accomplish this result it w¡as appropriate for the legislature to declare which employments and places of employment are within this category. Determination of which employments and places of employment come within this category was a fact for it to ascertain within its legislative function, or, if it Was deemed proper, such determination of fact could appropriately be committed to an agency such as the industrial commission. State v. Lange C. Co. 164 Wis. 228, 157 N. W. 777, 160 N. W. 57. The terms and provisions of this statute clearly indicate that the general prohibition of the first sentence in sub. 2, sec. 1728a, applies and is restricted to such employments and places of employment as are specified in the schedules as dangerous, or which may be so classified upon investigation by the industrial commission under the powers conferred on it. Concededly this' legislative schedule has never been changed by the commission.

It remains to be determined whether or not the facts and circumstances of the case show that plaintiff at the time of his injury was engaged in an employment or place of employment specified in schedule (a), (b), or (c) of this statute.

Plaintiff was a minor under eighteen years of age at the time of the accident and hence can only be included in schedule (b) of sub. 2, sec. 1728a. It is contended in his behalf that his employment and place of employment were included in paragraph 6 of schedule (b), which reads as follows: “Elevators; in the running or management of any elevators, lifts or hoisting machines.” It is claimed that the stump-puller in question, as described by the witnesses, is a mechanical contrivance commonly known as an elevator, lift, or hoisting machine. We think it manifest that it is not within the class of mechanical contrivances designated as an elevator, lift, or hoisting machine in paragraph 6 of schedule (b). Nor do we find any other designated employment or places of employment in the schedules of this statute that cover and include the plaintiff’s employment. The trial court found the plaintiff was engaged at the time of the accident in an agricultural pursuit involving the use of mechanical power and upon that ground held plaintiff’s employment was one included in the prohibition of sub. 2, sec. 1728a. This conclusion was arrived at upon the ground that the part of this section declaring that “The terms ‘place of employment,’ ‘employment,’ . . .” as used in this section should be construed as defined in sec. 2394 — 41 of the Statutes. This language in its ordinary significance does no more than import the definition of these terms as there used into sub. 2, sec. 1728a. That the legislature did not thereby intend to include any employment in agricultural pursuits within the terms of sub. 2, sec. 1728a, is clearly negatived by expressly exempting them therefrom by sub. 4 of sec. 1728c, Stats., which declares: “Nothing contained in section 1728a to 1728/, inclusive, shall be construed to forbid any child from being employed in agricultural pursuits, nor to require a permit to be obtained for such child.” The terms of this provision permit of no inference other than that the employment of minors in agricultural pursuits is not included within the prohibited employments specified in secs. 1728a to 1728/.

The result is that the rights and liabilities of the parties to this action are not governed by the statutes above referred to respecting the employment of minors, and their rights are governed by the law applicable to persons generally for the recovery of damages for personal injuries’ proximately ■caused by the acts of another. The jury hás found that the defendant’s negligence in failing to furnish a stump-puller with safety devices and guards so as to make it as free from danger to the plaintiff as the nature of the employment would reasonably permit was a proximate cause of plaintiff’s injuries. In answer to question .7 they found that a want of ordinary care on plaintiff’s part proximately contributed to his injuries. These findings must be accepted as verities in the case. -It necessarily follows that plaintiff’s contributory negligence defeats his right to recover any damages for the injuries he sustained.

The defendant contends that plaintiff is not entitled to recover the costs in the action which were incurred in the trial of the cause of action for personal injuries. It appears that plaintiff is entitled to recpver the sum of $252.17, the balance due liim under the contract for services rendered for the defendant upon the second cause of action alleged in the complaint. It is claimed that defendant did not contest this claim for wages plaintiff had earned and which remained unpaid, but that the complaint failed to allege plaintiff’s emancipation and hence that his father was entitled thereto. Upon the trial the father in open court relinquished such right, whereupon it was agreed that the foregoing amount was to be recovered upon the second cause of action. The argument is made that the costs and disbursements incurred in the trial of the case were almost wholly incurred in the trial of the issues arising out of the alleged cause of action for personal injuries, and, since plaintiff cannot recover on this cause of action, such costs cannot be recovered as an incident to the recovery on the second alleged cause of action. Sec. 2918, Stats., provides: “Costs shall be allowed of course to the plaintiff in an action in the circuit court upon a recovery in the following cases, except when otherwise especially provided by law;” and then enumerates wherein they can be recovered. Sec. 2920 provides: “Costs shall be allowed of course to the defendant in the actions mentioned in the two preceding sections unless the plaintiff be entitled to costs therein,...” It must be borne in mind that the costs of action are the creature of the statutes and not'a part of the cause of action. Two Rivers Mfg. Co. v. Beyer, 74 Wis. 210, 42 N. W. 232. Under the foregoing statute the plaintiff is entitled thereto upon a recovery in his favor, and the defendant shall recover costs in the action “unless the plaintiff be entitled to costs therein.” These provisions clearly indicate that costs shall be awarded to the plaintiff if he obtains any recovery, and that the defendant is entitled thereto only when the plaintiff fails in a recovery in the action. No provision is made for apportionment of costs although each party is successful as to a part of the issues tried. The. only statute bearing on an apportionment of costs is sec. 2789, Stats., which authorizes defendant to offer judgment in writing before trial, and if not accepted by the plaintiff he cannot recover costs from the time of such offer, and must pay defendant’s costs thereafter unless he recovers a more favorable judgment. Under statutes like those of this state, courts have held that costs cannot be apportioned between the parties although both succeed in part in the litigation. 15 Corp. Jur. p. 25, § 10 et seq.

The plaintiff having recovered in the action, he is entitled to the costs provided for in sec. 2918, Stats., in actions based on contract.

By the Court. — The judgment appealed from is modified by deducting from the whole amount of damages recovered, namely, the sum of $2,897.17, the amount awarded plaintiff as a recovery on his first cause of action as damages for personal injuries, namely, $2,645; and leaving the balance of $252.17 as damages recovered in his second cause of action, together with his costs and disbursements taxed and allowed at the sum of $224.50, making a total recovery of $476.67; and as so modified the judgment is affirmed.