Wade v. Taylor

228 S.W.2d 922, 1949 Tex. App. LEXIS 1936
CourtCourt of Appeals of Texas
DecidedDecember 19, 1949
DocketNo. 6018
StatusPublished
Cited by20 cases

This text of 228 S.W.2d 922 (Wade v. Taylor) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wade v. Taylor, 228 S.W.2d 922, 1949 Tex. App. LEXIS 1936 (Tex. Ct. App. 1949).

Opinion

PITTS, Chief Justice.

Orbra Wade, individually and as mother and next friend of Billy Nancy Wade, a minor child alleged to be fourteen years of age, filed suit against, Edgar L. Taylor, d/b/a Taylor’s Market, to recover damages in the sum of $3350 for personal injuries sustained by Billy Nancy Wade on or about October 23, 1948, while she was employed by Edgar L. Taylor. The case was tried to the court without a jury on July 8, 1949, and judgment was rendered for appellee, Edgar L. Taylor, from which judgment appellants have perfected their appeal.

[923]*923Appellants sought in the trial court to convict appellee of negligence both as a matter of fact and as a matter of law, charging that his negligence, in any event, was the proximate cause of the injury received. The trial court exonerated ap-pellee of negligence both as a matter of fact ■and as a matter of law and rendered a “take nothing” judgment. It is the duty of the reviewing court to affirm the trial court’s judgment if such can he done on any reasonable theory supported by the findings of the trial court and authorized by law, provided there is evidence of probative force to support the trial court’s findings, which were filed at the request of appellants.

On appeal appellants endeavor to show that appellee was guilty of negligence only as a matter of law, which they contend proximately caused the injury in question. In support of their position they seek to invoke the provisions of the Child Labor Law and rely particularly on the case of Langston v. Degelia, Tex.Civ.App., 186 S.W.2d 738, in support of their contentions. In that case a minor under fifteen years of age was employed to operate a planing machine in a planing mill or a manufacturing plant that consisted principally of the •operation of machinery. According to the facts presented in that case such employment was directly in violation of the provisions of Article 1573, Vernon’s Annotated Penal Code, as amended by acts of the 41st Legislature in 1929, which prohibits the employment of a child “under the age of fifteen years to labor in or about any factory, mill, workshop, laundry, or in messenger service in towns and cities of more than fifteen thousand population * * The child was injured while engaged within the scope of his duties under his employment in a planing mill. The Child Labor Law prohibits the employment of such a child in any such mill and we concur with the holding of the court in the Langston case to the effect that the child’s employer had employed it in violation of said Article in the Penal Code and was therefore guilty of negligence as a matter of law which proximately caused the injury. The trial court had so held in that case and its judgment was affirmed.

But the holding of the trial court in the case at bar was to the contrary. It found that appellee operated a grocery store, carrying a regular line of groceries; that he operated in connection therewith a meat market and a cafe; that appellee had more than three employees and did not carry workmen’s compensation; that Billy Nancy Wade was employed by appellee during the summer months of 1948 as a waitress in the cafe operated in the store where she worked until school started in September; that on or about October 21, 1948, Billy Nancy Wade was again employed by ap-pellee to wait on customers in the meat department of the market and that she was told by the assistant manager who employed her that such would be her duties; that there was some machinery driven by electricity in the meat market, among which there was a meat grinder; that on October 23, 1948, without the knowledge or instructions of her employer or any one else, Billy Nancy Wade voluntarily engaged in grinding tallow in the meat grinder; that she cut the machine off by the use of a switch when she finished grinding the tallow and was wiping off the grinder when her finger slipped into a blade that was still rotating and the tip of her finger, including a small portion of the bone under the fingernail, was cut off; that the injury was painful for some time thereafter but the injured finger had healed and the injury would not produce any permanent disability or mar the appearance of the finger, though it was still painful to some degree under pressure; that the injury to Billy Nancy Wade was the result of an accident and not due to the negligence of appellee or any person acting for him; that no one in appellee’s employment having any authority to direct Billy Nancy Wade’s work knew she was operating the meat grinder until after she was injured; that the use of an electric meat grinder, electric meat alicer and an electric saw in the meat department where Billy Nancy Wade was employed to wait on customers was not negligence per se upon the part of appellee under the provisions of Article 1573 of the Penal Code and that it was not negligence for appellee to employ Billy [924]*924Nancy Wade to wait on customers in the meat department; that appellee paid all of Billy Nancy Wade’s doctor bills, hospital expenses and medical hills incurred as a result of the said injury and continued paying her wages she would have earned working on week-ends except for the injury but that such payments would not compensate Billy Nancy Wade for the pain and suffering she endured as a result of the injury if ap-pellee had been liable for such. By reason of such findings, the trial court concluded appellee was not liable to appellants for any damages.

Appellants do not challenge any of the trial court’s findings except for their contention that appellee had employed Billy Nancy Wade in violation of the provisions of Article 1573 of the Penal Code and he was therefore guilty of negligence as a matter of law which proximately caused the injury, especially inasmuch as appellee had not complied with the exemption laws in getting a permit from the county judge authorizing the child to work for him before employing her. Appellants take the position that the power driven electrical meat grinder operated by Billy Nancy Wade was as dangerous as the machinery operated by the boy in the planing mill in the case of Langston v. Degelia, supra, and that the nature of the business in which the machine is operated is immaterial since it must have been the intention of the Legislature in passing the Child Labor Law to protect children under the age of fifteen years from working about any kind of “dangerous machinery”. In construing the provisions of Article 1573 of the Penal Code, appellants attempt to make the prohibitory clause broad enough to include the use of “dangerous machinery” in any kind of business; The Labor Law Act of the Legislature approved in 1911, Vernon’s Annotated Penal Code of 1916, Arts. 1050-1050d, regulating the employment of children in factories, mills, mines, quarries, distilleries, breweries, etc., likewise included the phrase “or other establishment using dangerous machinery.” But the Legislature, obviously realizing that prohibitory provisions of criminal law must be made specific and not subject to various constructions, omitted and left out the phrase “or other establishment using dangerous machinery” in a more recent codification and in the amended act of the Legislature in 1929. Such law as amended is found in Article 1573 of the Penal Code. The prohibitory part of the act now includes “any factory, mill, workshop, laundry, or messenger service” and nothing else, thus strongly implying that the phrase of “other dangerous machinery” was deliberately and intentionally left out of the Article in the approval of recodification.

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Bluebook (online)
228 S.W.2d 922, 1949 Tex. App. LEXIS 1936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wade-v-taylor-texapp-1949.