Waterman Lumber Co. v. Beatty

204 S.W. 448, 1918 Tex. App. LEXIS 635

• Court: Court of Appeals of Texas
• Decided: June 19, 1918
• Docket: No. 1995.
• Status: Published

Opinion

LEVY, J.

(after stating the facts as above).

[1-3] Under appropriate assignments of error the appellant insists that the plaintiff cannot maintain his suit in court against the company, but must seek his remedy under the terms of the Workmen’s Compensation Act of the state. Acts of 1917, p. 269 (Vernon’s Ann. Code Civ. Supp. 1918, arts. 5240a to 5246 — 107). And the appellee says that this act does not, under the circumstances, apply to this case, for the reason that David Beatty was employed in violation of the Penal Code, and the insurance policy does not cover a case of unlawful employment. The Penal Code provides:

“Any person, or any agent, or any employ® of any person, firm or corporation who shall hereafter employ any child under the age of fifteen years to labor in or about any manufacturing or other establishment using dangerous machinery, or about the machinery in any mill or factory, * * * shall be ⅜ * * guilty of a misdemeanor,” etc. P. C. art. 1050; Acts 1911, p. 75.

And the Compensation Act, in force at the time of injury, provides:

“This section shall not be considered as authorizing the employment of a minor in any hazardous employment which is prohibited by any statute of this state.” Acts 1917, p. 269, § 12i.

And the circumstances in the case show, it is thought, a violation of the statute. The boy, Dave Beatty, was under 15 years of age, and was employed to labor about an establishment or mill using dangerous machinery. A log-loading machine, a track-laying outfit, or a locomotive engine propelled by steam is a “dangerous machine.” And a conveyor of any kind operated by steam power and used to carry logs from the forest to the mill to be made into lumber can be said to be, in point of fact, a necessary part of the manufacturing “establishment.” Wendt v. Industrial Ins. Commission, 80 Wash. 111, 141 Pac. 311; Hillestad v. Industrial Ins. Com., 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789. While the criminal law only punishes the “agent” or “employé” of a person or corporation for violation of the child labor law, the effect is to directly forbid persons or corporations employing children under 15 years of age in certain occupations. For the words “agent” and “employé” are of a representative relation. And the provisions of the Workmen’s Compensation Act apply only, it is believed, to valid employment contracts. See Hetzel v. Ring Co., 89 N. J. Law, 201, 98 Atl. 306. The insurance policy in evidence provides, “This policy shall cover all em-ployés of the employer legally employed.” And persons employed in violation of law as to age will not be within its terms. Ætna Life Ins. Co. v. Tyler Box & Lumber Mfg. Co., 149 S. W. 283. It is believed that appellant’s contention should be overruled.

[4] As it must be said, it is thought, that the boy was employed by the lumber company, the employment in violation of the statute gives rise to a cause of action in behalf of the boy, being injured, as he was, as it is concluded, while, in the employment. And it is, as held, negligence per se to violate the statute. 1 Thompson on Negligence, § 10; Stirling v. Mfg. Co., 159 S. W. 915. And the plaintiff may recover although at the time the boy was not engaged at the very piece of work he was primarily employed to do. Starnes v. Albion Mfg. Co., 147 N. C. 556, 61 S. E. 525, 17 L. R. A. (N. S.) 602, 15 Ann. Cas. 470; McGowan v. Ivanhoe Mfg. Co., 167 N. C. 192, 82 S. E. 1028. The unlawful employment is deemed as the proximate cause of the injury. The second, third, fourth, and fifth grounds of insistence are overruled.

It is concluded that the court may not disturb the verdict of the jury as excessive.

It is concluded by the court that the fifteenth assignment of error should be overruled.

The judgment is affirmed.

(Ss^For otiler eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes