Reaves v. Anniston Knitting Mills , 154 Ala. 565 ( 1908 )

DOWDELL, J.

This is an action by the father to recover damages for injuries received by his minor child because of the alleged wrongful and negligent acts of the defendant. The complaint contained eight counts, to which demurrers were interposed. The court overruled the demurrer to the first, third, fourth, and sixth counts, and sustained them as to the second, fifth, seventh, and eighth. After ruling on demurrers, the seventh and eighth counts were amended. On the issues submitted to the jury a verdict was returned in favor of the defendant, and from the judgment rendered on this verdict the present appeal is prosecuted by the plaintiff.

The first assignment of error on the record complains of the ruling of the trial court in sustaining the demurrer to the second count of the complaint. The gravamen of this count is the negligent failure of the defendant to instruct the plaintiff’s child, who was a minor, inexperienced and immature, relative to the dangers incident , to tlie employment while at work, or in going to and from her work. This duty was one that rested on the defendant, whether the child was employed with or without the parent’s consent, and the negligent failure to perform it, being the proximate cause of the injury, would furnish a good cause .of action to both the parent and child; the recoverable damages, however, in some respects varying in the two cases. — Ala. Mineral R. R. Co. v. Marcus, 128 Ala. 355, 30 South. 679. The cause of action as stated in the count being predicated on the negligent failure to perform this duty, the averments in respect to the dangers incident to the employment were sufficiently certain, and the count was, therefore, not subject to the demurrer on the grounds specified, and the court erred in sustaining the same.

In the fifth count, to which a demurrer was sustained and here assigned as error, the cause of action is based solely on an alleged violation of the statute in employing the minor child of plaintiff to work in its factory, The averment is: “The defendant, in violation of the laws of the state of Alabama, employed to work and did work in its factory Ida Lee Reaves, a daughter of the plaintiff, who was then and is now a minor between the ages of 9 and 10 years,” etc. While the act approve February 25, 1903 (Gen. Acts 1903, p. 68), provides that a child under 10 years of age shall under no circumtances be employed about a factory or manufacturing establishment, and fixes a penalty for a violation of the statute, it does not follow that a father may maintain an action under any and all circumstances to recover for services lost to him by reason of an injury to his minor child, resulting from a violation of the statute. If he consents to* the employment in violation of the law, he will not be permitted to profit by his own misconduct. Count 5 does not negative that the employment was with the knowledge and consent of the plaintiff, the father; and, following the familiar rule of construing the pleading against the pleader, it will he taken that the plaintiff consented to the employment of his minor child. — • Woodward Iron Co. v. Cook, 124 Ala. 354, 27 South. 455. The count was open to the ground of demurrer raising this question. This count, moreover, was faulty in another respect. It fails to show any causal connection between alleged wrong and the injuries complained of. — Ensley Mercantile Co. v. Otwell, 142 Ala. 575, 38 South. 839, and authorities there cited. See, also, Wilson v. L. & N. R. R. Co., 146 Ala. 285, 40 South. 941, 8 L. R. A. (N. S.) 987.

Counts 7 and 8 are only set out in the record as amended, and not as originally filed, and as amended the demurrers to these counts Avere overruled. The counts as originally filed not being set out, we decline to consider the rulings on the demurrers to them.

The state of the record as to the pleadings and the rulings thereon is not free from confusion. To the complaint pleas Avere filed designated “first,” “second,” and “third,” and in connection therewith special pleas, numbered in the same manner, from “first” to “tenth,” inclusive ; also special plea A. Demurrers were interposed to the “third” plea, and to all of the special pleas except special plea A. The record fails to show any action by the court on the demurrer to either the “third” plea or the tenth special plea. The judgment entry shows demurrers overruled as to the first and second special pleas, and sustained as to the other special pleas, from the third to the ninth, inclusive; thus leaving it where Ave can only consider appellant’s (plaintiff below) assignments of error to the action of the- court in overruling the demurrers to the first and second special pleas. The first count of the complaint, to which both of these pleas were addressed, averred an employment by the defendant of plaintiff’s minor child, and that the said minor was inexperienced and unacquainted with the dangers incident to the employment and the work to which she was assigned, and then charges the failure of the defendant to instruct her and advise her as to the ■dangers, and as a consequence of such failure to instruct she was injured. The cause of action, it is to be observed, is predicated on the failure of the defendant to perform a duty imposed by law springing out of the employment, and a failure to perform which, with a knowledge of the facts and circumstances averred, constituted actionable negligence. As hereinbefore stated, it is unimportant whether the employment was with or without the consent of the parent. The duty was the same. In neither of said pleas is the employment denied, nor the failure of the defendant to advise and instruct; but in each the defense of contributory negligence is sought to be set up in the averment that the plaintiff knowingly permitted his minor child to go “unprotected into the knitting mill and among the machinery of the defendant, which he knew was a dangerous place for a child to go, for the purpose of assisting her older sister,” etc. In ■order for the plaintiff’s negligence to be available as a defense under the plea of contributory negligence, the negligence must be at least a concurring proximate cause of the injury. — North Birmingham Street Ry. Co. v. Calderwood, 89 Ala. 247, 7 South. 360, 18 Am. St. Rep. 105; Montgomery Gas Co. v. Railway Co., 86 Ala. 372, 5 South. 735; Thompson v. Duncan, 76 Ala. 334. The facts averred in the pleas as constituting plaintiff’s negligence in reality only served to create a condition or status on which the alleged negligence of the defendant operated in producing the injury. The plaintiff’s •demurrers should have been sustained to these two pleas.

The record shows that, among other pleas, issue was-joined on special plea 10 and special plea A. Under the issues as framed it was competent for the defendant to-show the rec.cwery had by him as a next friend of the minor in a former suit. This was made an is>sue under special plea A.

There Avas no error in oveiTuliug the objection to the question propounded by the defendant to the witness Marjorie Locke on her cross-examination.

In a case like the present one, Avhere the parent sues for injury to his minor child, the rule as to recoverable damages is stated in the case of Bube v. Birmingham Ry., L. & P. Co., 140 Ala. 276, 37 South. 285, 103 Am. St. Rep. 33.

What Ave have said, Ave think, will serve sufficiently to guide upon another trial, Avithout further extending this opinion by considering in'detail all of the assignments. The questions Ave have considered seem to be the controlling ones in the case. For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Tyson, <1 J., and Simpson and Denson, JJ., ccncur.