Brown v. Cosmopolitan Ice Company ( 1942 )

This writ of error is to two orders, the first granting a motion for compulsory amendment of plaintiff's second amended declaration and the second sustaining a demurrer to the declaration as amended, being the third amended declaration.

Action was brought by the plaintiff in error as father for the wrongful death of a minor son, damages being predicated on a violation of certain provisions of Chapter 6488, Acts of 1913, later Section 4030 and Sections 4021, 4022, 4023, 4024, and 4025 Revised General Statutes of 1920.

The matter of granting or denying a motion for compulsory amendment is one vested in the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is shown. Holman v. Klutho, 91 Fla. 853,109 So. 314. The second amended declaration was not definite as to the age of the minor and the sections of the statute relied on. Defendant was entitled to be apprised of these facts so there was no error on this point.

The sections of the Statute relied on for recovery are better known as the Child Labor Law, numerous sections of which prohibit the employment of minors under sixteen years of age in certain employments. The declaration should be specific as to the section or sections relied on and certainly the plaintiff must bring himself within the requirements of the act.

In this case, it appears that the deceased was driving a motor truck for the defendant in error delivering ice and that his death did not occur at the plant. If employment of minors in the business stated was prohibited by the act relied on, we do not imply that the circumstances under which deceased was alleged to have been killed were so remote from as to be unconnected with the main business.

Affirmed.

BROWN, C. J., CHAPMAN, and THOMAS, JJ., concur.