Galveston, H. & H. R. Co. v. Anderson ( 1920 )

James Anderson, a minor, by W. J. Anderson, as next friend, brought this suit against the Galveston, Houston Henderson Railroad Company to recover damages for personal injuries sustained by him on July 27, 1913, while in the employment of the defendant as a call boy. He alleged that during the time of his employment and at the time of his injuries he was the age of 15 years; that in the performance of his duties as call boy he was compelled and required to pass over, through, and upon numerous tracks, frogs, and switches, and right of way of the defendant through its yards, which tracks were used by defendant for the purpose of switching cars and operating trains at all hours of the day and night; that the office of defendant where plaintiff was required to report for duty, and from which he received his instructions to carry messages and other duties required of him, is situated within the yards of defendant, and the only access thereto is through, over, and along and upon the many and numerous tracks, frogs, and switches of the defendant used and operated as aforesaid. He further alleged:

"Plaintiff represents that it is the custom well known to defendant, its agents, servants, and employes, for its employés, in going from and coming to their employment, it is necessary to pass along and upon the tracks and right of way of the defendant in its said yards, and that said right is exercised by the employés of defendant with the full knowledge and consent and requirement of said defendant, and is necessary that such use be made by said employés for the reason that there was on the 27th day of July, 1913, no other means of ingress or egress to and from their several employments, including the employment of the plaintiff herein; that plaintiff's employment and duty required of him, in performing the service and carrying out instructions, to pass over, through, and along said tracks as aforesaid."

Plaintiff then alleged his injuries on the 27th day of July, 1913, their nature, etc. He then alleged as follows:

"Plaintiff represents and shows to the court that the injuries received by him were the immediate and proximate result of negligence of the defendant, its agents, servants, and employés, for this: (a) That he was but a child fourteen years of age, which was known to defendant, its agents, servants, and employes, in employing him in a dangerous occupation as that of a call boy, his employment requiring him to labor and perform services for the defendant in and about dangerous machinery, such as locomotive engines, cars, railroad tracks, switch targets, and other equipment of defendant; (b) that defendant was guilty of negligence in employing plaintiff to work in the capacity hereinbefore alleged for the reason that plaintiff was a minor under fifteen years of age, and that said employment required plaintiff, in the performance of his duties, to be about dangerous machinery of defendant, in violation of the Penal Code of the State of Texas, in article 1050, Act of 1911, said statute being in words and figures as follows:

" ``Any person, or any agent, or any employe 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 * * * guilty of a misdemeanor,' etc. P. C. art. 1050; Acts 1911, p. 75 [Vernon's Ann.Pen. Code 1916, art. 1050.]"

He then alleged many and numerous other acts of negligence on the part of defendant railroad company, all of which he alleged were the proximate cause of his injuries; but, as such other allegations were withdrawn by him during the trial, any further statement of them here is unnecessary.

The defendant answered by general denial, and special pleas of contributory negligence and assumed risk.

The case was tried before a jury, to whom the court submitted same upon the following charge:

"Gentlemen: (1) If you find from the evidence that the plaintiff was under fifteen years of age at the time of the accident, you will return a verdict for the plaintiff, and assess his damages at such an amount as would reasonably compensate the plaintiff for the injuries alleged, so far as the same may be shown by the evidence, based on his mental and physical suffering, the permanency or otherwise of his injuries. If you find from the evidence that the plaintiff was himself guilty of the want of ordinary care without which the injury would not have occurred, then you will diminish the damages proportionately. In estimating damages, you may allow an amount not exceeding the reasonable value, if paid now, of such future damages.

"(2) If you believe from the evidence that the plaintiff was fifteen years of age or over at the time of the accident complained of, you will return a verdict for the defendant.

"(3) The burden of proof to show that the plaintiff was under fifteen years of age is on the plaintiff."

"In this case you are instructed that the plaintiff has withdrawn all of the allegations against the defendant of negligence save and except that portion of the petition which alleges that the defendant company was negligent in employing the plaintiff in violation of the penal statute. You will, therefore, not take into consideration any other act of negligence that may have been alleged by the plaintiff."

The verdict of the jury was for the plaintiff for the sum of $3,000. Judgment was entered accordingly, from which defendant has appealed.

The plaintiff having abandoned all allegations of negligence on the part of defendant save and except the allegation that defendant committed an act of negligence in employing him as a call boy in violation of article 1050 of the Penal Code, prohibiting the employment of persons in certain establishments, etc., and under certain conditions, while under the age of fifteen years, appellant first contends that said article 1050 did not relate to, nor did it apply to, the employment of boys under the age of fifteen years by railroad companies in any capacity, and especially as to the employment of such boys as call boys or messengers, and there fore there was no violation of said article by defendant in so employing plaintiff, and hence the court erred in not instructing a verdict for defendant upon its written request.

The majority of this court has reached the conclusion that the foregoing contention should be sustained.

The acts forbidden by article 1050, Acts of 1911, are the employment of "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, or in any distillery, brewery, or to labor in any capacity in the manufacture of goods for immoral purposes, or where their health may be impaired or morals debased, or to send any child to any disorderly house, bawdy house, or assignation house."

It was shown that appellee was employed as a call boy, his duties being to call crews and run errands for the appellant, to get and deliver waybills to the proper employés in and about the railway yards and in the city of Galveston; that in the performance of these duties he was required to go into the railway yards where cars and engines were being moved from place to place, to make calls and deliver messages and waybills, and that at the time of his injury he was on his way from the office of appellant to his home to get his supper, with instructions to hurry back.

As before stated, it is the contention of appellant that the statute in question had no application to the employment by railroad companies of boys under 15 years of age to perform services such as the plaintiff was employed to perform; that the inhibition was against employing such child to labor in or about any manufacturing or other establishments using dangerous machinery, or about the machinery in any mill or factory, and not to employment by railway companies of messenger boys. Appellant contends that had the Legislature intended to direct the inhibition against railroad companies it would have been an easy matter for it to have so declared, and that it would no doubt have so declared had it been intended so to do.

It will be observed that establishments and places where the employment of children are forbidden are designated as manufacturing establishments using dangerous machinery; other establishments using dangerous machinery; about machinery in any mill or factory. If the employment of a child by a railroad company is inhibited by this statute, it is embraced in the phrase "or other establishments using dangerous machinery." We are not disposed to include railroads in the term "other establishments using dangerous machinery" found in the statute being discussed. While a railroad does in certain places and manner use much dangerous machinery in performance of its business and purposes, it can hardly be referred to as an establishment where dangerous machinery is used. It the statute in question is applicable to railroad companies, such companies are forbidden to employ a child under 15 years of age in any capacity whatever solely because they, in some places and manner, use dangerous machinery. Such, we think, could not have been the intention of the Legislature in passing this statute. The caption of this bill declares that it is "An act to regulate the employment of children in factories, mills, mines, quarries, distilleries, breweries, manufacturing or other establishments using dangerous machinery," and nowhere in the entire act are railroads mentioned. We can hardly be led to believe that, if it was intended to embrace railroads in the class of establishments mentioned, all these minor establishments would have been specifically named, while the great system of railroads were left unnamed, and, if included, were to be so included by a doubtful construction of the act. The rule of construction ejusdem generis would confine the inhibition to the same class of employment as those enumerated in the act, and would not extend them to other and different classes, such as railroads.

The rule, as we understand it, is that where an enumeration of specific things is followed by some general word or phrase, such general word or phrase is to be held to refer to things of the same kind as those specifically mentioned. Right of Way Oil Co. v. Gladys City Oil Gas Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A. (N.S.) 268; Ex parte Roquemore, 60 Tex. Crim. 282, 131 S.W. 1101, 32 L.R.A. (N.S.) 1186; 2 Lewis Stat. Const. § 422, p. 815 and 817.

In Right of Way Oil Co. v. Gladys City Oil Gas Co., supra, the Supreme Court of this state said:

"The rule of construction, ``ejusdem generis,' is thus stated, ``General words following particular words will not include things of a superior class.' There is this further restriction of general words following particular words, that the general words will not include any of a class superior to that to which the particular words belong."

For an exhaustive and comprehensive discussion of the doctrine of "ejusdem generis" see Ex parte Roquemore, 60 Tex. Crim. 282, 131 S.W. 1101,32 L.R.A. (N.S.) 1186. In that case Judge Ramsey, in speaking for our Court of Criminal Appeals, said:

"The doctrine of ejusdem generis is applied in all cases where there is doubt as to the intention of the Legislature, and, as a rule of statutory construction, is stated to be that, where general words follow particular ones in a statute, the general words will be limited in their meaning or restricted to things of like kind and nature with those specified. * * * It is within the power of the Legislature to make the playing of baseball on Sunday a misdemeanor, but, if such be the purpose, apt words can readily be employed which will express that intention and leave no room for doubt.

"In the case of Ex parte Muckenfuss, 52 Tex. Crim. 467, 107 S.W. 1131, we had occasion to review and consider at length the rule of construction applicable to a statute such as this. We there said: ``It is a familiar rule that, where general words follow particular and specific words, the former must be confined to things of the same kind. It has been held, also, that this rule is especially applicable in the interpretation of statutes defining crimes and regulating their punishment. * * * The doctrine itself is thus well expressed in Lewis' Sutherland, Statutory Construction: ``When there are general words following particular and specific words, the former must be confined to things of the same kind. This is known as the rule or doctrine of ejusdem generis.' Some judicial statements of this doctrine are here given. ``When general words follow an enumeration of particular things, such words must be held to include only such matters or objects as are of the same kind as those specifically enumerated.' ``The rule is that where words of a particular description in a statute are followed by general words that are not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general words are to be construed as applicable to persons or things, or cases of like kind to those designated by the particular words.' ``It is a principle of statutory construction everywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the broad sense which they might bear if standing alone, but as related to the words of more definite and particular meaning with which they are associated;'" citing numerous cases.

By the second assignment it is insisted that there was no basis for the judgment rendered against appellant, even if article 1050, pleaded by appellee, did apply to railroad companies, for the reason that said statute, being the acts of the Legislature of 1911, was repealed by the act of March 6, 1917 (General Laws 35th Legislature, p. 104 [Vernon's Ann.Pen. Code Supp. 1918, arts. 1050e-1050l]), after the injury of appellee, but before the trial of this cause, and that the latter act has no application to the employment of a child by a railroad company in the capacity in which appellee was employed; that, since article 1050 was repealed by the act of 1917, the employment of appellee by appellant cannot now be held, of itself, to constitute negligence on the part of appellant for which appellee could recover damages for his injuries while so employed. In other words, that, as the latter act repealed the former, all acts in violation of the former, the provisions of which are repealed, and which are not forbidden by the latter, are pardoned, and penalties incurred, or causes of action arising, only by reason of the provisions of such repealed statute, are no longer enforceable; that where an act of the Legislature is repealed without a saving clause it is considered, except as to transactions passed and closed, as though it had never existed.

That it was the intention of the Legislature by the passage of both the Acts of 1911 and 1917 to regulate, and, under certain conditions, prohibit, the employment of children under certain ages in certain places, and by the latter to revise the former and become a substitute therefor; that the latter was intended to cover the whole subject-matter of regulating and prohibiting child labor, and that the passage of the latter had the effect to repeal the former — we have no doubt. 1 Lewis' Sutherland's Stat.Cons. pp. 465, 483, and 515; Rogers v. Watrous,8 Tex. 62, 58 Am.Dec. 100; Voigt v. Ry. Co., 94 Tex. 365, 60 S.W. 658; State v. Ry. Co., 58 Tex. Civ App. 528, 125 S.W. 53; Goodrich v. Wallis,143 S.W. 285; Cain v. State, 20 Tex. 364 and 370; Tunstall v. Wormley,54 Tex. 480.

It is in effect held in all the cases cited that, while the law does not favor repeal by implication, it must be held that a subsequent statute revising the subject-matter of a former one, and evidently intended as a substitute therefor, although it contains no express words to that effect, does operate to repeal the former; that though a subsequent statute be not repugnant to a former one, yet, if it was clearly intended to prescribe the only rules which should govern, it repeals the prior statute.

As before stated, we think it clear that the act of 1917 was intended to be and is in fact a revision of the act of 1911; that it was intended to and does comprehend the entire subject-matter covered by the former, and was intended to be a substitute for all prior statutes on the subject; and that it operates as a repeal thereof by reasonable implication.

Having reached the conclusion that the act of 1917 repealed the act of 1911 pleaded by appellee, we now come to consider the further contention of appellant, that if it be conceded that the general clause "or other establishments using dangerous machinery" found in the act of 1911 did relate to and include railroad companies, that act was repealed before the trial of this cause, and therefore a violation of its provisions was not at the time of trial prima facie evidence of negligence on the part of appellant, as found by the trial court.

We think this contention should be also sustained. In 1 Lewis' Sutherland's Stat.Cons. § 282, p. 544, the general rule affecting causes of action arising upon a law, but tried after the repeal of such law, is stated as follows:

"The general rule is that where an act of the Legislature is repealed without a saving clause it is considered, except as to transactions passed and closed, as though it had never existed."

Again, in section 285, p. 552, the author further states the rule as follows:

"When a cause of action is founded on a statute, the repeal of the statute before final judgment destroys the right, and the judgment is not final in this sense so long as the right of exception thereto remains."

In State v. T. N. O. R. R. Co., 58 Tex. Civ. App. 528, 125 S.W. 53, heretofore cited, it is stated:

"By the repeal of a statute by a later statute on the same subject, all acts or omissions in violation of the former statute are pardoned, and the penalties incurred thereunder are no longer enforceable."

We quote from the syllabus of Goodrich v. Wallis, 143 S.W. 285:

"(1) The right of a wife to recover on a liquor dealer's bond a penalty for the sale of liquor by the dealer to her husband, a habitual drunkard, depends solely on the statute, and may be extinguished by a repeal of the statute.

"(2) Where a statute giving a special remedy is repealed without a saving clause in favor of pending litigation, a pending suit cannot be prosecuted after the repeal."

Quoting from the opinion in that case:

"The fact that the plaintiff's suit was pending at the time of the passage of the last act could make no difference; for it is well settled that if a statute, giving a special remedy, is repealed without a saving clause in favor of pending suits, all suits must stop where the repeal finds them; and, if final relief has not been granted before the repeal goes into effect, it cannot be granted thereafter;" citing Vance v. Rankin, 194 Ill. 625, 62 N.E. 807, 88 Am. St. Rep. 173; P. A. Ry. Co. v. State, 45 Fla. 86, 33 So. 985, 110 Am. St. Rep. 67; Taylor v. Strayer, 167 Ind. 23, 78 N.E. 236, 119 Am. St. Rep. 469.

In Ex parte McCardle (U.S.) 7 Wall. 506, 19 L.Ed. at page 265, the Supreme Court of the United States says:

"On the other hand, the general rule, supported by the best elementary writers (Dwarris on Statutes, 538), is that, ``when an act of the Legislature is repealed, it must be considered, except as to transactions passed and closed, as if it never existed.' And the effect of repealing acts upon suits under acts repealed has been determined by the adjudications of this court. The subject was fully considered in Norris v. Crocker, 13 How. 429, and more recently in Ins. Co. v. Ritchie, 5 Wall. 541, [18 L. Ed. 540]. In both of these cases it was held that no judgment could be rendered in a suit after the repeal of the act under which it was brought and prosecuted." In Norris v. Crocker, 13 How. 429,14 L. Ed. 210, referred to in Ex parte McCardle, it is stated:

"As the plaintiff's right to recover depended entirely on the statute, its repeal deprived the court of jurisdiction over the subject-matter. And in the next place, as the plaintiff had no vested right in the penalty, the Legislature might discharge the defendant by repealing the law."

In England, Chief Justice Tindal, in Surtess v. Ellison, 9 Barb. C., 750, says:

"I take the effect of a repealing statute to obliterate it as completely from the records of the parliament as if it had never passed: and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law."

In 36 Cyc. 1169, the general rule is thus stated:

"When a statute is repealed it must be considered as if it had never existed, except as to vested rights which have accrued under it."

See, also, Anderson v. Byrnes, 122 Cal. 272, 54 P. 822; McNabb v. Trustees, 103 Ill. App. 156.

There are other incidental questions raised by appellant, but in view of our holding on the questions already discussed and decided, we deem it unnecessary to pass upon them in detail, but will overrule them without comment.

For the reasons pointed out, we think the judgment of the trial court should be reversed, and that judgment should be here rendered for appellant; and it is so ordered.

Reversed and rendered.