Hartwell Handle Co. v. Jack

I go with the majority of the members of the court in holding that a violation by an employer of section 1 of the Child Labor Statute, constitutes negligence per se on the part of the employer, and where the child receives an injury while so employed, such negligence on the part of the employer is the proximate cause of the injury. But I cannot go with the majority opinion in holding further that the statute means that the child under fourteen years of age so employed is incapable of contributory negligence. In considering this question it should be borne in mind that the statute does not provide civil liability by an employer for a violation of its terms. It is a criminal statute, intended to conserve the moral, mental, and physical welfare of children under the ages named therein. In order to carry out that purpose, I think the courts are justified in imposing civil liability on the employer for an injury resulting from a violation of the statute. But why go further? What sound reason is there for holding that the statute meant to declare that a child under fourteen years of age is incapable of contributory negligence? The statute does not say so, either expressly or impliedly. Under the common law, a child under fourteen years of age, of sufficient understanding and judgment, is capable of contributory negligence. When a statute undertakes to change the common law, it must either do it expressly or by necessary implication. A statute in derogation of the common law is to be strictly construed. It is to be construed in reference to the principles of the common law. It is not to be presumed that the legislature intended to make any innovation upon the common law, further than the necessity of the case absolutely required. Edwards v.Goulding, 38 Miss. 118; Hollman v. Bennett, 44 Miss. 322;Dibrell v. Dandridge, 51 Miss. 55; Shattuck v. Miller,50 Miss. 386; Potter v. Fidelity Deposit Co., 101 Miss. 823, 58 So. 713.

The majority opinion, in effect, holds that the Child Labor Statute repeals, in part, the Comparative Negligence Statute, chapter 312, Laws 1920 (Hemingway's 1927 Code, section 516) which provides that all actions for personal injuries, or where such injuries have resulted in death, or for injuries to property, the fact that the person injured, or the owner of the property, or person having control over the property, may have been guilty of contributory negligence, shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.

When that statute was enacted the common-law rule in this state was that, where the negligence of the plaintiff injured, or whose property was injured, proximately contributed to such injury, the plaintiff was barred from recovery therefor. The purpose of the statute was to abolish contributory negligence as a complete defense in such cases, and to provide that it should be a partial defense — that such negligence could only be used by the defendant in mitigation of damages. This statute applies, as did the common-law rule, which it modified, to any person capable of contributory negligence, whether such person be an adult or a minor. Certainly the Child Labor Statute, by its express terms, does not conflict with the Comparative Negligence Statute. This court has declared, time and time again, that the repeal of a statute by implication will be looked upon with disfavor by the courts; that where statutes are seemingly in conflict the courts will, if possible, adopt such a construction as will give effect to both; that the intention of repealing an existing statute by implication must clearly appear in the repealing act; that the two acts must be irreconcilable; that both cannot stand up together. A few of these decisions by our court are Smith v. Vicksburg, 54 Miss. 615; Campbell v.Bank, 74 Miss. 526, 31 So. 400, 23 So. 25; Owens v. R.R.Co., 74 Miss. 821, 21 So. 244; Ascher v. Moyse, 101 Miss. 36, 57 So. 299; Gilmore Co. v. Wells Co., 103 Miss. 468, 60 So. 580; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703.

I am unable to see any reason why the Child Labor Statute, the common-law rule that a minor capable of contributory negligence is chargeable therewith, and the Comparative Negligence Statute, may not all stand up together. There is no provision in either of them which conflicts, either expressly or impliedly, with any provision in the other.

The holding of the majority opinion is not necessary in order to accomplish the purpose of the statute. A minor of sufficient judgment and discretion to be guilty of contributory negligence, who accepts employment in violation of the Child Labor Statute, thereby participates in the wrong done by the employer; morally one is as guilty of the wrong as the other. I am unable to see any difference between this class of cases and other cases of negligence on the part of defendants and contributory negligence on the part of minor plaintiffs.

It is true that 39 C.J. pp. 906 and 907, states that the rule laid down by the controlling opinion in this case is the majority rule; still, the cases in the notes to support each rule are set out, and it is rather difficult to tell from them which is the majority rule. Certain it is, though, that the notes show that the minority rule is supported by ample authority from several different states.