Opinion
No. 7053
Submitted March 24, 1932.
Decided April 19, 1932.
Error to Circuit Court, Ohio County.
Action by Paul E. Dale against the Wheeling Steel Corporation. Judgment in favor of the plaintiff, and the defendant brings error.
Affirmed.
Wright Hugus, J. E. Bruce and R. A. Klieves, for plaintiff in error.
John P. Arbenz, for defendant in error.
This is an action of damages for a personal injury. From a judgment in favor of plaintiff, the defendant secured a writ of error in this Court.
The defendant demurred to the declaration and each count thereof in the lower court, and now insists upon its demurrer here. The declaration has two counts, which will be taken up as numbered.
First count. This count alleges, in brief, that on February 8, 1926, the defendant was engaged in manufacturing and preparing for sale and shipment, metal sheets and metal products of various kinds; that it was its duty to employ such workmen as it might lawfully employ, but that it disregarded the laws of West Virginia and unlawfully employed the plaintiff, who was then only fifteen years and eight months of age, who was without experience in the work of defendant, and who was given no instruction (in the language of the count) "as to the dangerous character of the work at which he was thus unlawfully employed; and as the proximate result of his said unlawful employment by the defendant, as aforesaid, he * * * was then and there severely * * * injured", etc. This count was drawn with reference to Code 1923, ch. 15-H, sec. 72, which forbids the employment of a child under the age of sixteen years in any mine, quarry, tunnel or excavation and "in any occupation dangerous to the life or limb * * * of such child." The count contains no allegation and no statement of facts showing that the occupation of plaintiff under the defendant was dangerous. As the count is predicated solely on the theory that the work conducted by defendant was unsafe and the employment of plaintiff unlawful under the statute, the danger of the occupation should not be left entirely to a mere recital or to judicial inference. The court might assume that some of the work in manufacturing and shipping metal products is necessarily perilous, but the court must also assume that some of the work (office work for instance) in such a business is not inherently hazardous. The count is, therefore, defective in failing to contain averment that the work assigned to plaintiff was dangerous, and the demurrer to it should have been sustained. This error does not affect the integrity of plaintiff's judgment, however, as his counsel announced in his opening statement at the trial that he would base his case solely upon an unlawful employment, and consistent therewith he offered no evidence to show that the work was dangerous to children.
Second count. This count quotes the paragraph of sec. 73 of ch. 15-H, Code, which provides that no child between the ages of fourteen and sixteen shall be permitted to work "in any gainful occupation", unless the employer "obtains and keeps on file * * * a work permit issued by the superintendent of schools", etc.; and the count alleges that the defendant did not secure such permit, and as the proximate result thereof, the plaintiff was injured. A count based on this very section and similar in all material respects to this count was held sufficient "to show prima facie negligence" in the well considered case of Bobbs v. Press Co., 89 W. Va. 206, 210, 108 S.E. 879. Consequently, the sufficiency of this count is not an open question, and the demurrer thereto was properly overruled.
At the trial the plaintiff rested his case on proof of his age and his injury in the employment of defendant, and that it had not secured the statutory work permit. This proof made a prima facie case. "The employment of a child in a gainful occupation without such permit is as much of a violation as the employment of the child under the age prohibited by the statute. The object of each is the same. The principle accentuated in our decisions above cited controls here. We therefore conclude that the employment of such child without the work permit, and the subsequent injury in the course of the employment, makes a prima facie case of negligence on the part of the employer." Bobbs v. Press Company, supra. It is contended that plaintiff's case is rebutted by his admissions that at the time of the injury he was 15 years and 8 months of age, he had completed the seventh grade in the public schools, and that he weighed 158 pounds and in general appearance "looked like 19" (years of age). A brief reference to sections 72 and 71 will throw light on this contention. Section 72 treats solely of occupations which are dangerous to children; 71 and 73 relate solely to gainful occupations which are not dangerous to children. Section 72, without any qualification whatever, forbids the employment of a child under the age of sixteen years at a dangerous occupation; 71 forbids the employment of a child under the age of fourteen years in connection with even a gainful occupation, except agriculture, domestic service, mercantile establishments and business offices. Section 73 opens wide the door to the employment of a child between the ages of fourteen and sixteen in any gainful employment (not dangerous to childhood), but upon strict condition that the employer secure a work permit for the child from the local superintendent of schools. The superintendent is authorized to issue the permit (during a school term as in this instance) only upon written proof of four concurrent facts: (1) that the prospective employment is legal, i. e. is not dangerous to children; (2) that the child is of the specified age — fourteen to sixteen; (3) that the child can read and write and has satisfactorily completed the sixth grade in public schools; and (4) that the child is normally developed, is in sound health, and is physically able to perform the intended work. (Proof of educational qualification is not required during vacation). So, in order to rebut the plaintiff's case, it was necessary that each of these four statutory facts be proven. It does appear that the plaintiff was of permissible age (2), was educationally qualified (3), and perhaps was physically fit (4); but the initial requirement (1) does not appear, to-wit, that the work was not dangerous to children. We would not assume for plaintiff (in relation to the first count of the declaration), that the work was unsafe; and we cannot assume now for defendant that the work was safe. Therefore, the defendant failed to rebut the plaintiff's case.
Errors alleged by defendant as to the giving and refusal of instructions are not of consequence in view of its failure to withstand the plaintiff's case. Reilly v. Nicoll, 72 W. Va. 189, 77 S.E. 897. The fact that plaintiff misrepresented his age to defendant does not preclude his recovery. Norman v. Coal Co., 68 W. Va. 405, 69 S.E. 857; Blankenship v. Coal Co., 69 W. Va. 74, 70 S.E. 863; Bowling v. Lbr. Co., 105 W. Va. 309, 311, 143 S.E. 86. Section 74a provides how an employer should proceed with a child desiring employment, who represents his age to be sixteen years or over.
Perceiving no error prejudicial to defendant, the judgment of the circuit court is affirmed.
Affirmed.