Opinion
August 5, 1952. Rehearing Denied September 8, 1952.
Appeal from the Circuit Court, Dade County, Grady L. Crawford, J.
Milton Kelner, Miami, for appellants.
Dixon, DeJarnette Bradford and Joseph F. Jennings, Miami, for appellees.
Appellants sued appellees in the Circuit Court of Dade County, Florida, to recover damages for the wrongful death of their infant son.
At the time of his death the boy was nine years of age. He died as the result of falling from and being run over by a truck belonging to appellees, Arnold, and driven by appellee Smith, who was then employed by the Arnolds to work in the grocery store owned and operated by the Arnolds. On this particular occasion and as part of his duties as an employee of the Arnolds, Smith was driving the truck while appellants' son and another boy rode on the running boards of the truck from house to house. The truck was stopped by Smith at frequent intervals when the boys, one or both, would jump from the truck to deliver circulars advertising the Arnolds' grocery business. The appellants' son, Charles Smith, Jr., was riding on the right side of the truck and the other boy, Curtis Lazier, aged eight, was riding on the left side. The truck had been stopped for the boy, Curtis Lazier, to deliver a circular. The truck was then turned around, the gear shift was bad and during the process of turning and attempting gear shifting, the Smith boy fell or was thrown off the running board and under the truck so that the rear wheel of the truck ran over his head causing severe injuries from which he died.
That the employment of the two boys and the purpose of such employment, as well as the position on the running board of the truck where they were required to ride, was known to and approved by defendants, is not disputed.
The defendants, by their pleadings, admit ownership and operation of the truck and the agency of defendant, Earl Gordon Smith, as an employee of the defendants Arnold in the use of the truck and employment of the deceased child.
Defendants interposed as defense of law that Charles Smith, Jr., being employed by defendants Arnold came under the provisions of the Florida's Workmen's Compensation Act, Chapter 440, F.S.A. (F.S. 1952), with specific emphasis on the provisions of Section 440.11.
The lower Court sustained this defense as a matter of law and entered summary final judgment in favor of the defendants.
The record discloses that no effort was made by the defendants to comply with the Child Labor Law of this State, Chapter 450, F.S. 1952, F.S.A. The employment of this child, Charles Smith, Jr., was in direct violation of the provisions of Section 450.03, F.S. 1952, F.S.A., and therefore void. Wechsler v. Novak, 157 Fla. 703, 26 So.2d 884. Section 440.02, F.S. 1952, F.S.A. (Workmen's Compensation Law), defines an employee as including "every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also including minors whether lawfully or unlawfully employed". Appellees lay special stress on the phrase "and also including minors whether lawfully or unlawfully employed". However, the Legislature of Florida has also said by law in effect at the time of this incident, F.S. 1952, Section 450.03, F.S.A. that a child under fourteen years of age cannot be employed under the circumstances of this case. It therefore follows as a matter of legislative intent that the Legislature in using the words "whether lawfully or unlawfully employed" had reference only to minors who could be lawfully employed. Chapter 450, F.S. 1952, F.S.A. was enacted for the protection of children and is not to be brushed aside and set at naught by such untenable theory as that advanced by appellees. Such a construction would render the provisions of the Child Labor Law completely ineffective as to the employment of children by employers coming under the terms of the Workmen's Compensation Act, Chapter 440 F.S. 1952, F.S.A.
Where a minor is of the age to be gainfully employed and is actually employed in accord with the provisions of the Child Labor Law, he might be held to be protected by the provisions of the Workmen's Compensation Law and to be limited to that protection. The employer, if he chooses to employ children, has a duty to the child and society to comply with the Child Labor Law and if he fails in this duty he assumes full responsibility and cannot hide behind the protective provisions of the Workmen's Compensation Act.
We hold that the Circuit Court committed error by its order of January 31, 1952, in striking paragraph 3 of the second cause of action; in denying motion to strike paragraph 10 of the answer and in granting appellees' motion for and entering summary judgment in favor of appellees and against appellants.
The motion for summary judgment on the part of the appellants was, we think, properly denied in view of demand by appellants in their pleadings for jury trial and facts involved. The case should, we think, be tried by a jury.
The cause is reversed and remanded to the lower Court with instructions to vacate and set aside the final judgment and the general order of January 31, 1952, except that portion of the order denying appellants' motion for summary judgment, and to enter new orders and take further proceedings consistent with this opinion.
It is so ordered.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.