SUPREME COURT OF MINNESOTA. GUTMANN ANDERSON. (No. 21191.)* 1. MASTER AND SERVANT-VICE PRINCIPAL-INJURY TO MINOR BY UNGUARDED MACHINERY. The plaintiff, a minor under 16, was injured while working at a grinder with an unguarded intake gear in the defendant's meat shop. He claimed that he was put to work at the grinder by one Victor, who to some extent, was in charge, and that the work was a dangerous employment forbidden by Gen. St. 1913, §§ 3848, 3870, to boys under 16. No other fault was attached to Victor. Unless the plaintiff was employed in violation of the statute, he could not maintain a common-law action, for, if his employment was "legally permitted." His rights and the liability of the defendant were fixed by the Workmen's Compensation Act (Gen. St. 1913, § 8230g [2].) The court stated to the jury the effect of the statute and the conditions under which the defendant would be liable for the act of Victor in putting the plaintiff at work, and referred to his authority, express or implied in fact, as the representative of the defendant. After a verdict for the plaintiff it granted a new trial upon the ground that it submitted to the jury the wrong test of the vice principalship of Victor, that is, the rank or grade of service, instead of the non-delegable character of the duty resting upon the defendant. It is held that the charge adopted the proper test of vice principalship, namely, the non-delegable character of the duty imposed upon the defendant; that it properly stated the circumstances under which the defendant would be liable for Victor's act; and that a new trial should not have been granted because of the alleged error in the charge. (For other cases, see Master and Servant, Dec. Dig. § 294[6], 366.) Appeal from District Court, St. Louis County; Bert Fesler, Judge. Action by Joseph C. Gutmann, by guardian, against Charles G. AnderVerdict for plaintiff, and from an order granting a new trial for errors of law, plaintiff appeals. Order reversed. son. D. G. Cash and John B. Richards, both of Duluth, for appellant. Larson & Marsch, of Duluth, for respondent. DIBELL, J. Action by the plaintiff, a minor, to recover for personal injuries sustained while in the employ of the defendant. There was a verdict for the plaintiff. The defendant moved for a new trial upon three grounds: (1) That there were errors of law occurring at the trial; (2) that the verdict was not sustained by the evidence and was contrary to law; (3) and that the damages were excessive. A new trial was granted upon the ground of errors of law and the plaintiff appeals. [1] 1. The defendant operated a small meat market in Duluth. The plaintiff, a boy of 14, another boy of about the same age, a man by the * Decision rendered, March 21, 1919. 171 N. W. Rep. 303. Syllabus by the Court. name of Axel Victor, and the defendant constituted the working force. In the shop was a meat grinder operated by electric power. The plaintiff while operating it caught his hand in the intake gear, which was unguarded, and sustained an injury. The right of recovery is grounded upon the employment of the plain tiff by the defendant in a dangerous place about machinery not guarded to the extent practicable. By G. S. 1913, §§ 3848, 3870, the employment of minors under 16 in certain dangerous employments is forbidden. It is clear that the ground stated is that upon which the recovery must rest if any is had in a common-law action. If the plaintiff's employment was "legally permitted" his rights and the liability of the defendant were fixed by the Workmen's Compensation Act and the question of negligence of one party or the other was unimportant. G. S. 1913. § 8230g (2); Westerlund v. Kettle River Co., 137 Minn. 24, 162 N. W. 680; Pettee v. Noyes, 133 Minn. 109, 157 N. W. 995. In the Westerlund Case the question of what constitutes an employment in violation of section 3848 and section 3870 is discussed; and the effect of an employment in violation of these sections upon the provision of the Workmen's Compensation Act (section 8230g [2]) bringing within its operation "minors who are legally permitted to work under the laws of the state" is decided. At the time of the injury the defendant was out of the shop on business connected with it. Victor, a man 33 years of age and of some years' experience in the business, was in the shop. To some extent, at least, he was in charge. The claim of the plaintiff is that Victor directed him to operate the grinder and in giving such direction was a viceprincipal of the defendant. The court stating this claim to the jury, and referring to the responsibility of the defendant for Victor's action, so far as presently material, said: "This is the law on that feature of the case and I will give it to you. It requires you to pass upon the question of fact, and you will bear in mind, as I proceed with the charge and refer to the negligence of the defendant, that as you decide the question of fact one way or the other as to Victor's statuts in that butcher business, you will apply the charge accordingly in determining the question of negligence: If Axel Victor, in defendant's absence from his place of business, was authorized by the defendant to have control over what plaintiff should do, or if defendant knew or under all the circumstances ought to have known that in his absence Victor was in the habit of exercising control over what plaintiff should do, and Victor on June 19th directed the plaintiff to grind sausage, or hamburger, requiring the use of the machine which injured him, you are instructed that the directions of Victor to plaintiff would be in law the directions of the defendant, and, in such case, the defendant would be responsible for any negligent acts of Mr. Victor resulting in injury to the plaintiff, if such act was committed in the course of his employment, or in the line of his duty, with a view to the furtherance of the defendant's business. The fact that Victor may have exceeded his actual authority, or even disobeyed his express instructions, would not alter this rule." A new trial was granted on the ground that the giving of this instruction was error. The view of the trial court was that it left the question whether Victor was a vice principal to the jury, but gave it the wrong test for its determination; or more specifically that instead of making the question determinable upon whether the duty cast upon Victor was a nondelegable duty of the defendant, which is the test of vice principalship in this state, it employed the grade of employment or superior servant rule applicable in some states. The defendant could not employ the plaintiff in violation of the two sections cited without making himself liable for the consequences resulting from the unlawful employment; nor could he evade liability by authorizing Victor to put him at forbidden work. Victor's act in such case would be his act; or we may say, stating it negatively, and it seems to be the same thing, that the duty to refrain from putting a boy under 16 at work forbidden by the statute is nondelegable. The law put upon the employer certain duties or obligations which are nondelegable in the sense that he cannot authorize them to be done by some one else and escape responsibility for the manner or lack of their doing. They can be discharged only by performance. Such in general is the furnishing of a reasonably safe place in which to work; the furnishing of reasonably safe tools and instrumentalities; the proper supervision of the work in certain cases; sometimes warning and instructing; the guarding or fencing of machinery; and in general the doing of such things as are necessary to meet the positive requirements of a statute enacted for the safety of employees. Dunnell, Minn. Dig. & Supp. § 5668 et seq.; 4 Labatt, Mast. & S. § 1495 et seq. The statute which we have cited adopts a definite standard of duty. The employer must not put minors under 16 in certain dangerous employments. The prohibition is absolute. If Victor, under an express or implied delegation of authority from the defendant, put the boy at prohibited work at a dangerous employment in violation of the statute, the defendant was as much liable as if he had done so himself. Victor was then a vice principal, for a vice principal is one, whatever his work, who with competent authority discharges a primary or nondelegable duty of the employer. The defendant cites Pasco v. Minneapolis etc., Co., 105 Minn. 132, 117 N. W. 479, 18 L. R. A. (N. S.) 153. There it was held that the power conferred upon a foreman to direct the work of the employees in the mere manner of its doing did not make him a vice principal. This is a general principle. In the application of it there is often difficulty. It has no special application here for the statute applicable to the situation casts a duty negative in character upon the defendant and it cannot be delegated or evaded. we are unable to hold that the instruction of the court was erroneous. It did not adopt the grade of employment or superior servant rule. It made the defendant liable, if at all, not because Victor was somewhat in control of the plaintiff and had some authority to direct him, but only in the event that he had express or implied authority to put him at the work prohibited by the statute and did so; and in such event the jury was told that his act was the defendant's act. The relative rank or superiority in service of Victor and the plaintiff was not put to the jury as the test. Whether he, under competent authority from the defendant, put the plaintiff at forbidden work, was made the test. The nondelegable character of the duty was the test and not superiority in rank or service. We do not understand that it is claimed that the plaintiff might not have been properly employed about the shop in some capacity without a violation of either section 3848 or section 3870; and we are not now concerned in considering the character of the machinery in use, nor the character of the employment, nor the character of the evidence bearing upon the issue whether Victor did in fact put plaintiff at forbidden employment. We hold the charge was correct and that a new trial should not have been given because of the error alleged in it. [2] 2. The plaintiff may sustain an order granting a new trial upon the ground of errors occurring at the trial if he can show other errors of law, properly raised, sufficient to justify the granting of the motion. McAlpine v. Fidelity, etc., 134 Minn. 192, 158 N. W. 967, and cases cited. No error other than that assigned relative to the charge is particularly urged and we find none. [3] 3. If a new trial is granted because of the insufficiency of the evidence or because of excessive damages the order is not appealable. This is the effect of G. S. 1913, § 8001, subd. 4. McAlpine v. Fidelity, etc., 134 Minn. 192, 158 N. W. 967; Heide v. Lyons, 128 Minn. 488, 151 N. W. 139; Pust v. Holtz, 134 Minn. 266, 159 N. W. 564. The new trial was granted solely because of errors of law at the trial. No other ground of the motion was considered by the trial court. Upon the grounds assigned, other than that of errors of law, the parties have had no decision. Upon the going down of the remittitur they will be for consideration by the trial court. Order reversed. SUPREME COURT OF MONTANA. SHEA NORTH-BUTTE MINING CO. ET AL. (No. 4348.)* 6. MASTER AND SERVANT-WORKMEN'S COMPENSATION -DISCRIMINATION BETWEEN EMPLOYER AND EM PLOYEE. The difference in modes by which employee and employer may indicate their election to be bound by Workmen's Compensation Law is not objectionable on the ground that it discriminates against either. (For other cases, see Master and Servant, Dec. Dig. § 347.) 7. MASTER AND SERVANT-WAIVER OF PROVISIONS OF LAW. It is competent for an employee to waive the advantage of any provision of law which was intended solely for his benefit, so long as the waiver does not violate public policy (Rev. Codes, § 6181). (For other cases, see Master and Servant, Dec. Dig. § 87.) 12. MASTER AND SERVANT-WORKMEN'S LAW-CONSTITUTIONALITY. COMPENSATION The Industrial Accident Board, created by Workmen's Compensation Law, is not an unlawful body because the state auditor is a member. the only limitation found being in Const. art. 4, § 1, forbidding imposition of duties on auditor that appertain to legislative or judicial departments. (For other cases, see Master and Servant, Dec. Dig. § 347.) Appeal from District Court, Silver Bow County; J. J. Lynch, Judge. Action by Murty Shea against the North-Butte Mining Company and Norman Braly. Judgment dismissing action, and plaintiff appeals. Affirmed. H. H. Parsons, of Missoula, E. K. Cheadle, of Lewiston, W. D. Rankin, of Helena, and B. K. Wheeler, and Maury & Melzner, all of Butte, for appellant. L. O. Evans, of Butte, W. B. Rodgers, of Anaconda, and D. M. Kelly, of Butte, for respondents. * Decision rendered, March 8, 1919. 179 Pac. Rep. 499. BRANTLY, C. J. The defendant North-Butte Mining Company is a corporation organized under the laws of the state of Minnesota, and is the owner of mining claims which it is engaged in operating in Silver Bow county. When the cause of action upon which recovery is sought herein arose, the defendant Norman Braly was its superintendent. This action was brought to recover damages for a personal injury alleged to have been suffered by the plaintiff through the negligence of the defendants during the course of his employment as a miner. The complaint is in the ordinary form, and alleges facts sufficient to sustain a recovery, unless a recovery is precluded by the provisions of the act passed by the Fourteenth Legislative Assembly commonly known as the Workmen's Compensation Law (chapter 96, Laws 1915). Denying all the allegations of the complaint charging them with negligence, the defendants alleged as a complete affirmative defense that at the time the plaintiff was injured the defendant North-Butte Mining Company had elected to become bound by Plan No. 1 of the Workmen's Compensation Law, and had performed all the conditions prescribed by the act to render such election effective; that the plaintiff had also, pursuant to the terms of the act, elected to be bound thereby; and that, both plaintiff and defendant NorthButte Mining Company having made their election, the liability of the defendants to compensate the plaintiff for any injury suffered during the course of his employment through any negligent act or omission by them was such only as in that act provided. To this affirmative defense the plaintiff interposed a general demurrer, which was overruled. Thereupon, the plaintiff refusing to join issue by reply, upon application of defendants his default was entered and judgment rendered and entered against him dismissing the action, with costs. From this judgment he has appealed. Plaintiff does not question the sufficiency of the answer to constitute a defense, provided the Workmen's Compensation Law is valid. Quoting from the brief of counsel: "The only question involved in this case is the constitutionality of the Workmen's Compensation Act." The causes, from an historical point of view, impelling the enactment of Workmen's Compensation Laws, and the object to be served by them, have heretofore been stated somewhat at length by this court. Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554; Lewis, & Clark County v. Industrial Accident Board, 52 Mont. 6, 155 Pac. 268, L. R. A. 1916D, 628. It is not necessary to restate them. It is sufficient for present purposes to call to mind that the object sought was to substitue for the imperfect and economically wasteful common-law system by private action by the injured employee for damages for negligent fault on the part of the employer, which, while attended with great delay and waste, compensated those employees only who were able to establish the proximate connection between the fault and the injury, a system by which every employee in a hazardous industry might receive compensation for any injury suffered by him arising out of and during the course of the employment, whether the employer should be at fault or not, except only when the injury should be caused by the willful act of the employee. In other words, the theory of such legislation is that loss occasioned by reason of the injury to the employee shall not be borne by the employee alone, as it was under the common-law system, but directly by the industry itself, and indirectly by the public, just as is the deterioration of the buildings, machinery, and other appliances necessary to enable the employer to carry on the particular industry. To every thinking person the object sought commends itself not only as wise from an economic point of view, but also as eminently just and humane. Such legislation, in whatever form it may provide compensation, has been formulated after the most patient study and investigation by our most eminent men in professional and industrial walks of life, in order to avoid such obstructions or limitations as might be encountered under our written constitutions. A persistent enlightened public opinion |