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Co., 242 U. S. 539, 37 S. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643, is in point. Quoting from a former decision of the federal court, Mr. Justice McKenna said, at pages 556 and 557 (37 S. Ct. 223):

"A state may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed. * If a class is deemed to present a conspicuous example of what the Legislature seeks to prevent, the Fourteenth Amendment allows it to be dealt with although otherwise and merely logically not distinguishable from others not embraced in the law.''

3. Master and servant 258(7)-Complaint for injuries to minor unlawfully employed held sufficient.

Complaint alleging defendant unlawfully employed a 15 year old child in factory, and after she had worked more than eight hours on day involved, without consent of her parents, had her working at a dangerous machine, consisting of large shearing knife operated by power machinery, which cut off the fingers of her hand while she was so operating it, held to sufficiently charge actionable negligence and show causal connection between alleged negligence and injury.

4. Master and servant 228 (2)—Contributory negligence of minor unlawfully employed no defense.

Contributory negligence of plaintiff under 16 years of age and unlawfully employed is not defense to action for injuries sustained from such employment, under Burns' Ann. St. 1914, § 8020b.

5. Master and servant 95, 204(2), 228 (2)— Unlawful employment of minor negligence per se, precluding defense of contributory negli gence and assumption of risk.

[1] Since the Legislature may have considered that the use of saccharin as an ingredient in bottled soft drinks might be deleterious to health, or that it might be used as a substitute for sugar because of its intensive sweetening power, and since no infringement of the fundamental law appears from the face of the statute, or from facts of which this court can take judicial cognizance, we are not inclined to encroach upon the legislative policy declared in the act prohibiting the use of saccharin in bottled soft drinks. We are of opinion that the act is constitutionally valid and within the inher-ing another may not defend action for damages ent police powers of the state.

Employment of young person without procuring affidavit of parent or guardian as to age, etc.. in violation of Burns' Ann. St. 1914, §§ 8022, 8038, is actionable negligence without defendant's part, and one so unlawfully employregard to any other questions of negligence on

on ground of contributory negligence and as

The judgment of the court of appeals is sumption of risk. affirmed.

Judgment affirmed.

MARSHALL, C. J., and MATTHIAS, DAY, ALLEN, KINKADE, and ROBINSON, JJ.,

concur.

MID-WEST BOX CO. v. HAZZARD. (No. 24159.)

(Supreme Court of Indiana. Feb. 3, 1925.) 1. Master and servant 366-Minor unlawfully employed held entitled to sue for injuries, notwithstanding Workmen's Compensation Act.

Plaintiff under 15 years old, employed without certificate as to her age, in violation of Burns' Ann. St. 1914, § 8022, required to work at particular dangerous work in violation of section 8022e, and to work more than eight hours a day in violation of section 8022b, held entitled to sue for injuries sustained, notwithstanding Workmen's Compensation Act.

2. Master and servant 366-Even before amendments, Workmen's Compensation Act applied only to those lawfully employed.

Even before Burns' Ann. St. Supp. 1921, § 8020h3, declaring Workmen's Compensation Act applicable only to those lawfully employed, the act by necessary implication implied a lawful employment.

6. Constitutional law 70(1)-Courts by construction may not annul statute whether reason for its enactment be logical or not. Courts by construction may not annul statute whether reason for its enactment be logical

or not.

7. Master and servant 282-Damages to servant unlawfully employed held not excessive, though in excess of amount allowable under Workmen's Compensation Act.

That damages awarded for injuries sustained while unlawfully employed are in excess of those which would have been recoverable had the Workmen's Compensation Act, Burns' Ann, St. Supp. 1918, § 802001, been applicable, does not show it excessive or warrant reversal.

Appeal from Circuit Court, Henry County; Fred C. Gause, Judge.

Action by Catherine Hazzard, by next friend, against the Mid-West Box Company. Judgment for plaintiff, and defendant appeals. Affirmed.

George D. Forkner, of New Castle, and Diven, Diven & Campbell, of Anderson, for appellant.

William O. Barnard, of New Castle, and Bagot, Free & Pence, of Anderson, for appel

lee.

EWBANK, J. Appellee, as plaintiff, by her i next friend, sued appellant (defendant) to re

(146 N.E.)

sion and fault of negligence of the defendant, and the result of the unlawful and wrongful acts of the defendant in so trespassing upon her rights as a child in so employing her to work in violation of the statute," etc.

cover damages for loss of the fingers of] as aforesaid of such act; that her said inher left hand, by reason of the knife or shears jury was not an accident incurred in the of a slotting machine at which she was work-line of a legal employment, but was the occaing in defendant's box factory coming down when she was scraping the chips away from it with her fingers. She was only 15 years old at the time, living with her parents near defendant's factory, and had worked more than eight hours that day. Neither of her parents had made an affidavit as to her age, in compliance with the provisions of section 8022, Burns' 1914 (section 2, c. 142, Acts 1899, p. 232), nor had defendant procured the written consent of her parents that she should work more than eight hours a day, in compliance with section 8022b, Burns' 1914 (section 2, c. 209, p. 512, Acts 1911).

The complaint was in two paragraphs. The first alleged that defendant operated a factory equipped with machinery consisting of shears, slotting machine, and various other machinery and devices operated by steam and electric power, in which it employed more than five persons; that plaintiff was only 15 years old; that without the consent of her father defendant unlawfully employed her to work in its factory, but failed to procure from her parents any affidavit or proof of her age, and unlawfully employed her to work at and operate a dangerous machine consisting of a large shearing knife driven by motor power, and used for cutting slots in straw board, which was operated by a trip lever, and was known as a slotting machine, and was very dangerous to operate; that it should have been guarded, but was not; that defendant unlawfully caused and required plaintiff to work more than eight hours during the day that she was injured; that while working at this machine under the circumstances stated, after having previously worked more than eight hours in the factory that day, plaintiff's left hand was caught between the knife and the table on said machine, and four fingers were cut off; and the conclusion was stated that by reason of the facts alleged the relation of master and servant did not exist between her and the defendant.

The second paragraph of complaint alleged substantially the same facts as the first, but charged that the defendant committed a trespass upon and against plaintiff by so employing her, and also averred that she was injured "while by reason of her tender age and inexperience she was unable to know or appreciate the danger of said machine, or the manner of operating the same, or the manner of avoiding injury in the operation thereof," and "that she never consented to work under the Workmen's Compensation Act of the state of Indiana, and was never bound thereby; that on account of her tender years and her infancy aforesaid she was incapable of knowing or understanding the nature or character of said act, and had no notice or knowledge

By a special plea denying the jurisdiction of the court for the alleged reasons that the defendant was operating under the Workmen's Compensation Act, that plaintiff had not given notice that she rejected the provisions of that act, but had accepted them, and that her claim never had been submitted to nor acted upon the industrial board, and also by demurrers to each paragraph of the complaint, by an answer to the complaint, by offers to introduce evidence and objections to evidence that was introduced, by objections to instructions given, and by challenging the sufficiency of the evidence to sustain the verdict, appellant has presented the question whether or not the fact that plaintiff was employed and caused to work in the factory with the machine that injured her, in violation of certain statutes of this state, gave her the right to bring and maintain an action for damages, notwithstanding the provisions of the Workmen's Compensation Act. That nothing in that act, as it read in the summer of 1917, when plaintiff suffered the injury sued for, precluded an action by a child of 15 years to recover damages for personal injuries sustained while doing work for which she was employed, and at which she was set in violation of the express terms of a statute, has been decided by this court.

New Albany Box, etc., Co. v. Davidson, 189 Ind. 57, 68, 125 N. E. 904. In the case cited the court said (page 60 [125 N. E. 905]):

* ** *

"For the purpose of the case, it may be conceded that the appellant at the time in question was operating under the Compensation Act. It is not denied, and the record shows. that the appellee at the time was under 16 years of age; that the affidavit required by said section 8022, Burns' 1914, supra, was never procured, and it also appears that in violation of section 8022e, Burns' 1914 (Acts 1911, p. 511, § 5), the appellee was employed to assist in the operation of a wood joiner or shaper, which was a dangerous machine operated by

steam."

And at page 68:

"We think that a fair construction of the Indiana Workmen's Compensation Act requires us to hold that in enacting the law with reference to the rights and remedies of employers and employés the Legislature referred to legal employment. In the instant case the appellee was employed in direct violation of sections S022 and 8022e of the statutes, supra, and, such being the case, the employment was illegal, and he is not embraced within the provisions of the Workmen's Compensation Act, and his action

was properly brought." New Albany Box, etc., the effect that if plaintiff was living with her Co. v. Davidson, supra.

parents and was employed in defendant's [1] So in the case at bar, as alleged in the factory and set to work at the dangerous complaint, the plaintiff was employed to work machine, and was thereby injured, reciting in the factory without an affidavit of either the facts substantially as alleged in the comof her parents as to her age, in direct viola-plaint, and if the defendant neither at the tion of section 8022, supra, was set to work time of so employing her nor thereafter prowith a large shearing knife operated by pow-office an affidavit of her parent or guardian cured to be provided and placed on file in its er machinery, in violation of section 8022e, and being so employed without the consent of her parents, she was required to work in the factory more than eight hours, in violation of section 8022b, Burns' 1914 (section 2, c. 209, p. 512, Acts 1911). And the employ ment not being lawful, plaintiff's right of action was not barred by the Workmen's Compensation Act, and the court had juris

diction of this suit.

[2] Since plaintiff suffered the injury sued for, the Legislature has amended the Workmen's Compensation Act by inserting the word "lawfully" in the provision under consideration which is thus made to read as follows: "Employee shall include every person, including a minor, lawfully in the service of another under any contract of hire or apprenticeship," etc. Section 8020h3 (b), Burns' Supp. 1921 (section 76, c. 57, pp. 158, 175, Acts 1919). But as it read before the amendment was made the provision quoted necessarily implied a lawful employment. New Albany Box, etc., Co. v. Davidson, supra. No error was committed in the several rulings upholding the jurisdiction of the circuit court as against the objection that the industrial board had exclusive jurisdiction.

[3] The allegations that defendant, in violation of law, took a child of 15 years into its employ in a factory, and, after she had worked more than eight hours on that day. without the consent of her parents, had her working with a dangerous machine that consisted of a large shearing knife operated by power machinery, which cut off the fingers of her hand while she was so operating it, sufficiently charged actionable negligence, and sufficiently showed a causal connection between the alleged negligence and the injury. The complaint stated a cause of action.

[4] An instruction was given to the effect 'that if plaintiff was under 16 years of age and was employed by defendant in violation of either of said statutes, and without complying therewith, and if her injuries were received while performing her duties under such unlawful employment, and were the proximate result thereof, plaintiff's own contributory negligence, if any, would not be a defense to her action for damages. This was correct. Contributory negligence is not a defense where the violation of a statute on the part of the employer caused an injury to an employé. Section 8020b, Burns' 1914 (section 2, c. 88, p. 146, Acts 1911).

stating her age and the place of her birth,
such facts would establish defendant's lia-
bility for actionable negligence, "without re-
the part of the defendant." And it also gave
gard to any other question of negligence on
another instruction to the effect that—

"a person or corporation employing a young
person to work in a factory without first pro-
curing the affidavit heretofore referred to in
these instructions cannot defend an action for
damages growing out of such employment on
the ground of contributory negligence, or on
the ground that such young person assumed the
risk of such employment, or on the ground that
fellow servant."
such injuries were due to the negligence of a

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It has been held repeatedly that where a child is employed in direct violation of the express provisions of a statute to do work by which it is injured, such violation of the statute constitutes negligence per se. Waverly Co. v. Beck, 180 Ind. 523, 525, 103 N. E. 332; Inland Steel Co. v. Yedinak, 172 Ind. 423, 437, 87 N. E. 229, 139 Am. St. Rep. 389; Capital Rattan Co. v. Fancher, 64 Ind. App. 685, 689, 116 N. E. 593.

[6] But counsel for appellant deny that the facts of this case are within the rule declared by those authorities, saying that the statute above quoted does not make the "young person" incompetent, since the affidavit of a parent or guardian could not affect the competency of the child to perform the work of an employment. However, the statute expressly enacts that it shall be unlawful to employ any young person to work in a manufacturing establishment without such an affidavit. And whatever may be the reason which prompted its enactment, whether logical or not, the courts may not annul it by

(146 N.E.)

deeming all "young persons" prima facie in

Jan. 29, 1925.)

1. Mechanics' liens 58-Materialmen and laborers making repairs under contract with tenant held to acquire lien against landlord's interest.

Where, by express terms of lease, tenant was, as a part of consideration for lease, to furnace of not less than $1,800, materialmen make repairs to building including repairs on and laborers making repairs on heating plant under contract with tenant, acquired a mechanic's lien against interest of landlord.

capable of working with safety to themselves MANCOURT v. WISSEL et al. (No. 12041.) in factories and other places enumerated in (Appellate Court of Indiana, Division No. 2. the statute, where power machinery is used, yet recognized the fact that by reason of earlier maturity, greater intelligence, quickness or skill, the occasional child might be capable of doing such work. And it may be that the parent or guardian, who should have knowledge of the actual capacity and ability of the particular child, was chosen to determine whether or not its employment at such work should be permitted. Or, it may be that this provision was enacted to insure that no children should be so employed before reaching the minimum age at which the law permits them to be employed at all, by insuring that the employer should know the child's real age. But whatever the legislative purpose, the language of the statute above quoted is too plain to be misunderstood, and makes it unlawful to employ in a manufacturing establishment a girl only 15 years of age, without the required affidavit. Anything to the contrary in the opinion of the court in Gifford v. Haynes Automobile Co. (Ind. App.) 136 N. E. 88, is disapproved. No error was committed in giving the instructions referred

to.

[7] It is complained that the damages awarded by the verdict are excessive, and counsel suggest by way of argument that for the loss of a hand while employed at the wages she was receiving plaintiff would have had less than $800, paid in 200 weekly installments, if her case had been governed by the provisions of the Workmen's Compensation Act in force at the time of the injury. Section 802001, Burns' Supp. 1918 (section 31, c. 106, pp. 392, 400, Acts 1915). But the verdict has been approved by the trial court, and nothing except the discrepancy between it and the amount which would be awarded by the industrial board for a like injury has been suggested as indicating prejudice, partiality, or corruption. The award of compensation by the industrial board is the same in all cases, whether the particular injury was due to negligence or fault of the employer or not. But a child not lawfully employed can only recover damages by showing that the defendant was at fault in the matter. Therefore, the damages to be recovered are on a wholly different basis, and the schedule in the Workmen's Compensation Act affords no criterion by which to measure the damages in this action. The damages are not so clearly excessive as to justify setting aside, on appeal, a verdict which has been approved by the court below. And for the reasons suggested, no error was committed in refusing to permit the schedule of compensation paid for different injuries under said act to be read in evidence. The judgment is affirmed.

2.

Appeal and error 733—Error not assignable on trial court's action in rendering judgment on cross-complaint.

Error could not be assigned in action to enforce a mechanic's lien against landlord's interest in property leased to tenant, on rendition of judgment for tenant on cross-complaint of landlord against tenant, and where such question was not presented in assignment that court erred in overruling motion for new trial, it could not be considered.

3. Appeal and error 204(1)—Errors in admission of evidence waived where no objection made or exception taken.

Errors in admission of evidence are waived where no objection is made to the evidence and no exception taken to action of court in admitting it.

W. T. Gleason, Judge.
Appeal from Superior Court, Vigo County;

Action by Charles W. Wissel and others against Martha I. Mancourt and another. Judgment for plaintiffs, and the named defendant appeals. Affirmed.

Cooper, Royse, Bogart & Gambill, of Terre Haute, for appellant.

John O. Piety, of Terre Haute, and Wm. F. Elliott, of Indianapolis, for appellees.

NICHOLS, J. Action by appellees Wissel and Christman against appellant and appellee Powl for the foreclosure of a mechanic's lien.

Appellees, Wissel and Christman charge that they made certain repairs on a heating plant, which was located on real estate belonging to appellant, and that such repairs were ordered by appellee Powl, under a lease between appellant and appellee Powl, whereby appellee Powl agreed at her own expense to make necessary repairs on the leased property including the heating plant, expending therefor not less than $1,800. The suit was originally brought against both appellant and appellee Powl, but was later dismissed as to Powl.

Appellant's demurrer to the complaint was overruled, and thereupon she filed answer to the complaint first, a general denial, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

an affirmative answer alleging that appellant | Mich., the authority to make arrangements had never contracted with appellees Wissel for the renting of these premises, and Husand Christman for the repairs on the heat- ton thereafter communicated with him coning plant, and that they did the work for cerning the leasing; that in February, 1923, which the mechanic's lien is sought to be Huston entered into negotiations with apforeclosed under an agreement with appellee pellee Ida Powl for the renting of the hotel Powl, which agreement was made in accord- part of the premises; that at the time Husance with the terms of a lease between ap- ton and appellee Powl were negotiating with pellant and appellee Powl, wherein appellee reference to the lease, it was understood by Powl agreed to make necessary repairs to appellee Powl that the premises were in bad the heating plant at her own expense. A de- repair, and that it would be necessary for her murrer to this paragraph of answer was sus- to make extensive repairs prior to occupytained. ing them. After some negotiations, during the course of which Huston told her that the furnace in the premises was in first-class condition, and that appellant had to'd him that if she rented the premises he could guarantee the furnace to be in first-class condition, and that appellant had told him that she had spent over $600 in repairing the furnace and it had never had a fire in it, the following agreement, with reference to the repairs, was written in the lease:

Appellant also filed a cross-complaint against appellee Powl, setting up the lease, and asking that if any judgment be rendered against appellant on account of the repairs to the heating plant, the property of appellee Powl be first exhausted before the property of appellant be attached.

Appellee Powl filed a cross-complaint against appellant, alleging that appellant had falsely represented to appellee Powl that the heating plant was in good condition, and "As part of the consideration of this lease, asked that appellee Powl be awarded judg- the lessee agrees to make all repairs to the ment against appellant in such sum as appel- building before moving in, which includes palee Powl might be required to pay appellees pering and painting all rooms, making all necWissel and Christman, and that any judg-essary repairs to plumbing to put it in sanitary ment rendered against appellees Wissel and and useful condition, necessary repairs to heatPowl be satisfied from the interest of ap-interior woodwork of building in good repair, ing plant, repairs to lighting fixtures, keeping pellant in the real estate. However, as noted above, the action was dismissed as to Powl.

There was trial by the court, which resulted in a judgment against appellant for $1,720, and foreclosing the mechanic's lien, and against each of the cross-complainants on their respective cross-complaints. From this judgment, after appellant's motion for a new trial was overruled, this appeal.

There is little dispute with reference to the material facts involved in this appeal, and the same question of law arises with reference to the overruling of the demurrer to the complaint, to the sustaining of the demurrer to the second paragraph of answer, and, under the motion for a new trial, as to whether or not the decision of the court is sustained by sufficient evidence and is contrary to law.

making a total expenditure of not less than $1,800 on said repairs prior to April 1st; making an expenditure of not less than $1.800 which shall be evidenced by receipted bills for lessor's inspection and returned to lessee."

Shortly after March 1st, appellee Powl started to make repairs on the leased premises in accordance with the provisions of the lease, and discovered that the boiler of the heating plant had been frozen and that it would be necessary to make extensive repairs on it in order to make it useful. She then went to Huston, told him about the condition of the boiler and told him that she believed that appellant should put the boiler in workable condition on account of the fact that appellee Powl had been informed by Huston during the negotiations that the boiler was in good condition. Huston told appellee Powl that he would write to E. M. Mancourt, the brother, with reference to fixing the boiler, but that in the meantime he thought that appellee Powl should proceed and have the boiler repaired, and advised her to go to appellees Wissel and Christman and have them make the necessary repairs. Huston did write to E. M. Mancourt with ref

The evidence shows, so far as here involved without any substantial conflict. that appellant was, in 1923 and still is, the owner of a lot in the city of Terre Haute, upon which there is situated a three-story brick building: that the lower floor of the building is occupied as storerooms, with the exception of one room which is called the oference to repair of the boiler, but he repudifice; that the upper floors of the building are used as a hotel; that in the early part of 1923, appellant gave to one Huston authority to obtain a tenant for the hotel part of the property owned by her; that soon after Huston had received authority to obtain a tenant for the premises, appellant turned over to

ated any responsibility with reference to the condition of the boiler, and wrote that appellee Powl would have to have the boiler repaired at her own expense.

[1] Under these facts, it is apparent that if appellant is liable it is because of the stip ulations of the lease under which and as a

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