#### WILLIE McGOWAN v. THE IVANHOE MANUFACTURING COMPANY.

(Filed 7 October, 1914.)

1. Master and Servant — Cotton Mills — Employment of Children — Negligence —Causal Connection — Interpretation of Statutes.

Revisal, sec. 1981 (a), makes it unlawful for any factory or manufacturing plant to work or employ a child therein under 12 years of age, and a willful violation of this section on the part of a mill owner, superintendent, or other person acting in behalf of the establishment, is made a misdemeanor by Revisal, sec. 3362; and it is held that a violation of this statute by reason of which an Injury was caused to such child, unlawfully employed, constitutes an actionable wrong, and whenever the injury has arisen from placing the child at work in the mill and subjecting it to' the risks naturally incident to such work or environment, it is actionable negligence for which a recovery may be had without the necessity of showing that the child received the injury when engaged in the very work he was employed to do or by reason of it.

2. Same — Knowledge Implied.

Where with the knowledge of the owners of a cotton mill, or its superintendent or other agents representing the owner or management of the plant, a child under 12 years of age is permitted to work around the mill, though not on its regular pay roll, or has so continuously worked there that the management or its representatives should have observed that he was so engaged, it is in violation of our statute,' Revisal, sec. 1981 («), prohibiting the working or employment of children at such places under 12 years of age.

3. Same — Trials—Evidences—Acts of Vice Principal — Scope of Employment.

In this case a child under 12 years of age was injured in the lapper room of the defendant cotton mill. There was evidence tending to show that the plaintiff was not on the pay roll of the mill, but had for a length of time been continuously at work around the mill, with the knowledge and approval of the superintendent and foreman; that the foreman of the lapper room, when plaintiff was passing through, ordered and forced him “to throw cotton from the lapper while the machine was in motion,” which resulted in the injury complained of. Held, evidence sufficient to show that the act of the foreman in causing the said injury was within the scope of his employment, and one for which the defendant is responsible, whether at common law or under the provisions of our statute. Revisal, sec. 1981 (a).

Appeal by plaintiff from Peebles, J., át April Term, 1914, of JonN-STON.

Civil action to recover damages for injury done plaintiff while wrongfully being worked at defendant’s cotton mill; plaintiff, at the time of the occurrence, being a minor between 8 and 9 years of age.

It was admitted in the pleadings that Mr. Gordon was superintendent and Mr. Holt was foreman and boss of defendant mill at the time, and as such bad full. “charge, management, control, and supervision, etc., of the lapper.”

*193The plaintiff, a witness in his own behalf, testified, on his examination in chief, as follows: “I was living in Johnston County in 1911, and am going on 12 years old. I worked for the Ivanhoe Mills under Mr. Holt and Mr. Gordon, and I worked as long as I stayed there, twelve months; I did not work every week, or day, during that time; I just went there and they would tell me to go and do so and so. Mr. Gordon paid me a quarter for work and Mr. Holt promised me 20 cents, but never gave it to me. At the time I was injured I started through the lap room, and John Johnston told me to throw the cotton back over the lap pin, and I said, ‘I shan’t do it,’ and he grabbed me by the wrist and forced me to throw the cotton from the lap pins while the machine was in motion, and my hand was caught between the rollers and hurt. My hand was hurt while in the machine. The work I did, I took bobbins out of a quill box and put them into doff boxes under the instructions of Mr. Holt and Mr. Gordon. I done this work in their presence when they were looking at me. They saw me in the mill at work just about every day. I run the waste machine. Mr. Holt instructed me to do it and saw me do it. Also, I went to the store for Mr. Holt to get some soap. I was hurt about 12 o’clock. Dr. Eose attended me. I lost one finger. The doctor attended me about two weeks.”

On cross-examination, he testified: “At the time I was hurt my father and mother both were working in the mill. The day I was hurt my father was working in the speeder room. I was hurt in the lapper room. The lapper room and the speeder room are a good distance apart, and there is a door that goes from the speeder room; there is also a side door. Just before I was hurt I came in the door out of the speeder room into the lapper room. I had been in the lapp.er room before that morning. No one had run me out of the lapper room. When I went in the lapper room Mr. Johnson was weaving the loop about 2 feet from the machine where I was hurt. When he grabbed me, I was in front of the lapper, going towards the side door. He took my hands by the wrist and put them in the lapper and stopped the machine. Just before he caught me, Johnson said: ‘Throw the cotton over the lap pin,’ and I said, ‘I shan’t do it’; then he grabbed me by the hands and put them in the roller. Mr. Gordon paid me something for working around there. Mr. Holt did not pay me anything. My father and mother were both working at the mill, and there was no one left at home. I run the waste machine twice. Mr. Holt promised to pay me 20 cents for both times.”

Eedirect, as follows: “Mr. Holt was foreman and boss of the lapper room; Mr. Johnson run the lapper.”

There was other testimony tending to support the plaintiff’s evidence as to his working about the mill in the presence of the superintendent and foreman.

*194Among other witnesses, Enoch Brewer, on his examination in chief, testified: “Prior to December, 1911, I worked at the Ivanhoe Mills and saw Willie McGowan working in,this mill. I was an extra hand, doing just one thing and another, and I saw Willie McGowan taking up bobbins and putting them in boxes. I saw him do this in the presence of Mr. Gordon and Holt'. I never heard either-Gordon or Holt order him out of the mill. I saw this boy putting on bobbins every day he was there.' I do not know how long I was there. I have seen Mr. Gordon pick him up and put him in the bobbin box. Mr. Holt and Mr. Gordon had charge of the lapper room. Gordon was superintendent and John Johnson had charge of the machines in the lapper room.”

At the close of plaintiff’s evidence, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.

F. H. Brooks and Langston, Allen & Taylor f'or plaintiff.

Abell & Ward for defendant.

Hoke, J.

. Our statute, Rev., sec. 1981 (a), provides that, from and after 1 January, 1908, no child under 12 years of age shall be employed or worked in any factory or manufacturing establishment within this State, and, by section 3362, the willful violation of the former section, on the part of mill owner, superintendent, or other person acting in behalf of the establishment, is made a misdemeanor, except in oyster canning and packing manufactories where the work is paid for by the gallon or bushel.

In several decisions on this subject, notably Starnes v. Mfg. Co., 147 N. C., 556, and Leathers v. Tobacco Co., 144 N. C., 330, it is held that a violation of the statute causing injury to the minor constitutes an actionable wrong, and that it is not necessary to establish a causal connection that the child should have received the injury when engaged in the very work he was employed to do or by reason of it, but it will be held to exist whenever the injury may fairly be said to arise from placing a child of immature years at work in a mill and subjecting it to the risks naturally incident to such work or environment. Speaking to the question in Starnes’ case, Associate Justice Brown, delivering the opinion, said: “It is true that the plaintiff was not engaged in performing his duties in the spinning room, and had gone to the lower floor, where the carding machines were, and got his hand caught in one and badly cut. Under such circumstances there are respectable courts which hold that the injury is not the proximate result of a violation of the statute, because not received in performing the work the child was assigned to do, and that therefore the employer is not liable.

We are not impressed with the persuasive authority of those precedents and are not inclined to follow them. To do so would, in our *195opinion, unduly restrict tbe liability of tbe employer and would be contrary to tbe evident intention of tbe Legislature.

Tbe act was designed not only to protect tbe bealtb, but tbe safety, of children of tender age from tbe indiscretion and carelessness characteristic of immature years. One wbo knowingly and willfully violates its provisions is not only guilty of an indictable offense,, but be commits a tort upon tbe rights of tbe child, and should be judged as a culpable wrongdoer and not as one guilty of mere negligence. Tbe injury done tbe child is a willful wrong and does not flow from -the negligent performance of a lawful act. Tbe distinction between tbe two is well stated by Mr. Justice Walker in Drum v. Miller, 135 N. C., 208.

We think that the breach of tbe statute constitutes actionable negligence wherever it is shown that tbe injuries were sustained as a consequence of tbe wrongful employment of tbe child in tbe factory, in violation of tbe law. In this case we think there is a direct causal connection between tbe unlawful employment- of tbe plaintiff and tbe injuries sustained by him. By employing this boy of 10 years in violation ■of tbe law, the defendant exposed him to perils in its service which, though open to observation, be by reason of bis youth and inexperience could not fully understand and appreciate. “Such cases,” says Judge Cooley, “must frequently occur in tbe employment of infants.”

In that case tbe duties of tbe minor were to sweep out tbe spinning room and make bands, but, on tbe day in question, be went to another part of tbe factory, as be' bad frequently done before, to see bis father, wbo was running a carding machine. When tbe father was 20 steps distant, tending another machine, tbe child attempted to pick a pad of ■cotton off tbe card, and got bis band caught and injured in tbe cylinder of one of tbe machines, and it was held: “There was direct causal connection between tbe unlawful employment of tbe child and tbe injuries sustained by him, for which tbe defendant is liable, occasioned by bis being employed on tbe premises where be was subject, through childish carelessness incident to bis years, to tamper with dangerous machinery.”

In tbe cases referred to, tbe fact of tbe minor being a regular employee was unquestioned, while in this present case it may become a matter of dispute, but tbe language of tbe act is that no child under 12 shall be employed or worked in any factory, etc.; and if this child, though not on tbe regular pay roll, was permitted to work at tbe mill to tbe knowledge of tbe owner, superintendent, or other agent, fairly representative of tbe management, or if be worked there so openly and continuously that tbe management should have observed and noted bis occupation and conduct, bis case would come within tbe terms and meaning of tbe law. According to tbe facts in evidence as they now appear, this plaintiff bad for a length of time been continuously at work *196in tbe mill, witb tbe knowledge and approval of tbe superintendent and tbe foreman; one witness saying be bad observed tbis boy putting on bobbins every day be was there. Tbe plaintiff bimself testified that Gordon, tbe superintendent, bad bimself paid him for work at tbe mill. In addition, plaintiff testifies that on tbis occasion, Jaek Johnson, “who bad charge of tbe machinery in tbe lapper room” (see evidence of Lonnie Carlisle, Eecord, p. 13), ordered plaintiff to do some work there, and when be refused, be grabbed plaintiff and forced him to do tbe work.

It is argued for defendant, as we understand bis position, that tbis was a wanton act on tbe part of Johnson, for which tbe company can, in no sense, be made responsible, and an excerpt from tbe opinion in Starnes’ case is relied upon: “That although defendant bad violated tbe statute in employing a child of tender years, tbe defendant. was not liable for an injury caused by tbe willful and malicious act of a workman in knocking him against dangerous machinery.” Tbe entire portion of tbe opinion on tbis point is as follows: “We do not mean to bold that tbe employer violating tbe act would be liable in damages for every fatality that might befall the child while in its factory. For instance, bad tbe plaintiff died of heart disease, or from a stroke of paralysis, or been seriously injured by tbe willful and malicious act of a workman in knocking him against a machine, or injured from some cause wholly disconnected from tbe unlawful employment, tbe defendant could not be held liable in damages simply on account of tbe employment in violation of tbe statute.” .

It will thus be seen that tbe writer was referring to tbe willful and wanton act of some ordinary employee who, of bis own malicious purpose, might have assaulted tbe child, and tbe suggestion gives no support to ’ defendant’s position on tbe facts of tbe present appeal. As tbe matter now stands, there are facts in evidence which permit tbe inference that Johnson was in charge of tbe machinery of tbe lapper room and, in tbe course and scope of bis employment, ordered tbe boy to do tbe work, and, when be refused, compelled him to do it, and tending to fix responsibility for tbis injury on tbe defendant, either witb or without tbe provisions of tbe statute, under tbe principles presented in Jackson v. Telegraph Co., 139 N. C., 347.

There was error in entering judgment of nonsuit, and tbe same must be set aside.

New trial.