The plaintiff (appellee), a minor suing by next friend, was accorded a judgment against defendant (appellant) because of physical injury suffered by him while in the employment and service of the defendant. The plaintiff was 12 years of age when he was injured.
The insistence that count 2 was defective and demurrer thereto erroneously overruled is not well founded. That count was not demurrable.
The report of the appeal will reproduce count 6. The court overruled the demurrer to this count, proceeding, it seems, on the correct and applicable theory that the doctrine of these decisions justified its conclusion. De Soto Mining Co. v. Hill,179 Ala. 186, 60 So. 583; Cole v. S. S. S. I. Co.,186 Ala. 192, 65 So. 177, Ann. Cas. 1916E, 99; Brilliant Coal Co. v. Sparks, 16 Ala. App. 665, 81 So. 185, a decision of the Court of Appeals of which (the law thereby declared, as distinguished from conclusions of fact) this court said in response to petition for certiorari:
"The court holds that there was no error in the rulings on the pleadings, and finds no occasion to add to what the Court of Appeals has said on that subject"
— declining, as often before, to review that court's conclusions pertaining to evidence, and citing Postal Tel. Co. v. Minderhout, 195 Ala. 420, 71 So. 91, where previous decisions were noted. The Child Labor Act of 1915 (Gen Acts, pp. 193 et seq.), under the provisions of which count 6 is drawn, does not provide that the employment of a minor is a forbidden service shall be knowingly done, as was the case in the child labor law contained in chapter 184 of the Criminal Code of 1907, a distinction that was noted in De Soto Mining Co. v. Hill, 179 Ala. at pages 194, 195, 60 So. 583. The effect of the Child Labor Act of 1915 (cited ante) was to inhibit the employment of minors, of defined ages, in any of the gainful occupations within the purview of that enactment. Knowledge, belief, motive, or intent are not essential to a violation of the rule of the Child Labor Act of 1915; the inhibition of the act, regardless of scienter, is the design and effect of that statute. State ex rel. v. Southern Exp. Co.,200 Ala. 31, 75 So. 343, 348, et seq. The pertinent contrary doctrine of Gordon v. State, 52 Ala. 308, 23 Am. Rep. 575, Adler's Case, 55 Ala. 16, and Gandy v. State, 82 Ala. 61,2 So. 465, was denied application or operation in De Soto Mining Co. v. Hill, 179 Ala. 195, 60 So. 583, where the statute there considered was similar in design and phraseology to that now under review.
At the instance of the plaintiff (appellee) the court instructed the jury that, if the plaintiff was entitled to recover under the pleaded theory that this minor was employed in violation of the Child Labor Act of 1915, which penalizes any infraction of its mandates, the plaintiff might be awarded punitive, exemplary damages, claimed in count 6. This was error of a highly prejudicial character. There was no evidence that the employment of this minor was characterized by any purpose or intent, positive or otherwise, on the part of any one to inflict injury upon him, and there was no evidence that malice of any kind, entertained by any one, characterized the act of employing him in the service in the performance of which this minor was injured. In the absence of such circumstances as our statement indicates, there was no possible right in the plaintiff to recover exemplary damages. In this jurisdiction the violation of, or the failure to observe, the mandate of a statute — even when its observation is enjoined by penal provisions — has always been held to constitute simple negligence only; and in no case of which this court is aware has it been decided that a wrong is willful or wanton solely because the act or omission, proximately causing the injury, was committed or omitted in violation of a penal statute. It cannot be ascertained from the record here what part or proportion of the sum stated in the verdict was awarded as or for nonrecoverable exemplary damages.
For the error indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *Page 590