The declaration in this case based the right of recovery upon the alleged violation by the defendant of Section 4020 R. G. S., 5946 C. G. L., in that the defendant "unlawfully employed, permitted or suffered plaintiff to work in, about or in connection with defendant's said lumber mill." The statute prohibits the employment of a child under 14 years of age in, about or in connection with any (1) mill, (2) factory, (3) work shop, (4) mechanical establishment, (5) laundry, (6) or on the stage of any theatre.
It is too well settled to require any argument, or citation of authorities, that one must recover, if at all, upon the allegation of his declaration and it appears to me that the proof in this case shows conclusively that the plaintiff was not injured while performing any work in, about or in connection with any mill. The work the plaintiff was doing was entirely disconnected with the mill. It was work required to be done in connection with the business of the operators of the mill but the work being performed by this plaintiff at the time of the injury was no more work in connection with the mill than would have been the feeding of the mule which mule was required to be fed that it might be able to drag the skidder cable from the skidder to the place where the trees were felled and cut into logs. The skidder, the operation of which injured the plaintiff, was a mechanical establishment entirely disconnected with the mill.
As I see it, under the conclusions reached in the majority *Page 212 opinion, it would be unlawful for the operators of a saw mill having an office in a distant city, where the business end of the saw mill operations are transacted, to employ a boy under 14 years of age as an office boy, or to employ a child under 14 years of age in any other capacity where the employment was connected with the business of operating a saw mill, although the employment might be ever so far removed from the hazards incident to the physical operation of the mill. In short, as I see it, there is a vast difference between employment in connection with a mill and employment in connection with the conduct of the business and activities incident to operating a mill.
In this case the operation of the skidder might have been conducted by persons in no way interested in the ownership or management of a saw mill and such persons, in case of an accident like the one before us, might have been liable to a plaintiff such as the one here for an injury received in connection with the operation of the skidder which is a mechanical device or establishment and yet, not have been liable at all to the plaintiff as the operator of the mill.
I think there is a fatal variance between the allegations and proof and for that reason I can not concur in the majority opinion.
ELLIS, J., concurs.