Norman v. Virginia-Pocahontas Coal Co.

PoeeeNBARGBR, Judge,

(concurring):

Seeing no error in the rulings of the trial court, I concur in the decision and in the substance of what is said in the opinion of President EobiNSON, concerning the effect of violation of the statute. It seems to me, however, there is no warrant in the statute for the restricted view, that it was intended merely to protect certain classes of individuals from personal injury. ITnlike a great many other similar statutes, the considerations and policy which induced this enactment are not stated. Mining is not declared a pursuit or occupation, peculiarly dangerous to females and children under 14 years of age. There are many other vocations equally dangerous. One of the purposes may have been protection against injury to persons of immature judgment and discretion, but it seems to me that, in view of our knowledge of the grounds upon ’which such legislation is usually demanded, we might well say the policy of the legislature was rather to prevent children and mothers, or those who may become mothers, from following an occupation, which, on account of its peculiarities, including impure air, exclusion from light and weight of the burden upon the physical nature, tends to the deterioration of the race, neglect of care of infants and demoralization likely to result from association of men and women under such conditions. This broad view of the purposes and objects of the statute reinforce and emphasizes, in my opinion, the conclusion that the legislature did not intend to impose absolute civil liability upon the employer for violation of the statute.

I do not agree that, under this statute, employers must either obtain the affidavits of the parents or guardians of boys to the effect that they are 14 years of age or over, or decide the question for themselves at their peril. There is not a word in the statute which says no evidence other than such affidavit may be considered by the employer. On the contrary, its language imports that he may consider other evidence and satisfy himself beyond doubt that the boy is 14 years of age. He is not required to obtain such an affidavit unless he is in doubt. If he has no doubt, this requirement does not apply. What is a doubt? It is an unsettled state of mind. It is not the question upon which the mind deliberates, ’weighing the evidence pro and con. *417There may be absolute and perfect confidence of the existence of a fact, in which case there is no doubt, and still there may be no such fact. Doubt relates to the mental state or condition. Does a jury have to know to an absolute certainty that a man has committed a crime, before it can find him guilty? There is no law which declares such a doctrine. All that is required on the part of a jury .is belief beyond reasonable doubt. This condition of mind on the part of a jury may exist and the prisoner may nevertheless be entirely innocent. How does a doubt arise ? There- must be something upon which the mind can deliberate as a pre-requisite to either belief or doubt. Hence, when the legis-' lature says “in all cases of doubt/’ it presupposes consideration of something in the nature of evidence. Having said this, it has set no limit upon the amount of evidence that may be considered nor defined its character. Starting with this premise, I read the statute as saying the employer, after having considered all proper evidence, such as the appearance of the boy and information from reliable sources as to his age, shall obtain the affidavits, if his mind has not become settled to the point of belief.. There is a further implication in the statute. It declares it an oifence for any person knowingly to make a false statement, as to the age of any boy under the age of 14 years, applying for work in any coal mine. Plainly, the legislature intended to punish for false statements of this kind all persons who have the right to make truthful statements on the subject. If it had intended to limit such statements to parents and guardians, it seems to me it would have expressed that intention in terms, saying, if any parent or guardian should make a false statement of that kind, he should be guilty of a misdemeanor. The language is broader than this. It includes any person who shall make such a false statement, and this harmonizes with the preceding portion of the statute, impliedly giving to employers the right to consider any pertinent facts, circumstances or statements, bearing on the subject of the boy’s age. I have no doubt that, at common law, employment of a child wholly incapable of intelligent discernment or appreciation of danger, resulting in injury, would be actionable negligence. There the question of negligence would involve an inquiry as to care and prudence in the act of employment. On that issue, all relevant evidence would be admissible. The legislature has done nothing more *418here than establish an age limit, bearing on the question of capacity to comprehend danger and avoid it. Intention to abrogate the common law rules by which the admissibility and probative force of evidence are determinable does not flow from this. If nothing had been said on the subject of evidence or duty, respecting ascertainment of the age of the boy, the common law rules would have remained unbroken; fdx statutes are not deemed to have been intended to displace the common law beyond the limits indicated by the terms used. No other conclusion is possible without the application of a reason or measure of public policy not declared. If the statute had imposed, in express terms, civil liability for known violation thereof, then unquestionably all evidence, tending to prove careful, prudent and diligent inquiry, as to the age of the boy, would have been admissible. In this instance, the legislature did not stop with a mere plain, unequivocal, unqualified interdiction. It went beyond that, and, by the language it used, negatived the implication against the application of common law principles on the subject of employment. By requiring affidavits in all cases of doubt, and only there, it substantially, and I think, plainly said the employer should make diligent, careful and faithful inquiry as to the age of the boy and'be convinced beyond doubt that he is 14 years old or over, before he can lawfully employ him; that, if he is relieved of all doubt upon the subject, by such inquiry, he may lawfully employ him; that if he is in doubt after having made such inquiry, he must obtain the affidavits; and that it should be for the jury to say, upon the evidence adduced, whether, as a reasonable man, the employer had or should have had a doubt, under the circumstances, as in the case of self-defense in criminal law on the question of belief of danger. The subsequent clause,-imposing a penalty for violation of the statute, expressly introduces the scienter as an element. There is no criminal liability except in the case of a wilful and known violation. This penalty is not less than ten nor more than five hundred dollars, or imprisonment in the county jail not less than ten nor more than ninety days, in the discretion of the court. This reflects the intent of the legislature upon the subject we are discussing. These two clauses are in the same section. To my mind, it is inconceivable that the legislature should have intended to make the employer act at *419his peril on the subject of the age of the boy with respect to civil liability, which ordinarily calls for thousands of dollars in case of recovery, while protecting him from a mere fine and slight imprisonment, to the extent of making liability depend, upon his diligence and good faith, respecting the age of the boy.

On this subject, as 'well as the extent of civil liability for violation of the statute, I am disinclined to add anything to its terms. When the legislature has signified its intention, by some statute, to establish a certain line of public policy, courts are often, indeed almost always, called upon to extend that policy, in various ways, so as to include things not expressed by the legislature at all, either as acts forbidden, duties imposed, or measures of enforcement. It is competent for the legislature to define the extent to which it will pursue any given line of public polic3r, and when it has declared that extent, I find no warrant in the law for any addition thereto by the courts. It is likewise competent for the legislature to determine and prescribe such measures or methods as it sees fit, within the constitutional limitations, for the enforcement of its' policy, when it has been declared; and, finding that certain measures or methods, and no others, have been adopted and prescribed, it seems to me the courts ought to presume that no others were intended. Expressio wiwus esb exclusio adterius. Failure to apply this maxim, in such cases, leads to a course of judicial legislation, which might find support in precedents, but none in sound reason or well settled law. I think it safest and best, as well as more consistent with law, to let the legislature declare its own will and purpose.

None of the rulings of the trial court, concerning the duty of inquiry as to age, are at variance with the views I have expressed. Several instructions, offered by the defendant, were refused, but none of them were in proper form.

In the case of Burke v. Big Sandy C. & C. Co., decided simultaneously with this one, some instructions, intended to enforce the principles I have stated, were refused, but another equivalent in effect was given.