Gulf, Colorado and Santa Fe Railway Co. v. Redeker.

think the court erred in charging the jury that notice to Cochran after the fire commenced was not sufficient to bind appellee.

It is not a case of two parties making a contract of insurance upon property already lost, agreeing to date it from a past day, both being, at the date of the contract, ignorant of the loss. When the notice was given the fire was in progess, and appellants knew it. The seventh assignment of error is, "that the court erred in refusing the charges asked by plaintiff." The charges asked are three in number. Such an assignment is not in accordance with the rule, and according to the uniform line of decision in this court, will not be considered.

The refusal of the court to permit appellants to show by witnesses Cotton and Cochran why more of the insurance designated by Cochran on December 2 was allotted to the Traders' Insurance Company, is also assigned as error; but this, if error, did not prejudice appellants' case. The record shows that the case was tried without any reference to that company, and in the charge the liability of appellee is not made to depend, in any respect, upon the fact that that company was a party to the original contract between its agents and Cochran. Appellants therefore were not prejudiced by the ruling of the court excluding the testimony.

The ninth assignment is that the court erred in overruling the motion for a new trial. The main grounds of this motion raised the other questions already passed upon, and need not be discussed further.

Because we find no error in the judgment, it is affirmed. Judgment affirmed.

GULF, COLORADO AND SANTA FE RAILWAY Co. v. REDEKER.

(67 Tex. 190.)

Parent and child — action for injury to child employed in dangerous business.

To sustain an action by a father for an injury to his minor child employed in a dangerous business without his consent, the defendant must be averred and proved to have known of the minority.

CTION for negligent injury to plaintiff's minor child. The The plaintiff had judgment below.

A case.

opinion states the case.

Gulf, Colorado and Santa Fe Railway Co. v. Redeker.

Davis, Beall & Rogers, for appellant.

W. McLaury and Ball & McCart, for appellee

GAINES, A. J. Appellee brought this suit in the court below, alleging in substance that appellant, without his consent, employed his minor son, J. W. Redeker, as a brakeman on its road, and while so employed the son was injured through the negligence of appellant, and that thereby appellee lost his services and was put to expense, etc.

The charge of the court is assigned as error, and in so far as it relates to appellee's right to recover, is as follows: "You are instructed that the law is, the father is entitled to the services of his minor son during minority, and the minor son cannot, without the consent of his father, make legal contracts; nor without such consent, either before or by acquiescence after knowledge of the father, engage in business for himself. If you believe that J. W. Redeker was at the time of the injuries a minor under twenty-one years of age, and that he, without his father's consent or knowledge, had engaged himself to defendant company, and whilst so engaged received the injuries alleged in the plaintiff's petition, then the plaintiff will be entitled to recover."

By these instructions the liability of appellant is made to depend upon its employment of the son without the father's consent and his consequent injury, without reference to the question of knowledge of the son's minority on the part of the company's agents or of any subsequent negligence.

There can be no question, that if the injury was the result of negligence, as alleged in the petition, the father was entitled to a judgment for damages for loss of service and incidental expenses accruing from the injury. H. & G. N. R. Co. v. Miller, 49 Tex. 322. We are also of opinion that where one knowingly engages a minor in a dangerous employment without the father's consent, and the minor is injured in such employment, he is responsible to the father for any consequent loss of the sou's services to him. This is clearly decided by the Kentucky Court of Appeals in a recent case. See Louisville, etc., R. Co. v. Willis, 21 Cent. Law

Jour. 57.

This is the rule, when the minor is employed by another with the parent's consent, and without such consent is put by his em

Gulf, Colorado and Santa Fe Railway Co. v. Redeker.

ployer at a more dangerous business and thereby receives an injury, the father may recover. Railroad Co. v. Fort, 17 Wall. 553. And we can see no reason why one less stringent should be applied, in case the minor is knowingly engaged in a perilous occupation in the first instance against the parent's will. But the question arises as

to the responsibility of the employer when he does not know of the minority of the person whom he employs. This is the controlling question in determining the correctness of the charge complained of in this case.

The fact is to be borne in mind that this is not a suit to recover of appellant the value of the services rendered by the minor. It is to recover for the loss of services and expenses, etc., resulting from the injury. The testimony shows the son's wages have been paid. A parent or master whose child or apprentice has been employed by another without his consent, may recover the value of his services, although the employer may not have known of the relation existing between them. This is founded upon the theory that the employer having received the services, there is an implied contract on his part to pay their value to the party to whom they belong. In Lightly v. Clanston, 1 Taunt. 112, Lord MANSFIELD says: "It is not competent for the defendant to answer that he obtained that labor, not by contract with the master, but by wrong, and therefore he will not pay for it."

The case approaches as near as possible to the case where goods are sold and money has found its way into the pockets of the defendant. See also Foster v. Stewart, 3 M. & S. 191; Hill v. Allen, 1 Vesey, Sr., 83; Menton v. Hornsby, 1 Vesey, Sr., 48; 1 Chitty Pl. 100; James v. LeRoy, 6 Johns. 273; Trengott v. Byers, 5 Conn. 480; Railroad Co. v. Showers, 71 Ind. 451. In such a case the question of notice is not material. But where the father sues in tort as for enticing away or harboring his minor child, the rule seems to be clearly established that he must aver and prove that the defendant knew of the minority. Caughey v. Smith, 47 N. Y. 244; Butterfield v. Ashley, 2 Gray, 254; 6 Cush. 249; 6 Bac. Abridg., Master and Servant, 0, 550; 2 Chitty Pl. 645 and 646, n. 1. This, in our opinion, is also the rule applicable to the case when the father sues for damages resulting to him from the employment of his son in a dangerous business without his consent. If the employer knows of the minority, it is his duty to ascertain whether the infant have a parent or be an apprentice, and if so, to obtain

Gulf, Colorado and Santa Fe Railway Co. v. Redeker.

the consent of such parent or the master before making the employment. If he does not, he acts at his peril.

But suppose the minor is approaching his majority and that his appearance does not indicate that he is under age, then is one who engages his services in a dangerous occupation to be held liable at all events for an injury resulting from that employment to one having an interest in his services of which he was wholly ignorant? We think not. The injustice of such a doctrine is apparent. It is also contrary to a sound policy which should encourage the employment of those who must labor to live, and we have not found it supported by the authority of analogous cases.

We find nothing in the case of Louisville Railroad Co. v. Willis, to which we have been referred, and which we have cited above, in conflict with the proposition, that before the employer can be held liable he must have notice that the son is a minor. The minor in that case was but sixteen years old, and the court in their opinion say: "The conductor knew from his appearance that he was under age, and he received him and used him."

In the case before us the son at the time of his employment by the appellant was over nineteen years of age, and we think it cannot be assumed as a fact that his appearance would necessarily indicate his minority. Hence we think to enable the appellee to recover without proof of subsequent negligence on part of appellant, it should have been shown by direct evidence that the minor was known to the company's agents to be such, or that his appearance was such as necessarily to indicate that fact. The charge of the court, which is admirable for its clearness and brevity, authorizes the jury to find for plaintiff upon the mere fact of the employment and consequent injury, although the conductor may not have known the son was a minor. In this we think there was error that calls for the reversal of the judgment.

The assignment that the court erred in not charging the jury upon the question of emancipation we think not well taken. The testimony showed that the son had, previous to his employment by the appellant, been engaged with the father's consent as a fireman on another railroad; and that he had regularly paid his wages to his father; and that on this occasion he left home without his father's consent. There is nothing to show that the father had given him his time or had turned him away to earn his own living in his own way. There being no fact proven from which the jury

Cohen v. Continental Fire Insurance Company.

had the right to infer emancipation, it was not error to fail or refuse to charge upon the subject.

Because of the error in the charge pointed out above, the judgment is reversed and the cause remanded.

Reversed and remanded.

COHEN V. CONTINENTAL FIRE INSURANCE COMPANY.

(67 Tex. 325.)

Insurance waiver of forfeiture by demand of payment.

A policy of insurance, forfeited by non-payment of premium, is not reinstated by mere demand of payment of the premium.

A

CTION on a fire insurance policy. The opinion states the facts. The defendant had judgment below.

Kirwin, Gardner & Etheridge, for appellant.

Hutcheson, Carrington & Sears, for appellee.

GAINES, A. J. Plaintiff's application for insurance contained the following clause: "It is also covenanted and agreed, that if default is made in payment at maturity of any one of the installments of premium to be paid as stipulated in premium note given herewith, the whole amount of all the installments, remaining unpaid in said policy, shall become immediately due and payable and the policy of insurance issued hereon, shall cease to insure, and said Continental Insurance Company shall not be liable for any loss or damage which may accrue to premises insured thereunder, during such default, nor until such policy shall be revived by written consent of the superintendent of said company's south-western department, or by an officer of said company on payment to him of all amounts due thereon."

The policy issued in accordance with this application contained the following provision: "This company shall not be liable for any loss or damage under this policy if default shall have been made in the payment of any installment of premium due by the terms of the installment note." It was also stipulated that the policy should become void if the insured should neglect to pay the premium. The policy also refers to the application and to the