This is a suit for damages occasioned by the death of the minor son of the plaintiff Mary Gabsky, while working in a coal mine of the appellant in Sebastian county, Arkansas, on the 28th day of January, 1899.
*436The complaint is as follows: “Now comes the plaintiff, Mary Gabsky, for herself, and Sophia Gabsky and Stephen Gabsky, minors, by Mary Gabsky, their next friend, and say:
“(1.) That they are resident? of Sebastian county, Arkansas, and the defendant is a corporation organized under the laws of Missouri, and. engaged in the business of mining coal in Arkansas at all the dates hereinafter mentioned. (2) That on or about the 1st day of January, 1899, the defendant willfully permitted one John Gabsky, a minor aged 11 years, to enter its coal mine No. 51, near Huntington, Arkansas, to work therein, and the said John Gabsky continued in said mine until the 28th day of January, 1899, when he was instantly killed in said mine by a large'rock falling upon him from the roof thereof. The said John Gabsky left surviving him, as his sole heirs and next of kin, the plaintiffs herein, Mary Gabsky, who was his mother, and Sophia Gabsky, a sister aged 8 years, and Stephen Gabsky, a brother aged 3 years. None of the plaintiffs have any property or means of support, other than the personal exertions of the plaintiff Mary Gabsky. (3) In consequence of the willful violation of law by the defendant, in permitting the said John Gabsky to enter its mine to work as aforesaid, and his resulting death, the plaintiffs have sustained direct damages in the sum of $2,000. Wherefore they pray judgment against the defendant for $2,000 and costs."
This complaint was filed August 24, 1899, and summons served the next day. The defendant answered on the 12th September, 1899; the first paragraph of its answer being a general demurrer to the complaint as not stating facts sufficient to constitute a cause of action. The second paragraph denies that any cause of action exists in the plaintiff against the defendant, if the death of John Gabsky occurred as alleged. The third paragraph avers a want of information as to certain averments in the complaint as to the matters pertaining personally to the plaintiffs and deceased, averring-the materiality of the same, and demanding strict proof. The defendant in this paragraph denies that it willfully permitted John Gabsky, a minor of the age of 11 years, to enter its coal mine No. 51, near Huntington, Arkansas, to work therein, and states the facts to be: That one Thomas Reskoski, a miner then in the employ of the defendant, and who lived or boarded with the plaintiff, Mary Gabsky, brought the said John Gabsky with him to the said mine No. 51, and asked permission of the “pit boss" thereof *437to allow bim to take the said John Gabsky into the mine to work for him, the said Reskoski, and the “pit boss” was assured by the said Reskoski and other friends of said John Gabsky that he was of the age of 15 years, and could read and write, and the physical appearance of the said John Gabsky would lead an ordinarily prudent and reasonable man to believe that he was over the age of 14 years, and, so believing and being so assured, the said “pit boss” permitted the said Gabsky to work in the mine for the said Reskoski, and the defendant is informed and believes, and so asserts and avers, that the death of said Gabsky was caused by the neglect and recklessness of the said Reskoski and said John Gabsky and other miners with whom said Gabsky was working, and not through any negligence or dereliction of duty upon the part of this defendant. The defendant states further that it was with the consent and approval of Mary Gabsky that said John Gabsky was permitted to work in said mine, and, if said John Gabsky was under the age of 14 years, said fact was known to his mother, the said Mary Gabsky, and said fact was unknown to this defendant; and, the physical appearance of said John Gabsky indicating that he was of the age when he could lawfully enter- said mine to work, the defendant did not willfully permit a minor under the prohibited age from working therein, and, the said mother so permitting the defendant to be imposed upon, and wrongfully permitting her said son to work in the mine (while) under the age prohibited by law, if such be a fact (and plaintiff has so alleged), it was the negligent act of said plaintiff, and not of this defendant, which caused the death of said John. That it was the duty of the parent of said John to refrain from allowing him to work in the mines under the age permitted by the statute, and the wrongful and knowing act of the parent of said John, and not the willful act of defendant, together with the negligence of said John and his fellow workers, was the cause of his death.
The evidence in the case substantially sustains the averments of the answer.
The demurrer of the defendant, contained in the first and second paragraphs of its answer, raises a question of law, — whether or not Mary Gabsky, for herself or next friend of her two surviving children, has a right of action against the defendant.
The complaint is manifestly founded upon the statute known as the Miners’ Act — nothing more, nothing less. The two sections *438which are material in the controversy are digested in Sandels & Hill's Digest as follows: “Section 5051. No person under the age of 14 years * * * shall be permitted to enter any mine to work therein. Section 5058. For any injury to persons or property occasioned by willful violation of this act, * * * a right of action shall accrue to the party injured for any direct damages sustained thereby.” The direct damages here referred to mean damages for injury occasioned by the fact of being permitted to work in the mines; and, the working in the mines under the prohibited age being shown, and to be willful in the legal sense, it is ordinarily conclusive upon the defendant, for the object of the act was to prohibit the working of children under 14 years of age in coal mines at all.
If it is thought that an action for damages for the death of a person, as in this ease, survives in the next of kin, it should be asserted by a complaint based upon our statute of survivorship, commonly known as Lord Campbell's Act. What should be shown in a case under that act, we leave for the plaintiffs to determine. But as the case was tried solely under the Miners' Act, and a complaint made in strict conformity thereto, and no provision is made in that act for a survivorship of the action, the demurrer set forth in the first and second paragraphs of the answer should have been sustained; and the judgment of the court is reversed, and the cause is remanded for a new trial, with privilege to the plaintiff to amend her complaint, if she so desires to do.