Ætna Life Ins. Co. v. Gilley

• Decision Date: 07 December 1928
• Docket Number: (No. 513.)
• Citation: 12 S.W.2d 821
• Parties: ÆTNA LIFE INS. CO. v. GILLEY et al.
• Court: Texas Court of Appeals

12 S.W.2d 821

ÆTNA LIFE INS. CO. v. GILLEY et al.

(No. 513.)

Court of Civil Appeals of Texas. Eastland.

December 7, 1928.

Rehearing Denied January 18, 1929.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Action by the Ætna Life Insurance Company against A. W. Gilley and others to set aside award of compensation for the death of Dallas Gilley under the Workmen's Compensation Act. From the judgment, plaintiff appeals. Reversed and rendered.

Joseph W. Hale, of Waco, for appellant.

Owen & Owen and Chastain & Judkins, all of Eastland, for appellees.

HICKMAN, C. J.

The Industrial Accident Board entered a final ruling and decision on the claim of A. W. Gilley and wife against appellant, as compensation insurer under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309), directing said insurer to pay compensation to the claimants at the rate of $7 per week for the fixed period of 360 weeks, on account of the death of their son, Dallas Gilley, who died from the effects of burns received while employed by Geo. F. Davis. Appellant duly perfected an appeal to the district court of Eastland county, the county where the injuries were received. Upon a trial in that court, judgment was rendered against appellant in favor of Gilley and wife in a lump sum, and judgment was also rendered in favor of Dr. J. W. Howell for the value of medical services rendered by him to the deceased boy. The appeal is from that judgment.

Appellees object to the consideration by this court of the propositions of law relied upon in appellant's brief for reversal. The objections as to some of the propositions are probably good, but we have found it necessary to consider only the first proposition in disposing of this appeal, and the objections as to this proposition are not well taken. By this proposition appellant presents that the trial court should have granted its motion for peremptory instruction, and this opinion will deal only with that question of law.

The employer Davis was the subcontractor for the building of a highway from Cisco, in Eastland county, to Moran, in Shackelford county. Dallas Gilley, a child 10 years of age, was employed as errand boy by Davis, and while so employed had the misfortune of igniting his clothing in an unaccounted for manner and died as the result thereof. Appellant insists that the deceased child was not an employee of Davis, within the meaning of the Workmen's Compensation Act, for the reason that his employment was in violation of articles 1574, 1576, and 1577 of the Penal Code. We do not believe that appellant's contention, based upon the alleged violation of article 1577, can be sustained under the facts in this case. We shall not, therefore, consider this article, nor the contention made by appellant with reference to the employment under said article.

Article 1574 of the Penal Code provides that: "Any person * * * who shall hereafter employ any child under the age of seventeen (17) years to labor in any mine, quarry or place where explosives are used, * * * shall be deemed guilty of a misdemeanor, and upon conviction * * * shall be punished by a fine. * * *"

Article 1576 of the Penal Code provides that: "Any person, firm or corporation, their agents or employees, having in their employ or under their control any child under the age of fifteen (15) years who shall require or permit any such child to work or be on duty for more than eight (8) hours in any one calendar day, or for more than forty-eight hours in any one week, * * * shall be deemed guilty of a misdemeanor and shall be punished by a fine," etc.

The question of whether a minor employed in violation of child labor laws is an employee within the meaning of the workmen's compensation laws, has been decided by most of the states of the Union, including our own state. Exhaustive notes citing and discussing the authorities may be found in 14 A. L. R. 818; 35 A. L. R. 337; 49 A. L. R. 1436. The Texas cases discussing and deciding the qustion are: Waterman Lbr. Co. v. Beatty, 110 Tex. 225, 218 S. W. 363; Waterman Lbr. Co. v. Beatty (Tex. Civ. App.) 204 S. W. 448; Galloway v. Lumbermen's Indemnity Exchange (Tex. Com. App.) 238 S. W. 646; Bridgeport Brick & Tile Co. v. Erwin (Tex. Civ. App.) 241 S. W. 247; Maryland Casualty Co. v. Scruggs (Tex. Civ. App.) 277 S. W. 768; Carso v. Norwich Union Indemnity Co. (Tex. Civ. App.) 293 S. W. 306.

These authorities clearly establish the law to be that a minor whose employment is illegal and punishable by the Criminal Statutes cannot be said to be an employee under the Workmen's Compensation Act. The reasons for the rule are sound. Child labor laws are enacted for the protection of children from hazardous occupations and from overwork during the period of their development. To permit an employer to violate these laws and afford him immunity for so doing in the form of compensation insurance would be to defeat the child labor laws. Public policy forbids this.

Another sound reason for the rule is that the liability of a compensation insurer is contractual. The contract is for the benefit only of lawful employees. Such insurer does not contract to compensate a person who is unlawfully employed, and such unlawful employee has no contractual rights against the insurer. He does have a cause of action at common law in a proper case against his employer, who is guilty of negligence per se.

From an examination of the evidence in this case, we have concluded that the deceased minor was employed in direct violation of each of the two articles of the Penal Code above quoted. The only witnesses to testify in the trial of this case were the appellees A. W. Gilley an...