Bartley v. Morin

• Citation: 55 A.2d 438
• Parties: BARTLEY v. COUTURE. MORIN v. SAME (two cases). BARTLEY v. SAME.
• Decision Date: 27 October 1947
• Court: Maine Supreme Court

55 A.2d 438

BARTLEY

v.COUTURE.

MORIN

v.SAME (two cases).

BARTLEY

v.SAME.

Supreme Judicial Court of Maine.

Oct. 27, 1947.

Exceptions from Superior Court, Androscoggin County.

Two actions by Henry Bartley and Leo Morin, minors, by their next friends, respectively, against George Couture for personal injuries sustained while being transported home from work as incident of their employment by defendant, and two actions by Edward Bartley and Gedeon Morin, respectively, the minors' fathers, against the same defendant, for medical and hospital expenses incurred because of such injuries. Decision awarding plaintiffs compensation, and defendant brings exceptions.

Exceptions overruled.

Frank W. Linnell, of Auburn, for plaintiffs.

Edward J. Beauchamp, of Lewiston, for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, and FELLOWS, JJ.

MURCHIE, Justice.

These four cases, two of which are prosecuted on behalf of minors by their next friends, to recover for personal injuries, and two by parents, to recover the medical and hospital expenses incident to the injury of said minors, were tried together before a single Justice of the Superior Court sitting without a jury, with the right of exceptions reserved on questions of law.

A decision, carrying awards of $900 and $300 to the minors and $205.58 and $122 to the parents, is brought to this Court on defendant's exceptions. Notwithstanding the allegation of twenty-five grounds of error in the Bill of Exceptions, including assertion that the evidence would not justify findings that he was negligent, that the minors were his employees, or that he employed more than five workmen or operatives in the business in which the minors were employed, stated and reiterated in various ways, the single point argued by his counsel is that the minors, each fifteen years of age when employed and injured, could not be considered employees within the purview of the Workmen's Compensation Act, hereinafter referred to as ‘The Act’, because they were working without the permit required by R.S.1944, Chap. 25, Sec. 18, as amended by P.L.1945, Chap. 277, to legalize the employment of minors between the ages of fifteen and sixteen years during school hours. The preceding section, as amended by P.L.1945, Chap. 277, prohibits the employment of any child under fifteen years of age ‘in, about, or in connection with any manufacturing or mechanical establishment, laundry, bakery, bowling-alley, or pool-room’, and the employment of any child under fifteen years of age ‘at any business or service for hire’, except by compliance with Section 18. As amended, the latter requires that any person employing a minor between the ages of fifteen and sixteen years in any of the occupations mentioned in the preceding section shall procure a permit therefor from the super-intendent of schools, or other authorized person. Sections 31 and 32 of the chapter impose penalties on any person employing a child contrary to Sections 17 and 18 (and others) and on the parent, guardian, or custodian having such a child under his control for permitting the employment.

The pertinent provisions of The Act, R.S.1944, Chap. 26, are found in the definition of the word ‘employee’, in Sec. 2, subd. II, i.e. that it ‘shall include every person in the service of another under any contract of hire, express or implied, oral or written’, with exceptions not pertinent to these cases, and in the machinery provided by Section 7 to permit the employees, or the parents or guardians of minor employees, of employers assenting to The Act, to reserve common-law rights for the recovery of damages for injuries by appropriate action. A special provision therein is that a ‘minor working at an age legally permitted under the laws of this state shall be deemed sui juris' for the purpose of The Act.

The testimony offered on behalf of the defendant was designed to establish that the minors were volunteer workers, not employees; that they were injured while being given a ride home, not while being transported as an incident of their employment; that they were tipped gratuitously for volunteer work, not paid for labor; and that he did not employ more than five workmen in the business to which the minors devoted their labor. Some of these claims were grounded in the undisputed fact that the minors were not hired for a definite time at an agreed wage. Their own testimony was that the defendant told them to be at a certain place at a stated time if they wanted to go to work; that they appeared at that time and place, were put to work and were paid. The court found that they were employees of the defendant; that they were working in the usual course of his business, and were injured while being transported home from work as an incident of their employment; that their injuries were caused by the negligence of a fellow-employee; and that the defendant employed more than five workmen in the business in which the minors were employed. Since the defendant had not assented to The Act, this would constitute him a non-assenting employer under it, assuming its application, as the Trial Court did, and eliminate the fellow-servant doctrine, so-called, as a ground of defense to the actions.

Examination of the record explains the failure of the defendant to argue the factual issues raised by his Bill of Exceptions. A clean-cut conflict of testimony on each and all of them was resolved in favor of the plaintiffs by the single Justice who heard it, and had an opportunity to observe the witnesses on the stand. It was his province and not that of this Court to pass upon them. The handicap of a court of law in this field is well illustrated by one of the exhibits which the evidence discloses showed erasures that cannot be apparent in the transcribed record. It is sufficient on these issues to say that there was ample evidence, if believed, as the findings show it was believed, to support each and every finding of fact essential to the decision under review. Questions as to the credibility and weight of testimony are to be determined by the trier of fact. Bubar v. Bernardo, 139 Me. 82, 27 A.2d 593, and cases cited therein.

It has been recognized heretofore in this jurisdiction that any employee of an employer subject to The Act, who has not become an assenting employer under it, may recover for injuries sustained in the course of his employment in an action at common law, and that under Section 3 of The Act neither contributory negligence nor the negligence of a fellow-servant or assumption of risk, shall be available to the employer as a defense to his action. Nadeau v. Caribou Water, Light & Power Co., 118 Me. 325, 108 A. 190; Bubar v. Bernardo, supra. It is established also that injury suffered in the course of transportation furnished by an employer as an incident of employment is sustained in the course thereof. Chapman et al. v. Hector J. Cyr Co., Inc., 135 Me. 416, 198 A. 736, and cases cited therein.

This Court has not been called upon heretofore to adjudicate the status of a minor employee under The Act, or the application of Section 3 thereof to a common-law action by such an employee against his employer. In one form or another both questions have been presented in many other jurisdictions, with results that are far from harmonious. Extended Annotations on various phases of the issue fundamental to both are to be found in 6 N.C.C.A. at page 763; 7 N.C.C.A. at page 254; 11 N.C.C.A. at page 599; 15 N.C.C.A. at page 720; 14 A.L.R. at page 818; L.R.A.1918F, at page 209; and Ann.Cas.1918B, at page 679. Supplemental Annotations are found in 16 N.C.C.A. at page 1063; 17 N.C.C.A. at page 607; 33 A.L.R. at page 337; and 49 A.L.R. at page 1435. The subject matter is treated briefly in Annotations dealing with compensation acts generally in L.R.A.1916A, at page 23 and L.R.A.1917B, at page 80, as in one treating especially of the constitutionality of child labor laws in 12 A.L.R. at page 1216.

The Annotations analyze one or more decisions in each of twenty or more states. The weight of authority seems to be, as noted by the writer of that found in 14 A.L.R. 818, at page 819, that ‘the employment contemplated by the provisions of the Workmen's Compensation Acts is a lawful employment, and that these acts are inapplicable in case of an injury to a minor whose employment is unlawful.’ The Vermont Court in Wlock v. Fort Dummer Mills, infra, declared to the same effect. There is no uniformity in the language of the legislation in the several states, or in the nature of the process wherein the adjudications have been recorded. As against our own almost unlimited definition of the word ‘employee’, and the reference to a minor legally permitted to work, in declaring his full capacity to contract, the compensation acts in Illinois, Ill.Rev.Stat.1947, c. 48, § 142, Indiana, Burns' Ann.St. § 40-1701, Michigan, Comp.Laws 1929, § 8413, Minnesota, M.S.A. § 176.01, and Wisconsin, St.1945, § 102.07(to mention no other states) limit their definitions of ‘employees' in a manner which excludes all minors except those legally permitted to work.

In many decided cases the issue has arisen in litigation wherein a minor, or the parent of one, was seeking a common-law remedy and the employer claimed in defense that a compensation act was the exclusive remedy. Widdoes v. Laub, 3 W. W. Harr., Del., 4, 129 A. 344; Roszek v. Bauerle & Stark Co., 282 Ill. 557, 118 N.E. 991, L.R.A. 1918F, 207, 16 N.C.C.A. 1063; Hetzel v. Wasson Piston Ring Co., 89 N.J.L. 201, 98 A. 306, L.R.A. 1917D, 75; Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 33 A.L.R. 330; Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311; and Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 151, 156 N.W. 971, Ann.Cas.1918B, 675. It should be noted perhaps that in the Wlock case the employee had sought and obtained an award under the Compensation Act prior to instituting his action at common law, and that in t...