Besonen v. Campbell

• Decision Date: 22 June 1928
• Docket Number: No. 137.,137.
• Citation: 243 Mich. 209,220 N.W. 301
• Parties: BESONEN v. CAMPBELL et al.
• Court: Michigan Supreme Court

243 Mich. 209

220 N.W. 301

BESONEN

v.CAMPBELL et al.

No. 137.

Supreme Court of Michigan.

June 22, 1928.

Error to Circuit Court, Ontonagon County; George O. Driscoll, Judge.

Action by Gabriel Besonen, as administrator of the estate of Arnold Besonen, deceased, against William Campbell and Ed Cameron, copartners doing business under the firm name and style of Campbell & Cameron. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before the Entire Bench.Doyle, Doyle & Doyle, of Menominee, for appellants.

Van Slyck & Bay, of Ontonagon (Derham & Derham, of Iron Mountain, of counsel), for appellee.

FELLOWS, J.

Plaintiff counts in his declaration as amended on both the Survival Act (Comp. Laws, §§ 12383-12403) and the Death Act (Comp. Laws, §§ 14577, 14578). Deceased was his son, under the age of 18 and was employed by defendant, it is alleged, in a hazardous employment, contrary to the provisions of section 11, Act 206, Public Acts 1923. In answer to a special question, the jury found that deceased died instantaneously, although the judgment entry recites that the jury found defendants ‘guilty in manner and form as the plaintiff in his declaration in this cause has complained.’ Defendants' counsel insist that the judgment so entered is incongruous; that recovery cannot be had under both counts. There is force in this contention, but the judgment may be there or here amended, and the error does not justify reversal on this ground. The trial judge submitted to the jury the question of defendants' negligence, the contributory negligence of decedent and his parents, and the question of whether deceased was employed in hazardous employment. Plaintiff recovered in the sum of $1,700.

1. It is strenuously urged that we should hold as matter of law that the deceased was not employed in a hazardous employment. Defendants were engaged in lumbering operations, and deceased was ‘swamping,’ cutting underbrush, and the smaller trees. Upon the trial, plaintiff offered to show by the proceedings before the Department of Labor and Industry that defendant had escaped liability under the Workmen's Compensation Act (Pub. Acts 1912, Ex. Sess. No. 10, as amended), on the ground that the work was hazardous, and hence not within the provisions of that act. The court sent the jury out, and listened to arguments, and declined to permit the evidence to go to the jury. It is apparent, however, from the record that the trial judge considered it as properly before him, as he took it into consideration in deciding the motion for judgment non obstante veredicto, and held that defendants, having defeated recovery of compensation before the Department of Labor and Industry on the ground that the work in which deceased was employed was hazardous, could not change front and defeat recovery in this action, on the ground that the work was not hazardous; that they were estopped from making such claim. The proceedings before the department are not printed as exhibits in the record, but their substance is stated. It seems quite clear from the record that the exhibits were handed up to the trial judge; at least the trial judge in his opinion denying the motion for judgment non obstante veredicto discussed the proceedings as if he had evidence of them before him. Compensation was denied by the commission on the ground that deceased was illegally employed.

It should also be conceded that defendants' counsel are also correct in the assertion in their brief that this defense was made by the insurer of defendants. But, unless the employer carries his own risk, it is the universal practice that the insurance company makes the defense for the employer in proceedings before that department. While it is not a court, the doctrine of res adjudicata applies to its proceedings, and its decisions are binding on the applicant, the employer, and the insurance company. Lumbermen's Mutual Casualty Co. v. Bissell, 220 Mich. 352, 190 N. W. 283, 28 A. L. R. 874. Having defeated the recovery of compensation on the ground that the employment was illegal, because hazardous, defendants are estopped to here claim the contrary, that it was not hazardous. Majewski v. Barrell & Box Co., 230 Mich. 548, 203 N. W. 102.

2. The employment of a minor, in violation of the Child Labor Act (Pub. Acts 1909, No. 285 as amended), is in and of itself negligence, and renders the employer liable. In Kruczkowski v. Polonia Pub. Co., 203 Mich. 211, 168 N. W. 932, Mr. Justice Stone, speaking for the court said:

‘The law not only discourages, but prohibits the employment of children in hazardous employments. It is casting no disparagement upon the Workmen's Compensation Law to hold that its provisions were not intended to apply to children who are unlawfully set at work in hazardous employments; and that when they are injured in such employments, without fault or negligence on their part, that they should have the benefit of a common-law action against the wrongdoer, where the defenses of assumption of risk and negligence of a fellow servant are not available to a defendant. Such a holding will, in our opinion, have a tendency to, discourage such illegal employment, and be a benefit to...