Bloomer Brewery, Inc. v. Indus. Comm'n

• Decision Date: 10 February 1942
• Citation: 239 Wis. 605,2 N.W.2d 226
• Parties: BLOOMER BREWERY, Inc., v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

239 Wis. 605

2 N.W.2d 226

BLOOMER BREWERY, Inc.,

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Feb. 10, 1942.

Appeal from a judgment of the Circuit Court for Dane County; A. C. Reis, Circuit Judge.

Reversed.

Action by Bloomer Brewery, Inc., against the Industrial Commission and others to vacate an interlocutory order of the commission dated February 3, 1940, allowing Robert Hart increased compensation under section 102.60(3) Stats.(1939). Judgment vacating the order was entered May 5, 1941. The Industrial Commission appeals.

The facts are agreed upon. Hart, by a letter, fraudulently represented that he was over eighteen years of age and succeeded in inducing plaintiff to employ him. A paper on which was written: “Robert Hart has my permission to work in the bottling house in the Bloomer Brewery. He is eighteen years of age. Mr. E. L. Hart” was presented to the brewery and it was represented to be a statement as to the age of Robert by his father. In fact it was not a truthful statement and was not signed by the father. At the time of his injury, Robert was engaged in the performance of his duties in the bottling works, an employment prohibited to minors under the age of eighteen years. Sec. 103.69(3) (1), Stats.

The commission was of the opinion that “the misrepresentations by the applicant as to his age do not militate against recovery of increased compensation when the injured is employed in violation of the statute referred to,” and ordered the payment of treble compensation.

John E. Martin, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and B. J. Kostner, of Bloomer, for appellant.

J. G. Prueher, of Bloomer, for respondent.

FAIRCHILD, Justice.

The objection of the employer to the award is based on the ground that the employe is responsible for his being placed in a prohibited employment. That he was a party to cheating his way into the position must be admitted. It must also be admitted that good reasons exist for the expressions indulged in by the trial judge in announcing his ruling that the order should be set aside. But these reasons and respondent's objection to the award must give way to a more cogent and controlling ground. Back of the statute invoked lies the idea of protecting the child. The law might have been drawn with some exception to meet such a case as this but none was included. The law places upon the employer the duty of complying with child labor laws.

In reaching the conclusion that the minor was estopped to deny the truth of his representation as to age, the circuit court relied in part upon the Michigan case of Boshaw v. J. J. Newberry Co., 1932, 259 Mich. 333, 243 N.W. 46, 47, 83 A.L.R. 412, 414, 416. The provisions of the Michigan compensation act appear to be distinguishable from the provisions of our act. The Michigan law as quoted in the reports provides in effect that double compensation shall not be awarded a minor making “fraudulent use of permits or certificates of age, in which case only single compensation shall be paid.” Comp.Laws Mich.1929, § 8413. This provision, although not covering the exact issue raised, was deemed to indicate “an intent on the part of the Legislature to protect an employer from a double award of compensation, if without his fault he is deceived by the minor applicant as to his age. * * *” The court then proceeds to distinguish prior decisions, rendered in common law actions of tort, wherein such misrepresentations were no bar to recovery for injuries received in a prohibited employment (259 Mich. 333, 243 N.W. at page 48, 83 A.L.R. at page 416):

“* * * Violations of these provisions [prohibiting the employment of minors in certain specified employments] by the employerwere held to give rise to a commonlaw tort action on the part of the injured minor. But the Workmen's Compensation Act is an entire departure from the common law in so far as it pertains to the rights and duties of employer and employee. [citation] And, what is more important, the rights and duties of the respective parties under the Compensation Act arise out of and are incident to the contract of employment. [citations] In other words, they are contractual in nature; and plaintiff is here asserting her right for double compensation because of her contract of employment with defendant. Hence, if the other essential elements of estoppel are present, there is no reason why one of the parties to the contract should not be estopped from taking advantage of a fraud perpetrated on the other party incident to procuring the contractual relation. This could not be true in a common-law tort action brought in consequence of the violation of the statute mentioned * * * without entirely defeating the purpose of the statute. The holding of the three cases noted is not applicable to the contractual relation arising in the instant case under the Compensation Act. On the contrary, and for the reasons noted, we hold plaintiff is estopped by her own fraud from being awarded double compensation.”

The act...