Boshaw v. J. J. Newberry Co.

• Decision Date: 07 June 1932
• Docket Number: No. 142.,142.
• Citation: 259 Mich. 333,243 N.W. 46
• Parties: BOSHAW v. J. J. NEWBERRY CO.
• Court: Michigan Supreme Court

259 Mich. 333

243 N.W. 46

BOSHAW

v.J. J. NEWBERRY CO.

No. 142.

Supreme Court of Michigan.

June 7, 1932.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Marguerite Boshaw, employee, opposed by the J. J. Newberry Company, employer. From an award of double compensation by the Department of Labor and Industry in favor of employee, employer appeals.

Remanded, with direction.

Argued before the Entire Bench.

Austin J. Spaulding, of Detroit, for appellants.

Walsh, Walsh & O'Sullivan, of Port Huron, for appellee.

NORTH, J.

Plaintiff, while an employee of the defendant, sustained a compensable injury. From an award of double compensation defendant has appealed. The sole question presented is whether plaintiff is entitled to single or double compensation.

When plaintiff applied to defendant for employment, she was required to answer in writing a number of questions contained in a printed form used by defendant. In part it reads: ‘Full name: Luva Marguerite Boshaw. Nationality: American. Street and No.: 1035 Gillett St. City: Port Huron. State: Michigan. Phone: 3889. Age: 18. Born Mo., August; Day, 7; Year, 1911. Married or single: Single. Height: 5 feet 3. Weight: 125.’

Plaintiff's statement in the above-quoted application that she was eighteen years of age was false. She was then only fifteen years of age. The application from which the quotation is taken was so prepared that it was supposed to be signed by the applicant. While plaintiff wrote in the respective answers, she did not sign her name at the conclusion. Instead, the manager of defendant's store, Mr. F. Mathewson, signed his name to plaintiff's application.

The issue presented is whether an employer, who, acting in good faith, is deceived by a deliberate false statement as to the age of a minor applicant for work, and in consequence thereof enters into a contract of employment which, if knowingly made, would have rendered the employment illegal, can be compelled to pay double compensation in the event the minor sustains a compensable injury while so employed. The employer here is not charged with bad faith or even with failure to exercise reasonable care to ascertain the age of plaintiff when she was employed. But plaintiff asserts defendant is liable for double compensation under the statute which provides: ‘It shall be the duty of * * * any person coming within the provisions of this act to keep a register in which will be recorded the name, birthplace, age and place of residence of every person employed under the age of eighteen (18) years and it shall be unlawful for any such establishment or person to hire or employ * * * any child under the age of eighteen (18) years without there is first (1st) provided and placed on file in the business office thereof a permit or certificate. * * * Every employer complying with the provisions of this section shall be at liberty to employ the person so presenting the permit or certificate hereinbefore referred to, and is justified in considering and treating such person as of the age shown in such permit or certificate and shall not be liable, if it transpire that such person is under the age represented in such permit or certificate, to any greater extent than such employer would be liable if such person were of the age represented.’ Comp. Laws 1929, § 8325. ‘Provided, That any minor under eighteen (18) years of age whose employment at the time of injury shall be shown to be illegal shall, in the absence of fraudulent use of permits or certificates of age, in which case only single compensation shall be paid, receive compensation double that provided elsewhere in this act.’ Comp. Laws 1929, § 8413.

Because plaintiff misrepresented her age, defendant did not obtain the permit or certificate required by the statute. Had plaintiff been eighteen years of age, as she represented, defendant would have been under no obligation to obtain such permit or certificate. By plaintiff's deceit defendant was tricked into an apparent violation of the statute; and in consequence thereof plaintiff is now asking that she be awarded double compensation instead of single compensation. The injustice of such a claim is so obvious that it should not be sustained unless necessitated by the statutory provisions. While the instant case is not literally covered thereby, it is of interest to note that the statute expressly provides that an employee who makes ‘fraudulent use of permits or certificates of age’ shall not be awarded double compensation. Section 8413. We think this provision of the statute clearly indicates 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. In Ganga v. Ford Motor Co., 250 Mich. 247, 230 N. W. 159, 160, Justice Butzel said: ‘It further provides that minors under eighteen years of age shall be entitled to double the amount of the compensation provided for, unless they have secured the employment fraudulently, in which event they shall only receive single compensation.’ See Justice Potter's opinion in Thomas v. Morton Salt Co., 253 Mich. 613, 624, 235 N. W. 846.

While in federal decisions there seems to be a trend to the contrary (see Minneapolis etc., R. Co. v. Rock, 279 U. S. 410, 49 S. Ct. 363, 73 L. Ed. 766), the weight of authority in state courts sustains the right of an employee to compensation, notwithstanding he secured the employment through fraud or misrepresentation, as to his physical condition, former discharge, age, etc. Denver & R. G. R. Co. v. Reiter, 47 Colo. 417, 107 P. 1100;Plick v. Toye Bros. Auto & Taxicab Co., 13 La. App. 525, 127 So. 59;Matlock v. Railroad, 198 Mo. 495, 95 S. W. 849,115 Am. St. Rep. 481;Havey, Adm'r, v. Erie R. Co., 87 N. J. Law, 444, 95 A. 124;Kenny v. Union Ry. Co., 166 App. Div. 497, 152 N. Y. S. 117; Darnley v. Can. Pac. R. Co., 14 B. C. R. 15. Contra see St. Louis & San Fran. R. R. Co., v. Brantley, 168 Ala. 579, 53 So. 305. This view adhered to by the weight of authority is evidently the outgrowth of a liberal interpretation of Compensation Acts; and seems to be sound, for the reason that, notwithstanding the deceit of the employee, still it may be said the employer knew he had the particular employee in his service, and both parties knowingly contracted with reference to the Compensation Law. Further, in some cases it is noted that the misrepresentation was not the cause of the accident in consequence of which compensation was sought. See Plick v. Toye Bros. Auto & Taxicab Co., supra. Our recent decision in Ganga v. Ford Motor Co., supra, is in accord with the prevailing authorities above cited. But in so holding it would seem that this court as well as the courts of other jurisdictions have reached the limit of liberality, and to go further would be to put a premium on dishonesty.

In the instant case, defendant knew plaintiff was its employee; and that both were subject to the Compensation Act. If the employee suffered a compensable injury, both knew she would be entitled to compensation. But defendant did not know nor have any reason to suspect that in the event of such injury it would be liable for double compensation, and such a claim could not have been asserted except for plaintiff's fraud and deceit. It is fair to assume that, because of plaintiff's false statement in regard to her age, defendant understood there was no occasion for its securing the permit or certificate required by the statute when minors under eighteen years of age are employed. It is this circumstance alone and of which defendant had no knowledge that enables plaintiff to assert her claim for double compensation. A more glaring attempt by a wrongdoer to profit by the...