Brown Shoe Co., Inc. v. Ætna Life Ins. Co.

• Decision Date: 11 January 1927
• Docket Number: No. 19670.,19670.
• Citation: 291 S.W. 522
• Parties: BROWN SHOE CO., Inc., v. ÆTNA LIFE INS. CO.
• Court: Missouri Court of Appeals

291 S.W. 522

BROWN SHOE CO., Inc., v. ÆTNA LIFE INS. CO.

No. 19670.

St. Louis Court of Appeals. Missouri.

January 11, 1927.

Rehearing Denied February 21, 1927.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

Action by the Brown Shoe Company, Inc., against the ætna Life Insurance Company. Judgment for plaintiff, and defendant appeals. Case transferred from Supreme Court (281 S. W. 963) to Court of Appeals. Affirmed.

Watts & Gentry, of St. Louis, for appellant.

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent.

NIPPER, J.

This action originated in the circuit court of the city of St. Louis. Plaintiff is a manufacturer of shoes and operates factories in St. Louis, Mo., and elsewhere. The defendant is an insurance company, authorized to do business in this state. The Frankfort General Insurance Company issued a policy of insurance to the plaintiff, whereby it agreed to indemnify the plaintiff against loss or expense arising from claims made upon the plaintiff for damages on account of injuries sustained by its employees. During the period covered by the contract of insurance, one of plaintiff's employees, William B. Courtney, Jr., sustained an injury as the result of the alleged negligence of the plaintiff. Courtney filed suit against the plaintiff and recovered judgment, which the plaintiff paid. The Ætna Life Insurance Company, the present defendant, assumed all the obligations of the Frankfort company before the filing of this suit. Defendant refused to defend the suit of Courtney against plaintiff.

That part of the answer of the defendant which sets forth the principal defense to this action alleges that it is not liable, because it is provided in the policy of insurance:

"The company shall not be liable under this policy on account of any injury or death * * * suffered or caused by any person, young person, or child, employed by the assured contrary to law as to age, or suffered or caused by any child under the age of 14 years where the age of employment is not restricted by statute."

The answer then alleges that plaintiff was employing William B. Courtney, Jr., contrary to the law of Missouri as to age, and was unlawfully keeping him in its employment without having his name upon two complete lists of the names, ages, and addresses or residences of all children employed, one on file, and one posted near the entrance to the establishment, and that there had not been first produced and placed on file at the time of his employment, and accessible to any factory inspector or school attendance officer, an employment certificate issued by the board of education.

The reply attempted to raise a constitutional question, and the case originally went to the Supreme Court on appeal, but it was transferred to this court on the ground that no constitutional question had been properly raised and preserved. A jury was waived, and the case was tried by the court upon an agreed statement of facts. We set out here a portion of this agreed statement of facts:

"That plaintiff is a manufacturer of shoes and conducts several factories in the city of St. Louis; that after the issuance of the insurance policy above mentioned the plaintiff employed one William B. Courtney, Jr., to work in one of its factories; that Courtney was, at that time, and at the time of the happening of the accident hereinafter mentioned, a minor, of the age of 15 years; that the said William B. Courtney, Jr., had previously applied to the board of education of the city of St. Louis, Mo., for an employment certificate; that he was examined by the said board of education on October 26, 1917, and on that date a permit was issued to him by the proper officer of the board of education, in full compliance with the laws of Missouri relative to the issuance of permits for children between the ages of 14 and 16 years; that at said time it was the custom of the board of education to issue said employment certificate directly to the minor, and not to the employer, and in compliance with the custom, the employment certificate was given to the said William B. Courtney, Jr.; that the said William B. Courtney, Jr., was employed by the Leschen Rope Company, of the city of St. Louis, and by the Morrison Printing Company prior to the time he was employed by plaintiff; that at the time of his employment by the plaintiff a certified copy of the employment certificate above referred to was on file with the board of education of the city of St. Louis and with the state factory inspector of the state of Missouri, and available for the inspection of any factory inspector or any school attendance officer, or any other authorized officer at said place; that at the time of his employment by the plaintiff the original of said certificate was exhibited to and examined by one of the officers of the plaintiff herein, but was not kept in the office of the plaintiff; that plaintiff kept on file a complete list of the names, ages, and places of residence of all persons employed in the said factory, but did not have the name of the said William B. Courtney, Jr., on two complete lists of all children employed therein, one oh file, and one posted near the entrance of its said factory.

"After the employment of the said William B. Courtney, Jr., and on the 24th day of May, 1918, while he was then 15 years of age, and working in the plaintiff's factory, and while assisting in replacing a belt on a power-driven machine, he sustained permanent and severe bodily injuries, consisting of having his left arm and shoulder torn from his body, 6 of his ribs and his left leg and ankle broken and fractured, and his head, limbs, and body crushed, bruised and contused; that the plaintiff duly notified the Frankfort General Insurance Company of the said injury to William B. Courtney, Jr., and the said Frankfort General Insurance Company disclaimed any liability to the plaintiff, under the terms of said policy, on the ground that said William B. Courtney, Jr., was at said time being employed contrary to law as to age, and the said Frankfort General Insurance Company refused to indemnify the plaintiff or pay any expenses in connection with the said injuries."

Judgment was rendered for plaintiff, and def...