Foth v. Macomber & Whyte Rope Co.

• Citation: 161 Wis. 549,154 N.W. 369
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 05 October 1915
• Parties: FOTH v. MACOMBER & WHYTE ROPE CO.

161 Wis. 549

154 N.W. 369

FOTH

v.MACOMBER & WHYTE ROPE CO.^a1

Supreme Court of Wisconsin.

Oct. 5, 1915.

Appeal from a Judgment of the Circuit Court for Kenosha County; E. B. Belden, Circuit Judge. Reversed.

Action to recover for a personal injury to Clarence Foth, a minor.

While in the employ of the defendant and doing work which he was prohibited by statute from being employed to perform plaintiff, Clarence Foth, was severely injured, the flesh and skin being considerably torn from his left arm, causing him much pain, wholly incapacitating him from doing manual labor for a considerable length of time and permanently weakening and diminishing the usefulness of the member.

An ordinary action was commenced because plaintiff claimed that, since the injury occurred while he was doing work he was prohibited from being employed to perform, the case was not to be dealt with under the Workmen's Compensation Law. The claim of defendant was that the boy was not employed to do the particular work, but did it of his own accord; that he was guilty of contributory negligence, and that, in any event, the case is within the Workmen's Compensation Law, because the boy was legally permitted to work for hire under the laws of this state, though not to be employed in some particular kinds of work, including that which he was engaged in when injured.

The jury found the facts in favor of plaintiff and fixed the damages at fifteen hundred dollars. The Court sustained the plaintiff's claim as regards whether the case is within the scope of the Workmen's Compensation Law. Judgment was rendered accordingly.Brown, Pradt & Genrich, of Wausau (Cavanagh, Barnes & Cavanagh, of Kenosha, of counsel), for appellant.

Lehr, Kiefer & Reitman, of Milwaukee, for respondent.

MARSHALL, J.

The verdict of the jury is fairly sustained by the evidence. That is all which need be said on that branch of the case. If it were not for the question of jurisdiction, there might well be an affirmance without an opinion.

The question of jurisdiction turns on the meaning of the words, “minors who are legally permitted to work under the laws of the state,” in section 2394--7 (2), Statutes, defining, in part, the meaning of the word “employee” in the Workmen's Compensation Law, so as to render plain the scope of the legislative purpose as to the class of persons it was intended to include. Such subdivision (2) is as follows:

“Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the state (who, for the purposes of section 2394--8, shall be considered the same and have the power of contracting as adult employees). * * *”

Should the particularly quoted words have a very restrictive construction so as to mean, as applied to such an event as the one in question, minors permitted to be employed to do the precise work, or should they have a quite broad, comprehensive meaning, so as to include minors permitted, under the laws of the state, to be employed to do any kind of work? The trial court favored the former.

When the Workmen's Compensation Law was enacted, children of quite tender age were not permitted to work at any gainful occupation; above that age they were divided into several classes. Some were permitted to be employed to work under specified conditions, and in specified occupations and some were expressly prohibited from being employed to do work, deemed to be extra hazardous. It was easy for the...