Fulton Co. v. Massachusetts Bonding & Ins. Co.

• Decision Date: 06 October 1917
• Citation: 197 S.W. 866
• Parties: FULTON CO. v. MASSACHUSETTS BONDING & INS. CO.
• Court: Tennessee Supreme Court

197 S.W. 866

FULTON CO. v. MASSACHUSETTS BONDING & INS. CO.

Supreme Court of Tennessee.

October 6, 1917.

Appeal from Chancery Court, Knox County; Will D. Wright, Chancellor.

Action by the Fulton Company against the Massachusetts Bonding & Insurance Company. Decree for defendant, and plaintiff appeals. Affirmed.

Cornick, Frantz, McConnell & Seymour, of Knoxville, for appellant. Charles H. Smith and L. D. Smith, both of Knoxville, for appellee.

WILLIAMS, J.

This is an action on a policy of liability insurance for the recovery of the amount the complainant company was held to pay to one of the employés in its factory, one Kendrick, in an action at law successfully prosecuted by the latter, which defendant had refused to defend.

The policy indemnified the Fulton Company in this language:

"Subject to the limits hereinafter provided for against loss from the liability imposed by law upon the assured for damages on account of bodily injuries * * * accidentally suffered or alleged to have been suffered by any employé * * * of the assured, by reason of the business of the assured as described and conducted at the locations named in the schedule of warranties. * * * It is understood and agreed that this policy does not cover:

"3. Persons employed in violation of the law as to age."

The insurance company defends on the ground that the employment of Kendrick was illegal, because of a violation of Act 1911, c. 57 (Thomp. Shan. Code § 4342a-44 et seq.) the pertinent sections of which are as follows:

Section 1 makes it unlawful for any owner to employ, or permit to work, any child less than 14 years of age in any factory.

"Sec. 5. That it shall be unlawful for any proprietor, foreman, owner, or other person to employ, permit, or suffer to work any child between the ages of fourteen and sixteen years in, about, or in connection with any place or establishment named in section 1, unless said proprietor, foreman, owner, or other person keep on file and accessible to the shop and factory inspector a sworn statement made by the parent or guardian or any person acting as guardian of such child, setting forth the place and date of birth of such child, and whoever shall make false statement as to the age of such child in such sworn statement shall be deemed guilty of perjury."

Section 6 makes a violation by the factory owner a misdemeanor punishable by fine.

The employé, Kendrick, was between the ages of 14 and 16 years. It is insisted for complainant, however, that the provision in the policy relieving the defendant of liability where the person is employed "in violation of the law as to age" has no application, because, they urge, section 5 of the act is not a law concerning age. The argument runs: It cannot be said that Kendrick was employed in violation of law as to age, because, while the law permitted his employment in the particular capacity in which he was acting when injured, it also required that the employer keep a certificate of his age on file and makes it a criminal offense not to do so. Kendrick, it is said, was employed "in violation of law" requiring a certificate to be kept on file for the convenience of the factory inspector, but he was not employed "in violation of law as to age."

This contention overlooks an important consideration. As we construe the statute the employer, in order to be excused from liability under section 5, must first have a statement that can be kept on file, to wit, one made by the parent or guardian in respect to the age of the child. Such a statement was not taken by the employer. The argument for complainant outlined above proceeds as if the statement had been taken and the only failure was the one in respect of filing it in a place accessible to the factory inspector.

We need not, therefore, determine the effect of such a failure to file, as constituting or not constituting negligence that would render the employer liable to a child for injuries suffered, if we are not in error in the construction just indicated.

That this is the proper construction of section 5 is demonstrated by a reference to our previous legislation on the subject of child labor.

The earliest act was that of 1881, c. 170, providing that no boy under 12 years of age should work in any mine, "and proof must be given of his age, by certificate or otherwise, before he shall be employed, and no father or other person shall conceal or misrepresent the age of any boy knowingly." A violation of the act was declared a misdemeanor.

Act 1893, c. 159, is as follows:

"Section 1. That it shall be unlawful for any proprietor, foreman, owner, or other person to employ any child less than twelve (12) years of age in any workshop, mill, factory, or mine in this state.

"Sec. 2. That if any proprietor, foreman, or owner should not be informed as to the age of the child, he or they can request the parent or guardian to furnish a sworn statement, which shall be sufficient proof of the age of the child.

"Sec. 3. That any proprietor, foreman, or owner employing a child less than twelve (12) years of age, or any guardian or parent giving such sworn...