In re West

• Citation: 46 N.E.2d 760,313 Mass. 146
• Parties: In re WEST.
• Decision Date: 28 January 1943
• Court: United States State Supreme Judicial Court of Massachusetts

313 Mass. 146

46 N.E.2d 760

In re WEST.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1943.

Appeal from Superior Court, Suffolk County; Williams, Judge.

Proceeding under the Workmen's Compensation Act by Frederick West, claimant, to recover double compensation. From decree of Superior Court denying claim for double compensation, the employee appeals.

Decree entered in Superior Court reversed and case remanded to Industrial Accident Board.J. Bear, of Boston, for employee.

M. J. Aldrich, of Boston, for employer.

Before FIELD, C. J., and DONAHUE, QUA, and RONAN, JJ.

RONAN, Justice.

The employee, a young man less than eighteen years of age, was hired on October 14, 1938, and put to work on a carding machine, a machine consisting of a series of revolving rolls, the surfaces of which were covered by fine brush like wire that combed the material as it was drawn through the machine. One of these rolls, known as the doffer, revolved two to six times a minute when the machine was in operation. The principal roll, called the cylinder, was five or six feet in diameter and made eighty to ninety revolutions a minute when the machine was in use. Lint from the material supplied to the machine became gradually accumulated upon the wires on the surface of these various rolls, and it became necessary from time to time to remove it. Two or three days after the employee was hired to feed material into this machine he was shown by one Mittel, the president of the employer, the manner in which the lint should be removed from the doffer while it was in motion. The employee had also assisted the foreman in cleaning the cylinder when the machine was stopped. The foreman had told him that the next time the cylinder was cleaned they would do it while the cylinder was in motion, but he did not tell him that he intended to do this by reversing the direction of the cylinder. There was evidence that on one occasion while the employee was attempting to clean one of the rapidly moving rolls, he was warned not to do so. He was injured on October 26, 1938, when, while cleaning the cylinder which was in motion, his arm was drawn into the machine and was so badly injured that amputation was necessary.

The single member found that Mittel knew the employee was a minor when he hired him to clean hazardous machinery in motion, and that this constituted a violation of G.L.(Ter.Ed.) c. 149, § 62(3) and was serious and wilful misconduct on the part of the employer as defined by G.L.(Ter.Ed.) c. 152, § 28, amended by St.1934, c. 292, § 2. He also found that the employee was permitted to clean the doffer while it was in motion and that he had been warned only against the fast moving machinery; that it was left to his judgment to clean the machine ‘without stopping it, and that at his age and with his experience he was justified in thinking he could and in trying to remove lint from the other rollers, including the big cylinder, without shutting off the power and stopping the work.’ He made an award of double compensation. His findings were affirmed and adopted by the reviewing board. The employee appealed from a decree of the Superior Court denying his claim for double compensation.

General Laws (Ter.Ed.) c. 152, § 28, as amended by St.1934, c. 292, § 2, governing the payment of double compensation to an employee who is injured by reason of the serious and wilful misconduct of an insured person, provides that ‘The employment of any minor, known to be such, in violation of any provision of sections sixty to seventy-four, inclusive, or of section one hundred and four of chapter one hundred and forty-nine shall constitute serious and wilful misconduct under this section.’ It is prohibited by G.L. (Ter.Ed.) c. 149, § 62, to ‘employ a minor under eighteen or permit him to work * * * (3) in oiling or cleaning hazardous machinery in motion.’ The employment of a minor who is less than eighteen years of age to oil or clean dangerous machinery while it is in motion or to permit him to do such work is a violation of the section last cited, even if the employer honestly believed that the employee was over such age. Commonwealth v. Mixer, 207 Mass. 141, 93 N.E. 249, 31 L.R.A.,N.S., 467, 20 Ann.Cas. 1152;Commonwealth v. Sacks, 214 Mass. 72, 100 N.E. 1019, 43 L.R.A.,N.S., 1, Ann.Cas.1914B, 1076; Commonwealth v. Closson, 229 Mass. 329, 118 N.E. 653, L.R.A.1918C, 939. But more than a mere violation of this section is required to entitle the employee to double compensation. It must be shown that when he was hired or permitted to do work of the character mentioned his employer knew that he was a minor. The findings are to the effect that both Mittel and his bookkeeper ‘disregarded intentionally the claimant's age’ and that the ‘weight, height and appearance’ of the employee ‘might justify a conclusion that he was then over eighteen years, but not that he was then over twenty-one years of age.’ This was a finding that the ordinary man observing the employee would know that he was a minor. Commonwealth v. O'Brien, 134 Mass. 198;McLoughlin v. Sheehan, 250 Mass. 132, 145 N.E. 259.

The employer contends that knowledge by the employer that the employee was less than twenty-one years of age is not enough, for there could be no violation of section 62(3) unless the employee was less than eighteen years of age, and, consequently, it must be shown that the employer knew that the employee was less than this last mentioned age before there could be a violation of section 62(3) constituting serious and wilful misconduct. ‘The employment of any minor, known to be such’ in violation of certain provisions of c. 149 is the act that comprises serious and wilful misconduct upon the part of the employer. As a matter of grammatical construction, the clause ‘known to be such’ modifies the word minor. The general rule governing statutory interpretation is that a modifying clause is confined to the last antecedent unless the dominant purpose of the statute forbids such an interpretation. Cushing v. Worrick, 9 Gray 382;Clarke v. Treasurer & Receiver General, 226 Mass. 301, 115 N.E. 416, L.R.A. 1917D, 800;Opinion of the Justices, 286 Mass. 611, 191 N.E. 33;Hopkins v. Hopkins, 287 Mass. 542, 192 N.E. 145, 95 A.L.R. 1286;Kruger v. John Hancock Mutual Life Ins. Co., 298 Mass. 124, 10 N.E.2d 97, 112 A.L.R. 725. The construction contended for would require proof that the employer knew the one employed was not only a minor but that he was less than eighteen years of age. Knowledge of minority, not knowledge of the age of the minor, is all that the statute demands. If knowledge of the age of the minor were intended, it would have been an easy matter to express that intent. We cannot read into a statute words that the Legislature did not see fit to embody in the enactment. We are bound to interpret a statute as it is written. Thacher v. Secretary of Commonwealth, 250 Mass. 188, 145 N.E. 256;Arruda v. Director General of Railroads, 251 Mass. 255, 147 N.E. 21;Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 166 N.E. 558; Attorney General v. J. P. Cox Advertising Agency, Inc., 298 Mass. 383, 10 N.E.2d 255;Kennedy v. Consolidated Motor Lines, Inc., 312 Mass. 84, 43 N.E.2d 121. And the adoption of the interpretation contended for would result in limiting the liability of the employer to instances only in which it could be shown that he knowingly violated § 62(3) of c. 149, when the plain intent of § 28, as amended is to make the employer liable if he hires one, for the performance of the prohibited occupations, whom he knows is a minor, even if he does not know that he is under the age at which he could lawfully be employed for the performance of such work. This accords with other provisions of the child labor law, imposing duties upon employers hiring minors to procure permits and educational certificates. G.L.(Ter.Ed.) c. 149, §§ 86, 95. Restrictions upon the freedom of contract imposed in the interests of society in general and for the benefit of minors in particular must be observed by those seeking to avail themselves of the services of those under age. Commonwealth v. Griffith, 204 Mass. 18, 90 N.E. 394, 25 L.R.A.,N.S., 957, 134 Am.St.Rep. 645;Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N.E. 876, Ann.Cas.1912B, 797;Commonwealth v. Hong, 261 Mass. 226, 158 N.E. 759, 55 A.L.R. 640.

The evidence supports the finding that the employer knew that the employee was a minor. Proof of actual knowledge is frequently shown where one is in possession of information of such weight and reliability that men commonly act upon it as true. Absolute certainty is not required. Here the employer had seen the employee on a number of occasions and had conversed with him. He was in as good a position to observe his age as was the single member, who found that his appearance indicated that he was less than twenty-one years of age. Personalobservation of another is an adequate basis upon which to estimate his age. The circumstances are persuasive that the employer had acquired sufficient informaton to apprise him of the minority of the employee. George v. Kent, 7 Allen 16;Kemp v. Hammond Hotels, 226 Mass. 409, 115 N.E. 572;Walkden's Case, 237 Mass. 115, 129 N.E. 396;Garvey v. McNulty, 270 Mass. 260, 170 N.E. 58. As the board ruled, the employer could not avoid the consequence of knowledge of the employee's age by remaining in wilful ignorance. ‘If a person confronted with a state of facts closes his eyes in order that he may not see that which would be visible and therefore known to him if he looked, he is chargeable with ‘knowledge’ of what he would have seen had he looked.' Zdunek v. Thomas, 215 Wis. 11, 15, 254 N.W. 382, 383;Gamble v. Black Warrior Coal Co., 172 Ala. 669, 55 So. 190;Wheaton v. Nolan, 3 Cal.App.2d 401, 39 P.2d 457;Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746, 81 S.W.2d 323;Daly v. Swift & Co., 90 Mont. 52, 300 P. 265;Taylor v. Moore, 87 Utah 493, 51 P.2d 222.

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