Kenez v. Novelty Compact Leather Co.

• Decision Date: 31 March 1930
• Citation: 149 A. 679,111 Conn. 229
• Court: Connecticut Supreme Court
• Parties: KENEZ v. NOVELTY COMPACT LEATHER CO. ET AL.

149 A. 679

111 Conn. 229

KENEZ v. NOVELTY COMPACT LEATHER CO. ET AL.

Supreme Court of Errors of Connecticut.

March 31, 1930

Appeal from Superior Court, Fairfield County; Carl Foster, Judge.

Proceeding under the Workmen's Compensation Act by Arthur Kenez claimant, opposed by the Novelty Compact Leather Company employer, and the London Guarantee & Accident Company insurer. From a finding and award of the compensation commissioner, the insurer appeals to the superior court.

Case reserved for the advice of the Supreme Court of Errors. Decree in accordance with opinion.

Walter J. Walsh of New Haven, for appellant insurer.

Abraham D. Slavitt, of South Norwalk, and Edward T. Buckingham, of Bridgeport, for appellee employer.

Nehemian Candee, of South Norwalk, for appellee plaintiff.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

MALTBIE, J.

The plaintiff suffered an injury which arose out of and in the course of his employment in the factory of the respondent-employer. He was at the time between fifteen and sixteen years of age, and was employed in violation of the terms of a certain statute regulating the employment of children of his age. The commissioner finds that he secured this employment by incorrectly representing his age. This finding falls far short of charging the plaintiff with a fraudulent representation (Salt's Textile Mfg. Co. v. Ghent, 107 Conn. 211, 215, 139 A. 694); and it is not claimed that the misrepresentation is of significance in determining his rights to compensation. See Noreen v. William Vogel & Brothers, Inc., 231 N.Y. 317, 322, 132 N.E. 102; Beauchamp v. Sturges & Burn Mfg. Co., 250 Ill. 303, 95 N.E. 204; Secklich v. Harris-Emery Co., 184 Iowa, 1025, 1029, 169 N.W. 325; Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 151, 156 N.W. 971, Ann.Cas. 1918B, 675; Note, 23 Ann.Cas. 805. The basic question is whether or not a child employed in violation of the statute in question is within the scope of the Workmen's Compensation Act (Gen. St. 1918, § § 5339 et seq., as amended) so as to be entitled to compensation under its terms.

Diligence of counsel has brought to our attention numerous decisions in other jurisdictions where similar questions have been decided. In many of the States, however, compensation laws contain provisions which make special reference to the inclusion of " minors who are legally permitted to work" or provisions of a similar tenor, and decisions construing these acts are not of material assistance to us as regards the present controversy, because our act has no such provision. Among the decisions cited to us, the following fall within this class: Westerlund v. Kettle River Co., 137 Minn. 24, 162 N.W. 680; Kruczkowski v. Polonia Pub. Co., 203 Mich. 211, 168 N.W. 932; Roszek v. Bauerle & Stark Co., 282 Ill. 557, 118 N.E. 991, L.R.A. 1918F, 207; Acklin Stamping Co. v. Kutz, 98 Ohio.St. 61, 120 N.E. 229, 14 A.L.R. 812; Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 151, 156 N.W. 971, Ann.Cas. 1918B, 675; In re Stoner, 74 Ind.App. 324, 128 N.E. 938; Taglinette v. Sydney Worsted Co., 42 R.I. 133, 105 A. 641. There are, however, a considerable number of decisions under compensation laws the material provisions of which do not differ essentially from those of our act, where a minor employed in contravention of a statute has been denied the right to compensation. Hetzel v. Wasson Piston Ring Co., 89 N.J.Law, 201, 98 A. 306, L.R.A. 1917D, 75; Secklich v. Harris-Emery Co., 184 Iowa, 1025, 169 N.W. 325; Rock Island Coal Mining Co. v. Gilliam, 89 Okl. 49, 213 P. 833; Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 33 A.L.R. 330; William B. Tilghman Co. v. Conway, 150 Md. 525, 133 A. 593; Widdoes v. Laub (Del. Super.) 129 A. 344. On the other hand, an opposite conclusion has been reached by courts whose decisions we also hold in high regard. Pierce's Case (Mass.) 166 N.E. 636, 638; Noreen v. William Vogel & Brothers, Inc., 231 N.Y. 317, 132 N.E. 102; Rasi v. Howard Mfg. Co., 109 Wash. 524, 187 P. 327; Humphrees v. Boxley Brothers Co., 146 Va. 91, 135 S.E. 890, 49 A.L.R. 1427. It is also noteworthy that in at least two instances compensation laws have been amended with the evident intention upon the part of the legislature to include minors employed in violation of the law. Mueller Printing Co. v. Eyman, 112 Ohio.St. 337, 147 N.E. 342; Humphrees v. Boxley Brothers Co., supra, page 107, of 146 Va., 135 S.E. 890, 49 A.L.R. 1427. We have examined these varying opinions for the light which they shed upon our particular problem, but we must recognize that, after all, our problem is to be solved by ascertaining the legislative intent which is embodied in our own applicable statutes.

In argument before us the appellant has appealed to two statutes regulating the employment of children. One of these provides that no child under sixteen years of age shall be employed or permitted to work in operating, or in assisting to operate, certain designated machines. General Statutes, § 5328. This statute, however, was evidently not brought to the attention of the commissioner, and, upon the record, we cannot say that the machine upon which the plaintiff was working comes within its terms. We must therefore disregard it. The statute upon which the appellant relied on the hearing before the commissioner is that embodied in section 5323 of the General Statutes, as amended by Public Acts of 1925, c. 252, § § 5324 and 5325. This provides that no child under sixteen years of age shall be employed in any mechanical, mercantile or manufacturing establishment, " unless the employer of such child shall have first obtained a certificate" from certain designated school officers, showing that he is over fourteen years of age, has met certain educational requirements, and appears to be physically fit for employment. This certificate is issued in triplicate, one copy being placed on file with the state board of education, one copy being given to the employer, and the other evidently going to the child's parent or guardian, with a further provision that the employer may accept the last-mentioned copy as a temporary certificate good for one week. The statute contains a penalty stated in these terms: " Every person, whether acting for himself or as an agent for another, who shall employ or shall authorize or permit to be employed any child in violation of the provisions of this act, shall be fined not more than one hundred dollars." It is further made the duty, under stated penalties, of every employer receiving such a certificate to notify the state board of education of the commencement or termination of any employment under the statute, and to keep the certificate on file and open to inspection by the school officials.

This statute was plainly enacted for the benefit of children between fourteen and sixteen years of age, to curb the extent of their employment in labor, to assure them an opportunity to attain a certain standard of education and protect those not physically fit for employment. It is most significant that nowhere in it is there any suggestion of an obligation resting upon the minor who enters the employment to see that its terms are complied with, but the entire burden of securing the certificate and of the subsequent steps in relation to it is placed upon the employer, and the only penalties provided are those directed against him or such persons as may stand in his place. The child was evidently regarded by the Legislature solely as the recipient of the protection afforded by the statute. Indeed, in other jurisdictions statutes designed to prevent the employment of minors in certain occupations not dissimilar in manner of expression from the one before us have been held to afford a basis of recovery by a minor injured in the course of his employment, despite the fact that he was employed in violation of their terms. Notes, 14 Ann.Cas. 123; 23 Ann.Cas....