Miller Co. v. Aetna Ins. Co.

• Decision Date: 14 June 1928
• Parties: MILLER MANUFACTURING COMPANY, INC. v. AETNA LIFE INSURANCE COMPANY.
• Court: Virginia Supreme Court

Page 495

150 Va. 495

MILLER MANUFACTURING COMPANY, INC. v. AETNA LIFE INSURANCE COMPANY.

Supreme Court of Virginia, Richmond.

June 14, 1928.

Argued and submitted before Judge Holt took his seat.

1. INDEMNITY INSURANCE — Child Labor Law — Liability of Company where Injured Employee was between Fourteen and Sixteen Years of Age and His Employer had not Obtained and Posted the Certificate Required — Case at Bar. — The instant case was an action by an employer against an insurance company on a policy insuring the employer against losses it might incur on account of injuries accidentally inflicted on its employees while in its employ at its factory. The injured employee was over fourteen years of age at the time of the injury, but under sixteen years of age. He was injured at the factory of the plaintiff when the policy was in force, and recovered a judgment for his injuries against plaintiff. The insurance company claimed that it was exonerated from liability on the policy on account of the child labor law (Acts 1914, page 671), as plaintiff did not comply with section 3 of that act, providing that no child under sixteen years of age should be employed in certain occupations and establishments, unless the employer should procure and keep on file accessible to any inspector, or officer charged with the enforcement of the act, an employment certificate. This certificate was never procured by plaintiff. The insurance policy excepted injuries to or caused by "any person employed in violation of law as to age, or of any age under fourteen (14) years, where there is no legal restriction as to age of employment."

Held: That plaintiff could not recover against defendant company.

2. INDEMNITY INSURANCE — Child Labor Law — Failure to Obtain Certificate where Child is between Fourteen and Sixteen Years of Age — Liability of Insurance Company. — When a statute forbids the employment of a child under fourteen years of age in any event and also of one under sixteen years of age, unless the employer procures and keeps on file and accessible to a factory inspector, or any other authorized officer, the required certificate, in either event the employer is debarred from making the defense that no negligence is shown, and the insurer is not liable.

3. INDEMNITY INSURANCE — Child Labor Law — Liability of Company where Injured Employee was between Fourteen and Sixteen Years of Age and His Employer had not Obtained and Posted the Certificate Required — Cast at Bar. — The instant case was an action by an employer against an insurance company to recover the amount of a judgment against the employer for injuries to an employee. The policy excepted injuries to or by persons employed "in violation of law as to age, or of any age under fourteen years, where there is no legal restriction as to the age of employment." The employee injured was a boy under sixteen and over fourteen, but the employer had never obtained the certificate required by the child labor law for boys under sixteen. Plaintiff contended that the boy could not be said to be employed "in violation of law as to age," because the law permitted his employment in the particular capacity in which he was acting when injured; that the boy was merely employed in violation of the law requiring that a certificate be kept on file, and that the policy protected an employer in case of failure to post the certificate, provided the child was of the necessary age, in this case fourteen.

Held: That plaintiff's construction of the statute could not be maintained and that the insurer was not liable to plaintiff in the instant case.

4. MASTER AND SERVANT — Failure to Comply with Child Labor Law — Proximate Cause of Injury. — The employment of a boy between the ages of fourteen and sixteen years, without compliance with the statute as to the certificate to be obtained from a parent or guardian by the employer, being unlawful, is the proximate cause of an injury occuring in the course of the employment.

5. INDEMNITY INSURANCE — Child Labor Law — Employment in Violation of Law as to Age — Case at Bar. — A policy of insurance to protect an employer against losses incurred from injuries to his employees excepted injuries or death to or caused by "any person employed in violation of law as to age, or of any age under fourteen (14) years, where there is no legal restriction as to age of employment." In the instant case it was insisted that there was no violation by the employer of the law as to age, where the employee was over fourteen but under sixteen, and the employer had not secured the certificate required by the child labor law, but only a violation of the law requiring the possession and posting of the certificate of employment.

Held: That this position was unsound, because it referred the violation exclusively to a violation as to age instead of a violation of the law, whereas the words "as to age" constitute an attribute appendant to the word law, and not violation.

6. CHILD LABOR LAW — Proximate Cause. — Whether the child is under fourteen or merely under sixteen the unlawful hiring in violation of the law is itself the act which constitutes the causal connection between the violation of the law and the injury.

7. INDEMNITY INSURANCE — Liability of Insurance Company — Employment in Violation of Law as to Age. — Where a policy of insurance to protect an employer against losses for injuries to his employees excepts losses to or caused by "any person employed in violation of law as to age, or of any age under fourteen (14) years, where there is no legal restriction as to age of employment," the plain meaning of the language used is that when the policy is issued in a State with a statute in force regulating child labor according to the age of the child, and the loss occurs by reason of an employment in violation of such a law, then the company is not liable. The employment is the act guarded against by the exception.

Error to a judgment of the Law and Equity Court of the city of Richmond, in a proceeding by motion for a judgment for money. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

R. L. Montague and A. B. Dickinson, for the plaintiff in error.

S. S. P. Patteson, for the defendant in error.

CAMPBELL, J., delivered the opinion of the court.

This action, which is a sequel to the case of Miller Mfg. Co. Loving, 125 Va. 255, 99 S.E. 591, was brought by the Miller Manufacturing Company Aetna Life Insurance Company to recover the sum of $6,350.00, alleged to be due by virtue of a policy of insurance issued to the plaintiff by the defendant, dated June 29, 1917. The policy was known as "Manufacturers' Liability Policy," and contracted to insure plaintiff against damages, losses and expenses it might incur or sustain during the life of said policy, on account of injuries accidently inflicted on plaintiff's employees while in its employ at its factory in South Richmond, Virginia, in a sum not to exceed $5,000.00 for any employee, all necessary counsel fees in the event the defendant should refuse to defend said suit when notified, and all costs taxed against it.

Wilbur M. Loving, an infant over the age of fourteen years and an employee of plaintiff, by his next friend, recovered a verdict and judgment against the plaintiff for the sum of $8,000.00 on July 20, 1917, for injuries received during the life of said policy. The said judgment on appeal to this court was affirmed.

This case lies in a very narrow compass. There is no disputed question of fact. In the lower court a jury was waived and all matters of law and fact were submitted to the trial judge, who found a verdict for the defendant and entered judgment thereon, and to that judgment this writ of error was awarded.

It is conceded that Loving, the injured employee, was over fourteen years of age at the time of the injury, but under sixteen years of age; that he was injured at the factory of the plaintiff when the said policy was in force; was at the time of the injury in the employ of the plaintiff, and recovered a judgment for his injuries against the plaintiff for $8,000.00 and costs, which plaintiff paid.

The insurance company claims that it is exonerated from all liability on account of the child labor law, (Acts 1914, page 671). It is claimed that plaintiff did not comply with section 3 of this act, which reads as follows: "No child under sixteen years of age shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in section 1, unless the person, firm or corporation employing such child procures and keeps on file and accessible to any inspector of factories, or other authorized inspector, or officer charged with the enforcement of this act, the employment certificate as hereinafter provided, issued to said child." This certificate was never secured by plaintiff.

The policy of insurance issued by the defendant contains this clause: "Save and except injuries and/or death to or caused by any person employed in violation of law as to age, or of any age under fourteen (14) years, where there is no legal restriction as to age of employment." A proper construction of the clause set forth is determinative of the plaintiff's right of recovery.

The construction placed upon this clause by the plaintiff is set forth in the petition thus: "The statute recognizes that there is a twilight zone between the ages of fourteen and sixteen often hard to discern. The law evidently was passed to compel the employer to assist the inspector in ascertaining if children under the prescribed age were being worked. It is only just to require the employer to assist the inspector to this extent. This information being on hand, the inspector could easily check up the ages of children as he would have data to go upon right at his hand. It cannot be questioned that it is just as dangerous to work a boy over fourteen years with a certificate as...