Ocean Accident & Guarantee Corp., Ltd. v. Peoples Wet Wash Laundry Co.

• Decision Date: 01 December 1942
• Citation: 29 A.2d 418
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED v. PEOPLES WET WASH LAUNDRY CO. et al.
• Court: New Hampshire Supreme Court

29 A.2d 418

OCEAN ACCIDENT & GUARANTEE CORPORATION, LIMITED

v. PEOPLES WET WASH LAUNDRY CO. et al.

Supreme Court of New Hampshire. Hillsborough.

Dec. 1, 1942.

Transferred from Superior Court, Hillsborough County; Johnston, Judge.

Declaratory judgment action by the Ocean Accident & Guarantee Corporation, Limited, against Peoples Wet Wash Laundry Company and another. The case was reserved and transferred on defendant's exception to a ruling of the court.

Judgment for plaintiff.

Petition, for a declaratory judgment, seeking determination of coverage under a standard policy of workmen's compensation and employers' liability insurance issued by the plaintiff to the defendant company.

The following facts are agreed upon: June 13, 1941, Roger Pinard, the son of the defendant William Pinard, was injured while in the employ of the defendant company as the result of the alleged negligence of his employer. Suits at law to recover for such injuries have been instituted by the defendant William Pinard, individually, and as father and next friend of said Roger Pinard.

At the time of the accident Roger was fifteen years, ten months and sixteen days old. The defendant company neither at the time of the accident nor at any other time had procured and kept on file an employment certificate as required by chapter 118 of the Public Laws. The boy was a grammar school graduate and could read understandingly, and write legibly simple sentences in the English language. At the time of the accident he was on vacation.

The policy contains the following provisions:

"One (b) To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada. * * *"

"Three. To defend, in the name and on behalf of this Employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent."

On the foregoing facts, the Court (Johnston, J.) ruled that the petitioner is not required to defend the law actions above referred to or to pay any judgments that may be rendered therein. The defendants seasonably excepted to the foregoing ruling.

Reserved and transferred on defendants' exception.

Thorp & Branch, of Manchester, for plaintiff.

McLane, Davis & Carleton, of Manchester, for defendant Pinard.

Chretien & Craig, of Manchester, for defendant Company.

BURQUE, Justice.

P.L. c. 118, § 24 provides: "No child under sixteen years of age shall be employed, or permitted or suffered to work, in, about or in connection with, any place or establishment named in section 18, unless the person, firm or corporation employing such child, procures and keeps on file and accessible to any truant officer, or other authorized inspector, an employment certificate as hereinafter prescribed." One of the places or establishments named in section 18 is a "workshop", such as young Roger was employed in.

He being under sixteen years of age, and the defendant company employer not having "procured and kept on file * * * an employment certificate" as required by law, the plaintiff claims the boy was not "legally employed" and therefore the policy does not cover the risk. The position is well taken. Blanke-Baer, etc., Co. v. Ocean Accident & Guarantee Corporation, Mo.App., 96 S.W.2d 648, 651.

The statutory provision prohibiting employment of children under 16 without compliance with the statute, noncompliance therewith renders the employment illegal. Town of Belmont v. Parent, 90 N.H. 249, 7 A.2d 255. It therefore follows the policy does not cover, since its contract of insurance to indemnify applies only in cases where the employees are legally employed. Couch on Ins., Vol. 6, § 1278, p. 4698 and cases cited. Among others, particularly applicable to the instant case, is Miller Mfg. Co. v. Ætna Life Ins. Co., 150 Va. 495, 143 S.E. 747, in which is found an exhaustive review of authorities on the subject.

The defendant concedes there was a technical violation of the statute, but takes the position there was no material violation of the law, claiming the employer acted in good faith and without knowledge of the child...