Paltsio's Case
| Decision Date | 10 February 1950 |
| Parties | PALTSIO'S CASE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. H. Morris, Boston, for employee.
Charles T. Sexton, Boston, for employer.
Merritt J. Aldrich, Boston, for insurer.
Before QUA, C. J., and LUMMUS, RONAN, WILKINS, SPALDING and COUNIHAN, JJ.
The principal question in this case is whether the employee is entitled to double conpensation under G.L. (Ter.Ed.) c. 152, § 28, as appearing in St.1943, c. 529, § 9, for an injury sustained on Saturday, September 22, 1945, when he was over sixteen but under eighteen years of age, by getting his hand caught in a meat grinding machine which he was operating at the provision store of the employer. Loss of the hand resulted.
The section reads as follows:
The board found that the employee, known by his employer to be a minor, was employed in violation of G.L. (Ter.Ed.) c. 149, § 67, as appearing in St.1939, c. 348, 1 in that he was employed in a 'mercantile establishment', see section 60, and that his employment on the day of his injury 'called for' work over a total period of more than ten consecutive hours, even though the injury occurred at about noon after he had worked only about five and one fourth hours. The board held that this 'violation' constituted serious and wilful misconduct of the employer under the last sentence of c. 152, § 28, above quoted, and entitled the employee to double compensation. The Superior Court entered a decree in accordance with the decision of the board, and the employer appeals in defence against the claim of double compensation, as under section 28 it may. See West's Case, 313 Mass. 146, 154-155, 46 N.E.2d 760.
We are of opinion that there was no violation of c. 149, § 67, 'by reason of' which it could be found that the injury occurred. The employee, a high school pupil, worked 'on a part-time schedule--afternoons and week-ends.' There was evidence of the length of time during which the employee had worked on previous week-ends, including Saturdays, from which an inference could be drawn that the day's work would probably not have been completed on the day of the injury within the required period of ten hours. The injury, however, occurred about noon, and up to that time the permitted day's work had not been exceeded. By the terms of section 67 each day is a unit by itself. The statute forbids work for more than nine hours in one day to be performed within a period of ten consecutive hours. We have been unable to persuade ourselves that where a statute makes it an offence to require or permit work for more than nine hours in any day the offence has been committed when less than six hours have been worked, all within a permitted 'period' of ten hours. At the time of the injury no work was being done 'in violation' of section 67. It is probable that such work would have been done, if the employee had not been injured, and the day's work had gone on. But we do not see how the injury could be found to have occurred 'by reason of' a probable future violation of law, which in fact never took place. Neither do we see how on any evidence in this record it could be found to have occurred 'by reason of' violations on previous days. There is nothing to show, for example, that fatigue as the result of previous overwork had anything to do with the injury. See Baltimore & Ohio Railroad v. Wilson, 242 U.S. 295, 37 S.Ct. 123, 61 L.Ed. 312. Except on the next previous day (Friday), the employee had worked only half days after school hours during the entire week.
If it be argued that a finding was warranted that in view of the hours actually worked on former occasions it had come to be understood that the employment would or might involve work beyond the permitted hours, we think, nevertheless, that the mere hiring or the settling of the terms and conditions of employment cannot constitute in itself 'violation' of the prohibitions as to working hours contained in the section to which section 28 refers. We think these prohibitions relate to employment at work and that 'violation' consists in actually requiring or permitting work beyond the specified hours. Purtell v. Philadelphia & Reading Coal & Iron Co., 256 Ill. 110, 117, 99 N.E. 899, 43 L.R.A.,N.S., 193, Ann.Cas.1913E, 335; State v. Deck, 108 Mo.App. 292, 296, 83 S.W. 314; Buffalo Steel Co. v. Aetna Life Ins. Co., Sup., 136 N.Y.S. 977, 982. To employ often means to employ at actual work and not merely to hire. Commonwealth v. Griffith, 204 Mass. 18, 21-22, 90 N.E. 394, 25 L.R.A.,N.S., 957, 134 Am.St.Rep. 645; Lutkevicz v. Brennan, 128 Conn. 651, 25 A.2d 66; Kravis v. Hock, 137 N.J.L. 252, 255, 59 A.2d 657; People v. Taylor, 124 App.Div. 434, 108 N.Y.S. 796; American Candy Co. v. Aetna Life Ins. Co., 164 Wis. 266, 270, 159 N.W. 917; Tennessee Coal, Iron & Railroad Co. v. Musceda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014. See Commonwealth v. Riley, 210 Mass. 387, 391, 395-396, 97 N.E. 367, Ann.Cas.1912D, 388. The use in section 67 and in other sections of c. 149 of the words 'permit * * * to work' in conjunction with the word 'employ' does not mean that two crimes were created, one of which was to consist of the mere making of a contract of employment apart from actual work. In R.L. c. 106, §§ 23 and 24, the words were 'shall be employed in laboring.' These words had previously been held to mean 'engaged in labor.' Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383, 384. In St.1913, c. 831, the words became 'employed or permitted to work.' We do not believe that the Legislature intended to make a new crime out of the abstraction of entering into a contract of hire. We believe that both before and after the act of 1913 the Legislature intended to reach the concrete act of requiring or allowing the work-the thing that caused the harm at which the statute was aimed. We think that the words 'or permit * * * to work' were designed to prevent the employer from attempting to defend on the ground that he had not employed or authorized the employment of a minor actually found working in his establishment. See Purtell v. Philadelphia & Reading Coal & Iron Co., 256 Ill. 110, 116-117, 99 N.E. 899, 43 L.R.A.,N.S., 193, Ann.Cas.1913E, 335. This construction gives ample effect to these words.
Under the compensation law 'violation' is the test. That test must be the same in this case as it would be if the employer were being subjected to a criminal prosecution. If an employer should hire a minor to work longer than the permitted hours, but should never in fact allow him so to work, we think there could be no conviction for 'violation,' and if he were allowed so to work on a single occasion there would be one 'violation' and not two. So too, if a minor were hired to do work forbidden to one of his age, but through some delay performed no such work until after his age permitted it, we should not be prepared to hold the employer guilty. In the case before us a simple direction by the employer at any time could have ended all violation from then on. Such a direction might have been given on the afternoon of the injury. In Commonwealth v. Griffith 204 Mass. 18, 22, 90 N.E. 394, 25 L.R.A., N.S., 957, 134 Am.St.Rep. 645, it was held that a defendant could be found guilty under what is now part of c. 149, § 60, if the actual work was performed in this Commonwealth, even though the contract was made in another State. See further Commonwealth v. Hong, 261 Mass. 226, 158 N.E. 759, 55 A.L.R. 640; In re Pierce's Case, 267 Mass. 208, 166 N.E. 636.
Of all the prohibitions contained in c. 149, §§ 60 to 74, and in section 104, to all of which reference is made in c. 152, § 28, as appearing in St.1943, c. 529, § 9, a comparatively small number deal with hours of labor. The greater number deal with specified occupations or machines at which or upon which minors must not be allowed to work. Would an employer who had simply hired an employee in general terms at will be guilty of a 'violation' on a particular day because the hiring did not preclude work upon a forbidden machine and because on one or more previous occasions the employee had worked on such a machine, even though on the day in question he had done only allowable work in a place far removed from any forbidden machine? Could an injury on that day be found to have occurred 'by reason of the serious and wilful misconduct of an employer' simply because of what had gone before? We feel compelled to conclude that neither a 'violation' which may occur under the conditions of employment but which has not occurred at the time of the injury, nor a violation which has occurred but between which and the injury no causal connection is shown, confers a right to double compensation.
It may be, as the employee argues, that if at the time of the injury the employee is actually being required or permitted to work in violation of one of these prohibitions, that fact alone so characterizes the employment for the time being that if the injury arises out of the employment at all it must, for the purposes of c. 152, § 28, as amended, be deemed to have occurred 'by reason of the serious and wilful...
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