Taglinette v. Sydney Worsted Co.

• Court: Rhode Island Supreme Court
• Writing for the Court: BAKER, J.
• Citation: Taglinette v. Sydney Worsted Co., 42 R.I. 133, 105 A. 641 (R.I. 1919)
• Decision Date: 07 March 1919
• Docket Number: No. 5238.,5238.
• Parties: TAGLINETTE v. SYDNEY WORSTED CO.

105 A. 641

TAGLINETTE

v. SYDNEY WORSTED CO.

No. 5238.

Supreme Court of Rhode Island.

March 7, 1919.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, presiding Justice.

Action by John Taglinette against the Sydney Worsted Company. The superior court rendered a decision sustaining a demurrer to plaintiff's reply, and plaintiff excepts. Exception overruled, and case remitted for further proceedings.

Archambault & Jalbert, of Woonsocket, for plaintiff.

Green, Hinckley & Allen, of Providence (Abbott Phillips and Chauncey E. Wheeler, both of Providence, of counsel), for defendant.

BAKER, J. This is an action at common law to recover damages for the death of Vito Taglinette, a minor, resulting from injuries received while employed by the defendant at its factory in Woonsocket. The plaintiff is the father of the deceased.

The declaration is in the usual form for common-law actions based on negligence. To the declaration the defendant filed a plea in abatement, which alleges, in substance, that at the time of the accident both the defendant as employer and the deceased as its employé were subject to the provisions of the Workmen's Compensation Act (Laws 1912, c. 831), and therefore a common-law action could not be maintained.

The plaintiff in his replication sought to take the case out of the provisions of the Workmen's Compensation Act by alleging that under section 6, art. 1, thereof, a minor, in order to become subject to its provisions, must be of an age at which he can legally be permitted to work under the laws of Rhode Island;, that at the time of the injury the deceased was over 14 years of age, but not 16, and was employed in a manufacturing establishment; that the defendant at the time the deceased entered its employ did not have in its possession an age and employment certificate prescribed by section 1 of chapter 78 of the General Laws of 1909, as amended by section 1, chapter 1378, Laws 1916, because the age and employment certificate in the possession of the defendant stated that the mother had control of the deceased, and was signed by her, whereas it should have been signed by the plaintiff, and should have stated that the father had control of the deceased. A copy of the certificate in question is set forth in the replication.

The defendant demurred to the replication upon the following grounds:

"(1) It appears in the declaration and in the replication that said Vito Taglinette, at the time of the said alleged accident mentioned in the declaration, was working at an age legally permitted under the laws of this state.

"(2) It appears in the replication that, at the time said Vito Taglinette entered the employment of said defendant, the latter had in its possession an age and employment certificate of said Vito Taglinette, given by or under the direction of the school committee of the city of Woonsocket, where said Vito Taglinette resided, which said certificate conformed to the provisions of said section 1 of chapter 1378 of the Public Laws of Rhode' Island of 1916.

"(3) It appears in the replication that at the time when said Vito Taglinette entered the employment of said defendant the latter had in its possession an age and employment certificate of said Vito Taglinette as required by law.

"(4) It does not appear in and by the declaration or replication that at the time of the said alleged accident to said Vito Taglinette mentioned in the declaration the defendant did not have in its possession the age and employment certificate of said Vito Taglinette required by Jaw.

"(5) It is immaterial, in so far as the defendant is concerned, that said age and employment certificate referred to in said replication stated falsely that the person having control of said Vito Taglinette was his mother, rather than his father, inasmuch as it appears that said certificate was in proper form and given by or under the direction of the school committee of said city of Woonsocket.

"(6) It is immaterial, in so far as the defendant is concerned, that said age and employment certificate referred to in said replication was signed by the mother of said Vito Taglinette instead of by his father, inasmuch as said certificate was in proper form and given by or under the direction of the school committee of said city of Woonsocket."

The superior court rendered a decision sustaining said demurrer, to which decision the plaintiff excepted. The case is now here on said exception.

The question in controversy really is whether or not the plaintiff's deceased minor child was, at the time of his death, an employé of the defendant subject to the provisions of chapter 831 of the Public Laws, designated as the Workmen's Compensation Act. If he was such an employé, then the present action is not maintainable, as "the right to compensation for an injury, and the remedy therefor granted by" said act, are "in lieu of all rights and remedies as to such injury * * * either at common law or otherwise" which existed at the time of the passage and approval of said chapter 831. The question arises primarily from the fact that said deceased was a minor. One of the provisions of section 6 of article 1 of said chapter is as follows:

"A minor working at an age legally permitted under the laws of this state shall be deemed sui juris for the purpose of this act."

The act, however, is itself silent as to when a minor is legally permitted to work. The conditions determinative of this fact are set forth in section 1 of chapter 1378 of the Public Laws, which is in amendment of and in addition to section 1 of chapter 78 of the General Laws, entitled "Of Factory Inspection."

Clause 1 of section 1 of chapter 1378 declares that:

"No child under fourteen years of age shall be employed or permitted or suffered to work in any factory, or manufacturing or business establishment within this state."

And clause 2 of the same section declares that:

"No child under sixteen years of age shall be employed or permitted or suffered to work in any factory or manufacturing or business establishment unless said person firm, or corporation employing him or her shall have in his, their or its possession an age and employment certificate, given by or under the direction of the school committee of the city or town in which said child resides."

One of the statements which said certificate must contain is "that said child has completed fourteen years of age." From this it is plain that no child under 14 is legally permitted to work in the business establishments enumerated, that a child under 16 years of age who has completed 14 years may work in such business establishments, but only when his employer has in his possession the age and employment certificate referred to. In the present case the facts admitted by the pleadings show the deceased was a few months more than 14 years of age when he was employed by the defendant company to work in its factory.

The first ground of demurrer is that the admitted facts show that the deceased minor at the time of his death "was working at an age legally permitted under the laws of this state," and the defendant urges that as a necessary consequence the deceased was sui juris for the purposes of the Workmen's Compensation Act. To state it otherwise, in effect the claim is that, inasmuch as the deceased was 14 years of age, and inasmuch as a child of that age may legally be permitted to work in a factory, the deceased, simply because of his age, was legally an "employé" under the Workmen's Compensation Act, as that term is defined in section 1 (b) of article 5 of the act.

Most, if not all, of the states which have a provision in their compensation acts relative to the employment of minors employ this language, "minors who are legally permitted to work under the laws of the state." It has been held that this language "was intended to exclude from the statute [Workmen's Compensation Act] minors whose employment is prohibited by law." Pette v. Noyes, 133 Minn. 109, 112, 157 N. W. 995, 996; Westerlund v. Kettle River Co., 137 Minn. 24, 162 N. W. 680, 15 N. C. C. 720, 724. The language of our act, "A minor working at an age legally permitted under the laws of this state shall be deemed sui juris" is apparently-employed in no similar act except in Ohio, where the Supplemental Act (effective January 1, 1914), in amendment of the Workmen's Compensation Act, employs the identical language of our act. See Honnold on Workmen's Compensation, vol. 2, 1487, § 46. In Acklin Stamping Co. v. Kutz (Ohio, 1918), 120 N. E. 231, it is held that, if illegally employed, a minor "would not be an employé within the meaning of that term" in the Compensation Act. Inasmuch as the Compensation Act is silent as to the age when a minor is permitted to work, it is obviously necessary that this provision must be construed in connection with section 1 of chapter 1378. Doing this, we are of the opinion that the first ground of defendant's demurrer is not well founded. As already appears, clause 2 of section 1 of chapter 1378 provides that "no child under sixteen years of age shall be employed or permitted or suffered to work in any factory," unless the employé has in his Possession an age and employment certificate. Hence the employment of a child of 14 without such certificate is expressly prohibited, and therefore unlawful. If the statute without qualification named 14 years as the age at which minors are legally permitted to work, then the construction claimed would unquestionably he correct. But since the statute prohibits employment below the age of 16, unless the employer has a certificate in his possession then, in our opinion, it must be held that a minor, working in a factory at the age of 14, when there is no certificate in his employer's possession, is not working at an age legally permitted under the laws of this state. To state it otherwise, the word "age" in the citation from section 6 of article 1 of...