Town of New Holstein v. Daun

• Decision Date: 21 June 1926
• Citation: 209 N.W. 695,191 Wis. 93
• Parties: TOWN OF NEW HOLSTEIN v. DAUN ET AL.
• Court: Wisconsin Supreme Court

191 Wis. 93

209 N.W. 695

TOWN OF NEW HOLSTEIN

v.DAUN ET AL.

Supreme Court of Wisconsin.

June 21, 1926.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the Town of New Holstein against the Industrial Commission and another to set aside an award of compensation made by the Commission to George Daun. Judgment for defendants, and plaintiff appeals. Affirmed.

The Industrial Commission awarded George Daun, a minor of permit age, employed by plaintiff on road work without a permit, treble damages under subsection (7), section 102.09, Stats. 1923. Daun was employed to load stones on wagons. One Ridgeway, not a co-worker, struck a large stone with a hammer, and a piece of the stone or hammer flew off and hit Daun's eye, and destroyed its sight.

The commission found that Daun, who was 16 years old at the time of the injury, and earning an average wage of $945, would probably earn an average wage of $1,400 after arriving at the age of 21 years, and assessed the normal compensation at $2,750.03, payable by the town or its insurance carrier, and the further sum of $5,500.06 primarily payable by the town. From a judgment affirming the award, the plaintiff appealed.

Eschweiler, J., dissenting.Helmuth F. Arps, of Chilton (F. Ryan Duffy, of Fond du Lac, of counsel), for appellant.

Herman L. Ekern, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for Industrial Commission.

VINJE, C. J. (after stating the facts as above).

[1] We need not determine whether or not the employment of Daun by the town without a permit was illegal, or whether the town, as a quasi municipal corporation, was subject to the Child Labor Law. As the Workmen's Compensation Law stood at the time of the injury to Daun, it made by section 102.04 (1) the town an employer under the act. It further declared by section 102.09 (7) that--

“compensation and death benefits, as provided in sections 102.03 to 102.34, inclusive, shall, in the following cases, be treble the amount otherwise recoverable: (a) If the injured employee be a minor of permit age and at the time of the accident is employed, required, suffered or permitted to work without a written permit issued pursuant to section 103.05.”

Thus in plain language the Legislature said that a town employing a minor without a permit must respond in treble damages, if an injury occurs to the minor in the course of such employment. It is not the province of the court to construe away this unmistakable legislative mandate. Since this injury occurred, section 102.09 (7), by chapter 384, Laws of 1925, has been amended to read as follows:

“When the injury is sustained by a minor illegally employed, compensation and death benefits, as provided in sections 102.03 to 102.35 shall be as follows.”

Had the accident occurred under this law, the question of the legality of Daun's employment without a permit would have arisen; but we hold it does not arise under a law which says to an employer under the Workmen's Compensation Act that the employment of a minor of permit age without a permit subjects the employer to treble damages. The liability to treble damages under such a statute arises when there is an employment of a minor of permit age without a permit, irrespective of the legality or illegality of the employment. The act was intended to safeguard the health and life of minors, and should receive a liberal construction in order to effectuate that purpose. The Legislature made no exceptions in favor of the state or its subdivisions, and the court can make none.

Claim is made that the evidence does not sustain the finding that after 21 years of age Daun would probably earn $1,400 per year. We have examined the evidence, with the result that we cannot say there is no sufficient basis for the finding of the commission giving to its findings that conclusiveness the statute requires.

[2][3] It is also urged that the statute is unconstitutional because it places upon the employer the burden of proving that the minor would probably not earn $1,400 after majority. Section 102.11 (1) (e) provides:

“Unless otherwise established his earnings shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable.”

As to employers who come voluntarily under the act, the argument is met by the Supreme Court of the United States, where it says:

“More than this, the employer in this case having elected to accept the provisions of the law, and such benefits and immunities as it gives, may not escape its burdens by asserting that it is unconstitutional. The election is a waiver and estops such complaint.” Booth Fisheries Co. et al. v. Industrial Commission, 46 S. Ct. 491, 70 L. Ed. 908, May 24, 1926.

As to subdivisions of the state that come under the compensation law by force of statute, as the plaintiff did in this case, it is clear that the state may prescribe reasonable regulations as to their liabilities under the law. The placing upon them the burden of showing that a minor would probably not earn $1,400 after majority cannot be said to be so unreasonable as to be unconstitutional, assuming that a subdivision of a state can question the constitutionality of liabilities placed upon it by the state.

Judgment affirmed.

STEVENS, J., took no part.

ESCHWEILER, J. (dissenting).

Appellant town, the designated agent of the state for that purpose, was performing the governmental duty of repairing the public highway, and for negligence in so doing there is no liability to respond in damages except by express statute. Uecker v. Clyman, 137 Wis. 38, 39, 118 N. W. 247;Bremer v. Milwaukee, ...