Van Sweden v. Van Sweden

• Decision Date: 07 April 1930
• Docket Number: No. 97.,97.
• Citation: 250 Mich. 238,230 N.W. 191
• Parties: VAN SWEDEN v. VAN SWEDEN et al.
• Court: Michigan Supreme Court

250 Mich. 238

230 N.W. 191

VAN SWEDEN

v.VAN SWEDEN et al.

No. 97.

Supreme Court of Michigan.

April 7, 1930.

Certiorari to the Department of Labor and Industry.

Proceedings under the Workmen's Compensation Law by John Van Sweden, Claimant, opposed by Elias Van Sweden, employer, and AEtna Life Insurance Company, insurance carrier. To review an award by the Department of Labor and Industry, the insurance carrier brings certiorari.

Award vacated, and case remanded, with direction.

Argued before the Entire Bench.Cornelius Hoffius, of Grand Rapids, for plaintiff.

Travis, Merrick & Johnson, of Grand Rapids, for defendants.

WIEST, C. J.

Elias Van Sweden, a carpenter, employed his sixteen year old son John as a helper. Elias was operating under the Workmen's Compensation Law (Comp. Laws 1915, §§ 5423-5495, as amended). A nail John was driving hit and injured his left eye. Report of the accident was made, and an agreement entered into between John and the insurance carrier for weekly payments during disability. The Department of Labor and Industry, on account of the age of the boy and the fact his employment had not been approved by the department, refused approval of the agreement, and directed a deputy commissioner to conduct a hearing. A hearing was had, the deputy found the employment of the boy unlawful, and awarded double compensation under Act No. 162, Public Acts 1927. Upon appeal, the commission affirmed the award. Review is by certiorari.

The insurance carrier claims:

‘1. That there is no evidence of illegal employment; the work at which plaintiff was employed was nonhazardous, therefore no approval by the department was necessary. No permit was necessary.

‘2. There is no evidence of a valid employment relation in this case, there being no evidence of emancipation.

‘3. An unemancipated minor cannot sue his father for compensation especially on a claim of illegal employment because it is against public policy for a son to bring such an action against his father.

‘4. The department has no jurisdiction to set a case for hearing on its own initiative.’

Was the employment of this boy by his father unlawful? Section 10 of Act No. 206, Public Acts 1923, as amended by Act No. 312, Public Acts 1925, provides:

‘It shall be the duty of every mercantile institution, store, hotel, office, laundry, manufacturing establishment, mine, bowling alley, workshop, quarry, telegraph or messenger service or any person coming within the provisions of this act to keep a register in which will be recorded the name, birthplace, age and place of residence of every person employed under the age of eighteen years and it shall be unlawful for any such establishment or person to hire or employ or permit to be hired or employed or suffered to work, any child under the age of eighteen years without there is first provided and placed on file in the business office thereof a permit or certificate.’

The mentioned permit is a work permit, issued under certain regulations, by designated public school officials. The boy had no such permit, and the commission held the act applicable and his employment unlawful. The statute does not include a carpenter's helper in its mention of business callings, unless the language ‘or any person coming within the provisions of this act’ serves as a catch-all. If such were its purpose, it could have been made plain by omitting special-mentioned callings and stating that the act applies to every employer. The enumerated callings are easily comprehended, and a search of the act and its amendments fails to disclose any further inclusion by the term ‘any person coming within the provisions of this act.’ It is a familiar rule that inclusion by specific mention excludes what is not mentioned. The employment of the boy, as a carpenter's helper, by his father, without a work permit, was not made unlawful by the mentioned statute.

Was the employment unlawful under section 11, Act No. 206, Public Acts 1923, without having the occupation approved by the Department of Labor and Industry as not injurious to his health or morals or unduly hazardous? No such approval was had. Must approval be special in each instance of employment, or may occupations be classed and approved as not unduly hazardous? If the work of a carpenter's helper is not hazardous, was it unlawful to so employ the boy without approval by the department? If a well-defined and commonly understood occupation is approved, as not unduly hazardous by the department, it requires no special approval in each instance to render employment therein lawful. We find no such general approval in this record.

Perhaps all occupations carry some degree of hazard, dependent upon care exercised, but only occupations, hazardous as such, are barred to minors. If the occupation is not injurious to health or morals, or hazardous, then it requires no approval of the department that it is not unduly hazardous. Safety to minors, as well as protection to employers, demands approval, at least, of occupations not so clearly nonhazardous as to forbid a holding that they are unduly hazardous. The work of the boy as a carpenter's helper, as shown by this record, was not hazardous. The accident was of a nature possible of happening to any person driving a nail.

The commission held:

‘There is no evidence in this case that it (the work) was hazardous, but the illegality in our opinion was the employment of the boy as a carpenter's helper on building operations without first having the work that he was to do approved by this department as not being unduly hazardous.’

Let us consider the far-reaching effect of such a holding. If a father takes a job of housecleaning and employs his sixteen-year old boy, paying him by the hour, to beat rugs, is the employment illegal, though it involves, in fact, no hazard? We forbear multiplying instances readily coming to mind. A hazard, within contemplation of the statute, is a risk incident to the nature of the work, and not a fortuitous circumstance likely to occur to any one in performing an everyday act.

We have under consideration the case of a father, employing his own boy, and not a case of a hiring by another and, of course, limit decision to the very matter before us.

Affirmance of the holding of the commission would astound fathers and mothers. We cannot read into the statute the inhibition applied by the board in case of a father employing his son in nonhazardous work under the father's personal supervision.

The father testified that his son was working for him as a carpenter helper; his work being to ‘clean up the houses, * * *...