GEORGE R. GARNHUM'S CASE.

GEORGE R. GARNHUM'S CASE.

348 Mass. 87

October 9, 1964 - October 30, 1964

Suffolk County

Present: WILKINS, C.J., SPALDING, CUTTER, KIRK, & SPIEGEL, JJ.

It is a necessary implication of G. L. c. 152, Section 28, that a minor, known to be such by his employer, employed in violation of any provision of sections of c. 149 specified by Section 28 is an "employee" for the purpose of recovery of double compensation under Section 28. [89-90]

That one who "wanted a job for the summer" represented that he was over sixteen years of age to a prospective employer when in fact he was under that age did not constitute "serious and wilful misconduct" on his part barring him under G. L. c. 152, Section 27, from receiving double compensation under Section 28 for an injury arising out of and in the course of his employment in work on a machine in a factory in violation of c. 149, Sections 60, 61. [90]

Public policy did not require denying an injured employee recovery of double compensation under G. L. c. 152, Section 28, because of the fact that the employee had represented to the employer that he was over sixteen years of age when in fact he was under that age and thereby caused the employer, who knew the employee was a minor, to employ him for work on a machine in a manufacturing establishment in violation of c. 149, Sections 60-61. [90-92]

CERTIFICATION to the Superior Court of a decision by the Industrial Accident Board under the Workmen's Compensation Act.

The case was heard by Coddaire, J.

George Waldstein for the employer.

Stanley S. Lewenberg (Meyer H. Goldman with him) for the claimant.

SPIEGEL, J. This is an appeal by the employer from a final decree of the Superior Court awarding double compensation to the claimant in accordance with a decision of the reviewing board which adopted the findings and decision of the single member. G. L. c. 152, Section 10, as amended through St. 1947, c. 546.

Page 88

We herewith summarize the relevant facts found by the single member. On June 22, 1962, the claimant, who "wanted a job for the summer," filed an "Application for Employment" form with the employer (a manufacturing concern) in which the claimant stated that he had lived in the State for sixteen years. He also filed a "Report of Physical Examination" in which he had asserted his age to be sixteen years and nine months, although he was actually less than sixteen years of age. In a subsequent interview with one Frederick K. Whiting, vice-president and treasurer of the employer, in response to a question as to whether he was "sixteen, going on seventeen, he replied in the affirmative." No birth or employment certificates were ever obtained from the claimant or any other source. The claimant began his employment on June 25, 1962, and was "assigned jobs on various machines between June 25 and July 11, 1962." On July 11, 1962, the claimant was assigned to work on a "hydraulic machine" with "electric controls" and while operating it he injured his left hand. A claim for compensation was filed alleging, inter alia, that the employer unlawfully permitted the claimant to operate the machine while he was under sixteen years of age.

The single member concluded that the employer "had acquired sufficient information to apprise him of the minority of the . . . [claimant] at the time of his being hired," and that "the employment of [the] claimant . . . was in violation of provisions of Chapter 149 and constitutes serious and wilful misconduct on the part of the employer . . .." Double compensation under G. L. c. 152, Section 28 (as amended through St. 1943, c. 529, Section 9), was awarded to the claimant. It was agreed that the claimant "was injured in the course of his employment . . . and that as a result of the injury he is still disabled."

1. The employer contends that the claimant "is barred from recovery under the act [Note 1] because he was not an `employee,'"

Page 89

since "his contract of employment was void." We do not agree.

General Laws c. 149, Section 60 (as amended through St. 1947, c. 109, Section 1), provides in part that "No person shall employ a child under sixteen years of age, or permit him to work in, about or in connection with any factory, workshop, manufacturing or mechanical establishment at any time." Similarly, G. L. c. 149, Section 61, relied on by the employer, provides that "No person shall employ a minor under sixteen or permit him to work in operating or assisting in operating any of the following machines: . . . (17) power punches or shears, . . . (21) upon or in connection with any dangerous electrical machinery or appliances, . . . or in proximity to any . . . machinery or gearing while such machinery or gearing is in motion." According to the employer, it is the illegality of the employment under these provisions which denies any recovery to the claimant.

However, under G. L. c. 152, Section 28 (as amended through St. 1943, c. 529, Section 9), "If the employee is injured by reason of the serious and wilful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled. . . . The employment of any minor, known to be such, in violation of any provision of sections sixty to seventy-four, inclusive, or of section one hundred and four of chapter one hundred and forty-nine shall constitute serious and wilful misconduct under this section" (emphasis supplied). It seems obvious that violation of the very statutory provisions upon which the employer relies, in contending that the claimant cannot recover, operates by virtue of this section to qualify him for double recovery. The necessary implication of this section is that a minor employed as a consequence of the employer's unlawful conduct [Note 2] is an "employee" with all the rights incident to that status under the act. Cf. Pierce's

Page 90

Case, 267 Mass. 208 , 211-212; West's Case, 313 Mass. 146 , 148. See generally Larson, Workmen's Compensation Law, Section 47.52(a)-47.52(b).

2. The employer also contends that the claimant is barred from receiving compensation because of his "serious and wilful misconduct" in misrepresenting his age. The employer relies on G. L. c. 152, Section 27, which provides that "If the employee is injured by reason of his serious and wilful misconduct, he shall not receive compensation."

"In order to bar the employee his conduct must be both serious and wilful. The word serious refers to the conduct itself and not to its consequences. Wilful implies intent or such recklessness as is the equivalent of intent. This subject was . . . discussed and the cases collected in Scaia's Case, 320 Mass. 432 . In that case we directed attention to the definition of `reckless disregard of safety' in Section 500 of the Restatement: Torts as involving not only the intentional doing of the act charged, but also an easily perceptible danger of substantial bodily harm or death and a great chance that such harm will result." Dillon's Case, 324 Mass. 102 , 110. See Thayer's Case, 345 Mass. 36 , 40. The act of the minor claimant in misrepresenting his age because he "wanted a job for the summer" does not rise to the level of "serious and wilful misconduct" as that standard is defined in Dillon's Case, supra. There is not implicit in that act of misrepresentation "an easily perceptible danger of substantial bodily harm or death and a great chance that such harm will result." It is not like assaulting a fellow employee with a fork and thereby suffering a stab wound in return, Houston's Case, 344 Mass. 754 , or like a roofer's deliberate failure to work with a staging. Silver's Case, 260 Mass. 222 . See generally Larson, Workmen's Compensation Law, Section 32.

3. The employer would also deny the claimant recovery on grounds of public policy. In this connection, it is arguable that a possible hazard arising from a minor's misrepresentation of his age when applying for work is that he may be assigned to tasks which are too dangerous for him.

Page 91

It may be conjectured that the employer would not have assigned the claimant to work on the machine had the employer known the claimant's true age and therefore would not have violated G. L. c. 149, Sections 60-61. But this hardly furnishes a basis for avoiding the effect of G. L. c. 152, Section 28, quoted above. "[T]he plain intent of Section 28 . . . is to make the employer liable if he hires one, for the performance of the prohibited occupations, who he knows is a minor, even if he does not know that he is under the age at which he could lawfully be employed for the performance of such work. This accords with other provisions of the child labor law, imposing duties upon employers hiring minors to procure permits and educational certificates. G. L. . . . c. 149, Sections 86, 95. Restrictions upon the freedom of contract imposed in the interests of society in general and for the benefit of minors in particular must be observed by those seeking to avail themselves of the services of those under age." West's Case, 313 Mass. 146 , 150. Juozapaitis's Case, 335 Mass. 137 , 140.

In the case at bar the employer knew the claimant was a minor and could have avoided the effect of Section 28 by demanding and obtaining the employment permits required by G. L. c. 149, Sections 86 and 95, [Note 3] before engaging the claimant to work in the manufacturing establishment.

Page 92

We are of opinion that the clear intent of the statutory provisions is to protect minors from employment in hazardous jobs and that the claimant is not barred from recovery despite the fact that he misrepresented his age to his employer. Villapando v. Industrial Commn. 70 Ariz. 55, 56-57. Halfacre v. Paragon Bridge & Steel Co. 368 Mich. 366, 375, 381. Sackolwitz v. Charles Hamburg & Co. Inc. 295 N.Y. 264, 268-270. Bloomer Brewery, Inc. v. Industrial Commn. 239 Wis. 605, 606-609. Hertz Drivurself Stations, Inc. v. Industrial Commn. 254 Wis. 308, 309. Schneider, Workmen's Compensation, Section 1177(b).

The decree is affirmed. Costs of this appeal are to be determined by the single justice.

So ordered.

FOOTNOTES

[Note 1] General Laws c. 152, Section 1 (4), defines "employee" as "every person in the service of another under any contract of hire, express or implied, oral or written . . .."

[Note 2] General Laws c. 149, Section 78 (as amended through St. 1954, c. 240, Section 3), imposes a penalty for the violation of G. L. c. 149, Sections 60-74.

[Note 3] General Laws c. 149, Section 86 (as amended through St. 1947, c. 109, Section 2), provides, in relevant part: "No person shall employ a child under sixteen years of age, other than a child over fourteen granted an employment permit by the superintendent of schools when such superintendent determines that the welfare of such child will be better served through the granting of such permit, or permit him to work in, about or in connection with any mercantile establishment or in any employment mentioned in section sixty, . . . and provided, further, that no permit shall be issued to any child under sixteen to work in, about or in connection with any manufacturing or mechanical establishment, factory or workshop." A penalty for violation of this section is imposed under G. L. c. 149, Section 90, as amended through St. 1945, c. 133, Section 8.

General Laws c. 149, Section 95, as amended through St. 1956, c. 234, Section 1, provides, in relevant part: "No minor over sixteen and under eighteen shall be employed in a factory, workshop, manufacturing, mechanical or mercantile establishment . . . except as provided for pupils in co-operative courses, unless his employer procures and keeps on file an educational certificate showing the age of the minor and whether or not he meets the requirements for the completion of the sixth grade of the public schools of the town where he resides." A penalty for violation of this section is imposed under G. L. c. 149, Section 97.