2 N.W.2d 226 | Wis. | 1942
Action by Bloomer Brewery, Inc., against the Industrial Commission and others to vacate an interlocutory order of the commission dated February 3, 1940, allowing Robert Hart increased compensation under sec.
The facts are agreed upon. Hart, by a letter, fraudulently represented that he was over eighteen years of age and succeeded in inducing plaintiff to employ him. A paper on which was written: "Robert Hart has my permission to work in the bottling house in the Bloomer Brewery. He is eighteen years of age. Mr. E. L. Hart" was presented to the brewery, and it was represented to be a statement as to the age of Robert by his father. In fact it was not a truthful statement and was not signed by the father. At the time of his injury, *606 Robert was engaged in the performance of his duties in the bottling works, an employment prohibited to minors under the age of eighteen years. Sec. 103.69(3)(1), Stats.
The commission was of the opinion that "the misrepresentations by the applicant as to his age do not militate against recovery of increased compensation when the injured is employed in violation of the statute referred to," and ordered the payment of treble compensation. The objection of the employer to the award is based on the ground that the employee is responsible for his being placed in a prohibited employment. That he was a party to cheating his way into the position must be admitted. It must also be admitted that good reasons exist for the expressions indulged in by the trial judge in announcing his ruling that the order should be set aside. But these reasons and respondent's objection to the award must give way to a more cogent and controlling ground. Back of the statute invoked lies the idea of protecting the child. The law might have been drawn with some exception to, meet such a case as this but none was included. The law places upon the employer the duty of complying with child-labor laws.
In reaching the conclusion that the minor was estopped to deny the truth of his representation as to age, the circuit court relied in part upon the Michigan case of Boshaw v. J. J. NewberryCo. (1932)
"Violations of these provisions [prohibiting the employment of minors in certain specified employments] by the employer were held to give rise to a common-law tort action on the part of the injured minor. But the Workmen's Compensation Act is an entire departure from the common law in so far as it pertains to the rights and duties of employer and employee. [Citation.] And what is more important, the rights and duties of the respective parties under the compensation act arise out of and are incident to the contract of employment. [Citations.] In other words, they are contractual in nature; and plaintiff is here asserting her right for double compensation because of her contract of employment with defendant. Hence, if the other essential elements of estoppel are present, there is no reason why one of the parties to the contract should pot be estopped from taking advantage of a fraud perpetrated on the other party incident to procuring the contractual relation. This could not be true in a common-law tort action brought in consequence of the violation of the statute mentioned . . . without entirely defeating the purpose of the statute. The holding of the three cases noted is not applicable to the contractual relation arising in the instant case under the compensation act. On the contrary, and for the reasons noted, we hold plaintiff is estopped by her own fraud from being awarded double compensation."
The act of the Wisconsin legislature providing for increased compensation to minors illegally employed has long been interpreted to rest upon a principle contrary to that announced *608
by the Michigan court. The purpose was to incorporate into the compensation act protective conditions surrounding the compensability of minors illegally employed "so as not to emasculate one of the purposes of the child-labor law." Brennerv. Heruben (1920),
It followed therefore that the doctrine announced by the court in the case of Stetz v. F. Mayer Boot Shoe Co. (1916)
"The inquiry then arises, Is plaintiff estopped from recovering his damages in this case by misrepresenting his age to defendant's foreman at the time he was employed? The object of the provisions of sec. 1728a, Stats. [now appearing in the provisions of secs.
At the time of the decisions in the Brenner and GothardCases, supra, the law afforded less protection to an employer than do the present statutes. Then no provision was made for the issuance of a certificate of age by the commission, although *609
a permit unlawfully issued or altered after issuance (as is likewise now provided, sec.
The contention that an award of treble damages for injury received by a minor employed in violation of the labor laws should be set aside on the ground of fraudulent representations as to age by the minor in obtaining employment has long been settled in this state adversely to the theory of estoppel, and no reason is shown for disturbing the line of previous decisions. Mueller Son Co. v. Gothard, supra; ZurichGen. Acc. L. Co. v. Industrial Comm. (1928)
By the Court. — Judgment reversed, and cause remanded with directions to confirm the award of the Industrial Commission. *610