Opinion
No. 18618
Decided April 14, 1925.
Workmen's compensation — Minor an employe and sui juris, when — Sections 1465-61 and 1465-93, General Code — Action against employer for damages barred by accepting compensation.
Under the provisions of Sections 1465-61 and 1465-93, General Code, enacted in 108 Ohio Laws, 316, 324, a minor 14 years and 7 months of age, working for hire and injured when those sections were in effect, is an employe of an employer, and, if the latter has complied with the Workmen's Compensation Act, is deemed sui juris for the purposes of the act. Such minor having applied for and received compensation from the Industrial Commission under the act, can not thereafter maintain an action for damages against such employer.
ERROR to the Court of Appeals of Cuyahoga county.
On November 15, 1920, Eyman, being then a minor 14 years and 7 months old, but representing himself as being 17 years of age, applied to the printing company, the plaintiff in error, for employment. The printing company had fully complied with the provisions of the Workmen's Compensation Law (General Code, Sections 1465-37 to 1465-108), and was at the time a contributor to the compensation fund. On the 28th day of November, 1920, while engaged in operating a certain folding machine, the boy was injured. Suit was brought in the court of common pleas by a next friend in the minor's behalf. The gravamen of the suit was negligence, the petition alleging that the defendant was negligent in not ascertaining the age of the minor before placing him to work in a dangerous place and upon dangerous machinery; and that the defendant was guilty of negligence and also of violation of the statutes of the state by employing the plaintiff and in not demanding a school certificate and ascertaining therefrom the age of the minor.
The defendant filed its answer, which, in addition to denials of negligence charged in the petition, pleaded that at the time of injury the defendant was a contributor to the workmen's compensation fund, and that shortly after his injury, as compensation therefor, the minor applied for and received an award from the state Industrial Commission.
A reply was filed wherein the plaintiff denied that he consciously applied for compensation, and alleged that if any application had been made it was made in reliance of the false and misleading representations made to him, a minor, by the defendant and its agent.
In the course of the trial, at the close of plaintiff's evidence, defendant's counsel moved for a directed verdict. That motion was overruled, but was renewed by defendant's counsel at the close of the entire evidence. At that time the trial court sustained the motion of the defendant and directed a verdict in its favor. The Court of Appeals reversed the judgment of the trial court solely "for error in directing a verdict, it being contrary to law." Error is now prosecuted to this court to reverse the judgment of the Court of Appeals.
Messrs. Dowling, Dowling Moriarty, for plaintiff in error.
Mr. Theodore L. Strimple and Messrs. Vickery Vickery, for defendant in error.
In view of former decisions of this court, the dates of the repeal and amendment of certain sections of the Workmen's Compensation Law become significant and important. On April 2, 1918, this court decided the case of Acklin Stamping Co. v. Kutz, 98 Ohio St. 61, 120 N.E. 229, 14 A. L. R., 812. Because of the provisions in the Workmen's Compensation Law relating to minors in effect at the time of the injury to Kutz, this court held that under Section 1465-61, General Code, as it then read, a minor employed in violation of a statute for his protection was not an employe within the meaning of the Workmen's Compensation Act. The section under consideration by the court was 1465-61, General Code (103 O. L., 77), which then read:
"2. Every person in the service of any person, firm or private corporation, including any public service corporation employing five or more workmen or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work for hire under the laws of the state, but not including any person whose employment is but casual, or not in the usual course of trade, business, profession or occupation of his employer."
A cognate section in force at the same time, pertaining to the status of a minor, was Section 1465-93, General Code (103 O. L., 89). This section then read as follows:
" A minor working at an age legally permitted under the laws of this state, shall be deemed sui juris for the purposes of this act."
The employment and injuries to the minor in this case occurred in November, 1920. On April 17, 1919, the Legislature repealed the two quoted sections and re-enacted them in 108 Ohio Laws, 317, 324. The repealing and amended act provided in express terms that Section 1465-61, General Code, should become effective on July 1, 1920. Under the constitutional mandate, however, and not by express provision, Section 1465-93, General Code, became effective August 14, 1919. It is readily seen, therefore, that at the time the minor was employed and injured in the present case, the act of 1919 was in force, and radically changed the status of a minor under an employer who had complied with the provisions of the Workmen's Compensation Act. Under the amendment (108 O. L., 317), the Legislature eliminated from Section 1465-61 the following language: Minors "who are legally permitted to work for hire under the laws of the state." It at the same time amended Section 1465-93 (108 O. L., 324). Formerly it read that " a minor working at an age legally permitted under the laws of this state, shall be deemed sui juris for the purposes of this act." However, at the time this injury occurred Section 1465-93, General Code, read as follows: "A minor shall be deemed sui juris for the purposes of this act." In the 1919 enactment (108 O. L., 317, 324), the qualifying words, making only those minors "who are legally permitted to work under the laws of the state" employes and sui juris, were eliminated and the minor's status in relation to our Workmen's Compensation Law was made similar to that of an adult person. That was evidently the legislative purpose, since the only amendments made to both sections were these eliminating the language referred to. To hold otherwise would amount to judicial legislation, and would make the re-enactment of 1919 ineffective. The decision of the Kutz case, supra, was made in April, 1918, and no doubt caused the amended act to be passed, wherein the Legislature abandoned the qualifying words referred to.
As it now stands the Workmen's Compensation Act is plain and explicit. Subdivisions 1 and 2 of Section 1465-61, General Code, provide that every person in the service of another employing five or more workmen under " any contract of hire * * * including * * * minors" shall be construed to be an employe "as used in this act." Though the employment be illegal, that section makes " any contract of hire" efficacious to sustain the relation of employe and employer under the act. Penal statutes prohibiting employment of minors are neither repealed nor made ineffective by the Workmen's Compensation Act; they can still be enforced, but such statutes do not preclude the Legislature from exercising the powers, conferred on it by Section 35, Article II, of the Constitution, of defining who shall be workmen or employe. It has the power to make, as it did in above section, both minor employes and employers amenable to the provisions of the act. Furthermore, Section 1465-93, General Code, now declares that a minor shall be sui juris for the purposes of this act, and not as it did formerly, that a minor working at an age legally permitted under the laws of the state shall be deemed sui juris under the act. The Compensation Law now gives the minor the benefit of the act, and under its provisions that consideration must be given to the minor by the employer where the rate of premium depends upon the number of employes in his establishment. The decision of this court is in harmony with that in Lopez v. King Bridge Co., 108 Ohio St. 1, 140 N.E. 322, where the only distinction arises from the fact that there the minor was over 16 and under 18 years of age. The court there held that under the terms of Section 1465-93, General Code, in effect at the time of injury, such minor was sui juris; that he was amenable to the Workmen's Compensation Law and was estopped from maintaining an action for damages after having elected to accept compensation.
The plaintiff in this case represented himself to be 17 years of age. As in the Lopez case, supra, the record discloses that he made an application for compensation to the state Industrial Commission and received an award of more than $500 for loss of time and loss of the second finger of his right hand. More than a year after the injury occurred, the director of claims of the Industrial Commission indicated that if further claim was made for loss of time, or supplemental injuries which required additional compensation, the commission, upon further proof, would take the matter under consideration. It was not until April 20, 1922, that the suit for damages was brought, notwithstanding the fact that plaintiff had theretofore applied for and received compensation.
Under the decision in the Lopez case, supra, we are constrained to hold that the minor was an employe sui juris, and estopped from maintaining an action for damages against an employer who had complied with the Workmen's Compensation Act. The trial court properly sustained the motion by defendant for a directed verdict in its favor. The judgment of the Court of Appeals is reversed and that of the common pleas affirmed.
Judgment of the Court of Appeals reversed, and that of the common pleas court affirmed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.