MINORS UNDER. SIXTEEN NOT COVERED BY THE WORKMEN’S COMPENSATION ACT.

Court of Appeals for Lucas County.

(Before Judges Hughes, Kinder and Crow, of the Third District, sitting in place of Judges Chittenden, Kinkade and Richards.)

#### Walter Kutz, a Minor, by Louis Kutz, His Next Friend, v. The Acklin Stamping Company.

Decided, April 5, 1917.

*Boy Under Sixteen—Injured While Employed in Factory During NightTime—No School Certificate Obtained by Employer—Error in Charge of Court as to Status of Minor of that Age Under Worh-, men’s Compensation Act.*

A minor unlawfully employed while under sixteen years of age is not within the contemplation of the workmen’s compensation act; and an employer giving employment to a minor not legally permitted to work is amenable to all the other statutes of the state affecting employment in case of injury to such minor notwithstanding he had complied with the terms of the compensation act.

*S. S. Burtsfield,*for plaintiff in error.

*Marshall & Frazer,*contra.

Hughes, J.

The defendant owned and operated a factory or workshop in the city of Toledo, Ohio, with more than five employees engaged. The. plaintiff, a minor between the age of fifteen and sixteen years, was employed by the defendant during the latter part of May, to assist a stamper working on a stamping machine, by carrying what was known as yoke ends or small pieces of steel to him and placing them on a board near the machine. He was employed by the defendant to work during the night, from about six o’clock in the evening until five o’clock in the morning.

.When the contract of employment was entered into, there was . no schooling certificate either produced by the plaintiff .or pro*274cured by the defendant, nor was any reference or inquiry made regarding the same by either party.

It is contended on behalf of the defendant that the father of this boy represented to it that said boy was over sixteen years of age, but there is no claim and no evidence to support a claim that any inquiry was made of the boy or any assertion made by him regarding his age at or before the time he was employed.

On the night of June 28th, a ventilating fan was installed by the defendant in an opening in one end of its building. This fan was four and a half feet in diameter, about four feet above the floor and with its steel blades projecting three and a half inches inside the line of the wall. The fan was installed on this day and in operation before guards were placed about it. It is the claim of the defendant that it was started on this night for the purpose of testing and that guards were to be placed about it later.

The plaintiff’s hand, he claims, as he was reaching in a barrel for some of these yoke ends, came in contact with the steel blades of this revolving fan and was so injured that it became necessary to amputate the same. Defendant asserts that plaintiff was throwing paper in the fan and thereby was injured.

..The trial court directed the jury that it should disregard and give no heed whatsoever to the fact that the plaintiff was a minor, in effect charging that he came within the workmen’s compensation laws of this state and having elected to sue instead of asking for compensation out of the state insurance fund, became subject to all of the laws of this act, and that the defendant was entitled to the defenses of the common law, namely, contributory negligence and assumed risk.

There are numerous errors assigned, all of which have been examined into with care, but will not be discussed separately for the rehson that the general discussion following sufficiently disposes óf them all.

If the plaintiff was an employee within the meaning of the workmen’s compensation act, the theory of the defendant and the trial court is correct.

An employer who has complied with the terms of this act is not liable for personal injuries to an employee in a civil ac*275tion, but sueb employee must receive his compensation out of the state insurance fund. The exception to this is found, however, in Section 1465-76 of the General Code, which reads as follows:

“# >s * And }n case gueh injury has arisen from the willful act of such employer or any of such employer’s officers or agents, or from the failure of such employer or any of such employer’s officers or agents to comply with any lawful requirement for the protection of the lives and safety of employees, then in such event, nothing in this act contained shall affect the civil liability of such employer, but such injured *employee, *** * may, at his option, either claim compensation under this act or institute proceedings in the courts for his damage on account of such injury; * * * and in all actions authorized by this section, the defendant shall be entitled to plead the defense of contributory negligence and the defense of the follow-servant rule.” **** *

“A minor *luorhing at an age legally permitted under the laws*of this state, shall be deemed *sui juris*for the purposes of this act, and no other person shall have any cause of action or- right to compensation for an injury to such minor workman, but in the event of the award of a lump sum of compensation to such minor employee, such sum shall be paid only to the legally appointed guardian of such minor.”

Another section of this act (General Code, 1465-93) reads as follows:

“Section 1465-93. A minor working at any age legally permitted under the laws of this state shall be deemed *sui juris*for the purposes of this act, and no other person shall have any cause of action or right to compensation for an injury to such 'minor workman, but in the event of the award of a lump sum of compensation to such minor employee, such sum shall be paid only to the legally appointed guardian of such minor.”

The trial court no doubt assumed that the plaintiff in this case was within the terms of the act and therefore *sui juris,*and having elected to sue in the civil court, the defendant was entitled to plead the defense of contributory negligence and the fellow-servant rule.

*276The word “employee” as used in.this act is defined to be, in so far as a minor is concerned, ' ‘ every person, in the services of any person, etc., and also including minors who are legally permitted to work for hire under the laws of the state.” General Code, 1465-61.

It is here observed that a minor who is *legally permitted to work*for hire under the laws of this state is an employee within the terms of this act, but not otherwise.

There was no intention -of the Legislature to abridge the operation of the other statutes of our state.' This act was passed for the purpose of creating a state insurance fund for the benefit of injured and the dependents of killed *employees*and to provide for the administration of such fund. The purpose of the law is to compel the industries of the state to bear the burden of accidents- occurring in their operation and the fund is created for this purpose. The right to participate in this fund is given to none other than *employees*or their dependents.

The act furnishes no excuse to the employer for violating any of the other statutory obligations regarding labor and minors. And under the laws of this state, if the employer does not come within the terms of the workmen’s compensation act he is .amenable to all of the other statutes of the state. He is prohibited by statute from employing minors under sixteen years of age before exacting from the minor the age and schooling certificate provided by law.

Section 12975 reads as follows-.

“Whoever employs a minor under sixteen years of age before exacting from such minor the age and schooling certificate provided by law, or fails to keep such certificate on file,- or who fails to return to the superintendent of schools or the- person authorized by him such certificate within two days from such minor’s withdrawal or dismissal from his services as provided in section seventy-seven hundred and sixty, or to permit a truant officer, upon request therefor, to examine such certificate, shall be fined not less than twenty-five dollars nor more than fifty dollars.”

And by virtue of Section 12994, an employer is not only prohibited from employing a minor in any of the occupations described in Section 12993, but he is also prohibited, from permitting a minor under sixteen years of age to work in connee*277■tion with any of these vocations .unless such employer has first ■procured from the proper authorities the age and schooling certificate provided by law. These two sections read as follows:

“Section 12993. No male child under fifteen years or female child under sixteen years of age shall be employed, permitted or suffered to work in, about or in connection with any (1) mill, (2) factory, (3) workshop, (4) mercantile or mechanical establishments, (5) tenement-house, manufactory or workshop, (6) store, (7) office, (8) office building, (9) restau:unt, (10) boarding house, (11) -bakery, (12) barber shop, (13) hotel, (14) apartment house, (15) bootblack stand or establishment, (16) public stable, (17) garage, (18) laundry, (19) place of amusement, (20) club, (21) or as a driver, (22) or in any brick or lumber yard, (23) or in the construction or repair of buildings, (24) or in the distribution, transmission or sale of merchandise, *(25)*nor any boy under fifteen or female under twenty-one years in the transmission of messages.

“It shall be unlawful for any person, firm or corporation to employ, permit or suffer to work any child under fifteen years of age in any business whatever during any of the hours when the public schools of the district in which the child resides are in session.”

“Section 12994. No boy under sixteen years of age and no girl under eighteen years of age shall be employed or *permitted*■to work on or in connection with the establishments mentioned in Section 12993 of the General Code, or in the distribution or transmission of merchandise or messages, unless such employer first procures from the proper authority the age and schooling certificate provided by law.”

This certificate the employer is required to file in his office to be kept there subject to inspection upon request.

Section 12995 reads:

“Section 12995. The certificate mentioned in the Section 12994 shall be filed in the office of such establishment and shall be produced for inspection upon request therefor by the chief or district inspector of workshops and factories or a truant officer and shall be returned forthwith to the superintendent of schools or other persons legally issuing it, by the person in charge or manager of such establishment upon the termination of the employment of such minor. Upon failure on the part of the employer so to return said certificate within two days,' the child *278terminating his employment shall be entitled to recover from such employer in a civil action as damages an amount equal to the wages which he would have earned had he continued in said employment for the period between such termination thereof and the time when such certificate is so returned. If such child at any time fails to appear for work without explanation, the employment shall be deemed within the purpose of this section to have terminated upon the expiration of two days after his so failing to appear.”

An employer of a minor is further prohibited not only from employing a boy under sixteen years of age, but he shall not permit or suffer him to work in or about or in connection with any establishment or occupation named in the above quoted section, among other things, before the hour of seven o ’clock in the morning or after the hour of six o’clock in the evening. This section reads as follows:

“Section 12996. No boy under the age of sixteen and no girl under the age of eighteen years shall be employed, *permitted or suffered*to work in, about or in connection with any establishment or occupation named in Section 12993 (1) for more than six days in any one week, (2) nor more than forty-eight hours in any week, (3) nor more than eight hours in any one day, (4) or before the hour of seven o’clock in the morning or after the hour of six o’clock in the evening. The presence of such child in any establishment during working hours shall be *prima facie*evidence of its employment therein. No boy under the age of eighteen years or girl under the age of twenty-one years shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in Section 12993 (1) for more than six days in any one week, (2) nor more than fifty-four hours in any week, (3) nor more than ten hours in any one day, (4) or before the hour of six o’clock in the morning or after the hour of ten o’clock in the evening. Iiy estimating such periods, the time spent at different employments or under different employers shall be considered as a whole and not separately.”

These last five sections above quoted are found under the chapter of “Offenses against Minors,” and it will be observed by consulting the Year Book 99, at page 30, that it was the inten- ■ tion of the Legislature to pass this act to provide a complete system of certificates by which employers can determine the age *279of minor laborers. And also to make tbeir minor labor law conform with our compulsory education law.

It can not be argued with much force, that in the face of this expressed intention, an employer, can ever excuse himself for thinking a minor, under the prohibited age, old enough to enter his employment unless this certificate is produced at the time of employment.

The compulsory education laws provide that no child under sixteen years of age shall be employed or *be in the employment*of any person during the school time unless the certificate is furnished.

Sections 7765 and 7766 of the General Code as amended in 103 Ohio Laws, page 898, read as follows:

. “Section 7765. No child under sixteen years of age shall be employed or *be in the employment*of any person, company or corporation during the school term and while the public schools are in session, unless such child presents to such person, company or corporation an age and schooling certificate herein provided for as a condition of employment, who shall keep the same on file for inspection by the truant officer or officers of the department of workshops and factories.”

“Section 7766. An age and schooling certificate shall be approved only by the superintendent of schools, or by a person authorized by him, in city or other districts having such superintendent, or by the clerk of the board of education in village, special and township districts not having such superintendent, upon satisfactory proof that such child is over fourteen years of age, and that such child has been examined and passed a satisfactory fifth grade test in the studies enumerated in section seventy-seven hundred and sixty-two; provided, that residents of other states who work in Ohio must qualify as aforesaid in the proper school authority in the school district in which the establishment is located, as a condition of employment or service, and that the employment contemplated by the child is not prohibited by any law regulating the employment of children under sixteen years of age. Every such age and schooling certificate shall be signed in the presence of the officer issuing the same, by the child in whose name it is issued. The age and schooling certificate must be formulated by the state commissioner of common schools and furnished, in blank, by the clerk of the board of education. Any child between fourteen and sixteen years of age *280who shall cease to work for any canse whatever shall report the fact and cause at once to the superintendent of schools, or by a person authorized by him, or to the clerk of the board of education in village, township or special districts not having such superintendent; said child shall be requiréd to return to school within two weeks, provided other employment is not secured within such time; provided, that should a child in the opinion of the superintendent or person authorized by him in cities and districts having such superintendent or the clerk of the board of education in village, township, or special districts lose his employment by reason of persistent, willful misconduct or continuous inconsistency, he may be placed in school until the close of the current school year. The superintendent of schools, or the person authorized by him to issue age and schooling certificates, shall not issue such certificate until he has received, examined and approved and filed the following papers duly executed: . (1) the written pledge or promise of the person, partnership or corporation to legally employ the child, also the written agreement to return to the superintendent of schools to issue such certificate, the age and schooling certificate of the child within two days from date of the child’s withdrawal or dismissal from the service of the person, partnership or corporation, giving the reason for such withdrawal or dismissal; (2) the school record of such child properly filled out and signed by the principal or other person in charge of the school which such child last attended, giving the name, age, address, standing in studies enumerated in section seven thousand seven hundred and sixty-two • and number of weeks ’ attendance in school during the year previous to applying for such school record, the general conduct; (3) a passport or duly attested transcript of the certificate of birth or baptism or other religious record, showing the date and place of birth of such child; a duly attested transcript of the birth certificate filed according to law with a registrar of vital statistics, or other officer charged with the duty of recording births, shall be conclusive evidence of the age of the child; or the affidavit of the parent or guardian or custodian of the child applying for an age and schooling certificate showing the place and date of birth of such child, which affidavit must be taken before the officer issuing the age and schooling certificate, who is hereby authorized and required to administer such oath, and who shall not receive or demand a fee therefor; (4) when a reasonable doubt exists in the mind of the superintendent or the person authorized by him that the child has not reached the normal development of a child of its age and is not in sound health and physically able to perform the work which it intends to do, he shall require of the parent or guardian a certificate from the *281board of health showing that the child is able to perform the wqrk he is to be employed at.”

It is clear from a reading of these statutes providing for compulsory education and also defining offenses against minors, that it was the intention of the Legislature to consider a minor, under the age of sixteen years who was unlawfully employed, to be a person not within the contemplation of the workmen’s compensation act.

These statutes that have been quoted above compelling education and defining offenses against minors were intended to prevent persons of immature judgment from engaging in hazardous occupations, to prevent employment and overwork of children during the period of their mental and physical development, and to prevent competition between weak and underpaid labor and mature men owing to society the duties of citizenship, and the compensation act in no way limits their operation.

An employer who employs a child under the prohibited age must be prepared to show at all times that he is employed lawfully. And When it appears that the minor is unlawfully employed, he is not an employee within the terms of the compensation act and such minor, if injured, has the benefit and protection of the other statutory provisions passed for the benefit of labor. *Hillstead*v. *Industrial Commission of Washington,*141 Pacific, 913.

Section 6245-2 (referring to actions to recover from an employer for personal injuries caused by negligence) provides:

■ 1 ‘ Section 6245-2. That in all such actions where a minor employee has been employed or *retained*in employment contrary to any statute or law of the state or United States, such employee Shall not be deemed or held to have been guilty of contributory negligence, nor .to have assumed any of the risks of such employment ; but the employer majr show by way of defense any fraud or misrepresentation made by such employee.”

• This being true, the trial court erred in taking away from the jury for its consideration the fact that plaintiff was a minor under the age of sixteen years.

Plaintiff not coming within the terms of the workmen’s compensation act was also entitled to the benefit of Section 1027, *282sub-division 7, of the General Code. See 89 O. S., 297; *Jones*v. *American Caramel*Company, 74 Atl., 613.

The judgment of the court of common pleas is reversed.

Bonder, J., and Crow, J., concur.