#### Stetz, by guardian *ad*litem, Appellant, vs. F. Mayer Boot & Shoe Company, Respondent.

*February 24*

*May 2, 1916.*

*Workmen’s compensation: What minors are “employees:” Employment in violation of law: Injurf/: Liability of master: Misrepresentation as to age: Counterclaim: Estoppel: Settlement and release: Guardian and ward.*

1. A minor under sixteen years of age who, at the time of his employment and injury, had not obtained a written permit authorizing his employment as required by sub. 1, sec. 1728a, Stats., was not “legally permitted to work under the laws of the state” within the meaning of sub. (2), sec. 2394 — 7, Stats., and hence was not an “employee,” within the meaning of the latter section, whose rights in respect to such injury were governed by the Workmen’s Compensation Act. *Fot-h v. Macomber é W. R. Go.*161 Wis. 549, distinguished and limited.

2. One who, in violation of sub. 1, sec. 1728a, Stats., employs a minor . under the age of sixteen years without the written permit therein provided for, and is thus guilty of a misdemeanor under sec. 172871, is liable for injuries sustained by the minor as a result of such unlawful employment, and the facts that the minor and his father misrepresented his age in order to secure such employment and that the employer was justified, in the exercise of proper vigilance, in relying upon their representations that the boy was more than sixteen years of age, do not constitute a defense in the action by the minor to recover for such injuries.

• 3. Nor do the facts above stated form a basis for a counterclaim by the employer against the minor for damages on account of such misrepresentation.

4. The statute (sec. 1728a, Stats.) being declaratory of a public policy, and the act of the employer only, not that of the minor, being made unlawful, the fact that the minor misrepresented his age does not bar or estop him from recovering damages for his injury.

5. A settlement agreed upon for injuries to a minor employee and a release signed by his guardian under the mistaken supposition that the claim was governed by the Workmen’s Compensation Act, did not settle the claim for damages for his injuries resulting from his employment in violation of sec. 1728a, Stats., there being manifestly no such intention; and in any event the release, not having been approved by the county judge as required by sec. 3982, Stats., is not binding upon the minor as to such claim for damages.

*152.Appeal from a judgment of tbe circuit court for Milwaukee county: F. 0. Eschweiler, Circuit Judge.

*Reversed.*

This is an action to recover damages resulting from personal injuries sustained by tbe plaintiff while in tbe employ •of tbe defendant company.

Tbe defendant is a corporation engaged in tbe manufacture •of boots and shoes in tbe city of Milwaukee. Tbe plaintiff was employed by tbe defendant, and while operating a heel-press machine be was injured. At tbe time tbe plaintiff was injured be was less than sixteen years of age and bad no permit authorizing bis employment. Tbe plaintiff went with bis father and uncle to tbe home of tbe foreman of tbe defendant company to apply for work. They represented to defendant’s foreman that plaintiff was then sixteen years of age. ■Sometime after plaintiff was injured be went to tbe liability insurance company which carried insurance for tbe defendant, and a settlement of $287.84 was agreed upon as tbe maximum allowed under tbe Workmen’s Compensation Law. Plaintiff’s guardian signed a release for this amount. This ■settlement was approved by tbe industrial commission, but was not approved by tbe county court of Milwaukee county. 'The court submitted a special verdict to tbe jury, who found (1) that tbe plaintiff was less than sixteen-years of age at tbe time be was employed by tbe defendant; (2) that tbe plaintiff represented to tbe defendant’s foreman at tbe time be was •employed that be was more than sixteen years of age; (3) that tbe plaintiff’s father, at or prior to plaintiff’s employment, represented to tbe defendant’s foreman that plaintiff was more than sixteen years of age; (4) that tbe foreman was justified in tbe exercise of proper vigilance, in tbe light •of plaintiff’s appearance, in relying upon tbe representations that tbe plaintiff was more than sixteen years of age; (5) that there were no false and fraudulent representations knowingly made by any one, on behalf of tbe defendant or tbe insurance •company, to tbe plaintiff or bis father as an inducement to tbe *153signing of tbe release of plaintiff’s claim; (8) that there was not gross negligente on plaintiff’s part which contributed to his injury; (9) that if plaintiff is entitled to recover his damages are $985.

The court awarded judgment on this verdict dismissing plaintiff’s complaint with costs. From such judgment this appeal is taken.

For the appellant there was a brief by *Rubin, Fawcett & Butcher,*attorneys, and P. *R. Newcomb,*of counsel, and oral argument by *Mr. Newcomb. ■*

For the respondent there was a brief by *Doe, Ballhorn, Wilkie & Doe,*and oral argument by *J. B. Doe.*

The following opinion was filed March 14, 1916:

Siebeckee, J.

Are the rights of the parties to this action governed by the provisions of the Workmen’s Compensation Law, secs. 2394 — 1 to 2394 — 31, Stats. 1915, inclusive? By sub. (2) of sec. *2394*— 1- of this act the term “employee” as used in the Workmen’s Compensation Law shall include “Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the state (who, for the purposes of section 2394 — 8, shall be considered the same and shall have the power of contracting as adult employees).” The plaintiff'was less than sixteen years of age. at the time of his employment and injury. He had not obtained “a written permit authorizing the employment” of him, under sub. 1, sec. *1728a,*which forbids the employment of children “between the ages of fourteen and sixteen years ... in any factory or workshop, ... or at any gainful occupation, or employment, directly or indirectly, unless there is first obtained from the commissioner of labor . . .” or other specified officers “a Avritten permit authorizing the employment of such child within such time or times as the said commissioner of *154labor . . .” or other officers “may fix; . . .” If the plaintiff’s legal remedy for the injury be suffered is governed by the Workmen’s Compensation Law, then the defendant has discharged its obligations toward him by the settlement made with him under this law, which received the formal approval of the industrial commission.

The plaintiff, being under sixteen years of age at the time of employment and not having obtained a written permit authorizing his employment as provided by sub. 1, sec. 1728a, could not be legally employed by defendant for the service at which he was engaged and in which he suffered his injuries. The terms of sub. (2), sec. 2394 — 7, which confers on minors the power to contract for employment the same as adults, clearly limit the power so conferred to minors “who are legally permitted to work under the laws of the state.” It seems plain that the statute includes only such minors who at the time of contracting are legally authorized to enter the employer’s service. The legislative intent evidently is to enable any minor who has the legal right to work to make a contract for his employment the same as adults, and if he has the legal authority to exercise this right then he “shall be considered the same ... as adult employees” for the purposes of sec. 2394 — 8 of the Workmen’s Compensation Law. .The provisions of this statute can only apply to minors who are at the time of contracting to enter the service of another authorized and permitted under the law to engage in such service and employment the same as adults.

It is urged that the Workmen’s Compensation Law applies to and includes all minors in the service of others, who, under the law, may upon specified conditions and circumstances obtain a permit authorizing their employment, without first obtaining the permit provided by law. This contention runs counter to the terms of the Compensation Law and the provisions of other statutes prohibitingvthe employment of children under certain ages. The interpretation of sub. (2), sec. *1552394 — 7, as applied in *Foth v. Macomber & W. R. Co.*161 Wis. 549, 154 N. W. 369, does not include the instant case. In that case the minor who was injured was at the time of entering the services legally authorized to engage in the occupation for which he contracted to work, but at the time of injury he was working at a machine at which he was forbidden to work, and it was held that, since the minor was legally authorized to make that contract of employment, for the purposes of sec. 2394 — 8 he must be considered the same as an adult employee, and that under the fácts and circumstances shown he was injured while “performing service growing out of and incidental to his employment.” The language of the court in the decision of the *Foth Case*must be understood and interpreted in the light of the facts of that case. When so read and properly restricted in its application, the phraseology employed in construing the statutes therein referred to does not conflict with the interpretation of the law in its application to this case. From the foregoing it necessarily results that the provisions of the Workmen’s Compensation Law do not govern the rights of the parties to this case.

The question then arises whether or not the defendant is liable in damages to the plaintiff under the law applicable to persons having the relation which is shown to have existed between plaintiff and defendant when the accident happened. The provisions of sub. 1, sec. 1728a, prohibit the employment of any child between the ages of fourteen and sixteen years to work in any factory or workshop, etc., without first obtaining a written permit as therein specified. See. 17287& declares that any employer, including a corporation, violating the provisions of sec. 1728a shall be deemed guilty of a misdemeanor and liable to fine or imprisonment. It is without dispute that defendant’s employment, of plaintiff, under the facts found by the jury, was a violation of these statutes and makes the defendant liable in damages to plaintiff, unless the finding of the jury to the effect that defendant’s foreman was reason*156ably justified, under all the facts and circumstances, in relying on plaintiff’s representation that be was more than sixteen years of age, bars the plaintiff’s right to a recovery of his damages. In *Pinoza v. Northern C. Co.*152 Wis. 473, 140 N. W. 84, it was held that in an action for injuries to a boy under sixteen years of age which resulted from his employment by the defendant in that case in violation of sec. 1728a, Stats. 1911 (ch. 338, Laws 1909), in an “employment dangerous to life and limb,” the defense of contributory negligence is not available, and that such a violation of the statute, constituting a criminal offense, is classed with gross negligence as defined in our law and makes the person liable in a civil action for the injuries resulting from such violation of the law. The basis of that decision rests essentially, as there declared, on these propositions:

> “If a person purposely does an act in violation of a duty created by law as regards the personal safety of others, and the policy of the written law is that the prevention of such violations is so important that a person guilty thereof should in addition to civil liability to the injured person be held criminally liable as for a serious offense against the public, the act should be regarded as done regardless of human life or bodily injury . . . ; thus classing the act of the wrongdoer with ordinary acts of gross negligence. . . . The principle thus stated is in harmony with general public policy. Every one is presumed to know the law, even though as a matter of fact he may be ignorant of it.”

*Lenahan v. Pittston C. M. Co.*218 Pa. St. 311, 67 Atl. 642; *Stehle v. Jaeger A. M. Co.*220 Pa. St. 617, 69 Atl. 1116; *Strafford v. Republic I. & S. Co.*238 Ill. 371, 87 N. E. 358.

Upon the facts of this case the defendant, under the doctrine as applied in the *Pinoza*Gase, is liable to plaintiff for the injuries he sustained as a result of such unlawful employment of him by the defendant unless plaintiff’s misrepresentation of his age to defendant’s foreman, as found by *157tbe jury, operates as a bar to plaintiff’s right to recover damages for bis injuries. As has been indicated in tbe decisions of tbis court, tbe liability in tbis class of cases is predicated on tbe tort arising from tbe act wbicb tbe law denounces as a crime as distinguished from liability arising from acts of ordinary negligence. In those cases it is said of tbe act of tbe employer in employing a minor in violation of tbe law, wbicb results in injury to tbe minor, “Tbe fault was ad-vertent in character. There was an actual or constructive intent to violate tbe law, equivalent, as indicated, to a constructive intent to cause tbe consequences wbicb tbe law was designed to prevent.” Under tbe law as here established tbe record now before us presents no case within the law of negligence, and all precedents in other jurisdictions, of which *Koester v. Rochester C. Works,*194 N. Y. 92, 87 N. E. 77, is representative, have no application to tbis case because it and others similar in their character go on tbe grounds of negligence.

Tbe inquiry then arises, Is plaintiff estopped from recovering bis damages in tbis case by misrepresenting bis age to defendant’s foreman at tbe time be was employed ? Tbe object of tbe provisions of sec. 1728a, Stats., is to conserve tbe health and morals of children in tbe interest of the general welfare. It is declaratory of a public policy and makes all employments of children contrary to its provisions criminal acts, and we do not deem it permissible for the court to so construe the statute and restrict its operative effect that it would not harmonize with this clear legislative intent.- To permit an employer to protect himself against the consequences resulting from his violation of this law by the plea that he acted with reasonable diligence to avoid a breach of it, would seriously restrict and modify the beneficial objects for the protection of children which the legislature obviously intended to accomplish. The *Pinom Case*points out the fact that the statute is undoubtedly taken from a siniilar one *158in the state of Illinois and was there construed, before this state enacted it, in *American C. & F. Co. v. Armentraut,*214 Ill. 509, 73 N. E. 766. In that case the injured child had misrepresented his age, and it was urged that such misrepresentation was a bar to his recovery in an action for injuries resulting from the illegal employment. The court held: “This doctrine is not applicable for the reason that the statute under consideration is aimed at the master and not at the servant. The act of the child in accepting or entering into the employment is not unlawful.” In the case of *Inland S. Co. v. Yedinak,*172 Ind. 423, 87 N. E. 229, where a minor brought action for injuries he suffered from a violation of a statute of this class, the court, after a thorough review of the grounds upon which the policy of such statutes rests, holds that a minor is not barred or estopped from recovering damages for such injuries by his misrepresenting his age. This rule was also enforced in the following cases wherein this question was presented for decision: *DeSoto C. M. & D. Co. v. Hill,*179 Ala. 186, 60 South. 583; *Syneszewski v. Schmidt,*153 Mich. 438, 116 N. W. 1107; *Kirkham v. Wheeler-Osgood*Co. 39 Wash. 415, 81 Pac. 869; *Matlock*v. *W., G. & St. L. R. Co.*198 Mo. 495, 95 S. W. 849. In *Eliot v. Eliot,*81 Wis. 295, 51 N. W. 81, the question whether an 'infant who is incapable of entering into a marriage contract for want of age is estopped' by a fraudulent declaration of his age, which induced a marriage with him, was negatived upon the ground that an infant who is legally incapacitated to make a valid contract of marriage is incapable also to estop himself by such fraudulent representation. The case of *Grauman, M. & G. Co. v. Krienitz,*142 Wis. 556, 126 N. W. 50, holds that a minor may by his own fraud estop himself from assailing a contract on the ground of infancy, but it i& declared that the rule rests upon certain conditions, and that: “It is confined to cases where the infant, though under legal discretion, is in fact developed to the condition of actual discretion. It is further confined to cases of actual fraud and *159where the contract or transaction is beneficial to the minor.” The doctrine as applied to minors is there held to be closely fenced about: “(1st) By necessity for actual discretion; (2d) necessity for actual fraud; (3) necessity for beneficial nature of the transaction to the minor.” An attempt to class the instant case as within the foregoing rules would necessarily fail because the employment of the plaintiff in violation of the law is obviously not a transaction which can in any light be considered beneficial 'to the minor. It necessarily follows from what has been said on the foregoing questions that defendant’s contention respecting its rights to enforce a •counterclaim for damages resulting from the minor’s fraudulent misrepresentation of his age must fail. As indicated, these misrepresentations of the plaintiff afford no legal ground -on which defendant can predicate a claim against the minor.

The release given by plaintiff’s guardian was based on the .ground that the-plaintiff’s claim against defendant was regulated and controlled by the provisions of the Workmen’s Compensation Law. Manifestly there was no intent to settle the plaintiff’s claim against defendant under the law for damages for his injuries resulting from his wrongful employment in violation of the law. Furthermore, if it is claimed that the release included this claim for damages, it is not binding on plaintiff because it was not approved by the •county court as is required by sec. 3982, Stats. The guardian’s power is limited by the law, and his acts which the law-does not sanction are not binding on his ward.

*By the Gourt.*— The judgment appealed from is reversed, .and the cause remanded to the circuit court with direction to .award judgment in plaintiff’s favor for the recovery of the ■damages found by the jury.

Vln-je, J., dissents.

A motion for a rehearing and for a modification of the mandate was denied, with $25 costs, on May 2, 1916.