#### Stryk, Respondent, vs. Mnichowicz, Appellant.

*March 7*

April *3, 1918.*

*Fraud: Criminal act induced by false representations: Master and servant: Illegal employment of boy under sixteen: Recovery by employer against parent: Evidence: Relevancy: Costs: Time limited for perfecting jttdgment: Special verdict.*

1. One who is induced by false representations to do an act which, in consequence of such representations and without negligence on his part, he believes to be neither illegal nor immoral, and which would not be illegal or immoral if the representations were true, but which is in fact a criminal offense, may recover *266from the maker of the representations any damages sustained by him proximately resulting from the act.

2. The rule that a minor, suffering an injury while engaged in an employment which the law forbids him to be engaged in on account of his age, cannot be barred of his recovery nor subjected to an action or counterclaim for damages because he misrepresented his age when he was employed, does not apply to the father or other third person upon the faith of whose false representations the minor was employed.

3. In an action by an employer against a father who, by false representations as to the age of his son, had induced the plaintiff to employ the son in violation of law, a question on plaintiff’s cross-examination as to whether he knowingly had, at the time he hired defendant’s son, other boys under sixteen years old working in his factory, was properly excluded, there being no offer to show that such boys were employed in violation of law.

4. Testimony of witnesses in such case that they had worked for • plaintiff on prohibited machinery while they were under sixteen years of age was properly excluded, there being no offer to show that plaintiff either knew or ought to have known that they were under the required age.

5. Sec. 2894a, Stats., requiring the successful party to perfect judgment within sixty days after verdict or forfeit costs, does not apply in case of a special verdict finding the facts only. The sixty days does not begin to run in such case until the court decides who is the successful party.

Owen and Eschweiler, JJ., dissent.

Appeal from a judgment of tbe circuit court for Taylor county: G-. N. Risjoed, Circuit Judge.

*Affirmed.*

Action for damages for deceit. Tbe plaintiff operates a box factory. Tbe defendant’s son, Alfonse, Jr., was employed by tbe plaintiff in bis factory October 14, 1914, and injured in tbe course of *that*employment December 11, 1914. Tbe boy was but fourteen years of age at tbe time of bis employment, but tbe plaintiff claims tbat tbe defendant, for tbe purpose of securing tbe employment of bis son, represented tbat tbe son was over sixteen years of age at tbe time, and tbat tbe son was employed on tbe faitb of that representation. Tbe making of any sucb representation is denied by tbe defendant. Tbe son’s leg was broken while working *267about some of tbe machinery of tbe mill. Tbe plaintiff provided medical care and offered compensation at tbe rate provided by tbe Workmen’s Compensation Law, but it was refused by tbe boy’s parents and action was brought by tbe boy against tbe plaintiff for damages on tbe ground that be was under sixteen years of age and bad been put at work at machinery dangerous to life and limb, in violation of sub. 2, sec. 1728a, Stats. 19.15, which forbids tbe employment of minors under sixteen years of age at any employment dangerous to life or limb. This action was tried and resulted in a special verdict finding that tbe boy was under sixteen years of age when injured; that tbe machine at which he was employed was dangerous to tbe life and limb of a person under that age, and assessing tbe damages at $250. Tbe plaintiff was insured against liability under tbe Workmen’s Compensation Law, but tbe policy did not cover damages suffered by reason of injuries or death of a minor employed contrary to law. Tbe plaintiff, therefore, was obliged to pay tbe judgment in favor of tbe boy and also defray tbe expenses of tbe litigation. In this action be seeks to recover those sums. ' •

Tbe jury returned tbe following special verdict:

“.(1) Did *Alfonse Mnichowicz,*in October, 1914, and before bis son Alfonse entered tbe employ of *Anton Strylc*and Malim Stryk, represent to said Malim Stryk that the boy was then sixteen years old? *A.*Yes. t

“(2) If your answer to tbe first question is Wes,’ then did tbe defendant, *Alfonse Mnichowicz, Sr.,*make such representation for the purpose of inducing tbe plaintiff and Malim Stryk to employ tbe defendant’s son Alfonse? *A.*Yes.

“(3) If your answer to tbe first question is Yes,’ then did the plaintiff rely upon such representation at all of tbe time tbe boy was employed by tbe plaintiff up to the time of bis injury? *A.*Yes.

“(4) If your answer to tbe first question is Yes’ and your answer to tbe third question is ‘Yes,’ then did the plaintiff, *268up to the time of the boy’s injury, exercise ordinary care in relying upon the representation so made by the defendant? *A.*Yes.

“(5) What sum did the plaintiff reasonably expend, in addition to the payment of the judgment of $862.62, as a result of the employment of the boy Alfonse ? *A.*$200.”

The defendant appeals from judgment on the verdict in plaintiff’s favor.

The cause was submitted for the appellant on the briefs of *A. L. Smongeslci*of Stevens Point, and for the respondent on that of *Herman Leicht*of Medford.

WiNsnow, C. J.

The following propositions are decided in this case:

1. Where a person is induced by the false representation of another to do an act which in consequence of such misrepresentation he (without negligence on his part) believes to be neither illegal nor immoral, and which would not be illegal or immoral if the representation were true, but which is in fact a criminal offense, he may recover from the maker of the representation any damages sustained by him proximately resulting from the act. *Burrows v.*Rhodes, [1899] 1 Q. B. 816; *Morrill v. Palmer,*68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411; *Hess v. Culver,*77 Mich. 598, 43 N. W. 994.

2. The rule that a minor, suffering an injury while engaged in an employment which the law forbids him to be engaged in on account of his age, cannot be barred of his recovery nor subjected to an action or counterclaim for damages because he misrepresented his age when he was employed *(Stetz v. P. Mayer B. & S. Co.*163 Wis. 151, 156 N. W. 971), does not apply to the father or other third person upon the faith of whose false representations the minor was employed. The law prohibiting the employment of children of tender years at dangerous occupations is for the protection of the children themselves, and public policy forbids that they should be capable of dispensing with its provisions. The same consideration, however, does not.apply to the act *269of the parent. No good reason is perceived why be should not answer for his wrong. .

3. The findings of the jury in the present case are supported by sufficient evidence, and when taken in connection with admitted facts sustain the judgment.

4. The plaintiff was asked on cross-examination if he knowingly had in his employ, working at the factory, boys under sixteen years of age at the time he hired the defendant’s son, and an objection to the question was sustained. There was no offer to show that such boys, if employed, were employed in violation of law, *i. e.*at any prohibited occupation or without a permit such as the law requires. There may be other reasons justifying the ruling, but this seems sufficient.

5. Witnesses were called to testify that they worked for the plaintiff on prohibited machinery several years ago when they were under sixteen years of age, and objection to such testimony was sustained. This ruling was ■ correct for the reason that there was no offer to show that the plaintiff either knew or ought to have known that the witnesses were under the required age.

6. Sec. 2894a, Stats., requiring the successful party to perfect the judgment within sixty days after the filing of findings or rendition of a verdict or forfeit his right to costs, plainly does not apply to a case in which a special verdict finding the facts alone is rendered. *Colle v.*K., *G. B. & W. R. Co.*149 Wis. 96, 135 N. W. 536. No one can tell in such case which party is successful until the court makes a decision or finding on the question. Necessarily the sixty days does not begin to run until that decision is made.

Other questions are raised, but they are not deemed of sufficient merit to require discussion.

*By the Court.*— Judgment affirmed.

OweN, J.

*(dissenting).*The statutes of this state prohibit the employment of minors under specified ages in cer*270tain occupations dangerous to life and safety and prescribe criminal penalties for tbeir violation. In *Pinoza v. Northern C. Co.*152 Wis. 473, 140 N. W. 84, it was held that one who employed minors in violation of such statutes was guilty of gross negligence and was practically defenseless in an ae- ' tion brought for'damages for personal injuries sustained by a minor while so employed. In *Stetz v. F. Mayer B. & S. Co.*163 Wis. 151, 156 N. W. 971, it was held that neither the misrepresentation of the minor so employed, nor that of his father, with reference to his age at the time of his employment could be shown in defense to an action by the minor to recover for personal injuries sustained in such employment. These cases were grounded oh considerations of sound public policy and have been accorded distinct legislative and general public approval. They have compelled respect for our child-labor laws .and have been more potent in restraining their violation than criminal penalties and all other agencies tending to that accomplishment.

It is now decided by this court that where a father misrepresents to an employer of labor that his son is of employable age, and such son is employed pursuant to such representation, and sustains injuries while in such employment and a recovery is had of such employer for injuries sustained by the minor while so employed, the employer may sue the father in an action for deceit because of the false representations concerning the age of the child, and recoup himself for damages to which he was subjected in the personal injury suit of the son. The practical effect of this decision cannot be doubtful. It is as certain as the instincts of human nature. The *Pinoza*and *Stetz Cases*are devitalized. They have lost their potency as a restraining influence upon those who would employ children in defiance of our statutes.

There are just two classes interested in the employment of child labor: first, the parents, desirous of converting their children into wage *earners;*and second, those who may prof*271itably use sticb labor. The lawmakers have recognized this, and in order to compel observance of child-labor restrictions have visited penalties upon the parents, and upon the employers of such labor. The two interested in the employment of such labor, under the decision in this case, may now connive to this end without fear of the consequences arising from the doctrine of the *Pinoza*and *Stetz Cases.*The father may take his son to an employer of labor, give assurance that he is of employable age, and the employer may rely solely upon such assurance and set the child at work. It is true that if injured while so employed the representation made by the father will not avail the employer in an action brought in the name of the minor for a recovery for personal injuries. But we may rest assured that such action will not be brought. Erom the very nature of things, such action is under the practical control of the father; and he has but to be reminded that if such action be brought the employer will proceed to recoup himself in a tort action against the father. Right here it is said that this weapon in the hands of the employer will not be effective, because the father, as a rule, is irresponsible, and the cause of action which this decision gives to the employer will not restrain the father from insisting upon the action in favor of the son. To this suggestion there are two answers: Eirst, that the effect of this decision' should be tested upon the hypothesis that the father is responsible, in which case it must be conceded that the cause of action given by the *Pinoza*and *Stetz Cases*in favor of the minor results in no harm to the employer. The second answer is that the employer may so picture the dire consequences of a tort judgment to the father that rather than invite their visitation he will permit the son’s action to lie dormant. This, it seems to me, is the inevitable, practical result of the decision in this case.

The right of action here sanctioned may well- be denied upon grounds of public policy, the promotion of the general *272welfare, and in the interests of tbe enforcement of onr child-labor laws. It may also be firmly grounded upon another Consideration, and that is that the employer of labor has no right to rely upon the representation of the father who is so keen to convert his children into revenue producers that legislative restraint in the form of criminal penalties is deemed necessary.

By sec. 1728;, Stats., it is provided that when there is any doubt in a court proceeding as to the age of any child a verified baptismal certificate or a duly attested birth certificate shall be produced and filed with the court. In case such certificates cannot be secured, upon proof of such fact the record of age stated in the first school enrolment of such child shall be .admissible as evidence thereof. It requires no argument that in this state, at this time, the employment ■of children of unsuitable age in dangerous employments is of great public concern. Our comprehensive statutes upon the subject disclose indubitable evidence of legislative recognition of that fact, and' the decisions in the *Pinoza*and *Stetz Cases*indicate a commendable judicial concurrence. When the importance of this matter is so generally conceded, I hold that an employer of labor should not be permitted to rely upon the representations made by the father concerning the age of his child whom he proffers for employment. His responsibility should be less shifting and evasive. Pie should be required to satisfy himself in some of the methods mentioned in sec. 1728;, Stats., or by some other reliable evidence, that the minor is of employable age. Eor these reasons I think the judgment in this case should be reversed, with instructions to dismiss plaintiff’s complaint. I therefore most respectfully dissent.

Eschweiler, J. I concur in the foregoing dissenting opinion of Justice OweN.