William B. Tilghman Co. v. Conway

Digges, J., delivered the opinion of the Court. The appeal in this case is from a judgment of the Circuit Court for Wicomico County in favor of the appellee (plaintiff below) upon a verdict of a jury in that court. The plaintiff, Harry L. Conway, was an employee of the appellant (defendant below), William B. Tilghman Company, Incorporated, a corporation engaged in the manufacture of fer ⁵²⁷ tilizer. The plaintiff was employed about July 1st, 1923, at which time he was under fourteen years of age.

On August 15th, 1923, being then slightly above the age of fourteen, he was injured in the course of his employment by being struck by a piece of two-by-four timber which hit him in the eye, breaking his glasses and causing an injury which resulted in total blindness of his right eye. At the time of the accident he was assisting other employees of the appellant in demolishing a building. Other employees of the defendant were engaged in taking boards from the top and sides of the building and sliding them down to the ground. One of these boards, in falling from the building or being thrown down, hit the two-by-four which was on the ground, causing the same to fly up and hit the plaintiff in the eye.

The record discloses that at the time of the accident the plaintiff was over fourteen years of age and under sixteen, and did not have an employment certificate. The appellant had complied with the provisions of article 101 of the Code of Public General Laws, known as the Workmen’s Compensation Article, by providing insurance in the State Accident Lund. Shortly after the accident application was made to the State Industrial Accident Commission for an award of compensation, and upon this application compensation was. awarded by that board on September 22nd, 1923. After-paying compensation for a number of weeks, the Industrial Accident Commission sent the following letter to the plaintiff: , “State Industbial Accident Commission, 741 Equitable Building, Baltimore, Md. Bescinbed and Annulled Compensation Disallowed.

Bureau of Claims. Claim No. 61,749. Employee: Harry L. Conway. Employer: W. B. Tilghman Co. Insurer: The State Accident Fund. “It has been brought to the attention of the Commission that the claimant in the above entitled case ⁵²⁸ was under sixteen years of age at the time of injury and was not legally employed therefore.

The former order passed in this case on September 22, 1923, will, therefore, be rescihded and annulled and compensation disallowed. ‘‘It is, therefore, this 22nd day of November, 1923, by the State Industrial Accident Commission, Ordered that the order of September 22nd, 1923, passed in this case be and the same is hereby rescinded and annulled, and in lieu thereof it is hereby ordered that the claim of Harry L. Conway filed in this case against W. B. Tilghman Co., employer, and State Accident Bund, insurer, be and the same is hereby disallowed.” Subsequent to the receipt of this letter the appellee instituted suit for the recovery- of damages for the injury sustained. The declaration as amended contained two counts. The first of these counts was predicated upon the theory that the plaintiff was illegally employed by the defendant, and therefore was not entitled to he awarded compensation as provided for by the Workmen’s Compensation Law, hut that nevertheless he was entitled to maintain an action at law ■against the defendant for damages, in which suit the common law defenses were not available to the defendant. In this count there is no allegation of negligence on the part •of the defendant or its -servants, but simply an allegation •of the employment, the age of the plaintiff, the accident, the insurance by the defendant, and the rescission by the State Industrial Accident Commission of the order allowing compensation.

The second count of the declaration constitutes a common law action for damages due> to the negligence of the defendant or its servants. The defendant demurred to the declaration and each count thereof, which demurrer was overruled. Subsequently tlie defendant filed six p-leas, to the first and fourth of which pleas the plaintiff demurred, and the demurrer being sustained,' the defendant filed an additional plea, which was likewise demurred to and the demurrer sustained. Issue was then joined upon the defend ⁵²⁹ ant’s second, third, fifth and sixth pleas, and trial proceeded with.

During the course of the trial there were thirteen exceptions reserved hy the defendant, twelve being to the action of the court in its rulings upon the evidence', and the thirteenth to the ruling on the prayers. The important questions presented hy this appeal are: First. Do. the provisions of 'article 303, the Workmen’s Compensation Taw, apply to minor employees, where such employment is illegal, being prohibited by the provisions of article 100 of the Code of Public General Laws, commonly referred to as the Child Labor Law! Second.

If the provisions of the Workmen’s Compensation Law do not apply to minors illegally employed, can such a minor bring a common law action against his employer for damages caused by an injury due to the negligence of the employer, its servants or agents'! Third. If such an action can he maintained, can the defendant plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee ? We will consider these questions in the order named.

As to the first, we have been referred to no case in this Court, and we have been unable to find one, in which this question has been passed upon. Article 101 (Workmen’s Compensation), sec. 14-, provides: “Every employer subject to the provisions of this article, shall pay or provide as required herein compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained hy the employee arising out of and in the course of his employment without regard to fault as a cause of such injury, except where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty. * * * ⁵³⁰ “The liability prescribed by the last preceding paragraph shall be exclusive, except that if an employer fails to secure the payment of compensation for his injured employees and their dependents as provided in this article, an injured employee or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this article, or to maintain an action in the Courts for damages on account of such injury; and in such an action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. * * * Section 33 of the same article provides: “Any employer, his employee or employees engaged in works not extra-hazardous within the meaning of this article may, by their joint election, filed with the Commission, accept the provisions of this article and such acceptance when approved by the Commission, shall subject them to the provisions of this article to-all intents and purposes as if they had been originally included in its terms. “Any workman of the age of 16 years and upwards may himself exercise the election hereby authorized. The right of election hereby authorized shall be exercised on behalf of any workman under the age of sixteen years by his parent or guardian. Nothing herein shall be construed to apply to workmen of less than the-minimum age prescribed by law for the employment of minors in the occupation in which such workmen shall be engaged. * * *” Section 48 provides: “A minor working at an age legally permitted under the laws of this State shall be deemed sui juris for the-purposes of this article, and no other person shall have, any cause of action or right to compensation for any injury to such minor employee unless otherwise herein provided.” ⁵³¹ The Child Labor Law, Code, art. 100, sec. 4, provides: “No child under fourteen years of age shall he employed, permitted or suffered to work in, about, or in connection with any mill, factory, workshop, mechanical establishment, tenement house, manufactory or workshop, * * .Section 10 of the same article provides: “No child under sixteen years oí age shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in sections 4 and 5 unless the person, firm or corporation employing such child procures and keeps on file, and accessible to any attendance officer, inspector of factories, or other authorized inspector or •officer charged with the enforcement of this sub-title, the employment certificate as hereinafter provided, issued to said child; and unless such employment, permission or sufferance to work in, about or in connection with said establishments or occupations shall he in accordance with the terms and regulations laid .down for said employment certificates as hereinafter provided.” The law then provides that an employment certificate ■shall be issued in Baltimore City only by tbe commissioner of labor statistics, and in the counties by said commissioner ■or by the county superintendent of schools of the county in which said child resides or by some person designated in writing by said superintendent.

In this case the plaintiff was employed, permitted or suffered to work in, about or in connection with a factory, the employment having taken place at a time when the plaintiff was under fourteen years of age. The accident occurred while the plaintiff was employed in such occupation after he was fourteen years of age and under sixteen years of age, and no employment certificate was ever obtained. The result of a condition in which a child between the ages of fourteen and sixteen is employed or suffered to work ⁵³² in a factory without an employment certificate, is the same as if the child was under the age of fourteen. In both of such cases the employment is illegal, being specifically prohibited by those sections of article 100 of the Code above quoted.

It being thus seen that the employment is illegal and prohibited by positive law, do the provisions of the Workmen’s Compensation Law embrace and apply to such persons'( We think not. The preamble to chapter 800 of the Acts of 1911, now codified as article 101, states the reasons which impelled the enactment of that legislation; and after setting forth that the State recognizes that the prosecution of various industrial enterprises which must be relied upon to create and preserve the wealth and prosperity of the State involves injury to large numbers of workmen, resulting in their partial or total incapacity or death, and that under the rules of the common law and the provisions of the statutes now in force an unequal burden is cast upon its citizens, and that in determining the responsibility of the employer on account of injuries sustained by his workmen, great and unnecessary cost is now incurred in litigation, and the State and its taxpayers are subjected to a heavy burden in providing care and support for such injured workmen and their dependents, and that the common law system governing the remedy of workmen against employers for injuries received in extra-hazardous work is inconsistent with modern industrial conditions, it then declares: “The State of Maryland, exercising herein its police and sovereign power, declares that all phases of extra-hazardous employment be, and they are hereby withdrawn from private controversy, and sure and certain relief for workmen injured in extra-hazardous employments and their families and dependents are hereby provided for, regardless of question of fault and to the exclusion of every other remedy, except as provided in this act.” This declaration of the purpose and intention of the Legislature is comprehensive, and if considered by itself, ⁵³³ without relation to any other statutory law, would be broad enough. 1o include all employers and employees engaged in what are designated as extra-hazardous businesses or occupations. This legislation, however, must he construed with reference to other existing statutes, and such interpretation put upon it as will harmonize with and give force to not only the Workmen’s Compensation Law but the Child Labor Law as well. It could not have been the intention of the Legislature to include within the provisions of the Workmen’s Compensation Law those persons who by the Child Labor Law were forbidden from engaging in certain