Opinion
No. 3363.
Decided December 1, 1942.
An employer having been insured against liability to such of his employees "as are legally employed," his employment of a minor under sixteen years of age without procuring and keeping on file an "employment certificate" as required by P. L., c. 118, s. 24, is illegal and the policy affords no coverage. In such case the statute places the burden on the employer to secure and keep on file the "employment certificate," and neither the employer's good faith nor fraud on the part of the minor in falsifying his age relieves the employer from that duty. Nor does P. L., c. 118, s. 24, apply only while public schools are in session. A clause in such policy requiring the insurer to "defend . . . any suits or other proceedings . . . against him [the employer] on account of such injuries . . . although such suits . . . are wholly groundless, false or fraudulent" does not compel the insurer to defend proceedings by an employee where the employment is illegal and the policy gives coverage only "on account of . . . injuries to such of said employees as are legally employed."
PETITION, for a declaratory judgment, seeking determination of coverage under a standard policy of Workmen's Compensation and Employers' Liability insurance issued by the plaintiff to the defendant company.
The following facts are agreed upon. June 13, 1941, Roger Pinard, the son of the defendant William Pinard, was injured while in the employ of the defendant company as the result of the alleged negligence of his employer. Suits at law to recover for such injuries have been instituted by the defendant William Pinard, individually, and as father and next friend of said Roger Pinard.
At the time of the accident Roger was fifteen years, ten months and sixteen days old. The defendant company neither at the time of the accident nor at any other time had procured and kept on file an employment certificate as required by chapter 118 of the Public Laws. The boy was a grammar school graduate and could read understandingly, and write legibly simple sentences in the English language. At the time of the accident he was on vacation.
The policy contains the following provisions:
"One (b) To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada. . . ."
"Three. To defend, in the name and on behalf of this employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent."
On the foregoing facts, the court (Johnston, J.) ruled that the petitioner is not required to defend the law actions above referred to or to pay any judgments that may be rendered therein. The defendants seasonably excepted to the foregoing ruling.
Reserved and transferred on defendants' exception.
Thorp Branch, by brief, for the plaintiff.
McLane, Davis Carleton, for defendant Pinard furnished no brief.
Chretien Craig, by brief, for the defendant company.
P. L., c. 118, s. 24, provides: "No child under sixteen years of age shall be employed, or permitted or suffered to, work, in, about or in connection with, any place or establishment named in section 18, unless the person, firm or corporation employing such child, procures and keeps on file and accessible to any truant officer, or other authorized inspector, an employment certificate as hereinafter prescribed." One of the places or establishments named in section 18 is a "workshop," such as young Roger was employed in.
He being under sixteen years of age, and the defendant company employer not having procured and kept on file "an employment certificate" as required by law, the plaintiff claims the boy was not "legally employed" and therefore the policy does not cover the risk. The position is well taken. Blanke-Baer c. Co. v. Corporation, (Mo.) 96 S.W., Rep. (2d), 648, 651.
The statutory provision prohibiting employment of children under 16 without compliance with the statute, non-compliance therewith renders the employment illegal. Belmont v. Parent, 90 N.H. 249. It, therefore, follows the policy does not cover, since its contract of insurance to indemnify applies only in cases where the employees are legally employed. Couch, Insurance, Vol. 6, s. 1278, p. 4699, and cases cited. Among others, particular applicable to the instant case is Miller Mfg. Co. v. Insurance Co., 150 Va. 495, in which is found an exhaustive review of authorities on the subject.
The defendant concedes there was a technical violation of the statute, but takes the position there was no material violation of the law, claiming the employer acted in good faith and without knowledge of the child being below sixteen. He offers evidence to the effect that the child falsified his age and stated he was over sixteen. The offer was excluded and properly so. It makes no difference what the child may have told the employer. It was the defendant's duty to ascertain the true fact. The statute is clear, explicit and mandatory. It places the burden on the employer to secure and keep on file the certificate required by law. Neither the employer's good faith nor fraud on the part of the employee enter into the case. Lockwood v. Insurance Co., 8 Ohio App. 444; Kleeman Co. v. Insurance Co. 177 Mo. App. 397; United Waste Mfg. Co. v. Casualty Co., 148 N.Y. Supp. 852.
Nor is the defendant's position that the policy of the law is to apply the requirements only while public schools are in session tenable. Lindell v. Stone, 77 N.H. 582, cited in support of this contention, is not in point. What is held in that case is that evidence of the employer's non-compliance with the provisions of the statute then in force (Laws 1911, c. 162), was not relevant upon the issue of the employer's negligence, in a suit brought to recover damages for injuries resulting to a minor under fifteen years of age while in the performance of his work. True it is there said (p. 584): "The prohibition applies when the public schools are in session. In vacation time a boy of fifteen is allowed to work in the designated places; and that fact shows that his protection from physical harm was not the purpose of the statute." The decision was based on s. 2, c. 162, Laws 1911, which provided that the employment shall not occur "while the public schools are in session." There was then no legislation regarding employment of minors in vacation time. In 1915, however, Laws 1915, c. 61, s. 2, the 1911 act was amended, adding a provision regulating such employment in vacation time. A modified certificate was then required limiting the months during which a minor could be employed. This certificate did not require a statement that the child could read simple sentences. It was simply in effect a certificate of good health, which permitted the employment. This law was reenacted in Laws 1921, c. 85, s. 25 (3); and in P. L., c. 118, ss. 27 and 28.
The defendant takes the further position that even though the insurance company may not be obligated to pay the damages recoverable by the employee, it is obligated to defend the suits at law, by reason of clause 3 in the policy which provides that the insurance company shall "defend, in the name and on behalf of this Employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent."
The primary obligation of the insurer is "to indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed." That obligation being removed there is no further duty on the part of the insurer to defend actions against the insured. This is decided very definitely in Lumbermen's Mutual Casualty Co. v. McCarthy, 90 N.H. 320, 321, 323, and cases cited. For further authority on this point see United Waste Mfg. Co. v. Casualty Co., supra.
Judgment for the plaintiff.
BRANCH, J. did not sit: the others concurred.