Hartley v. Victor Rubber Co. [Vol. 23 (N.S.)

decision, must certainly have been intended to avoid the effect of the decision, which was to exclude from the benefits of the act a minor, who, while otherwise eligible to employment, was not eligible for the employment in which he was injured.

The Acklin case at once impresses one that it is unfair to a minor to exclude him from the benefit of an act which is conceded to be favorable to adult employees. The act was passed for the benefit of the laboring man, and a minor employee was excluded from its benefits by virtue of the clause which the legislature repealed at an early date after the announcement of the opinion

The conclusion seems almost inevitable that the legislature intended to include within the provisions of the act, minors who were employed and injured by such employment, irrespective of whether or not they could be legally employed in that particular employment.

It is within the knowledge of all, and a daily occurrence, that minors are employed in occupations for which they are technically ineligible.

It is not illegal for a minor to receive employment, but it is illegal for the employer to engage him in an employment prohibited by the statute. The minor has done no wrong by accepting the employment, and the legislature, quick to see this situation, provided that he should have the benefits of the Act, even though he were engaged through the illegal act of the employer. Having the benefit of the act, the next question is, must he be bound by its provisions? It is claimed that the plaintiff being a minor cannot make a valid election.

Section 1465-93 provides that a minor shall be deemed sui juris for the purpose of the act, under the assumption that if he is old enough to work, he is old enough to receive the benefits of the act, and to be bound by its provisions.

Section 1465-70 provides that employers complying with the act, shall not be liable in damages at common law or by statute, save as afterwards provided, for the injury of an employe.

Section 1465-76 provides where an employer has failed to comply with any lawful requirement for the protection of em

1921.]

Hartley v. Victor Rubber Co.

ployees, then nothing in the act shall affect the civil liability of the employer, and such employe may, at his option, claim compensation under the act or institute proceedings for his damages on account of the injury, and in such event defendant shall be entitled to plead the defense of contributory negli gence and the defense of the fellow servant rule, and further, that every employe who makes application for an award or accepts compensation from an employer, waives his right to exercise his option or institute proceedings in any court, and that every employe who exercises his option to institute proceedings in the court, waives his right to any award under the provisions of Section 1465-69.

It seems to the court to follow, that a minor, though he be employed in an occupation which is illegal, falls within the provisions of the compensation act, as now amended, and that he is sui juris though a minor, and that he is bound by the provisions of Section 1465-76, in that if he makes application for an award, he waives the right to exercise his option to institute proceedings in the court, and it must therefore follow that the first defense, which sets up the fact that he did make application, and did receive compensation, is a good defense.

The third defense, which is demurred to, repeats the allegations of the first defense, and states that the plaintiff represented that he was 19 years of age, upon which representation the defendant employed him, and alleges that his injury was due to his own negligence, and that he assumed the risks of his employment.

Section 6245-2 provides that in all actions where a minor employee has been employed or retained in employment contrary to any statute of the State or United States, such employe shall not be deemed, or held to have been guilty of contributory negligence, or to have assumed of the risks of his employment.

But the statute further provides that the employer may show by way of defense, fraud or misrepresentation made by such employee.

Hartley v. Victor Rubber Co. [Vol. 23 (N.S.)

The defense sets up the mis-representation alleged to have been made, in that the minor represented himself to be 19 years of age, on account of which representation he was employed by defendant.

The burden of proving the allegations of mis-representation, is upon the employer. If the evidence shows that there was fraud or mis-representation on the part of the employe. as to his age, the defense of contributory negligence would then be available. Acklin Stamping Co. v. Kutz, 98 O. S. 71.

The defendant having plead mis-representations on the part of the minor, such defense if proved, permits the defendant to show contributory negligence on the part of the plaintiff and the demurrer should therefore be overruled.

END OF VOLUME XXIII.

INDEX.