708, Sec. 3. Under part 2, Sec. 22, as amended by St. 1914, C. 708, Sec. 8, the Industrial Accident Board is authorized in its discretion to provide for the payment of a lump sum to a minor who has received permanently disabling injuries. See also St. 1915, c. 236. If a minor is not within the terms of the act and therefore not bound by them, it would follow that the insurer would be relieved from making payments thereunder to a minor employee if the contract of hire was made before he became of full age. To reach such a conclusion would result in great hardship. It would not be in accord with the language of the act or in harmony with its humanitarian purposes which were to cure the defects of previously existing remedies and to provide adequate and just protection to employees against injuries, and relief in case of accidents.” 72

Under the California Act "it shall be conclusively presumed that such employee was not guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employees contributed to such employee's injury." Thus, where a minor's contract of employment included both prohibited employment as well as legal employment and he was killed. while performing that portion of his labors which was not prohibited it was held that the employer was not precluded from pleading contribuory negligence.73

Under the Massachusetts act a parent's right of action for injuries to a minor child is not affected, although the child has accepted the act and received compensation thereunder for his injuries.74

It has also been held that the fact that a minor was legally employed, but afterwards placed at forbidden work by a vice principal, would not bar him from his common law rights.75

72. Gilbert v. Wire Goods Co., (1919) 233 Mass. 570, 124 N. E. 479, 4 W. C. L. J. 714.

73.

Wiliams v. Southern Pac. R. Co., 173 Cal. 525, 160 Pac. 660, 15 N. C. C. A. 733.

74. 254.

75.

King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988, 7 N. C. C. A.

Gutmann v. Anderson, 142 Minn. 141, (1919), 171 N. W. 303, 3 W. C. L. J. 765; Kruczkowski v. Polonia Pub. Co., 203 Mich. 213, 168 N. W. 932, 17 N. C. C. A. 611.

W. C.-6

In a California case the court said: "If the employee was a minor under the terms of the Workmen's Compensation Act, at the time of the first application and hearing, since she was not represented therein by a guardian, she had the right, incident to minority, of disaffirming the award of the commission rendered in such proceeding within a reasonable time after reaching the age of majority.'

9976

Under the Kentucky statute the failure of an employer to furnish safety devices required by statute does not entitle a guardian or the injured minor employee to sue at common law, for damages for this election applies only where the minor is employed in willful and known violation of law, and such failure does not constitute employment in violation of law."

Where a minor employed in violation of the law involuntarily appears before the Kentucky Compensation Board he is not thereby estopped from the prosecution of his common law action for damages."

Under the Indiana Act when an employer fails to secure an affidavit of age, as in the case of a 'young person,' that is a person between the ages of 14 and 18 years, such person is held not lawfully employel and therefore not an employee entitled to the benefits of the act.79

In a California case where a minor was employed without an age and schooling certificate required by the child labor law, the court said: "On the whole, therefore, the contract of employment, in violation of the child labor law was illegal and not included in the policy of insurance (Mt. Vernon Co. v. Frankfort Co., 111 Md. 561, 75 Atl. 105, 134 Am. St. Rep. 636), and, there being no waiver or estoppel, the petitioner is not liable under the policy for the accident in question.

76.

9780

Gounillou v. Indus. A. C. of Cal., 77. Freys Guardian v. Gamble Bros., S. W. 870, 6 W. C. L. J. 171

78. Louisville Woolen Mills v. Kindgen,

(1920), 128 N. E. 938, 7 W. C. L.

80. Maryland Cas Co. v. Indus. Comm.,

3 W. C. L. J. 563

Cal.

178 Pac. 858,

A minor child working for his father is not an employee within the meaning of the California Act, where there has not been an actual emancipation of the child.81

§ 15. Election to reject and action for damages. In actions for damages at common law, when from the language of the act, the employer is presumed to come under it, the burden is on the employee to allege and establish the employer's rejection of the act or the fact which prevents the application of the Workmen's Compensation Act to the employee.82 As for example under some acts the employee may allege and prove that his average annual earnings exceed the stated amount exempted by the act, under others that he has rejected the act, that his employer employs regularly less than three or five employees, that he is a farm hand, casual employee, family chauffeur, domestic servant, outworker, official of a political subdivision, or that his employer has failed to insure his risk, as required by the Act,83 the pleading and proof of any one of which facts would entitle the employee to sue for damages at common law. But where an employer is

81. Aetna Life Ins. Co. v. Indus. Acc. Comm., 15, A 1 W. C. L. J. 111.

82. Reynolds v. Chicago City R. R. Co., 287 Ill. 124, (1919), 122 N. E. 371, 3 W. C. L. J. 608; Beveridge v. Ill. Fuel Co., 283 Ill. 31, 119 N. E. 46, 17 N. C. C. A. 463; Barnes v. Illinois Fuel Co., 283 Ill. 173, 119 N. E. 48, 17 N. C. C. A. 476. Palmieri v. Illinois Third Vein Coal Co., 208 Ill. App. 405, 17 N. C. C. A. 476; Synkus v. Big Muddy Coal & Iron Co., 190 Ill. App. 602; See 31 N. E. 46, Barnes v. Beamboch Piano Co., 101 Misc. Rep. 669, 167 N. Y. S. 933, 1 W. C. L. J. 703; Louis v. Smith-McCormick Const, Co., 80 W. Va. 59, 92 S. E. 249. Contra, Mitchell v. Swanwood Coal Co., (Ia.) 166 N. W. 391, 1 W. C. L. J., 602; Balen v. Colfax Consolidated Coal Co., 183 Ia. 1198, 168 N. W. 246, 17 N. C. C. A. 512. See also Waterman Lumber Co. v. Beatty (Tex. Civ. App.) 204 S. W. 448, 2 W. C. L. J. 706; Bishop v. Chicago Rys. Co., 290 III. 194, (1919), 124 N. E. 837; 5 W. C. L. J. 175; Baggs v. Standard Oil Co. of N. Y., 180 N. Y. S. 560, 5 W. C. L. J. 740; Ruddy v. Morse Dry Dock & Repair Co., 176 N. Y. 731, 107 Misc. 109, (1919), 4 W. C. L. J. 448; Krisman v. Johnson Cay & Big Muddy Coal & Mining Co., 190 Ill. App. 612, 17 N. C. C. A. 527; Nilsen v. American Bridge Co., 221 N. Y. 12, 116 N. E. 383, 17 N. C. C. A. 479.

Mass.

83. Gayton v. Borsoisky,
84. Talge Mahogany Co. v. Burrows,

119 N. E. 831, 17 N. C. C. A. 517.
Ind.
130 N. E. 867.

not presumed to come under the act the burden of proving that he has assented to come under the act is upon the employer.85 Though where the evidence shows that the employee first prosecuted a claim for compensation under the act to final adjudication, the question of whether the employer had notified the employee of his election to come under the act is immaterial in an action at law against the employer by the employee.86

It has also been held in some jurisdictions that the plaintiff employee need not allege the employer's rejection of the Act in his petition in an action for damages.87

In Illinois under its Act of 1911, Sec. 3, it has been held that the employee must allege and prove that an independent violation of the factory Act was by the defendant's elective officer in order that the employee might recover damages at common law.

As a general rule it is not necessary for an employee to allege that he had rejected the act, if he has alleged the employer's rejection, which of itself, under most elective acts excludes the employee from the benefits of the act.88 Should the employee plead and prove that he had rejected the act, prior to the accidental injury, for which compensation is claimed and the employer pleads and proves that he has accepted the act, then the latter may avail himself of the common-law defenses. The employee must also allege and prove negligence of the employer, his or its officers, agents or employees,90 before he can recover.91 But

85. Nadeau v. Caribou Water, Light & Power Co., 118 Me. 325, (1919), 108 Atl. 190, 5 W. C. L. J. 238; Basso v. John T. Clark & Son, 177 N. Y. S. 484, 108 Misc. 78 (1919), 4 W. C. L. J. 530; Garvin v. Western Cooperage Co., 94 Oregon 487 (1919), 184 Pac. Rep. 555, 4 W. C. L. J. 738. 86. Tex. Civ. App. 202 S. W.

Texas Refining Co. v. Alexander,

131, 17 N. C. C. A. 471.

540, 3 W. C. L. J. 157;

87. Nash v. Minneapolis and St. Louis Ry. Co., 141 Minn. 148, 169 N. W. Salvuca v. Ryan & Reilly Co., 129 Md. 235, 98 477; Chamberlain v. Luckenheimer Co., 25 Ohio S. & C. Pl. Dec. 368, 8 N. C. C. A. 670; Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, 7 N. C. C. A. 48.

Atl. 675, 17 N. C. C. A.

88. Favro v. Superior Coal Co., 188 Ill. App. 203; Dietz v. Big Muddy Coal Co., 263 I, 480, 5 N. C. C. A. 419.

90. Watts v. Ohio Elect. R. Co., 78 W. Va. 144, 83 S. E. 659.

91. Spivok v. Independent Sash & Door Co., 173 Cal. 438, 160 Pac. 565;

93

under the Iowa Act, section 2477-M, Subdiv. C(4), Code Supplement 1913, negligence on the part of the employer is presumed if it is shown that the accident arose out of and in the course of the employment,92 and negligence need not be pleaded. This amounts to the establishment of something more than a statutory res ipsa loquitur doctrine, the constitutionality of which appears doubtful as depriving one of his property without due process of law. To compare it with criminal law it is in the nature of a presumption of guilt.

Evidence which tends only to establish assumption of risk or contributory negligence has no place or bearing in an action for damages against a non assenting Iowa employer unless it tends to show willful and intentional negligence on the part of the employee."4

In an action for damages, at common law, against the employer by an employee, his or her dependents, heirs, legal representatives, or next of kin the employer may as a general rule set up as a defense, the fact that the deceased employee was covered by the act,95 or that he has made a claim for compensation under the

674, 160 N. Y. 415; Price Salus v. Great Northern

Stornelli v. Duluth S. S. & A. Ry. Co., 193 Mich. v. Clover Leaf Coal Mining Co., 188 Ill. App. 27; R. Co., 157 Wis. 546, 147 N. Y. 1070; Henshaw v. Boston etc., R. Co., 222 Mass. 459, 111 N. E. 172; Walsh v. Turner Center Dairying Ass'n, 223 Mass. 386, 111 N. E. 889; Cross v. Boston & M. R. R. Co., 223 Mass. 144, 111 N. E. 676; Lindenbauer v. Weiners, 94 Misc. 612, 159 Supp. 987; West Kentucky Coal. Co. v. Smithers, Ky. App. —, 211 S. W. 580, 4 W. C. L. J. 198; Hunter v. Colfax Cons. Coal Co., 175 Ia, 245, 157 N. W. 145, L. R. A. 1917D, 15n, Ann. Cas. 1917E, 803; Watts v. Ohio Elect. R. Co., 78 W. Va. 144, 88 S. E. 659; Balen v. Colfax Coal Co., 183 Ia., 1198, 168 N. W. 246, 2 W. C. L. J. 621. Cannot recover if accident is due to servant's contributory negligence if the employer is permitted to set up that defense Brown v. Lemon Cove Ditch Co., 36 Cal. App. 94, 171 Pac. 705, 1 W. C. L. J. 915.

92. Mitchell v. Mystic Coal Co., Ia.; 179 N. W. 428, 6 W. C. L. J. 657; Mitchell v. Swanwood Coal Co., 182 Ia. 1001, 166 N. W. 391. 93. Mitchell v. Phillips Mining Co., 181 Ia. 600, 165 N. W. 108, 1 W. C. L. J. 190; Mitchell v. Des Moines Coal Co., Ia. - 165 N. W. 113, 1 W. C. L. J. 200.

95. Zukas v. Appleton Mfg. Co., 297 Ill. 171, 116 N. E. 610.