Halfacre v. Paragon Bridge & Steel Co. , 368 Mich. 366 ( 1962 )

Carr, C. J.

(dissenting). The record on this appeal from an award of compensation by the workmen’s compensation appeal board presents an unusual situation. On or about March 15, 1960, plaintiff sought employment by defendant Paragon Bridge & Steel Company. He was given a form of application containing a number of questions, which he filled out and signed. He was nearly 18 years of age at the time, having been born on June 16, 1942. In his application he gave his age as 21, and the date of his birth as June 16, 1938. He listed his weight as 190 pounds and his height as 5,ll-l/2". He also stated in the application that he had been previously employed in 2 different factories. Under that portion of the application relating to his health he indicated that there had been no material change in his weight during the preceding 5 years. Included in the application was the following certification:

“I have carefully read all the questions and answers above and on both sides of this application, and hereby certify that the information as to my identity, past employment, health history, and all other matters referred to, is correct and true, and that if accepted for employment such acceptance is based on the information given here. I further agree to submit to such physical examination as is required at any time. I also agree that the information contained in this application may be used by my employer for reporting under the provisions of the unemployment insurance and old age pension laws of this and any other State, and of the United States.”

Based on his written application, and his certification as to the correctness of the answers therein, he was given employment and told that he could begin work on the following day. It is conceded that the representative of defendant company who took his application and employed him acted in good faith and without any reason to doubt the correctness of plaintiff’s written statements as to his age and date of birth. There is no suggestion in the case that plaintiff’s physical appearance indicated in any way that he was less than the age claimed by him. It is conceded that he was employed on the basis of representations that were false and fraudulent. In his testimony following his application for compensation he stated as his reasons for making the false answers that he wanted employment, and it is apparent that he realized that he could not obtain such from defendant Paragon Bridge & Steel Company if he gave his true age.

While working on March 25, 1960, plaintiff suffered an injury to his hand of a serious character.His application for compensation was dated April 18, 1960, and apparently received by the workmen’s compensation department 2 days later. Hearing was had before a referee of said department on September 12, 1960, resulting in an award of double compensation to plaintiff, which award was affirmed by the workmen’s compensation appeal board by a 2-to-1 vote. Defendants’ application for leave to appeal was granted by this Court and the question now before us for détermination is whether defendant employer, who admittedly acted in good faith and was deceived by the intentionally false statements of plaintiff with reference to his age, can be compelled to pay double compensation because of the injury received by plaintiff.

The award of compensation, affirmed by the compensation appeal board, was based on the following provision contained in CLS 1956, § 411.7 (Stat Ann 1960 Rev §17.147) which reads:

“Provided, That any minor under 18 years of age whose employment at the time of injury shall be shown to be illegal shall, in the absence of fraudulent use of permits or certificates of age, in which case «only single compensation shall be paid, receive compensation double that provided elsewhere in this aet.”

Said provision was contained in its present form in PA 1929, No 113, which amended certain sections of the workmen’s compensation act.^* It has been considered by this Court in prior decisions, the leading-case being Boshaw v. J. J. Newberry Co., 259 Mich 333 (83 ALR 412). In that case, as in the case at bar, the plaintiff in making application for employment deliberately falsified her age. In her written application she stated that she was 18 years of age whereas she was as a matter of fact 3 years younger. An award of double compensation under the statute was appealed to this Court and was reversed by unanimous decision, it being held that plaintiff was entitled to single compensation only. The opinion in the case, written by Mr. Justice North, after quoting the provision of the statute above set forth, indicated the reasons for the decision as follows (pp 336-,340):

“Because plaintiff misrepresented her age, defendant did not obtain the permit or certificate required by tbe statute. Had plaintiff been 18 years of age, as she represented, defendant would have been under no obligation to obtain such permit or certificate. By plaintiff’s deceit defendant was tricked into an apparent violation of the statute; and in consequence thereof plaintiff is now asking that she be awarded double compensation instead of single compensation. The injustice of such a claim is so obvious that it should not be sustained unless necessitated by the statutory provisions. While the instant case is not literally covered thereby, it is of interest to note that the statute expressly provides that an employee who makes ‘fraudulent use of permits or certificates of age’ shall not be awarded double compensation (section 8413). We think this provision of the statute clearly indicates an intent on the part of the legislature to protect an employer from a double award of compensation, if, without his fault, he is deceived by the minor applicant as to his age. In Ganga v. Ford Motor Co., 250 Mich 247, 250, Justice Butzel said:

“ ‘It further provides that minors under 18 years of age shall be entitled to double the amount of the compensation provided for, unless they have secured the employment fraudulently, in which event they shall receive only single compensation.’

“See Justice Potter’s opinion in Thomas v. Morton Salt Co., 253 Mich 613, 624. * * *

“It is fair to assume that, because of plaintiff’s false statement in regard to her age, defendant understood there was no occasion for its securing the permit or certificate required by the statute when minors under 18 years of age are employed. It is this circumstance alone and of which defendant had no knowledge that enables plaintiff to assert her claim for double compensation. A more glaring attempt by a wrongdoer to profit by the wrong perpetrated is difficult to conceive; and courts cannot give such misconduct their stamp of approval. In Patterson v. Kasper, 182 Mich 281, 283 (LRA1915A, 1221), we quoted with approval from Shaw v. Coffin, 58 Me 254 (4 Am Rep 290), the following:

“ ‘It would be a reproach to the law, if a minor, when arrived to years of manhood, were to be allowed to escape from the payment of what is due, by the plea that he had stolen the money demanded of him when under age.’

“A minor is liable to one whose property he has obtained by false representation. Patterson v. Kasper, supra. If such is the law, it would be little short of judicial somnambulism to hold that plaintiff, in consequence of her alleged illegal employment, procured solely by her own fraud and deceit, could recover double compensation from the one upon whom she perpetrated the fraud. To be consistent, the court, in following the Patterson Case, would necessarily hold that money which the minor employee thus fraudulently obtained in turn could be recovered from the minor in an action by the employer.

“We have repeatedly held the rights of the respective parties under the workmen’s compensation law are fundamentally based upon the contract of employment. The compensation act recognizes the ability of minors to enter into employment contracts. CL 1929, § 8413. ^* In the case at bar the only contract of employment was one in which defendant hired a minor past 18 years of age. Incident to such a contract, no double liability is provided in the statute. Plaintiff ought not to be awarded double compensation on the basis of a contract she did not make; especially since her own false representation as to her age resulted in defendant not complying with the statutory provisions which would have saved it from double liability in the event of a compensatory injury to plaintiff.

“The controlling factor here is that plaintiff’s fraud and deceit was the sole cause from which arose the condition in consequence of which she now •asserts a right to double compensation, and this condition was at all times unknown to her employer until after the accident occurred. The relationship of employer and employee was not affected by the fact that the employment was obtained by misrepresentation. Ganga v. Ford Motor Co., supra. This is true, because, notwithstanding the misrepresentation, the fact of employment was known to both parties. The status of employer and employee existed. It follows that the plaintiff in the instant case as an employee is entitled to single compensation. But the defendant employer did not know of a contingent double liability to plaintiff and except for the fraud she perpetrated it could not have been charged with such liability. Her fraud must be held to estop her from profiting thereby.”

This decision was followed in Blanton v. Clay Products Co., 310 Mich 635, and in Walker v. Ridley Cleaners, Inc., 311 Mich 4. Mr. Justice Souris, in writing for affirmation of the order of the appeal board, would overrule these prior decisions of the Court. It is significant, however, as pointed out by Mr. Justice Black in his opinion, that the section containing the statutory provision above quoted has been amended by the legislature at 8 successive sessions thereof following the decision in Boshaw, but that the language of the provision quoted has been re-enacted without change as incorporated in the workmen’s compensation law by the amendatory act of 1929. There have been 4 such re-enactments since the decision in Walker v. Ridley Cleaners, Inc., supra. It thus appears that the legislature, with knowledge of the interpretation placed on the provision in question by this Court, has repeatedly reenacted it without change. The conclusion necessarily follows that each such re-enactment was made in the light of the interpretation which the legislature, by its action, accepted. The rule is generally recognized that the adoption by a legislative body of statutory language that has been judicially construed by tbe court of last resort of tbe State involves tbe acceptance of such construction.

Tbe language used by tbe Court in reversing, Boshaw v. J. J. Newberry Co., supra, is equally applicable to the facts in the case at bar. It clearly appears from plaintiff’s testimony before the referee that he knew that he could not obtain the desired employment with defendant Paragon Bridge & Steel Company if he answered truthfully the questions in the written application that he filled out, certified to, and signed. It is not questioned that his application would have been rejected had he truthfully stated his age or date of birth. Said defendant had no reason to suspect that it was being induced to enter into a contractual relationship with one under the age of 18. Its representative, in dealing with plaintiff, had no reason to suspect, and obviously did not suspect, that plaintiff was falsifying in respect to his age. The fact that he had previously worked in other factories lent support to the conclusion that reliance might properly be placed on his application as he had prepared it.

We do not think that it was the intention of the legislature in the original enactment of the provision for double compensation to minors in certain cases to grant such right in cases where the making of the contract of employment has been induced by deliberate fraud and misrepresentation on the part of one seeking to obtain double compensation for an injury. As indicated in the opinion in the Boshaw Case, any such intent would be at variance with basic principles of legal fairness. The legislature by repeatedly re-enacting the language of the proviso quoted must be presumed to have recognized, by affirmative action, the interpretation and application of said provision in cases involving facts of the nature presented by the record in this case.

The case should be remanded to the workmen’s compensation appeal board with directions to set aside the order for double compensation to plaintiff and to enter in lieu thereof an order for single compensation. A question of statutory interpretation being at issue, no costs should be allowed.

Dethmers and Kelly, JJ., concurred with Carr, C. J.

* PA 1913 (1st Ex Sess), No 10, as amended (CL 1948, §411.1 ei seq., as amended [Stat Ann 1960 Eev and Stat Ann 1961 Cum Supp § 1Í7..141 et seq.}).

* Currently CLS 1956, § 411.7, ante. — Reporter.