Ortega v. Salt Lake Wet Wash Laundry

I concur in the results and most of the reasoning. Much that has been said in the prevailing opinion seems unnecessary to the conclusion. The question is well posed at the beginning of the opinion. "Is the Workman's Compensation Act the exclusive remedy" for injury suffered by a minor in the course of his employment when illegally employed?

This question it seems to me is to be resolved by a reading together of the first part of Sec. 42-1-57, U.C.A. 1943, without the proviso which has nothing to do with the facts of this case, and subsection 2 of Sec. 42-1-41 and Sec. 14-6-27, U.C.A. 1943. It may well be that the purpose for expressly including minors legally permitted to work within the Compensation Act was to make such minors sui juris for the purposes of the Act and thus remove for that purpose the bar of infancy in creating the contractual relationship, although it would seem that such result would follow if the provisions of Title 14, Chapter 6 which gave a right to employ minors under certain circumstances were complied with without a definite inclusion in the Compensation Act. But conceding that the legislature wanted to make it clear beyond doubt that legally employed minors were sui juris as far as the Compensation Act is concerned, it follows by necessary implication that minors illegally employed were excluded from the benefits of the act. Being excluded they have their common law remedy for injuries due to negligence. I agree in the conclusion that Sec. 14-6-27, U.C.A. 1943, lowered the bars and permitted but did not require illegally employed minors to resort to the compensation act. The common law remedy still remained. Sec. 14-6-27 was intended to permit illegally employed minors who could not found a case on negligence to resort to compensation, the double purpose thus being to give such child some measure of compensation for injury in all events and to prevent an employer who illegally employed a minor from completely escaping payments where the law emphatically prohibited them from being employed. The minor might be helpless to prevent himself from being illegally employed. The duty of refraining from employing was on the master and not on the child. The child was not to be at a disadvantage because during the illegal employment, he or she was injured without actionable negligence on the part of the employer.

I further agree that even if the employment was entirely legal, permitting or requiring the minor to work at a prohibited place or task makes that part of the employment illegal employment. In Royal Canning Co. v. Ind. Comm., 101 Utah 323,121 P.2d 406, the minor elected to take compensation by applying for it. If the minor was in that case illegally employed only because she did not have a certificate, then it must follow that she could have sued had she so elected, for otherwise she should not have been granted double compensation.