ALLOSSERY v. EMPLOYERS TEMP SERV, 88 Mich. App. 496 (1979)

277 N.W.2d 340

Docket No. 77-4520.Michigan Court of Appeals.
Decided February 6, 1979. Leave to appeal applied for.

Page 497

Page 498

Fitzgerald, Young, Peters, Bruno Bunn, and Buell A. Doelle, for plaintiff.

Jenkins, Nystrom Sterlacci, P.C. (by Stephen J. Hitchcock), for defendant Employers Temporary Service, Inc.

Plunkett, Cooney, Rutt, Watters, Stanczyk Pedersen (b Jeannette A. Paskin), for defendant R.A. Young Industries, Inc.

Before: D.C. RILEY, P.J., and BRONSON and T. GILLESPIE,[*]
JJ.

PER CURIAM.

Plaintiff appeals by leave an order of the trial court removing the present action from circuit court to the Workmen’s Compensation Bureau.

Plaintiff, a 15-year-old, was hired by Employers Temporary Service, Inc. (E.T.S.), a labor broker. On his application for employment, plaintiff misrepresented his age as 19. E.T.S. indicated that plaintiff would be required to provide proof of his age at his next visit to the hiring hall, but no such proof was ever offered or requested. E.T.S. assigned plaintiff to work for R.A. Young Industries, Inc., where he was employed in running a power press. While operating the press, plaintiff suffered a traumatic amputation of the index and middle fingers of his right hand together with a portion of the hand itself.

Plaintiff commenced the present suit against E.T.S. and R.A. Young Industries, Inc., charging both defendants with negligence. Defendants moved for summary judgment on the ground that plaintiff’s exclusive remedy was worker’s compensation. See MCL 418.131; MSA 17.237(131). Plaintiff

Page 499

replied that since his contract of hire was prohibited by the Hittle Juvenile Employment Act, MCL 409.1 et seq.; MSA 17.70 et seq.,[1] the contract was void and he could not be considered an employee of defendants for purposes of the Worker’s Disability Compensation Act. The trial court did not grant defendants’ motions for summary judgment, but instead removed the case to the Workmen’s Compensation Bureau. Plaintiff now appeals that order by leave.

The Hittle Juvenile Employment Act prohibited employers from hiring minors under 18 years of age until the employer procured from the minor a work permit. MCL 409.3; MSA 17.703. The act also prohibited employers from hiring minors for unduly hazardous work. MCL 409.2, 409.6; MSA 17.702, 17.706. Defendants concede the fact that plaintiff did not have a work permit and that he was engaged in the performance of unduly hazardous work. It is, therefore, clear that plaintiff’s employment was in contravention of the act and thus illegal.

This determination, however, does not mean that plaintiff could not have been a covered employee under the worker’s compensation act. The definition of employee for purposes of the act is contained in MCL 418.161; MSA 17.237(161).

“(1) An employee as used in this act shall mean:

* * *

“(b) Every person in the service of another, under any contract of hire, express or implied, including aliens, a person regularly employed on a full-time basis by his spouse having specified hours of employment at a specified rate of pay, working members of partnerships receiving therefrom wages irrespective of profits, a

Page 500

person insured for whom and to the extent premiums are paid based on wages, earnings, or profits, and minors, who shall be considered the same as and have the same power to contract as adult employees. Any minor under 18 years of age whose employment at the time of injury shall be shown to be illegal, in the absence of fraudulent use of permits or certificates of age in which case only single compensation shall be paid, shall receive compensation double that provided in this act.”

The act specifically includes within its coverage all employed minors regardless of whether their employment is legal or illegal. The act does not itself define the term illegal employment, and thus to determine the legality of a minor’s employment one must refer to the Hittle Juvenile Employment Act Field v Jack Jill Ranch, 343 Mich. 273, 280; 72 N.W.2d 26
(1955). Those minors employed in compliance with the act’s requirements are legally employed minors and are treated the same as any other employee under the worker’s compensation act. Those minors hired by employers in contravention of the Hittle act, however, are illegally employed, and if injured, their employers are assessed double compensation benefits, as a penalty for failing to comply with the act. Since the worker’s compensation act clearly makes provisions for illegally employed minors, they are covered employees under the act, and the act is their exclusive remedy against their employers.

Plaintiff seeks to distinguish, however, between those minors whose employment is illegal and those whose employment is void. According to plaintiff, a minor’s employment is illegal when the work in which he is engaged is a permissible occupation, but the proper work permits have not been filed. A minor’s employment is allegedly void when the work is unduly hazardous so that even if the proper work permits were filed, the minor still could not have engaged in the work. Such a distinction

Page 501

has never been adopted in Michigan, and was specifically rejected in Thomas v Morton Salt Co, 253 Mich. 613; 235 N.W. 846 (1931) aff’d on reh 258 Mich. 231; 242 N.W. 235 (1932).

In Thomas, the minor, a 17-year-old boy, was employed by defendant salt company to oil and grease electric motors. A number of these motors were suspended over large vats of boiling brine. While cleaning the motors the minor fell into one of the vats and was killed. As is the situation in the present case, the child labor law then in force[2] prohibited minors from being employed in unduly hazardous occupations; and employment which would require a person to work on motors suspended from the ceiling over large vats of boiling brine would certainly be considered unduly hazardous. The Court, however, rejected the position advocated by the dissent in Thomas, and presently espoused by plaintiff, that because the minor’s employment was prohibited by the child labor law, his contract of employment was void and thus he could not be an employee under the workmen’s compensation act. Instead, the Court reversed the trial court’s award of common law damages and held that the workmen’s compensation law which granted illegally employed minors between the ages of 16 and 18 double compensation in case of injury[3]
“abrogates the judicial rule that a contract of employment made in violation of child labor laws carrying criminal penalties is void”, Thomas at 625.

Since Michigan has not adopted the distinction

Page 502

between void and illegal employment contracts,[4] any minor employed in violation of the child labor law is merely illegally employed and as such is subject to the provisions of the worker’s compensation act.

The second question presented for review is whether both defendants can be considered plaintiff’s employer and thus protected by the act’s exclusive remedy provision. This question was answered in the affirmative in Renfroe v Higgins Rack Coating Manufacturing Co, Inc, 17 Mich. App. 259; 169 N.W.2d 326
(1969).

Since plaintiff is a covered employee under the worker’s compensation act and both defendants are his employer for purposes of the act, plaintiff’s exclusive remedy is worker’s compensation. Defendants’ motions for summary judgment[5]
should have been and hereby are granted. GCR 1963, 820.1(7).

Affirmed as modified.

Page 503