Plaintiff brought suit to recover damages for the death of Harold J. Pringle, recovered judgment in a substantial amount, and defendant brings error. If Act No. 127, Pub. Acts 1927 (see *Page 621 2 Comp. Laws 1929, § 8413), is constitutional, plaintiff cannot recover, but the remedy for the injury and death of decedent, if any, is under the workmen's compensation law. Decedent was, at the time of the injury which resulted in his death, between the ages of 16 and 18 years.
The accident involved occurred February 21, 1929. It is claimed Act No. 162, Pub. Acts 1927, is unconstitutional, in so far as it applies to minors between the ages of 16 and 18 years, illegally employed, and the trial court so held. The injured employee died before a claim was filed for compensation and before suit brought. It will not be controverted that, at common law, any right of action which an injured employee might have against his employer, for the latter's negligent injury of the employee, died with the party injured. To remedy this condition, the so-called survival act (3 Comp. Laws 1929, § 14040 et seq.) was passed, under which the right of action which the deceased employee may have had, in his lifetime, against his employer, survived the employee's death and passed to his personal representative, as an asset to be recovered for the benefit of the estate of deceased. A sentiment was generated that, no death act being in force, when an employer saw that injury to an employee was inevitable, he preferred his instant death to his severe injury — that lives of employees were needlessly sacrificed — because it was cheaper for the employer, and, as a result, the death act (3 Comp. Laws 1929, §§ 14061, 14062) was passed, which provided a new and distinctly different cause of action, which did not exist at common law, the proceeds of which were not assets of his estate, and did not pass by the death of the person killed to his personal representative. It will not be claimed it was not competent *Page 622 for the legislature to abolish the survival act, the death act, the common-law liability of the employer for the negligent injury of an employee, and the right of action given to survivors under the death act, and substitute in the place thereof the certainty of compensation for injury, regardless of the negligence of the employer, the contributory negligence of the employee, assumed risk, or the negligence of fellow servants. This was done by the workmen's compensation act (2 Comp. Laws 1929, § 8407 et seq.) which has been declared to be a constitutional exercise of the police power.
When 2 Comp. Laws 1915, § 5429, was in force, the employer was guilty of negligence, as a matter of law, in illegally employing a minor, and was deprived of the defenses of negligence of fellow servants and assumption of risk. Gee v.Brunt, 214 Mich. 679; Grand Rapids Trust Co. v. PetersenBeverage Co., 219 Mich. 208; Szelag v. Jordan, 223 Mich. 672;Gwitt v. Foss, 230 Mich. 8; Kucinski v. City Laundry CleaningWorks, 242 Mich. 352.
Act No. 162, Pub. Acts 1927 (see 2 Comp. Laws 1929, § 8413), in force when the accident here involved occurred, provides:
"That any minor between the ages of sixteen and eighteen years 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 act."
The position taken by plaintiff, as I understand it, is based upon the operation of the statute, which provides:
a. As to minors under 16 years of age, illegally employed, the employer is guilty of negligence as a *Page 623 matter of law, and is deprived of the defenses of assumed risk and of negligence of fellow servants, and may be held liable in a common-law action for all the damages resulting from the injury;
b. That as to persons between the ages of 16 and 18 years, illegally employed, the statute holds the employer liable thereunder for single compensation only if he acted in good faith, in reliance upon a certificate of employment or of age, which, though false in fact, was fraudulently used by the person employed, to induce the employment; and
c. That where the person illegally employed is between the ages of 16 and 18 years, and without contributory fraud upon his part, the employee is held entitled to double compensation; —
and it is contended this classification is unreasonable, arbitrary, based upon no substantial distinction, and does not apply impartially and equally to age or class.
There is no question but the statute, as to persons over 18 years of age and as to minors under 16 years of age, is valid. The question is whether it is invalid as applicable to minors between 16 and 18 years of age. It is competent for the legislature to enact legislation applicable to particular classes of persons employed, so long as the classification has some basis in reason, and the law is equally applicable to all persons of each particular class. It is immaterial whether the court agrees with the basis of classification or not; so long as it is based upon reason, it is a subject for legislative consideration and determination. Is there any basis in reason which may have prompted legislative action, upon which the classification of persons, between 16 and 18 years of age, may rest? *Page 624
By 2 Comp. Laws 1915, § 5331 (see 2 Comp. Laws 1929, § 8425), the employment of children between 14 and 16 years of age in manufacturing establishments was prohibited, unless a permit was issued, delivered to the employer and placed on file in its business office; and "every employer complying with the provisions of this section shall be at liberty to employ the person so presenting the permit hereinbefore referred to, and is justified in considering and treating such person as of the age shown in such permit and shall not be liable, if it transpire that such person is under the age represented in such permit, to any greater extent than such employer would be liable if such person were of the age represented." This provision was substantially reenacted by Act No. 280, Pub. Acts 1917. By Act No. 206, Pub. Acts 1923, the age limit was raised to 17 years, and by Act No. 312, Pub. Acts 1925, the age limit was raised to 18 years, all with the same provision as to the employer's liability as contained in 2 Comp. Laws 1915, § 5331.
Act No. 162, Pub. Acts 1927, brought the workmen's compensation law into harmony with the statute of 1925 regulating the employment of children. The legislature had a right to consider the size, age, and probable discretion of the minor, the ease with which he might perpetrate fraud upon the employer, inducing his employment, and to provide that if injured or killed, if he had fraudulently induced his own illegal employment, the same compensation should accrue as if he were legally employed. The employer, acting in good faith, ought not to be penalized. On the other hand, it could well consider that the statute prohibited the employment of minors between 16 and 18 years of age without a permit, and hold the employer liable for *Page 625 double compensation, in case such minor was wrongfully employed, without such permit. Double compensation might be considered in the nature of a penalty imposed for an intentional, careless, or negligent violation of law, cast, by the statute, in case of death of the minor employee, upon his dependents.
Act No. 162, Pub. Acts 1927, covers —
"Every person in the service of another, * * * including minors, who, for the purpose of this act, shall be considered the same and have the same power to contract as adult employees."
It is a complete answer to plaintiff's assault upon the validity of the statute that, by accepting its benefits, he is estopped to deny the validity of the act. American Life Ins.Co. v. Balmer, 238 Mich. 580; Cooley v. Boice Bros., 245 Mich. 325; Booth Fisheries Co. v. Industrial Commission,271 U.S. 208 (46 Sup. Ct. 491).
The statute is constitutional, the judgment reversed, and the case remanded for disposition under the workmen's compensation law.