Lemmerman v. A. T. Williams Oil Co.

Justice Martin

dissenting.

I must respectfully dissent. First, the majority opinion allows the defendant corporation to profit from its own illegal act. Here, defendant corporation claims that it hired plaintiff Shane, an eight-year-old child, as an employee. Defendant’s act would be a direct violation of N.C.G.S. § 95-25.5(d), punishable by imposition of civil penalties. This statute establishes the public policy of this state that it is unlawful for employers to employ children thirteen years of age or less.

The public policy of North Carolina also will not permit a wrongdoer to take advantage of or enrich itself as a result of its own wrong. Carver v. Carver, 310 N.C. 669, 314 S.E. 2d 739 (1984); *587In re Estate of Perry, 256 N.C. 65, 123 S.E. 2d 99 (1961); Garner v. Phillips, 229 N.C. 160, 47 S.E. 2d 845 (1948). “It is a basic principle of law and equity that no man shall be permitted to take advantage of his own wrong . . . .” Garner at 161, 47 S.E. 2d at 846. Further citation of authority is not necessary for this basic principle of law. The principle is especially applicable where, as here, the power of the parties is so disparate —an eight-year-old child versus a large corporation! The inequity of defendant’s plea in bar is thus magnified by the relationship of the parties.

Defendant corporation seeks to defeat the infant plaintiffs cause for personal injuries resulting from the negligence of defendant by using as a shield its own unlawful act of employing the child. This case is not like McNair v. Ward, 240 N.C. 330, 82 S.E. 2d 85 (1954), where plaintiffs own evidence established that he was an employee of defendant. In McNair the defendant did not present any evidence. To the contrary, here defendant affirmatively attempted to prove that plaintiff child was its employee. Defendant’s unlawful employment of the child was one of the direct causes of his injuries, and defendant now seeks to use that unlawful employment to avoid responsibility for those injuries. This will not do, and this Court should not in all good conscience permit defendant to take advantage of its own wrongful act.

Even if this Court allows defendant to rely upon an inequitable defense, the evidence fails, in at least one respect, to support a finding that plaintiff child was defendant’s employee. We must not overlook that defendant has the burden of proof to sustain its plea in bar. As the majority states, the right to demand payment from the employer, A. T. Williams Oil Company, is an essential element of the employment status. Defendant has failed to carry its burden as to this element.

The evidence in many respects is in conflict. However, defendant has failed to produce a shred of evidence that the eight-year-old child had a right to demand payment for his services from A. T. Williams Oil Company. Also, there is no evidence that plaintiff child could have made such a demand from Schneider-man, albeit defendant argues that plaintiff was its employee and not Schneiderman’s. All of the testimony showed that the infrequent payment of amounts ranging from twenty-five cents to a dollar came out of Schneiderman’s own money, out of his own *588pocket. The payments were not made from the cash register, as were payments to defendant’s employees. Thus, the record is simply devoid of any evidence that the child could have demanded payment from the corporate defendant for services he rendered to Schneiderman.

On the other hand, the record is replete with evidence that plaintiff child was not an employee of defendant’s. Shane was not a listed employee for workers’ compensation purposes; his name was not reported to the defendant corporation for tax withholding purposes; Schneiderman testified explicitly that Shane was not an employee.

The majority relies upon Michaux v. Bottling Co., 205 N.C. 786, 172 S.E. 406 (1934). The status of plaintiff as an employee was not at issue in Michaux. The Industrial Commission made no finding with respect to whether plaintiff was an employee of defendant’s, nor did this Court in its opinion. The issue decided in Michaux was whether the accident arose out of and in the course of employment, not whether plaintiff was an employee.

I submit that the more analogous case is Lucas v. Stores, 289 N.C. 212, 221 S.E. 2d 257 (1976). Lucas had been discharged as an employee of defendant’s. His wife also worked for defendant on a double shift from 7:00 a.m. to 11:00 p.m. After Lucas was discharged, he would go with Mrs. Lucas to work and assist her in managing the convenience store. Defendant’s district manager knew that Lucas was at the store and told Mrs. Lucas to let Lucas run the cash register “as long as the ABC law didn’t catch him.” He also worked on the books and made bank deposits. Mrs. Lucas paid Lucas $2.00 an hour for his work out of her own paycheck. During the course of a robbery of the store, Lucas was shot and killed, and his widow brought a claim for compensation under the Act. The Industrial Commission found that he was an employee at the time in question. The Court of Appeals reversed the Commission, and this Court affirmed. The Court stated that the acts of Lucas in going with his wife to the store and helping out in the work were entirely consistent with the desire of an unemployed husband to be with his wife at her work and to assist her in the performance of her duties, especially where the work location was likely to attract armed robbers at night. This Court found no contract of employment existed.

*589Likewise, here defendant desired to employ Sylvia Tucker, plaintiff child’s mother, to work in the convenience store. She could not do so unless defendant agreed to let her eight-year-old son come to the store after school and remain until she completed her work. Defendant agreed to this plan. While on the premises the child from time to time performed menial tasks for Schneider-man, who sometimes would give the boy payments ranging from twenty-five cents to a dollar for his work. This is entirely consistent with the problem of a working mother who needs employment but must also supervise her young child. Shane was on the premises not as an employee of the corporate defendant, but because it was necessary in order for his mother to work. Such are the demands of our modern society. As in Lucas, plaintiff child was not an employee of defendant’s.

Assuming arguendo that defendant may rely upon its plea in bar and that there is sufficient evidence to support a finding that Shane was an employee of defendant’s, the trial court erred in sustaining defendant’s plea in bar. If it is true, as defendant insists, that there was a contract of employment between Shane and the defendant, it was a contract with an infant and voidable at the option of the infant, Shane. Personnel Corp. v. Rogers, 276 N.C. 279, 172 S.E. 2d 19 (1970); Barger v. Finance Corp., 221 N.C. 64, 18 S.E. 2d 826 (1942). Upon disaffirmance of a contract by an infant, the contract is void ab initio. Id. The status of the parties is as if there had never been a contract between them.

By bringing this common law action against defendant, the infant plaintiff has disavowed the former contract between the parties and relinquished any rights he may have had under the Workers’ Compensation Act by virtue of the contract. By disavowing the contract, he has elected to pursue his common law remedy. That Shane avoided the contract by instituting the action is of no moment; it is just as effective as writing a letter of disaffirmance to defendant prior to commencing the action. The lawsuit and the evidence and contentions by plaintiff Shane clearly notified defendant that the contract was avoided. Upon plaintiff infant’s disaffirmance of the contract, it was void ab initio and defendant could not rely upon a nonexisting contract to defeat plaintiff infant’s action.

*590For the above reasons I vote to allow the infant plaintiff to pursue his common law action against defendant.

Justice Parker joins in this dissenting opinion.