Md. Cas. Co. v. Indus. Accident Comm'n

THE COURT.—

Respondent Tony Mazzina, a youth of twelve years of age, was employed in a butcher-shop by his corespondent Alfred Michelotti at his place of business located at Los Banos, California. In the course of his employment he sustained the loss of portions of three fingers of the left hand while operating a meat cutter. No question is or could be made as to the liability of the employer. At the time of the injury petitioner was the insurance carrier of respondent Michelotti. The Industrial Accident Commission made an award in favor of the employee.

By a decision of this court the award of the Industrial Accident Commission was annulled. The petition for a rehearing having been granted, the cause is again before us for decision. Respondents, in their petition for a rehearing, complained that the question which said respondent Industrial Accident Commission sought to reopen for further consideration was whether the policy of insurance, considered as a whole, actually did, in effect, exclude employees illegally employed by the insured, Alfred Michelotti.

The policy of insurance by which the rights of the respective parties thereto are to be measured, in part, provides:

“VII. Employees Covered [in bold-face type]. This policy shall cover such injuries including death resulting

[396]

therefrom, sustained by any employee or employees

legally

employed by this employer. ...” (Italics ours.)

It is admitted that the injured employee was illegally employed by reason of his youth. Obviously the above paragraph excludes any liability on the part of the carrier unless other clauses of the policy include such employment.

The clauses upon which respondents rely are as follows:

“Compensation I. [The Company agrees.] To pay to the person and in the manner provided therein, any sum due or to become due from this Employer because of any such injuries, including death resulting therefrom, under certain statutes cited and described in endorsements attached to this Policy, each of which Statutes is herein referred to as the Workmen’s Compensation Law. It is agreed that all of the provisions of each Workmen’s Compensation Law cited and described in endorsements attached to this Policy shall be and remain a part of this contract, as fully and completely as though written herein, so far as they apply to compensation while this Policy shall remain in force. ...”