On appeal from Department of Labor and Industry, Division of Workmen's Compensation.
This is an appeal by the employer from an award made by the Deputy Director of the Division of Workmen's Compensation in favor of the petitioner employee. The award was based on a finding that the employee, a minor under the age of 18 years, was injured while employed in an occupation prohibited to such a minor by the labor laws. R.S. 34:15-10; R.S. 34:2-21.17; R.S. 34:15-12.
The employer, in connection with his trucking business, was engaged in selling reconditioned steel drums. Most of these drums, characterized as "factory rejects," were purchased from their manufacturers. Much of the repair work was accomplished by means of welding.
The employee was born November 27, 1935. On June 24, 1952, while working for the employer, the employee was injured when the heat from a torch used by him in welding a drum caused an explosion of the fumes therein.
There was evidence showing that the employer's son, who had worked as a welder in his father's plant, was inducted into the Navy in January 1952, and that the petitioner employee shortly thereafter was engaged as a welder in the
son's place; that at the time of the employment the employer advised petitioner to obtain working papers and to state therein that he was to be employed as a "driver's helper." The petitioner had completed a six-month course in welding at the local high school. He testified that he welded drums at the request and in the presence of the employer; that the employer saw him so occupied 10 or 12 times daily. Two friends of petitioner employee testified they visited him at the employer's place of business and saw him welding drums in the presence of the employer.
The employer testified that the petitioner employee was employed to help the truck drivers and to test drums; that he never told him to weld drums nor did he ever see him so engaged. Further, that his brother did all the necessary welding. The brother testified that he was the welder in the plant and that the petitioner employee's duties was to assist him in testing the drums. However, he also testified:
"Q. Now, did Mr. Sullivan (petitioner) do any actual welding in front of you? A. Yes, sir.
Q. What did he do? A. He welded drums and cans, fooling around.
Q. And was John Komorowski (employer) ever there when he did that? A. Well, I don't recall, to tell you the truth. I swore on the Bible to tell the truth. I couldn't tell you.
Q. Did you ever tell Mr. Sullivan that he should not do any welding? A. No. But I wouldn't say nothing to John. I didn't ...