The next case considered by Fuchs77 requires more detailed discussion in view of its difficulty. The facts were that a ten-year-old boy was employed as a laborer in a coal mine, contrary to the statutory provisions of the Industrial Code.78 He lost several fingers of a hand in the course of his employment. The question arose: Is an employee illegally employed to be taken as insured within the meaning of the Industrial Accidents Insurance act? If so, he will receive the compensation provided by that act out of the funds of the trade association, which will not amount to very much, but he is excluded from all further claim against the employer. If the answer should be in the negative, he will retain all his claims upon the employer (who may possibly be insolvent), but will receive nothing from the trade association. In either case he is threatened with certain risks. The Imperial Court declares in favor of the principle that the first alternative is preferable, and I believe that to be correct, as far as it goes, differing from Fuchs. The proposition is presumably based on the ground, correct from the standpoint of sociology, that children suffering personal injuries in such cases ought to be protected at least to the extent of the compensation provided by the act, and payable by the association, which is solvent. In the concrete case at bar, the boy's claim was rejected by the arbitrators on the ground that the association was not liable where the contract of employment was void for illegality. The Imperial Court, in accordance with the contrary views expressed by it, dismissed the boy's action against the employer, which had been begun in the civil court. In this connection it does not appear why section 135, par. 3, of the Industrial Accidents Insurance Act was not applied, a question which is not discussed in so much of the decision as has been published. According to that provision the ordinary courts are bound by the decisions of courts of arbitration, and it would seem that the Imperial Court should have held on that ground that the employer was liable. Possibly the Court failed to apply this section with the idea in mind that "valid judgment" within the meaning of section 135, par. 2, would refer merely to the liability or non-liability of the association, but would not dispose of the question whether the. ordinary courts were bound to recognize a liability of the employer, even where according to their own view none existed, in obedience to the decision of the arbitrators. However, we could not assent to such an opinion from the sociological standpoint; for it cannot possibly be the intention of the statute that in a concrete case like this unfortunate one the person injured through the fault of an employer should receive nothing at all.
76 RGZ 64.
77 RGZ 66. no. 14, p. 42; "R&W " pp. 72 seq.; "G" pp. 49 seq.
78 Industrial Code, Sec. Sec. 135. 154a.