Gorczynski v. Nugent
Decision Date | 17 January 1949 |
Docket Number | No. 30817.,30817. |
Citation | 83 N.E.2d 495,402 Ill. 147 |
Parties | GORCZYNSKI v. NUGENT et al. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Third Division, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Jacob Berkowitz, Judge.
Action by Raymond Gorczynski, a minor, against Frank Nugent, the Washington Park Jockey Club, a corporation, the Arlington Park Jockey Club, a corporation, and another, based on alleged violation of the Child Labor Act, for personal injuries. A judgment for plaintiff was affirmed by the Appellate Court, 80 N.E.2d 418, 335 Ill.App. 63, and the Washington Park Jockey Club and the Arlington Park Jockey Club appeal.
Affirmed
Vogel & Bunge, of Chicago (Robert L. Howard, of Chicago, of counsel), for appellants.
John H. Gately, Michael M. Phillips and Raymond I. Suekoff, all of Chicago, for appellee.
This is an action for damages sustained by the plaintiff, a minor under the age of fourteen years, based upon an alleged violation of the Child Labor Act. The complaint was filed against Frank Nugent, Mrs. Elizabeth Nugent, Washington Park Jockey Club, a corporation, and Arlington Park Jockey Club, a corporation. On a trial by a jury in the circuit court of Cook County a verdict was returned in favor of the plaintiff in the sum of $35,000. Motions for directed verdict, judgment notwithstanding the verdict and for a new trial having been overruled, judgment was entered for the above amount. The corporate defendants only appealed and the Appellate Court affirmed the judgment. The corporate defendants are herein referred to as appellants.
The principal propositions raised on this record are: (1) That appellants did not ‘suffer or permit’ plaintiff to work at a gainful occupation in, for or in connection with, a place of amusement as prohibited by section 1 of the Illinois Child Labor Act, (Ill.Rev.Stat.1945, chap. 48, par. 17;) and (2) that the giving of plaintiff's instruction No. 6 by the trial court was reversible error.
The record discloses that appellants operated a race track near the city of Chicago, which track is enclosed by a fence and the race course area is separated from the stable area by an interior fence. There are various gates in the fences to permit access to the race course and stable area. In July, 1945, appellants were conducting racing on their property and among those who had brought horses to enter the races were Mrs. Elizabeth Negent and her trainer, Frank Nugent, who were defendants below but do not appeal here. Permission to enter horses in racing events was obtained by making application to appellants, who in their discretion granted or refused permission. Permission having been granted, the owners of horses were required by the rules of the Illinois Racing Board to bring in and stable horses in the area provided by appellants, such stables being assigned by appellants for that purpose. Owners were required to furnish to the appellants a list of the horses to be stabled, the names of the owners and their employees, who were licensed by the Illinois Racing Board. The evidence discloses that the Nugents furnished such list and entered into the assigned stables. The rules, regulations and conditions imposed by the Illinois Racing Board required appellants to regulate and control the use of the stable area and admission of persons at all times to such area. They maintain police and other agents in the stable area and at the various gates opening into it. Access to the stable area was strictly controlled except that from the hours of 5:00 o'clock A.M. to 11:00 A.M. the control was released to admit the general public to such area.
In the latter part of June, 1945, the plaintiff, a boy thirteen years of age, was employed by Frank Nugent to walk and cool out the Nugent horses after workouts or races. He was paid at the rate of fifty cents per hour and accumulations of pay were paid every two weeks. Plaintiff pursued his employment every day, arriving at the stable area about 5:00 A.M. There is no evidence that his right to enter the stable area or to carry out his duties was ever questioned by appellants.
The evidence also shows that the walking of ‘hot’ horses was a necessary part of their care and that many other boys and men were employed to perform such services. The work performed by plaintiff was done in the stable area in full view of appellants' police and other agents and employees. Plaintiff was neither licensed nor was his name included on the list of licensed employees furnished by the Nugents to the appellants. It was appellants' practice and a requirement of the Racing Board to furnish to licensed employees of horse owners an identification badge. None was ever furnished plaintff.
On July 26, 1945, while plaintiff was employed by Frank Nugent and was walking and grazing one of the Nugent horses, called Play Grier, in the stable area, he was kicked by said horse and sustained serious and permanent injuries.
The principal question presented is whether appellants suffered or permitted the plaintiff to work within the meaning of the Child Labor Act, and it is urged by appellants that the words ‘suffer or permit’ imply effective control, actual knowledge, and conscious consent, and that none of these were present in the instant case. The facts that plaintiff was under the statutory age, that the injury occurred while employed by the defendant Frank Nugent, who has not appealed, and that the place of the injury was on the appellants' premises are established by the judgment below. An affirmance of a judgment by the Appellate Court implies a finding of the facts as they were found by the trial court and such finding is conclusive on this court. Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665.
Appellants contend that in order to be within the meaning of the act they must have had knowledge of the illegal employment of plaintiff and it is their contention that they had no knowledge that plaintiff was under the statutory age of 14. As to his contention the law seems to be well settled that as between master and servant lack of knowledge of the child's actual age is no defense even when a child employed misleads the employer as to his true age. Beauchamp v. Sturges & Burn Mfg. Co., 250 Ill. 303, 95 N.E. 204, affirmed 231 U.S. 320, 34 S.Ct. 60, 58 L.Ed 245, L.R.A.1915A, 1196. It is the duty of those who are liable under the act to see that children are not employed contrary to its provisions. Strafford v. Republic Iron & Steel Co., 238 Ill. 371, 87 N.E. 358, 20 L.R.A.,N.S., 876, 128 Am.St.Rep. 129. It is apparently the object of the statute to prevent absolutely the employment of children under the age of fourteen years in the occupations named therein, and a construction should be given which will effectuate that purpose, if it can be done consistently with the wording of the statute. American Car & Foundry Co. v. Armentraut, 214 Ill. 509, 73 N.E. 766. This was the rule as determined in the case of Purtell v. Philadelphia & Reading Coal & Iron Co., 256 Ill. 110,99 N.E. 499, 43 L.R.A., N.S., 193, Ann.Cas.1913E, 335, which further held that the application of the Child Labor Act is not limited to cases in which the relation of master and servant exists between the plaintiff and defendant.
An examination of the evidence reveals that appellants' policemen, guards and other employees were in and about the stable area at all times during which plaintiff carried out his employment. One Bethke, employed by the appellants as a policeman testified he saw the plaintiff walking and grazing horses in the stable area over a period of two weeks and saw him grazing the horse that injuried plaintiff shortly before the accident occurred. It cannot be seriously contended that the appellants did not have knowledge of plaintiff's presence.
It is contended by appellants that plaintiff was not working at a gainful occupation so as to bring them within the act, and in support of this position they cite the case of Scott v. Freeport Motor Casualty Co., 392 Ill. 332, 64 N.E.2d 542, holding that ‘occasional acts will not constitute an occupation,’ and contend the plaintiff here was not engaged in a gainful occupation.
In the Scott case there was involved the construction of an insurance policy which included a condition that the insured should engage ‘in no occupation other than farming.’ The facts there were that the insured was a farmer but occasionally made a sale for a cattle company as its salesman. The facts there are not all analogous to the facts in the instant case, as the evidence in the instant case clearly shows the plaintiff reported every day regularly for work at the Nugents' stable over a period of several weeks, and was paid for such work every two weeks and when injured had pay due him in the amount of $18. It is apparent that plaintiff was gainfully employed regularly sufficient to constitute an occupation within the meaning of the act.
Appellants further contend that they cannot be liable because they did not knew plaintiff was gainfully employed. This contention is untenable when considered in the light of the evidence. Appellants' general manager testified that the cooling out of horses by walkers was an absolute necessity and that he observed the work being regularly done on his rounds...
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...A case that illustrates the meaning of "permitting or suffering" a child to work in violation of child labor laws is Gorczynski v. Nugent, 402 Ill. 147, 83 N.E.2d 495 (1948). In Gorczynski, a thirteen-year-old boy was hired by a horse trainer, named Frank Nugent, to walk and cool off his ho......
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