Kowalczyk v. Swift & Co.

• Decision Date: 11 June 1925
• Docket Number: No. 16295.,16295.
• Citation: 317 Ill. 312,148 N.E. 59
• Parties: KOWALCZYK v. SWIFT & CO.
• Court: Illinois Supreme Court

317 Ill. 312

148 N.E. 59

KOWALCZYK

v.SWIFT & CO.

No. 16295.

Supreme Court of Illinois.

April 24, 1925.

Rehearing Denied June 11, 1925.

Action by Frank Kowalczyk, a minor, by James Deming, his guardian, against Swift & Co. Judgment for defendant, and plaintiff sued out writ of error from the Appellate Court, which affirmed the judgment (233 Ill. App. 337) and granted a certificate of importance and appeal to the Supreme Court.

Judgment of Appellate Court reversed, and cause remanded, with directions to transfer cause to Supreme Court.

Appeal from Third Branch Appellate Court, First District, on Error to Superior Court, Cook County; Edward D. Shurtleff, Judge.

Corinne L. Rice and A. H. Ranes, both of Chicago, for appellant.

John E. Kehoe and Brown, Fox & Blumberg, all of Chicago (Charles Le Roy Brown, of Chicago, of counsel), for appellee.

FARMER, J.

This is an action at law by appellant to recover damages for a personal injury. There was a judgment in the trial court for defendant, and appellant sued out a writ of error from the Appellate Court. That court affirmed the judgment and granted a certificate of importance and an appeal to this court.

The injury occurred December 12, 1917. The declaration alleged defendant was engaged in meat packing in the city of Chicago, was in control of buildings, yards, and railroad tracks, and there were in force divers ordinances regulating and safeguarding its employees, and the ordinances are set out in haec verba. The declaration alleged defendant's business was designated as extrahazardous by the Workmen's Compensation Act (Smith-Hurd Rev. St. 1923, c. 48, §§ 138-172); that section 6 of the act of 1897 concerning the employment of minors (Laws 1897, p. 90) was in full force and effect, and prohibited any child under 16 years of age being employed, permitted, or suffered to work at an extrahazardous employment, ‘whereby its life or limb is in danger, or its health likely to be injured, or its morals may be depraved.’ The declaration also set out section 10 of the act of 1917 concerning the employment of minors (Laws 1917, p. 511). That section prohibits the employment of minors under 16 in numerous specified capacities, and further prohibits their employment ‘in any capacity whatever in any employment that may be considered dangerous to their lives or limbs, or where their health may be injured or morals depraved.’ The declaration also set out section 5 of the Workmen's Compensation Act, which defines an employee to mean every person employed by another, including minors ‘who are legally permitted to work under the laws of this state.’ The declaration then alleged that plaintiff, a minor between 14 and 16 years of age, while engaged in extrahazardous employment, was injured, while in the performance of his duties, as a result of his employment in violation of the statutes with reference to the employment of minors between the ages of 14 and 16 years. Appellee pleaded the general issue and a special plea averring that the parties were subject to the Workmen's Compensation Act, to which the court sustained a demurrer.

It is not disputed that the meat-packing and allied industries appellee was engaged in conducting are an extrahazardous employment and within the prohibition of the Child Labor Acts, but it is contended by appellee that the capacity in which appellant was employed was not of that character; that because an employer is engaged in extrahazardousbusiness it does not follow that all the departments of its business are extrahazardous, and this case was disposed of by the trial and Appellate Courts considering it a question of fact whether appellant's employment was extrahazardous and illegal, or whether he was employed in a capacity in which minors over 14 and under 16 might legally be employed. Upon that question the proof substantially was that appellee's plant, operated for meat packing, manufacturing, storing, loading, shipping, and unloading its products, occupied a large territory of ground, intersected and crossed by streets or passageways, on and along which were laid many railroad tracks for the operation of cars in connection with appellee's business. Appellant's employment was as a messenger boy, to carry messages from appellee's office building to the several houses and places in appellee's yards. Besides appellee's office building, which is near the northeast corner of its plant, there are a large number of other buildings scattered all over the grounds, used for many different purposes in connection with appellee's business, in which power-driven machinery was used. These buildings were reached from the office building along streets or parts of streets on which were railroad tracks for the operation of cars and by passageways between the buildings. To reach many of them, passageways occupied by railroad tracks, and upon which many trucks and other vehicles were operated, had to be crossed.

F. M. Oberg testified that at the time plaintiff's accident occurred witness was in charge of the messenger boys at the office building of appellee, and appellant was under his personal jurisdiction. He gave appellant and other messenger boys instructions as to their duties. At the time the accident occurred the witness had sent appellant, on what was known as the fertilizer route, to deliver letters and small packages to a number of offices. A slip was given appellant, designating the number of the route, and also prints of each office he was to visit and deliver messages and packages. Appellant was to visit only the places named on the slip, and the slip for each place he visited was to be placed on the time clock. His route was down Packers avenue to Forty-Second street and from Forty-Second street to Harper's dock. The next place was the fertilizer house, and then the glycerine factory, which was the last place on the fertilizer route. He said he instructed appellant to follow his orders, and that if he did not do that he would give him a tanning or discharge him.

Appellant testified as a messenger body he delivered messages from the general office building to all the different offices, the fertilizing plant, the glycerine house, wool house, sausage room, soap house, glue house, smoke house, north house, and all the other different places. Shortly after 4 o'clock on December 12, 1917, he was instructed to deliver messages to the fertilizing plant, which required him to pass over Packers avenue, on which cars were moved by locomotive engines, then south to Forty-Second street, running east and west, on which are operated all kinds of trucks and wagons carrying meat and fertilizer. He walked across the railroad tracks on Forty-Second street, and his first stop was at Harper's dock, a place from which shipping is done. He then went to the fertilizer building, on Forty-Second street, where wagons and trucks were running both ways. From the fertilizer building he went to the glue house, crossing over railroad tracks and other obstructions. From there he went to the glycerine department and wool house. As he left to return to the office building, he had to climb off the dock between the soap house and glycerine house. There were box cars standing on tracks between the glycerine house and the soap house, and he attempted to pass between the building and the cars, which was a space about 15 inches wide, and fell into a pool of hot water standing in some depression in the ground and was scalded. He testified that in making the trip he passed over the same route he had been instructed to take, except that we do not understand the attempt to pass between the glycerine house and the box car was the usual route taken on leaving the glycerine house to return to the office building.

[1][2] All the buildings required to be visited for the purpose of delivering messages by appellant were occupied by machinery operated by electrical or other power, and in delivering messages he was required to enter the buildings, pass near the running machinery, and sometimes go to an upper story to deliver the messages. Whether or not he was negligent in attempting to pass between the glycerine house and the box car is of no importance. If he was legally employed by appellee, his right of action under the Workmen's Compensation Act could not be affected by his negligence, and if he was illegally employed, in violation of the child labor statutes, his negligence would be no bar to a recovery. We repeat that the right of appellant to recover is based upon the contention that under the child labor statutes he could not be legally employed by appellee; that by section 3 of the Workmen's Compensation Act appellee's business was defined as extrahazardous, and therefore appellant's remedy was at common law, and not under the Workmen's Compensation Act.

Appellee has moved to dismiss the appeal (1) for defects in the appeal bond; (2) the Appellate Court has not certified, as required by law, the grounds for granting the appeal; (3) appellee by the assignment of cross-errors in the Appellate Court raised the validity of a statute and the construction of the Constitution.

[3] To our minds there is no merit in the first and second propositions. There are some slight discrepancies in the form of the appeal bond, but they are not of a character to affect its validity as an appeal bond; and, even if they were, we would not be authorized to dismiss the appeal without first giving appellant an opportunity to file an amended bond.

[4]In its certificate of importance the Appellate Court certified ‘that this case involves questions of law of such importance, on account of principal and collateral interests involved, as that it should be passed upon by the Supreme Court,’ and an appeal was therefore allowed on plaintiff giving bond in the sum designated by the court, with sureties to be approved by the clerk. Appellee insists the certificate was void, because it did not certify the specific...