Landry v. E.G. Shinner & Co.

• Decision Date: 18 June 1931
• Docket Number: No. 20751.,20751.
• Citation: 344 Ill. 579,176 N.E. 895
• Parties: LANDRY v. E. G. SHINNER & CO., Inc.
• Court: Illinois Supreme Court

344 Ill. 579

176 N.E. 895

LANDRY

v.E. G. SHINNER & CO., Inc.

No. 20751.

Supreme Court of Illinois.

June 18, 1931.

Action by Fred Landry, a minor, by his next friend, Henry Landry, against E. G. Shinner & Co., Inc. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Superior Court, Cook County; Paul McWilliams, judge.

Finn & Miller, of Chicago, for appellant.

Mayer, Meyer, Austrian & Platt, of Chicago (Carl Meyer, David F. Rosenthal, and Jacob X. Schwartz, all of Chicago, of counsel), for appellee.

HEARD, J.

Appellant, Fred Landry, a minor, by his next friend, Henry Landry, brought suit in the superior court of Cook county against appellee, the E. G. Shinner & Co., Inc., for personal injuries. A demurrer was sustained to appellant's declaration, and, appellant electing to stand by it, judgment in bar of the action was entered, from which an appeal was taken to this court, the constitutionality of a statute being involved.

Appellee in its brief and argument states: ‘For the purposes of this appeal it may be conceded that on July 21, 1928, when the plaintiff was fifteen years old, he was injured while in defendant's employ; that in such employment the plaintiff was required to clean a certain meat-chopper, and that his employment in that capacity was absolutely prohibited by the Child Labor Act of 1917 [Laws 1917, p. 511], as amended in 1921 [Laws 1921, p. 435] which was then in force. It is also not disputed that the enterprise in which the plaintiff was employed was one to which the Workmen's Compensation Act of 1927 applied, and that if the plaintiff had been an adult no right of action at law would have existed.’

Section 5 of the Workmen's Compensation Act of 1927 (Laws 1927, p. 498) is as follows:

‘§ 5. Term ‘Employee’ Defined.-The term ‘employee’ as used in this Act, shall be construed to mean * * *

‘Second-Every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois, and including aliens, and minors who, for the purpose of this Act, shall be considered the same and have the same power to contract, receive payments and give quittances therefor, as adult employees,’ etc.

Paragraph (k) of section 8 of the same act (Laws 1927, p. 503) is as follows: ‘In case the injured employee is under sixteen years of age at the time of the injured and is illegally employed, the amount of compensation payable under paragraphs (b), (c), (d), (e) and (f) of this section shall be increased fifty percentum: Provided, however, that nothing herein contained shall be construed to repeal or amend the provisions of An Act concerningchild labor, approved June 26, 1917, as subsequently amended relating to the employment of minors under the age of sixteen years.’

If these provisions are valid, appellant's remedy was under the Workmen's Compensation Act and the demurrer was properly sustained.

It is contended by appellant that paragaph (k) of section 8 is unconstitutional as being contrary to public policy, and that the policy of preserving the health and lives of children by forbidding their employment in certain industries dangerous to their health, their lives, or their limbs was first adopted by the Legislature of the state of Illinois on June 17, 1891, and that later acts covering this same subject, extensively and with considerable detail, show that the protection of children under these circumstances has been the policy of this state on the subject ever since. The public policy of a state is to be found embodied in its Constitution, its statutes, and, when these are silent on the subject, in the decisions of its courts. The public policy of a state, when not fixed by the Constitution, is not unalterable, but varies upon any given question with changing legislation thereon, and any action which by legislation, or, in the absence of legislation thereon, by the decisions of the court, has been held contrary to the public policy of the state, is no longer contrary to such public policy when such action is expressly authorized by subsequent legislative enactment. People v. City of Chicago, 321 Ill. 466, 152 N. E. 141;Lincoln Park Coal Co. v. Wabash Railway Co., 338 Ill. 82, 170 N. E. 8. If paragraph (k) is a valid enactment, then it is not contrary to the public policy of this state.

Section 13 of article 4 of the Constitution of this state provides: ‘No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.’ It is contended by appellant that the first part of paragraph (k) of section 8, by providing for compensation for minors illegally employed, repeals the Child Labor Laws of this state without making any reference to such repeal in the title of the act. He cites Galpin v. City of Chicago, 269 Ill. 27, 109 N. E. 713, L. R. A. 1917B, 176, and Lyons v. Police Pension Board, 255 Ill. 139, 99 N. E. 337, to the effect that, where a statute repeals by implication a former statute, the title to such repealing act must contain a reference to such repeal. Paragraph (k) does not purport to repeal, or in fact repeal, the Child Labor Law or any portion thereof, but, on the contrary, expressly states an intention not to do so. The Child Labor Law is wholly a penal law, and is in nowise affected by the enactment of paragraph (k). The only effect that paragraph has with reference thereto is to transfer a remedy of a minor not given by the Child Labor Law, but accruing to a minor by reason of a violation thereof, from a suit in trespass for personal injuries to a claim for such injuries under the Workmen's Compensation Act. There is no vested right of one injured to any particular remedy, and a transfer of remedies is clearly within the scope of legislative enactment. Gones v. Fisher, 286 Ill. 606, 122 N. E. 95, 19 A. L. R. 760;Johnson v. Choate, 284 Ill. 214, 119 N. E. 972;Green v. Red Cross Medical Service Co., 232 Ill. 616, 83 N. E. 1081.

It is contended by appellant that paragraph (k) of section 8 of the Workmen's Compensation Act is in direct conflict with section 5 of the same act, as by section 5 the term ‘employee’ is restricted to persons in the service of another under contracts of hire, express or implied, and by paragraph (k) the term ‘employee’ is applied to one under sixteenyears of age who is illegally employed at the time of the injury, and that in cases arising under paragraph (k) there can be no contract of hire. Section 5 of the act, prior to its amendment in 1927, included ‘minors who are legally permitted to work under the laws of this State.’ By the amendment of 1927 the words ‘who are legally permitted to work under...