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Cadwell v. National Tea Co.

OPINION FILED APRIL 9, 1951

JAMES CADWELL, A MINOR BY LEON CADWELL, HIS GUARDIAN, APPELLANT,

v.

NATIONAL TEA COMPANY, APPELLEE.



Appeal by plaintiff from the Superior Court of Cook county; the Hon. WILBERT F. CROWLEY, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1950. Affirmed. Opinion filed April 9, 1951. Released for publication May 7, 1951.

MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.

Plaintiff's amended complaint alleges that defendant was a retailer of foodstuffs employing plaintiff, thirteen years of age, in violation of the Illinois Child Labor Law; that while plaintiff was thus illegally employed, on April 18, 1946, he suffered personal injuries; that on August 29, 1949, Leon Cadwell was appointed plaintiff's guardian, and within six months thereafter said guardian filed a rejection of plaintiff's right to benefits under the Workmen's Compensation Act of Illinois and filed suit at law to recover for his injuries.

Defendant moved to strike said amended complaint on the ground that plaintiff had not rejected the benefits of the Workmen's Compensation Act within six months from the date of his injury. From the trial court's action in striking the amended complaint and entering judgment for defendant, plaintiff appeals.

The question presented by the appeal, therefore, is whether or not a minor may maintain a common law action for injuries sustained while illegally employed when he, being bound by the provisions of the Act, failed within six months from the date of the injury to file with the Illinois Industrial Commission a rejection of his right to benefits under the Act.

Plaintiff maintains that there is compliance with the Act if the action is commenced within six months after the appointment of a guardian, even though more than six months have elapsed since the date of the accident. Defendant insists that the rejection must be filed within six months from the date of the injury

Section 6 of the Workmen's Compensation Act (Ill. Rev. Stat. 1949, chap. 48, par. 143) [Jones Ill. Stats. Ann. 143.21] provides as follows:

"No common law or statutory right to recover damages for injury or death sustained by any employe while engaged in the line of his duty as such employe, other than the compensation herein provided, shall be available to any employe who is covered by the provisions of this act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury; . . . Provided, further, that any illegally employed minor or his legal representatives shall, except as hereinafter provided, have the right, within six months after the time of injury or death to file with the commission a rejection of his right to the benefits under this Act, in which case such illegally employed minor or his legal representatives shall have the right to pursue his or their common law or statutory remedies to recover damages for such injury or death. . . ."

Section 5 (par. 142) provides:

"The term `employe' 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, . . . 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. . . ."

The language of section 6, to the effect that rejection of the benefits of the Workmen's Compensation Act must be filed within six months after the time of the injury, is clear and unambiguous, as is section 5 to the effect that minors shall be considered the same as adult employees. In Landry v. Shinner & Co., 344 Ill. 579 (1931), the court held that the Workmen's Compensation Act had completely taken away from a minor illegally employed any right of action at common law for damages against his employer, whether or not predicated on a violation of the Child Labor Law. The proviso reinstating the common law right if the minor files a rejection of benefits under the Act within six months from the date of his injury was supplied by amendment to section 6 after the Landry case was decided. No such rejection was filed by the plaintiff here until more than three years after the date of the injury.

Plaintiff's argument is based wholly upon the holding in Oran v. Kraft-Phenix Cheese Corp., 324 Ill. App. 463 (1944). There this court (Second Division) decided that when the Workmen's Compensation Act specifies a time limitation within which a minor must exercise his rights, the time begins to run, not from the date specified in the Act, but from the date of the appointment of a guardian for such minor. In reaching such conclusion the court reasoned that the language of section 6, requiring the illegally employed minor to file a rejection of benefits under the Act within six months from the date of injury in order to have the right to sue at common law, was against the public policy of the State of Illinois which favors liberal statutory construction to the end that the rights of minors be protected; that inasmuch as plaintiff had no legal guardian he could not be presumed to be aware of the provisions of the statute; and that it was therefore legally impossible for him to have filed a rejection himself. It is to be observed, however, that in Landry v. Shinner & Co., supra, the court considered this question of public policy, disposing of it in the following language (pp. 582-584):

"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. . . .

". . . The principle object in construing a statute is to ascertain and give effect to the intention of the legislature. (Fowler v. Johnston City and Big Muddy Coal Co. 292 Ill. 440.) The plain and obvious meaning of the language used by the legislature is the safest guide to follow in construing any act, as the court has no right to read into the statute words that are not found therein either by ...


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