Brost v. Whitall Tatum Co.

• Decision Date: 20 November 1916
• Docket Number: No. 99.,99.
• Parties: BROST v. WHITALL TATUM CO.
• Court: New Jersey Supreme Court

99 A. 315

89 N.J.Law 531

BROST

v. WHITALL TATUM CO.

No. 99.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1916.

Appeal from Supreme Court.

Action by Daniel C. H. Brost, by his next friend, Charles Brost, against the Whitall Tatum Company. A judgment of nonsuit was affirmed by the Supreme Court, and plaintiff appeals. Reversed, and new trial awarded.

Wescott & Weaver, of Camden, for appellant. Walter H. Bacon, of Bridgeton, for appellee.

WALKER, Ch. The plaintiff, a minor aged 19 years, brought suit by his next friend, who is his father, against the defendant corporation for physical injuries resulting to him while working as an assistant to glass blowers in the defendant's factory. The gravamen of the action was that the defendant at its factory maintained a mold hole over which boards were placed, and that in carrying materials from one part of the plant to another, it was necessary for the plaintiff to cross over it; that the defendant failed to keep the boards over the mold hole in a reasonably safe condition, and that as plaintiff was in the act of walking over the boards, without fault on his part, he slipped and fell into the mold hole because the boards were inadequate, unsafe, and unguarded, and sustained injury. The suit was not one under the Workmen's Compensation Act, but one at common law.

When the plaintiff rested, counsel for the defendant moved to nonsuit (1) because plaintiff's claim to compensation was governed by the Workmen's Compensation Act under which he did not sue, and, if denied on that ground, then (2) because no negligence on the part of the defendant had been shown, and (3) because the risk was an obvious one and was assumed by the plaintiff. The trial judge sustained the motion on the first ground, and, consequently, he did not consider or decide the other grounds. We think he erred.

The contract of hiring was made after the Workmen's Compensation Act (P. L. 1911, p. 134) went into effect, and therefore compensation would be recoverable under it, unless there was, as part of the contract, an express statement in writing prior to the accident, either in the contract itself or by written notice from either party to the other that the provisions of section 2 of the act were not intended to apply. The plaintiff being a minor, the notice would have to be given by or to his parent or guardian, father in this case (P. L. 1911, pp. 136, 137); and the case on this phase turns upon the question of notice.

On the pay envelope delivered by the defendant to the plaintiff, there was printed these words:

"Employés take notice that provisions of section two of the Employers' Liability Act approved April fourth, 1911, chapter 95 of the Law of 1911, are not intended by this corporation to apply to its contract of hiring with you."

The boy gave his wages to his father when he was home, and when he was not, to his mother. His father testified that he received at least one of the pay envelopes with the printed notice on it, and with that notice in his mind, let the boy go to work afterward.

Counsel for respondent argues that this case is within that of Troth v. Millville Bottle Works, 86 N. J. Law, 558, 91 Atl. 1031, affirmed 98 Atl. 435. In that case a notice precisely the same in effect, and almost identical in language, was posted in the defendant's works and also given to its employés through the medium of a pay envelope, and it was held in the Supreme Court that when section 2 of the act is not intended to apply to the employment of minors, a notice must be given by or to the parent or guardian of the minor, and that notice posted in the works and given by means of a pay envelope does not suffice. There was no holding to the effect that if the parent or guardian of the minor saw the posted notice or the notice on the pay envelope that it would not amount to legal notice—only that such notice was not in and of itself sufficient.

In the Troth Case an order had been made by the judge of the Cumberland pleas that the Millville Bottle Works pay Troth, a minor, a certain amount as compensation for injury received by him while at work for the company. In the Supreme Court it was contended inter alia that the employer had given notice to the employé of the fact that it would not be bound by section 2 of the Workmen's Compensation Act; but it was not proved that the notice, posted in the works and given to the minor through the medium of the pay envelope, had come to the knowledge of the boy's father, and the Supreme Court sustained the order for compensation under the act in the affirming opinion in the Troth Case in this court, the question of notice was upheld on the reasoning upon which the Supreme Court based its conclusion.

Now a marked difference between the want of notice in the Troth Case and the fact of notice in the case at bar is apparent. In the Troth Case, although notice was posted and also printed on the pay envelope, it never reached the parent of the minor; in the case at bar the notice printed on the pay envelope reached the father of the minor, and he permitted his son to continue at work after the actual receipt of the notice, and with that very notice in his mind. The two cases are clearly distinguishable.

It is to be observed that the Workmen's Compensation Act does not prescribe the form of notice to be given by or to the parent or guardian of a minor employé, to prevent the operation of the act upon the contract of hiring, nor of the manner of service of such notice. It appears, therefore, that actual notice is all that is necesary to bring the given contract within the purview of the statute.

In Wilson v. Trenton, 53 N. J. Law, 645, 23 Atl. 278, 16 L. R. A. 200, this court had before it the question of service of a notice of an assessment for the laying out and opening of a street in Trenton, the charter of which city requires that notice be served upon residents. It is not perceived that a statute, requiring the giving of a notice of an assessment for the laying out and opening of a street, differs in regard to the manner of service from one requiring notice that the Workmen's Compensation Act is not to apply in a given case; the method of service not being provided for in either statute. In Wilson v. Trenton, Mr. Justice Magie (afterwards chancellor), speaking for this court, observed (53 N. J. Law, at page 648, 23 Atl. 279, 16 L. R. A. [N. S.] 200) that:

"If the required notice is conveyed to the person to be affected thereby it is sufficient."

In the case at bar, as already shown, the notice was actually conveyed to and received by the boy's father.

We are of opinion that there was due service in this case of the notice that the Workmen's Compensation Act should not apply, and therefore the plaintiff's suit was properly brought at common law. This conclusion makes it necessary for us to consider one of the other two reasons upon which the motion to nonsuit was rested, namely: (2) That no negligence on the part of the defendant was shown; and it would also make necessary consideration of the remaining reason, namely: (3) Because the risk was an obvious one and was assumed by the plaintiff, if it were not for the provision of section 1, paragraph 2, of the Workmen's Compensation Act, which abolishes the common-law defense of assumption of risk in this class of cases. P. L. 1811, p....