Chickachop v. Manpower, Inc.

• Citation: 84 N.J.Super. 129,201 A.2d 90
• Decision Date: 25 May 1964
• Docket Number: No. L--4065,L--4065
• Parties: Joseph CHICKACHOP, Sr., and Joseph Chickachop, Jr., by his Guardian ad Litem, Joseph Chickachop, Sr., Plaintiffs, v. MANPOWER, INC., a New Jersey corporation and Nevin McKay t/a Nevin McKay& Company, Defendants and Third-party Plaintiffs, v. KREVITZ STEEL COMPANY, a Pennsylvania corporation, Third-party Defendant.
• Court: Superior Court of New Jersey

Page 129

84 N.J.Super. 129

201 A.2d 90

Joseph CHICKACHOP, Sr., and Joseph Chickachop, Jr., by his Guardian ad Litem, Joseph Chickachop, Sr., Plaintiffs, v. MANPOWER, INC., a New Jersey corporation and Nevin McKay t/a

Nevin McKay& Company, Defendants and Third-party Plaintiffs, v. KREVITZ STEEL COMPANY, a Pennsylvania corporation,

Third-party Defendant.

No. L--4065.

Superior Court of New Jersey

Law Division.

May 25, 1964.

Rudolph J. Rossetti, Camden, for plaintiffs (Epstein & Fluharty, Camden, attorneys).

Arthur Montano, Camden, for defendant third-party plaintiff Manpower, Inc. (Kisselman, Devine, Deighan & Montano, Camden, attorneys).

Thomas A. Lunn, Camden, for defendant third-party plaintiff Nevin McKay t/a Nevin McKay & Company (Samuel P. Orlando, Camden, attorney).

John A. Fratto, Camden, for third-party defendant (Bleakly, Stockwell & Zink, Camden, attorneys).

PASCOE, J.C.C. (temporarily assigned).

This matter concerns two motions for summary judgment by the defendants Manpower, Inc. and Nevin McKay & Company. The grounds for such motions are that the infant plaintiff Joseph Chickachop Jr., through his guardian Ad Litem Joseph Chickachop, Sr., has elected his remedy under the Workmen's Compensation Act of the State of New Jersey, N.J.S.A. 34:15--10. This remedy being his exclusive remedy, he therefore is barred from maintaining this action for common law liability.

A personal injury action was instituted by plaintiffs, the father suing Per quod. Plaintiff minor had completed an application for employment with Manpower on June 24, 1961. In this application he lied concerning his age (he was 14 while telling Manpower he was 18) and special skills that he supposedly possessed. No proof of age was requested by the defendant Manpower and the child was employed at an hourly rate of $1. Manpower would assign him to a job on a day-to-day basis and his compensation would be received from Manpower.

On July 24, 1961 plaintiff minor was working at the Nevin McKay & Company plant. His task was to work with a polishing crew and required his loading and unloading steel plates to and from a large polishing machine. He had been so employed for several days prior to this date. On this day an accident occurred which resulted in steel plates falling on his right leg. The exact details of this incident are unclear because of contradictory statements under depositions made by several interested parties and witnesses.

However, for the purpose of this motion, the facts necessary to decide the legal issues are quite clear. While loading a truck owned by Krevitz Steel Company with steel furnished by Nevin McKay & Company through the use of a chain hoist, the box containing the steel fell and the minor plaintiff was injured. The steel plates were crated in wooden boxes, five inches tall and three by ten feet. The estimated weight was 1000 pounds. The hoist had a pyramid-type apparatus with four hooks, and each hook was placed under the crate, on each corner of the far ends of the crate. These hooks were improperly placed by plaintiff and caused the box to fall and the steel to break through the lid onto his right leg.

A workmen's compensation claim was filed against Manpower alone and a hearing was held September 18, 1963. On September 27, 1963 an order was issued by the judge of compensation. That order required defendant Manpower to provide plaintiff Joseph Chickachop, Jr. with plastic surgery, and to pay any temporary disability resulting from said surgical procedure. Pending completion of the plastic surgery the question of permanent disability, if any, and further temporary disability was to remain undetermined until a later date. Prior to the hearing defendant Manpower's insurance carrier had paid six weeks' temporary disability at $27 per week and 10% Permanent disability of the right foot.

Several legal issues are now raised by this motion as a result of the workmen's compensation order.

Normally there would be no election of remedies by plaintiff in such an accident arising out of and in the course of his employment. But because of the age of Joseph Chickachop, Jr., a special statutory provision comes into play. N.J.S.A. 34:15--10 provides:

'In the employment of minors, this article shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor. If the injured employee at the time of the accident or compensable occupational disease is a minor under 14 years of age employed in violation of the labor law or a minor between 14 and 18 years of age employed, permitted or suffered to work without an employment certificate or special permit if required by law or at an occupation prohibited at the minor's age by law, a compensation or death benefit shall be payable to the employee or his dependents which shall be double the amount payable under the schedules provided in sections 34:15--12 and 34:15--13 of this Title.

Nothing in this chapter contained shall deprive an infant under the age of 18 years of the right or rights now existing to recover damages in a common law or other appropriate action or proceeding for injuries received by reason of the negligence of his or her master. * * *'

At the time of this accident the minor was 14 years of age and was engaged in factory labor in violation of this statute and N.J.S.A. 34:2--21.2. The intent of the provisions of N.J.S.A. 34:15--10 was to put the injured minors in a more favorable position than other employees. A penalty was imposed upon the employer in order to assure strict compliance with the labor laws. Houlihan v. Raymond, 49 N.J.Super. 85, 139 A.2d 37 (Law Div.1958).

Plaintiff was thereby given additional rights without depriving him of existing rights. Thus an election of remedies was intended by our Legislature. A plaintiff minor may choose to bring an action for workmen's compensation or for common law tort. Terlingo v. Belz-Parr, Inc., 106 N.J.L. 221, 147 A. 480 (E. & A. 1929); Goetaski v. California Packing Corp., 19 N.J.Super. 460, 88 A.2d 685 (Law Div.1952); Watson v. Stagg, 108 N.J.L. 444, 158 A. 820 (Sup.Ct.1932); 1 Larson, Workmen's Compensation Law, pp. 704--08 (1952).

All parties are agreed upon the right of election, but there is a dispute as to what circumstances constitute such an election.

We must distinguish between a choice of inconsistent substantive rights afforded by law and a choice of inconsistent remedies in a narrower sense. In the former, the assertion of one right results in the loss of the other right; whereas in the latter case the mere commencing of a suit pursuing one remedy should not of itself result in the loss of the other remedy. Annotation, 'Election of Remedies,' 6 A.L.R.2d 10, 15 (1949).

Where you have a choice between two remedies and the rights are not inconsistent, then the satisfaction of one remedy bars the other remedy. A recovery in one proceeding is a satisfaction of remedy. Damato v. DeLucia, 110 N.J.L. 380, 166 A. 173 (E. & A. 1933); Balogh v. Ladanye, 59 N.J.Super. 132, 157 A.2d 350 (App.Div.1960); 28 C.J.S. Election of Remedies, § 2 p. 1061 (1941).

It is the law of New Jersey that the acceptance of workmen's compensation payments and medical benefits voluntarily offered, and the mere filing of a claim petition, do not estop a suit in law. Volpe v. Hammersley Mfg. Co., 96 N.J.L. 489, 115 A. 665 (E. & A. 1921); Goetaski v. California Packing Corp., supra. But in the present case such medical benefits were paid by court order after a full hearing as to respondent Manpower's liability, leaving only permanent disability to be finally resolved.

The judge of compensation ordered plastic surgery to be done, and Manpower was to pay the expenses and all temporary disability arising therefrom. R.S. 34:15--15, N.J.S.A. requires such a court order where the medical fees would exceed $50. The decision of the compensation judge was in the nature of a judgment and thus a satisfaction of a remedy.

While it is true that permanent disability has not been determined pending the results of the operation, and thus a final judgment has not been entered, the election has been made. Admittedly, plaintiff suffered a compensable accident--it was so stipulated in the compensation hearing. The employee is not required to wait until his permanent disability is fixed and evaluated before applying for relief. Medical attention or temporary compensation may be ordered by the Workmen's Compensation Division in accordance with R.S. 34:15--15, N.J.S.A. Voorhees v. Glenwal Co., Inc., 77 N.J.Super. 65, 185 A.2d 401 (App.Div.1962).

'It is well established law by judicial construction of the whole compensation act that the furnishing of medical treatment is in the nature of compensation and constitutes a part 'payment' thereof.' Sa v. H. L. Harrison & Son, Inc., 38 N.J. 203, 183 A.2d 410 (1962).

The statute providing awards for medical and hospital service creates independent rights apart from the statute authorizing an award for permanent total disability. Fierro v. Public Service Coord. Transport, 44 N.J.Super. 73, 129 A.2d 470 (Cty.Ct.1957).

It is the decision of this court that such an award of medical expenses for a plastic surgery operation and the temporary disability arising therefrom is a complete satisfaction of one remedy and acts as a bar to a suit at common law. While the remedy of permanent disability is still to be determined, this is an independent right arising from a common remedy of workmen's compensation and is merely a matter of continuing that portion of the case until the results of the operation can be measured.

It is true that if such an operation were freely offered by defendant Manpower and accepted by plaintiffs, no election would result. But the facts show a complete trial and an order of the court, with the settlement of practically all the vital issues of the cause of action. Clearly, a choice has been made and cannot be avoided at this late stage of the case.

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