Dillon v. E. Heller & Bros., Inc.

• Decision Date: 13 November 1923
• Docket Number: No. 37.,37.
• Citation: 122 A. 595
• Parties: DILLON et al. v. E. HELLER & BROS., Inc.
• Court: New Jersey Supreme Court

122 A. 595

DILLON et al.

v. E. HELLER & BROS., Inc.

No. 37.

Supreme Court of New Jersey.

Nov. 13, 1923.

(Syllabus by the Court.)

Action by Mabel Dillon, by Frank Dillon, her next friend, and another, against E. Heler & Bros., Inc. On rule to show cause. Rule discharged.

Argued June term, 1923, before KALISCH and KATZENBACH, JJ.

Kent & Kent, of Paterson (Nathaniel Kent, of Paterson, of counsel), for plaintiffs.

McDermott, Enright & Carpenter, of Jersey City, for defendant.

KATZENBACH, J. This case is before us on a defendant's rule to show cause. The plaintiff, Mabel Dillon, a minor, by her next friend, obtained a judgment against the defendant for $7,500 for personal injuries. In August, 1922, the plaintiff, representing herself to be 16 years of age, sought and obtained employment with the defendant. For the first two weeks she was placed at work of a nondangerous character. At the commencement of the third week of her employment she was put to work feeding the mangle of a machine used for laundering handkerchiefs. This was a dangerous employment. After working about a week, and on September 13, 1922, the plaintiff, in endeavoring to straighten a handkerchief caught her left hand in the mangle. The hand was drawn in between the roller and steam chest, where it was caught and remained caught for some 20 minutes before being extricated by lifting the roller with crowbars. The hand was burned to a crisp, and four fingers dropped from it, leaving the remainder of the hand badly deformed. The injury was painful and permanent.

Upon the theory that the plaintiff was not estopped by the misrepresentation of her age from instituting an action against her employer for negligence, this suit was instituted. Such an action has been sustained in the cases of Feir v. Weil, 92 N. J. Law, 610, 106 Atl. 402, Lesko v. Liondale Bleach, etc., Works, 93 N. J. Law, 4, 107 Atl. 275, and Volpe v. Hammersley Manufacturing Co., 90 N. J. Law, 489, 115 Atl. 665.

The first point argued by the defendant under its rule is that the damages are excessive. The plaintiff, before the accident, had two hands, which made it possible for her to earn a livelihood. After the accident one hand was practically useless, deformed, and repulsive. She was incapable of manual labor. Her chances for matrimony were materially lessened by her disfigurement and inability to do the household work required of a married woman in the plaintiff's station in life. The character of the injury was such as to cause great suffering. At the time of the trial she still had a burning sensation in her hand. While the verdict might be considered large, we do not think, under all the circumstances, that it can be considered excessive. The amount in no sense shocks the conscience. We think it should not be decreased.

The second ground urged by the defendant to set aside the verdict is that it is contrary to the weight of the evidence on the question of the plaintiff's age. The plaintiff's age was, of course, the crux of the case. If she was 15, the action as instituted could be maintained. If 16 her remedy was to apply for compensation under the Workmen's Compensation Act. P. L. 1911, p. 134, as amended by P. L. 1913, p. 302. The burden was upon the plaintiff to establish by a preponderance of the testimony that she was under 16 years of age at the time of the accident. Her father testified she was born on April 14, 1907. The attending midwife testified that the plaintiff was born in April, 1907. A record of the baptism of the plaintiff was made on May 29, 1910, and gave her birth as of April 15, 1907. The defendant offered no witness in contradiction of this testimony. It produced a birth certificate of Mabel Dillon, filed in the city of Hoboken, showing the date of birth as April 14, 1906. This certificate, however, had not been filed until October 18, 1922, which was over a mouth after the accident. In view of the direct and positive testimony given by the witnesses for the plaintiff, and the doubt east upon the correctness of the birth certificate by its belated filing, we are of the opinion that the result, reached by the jury in this question is not against the weight of the evidence.

It has been mentioned in the preceding paragraph that during the progress of the trial the baptismal...