Goetaski v. California Packing Corp.

• Decision Date: 24 April 1952
• Docket Number: No. L--2141--51,L--2141--51
• Citation: 88 A.2d 685,19 N.J.Super. 460
• Parties: GOETASKI et al. v. CALIFORNIA PACKING CORP.
• Court: New Jersey Superior Court

Page 460

19 N.J.Super. 460

88 A.2d 685

GOETASKI et al. v. CALIFORNIA PACKING CORP.

No. L--2141--51.

Superior Court of New Jersey Law Division.

April 24, 1952.

Carroll, Taylor & Bischoff, Camden (William G. Bischoff, Camden, appearing), for the motion.

Horace G. Brown, Camden, (Henry C. Wille, Camden, appearing), contra.

WOODS, J.S.C.

This matter comes before us on a motion for an order striking the complaint in the above entitled cause on the following grounds:

1. The complaint does not state a claim upon which relief can be granted.

2. The plaintiffs' sole right of action is under and pursuant to the terms of the Workmen's Compensation Act 3. Plaintiffs are estopped from maintaining this action.

4. This court is without jurisdiction to afford relief to either the plaintiff, James C. Goetaski, or the plaintiff, Walter Goetaski, under the circumstances alleged in the complaint.

The facts, in brief, are as follows: The plaintiff, James C. Goetaski, was employed by the defendant in the summer of 1950 and worked on a conveyor belt. On September 11, 1950, while so engaged he sustained an accident arising out of and in the course of his employment, injuring his hand. The plaintiff was born on February 6, 1933, so that at the time of his accident he was but 17 years and 7 months old, although on his application for employment he gave his date of birth as February 6, 1932, indicating that he was on July 21, 1950, then over 18 years of age. No age and working certificate was submitted, nor did the employer request one. The defendant carried workmen's compensation insurance and the plaintiff received compensation at the statutory rate from September 25, 1950 until March of 1951. In addition thereto, the plaintiff, James C. Goetaski, was furnished, pursuant to the terms of the compensation act, and at the expenses of the compensation insurance carrier for the defendant establishment, medical treatments, including the services of physicians and surgeons, hospitalization and all incidental hospital services, physiotherapy and occupational rehabilitation therapy. On July 11, 1951, the plaintiff, James C. Goetaski, filed an employee's claim petition with the Workmen's Compensation Bureau by which he sought a judgment pursuant to the terms of the Workmen's Compensation Act against the defendant. Thereafter, on August 9, 1951, the defendant filed an answer to the claim petition, and on September 6, 1951, at the request of the plaintiff, an order was entered discontinuing the petition filed. No hearings had been held before the Workmen's Compensation Bureau, and there was never any adjudication, determination or judgment entered.

The present action is brought to recover damages by reason of personal injuries suffered by the plaintiff, James C Goetaski, a minor, and also damages suffered by his father, Walter Goetaski, in his own right, and the complaint is predicated upon the reservation of such a suit at law as set forth in R.S. 34:15--10 as amended by the L.1945, c. 74, p. 380, N.J.S.A., which reads in part as follows:

'Nothing in this chapter contained shall deprive an infant under the age of eighteen 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.'

In 1924 the Legislature sought to protect the interests of certain minors (those under the age of 16) by amending the Workmen's Compensation Act to include the saving clause hereinbefore quoted. This provision saved to those 'under the age of sixteen' the right to bring such an action at law, though the same was barred to minors generally, and it was carried over into the 1940 amendment and by the 1945 amendment the age limit for the purpose of election of remedy was raised to 18.

In the case of Mauthe v. B. & G. Service Station Inc., 139 A. 245, 5 N.J.Misc. 581 (Sup.Ct.1927) the reasons urged for a new trial were that the court erred in refusing a non-suit:

'The grounds upon which the non-suit was asked are that the respondent's remedy was under the Workmen's Compensation Act of 1911 and its amendments and supplements, and that the trial court was consequently without jurisdiction to hear the case. Joseph Mauthe was a minor of the age of 15 1/2 years, and therefore under the age of permissive employment, under the statute, in the service for which he was engaged. This being true, the common-law remedies of the administrator of his estate were not affected by the workmen's compensation acts. * * * But it is contended that chapter 159 of the Laws of 1924 (page 359) provides a statutory remedy in such case, which supersedes the common-law remedy. The difficulty with this contention is that the second section, par. 9 of the act, expressly provides that nothing in the act 'shall deprive an infant under the age of sixteen of the right or rights now existing to recover damages in a common-law * * * action or proceeding for injuries received by reason of the negligence of his or her master.' We think the result reached by the earlier decisions above cited are not intended to be modified by the statute in question.'

See the case of Terlingo v. Belz-Parr, Inc., 106 N.J.L. 221, 147 A. 480, 481 (E. & A.1929), where the court held 'by express legislative language the infant is not deprived of any rights which existed, either at common law or by virtue of any other appropriate action or proceeding.' It cannot be questioned but that the Legislature specifically intended to save from its original bar against actions at law, by both adults and minors, the rights of those under 16, and, today, under 18. See Wilson v. Newark Smelting & Refining Co., Inc., 56 A.2d 619, 26 N.J.Misc. 51, (Comm.Pl.1945).

We conclude the plaintiff did have the right of election of remedy.

Having elected to pursue his remedy under the Workmen's Compensation Act, can he voluntarily withdraw and discontinue such proceedings before hearing and adjudication, and come before this court in an action at law? In a situation such as this, there is no doubt that a minor employee up to and including the age of 18 years may elect to receive compensation for injuries sustained under the Workmen's Compensation Act, or in the alternative he may bring an action at common law for damages in cases where the accident was due to negligence, but he cannot do both. See Watson v. Stagg, 108 N.J.L. 444, 158 A. 850, 821 (Sup.Ct.1932). In this case, Justice Parker went on to say:

'In the case now before us there seems to be no question with regard to the jurisdiction of the Workmen's Compensation Bureau. The case is clearly within the language of the amendment of 1924 above quoted, and consequently in a case where the employment is not in violation of any provision of the Factory Act (Terlingo v. Belz-Parr, Inc., 106 N.J.L. 221, 147 A. 480) and the injured party has elected to resort to the Workmen's Compensation Act for his remedy and there has been an adjudication in his favor in that proceeding, it operates as a bar to further resort to the alternative provision of the statute permitting an action for damages.'

But, at what juncture is he barred by his election from pursuing the other remedy? Is he estopped when he once makes a choice and starts proceedings thereunder? Or, may he advance to any stage in the proceedings short of adjudication, and then change his mind?

'The authorities are in conflict as to whether, as a general proposition, a concludive election of remedies is effected on the one hand by the mere commencement of a suit or on the other hand, only where the suit has been prosecuted to judgment or where elements of estoppel in pais, other than the mere commencement of the suit, are present * * *. This conflict appears to be due to various reasons: (1) one of these reasons is the fact that the courts frequently fail to distinguish between a choice of inconsistent substantive rights, afforded by law, with the result that the assertion of one, by suit or otherwise, results in the loss of the other, and a choice of inconsistent 'remedies', in the narrower sense, as to which the mere commencement of a suit pursuing one remedy should not, of itself, result in the loss of the other; * * * (4) The most important reason for the existing conflict is the fact that an attempt to ascertain whether, as an abstract proposition, the commencement of a suit is, of itself, a conclusive election precluding resort to an inconsistent right or remedy is, in reality, an attempt to beg the decisive question. The decisive question is not whether the commencement of a suit is of itself, a conclusive election, but whether the different rights necessary to pursue different remedies are so inconsistent that the mere assertion of one, whether by judicial proceedings or otherwise, necessarily results in the loss of the other, as a matter of substantive law or fairness. This question cannot properly be answered in the abstract, but only with respect to particular rights and remedies. * * * The clearer it is in a particular situation that a choice...