Houlihan v. Raymond

• Decision Date: 14 February 1958
• Docket Number: No. L--9233,L--9233
• Citation: 139 A.2d 37,49 N.J.Super. 85
• Parties: Margaret J. HOULIHAN, an infant, by her Guardian and litem, Mildred Houlihan, and Mildred Houlihan, individually, Plaintiffs, v. Mildred C. RAYMOND and Mary C. Crane, Jr., Defendants. . Law Division
• Court: New Jersey Superior Court

Page 85

49 N.J.Super. 85

139 A.2d 37

Margaret J. HOULIHAN, an infant, by her Guardian and litem, Mildred Houlihan, and Mildred Houlihan, individually, Plaintiffs, v. Mildred C. RAYMOND and Mary C. Crane, Jr., Defendants.

No. L--9233.

Superior Court of New Jersey.

Law Division.

Feb. 14, 1958.

McCarter, English & Studer, Newark (Francis E. P. McCarter, Newark, appearing), for petitioner.

Emory, Langan, Lamb & Blake, Jersey City (Paul B. Thompson, Montclair, appearing), for plaintiffs-respondents.

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

This matter is before the court on return of order to show cause whereby Edward M. Crane, Jr., seeks a judgment against Margaret J. Houlihan, an infant, by her guardian Ad litem, Mildred Houlihan, in the sum of $1,427.07, which monies are on deposit with the clerk of this court pursuant to order made on the 15th day of November 1957.

Edward M. Crane, Jr., employed Margaret J. Houlihan, 17 years of age, to take care of his children during the summer. While she was 17 years old and without working papers, she was injured in the course of her employment in an automobile accident. Thereafter she recovered an award in workmen's compensation proceedings. Since the employment was illegal, the employee received a double award, the insurance carrier paying the initial amount and Mr. Crane being required to match this. The entire amount has long since been paid to her.

Subsequently the infant started a suit in the Superior Court of New Jersey for damages against the owners of the two cars involved in the accident--namely, Mildred Raymond and Mary C. Crane--for the alleged negligently inflicted injuries. During the trial a settlement was effected for $3,000. Since both the insurance carrier and Mr. Crane have demanded reimbursement for the sums paid to Miss Houlihan, an order was made directing payment of the $3,000 into court.

There is no question as to the right of the insurance carrier to reimbursement. The only matter before the court is Mr. Crane's application for an order directing reimbursement to him as well in the sum of $1,427.07, pursuant to N.J.S.A. 34:15--40.

Because N.J.S.A. 34:15--10, dealing with the employment of minors, is to be interpreted, it is appropriate to set forth a portion of that section. It provides that:

'* * * 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, * * * a compensation or death benefit shall be payable to the employee or his dependents Which shall be double the amount payable under the schedules * * *.' (Italics supplied.)

It is further provided that:

'The employer alone and not the insurance carrier shall be liable for the extra compensation or death benefit * * *. Any provision in an insurance policy undertaking to relieve an employer from the liability for the extra compensation or extra death benefit shall be void.

'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.' (Emphasis supplied.)

This proceeding is brought pursuant to N.J.S.A. 34:15--40:

'Where a third person is liable to the employee or his dependents for an injury or death, the existence of a right of compensation from the employer or insurance carrier under this statute shall not operate as a bar to the action of the employee or his dependents, nor be regarded as establishing a measure of damage therein. In the event that the employee or his dependents shall recover and be paid from the said third person or his insurance carrier, any sum in release or in judgment on account of his or its liability to the injured employee or his dependents, the liability of the employer under this statute thereupon shall be only such as is hereinafter in this section provided.'

The issue to be decided is whether an employer ordered to personally pay a sum equal to the amount of a compensation award Because he has illegally employed a minor in violation of the Child Welfare Law is entitled to reimbursement of this sum where the illegally employed minor is injured as a result of a third party's negligent act. This issue is to be considered in the light of the provisions of N.J.S.A. 34:15--40, construed in conjunction with the provisions of N.J.S.A. 34:15--10. The latter section was first enacted as L.1911, c. 95, par. 9, which set forth a presumption of the applicability of Section II (Child Labor Law) in the employment of minors unless notice to the contrary was given. Paragraph 9 was amended by L.1924, c. 159, par. 1, to the end that in the case of an injured employee under 14 years of age employed in violation of the labor law, or a minor between 14 and 16 years of age employed without an age or schooling certificate or at an occupation prohibited at that age by the labor law, '* * * a compensation or death benefit shall be payable * * * which shall be double the amount payable under schedule * * *.' This amended section further provided that the extra compensation could not be covered by insurance and also reserved for an infant under the age of 16 the right or rights existing under the common law for injuries received by reason of employer's negligence.

It is significant that the Legislature reserved for all minors 16 years of age and under their rights under the common law for injuries received due to an employer's negligence. The legislative intent was to put injured minors in a more favorable position than other employees with regard to injuries caused by the negligent acts of their employers. Wilson v. Newark Smelting & Refinery Co., 26 N.J.Misc. 51, 56 A.2d 619 (Com.Pl.1945).

The statement attached to the original bill pertaining to this amendment set forth that the purpose of the act was to bring illegally employed children under the compensation act. It provides:

'This act follows the New York Law by providing that illegally employed minors shall receive double the compensation, if injured, to which they would have been entitled for similar injuries if lawfully employed. It does not affect in any way the legal employment of minors.'

The purpose of this statute appears obvious: to wit, bring about strict compliance with the labor laws in the employment of minors. Where the employer fails to comply, he shall personally suffer the imposition of a penalty, personally levied and not to be covered by insurance, equal to the amount of the compensation award for the injury sustained.

Suits for penalties are neither criminal or quasi-criminal in nature, but civil. Such offenses are punishable, as the name implies, by penalties. Johnson v. Barclay, 16 N.J.L. 1 (Sup.Ct.1837), cited with approval in Sawran v. Lennon, 19 N.J. 606, 612, 118 A.2d 10 (1955). In the latter case, 19 N.J. on page 612, 118 A.2d on page 13, Chief Justice Vanderbilt noted:

'Penalty actions, moreover, unlike fines in criminal cases and in proceedings against disorderly persons, May involve sanctions which may enure to the benefit of private individuals, * * *.' (Emphasis supplied.)

The court went on to note that:

'The clear purpose both of quasi-criminal proceedings against disorderly persons and civil suits for penalties is to provide a summary action for the disposition of minor offenses free from indictment and trial by jury in cases not deemed sufficiently important to call for indictment and trial by jury, which methods if applied to a vast number of cases would inevitably clog the courts.

'Suits for penalties, moreover, must always be construed strictly according to their clear intendment. State v. Meinken, 10 N.J. 348, 352, 91 A.2d 721 (1952); Mayor and Council of Alpine Borough v. Brewster, 7 N.J. 42, 51, 52, 80 A.2d 297 (1951). See also Wharton, Criminal Law (12th ed.) § 40, where it is noted that:

"In construing such statutes, however, we are to look for their reasonable sense, and if this is clearly ascertained it must be applied, though a narrower sense is possible. The courts are, on the one hand, to refuse to 'extend the punishment to cases which are not clearly embraced' in the statutes; on the other hand,...