Noreen v. William Vogel & Bros., Inc

• Decision Date: 31 May 1921
• Citation: 231 N.Y. 317,132 N.E. 102
• Parties: NOREEN v. WILLIAM VOGEL & BROS., Inc.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 317

132 N.E. 102

NOREEN

v.WILLIAM VOGEL & BROS., Inc.

Court of Appeals of New York.

May 31, 1921.

Action by Leonard Noreen, an infant, by his guardian ad litem Oscar Noreen, against William Vogel & Bros., Incorporated. From a judgment of the Supreme Court, Second Appellate Division (190 App. Div. 918,179 N. Y. Supp. 939; 192 App. Div. 923,182 N. Y. Supp. 940), which unanimously affirmed a judgment of the Trial Term entered on a verdict of the jury in favor of plaintiff and an order denying defendant's motion for a new trial, and to set aside the verdict, defendant appeals by permission.

Judgments reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, Second department.

E. C. Sherwood and Benjamin C. Loder, both of New York City, for appellant.

F. Matthews Buermann, of Brooklyn, and Barnett Cohen, of New York City, for respondent.

HOGAN, J.

The plaintiff, an infant, brought this action by his guardian ad litem to recover damages from defendant, a manufacturing corporation, for personal injuries alleged to have been sustained on February 15, 1916, while in its employ. Plaintiff at the time of the employment and accident from which he received the injuries complained of was under the age of 16 years, and was employed without an employment certificate, as required by the Labor Law. Consol. Laws, c. 31. When seeking employment he had represented that he was 17 years of age. The negligence charged to defendant was that at the time plaintiff was injured he was employed and working upon a metal stamping machine in violation of the provisions of section 93, Labor Law, which prohibits the employment of an infant of the age of plaintiff in the operation of a machine of that character.

The single question of fact submitted to the jury was whether or not there was negligence on the part of defendant in the employment of the infant plaintiff. The trial justice charged that if the defendant believed, and was justified in believing, that the boy had passed the age of 16 years, then defendant should be exculpated; that if defendant had omitted the exercise of due diligence, prudence, and care to ascertain the age of they boy, to make reasonable inquiry as to his age, etc., the jury might find the defendant was negligent in the employment, and thus liable for damages sustained by the boy while engaged in the employment of defendant.

Upon the trial of the action and upon the appeal the defendant urged that the fact that defendant had secured compensation to its employees under the provisions of the Workmen's Compensation Law (Consol. Laws, c. 67), in connection with the concession of counsel for the parties hereto at the opening of the trial ‘that the plaintiff, together with the defendant, entered into the original agreement provided for by the Compensation Commission, and that the Compensation Commission determined or made an award, and that that award had been actually paid before the commencement of this suit amounting to 60 weeks at $6.15 per week,’ operated as a bar to the maintenance of this action.

The primary question to be determined in the instant case is clearly presented in the brief statement of facts above narrated, viz.: May the plaintiff, an infant under the age of 16 years at the time of an alleged injury, maintain this action to recover damages for such injury against an employer who has complied with the requirements of the Workmen's Compensation Law, secured compensation to its employees, and given due notice of the same, or is the remedy provided in the Workmen's Compensation Law exclusive?

We have heretofore considered the statute known as the Workmen's Compensation Law (Matter of Jensen v. So. Pacific Co., 215 N. Y. 514, 109 N. E. 600, L. R. A. 1916A, 403, Ann. Cas. 1916B, 276;Matter of Walker v. Clyde S. S. Co., 215 N. Y. 529, 109 N. E. 604, Ann. Cas. 1916B, 87;Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 114 N. E. 795;Travelers' Insurance Co. v. Padula Co., 224 N. Y. 397, 121 N. E. 348), and in several opinions discussed the general policy of the same, not only from the enactment of the first statute (Laws of 1910, c. 674), but more particularly the statute enacted by the Legislature subsequent to the amendment to the Constitution (Constitution, art. 1, § 19; Laws of 1914, chapter 41). In substance we held that the Legislature was clothed by the Constitution with the plenary power to extend or curtail the right of an injured party to maintain an action to recover damages for an injury sustained; that the statute...