Buonfiglio v. R. Neumann & Co.

107 A. 285, 93 N.J.L. 174, 1919 N.J. LEXIS 130

Opinion

The opinion of the court was delivered by

Swayze, J.

This action is brought by a father for pecuniary loss to him caused by an injury to -his minor son, a lad sixteen years of age. The son was in the employ of the defendant, to whose negligence the injury is attributed.

There was no express statement in writing or written notice that the provisions of section 2 of the Workmen’s Compensation act were not intended to apply, and, pursuant to paragraph 8, the parties are presumed to have accepted the provision of section 2, and to have agreed to he hound thereby. That the father was one of the parties so bound in the present case is shown by the fact that he received his son’s wages. The question raised is whether the Workmen’s Compensation act furnishes the sole rule of compensation or whether the father has the same right of action he would have had at common law. The question turns on the provisions of the statute. Paragraph 8 enacts that the “agreement shall ho a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in section 2 of this act.” This express language settles the question adversely to the plaintiff. It distinguishes the ease from King v. Vicoloid Company, 106 N. E. Rep. 988. The right of the legislature to prescribe these implied, or, we should rather say, statutory contracts, has been settled. American, Radiator Co. v. Rogge, 86 N. J. L. 436; affirmed, 87 Id. 314; Hetzel, Jr., v. Wasson Piston Ring Co., 89 Id. 201; Young v. Sterling Leather Works, 91 Id. 289.

When the plaintiff, in the present case, permitted liis son to work for the defendant without giving the notice which he might have given, he accepted the provisions of the statute and thereby surrendered his right to any other method or form of compensation.

The judgment must he reversed, to the end that there may he a venire de novo.

For affirmance — Hone.

For reversal — The Chancellor, Chief Justice, Sivayze, Tren ciiaed, Parker, Bergen, Kalisch, White, Heppenheimer, Williams, Gardner, JJ. 11.