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Damato v. Delucia

New Jersey Supreme Court


Decided: April 27, 1933.

ANTHONY DAMATO, PETITIONER-RESPONDENT,
v.
CONSTANTINO DELUCIA, RESPONDENT-APPELLANT

On appeal from the Supreme Court, whose per curiam is printed in 10 N.J. Mis. R. 308.

For the respondent-appellant, McDermott, Enright & Carpenter (James D. Carpenter, Jr).

For the petitioner-appellee, Meehan Brothers (John J. Meehan).

Bodine

[110 NJL Page 381]

The opinion of the court was delivered by

BODINE, J. The petitioner, a minor under sixteen years of age, was injured while illegally employed in defendant's bakery. He, and his parents, sued in a common law action and recovered damages. He then proceeded under his compensation petition previously filed, and received an award from the bureau. This award the Supreme Court sustained.

It was decided in Terlingo v. Belz-Parr, Inc., 106 N.J.L. 221, that the amendment to section 9 of the Workmen's Compensation act (Pamph. L. 1924, p. 359), did not deprive the infant of his common law action, although under the act he or his dependents would be entitled to double compensation. We do not think, however, that in addition to the common law recovery, the infant may also secure compensation under the act. The legislature has, of course, given the infant an additional remedy with double compensation, but there cannot be a recovery under both the statute and the common law. Watson v. Stagg, 108 N.J.L. 444; Boyle v. VanSplinter, 101 Id. 89. The recovery under the common law action was as much a bar to recovery under the statute as recovery under the latter would be a bar to the common law action. The judgment is reversed.

For affirmance -- THE CHIEF JUSTICE, J. 1.

For reversal -- THE CHANCELLOR, PARKER, LLOYD, CASE, BODINE, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 11.

19330427


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