On motion to strike complaint.
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 L. 1945, c. 74, p. 380, 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 ...