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Houlihan v. Raymond

Decided: February 14, 1958.

MARGARET J. HOULIHAN, AN INFANT, BY HER GUARDIAN AD LITEM, MILDRED HOULIHAN, AND MILDRED HOULIHAN, INDIVIDUALLY, PLAINTIFFS,
v.
MILDRED C. RAYMOND AND MARY C. CRANE, JR., DEFENDANTS



Giordano, J.c.c. (temporarily assigned).

Giordano

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 ...


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