Martucci v. Koppers Co., 2273.

Citation58 F. Supp. 707
Decision Date17 January 1945
Docket NumberNo. 2273.,2273.
PartiesMARTUCCI v. KOPPERS CO.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

Alexander Simpson, of Jersey City, N. J., for plaintiff.

Lindabury, Depue & Faulks, of Newark, N. J., (Burtis S. Horner, of Newark, N. J., of counsel), for defendant.

MEANEY, District Judge.

This matter is before the Court on defendant's motion to dismiss plaintiff's action and for entry of a nonsuit. By agreement of counsel no formal motion papers have been filed.

The complaint sets forth that on or about February 14, 1939, the plaintiff was in the employ of the defendant, a corporation of the State of Delaware, plaintiff being employed in Jersey City, New Jersey. That plaintiff on the above date was treated by a servant of the defendant for a wound received by the plaintiff in his hand at the place of his employment. That as a result of the unskillful treatment the hand became infected and by reason of the infection the hand and a portion of the arm were amputated. The damages sought are for the loss of such hand and arm, for medical expenses and for pain and suffering. The plaintiff's complaint herein was instituted on May 19, 1942, some three years and three months after the alleged injury occurred.

The answer of the defendant denies the material allegations of the complaint and affirmatively sets up the statute of limitations as a bar to the cause of action. Defendant further sets up the defenses that plaintiff's sole and exclusive remedy is under the Workmen's Compensation Act and that a prior determination in this matter in the Compensation Court is res adjudicata and is therefore a bar to this action.

No determination of the last two defenses need be made, since it is my conclusion that the action is effectively barred by the Statute of Limitations.

The facts in brief are that plaintiff was employed by the defendant as a laborer on and prior to February 14, 1939. At that time defendant also had in its employ a duly qualified first aid superintendent who relied solely upon his own skill and ability. On the above date plaintiff reported to the first aid superintendent that he had in some manner injured his hand or wrist. The hand and wrist were treated and bandaged. Plaintiff was then referred to an independent physician. Subsequently infection set in and as a result the hand and arm were amputated. In May, 1940, following the loss of his hand, plaintiff filed a petition for compensation in the Compensation Bureau of the State of New Jersey. At the hearing plaintiff claimed his injury arose during the course of his employment and that from treatment therefor infection set in, resulting in the ultimate loss of the hand and portion of the arm. The determination and findings by the Bureau were that plaintiff's injury was not the result of an accident arising out of and in the course of employment, and judgment to that effect was entered on September 19, 1941.

The present suit was instituted on May 19, 1942.

The applicable statute of limitations is R.S. 2:24-2, N.J.S.A. 2:24-2, and provides:

"2:24-2. Two years; actions for injuries to person by wrongful act.

"All actions for injuries to the person caused by the wrongful act, neglect or default of any person or persons, firm or firms, individual or individuals, corporation or corporations within this state shall be commenced within two years next after the cause of any such action shall have accrued, and not thereafter."

The plaintiff's cause of action, if any, accrued at the time of the alleged negligent treatment and the statute begins to run from that time and not from such time as plaintiff became aware that he was wrongfully treated, or was suffering from the results of wrongful treatment or neglect. Weinstein v. Blanchard, 109 N.J. L. 332, 162 A. 601.

In Gogoliu v. Williams, 91 N.J.L. 266, 102 A. 667, 668, the court in commenting on accrual of a cause of action...

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6 cases
  • Fernandi v. Strully
    • United States
    • New Jersey Supreme Court
    • June 30, 1961
    ...N.J.L. 304, 199 A. 1, 118 A.L.R. 211 (E. & A.1938); Gogolin v. Williams, 91 N.J.L. 266, 102 A. 667 (E. & A. 1917); Martucci v. Koppers Co., 58 F.Supp. 707 (D.C.N.J.1945). In reaching this result the courts have evidently considered that the obvious injustice to the plaintiff is outweighed b......
  • Oroz v. American President Lines
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 30, 1958
    ...Steel Co., 1955, 20 N.J. 37, 118 A.2d 544; Weinstein v. Blanchard, Err. & App. 1932, 109 N.J.L. 332, 162 A. 601. See Martucci v. Koppers Co., D.C.N.J.1945, 58 F.Supp. 707.4 The question whether laches should bar the suit is addressed to the sound discretion of the trial court. Czaplicki v. ......
  • Mastellone v. Argo Oil Corp., 359
    • United States
    • Delaware Superior Court
    • September 27, 1950
    ...639; Biays v. Roberts, 68 Md. 510, 13 A. 366; Casper v. Kalt-Zimmers Mfg. Co., 159 Wis. 517, 149 N.W. 754; Martucci v. Koppers Co., D.C., 58 F.Supp. 707; Kelly v. Shropshire, 199 Ala. 602, 75 So. 291; Townsend v. Eichelberger, 51 Ohio St. 213, 38 N.E. 207; Weinstein v. Blanchard, 109 N.J.L.......
  • And v. Sunrise Senior Living, Inc.
    • United States
    • U.S. District Court — District of New Jersey
    • October 24, 2013
    ...duty arises out of a contractual relationship, is immaterial so far as the limitation of the action is concerned.Martucci v. Koppers Co., 58 F. Supp. 707, 708 (D.N.J. 1945) (quoting Weinstein v. Blanchard, 109 N.J.L. 332 (E& A1932)). In Martucci, the plaintiff suffered complication arising ......
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