58 F.Supp. 707 (D.N.J. 1945), 2273, Martucci v. Koppers Co.
|Citation:||58 F.Supp. 707|
|Party Name:||MARTUCCI v. KOPPERS CO.|
|Case Date:||January 17, 1945|
|Court:||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....
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