Burns v. Bethlehem Steel Co.

• Decision Date: 21 November 1955
• Docket Number: No. A--36,A--36
• Citation: 20 N.J. 37,118 A.2d 544
• Parties: George BURNS, Plaintiff-Appellant, v. BETHLEHEM STEEL CO., a corporation, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 37

20 N.J. 37

118 A.2d 544

George BURNS, Plaintiff-Appellant, v. BETHLEHEM STEEL CO., a corporation, Defendant-Respondent.

No. A--36.

Supreme Court of New Jersey.

Argued Oct. 24, 1955.

Decided Nov. 21, 1955.

Francis Sorin, Jersey City, argued the cause for appellant (Noah Lichtenberg, West New York, attorney).

Edward J. O'Mara, Jersey City, argued the cause for respondent (O'Mara, Schumann, Davis & Lynch, Jersey City, attorneys).

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal from a summary judgment entered in the Superior Court, Law Division, Hudson County, in favor of the defendant-respondent. The appeal was certified here on our own motion.

The plaintiff-appellant in this action seeks to recover for injuries incurred while he was employed by the respondent. In addition to the present suit the appellant filed on March 18, 1954 a claim for compensation with the Department of Labor and Industries, Division of Workmen's Compensation, in this State. On March 17, 1954 he advised the United States Department of Labor, Bureau of Employees' Compensation, of the filing of his claim with our Compensation Bureau. The purpose of that notice was to protect any right he might have under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., in the event our Bureau found it was without jurisdiction to entertain his claim. Neither of these compensation claims have been litigated up to date.

The original complaint in this case was filed on November 5, 1954 but an amended complaint was subsequently filed on November 19, 1954. The complaint alleges, that 'On or about November, 1949, and for some time prior thereto' plaintiff was a member of the Industrial Union of Marine and Shipbuilding Workers of America and while employed as a rigger in defendant's shipyard in Hoboken he received the injuries complained of among which was an impairment of his hearing due to noises and vibrations to which he was subjected while at work. The complaint further alleges non-compliance with R.S. 34:5--3, N.J.S.A., and R.S. 34:6--48, N.J.S.A., which provides for certain protection to be given a working man.

The appellant's action was brought by him on the theory that he was a third party beneficiary under a contract entered into between his union and the respondent and seeks to recover for the personal injuries he sustained, which resulted from the defendant's alleged breach of the terms and conditions of this contract. The contract required the respondent to provide safeguards and safety devices for the benefit of respondent's employees. That contract expired by its own terms on June 23, 1950.

Defendant's answer set up, among others, the defense of lack of jurisdiction in the Superior Court, Law Division, and a further defense that the action was barred by the statute of limitations. The trial court granted the order for summary judgment on the ground that the action was barred by the two-year statute of limitations, N.J.S. 2A:14--2, N.J.S.A.

While other points are argued we consider that the dispositive question is: Whether or not the plaintiff's cause of action is barred by the two-year statute of limitations, R.S. 2:24--2, now N.J.S. 2A:14--2, N.J.S.A.?

Appellant concedes that the action is one for personal injuries but argues that since his cause of action is predicated upon a breach of the terms of the contract, the applicable statute is N.J.S. 2A:14--1, N.J.S.A., which fixes the period of limitation as six years. Where the damages sought are for injuries to the person, the applicable statute is R.S. 2:24--2 (N.J.S. 2A:14--2, N.J.S.A.), which fixes the period of two years, irrespective of the form of the action.

The predecessor statute to this statute, 3 Comp.Stat.1910, p. 3164, § 3, which was nearly identical in all pertinent respects, was construed in Weinstein v. Blanchard, 109 N.J.L. 332, 162 A. 601, 604 (E. & A.1932), wherein plaintiff brought a malpractice action against a physician for personal injuries. It was held that regardless of the form of action, whether it be in tort or contract, if recovery is sought for injuries to the person the applicable section of the statute is that one limiting the time for bringing the action to two years. The court said, speaking of this section:

'It deals with injuries to persons resulting from the wrongful act, neglect, or default of another. Whether framed in tort or in contract, what gives rise to the action? Unskillful treatment. And so, whether the duty arises through law, the common law, or whether the duty arises out of a contractual relationship, is immaterial so far as the limitation of the action is concerned'.

The Weinstein case was followed in Martucci v. Koppers Co., 58 F.Supp. 707 (D.C.D.N.J.1945), and its holding is in conformity with the great weight of authority which refuses to permit the results of litigation to turn on distinctions between various forms of action. See e.g., Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (Sup.Ct.1951). See also Vandevoir v. Southeastern Greyhound Lines, 152 F.2d 150 (7th Cir.1945), certiorari denied 327 U.S. 789, 66 S.Ct. 811, 90 L.Ed. 1016; Jones v. Boggs & Buhl, Inc., 355 Pa. 242, 49 A.2d 379 (Sup.Ct.1946); Annotations 1 A.L.R. 1313 (1919); 157 A.L.R. 763 (1945). See 63 Harvard L.Rev. 1192.

At the time of the decision in the Weinstein case the third section of the statute of limitations to which the court referred read as follows:

"3. Every action upon the case for words shall be commenced and sued within two years next after the words spoken and not after * * * (a)nd that all action hereafter accruing for Injuries to persons caused by the wrongful act, neglect or default of any person or persons (firm or firms, individual or individuals, corporation or...