Estelle v. Board of Ed. of Borough of Red Bank

• Decision Date: 08 May 1953
• Docket Number: No. A--679,A--679
• Citation: 26 N.J.Super. 9,97 A.2d 1
• Parties: ESTELLE v. BOARD OF EDUCATION OF BOROUGH OF RED BANK.
• Court: New Jersey Superior Court — Appellate Division

Page 9

26 N.J.Super. 9

97 A.2d 1

ESTELLE v. BOARD OF EDUCATION OF BOROUGH OF RED BANK.

No. A--679.

Superior Court of New Jersey Appellate Division.

Argued Dec. 22, 1952.

Decided May 8, 1953.

Robert V. Carton, Asbury Park (Durand, Ivins & Carton, Asbury Park, Attorneys), for appellant.

John A. Laird, Newark, for respondent.

Before Judges McGEEHAN, BIGELOW and JAYNE.

The opinion of the court was delivered by

BIGELOW, J.A.D.

This is an appeal from a judgment for $80,000 damages resulting from a disease of the lungs which the jury found arose out of the plaintiff's work as janitor of one of the schools of the defendant.

The plaintiff began his employment with the defendant in 1925 and became one of four janitors at the River Street School and performed the duties usual in such a position. Every fourth week he would come to the school early each day, about 4:45 a.m., in order to get up steam and have the school warm by 8 o'clock. In 1933 a motor stoker system was installed in the boiler room and thereafter soft coal was used in the furnaces. The system was semi-automatic, the coal being shovelled by hand into a hopper and from there carried to the fire box by a screw conveyor. Adjacent to the boiler room was the coal bin, 30 by 15 feet, and 12 feet high, with two doorways on the long side. The bin was filled each summer and again each winter. As the supply of coal ran low, it became necessary to go inside the bin to get coal. The trampling upon the fine coal on the floor, the shoveling of the coal, and the coal sliding in the bin, all made a dust that was especially bad during the period of activity in the early morning. And occasionally the coal in the bin had to be screened before it could be used in the stoker.

In 1948 plaintiff first noticed a shortness of breath; later he developed a wheeze, a pain in his chest and a cough; but these conditions bothered him little until January or February of 1950. And he did not seek medical attention until April 26, 1950, when he called on Dr. Parker of Red Bank. Since then he has not been able to work. There is no doubt that plaintiff is suffering from a serious lung condition. Although the medical witnesses disagreed as to the exact nature of his ailment and as to its cause, there was sufficient evidence to sustain the jury's finding that it was caused by the dust which plaintiff breathed into his lungs his work as janitor.

The plaintiff, in his argument that the defendant is answerable in damages, relies in great part on R.S. 34:6--48, N.J.S.A., reading,

'Every employer shall, without cost to his employees, provide reasonably effective devices, means and methods to prevent the contraction by them of any illness or disease incident to the work or process in which they are engaged.

'Employer as used in this article, unless the context otherwise requires, includes partnerships and corporations.'

The first question is whether this section of the revision applies to a governmental body such as the defendant board of education. It is taken from sections 1 and 12 of L.1914, c. 162, 'An Act to prevent lead poisoning and other occupational diseases and providing penalties for the violation of its provisions.' The rest of that statute is restated in R.S. 34:6--49 to 57, N.J.S.A. The principal purpose of the enactment was the protection of employees from lead poisoning to which they might be exposed during manufacturing processes. Penalties ranging from $50 to $300 are imposed on employers who violate or fail to comply with the mandates of the article, including section 48.

It has often been said that under common-law rules of interpretation, the Crown was not bound by a statute unless named in it. Maxwell, Interpretation of Statutes (1937), 120; Sutherland, Statutory Construction (1943), § 6301. 'Everything for the benefit of the King shall be taken largely, as everything against the King shall be taken strictly.' Coke's Case, Godbolt 289; 78 Eng.Rep. 169, 173 (Ct. of Wards, 1624). The rule, though not in its broadest form, has been recognized in New Jersey. 'It is a rule not founded on royal prerogative, but on principles of public policy,--that the state should not suffer from the negligence of its officers and servants.' Den ex dem. Van Kleek v. O'Hanlon, 21 N.J.L. 582, at page 588 (E. & A.1845). 'Where the government is not expressly, or by necessary implication, included, it ought to be clear, from the nature of the mischiefs to be reached, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put a construction on a statute which would affect its rights.' Trustees of Public Schools v. Trenton, 30 N.J.Eq. 667, 683 (E. & A.1879); and see there the annotation by the reporter. The rule protects not only the State itself but its agencies, as for example, in the case last cited, the trustees for the support of free schools, and the Chancellor in his official capacity.

The act of 1914 was intended primarily for the protection of employees in manufacturing enterprises. A violator of its provisions is subject to fine. It seems to us quite clear that the Legislature did not intend that the statute be applied to the State or to agencies like the defendant board of education when acting in a governmental capacity. The statute does not affect the defendant in the present case, or enlarge its liability. But the learned trial judge held to the contrary, accepting the plaintiff's contention that the statute was applicable, and he submitted the case to the jury on this theory. For this fundamental error, as we view the law, the judgment must be reversed.

The statutory provision that we have been discussing has been characterized as no more than a restatement of common-law requirements. Rosacci v. U.S. Pipe & Foundry Co., 123 N.J.L. 357, 8 A.2d 707 (E. & A.1939). But that was said in an action against a private employer and not a governmental body. In general, a master is obligated to exercise due and reasonable care to the end that his servant shall have a safe place wherein to work and proper tools and equipment. Clayton v. Ainsworth, 122 N.J.L. 160, 4 A.2d 274 (E. & A.1939). The defendant urges that the operation of this rule is restricted (1) by the principle that a governmental body in the exercise of a governmental function is not liable for mere negligence, but only for malfeasance or misfeasance, and (2) by the statute discussed below, R.S. 18:5--30, N.J.S.A. The plaintiff rejoins that neither the principle nor the statute is applicable to litigation between an employee of the governmental body and his master.

The common-law rule exempting a governmental body in certain circumstances from liability for negligence in the conduct of its political or governmental affairs has been discussed in a multitude of our cases, of which we may cite Allas v. Borough of Rumson, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648 (E. & A.1935); Milstrey v. City of Hackensack, 8 N.J.Super. 221 73 A.2d 747 (App.Div.1950), affirmed 6 N.J. 400, 79 A.2d 37 (1951), and Kress v. City of Newark, 8 N.J. 562, 86 A.2d 185 (1952). In most of the reported cases, the injured party was not an employee of the defendant, but Wild v. Mayor, etc., of City of Paterson, 47 N.J.L. 406, 1 A. 490 (Sup.Ct.1885), was an action by a member of the fire department who was injured through a lack of care to keep the apparatus in safe condition. While recognizing that the relation between a fireman and the municipality was not the ordinary relation of master and servant, the court said that the duty of maintaining a fire department 'is single and undivided, and although the city must perform this duty by means of agents or officers, it owes to them no special duty differing either in kind or degree from the duty which it owes to others in this respect. The duty is of a public character, and on grounds of public policy its neglect will not give a right of action to any individual in the absence of a statute. If there are any reasons for a modification of this rule with respect to employees of such corporations engaged in hazardous service, they cannot be considered by the courts. The rule can only be modified by the legislature. In the absence of legislation the plaintiff is within the rule and plainly without a right of action.' See also Johnson v. Board of Education, 102 N.J.L. 606, 133 A. 301 (E. & A.1926), the case of a janitor's wife who was acting as his substitute, and Kress v. City of Newark,supra, where the plaintiff was an employee in the municipal hospital. We are persuaded that the rule in question protects the school board in respect to claims asserted by an employee as fully as it protects against claims of third parties.

The statute, R.S. 18:5--30, N.J.S.A., exempts a school district from liability 'for injury to the person from the use of any public grounds, buildings or structures.' Thompson v. Board of Education, 20 N.J.Super. 419, 90 A.2d 63, 64 (App.Div.1952), affirmed 11 N.J. 207, 94 A.2d 206 (1953). It is not entirely clear what the Legislature meant by 'injury from the use' of a public building. In the case cited, the plaintiff, an invitee, slipped on a cement floor that had been too highly waxed and polished. In Falcone v. Board of Education, 4 A.2d 687, 17 N.J.Misc. 75 (Com.Pl.1939), a school girl was hurt by the falling of a slate partion in a washroom. In Kane v. Board, 23 A.2d 277, 20 N.J.Misc. 7 (Sup.Ct.1941), the plaintiff stumbled and fell down stairs that the board had negligently failed to light. In Doerr v. City of Newark, 128 N.J.L. 491, 27 A.2d 198 (Sup.Ct.1942), an invitee in the city hall was thrown, or fell, and was injured, and alleged that her downfall was due to the negligent manner in which the city hall was maintained. In each of these cases, the statute was held to afford immunity. In Terranella v. Union Bldg., etc., Co., 3 N.J. 443, 70 A.2d 753 (1950), a child was playing with other...