Evans v. Rohrbach, A--191

• Decision Date: 28 April 1955
• Docket Number: No. A--191,A--191
• Citation: 113 A.2d 838,35 N.J.Super. 260
• Parties: Thomas D. EVANS, Plaintiff-Appellant, v. John F. D. ROHRBACH, John H. Matthews, et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 260

35 N.J.Super. 260

113 A.2d 838

Thomas D. EVANS, Plaintiff-Appellant, v. John F. D. ROHRBACH, John H. Matthews, et al., Defendants-Respondents.

No. A--191.

Superior Court of New Jersey.

Appellate Division.

Argued March 28, 1955.

Decided April 28, 1955.

Hyman W. Rosenthal, Newark, for plaintiff-appellant (Harry Chashin, and Marcus & Levy, Paterson, attorneys).

Stanley G. Bedford, Newark, for defendants-respondents (Mead, Gleeson, Hansen & Pantages, Newark, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

This is an appeal from a summary judgment on behalf of defendants rendered in the Law Division. Plaintiff, an employee of Raybestos-Manhattan, Inc., was injured on September 24, 1951 while rubber cementing the inside of a metal tank at the Passaic plant of the company. There was an explosion and fire inside the tak and the consequent infliction on plaintiff of the extensive injuries which are the basis of the present action for damages.

Plaintiff had previously petitioned for and been allowed an award in workmen's compensation against the company. In the present action he sued 21 directors, officers and employees of the company, alleging his injuries were due to their personal negligence, their maintenance of a nuisance, trap and concealed peril, their recklessness and their willful and wanton disregard for his life and safety as an employee of the common employer. Only six of the named defendants were served. Of these, Rohrbach was president and director; Matthews, vice-president, a director, and general manager of the Manhattan Rubber Division of the company which encompassed the Passaic plant; Kievit, comptroller, assistant treasurer and a director; Smith, vice-president in charge of sales and a director; and Hines and Hemphill, directors.

The company is a large industrial organization with plants variously situated in the United States and Canada. The Passaic plant covers 30 acres of land, occupies floor space of over a million square feet and has approximately 3,000 employees. One of its several departments is that of tank lining. It was here that plaintiff was working when injured. , his employment had begun two weeks before. On the occasion here involved he was working for the first time inside a tank. He was classified as a helper to one Harry. The foreman, Getts, told him to apply certain substances, of whose nature he was not informed, to the inside of the tank in the same manner as Harry had been doing. It appears that the lining materials were volatile and explosive.

Plaintiff had been given a gas mask but took it off because it 'wasn't working right' and he 'couldn't breathe through it.' The tank in which the accident occurred was a cylinder, about 5 feet high and 10 to 12 feet long, and was closed except for two openings on one end, each about two feet in diameter. A fan was attached to the tank but the evidence is inconclusive as to whether it was operating at the time. For illumination there was provided an extension cord with a light bulb in the socket. The bulb was lying on the floor of the tank and, as plaintiff bent down to pick it up and touched the handle, there was a 'bright flash' and the tank caught fire. Badly burned, plaintiff managed to extricate himself from the tank. According to the safety rules at the plant there was supposed to be a fire-watcher at every tank-hole in which work was being done, ready with water hose and blanket. No such precautions had been taken here. Moreover, company rules required employees in tanks to wear woolen sweatshirts and canvas booties 'to prevent sparking from shoes.' Plaintiff was given no such equipment. A fire extinguisher was seven to ten feet away from the tank. The rules forbade more than one dipper of cement in the tank at one time. Plaintiff was given and had a two quart can of the cement in the tank.

The statutory coverage of workmen's compensation does not in this State obviate a right of action on the part of an injured employee against a fellow employee 'whose negligence or wrong occasions his injury.' See Stacy v. Greenberg, 9 N.J. 390, 397, 88 A.2d 619, 622 (1952). And while 'a director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character,' yet 'a director or officer who commits the tort or who directs the tortious act to be done, or participates or cooperates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort.' Sensale v. Applikon Dyeing & Printing Corp., 12 N.J.Super. 171, 175, 79 A.2d 316, 317 (App.Div.1951). The problem confronting us here is whether the relationship of the defendants, or of any of them, to the specific industrial operation which gave rise to plaintiff's injuries was sufficiently direct or close so that it may be fairly said that they did participate or co-operate therein to an extent which should preclude their exculpation from liability to the plaintiff as a matter of law.

The operative facts are comprehensively disclosed by answers to interrogatories and depositions. Rohrbach, president of the company, as well as Hines and Hemphill, directors, had no duties or responsibilities specifically concerned with operation of the Passaic plant. Kievit, a financial officer of the company, and Smith, in charge of sales of its rubber products, had nothing to do with production at Passaic. There is no basis for any assumption that trial of the case might result in any qualification of the explicit negation, in what was before the trial judge, of the remotest connection between the named defendants and the operations resulting in plaintiff's injury. Plaintiff contends, as to all of the defendants, that the motion for summary judgment should have been denied because there were material fact issues as to whether (1) the activities and instrumentalities were so hazardous and dangerous as to impose on them the duty to employ proper safeguards for plaintiff's protection; (2) they were inattentive to their supervisory and executive duties; (3) they were actively in control of the activities and instrumentalities and actively participated in producing plaintiff's injuries; and (4) they negligently employed unskilled and incompetent personnel to supervise and assist plaintiff.

As to any of the defendants other than Matthews there was no showing whatever sufficient to create a fact issue in any respect thus assigned. Nor would sound concept of corporate business administration admit corporate directors, particularly of an enterprise of this magnitude, to participation in such immediate supervisory activity as concerned the safe conduct of the operation in which plaintiff was here injured. See Copeland and Towl, The Board of Directors and Business Management (1947), pp. 138, 139, 'a director cannot perform executive functions without becoming an executive.' The law will protect the director who, as in the case of those here involved, stays within his sphere. 3 Fletcher, Corporations (rev. ed. 1947), § 1135, p. 707. It had better, if competent and responsible people are to be expected to serve on the directorates of vital industries. Cf. case note, Position of Corporate Director as Sui Generis, 35 Minn.L.Rev. 564, 565 (1951). Mere knowledge on their part of hazards involved in some of the productive enterprises of the company does not make them personally responsible for ensuing accidents, where management controls are properly delegated. See 2 Thompson on Corporations (2d ed. 1909), § 280, p. 290.

A closer question is presented as to the defendant Matthews. In 1951 he was executive vice-president of the company. He had been with it 40 years and associated with the Manhattan Rubber Division as assistant factory manager from 1940 to 1944, assistant general manager from 1944 to 1946, general manager until 1950, and vice-president since. He is thoroughly familiar with the processes involved in rubber lining of metal tanks, including the associated hazards to employees. He was in direct charge of operations of the Passaic plant and of the methods of production. But his duties as vice-president extended to management of two other plants of the company in Wisconsin and Indiana. At the Passaic plant Matthews heads a hierachy of executive management which includes, in descending order of responsibility to the specific operation implicated in this case, a factory manager, assistant factory manager, production manager, plant safety engineer, tank lining manager, department production manager and foreman. Safety precautions were in charge of the safety engineer, Boyd, and the supervisory staff of the department. Manufacturing processes were specified by research laboratories.

We have carefully considered the contention that the facts here disclosed, or reasonably subject to anticipated development at the trial, do or might raise a question which plaintiff is entitled to have a jury pass upon in relation to Matthews' connection with the accident. But we think Matthews was reasonably entitled to assume, in the absence of notice to the contrary,...