Gurzo v. American Smelting & Ref. Co.

• Decision Date: 19 January 1945
• Docket Number: No. 17.,17.
• Citation: 41 A.2d 6,132 N.J.L. 485
• Parties: GURZO v. AMERICAN SMELTING & REFINING CO.
• Court: New Jersey Supreme Court

132 N.J.L. 485

41 A.2d 6

GURZO

v.AMERICAN SMELTING & REFINING CO.

No. 17.

Court of Errors and Appeals of New Jersey.

Jan. 19, 1945.

Appeal from Supreme Court.

Action by John Gurzo against the American Smelting & Refining Company for damages for pulmonary tuberculosis. Judgment for defendant, and plaintiff appeals.

Affirmed.

DONGES and PERSKIE, Justices, and DILL, Judge, dissenting.

David Roskein, of Newark (Harry Cohn, of Newark, of counsel), for plaintiff-appellant.

Seaman & Seaman, of Perth Amboy (Edwin Joseph O'Brien, of Newark, of counsel), for defendant-appellee.

WELLS, Judge.

This is an appeal from a judgment of nonsuit entered in the New Jersey Supreme Court (Middlesex Circuit) in favor of the defendant and against the plaintiff. The suit was begun by plaintiff in October, 1942, against defendant, his employer, to recover damages for the pulmonary tuberculosis which he allegedly contracted as the result of defendant's negligence. Plaintiff, a man about twenty-seven years of age, entered the employ of the defendant in October, 1938, as a laborer and furnace attendant. His claim was that he was then in good health and able to do hard and laborious work, and that he had not previously suffered from any chest disease or tuberculosis and successfully passed a physical examination by the defendant's physician just prior to his being hired. Plaintiff continued to work at defendant's plant at Barber, New Jersey, steadily for about nine months or until June or July, 1939, when he was seized with a severe pain in the left side which was diagnosed as pleurisy. This required him to remain home for about a month, or until August, 1939, when he returned to work. In the meantime he had lost about twenty pounds in weight, ten of which he regained during the next few months.

After working from five to seven months, he developed a persistent cough and in January, 1941, he noticed the sputum was streaked with blood and the company physician after consultation sent him to the Perth Amboy Hospital for observation for three days where X-ray and sputum tests were positive for tuberculosis, and then for the first time plaintiff was informed by the company physician that he had tuberculosis. He did not thereafter return to work for defendant. After prolonged treatment at the Roosevelt Hospital, the Middlesex County Tubercular Institution, his health gradually improved until he was released in July, 1942. He worked for awhile as a taxi driver and as a guard in the State Hospital but claims he still suffers from shortness of breath and is unable to do any type of heavy work.

The details of the work that plaintiff did are unimportant, but his testimony was that the work required him to be in an atmosphere heavily laden with antimony fumes or dust eight hours a day, five days a week.

Inasmuch as the nonsuit was granted because plaintiff had not proved the case set up in his complaint, it is important to observe precisely what the complaint alleged both as to defendant's negligence and its effect on plaintiff's health.

After stating that defendant was engaged in the business of manufacturing, preparing, refining and mixing of substances and ingredients used in the manufacture of tiles, pottery, paint, etc., and that plaintiff was employed by defendant as a laborer in the department where a product known as ‘antimony oxide’ was manufactured, prepared or refined, the complaint went on to say that in connection with the operation conducted at its factory defendant used certain sands, powders and other chemical substances which, when heated, gave off strong and noxious fumes, smokes and odors resulting in creating large quantities of fine dust, all of which permeated the air of the department where plaintiff was required to work and to which substances plaintiff was frequently and regularly exposed; that defendant knew or should have known that the operations which it maintained and conducted at its plant created certain hazards to the health and well-being of its employees, including plaintiff, who was not warned by defendant and had no knowledge of the dangerous and injurious nature of the noxious fumes and odors, etc.

Paragraph eight of the complaint alleges substantially that the defendant negligently failed to use proper means to eliminate the strong and noxious fumes, fine dusts, etc., from the air in and about its plant and to provide and maintain adequate ventilation, proper apparatus, appliances and devices to protect him; that defendant violated certain particularly designated Labor Laws of the State of New Jersey; and finally that defendant failed to provide a safe place in which plaintiff could perform his work while in the employ of the defendant.

Then follows paragraph 9, the pertinent part of which is important, and is as follows: ‘As a direct and proximate result of the aforesaid negligence and acts of the defendant, * * * the said noxious smokes, fumes and odors and fine dusts were introduced into the plaintiff's system and body at the time and place aforesaid, as a result of which the plaintiff's health became debilitated and his physical resistance against infection was so reduced that he was thereby rendered susceptible to and did contract an active pulmonary disease, and he thereby became sick and disordered and suffered permanent pulmonary injuries * * *.’

It is thus clear that the basis of the plaintiff's claim is that defendant's acts and omissions resulted in a lowered resistance of plaintiff by reason of which he contracted the disease of tuberculosis.

At the conclusion of plaintiff's case, defendant moved for a nonsuit on the ground, among others, that the sole pleading in the case alleges ‘that through the negligence of the defendant in this matter the plaintiff contracted the disease of tuberculosis.’ There is not the slightest pleading nor evidence in the pleading of any question of aggravation. The proof in this case is completely barren of any competent evidence to show that as a result of anything which the defendant did the plaintiff contracted tuberculosis.

Judge Oliphant granted the motion. In doing so he said: ‘Well I am convinced that this case cannot stand on the complaint in the case.’

He then read that portion of paragraph 9 of the complaint hereinbefore cited and said: ‘The testimony, as I remember it, is to the effect that this man had a focus of tubercular infection which was aggravated by the dust which lit up this infection which he already had. The complaint does not charge aggravation. It charges that this disease was contracted by reasons of this condition. Now, there is no proof, as I remember it, to the effect that it was contracted by these conditions.’

The judge then went on to say that under the decision of this court in the Migliaccio v. Public Service Ry. Company case, 101 N.J.L. 496, 130 A. 9, he was of the opinion that under the complaint as drawn there was no sufficient cause of action supported by the proofs to allow the case to go to the jury. The other points in the motion to nonsuit he did not deem it necessary to pass on.

Plaintiff presents four points for reversal.

The first point is that the asserted variance, if any, was immaterial, technical and did not surprise or prejudice the defendant.

At the outset of his argument on this point plaintiff asserts that there was no variance between the pleadings and the proofs. With this we are not in accord. We think there was clearly a variance and that it was made apparent from the testimony of plaintiff's own medical witnesses, Dr. Grossman and Dr. Ormsby. The former testified that as a physician he knew that the cause of plaintiff's tuberculosis was the tubercular bacillus which he got from some source, which he was unable to state. Dr. Ormsby, who was plaintiff's specialist, testified that plaintiff had apparently no active tuberculosis prior to July, 1939, and that it...