Hughes v. Eureka Flint and Spar Co., Inc.

• Court: New Jersey Circuit Court
• Writing for the Court: Oliphant, C. C. J.
• Citation: Hughes v. Eureka Flint and Spar Co., Inc., 20 N.J.Misc. 314, 26 A.2d 567 (N.J. Cir. Ct. 1939)
• Decision Date: 08 November 1939
• Parties: THOMAS W. HUGHES, PLAINTIFF, v. EUREKA FLINT AND SPAR CO., INC., A CORPORATION OF NEW JERSEY, DEFENDANT

26 A.2d 567

20 N.J.Misc. 314

HUGHES

v. EUREKA FLINT & SPAR CO., Inc.

Circuit Court of New Jersey. Mercer County.

Nov. 8, 1939.

Action by Thomas W. Hughes against Eureka Flint & Spar Company, Inc., to recover for pneumonoconiosis or silicosis contracted through the negligence of the defendant. On motion to strike out parts of separate defenses embodying the defense of the statute of limitations.

Motion granted.

Rudolph Eisner, of Trenton, for plaintiff.

Samuel D. Lenox, of Trenton, for defendant.

OLIPHANT, Judge.

Defendant is a manufacturer of flint, spar and feldspar products. Plaintiff was employed in the plant of the defendant in various capacities from November, 1920 to July 26, 1938. He alleges in his complaint that during all of this time, through the negligence of the defendant in numerous particulars, he contracted pneumonoconiosis or silicosis on July 26, 1938 from the continued inhalation of dust particles. Plaintiff's suit was instituted on November 17, 1938. Defendant, among other defenses, pleads the statute of limitations, in which it is set up that the plaintiff is barred from bringing any action against the defendant for any alleged wrongful act, negligence or default alleged to have occurred or taken place prior to November 17, 1936.

This motion is to strike out those parts of the separate defenses embodying that defense. This presents a difficult problem. To determine it requires the answer to the question, When does a cause of action accrue or arise in an occupational disease case?

The statute of limitations, R.S. 2:24-2, N.J.S.A. 2:24-2, literally relates only to the commencement of suit. It does not define accrual of a cause of action.

To find the answer, it must be determined whether the wrong complained of is single and continuous or plural and discrete.

A breach of duty must result in actual damage to be actionable. Damnum and injuria must both exist or else there is no cause of action. Ochs v. Public Service R. Co. 81 N.J.L. 661, 80 A. 495, 36 L.R.A., N.S., 240, Ann.Cas. 1912D, 255. In that case the doctrine is recognized that a consequential injury resulting from a negligent act is the gravamen of the charge and that the statute of limitations runs from the time of the injury. If this were not so, every person could be held responsible for every negligent act he commits, irrespective of whether or not any other person is damaged thereby.

The existence of a disease such as complained of here is dependent on many factors; the length of exposure, the nature and intensity of the dust in the air, the resistance or susceptibility of the individual and many others. In some cases it may be contracted after short exposure, in other cases under identical conditions there may be no consequences whatever. It cannot be that if two men begin working at the same time in a plant negligently operated and one contracts silicosis within two years thereafter, that he is privileged to bring his suit, but that the other who does not succumb to the dust within the two years from first inhalation is barred from bringing his action except for any aggravation of a condition occurring within the first two years of employment. Yet this is the...