Russo v. Wright Aeronautical Corp..

• Citation: 64 A.2d 71
• Decision Date: 21 February 1949
• Docket Number: No. A-168.,A-168.
• Parties: RUSSO v. WRIGHT AERONAUTICAL CORPORATION et al.
• Court: New Jersey Supreme Court

64 A.2d 71

RUSSO

v.WRIGHT AERONAUTICAL CORPORATION et al.

No. A-168.

Supreme Court of New Jersey.

Feb. 21, 1949.

Appeal from former Supreme Court.

Proceedings under the Workmen's Compensation Act by Antimo Russo, claimant, opposed by Wright Aeronautical Corp., employer, and Liberty Mutual Insurance Co., insurer. A judgment of the Workmen's Compensation Bureau in favor of claimant, 51 A.2d 100, 25 N.J.Misc. 109 was reversed by the Court of Common Pleas and from a judgment of the former Supreme Court, 137 N.J.L. 346, 60 A.2d 263, which reversed the judgment of the Common Pleas Court, and affirmed the judgment of the Workmen's Compensation Bureau, the employer and insurer appeal.

Judgment of former Supreme Court affirmed.

John W. Taylor, of Newark, for appellants.

Nathan Rabinowitz and Isadore Rabinowitz, both of Paterson, for appellee.

ACKERSON, Justice.

This is a Workmen's Compensation case. The petition was filed in the Bureau on November 30, 1943, and the claim was, in substance, that the petitioner, on or about April 28, 1943, while in the course of his employment by the defendant, sustained an injury resulting in cancer of the right testicle causing permanent disability. During the course of the trial, on May 2, 1946, petitioner's attorney was permitted, over defendant's objection, to amend the petition so as to read that the accident complained of caused ‘an aggravation of an underlying (cancerous) condition’ rather than produced the cancer as originally claimed. The trial then proceeded upon that theory and the Workmen's Compensation Bureau found for the petitioner; the Common Pleas reversed the Bureau; the former Supreme Court reversed the Common Pleas and affirmed the judgment of the Bureau in favor of the petitioner. The present appeal is from the latter judgment.

It is first claimed as a reason for reversal that the aforesaid amendment set up a new cause of action after it had been tolled by the two years limitation period provided by R.S. 34:15-41 and 34:15-51, N.J.S.A.

‘ [1] [2] [3] It is indisputably the rule that an entirely new and different cause of action cannot be introduced after the statute has tolled the action.’ But it is equally well settled ‘that an amendment will not, as a rule, be held to state a new cause of action, if the facts alleged show substantially the same wrong with respect to the same transaction, or if it is the same matter more fully or differently laid, or if the gist of the action or the subject of controversy remains the same’. Rygiel v. Kanengieser, Err. & App.1934, 114 N.J.L. 311, 312, 176 A. 605, 606; Casavalo v. D'Auria, 169 A. 520, 12 N.J.Misc. 81, 83, affirmed Err. & App.1934, 113 N.J.L. 328, 174 A. 506; O'Shaughnessy v. Bayonne News Co., 154 A. 13, 9 N.J.Misc. 345 affirmed Err. & App.1932, 109 N.J.L. 271, 160 A. 696. “Gist' is ‘the essential ground or object of the action in point of law, without which there would be no cause of action; the cause for which an action will lie; the ground or foundation of a suit, without which it would not be maintainable; * * *.” Rygiel v. Kanengieser, supra.

Measured by these tests it is obvious that the criticized amendment does not state a new or different cause of action. It alleges substantially the same wrong with respect to the same transaction-the gist of the action remains the same. The same trauma is alleged, the only change is in the effect of it. In the first instance it is alleged to have resulted in a cancer, in the amendment it is alleged to have resulted in causing an aggravation of a previously existing cancer. The case of Gurzo v. American Smelting & Refining Co., Err. & App.1944, 132...