Smith v. Int'l High Speed Steel Co.

• Decision Date: 05 March 1923
• Citation: 120 A. 188
• Parties: SMITH v. INTERNATIONAL HIGH SPEED STEEL CO.
• Court: New Jersey Supreme Court

120 A. 188

SMITH

v. INTERNATIONAL HIGH SPEED STEEL CO.

Court of Errors and Appeals of New Jersey.

March 5, 1923.

Appeal from Supreme Court.

Action by Rose G. Smith, administratrix, for the death of Harvey D. Slockbower, against the International High Speed Steel Company. From a judgment denying a motion to strike the complaint, for not proceeding under the Workmen's Compensation Act, defendant appeals. Affirmed.

Walter L. Glenney, of Plainfield, and R. Robinson Chance, of Jersey City, for appellant.

Elmer King and Robert H. Schenck. 18th of Morristown, for respondent.

PER CURIAM. This action was brought to recover the pecuniary loss sustained by the widow and next of kin of one Harvey D. Slockbower, an employee of the defendant company. His work was the polishing and boring of steel tubing, and his death resulted from the breathing into his lungs of fine particles of metallic and mineral substances which were thrown into the air as a result of that work, thereby causing a congested and diseased condition, from which he finally died.

The appeal is rested solely upon the proposition that the Workmen's Compensation Daw of this state provides the exclusive remedy for a death resulting from the cause we have indicated. This proposition was submitted to Mr. Justice Bergen on a motion to strike out the complaint in the cause, and was decided adversely to the present appellant's contention, for reasons stated in the following formal opinion, which was rendered by the justice:

"The averment of the complaint in this case is that plaintiff's intestate was in the service of the defendant and employed to polish steel by using an emery wheel which caused fine particles of metallic and mineral substances to be thrown into the air where the employee was working, and by breathing carried into his lungs, causing them and his bronchial tubes to be filled with metallic substances producing a diseased and injured condition, from which he died. There was also an averment that the service continued from July 1, 1918, to June 5, 1920. There is no averment of the happening of any occurrence in the nature of an accident, but on the contrary that, through defendant's negligence in causing him to work in an atmosphere impregnated with metallic particles, he suffered an injury not the result of an accident. The defendant says the complaint is bad because under the Workmen's Compensation Act (P. L. 1911, p. 134) all injuries are to be recovered under it, unless service...