Somerset Crushed Stone, Inc. v. Explosives Sales Co. of N. J.

• Decision Date: 06 November 1953
• Docket Number: No. A--507,A--507
• Citation: 100 A.2d 325,28 N.J.Super. 210
• Parties: SOMERSET CRUSHED STONE, Inc. v. EXPLOSIVES SALES CO. OF N.J., Inc. et al. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 210

28 N.J.Super. 210

100 A.2d 325

SOMERSET CRUSHED STONE, Inc. v. EXPLOSIVES SALES CO. OF N.J., Inc. et al.

No. A--507.

Superior Court of New Jersey Appellate Division.

Argued Oct. 13, 1953.

Decided Nov. 6, 1953.

Daniel G. Kasen, Newark, for plaintiff-appellant (Kasen, Schnitzer & Kasen, Newark, attorneys; Theodore W. Geiser, Newark, on the brief).

Mark A. Sullivan, Jersey City, for defendant-respondent Explosives Sales Co. of N.J., Inc.

Thomas L. Morrissey, Jersey City, for defendant-respondent E. I. duPont deNemours & Co. (Carpenter, Gilmour & Dwyer, Jersey City, attorneys; Milton A. Dauber, Jersey City, on the brief).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

In May 1950 plaintiff, operator of a stone quarry in Bernardsville, New Jersey, agreed to purchase its blasting agents from the defendant Explosives Sales Company of New Jersey, local agent for defendant E. I. duPont deNemours and Company, manufacturer of the blasting agents, and under the terms of the agreement the defendant would supervise the preparation for and the actual blasting operations at plaintiff's quarry.

The parties operated under this agreement until June 7, 1950, when a 'runaway blast' occurred, allegedly due to defendants' negligent conduct. Thereafter, by direction of a Deputy Director of the New Jersey Department of Labor and Industry, plaintiff's quarrying operations were first suspended and then severely restricted.

Plaintiff instituted an action against defendants to recover damages allegedly caused by the negligence of defendants, which proximately resulted in the interruptions of plaintiff's quarrying operations. Defendants' answer denied the alleged negligence, and they obtained answers from plaintiff to interrogatories submitted to it and the deposition of Deputy Director of the Department of Labor and Industry, George C. Krueger.

On motion of the defendants the trial court determined from the complaint, pretrial order, plaintiff's admissions in interrogatories and the deposition of Deputy Director Krueger, that as a matter of law plaintiff's claimed damages were not proximately caused by the alleged negligence of the defendants, 'but that such damages, if any, were instead caused solely by the independent, intervening and superseding conduct of the Deputy Director, State of New Jersey, Department of Labor and Industry.' Whereupon, the trial court denied the plaintiff's motion to amend the complaint and entered summary judgment in favor of the defendants and against the plaintiff, from which judgment plaintiff appeals.

The plaintiff asserts that the pivotal point in this case is the 'proximate cause' of plaintiff's injury and damage; that that issue is a factual matter in controversy; that the conduct of the Deputy Director is not such an independent intervening act as would operate to relieve defendants of liability to the plaintiff, and that the trial court, therefore, erred in entering a summary judgment.

The Explosives Company argues that the damages complained of are consequential, stemming from the suspension and restriction of its operation by the Deputy Director; that there is no indication of the basis of his authority so to do and that the resulting damages are unconnected with any negligence on its part.

The duPont Company contends that its alleged negligence was not the proximate cause of plaintiff's claimed damages, but that they flowed from a wholly independent cause, to wit, the intervening action of the Department of Labor and Industry, for which it is not responsible; that the suspension and the restrictive order issued by the Deputy Director, Department of Labor and Industry, were not preceded by factual findings, were illegally issued and invalid; that, if the action of the Deputy Director be considered lawful, plaintiff's damages are not legally compensable since they would flow from its inability to operate profitably in compliance with the law; that the pleadings, deposition and answers to interrogatories show palpably that there is no genuine issue of fact and that the trial court properly granted defendants' motion for summary judgment.

'* * * The judgment or order sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. * * *' R.R. 4:58--3.

The dispositive question projected by this appeal is whether the pleadings, interrogatories and deposition exhibited by the record raise a genuine issue of a material fact. Templeton v. Scudder, 16 N.J.Super. 576, 85 A.2d 292 (App.Div. 1951); Stacy v. Greenberg, 9 N.J. 390, 393, 401, 88 A.2d 619 (1952).

A review of the pleadings reveals that the plaintiff alleges its damages were caused by defendants' negligent conduct causing a misblast on June 7, 1950. The interrogatories present statements of alleged negligent conduct by defendants to plaintiff's damage, and Director Krueger's deposition indicates that the 'misblast' played an important part in producing the suspension and restrictive orders. Mr. Krueger testified in part, as follows:

'Q. Do I understand then that your transfer of the entire operations from the east face of the old quarry to the south face in the western section of the quarry was prompted primarily by consideration as to the proximity of the east face to dwelling houses and the hazards to private property in that area, in the east face area? A. I think my answer would have to be this: As I recall it that while those were the factors that supported that decision underlying the entire situation, it's still this primary mis-blast.

'Q. Of June 7th? A. Of June 7th.

'Q. And do I understand from that that it is and was the feeling of your department that these steps taken following the June 7th incident that developed a system of rules and regulations by which Somerset might resume operations were not tied into a particular occurrence or mis-blast except as they fix the time at which you did these things? A. The mis-blast started the thinking on it.

'Q. And in what respect had the law been violated when you directed the quarry be closed after the incident of June 7, 1950? A. The person who shot off the blast didn't have a permit.

'Q. Who was the person who shot off the blast? A. Hall.'

It was developed that Hall was a duPont employee and his company had been notified of Hall's lack of license both before and after the incident of June 7, 1950. Continuing Mr. Krueger's testimony, we quote the following pertinent excerpts:

'Q. And you closed the quarry because of the misblast of June 7, 1950, in order to determine what regulations, if any, would be necessary in order to bring about a safe and sound operation, isn't that so? A. Yes.

'Q. And am I correct in saying that as a result of the information you acquired from every source you are satisfied that the blast of June 7, 1950 was due not to the condition of the quarry, but rather to the nature or conduct of the blast of that day?

'A. As I recollect It, I was guided primarily by the fact there was an incident, a misblast that required study and whatever resulting corrective measures would emanate from such a study, and I think I am correct in saying that the nature or the condition of the quarry, and the conduct of the blast at that time didn't enter into my thinking.'

Our Rule 3:56--3 (R.R. 4:58--3) is taken from the Federal Rule 56(c), 28 U.S.C.A., and it has been held that summary judgment.

'Should be granted only where 'no genuine issue remains for trial.' Chappell v. Goltsman, 186 F.2d 215, 218 (C.C.A.5 1950). The matter cannot be decided on the affidavits of the parties where the facts are in dispute or where conflicting factual inferences may be drawn from them. Arnstein v. Porter, 154 F.2d 464 (C.C.A.2 1946).'

Mayflower Industries v. Thor Corp., 15 N.J.Super. 139, 155, 83 A.2d 246, 254 (Ch.Div.1951), affirmed 9 N.J. 605, 89 A.2d 242 (1952). In Templeton v. Glen Rock, 11 N.J.Super. 1, 3, 77 A.2d 487, 488 (App.Div.1950), it was further stated that:

'The requirement in our rule that the absence of any disputed material facts must appear 'palpably' conforms with earlier state and actual federal practice. See Louis Kamm, Inc., v. Flink, 113 N.J.L. 582, 596, 175 A. 62, 99 A.L.R. 1 (E. & A. 1934); 2 Waltzinger, New Jersey Practice, p. 893 (1949); 48 Col.L.Rev. 780 (1948). In considering a motion for summary judgment the court is 'quite critical of the papers presented by the moving party, but not of the opposing papers' (Hoffman v. Partridge, 84 U.S.App.D.C. 224, 172 F.2d 275, 276 (D.C.Cir.1949)) and will grant it only upon clear showing. Mitchell v. Wrightstown Community Apartments, Inc., 4 N.J.Super. 321, 326, 67 A.2d 203 (App.Div. 1949).'

and the facts must not only be undisputed, but the inferences to be drawn from these facts must be such that fair-minded men ought not to differ about them. Smith v. Public Service Corporation, 78 N.J.L. 478, 75 A. 937 (E. & A.1910); Podolsky v. Sautter, 102 N.J.L. 598, 133 A. 199 (E. & A.1926); Parave v. Public Service Interstate, etc., Co., 109 N.J.L. 155, 160 A. 375 (E. & A.1932); Truck v. Kaywal Realty Co., 3 N.J.Super. 165, 168, 65 A.2d 757 (App.Div.1949); Tissot v. Flashner Realty Co., 1 N.J. 529, 64 A.2d 435 (1949).

It must be conceded that 'proximate cause' is the important...