Staubach v. Cities Serv. Oil Co.
| Decision Date | 13 May 1941 |
| Docket Number | No. 14.,14. |
| Citation | 19 A.2d 882,126 N.J.L. 479 |
| Parties | STAUBACH v. CITIES SERVICE OIL CO. et al. |
| Court | New Jersey Supreme Court |
Appeal from Court of Common Pleas, Union County.
Suit by Anna Staubach. administratrix, against the Cities Service Oil Company and another, for the death of plaintiff's husband. From a judgment dismissing the complaint, plaintiff appeals.
Affirmed.
Argued January term, 1941. before BROGAN, C. and PARKER, and PERSKIE, JJ.
Bernard Folkenflik, of Elizabeth (Julius Kwalick, of Elizabeth, of counsel), for appellant.
John W. Taylor, of Newark (Harry E. Walburg, of Newark, of counsel), for appellee.
The question for decision is whether the trial judge erred, as claimed, in striking the complaint on the ground that it failed to state a cause of action.
We approach our consideration and determination of the stated question upon the premise that the facts alleged in the complaint and all proper inferences to be drawn therefrom are concededly true. Crawford v. Winterbottom, 88 N.J.L. 588, 96 A. 497; Railroad Employees' Personal Loan Co. v. Dillon, 123 N.J.L. 31, 7 A.2d 858.
We learn from the complaint that on September 26, 1940, plaintiff brought suit in the Union County Court of Common Pleas against the Cities Service Oil Co., a corporation of this state, and Andrew Barcellona, a fellow employee of her deceased husband. Although she charged both with actionable negligence which resulted in the death of her husband on June 1, 1939, and sought recovery from them, under our Death Act, N.J.S.A. 2:47-1 et seq., for herself and her three infant children, she discontinued her suit against Barcellona.
Plaintiff's deceased husband was employed by the defendant company as a pipe fitter's helper. On June 1, 1939, he was, in the course of his employment, bending a pipe which a fellow employee was heating with an acetylene torch. Andrew Barcellona, pursuant to a widespread practice of certain of the employees in the defendant company's plant of throwing liquids at each other in a spirit of fun, threw a pail of liquid on the deceased. This liquid he had obtained from a tank which bore no label nor marks as to its contents and which had been used, at times, to contain all water, at other times to contain a mixture of naphtha and water, and at still other times to contain all naphtha. When the contents of this pail came into contact with the blaze from the acetylene torch, it burst into flames and the plaintiff's decedent suffered burns from which he died.
The gravamen of the cause of action against the defendant company is that the company knew or should have known of the custom of its employees of throwing liquid at each other, and that defendant's failure to control these employees or its failure to label the tank, constituted actionable negligence for which plaintiff was entitled to recover.
We learn further from the record that on October 1, 1940, defendant company gave notice to counsel for plaintiff of a motion to strike the complaint on the ground that it failed to state or disclose a cause of action against defendant company. The trial judge granted the motion on the grounds that the complaint did not exclude the applicability of the workmen's compensation act; that the complaint did not set forth a cause of action extra the act since there was no liability at common law either to prevent assaults or skylarking among employees, or to see to it that such assaults or skylarking were conducted harmlessly or with reasonable care; and that the allegations set forth in the complaint were res adjudicata as between the parties because of a judgment entered in the workmen's compensation bureau on May 24, 1940, dismissing the claim petition of plaintiff against defendant company on the ground that the death of plaintiff's intestate was not the result of an accident arising out of and in the course of his employment.
We learn further from the record that the claim petition, defendant's answer thereto, and the determination of the bureau, marked Exhibits A-1, 2 and 3, were apparently used on the motion to strike the complaint and made part of the record submitted without objection.
Accordingly, the trial judge entered an order dismissing the complaint. The propriety of the judgment entered...
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