Wojcik v. Aluminum Co. of America

• Decision Date: 17 March 1959
• Citation: 183 N.Y.S.2d 351,18 Misc.2d 740
• Parties: Joseph WOJCIK, individually and as Guardian ad Litem of Linda Wojcik, Deborah Wojcik and Joseph Wojcik, Infants, and Caroline Wojcik, Plaintiffs, v. ALUMINUM COMPANY OF AMERICA, Defendant.
• Court: New York Supreme Court

Page 351

183 N.Y.S.2d 351

18 Misc.2d 740

Joseph WOJCIK, individually and as Guardian ad Litem of Linda Wojcik, Deborah Wojcik and Joseph Wojcik Infants, and Caroline Wojcik, Plaintiffs, v. ALUMINUM COMPANY OF AMERICA, Defendant.

Supreme Court, Special Term, Erie County.

March 17, 1959.

Sigmund Schwartz, Buffalo, for plaintiffs.

Lawless, Offermann & Fallon, Buffalo (William B. Lawless, Buffalo, of counsel), for defendant.

REGIS O'BRIEN, Justice.

This is a motion for an order to dismiss the first cause of action of the plaintiff, Joseph Wojcik, individually, as alleged in paragraphs First through Thirteenth of the complaint. It is made under Rule 107 of the Rules of Civil Practice, upon the ground that the Court has no jurisdiction of the subject matter of the action. Defendant claims that the plaintiff's exclusive remedy is under the Workmen's Compensation Law.

There is also a motion before the Court for an order to dismiss the cause of action of the plaintiff, Caroline Wojcik, the wife of plaintiff, Joseph Wojcik, as alleged in paragraphs Fourteenth through Eighteenth of the complaint. The latter motion is made under Rule 106 of the Rules of Civil Practice, upon the ground that her alleged cause of action does not state facts sufficient to constitute a cause of action.

A previous motion for an order to dismiss the complaint herein under Rule 106 of the Rules of Civil Practice was denied by Mr. Justice Kramer. It does not appear that any appeal was taken from this order dated January 20, 1959.

The present motion under Rule 107, which is directed against the cause of action alleged by the plaintiff, Joseph Wojcik, as aforesaid, presents two questions. The first is whether his exclusive remedy is under the Workmen's Compensation Law, and secondly, if not, has he alleged a common law action in tort against the defendant?

The plaintiff, Joseph Wojcik's first cause of action alleges that he was employed by the defendant; that at various times between November 18, 1942 and March 29, 1956, 'the defendant, by its officers, servants, agents and employees did request and order X-rays taken of the chest of this plaintiff'; that plaintiff, pursuant to the order and request of defendant, submitted to and had various X-rays taken of his chest and body; that the X-rays and physical examinations were undertaken gratuitously by the defendant, both for the benefit of the defendant and for the welfare of the plaintiff; that it was the practice of the defendant to advise its employees of any irregularities, illnesses or abnormalities which the examinations or X-rays disclosed; that the plaintiff relied upon the defendant advising him of any disease or illness he might have or that might be imminent; that 'in reliance upon the defendant's examination and X-rays, plaintiff did forego examinations and X-rays and treatment by others'; that the defendant negligently and wilfully failed to advise the plaintiff of the results of the X-ray examinations which had disclosed irregularities and conditions of which the plaintiff should have been advised; that the defendant discovered and had knowledge on July 6, 1955, that the plaintiff had developed, or was developing, tuberculosis and negligently, carelessly and recklessly failed to inform him of the condition; that the defendant, its agents, servants and employees were negligent, careless and reckless in not promptly advising plaintiff, especially after the X-rays were taken on July 6, 1955, that he had or was developing tuberculosis, and in not taking additional X-rays or advising him to have additional X-rays taken; and in not advising him to take a sick leave, and in allowing him to continue to work; and in allowing him to continue living with his family at a time when he had a contagious disease; and in allowing him to rely upon defendant's policy of advising its employees, including the plaintiff, of any illnesses or physical defects discovered.

The affidavit submitted as part of the moving papers admits the numerous physical examinations of the plaintiff but alleges that they were performed by physicians who were independent contractors. This statement that the physicians were independent contractors is a conclusion and cannot prevail on this motion over the direct allegations of the complaint that the X-rays were taken and the physical examinations made by officers, agents and employees of the defendant.

It is pertinent the the plaintiff does not allege that he sustained any physical injury or disability arising out of or in the course of his employment, or that he contracted any occupational disease in such employment. There is no allegation in plaintiff's cause of action that he contracted the disease while employed by the defendant or that the disease was aggravated by such employment. Likewise, there is no such claim made in the affidavit submitted by the defendant.

An employee's exclusive remedy under § 11 and § 29, subd. 6 of the Workmen's Compensation Law which relates to injuries or death caused by a fellow employee, applies only to disabilities, deaths or diseases within the purview of the statute. The statute does not foreclose an employee from amintaining an action at common law to recover damages for the employer's tortious acts committed during the course of the employment when such acts are outside the contemplation and coverage of the Workmen's Compensation Law. This principle of law is established by numerous decisions.

In Barrencotto v. Cocker Saw Co., 266 N.Y. 139, 194 N.E. 61, the Court held that the exclusive remedy provisions of the Workmen's Compensation Law did not preclude an employee from maintaining an action against his employer when he had developed, in the course of his employment, a dust disease before dust diseases were included in the occupational diseases covered by the Workmen's Compensation Law. The Court said, 266 N.Y. at page 146, 194 N.E. at page 64: 'There still is a field in which the statute fails to impose liability, on the part of an employer, to provide compensation for injury or death, regardless of fault; and in which an injured person may seek damages by action at law, where there has been fault.' In Legault v. Brown, 283 App.Div. 303, 127 N.Y.S.2d 601 (4th Dept. 1954), the court held that the plaintiff could not maintain an action for damages against his employer for wilfully and unlawfully placing him in a perilous position resulting in personal injuries to him after he had accepted and retained benefits under the Workmen's Compensation Law. The Court, however, stated, 283 App.Div. at page 305, 127 N.Y.S.2d at page 603:

'As to the appellant's first point, we are not prepared to hold, in the absence of controlling authority, that an employee may not maintain a common-law action against an insured employer, for an intentional, willful, wanton and malicious assault by his employer, even where it occurred during the course of and within the scope of the employment. There is authority that such an assault is not an 'accidental injury' within the meaning of section 2 of subd. 7 of the Workmen's Compensation Law and that, therefore, the liability of the employer as provide for in the statute, is not the exclusive liability.' (Numerous cases cited.)

In Lavin v. Goldberg Bldg. Material Corp., 274 App.Div. 690, 87 N.Y.S.2d 90, the Court held that plaintiff was entitled to recover from the employer of her intestate damages for personal injuries sustained by him when assaulted by a co-employee even though the employer carried Workmen's Compensation insurance. The Court, in construing the complaint, said that it charged that a wilful and intentional assault was perpetrated upon plaintiff's intestate by the individual defendant as the agent of and at the instigation of the corporate defendant. The Lavin case was followed in Quinn v. S. A. Healy Company, Sup.Ct. Bronx County 1955, 140 N.Y.S.2d 925.

The following cases are clearly pertinent to the above discussed principle of law: Volk v. City of New York, 284 N.Y. 279, 283, 30 N.E.2d 596, 597; Berenberg v. Park Memorial Chapel, 286 App.Div. 167, 169, 142 N.Y.S.2d 345, 347; Wolfson v. Gershunoff, 277 App.Div. 1149, 101 N.Y.S.2d 411; Fener v. Chapman, 274 App.Div. 776, 81 N.Y.S.2d 142; Robinson v. State of New York, 263 App.Div. 240, 32 N.Y.S.2d 388; DeCoigne v. Ludlum Steel Co., 251 App.Div. 662, 297 N.Y.S. 636; Riste v. General Elec. Co., 47 Wash.2d 680, 289 P.2d 338; Dudley v. Victor Lynn Lines, Inc., 48 N.J.Super. 457, 138 A.2d 53.

The second question is whether the above alleged cause of action states a cause of action. This question is not necessarily answered by the decision of Justice Kramer who held upon the motion made under Rule 106 of the Rules of Civil Practice that the complaint alleging nine different causes of action 'state facts sufficient to constitute a cause of action.'

This cause of action, as hereinabove stated, in brief, alleges plaintiff's employment by the defendant, the gratuitous physical examinations and X-rays made by the defendant, the general practice of the defendant of informing its employees of any disease, symptoms or irregularities discovered upon such examinations, the plaintiff's reliance upon that practice, the defendant's discovery of plaintiff's tubercular condition, the defendant's negligent, careless, reckless and wilful failure to inform the plaintiff of his tubercular condition, the plaintiff's reliance upon the examinations and X-rays made by the defendant and plaintiff's inducements to refrain by reason thereof from having other examinations and X-rays taken and the consequent development of the disease of tuberculosis and plaintiff's continuance at work and his continuance to live with his family while afflicted with the contagious disease. These allegations, in the Court's opinion, state a cause of action at common law, within the principles of law enunciated in the authorities hereinafter cited and discussed.

In the ...