On appeal from the Union County Court of Common Pleas.
For the appellant, Bernard Folkenflik (Julius Kwalick, of counsel).
For the appellee, John W. Taylor (Harry E. Walburg, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. 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 Employes' Personal Loan Co. v. Dillon, 123 N.J.L. 31; 7 A.2d 858.
We learn from the complaint that on September 26th, 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 employe of her deceased husband. Although she charged both with actionable negligence which resulted in the death of her husband on June 1st, 1939, and sought recovery from them, under our Death Act, 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 1st, 1939, he was, in the course of his employment, bending a pipe which a fellow employe was heating with an acetylene torch. Andrew Barcellona, pursuant to a widespread practice of certain of the employes 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 employes of throwing liquid at each other, and that defendant's failure to control these employes 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 1st, 1940, defendant company gave notice to counsel for plaintiff of a motion to strike the ...