On appeal from the Supreme Court whose opinion is reported in 131 N.J.L. 238.
For the appellant, Philip Blacher (Herman D. Ringle, of counsel).
For the respondent, John A. Hartpence (James R. Laird, Jr., of counsel.)
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This cause was tried at the Middlesex Common Pleas resulting in a verdict in favor of the plaintiff-appellant.
The complaint originally consisted of five counts but all were eliminated except the first two and the cause was submitted as an action under the Federal Employer's Liability Act, seeking recovery of damages for the death of plaintiff-appellant's husband, who was employed as a laborer by the defendant-respondent and was a member of a track maintenance crew.
The first count charges that appellant's intestate, while engaged as a track maintenance laborer, was prostrated by the heat and by reason thereof became powerless to help and care for himself and because thereof it became the duty of the respondent to give him immediate attention and first aid and, if his emergent necessities so required, medical care and assistance, which it failed to do and by reason thereof appellant's intestate died.
The second count charges that the defendant-respondent undertook to care for its stricken employee and failed to discharge this duty with reasonable prudence and due care.
The defendant-respondent has and now does insist and urge that under the facts and circumstances of this case no legal duty rested upon it and that any action upon the part of its foreman or other members of decedent's gang or crew was beyond the scope of their employment and not binding upon it.
Respondent appealed from appellant's judgment in the Common Pleas to the Supreme Court and that Court reversed the judgment and the plaintiff below now appeals to this court.
It is conceded that in this and other jurisdictions, the law is, that in the absence of a contract or a statute, there rests no duty upon an employer to provide medical service or other means of cure to an ill, diseased or injured employee, even though it result from the negligence of the master, Koviacs v. ...