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MARTUCCI v. KOPPERS CO.

January 17, 1945

MARTUCCI
v.
KOPPERS CO.



The opinion of the court was delivered by: MEANEY

This matter is before the Court on defendant's motion to dismiss plaintiff's action and for entry of a nonsuit. By agreement of counsel no formal motion papers have been filed.

The complaint sets forth that on or about February 14, 1939, the plaintiff was in the employ of the defendant, a corporation of the State of Delaware, plaintiff being employed in Jersey City, New Jersey. That plaintiff on the above date was treated by a servant of the defendant for a wound received by the plaintiff in his hand at the place of his employment. That as a result of the unskillful treatment the hand became infected and by reason of the infection the hand and a portion of the arm were amputated. The damages sought are for the loss of such hand and arm, for medical expenses and for pain and suffering. The plaintiff's complaint herein was instituted on May 19, 1942, some three years and three months after the alleged injury occurred.

 The answer of the defendant denies the material allegations of the complaint and affirmatively sets up the statute of limitations as a bar to the cause of action. Defendant further sets up the defenses that plaintiff's sole and exclusive remedy is under the Workmen's Compensation Act and that a prior determination in this matter in the Compensation Court is res adjudicata and is therefore a bar to this action.

 No determination of the last two defenses need be made, since it is my conclusion that the action is effectively barred by the Statute of Limitations.

 The present suit was instituted on May 19, 1942.

 The applicable statute of limitaions is R.S. 2:24-2, N.J.S.A. 2:24-2, and provides:

 "2:24-2. Two years; actions for injuries to person by wrongful act.

 "All actions for injuries to the person caused by the wrongful act, neglect or default of any person or persons, firm or firms, individual or individuals, corporation or corporations within this state shall be commenced within two years next after the cause of any such action shall have accrued, and not thereafter."

 The plaintiff's cause of action, if any, accrued at the time of the alleged negligent treatment and the statute begins to run from that time and not from such time as plaintiff became aware that he was wrongfully treated, or was suffering from the results of wrongful treatment or neglect. Weinstein v. Blanchard, 109 N.J.L. 332, 162 A. 601.

 In Gogoliu v. Williams, 91 N.J.L. 266, 102 A. 667, 668, the court in commenting on accrual of a cause of action stated: "It is to be observed that the gravamen of the action is the hiring of a professional man to perform a service, within the line of his profession, which he negligently performed to the damage of the person employing him. In such a situation, quite uniformly, the rule has been declared to be that the statute of limitations begins to run from the time of the occurrence of the breach of duty, and not from the time of the discovery of actual damage, as a result of such breach."

 Plaintiff's cause of action, if any, accrued on the date of treatment, to wit, February 14, 1939.

 This matter thus resolves itself into the question of whether plaintiff's action, brought as it is in assumpsit, is an action for injury to the person within the contemplation of R.S. 2:24-2 ...


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