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Gurzo v. American Smelting and Refining Co.

Decided: January 19, 1945.


On appeal from a judgment of the Supreme Court.

For the plaintiff-appellant, David Roskein (Harry Cohn, of counsel).

For the defendant-appellee, Seaman & Seaman (Edwin Joseph O'Brien, of counsel).


The opinion of the court was delivered by

WELLS, J. This is an appeal from a judgment of nonsuit entered in the New Jersey Supreme Court (Middlesex Circuit) in favor of the defendant and against the plaintiff. The suit was begun by plaintiff in October, 1942, against defendant, his employer, to recover damages for the pulmonary tuberculosis which he allegedly contracted as the result of defendant's negligence. Plaintiff, a man about twenty-seven years of age, entered the employ of the defendant in October, 1938, as a laborer and furnace attendant. His claim was that he was then in good health and able to do hard and laborious work, and that he had not previously suffered from any chest disease or tuberculosis and successfully passed a physical examination by the defendant's physician just prior to his being hired. Plaintiff continued to work at defendant's plant at Barber, New Jersey, steadily for about nine months or until June or July, 1939, when he was seized with a severe pain in the left side which was diagnosed as pleurisy. This required him to remain home for about a month, or until August, 1939, when he returned to work. In the meantime he had lost about twenty pounds in weight, ten of which he regained during the next few months.

After working from five to seven months, he developed a persistent cough and in January, 1941, he noticed the sputum was streaked with blood and the company physician after consultation sent him to the Perth Amboy Hospital for observation for three days where X-ray and sputum tests were positive for tuberculosis, and then for the first time plaintiff was informed by the company physician that he had tuberculosis. He did not thereafter return to work for defendant. After prolonged treatment at the Roosevelt Hospital, the Middlesex County Tubercular Institution, his health gradually improved until he was released in July, 1942. He worked for awhile as a taxi driver and as a guard in the State Hospital but claims he still suffers from shortness of breath and is unable to do any type of heavy work.

The details of the work that plaintiff did are unimportant, but his testimony was that the work required him to be in an atmosphere heavily laden with antimony fumes or dust eight hours a day, five days a week.

Inasmuch as the nonsuit was granted because plaintiff had not proved the case set up in his complaint, it is important to observe precisely what the complaint alleged both as to defendant's negligence and its effect on plaintiff's health.

After stating that defendant was engaged in the business of manufacturing, preparing, refining and mixing of substances and ingredients used in the manufacture of tiles, pottery, paint, &c., and that plaintiff was employed by defendant as a laborer in the department where a product known as "antimony oxide" was manufactured, prepared or refined, the complaint went on to say that in connection with the operation conducted at its factory defendant used certain sands, powders and other chemical substances which, when heated, gave off strong and noxious fumes, smokes and odors resulting in creating large quantities of fine dust, all of which permeated the air of the department where plaintiff was required to work and to which substances plaintiff was frequently and regularly exposed; that defendant knew or should have known that the operations which it maintained and conducted at its plant created certain hazards to the health and well-being of its employees, including plaintiff, who was not warned by defendant and had no knowledge of the dangerous and injurious nature of the noxious fumes and odors, &c.

Paragraph eight of the complaint alleges substantially that the defendant negligently failed to use proper means to eliminate the strong and noxious fumes, fine dusts, &c., from the air in and about its plant and to provide and maintain adequate ventilation, proper apparatus, appliances and devices to protect him; that defendant violated certain particularly designated Labor Laws of the State of New Jersey; and finally that defendant failed to provide a safe place in which plaintiff could perform his work while in the employ of the defendant.

Then follows paragraph nine, the pertinent part of which is important, and is as follows: "As a direct and proximate result of the aforesaid negligence and acts of the defendant, * * * the said noxious smokes, fumes and odors and fine dusts ...

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