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Estelle v. Board of Education of Borough of Red Bank

Decided: May 8, 1953.

HARRY ESTELLE, PLAINTIFF-RESPONDENT,
v.
BOARD OF EDUCATION OF THE BOROUGH OF RED BANK, DEFENDANT-APPELLANT



McGeehan, Bigelow and Jayne. The opinion of the court was delivered by Bigelow, J.A.D.

Bigelow

This is an appeal from a judgment for $80,000 damages resulting from a disease of the lungs which the jury found arose out of the plaintiff's work as janitor of one of the schools of the defendant.

The plaintiff began his employment with the defendant in 1925 and became one of four janitors at the River Street School and performed the duties usual in such a position. Every fourth week he would come to the school early each day, about 4:45 A.M., in order to get up steam and have the school warm by 8 o'clock. In 1933 a motor stoker system was installed in the boiler room and thereafter soft coal was used in the furnaces. The system was semi-automatic, the coal being shovelled by hand into a hopper and from there carried to the fire box by a screw conveyor. Adjacent to the boiler room was the coal bin, 30 by 15 feet, and 12 feet high, with two doorways on the long side. The bin was filled each summer and again each winter. As the supply of coal ran

low, it became necessary to go inside the bin to get coal. The trampling upon the fine coal on the floor, the shoveling of the coal, and the coal sliding in the bin, all made a dust that was especially bad during the period of activity in the early morning. And occasionally the coal in the bin had to be screened before it could be used in the stoker.

In 1948 plaintiff first noticed a shortness of breath; later he developed a wheeze, a pain in his chest and a cough; but these conditions bothered him little until January or February of 1950. And he did not seek medical attention until April 26, 1950, when he called on Dr. Parker of Red Bank. Since then he has not been able to work. There is no doubt that plaintiff is suffering from a serious lung condition. Although the medical witnesses disagreed as to the exact nature of his ailment and as to its cause, there was sufficient evidence to sustain the jury's finding that it was caused by the dust which plaintiff breathed into his lungs during his work as janitor.

The plaintiff, in his argument that the defendant is answerable in damages, relies in great part on R.S. 34:6-48, reading,

"Every employer shall, without cost to his employees, provide reasonably effective devices, means and methods to prevent the contraction by them of any illness or disease incident to the work or process in which they are engaged.

Employer as used in this article, unless the context otherwise requires, includes partnerships and corporations."

The first question is whether this section of the revision applies to a governmental body such as the defendant board of education. It is taken from sections 1 and 12 of L. 1914, c. 162, "An Act to prevent lead poisoning and other occupational diseases and providing penalties for the violation of its provisions." The rest of that statute is restated in R.S. 34:6-49 to 57. The principal purpose of the enactment was the protection of employees from lead poisoning to which they might be exposed during manufacturing processes. Penalties ranging from $50 to $300 are imposed on employers

who violate or fail to comply with the mandates of the article, including section 48.

It has often been said that under common-law rules of interpretation, the Crown was not bound by a statute unless named in it. Maxwell, Interpretation of Statutes (1937), 120; Sutherland, Statutory Construction (1943), ยง 6301. "Everything for the benefit of the King shall be taken largely, as everything against the King shall be taken strictly." Coke's Case, Godbolt 289; 78 Eng. Rep. 169, 173 (Ct. of Wards , 1624). The rule, though not in its broadest form, has been recognized in New Jersey. "It is a rule not founded on royal prerogative, but on principles of public policy, -- that the state should not suffer from the negligence of its officers and servants." Den v. O'Hanlon , 21 N.J.L. 582, at 588 (E. & A. 1845). "Where the government is not expressly, or by necessary implication, included, it ought to be clear, from the nature of the mischiefs to be reached, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put a construction on a statute which would affect its rights." Trustees of Public Schools v. Trenton , 30 N.J. Eq. 667, 683 (E. & A. 1879); and see there the annotation by the reporter. The rule protects not only the State itself but its agencies, as for example, in the case last cited, the trustees for the support of free schools, and the Chancellor in his official capacity.

The act of 1914 was intended primarily for the protection of employees in manufacturing enterprises. A violator of its provisions is subject to fine. It seems to us quite clear that the Legislature did not intend that the statute be applied to the State or to agencies like the defendant board of education when acting in a governmental capacity. The statute does not affect the defendant in the present case, or enlarge its liability. But the learned trial judge held to the contrary, accepting the plaintiff's contention that the statute was applicable, and he submitted the case to the jury on this theory. For this fundamental error, as we view the law, the judgment must be reversed.

The statutory provision that we have been discussing has been characterized as no more than a restatement of common-law requirements. Rosacci v. U.S. Pipe & Foundry Co. , 123 N.J.L. 357 (E. & A. 1939). But that was said in an action against a private employer and not a governmental body. In general, a master is obligated to exercise due and reasonable care to the end that his servant shall have a safe place wherein to work and proper tools and equipment. Clayton v. Ainsworth , 122 N.J.L. 160 (E. & A. 1939). The defendant urges that the operation of this rule is restricted (1) by the principle that a governmental body in the exercise of a governmental function is not liable for mere negligence, but only for malfeasance or misfeasance, and (2) by the ...


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