Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
In May, 1950 plaintiff, operator of a stone quarry in Bernardsville, New Jersey, agreed to purchase its blasting agents from the defendant Explosives Sales Company of New Jersey, local agent for defendant E. I. duPont deNemours and Company, manufacturer of the blasting agents, and under the terms of the agreement the defendant would supervise the preparation for and the actual blasting operations at plaintiff's quarry.
The parties operated under this agreement until June 7, 1950, when a "runaway blast" occurred, allegedly due to
defendants' negligent conduct. Thereafter, by direction of a Deputy Director of the New Jersey Department of Labor and Industry, plaintiff's quarrying operations were first suspended and then severely restricted.
Plaintiff instituted an action against defendants to recover damages allegedly caused by the negligence of defendants, which proximately resulted in the interruptions of plaintiff's quarrying operations. Defendants' answer denied the alleged negligence, and they obtained answers from plaintiff to interrogatories submitted to it and the deposition of Deputy Director of the Department of Labor and Industry, George C. Krueger.
On motion of the defendants the trial court determined from the complaint, pretrial order, plaintiff's admissions in interrogatories and the deposition of Deputy Director Krueger, that as a matter of law plaintiff's claimed damages were not proximately caused by the alleged negligence of the defendants, "but that such damages, if any, were instead caused solely by the independent, intervening and superseding conduct of the Deputy Director, State of New Jersey, Department of Labor and Industry." Whereupon, the trial court denied the plaintiff's motion to amend the complaint and entered summary judgment in favor of the defendants and against the plaintiff, from which judgment plaintiff appeals.
The plaintiff asserts that the pivotal point in this case is the "proximate cause" of plaintiff's injury and damage; that that issue is a factual matter in controversy; that the conduct of the Deputy Director is not such an independent intervening act as would operate to relieve defendants of liability to the plaintiff, and that the trial court, therefore, erred in entering a summary judgment.
The Explosives Company argues that the damages complained of are consequential, stemming from the suspension and restriction of its operation by the deputy director; that there is no indication of the basis of his authority so to do and that the resulting damages are unconnected with any negligence on its part.
The duPont Company contends that its alleged negligence was not the proximate cause of plaintiff's claimed damages, but that they flowed from a wholly independent cause, to wit, the intervening action of the Department of Labor and Industry, for which it is not responsible; that the suspension and the restrictive order issued by the Deputy Director, Department of Labor and Industry, were not preceded by factual findings, were illegally issued and invalid; that, if the action of the Deputy Director be considered lawful, plaintiff's damages are not legally compensable since they would flow from its inability to operate profitably in compliance with the law; that the pleadings, deposition and answers to interrogatories show palpably that there is no genuine issue of fact and that the trial court properly granted defendants' motion for summary judgment.
"* * * The judgment or order sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. * * *" R.R. 4:58-3.
The dispositive question projected by this appeal is whether the pleadings, interrogatories and deposition exhibited by the record raise a genuine issue of a material fact. Templeton v. Scudder , 16 N.J. Super. 576 (App. Div. 1951); Stacy v. Greenberg , 9 N.J. 393, 401 (1952).
A review of the pleadings reveals that the plaintiff alleges its damages were caused by defendants' negligent conduct causing a misblast on June 7, 1950. The interrogatories present statements of alleged negligent conduct by defendants to plaintiff's damage, and Director Krueger's deposition indicates that the "misblast" played an important part in producing the suspension and restrictive orders. Mr. Krueger testified in part, as follows:
"Q. Do I understand then that your transfer of the entire operations from the east face of the old quarry to the south face in the western section of the quarry was prompted primarily by consideration as to the ...