Smith v. International High Speed Steel Co.

Per Curiam.

This action was brought to recover the pecuniary loss sustained by the widow and next of kin of one Harvey D. Slockbower, an employee of the defendant company. His work was the polishing and boring of steel tubing, and his death resulted from the breathing into his lungs' of fine particles of metallic and mineral substances which were thrown into the air as a result of that work, thereby causing a congested and diseased condition, from udiich he finally died.

The appeal is rested solely upon the proposition that the Workmen’s Compensation law of this state provides the exclusive remedy for a death resulting from the cause vre have indicated.

This proposition was submitted to Mr. Justice Bergen on a motion to strike out the complaint in the cause, and was decided adversely to the present appellant’s contention, for reasons stated in the following formal opinion which was rendered by the justice: “The averment of the complaint in this case is that plaintiff’s intestate wras in the service of the defendant and employed to polish steel by using an emery wheel which caused fine particles of1 metallic and mineral substances to be thrown into the air wdiere the em *575 ployee was working, and by breathing carried into his iTings, causing them and his bronchial tubes to be filled with metallic substances producing a diseased and injured condition from which he died. There was also an averment that the service continued from July 1st, 1918, to June 5th, 1920. There is no averment of the happening of any occurrence jn the nature of an accident, but, on the contrary, that through defendant’s negligence in causing him to work in an atmosphere impregnated with metallic particles, he suffered an injury not the result of an accident. The defendant says the complaint is bad because under the Workmen’s Compensation act all injuries are to be recovered under it, unless service under section two is protested. This is true, but the injury must refer to such cases as are subject to the statute. I think a disease, such as is described in the complaint, is not the result of an accident, and that a recovery for injuries therefrom is not confined t® the Workmen’s Compensation act. Where no specific time can be fixed when an accident is claimed to have occurred there is no accident within the meaning of the compensation act. Liondale Bleach Works v. Biker, 85 N. J. L. 426. The injury not falling within the Compensation act the common law remedy is not affected by it. The motion to strike out will he denied with costs.”

We concur in the views expressed in that opinion, and affirm the judgment appealed from for the reason stated therein.

For affirmance — The Chancellor, Chief Justice, Swayze, Tren chard, Parker, Kalisch, Black, Katzenbacji, White, Gardner, Ackerson, Van Buskirk, JJ. 12.

For reversal — None.