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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
:
ETHELWYNNE METZ, (nee Peer),
and EDWARD METZ, her husband,
:
Plaintiffs,
:
Action at Law
-VS-
:
ORDER
UNITED STATES RADIUM CORPORA-
:
TION, a corporation of the
State of Delaware,
:
Defendant.
:
:
The plaintiffs having filed a com-
plaint herein, wherein they allege that said female plaintiff
was employed by the defendant between March lst, 1916, and
December 15th, 1918, in the plant of the defendant, which
was engaged in the distribution of radium and radium products
and the manufacture and distribution of radium and other
luminous materials, which materials and products plaintiffs
allege were deleterious to human health if a person were
exposed thereto; and further alleging that the defendant
failed in its duty to afford said female plaintiff a reason-
ably safe place to work, and reasonably safe tools and
materials to work with, and that the said defendant negli-
gently failed to warn the female plaintiff of the dangers
of working with, or in proximity to, said materials, and
in negligently directing the said female plaintiff to use
certain methods in the mixing and application of said
materials in the course of her employment, and that by
reason thereof the said female plaintiff became exposed to
the said dangerous materials and her body became impregnated
with the same, whereby she became affected with an industrial
disease which has recently become known as radium poisoning,
and has suffered various and severe permanent injuries
and that because of the nature of the substance with which
plaintiff was required to work, such injuries did not
manifest themselves until long after said female plaintiff
had left the employ of defendant, and that by reason of
the aforesaid, the husband of said female plaintiff has
suffered consequential damages and loss; and
Defendant having answered the said com-
plaint and having denied all allegations of negligence
therein set up, and having further set up in said answer
that the said actions of said plaintiffs, and each of them,
are barred by the Statute of Limitations of the State of
New Jersey in such case made and provided; and
Plaintiffs having filed a reply to said
answer of defendant, denying that the actions of said
plaintiffs, or either of them, are barred by the Statute of
Limitations of the State of New Jersey, and further alleging
that the said defendant, because of fraudulent conduct
upon its part in concealing from said plaintiffs that they
and each of them had a cause of action against said defend-
ant for the matters and things in said complaint set forth,
and in fraudulently representing that the said materials
with which said female plaintiff worked were not dangerous
or deleterious to health, should be estopped from pleading
said Statute of Limitations; and
Defendant having rejoined to said
replication, denying the allegations of said replication
and also setting up that the allegations of fraud set forth
in the plaintiffs' replication are not matters cognizable
in a court of law; and
The parties having agreed to submit to
the Court for decision, in advance of the trial of the
issues of fact involved in said action, the question of the
bar of the Statute of Limitations of the State of New
Jersey, the termination of which question, if such statute
be found to bar said action, would be disposition of such
action on the law side of this Court; and
Both parties having been heard, and the
case having been argued before the Court, upon which
argument it was admitted by the parties that the employ-
ment of the female plaintiff by defendant was from March
1st, 1916, to December 15, 1918, on which latter date she
left defendant's employ and has not since been in its
employ, and that this action was commenced December 15th,
1928, or ten (10) years after the last day the female
plaintiff was in defendant's employ; and
The Court having heard and considered
the argument of, and considered the briefs filed by, the
parties, and being of the opinion that the cause of action
of each of said plaintiffs arose (or accrued to them) at
the time of the negligent act or acts complained of, and
that said causes of action (and each of them) are barred
by the Statute of Limitations of the State of New Jersey
in such case made and provided, and the Court being further
of the opinion that the matters set up in the said
replication of the plaintiffs to the plea of the Statute
of Limitations set up by the defendant in its answer,
(which said replication alleged fraudulent conduct and
concealment of a cause of action by said defendant), are
matters not cognizable before this Court as a court of law;
It is, on this 17th day of July, 1933,
ORDERED, that:
(a) judgment interlocutory be entered in
favor of the defendant and against the plaintiffs, upon the
ground that the actions are barred by the Statute of Limita-
tions of the State of New Jersey;
(b) the entry of final judgment in favor of
defendant and against the plaintiffs be stayed until further
order of the court;
(c) the case be transferred to the equity
side of the court for decision upon the equitable defense of
fraudulent concealment by defendant as to the nature and
properties of the substance with which the female plaintiff
worked, and fraudulent concealment from said female plaintiff
that the manner and method in which defendant instructed her
to use said materials would cause injury to her, and fraudulent
concealment from said female plaintiff that she had a cause of
action against the defendant;
(d) the plaintiffs, wi thin 30 days from the
date hereof, serve upon defendant a bill of particulars
specifying (with reasonable detail) the fraudulent repre-
sentations, acts and/or conduct upon the part of defendant
of which they complain;
(e) the case be set down for hearing, upon
motion, upon a date to be fixed by the Court.
GUY L. FAKE
JUDGE
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"ocrText": "UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF NEW JERSEY\n:\nETHELWYNNE METZ, (nee Peer),\nand EDWARD METZ, her husband,\n:\nPlaintiffs,\n:\nAction at Law\n-VS-\n:\nORDER\nUNITED STATES RADIUM CORPORA-\n:\nTION, a corporation of the\nState of Delaware,\n:\nDefendant.\n:\n:\nThe plaintiffs having filed a com-\nplaint herein, wherein they allege that said female plaintiff\nwas employed by the defendant between March lst, 1916, and\nDecember 15th, 1918, in the plant of the defendant, which\nwas engaged in the distribution of radium and radium products\nand the manufacture and distribution of radium and other\nluminous materials, which materials and products plaintiffs\nallege were deleterious to human health if a person were\nexposed thereto; and further alleging that the defendant\nfailed in its duty to afford said female plaintiff a reason-\nably safe place to work, and reasonably safe tools and\nmaterials to work with, and that the said defendant negli-\ngently failed to warn the female plaintiff of the dangers\nof working with, or in proximity to, said materials, and\nin negligently directing the said female plaintiff to use\ncertain methods in the mixing and application of said\nmaterials in the course of her employment, and that by\nreason thereof the said female plaintiff became exposed to\nthe said dangerous materials and her body became impregnated\nwith the same, whereby she became affected with an industrial\ndisease which has recently become known as radium poisoning,\nand has suffered various and severe permanent injuries\nand that because of the nature of the substance with which\nplaintiff was required to work, such injuries did not\nmanifest themselves until long after said female plaintiff\nhad left the employ of defendant, and that by reason of\nthe aforesaid, the husband of said female plaintiff has\nsuffered consequential damages and loss; and\nDefendant having answered the said com-\nplaint and having denied all allegations of negligence\ntherein set up, and having further set up in said answer\nthat the said actions of said plaintiffs, and each of them,\nare barred by the Statute of Limitations of the State of\nNew Jersey in such case made and provided; and\nPlaintiffs having filed a reply to said\nanswer of defendant, denying that the actions of said\nplaintiffs, or either of them, are barred by the Statute of\nLimitations of the State of New Jersey, and further alleging\nthat the said defendant, because of fraudulent conduct\nupon its part in concealing from said plaintiffs that they\nand each of them had a cause of action against said defend-\nant for the matters and things in said complaint set forth,\nand in fraudulently representing that the said materials\nwith which said female plaintiff worked were not dangerous\nor deleterious to health, should be estopped from pleading\nsaid Statute of Limitations; and\nDefendant having rejoined to said\nreplication, denying the allegations of said replication\nand also setting up that the allegations of fraud set forth\nin the plaintiffs' replication are not matters cognizable\nin a court of law; and\nThe parties having agreed to submit to\nthe Court for decision, in advance of the trial of the\nissues of fact involved in said action, the question of the\nbar of the Statute of Limitations of the State of New\nJersey, the termination of which question, if such statute\nbe found to bar said action, would be disposition of such\naction on the law side of this Court; and\nBoth parties having been heard, and the\ncase having been argued before the Court, upon which\nargument it was admitted by the parties that the employ-\nment of the female plaintiff by defendant was from March\n1st, 1916, to December 15, 1918, on which latter date she\nleft defendant's employ and has not since been in its\nemploy, and that this action was commenced December 15th,\n1928, or ten (10) years after the last day the female\nplaintiff was in defendant's employ; and\nThe Court having heard and considered\nthe argument of, and considered the briefs filed by, the\nparties, and being of the opinion that the cause of action\nof each of said plaintiffs arose (or accrued to them) at\nthe time of the negligent act or acts complained of, and\nthat said causes of action (and each of them) are barred\nby the Statute of Limitations of the State of New Jersey\nin such case made and provided, and the Court being further\nof the opinion that the matters set up in the said\nreplication of the plaintiffs to the plea of the Statute\nof Limitations set up by the defendant in its answer,\n(which said replication alleged fraudulent conduct and\nconcealment of a cause of action by said defendant), are\nmatters not cognizable before this Court as a court of law;\nIt is, on this 17th day of July, 1933,\nORDERED, that:\n(a) judgment interlocutory be entered in\nfavor of the defendant and against the plaintiffs, upon the\nground that the actions are barred by the Statute of Limita-\ntions of the State of New Jersey;\n(b) the entry of final judgment in favor of\ndefendant and against the plaintiffs be stayed until further\norder of the court;\n(c) the case be transferred to the equity\nside of the court for decision upon the equitable defense of\nfraudulent concealment by defendant as to the nature and\nproperties of the substance with which the female plaintiff\nworked, and fraudulent concealment from said female plaintiff\nthat the manner and method in which defendant instructed her\nto use said materials would cause injury to her, and fraudulent\nconcealment from said female plaintiff that she had a cause of\naction against the defendant;\n(d) the plaintiffs, wi thin 30 days from the\ndate hereof, serve upon defendant a bill of particulars\nspecifying (with reasonable detail) the fraudulent repre-\nsentations, acts and/or conduct upon the part of defendant\nof which they complain;\n(e) the case be set down for hearing, upon\nmotion, upon a date to be fixed by the Court.\nGUY L. FAKE\nJUDGE"
}