Biglioli v. Durotest Corp., A--42

• Decision Date: 03 February 1958
• Docket Number: No. A--42,A--42
• Citation: 26 N.J. 33,138 A.2d 529
• Parties: Edward BIGLIOLI, General Administrator of the Estate of Ethel Biglioli, Deceased, Plaintiff-Appellant, v. DUROTEST CORPORATION, a corporation of New Jersey, Defendant-Respondent. Edward BIGLIOLI, Administrator Ad Prosequendum of Ethel Biglioli, deceased, Plaintiff-Appellant, v. DOROTEST CORPORATION, a corporation of New Jersey, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 33

26 N.J. 33

138 A.2d 529

Edward BIGLIOLI, General Administrator of the Estate of Ethel Biglioli, Deceased, Plaintiff-Appellant, v. DUROTEST CORPORATION, a corporation of New Jersey,

Defendant-Respondent.

Edward BIGLIOLI, Administrator Ad Prosequendum of Ethel

Biglioli, deceased, Plaintiff-Appellant, v. DOROTEST CORPORATION, a corporation of New Jersey,

Defendant-Respondent.

No. A--42.

Supreme Court of New Jersey.

Argued Nov. 25, 1957.

Decided Feb. 3, 1958.

Aaron Gordon, Jersey City, argued the cause for appellant.

Robert Shaw, Newark, argued the cause for respondent (Shaw, Pindar, McElroy & Connell, Newark, attorneys).

The opinion of the court was delivered by

HEHER, J.

The gravamen of these actions in tort for negligence is the wrongful exposure of plaintiff's decedent, Ethel Biglioli, in the course of her employment with the defendant corporation, to 'beryllium and its various compounds and combinations' used in the manufacture of fluorescent and incandescent electric light bulbs.

The first action was brought February 26, 1952 by Ethel Biglioli herself. The complaint alleged total permanent disability from the inhalation of toxic beryllium dust and fumes while in the pursuit of her work. Her death, August 13, 1952, in consequence of the injury thus pleaded, as is said, was followed by the substitution of her general administrator as the plaintiff in the action and the bringing of plaintiff's suit as administrator Ad prosequendum under the Death Act, N.J.S. 2A:31--1 et seq., N.J.S.A.

There was summary judgment for defendant in each action in the Hudson County Court; and the Appellate Division of the Superior Court affirmed. The case is here by our certification.

As stated by Judge Clapp in the Appellate Division, 44 N.J.Super. 93, 129 A.2d 727 (1957), the facts were orally stipulated by the attorneys '(f) or the purposes of the motion for summary judgment.' Defendant had made use of beryllium in a manufacturing process 'for some considerable time prior to January 1, 1950, but never on or after the date, and had exposed Miss Biglioli to the beryllium up until a certain day in October 1949, but not subsequently'; '(o)n that day she left work and never returned to it, except for two days in January and again on February 27, 1950, which was the last day of her employment'; she 'became ill in 1947 toward the latter part of the year'; she 'was treated by doctors for stomach trouble, for what they diagnosed as colds, but nobody told her that she had beryllium and beryllium did not develop in her and she did not know she had it until after she had stopped working on February 27, 1950'; the 'beryllium poisoning of her lungs did not develop, was not manifest or diagnosed until 1951 in July when they had a test done at Trudeau Sanatarium in Saranac Lake'; '(t)hen and only then in July of 1951 was there a manifestation that she had this condition'; '(t)hen and only then can we assume--because if her doctors didn't know it, how could she have known it--did she know that she had any condition which could be atrributed to her exposure in the plant.'

The County Court held that defendant 'used no beryllium in its factory at any time during the year 1950,' and the deceased employee 'suffered no exposure to beryllium * * * subsequent to January 1, 1950'; and 'after that date there was no wrongful act by the defendant causing injury to the plaintiff'; the 'statute of limitations started to run from the last wrongful act * * * that is, * * *the exposure to beryllium,' and the bar of the statute became effective two years thereafter, 'regardless of when plaintiff discovered that her illness' was the consequence of the pleaded wrongful act.

The significance of January 1, 1950 is that beryllium poisoning was not, prior to that date, a 'compensable occupational disease' under section 2 of the Workmen's Compensation Act, R.S. 34:15--7 et seq., N.J.S.A., but was brought within its coverage by the amendment of sections 30 and 31 made by L.1949, c. 29, N.J.S.A. 34:15--30; 34:15--31, effective on the given day.

In the Appellate Division, Judge Clapp ruled that '* * * if a definite bodily impairment occurs after January 1, 1950 as a result of berylliosis, a right to compensation accrues under the statute at, or possibly subsequent to, the time of the impairment,' to the exclusion of the common-law remedy for negligence; and that, on the contrary hypothesis, the statute of limitations, N.J.S. 2A:14--2, N.J.S.A., bars an action for negligence. This, on the assumption, citing Tortorello v. Reinfeld, 6 N.J. 58, 77 A.2d 240 (1950), among other cases, that the common-law cause of action 'accrues * * * on the conjunction of two events, the wrongful act and the injury,' and here 'the last wrongful act or acts occurred in October 1949 when she was last exposed to beryllium, and (under the assumption above made) the injury occurred prior to January 1, 1950,' and if she suffered 'a definite bodily impairment as a result of the beryllium' before then, the pleaded causes of action are barred by the statute of limitations; and if her own action for negligence was barred, no right of action for negligence vested on her death in her administrator Ad prosequendum and the statutory beneficiaries under the Death Act, N.J.S. 2A:31--1; 2A:31--4, N.J.S.A., citing Knabe v. Hudson Bus Transportation Co., 111 N.J.L. 333, 168 A. 418 (E. & A.1933); Turon v. J. & L. Construction Co., 8 N.J. 543, 86 A.2d 192 (1952).

The amended section 30 of the Compensation Act, N.J.S.A. 34:15--30, effective January 1, 1950, provides that when 'employer and employee have accepted the provisions of this article as aforesaid,' compensation for personal injuries or death suffered by the employee 'by any (work-connected) compensable disease' shall be made as therein directed, save when the injury or death is caused by 'willful self-exposure to a known hazard with the intention of contracting an occupational disease.' And the amended section 31, N.J.S.A. 34:15--31, defines the phrase 'compensable occupational disease' to 'include all disease arising out of and in the course of employment, which are due to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or employment, or which diseases are due to the exposure of any employee to a cause thereof arising out of and in the course of his employment.' This all-embracive definition supplants the prior specific enumeration of compensable occupational diseases not inclusive of berylliosis.

The compensation for death or 'disability total in character and permanent in quality' attributable to an occupational disease is the same in amount and duration as for 'death or disability' caused by a compensable 'accident'; also the mode of determining the 'duration of temporary and permanent partial disability, either or both, and duration of payment for the disability due to occupational diseases' shall be according to 'the same rules and regulations' as are applicable to 'accident or injury.' R.S. 34:15--32, N.J.S.A.

Section 33, as amended by L.1948, c. 468, N.J.S.A. 34:15--33, provides that no compensation shall be payable for death or disability by occupational disease unless the employer 'during the continuance of the employment shall have actual knowledge that the employee has contracted a compensable occupational disease,' or unless the employee, or someone on his behalf, or some of his dependents, or someone on their behalf, shall give to the employer written notice or claim that the employee has contracted such disease, such notice to be given 'within a period of five months after the date when the employee shall have ceased to be subject to exposure' to the disease, 'or within ninety days after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration, * * *.'

And section 34, as amended by L.1948, c. 468, N.J.S.A. 34:15--34, bars all claims for compensation for occupational disease unless a petition is filed with the Bureau 'within two years after the date on which the employee ceased to be exposed in the course' of the employment to such disease, 'or within one year after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration.' There is a time limitation also where there has been a default in the payments provided for in an agreement of compensation, and where 'a part of the compensation' has been paid by the employer; and there is an overall provision that, at all events, claims for compensation for such disease shall be 'forever barred' unless a petition is filed 'within five years after the date on which the employee ceased to be exposed' in the course of the employment to the disease, provided that in the event of the death of an employee who has been paid compensation on account of such disease, a petition on behalf of the dependents shall be timely if filed within two years after the last payment to the employee, even though such two-year period, or a part thereof, extends beyond the given five-year period.

The contention is that the act of 1949 enlarging the occupational disease coverage of the Compensation Act, 'effective January 1, 1950,' is 'not retroactive in language or in intent and if the Legislature had endeavored to make (such provisions) retroactive,' the statute 'would be invalid,' as in controvention of Article IV, section VII, paragraph 3 of the 1947 State Constitution, forbidding the passage of 'any bill of attainder, Ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made,' citing J. W. Ferguson Co. v. Seaman, 119 N.J.L. 575, 197 A. 245 (E. & A.1938); A. P. Smith Mfg. Co. v. Court of Common Pleas of Essex County, 107 N.J.L. 38, 150 A. 771 (Sup.Ct...