On appeal from the Supreme Court.
For the Textileather Corporation, McDermott, Enright & Carpenter.
For the American Mutual Liability Insurance Company, McCarter & English.
For the Great American Indemnity Company, Collins & Corbin.
The opinion of the court was delivered by
BODINE, J. The American Mutual Liability Insurance Company appeals from a judgment entered at the Essex Circuit in favor of the Textileather Corporation in the sum of $2,900.66. The Textileather Corporation appeals from a judgment of nonsuit entered in favor of the Great American Indemnity Company.
The facts necessary to a decision of this case are few. Bruno Iannazzo, one of the plaintiff's employes, died of benzol poisoning on December 8th, 1927. Benzol poisoning is an occupational disease for which compensation may be had under the Workmen's Compensation law. There was an award of compensation by the bureau. The defendant, the American Mutual Liability Insurance Company insured the plaintiff's risk from November 18th, 1927, and was notified of the death of Iannazzo and defended the proceedings instituted to secure compensation. The compensation bureau found that Iannazzo contracted benzol poisoning in August of 1927, and that the result of said poisoning was that he died on December 8th, 1927. Iannazzo first went to work for the Textileather Corporation in August of 1927. Although in sound health at that time, he shortly thereafter complained of difficulty with his stomach, dizziness and other symptoms of the disease appeared. He, however, worked steadily until November 26th, 1927, when his condition became such that he was unable to work and after a few days was taken to the hospital where he died.
It is conceded that the dispute narrows to a question of when liability to make compensation attaches. Prior to November 18th, 1927, the plaintiff's insurance was carried by the Great American Indemnity Company. The American Mutual Liability Insurance Company attaches much importance to the bureau's finding of the time when the disease was contracted. In our view, that is of no importance in this case.
The plaintiff's motion for the direction of a verdict against the American Mutual Liability Insurance Company was based on two grounds: (1) that the evidence showed that the accident, or the disease, which caused Iannazzo to discontinue his employment, and from which he died on the 8th of December, occurred during the coverage of that defendant's policy of insurance; and (2) that the defendant is estopped to deny its liability, because it took over the entire defense of the proceedings brought against the plaintiff for compensation.
Judge Dungan granted the motion on the single ground of estoppel. Horn v. Commonwealth, 105 N.J.L. 616. This was not error, but the plaintiff was also entitled to the direction upon the other ground urged. Iannazzo ceased to work because of the illness from which he died on November 26th, 1927, during the period of coverage by the American Mutual Liability Insurance Company. Chapter 95, Pamph. L. 1911, p. 134, provides for compensation for personal injuries caused to an employe by accident arising out of and in the course of his employment. Chapters 178 and 262, Pamph L. 1917, make provision for compulsory insurance to provide in certain instances for compensation payments arising out of and under the Workmen's Compensation act. Chapter 124, Pamph. L. 1924, p. 230, provides for compensation for personal injuries to, or for death of an employe by reason of any of the compensational occupational diseases set forth in the statute. This act was, in minor particulars, amended by chapter 31, Pamph. L. 1926, p. 62. The legislature in setting up a plan for compensation for occupational diseases intended to provide a complete and workable arrangement for the compensation of those disabled by occupational diseases, and also for suitable provisions for their dependents in the event of death.
It is a well known fact that industrial diseases are gradual in development -- the first and early steps are not always perceptible. The rate of progress may vary. Sometimes a patient makes a complete recovery; sometimes it is only an apparent one. Sometimes the disease is quiescent and latent; sometimes the fatal course is swift. Medical science cannot always detect and describe the progress of disease. Employes exposed to occupational diseases frequently work for different employers. It is unthinkable that the legislature should have contemplated that in such instances the recovery of compensation should be defeated. The legislature has properly assumed a benevolent care for workmen. The Compensation act ...