Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d. Francis, J.A.D. (concurring).
Summary judgment was entered against the plaintiff in these two actions, which had been brought in the County Court and then consolidated. The County Court held that the two-year statute of limitations barred recovery. N.J.S. 2 A:14-2. Plaintiff appeals.
The first action was commenced February 26, 1952 by Ethel Biglioli for injuries allegedly resulting from the negligence of her former employer, the defendant, in exposing her to beryllium while she was in its employ. After her death on August 13, 1952, her general administrator was substituted as plaintiff in her stead. The second action was brought under the Death Act to recover damages for her death allegedly resulting from berylliosis.
For the purposes of the motion for summary judgment, the facts were orally stipulated by the attorneys. It appeared that defendant had been using beryllium in a manufacturing process for some considerable time prior to January 1, 1950, but never on or after that date, and had exposed Miss Biglioli to the beryllium up until a certain day in October 1949, but not subsequently. On 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.
Further, according to the stipulation --
Miss Biglioli "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.
And 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. * * * Then
and only then in July of 1951 was there a manifestation that she had this condition. Then 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 attributed to her exposure in the plant." (Italics added)
ASSUMING THAT MISS BIGLIOLI SUFFERED NO DEFINITE BODILY IMPAIRMENT AS A RESULT OF THE BERYLLIUM UNTIL ON OR AFTER JANUARY 1, 1950, ARE THE PRESENT CAUSES OF ACTION BARRED BY AMENDMENTS TO THE WORKMEN'S COMPENSATION ACT EFFECTIVE THEN?
Amendments to the Workmen's Compensation Act, effective January 1, 1950, extended the coverage of the act to occupational diseases in general; theretofore the act did not provide any relief for berylliosis. N.J.S.A. 34:15-30, 34:15-31. Incidentally, it may be noted that it appeared on the argument before us that Miss Biglioli in her lifetime filed a workmen's compensation petition which has not been moved and is still pending in the Division.
Defendant's contention is that these amendments bar the present causes of action because the remedy they furnish an employee is exclusive. But the question is whether they do furnish a remedy in the present circumstances. For if they do not, we will presume that the Legislature intended to preserve the common-law remedy. Downing v. Oxweld Acetylene Co. , 112 N.J.L. 25, 30 (Sup. Ct. 1933), affirmed 113 N.J.L. 399 (E. & A. 1934); Foley v. Western Alloyed Steel Casting Co. , 219 Minn. 571, 18 N.W. 2 d 541, 542-543 (Sup. Ct. 1945). Plaintiff claims that the amendments do not apply to Miss Biglioli, for if they were applicable to her, they would be retroactive in operation.
It has been held in the case of an occupational disease, comparable to berylliosis for present purposes, that the liability for compensation attaches, when "a definite fault akin to a traumatic injury occurs." Calabria v. Liberty Mutual Insurance Co. , 4 N.J. 64, 71 (1950), an opinion
by Mr. Justice Case. Larson says that in such a case the right to compensation and the liability therefor arise at the date of disability. Larson, Workmen's Compensation § 95.21 (1952). See in accord McIntyre v. E. J. Lavino & Co. , 344 Pa. 163, 25 A. 2 d 163, 165 (Sup. Ct. 1942); Henson v. Department of Labor and Industries , 15 Wash. 2 d 384, 130 P. 2 d 885, 888 (Sup. Ct. 1942); cf. Textileather Corp. v. Great American, etc., Co. , 108 N.J.L. 121 (E. & A. 1931). Still other jurisdictions refer to the time of disablement. Blatchford v. Staddon and Founds (1927) A.C. 461, 468 (H.L.); Ferguson & Lange Foundries, Inc., v. Industrial Comm. , 380 Ill. 185, 43 N.E. 2 d 684, 687 (Sup. Ct. 1942); Durham Mfg. Co. v. Hutchins , 115 Ind. App. 479, 58 N.E. 2 d 444, 446 (App. Ct. 1945); Mosier v. Marshall Furnace Co. , 318 Mich. 113, 27 N.W. 2 d 514 (Sup. Ct. 1919); McCann v. Walsh Const. Co. , 282 App. Div. 444, 123 N.Y.S. 2 d 509, 513 (App. Div. 1953), affirmed 306 N.Y. 904, 119 N.E. 2 d 596 (Ct. App. 1954). The terminology differs from that used by Mr. Justice Case in Calabria , but the concept seems to be about the same; the term "fault," as the Supreme Court employs the word, includes a definite impairment of bodily function or of a part of the body, which detracts from its efficiency in the ordinary pursuits of life. Heidel v. Wallace & Tiernan , 37 N.J. Super. 522 (Cty. Ct. 1955), and cases cited at page 528, affirmed 21 N.J. 335 (1956).
It may possibly be that in connection with an occupational disease, where an employee does not know of the "nature of his disability and of its relation to his employment" (cf. N.J.S.A. 34:15-33) until subsequent to the time of the "definite fault" or impairment, then the claim to compensation accrues, not at the time of the impairment, but at the time he first knows or ought to have known of its relation to the employment. See Urie v. Thompson , 337 U.S. 163, 170, 69 S. Ct. 1018, 93 L. Ed. 1282, 1293 (1948); " Developments in the Law, Statute of Limitations ," 63 Harv. L. Rev. 1177, 1203 (1950); cf. Panchak v. Simmons Co. , 15 N.J. 13, 20-25 (1954). See Larson, supra , § 78.52,
cf. 78.42(e); Annotation 11 A.L.R. 2 d 277, 301-311 (1950). Compare N.J.S.A. 34:15-51, dealt with in Schwarz v. Federal Shipbuilding and Dry Dock Co. , 16 N.J. 243, 251 (1954). That question may be presented by Miss Biglioli's workmen's compensation petition, but we need not (in view of the conclusions reached under Points I and II herein), and therefore should not, decide it in this case. Suffice it now to hold 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.
It is not entirely clear from the stipulation above mentioned whether Miss Biglioli had prior to January 1, 1950 suffered a "definite fault akin to a traumatic injury" which was attributable to the beryllium. For, as above stated, the parties stipulated that the "beryllium did not develop in her" until thereafter. In keeping with the policy of the law, which calls upon the courts to construe and apply the Workmen's Compensation Act liberally, the courts may in such a matter resolve doubts in the employee's favor. See McBride v. Royal Laundry Service , 44 N.J. Super. 114 (App. Div. 1957), filed herewith. However, in the instant case we shall assume in dealing with Point I of this opinion (as indicated by the above title to the point) that Miss Biglioli did not suffer a "definite fault" attributable to the beryllium until on or after January 1, 1950. In Point II we shall assume that she suffered such a fault prior thereto.
Plaintiff lays stress on the fact that, though Miss Biglioli may not have suffered this fault until on or after January 1, 1950, nevertheless the last time she was exposed to the beryllium was in October 1949, two months before the occupational disease amendments took effect. He contends therefore, as stated above, that if the statute is made applicable to her, it will be operative retroactively. This he claims is in violation of the Federal and State Constitutions, and in any event is contrary to the established rule ...