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Biglioli v. Durotest Corp.

Decided: February 3, 1958.

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. DUROTEST CORPORATION, A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



On certified appeal from the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs and Proctor. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

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. 2 A:31-1 et seq.

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 (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 that 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 attributed to her exposure in the plant."

The County Court held that defendant "used no beryllium in its factory at anytime 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., 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. 2 A:14-2, bars an action for negligence. This, on the assumption, citing Tortorello v. Reinfeld, 6 N.J. 58 (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. 2 A:31-1; 2 A:31-4, citing Knabe v. Hudson Bus Transportation Co., 111 N.J.L. 333 (E. & A. 1933); Turon v. J. & L. Construction Co., 8 N.J. 543 (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 ...


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