For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
This common law action was brought by plaintiff individually and as general administrator and administrator ad prosequendum of the estate of his deceased wife, Gloria Kane, to recover damages against her former employer, Durotest Corporation, for its negligence in exposing her to beryllium poisoning during the course of her employment. After the pleadings were complete and pretrial conference had, defendant moved for judgment on the ground that the cause of action, if any, is governed by the Workmen's Compensation Act, R.S. 34:15-7 et seq., and the jurisdiction to entertain such action is in the Workmen's Compensation Division. The trial court granted the motion and plaintiff appealed from the adverse judgment. We certified the appeal before it was argued in the Appellate Division.
The decedent, Gloria Kane, was employed by defendant at its manufacturing plant in North Bergen, New Jersey, from May 1946 to June 1950, except for a short interval in November and December 1947. During the course of her work she was exposed to highly toxic beryllium compounds,
the fumes and dust of which are capable of producing a pulmonary disease known as beryllium poisoning. In January 1958, seven and one-half years after leaving Durotest's employ, the disease first manifested itself in her. She died therefrom in January 1959, at the age of 34 years, leaving surviving her husband and three children. These proceedings were initiated within one year after the first known appearance of the disease.
When Mrs. Kane was first employed by Durotest, beryllium poisoning was not a compensable occupational disease under the Workmen's Compensation Act. But by amendment effective January 1, 1950, it was drawn within the coverage, and jurisdiction to grant pecuniary benefits became vested in the Workmen's Compensation Division. L. 1949, c. 29; N.J.S.A. 34:15-31. Thus, it is indisputable that six months before Mrs. Kane left defendant's employ the rather uncertain remedy for such an occupational disease was taken from the common law courts and the more certain protection of the Compensation Act substituted.
There can be no doubt that an employee, who was exposed to beryllium at work after January 1950 and whose symptoms of the disease appeared thereafter, became entitled to workmen's compensation. It is clear also that such remedy was to be had exclusively in the Workmen's Compensation Division. Biglioli v. Durotest Corp., 44 N.J. Super. 93 (App. Div. 1957), affirmed 26 N.J. 33 (1958).
Apparently it was recognized that the proper recourse was under the statute because a petition for compensation was filed in the Division in the lifetime of Mrs. Kane and within a year after January 1958, when the berylliosis first revealed itself. In July 1959, on motion of Durotest, a dismissal was ordered because the proceeding was not brought within the time limitation imposed by N.J.S.A. 34:15-34, which provides:
"All claims for compensation for compensable occupational disease shall be barred unless a petition is filed * * * within two years
after the date on which the employee ceased to be exposed in the course of employment with the employer to such occupational 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. * * *
Notwithstanding any provision of this section hereinabove set forth, all claims for compensation for compensable occupational disease hereunder 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 employment with the employer to such occupational disease; * * *."
Since Mrs. Kane's last employment exposure to beryllium was in June 1950, the five-year period had long since expired when her petition was filed. No appeal ...