Becker v. Union City, A--718

• Decision Date: 04 January 1952
• Docket Number: A--718
• Citation: 17 N.J.Super. 217,85 A.2d 539
• Parties: BECKER v. UNION CITY. No
• Court: New Jersey Superior Court — Appellate Division

Page 217

17 N.J.Super. 217

85 A.2d 539

BECKER v. UNION CITY.

No A--718.

Superior Court of New Jersey Appellate Division.

Argued Dec. 10, 1951.

Decided Jan. 4, 1952.

John A. Laird, Newark, argued the cause for appellant (Lawrence Wolfberg, Union City, attorney; David Roskein, Newark, on the brief).

Cyril J. McCauley, Union City, argued the cause for respondent.

Before Judges McGEEHAN, JAYNE, and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

JAYNE, J.A.D.

There appears to be a somewhat persistent endeavor on behalf of claimants to induce us either to displace or materially to liberalize the application of the existing principle of law relative to the so-called 'heart cases' prosecuted in pursuance of the terms and provisions of the Workkmen's Compensation Act, R.S. 34:15--7 et seq., N.J.S.A.

It is the peculiar genius and strength of the law that no decision is Stare decisis when it has lost its usefulness in our social evolution. However, one should not be incorrigible in the performance of judicial service. There are certain commandments in the law which must be heeded and respected. Among them is that proclaimed by Chancellor Kent: 'When a decision upon a point of law has been made upon solemn argument and upon mature deliberation, the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions by it.' Despite man's modern propensity for innovations, that rule of judicial action has continued to retain its prestige.

'Although it has been said that a precedent embalms a principle, and although I do not assent to the proposition that our courts must abjectly submit to an unqualified enslavement and subserviency to early precedents, yet it would be disastrous frequently to have one law on the same subject in the morning and another at night.' Creasey v. Zink, 140 N.J.Eq. 111, 53 A.2d 715, 716 (Prerog.Ct.1947).

Assuredly, the existing state of our decisional law applicable to the consideration of such cases is expressed in Lohndorf v. Peper Bros. Paint Co., 134 N.J.L. 156, 46 A.2d 439 (Sup.Ct.1946), affirmed 135 N.J.L. 352, 52 A.2d 61 (E. & A.1947); Grassgreen v. Ridgeley Sportswear Mfg. Co., 2 N.J.Super. 62, 64 A.2d 616 (App.Div.1949), cert. den. 1 N.J. 603, (1949); Temple v. Storch Trucking Co., 2 N.J.Super. 146, 65 A.2d 70 (App.Div.1949), affirmed 3 N.J. 42, 68 A.2d 828, (1949); and Seiken v. Todd Dry Dock, Inc., 2 N.J. 469, 67 A.2d 131, 134, (1949), in which it was stated that: 'A review of the cases decided since the Lohndorf case, supra, shows a general adherence to the view therein expressed * * *.' The verity of that remark is exhibited by the decisions in Gaudette v. Miller, 1 N.J.Super. 145, 62 A.2d 749 (App.Div.1948); Carpenter v. Calco Chemical Div., Amer. Cyanamid Co., 4 N.J.Super. 53, 66 A.2d 177 (App.Div.1949); Franko v. Mack Manufacturing Corp., 5 N.J.Super. 1, 68 A.2d 267 (App.Div.1949); Schroeder v. Arthur Sales Co., Inc., 5 N.J.Super. 287, 62 A.2d 751 (App.Div.1949), affirmed 4 N.J. 116, 71 A.2d 644 (1950); Gorelick v. Paramount Slipper Co., Inc., 5 N.J.Super. 406, 69 A.2d 337 (App.Div.1949); Franklin v. U.S. Bronze Powder Works, 6 N.J.Super. 320, 71 A.2d 226 (App.Div.1950); Hoffman v. Krause, 8 N.J.Super. 163, 73 A.2d 610 (App.Div.1950); Martin v. Western Electric Co., Inc., 9 N.J.Super. 89, 74 A.2d 905 (App.Div.1950); Gagliano v. Botany Worsted Mills, 13 N.J.Super. 1, 80 A.2d 125 (App.Div.1951).

An acquaintance with the above cited decisions will reveal that the following principles are firmly sustained in our law:

1. The statutory prerequisites to establish a compensable injury by Accident under R.S. 34:15--7, N.J.S.A., are that the alleged accident arose not only (a) in the course of employment, but also (b) out of the employment. Consult also Hall v. Doremus, 114 N.J.L. 47, 175 A. 369 (Sup.Ct.1934); Beh v Breeze Corporation, 2 N.J. 279, 66 A.2d 156 (1949). The words 'accident' and 'employment' as utilized in the statute are not synonymous. Therefore proof of the fact that injury or death occurred during the course of work does not of itself entitle one to the benefits of that legislation. It must additionally be made to appear that the mishap arose out of the employment. Basically it must be recognized that the statute does not constitute an employer a plenary and unconditional insurer of the health and life of his employees.

2. The burden descends upon the claimant to prove those essential and indispensable elements of his or her claim by a preponderance of the evidence. Parker v. John A. Roebling's Sons Co., 135 N.J.L. 440, 52 A.2d 681 (Sup.Ct.1947), affirmed 136 N.J.L. 635, 57 A.2d 387 (E. & A.1948). This may be accomplished by proof of a circumstantial character which preponderates in favor of the tendered hypothesis by supporting a rational inference founded upon a comparative superiority of probabilities according to the common experience of mankind. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533, 6 A.2d 213 (Sup.Ct.1939). This burden of proof necessarily embraces the obligation to disclose that the injury sustained by the employee was the proximate result of an Accident within the import of the statute. The proof, however, is not required to eliminate all doubt. Ames v. Sheffield Farms Co., 1 N.J. 11, 61 A.2d 502 (1948). It is not a valid defense to show that the death could possibly have occurred from natural causes. Probabilities, not possibilities, must control the factual conclusion. Sunkimat v. Senger Coal & Ice Corp., 137 N.J.L. 103, 58 A.2d 226 (Sup.Ct. 1948).

3. While it is not necessary that an accidental injury must in order to be compensable be the result of traumatic force, yet an injury, even though fatal, suffered in the course of employment but arising solely from natural causes wholly unrelated to an industrial mishap is not compensable. Common observation and experience have instructed us that there are classes of bodily disabilities which are normally due to pathological causes and more rarely attributable to traumatic misfortunes and so, for example, there is the initial inference tha heart failure is the consequence of natural physiological changes. In Joseph Dixon Crucible Co. v. Law, 135 N.J.L. 528, 53 A.2d 215, 217, (1947), the former Supreme Court expressed the admonition: 'It is requisite that in workmen's compensation cases grounding in alleged heart injuries the evidence be carefully scrutinized and assayed lest disability consequent upon disease alone constitute the basis of an award of compensation.'

It is threrfore entirely reasonable to expect that in such cases there should be a relatively increased Onus probandi resting upon the claimant in order to prove by a preponderance of the probabilities that the employment was a contributing factor to the disability without which the alleged accident would not have occurred. Cf. Schlegel v. H. Baron & Co., 130 N.J.L. 611, 34 A.2d 132 (Sup.Ct.1943); Young v. Sheffield Farms Co., Inc., 136 N.J.L. 489, 56 a.2d 868 (Sup.Ct.1948), affirmed 137 N.J.L. 605, 61 A.2d 46 (E. & A.1948); Tyler v. Atlantic City Sewerage Co., 137 N.J.L. 16, 57 A.2d 512 (Sup.Ct.1948).

4. Accordingly, the rule in effect is that to overcome the inference that a heart ailment is due to natural causes, it is incumbent upon the claimant to produce evidence of an unusual strain or exertion, event or happening incident to but beyond the mere regular employment itself to constitute satisfactory proof of an 'accident' within the meaning and signification of the statute.

5. One of the tests invoked in the consideration of these cases has been to inquire whether the employee was acting at the time of the mishap in the pursuit of his customary and routine duty. The service-ability of this test depends largely upon the appropriate adaptability of the adjective 'routine' to the nature of the employment. Its logical efficiency must be somewhat discounted in cases involving those types of employment in which the adjective can be little more descriptive than a generalization, notably in its relevancy to the services of firemen and policemen whose occupations embrace the performance of an unpredictable variety of intermittent and contingent duties.

Whatever may be the rational avenue of approach, the basic inquiry in the heart cases is whether upon consideration of the evidence the greater weight of the reasonable probabilities produces the conviction that there was a proximate and efficient causal relationship between the pursuit of the employment and the unexpected and undesigned attack.

An accident is an unlooked for mishap or untoward event which is not expected or designed, an event happening at a specific time or occasion. Bryant, Adm'x v. Fissell, 84 N.J.L. 72, 86 A. 458 (Sup.Ct.1913); Dawson v. E. J. Brooks & Co., 134 N.J.L. 94, 45 A.2d 892 (Sup.Ct.1946). The difficulty experienced by the petitioners in the heart cases inheres not so much in any distinctly different substantive principle of law but in the undertaking to prove that the injury to the heart was in fact accidental in cause and occurrence.

It is in the reflection of the light of those prevailing principles that we undertake the consideration of the present appeal.

On November 7, 1949, one John Becker, a paid fireman who had been regularly employed as such in the fire department of the City of Union City for a period of 20 years, collapsed and died almost immediately after his participation in the extinguishment of a fire in the Manhattan Building situate on Bergenline Avenue in that city. His dependent mother instituted this proceeding to recover an award under the workmen's compensation law. The ascribed cause of her son's death was either acute coronary occlusion or myocardial infarction. An autopsy was not performed. Doctor Stolove, an intern at the North Hudson Hospital who attended the decedent at the scene of the fire, expressed the opinion that excitement, overexertion,...