Brighton v. Bor. Of Rumson.

• Decision Date: 03 January 1947
• Docket Number: No. 231.,231.
• Citation: 135 N.J.L. 81,50 A.2d 485
• Parties: BRIGHTON v. BOROUGH OF RUMSON.
• Court: New Jersey Supreme Court

135 N.J.L. 81

50 A.2d 485

BRIGHTON

v.BOROUGH OF RUMSON.

No. 231.

Supreme Court of New Jersey.

Jan. 3, 1947.

Proceeding under the Workmen's Compensation Act, N.J.S.A. 34:15-7 et seq., by Marie A. Brighton, individually and as administrix of the estate of Alfred Richard Brighton, deceased, opposed by Borough of Remson, employer, to recover benefits for death of claimant's husband. To review a judgment affirming an award of the compensation bureau in favor of claimant, the employer brings certiorari.

Reversed.

October term 1946, before BODINE, PERSKIE and WACHENFELD, JJ.

Reginald V. Spell, of Reinark (Harry E. Walburg, of Newark, of counsel), for prosecutor.

James R. Laird, of Asbury Park (Haydn Proctor, of Asbury Park, of counsel), for respondent.

PERSKIE, Justice.

This is a workman's compensation case, R. S. 34:15-7 et seq., N.J.S.A. The dispositive question for decision is whether respondent carried the burden of establishing, by a preponderance of the probabilities according to the experience of mankind, that the death of her husband, allegedly due to a ‘heart attack’ brought on by the ‘strain’ of his work, was the result of an ‘accident’ which arose out of his employment. Compare for analogy, Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533, 6 A.2d 213; Giles v. W. E. Beverage Co., 133 N.J.L. 137, 43 A.2d 286, affirmed 134 N.J.L. 234, 46 A.2d 728.

In the Bureau and in the Monmouth County Court of Common Pleas it was held that the death of the employee was the result of an accident which arose out of and in the course of his employment. Notwithstanding the principle of law that we do not lightly disturb the harmonious result reached in the Bureau and in the Pleas if same finds ample support in the testimony (Pearson v. Armstrong Cork Co. 143 A. 449, 6 N.J.Misc. 976, 978; Mountain Ice Co. v. Durkin, 144 A. 6, 6 N.J.Misc. 1111, 1113, affirmed 105 N.J.L. 636, 147 A. 451; Berlinger v. Medal Silk Co., 113 N.J.L. 476, 174 A. 558; Reis v. Breeze Corporation, 129 N.J.L. 138, 141, et seq., 28 A.2d 304), nevertheless that principle is no bar to the right of this court to reach a result contrary to that reached in the Bureau, or in the Pleas, or both. It is the duty of this court to make an independent determination of the facts and law. R. S. 2:81-8, N.J.S.A.; Lazzio v. Primo Silk Co., 114 N.J.L. 450, 177 A. 251, affirmed 115 N.J.L. 506, 180 A. 881; Anderson v. Federal Shipbuilding & Dry Dock Co., 118 N.J.L. 55, 56, 191 A. 455; Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 577, 189 A. 662; Stetser v. American Stores Co., 124 N.J.L. 228, 229, 11 A.2d 51; Beerman v. Public Service Coordinated Transport, 123 N.J.L. 479, 481, 9 A.2d 690; Calicchio v. Jersey City Stock Yards Co., 125 N.J.L. 112, 14 A.2d 465. The discharge of our duty leads us to the result that the respondent failed properly to establish that her husband died as the result of an accident which arose out of his employment.

The undisputed facts are that Alfred Richard Brighton was the former husband of the respondent, petitioner below, who has since married one Hromyak on June 3, 1944. Leave was granted to amend her petition accordingly but no such amendment is made to appear.

Alfred Richard Brighton (hereafter referred to as Brighton), prior to his death on January 22, 1942, had been employed for about eighteen or nineteen years by prosecutor, Borough of Rumson, a municipal corporation, as its ‘road supervisor.’ He was re-employed each year. There is nothing to indicate that prosecutor ever officially defined Brighton's duties. His job, according to the mechanic employed by prosecutor, was ‘to line up work for the men (about eight in number) and run the place.’ The place refers to prosecutor's garage where there were housed, maintained and repaired the seven trucks owned by prosecutor. The place was used both as a garage and as a work shop. The actual maintenance of the trucks and the repair work thereon were the duties of a mechanic employed by prosecutor for that specific purpose.

Brighton, as supervisor, made ‘inspection of the roads every day.’ There are about ‘sixty five miles of streets.’ He made those inspections in trucks belonging to prosecutor and in his own private automobile which automobile he also used to go to his work and return to his home. He supplied the ‘gas' for the use of his automobile. He reached, according to prosecutor's official clerk, the point when he, Brighton, no longer ‘wished’ to use his own car all the time. His wish, on the recommendation of prosecutor's chairman of the road committee, was satisfied. Thus on December 26, 1941, prosecutor purchased and made available to Brington a small ‘Ford pick up truck’ for his use in going about his work as supervisor of the roads.

And so it was when on the morning of his death Brighton reported for work. He attended to his official duties. He returned to the garage about noon time. Then he left to go home for dinner and returned to the shop about 1:00 p.m. From that time until about 1:45 p.m., Brighton was according to the mechanic present at the time, engaged in ‘rubbing and shining’ and ‘polishing,’ ‘pretty hard,’ the hood of his private car while same was in prosecutor's garage at the time. Brighton's objective was to remove spots from the hood which he said were ‘on there off the maple trees,’ although the mechanic testified that the car looked ‘bright and clear’ to him. During all this time Brighton complained but once, about 1:30 p.m. His complaint was that he felt warm although the inside of the garage was ‘cold and damp.’ The mechanic left the garage about 1:45 p.m. Thereafter another employee of prosecutor walked into the garage. He, too, found Brighton ‘rubbing and polishing’ the hood of the car. Brighton asked this employee to get him a drink of water. As the employee turned to get the water Brighton started to fall. The employee ‘grabbed hold of him and set him down on the bench.’ The employee ‘rushed...