Snoden v. Borough of Watchung

• Decision Date: 11 December 1953
• Docket Number: No. A--493,A--493
• Citation: 101 A.2d 583,29 N.J.Super. 41
• Parties: SNODEN v. BOROUGH OF WATCHUNG. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 41

29 N.J.Super. 41

101 A.2d 583

SNODEN v. BOROUGH OF WATCHUNG.

No. A--493.

Superior Court of New Jersey Appellate Division.

Argued Sept. 24, 1953.

Decided Dec. 11, 1953.

Samuel P. Orlando, Camden, argued the cause for respondent-appellant (Orlando, Devine & Tomlin, Camden, attorneys).

John W. O'Brien, Newark, argued the cause for petitioner-respondent (O'Brien, Brett & O'Brien, Newark, attorneys).

Before Judges CLAPP, GOLDMANN and EWART.

The opinion of the court was delivered by

GOLDMANN, J.A.D.

Appellant borough appeals from the whole of the final judgment entered in the Somerset County Court, Law Division, awarding death compensation to petitioner as the dependent widow of decedent, in her own behalf and in behalf of decedent's other dependents, his two minor children and his father. The Workmen's Compensation Division had previously also found in her favor.

The question on this appeal, as stated by appellant is: Did the death of petitioner's decedent result from an unusual strain or exertion arising out of and in the course of his employment by appellant as a volunteer fireman, so as to entitle her to an award under the Workmen's Compensation Act. The issue so phrased reflects the so-called 'heart case' doctrine projected 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), and followed since by our highest tribunal, albeit by a divided court where the minority has not failed to express its view in a series of vigorous dissents. The cases are collected in Becker v. City of Union City, 17 N.J.Super. 217, 222, 85 A.2d 539 (App.Div.1952). To these may be added the recent cases of Margolies v. Crawford Clothes, 24 N.J.Super. 598, 95 A.2d 413 (App.Div.1953), and Seiler v. Robinson, 24 N.J.Super 559, 95 A.2d 153 (App.Div.1953), affirmed by an equally divided court in 13 N.J. 307, 99 A.2d 422 (1953); cf. Pitkethly v. City of Paterson, 11 N.J. 331, 94 A.2d 549 (1953).

We are bound by precedent and must apply the principles established by the decisions. Those principles were succinctly stated by Judge Jayne in the Becker case (17 N.J.Super. at pages 222--224, 85 A.2d at pages 541--542), and need not be quoted at length. We adopt his helpful review as a correct summary of the decisional law in its present state.

R.S. 34:15--7, N.J.S.A., requires that in order to establish a compensable injury by 'accident' it must be shown that the alleged accident arose not only in the course of employment, but also out of the employment. The burden of proof is upon the claimant to establish these indispensable elements of her claim petition by a preponderance of the evidence. 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. The claimant must, of course, show that the injury suffered was the proximate result of an accident within the express language of the statute. The proof is not required to eliminate all doubt; it is not a valid defense to show that death could possibly have been the result of natural causes. Probabilities, not possibilities, control the factual conclusion.

An accidental injury, to be compensable, need not be the result of traumatic force. However, an injury, though fatal, suffered in the course of employment but arising solely from natural causes wholly unrelated to an industrial mishap, is not compensable. One of the classes of bodily disabilities normally due to pathological causes is heart failure. Presumptively, heart failure results from natural physiological changes, and in such case our courts have placed upon the claimant the relatively increased burden of proving by a preponderance of the probabilities that the employment was a contributing factor to the disability, without which the alleged accident would not have happened. There has accordingly, been imported into the judicial exposition of our compensation law, the doctrine that in order to overcome the inference that a heart failure is due to natural causes, the claimant must produce 'evidence of an unusual strain or exertion, event or happening incident to but beyond the mere regular employment itself,' to establish satisfactory proof of an 'accident' within the meaning of the Workmen's Compensation Act.

One of the tests applied by the heart cases is whether at the time of the mishap the employee was acting in pursuit of his customary and routine duty. As Judge Jayne observed, the logical efficiency of the 'routine' duty test 'must be somewhat discounted in cases involving those types of employment in which in 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.' Becker v. City of Union City, 17 N.J.Super. 217, 224, 85 A.2d 539.

We come, then, to the basic inquiry in this heart case of whether there was an unusual strain and whether, upon a consideration of all the evidence, the greater weight of the reasonable probabilities produces the conviction that there was a proximate and efficient causal relation between decedent's pursuit of his employment and the unexpected and undesigned attack resulting in his death. An accident, within the meaning of the statute, has been defined as an unlooked-for mishap or untoward event which is not expected or designed, an event which is not expected or designed, an event happening at a specific time or occasion. Neylon v. Ford Motor Co., 8 N.J. 586, 588, 86 A.2d 577 (1952); Ptak v. General Electric Co., 13 N.J.Super. 294, 300, 80 A.2d 337 (Cty.Ct.1951), affirmed 16 N.J.Super. 573, 85 A.2d 214 (App.Div.1951).

Appellant conceded at the start of the hearing before the Workmen's Compensation Division that decedent, G. Edward Snoden, was 'a volunteer fireman for the Borough of Watchung' and that the provisions of N.J.S.A. 34:15--75, fixing the basis of compensation of such fireman, applied. It may therefore be assumed that the borough inferentially conceded that the provisions of N.J.S.A. 34:15--43 ('* * * each and every active volunteer fireman doing public fire duty * * * under the control or supervision of any commission, council or any other governing body of any municipality * * * who may be injured in the line of duty shall be compensated under and by virtue of the provisions' of the Workmen's Compensation Act--for a history of this provision, see Brower v. Franklin Tp., 119 N.J.L. 417, 422 et seq., 197 A. 367 (Sup.Ct.1938)), also applied. Certainly at no time did the borough deny, nor does it now, that such was his status at the time of the happening of the incident which immediately preceded his death. It has, however, consistently maintained that petitioner's proof failed to overcome the presumption that her decedent's death from heart disease was the result of natural causes entirely unrelated to his employment as an active volunteer fireman.

We find no statutory provision which places such a fireman or his dependents in a more favored position than a paid fireman or any other employee, public or private, entitled to the benefits of the act. See McAnney v. Galloway Township, 120 N.J.L. 311, 313, 199 A. 369 (Sup.Ct.1938). Accordingly, whatever decisional law has been developed prescribing the proof required to establish a right to compensation of dependents of a deceased employee, including paid firemen (cf. Becker v. City of Union City, 17 N.J.Super. 217, 85 A.2d 539 (App.Div.1952)), applies with equal force to the dependents of a deceased active volunteer fireman.

Decedent was 43 years old at the time of his death. He had been a member of the local volunteer fire company for 15 to 20 years, and for the past four years had operated a small gasoline station, assisted by a boy on weekends. The company had acquired a new fire truck a month and a half or so before the incident about to be mentioned, and Snoden was assigned to drive it. After the truck was delivered he became more active than before. He took the apparatus out on trial runs twice a week to show the other firemen how to use it, and was present on these occasions more often than any other men. These practice runs involved doing everything one would at a regular fire. The new truck had been used in about 15 drills and had responded to perhaps one fire before March 6, 1950.

On that day Snoden left his gasoline station in charge of the boy and went home to change clothes preparatory to seeing his physician, Dr. Seybold. Petitioner testified there had been no change in her husband's health for some time, except that he complained of his back. Dr. Seybold had sent his patient to the Lahey Clinic, Boston, the preceding December for X-rays; the report was that Snoden had a moderate terminal type of arthritis of the back. The purpose of decedent's visit to the doctor that afternoon was to get the results of the X-rays.

Dr. Seybold had been treating Snoden since early 1946 for a rheumatic heart condition; the valves were involved and there was mitral stenosis with aortic regurgitation. The doctor saw him at least once a month, primarily for examination, and he checked his heart on the occasion of the latest visit. He found that Snoden's condition had not changed materially; there was the usual heart murmur, his blood pressure was about the same, and there were no symptoms of coronary insufficiency. Though the patient's basic heart condition had not changed, 'symptomatically he was feeling much better and very much encouraged.' The two spent some time talking over future plans to see if work less exacting than operating a gasoline station were possible. Dr. Seybold was unaware of his patient's volunteer fire work; such activity would not be indicated...