For the prosecutor, Cox & Walburg (Arthur F. Mead, of counsel).
For the respondent, Herman M. Wilson (David Sarbone, of counsel).
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. In this workmen's compensation case, the fact that the employe suffered injuries arising out of and in the course of the employment is not challenged. It is the extent of the injuries claimed by employe and thus the percentage of the total disability allowed him that is contested.
The petitioner, fifty-nine years of age, was employed by the prosecutor as a butcher and salesman. As part of his work he helped deliver beef sold; in so doing he was obliged to and did carry beef weighing one hundred to one hundred and thirty pounds to prosecutor's truck in which it was delivered to the customer. He had worked continuously for the prosecutor for about ten months prior to the accident, at the wage of $25 a week, and prior thereto had worked for another beef concern for about three years.
On February 8th, 1933, while carrying a loin of beef weighing about sixty pounds from another beef house to the truck, in the course of his employment, he was struck by an automobile. As a result thereof, he claimed that he sustained "a fracture of the left ankle;" "internal injuries" and "nervous shock." In addition thereto he claimed, and this is the real controversy, that he also sustained a heart condition, myocarditis. This claim was made to rest on two grounds. First, that it was the direct result of trauma, of having been struck by the automobile, or second, that the accident set in motion or aggravated the pre-existing heart condition.
On the other hand prosecutor contended below, as it contends here, that the heart condition could not have been the result of trauma, nor did the accident aggravate the preexisting condition thereof. Its claim is that while petitioner was in the hospital he developed either a "cold," "grippe" or "influenza" and although he fully recovered from that illness in a few days, nevertheless, that attack "brought about a decompensation of the heart during the period of the attack and subsequently the heart adjusted itself and came back to the chronic condition that always existed."
Each party offered proof in support of its contention. It is elementary that petitioner was obliged to do more than show that the injuries sustained "could have been" the result of the accident. Wolfe & Co. v. Piplin, 14 N.J. Mis. R. 146; 183 A. 187. He was obliged to show that the injuries for which he claimed compensation were in fact caused by the accident. That proof, however, may be direct, circumstantial or presumptive, i.e., based on proper deducible inferences, or both. Nardone v. Public Service, &c., Co., 113 N.J.L. 540; 174 A. 745; Armstrong v. Union County Trust Co., 14 N.J. Mis. R. 648; 186 A. 522; affirmed, 117 N.J.L. 423; 189 A. 138. Thus it has been repeatedly held that, in the absence of direct proof, the best proof, probability and not certainty is the test as to whether an injury resulted from an accident arising out of and in the course of the employment. Auten v. Johnston, 115 N.J.L. 71; 178 A. 187; Jackson v. Delaware,
Lackawanna and Western Railroad Co., 111 N.J.L. 487; 170 A. 22; Hercules Powder Co. v. Nieratko, 113 N.J.L. 195; 173 A. 606; affirmed, 114 N.J.L. 254; 176 A. 198; Belyus v. Wilkinson-Gaddis Co., 115 ...