For the prosecutor, Bolte & Miller.
For the respondent, Garrison & Weaver.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The essential point in controversy is whether an "active volunteer fireman" -- in this instance the chief of a fire company -- while engaged, through the instrumentality of department apparatus known as the "pumper," in drawing an accumulation of water from the cellar of a citizen of the municipality, and in returning the vehicle to the company's
station -- all pursuant to a settled custom --, is within his "line of duty," so that injury or death sustained while so employed is classable as the emanation of an accident arising out of and in the course of his employment, within the intendment of the Workmen's Compensation Act of 1911, as supplemented by chapter 355 of the laws of 1931. Pamph. L. 1911, pp. 134, 763; Pamph. L. 1931, p. 873; Rev. Stat. 34:15-43.
The compensation bureau found that the deceased fireman who suffered mortal injuries as the result of the overturn of the vehicle on its return trip to the firehouse, was within the statutory classification, and made an award of compensation accordingly. The Atlantic Pleas affirmed the judgment.
We find nothing of substance in the municipality's assignments of error.
First: It was proper to admit evidence that this particular service was rendered by the volunteer fire companies functioning in the municipality in accordance with a long established custom.
The municipal ordinance creating this particular fire company -- for "the protection of life and property from fire" -- vested in the chief, the assistant chief and the captain, in the order named, "full command at a fire, or alarm of fire going or returning from same," and "control of all apparatus," and charged them with the duty of maintaining the apparatus "in serviceable order;" and it is the insistence of prosecutor that the deceased, by accepting membership in the fire company, undertook as a contractual obligation "to perform the duties as" thus "defined" in the ordinance; and that in such circumstances "evidence of custom to aid in the construction of the ordinance was not admissible in the absence of any ambiguity or doubt" in its language.
The fallacy of this contention is manifest. The prescription of duties in the ordinance was plainly not designed to be exclusive. The provision relates only to the commanding authority. It specifies the duties of the commanding officers, and to some extent deals with the manner of the exercise of the supervisory function. More than ...