On rule to show cause why writ of mandamus should not issue.
For the relator, Stanley S. Dickerson.
For the respondent, George L. Burton.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
DONGES, J. Application is made for a writ of mandamus commanding the South River Police Pension Commission to grant to Mary Angersbach, widow of Charles Angersbach, a pension of $950 per year, for the benefit of herself and three children, from June 11th, 1938, the date of the death of said Charles Angersbach, then a policeman in the employ of the borough of South River.
It is stipulated that Angersbach was a policeman of the borough; that the borough adopted the provisions of the act providing for pensions; that Angersbach was in good standing in the fund at the time of his death; that application for a pension was duly made by relator and that it was refused.
The only points in controversy are as to whether Angersbach died by his own hand, and whether, if he did, the refusal of the commission was justified.
It is urged by respondent that all of the circumstances point to self-destruction. No one saw the act that produced death. The proofs are circumstantial. Presumptions favor innocent as against criminal conduct.
But, whether the death be accidental or suicidal, we conclude that the relator is entitled to judgment upon the proofs in this case.
The act, R.S. 43:16-4, provides:
"The widow or children or sole dependent parent of any member of the police or fire department, who shall have paid into the fund the full amount of his annual assessment or contributions and shall have lost his life in the performance of his duty or died from causes other than injuries received in the performance of duty, shall receive a pension equal to one-half of the salary of the member at the time of his death, but not exceeding one thousand dollars. If there are a widow and children, the pension shall be paid to the widow for the use of herself and the children. * * *"
This statutory provision was construed in Bederski v. Policemen's and Firemen's Board of the City of Newark, 4 N.J. Mis. R. 637; affirmed, 104 N.J.L. 163, on the opinion of the Supreme Court. In that case Bederski, a policeman, lost his life while engaged in an unlawful undertaking. The court, speaking through Mr. Justice Katzenbach, said:
"The respondent contends that Bederski's widow is not entitled to a pension because Bederski met his death while engaged in an unlawful enterprise; but, assuming for the purpose of argument that he did meet his death while engaged in an unlawful act, we are unwilling to hold that his widow is for that reason ...