For the prosecutor, T. Millet Hand.
For the defendant, Anthony J. Cafiero.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. The writ of certiorari brings up a judgment in the Cape May Common Pleas together with the record in the Workmen's Compensation Bureau leading to a determination, granting an award of compensation, which that judgment affirmed. The petition was filed on behalf of Lorraine Cirelli, the wife of Anthony J. Cirelli, who was an employee of the City of North Wildwood and who died on September 24th, 1940.
We find the salient facts to be: On August 5th, 1940, decedent was in the employ of the City of North Wildwood as a life guard. In accordance with his prescribed duties he was clad in the regulation apparel of the municipal life guards, consisting of trunks and jersey, which left the arms,
shoulders and legs exposed, and he was on duty from nine in the forenoon to five in the afternoon. Between two and three o'clock in the afternoon of that day, so clothed, while sitting in the performance of his duty on the life guard stand, he was bitten on the left forearm by an insect, probably by one of the many greenheaded flies that had been brought in by a west wind and were at the time infesting the beach front. He slapped his arm, contemporaneously remarked that something had stung him and began scratching at a red spot that almost instantly developed. The arm became inflamed and much swollen. Within two days suppuration had reached the point that, upon pressure, pus discharged without incision. Cirelli became worse, suffered from chills and fever, had severe pains in the groin and was taken, on August 23d, to the Atlantic City Hospital. Despite hospitalization and medical treatment he died on September 24th from staphylococcemia, a pus condition which follows the introduction of staphylococcus bacteria into the blood stream. It was the opinion of competent medical witnesses, which we accept as correct, that the point of entry of the staphylococci was the weakened skin tissue at the locus of the insect bite. Death was the result of the insect bite.
The question for determination is, was the insect bite an accident, and, if so, did it arise out of and in the course of the employment?
In Wiley v. Travelers Insurance Co., 119 N.J.L. 22, the Court of Errors and Appeals considered a case wherein death was caused, as here, by general septicemia due to a pyrogenic infection caused by the entry of bacilli through a skin abrasion; but there the abrasion had been caused by the deliberate act of the decedent in pulling a hair from his nose -- done voluntarily against a physician's warning. In that case there was held to be no accident, but the course of the reasoning leads us to conclude that where the puncture is caused without the person's knowledge or forewarning and by a foreign agency not within the person's control the act may properly be deemed an accident. Therefore, we find the insect bite to have been an accident.
It is clear that the accident occurred in the ...