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Weisenbach v. Borough of New Milford

Decided: September 17, 1946.

VERONICA WEISENBACH, PETITIONER-PROSECUTOR,
v.
BOROUGH OF NEW MILFORD, RESPONDENT-DEFENDANT



On certiorari.

For the prosecutor, Hein & Smith (Clyde A. Bogert and Seymour A. Smith).

For the defendant, Walter H. Jones.

Before Justices Donges, Heher and Colie.

Heher

The opinion of the court was delivered by

HEHER, J. On November 7th, 1941, one Thomas J. Weisenbach suffered a fatal stroke while in the pursuit of his service as a member of the volunteer fire department of the defendant municipality; and the question for decision is whether his dependents have established by evidence that his death was the result of an accident which arose out of and in the course of his employment within the intendment of R.S. 34:15-7, et seq. The Compensation Bureau resolved the

issue in the affirmative; the Bergen Common Pleas, in the negative. The Bureau found that the fatality was the consequence of a coronary occlusion arising from the "physical strain and exertion and the general excitement and activity incident" to decedent's "answering his call of duty." We concur in this latter finding.

These are the essential facts: Weisenbach was a baker by trade, and was so employed on the day in question. He arrived home, after his day's work, between 4:30 and 4:45 P.M. He read a newspaper until 5:45 P.M., when he had dinner. Thereafter, he returned to the living room, removed his shoes and, in the company of his wife, listened to a radio broadcast until approximately 6:45 P.M., when the fire whistle was sounded. He hurriedly put on his shoes, directed one of the sons to procure his coat hanging in the cellarway, and hastened there himself when the son returned with the wrong garment. He ran from the house and drove to the fire station in his own automobile. He parked the vehicle fifty or sixty feet from the fire house, and "ran" or "trotted" to and boarded the fire truck. The testimony is in conflict as to whether the truck was in motion when Weisenbach took his place on the rear platform of the vehicle; but this divergence does not in our view concern a determinative factor. After the truck had proceeded nine or ten blocks, Weisenbach complained to a fellow-fireman of difficulty in breathing, and when it was found, almost immediately thereafter, that he was on the verge of collapse, the vehicle was brought to a halt and he was transferred to the automobile of another fireman responding to the fire call for conveyance to a physician. He died on the way. Weisenbach was thirty-eight years of age, and apparently had been in sound health before the fatal attack. There is no evidence of a prior heart ailment and no history of serious illness.

First, it is argued on behalf of the employer that it does not "conclusively appear" from the evidence that the cause of death was a coronary occlusion; and it is suggested that the causation was not definitely determinable without an autopsy, and opinion evidence not based thereon is too speculative for judicial recognition as a basis for judgment. But it is not

requisite that there be conclusive proof of the factual proposition thus affirmed. The standard of proof is probability rather than certainty. The burden of proof is sustained if under the evidence the tendered hypothesis becomes a rational inference, i.e., an inference based upon a preponderance of probabilities according to the common experience of mankind. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533.

The evidence here leads irresistibly to the inference of an acute coronary occlusion due to a thrombosis as the cause of death. There is no basis in the proofs for any other conclusion. Dr. Kaufman, an experienced cardiologist summoned by prosecutor, was quite firm in the view that the circumstances plainly indicated "an acute coronary occlusion as the result of a coronary thrombosis," i.e., a blood clot formed within the coronary artery. Neither of the cardiologists called by defendant expressed an opinion contra; indeed, they were not interrogated on this point. Seemingly, they assumed that such was the cause of ...


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