For the prosecutor, John W. Taylor.
For the respondent, Nathan & Isadore Rabinowitz.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
COLIE, J. This is a workmen's compensation matter in which the employee was awarded compensation in the Bureau and, on appeal, in the Court of Common Pleas. The evidence was that DiMaria on June 21st, 1943, commenced to operate a roller-sanding gun which vibrated his hand. On July 2d he felt his hands becoming stiff and reported the condition to the first-aid department. There was medical testimony to support a finding of "traumatic chronic progressive adhesive teno-synovitis of the flexor tendons of both hands."
The sole question presented by this writ of certiorari is whether or not the employee sustained an accident within the meaning of the Workmen's Compensation Act. We find no evidence of an accident.
In Liondale Bleach Works v. Riker, 85 N.J.L. 426, the Supreme Court, speaking through Mr. Justice Swayze held
that "where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident within the meaning of the act." This statement of the law was followed by the Court of Errors and Appeals in Smith v. International High Speed Steel Co., 98 N.J.L. 574. Respondent quotes from Bollinger v. Wagaraw Building Supply Co., 122 Id. 512 (at p. 520), a statement which purportedly supports the judgment now under review. The Court of Errors and Appeals in the cited case said "we think that the requirement that the injury or death arise by accident, under our statute, is satisfied if the claimant discharges the burden of proving that the condition complained of, i.e., the injury or death, is related to or affected by the employment, that is to say, if but for the employment it would not have occurred." We suggest that the above quotation from the Bollinger case is dictum and unnecessary to the decision thereof since the opinion of the Court of Errors and Appeals expressly states that there was plenary medical evidence that the sand coming into contact with the mole on July 15th was the cause of the melanoma. This latter statement from the opinion in the Bollinger case is precisely in line with the holding in Liondale Bleach Works v. Riker, supra, requiring the fixing of a specific time or an occasion when an accident happens in order to make the resultant injury compensable. The term "accident" as used in the Compensation Act connotes some unlooked for mishap or untoward event, not expected or designed. Bryant v. Fissell, 84 Id. 72.
The opinion of the Common Pleas discusses the fact that the employee's system was peculiarly susceptible to vibration. Assuming such to be the case, that merely goes to the extent of the injury sustained and has no bearing upon whether an accident within the meaning of the act was sustained.
The case of Capuano v. Wright Aeronautical Corp., 134 N.J.L. 339, seems on all fours with the instant case and is controlling upon us. There the injury was caused by repeated traumatic vibrations but there was no evidence of a time or place when the alleged accident ...