For the prosecutor, Reginald V. Spell (Harry E. Walburg, of counsel).
For the respondent, James Laird (Haydn Proctor, of counsel).
Before Justices Bodine, Perskie and Wachenfeld.
The opinion of the court was delivered by
PERSKIE, J. This is a workmen's compensation case. R.S. 34:15-7, et seq. The dispositive question for decision is whether respondent carried the burden of establishing, by a preponderance of the probabilities according to the experience of mankind, that the death of her husband, allegedly due to a "heart attack" brought on by the "strain" of his work, was the result of an "accident" which arose out of his employment. Compare for analogy, Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533; 6 A.2d 213; Giles v. W.E. Beverage Co., 133 N.J.L. 137; 43 A.2d 286; affirmed, 134 N.J.L. 234; 46 A.2d 728.
In the Bureau and in the Monmouth County Court of Common Pleas it was held that the death of the employee was the result of an accident which arose out of and in the course of his employment. Notwithstanding the principle of law
that we do not lightly disturb the harmonious result reached in the Bureau and in the Pleas if same finds ample support in the testimony (Pearson v. Armstrong Cork Co., 6 N.J. Mis. R. 976, 978; 143 A. 449; Mountain Ice Co. v. Durkin, 6 N.J. Mis. R. 1111, 1113; 144 A. 6; affirmed, 105 N.J.L. 636; 147 A. 451; Berlinger v. Medal Silk Co., 113 N.J.L. 476; 174 A. 558; Reis v. Breeze Corp., 129 N.J.L. 138, 141, et seq.; 28 A.2d 304), nevertheless that principle is no bar to the right of this court to reach a result contrary to that reached in the Bureau, or in the Pleas, or both. It is the duty of this court to make an independent determination of the facts and law. R.S. 2:81-8; Lazzio v. Primo Silk Co., 114 N.J.L. 450; 177 A. 251; affirmed, 115 N.J.L. 506; 180 A. 881; Anderson v. Federal Shipbuilding and Dry Dock Co., 118 N.J.L. 55, 56; 191 A. 455; Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 577; 189 A. 662; Stetser v. American Stores Co., 124 N.J.L. 228, 229; 11 A.2d 51; Beerman v. Public Service Coordinated Transport, 123 N.J.L. 479, 481; 9 A.2d 690; Calicchio v. Jersey City Stock Yards Co., 125 N.J.L. 112; 14 A.2d 465. The discharge of our duty leads us to the result that the respondent failed properly to establish that her husband died as the result of an accident which arose out of his employment.
The undisputed facts are that Alfred Richard Brighton was the former husband of the respondent, petitioner below, who has since married one Hromyak on June 3d, 1944. Leave was granted to amend her petition accordingly but no such amendment is made to appear.
Alfred Richard Brighton (hereafter referred to as Brighton) prior to his death on January 22d, 1942, had been employed for about eighteen or nineteen years by prosecutor, Borough of Rumson, a municipal corporation, as its "road supervisor." He was re-employed each year. There is nothing to indicate that prosecutor ever officially defined Brighton's duties. His job, according to the mechanic employed by prosecutor, was "to line up work for the men (about eight in number) and run the place." The place
refers to prosecutor's garage where there were housed, maintained and repaired the seven trucks owned by prosecutor. The place was used both as a garage and as a work shop. The actual maintenance of the trucks and the repair work thereon were the ...