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Lohndorf v. Peper Bros. Paint Co.

Decided: March 20, 1947.

MARY LOHNDORF, APPELLANT,
v.
PEPER BROS. PAINT CO., RESPONDENT



On appeal from the Supreme Court, whose opinion is reported at 134 N.J.L. 156.

For the appellant, Ward & Levinthal.

For the respondent, Cox & Walburg and Arthur F. Mead.

PER CURIAM.

The judgment under review herein is affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Oliphant in the Supreme Court.

For affirmance on opinion below -- THE CHIEF JUSTICE, BODINE, COLIE, WACHENFELD, WELLS, FREUND, McLEAN, JJ. 7.

For affirmance on concurring opinion -- DONGES, HEHER, PERSKIE, EASTWOOD, DILL, McGEEHAN, JJ. 6.

For reversal -- None.

HEHER, J. (Concurring.) I concur in the result but not in the reasoning of the opinion of the Supreme Court.

The question is whether there was error in matter of law in the determination of the Supreme Court that appellant had not sustained the burden of proving that her deceased husband died in consequence of an injury by accident which arose out of and in the course of his employment with the respondent company, within the intendment of R.S. 34:15-7. The cause of death was an occlusion of the coronary artery; and it is conceded that there was pre-existing coronary sclerosis. It is (and was) the contention of appellant that the fatal heart attack was the direct result of physical strain and exertion attending the performance of the deceased's labors as a salesman in the small retail paint store of respondent, of which he was also the manager.

In resolving the issue against appellant, the Supreme Court suggests that, if the heart failure was the consequence merely of exertion normally incident to the doing of the master's work, wholly devoid of unusual or extraordinary strain, the fatality is not attributable to an accident in the statutory view. It is said that, to render "an injury compensable there must be an event or happening, beyond the mere employment itself, which brings about the final result or contributes thereto, and without which the injury or death would not have resulted;" and the cases of Hentz v. Janssen Dairy Corp., 122 N.J.L. 494, and Molnar v. American Smelting & Refining Co., 128 Id. 11, were not deemed controlling because in each of those cases the heart strain ensued from "unusually hard labor on the day in question," and the workman "collapsed shortly after his severe efforts."

To sustain an award of compensation under the cited statute, it is requisite that there be an accident causally related to the employment. As stated in the opinion of the Supreme Court, an "accident," in the statutory intendment, is "an

unlooked for mishap" or "untoward event" which is "not expected or designed;" and such is the case where a heart ravaged by disease succumbs to strain or exertion arising from the doing of the master's work, even though it be but a normal incident of the service, in no sense extraordinary, and such as a sound heart could withstand. It is fundamental in the statute that, if strain or exertion attending the rendition of the service aggravates or accelerates the progress of a preexisting physical infirmity or condition due to either trauma or disease, and disability or death ensues therefrom, there is a compensable accident and injury. Such is an untoward event, unintended and unexpected within the concept of the statute. The inquiry is whether the disabling injury or death is causally related to strain or exertion arising from the doing of the master's work. Did the accident come from the disease alone, or did the employment contribute to it? In the cited case of Molnar v. American Smelting & Refining Co., the Supreme Court, in an opinion by Chief Justice Case (127 N.J.L. 118), laid it down that injury ensuing from ordinary or usual exertion attending the doing of the servant's usual work is compensable; and we do not understand that this court, on the affirmance, intended to modify the holding in this ...


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