For reversal -- Justices Case, Oliphant, Wachenfeld and Burling. For affirmance -- Chief Justice Vanderbilt and Justice Heher. The opinion of the court was delivered by Case, J. Heher, J. (dissenting). Mr. Chief Justice Vanderbilt joins in this opinion.
The question is whether, in this compensation case, there is evidence to support a finding that the workman sustained an accident arising out of and in the course of his employment. He was employed by respondent as a utility man or car loader. In the course of his regular duties, at about noon, he was unloading car seat frames, each weighing about 10 or 15 pounds, from a freight car. He was standing on a pile of frames in the car and was pulling the frames off one at a time and handing them down, in like order, to a fellow worker who was on the floor of the car. As he pulled a frame from the pile he felt a pain in his back. He was doing the same type of work he had been doing for six or seven months prior thereto, and in the same way. The only unusual incident on this occasion was that he experienced the pain. Immediately following the occurrence he went to the first aid dispensary and said, "I don't see how I could have hurt my back because these frames are not heavy"; and at the hearing on his petition for compensation he testified:
"Q. The only thing unusual about this one was that you got a pain in your back as you pulled it? A. That is right, yes.
Q. As far as the operation itself, pulling it, or whatever you were doing, it was nothing different from what you had done for a
long while, you had done it for many months? A. Ever since I went there."
Claim was filed for a sacroiliac sprain, and compensation was allowed. On successive appeals the Middlesex County Court, Law Division, and the Superior Court, Appellate Division, affirmed. The case comes before us on our certification, granted on the workman's petition.
From the inception of the workmen's compensation statute, by the wording of the law and by the construction given by our courts, liability for injury was grounded in accident. The classic definition of the essential incidents to recovery were:
"(a) an accident, (b) arising out of, and (c) in the course of, his (the workman's) employment. Even though the injury arose out of and in the course of the employment, if it be not an 'accident,' within the purview of the act, there can be no recovery. * * * an 'accident' is an unlooked-for mishap or untoward event which is not expected or designed." Bryant, Adm'x. v. Fissell, 84 N.J.L. 72 (Sup. Ct. 1913).
The criteria of an accident have varied, but it has remained of the essence that there should be an accident.
The workman's contention is, in substance, that except in heart cases an injury imputes accident. The contention reduces to an exception a requirement which the statute makes general. The language of the statute is: "Compensation for personal injuries * * * by accident arising out of and in the course of * * * employment." N.J.S.A. 34:15-7. The suggested construction would, obviously, strike out the effect of the words "by accident," whereas it is a cardinal rule of statutory construction that statutes are to be so construed that, if possible, full force and effect shall be given to every sentence, clause and word thereof. Bogert v. Hackensack Water Co., 101 N.J.L. 518 (E. & A. 1925).
The incident of an unusual strain producing injury or death either directly or by being superimposed upon an ailing bodily condition has from the early days of the statute been [8 NJ Page 589] recognized as an accident in the statutory sense. This is true not only of heart cases but of cases involving other bodily organs and parts, as: pressure on parts weakened by cancer, Voorhees v. Smith Schoonmaker Co., 86 N.J.L. 500 (Sup. Ct. 1914); affecting a weakened heart, Winter v. Atkinson-Frizelle Co., 88 N.J.L. 401 (E. & A. 1915); aggravating a duodenal ulcer, Holzwarth v. Hedden, &c., Co., 1 N.J. Misc. 381 (Essex Com. Pleas 1923, not officially reported); an extraordinary strain activating tuberculosis, Graves v. Burns, Lane & Richardson, 10 N.J. Misc. 667 (Sup. Ct. 1932, not officially reported), affirmed on the opinion below, 110 N.J.L. 607 (E. & A. 1933); a severe or twisting sprain aggravating a spinal condition, George T. Newell, Jr., Inc., v. Workmen's Compensation Bureau, 10 N.J. Misc. 405 (Sup. Ct. 1932, not officially reported), affirmed on the opinion below, 110 N.J.L. 25 (E. & A. 1933); unusual physical exertion dilating the heart, Fire Commissioners, &c., v. Morris, 12 N.J. Misc. 153 (Sup. Ct. 1934, not officially reported); prolonged exertion in pulling out great weeds and bushes, lighting up an old arthritic condition, Van Meter v. E.R. Morehouse, Inc., 13 N.J. Misc. 558 (Sup. Ct. 1935, not officially reported); a sprain "because of some unusual effort" aggravating a prior sprain, Marotta v. Fabi, 13 N.J. Misc. 690 (Sup. Ct. 1935, not officially reported); "work of an unusual character" and from it "an unusual exertion" aggravating a heart condition and so causing death, Bernstein Furniture Co. v. Kelly, 114 N.J.L. 500 (Sup. Ct. 1935), affirmed 115 N.J.L. 500 (E. & A. 1935); "if extraordinary strain * * * was the causative agent of the strangulation (hernia) the fatality was the consequence of an accidental injury," Furferi v. Pennsylvania Railroad Co., 117 N.J.L. 508 (E. & A. 1937); lifting "a heavy weight," causing tubercular hemorrhage, held, following Bernstein v. Kelly, supra, an accident, Rekoon v. General Lead Batteries Co., 119 N.J.L. 296 (Sup. Ct. 1938); "unusual exertion" imposed on pre-existing heart condition, causing death, Schneider v. F. & C. Haerter, 119 N.J.L. 548 (Sup. Ct.
1938); "unusual effort" aggravating pre-existing heart condition, causing death, Rother v. Merchants Refrigerating Co., 122 N.J.L. 347 (Sup. Ct. 1939). Our cases for nearly 30 years based recovery upon the extraordinary causation. The requirement was implicit.
In Hentz v. Janssen Dairy Corporation, 121 N.J.L. 160 (1938), the Supreme Court held, factually, that the employee was the driver of a milk truck making retail deliveries at the houses of customers, that his regular duties were exacting and laborious and that although the road was icy and the slope of it steep there was nothing unusual about the work or about the conditions on the day when he was stricken with coronary thrombosis. Consistently with what we conceive to have been the holdings of our cases, the court decided that on those facts the happening was not an accident within the application of the Workmen's Compensation Act. On appeal the Court of Errors and Appeals, 122 N.J.L. 494 (1939), determined that the employment from which the strain resulted was "unusually hard on [that] day," expressed inability to distinguish the case from Voorhees v. Smith Schoonmaker Co., Graves v. Burns, and other cases cited supra, and reversed. Taking the facts as resolved by the Court of Errors and Appeals, namely, that the conditions on the occasion of the heart attack were unusual, there was no distinction to be made from the earlier decisions and the reversal was consistent with them. On that basis there was no occasion for a new pronouncement of law; but the opinion, in making the point, not relevant in the instant case, that if there be an accident the superimposing of that accident upon a weakened organ does not defeat recovery, incorporated the following quotation from Lord Loreburn's statement in Clover, Clayton & Co. v. Hughes, 3 B.W.C.C. 284:
"I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. * * * An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the ...