Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D. Ewart, J.A.D. (dissenting).
Appellant borough appeals from the whole of the final judgment entered in the Somerset County Court, Law Division, awarding death compensation to petitioner as the dependent widow of decedent, in her own behalf and in behalf of decedent's other dependents, his two minor children and his father. The Workmen's Compensation Division had previously also found in her favor.
The question on this appeal, as stated by appellant is: Did the death of petitioner's decedent result from an unusual strain or exertion arising out of and in the course of his employment by appellant as a volunteer fireman, so as to entitle her to an award under the Workmen's Compensation Act. The issue so phrased reflects the so-called "heart case" doctrine projected in Lohndorf v. Peper Bros. Paint Co. , 134 N.J.L. 156 (Sup. Ct. 1946), affirmed 135 N.J.L. 352 (E. & A. 1947), and followed since by our highest tribunal, albeit by a divided court where the minority has not failed to express its view in a series of vigorous dissents. The cases are collected in Becker v. City of Union City , 17 N.J. Super. 217, 222 (App. Div. 1952). To these may be added the recent cases of Margolies v. Crawford Clothes , 24 N.J. Super. 598 (App. Div. 1953), and Seiler v. Robinson , 24 N.J. Super. 559
(App. Div. 1953), affirmed by an equally divided court in 13 N.J. 307 (1953); cf. Pitkethly v. City of Paterson , 11 N.J. 331 (1953).
We are bound by precedent and must apply the principles established by the decisions. Those principles were succinctly stated by Judge Jayne in the Becker case (17 N.J. Super. , at pages 222-224), and need not be quoted at length. We adopt his helpful review as a correct summary of the decisional law in its present state.
R.S. 34:15-7 requires that in order to establish a compensable injury by "accident" it must be shown that the alleged accident arose not only in the course of employment, but also out of the employment. The burden of proof is upon the claimant to establish these indispensable elements of her claim petition by a preponderance of the evidence. This may be accomplished by proof of a circumstantial character which preponderates in favor of the tendered hypothesis by supporting a rational inference founded upon a comparative superiority of probabilities according to the common experience of mankind. The claimant must, of course, show that the injury suffered was the proximate result of an accident within the express language of the statute. The proof is not required to eliminate all doubt; it is not a valid defense to show that death could possibly have been the result of natural causes. Probabilities, not possibilities, control the factual conclusion.
An accidental injury, to be compensable, need not be the result of traumatic force. However, an injury, though fatal, suffered in the course of employment but arising solely from natural causes wholly unrelated to an industrial mishap, is not compensable. One of the classes of bodily disabilities normally due to pathological causes is heart failure. Presumptively, heart failure results from natural physiological changes, and in such case our courts have placed upon the claimant the relatively increased burden of proving by a preponderance of the probabilities that the employment was a contributing factor to the disability, without which the alleged accident would not have happened. There has,
accordingly, been imported into the judicial exposition of our compensation law, the doctrine that in order to overcome the inference that a heart failure is due to natural causes, the claimant must produce "evidence of an unusual strain or exertion, event or happening incident to but beyond the mere regular employment itself," to establish satisfactory proof of an "accident" within the meaning of the Workmen's Compensation Act.
One of the tests applied by the heart cases is whether at the time of the mishap the employee was acting in pursuit of his customary and routine duty. As Judge Jayne observed, the logical efficiency of the "routine" duty test "must be somewhat discounted in cases involving those types of employment in which the adjective can be little more descriptive than a generalization, notably in its relevancy to the services of firemen and policemen whose occupations embrace the performance of an unpredictable variety of intermittent and contingent duties." Becker v. City of Union City , 17 N.J. Super. 217, 224.
We come, then, to the basic inquiry in this heart case of whether there was an unusual strain and whether, upon a consideration of all the evidence, the greater weight of the reasonable probabilities produces the conviction that there was a proximate and efficient causal relation between decedent's pursuit of his employment and the unexpected and undesigned attack resulting in his death. An accident, within the meaning of the statute, has been defined as an unlooked-for mishap or untoward event which is not expected or designed, an event happening at a specific time or occasion. Neylon v. Ford Motor Co. , 8 N.J. 586, 588 (1952); Ptak v. General Electric Co. , 13 N.J. Super. 294, 300 (Cty. Ct. 1951), affirmed 16 N.J. Super. 573 (App. Div. 1951).
Appellant conceded at the start of the hearing before the Workmen's Compensation Division that decedent, G. Edward Snoden, was "a volunteer fireman for the Borough of Watchung" and that the provisions of N.J.S.A. 34:15-75, fixing the basis of compensation of such fireman, applied. It may therefore be assumed that the borough inferentially
conceded that the provisions of N.J.S.A. 34:15-43 ("* * * each and every active volunteer fireman doing public fire duty * * * under the control or supervision of any commission, council or any other governing body of any municipality * * * who may be injured in the line of duty shall be compensated under and by virtue of the provisions" of the Workmen's Compensation Act -- for a history of this provision, see Brower v. Franklin Tp. , 119 N.J.L. 417, 422 et seq. (Sup. Ct. 1938)), also applied. Certainly at no time did the borough deny, nor does it now, that such was his status at the time of the happening of the incident which immediately preceded his death. It has, however, consistently maintained that petitioner's proof failed to overcome the presumption that her decedent's death from heart disease was the result of natural causes entirely unrelated to his employment as an active volunteer fireman.
We find no statutory provision which places such a fireman or his dependents in a more favored position than a paid fireman or any other employee, public or private, entitled to the benefits of the act. See McAnney v. Galloway Township , 120 N.J.L. 311, 313 (Sup. Ct. 1938). Accordingly, whatever decisional law has been developed prescribing the proof required to establish a right to compensation of dependents of a deceased employee, including paid firemen (cf. Becker v. City of Union City , 17 N.J. Super. 217 (App. Div. 1952), applies with equal force to the dependents of a deceased active volunteer fireman.
Decedent was 43 years old at the time of his death. He had been a member of the local volunteer fire company for 15 to 20 years, and for the past four years had operated a small gasoline station, assisted by a boy on weekends. The company had acquired a new fire truck a month and a half or so before the incident about to be mentioned, and Snoden was assigned to drive it. After the truck was delivered he became more active than before. He took the apparatus out on trial runs twice a week to show the other firemen ...