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Vogt v. Borough of Belmar

Decided: January 11, 1954.

FRANCIS A. VOGT, JR., BY HIS NEXT FRIEND, FRANCIS A. VOGT, SR., PETITIONER-APPELLANT,
v.
BOROUGH OF BELMAR, DEFENDANT-RESPONDENT



On certified appeal from the Appellate Division of the Superior Court.

For reversal -- Justices Heher, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant and Wachenfeld. The opinion of the court was delivered by Heher, J.

Heher

[14 NJ Page 197] On May 22, 1950, appellant suffered personal injury under circumstances that concededly would entitle him to compensation under the State Workmen's Compensation Act of 1911, as amended, R.S. 34:15-7 et seq., if at

the time of the mishap he bore to the defendant Borough of Belmar the relationship contemplated by section 43 of the act, as amended by c. 430 of the Session Laws of 1948, N.J.S.A. 34:15-43, providing, inter alia, that with certain exceptions not here pertinent, "each and every active volunteer fireman doing public fire duty and also each and every active volunteer, first aid or rescue squad worker doing public first aid or rescue duty under the control or supervision of any commission, council or any other governing body of any municipality or any board of fire commissioners of such municipality or of any fire district within the State, who may be injured in line of duty" shall be compensated under the act.

By way of a more specific definition of the class, it is further provided that

"Every active volunteer fireman shall be deemed to be doing public fire duty under the control or supervision of any such commission, council, governing body, board of fire commissioners or fire district within the meaning of this section, if such control or supervision is provided for by statute, or if the fire company of which he is a member receives contributions from, or a substantial part of its expenses or equipment are paid for by, the municipality, or board of fire commissioners of the fire district or if such fire company has been or hereafter shall be designated by ordinance as the fire department of the municipality."

The self-same definitive terms are, by another clause, made applicable to first aid and rescue squad workers.

There were later amendments of these provisions, but no contextual changes of significance here. The statutory benefits were extended to "volunteer firemen" doing "public fire duty" under the control or supervision of the board of managers of any state institution, and to "active volunteer firemen" while participating "in any authorized public showing, exhibition, or parade of * * * volunteer firemen." L. 1951, c. 211, p. 757; L. 1952, c. 317, p. 1038.

The cited amendatory act of 1948 also amended section 74 of the Compensation Act, R.S. 34:15-74, to lay upon the enumerated local governing bodies the duty of providing

compensation insurance for "volunteer firemen doing public fire duty and volunteer first aid and emergency squad workers doing public first aid and rescue duty under the control or supervision" of any such local authorities, "within the meaning" of section 43. This insurance coverage was extended to firemen who were members of a first aid or rescue squad created within the fire company of which they were members, or recruited from more than one fire company, "for injuries received while acting in response to any call made upon such squad, for first aid or rescue work, whether such call be made because of a fire or otherwise." This section was amended to include county fire marshals within the insurance category, the insurance to be provided by the board of chosen freeholders. L. 1952, c. 316, p. 1036.

On June 6, 1933, the defendant borough adopted an ordinance providing that "The Union Fire Company No. 1, the Volunteer Hook and Ladder Company No. 1, the Goodwill Hose Company and such other companies as the Mayor and Commissioners may, by resolution, from time to time, designate and approve shall constitute the Fire Department of the Borough." Section 1, Article 1. Persons then members in good standing of the named fire companies were thereby "recognized as members of the Fire Department," provided they signified in writing, within a specified time, their "willingness and ability to conform with the rules and regulations governing" the Department; and "All other members shall be elected to membership and subject to the approval of the Mayor and Commissioners as hereinafter provided." Section 2, Article 1. But there was no subsequent provision relating to "approval" of individual membership except Section 4, Article 2, of which more hereafter. The "applicant for membership to the Fire Department," apart from certain specified personnel qualifications -- e.g., "Be between the ages of 21 years and 35 years" -- shall "Be approved for membership by filing a written application for membership into a recognized Company of the Department which application shall be certified by the Captain of said Company and approved by the Chief of the Department,

before said application shall be voted upon." Section 3, Article 1(7). And then it is provided by Section 4, Article 2, heretofore adverted to, that "Each member shall, upon election be given a membership certificate showing the date of his election to membership, signed by the Mayor, attested by the Borough Clerk and countersigned by the Chief with the corporate seal of the Borough attached, and a badge of membership in the Department to be worn at all times when on duty, which badge shall be the property of the Borough * * *." The companies comprising the department are largely autonomous. Grievances and charges of misconduct are heard within the department; and the department is governed and managed by a board of fire officers consisting of the chief and assistant chiefs, "subject to the approval of the Mayor." Section 4, Articles 5, 6, 7, 8; Section 5. The chief, assistant chiefs "and other officers of the Department shall be elected from within the membership of the fire companies, * * * subject to the approval and confirmation of the Mayor and Commissioners of the Borough"; and a captain, lieutenant and secretary "shall be chosen by each company of the Department from the members of said company." Section 6, Article 1; Section 7, Article 1. But the ownership of "all apparatus, equipment, hose and other property used by the Department shall be vested" in the borough; and the mayor and commissioners "shall have authority to lease or purchase adequate housing facilities for fire apparatus, equipment, supplies and furnishings for the fire department." Section 8, Articles 5, 7. Compensation is provided for the chief, assistant chiefs, and "drivers" of apparatus, ranging from $100 per annum for the chief to $25 per annum for drivers, seemingly hardly more than a token or nominal stipend, considered in relation to the character of the service. Section 9, Article 1.

Volunteer Hook and Ladder Company No. 1 was incorporated February 21, 1894, before the defendant borough came into being. It became a constituent unit of the defendant borough's fire department under the cited ordinance, but its corporate autonomy remained intact save as modified by the

integration. It adopted a new charter on February 21, 1944, and there were amendments on June 12 ensuing. Its 1944 constitution, Article III, sections 1, 2, 3, 6, provides for "three classes of membership: Active, Honorary and Junior." "Active membership" is made available to citizens who are residents of the borough for at least two years, "not under the age of 21 years, * * * after serving six months probation"; and "A Junior member shall be anyone under the age of 21, duly elected to membership," but the "age of entering as a Junior shall be 17 years or over." Upon attaining majority, the junior member becomes "an active member" upon payment of the prescribed initiation fee. The ...


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