Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The plaintiff, Frances McHugh, the widow of John F. McHugh, who died on September 24, 1953, instituted the present action in lieu of the prerogative writ of mandamus to compel the defendant to pay her a pension.
The sole issue before the trial court, and also before us, is whether as the result of the death of her husband, a county detective of the County of Burlington, the plaintiff is entitled to a pension under the applicable statute, R.S. 43:10-25, which provides that:
"The widow of any county detective who shall lose his life in the performance of his duty or shall die from natural causes, shall receive a pension so long as she shall remain unmarried, equal to one-half of the amount of the annual salary of such county detective at the time of his death * * *."
The trial court, sitting without a jury, dismissed the action on the ground that the plaintiff, who has not remarried, did not sustain the burden of proving that her husband's death was either (1) in the performance of his duty, or (2) the result of natural causes.
The facts are these: Several days prior to his death McHugh requested permission from his superior, Chief of Detectives Clinton Zeller, to be relieved of duty at noon on September 23, 1953 to go fishing. On the morning of that day he drove to his office in the Burlington County Court House at Mt. Holly in a county-owned car assigned to him for transportation in connection with his official work, and parked it in a parking lot in the rear of the Elks Home adjoining the Court House. At noon he left with friends in their car for the fishing party. When the group returned to Mt. Holly about 11 P.M. they separated and only McHugh went into the Elks Home. Zeller testified that he saw McHugh there at that time, that McHugh ordered a glass of beer, but did not drink it as he said he had a headache; further, that his color was not good. After about 15 minutes McHugh left for home in the county car which had been parked in
the parking lot. On his way, about five or six blocks from the parking area, he was involved in a head-on collision with another car. By stipulation it was agreed that Henry Jasinski, the driver of the other car, would, if called, testify that he saw McHugh's car approaching him and that it suddenly and without warning swerved first to the right and then to the left, and then collided with his car. McHugh was removed to the Burlington County Hospital where, upon arrival at 12:05 A.M. on September 24, 1953, he was pronounced dead.
The death certificate by the county coroner, Robert C. Smires, received in evidence, states in answer to the question "cause of death" -- "concussion of the brain -- fracture of skull -- auto accident." It also shows an "X" in a box on the printed form indicating that the accident occurred "not while at work." The information on the death certificate was supplied to the coroner in his investigation of the accident by the hospital physician among others. The record discloses that when McHugh arrived at the hospital there was blood running from his right ear and there were visible marks of injury on the right side of his head.
By stipulation, medical evidence was introduced to show that in 1947 McHugh had been treated for a myocardial infarction which was likely to recur. There was testimony that although he was usually conversational and jovial, on the fishing trip he was glum and sullen, held his head in his hands, and spoke in a rather curt manner. It was further stipulated that if decedent's physician were called, he would testify that this behavior on the day preceding his death might be accounted for by the decedent's "subconscious premonition of * * * the heart attack that he probably had just before this automobile accident took place."
The plaintiff argues that McHugh lost his life "in the performance of his duty" since the nature of his employment was such that he was on duty at all times, in that he was always subject to call and that his driving home in the county automobile constituted performance of his duty in the added sense that he was transporting county property
to a place where it would be available in case of an immediate call to duty. Chief Zeller testified that he never considered himself or his men as off duty: that the "tour of duty would run 24 hours a day * * * seven days a week, if necessary," and that McHugh was always subject to call. He further testified that normally the County Detectives' Office is open from 9 A.M. to 4:30 P.M., so that when he gave McHugh the afternoon off McHugh was, although subject to call, off duty until the following morning. He said that when he saw McHugh at the Elks Home late that night he did not give him any duty assignment because "I didn't have any specific instructions to give him." Thus, even though it be conceded that McHugh used the county car in driving to and from any assignment and was always on call, it is obvious that he was not on duty when the accident ...