Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
Petitioner, a volunteer fireman, was awarded workmen's compensation by the Division for an injury sustained while playing softball as a member of a team representing his fire company, Avenel Fire Co. No. 1, in the league organized by the recreation commission of Woodbridge Township. The County Court affirmed, in an opinion reported in 75 N.J. Super. 152 (1962), and the Board of Fire Commissioners of Avenel (Avenel) appeals.
The facts are set forth in sufficient detail in the opinion of the County Court. The sole issue is whether an injury so sustained is covered by N.J.S.A. 34:15-43. Since the resolution of that question turns entirely upon the construction of certain critical words in that statute, it becomes necessary to trace the evolution of the language of the statute.
When the Workmen's Compensation Act was first adopted (L. 1911, c. 95) it did not cover government employees. L. 1913, c. 145, extended the act to such employees (with minor exceptions not material here) and provided that they "shall be compensated under and by virtue of section two * * *" of L. 1911, c. 95. Said section two of L. 1911, c. 95 provided then, as it does now, for the compensation of injuries caused "by accident arising out of and in the course of his employment." (L. 1911, c. 95, p. 136, para. 7)
The Workmen's Compensation Act was first extended to volunteer firemen by L. 1927, c. 127. This was done by amending L. 1913, c. 145 to read, in its pertinent parts, as follows:
"1. Every employee who shall be in the employ of the State, county, municipality * * * and also each and every active volunteer fireman doing public fire duty * * * shall be compensated under and by virtue of section two [of the Workmen's Compensation Act] * * *."
However, no provision was made as to the source of the funds for the payment of such compensation until L. 1928, c. 163. That statute authorized municipalities to provide compensation insurance for volunteer firemen, and provided that "such insurance shall protect such volunteer firemen from loss for injury suffered while engaged in the performance of their duties." This act was supplanted by L. 1931, c. 172, which required every municipality to provide such insurance, and that "[a]ll payments hereunder shall be governed by and be subject to * * *" the Workmen's Compensation Act. But there was added this significant provision: "* * * such insurance shall protect such volunteer firemen from loss by reason of injury or death suffered while engaged in the performance of duty."
Said chapter 172 was approved April 21, 1931. On April 28, 1931 the Legislature adopted L. 1931, c. 355, which amended L. 1927, c. 127 (apparently with the intention of making it conform to said provisions of L. 1931, c. 172) by
inserting, in the clause dealing with volunteer firemen, the words "who may hereafter be injured in line of duty * * *." In R.S. 34:15-74, N.J.S.A., L. 1931, c. 172, was shortened to a single sentence, omitting the "in the line of duty" language, probably because it had been duplicated in L. 1931, c. 355, and carried into R.S. 34:15-43, N.J.S.A.
The effect of these amendments was to make injuries to volunteer firemen compensable only if sustained in line of duty.
The insertion of the words "in the line of duty" was the first departure from the "arising out of and in the course of his employment" formula of L. 1911, c. 95. Injuries "in the line of duty" obviously arise out of and in the course of employment (McAnney v. Galloway Township , 120 N.J.L. 311, 313 (Sup. Ct. 1938)), but it is equally obvious that not all injuries "arising out of and in the course of employment," as those words have been interpreted in the workmen's compensation cases, are sustained in the line of duty. The ordinary employee (including the paid fireman) is frequently awarded compensation for injuries sustained while doing things plainly not in the line of his duty, but which are held to have arisen out of and in the course of his employment. Thus, "in the line of duty" is plainly a narrower classification ...