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Volek v. Borough of Deal

Decided: March 24, 1964.

JOHN VOLEK, PETITIONER-APPELLANT,
v.
BOROUGH OF DEAL, NEW JERSEY, RESPONDENT-RESPONDENT



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

In his petition for workmen's compensation, petitioner claimed that he had injured his left hand on March 8, 1960, while assisting members of the Deal Fire Department in raising a ladder during their fire-fighting and rescue operations at the Introcaso home in that municipality. He was not an employee of the Borough of Deal, or a member of its fire department. He bases his claim to compensation upon N.J.S.A. 34:15-74 which, by definition in N.J.S.A. 34:15-43, extends the benefits of the act not only to enrolled members of a volunteer fire department or rescue squad, but also to every "authorized worker" who is injured while participating in the fire-fighting or rescue activities.

The Division found that petitioner qualified as such an "authorized worker" and made an award in his favor. The County Court, on appeal, reached the opposite conclusion and dismissed the claim petition. Petitioner appeals from the judgment of the County Court.

N.J.S.A. 34:15-43 provides, so far as pertinent here:

"As used in this section and in section 34:15-74 of this chapter, the term 'authorized worker' shall mean and include, in addition to an active volunteer fireman and an active volunteer first aid or rescue squad worker, any person performing any public fire duty or public first aid or rescue squad duty, as the same are defined in this section, at the request of the chief or acting chief of a fire company or the president or person in charge of a first aid or rescue squad for the time being."

Certain testimony of petitioner is uncontradicted. On March 8, 1960, about 1:40 A.M., he was driving to his home in Deal from his job as a custodian in the Asbury Park High School, when he noticed a house on fire at Norwood and Phillips Avenues, in Deal. He drove forthwith to the firehouse, only two blocks from the scene of the blaze, rang the bell and pounded on the firehouse door to rouse the firemen therein to respond to the fire. The two firemen who were there then drove fire-fighting equipment to the scene, petitioner preceding them there.

The firemen testified that they were roused by telephone call prior to petitioner's arrival at the firehouse. However, it is what happened at the scene of the fire that is crucial in resolving the basic issue herein. We shall assume as true petitioner's uncontradicted and uncorroborated testimony that he was helping a fireman or firemen to raise a ladder to the porte-cochere of the blazing Introcaso home to rescue occupants of the building standing on the roof of the portecochere, when a fireman gave a pull on the ladder and petitioner's left hand was caught and injured. The factual question in dispute is, "Who, if anyone requested or authorized petitioner to participate in raising the ladder?" Petitioner claims that one of the two firemen, who responded from the firehouse and who were the only persons there with him when he was injured, asked him to help with the ladder. He did not know the name of the fireman who asked him to help, and never went to the firehouse or elsewhere thereafter to find out his name. The only description he could give of this fireman was that he was a "big-faced" fellow and "sort of husky built."

Deal has generally a volunteer fire department, composed of 15 active and 30 exempt members. The department has a chief and an assistant chief. Besides the volunteers, there are three paid firemen who drive the rolling equipment. One of the three paid drivers was off-duty on the night of this fire. Therefore, he could not have authorized petitioner to help. The other two paid drivers who did respond and drove fire

equipment to the scene were the elder James J. Reeman, who drove a pumper, and his son James A. Reeman, who drove a fire engine or truck which held ladders. The father is 5' 5" tall and weighs 155 pounds. The son is 6' 1" tall and weighs 185 pounds. The record does not indicate whether either of them would fit petitioner's description. Though petitioner could have gone to the firehouse to identify them there, or could have done so when they appeared at the compensation hearing, he never did, either prior to or at the original hearing or supplemental hearing.

The compensation judge found that petitioner was a credible witness and accepted his version that one of the two firemen had requested him to help. He also interpreted N.J.S.A. 34:15-43 liberally and ruled that, although petitioner admittedly was not authorized by the chief or assistant chief of the fire department to help, the unknown fireman who did make the request was a "person in charge," so as to make the beneficent provisions of this remedial legislation applicable.

However, the compensation judge denied an application by the attorney for the borough for an adjournment of the hearing, in order that he might produce the two paid firemen to rebut petitioner's testimony that one of them had authorized petitioner to help with the ladder. This refusal of an adjournment was deemed erroneous by the County Court and the matter was remanded to the Division to take the testimony of these two firemen, the County Court meanwhile retaining jurisdiction. Thereupon, there was a ...


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