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Cuna v. Board of Fire Commissioners

Decided: May 4, 1964.

ROBERT J. CUNA, PETITIONER-APPELLANT,
v.
BOARD OF FIRE COMMISSIONERS, AVENEL, NEW JERSEY, RESPONDENT-RESPONDENT



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justices Hall and Haneman. The opinion of the court was delivered by Schettino, J. Hall, J. (dissenting). Justice Haneman joins in this opinion.

Schettino

[42 NJ Page 293] This is a workmen's compensation case in which a volunteer fireman seeks compensation.

The facts are not in dispute. In early 1959, Robert J. Cuna, the petitioner-appellant, joined the Avenel Fire Company No. 1, a volunteer fire company. Shortly after joining, Cuna was asked by the company's athletic chairman to play on the company's softball team. Cuna stated that although he was not compelled to play on the team, he accepted the offer as "one of [his] duties." The Avenel team participated with six other volunteer fire company teams and one police team in a softball league organized by the Woodbridge Township Recreation Department. League games were open to the public at no charge, and the schedule and results of the games were published in the local and county newspapers. At all games the Avenel players wore softball uniforms with the fire company's legend printed across the front of the shirts. The uniforms, bats, balls, and other equipment used in the games were supplied by the fire company out of its own funds.

On June 10, 1960 in a game between Avenel and Iselin fire companies, Cuna injured his leg while sliding into home plate. For these alleged injuries, he sought compensation under N.J.S.A. 34:15-43.

The Division of Workmen's Compensation rendered a judgment in favor of Cuna both for temporary and permanent disability and for various medical bills. On appeal the Middlesex County Court affirmed, 75 N.J. Super. 152 (1962). It held that N.J.S.A. 34:15-43 encompassed the injury sustained as the result of a "showing" or "exhibition," that it was the Legislature's intent to embrace the activity in which Cuna was engaged, and that recovery could be granted upon the rationale of Complitano v. Steel & Alloy Tank Co., 34 N.J. 300 (1961), i.e., the mutual benefit doctrine. Thereupon, respondent appealed to the Appellate Division which reversed, holding that Complitano did not control because the Legislature intended that "eligibility of volunteer firemen for compensation under N.J.S.A. 34:15-43 be more narrowly confined than that of the ordinary employee." 79 N.J. Super. 264, 267 (1963).

Appellant petitioned for and was granted certification. 41 N.J. 118 (1963).

I.

In holding that the petitioner's injury was not within the coverage intended by the Legislature, the Appellate Division placed some emphasis on the view that today (as well as in the past) volunteer fire companies are primarily social organizations. Whatever may be the actual extent of these social activities is immaterial, for we view that aspect of the volunteer fire company's activities as subordinate to the invaluable public service the volunteer firemen have performed throughout our nation's history.

In early America, there were no paid firemen and the community depended solely on the volunteer to protect it from fire. In New Jersey, for example, a fire company was established in Princeton on February 11, 1788. Prior thereto, there had been in the college among the students an engine and apparatus and an organization to help put out fires. The new organization consisted of "The best men in town." Hageman, History of Princeton (1879), p. 11. The author points out the membership of the company consisted of substantial citizens and that these prominent men -- professors and other professional men -- were not merely honorary but attending members who shared in the duties and offices. (at p. 20) A rule required members -- on pain of being fined -- "to repair to the building on fire when the alarm was given."

References to the activities of other New Jersey volunteer companies are found in Cushing and Sheppard, History of the Counties of Gloucester, Salem and Cumberland (1883), pp. 388-90. And Hageman, in History of Burlington and Mercer Counties (1883), p. 135, refers to the function of "primitive bucket companies" early in the history of the City of Burlington.

George Washington was an enthusiastic and active volunteer fireman during most of his life, Asbury, Ye Olde Fire Laddies (Knopf 1930), pp. 64-82, and Benjamin Franklin was the

cofounder of Philadelphia's first volunteer fire company. Morris, Fires and Firefighters (Little, Brown 1953), pp. 28-30. John Jay, Alexander Hamilton and Aaron Burr were also volunteer firefighters. Ye Olde Fire Laddies, p. 64. See also Dougherty, Fire (G. P. Putnam's Sons 1931) and Holzman, The Romance of Firefighting (Harper 1956), on the history of fire fighting.

Though most big cities now have paid fire departments, the small communities still depend on the volunteer firemen. Although no definitive record exists, the office of the New Jersey League of Municipalities estimates that about 50 municipalities have paid, full-time firemen. We have learned informally from the Secretary of the New Jersey Firemen's Mutual Benefit Association that 65 municipalities have fully or partly paid fire departments. The salary ranges for fulltime firemen (exclusive of some fringe benefits) are from $4,000 to $6,905 for a 48-hour work week.

The office of the New Jersey Volunteer Firemen's Association has a record of 1200 volunteer fire companies, with a membership in each of 25 to 60, thus totaling at least 30,000. The membership includes doctors, lawyers, clergymen, skilled and unskilled workers. These companies protect at least 449 municipalities. An insurance company estimated that in 1956 there were more than 250,000 volunteer firemen in the United States. The Romance of Firefighting, supra, at p. 119.

In order to encourage the formation and maintenance of such companies, certain exemptions were granted by the Legislature. In 1826 "An act for the encouragement of Fire Companies" was passed providing "That all persons who now are, or hereafter shall become and continue, actual members of any regular fire company or association, who now are, or hereafter shall be possessed of a fire engine, and which said fire company or association, shall consist of not less than sixteen men, and not more than thirty men, be, and they are hereby exempted from militia duty in time of peace." Acts of the Fifty-First General Assembly of the State of New Jersey, 1826, p. 36.

Chapter 176 of the Laws of 1876 providing for the incorporation of fire companies was supplemented by Chapter 139 of the Laws of 1877, which provided as follows:

"* * * That any person who shall have served seven years as a member of any fire company organized under the act to which this is a supplement, shall be thereafter exempt from serving in the militia in the time of peace or as a juror, in which latter case he shall not be entitled to such exemption, unless he shall have filed in the office of the clerk of the county in which he shall reside, a certificate of such service made by the presiding officer of such company."

Chapter 128 of the Laws of 1880 exempted firemen with seven consecutive years' service from jury duty. Chapter 77 of the Laws of 1903 made consecutive service unnecessary. In 1881 the Legislature passed Chapter 174 of the Laws of 1881 exempting certain firemen from taxation. Present-day statutory benefits provide special licenses for peddling and hawking (N.J.S.A. 45:24-9), tenure benefits (R.S. 40:47-60 et seq.), and exemption from jury duty (N.J.S. 2A:69-2).

These provisions indicate a deliberate recognition by the Legislature of the great benefits conferred upon municipalities by the volunteer fire companies.

II.

We now turn to the relevant portions of N.J.S.A. ...


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