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Foerster v. Keansburg Fire Department

Decided: June 26, 1964.

MARGARETHE FOERSTER, PETITIONER-RESPONDENT,
v.
KEANSBURG FIRE DEPARTMENT, RESPONDENT-APPELLANT



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

Collester

[84 NJSuper Page 326] Respondent Keansburg Fire Department appeals from a judgment of the County Court affirming an award by the Division of Workmen's Compensation in favor of petitioner Margarethe Foerster, the widow of Fred W. Foerster, a volunteer fireman, who died of a heart attack during Memorial Day services for deceased members of the fire department. The issues involved are, (1) whether decedent was covered by workmen's compensation under the provisions of N.J.S.A. 34:15-43, and (2) whether decedent's death was the result of an accident which arose out of and in the course of his employment within the intendment of the Workmen's Compensation Act.

I.

On the date of his death, decedent had been a member for 31 years of the Keansburg Fire Department, comprised of volunteer firemen. He was 59 years of age and suffered from a heart condition, having had several heart attacks over a period of some years. He had attained the status of an exempt fireman, having complied with the requirements of N.J.S.A. 40:47-53 for the statutory seven-year period. After having attained such status he continued as an active member of the fire department.

Prior to his death his assignment at a fire was to serve as a member of the fire police, directing traffic, keeping people away from the scene of a fire, setting up fire lines and maintaining a watch over a burned building after the fire was secured. During a fire he was subject to the orders of the chief and required to perform such duties as directed. In addition to his firefighting duties he also held the post of lay chaplain of the fire department. During the year 1959 and up to the date of his death on May 30, he had attended 30 out of 67 fires.

On May 30, 1959 the Fire Department of Keansburg held a Memorial Day parade which terminated with a memorial service for deceased members of the fire department at Firemen's Memorial Park, at a monument erected there in honor of deceased firemen. It was decedent's duty as chaplain to recite a prayer at the services after wreaths had been presented and placed at the monument.

Prior to the parade decedent had gone to the firehouse to assist in the preparations for the Memorial Day celebration. While there he assisted another fireman in lifting a couple of half-barrels of beer, each weighing about 250 pounds. He also carried cases of soda, each weighing 60 to 70 pounds, for a distance of 35 to 40 feet. He assisted placing wreaths, weighing 25 to 30 pounds, upon the fire truck. The day was hot and humid, and decedent removed his uniform coat while doing this heavy work. This physical exertion took place during

a one-hour period prior to decedent's departing to participate in the memorial services.

Decedent was driven from the firehouse to the park in an open fire truck. He wore his full fireman's uniform, consisting of a blue serge suit and fireman's hat. At the park decedent carried a wreath from the truck, 20 to 35 feet to the monument, and then took his place behind the monument until it was time for him to say the prayer. The memorial services lasted about 20 minutes or a half hour. After the wreaths had been presented and placed at the monument decedent gave his prayer, which was of two or three minutes duration. During his recitation his face became very red. His wife, who was standing nearby, asked him if he wanted a nitroglycerin pill, which he had in his pocket and was accustomed to taking when he had such attacks. Decedent did not answer, but completed the prayer in a faltering voice. He then collapsed to the ground and died.

II.

Respondent contends that decedent was an "exempt" fireman and as such could not be considered as an "active volunteer fireman" under the provisions of N.J.S.A. 34:15-43. This statute provides, inter alia:

"[E]very active volunteer fireman doing public fire duty * * * under the control or supervision of any commission, council or any other governing body of any municipality, any board of fire commissioners of such municipality * * * who may be injured in line of duty shall be compensated under and by virtue of the ...


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