To sustain an award in this case it was necessary for the petitioner to show by competent proof two things; first, that the deceased sustained an accident arising out of and in the course of his employment, and, secondly, that that accident was the proximate cause of death. *Page 119 There is no question about the accident and none was raised at the hearing. It was denied that the accident was the cause of death; and the question to be decided by the referee was whether the running of a rusty nail into the hand of the deceased brought on a rare disease known as pemphigus which, without question, was the direct cause of death. Three physicians testified that, in their opinion, the wound had caused the pemphigus; a fourth testified that it was entirely probable that it had so caused it. For the respondent, one physician testified positively that the wound had nothing to do with it; and another that there was nothing in the history of the case that would so indicate. The burden of proving that the injury caused the death is on the petitioner. The cases are uniform on this point and it is sufficient to cite Ridgeway v. Real Estate Operating Co.,15 N.J. Mis. R. 477; affirmed, 121 N.J.L. 585.
On the testimony adduced there was evidence to support a finding by the referee that the wound sustained by the decedent was the proximate cause of the resultant pemphigus which, of course, was the cause of death. But the referee did not so find. What he did find was that the wound sustained by the decedent on February 22d 1937, could be the proximate cause of the resultant pemphigus; and on this he undertook to award compensation. On appeal to the Common Pleas that court embodied in its finding the conclusions of the referee substantially in full and said: "The learned referee found that the wound sustained by decedent on February 22d 1937, could be the proximate cause of the resultant pemphigus," and went on to say that he had come to the conclusion that the judgment of the referee should be affirmed. Whether the determination in the Pleas amounts to a finding that the wound was the cause of the pemphigus is more than doubtful, but it is not open to the Common Pleas to make its own finding in a case where the bureau has made none.
In Wolfe Co. v. Piplin, 14 N.J. Mis. R. 146, 148, the court said that "the burden of proof is of course upon the petitioner to show that his injury was caused by the accident. * * * The petitioner must do more than show that the *Page 120 injury `could have been' the result of the accident." This was in turn quoted in Ridgeway v. Real Estate Operating Co., supra, 15 N.J. Mis. R. (at p. 480).
As I view the matter it follows, therefore, that neither the finding in the bureau nor the affirmance in the Pleas satisfies the legal requirement that the accident must have been the actual and not merely the possible cause of the disease and death.
I think the judgment should be reversed.