I do not subscribe to the view that compensation is not recoverable under the Workmen's Compensation Act (R.S. 34:15-7et seq.) unless there has been an injury attributable to an event or happening "beyond the mere employment itself." An event or happening "beyond the employment would plainly not be an incident of the service; and an accident does not arise out of the employment in the statutory view unless the risk is reasonably incident to the employment. The legislative purpose was to provide for the hazard of accident within the range of the servant's work. A compensable risk may be either an ordinary one, directly connected with the employment, or one extraordinary in character, indirectly connected therewith because of its special nature; but unless the hazard be either the one or the other, the accident is not due to the employment. In either of such events, the happening is imputable to the employment, as one within the service, and not beyond it, and therefore compensable. The critical inquiry is whether the danger is one to which the employee was exposed because of the nature of his employment; if it is, the accident is within the statutory class. Geltman v.Reliable Linen Supply Co., 128 N.J.L. 443 (E. A. 1942).
The distinction between "usual" and "unusual" strains and exertions in classifying compensable and noncompensable hazards of employment is illusory, for it necessarily presupposes a standard of exertion, varying in every trade and occupation. It is an impracticable rule plainly at odds with the statutory concept of an accident bearing a causal relation to the employment. Does the rule have reference to an occurrence that is not incidental to the employment, and therefore beyond it? Or does it relate to strain or exertion that is incidental to the employment, but not usual in the doing of the work? If so, how would the degree of exertion be measured? *Page 47 And why should there be a distinction between usual and unusual strains if they are incidental to the employment? Is it not in either case a happening arising out of the employment? Here, for example, the majority of the Appellate Division deemed strain from "very hard labor" as not "an event or happening beyond the mere employment itself," if it was a "usual task in" the employment, and so not compensable, although a condition imputable to the employment alone. If the statutory category includes disabling injury resulting from the direct application of force in the performance of an ordinary service incident to the employment, such, for example, as the loss of a member, on what principle do we exclude an injury ensuing from the pressure of intervening indirect force? In either case, there is an injury traumatic in origin. There can be no difference in this regard between ordinary and extraordinary strain.
This doctrine has introduced into judicial administration a wholly arbitrary classification that is not to be found in the act. The statute was designed to afford compensation to the servant who suffers disability by reason of an accident attributable to the employment, or to his next of kin if death ensues; and the Legislature has enjoined a liberal construction to serve that end. It is immaterial whether the strain be usual or unusual; in either event, it satisfies the statutory definition of accident arising out of the employment. Great exertion may on occasion be required in the performance of duty incident to the employment. For example, a fireman hurriedly ascending a ladder with a heavy hose or other implement. And a policeman is ofttimes obliged to summon all his physical powers in the discharge of duty. And yet the happening in neither case was beyond the service, but rather the result of effort in the normal pursuit of the employment, in no sense unusual or extraordinary when the standard and demands of duty are considered. The examples might be multiplied. A rule that differentiates in this regard the usual from the unusual strain is an artificial and unworkable deviation from the interpretation given the basic provision of the the statute from its early days — an interpretation in accord *Page 48 with that given the like clause of its English prototype. What becomes of the rule that legislative acquiescence is to be inferred from long continued judicial exposition of a statute?
But the finding of the majority of the Appellate Division is that the evidence does not establish strain or exertion of any degree as the causative agent of the workmen's death; and, in accordance with the ruling in Grant v. Grant Casket Co.,2 N.J. 15 (1949), this finding of fact is deemed conclusive here.
Ordinarily, the function of the appellate court in the review of a judgment in an action at law is the correction of errors of law, and not the trial of the issue de novo on the record and the evidence returned therewith. Rule 1:2-20 of this court, adopted September 15, 1948, in the exercise of the rule-making power granted by the Constitution of 1947, authorizes the court to make "new or amended findings of fact" on a review of any cause involving issues of fact not determined by the verdict of a jury. This review is not the absolute right of the dissatisfied litigant. The power is purely permissive; and it would seem that its exercise is in the sound discretion of the court to serve the ends of essential justice in the individual case, usually where the findings of fact are palpably erroneous or new evidence is adduced under the court's original jurisdiction conferred by Article VI, section V, paragraph 3 of the Constitution of 1947. The rule enjoins due regard, in the exercise of this function, to the opportunity had by the trier of the facts to judge of the credibility of the witnesses.
There is no occasion to invoke that rule here. The proofs did not convince the Appellate Division, exercising the reviewing power conferred by Rules 3:52-1, 3:81-13, that the fatal seizure was induced by the pressure of strain attending the service; and I am unable to say that this state of non-conviction was the result of plain error in the appraisal of the evidence.
The cardiologists concurred in the view that if intervening strain was the cause of death, there would have been unmistakable symptoms of a cardiac disturbance at the time of or *Page 49 very shortly after the exertion, not longer than twenty minutes, or a half hour at the most. Respondent's cardiologists were of opinion that dissolution was the result of a coronary occlusion following a thrombus suffered in the early morning of the day in question, several hours before the decedent began work, and that if strain had contributed to the fatal attack, symptoms of the condition would have been manifest directly after the effort, for the evidences of coronary insufficiency are definite and immediate. Appellant's cardiologist was convinced that the early morning seizure was merely an anginal spasm and that death came from a myocardial infarction traceable to supervening effort and strain. He conceded that if such was the case, marked evidences of the strain would have been revealed within twenty minutes after its occurrence, one half hour at the outside. The proofs are not clear that there were such "bridging symptoms." The preponderant medical view is that there are immediate demonstrable evidences of strain or effort resulting in cardiac failure.
The deceased workman was afflicted with coronary sclerosis. There is a presumption that disease alone was the cause of death; and a finding that the proofs are not of a countervailing quality cannot be deemed to be contrary to the evidence. The claimant's cardiologist testified that seven of every ten sudden deaths are due to myocardial infarction. I cannot say from the evidence that the fatal seizure was not the climax of the normal progress of disease, the culmination of cardiac failure, but rather the result of strain or effort upon the diseased heart while the workman was in the pursuit of the master's service. Mere possibility is not enough to satisfy the legal standard of proof. The evidence must bring the existence of the requisite causal relationship within the bounds of reasonable inference, or the burden of proof is not sustained. Each case is judged by the particular facts and circumstances and the preponderant medical opinion. The quality of the proofs is determinative.
I join in the opinion of Mr. Justice Case on the remaining questions raised.
*Page 50I concur in the affirmance of the judgment.