The opinion of the court was delivered by COLIE, J.A.D.
This is a workmen's compensation matter in which the deputy commissioner dismissed the petition and held that the petitioner's decedent had not died as the result of an accident arising out of and in the course of the employment. On appeal, the then Hudson County Court of Common Pleas reversed, holding that petitioner's decedent died of injuries sustained in an accident arising out of and in the course of the employment.
From a study of the evidence we find the following facts: Alexander Moleski, Jr., age 37, was, on May 29, 1947, employed by respondents as a truck driver. On the day in question, he commenced work shortly before 8 A.M. His activities from then until 12:30 included loading his truck with bags of cement, each weighing about 94 pounds and making deliveries
The synopsis of our finding of facts brings this case within the holding in Bernstein Furniture Co. v. Kelly, 114 N.J. Law 500 (Sup. Ct. 1935); affirmed 115 N.J. Law 500 (E. & A. 1935). Mr. Justice Perskie, for the Supreme Court in affirming an award to the dependents of a workman who died of a cardiac failure, said: "The heat, the weight of the furniture, the difficulty in carrying the furniture up the stairs, justify the conclusion that it was an unusual exertion * * *." So, in the instant case the heat, the extraordinary volume of materials delivered and their heavy weights combine to create the unusual exertion which was held in the cited case to justify the finding of an accident arising out of the employment. We note in passing that the holding in Bernstein Furniture Co. v. Kelly, supra, is in nowise weakened by Lohndorf v. Peper Bros. Paint Co., 134 N.J. Law 156 (Sup. Ct. 1946); affirmed 135 N.J. Law 352 (E. & A. 1947).
The judgment under review is affirmed with costs.