Dwyer v. Ford Motor Co.

Hanemah, J.

(dissenting). I find myself in disagreement with my colleagues.

At the outset it might be well to repeat some well established principles.

Eor an employee to recover workmen’s compensation he must prove that he sustained an injury caused “by accident *517 arising out of and in the course of his employment.” E. 8. 34:15-1.

An injury is caused by an accident when it is the result of an “unlooked for mishap or untoward event which is not expected or designed.” It is not essential that a physical injury result from an external force or event. Spindler v. Universal Chair Corp., 11 N. J. 34 (1952); Bollinger v. Wagaraw Bldg. Supply Co., 122 N. J. L. 512 (E. & A. 1939); Joy v. Florence Pipe Foundry Co., 64 N. J. Super. 13 (App. Div. 1960).

Neither is it subject to dispute that the employer takes an employee as he finds him, Bober v. Independent Plating Corp., 28 N. J. 160 (1958); Wexler v. Lambrecht Foods, 64 N. J. Super. 489 (App. Div. 1960); Martin v. Snuffy’s Steak House, 46 N. J. Super. 425 (App. Div. 1957), nor that a pre-existing condition aggravated by an employment caused accident is compensable, Ciuba v. Irvington Varnish & Insulator Co., 27 N. J. 127 (1958); Wexler v. Lambrecht Foods, supra; Joy v. Florence Pipe Foundry Co., supra; Bucuk v. Edward A. Zusi Brass Foundry, 49 N. J. Super. 187 (App. Div. 1958).

For an employee to recover on a workmen’s compensation claim he is not required to prove an employment connected accident to a certainty. It is sufficient if the evidence establishes with reasonable probability that the employment caused or proximately contributed to the injury, i. e., here the cardiac episode which caused the employee’s death.

In Ciuba v. Irvington Tarnish & Insulator Co., supra, the court said, at p. 139:

«* * » Circumstantial or presumptive evidence, as a basis for deductive reasoning in the determination of civil issues, is defined as ‘a mere preponderance of probabilities, and, therefore, a sufficient basis for decision.’ Jackson v. Delaware, L. & W. R. R. Co., 111 W. J. L. 487 (E. & A. 1933). It need not have the attribute of certainty, but it must be a presumption well founded in reason and logic; mere guess or conjecture is not a substitute for legal proof. The determinative inquiry is whether the evidence demonstrates the offered hypothesis as a rational inference, that is to say, a presumption *518 grounded in a preponderance of the probabilities according to the common experience of mankind. The accepted standard of persuasion is that the determination be probably based on truth. A bare quantitative preponderance is not enough. The evidence must be such in quality as to lead a reasonably cautious mind to the given conclusion. The measure of the weight of the evidence is ‘the feeling of probability which it engenders.’ Joseph v. Passaic Hospital Association, 26 N. J. 557 (1958).”

In Gilbert v. Gilbert Machine Works, Inc., 122 N. J. L. 533 (Sup. Ct. 1939) the court said, at p. 538:

“To find from these circumstances that the deceased’s demise was the result of an accident arising out of and in the course of his employment is to indulge in pure surmise and conjecture. The law places the burden of proof on the petitioner for compensation; and it is not sustained unless the evidence preponderates in favor of the tendered hypothesis. That must be a rational inference, i. e., based upon a preponderance of the probabilities according to the common experience of mankind. It is required to be a probable or more probable hypothesis with reference to the possibility of the other hypotheses.”

It is presumed that “injury or death from heart disease is the result of natural physiological causes, and the onus is upon the claimant to prove by a preponderance of the probabilities that the employment was a contributing cause of the injury or death.” Ciuba v. Irvington Varnish & Insulator Co., supra.

Heart eases as bases for workmen’s compensation have long presented a troublesome problem not only in this State but in all of the other jurisdictions as well. The difficulty of establishing a guide in such cases has been experienced in practically every jurisdiction. See McNiece, Heart Disease and the Law, Chs. 2, 3 (1961).

In New Jersey, commencing with the landmark case of Bernstein Furniture Co. v. Kelly, 114 N. J. L. 500 (Sup. Ct. 1935), affirmed 115 N. J. L. 500 (E. & A. 1935), we have run the gamut of theories, from “usual strain” to “unusual strain,” and back again to “usual strain.” See McNiece, supra, pp. 381-387. The result has been a confused and confusing picture which has confounded the mem *519 bers of the bench and bar alike. Even since the advent of Ciuba v. Irvington Varnish & Insulator Co., supra, which seemed to put the dispute at rest, great doubt appears to exist among practitioners and the judiciary as to the essential proof required for compensation. A casual consideration of the subject demonstrates the reasons for this obfuscated situation and the difficulties encountered in establishing a firm doctrine applicable to every instance of alleged work-connected cardiac failure. These are, in part, (1) the many varieties of “heart disease,” (2) the distinction between an original onset of an episode where a perfectly healthy heart had theretofore existed and the aggravation of an existing cardiac or systemic condition which eventuates in a disabling or terminal episode, (3) the uncertainty of the medical profession as to the cause of a cardiac episode in the case of an aggravation, i. e., whether the employment effort of the employee finally triggered the seizure or whether it resulted from the inexorable progress of the disease, (4) the doubt whether cardiac cases in any event are proper subjects for workmen’s compensation.

The question with which we are here confronted is one of adjective rather than substantive law—the quantum of proof required to establish the occurrence of an accident, as above defined, which resulted in disablement or death. What the majority is doing in the case sub judice is establishing a rule of evidence—a yardstick against which all cardiac cases must be measured.

The proof of an accident which involves solely an external force or event presents no particular difficulty. Where, however, recovery is sought, as here, for an alleged accident caused other than by an external force or event, a claimant must establish a causal connection between the performance of his employment duties and the injury. The stress or strain of the duties is, in such instance, substituted for the force or event. Thus the proof is far more difficult in a heart case than in one involving a fractured arm. This difficulty assumes even more importance when it is realized *520 that the great preponderance of claims in heart cases arises not in instances where a previously healthy person develops a cardiac condition originating in a work-connected incident but rather in cases where a person with an already existing cardiac impairment is disabled or dies, allegedly from the aggravating or triggering effect which his employment duties work upon the diseased organ. See McNiece, supra, p. 11. Not too much difficulty is experienced with the determination of the question presented in a claim involving an employment-initiated heart injury but much difficulty does arise in connection with the proof of the causal relationship in an aggravation or triggering case because the latter, by its nature, involves a question of conjunctive causes. It seems beyond dispute that a large segment of our population is affected by cardiac disorders of one form or another. In many there is a good possibility that the employment duties provided, only the occasion and not the cause for the episode. See 2 Stroud & Stroud, Diagnosis & Treatment of Cardiovascular Disease, p. 1021 (1957), Levy, Disorders of the Heart & Circulation, pp. 450-452 (1957). Hence the presumption that disability or death resulting from a cardiac incident is the result of natural physiological causes.

Because of the inexorable progress of arteriosclerotic heart disease, a sufferer will eventually die therefrom, unless he dies of something else in the meantime. A prognosis, where a heart attack is imminent, of whether the final climax will occur within seconds, minutes or days, regardless of what the victim is doing, is impossible to make. Without being able to see the myocardium and thus determine its condition and the condition of the coronary arteries, no physician can predict with any degree of certainty whether a given strain, big or small, or whether no strain at all, will precipitate the final attack in the already diseased heart or whether the terminal event, if and when it occurs, will be primarily due to the progressive nature of the disease. See Platz, Coronary Heart Disease, ch. 14 (1957); White, Heart *521 Disease, p. 555 (1951). Thus the cause is cloaked in uncertainty.

It must be remembered that the compensation claimant bears the burden of proving the happening of an accident by a preponderance of the believable evidence. This has been repeated so often as not to require citation of authority. In a heart case a petitioner, as a basic and fundamental essential for recovery, is ordinarily required first to prove by competent medical testimony that there can be a connection between a given stress or strain and the onset of a cardiac episode. It is only against this backdrop that a layman--used in the sense of one without medical training—• can view the specific facts and circumstances of the effort expended by the petitioner to conclude whether an accident occurred. The trier, however, does not reach the position of evaluating the testimony of the petitioner relating to his specific employment duties until he has first determined that it is medically probable for there to exist a causal connection between an employment effort and the particular type cardiac episode involved. Where there are two diametrically opposed respectable and recognized medical doctrines on this subject, it follows that a petitioner to succeed must prove the correctness of the thesis upon which he bottoms his ease by a preponderance of the believable evidence. The trial tribunal as well as the appellate tribunal must accept one theory and reject the other for a claimant to succeed. The court, however, is not required to embrace the petitioner’s proffered hypothesis unless it is satisfied by a fair preponderance of the believable testimony that his experts state the properly applicable doctrine. A claimant may fail not only because the court rejects his proffered theory and embraces that of a defendant but also because when the testimony of his expert is placed in juxtaposition to that of defendant’s, the court cannot conclude that the evidence preponderates in favor of either doctrine.

Initially, then, we are confronted with the problem of adjudging whether a myocardial infarction, which is the *522 conceded cause of death in the instant case, can be medically caused by physical exertion. There is a divergence of opinion in the medical profession on this point. Boas, Cardiac Injury Resulting from Effort or Trauma, p. 2 (1955). Without discussing the merits of the two theories we will, for the sake of this argument, say that the evidence preponderates in favor of that school which recognizes that a causal nexus between work effort and myocardial infarction may exist. This on the basis that the two medical experts who testified in this case adhered, apparently, to that view.

Having ventured this first evidential step there is next presented the question whether, under the particular facts, that causal nexus between the specific employment duties of the claimant and the fatal seizure has been sufficiently demonstrated. As in so many cardiac cases, we have here two intellectually honest experts, each professing a contrary opinion as to the probable medical causal relationship.

My brothers caution that the legal conclusion of cause and effect is dependent upon evidence of medical causation, yet in evaluating the testimony of respondent’s expert they apparently attribute little credence to his assertion that a specific work effort followed in short order by symptoms of coronary attack represents a proper test of causality. As Doctor Boas in his study above cited states, at p. 4:

“Physical strain, if it is to be regarded as the cause of myocardial infarction, must he a specific sudden effort occurring at some particular moment, and it must be followed immediately by symptoms of cardiac disturbance.”

Again, at p. 7, it is asserted:

“An essential criterion of a cause competent to produce cardiac damage must be that it induced immediate symptoms.”

His study also points out at p. 2 that acute coronary insufficiency, when it persists for half an hour or longer, results in necrosis of the heart muscle. The infarct thus created, if extensive enough, will produce death. It is for this reason *523 that caution, is indicated in all cases of death by infarct because—•

“Occasionally a careful history will reveal that the symptoms of myocardial infarction actually commenced before the man went to work, and were only accentuated and brought to light when he started to work. * * * Under such circumstances the infarction cannot be attributed to a strain occurring at work.” Id., at p. 7.

Evidence in the instant case indicates that Dwyer suffered an acute attack of coronary insufficiency on Sunday, an attack which, if not in active progress, was still affecting him when he went to work on Tuesday. The probability is very real, then, that the infarct commenced to form as a result of the acute attack of spontaneous nature experienced on Sunday.

It was on this basis that one physician professed his belief that the work effort was not a competent medical causational factor in Dwyer’s death. Such a conclusion, viewed in the context of a pre-existing cardiac attack, has responsible medical support. See Boas, supra, ch. 9, cases 113, 133.

I do not say that in the light of the contradictory testimony of the other physician that the hypothesis above described is the more likely. I quite frankly confess my inability to evaluate the contradictory testimony of the two recognized cardiological authorities to the end that I can say which medical doctrine has been proven by a preponderance of the believable evidence. This is particularly so in the light of the inability of skilled and nationally recognized authorities to agree either on the medical criteria for establishing causation or whether causation can even exist in the type heart episodes here presented. I cannot say that by the application of deductive reasoning to the two theses here involved, the evidence, evaluated according to the common experience of mankind, preponderates in favor of petitioner’s hypothesis. An examination of the reasons and cogency of the respective experts, Stanley Co. of America v. Hercules Powder Co., 29 N. J. Super. 545, 562 (App. Div. 1954), *524 reversed on other grounds 16 N. J. 295 (1954), to me serves merely to place their doctrines in equipoise. My background, experience and education provide me with insufficient knowledge to intelligently assay their respective theses. In all frankness, this same condition persists in many if not all members of the judiciary. The proof of causal connection between employment duties and a cardiac episode is deficient if, as here, the court is obliged to resort to conjecture, speculation, guess or hunch in order to embrace a medical thesis which makes such connection probable. In Ligenza, v. White Foundry Co., Inc., 136 N. J. L. 436 (Sup. Ct. 1948) affirmed 137 N. J. L. 610 (E. & A. 1948), the court said, at pp. 438-440:

“As previously stated, the medical experts are agreed that all of the foregoing conditions existed at the time the case came to trial. They differ violently on the question of whether the Parkinson’s disease, which incidently forms the basis of the greater degree of prosecutor’s disability, is causally related to the accident of December 21, 1944. As characterized by the leaivned court below, ‘Petitioner’s medical experts say “yes,” respondent’s say “no.” ’

We are thus confronted with a factual question sought to be established by testimony that, to say the least, is highly speculative and conjectural. It is axiomatic that disability suffered in the course of employment, arising from natural causes unrelated to an industrial mishap, is not compensable. To merit that classification, it must be the proximate result of an accident within the statutory sense (Macho v. Raritan Valley Farms, Inc., 131 N. J. L. 283; 35 A. (2d) 872), or as has been stated, the burden is upon the petitioner to prove that the injury was a result of an accident arising out of and in the course of his employment. This principle is so well established as to require no citation of authority. Freedman v. Essex Chair Co., 135 N. J. L. 512; 52 A. (2d) 690. An award of compensation cannot rest upon imagination, surmise or conjecture, or upon a choice equally compatible with the evidence. The testimony reveals that prosecutor was unquestionably afflicted with hypertension, arthritis of the spine, an infected oral cavity and a chest infection, as well as arteriosclerosis of an advanced nature. These afflictions may as well be said to have been the competent producing cause of the Parkinson’s Syndrome as well as the traumatic injury to prosecutor’s spine suffered on December 21, 1944. The court cannot speculate as to which of several causes may have produced the injury complained of by an employee. Gilbert v. Gilbert Machine Works, Inc., *525 122 N. J. L. 533; 6 A. (2d) 213. It is said, however, that the Parkinson’s Syndrome with which prosecutor is now afflicted, was precipitated and aggravated by the injury of December 21st, 1944. Be that as it may, the onus still remains upon the injured employee to establish his case by a preponderance of the probabilities according to the experience of mankind. Jones v. Newark Terminal and Transportation Company, 128 N. J. L. 190; 24 A. (2d) 564. We have scanned the testimony in vain and are of the opinion that the prosecutor herein has failed to present sufficient evidence to sustain the burden of proof that the Parkinson’s disease, from which he suffers, is causally connected with the accident of December 21, 1944.”

See Ames v. Sheffield Farms Co., 1 N. J. 11 (1948).

I 'would find, therefore, that the plaintiff has failed to prove the basic essential element of the probability of the happening of an accident by a preponderance of the evidence, and would affirm the Appellate Division.

But aside and apart from the question of adjective law, the conclusion of the majority, in my opinion, works a change in the basic substantive law and expands the Workmen’s Compensation Act beyond the limits intended by the Legislature.

I am mindful of the fact that the Workmen’s Compensation Act is remedial in nature and should be liberally and broadly construed, Ciuba v. Irvington Varnish & Insulator Co., supra; Spindler v. Universal Chair Corp., supra; Bollinger v. Wagaraw Bldg. Supply Co., supra, and that the purpose of the law is “to shoulder on industry the expense incident to the hazards; to lift from the public the burden to support those incapacitated by industry and to ultimately pass on to the consumers * * * of industry such expense.” Morris v. Hermann Forwarding Co., 18 N. J. 195, 197, 198 (1955). See also Renshaw v. U. S. Pipe & Foundry Co., 30 N. J. 458, 465 (1959). However, employers are not insurers of the lives and health of their employees. The Legislature has not decreed that every injury sustained or every death occurring in employment must be compensated by an employer. Mergel v. N. J. Conveyors Corp., 14 N. J. 609 (1954); Kream v. Public Service Coord. Transport, 24 N. J. 432 (1957). Nor is the policy of liberal construction *526 a substitute for the proof required to establish a claim. Bowen v. Olesky, 20 N. J, 520 (1956). Recovery can be had only in those cases arising within the confines of the statute. Sympathy for the workman and his family is no basis upon which to convert the statute into employees’ health insurance, a result which I fear the majority opinion accomplishes. Neither is it a substitute for the required proof. We are extending the Workmen’s Compensation Law beyond its original limits and intention. Such a result must originate by legislative fiat and not by judicial mandate. While the Compensation Act is remedial in its nature, the court should not, by judicial decree, direct compensation contrary to the legislative enactment and intention. Bowen v. Olesky, supra.

1 realize that my reasoning could result in a denial of recovery in many heart cases. It may well be, on the other hand, that the passage of time and the development of medical knowledge will demonstrate that much undeserved compensation will have been paid under the law as viewed by the majority. See, for example, Platz, supra, 341 (case 5).

Additionally, the question of payment of compensation for cardiac disability is of such a nature and so far reaching in its effect as to raise serious doubt as to1 whether it is a fit subject for workmen’s compensation. The problem has been so excellently expressed by Dean McNiece in Heart Disease and the Law (1961) that a quotation of his exact language, even though lengthy, rather than a paraphrase, seems justified. He says, at pp. 110-111:

“A basic issue which underlies much of the controversy surrounding possible solutions to the cardiac problem is whether cardiac disorders and their effects among the working class truly present a question of industrial injury, or whether in reality, they represent a broad public health problem with only a peripheral relationship to workmen’s compensation. Or, to pose the issue somewhat differently, does the cardiac area involve a unique blend of some elements of the typical compensation case and some elements of a broad social phenomenon?

In seeking an answer to this question, one must match heart disease against the traditional principles of compensation law and inquire whether cardiac disability or death should logically be compensated *527 on an industrial basis. When so viewed, it becomes clear, first of all, that heart disease does not readily fit into one of the traditional molds, the occupational disease. There is no satisfactory proof of which the study is aware that some occupations more than others tend to cause heart disease. For this and other reasons, cardiac claimants, as the report elsewhere demonstrates, have argued, almost without exception, that they sustained an accidental injury rather than an occupational disease. The few successful occupational claims involving cardiacs have usually been cases of heart disease as subsidiary to a recognized occupational disease.

When examined from the other possible compensation viewpoint, that of accidental injury, several features distinguish cardiac incidents from many other species of work-connected casualties. While pre-existing disease is not a rarity in other areas of compensation law, its role is particularly significant in cardiac cases. When permanent disability or death results from a cardiac incident the employer is generally held fully responsible even though the work-connected event would not have caused any damage, or at least very little damage, except for the presence of the pre-existing disease—this on the familiar theory that the employer takes the workman as he finds him. Taking the workman as one finds him is probably the correct approach under existing law and precedent. This does not answer the problem, however. The more basic question is whether existing law is adequate to cope with the problems presented by cardiac disorders.

The role of cardiac disease in the United States is highlighted by the fact that advances in other medical fields have all but eliminated a number of formerly serious diseases. As a consequence, the number of maladies which the average person may contract has been reduced, thereby making it possible for heart disease to afflict persons who, years ago, would have fallen victim to other diseases. The increased longevity of the American population naturally leads to an increase in the number affected by degenerative diseases of all kinds, including cardiac disorders. Moreover, improved diagnosis makes it possible to detect cardiac cases which in earlier years might have remained unknown. These factors, among others, have combined to present the machinery of workmen’s compensation with a single disease complex which, from the viewpoint of the population at large, accounts for approximately one out of every two deaths and for a goodly percentage of the disability cases.

The scope of the problem from the standpoint of national health may be gleaned from the following statistics for the year 1957, during which approximately one out of two deaths was caused by arteriosclerosis and hypertension:

Cause op Death

Arteriosclerosis alone: [Number of persons:]

Arteriosclerotic heart disease

(including coronary disease) .............. 453,840

General arteriosclerosis...................... 33,950 487,790

*528

Cardiovascular diseases involving

arteriosclerosis & hypertension:

Vascular lesions affecting the central nervous system (primarily cerebral (brain) thrombosis due to arteriosclerosis, cerebral embolism, cerebral homorrhage) .................. 188,040

Nonrheumatic chronic endocarditis & other myocardial degeneration ............. 61,240 249,280

Hypertension:

Hypertension with heart disease (arteriosclerosis) ........................ 72,540

Hypertension without mention of heart..... 11,170 83,710

Total deaths involving arteriosclerosis and hypertension .......................... 820,780”

And again, at ¶. 112:

“Of course, the quantitative importance for heart disease may not in itself be a sufficient basis for special legal treatment. On the other hand, the staggering fact that one out of every two tvorJcmen may come to the end of his life or the end of his working days because of this disease suggests that the cardiac problem is one differing in kind, rather than in degree, from others faced by the compensation system. Again, the high incidence of permanent total disability and death cases in the cardiac area is a factor which may serve to distinguish it from other quantitatively important diseases or conditions.” (Emphasis supplied)

From a practical viewpoint, it is hardly conceivable that any case will arise where the testimony for the petitioner will not sustain the claim that the work contributed in some material degree to his seizure, especially when it is remembered that, under the law as here enunciated, whenever “the heart has deteriorated to the point that potentially any appreciable degree of exertion carries a danger of precipitating, or so acting upon the condition as to accelerate a fatal attack, if the effort or strain, which in fact precipitates or contributes to the attack, occurs during the course of the employment and as an ordinary or usual incident of the work, the resulting death is compensable.” (Emphasis supplied) And "if the effort or strain, whether great or *529 little, was an incident of the employee’s work and either alone or in combination with disease played a material part in causing, contributing to or accelerating a heart attack, the attack is compensable.” (Emphasis supplied) As I read the majority opinion we have now placed our sanction on a medical doctrine favorable to the petitioner. In effect, it changes the test of the accidental nature or causal connection- of the work-connected effort with the injury from one of probability to one of possibility. This involves more than a question of semantics. There is a distinct difference in the connotation of these words. The difference in concepts is more than a shade or a degree. An employee may now recover for the fortuitous occurrence of a cardiac episode while at work rather than at home, or even upon returning home, if his condition, though not arising from his employment, was so bad that he should have remained a bed patient rather than to have gone to work in the first instance. Thus he can recover where the employment was the occasion rather than the cause. Every employment requires some effort “whether great or little.” Even the bare maintenance of life requires effort by the heart. Thus I am not disposed to say, by the evidence adduced, that the claimant who, before going to work, was already in the throes of the heart seizure which culminated in his death, died as a result of his work effort rather than because of the inexorable progress of the attack. To me it seems indisputable that with the advent of this decision we have engrafted a health insurance feature upon the Compensation Act not only in cardiac but in every disease case.

I am also impressed with the dangers to the workman attendant upon the rule adopted by the majority, broadening the base for recovery. Under this decision both a clerk performing sedentary duties who has an advanced condition of cardiac disease as well as a navvy performing the most physically exhausting labors who has had no prior diseased cardiac history, can recover. Conceivably, recovery may be had for “an effort [no] greater than the stresses and strains *530 of ordinary living,” and for a “mere passive presence at the place of employment.” Whether an employer is a self-insurer or is covered by compensation insurance the increase in disability or death payments from cardiac episodes will affect him financially by requiring additional compensation payments or increased insurance premiums. Industry’s reaction to the added expense in cardiac cases may well be to minimize that expense by refusing to employ an individual with a known cardiac deficiency and to terminate the employment of an employee who has suffered, whether at home or at work, a cardiac episode. The industrial, economic and sociological impact of such action is fraught with danger, especially when it is noted that “one out of every two workmen may come to the end of his life or to the end of his working days” because of cardiac disease. McNiece, supra; White, supra, ch. 23. See also Levy, supra, pp. 1-31, 2 Stroud & Stroud, supra, at p. 1004. The workman who has suffered a cardiac episode even though mild and even though he could still live a useful and productive life, could become totally unemployable. Eor is such a result speculative or remote. It is a presently pressing problem under our existing doctrine of compensation payments for cardiac disability. See Yol. LXXXIV, N. J. L. J. No. 50, p. 11 (1961); Larson’s Workmen’s Compensation Law 567 (1952). The problem may be intensified under the opinion of the majority. The earning capacity of heart diseased employees would then be reduced to the point where it could evaporate. The enforced idleness imposed upon a willing ambitious worker will destroy his income, his dignity and his self-respect while not delaying his terminal episode in the slightest.

I am of the belief that the questions of public policy involved are for the Legislature, whose opportunity by way of public hearing to examine the scientific bases of the doctrinal medical schools of thought as to causation and to evaluate the impact of an extension of compensation is far greater than that of the judiciary. It is for the Legis *531 lature to decide whether to extend the Compensation Act, adopt health insurance legislation or to leave matters in siatu quo ante.

Weintbatjb, C. J., concurring in result.

For reversal—Chief Justice Weintkaub, and Justices Jacobs, Ebancis, Peoctoe, Hall and Schettino—6.

For affirmance—Justice Haneman—1.