Augelli v. Rolans Credit Clothing Store

• Decision Date: 18 November 1954
• Docket Number: No. A--687,A--687
• Citation: 33 N.J.Super. 146,109 A.2d 439
• Parties: Pat AUGELLI, Petitioner-Appellant, v. ROLANS CREDIT CLOTHING STORE, Respondent-Appellee. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 146

33 N.J.Super. 146

109 A.2d 439

Pat AUGELLI, Petitioner-Appellant, v. ROLANS CREDIT CLOTHING STORE, Respondent-Appellee.

No. A--687.

Superior Court of New Jersey Appellate Division.

Argued Oct. 25, 1954.

Decided Nov. 18, 1954.

Louis C. Jacobson, Newark, for appellant.

A. Millard Taylor, Camden, for appellee (Carroll, Taylor & Bischoff, Camden, attorneys).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Petitioner suffered injuries during the course of his daily work through an assault and battery. Both the Division of Workmen's Compensation and the County Court denied compensation.

At the outset of our study of the matter, we note that the dismissal of the action, which occurred at the close of the petitioner's case, was grounded in a determination that as a matter of law the claim was not actionable. Therefore in our evaluation of the proof every reasonable inference must be resolved in favor of prima facie compensability. Kelly v. Hackensack Water Co., 10 N.J.Super. 528, 77 A.2d 467 (App.Div.1950).

Augelli was in respondent's employ as a collector, and had been so engaged for about 14 years. His work required him to call at the homes and places of business of his employer's accounts. He used his own automobile in the pursuit of his task at the authorization of the employer, and the expenses incident to such use were paid by the employer.

One Saturday afternoon (Thursday, Friday and Saturday being the important collection days), four or five weeks before the assault in question, Augelli parked his car on a public street in Camden, New Jersey, in front of a business establishment and sent his son, who accompanied him, into the place to make a collection. When the young man returned, Augelli started the car and apparently began to pull out into the street. As he did so a horn was sounded and observation revealed a standing red car which had been moving in the direction he was facing. The car had stopped probably because of Augelli's action in moving away from the curb. On seeing the situation, Augelli waved the car on and proceeded to follow it. The other driver for some reason proceeded very slowly, thus delaying Augelli, who blew his horn a few times. When the cars reached the next traffic light, the driver of the red car got out and came back to petitioner who was still in back of him. Augelli got out also and the other driver said: 'That's my car up there.' To which Augelli replied: 'Well, get in your car and drive.' That ended the conversation.

Four or five weeks later, on May 23, 1953, petitioner in the course of his employment called at the plant of De Media Lime Co. in an effort to make a collection from one of its employees. While he was on a loading platform there looking for the debtor employee, 'a big fellow,' another employee of De Media, unknown to Augelli, but later identified as Robert Belcher, accosted him. This person said, 'Don't you know me?' After a negative answer, this conversation took place:

"Don't you remember Kaighn Avenue?' I says, 'No. I don't know what you are talking about!'

'So he says, 'Don't you have a '51 Mercury?' I said, 'Yes.' And he went on and refreshed my memory.

'He said, 'Don't you remember the red car?' He said, 'Don't you remember something about traffic?' The exact words I can't remember, but he mentioned about the traffic incident.

'Q. But he referred to the Kaighn Avenue incident? A. That's right. And when he said red car and he mentioned about the horn blowing, then I realized what he meant; but I didn't know who he was at that time.

'Q. Did you then recall the incident? A. I did recall it then and I said to him: 'Aw, forget it. I forgot it. You must have had a couple of drinks in you.' That's the exact words I told him.'

Augelli then turned away and started to walk down the platform. Belcher followed and struck him from behind, causing the injuries for which compensation is sought.

The deputy director declared that petitioner's conduct in blowing his horn made him an aggressor and that the subsequent assault was chargeable to that original provocation. He held also that in any event the lapse of four or five weeks between the highway incident and the assault broke the chain of causation and transmuted the conflict into a personal feud.

The County Court concluded that the original dispute was entirely unrelated to the employment and also that the lapse of time made the subsequent assault a personal one.

We have no doubt that if the assault had occurred at the time of the highway affair, the injuries would have been compensable. Such injuries must be considered to have arisen from 'a hazard incident to the use of the highway in the pursuit of the master's business.' Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 448, 25 A.2d 894, 897, 139 A.L.R. 1465 (E. & A. 1942).

Augelli's car was being used at the time in the employer's interest. If the delay caused by the other driver's driving conduct irritated him and prompted the blowing of the horn, that act did not fashion him into an aggressor and take him out of the course or scope of his employment. Nor did the vocal controversy which followed. For as the court said in the Geltman case, supra:

'Hot-tempered controversies respecting the management of motor vehicles on our busy thoroughfares are not at all uncommon. What happened was an accident directly attributable to a risk of the highway to which the employment exposed the victim; and it was therefore related to the employment in the statutory conception.' (128 N.J.L., at page 450, 25 A.2d at page 898).

And see Sanders v. Jarka Corp., 1 N.J. 36, 61 A.2d 641 (1948); Gerard v. American Can Co., 32 N.J.Super. 310, 108 A.2d 293 (App.Div.1954).

Thus we are brought to the more formidable issue in the case, namely, the effect of the passage of four or five weeks between the automobile altercation and the assault. The evidence is clear that the two men did not know each other, did not see each other between the two events, and that the producing cause of the final fracas was the highway wrangle. Does the time interval destroy the employment as a contributory proximate cause of the injury?

The cooling-off period is naturally a circumstance to be considered; but of itself it should not be controlling. See 1 Larson, Workmen's Compensation, § 11.13 (1952). The basic problem remains, whether the employment originated controversy was the cause or a contributory producing cause of the ultimate assault. It is neither reasonable nor consonant with the spirit of the Workmen's Compensation Act to declare unqualifiedly that the more passage of time, with its opportunity for reflection, wipes out the occupational origin and connection and transforms the attack into a personal feud.

Although the time element is a definite factor for consideration, it is secondary to the principal or controlling factor, that is, the relation between the attack and the employment. A contrary view would be unrealistic. As Larson points out (§ 11.13), the victim in the case like the present one has no control over the interval between the two incidents. The control is in the mind of the aggressor. That he nursed a grudge of employment-related origin for an inordinate length of time ought not to militate against recovery by his victim.

In Pearce v. Modern Sand & Gravel Co., 231 Mo.App. 823, 99 S.W.2d 850 (Ct.App.1936), the decedent and his assailant were co-employees. Decedent was made foreman, which the assailant resented because of his longer service in the plant. The testimony indicated also that he held Pearce responsible for his failure to receive sufficient work to maintain his family.

The attacker quit his employment, alleging dissatisfaction with the irregularity of his work. Three or four weeks later he shot and killed Pearce. The death claim was held compensable as resulting from an employment originated enmity stemming from the foremanship of Pearce and not from a personal feud.

Again, in Franklin Coal & Coke Co. v. Industrial Commission, 322 Ill. 23, 152 N.E. 498 (Sup.Ct.1926), petitioner Trott and one Beam were fellow employees in a mine. About six days before the assault, Beam assigned some difficult work to Trott and a violent verbal quarrel ensued. There was never any other trouble between them and according to the record the sole cause of their quarrel and ill feeling toward each other was Trott's accusation that Beam had not given him fair treatment in his designation of work. It appeared also that on the intervening days between the quarrel and the assault they did not speak to each other. Six days later Beam quit his job and shot Trott before leaving the premises.

The Supreme Court of Illinois held that the resulting injury claim was compensable, saying:

'We think the evidence shows clearly that the injury in...