Meo v. Commercial Can Corp.

• Decision Date: 03 July 1963
• Docket Number: No. A--250,A--250
• Citation: 80 N.J.Super. 58,192 A.2d 854
• Parties: Fellx MEO, Plaintiff-Respondent, v. COMMERCIAL CAN CORP., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 58

80 N.J.Super. 58

192 A.2d 854

Fellx MEO, Plaintiff-Respondent, v. COMMERCIAL CAN CORP., Respondent-Appellant.

No. A--250.

Superior Court of New Jersey Appellate Division.

Argued June 10, 1963.

Decided July 3, 1963.

Frank Fink, Newark, for appellant (James J. Carroll, Newark, attorney).

Herman M. Wilson, Newark, for respondent (David B. Geltzeiler, Newark, attorney; Herman M. Wilson, Newark, on the brief).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

This is an appeal from a County Court judgment affirming a Workmen's Compensation Division award in favor of petitioner Meo against his employer, Commercial Can Corporation. The County Court opinion appears in 76 N.J.Super. 484, 184 A.2d 891 (1962).

The company concedes that the facts are not in dispute and credibility therefore plays no part in the consideration of the case. Indeed, the company could take no other position because the facts surrounding the accident were established solely through the testimony of Meo and his witnesses. The employer limited its case to the medical testimony of two doctors going to the extent of disability suffered by petitioner. Only the more significant facts need be referred to; a somewhat more detailed account may be found in the cited County Court opinion.

Meo had been Commercial Can's plant superintendent in charge of production for a number of years at a salary of $450 a week. Although the company had three plants--Brooklyn, Newark and Pittsburgh--his almost sole concern was clearly with the Newark plant. Meo was on call 24 hours a day, day and night--as occasion required--so that plant operations might continue uninterrupted. He had multiple duties, executive as well as physical.

The Brooklyn plant went on strike November 15, 1959. On February 1, 1960 some 80 of the 105 employees at the Newark plant, members of a local affiliated with the Teamsters' Union, went out on strike. Meo was ordered by the company president to keep the Newark operation going, and to this end he, among other things, interviewed and hired workers to replace those who had struck. Among the employees who continued to work were five relatives of Meo, including his son-in-law, John Bellomo. Some of the five were union members; others belonged to management. Meo lived in Fairview, N.J., two doors from Bellomo. The company had provided Meo with a car to travel to and from the plant. Bellomo accompanied him on these trips. Meo testified that during the strike he hired some replacement workers at his home, and there were a number of meetings there to plan work schedules.

The strike was a violent one, attended by active, continuous and disorderly picketing at the plant premises. There were as many as 50 or 60 pickets in the morning, a lesser number in the afternoon, and at times there were as many as 100--150 men on the picket line. There were cursing, name-calling, stone-throwing, and efforts to overturn cars attempting to run the gauntlet of the pickets. A number of persons were hurt and had to be taken to the hospital. The Newark police tried to keep order, and the plant was under constant surveillance.

Meo was the target of constant threats. He testified that shortly after the strike started three union delegates came to his office and said that 'if I knew what was good for me that I should close the plant down.' He at once called in the Newark police. Meo said that when he would leave the plant with Bellomo to go home, two police motorcycle escorts would accompany them to the Newark boundary line, almost as far as the New Jersey Turnpike. Twice striking employees attempted to run the company-owned car off the Turnpike.

On one occasion when Meo discussed the strike situation with Commercial Can's president, the latter stated that the Newark plant must be kept open despite any violence, and he would personally attend to anything that happened. Soon after the strike started Meo received a call from the president warning him to be careful, never to leave his home alone, and to ask the Fairview police for protection. Meo got in touch with the Fairview police chief and was provided with the necessary surveillance of his home. He received threatening phone calls at his home practically every night, telling him he had better shut down the plant if he knew what was good for him. A typical call was, 'You dirty so-and-so; what are you trying to do, take bread and butter out of our mouths? We will get you yet. We are going to spill blood along the road.' When his wife answered, the caller would hang up. There was a nightly average of four or five calls, and during the last week or so before he was attacked, he received almost a dozen calls a night.

On the morning of March 30, 1960 Meo arose at about 5:45, dressed and had breakfast, went to the garage, drove the company car out onto the driveway, and then waited for his son-in-law to come over from his home close by so that they could drive to the plant together. A green patch of lawn showing through the snow cover attracted Meo's attention. He got out of the car for a closer look, and as he was looking he heard footsteps, but paid no attention. Suddenly he heard someone say, 'Here's the lousy scab,' or 'Here's that dirty scab.' He remembered nothing further; when he regained consciousness he found himself in the Englewood Hospital. He had suffered a broken jaw, bruises to his back, injuries to his head requiring eight stitches, and the loss of three teeth, in addition to other injuries. He could not identify his assailants. Shortly before the attack his wife happened to look out of the kitchen window and saw three men running by, one with a baseball bat in his hands. She testified that she knew that something was wrong, ran outside and, receiving no answer when she called her husband, then found him lying unconscious in a pool of blood, all battered. She had not seen the faces of the assailants, but said they were dressed in working jackets and that they had run to a car on the side street and driven away. Bellomo arrived on the scene moments later andn found a wooden bat, some 1 1/2 in diameter and 2 long, lying close by Meo. He testified that as he was coming out of his home he noticed three young fellows come around the corner, but paid no particular attention to them at the time. He, too, was unable to identify any of them.

The company, here as below, states the issue to be, simply: 'Does a workman, who is off duty, while leaving his home to go to work, and who is assaulted within the confines of his home, come within the purview of our Compensation Acts?' The matter is incompletely put, for it entirely lacks the frame of reference of the strike and petitioner's responsibilities in the strike setting. It likewise disregards his continuing prior experiences with relation thereto.

One or two preliminary matters should be disposed of before dealing with the core question of whether the injuries which Meo suffered are compensable. In the first place, there is no dispute that an assault may be deemed to be an 'accident' within the Workmen's Compensation Act despite its willful or criminal nature. Cierpial v. Ford Motor Co., 16 N.J. 561, 566, 109 A.2d 666 (1954). Nor does the employer dispute that although Meo's assailants were not identified, an inference may reasonably and logically be drawn from the facts and circumstances that those who attacked him were strikers or men sympathetic to their cause.

The company concedes that Meo's injuries resulted from an accident arising 'out of' his employment, but vigorously disputes that they arose 'in the course of' the employment, and therefore are not compensable. In support of its position it relies heavily upon part of the text appearing in 1 Larson, Workmen's Compensation Law, § 29.21, pp. 447--448 (1952), and 1962 Supp., p. 218 'If a non-striking employee is assaulted by strikers on his way to (Enterprise Foundry Co. v. Industrial Accident Commission, 206 Cal. 562, 275 P. 432 (Sup.Ct.1929)) or from (Lampert v. Siemons, 235 N.Y. 311, 139 N.E. 278 (Ct.App.1923)) work, even if only two blocks from the employment premises (Walsh v. Russeks Fifth Avenue, 266 App.Div. 760, 41 N.Y.S.2d 145 (Sup.Ct.1943)), he is denied compensation protection. Or if he is killed in a gun fight a mile-and-a half from the plant, the same result has been reached, although the strike was the sole occasion for the assault. (Merz v. Industrial Commission, 134 Ohio St. 36, 15 N.E.2d 632 (Sup.Ct.1938)) Even when the employer promises special protection or assumes enlarged responsibility the statutory barrier has remained impermeable. In a New York case (Bonnafoux v. Downtown Athletic Club, 268 N.Y. 657, 198 N.E. 543 (Ct.App.1935), affirming 244 App.Div. 850, 279 N.Y.S. 629 (App.Div.1935)), the employer furnished a detective escort to a nonstriking baker during a city-wide strike. The detective's signal was three rings on the doorbell. One morning when claimant responded to this ring he was met and assaulted by strikers, and lost the sight of one eye. Compensation was denied. And in an English case (Poulton v. Kelsall, (1912) 2 K.B. 131, 81 L.J.K.B. 774, 106 L.T. 522) the employer's express agreement to assume responsibility for injuries to a non-striker was held ineffective to enlarge the compensation rights of a claimant assaulted by strikers seven minutes' walk from the employer's premises. Most extreme of all is a Scottish holding that even a strikebreaker injured by stones thrown at him could not recover compensation. (Murray v. Denholm & Co., 48 Sc.L.R. 896 (1911))'

It will at once be observed that the cases cited to the text, and which we have set out in brackets, relate to a past day when courts generally, as indeed many courts still do, held that assaults occurring outside working hours or away from the place of employment were not compensable. The more modern view has long since broken through the...