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 (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.' ...