On appeal from the Division of Workmen's Compensation, Department of Labor and Industry.
Pisapia was awarded workmen's compensation and his employer, the City of Newark, appeals.
Pisapia, a timid man five feet four inches tall and 62 years old, had been employed 27 years by the city in its Sanitation Department. His job was to pull garbage cans from houses to the sidewalk, where they were later picked up by trucks. On December 4, 1954, at about 5 A.M., while it was yet dark, he was working alone on Monmouth Street when he
was attacked from the rear, struck over the left eye, knocked down, and robbed of $3. Though bleeding, he continued to work until about 7 A.M., when his foreman came by and, seeing his condition, took him to the police station and then to the city hospital. It was for the results of this attack that he was awarded compensation.
Appellant's first point is that "an assault upon an employee in the course of his employment, by an unknown assailant, for the purpose of robbing the employee of his personal funds, does not arise out of the employment." The appellant therefore contends that the Deputy erred when he held that this case comes within the positional or "but for" doctrine.
After the argument of this case before this court, the Supreme Court handed down its opinion in Howard v. Harwood's Restaurant Co. , 25 N.J. 72 (1957). In that opinion the Supreme Court held that "the positional or 'but for' test has been adopted in this jurisdiction." The opinion then laid down standards for the application of that test. Our task, therefore, is to assay the facts in this case upon those standards.
As Justice Burling said for the court in the Howard case:
"The analysis in each case is a two step process. We must first ascertain whether but for the fact of employment the injury would not have happened. * * * Thus establishing the positional relation of the employment to the injury we must next determine the nature of the risk involved."
The Supreme Court suggested various tests for the first step. It said we may inquire whether the employment "was a necessary antecedent in that the injured employee would not have been where he was had he not been engaged in his appointed task. * * *" Or we may ask "whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere." Or is it "more probably true than not that the injury would not have occurred under the normal
circumstances of every day life which exist outside of the employment. * * *"
Tested by these standards, there seems to be no doubt that the first issue presented by the Howard analysis must be resolved in petitioner's favor. Were Pisapia not at work, it is hardly likely he would have been alone before dawn on this street. More likely, at that hour of a winter's day, but for his employment, this 62-year-old man would have been at home and in bed. He could not leave the street, even if he became nervous or suspicious -- his employment kept him there. Indeed, so conscientious was he that he stayed even after the attack. "His work * * * involved the making of regular rounds, thus affording opportunity * * * to observe his movements and attack from behind." Cole v. I. Lewis Cigar Mfg. Co. , 3 N.J. Super. 157, 160 (App. Div. 1949), affirmed 3 N.J. 9 (1949).
For the second step, the Supreme Court said that risks may be divided into three classes: the obvious "industrial injury," such as fingers getting caught in gears; the "neutral risks," which "may be defined as uncontrollable circumstances which do not originate in the employment environment but which happen to befall the employee during the course of his employment"; and the risks "personal to the claimant," in which "it is the personal proclivities or contacts of the employee which gives rise to the harm. * * * Thus where an employee is attacked during his employment by a person whose motive is that of vengeance stemming from personal contact with the employee, the injury cannot be said to arise out of the employment. Giles v. W.E. Beverage Corp. , 133 N.J.L. 137 (Sup. Ct. 1945), affirmed 134 N.J.L. 234 (E. & A. 1946). * * *" Risks "personal to the claimant" are not compensable; the other two classes are. The city contends that since the assault was for the purpose of robbing the employee, who had no money or property of the employer in his possession, the injury arose out of a risk "personal to the claimant."
The language of the Howard case would seem to put the case at bar in the category of "neutral risks," and so Pisapia
contends. However, says the city, since the facts in the Howard case were quite different from the facts at bar, the general language in that opinion must be read in the context of those facts. That general language, says the city, was not intended to change, but merely to state, the existing law. There were cases decided before the Howard case which dealt with situations precisely like the one at bar and those cases, says the city, settled the law against the petitioner in cases like this, and the Howard case did not change that settled law. Appellant relies principally upon Walther v. American Paper Co. , 89 N.J.L. 732 (E. & A. 1916); Schmoll v. Weisbrod & Hess Brewing Co. , 89 N.J.L. 150 (Sup. Ct. 1916); Giles v. W.E. Beverage Corp., supra , cited in the Howard case; and Beh v. Breeze Corp. , 137 N.J.L. 431 (Sup. Ct. 1948), reversed 2 N.J. 279 (1949).
In the Walther case, Walther was a night watchman. While making his rounds, he was assaulted for the purpose of robbery by a fellow employee who knew he had been paid that day, and he died of his wounds. The court held that his death did not arise out of his employment.
The Walther case is a much distinguished and rarely followed case which probably received its coup de grace in Cole v. I. Lewis Cigar Mfg. Co. , 3 N.J. 9 (1949). After referring to the case disdainfully as "a per curiam affirmance of a per curiam opinion of the former Supreme Court," Chief Justice Vanderbilt pointed out that
"* * * It would seem, however, that the fact that Walther was murdered by a fellow employee intent on robbing him should not under the doctrine of the Sanders case [ Sanders v. Jarka Corporation , 1 N.J. 36 (1948)] have barred a recovery. Nor must it be overlooked that the Walther case was an early decision under the Workmen's Compensation Act, R.S. 34:15-1 et seq., N.J.S.A. , handed down at a time when the act was still being strictly construed here and elsewhere. * * *"
As Judge Nimmo said in Crotty v. Driver-Harris Co. , 45 N.J. Super. 75, 83 (Cty. Ct. 1957), "* * * Chief Justice Vanderbilt in his Cole opinion * * * made it quite evident that the Walther case could not and should
no longer be the prevailing law, even where the assailant's only purpose was to rob the co-employee," and Judge Nimmo so held. But even in its pristine vigor, the Walther case stood only for the proposition that an attack by a fellow employee for reasons personal to the attacker and the victim was not compensable. That principle still stands. What has been rejected is the idea that robbery is "personal."
In the Giles case, supra , Giles was manager of a liquor store in a "tough" section of the city known as the "Texas" section. However, the Supreme Court said there was "no proper evidence * * * to show the ratio of crime with relation to the population of the 'neighborhood' as compared with like populated neighborhoods. * * * There is no basis in the proofs for the condemnation of the people of an entire neighborhood."
About 11:45 P.M., during a change in the shifts of policemen patrolling the beat on which the store was located, and while Giles was in the process of checking the receipts for the day, two men entered the store and immediately, without saying a word, shot and killed Giles. None of the cash was taken. The killers fled and were never apprehended. The Supreme Court said, "There is no proof that the assailants were frightened away. * * * Thus we have a most unfortunate killing of an employee by unknown assailants for no known motive. * * * [which] * * * without more, fails to establish * * * that the accident arose 'out of' the employment." The Court of Errors and Appeals affirmed merely because "the Supreme Court, in the exercise of its fact-finding function, determined * * * that appellants had not sustained the burden of establishing that the death * * * arose out of his employment. * * *"
The Giles case was cited in the Howard case but, significantly, only for the proposition that "where an employee is attacked during his employment by a person whose motive is that of vengeance stemming from personal contact with the employee, the injury cannot be said to arise out of the employment." Obviously, Justice Burling meant to approve only the general principle which he stated, and not the
result reached in the Giles case upon its facts. His language appears to have been carefully chosen to bless the tree, but not the fruit. The cases since the Giles case, and the Howard case itself, indicate that were the self-same facts as appeared in the Giles case to arise today, the result would very likely be different. In any event, the Giles case is authority today for no more than the proposition for which it was cited in the Howard case.
The Giles case cited and followed Schmoll v. Weisbrod & Hess Brewing Co., supra , in which the deceased's duties were to deliver beer and collect money therefor. On a Saturday night he made a delivery in a section of Atlantic City "known to the police department as one where drunkenness, assaults with intent to kill, and murders occurred with greater frequency than in any other part of Atlantic City, and where persons who commit robbery resort." While returning to his wagon after the delivery, he was shot and killed. The court held:
"* * * the testimony utterly fails to show any motive for the attack upon the deceased. The assailant of the deceased was unknown. His motive in making the attack was also unknown. No robbery or attempt at robbery was shown. The person who shot the deceased might have shot him out of revenge for some fancied wrong or by mistake or by accident. There was no proven fact or circumstance before the court below that connected the shooting either directly or indirectly with the employment of the deceased, either as driver or collector."
Obviously, the authority of the Schmoll case has been greatly weakened, if not indeed destroyed, by later cases such as Gargiulo v. Gargiulo , 13 N.J. 8 (1953), and the Howard case, but at its strongest Schmoll , as well as Giles , stood only for the proposition that when the employee was able to prove no more than that he was attacked for an unknown motive, the injury was not compensable. The Giles and Schmoll cases, therefore, have no bearing on the case at bar because in this case we do know the motive of the assailant. It was robbery. The attack was not due, in the words of the Howard case, to "the personal proclivities or
contacts of the employee. * * *" The attacker here had no personal grudge against Pisapia. He would have robbed any other elderly person in that street at that hour, just as the rapist in Giracelli v. Franklin Cleaners & Dyers, Inc. , 132 N.J.L. 590 (Sup. Ct. 1945), would have raped any reasonably feminine woman at that time and place. The robber here was almost as impersonal as the insect in City of North Wildwood v. Cirelli , 129 N.J.L. 302 (Sup. Ct. 1943), affirmed 131 N.J.L. 162 (E. & A. 1944), which would have bitten any person with an equal ...