Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D. Price, S.j.a.d. (dissenting).
This is a workmen's compensation case. Petitioner was denied recovery in the Division. However, on appeal to the County Court his claim was held to be compensable. The County Court's opinion is reported in 66 N.J. Super. 304 (1961). The employer now appeals.
Petitioner was employed by respondent as a construction worker. On October 15, 1959, while on the job, he was assaulted by a coworker named Carmen and injured. The assault has the following background. Petitioner and Carmen were working at a construction site where a small room was used by the workers to change their clothes and leave their belongings while working. The clothing and belongings were hung on nails driven into the walls. The room was also used to store some tools. On October 14, 1959 petitioner brought an umbrella to work and left it in the room. Carmen also left his umbrella there. At the end of the workday, as petitioner was leaving to go home, Carmen said that petitioner had taken the wrong umbrella. However, no argument ensued. The next morning when petitioner came to work Carmen again spoke to him about the umbrella but, as petitioner explained it, "I had no time to argue about the umbrella. I say, 'I put the men to work and we talk later.' I thought he agreed to me and there was no argument at all." Petitioner started to change his clothes when suddenly Carmen picked up a
sledge hammer and struck petitioner in the head and body with it. As a result of the assault petitioner was severely injured. The extent of his disability is not disputed on this appeal.
The sole issue is whether or not petitioner's injuries were the result of an accident arising out of and in the course of his employment.
Appellant contends that the attack was the result of a personal quarrel between petitioner and Carmen and was "disassociated in every respect with any facet of either man's employment."
We do not agree. The assault was by a coemployee; it took place on the job site during working hours; the weapon used was a sledge hammer provided on the job by the employer. The common facilities provided for and used by the workmen for the changing of clothes and the keeping of their personal belongings while on the job were part of the background out of which the assault resulted. It was petitioner's refusal to talk to Carmen about the umbrella at the time, because he had to attend to his work assignment, that apparently triggered the actual attack.
The situation is one of a work-connected assault. Cierpial v. Ford Motor Co. , 16 N.J. 561 (1954); Sanders v. Jarka Corp. , 1 N.J. 36 (1948); Augelli v. Rolans Credit Clothing Store , 33 N.J. Super. 146 (App. Div. 1954); Larson, Workmen's Compensation Law , § 11.00. Cf. Hartford Accident & Indemnity Co. v. Cardillo , 72 App. D.C. 52, 112 F.2d 11 (D.C. Cir. 1940), cert. denied 310 U.S. 649, 60 S. Ct. 1100, 84 L. Ed. 1415 (1940).
We hold that petitioner has established by the preponderance of believable evidence that he suffered injuries by reason of an accident arising out of and in the course of his employment.
PRICE, S.J.A.D. (dissenting).
The uncontradicted proofs in this workmen's compensation case ...