On appeal from New Jersey Department of Labor and Industry, Division of Workmen's Compensation.
Malech, J.d.c. (temporarily assigned).
The petitioner in this workmen's compensation case was allowed compensation in the Workmen's Compensation Division. The employer appeals.
The claim petition alleges that the petitioner suffered injuries at his dwelling premises as a result of being assaulted by unknown assailants arising out of a labor dispute. The answer admits nothing and denies that compensation is payable for the reason that: "Respondent denies accident, notice, knowledge or compensable injury * * *."
On this appeal the issue stated by the employer is: "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 employee claims that the assault upon him constitutes an accident arising out of and in the course of his employment.
The issue arises from the following factual background:
Felix Meo, the petitioner, was employed for several years by Commercial Can Corp., the appellant, as its plant super-intendent in charge of production, at a salary of $450 per week. He had multiple duties and was "on call" at all hours
of the day and night when the occasion required, in order to maintain the plant's uninterrupted operation. In that connection he was also required to attend various executive as well as physical duties. In addition to its operations elsewhere, the appellant operated a Newark plant in which the petitioner was mainly employed.
The appellant's Brooklyn plant went on strike November 15, 1959, and its Newark plant went on strike on February 1, 1960. Eighty of its 105 employees at the Newark plant were out on strike. The strikers were members of Local 810 of the Steel, Metal Alloy and Hardware Fabricators and Warehousemen affiliated, with the Teamster's Union. Meo was ordered by his employer to keep the Newark plant in operation despite the strike, and among his other duties he interviewed and hired various persons to replace those who were out on strike. Among some of the employees who continued to work were five relatives of Meo, some of whom were with management and some of whom were union members. Because of his activities in behalf of the management of the appellant corporation, union representatives on a number of occasions argued with him, came to the plant where he was employed, and made threats if he continued his activities in behalf of the management. On one occasion on March 14, 1960 Meo reported to the Newark Police Department the threats of a former employee of the appellant who threatened to shoot him if he continued his activities. On one occasion when representatives of the union were at the plant making threats a member of the Newark Police Department came to the appellant's plant as a result of such threats made arising out of the labor strike. There was obvious open and violent hostility by the strikers towards Meo for his loyalty to his employer during the strike. Active continuous and violent picketing took place around the plant premises. Members of the Newark Police Department patrolled the picket lines to prevent violence. It was a violent type of strike and on many occasions the picketing strikers engaged in stone throwing, name calling and various acts of
violence, calling for physical police intervention. The officers of the appellant corporation were obviously aware of the tense situation, and on one occasion when Meo discussed the strike situation with the president of the appellant corporation, the president stated in substance that the Newark plant must be kept open despite violence to any of its employees, and that he would personally attend to anything that happened so that the employees had nothing to worry about.
On two different occasions when the petitioner was driving home in a company-owned automobile operated by his son-in-law, who was also employed at the Newark plant, two striking employees whom the petitioner recognized tried to run his car off the New Jersey Turnpike. In February 1960 he had received a call from the president of the company warning him to be careful and never to leave his home alone, and to notify the police in the municipality where he resided in order to obtain maximum protection. Meo did in fact report this to Chief Michael Barrett of the Fairview Police Department and was afforded a form of police protection and surveillance of his home. Because of his duties as plant superintendent in charge of production, and because he was required to be available at all ...