author: Lehman, J.

text:
    In the Matter of the Claim of Annantonia Perino, Appellant, against Lackawanna Steel Company, Respondent. State Industrial Board, Respondent.
    Workmen’s compensation — master and servant — State Industrial Board without power to change by rule amount of compensation to be paid dependent — rule providing for computation of. payments of compensation as of date of death void as regards awards covering periods already passed — compensation for period accrued may not be regarded as “ future installments ”—erroneous commutation of award to non-resident computed from death of employee.
    1. Aside from the provisions of section 17 of the Workmen’s Compensation Law, providing that where dependents of an injured employee reside in a foreign country “ the Commission may, * * * or upon the application of the insurance carrier, shall, commute all future installments of compensation to be paid to such aliens, by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as determined by the Commission,” the Industrial Commission has no power to award a dependent non-resident any sum as compensation which differs in amount from the sum to which a resident dependent would be entitled. Section 117 of the statute confers no power upon the Commission to change by rule the amount of compensation to be paid to a dependent.
    2. Rule 30 of the Commission, therefore, which provides for the computation of payments of all compensation “as of the date of the death of the injured employee,” in so far as that method of computation of compensation would result in commutation at one-half the commuted amount of any portion of the compensation otherwise due which does not fairly come within the term “ future installments ” as used in the statute, is void and must be disregarded.
    3. The Legislature contemplated that each periodic payment to which the injured employee or a dependent might prove valid claim constitutes an installment of compensation and, by section 17 of the statute, conferred upon the Commission power to commute only such installments as might accrue periodically thereafter. An award which covers a period already passed is itself an adjudication that the right to compensation for that period had already accrued and the amount thereof may not be regarded as “ future installments ” of compensation.
    4. It was error, therefore, for the State Industrial Board, in an award to a dependent non-resident, to provide for commutation of compensation, computed from the death of the injured employee, by modification of an earlier award, after some installments of compensation directed therein had been actually paid.

      Ferino v. Lackawanna Steel Co., 211 App. Div. 218, reversed.
    (Argued October 6, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 6, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law.

      Merritt N. Baker for appellant.
    Section 17 of the Workmen’s Compensation Law authorizes the Commission to commute and halve only such installments of compensation as will mature in the future — not -those which have matured in the past —■ and establishes the date of the award of commutation as the criterion of tense. (Birmingham v. Westinghouse, etc., Co., 180 App. Div. 48.) The adoption of rule 30 was in excess of the powers of the Industrial Board and is void. ( Vil. of Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123; People ex rel. Schultz v. Hamilton, 188 App. Div. 783.)

      Evan Hollister for Lackawanna Steel Company, respondent.
    The modification of the award of December 14, 1923, was required by rule 30 of the State Industrial Board which should be upheld by this court as neither unreasonable nor inconsistent with section 17 of the Workmen’s Compensation Law. (Cons. Laws, ch. 67.)

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for State Industrial Board, respondent.
   Lehman, J.

On June 3, 1920, Joseph Ferino was killed while painting a building owned by his employer. He left him surviving a dependent father and mother residing in Italy. The claim of the father made under the Workmen’s Compensation Law (Cons. Laws, chap. 67) was allowed and an award to him made on November 10, 1922. Before the award was actually made the father had died. Upon proof of that fact this award was rescinded and a new award made to the dependent mother who had also filed a claim after her son’s death. The decision provided that award is hereby made to the mother from the date of death to the date of this hearing (11/26/23) and to be paid in full; future payments to be commuted under section' 17. Money to be paid through the United States Department of State * * *. The employer is directed to pay at once $1,308.61 from the date of death to 11 /26 /23 for lSlfi weeks at $7.21 per week. This department to get the actuarial value of the future payments under section 17.” On January 24, 1924, the State Fund sent to the Secretary of State at Washington, $1,308.61 to be paid to the claimant through the American Consul at Rome. On March 5, 1924, the Industrial Board made a new decision which provided that: “Direction as to commutation of the amount due under section 17 is modified and changed to read that the commutation shall be made under Rule 30 of the Commission * * *. The present value is $734.89 as of 6 /3 /20 assuming that an advanced payment of $1,308.61 was made as of 1 /3 /24.” The claimant has appealed from this decision in so far as it modifies the previous award.

Section 17 of the Workmen’s Compensation Law provides that where dependents of an injured employee reside in a foreign country “ the commission may, * * * or upon the application of the insurance carrier, shall, commute all future installments of compensation to be paid to such aliens, by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as determined by the commission.” Aside from the provisions of this section the Industrial Commission has no power to award a dependent non-resident any sum as compensation which differs in amount from the sum to which a resident dependent would be entitled. While in section 117 of the statute it is provided that “ The Board may adopt reasonable rules consistent with and supplemental to the provisions of this chapter and the labor law,” no power has thereby been conferred upon, or is claimed by the State Industrial Board, to change by rule the amount of compensation to be paid to a dependent as fixed by statute.

Rule 30 of the Commission (referred to in the modified award) provides that “ the actuary shall make his computations as of the date the lump sum is awarded by the Industrial Board or its authorized representative, except that in lump sum settlements under section 17 the computation shall be made as of the date of the death of the injured employee in so far as such computation applies to dependents who were not residents of the United States or of Canada at the time of such death.” Though section 17 of the Workmen’s Compensation Law provides only for the commutation of future installments * * * to be paid to such aliens,” the rule provides for the computation of payments not merely of future installments ” of compensation but of all compensation “ as of the date of the death of the injured employee.” In so far as the method of computation of compensation, as provided in the rule, from the date of the death of the injured employee would result in commutation at one-half the commuted amount of any portion of the compensation otherwise due which does not fairly come within the term future installments ” as used in the statute, the provisions of the rule are void and must be disregarded.

Obviously the Legislature must have intended by the use of the term “ future installments ” to indicate that there .might also be past installments. The award in this case has been sustained in the court below upon the ground that there is no debt or obligation to pay compensation upon a contested claim until award is made and that at the time a debt or obligation arises it can by its nature include only future installments though in fact it may embrace compensation for a period that has elapsed; and, therefore, that at the same time an award is made for compensation dating from the death of an injured employee, the Industrial Commission may commute the entire compensation from the same date. Without passing upon the question whether even under such construction the Commission would be authorized to provide for commutation of compensation computed from the death of the injured employee by modification of an earlier award after some installments of compensation directed therein were actually paid, we have decided that the construction of the Appellate Division unduly restricts the words future installments.” Though obligation to pay an award upon a contested claim becomes enforcible only after the award has been made, liability for compensation becomes fixed when the injury occurs and the Commission thereafter merely determines the facts upon which the conclusion of the existence of the liability must rest. It does not create a debt or obligation; it decides whether an obligation is imposed by law under the particular circumstances proven. Though payment of the compensation may not be enforced before the award, the right to the payment of compensation periodically * * * and in like manner as wages ” exists. (Section 25.) It seems to us clear that the Legislature contemplated that each periodic payment to which the injured employee or a dependent might prove valid claim constitutes an installment of compensation and that by section 17 of the statute it conferred upon the Commission power to commute only such installments as might accrue periodically thereafter. An award which covers a period already passed is itself an adjudication that the right to compensation for that period had already accrued and the amount thereof may not be regarded as “ future installments ” of compensation.

For these reasons the order of the Appellate Division and the award of the Industrial Commission should be reversed, with costs in this court and in the Appellate Division, and proceedings remitted to the Commission to proceed in accordance with this opinion.

Hiscock, Ch. J., Cardozo, Found, McLaughlin, Crane and Andrews, JJ., concur.

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Patrick J. Davern, Respondent, v. American Mutual Liability Insurance Company, Appellant.
    Insurance — contract — false representations — evidence — estoppel — rider to policy of indemnity insurance — misrepresentation made in application for policy a defense to action to recover for loss insured against in rider — uncontradicted evidence that misrepresentation was not made by plaintiff but was inserted in policy by defendant without his knowledge, if properly admitted, destructive of such defense — evidence competent where there was no room for error or misunderstanding — defendant estopped from urging defense based upon its own wrong.
    1. A rider to a policy of indemnity insurance providing that in consideration of an additional premium “ and subject to the terms and conditions of the policy to which this indorsement is attached,” the defendant would indemnify the plaintiff against loss or damage to his own automobile, merely enlarges the scope of the insurance or indemnity provided by the policy. It is part of the same contract, subject to the same conditions, based upon the same application and the declarations made therein are incorporated by reference into the rider. Misrepresentations, therefore, made in the application for the indemnity policy would furnish defense to an action to recover for damage insured against by the rider.
    2. Uncontradicted evidence, however, which shows that in fact such misrepresentation was never made; that the policy was prepared by the defendant entirely upon written information furnished by the plaintiff at its request as a basis for quoting rates upon which it would furnish insurance; that upon receipt of the information it prepared and sent to the plaintiff the policy in suit but inserted therein a statement which the plaintiff never made, and that plaintiff upon receipt of the policy put it away without reading it, if properly admitted, logically destroys the basis of the defense. There can be no misrepresentation where there was no representation and there can be no breach of warranty without warranty.
    3. A contention that the policy recites that it is issued in consideration of the very declaration which the evidence shows was never made and, to that extent, the evidence tends to contradict the written policy and is, therefore, incompetent, cannot be sustained. There was no room for error or misunderstanding and the plaintiff could reasonably rely upon the defendant not inserting representations which were not made and which might affect the validity of the policy. If he did rely upon the defendant sending him a policy based upon those representations and no others upon which the defendant had stated in writing it would issue the policy, the defendant has misled the plaintiff and should be estopped from urging a defense based on its own wrong. (Forward v. Continental Ins. Co., 142 N. Y. 382; Bollard v. N. Y. Life Ins. Co., 98 Mise. Rep. 286; 182 App. Div. 915; 228 N. Y. 521, cited and discussed.)

      Davern v. American Mutual Liability Ins. Co., 214 App. Div. 754, affirmed.
    (Argued October 19, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 11, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Daniel Scanlon for appellant.
    The trial court erred in considering the collision indorsement or rider as a contract separate and complete in itself. It was part of the policy, together with the schedule of declarations. (Scharles v. Hubbard & Co., 74 Misc. Rep. 72; Lancaster v. Southern Ins. Co., 69 S. E. Rep. 214; Cushman v. U. S. Life Ins. Co., 63 N. Y. 404; Kennedy v. St. Lawrence Co. M. Ins. Co., 10 Barb. 285; Jennings v. Chenango Co. M. Ins. Co., 2 Den. 75; Duncan v. Sun Fire Ins. Co., 6 Wend. 488, 494; LeRoy v. Market Fire Ins. Co., 45 N. Y. 80; Hayward v. L. & L. L. & F. Ins. Co., 2 Abb. Ct. App. Dec. 349; Kuh v. British American Assur. Co., 130 App. Div. 38; 195 N. Y. 571.) The plaintiff was chargeable with knowledge of the terms of the policy and must be deemed to have accepted it as written and to have affirmed the declaration as to no prior cancellation or refusal of automobile liability insurance. (New York Life Ins. Co. v. Fletcher, 117 U. S. 519; Danner v. Equitable Life Assur. Soc., 156 App. Div. 562; 215 N. Y. 672; Metzger v. Ætna Ins. Co., 227 N. Y. 411; Quinlan v. P. W.

      Ins. Co., 133 N. Y. 356; Hook v. Michigan Mutual Life Co., 44 Misc. Rep. 478; 139 App. Div. 922; Gillies v. Preferred Accident Ins. Co., 110 Misc. Rep. 489; Enthoven v. American Fidelity Co., 128 N. Y. Supp. 805; 211 N. Y. 561; Pindar v. Resolute Fire Ins. Co., 47 N. Y. 114; Richardson v. Maine Ins. .Co., 46 Maine, 394; Swan v. Watertown F. Ins. Co., 96 Penn. St. 37.) The ¿ability of the parties is measured by the terms of the contract as written, and, therefore, plaintiff, who does not meet one of the material conditions of the policy, cannot recover on it. (Baumann v. Preferred Acc. Ins. Co., 225 N. Y. 480; Gaines v. Fidelity & Casualty Co., 188 N. Y. 411; Stanulevich v. St. Lawrence Life Assn., 228 N. Y. 586; Russell v. Prudential Ins. Co., 176 N. Y. 178; Fletcher v. Bankers Life Ins. Co., 135 App. Div. 295; Alexander v. Germania Fire Ins. Co., 66 N. Y. 464; Pierce v. Empire Ins. Co., 62 Barb. 636; Armour v. Transatlantic Fire Ins. Co., 90 N. Y. 450; Goddard v. Monitor Ins. Co., 108 Mass. 56; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 462; Jeffries v. Life Ins. Co., 22 Wall. 47.)

      George R. Fearon for respondent.
    The policy of insurance issued by the defendant insuring plaintiff against damage to his automobile resulting from collision was not issued by the defendant in reliance upon the so-called representations contained in the purported copy of declarations attached to the liability policy issued by the defendant. (Donley v. Glens Falls Ins. Co., 184 N. Y. 107; Firemen’s Fund Ins. Co. v. Pennant Finance Corp., 207 N. Y. Supp. 702.) The defendant, with knowledge of the fact that other companies had canceled liability policies theretofore issued to the plaintiff, and with knowledge of the fact that other companies had refused to renew or to issue public liability policies to the plaintiff, ratified and confirmed its previous action in issuing the policy involved in this litigation to the defendant and elected to keep said policy in effect until October 10, 1921, and to retain the earned premium to that date. (Hessler v. North River Ins. Co., 211 App. Div. 595.)
   Lehman, J.

The plaintiff received from defendant its policy No. A209193 dated May 11, 1921, whereby the defendant agreed to indemnify him against loss by reason of liability for damages imposed upon him by law because of the ownership, maintenance and /or use ” of a certain automobile. The policy expressly stated that it was made “ in consideration of the premium and the Declaration forming part hereof.” A “ schedule of declarations ” was annexed to the policy and it was stated therein that The Following Declarations are the representations of the Insured and this Policy is issued by the Company relying upon the truth hereof.” The schedule of declarations contained the following words: 12. No claim has ever been made against the Insured for personal injury or property damage caused by any of the Insured’s automobiles except: No exceptions. 13. No company has cancelled or refused to issue or renew automobile liability insurance to Insured except: No exceptions.”

A rider was physically attached to the policy and in express terms was stated to be “ attached to and forming part of Policy No. A209193.” It provided that in consideration of an additional premium of $150.70 and subject to the terms and conditions of the Policy to which this Endorsement is attached ” the defendant would indemnify the plaintiff against loss or damage to his own automobile arising from collision. The automobile owned by the plaintiff and described in the policy of insurance was damaged by collision and the plaintiff has brought this action upon the defendant’s agreement to indemnify him against such damage as embodied in the rider attached to the policy of insurance.

At the trial the most important facts which are decisive of defendant’s liability under its policy were substantially undisputed. Liability is clear unless misrepresentation or breach of warranty by the plaintiff precludes recovery. The evidence shows that before the policy Was issued claim had been made against the plaintiff for damages caused by an automobile which plaintiff at that time owned and that another company had refused to renew automobile liability insurance to the plaintiff. Warranty or representation contained in the schedule of declarations which affirms the contrary is to that extent untrue and gives rise to defendant’s denial of liability under the policy.

At the close of the trial defendant moved for a non-suit and plaintiff moved for the direction of a verdict. The justice presiding at the trial granted the plaintiff’s motion, expressing the opinion that the declarations attached to the policy of indemnity against liability for damages imposed by law were not intended to be incorporated by reference into the rider which embodied the contract of insurance against property loss caused by collision and, therefore, misstatements which might invalidate the policy itself do not affect liability under the rider.

We do not agree with this construction. The parts of the rider which we have quoted above show, we think, that the rider was intended merely to enlarge the scope of the insurance or indemnity provided by the policy. It was part of the same contract, subject to the same conditions, based upon the same application. Liability under the rider depends upon the validity of the contract of which it is a part.

We assume for the purpose of this appeal, without consideration of the general validity of such assumption, that if the plaintiff had made the statements embodied in the declaration misrepresentation would as a matter of law furnish defense to this action. Uncontradicted evidence, admitted over defendant’s objections, shows that in fact such misrepresentation was never made. The policy was not issued as the result of oral application made by the plaintiff. The defendant sent out circulars from its main office which set forth a description of the insurance which defendant offered to supply and which inclosed post cards to be returned to the main office by an applicant for insurance. On each post card was printed a request for rates for particular kinds of insurance to be indicated by the applicant and blanks for answers to printed questions intended to elicit information in regard to the nature of the risk. The plaintiff filled out the blanks for this information and we may note here that the declarations annexed to the policy are substantially a restatement of the information requested by the defendant and furnished by the plaintiff on the post card, except that no information was requested by the defendant or furnished by the plaintiff in regard to claims for damages for previous accidents or cancellation of a policy or refusal to issue or renew a policy by some other company. Upon receipt of the post card the defendant sent the plaintiff a letter quoting the rate at which it would furnish the different kinds of insurance which plaintiff had indicated upon the post card. The letter concluded with the words: “ Please mark with a cross on the enclosed post card the forms of insurance you desire, also the date you wish the policy to become effective. Upon receipt of this information we will issue and forward your policy.” The plaintiff followed the instructions and returned the post card marked as directed. The defendant thereupon mailed the policy and the plaintiff received it and paid the premium demanded. He testified, and upon this appeal we a,re bound to accept this testimony as true, that upon receipt of the policy he put the policy away without reading it.

This testimony established that the plaintiff never made any declaration that was false. The defendant requested certain information as a basis for quoting rates upon which it would furnish insurance. It received the information requested. It then informed the plaintiff it would send a policy of insurance. It sent the plaintiff a policy but it inserted therein a statement which the plaintiff never made. If the unauthorized insertion by defendant of a statement never made by the plaintiff results in giving the defendant the right to urge misrepresentation or breach of warranty as a defense to an action on the policy, then the plaintiff has received from defendant not a policy which would provide the insurance which the defendant offered to furnish in consideration of payment of premium but a policy which from the moment it was issued was subject to repudiation by the insurer. This evidence if properly admitted logically destroys the basis of the defense — for obviously there can be no misrepresentation where there was no representation and there can be no breach of warranty without warranty. On the other hand, the policy recites that it is issued in consideration of the very declaration which the evidence shows was never made and to that extent the evidence tends to contradict the written policy and its competency is, therefore, challenged. In effect the plaintiff urges that defendant may not assert falsity of representation that was never made, and defendant urges that plaintiff may not assert that a representation was in fact not made where the representation is embodied in the written policy.

In the present case, as already stated, no oral representations were made by plaintiff and no negotiations had with any agent of the defendant. When the defendant prepared its policy there was no room for any misunderstanding or mistake on its part as to what representations had been made. The defendant had asked for the information it desired in order to permit it to decide whether it would assume the risk of insuring the plaintiff. It obtained the information it sought and it notified the plaintiff that the information was satisfactory. It took upon itself the task of preparing the policy. Perhaps it might have had, even then, the right to refuse to issue the policy except upon new conditions it might still impose, including the giving of additional information. We assume that the contract was even then not complete and the plaintiff could not compel the defendant to issue nor could the defendant compel the plaintiff to accept a policy if either saw fit to abandon intention previously expressed or tc demand additional condition for which there was no previous stipulation. The contract of insurance, we may assume, became fixed and complete only when the policy was delivered and accepted and the policy embodies the terms of the contract. Offer and acceptance of the policy made its terms binding upon both parties. Negligent failure on the part of the plaintiff to read the contract would not change its binding character. If plaintiff should have read the policy, if the defendant had a right to assume that the plaintiff would read the contract or assented to its terms without reading it, then the apparent assent evidenced by retention of the policy without objection would bind the plaintiff as completely as if every term had been discussed and agreed upon in advance. “ Throughout the formation of contracts it is to be observed that not assent, but what the other party is justified as regarding as assent is essential.” (Williston on Contracts, section 35.) The question in this case is whether the defendant was justified in regarding as assent to all the terms of the policy its retention by the plaintiff without objection or whether on the contrary the plaintiff had the right, without reading it, to rely on the defendant sending a policy which contained only declarations actually made, and the defendant misled the plaintiff into apparent acceptance of a contract containing false affirmations.

Two cases which have been passed upon by this court may furnish illustration of opposite inferences drawn from varying circumstances. In Forward v. Continental Insurance Co. (142 N. Y. 382) the insurance policy contained a warranty or condition which the insurance company knew was untrue when the policy was issued and this court held that the company had either waived the condition or was estopped by the delivery of the policy or the receipt of the premium from asserting the breach of warranty. The principle of that case has been followed in other cases too numerous for citation. On the other hand, in the case of Bollard v. N. Y. Life Insurance Co. (98 Misc. Rep. 286; affd., on opinion below, 182 App. Div. 915; affd., 228 N. Y. 521) the insured was not permitted to show that he had orally made different representations from those contained in the written application annexed to the policy. In that case, however, the oral answers were given to an agent and the insured knew that they were reduced to writing by the agent. He knew further that the answers so reduced to writing were annexed to the policy delivered to him, as required by statute, so that he might have the opportunity to examine the answers which the insurance company claimed he had given before it assumed-the risk. The company was compelled to rely on its agent as to the nature of the representations made. The insured had personal knowledge and under such circumstances the company had the right to rely upon the correctness of the answers inserted in the policy, since, with full knowledge by the insured that opportunity to examine the policy and the representations upon which the company claimed that it was issued was offered the insured for his protection and to enable him to object, the insured chose to accept the policy as correct without examination.

In that case duty was laid upon the insured to examine the policy to detect error or misunderstanding which might reasonably be expected to occur at times. In the present case there was no room for error or misunderstanding. Definite questions were asked in writing and answered in writing direct to the home office of the company. It undertook to prepare the policy without inserting representations that were not made. It might well be found that where there was no room for error the plaintiff could reasonably rely upon the defendant not inserting representations which were not made and which might affect the validity of the policy. If he did rely upon the defendant sending him a policy based upon those representations and no others upon which the defendant had stated in writing it would issue the policy, the defendant has misled the plaintiff and should be estopped from urging a defense based on its own wrong. (See McMaster v. New York Life Insurance Co., 183 U. S. 25.) In view of the rule that upon appeal from a verdict directed after both sides have moved for judgment any question of fact must be determined in favor of the successful party, the defendant has failed to prove any defense and the judgment should be affirmed, with costs.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgment affirmed.


text:
    George S. Abell, Appellant, v. Cornwall Industrial Corporation, Respondent.
    Libel — pleading — evidence — damages — insufficiency of plea in justification — right to compensatory damages does not necessarily imply right to substantial damages — charge made during political fight — admission of incompetent evidence, offered to explain, excuse and justify article, which charges serious moral delinquency not asserted in answer, reversible error — evidence of common report admissible only to rebut inference of malice — error to receive evidence and to permit jury to speculate on charge unjustifiable under the pleadings — under plea in mitigation of damages evidence may be presented to show good faith and honest intention ■—■ damages may not be increased or decreased by evidence of charge not made in article nor asserted in answer.
    1. Where, in an action for libel, the publication complained of, after charging plaintiff with opposition to certain proposed village improvements, further charged that he was the kind of citizen who is a “ curse ” to the community, that he “ has never had the welfare of the village nor anything or anybody at heart ” and that he is a “ narrow minded, unprincipled character,” a plea in justification, which contains no allegation of the truth of the article as a whole but simply alleges that plaintiff did oppose two certain village improvements, was insufficient and the plaintiff had the right to ask the trial justice to charge the jury that he was entitled as matter of law to compensatory damages.
    2. The right as a matter of law to compensatory damages, however, does not necessarily imply a right to substantial damages. Substantial compensatory damages must be founded upon a finding of substantial injury, and a jury may refuse such a finding in a case where it appears that the plaintiff’s good reputation could not have been affected by a charge made under circumstances which deprive it of serious weight.
    3. Where, therefore, the charge was made by a man recognized as a political opponent, in connection with a bitter political fight, and the charge itself was so connected with and evidently based upon difference of opinion, that it might well be said that reasonable men would not take it very seriously, and that the humiliation caused to the plaintiff should not have .been painful, the jury, merely reading the article, might well say that, though unexplained and unjustified, it would tend to subject the plaintiff to chaffing rather than to obloquy or even ridicule.
    4. But where the defendant, in an attempt to explain, excuse and justify the article, offered incompetent evidence whiehiimmeasurably increased the weight and seriousness of the charge and made of what otherwise might reasonably be regarded as a source of amusement rather than contempt a charge of serious moral delinquency, the falsity of which charge plaintiff found himself called upon to show, though its truth was not asserted by proper plea of justification nor supported by competent proof, the admission of such evidence constitutes reversible error.
    5. Where, as a partial defense in mitigation of damages, defendant pleaded that it was commonly reported and believed that plaintiff had misbehaved in certain respects and that the article was published in reliance upon rumor and report, but no attempt was made to plead that plaintiff had in fact misbehaved and that because of such misbehavior the charge in the article was also true and, therefore, justified, evidence of such common report was admissible only for the purpose of rebutting an inference of malice. The truth not being in issue evidence of the truth was irrelevant, and if it had been in issue, common report would have been incompetent to prove it.

      6. It was also error to permit defendant to supplement common report by evidence of complaints made to third persons, by evidence of other hearsay and village gossip not shown to have been reported to defendant or relied upon by it and by evidence from which, it was urged, an inference might be drawn that plaintiff had taken an unconscionable advantage. Such evidence was clearly incompetent and irrelevant and it was error to allow the jury upon such evidence to speculate upon the truth of a charge which, under the pleadings, could not be justified.
    7. Under the plea in mitigation of damages, evidence may be presented to show good faith and honest intention on the part of the defendant, but plaintiff’s damages may not be increased by interjecting a charge into the ease, not made in the article nor asserted in the answer, nor may the damage to which he is otherwise entitled be mitigated by plea and proof that a false report of moral delinquency not set forth in the article was current and believed and acted upon by the defendant without investigation or question.

      Abell v. Cornwall Industrial Corp., 211 App. Div. 811, reversed.
    (Argued October 21, 1925;
    decided November 24, 1925.)
    Appeal by plaintiff, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 2, 1924, unanimously affirming a judgment for nominal damages in favor of plaintiff entered upon a verdict.

      Henry Hirschberg for appellant.
    The trial justice erred in refusing to dismiss the defense of justification. (Daly v. Byrne, 1 Abb. N. C. 150; Fidler v. Delavan, 21 Wend. 57; Patter v. Harper’s Weekly Corp., 93 Misc. Rep. 368; Fero v. Ruscoe, 4 N. Y. 162; Sawyer v. Bennett, 49 N. Y. S. R. 774; Zilver v. Cooper, 37 Misc. Rep. 158; Conners v. Collier, 65 Misc. Rep. 169; Bingham v. Gaynor, 141 App. Div. 301; 203 N. Y. 27; Morley v. Combs, 124 N. Y. Supp. 19; Schiffelin v. Hylan, 205 App. Div. 360; Zavier v. Oliver, 80 App. Div. 292; Young v. Fox, 26 App. Div. 261; Holmes v. Jones, 121 N. Y. 461.) The defense pleaded in mitigation is insufficient in law and should have been dismissed on plaintiff’s motion and the evidence received thereunder was improperly received over plaintiff’s exception. (Hamilton v. Eno, 81 N. Y. 116; Mattice v. Wilcox, 147 N. Y. 624; Ball v. Post, 38 Hun, 11; Wachter v. Quenzer, 29 N. Y. 547; Willover v. Hill, 72 N. Y. 36; Morse v. Press, 63 App. Div. 61; Spomer v. Prosser, 11 N. Y. 347; Bisby v. Shaw, 12 N. Y. 67; Gray v. Brooklyn Union Pub. Co., 35 App. Div. 286; Palmer v. Printing Co., 16 App. Div. 270; Clark v. Fox, 10 App. Div. 514.) The defense of justification being insufficient, it was error for the court to admit any evidence of the truth of the libelous article thereunder. (Dolevin v. Wilder, 34 How. Pr. 488; Palmer v. Matthews, 162 N. Y. 100.)

      Graham Witschief for respondent.
    The trial court did not err in its refusal to dismiss the defense of justification for insufficiency. (Demos v. N. Y. E. J. Pub. Co., 210 N. Y. 13; Cooper v. Rochester Ice Cream Co., 212 N. Y. 341; Bingham v. Gaynor, 203 N. Y. 27.) The defense pleaded in mitigation was sufficient in law and the motion to dismiss such defense was properly denied and the evidence to sustain the defense was properly admitted. (Taylor v. Church, 8 N. Y. 452; Lolly v. Emery, 54 Hun, 517; 151 N. Y. 653; Cameron v. Tribune Association, 55 Hun, 607.)
   Lehman, J.

The defendant published in its newspaper an article urging upon the residents of Cornwall that they should be progressive ” so that their community might advance with the times.” Apparently the editor believed that the beautiful and good acquires greater lure when pictured in contrast with the ugly and evil, and that exhortation to virtue may profitably be supplemented by excoriation of vice; so he chose the plaintiff as the exemplar of the unprogressive in the community and painted him in color and form intended to repel. In no uncertain language he charged the plaintiff with being that horrid kind of person who does not believe in progressiveness.” Indeed, he alleged that his lack of progressiveness was manifested not only by general opposition to “ everything that has been for advancement ” and more particularly to the erection of a high school building aid the purchase of a fire truck, but that on the last occasion it was manifested in so extreme a manner that he “ had a fit when a fire truck was wanted by the people and when the truck was used the first time to extinguish a fire on his premises and became stuck in the mud on leaving, this enterprising citizen gave the boys a laugh.” From the language used in the article inference is clear that the editor felt that the village of Cornwall was cursed ” by the “ kind ” of unprogressive citizen that the plaintiff is charged with being. In even bolder language the editor directly charged against this plaintiff not simply as a member of a class or kind of person, but rather as an individual who exemplifies the evils of his kind; that he has never had the welfare of the village nor anything or anybody at heart ” and that he is a “ narrow-minded, unprincipled character.”

The plaintiff complains that the article is false, libelous, malicious, scandalous and defamatory ” and has asked damages of $25,000. The jury has found that plaintiff is entitled to six cents damages, and the plaintiff not being satisfied with the amount of the verdict has appealed from the judgment in his favor.

The defendant in his answer attempted to set up a defense of justification, a defense of privilege, and a partial defense in mitigation of damages. It is said that the allegations of the answer are insufficient to constitute any of the three attempted defenses. In regard to the attempted defense of privilege, the trial court has so held, and we need give it no further consideration. The verdict of the jury in favor of the plaintiff, even though only for nominal damages, is conclusive that the defendant has failed to justify the publication by establishing its truth. Argument may be made that under such circumstances error, if such error there was, in failing to dismiss the defense, becomes immaterial. Even if upon this appeal we might perhaps conclude that the verdict has rendered the previous ruling inconsequential, we must pass upon the sufficiency of the defense in order that error may be avoided at a new trial which we are compelled to order because of rulings in regard to the admission of evidence which we shall point out hereafter.

The answer in attempted justification of the charge that the plaintiff opposed specific measures which the defendant’s editor claims were “for advancement” re-alleges that he did oppose these measures. In so far as the articles charged the plaintiff with opposition to specific measures, these allegations that he did in fact oppose these measures might be regarded as a sufficient plea of the truth; but these allegations are insufficient to show the truth of any part of the article which goes beyond such rather innocuous charge. The sting of the article lies not in the charge that the plaintiff opposed two specific measures, but rather in the charge that he was the kind of citizen who is a curse ” to the community, that he “ has never had the welfare of the village nor anything or anybody at heart ” and especially that he is a “ narrow-minded, unprincipled character.” It is these charges that the defense must justify by allegations of fact sufficient if proven to show that the charge as a whole is true. Defamatory charge is not justified when it exceeds the truth.

Without attempting to analyze each word and phrase of the attempted plea of justification, it is sufficient to say that the plea contains no allegation of the truth of the article as a whole and the charge contained therein, unless opposition to two specific measures permits, even without other evidence, an inference that the person so opposing is a “ curse ” to the community; a narrow-minded, unprincipled character; ” a person to be pilloried as one who has never had the welfare of the village nor anything or anybody at heart.” Perhaps we may take judicial notice that a large proportion, if not indeed substantially the entire body of loyal citizens in a democracy, consider themselves progressive ” and that in political matters aspersions upon the “ progressiveness ” of others, whether taking the form of a charge of “ radicalism ” or of reactionary and selfish tendencies, may be regarded as of no more substance than a mere .statement of difference of opinion upon the value of proposed changes in existing conditions. Perhaps we may go further and note the tendency of men to consider that those who differ with them on such points are “ narrow-minded.” Such epithets are often bandied about in the heat of political strife or discussion, and only men of peculiarly sensitive nature feel wounded or humiliated by a personal epithet that has been so often applied to men whose judgment has been vindicated by decision of their fellow-citizens at the polls, or even more effectively by the irrefutable logic of subsequent events. If the article complained of is capable of the construction that its intent and meaning is to charge the plaintiff with no more serious foible or fault than that his opposition to the erection of a high school building and to the purchase of a fire engine betrayed a spirit which his opponents regard as unprogressive and narrow-minded, the defendant could perhaps justify the epithets by pleading and proving such comparatively harmless intent and meaning and the facts upon which the editor based the more or less harmless charge.

Apparently the plea under consideration was formulated upon some such theory. After alleging that the plaintiff has always “ fought everything that has been for advancement; he did oppose the building of the high school, he did oppose the purchase of a fire truck and when the truck was used the first time to extinguish a fire on his premises and became stuck in the mud, he did make fun of it and the firemen who had it in charge,” the plea sets forth that “ the plaintiff is narrow-minded and is an unprincipled character within the intent and meaning of the article complained of, that is to say that in opposing generally successive movements for the advancement and improvement of the Village of Cornwall, the plaintiff has by his actions displayed a lack of principle in his attitude upon public questions generally.” We may for the moment assume that an unwillingness on plaintiff’s part to be convinced of the value of a fire truck in fighting fires and an unreasonable and hence 11 narrow-minded ” spirit might reasonably be inferred from evidence that opposition continued even after the purchase of the fire truck was consummated and after the firemen had demonstrated its potential utility by bringing it to plaintiff’s own premises for use in extinguishing a fire there. Though the fact that there it became stuck in the mud may have somewhat impaired the conclusiveness of the demonstration, yet it might well be said that a sense of humor which in the face of such catastrophe caused the plaintiff to make fun of the thwarted and humiliated fire fighters, was misguided and showed an ungenerous spirit. We may for the moment pass, as perhaps merely inadvertent, technical and of slight materiality, the failure of the defendant to plead that the plaintiff’s attitude on such public matters justifies also the statements in the article that the plaintiff was the kind of person who is a “ curse to the community ” and has never had the welfare of the village nor anything or anybody at heart.” The question would even then still remain whether the plaintiff’s attitude on public questions tends to show that he was an unprincipled ” character within the meaning of that term as used in the article. We need not seek from lexicographical authorities exact definition of its usual meaning nor statement of permissible variations of its use. Though we give it the narrowest and least offensive meaning that it could hear under any possible circumstances, it still denotes a charge of moral weakness which transcends mere unprogressiveness ” however strong and stubborn. However liberally we construe the plea of justification, and however narrowly we construe the article, we still may not under the circumstances of this case hold that the words “ unprincipled character ” were used in the article in what we may call a Pickwickian ” sense, and if used in any other sense the plea of justification1 was insufficient and the plaintiff had the right to ask the trial justice to charge the jury that he was entitled as a matter of law to compensatory damages.

Of course, such a right as a matter of law to compensatory damages does not necessarily imply a right to substantial damages. Though the plaintiff has been charged with being an “ unprincipled character,” and that charge has been circulated among his fellow-townsmen, the charge was made by a man recognized as a political opponent, in connection with a bitter political fight, and the charge itself was so connected with, and evidently based upon, difference of opinion, that it might well be said that reasonable men would not take it very seriously, and that the humiliation caused to the plaintiff should not have been painful. Substantial compensatory damages must be founded upon a finding of substantial injury, and a jury may with equal reason refuse such a finding in a case where it appears that the plaintiff’s good reputation could not have been affected by a charge made under circumstances which deprive it of serious weight, as in a case where it appears that the plaintiff’s reputation was already so damaged that the charge, even though serious, could not make that reputation much worse. In the present case, the jury merely reading the article might well say that the article, though unexplained and unjustified, would tend to subject the plaintiff to chaffing rather than to obloquy or even ridicule.

Unfortunately, however, the defendant did apparently attempt to explain, excuse and justify the article by evidence which, though incompetent for the purpose for which it was offered, did immeasurably increase the weight and seriousness of the charge. In the partial defense in mitigation of damages the defendant saw fit to plead that it was commonly reported and believed in the locality where the plaintiff resides and the defendant does business, that the plaintiff does not properly care for his aged father and treats him cruelly. Gossip in regard to this report was set forth and details included which are founded upon purest hearsay, and which there is no need to repeat here. The gist of the partial defense is that the article was published in reliance upon this hodge-podge of gossip, rumor and report. No attempt is made to plead that the plaintiff did in fact maltreat his father and that because 't is true that the plaintiff maltreats his father the charge that the plaintiff is an unprincipled character is also true and, therefore, justified. On the contrary, the previous plea of justification is based upon allegations that the intent and meaning of the article was to confine the charge that plaintiff was an unprincipled ” character to the sense “ that he displayed a lack of principle in his attitude upon public questions generally,” and it is admitted that the charge is false if it is understood as meaning that plaintiff is an unprincipled character in a general sense. The truth not being in issue, evidence of the truth was irrelevant, and if it had been in issue, common report would have been incompetent to prove it. Common report is but hearsay, which lacks even the reliability which may inhere in other hearsay if derived from a source which, under some circumstances, might be regarded as authoritative. Even assuming for the moment that common report was properly pleaded in mitigation, it would be admissible in evidence only for the purpose of rebutting an inference of actual malice which might otherwise be found as a basis for the award of exemplary damages.

In spite of the fact that the defendant had not even attempted to plead the truth of the charge that the plaintiff is an unprincipled character in that his treatment of his father shows a general .lack of principle, the defendant was permitted to supplement common report of plaintiff’s treatment of his father by further evidence of complaints by the father made to third persons of his treatment by plaintiff; by evidence of other hearsay and village gossip not shown to have been reported to defendant or relied upon by it; and by the introduction in evidence of certain deeds of property formerly owned by the father from which, it was urged, inference might be drawn that plaintiff had taken an unconscionable advantage of his father; and upon such evidence the jury was allowed to speculate upon the truth of a charge which under the pleadings could not be justified. Such evidence was clearly incompetent and irrelevant, and through its admission a charge which, otherwise, might reasonably be regarded as a source of amusement rather than contempt became a charge of serious moral delinquency; and the plaintiff found himself called upon to show falsity of this charge, though its truth was not asserted by proper plea of justification nor supported by competent proof. Such error requires a reversal of the judgment.

Since there must be a new trial, we are called upon to determine whether either the plea of justification or the partial defense in mitigation of damages presents any issue upon which evidence may be presented. We have shown that the allegation of actual opposition by the plaintiff to two particular measures is insufficient to justify the charge that plaintiff is an “unprincipled character who has not the welfare of anything or anybody at heart.” This is especially true where the defendant’s editor has admitted on the witness stand that he used these terms having in mind other supposed delinquency on the plaintiff’s part. The plea of justification is, therefore, insufficient. The question of whether the plea in mitigation of damages is sufficient presents greater difficulty.

That plea in effect states that the charge was made in honest reliance upon common report that plaintiff ill-treated his father. Of course, common report of specific wi’ongdoing is not competent evidence of general bad reputation. (Newell on Slander & Libel [4th ed.], § 772; Kennedy v. Gifford, 19 Wend. 296, 298.) If admissible at all, its purpose and effect must be to rebut an inference of actual malice as a basis for the award of punitive damages. The admission of such evidence has been defended upon the theory that it may show ground for suspecting the plaintiff of the offense charged and thus indicating the absence of malice and going in mitigation of damages; ” it has been attacked on the ground that a wise public policy will not regard reliance on rumor as an extenuation. (Wigmore on Evidence [2d ed.], § 74.) In the United States the authorities are in conflict. (Newell on Slander & Libel, § 776, and cases there cited.) No case has been called to our attention in which this court has heretofore passed upon the question.

Argument that public policy should forbid a party who has committed a wrong by publishing a false and defama ■ tory story founded on rumor from increasing the harm by giving new circulation to the rumor in the guise of extenuating his own fault, loses much of its force when we recognize the limited purpose for which in any event the evidence might be received. It may not be used to impeach the plaintiff’s reputation; it may not be used to deprive the plaintiff of reasonable compensation for damage to that reputation. It can serve only to defeat or reduce punitive damages. The plaintiff may, by waiving such damages, render the evidence irrelevant on the remaining issues. If he insists that the defendant should pay punitive damages, the defendant should be permitted to !show that no punishment is due, and that his offense is venial. The plaintiff has the choice of whether the attack. should, be made; complaint as to the weapons used by the defendant to repel the attack comes from him with bad grace. The question then presented should only be whether the weapon used by the defendant properly meets the attack. Does the evidence offered under the plea tend to show good faith and honest intention on the part of the defendant?

Perhaps rumor or common report may be so widespread, so circumstantial, so generally believed and apparently emanating from so respectable a source that belief in the truth of the rumor is not unreasonable, and circulation of the report not inconsistent with good faith. That is not, however, the case here. The publisher rests here on small-town gossip, accepted without question, though investigation might have been made as to its truth. It is circulated at a time when bitter feelings have been aroused by plaintiff’s attitude on political questions. The defendant’s editor cannot even remember the name of any person who told him of the report; yet he makes the report the basis of a charge that plaintiff is an unprincipled character. Circulation by a newspaper under such circumstances of a charge against a political opponent based on such report without investigation may constitute not merely error, but willful wrong. The plea, and the evidence produced thereunder, does not logically lead to inference of absence of malice, if indeed it would not itself justify an inference of actual personal malice. Its effect must be to lead the jury to speculate as to the truth of the report and to lead the parties eventually to litigate its truth, though its truth is not asserted and is in fact irrelevant to any issue raised by the pleadings.

The sole question presented by the pleadings and proof in the case concerns the amount of the damages to which the plaintiff is entitled. The article does not mention ill-treatment by the plaintiff of his father. It was published by a political antagonist and was on its face no more serious than other articles which in a political dispute frequently exceed justifiable limits of fair comment. Vindication by the plaintiff is not required against any charge of ill-treatment of his father, for no .such charge has been made in the article nor asserted in the answer. His damages may not be increased by interjecting such a charge into the case, nor may the damage to which he is otherwise entitled be mitigated by plea and proof that false report of moral delinquency not set forth in the article was current and believed and acted upon by the defendant without investigation or question.

Judgments should be reversed and a new trial granted, with costs to abide event.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgments reversed, etc.


author: Pound, J.

text:
    Pasquale Sarconi, Respondent, v. The One Hundred and Twenty-two West Twenty-sixth Street Corporation, Appellant.
    Negligence — elevators — trial —• charge — appeal — injury-through alleged negligent operation of freight elevator — erroneous instruction to jury that building code rule referring to passenger elevators applied to all elevators — erroneous exclusion of evidence cured by final admittance and instructions to jury — complaint that defendant was deprived of fair trial by improper attitude of trial justice to counsel addressed to discretion of Appellate Division and not re viewable by Court of Appeals — refusal of court to grant motion to withdraw juror discretionary — refusal of trial court to permit counsel to confer with assistant might present legal error — not reviewable in absence of exception — weight to be given unanimous decision of Appellate Division that trial justice kept within bounds of discretion.
    1. In. an action to recover damages for personal injuries, alleged to have been sustained by the plaintiff by reason of the negligent operation of a freight elevator by the defendant, it is prejudicial error for the trial court to read to the jury a building code rule requiring passenger elevator shaft doors or gates to be closed before the car is put in motion and 'to instruct the jury that the rule refers to all elevators within the city.
    2. An erroneous exclusion of evidence is cured by its final admittance and instructions to the jury as requested.
    3. Complaints that errors of law were committed by the trial justice by reason of his alleged improper attitude towards trial counsel in curtailing the examination of witnesses and unnecessarily and repeatedly rebuking and reproving him and that defendant was thereby deprived of a fair trial are addressed to the discretion of the Appellate Division, which has abundant power to reheve the aggrieved party, and are not reviewable by the Court of Appeals.
    4. The refusal of the court to grant a motion to withdraw a juror falls within the classification of discretionary matters and does not present legal error reviewable here.
    5. Legal error might arise from the refusal of the trial court to permit counsel to confer with an assistant but cannot be reviewed where the point has not been properly raised.
    6. Great weight should be given to the unanimous decision of the AppeUate Division that the trial justice kept within the bounds of judicial discretion and did not by his admonitions and chidings and rulings in connection therewith prejudice the client, particularly where the trial justice fully and fairly instructed the jury to take no heed of the differences between court and counsel in arriving at a verdict.

      Sarconi v. 1M W. %6th St. Corp., 213 App. Div. 862, reversed.
    (Argued October 29, 1925;
    decided December 1, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 8, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict.

      Frederick Mellor for appellant.

      Harold R. Medina and Leander I. Shelley for respondent.
    The trial court committed no error in admitting rule 13 of the board of standards and appeals in its ruling thereon. (Wright v. Reusens, 133 N. Y. 298; Ocorr & Rugg Co. v. City of Little Falls, 77 App. Div. 592; 178 N. Y. 622.) There is no basis whatsoever for the defendant’s claim that the trial court adopted an improper attitude toward it. (Finan v. N. Y. Central R. Co., 111 App. Div. 380; Devlin v. N. Y. City Railway Co., 116 App. Div. 894; Daly v. Byrne, 77 N. Y. 182.)
   Pound, J.

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligent operation of a freight elevator by the defendant. The complaint alleges in substance that on February 11, 1924; in a building owned by defendant, while plaintiff was using a freight elevator in the act of removing some bags of waste paper therefrom which he had brought down from an upper story, the elevator, through the negligence of defendant, was suddenly raised, causing plaintiff to fall into the shaft. The plaintiff testified that it was a freight elevator and-both parties claim that he was using it as a freight elevator at the time of the accident. On the trial he contended that it was suddenly and negligently raised as he was stepping into it to “take off the bags of waste paper and while he was straddling the doorway with one foot in the elevator and the other in the passageway. The defendant contended that it was being raised for the accommodation of plaintiff so that he could load the bags onto his shoulder according to what it asserts was the usual practice and that he was injured because he undertook to step into the elevator when it was in motion. The trial was expeditiously conducted on this simple question of fact. The verdict of the jury was for $30,000, which wa,s reduced by the Appellate Division to $20,000.

At the close of the charge the following appears on the record:

“Juror No. 8: Does the Building Code provide that a gate must be supplied and kept closed while the elevator is in motion?

“ Mr. Feltenstein: There is such a rule.

The Court: I do not know —

“ Mr. Feltenstein: I have got it marked off for your Honor.

“ Mr. Mellor: You did not offer it in evidence

“The Court: We take judicial notice of these ordinances and statutes.

“ Mr. Feltenstein: Here is Rule 13.

“ Mr. Mellor: It applies to passenger elevators.

“ Mr. Feltenstein: No, all elevators.

“ Mr. Mellor: No, not freight elevators.

“ Mr. Feltenstein: All elevators.

“ Mr. Mellor: It says passenger elevators in it.

“ Mr. Feltenstein: Rule 13, that is what your Honor takes judicial notice of.

“ The Court: Yes, these are the elevator rules adopted by the Board of Standards and Appeals of this city, and Rule 13 provides —

* “ Mr. Mellor: I will except to that.

“The Court (continuing): Rule 13 provides: 'Shaft doors. In existing and future installations, all gates or doors leading to any shaft in which power driven passenger elevators are operated (except full automatic push button elevators) shall be locked, bolted or securely fastened on the shaft side. Such shaft doors or gates shall be closed by the operator before the car is put in motion.’ Is that what you refer to now?

“ Juror No. 8: Does that refer to freight elevators?

“The Court: It refers to hoistway elevators, every elevator, escalator, freight conveyor or amusement device within the City of New York. That is all.

“ Mr. Mellor: Will your Honor allow me an exception to that?

“The Court: Yes.” ■

" This was error and prejudicial error. Rule 13 does not apply to freight elevators. Even if it did apply to a freight elevator occasionally used by passengers, it had no bearing on the particular case for the plaintiff was not a passenger. Respondent’s counsel candidly says in his brief: the opening or closing of the doors had very-little bearing on the case.” The learned justice did not so instruct the jury. He said that the rule requiring shaft doors to be closed applied to all elevators. Trial counsel for the plaintiff, who had not contended that he might recover because the gates were not closed, might have kept this error off the record by disclaiming, as counsel on appeal now disclaims, any right to recover for the failure of the operator to close the doors. Instead, it appears that he sought to gain some advantage from it. A juror’s question naturally suggests the working of the juror’s mind and counsel seems to have taken the question as his cue. The verdict may well have been the same without this instruction. It would have been amply sustained by the evidence. But the defendant had a substantial right to have the regulations governing passenger elevators kept out of the case. It is reasonable to infer that the jurors found that the accident would not have happened if the operator had closed the doors before putting the elevator in motion. The conclusion is reached that a new trial must be had properly to protect the appellant’s rights.

Other errors complained of relate to the exclusion of evidence of a practice said to have been known to plaintiff and defendant’s operator of raising the elevator to enable plaintiff to put the bags on his shoulder. These were probably cured. Evidence of the practice was finally admitted in answer to a juror’s question and the jury was instructed on this point as requested by defendant.

Appellant also complains that errors of law were committed by the learned trial justice by reason of his alleged improper attitude towards its trial counsel in qurtailing the examination of witnesses and unnecessarily and repeatedly rebuking and reproving him; that it was thereby deprived of a fair trial and that the judgment, below should be reversed on the law for this reason. The question of a fair and impartial trial, outside of rulings on questions of evidence, on the charge of the court and on other matters of legal right, when properly-excepted to, is one which addresses itself to the discretion of the Appellate Division which has abundant power to relieve the aggrieved party. “ Matters of discretion are reviewable by the Appellate Division, but not by us.” (Cattano v. Metropolitan Street Ry. Co., 173 N. Y. 565, 572.) The refusal of the court to grant a motion to withdraw a juror falls within the classification of discretionary matters and does not present legal error reviewable here. (Chesebrough v. Conover, 140 N. Y. 382, 388.) Legal error might arise from the refusal of the trial court to permit counsel to confer with an assistant but I find nothing in this case in this connection which raises the point beyond a somewhat acrimonious discussion of the propriety of introducing an associate after the jury has been selected. The curtailment of the examination of witnesses complained of by counsel either was discretionary or did not in the end affect any substantial right of defendant.

The unanimous affirmance here'n indicates that, taking the trial as a whole and considering the conduct of the attorneys as well as that of the judge, the learned Appellate Division was of the opinion that the trial justice kept within the bounds of judicial discretion; that he did not, by his admonitions and chidings of counsel and rulings in connection therewith, prejudice the client. To its decision on this point great weight should be given, particularly as the learned trial justice fully and fairly instructed the jury to take no heed of the differences between court and counsel in arriving at a verdict.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgments reversed.


author: McLaughlin, J.

text:
    Louis Schumer, Respondent, v. Harry Caplin, Appellant.
    Negligence — Labor Law — trial — charge — evidence — usage — Legislature alone has power to enact a statute — Industrial Commission has power to make rules governing its own affairs only —■ violation of rule of commission not negligence per se — erroneous charge that omission to install safety devices required by rules of Commission constituted negligence as matter of law — violation simply some evidence of negligence which jury could consider — erroneous admission of evidence of alleged usage and custom.
    1. The violation of a statute under certain circumstances may of itself establish negligence. Not so, however, with a rule or ordinance. A legislative declaration that a rule has the force and effect of law does not make it so, if by that is meant that it is the equivalent of or equal to a legislative enactment. The Constitution of the State commits to the Legislature alone the power to enact a statute.
    2. Section 20-b of the Labor Law (Cons Laws, ch. 31), supplemented by section 51-a, confers upon the Industrial Commission the power to make rules governing the administration of its own affairs only.
    3. It is, therefore, reversible error, in an action by a window cleaner to recover for personal injuries received from a fall while attempting to clean a window in defendant’s building, for the trial court, to charge, after reading rules of the Industrial Commission: “ It is an undisputed fact that the defendant, whatever his reasons or justification from his point of view for not having them, did not have these safety devices as required by the law I have read. That I say to you as a matter of law constituted negligence on his part.” The violation of the rule of the Commission, since it did not have the force of a statute, did not constitute negligence as a matter of law. A correct charge in this respect would have been that the violation of this rule did not establish negligence per se but was simply some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject.
    4. It was also error to admit, against defendant’s objection and exception, evidence of an alleged usage and custom of window cleaners, to wash windows from the outside while standing on the sill when there are no safety appliances. This created a false standard as to the care which plaintiff should have taken for his own safety. Schumer v. Caplin, 212 App. Div. 872, reversed.
    (Argued October 20, 1925;
    decided December 1, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict.

      Frank W. Holmes for. appellant.
    Plaintiff was guilty of contributory negligence as matter of law, and the complaint should have been dismissed. (Green v. Pyne, 289 Fed. Rep. 929; Haskel v. Kurtz Co., 181 Iowa, 30; Brandon v. Globe Inv. Co., 108 Wash. 360; Piper v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 224; Heaney v. Long Island R. R. Co., 112 N. Y. 122.) The evidence of alleged usage and custom of window cleaners, to wash windows from the outside by standing on the sill, created a false and erroneous standard of care, misled the jury, and constitutes reversible error. (Chamberlayne on Evidence, § 3152; 1 Wigmore on Evidence, 567, § 461; Maynard v. Buck, 100 Mass. 40; Grand Trunk R. Co. v. Richardson, 91 U. S. 454; Shannahan v. Empire Engineering Corp., 204 N. Y. 543; Marus v. Central R. Co. of N. J., 175 App. Div. 783; Crogham v. Hedden Const. Co., 147 App. Div. 631; Kent v. Erie R. Co., 217 N. Y. 349; Cline v. Northern Central R. Co., 181 App. Div. 203; Swift v. Pool, 172 App. Div. 10; Borden v. N. Y. C. R. R. Co., 181 App. Div. 306; Thompson v. Foundation Co., 188 App. Div. 506.) It was reversible error for the trial court to charge the jury that defendant’s violation of the rule and regulation of the Industrial Board constituted negligence as a matter of law. (Martin v. Herzog, 228 N. Y. 164; U. S. v. Grinaud, 220 U. S. 506; Fluker v. Ziegele Brewing Co., 201 N. Y. 40; Knupfle v. Knicker

      bocker Ice Co., 84 N. Y. 488; McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522; Briggs v. N. Y. C. & H. R. R. R. Co., 72 N. Y. 26; McCambley v. Staten Island M. R. R. Co., 32 App. Div. 346; Ursprung v. Winter Garden Co., Inc., 183 App. Div. 718.)

      Harold R. Medina, Moses Feltenstein and M. N. Schleider for respondent.
    The trial court properly ruled that the failure of the defendant to provide the safety devices required by law constituted negligence per se. (Amberg v. Kinley, 214 N. Y. 531; Martin v. Herzog, 228 N. Y. 165; Goetz v. Duffy, 215 N. Y. 53; Arnold v. National Starch Co., 194 N. Y. 42; McRickard v. Flint, 114 N. Y. 222; Willy v. Mulledy, 78 N. Y. 310.) The evidence that professional window cleaners customarily cleaned windows from the outside by standing on the sill was properly received both because 'of its obvious bearing upon the general question of contributory negligence and also because of the defendant’s insistence that the statute requiring safety devices was inapplicable. At no time did the trial court rule that the evidence of custom established any standard of care as matter of law. (Perrotta v. Richmond Brick Co., 123 App. Div. 626.)
   McLaughlin, J.

The plaintiff had a verdict for $75,000 for personal injuries alleged to have been sustained by reason of the defendant’s negligence. The trial court set aside the verdict unless the plaintiff consented to reduce it to $60,000. His consent was given, and the verdict reduced accordingly. From the judgment entered thereon, an appeal was taken to the Appellate Division, where the judgment was reversed unless the plaintiff stipulated to further reduce it to $40,084.60. Such stipulation was -given and the judgment as thus reduced was affirmed. Defendant then appealed to this court.

The plaintiff was a window cleaner of several years’ experience. While attempting to clean a window on the fifth floor of defendant’s building, he fell and sustained very serious injuries. The only negligence charged against the defendant, either in the complaint or at the trial, was his failure to equip the window with devices to which a window cleaner’s belt might be fastened in accordance with rule 5 of the New York State Industrial Commission. There is very little dispute as to the facts involved in or connected with the accident. They are substantially as follows: The defendant was the owner of a loft building in the city of New York. Each floor was leased separately; each tenant had exclusive control of the floor leased, and provided his own janitor service and cleaned his own windows. Some tenants had their regular employees do the window cleaning and other tenants entered into contracts with others to do that work. The defendant had but one employee in the building. He attended only to the operation of the elevator, the running of the heating plant, and the care of the public halls.

Each of the windows on the fifth floor was divided into two sections, an upper and a lower one. Each section contained two panes of glass, each of which was twenty inches wide and thirty-seven inches high. Most of the windows opened onto fire escapes. The tenant on the fifth floor was the Rosedale Dress Company and it had a contract with the Grand American Window Cleaning Company to clean the windows on this floor at stated times and at a stated price. The plaintiff was, and for a long time had been, in the employ of the window cleaning company, and as such was familiar with the windows on the fifth floor of this building, having cleaned them many times.

On the 11th of July, 1922, the plaintiff, by direction of his employer, went to the floor occupied by the Rosedale Dress Company for the purpose of washing the wdndows. The plaintiff testified that there was one window on this floor which he had never washed before. That was the one in the ladies’ dressing room. When he had been there before for the purpose of washing windows, there had been women in this room, so he could not get in. On the day in question no women were in the room. He then went in and proceeded to wash the window there. The lower sill of this window was two feet and one-half inch above the floor; the stone and the wooden parts of the sill, taken together, on the outside measured something like nine inches. The stone part was on the outside of the sill and was about four inches in width. The wooden part was on the inside of the sill and was about five inches in width. The wooden part of the sill was something like two inches higher than the stone part. The plaintiff testified that he cleaned the lower half of the window from the inside, then raised it, took hold of the lower sash and went outside on the sill, and was holding onto the bottom of the window with his right hand and endeavoring to lower the top part of the window with his left hand, when all at once the top part came down on his right hand and knocked it out of place; that he grabbed hold of a bar that was there to hold the shutters; that the bar broke with him and he fell four stories.

I am of the opinion that the judgment must be reversed and a new trial ordered for an error in the charge. The court charged that the defendant’s violation of the rule of the Industrial Commission concerning safety appliances for window cleaners constituted negligence as a matter of law. Section 20-b of the Labor Law (Cons. Laws, ch. 31) confers upon the Industrial Commission the power to make rules. This section is supplemented by section 51-a of thé same law. Subdivision 5 of section 51-a provides that “ The rules and regulations of the Commission shall have the force and effect of law and shall be enforced in the same manner as the provisions of this chapter.” The court, after reading certain rules of the Industrial Commission, stated to the jury (to which an exception was taken): “ It is an undisputed fact that the defendant, whatever his reasons or justification from his point of view for not having them, did not have these safety devices as required by the law I have read. That I say to you as a matter of law constituted negligence on his part.” This was not a proper construction of the rule. The violation of ,a statute under certain circumstances may of itself establish negligence. Not so, however, with a rule or ordinance. A legislative declaration that a rule has the force and effect of law does not make it so, if by that is meant that it is the equivalent of or equal to a legislative enactment. The Constitution of the State commits to the Legislature alone the power to enact a statute. It can give to or confer upon a commission, officer, board or municipality the power to make rules and ordinances governing the administration of their respective affairs. (United States v. Grimaud, 220 U. S. 506.) This is all the Legislature has attempted to do. There are #other sections of the Labor Law which clearly indicate that this is the proper construction of the rule referred to by the trial judge. Under sections 52-a and 52-b, any rule adopted by the Commission may be suspended, modified or varied, depending upon conditions. This cannot be done with a statute. A constitutional statute, once passed, cannot be changed or varied according to the whim or caprice of any officer, board or individual. It remains fixed until repealed or amended by the Legislature.

' The violation of the rule of the Commission which the learned judge read to the jury, since it did not have the force of a statute, did not constitute negligence as a matter of law. A correct charge in this respect would have been that the violation of this rule did not establish negligence per se but was simply some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject. This view is settled by a long line of decisions in this court. Among them are Fluker v. Ziegele Brewing Co. (201 N. Y. 40); Knupfle v. Knickerbocker Ice Co. (84 N. Y. 488); Briggs v. N. Y. C. & H. R. R. R. Co. (72 N. Y. 26); McGrath v. N. Y. C. & H. R. R. R. Co. (63 N. Y. 522). The charge was necessarily • prejudicial as bearing on defendant’s negligence and necessitates a reversal of the judgment.

Personally, I am of the opinion that the court also erred in admitting, against defendant’s objection and exception, evidence of alleged usage and custom of window cleaners, to wash windows from the outside by standing on the sill when there are no safety appliances. This created a false standard as to the care which plaintiff should have taken for his own safety. (Green v. Pyne, 289 Fed. Rep. 929.) The evidence in this respect was to the effect that there existed in the business of window cleaning a custom and usage of washing windows from the outside by standing on the window sill, whether safety appliances were furnished or not. It was at least misleading because it is obvious that the care which one must take, or the prudence of standing on a window sill, depends upon many facts. For example, the width of the sill, its slope, and other features of its dimension and form. The evidence admitted tended to establish a standard of care which excuses a negligent act. It was so understood. Plaintiff’s counsel stated: “I am talking of professional window cleaners and the exercise of reasonable care by a professional window cleaner.” The court also so understood it, when the evidence was received. It stated: “The window from which this plaintiff fell comes within the term of this rule in my opinion and the question is not whether it would be possible to wash the window from the inside but what was the ordinary method resorted to by those in that particular line of work. That being my view, the objection is overruled.”

Chamberlayne on Evidence (Vol. 4, section 3152) states the rule applicable to such proof as follows: “ Thus in a negligence action, no inference that a certain act was reasonable, or that a certain person acted in a reasonably careful manner, can be drawn from the fact that others in the same business have or have not done such act, or are or are not in the habit of acting in such a manner.” (See, also, 1 Wigmore on Evidence [2d ed.], sec. 461, p. 834; McKelvey on Evidence [2d ed.], sec. 106, p. 175; Maynard v. Buck, 100 Mass. 40; Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454; Shannahan v. Empire Engineering Corp., 204 N. Y. 543, 550.)

My associates, or at least some of them, while agreeing that this was error, do not think it constituted such error as would necessitate a reversal of the judgment, since no exception to the charge, or request to charge, on that subject was presented. It seems to me that the question was presented by a request to charge. Defendant’s counsel made the following request: “ I ask Your Honor to charge the jury that it is the question of washing the windows in the particular building and not the custom of professional window washers which they are to consider in determining whether or not this rule had any application.” This request was refused, and an exception taken.

The judgments appealed from should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Hiscock, Ch. J., Crane and Andrews, JJ., concur; Lehman, J., concurs in result; Cardozo and Pound, JJ., dissent.

Judgments reversed.