author: Van Winkle, A. M.

text:
    Theodora Rains, petitioner, v. Alexander Rains, defendant.
    [Decided September 29th, 1939.]

      Mr. Frank J. Ortolano {Mr. Anthony P. La Porta, of counsel), for the petitioner.
   Van Winkle, A. M.

If the testimony offered by the petitioner in this uncontested divorce suit should have been accepted at its face value, the petitioner is entitled to a decree of divorce. Petitioner’s testimony of what she said she had told her mother, and her mother’s testimony covering this, was received under the rule laid down in Haskell v. Haskell, 99 N. J. Eq. 399; 131 Atl. Bep. 876; and if true, this testimony would have furnished some corroboration, as declared in that case.

My reason for dismissing the petition was that on my observation of the appearance of the petitioner and her mother and their manner of testifying, I found, as a fact, that their testimony relating to the essential things necessary to be proved before a decree of divorce should be advised was not true.

I received all the testimony that was offered. And I should say that the testimony itself, apart from my observation, was improbable. The parties were married September 22d, 1935. They lived in one room in the rooming house of petitioner’s mother until April, 1939, all this time occupying the same bed. Petitioner testified that defendant refused to sexually cohabit with her “about six months” after the marriage until April, 1939, at which time she told him to leave, and he left. He had never paid any rent for the room, nor had he paid for the food. A fair inference was that he had been put out because of these defaults. Petitioner testified that she told her mother that defendant refused to sexually cohabit with her “right away,” six months after the marriage; that she had told this to her mother “almost every day” thereafter, and that she went to a chiropractor “after about six months of the marriage,” being “nervous,” because of the defendant’s refusal. The testimony of the petitioner and that of her mother matched. Usually, in eases of this kind, as I have found, where the ruling of the Haskell v. Haskell, supra, case is invoked, the parties have slept separately or in different rooms for all or a part of the two-year period specified in the petition for divorce as the desertion period.

In every suit for divorce there are at least three parties, the husband, the wife and the state. The suit is a triangular suit sui generis. At all times the state is represented by “the conscience of the court.” A peculiar responsibility rests upon the court, particularly in uncontested cases. 1 Herr, Marriage, Divorce and Separation 137.

JSTow that an appeal has been taken from the decree of dismissal, I dare say I should continue to represent the state- on the presentation of the appeal to the extent of discussing how the appeal should be dealt with by our court of errors and appeals, for, under the present practice, on an appeal in an uncontested divorce suit only the counsel for the appellant appears with brief and argument, and to this extent the presentation of an appeal is one-sided.

Of course, courts and juries are not bound by more swearing. Testimony, to be effective as a basis for a decree of divorce, must produce conviction in the mind of the judge in chancery who hears the case for the Chancellor, and who sits with the united functions of judge and jury. How much weight is to be given to the testimony of a witness in a divorce suit, whether the suit be contested or uncontested, depends largely upon his appearance, his manner of testifying, and all the other evidence and circumstances from which the judge in chancery may credit or discredit him. It may be said, perhaps, that it is easier to come to a decision on these matters in contested cases when there is confrontation, and parties and witnesses are cross-examined by informed counsel, so that adverse testimony may be compared, for, if a judge may clearly find that a witness testifies truthfully, it necessarily follows that a witness who testifies eontrarily is not testifying truthfully.

There is no presumption of law that an unimpeached witness has testified truly. Wigmore (1st & 2d ed.) § 2034.. Wig-more speaks of “the loose and futile but not uncommon fallacy that an unimpeached or uncontradicted witness must be believed.” 4 Wigmore (2d ed.) 310 § 2034. “The mere assertion of any witness does not of itself need to be believed, even if he is unimpeached in any manner, because to require such relief would be to give a quantitative and impersonal measure to testimony.” Wigmore (1st & 2d ed.) § 2034. “Absence of direct contradiction by the mouth of a witness does not make a fact undisputed in such a way as to require the court to find the same in an equity case, for the court is at liberty to discredit any witness.” 1 Chamberlayne on Evidence § 262; and see Riehl v. Riehl, 101 N. J. Eg. 15; 137 Atl. Rep. 787.

In State v. Tischler, 98 N. J. Law 580; 119 Atl. Rep. 372, our court of errors and appeals, in speaking of the language of a trial judge in charging a jury, said: “The effect of this language seems plainly to make the logical and probable character of the story told by one or the other of the parties concerned the test of a verdict of guilt or innocence. But there are other considerations besides mere logic and probability which may legitimately influence the conclusion of a jury, notably, for example, the appearance and demeanor of the witnesses and the manner in which they may testify. The credibility of the witnesses and the verdict of the jury should not be dependent exclusively on rules of logic and estimates of probability. The language used by the trial judge, in our estimation, constituted harmful error for which there must be a reversal.”

“The conduct of the witness is formally offered in evidence, when it has occurred outside the court room. But it is no less admissible when it is exhibited in the court room and on the stand, even though no formal offer of it is then required. The demeanor of the witness on the stand may always be considered by the jury in their estimation of his credibility * * *. The witness’ demeanor, then, is always assumed to bo in evidence.” Wigmore (1st & 2d ed.) § 946. “The judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness’ deportment while testifying.” Wigmore § 1896.

Multitudinous things are indicated by the word “demeanor,” when the appearance of witnesses and their manner of testifying are referred to in the books. “And the courts have repeatedly declared that it is one of the most important functions of the trial judge, in determining the value and weight of the evidence, to consider the demeanor of the witness. They have called attention, as of the gravest importance, to such facts as the tone of voice in which a witness’ statement is made, the hesitation or readiness with which his answers are given, the look of the witness, his carriage, his evidences of surprise, his gestures, his zeal, his bearing, his expression, his yawns, the use of his eyes, his furtive or meaning glances, or his shrugs, the pitch of his voice, his self-possession or embarrassment, his air of candor or seeming levity.” Jerome Frank, Law and the Modern Mind 1931. Evidence of demeanor to the extent that it appears or is perceived in a trial court may be said, I think, to be “real” evidence in a very real sense.

When a judge in chancery functions at a hearing it is to be assumed that he does his duty, that is, that he observes the appearance of witnesses and their manner of testifying, in an endeavor to discover the truth; and that in so doing, that he uses his experience and every apprehending and perceiving faculty, with his judiciousness and his conscience joined in the process.. And when he finds a witness to be honest or a liar, the matter is not made any clearer by calling what he has done “recognition,” or “inspiration,” as one prominent psychologist calls a similar process, or by calling what he has done “a hunch,” as does an eminent judge. To label-his finding of fact is not to tell what has taken place. In observing the demeanor of a witness and in coming to a conclusion on that demeanor a judge does not use any approved formulas; nor does he practice any art'; nor does he proceed in any scientific way. So there is no terminology that he may employ to explain to an appellate court what has taken place. And, probably in most eases, he may not be able to satisfactorily declare, even to himself, the total process, to call it a process, that resulted in his being convinced. But in observing the appearance of witnesses and their manner of testifying, he has functioned as he should in properly coming to a conclusion concerning the true facts of the controversy before him for decision.

It is because of the demeanor circumstances that “can be manifest only to one who actually hears and sees the witnesses that upper courts have frequently stated that they are hesitant to overturn the decision of the trial judge in a case where the evidence has been based upon oral testimony; for the upper courts have recognized that they have before them only a stenographic or printed report of the testimony, and that such a black and white report cannot reproduce anything but the cold words of the witness. ‘The tongue of the witness/ it has been said, ‘is not the only organ for conveying testimony.’ Yet, it is only the words that, can be transmitted to the reviewing court, while the story that is told by the manner, by the tone, by the eyes, must be lost to all but him who observes the witness on the stand.” Jerome Frank, Law. and the Modern Mind, 1931.

An appellate court can hardly set aside a dismissal of a petition for divorce on the ground that the finding of a judge in chancery is “palpably against the evidence” when the dismissal is rested upon a finding of fact based on demeanor evidence, which finding has gone to the appellate court as a fact, as established evidence, but which evidence may not, because of its nature, be examined in the appellate court. There is nothing in the appellate court as a logical or a legal base for its disestablishment. There is nothing whatever for the appellate court to lay its hands on. The demeanor- evidence appeared in the trial court and it entirely disappeared there. It cannot be resurrected in any way in the appellate court. It is not communicable to the appellate court. I have called demeanor evidence ‘heal” evidence, to emphasize what I am stating.

Vice-Chancellor Lane’s conclusions in Rhodes v. Rhodes, 92 N. J. Eq. 252; 114 Atl. Rep. 414, were adopted in toto by our court of errors and appeals. Apparently, the demeanor .facts reported by him in his conclusions in that case were decisive factors without which he would not have come to the decision he made. His method of reporting on his demeanor observations and his judgment thereon apparently were approved by our court of errors and appeals. But he only named or summarized what he saw and did. He reported, in part, in these words: “There are numerous circumstances, some of which are not apparent from the printed record, which have led me to take the story of the wife rather than that of the husband.” In speaking of the wife and her witnesses he reported: “They impressed me favorably.” In speaking of the husband, he reported that the husband had “testified hesitatingly.” If there is a demeanor factor in the conclusions of a judge in chancery, which is a decisive factor, a thing vital to his conclusions, I think he should so inform our court of errors and appeals. Such report by him to witness the fact is due not only to himself, but to our court of errors and appeals and to the parties themselves. And I think a judge in chancery reports his finding on demeanor sufficiently if he only characterizes, if he uses only indicating words, if he states generally, if he reports, for instance, “I do not believe that the petitioner told the truth.” What a judge has observed and done may seldom, if ever, be formulated into any systematic statement.

“In no other litigation is the personal presence of the parties in court more important, or the weight and value of their appearance and demeanor more vital, than in divorce proceedings * * *. The sufficiency of the evidence may depend to no inconsiderable extent upon the physical and mental strength of the parties, their condition of health, and other circumstances of that nature, of which little or nothing can be shown in the report of their testimony. Their tones of voice, their gestures, their meaning glances, their bearing towards each other, all of which are pertinent and often decisive factors in the mind of the court in passing upon the credibility and weight of their testimony, are wholly lost in the presentation of the case upon appeal. Hence the rule is peculiarly strong that the finding of the trial judge ought not to be disturbed unless it is palpably against the evidence * * * especially where the trial judge files an opinion in which he refers to the favorable or unfavorable demeanor of witnesses.” Moore on Facts § 1279.

"It may be said that the judge himself is a witness of what is occurring in his court room. He must determine what are the facts of the case from what he sees and hears, that is, from the words and gestures and other conduct of the witnesses.” Jerome Frank, Law and the Modern Mind 1931. And as such witness the judge reports to the appellate court the fact concerning demeanor.

The following opinion in Creamer v. Bevert, 214 Mo. 473, included in the opinion in Yutterman v. Sternberg (1937), 111 A. L. R. 741, deals with demeanor and judgment thereon by an appellate court respecting the credibility of witnesses: "The bulk of the testimony was oral. In such condition of things, while this court has said over and over again that the whole record must come here in equity cases, so that (sitting as the final 'arbiter in chancery) we-may weigh and decide de novo and thus do equity, yet the court is also fond of saying that deference should be given to the trial chancellor. He sees and hears much we cannot see and hear. We well know there are things of pith that cannot be preserved in or shown by the written page of a bill of exceptions. Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft hides in nooks and crannies visible only to the mind’s eye of the judge who tries the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. The brazen fact of the liar, the glibness of the schooled witness in reciting a lesson, or the itching overeagerness of the swift witness, as well as the honest face of the truthful one, are alone seen by him. In short, one witness may give testimony that reads in print, here, as if falling from the lips of an angel of light, and yet not a soul who heard it, nisi, believed a word of it; and another witness may testify so that it reads brokenly and obscurely in print, and yet there was that about the witness that carried conviction of truth to every soul who heard him testify. Therefore, where an issue in equity rests alone on the credibility of witnesses, the upper court may with entire propriety rest somewhat on the superior advantage of the lower court in determining a fact.”

It may be said, I think, that the decisions of the courts of other states, respecting the Chancellor’s decisions on facts, where no statutes are involved, are substantially in agreement. And, except for slight differences in words, they agree with the decisions of our own court of errors and appeals, as in Guenther v. Guenther, 122 N. J. Eq. 77; 191 Atl. Rep. 840, where it was held : “This* is a fact case. The advisory master who saw the witnesses and observed their demeanor while testifying, concluded that the charges had been sustained. We have carefully examined the proofs and concur in the result reached.” Take, for example, the comparatively recent decision in Floberg v. Floberg (1935), 358 Ill. 626, by a unanimous court of seven judges: “This cause was tried by the Chancellor without a jury. He saw and heard the witnesses testify, observed their conduct and demeanor while testifying, and was in a position to, and did, pass upon the credibility of witnesses. In that situation we will not disturb his finding of facts.”


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    IRENE BRINING, PETITIONER, v. BELL COMPANY, RESPONDENT.
    Decided October 18, 1939.
    For the petitioner, Irving Binetshy.

    For the respondent, Meyer M. Semel.

   $$$$$$$

I do hereby find and determine as follows:

That the petitioner claims compensation as an employe of the respondent, alleging that she was employed as a saleslady at a weekly salary of $10 and transportation; that on the 19th of January, 1939, she fell down a flight of stairs in Leonia, New Jersey; and received a fracture of the left foot.

Respondent denies the agreement of employment, and relationship of employer and employe or master and servant, and put in evidence an agreement, in writing, dated the 19th of January, 1939, under the. terms of which agreement the said Irene Brining became a “dealer,” and the company “agrees to sell to the dealer, at a discount of forty per cent, from the retail price * * *■ such of the merchandise as the dealer may desire.” The agreement further provides that “the dealer has no authority to obligate the company in; any way whatsoever. The company has no interest in the dealer’s account with his customers.”

The evidence adduced at the trial indicates clearly that the respondent company exercised no control over the petitioner. She was free to choose her own' territory, devote as much of her time to the selling of the company’s products as she wished, was free to deal in other merchandise of persons other than the respondent, conlcl come and go as she wished, and was subject to no rules, obligations, orders or instructions from the respondent. In short, the proof adduced indicates very clearly the relationship of an independent contractor.

After careful consideration of the evidence adduced, I am of the opinion that the petitioner has failed to establish the relationship of employer and employe, ox master and servant, and that the injuries received by her did not arise out of and in the course of any employment relationship between - the respondent and the petitioner.

It is, * * * ordered that said petition be and the same is hereby dismissed.

John C. Wegner,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES W. BROWN, PETITIONER, v. GRAND VIEW AUDITORIUM, INC., RESPONDENT.
    Decided September 27, 1939.
    For the petitioner, Bennett A. Bobbins.

    For the respondent, James A. Boboiiom.

   ^ Hi

The petitioner testified that he was a carpenter, and that on February 23d, 1939, he was engaged in repairing a basketball basket on the premises of the respondent. He stated that he was hired to do this piece of work at the rate of $1 an hour. While doing this work, the petitioner was standing on a ladder, and the ladder slipped, the petitioner fell and was injured. The petitioner testified that he had done similar jobs for the respondent before, the last one being a period of about nine months previous to the occasion on which he was injured. He testified that on the occasion of each job, he had been asked to do a certain job, and that he had been paid at the rate of $1 an hour. He also testified that he had done jobs of carpentry work for other persons between his various jobs for the respondent.

The petitioner testified that since the accident he had pain and a sensation of nerves running up and down his spine, and that he has not been able to work.

At the conclusion of the petitioner’s testimony, a motion to dismiss the petition was made on behalf of the respondent on the ground that the petitioner was not entitled to compensation under the provisions of the Workmen’s Compensation statute, since he was engaged to do a specific piece of work, and that it was not intended that his employment should be regular or recurring, nor could it be considered as in the respondent’s regular course of the business of conducting an auditorium.

I have carefully considered the testimony of the petitioner adduced before me, and I am disposed to grant the motion made by the respondent. From the evidence before me I find that the petitioner was at best a casual employe, who was to take care of a chance happening, and that the work was not in the employer’s regular course of business, and that it was not intended to recur at any definite time, or to extend beyond that particular job. I find that the petitioner had done similar jobs for other persons before the accident, and that he was in the business of doing odd jobs and carpentry. I feel that if he was not a casual employe, he then fell into the category of an independent contractor, since he was engaged to do a specific piece of work without supervision, direction, or control as to the manner in which he did it.

I, therefore, order that the petition herein filed be and the same is hereby dismissed.

Chables B. Corbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LENA LEVINSON, PETITIONER, v. I. H. ALBERT, RESPONDENT.
    Decided October 4, 1939.
    Bor the petitioner, Isserman i& Isserman.

    Bor the respondent, Edwin Joseph O'Brien.

   %%%%%%%

On September 20th, 1939, the petitioner, Lena Levinson, testified that while employed as a housekeeper and cook for the respondent that one Minnie Lee Roberts was brought to her by her employer and told that she was the girl that was to do certain work about the house. The petitioner testified that as the result of Miss Roberts going upstairs and doing her work and coming down later and saying that she was all through that the petitioner went upstairs and saw that the work was not done properly. She said that thereupon Minnie Lee Roberts said she was quitting and wouldn’t work there any more. The petitioner then stated that without any further argument or discussion or any acrimonious conversation that Minnie Lee Boberts, who weighed over two hundred pounds, jumped on her, grabbed her by the throat and threw her over a desk. When cross-examined by the respondent’s attorney as to whether or not the real fact of the matter was that she had argued with Minnie Lee Boberts about using the telephone, she said no, there was no such argument at all, and on another occasion the petitioner said she didn’t remember, but, she was certain of one thing, that the assault was utterly unprovoked and that there was no argument or discussion before it took place.

On the 22d of September the respondent produced Minnie Lee Boberts, who certainly did not weigh anything like two hundred pounds. Minnie Lee Boberts stated in her testimony that she weighed -one hundred and sixty-odd pounds and that she had quit on this particular day after finishing the work upstairs and that she asked for her pay from the petitioner. The petitioner refused to pay her so therefore she, Minnie Lee Boberts, said she would wait for the return of her employer. In the meantime she asked for permission to use the ’phone and stated that when she went to use the ’phone the petitioner, came over and shoved her away roughly and that when the petitioner did that she turned around and slapped the petitioner in the face and a regular scuffle ensued.

The petitioner was then put on the stand to rebut the testimony of the respondent’s witness and her story when placed upon the stand on the 22d brought out a number of things which she claimed she had no knowledge on the 20th and her story did not agree with the story told when she was on the stand on the 20th.

The other jurisdictional facts were admitted in the case but it w.as unnecessary for me to go into them at this time, because I am convinced and I do find that from the testimony of the petitioner and her two appearances on the stand and the'testimony of the respondent’s witnesses, after observing the witnesses and listening to their testimony and watching their demeanor on the stand, that the altercation was a purely personal altercation between two servants in the household and did not in any way constitute an accident arising out of and in the course of petitioner’s employment with respondent.

For this reason judgment is entered for the respondent and petition is hereby dismissed.

John C. Wegner,

Deputy Commissioner.


author: Herr, A. M.

text:
    Evelyn Levy, also known as Emma Levy, complainant, v. Aaron H. Levy, also known as Harry A. Leavy, defendant.
    [Decided October 30th, 1939.]

      Mr. Morris N. Hartman, for the complainant.

      Mr. Benjamin Wasserman, for the defendant.
   Herr, A. M.

On Angnst 10th, 1938, complainant secured a decree of divorce from the bond of matrimony against defendant in the State of New York, together with an order for permanent alimony and maintenance of $15 per week for her support and that of an infant child of the marriage in her custody. That decree and order are still in full force and effect, but the order is no longer being obeyed by the defendant, who has now become domiciled in New Jersey, and has placed himself beyond the reach of New York process. Complainant has secured three judgments at law against him in New Jersey for arrearages under the New York order, but has been unable to collect more than four or five dollars per week by garnishment of his salary in execution. The situation of the parties has not changed substantially since the entry of the New York order, except that the defendant has remarried; a circumstance which evidently has furnished the reason, although not justification, for his failure to comply with the terms of the order. The proofs indicate that complainant is in need of the full allowance of $15 per week for the maintenance of herself and the child, and that defendant’s faculties are amply sufficient to enable him to continue those payments.

Complainant’s bill, process under which has been served personally upon defendant in New Jersey, prays that alimony and maintenance be fixed and decreed by this court for her support and that of the child, under the 1938 amendment of R. S. 2:50-37; P. L. 1938 ch. 235 p. 538 § 1 (C. S. R. S. 2:50-37; 2 N. J. S. A. 2:50-37). She now applies ad interim for a suitable allowance and for suit moneys. Her motion is resisted on the ground that the statute does not in terms authorize the granting of pendente lite relief to a complainant who has secured her decree for divorce elsewhere than in New Jersey, and that since the court’s jurisdiction rests solely upon the statute, and since the relationship of husband and wife no longer exists, the court is without jurisdiction to grant relief except upon final hearing.

In my judgment there is no substance in the objection. Until the adoption of the amendment this court was without jurisdiction to award alimony or maintenance under B. 8. 2:50-87 to a former wife who had secured a decree of absolute divorce elsewhere than in New Jersey. Hughes v. Hughes, 125 N. J. Eq. 47; 4 Atl. Rep. (2d) 288. The legislative purpose in adopting the amendment was to enlarge the court’s jurisdiction so as to enable it to make such awards in proper cases to former wives whose divorces have been secured abroad. Id. This enlargement of jurisduction is in furtherance of the modern tendency to regard a cause of action for alimony or maintenance as complete in itself and independent of the cause of action for divorce, and as being essentially personal and transitory in its nature. Lynde v. Lynde, 64 N. J. Eq. 738; 52 Atl. Rep. 694; Pennington v. Fourth National Bank, 243 U. S. 269; 61 L. Fd. 713; Maloney v. Maloney, 12 N. J. Mis. R. 397; 174 Atl. Rep. 28; Sutphen v. Sutphen, 103 N. J. Eq. 203; 142 Atl. Rep. 817; Noel v. Noel, 15 N. J. Mis. R. 576, 579; 193 Atl. Rep. 558; Gasteiger v. Gasteiger, 5 N. J. Mis. R. 317; 136 Atl. Rep. 497, in which the late "Vice-Chancellor Backes coined the aphorism “state boundaries do not make court barriers.”

A husband’s obligation to support his wife arises out of the marital relationship. It is a legal obligation existing independently of contract. Alimony is the means of enforcing the continuing duty of support which the husband owes to his wife, and of which he is not permitted to absolve himself by his own misconduct, although such misconduct has resulted in a dissolution of the marriage. Lynde v. Lynde, 64 N. J. Eq: 736, 751; 52 Atl. Rep. 694; McGuinness v. McGuinness, 72 N. J. Eq. 381,386; 68 Atl. Rep. 768; Dietrick v. Dietrick, 88 N. J. Eq. 560; 103 Atl. Rep. 242.

In the instant case, the complainant having secured a decree of absolute divorce against the defendant, and the amendment having placed her in much the same situation as though she had secured her divorce decree in this state, his common law obligation to support her continues and may be enforced in her present suit. She has secured personal service of process upon him, and upon proof of her need for support and his ability to meet that need, if her cause is otherwise just and equitable, this court can and should grant her relief at final hearing. She is without adequate remedy unless the court entertains her present suit.' Her order for alimony entered in the New York proceeding is still in full force and effect, but as a practical matter she is unable to enforce it. It is consequently within the well settled rules of comity and propriety that this court should grant her the relief sought. See Goodman v. Goodman, 15 N. J. Mis. R. 716, 721; 194 Atl. Rep. 866.

Since the court is empowered by the amendment to grant final relief upon the bill, it must follow that ad interim relief may be granted, inasmuch as the proofs disclose the necessity therefor. It is true that the amendment does not in express language authorize the court to grant preliminary relief, but the court’s power to do so is inherent in the sense that it is implied in the statutory authority to afford the ultimate remedy. The alimony section of our statute contained no express provision, prior to its amendment in 1902, permitting the court to grant ad interim, relief, just 'as the section providing for separate maintenance has not to this day contained such express provision. But the court has never hesitated in proper eases to grant ad interim relief under each section, because of the necessity of the case. Wilson v. Wilson, 14 N. J. Mis. R. 33; 181 ATl. Rep. 257, and cases cited. See Adams v. Adams, 125 N. J. eq. 166; 4 Atl. Rep. (2d) 58.

In dealing with cases in which complainants have secured their divorce decrees elsewhere than in New Jersey it is to be anticipated that questions may arise which never confronted the court under the original statute. In some instances the cause of action may be barred for legal or constitutional reasons, and where there is no such bar equitable considerations may intervene to defeat the claim or to require that relief be conditioned so as to prevent inequity. The statute is not mandatory. It is within the chancellor’s discretion to condition the relief or to deny the prayer in toto. The expression of the statute is that the court of chancery “may” make such order, &e. See Hatch v. Hatch, 15 N. J. Mis. R. 461, 464; 192 Atl. Rep. 241. It was the legislative intent, by enacting the amendment, to empower this court to see to it so far as possible that New Jersey shall no longer be a haven for ex-husbands who immigrate to this state in order to avoid their alimony obligations, finding here a substantially complete refuge. See Dennison v. Dennison, 98 N. J. Eq. 230; 130 Atl. Rep. 463; affirmed, 99 N. J. Eq. 883; 133 Atl. Rep. 919.

Had these parties been divorced in New Jersey, complainant’s application would have been by motion in the cause. The circumstance that the divorce decree wás secured in another state requires her to proceed by bill and subpoena, technically involving an order of reference and final hearing. Prom the proofs there appears to be no room for the defendant to argue against the equity of complainant’s bill. His continuing obligation toward complainant is beyond question. It is res judicata by the New York decree. It appears that the sum fixed by the New York order is likewise res judicata, the circumstances of the parties not having changed substantially since its entry. Hence there seems to be nothing open to serious litigation in the present suit, and nothing requiring further hearing except the procedural necessity. But this necessity involves delay and expense, and until final hearing complainant must be furnished with the means to subsist and to prosecute her suit; otherwise the remedy provided for her by the amendment would be beyond her ability to attain.

It will be noted that the allowance fixed and ordered by the New York court was for the benefit not only of the complainant herself, but of the infant child, of the marriage in her custody. So far as defendant’s obligation toward the child is concerned, his defense to this motion is a fortiori untenable. See Royce v. Royce, 124 N. J. Eq. 471 Atl. Rep. (2d) 878.

Complainant’s application will be granted. Ad interim maintenance for herself and the child will be fixed at $15 per week, conditioned, however, upon complainant’s procuring the vacation of the New York order so far as it operates prospectively. Complainant is also entitled to the costs of this motion to be taxed, including a reasonable counsel fee.


author: Fielder, Y. C.

text:
    Irma T. Schumann, complainant, v. Charles E. Bogert et al., defendants.
    [Decided November 6th, 1939.]

      Mr. William B. Gannon, for the complainant.

      Mr. Waller J. Freund, for the defendants.
   Fielder, Y. C.

John C. Bogert died December 27th, 1937, leaving a will dated June 5th, 1934, wherein he made the following devise:

“I devise the house and lot of land known as 802 Montgomery Street in said Jersey City, to my grand-daughter, Irma G. Schumann. If said Irma G. Schumann die without issue, I devise said real estate so devised to her, to my son, Charles E. Bogert, or to his issue, if he shall predecease said Irma G. Schumann.”

The devisee named in above clause is the complainant herein seeking a decree adjudging her estate or interest in the devised premises. She is a daughter of testator’s deceased daughter, is married, her husband is living and she has never had issue. In arriving at the testator’s intention the whole will should be read but 1 find nothing in any other part thereof of assistance in construing the quoted clause.

1. The first sentence of the quoted clause standing by itself devises an absolute fee to complainant. The second sentence is not void as repugnant to the preceding sentence but the two sentences, constituting the whole clause, must be read together to ascertain the testator’s intention.

2. The complainant is not entitled to a fee-simple absolute. The words “if said Irma G. Schumann die without issue,” are not intended to refer merely to her death in the testator’s lifetime. Under the rule of will construction followed by our courts, had the devise been to Mrs. Schumann and “if she die” (and nothing more) it would be held that the contingency the testator had in mind was Mrs. Schumann’s death in the testator’s lifetime (Dranow v. Sherry, 80 N. J. Eq. 447; 85 Atl. Rep. 189), and in such case the devise over would not take effect because she has survived the testator. But the contingency upon which the devise over is to take effect being expressed to be Mrs. Schumann’s death without issue, such contingency is not her death, which is certain, but her death without issue, which is uncertain — a contingency which cannot be determined until her death occurs, whether before or after the testator’s death. McDowell v, Stiger, 58 N. J. Eq. 125; 42 Atl. Rep. 575; Rogers v. Baily, 76 N. J. Eq. 29; 73 Atl. Rep. 243; affirmed, 78 N. J. Eq. 589; 81 Atl. Rep. 1134; Hampton v. Newkirk, 93 N. J. Eq. 270; 115 Atl. Rep. 656; Ambruster v. Own Your Home, 97 N. J. Eq. 69; 127 Atl. Rep. 167.

Such construction is particularly applicable in this case, when it is understood that the testator was ninety-five years of age when he executed his will and Mrs. Schumann was then forty-two. She had then been married eleven and a half years and had had no child. In the natural course of human life she would be expected to survive the testator and when the testator was contemplating her death without issue, it is not probable that he was thinking only of her death prior to his.

3. The devise to Mrs. Schumann with the limitation over if she should die without issue, does not create a fee-tail which by force of P. L. 1934 ch. 205; R. S. 46:3-15, would be converted into a fee-simple. The act of 193d became a law six days after the execution of the testator’s will and did not become effective until a month later. Comp. Stat. p. 4973 § 13; R. S. 1:2-3. It provides that when under any will “hereafter” made, a devisee shall become seized of such an estate as theretofore would have been held an estate of fee-tail of any type, such will shall vest an estate in fee-simple in such devisee.

The devise to Mrs. Schumann of a fee with limitation over in case she dies without issue, means a want or failure of issue in her lifetime or at her death, and not an indefinite failure of issue. Comp. Stat. p. 5870 § 27; R. S. 3:2-17. I think the act of 1934 does not apply to this will, executed prior to the date that act became a law but even if it does, the estate devised is not a fee-tail but an estate in Mrs. Schumann in fee-simple defeasable only in the event of her death without issue. Den v. Allaire, 20 N. J. L. 6; Seddel v. Wills, 20 N. J. L. 223.

4. There being nothing found in the will to show a contrary intent my conclusion is, on the authority of the above cited cases, that it was the testator’s intention to give Mrs. Schumann a vested fee which will become divested at her death without issue and will vest in the person or persons then in esse, to whom the estate is limited over.


author: Barbous, S. C. C.

text:
    MARIE CADGENE, PLAINTIFF, v. JACQUES CADGENE ET AL., DEFENDANTS.
    Decided November 2, 1939.
    For the plaintiff, Morrison, Lloyd & Morrison.

    For the defendants, Evans, Smith & Evans.

   Barbous, S. C. C.

This is an action brought under the Declaratory Judgment act (R. S. 2:26-66, &c.), to determine the rights of the parties in certain lands title to which was formerly vested in Ernest Cadgene and by him attempted to be conveyed to himself and his wife, Marie Cadgene, the plaintiff, by two deeds.

The earlier deed, dated September 17th, 1931, and recorded in the Bergen county clerk’s office in Book 1801 of Deeds, at pages 221, &c., which deed will be hereinafter referred to as deed “A,” attempted to convey to himself and his wife title to premises which had been theretofore acquired by him by various deeds as follows: 1. Deed dated August 28th, 1919, from Eunice Cornell Taylor and husband, recorded in said clerk’s office in Book 1030 of Deeds, at page 100, conveying the first tract in deed “A;” 2. Deed dated August 28th, 1919, from said Taylor and husband, recorded in said clerk’s office in Book 1030 of Deeds, at page 1Ó2, conveying the second tract described in deed “A;” 3. Deed dated October 9th, 1923, from Burns Lyman Smith and wife, recorded in said clerk’s office in Book 1235 of Deeds, at page 223, conveying the third tract in deed “A;” 4. Deed December 23d, 1924, from Paul Faurie and wife, recorded in said clerk’s office in Book 1300 of Deeds, at page 656, conveying the fourth tract as described in deed “A;” 5. Deed dated December 27th, 1924, from Edward H. Eanges and others, recorded in said clerk’s office in Book 1308 of Deeds, at page 87, conveying the fifth tract in deed “A;” 6. Deed dated March 5th, .1925, from William J. Wunseh and wife, recorded in said clerk’s office in Book 1320 of Deeds, at page 295, conveying the sixth tract as described in deed "A;” 7. Deed dated April 27th, 1925, from the estate of William Walter Phelps, recorded in said clerk’s office in Book 1327 of Deeds, at page 33, conveying the seventh and eighth tracts in deed “A;” 8. Deed dated December 3d, 1928, from Susanna C. Headington and husband, recorded in said clerk’s office in Book 1618 of Deeds, at page 453, conveying the first and second tracts of the ninth tracts in Deed “A.” Part of the sixth, seventh and eighth tracts were conveyed by the said Ernest Cadgene and Marie Cadgene, his wife, to the State of New Jersey for highway purposes by deed bearing date December 16th, 1931, and recorded in said clerk’s office in Book 1817 of Deeds, at page 24.

It is to be noted that deed “A” bears date the day following the date of conveyance to the State of New Jersey.

The later deed, dated March 8th, 1932, and recorded in said clerk’s office in Book 1821 of Deeds, at pages 326, &c., which deed will hereinafter be referred to as deed “B,” attempted to convey to himself and his wife title to premises which were acquired by him from the State of New Jersey (State Highway Department) by deed bearing date January 19th, 1932, but recorded in said clerk’s office in Book 1821 of Deeds, at page 382, on March 14th, 1932, six days after the recording of deed “B.”

The said Ernest Cadgene died intestate on February 4th, 1934, a resident of Bergen county, leaving him surviving, the plaintiff, Marie Cadgene, his widow, and five children, the defendants, as follows: Jacques Cadgene, his son, now of full age; Henri Cadgene, his son, now of full age; George Cad-gene, his son, now an infant of the age of nineteen years; Simone Cadgene, his daughter, now an infant of the age of twelve years; and Maryvonne Cadgene, his daughter, now an infant of the age of ten years, as his only heirs-at-law and next of kin.

A guardian ad litem was duly appointed for the infant defendants.

The plaintiff alleges that upon the death of the said Ernest Cadgene, she became seized of title to the premises described in deed “A” and deed “B” in fee-simple, or, if it be construed that the such deeds did not convey to her husband and to herself estates by the entirety, that they conveyed to her the fee to said premises.

It is apparent that the said-Ernest Cadgene intended to vest title to all of said premises in himself and his wife.

“A deed should be so construed as to give effect to the intention of the parties, if by law it may; and if the intention of the parties cannot be carried out in the way they intended, and the law will permit it to be carried out in another, that other should be adopted.” Havens v. Sea Shore Land Co., 47 N. J. Eq. 365; 20 Atl. Rep. 497.

Joint tenancies were abolished in this state unless expressly declared so to be as far back as 1812. R. S. 46:3-17. In Thomas v. DeBaum, 14 N. J. Eq. 37, Chancellor Green decided that such act did not extend to estates held by the husband and wife in entirety. This was cited with approval ■ in our Court of Errors and Appeals in Buttlar v. Rosenblath, 42 N. J. Eq. 651 (at p. 654); 9 Atl. Rep. 695.

In Grimminger v. Alderson, 85 N. J. Eq. 425. (at p. 434); 96 Atl. Rep. 80, Vice-Chancellor Griffin, in considering a conveyance of realty by a husband to himself and his wife, said: “The gift had relation to substantially all the property he was possessed of, and resulted in vesting in the complainant and Frances, husband and wife, the lands in common, each holding one half during their joint lives, with survivorship as at common law.” Citing Buttlar v. Rosenblath, supra.

It is apparent that the said Ernest Cadgene did not intend to divest himself of the incidents of ownership to the property in question but rather that he intended to vest in .his wife the same incidents of ownership which she would have acquired had the conveyances in the first instance been to himself and his wife; that is, to vest in himself and his wife, title to said premises as tenants by the entirety, with most certainly the right of survivorship in his wife.

A conveyance to husband and wife has always been considered as vesting in them title as tenants by the entirety. "To constitute a tenancy in common between husband and wife, there must in the conveyance be an expression of an intention to do so.” Buttlar v. Rosenblath, 42 N. J. Eq. 651 (at p. 655); 9 Atl. Rep. 695.

Joint tenancies no longer exist in the absence of express provision. R. S. 46 :3-17, supra.

If, therefore, to constitute a tenancy in common between husband and wife there must be an expression of intention to do so, and if joint tenancies are not created in the absence of express intention, it would appear that a conveyance to husband and wife of necessity vests in them title as tenants by the entirety.

Keforring to estates by the entirety resulting from a conveyance by a husband to himself and his wife, Chief Justice Bartlett, of the New York Court of Appeals, said:

"The creation of such an estate is permitted by law, and I see no reason why the husband could not convey to his wife such an estate as she would get by a similar deed to them from a third person, and at the same time reserve for himself the same rights he would have under such a deed.” In re Klatzl's Estate, 216 N. Y. 83; 110 N. E. Rep. 181.

The Court of Appeals was divided in its opinion in that case, three members holding that an estate by the entirety was not created. Chief Judge Bartlett concurred in the result (the imposition of an inheritance tax on one-half of the estate) but dissented from the reasoning of Judge Seabury. Three members of the court also dissented from the views of Judge Seabury, and held that an estate by the entirety was created in an opinion written by Judge Collin and concurred in by Judges Hiscock and Cardozo. Therefore, whiie a majority of the court reversed the court below, there was in fact a majority which held the view that title vested in the survivor.

The reasoning of Judge Collin appears sound and the following is quoted therefrom:

"The common law ruled that a conveyance to two persons, who were then husband and wife, created and vested in them an ownership as tenants by the entirety. The conveyance was treated as being to a unity and as creating an indivisible title or ownership. The rule was based on the doctrine of unity of person created by marriage. The overwhelming weight of judicial decision within the United States, amounting indeed almost to unanimity, is that the rule is not abrogated — tenancy by the entirety is not abolished — by the various statutes generally denominated the ‘married woman’s statutes.’ * * * There is no statute which expressly or through legislative intention abolishes the title of tenancy by the entirety or annuls the common law rule. As already stated, the legislature removal of disabilities and restraints of the wife incident to the unity of person and the bestowal on her of capabilities have not disrupted the unity. The common law condition has been no further abrogated by the statutes than is to be understood from the unmistakable import of the language used in them. * * * Unity of person between a man and a woman is created by their marriage, and continues while they are husband wife. Stelz v. Shreck, 128 N. Y. 263; 28 N. E. Rep. 510; 13 L. R. A. 325; 26 Am. St. Rep. 475. A grant or devise to them of real estate creates an estate by the entirety, an estate held by them as one person under one title. The survivor, upon the death of the other, does not take a new acquisition, but holds under the original grant or devise, the estate being merely freed from participation by the other. There is no succession in or transfer of title. * * * ' When the conveyance here under consideration was executed, the grantees were husband and wife. A conveyance to them would vest in them an estate of tenancy by the entirety, unless it otherwise expressly stipulated. The statutes (Laws 1896, ch. 272, § 26; Laws 1892, ch. 594; Laws 1887, ch. 537, § 1; Laws 1880, ch. 472, § 1; Domestic Relations Law, §56) which authorized a conveyance between husband and wife did not disintegrate the unity of their persons created by the marital relation; no more did the conveyance by the husband made under the statutory empowerment and authority. If the statute which authorized the conveyance did not sunder the unity, the conveyance it authorized did not. They were the grantees therein, and the legal unity of persons receiving the indivisible, inseverable title to the property conveyed. There existed the legal unity which characterizes the relation of husband and wife and the conveyance to the husband and wife. The estate of tenancy by the entirety neither has nor requires another component. While there was the unity of person which begets and sustains the estate of tenancy by the entirety, under the statute each was wholly free, by contract, gift, grant, or devise, to vest any legal estate in themselves or the other. In Winter v. Winter, 191 N. Y. 462, 472; 84 N. E. Rep. 382, 386; 16 L. R. A. (N. S.) 710, we said: “ ‘The intervention of a trustee or third person is no longer necessary, even for the conveyance of real estate, or the partition thereof with bar to dower and curtesy * *
“* * * The argument might be made that the conveyance was in force and effect to the wife alone and in fee-simple, because a grantor cannot convey directly to himself; and it is well settled that where one of several grantees, for any reason, is incapable of taking, one or others capable of taking shall take the whole. Dewset v. Sweet, 1 Ambler’s Rep. 175; Humphrey v. Tayleur, 1 Ambler’s Rep. 136; McCord v. Bright, 44 Ind. App. 275; 87 N. E. Rep. 654; Cameron v. Sieves, 9 N. Brunswick, 141. Without assenting to such rule in its full substance and scope, and holding the opinion that it would have precluded the grantor from a tenancy in common with his wife, I think it is not apposite to the present conveyance. The ownership it devolved was in both grantees as one person. They, while both were living, held the estate as one owner under one title, and upon the death of the husband the wife was that owner under that title. Upon the vesting of an estate by entireties, both tenants, by reason of the unity of their person by marriage, become seized of the whole estate, and neither is seized of any divisible part thereof; and therefore, upon the death of one, the survivor, being already seized of the whole, can acquire no new or additional interest by virtue of his survivorship. Hiles v. Fisher, 144 N. Y. 306; 39 N. E. Rep. 337; 30 L. R. A. 305; 43 Am. St. Rep. 762. The husband did not convey to himself, but to a legal unity or entity which was the consolidation of himself and another.”

The views of Chief Judge Bartlett and Judge Collin have been recognized as those of the majority of the Court of Appeals repeatedly in the various courts of New York State, having been followed with approval by the Appellate Division in 1917 in Re Sorter’s Estate, 168 N. Y. Supp. 221, and by the Supreme Court, Erie county, in 1928, in Boehringer v. Schmid, 133 Misc. Rep. 236; 232 N. Y. Supp. 360, in which decision Mr. Justice Hinkley said:

“First, he contends that the deed of Joseph Schmid to himself and wife at best creates a tenancy in common, because it lacks the necessary elements of a joint tenancy, to wit, unity of title, interest, time, and possession. This contention rests upon the erroneous premise that the original title or interest of the husband remained in him after the giving of his own deed, while the wife’s title, coming to her by that deed, created a situation in which there did not exist a unity of title and time at -least. On the contrary, the ownership, title, and interest devolved upon both husband and wife as one person at the same time by virtue of his deed. The husband’s original estate was lost in the newly created estate. Each was seized of a whole and not a separate part, and there was, therefore, unity of title, interest, time, and possession. Hiles v. Fisher, 144 N. Y. 306, 313; 39 N. E. Rep. 337, 338; 30 L. R. A. 305; 43 Am. St. Rep. 762. * * * There is no doubt that in this instance the deed by Joseph Schmid to himself and wife expressed his clear intention to create in himself and wife a tenancy by the entirety, carrying with it the right to sole ownership in her upon his death. There is no necessity for the intervention of a trustee or third person, and there is no obstacle to the carrying out of the deceased grantor’s clearly expressed and undisputed intention.”

The various Surrogates Courts have followed these views in Re Vogelsang’s Estate, 122 Misc. Rep. 599; 203 N. Y. Supp. 364 (1924), and in Re Farrand, 126 Misc. Rep. 590; 214 N. Y. Supp. 793.

I, therefore, determine that deeds “A” and “B” vested title to the premises therein described in Ernest Cadgene and Marie Cadgene, his wife, as tenants by the entirety and upon the death of the said Ernest Cadgene his widow, the plaintiff, became the sole owner thereof.


author: Kinkeau, S. C. C.

text:
    HAROLD G. HOFFMAN, PLAINTIFF, v. TRENTON TIMES (DESIGNATED IN COMPLAINT AS TRENTON TIMES, INC.), A CORPORATION OF NEW JERSEY, AND JAMES KERNEY, Jr., DEFENDANTS.
    Decided October 30, 1939.
    For the plaintiff, Harry Green and George L. Burton.

    For the defendant Trenton Times, Pitney, Hardin & Shinner (Charles B. Hardin).

    For the defendant James Kerney, Jr., Douglas M. Hichs.

   Kinkeau, S. C. C.

This is a rule to show cause why a judgment of $30,000 recovered by the plaintiff against the defendant Trenton Times, Inc., and a judgment of $20,000 against the defendant James Kerney, Jr., in a libel suit should not be set aside on the ground that the verdict is excessive, and the result of mistake, passion or prejudice.

The defendant Trenton Times, Inc., is the publisher of the newspapers known as the Trenton Times, Trenton Sunday Times-Adverliser and the Trenton State Gazette. The defendant James Kerney, Jr., is the editor of the three newspapers.

The plaintiff instituted a suit for libel against the defendants based on the publication of three editorials and a headline which appeared in the newspapers.

The complaint contained four counts, the first of which was concerned with the publication in the Trenton Times of an editorial entitled “Other People’s Money” on January 24th, 1938. On this count the jury awarded plaintiff $10,000 against both defendants.

The second count was based on a headline which appeared in the Trenton Sunday Times-Advertiser on January 23d, 1938, which read as follows “Hoffman’s Last Minute Treasury Baid Distributed $1,765 to Office Attaches.” The jury awarded $5,000 damages on this count against the defendant Trenton Times, Inc., solely, the court having directed a verdict in favor of the defendant Kerney.

The third count was for the publication of an editorial entitled “A Treasury Baid” in the Trenton State Gazette on January 24th, 1938. The court likewise directed a verdict in favor of the defendant Kerney on this count and the jury awarded damages solely against the corporation in the sum of $5,000.

The fourth count was based on an editorial entitled “When Is a Bonus Not a Bonus” which appeared in the Trenton State Gazette on January 26th, 1938, and on which count the jury awarded the plaintiff $10,000 damages against both defendants.

Plaintiff had sought to recover both compensatory and punitive damages. The jury had been instructed to return any verdict favoring, plaintiff, in a form which would specify whether both compensatory and punitive damages had been awarded and if so, the sum awarded for each type of damages. Despite ample proof tending to establish express malice on the part of the defendants the jury made no award of punitive damages, the amounts recovered being for compensatory damages exclusively.

“Implied malice, in an action for libel, consists in publishing without justifiable cause, that which is injurious to the character of another. It is a presumption drawn by the law from the simple, fact of publication. Express malice consists in such a publication from ill-will, or some wrongful motive, implying a willingness or intent to injure, in addition to the intent to do the unlawful act. It requires affirmative proof beyond the act of publishing, indicating ill-feeling, or such want of feeling as to impute a bad motive. It does not become an issue, when the article is libelous on its face, unless punitive damages are sought.” Weir v. McEwan, 94 N. J. L. 92.

The proof as to malice consisted in the introduction into evidence of numerous collateral editorials and news items attacking the plaintiff, and cartoons of a ridiculing and defamatory nature, which appeared in the three newspapers at different times over a period of several years commencing in the fall of 1934 shortly before the plaintiff was elected governor of New Jersey. There was further proof that plaintiff, before starting suit, had written to defendants explaining the legality and propriety of his public acts which were being criticised and demanding a retraction. No retraction was ever made by defendants.

Thus it was reasonable to anticipate, that any verdict for plaintiff would include punitive damages. One of the contentions of the defense is that the verdict is excessive because the jury had been influenced by the proof of express malice, and had included a punitive award in its verdict of compensatory damages, instead of making separate awards of each type of damages, as the court had directed.

It is not mandatory, even where a plaintiff has conclusively proven express malice for a jury to award punitive damages. A jury could award a plaintiff such damages as would properly compensate the plaintiff, and then refuse to punish the defendant by assessing punitive damages. Such a verdict would have to be upheld. The failure to award punitive damages would not invalidate it. A jury is under a duty to compensate a plaintiff in a libel suit, where the facts justify that course, and the plaintiff would receive such compensatory damages as a matter of right. But punitive damages are not awarded as a matter of right, but rather as a matter of discretion, and where none are awarded a plaintiff has no recourse if his compensatory damages properly compensate him.

“Punitive damages in a slander suit are not awarded upon the theory of compensation to the suffered, but as a punishment to the offender and a warning to others.” Hulbert v. Arnold, 83 N. J. L, 114; 83 Atl. Rep. 497.

“That damages such as are called punitive or vindictive or exemplary may be awarded in actions of libel is a doctrine established by a long line of decisions. Mr. Addison says that wherever injury has been done to the fair fame, reputation or character of the plaintiff, juries are generally invited to give, and are justified in giving, such a sum as marks their sense of the maliciousness or recklessness of the wrongdoer in offering the insult and injury, their belief in the groundlessness of the charge, and their desire to vindicate the character of the plaintiff. Add. Torts 993.” Hoboken Printing Co. v. Kahn, 59 N. J. L. 218 (at p. 221); 35 Atl. Rep. 1053.

Where, as here, the jury is instructed to bring in separate awards of compensatory and punitive damages, the jury must, if it proposes by its verdict to punish the defendants, do so by awarding punitive damages-. The jury may not include a punitive award in a verdict which assesses compensatory damages exclusively.

The sums awarded to the plaintiff in the instant case, must therefore be tested as to their excessiveness, by having due regard for the fact that they represent solely, the jury’s intent to compensate the plaintiff.

The editorial “Other People’s Money” charged that the plaintiff was guilty of being responsible for a dishonest treasury raid. The following excerpts are. from that editorial:

“One of the most reprehensible and essentially dishonest treasury raids in the history of New Jersey was that put across in the last minutes of his administration by former Governor Hoffman.
“Instead of distributing largess to his office cronies by digging into his own pocket, Mr. Hoffman preferred to use $1,765 of other people’s money * * *.
“It would seem that there should be an official inquiry into this inexcusable raid. Maybe Mr. Hoffman can be compelled, as he certainly should be, to make good the $1,765 item from the $12,000 salary that he soon will be receiving as head of the State Unemployment Compensation Commission.
“The height of personal cheapness is reached by the man who seeks popularity by utilizing funds that don’t belong to him. But, in the case of Mr. Hoffman, that method of self-aggrandizement is precisely what New Jersey’s taxpayers have long since learned to expect.”

The editorial “A Treasury Paid” refers to the same incident and the following excerpts are taken therefrom:

“* * * In' view of the sordid record of the last three years, it is not surprising to learn of the last-moment scattering of public funds fox the benefit of the Governor’s collection of servitors in the executive office. * * *
“The affair has a rather unsavory tinge and in this respect it bears a close resemblance to a great deal more that has happened during these last three years.”

The following excerpts are from “When Is a Bonus Hot a Bonus ?”:

“Former Governor Harold G. Hoffman objects to criticism of his last-minute payments to favorites on his staff * * *. And he doesn’t like to have his action termed a Treasury raid.’ “* * * And in all probability the average citizen looks on the extra pay for Hoffman’s followers as an uncalled for raid on the long-suffering treasury of New Jersey.”

The plaintiff has been in public life for many years. In fact he has made public life his career. He is consequently dependent upon the good will of the people. The preservation of his reputation is vital, if that good will is to be retained; and therefore defamation which tends to destroy or injure his reputation would be fax more damaging to him than to the average citizen. The jury had the right to find that these different libels lowered the political standing and prestige of the plaintiff, that they caused him profound mental anguish, and that his general repute was gravely impaired.

“A new trial may be had for excessive damages, but in that case the damages ought not to be weighed in a nice balance, but must be such as appear at first blush to be outrageous and indicate passion or partiality in the jury.” 2 Tidd. Prac. 909.

Mr. Justice Hevins speaking for our Supreme Court as far back as the year 1850 in Somerville and Easton Railroad Co. ads. Doughty, 22 N. J. L. 495, held (at p. 497):

“This court has the power to set aside this verdict; but we will not exercise that power, unless we are clearly satisfied that it is wrong, exorbitant and oppressive, and so much so as to strike the mind of every reasonable man, at once, that the jury, from some cause, have done the defendants gross injustice. We cannot exercise this power rudely because we may think the verdict too high; * *

This principle of law has been repeated in numerous decisions since 1850, and in recent years Judge Kays in speaking for the Court of Errors and Appeals in Gee v. Moss et al., 108 N. J. L. 160 (at p. 161); 156 Atl. Rep. 458, held:

“The amount of the award is a matter primarily invested in the jury and the mere fact that the award is so high that the trial judge admitted that he, personally, felt it was too high does not compel the trial court to direct a rule to show cause why it should not be set aside. In other words, the mere fact that the verdict seems to the court to be excessive does not indicate that it is the result of mistake, passion or prejudice on the part of the jury, when there is sufficient evidence before the jury, which the jury might believe, to justify the verdict rendered.”

In Earl v. Times-Mirror Co., 196 Pac. Rep. 57, in which case a verdict of $25,000 compensatory damages in a libel suit was held not to be excessive, the court said (at p. 68) :

“In measuring the effect of a libel upon an individual, the jury is not confined to a consideration of the nature or purport of the words used, but is to consider also the effect upon the reputation of the plaintiff. It follows that, even though smaller judgments for more opprobrious words have been sometimes held to be excessive, it may, nevertheless, be true that the reputation of a man widely known, and who is seeking to maintain a reputation for public spiritedness and broadmindedness, may be greatly damaged by words of much less serious import. A man of less extensive reputation may, to some extent, overcome the effects of a libel by moving from one location in a city to another or from one community to another, while the man who is well known throughout the entire city or community -cannot escape the effects of a libel, even if he had the desire to move from one place to another for that purpose.”

In the case of Evans v. Star Co., 209 N. Y. Supp. 267, the Supreme Court of New York county held that a verdict of $100,000 compensatory damages and $25,000 punitive damages was not excessive in a libel suit in which only one libelous article was charged against the defendant. In another New York case, Tillotson v. Cheetham,, 2 Johns. 63 (at p. 74), Chief Justice Kent held) :

“We have no standard by which we can measure the just amount, and ascertain the excess. It is a matter resting in the sound discretion of a jury. The plaintiff, when libeled, was a high and confidential officer of government, and by the libel he is held out to the world as an object of reproach. He is represented as being seduced into unworthy and dishonorable conduct, by motives equally mean and unworthy.”

And again in Coleman v. Southwick, 9 Johns. 45 (at p. 51) ; 6 Am. Dee. 253, Chief Justice Kent writes:

“The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality, or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say that, in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries.”

In New Jersey in the case of Hulbert v. Arnold, supra, a verdict of $10,000 in an action for slander was approved, and our Supreme Court in Zambory v. Csipo, 3 N. J. Mis. R. 153; 127 Atl. Rep. 573, held that a verdict for $10,000 in an action for libel was not excessive. The plaintiff in the latter case was a Hungarian banker who was by no means an important state or national figure. Moreover the libel was printed on a circular and apparently its circulation was limited to a restricted circle.

The plaintiff in the case sub judice is an important state and national personage. The combined circulation of the three newspapers was over ninety thousand, and it is quite reasonable to assume that they have over two hundred and fifty thousand readers, so that a striking contrast is furnished to Zambory v. Csipo, supra, which contrast is most persuasive that the verdict in the instant case is not excessive.

Then too it must be borne in mind that the plaintiff’s verdict against the corporation was not for one libel based on a single cause of action, but for four separate libels, and that the lesser verdict against the defendant Kerney was for two separate causes of action.

Unquestionably the sums awarded to the plaintiff were large. But although they could very properly have been smaller, they cannot be adjudged, in the light of the evidence, to be so manifestly excessive as to be the result of mistake, passion, or prejudice.

The rule to show cause is discharged.


author: Case, J.

text:
    IN THE MATTER OF THE ACQUISITION OF THE LAND AND PROPERTY OF CANDA REALTY COMPANY, SITUATE IN THE BOROUGH OF CARTERET, COUNTY OF MIDDLESEX, STATE OF NEW JERSEY, IN WHICH THE BOROUGH OF CARTERET, JOHN MEDVITS AND THE AMERICAN OIL COMPANY CLAIM SOME INTEREST, ON PETITION OF THE CENTRAL RAILROAD COMPANY OF NEW JERSEY.
    Decided November 2, 1939.
    Before Justice Case, pursuant to the statute.
    Bor Canda Realty Company, Wall, Haight, Carey & Hartpence.

    For Central Railroad Company of New Jersey, William F. Hanlon.

   Case, J.

The Central Railroad Company pursued the procedure set up in the Eminent Domain act (R. S. 20:1-1, et seq.) to condemn certain real estate of the Canda Realty-Company. The proceedings moved regularly to the filing by the commissioners of their report. The owner has taken an appeal from the award; and with that we are not concerned. The owner now applies for an order directing the petitioner in condemnation to pay the owner’s costs, counsel fees, expenses and disbursements incurred in, and in preparation for, the submitting of proofs to the commissioners. The application is rested upon two provisions of the Eminent Domain act (R. S. 20:1-14 and 20:1-30), and also the Eees and Costs act (R. S. 2:27-378).

R. S. 20 :1-30 may be quickly disposed of. It relates only to an abandonment of the condemnation, and there has been no abandonment either in whole or in part.

R. S. 20 :1-14 likewise, in my opinion, is inapplicable. It provides that “the justice of the Supreme Court * * * shall, upon application of either party on reasonable notice, tax and allow such costs, fees and expenses of the commissioners, clerks and other persons performing any of the duties prescribed in section 20:1-1 to 20:1-13 of this title as he shall think proper, which shall be paid by the petitioner.” Eone of the charges for which the owner seeks an allowance is on behalf of a commissioner, clerk or other person performing any duty prescribed in those sections of the statute which precede 20:1-14. The statute further, at 20:1-25, in dealing with the situation which exists when an appeal has been taken and the jury has found an amount to be due, provides that “the persons entitled to receive payment of the amount found by the jury may have execution therefor, and shall also be entitled to the same lien and remedies as are provided in section 20:1-13 of this title for the collection of awards of commissioners;” the provision, it will be observed, conspicuously omits the fourteenth section supra. In Matter of Bay Creek Railway Co., 18 N. J. L. J. 342, Mr. Justice Lippincott, construing a portion of section 100 of the act respecting railroads and canals, Revision page 909 (at page 929), from which section 14, supra, is taken almost verbatim (indirectly through section 7 of chapter 53, Pamph. L. 1900, as amended by chapter 365, section 6, Pamph. L. 1931), said:

“I think it is also clear under the statute that the justice of the Supreme Court has no power to tax or allow any costs, fees or expenses under the one hundredth section of the act until an award has been made and filed in accordance with the statute, and then they can only be taxed and allowed to the persons named in that section as performing some of the duties prescribed by that section.
“I think it is clear that under no circumstances can the justice of the Supreme Court tax and allow for services of counsel and attorney of the landowner; or expenses to the landowner incurred in the presentation of the question of value and damages in behalf of the landowners.”

My attention is called to a condemnation proceeding had in 1918 before Chief Justice Gummere on the application of United New Jersey Kailroad and Canal Company to acquire an interest in the lands or easements of Fidelity Trust Company as administrator, &c., wherein, after several hearings by the commissioners and after much time had been given to the case, the chief justice, on the. application of the railroad company, amended the petition for condemnation so as to permit the taking of only a fractional part of the property — of much less value — demanded in the original petition. Incidental to that order the chief justice directed the taxation and allowance of costs, counsel fees, expenses and disbursements up to that time the same to be paid by the United Eailroad and Canal Company to the owner of the property. That determination, I think, is not relevant to the present issue. It was an allowance obviously made on the basis of a pro tanto abandonment of the proceedings and came within section 15, chapter 53, Pamph. L. 1900, amended by chapter 69, Pamph. L. 1906, re-enacted in part as section 30, supra.

It was considered by Mr. Justice Parker in In re Jersey City Condemnation Proceedings, 49 N. J. L. J. 142, that the Pees and Costs acts do not relate to proceedings under the Eminent Domain act. R. S. 2:27-378 does not, I think, apply.

The right to costs depends upon statutory authority. Igoe Bros. v. National Surety Co., 112 N. J. L. 243, 251. NTone has been shown. The application will, therefore, be denied.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EMMA L. MAPES, PETITIONER, v. D. STEPHEN THRALL, DOING BUSINESS FOR THE NATIONAL CASH REGISTER CO., RESPONDENT.
    Decided October 19, 1939.
    For the petitioner, David BosTcein.

    For the respondent, Gox & Walburg (by Arthur Mead).

   From the testimony adduced, and the stipulations of counsel, I find that on October 14th, 1936, Alfred B. Mapes, husband of the petitioner, was in the employ of D. Stephen Thrall, doing business as the National Cash Register Co., as a repair man and mechanic. In the early morning of that day, about 9:30 a. m., decedent arrived at the place of business of L. W. Johnson, Incorporated, at 4 Washington street, East Orange, New Jersey, a customer of his employer, for the purpose of repairing a cash register located at the customer’s store premises.

After attempting to make such repairs unsuccessfully for about twenty minutes to one-half hour he indicated that it would be necessary to remove this register to his employer’s place of business for further repairs and that the decedent would substitute in its place a register which he had brought along in an enclosed body, suburban type, delivery truck, which was parked on the street in front of the customer’s store. The decedent advised Fred W. Johnson who was in charge of the store, that he, the decedent, would have to move some of the registers which were located within the truck, in order to get the one which was to be substituted for the customer’s register requiring repairs, and further requested the said Mr. Johnson to be available to lend a hand in carrying same in from the truck to the store. Accordingly the decedent left the store, proceeded to the street where the truck was stationed, opened the. back doors thereof and was seen reaching into the interior with his extended arms, upper body, shoulders and head. One of his legs was raised backwards off the ground and his entire body from the waist up seemed to .be within the interior of the truck. He was then observed to remain in this position with his body, shoulders, head and extended arms bent forward, reaching into the interior thereof and one of his legs raised backwards and upward from the ground, for a period of about five minutes. The witness Johnson and another witness Olson, observing this unusual posture which did not appear to change, walked to the rear of the truck and found, the decedent with both arms around a cash register which was about one and a half to two feet from the back end of the truck, and his head resting on its keys or keyboard. He was found to be breathing hard, his face was blue, bloated and his tongue was sticking out. With the exception of a slight movement of one of his arms, he did not move thereafter, remaining in that position, until the police arrived .and the ambulance surgeon pronounced him dead.

The register about which the decedent had his arms and on which his head, was resting, was the register which was to be taken into the customer’s store and weighed about two hundred and- forty pounds. The position in which this register was found'was such as to indicate that it had been moved to that position from elsewhere within this truck by the decedent. The witness, the police officer, stated that the rear doors of the truck could not be closed because of the position of this register at the rear end of the truck and also testified that there were other registers therein located but that they were all nearer to the front end and side thereof.- Others testified that the machine over which the decedent was found slumped, was near the back or rear of the truck while the other registers within the vehicle were stationed on the front end or side behind the driver’s seat. The witness Johnson also testified that he saw the decedent in the act of moving registers from the interior of the truck towards the rear end performing this operation by means of his extended arms and body inside the truck while the decedent stood on the street at the rear of the truck with one of his legs raised backwards and upwards.

Dr. George P. Olcott, Jr., assistant medical examiner for Essex county, arrived shortly after this occurrence, and had the body removed to the morgue where he performed an autopsy. Dr. Olcott testified that the decedent’s heart on autopsy showed definite signs of a chronic myocarditis which unquestionably was of long duration and pre-existed the date of the accident. He furthermore found the heart to be flacid, that it showed replacement of a considerable amount of its normal tissue with fibrous tissue, was of a greyish cast in color, brittle, thinned out and the chambers of the heart were relaxed. He described the condition which he found, as a dilatation of the ventricle of the heart. The medical examiner was of the opinion that the dilatation of the ventricle of the heart, as he found it on autopsy, indicated that an exertion had precipitated the decedent’s death. He was of the further opinion that the exertion of moving the cash register would undoubtedly be and was such an exertion as to cause the dilatation of the decedent’s heart and the ensuing death.

Dr. Asher Yaguda also testified on behalf of the petitioner. He stated that the cause of the decedent’s death was an acute dilatation of the heart due to an over-exertion and that in all probability the over-exertion was the moving of the heavy cash register which his arms encircled and upon which he was found dead. There was no medical or lay testimony offered by the respondent. There is no doubt in my mind; and the proofs more than adequately support the fact, that the decedent was suffering from a chronic myocarditis prior to and on the date of his death. Dr. Olcott’s findings and autopsy are to this effect. The undisputed evidence is conclusive that the over-exertion of the decedent in moving the heavy cash registers, including the one designated for the Johnson store, was the cause of the acute dilatation of the heart and the precipitating cause of his death and I so find.

The rule of law applicable to the situation here presented was enunciated in Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832, to be that an accidental strain of a heart, which was previously weakened by disease, may be a compensable injury under our statute where the accident arose out of and in the course of the employment. There the decedent’s work was that of delivering and moving furniture and while delivering some furniture from a truck he carried a heavy settee up several flights of stairs to the fourth floor of a house where the furniture was to be delivered, put it down at a designated point within the apartment, went over to the window, slumped over and died. There was no impact or striking of his body or head as he fell. This occurrence was held by our court of last resort to be an accident within the meaning of the Workmen’s Compensation act and that the death was held to be one resulting from an accident arising out of and in the course of the employment.

In Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, the deceased, employed as a milk truck driver and delivery man, while ascending a hill to return to his truck after making a delivery, felt a sharp pain-in his side. It appeared that he suffered a coronary thrombosis and died shortly thereafter. The Court of Errors and Appeals held that there was no doubt that he suffered a strain of the heart in the course of his employment and that it made no difference that his heart had been weakened by the strain of work over a long period of time prior to the occurrence. An award of compensation was granted to his widow. Similarly the same court ruled in Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, that death from disease alone during the employment will not suffice but injury or death which on proofs that are sufficient and persuasive, would not have occurred but for the services rendered in the employment, amount to injury by accident.

The undisputed proofs in this case clearly indicate and I find, that but for the efforts that were put forth by the decedent in moving the cash registers on the day in question, and the exertions expended by him incident thereto, his death would not have occurred at the time, date and place that it did occur. The uncontroverted medical testimony adduced by the petitioner in this regard, adequately supports this conclusion. The evidence presented on behalf of the petitioner, clearly indicates that the exertion and strain which the decedent engaged in at the time that he endeavored to and did move one or more of the registers within the delivery truck, are related and connecting links in a chain of causation that resulted in the heart attack and death, and I so find.

*******

Hakby S. Medinets,

Deputy Commissioner.