text:
    ADELINE M. OVEREND, PLAINTIFF-RESPONDENT, v. JAMES M. KIERNAN, JAMES W. KIERNAN AND JOSEPH PERLMUTTER, DEFENDANTS-APPELLANTS.
    Submitted January 28, 1927
    Decided June 27, 1927.
    Contracts — Rent and an Arrangement to Co-operate in Business —Defendants’ Company Became Bankrupt and Plaintiff Evicted — Another Entered Into and Another Eviction of Plaintiff — Suit Based on Fraud and Deceit — Judgment For Plaintiff — Defendant Kiernan Appeals — Grounds Held Inadequate.

      On appeal from a judgment of the Hudson County Circuit Court.
    Before Justices Kalisoh, Katzeybach and Lloyd.
    For the appellants, Frank J. Higgins and George L. Record.

    For the respondent, William E. Sewell and Benjamin E. Gordon.

   Per Curiam.

This is a defendant’s appeal from a judgment of the Hudson County Circuit Court. The plaintiff, Adeline M. Overend, was a milliner. She claimed that in March, 1923, she had been approached by the defendants, who were stockholders in Perlmutter’s, Incorporated, a corporation conducting a department store in the city of Jersey City, and was asked to open a millinery shop in the upper floor of the building occupied by the corporation. The plaintiff contended that it was represented to her that the corporation had a long term lease upon the building, that it was financially sound, and that the suggested arrangement would be a profitable one for ber. The, negotiations ripened into an agreement dated April 25th, 1923, made between the corporation and the plaintiff, by which the corporation leased to the plaintiff six hundred square feet of space on the second floor of JNo. 116 Monticello avenue, in the city of Jersey City, for the purpose of conducting a millinery shop, together with the right to use the entrance of the building for the ingress and ogress of her customers, &c. The term was for three years with the privilege of a renewal of the lease for two additional years. The rent for the first three years was to be ten per cent, of the gross income of the plaintiff’s business, and for the next two years, if the privilege of renewal was exercised, fifteen per cent, of the gross income. The representation made to the plaintiff as claimed by ber was that the corporation had a twelve to fourteen-year lease covering the entire building. Tbe corporation liad no lease on the premises. This was known to James W. Kiernan and to Joseph Perlmutter. Another defendant, James M. Kiernan (referred to as the older Kiernan) , was made a defendant to the suit, but during the course of the trial he was' granted a nonsuit.

Six weeks after the making of the lease the corporation was thrown into bankruptcy. The plaintiff was evicted. She later retook possession of the premises under a new arrangement with Joseph Perlmutter, and was again evicted on February 4th, 1924. The action then instituted by the plaintiff was based on fraud and deceit. The plaintiff had paid to Joseph Perlmutter for what was termed “the rights of the place” $450.

The complaint contained two counts. One was for the fraud and deceit and the other was for the recovery of the $450. James W. Kiernan (referred to as the younger) had nothing to do with the second eviction. He was therefore not concerned with the second count. The jury rendered a verdict for the plaintiff of $6,000 on the first count and $450 on the second count.

A rule to show cause was allowed the defendants by the trial judge. In a well-considered opinion he discharged the rule to show cause. The charge of the court at the trial was full. The trial judge went over tire case carefully, outlining clearly in his charge the respective rights of the parties.

The appellant in this case is Kiernan (the younger). Perl-mutter has not appealed from the judgments. There were only two exceptions taken to the charge of the court. These exceptions were taken in behalf of Perlmutter. Kiernan cannot take advantage of the exceptions taken by Perlmutter. In McKeown v. King, 99 N. J. L. 251, the Court of Errors and Appeals held that where one of several joint defendants takes an exception to a portion of the charge of the trial court and the defendant so excepting subsequently abandons said exception by omitting to state it as a ground of appeal, another joint defendant cannot avail himself of said exception. The exceptions to the court’s charge in the present case will not be considered.

There are only two questions which can be considered on this appeal. The first is, Was the motion to nonsuit properly refused? The second is, Was the motion to direct a verdict for Kiernan (the younger) properly refused?

The motion to nonsuit was, we think, properly refused. If there is any evidence, no matter how meagre, to support a plaintiff’s cause of action the plaintiff has the right to have the case submitted to the jury. Barry v. Borden Farm Products Co., 100 N. J. L. 106; Dellabello v. Central Railroad Co. of New Jersey, 99 Id. 348. In the present case the testimony given by the plaintiff was explicit with reference to the statements made by both Kiernan (the younger) and Perl-mutter as to the length of time for which the corporation had a lease upon the premises. The lease made to the plaintiff fox a term of thxee years with a privilege of two is corroboration of these statements. The corporation was only a monthly’ tenant. The plaintiff also gave testimony with reference to what was said to her regarding the financial condition of the corporation. Testimony was offered in behalf of the plaintiff at the trial that for many months prior to the making of the lease to her the corporation had been financially embarassed. These and other facts which were for the jury to pass on justified the refusal of the trial court to grant a nonsuit.

What has been said with reference to the motion to nonsuit applies equally to the motion to direct a verdict.

We have considered the questions raised upon their merits. We have had some hesitancy in doing so as in the case of Catterall, Admrx., v. Otis Elevator Co., 135 Atl. Rep. 865 (not as yet officially reported), it was said in an opinion by Mr. Justice Trenchard, speaking for the Court of Errors and Appeals, that:

“A reason assigned for a new trial that the verdict is contrary to the weight of the evidence, which reason was argued, considered and decided, is necessarily embraced within exceptions to the refusal to nonsuit and to direct a verdict which were resolved in the rule and therefore such exceptions cannot be considered on appeal.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JULIUS H. SCHWARTZ, DOING BUSINESS AS PASSAIC COUNTY REALTY COMPANY, PLAINTIFF-RESPONDENT, v. ADOLPH WEINSTEIN, DEFENDANT-APPELLANT.
    Submitted January 28, 1927
    Decided June 27, 1927.
    Sale of Real Estate — Agent’s Commissions — Contract Entered Into but Time Limit Expired Before Customer Had Been Found — Parol Agreement to Extend Time Alleged — Held, That No Written Agreement Relating to Commissions Existed at Time Customer was Found and That the Statute of Frauds Makes Such an Agreement a Condition Precedent to Recovery — Judgment For Plaintiff Reversed.
    On appeal from a judgment of the Passaic County Court of Common Pleas.
    Before Justices Kalis ch, Katzenbach and Lloyd.
    Eor the appellant, Feder & Binzler.

    Eor the respondent, BosenJcrans & BosenJcrans.

   Per Curiam.

This is an appeal from a judgment of the Passaic County Court of Common Pleas rendered in favor of the plaintiff. The suit was instituted by Julius H. Schwartz, the plaintiff, against Adolph Weinstein, the defendant, to recover commissions under an agreement in writing which made Schwartz the exclusive agent of Weinstein to sell-or exchange property of Weinstein, known as No. 61 Bridge street and Nos. 63-65 Hamilton avenue in the city of Paterson, valued at $32,000. The agreement contained these words: “I also agree to pay to the above-named agent a commission of two and one-half per cent, on the purchase price. This option shall expire June 15th, 1924."

Nothing was done prior to June loth, 1934, which was the date of expiration of the option. This is admitted. The contention of the plaintiff, however, is that there was an oral extension of this option. On July 3d, 1934, Schwartz procured certain parties to exchange lands in Paterson located on Madison avenue for the property of Weinstein. The parties obtained by Schwartz expressed their willingness to enter into an agreement to make the exchange. The plaintiff insists that this agreement was dictated in the presence of Weinstein and that it was agreed to by him, although the agreement, which is supposed to be a part of the record, but is not printed, was never executed by Weinstein and his wife.

The testimony offered by the plaintiff was to the effect that the terms of the exchange were agreed upon; that an agreement was dictated; and that Weinstein heard it dictated and examined it. The position taken by Weinstein is that the option had expired and that even though the agreement was written out for the exchange of the property, he never executed it and never executed any written extension of the option given to Schwartz. There was admittedly no written extension of the option. The extension depends upon the testimony of Schwartz. The court below submitted the case to the jury upon the theory that a written extension of the option was not required and left it to the jury to determine whether or not the owners of the Madison avenue property were ready, willing, and able to exchange their property for the Weinstein property, and whether or not they were produced or secured by the plaintiff. The agreement for the exchange was not signed by all of the owners of the Madison avenue property but there was evidence that they were prepared to sign it, if Weinstein had been willing to execute it. There was no motion to direct a verdict for the defendant. There were no exceptions taken to the judge’s charge which assumed that an oral extension of the written option was all that the plaintiff had to prove. There was, however, a motion to nonsuit made. The grounds stated for the motion were that the option had expired and there was no written extension, of the same. The motion was denied. An exception was duly taken.

We are of the opinion that the motion should have been granted. The agreement in writing with the plaintiff had expired by the limitation contained therein. The plaintiff in order to come within the statute of frauds was obliged to show a written authority. The statute is explicit that no broker shall be entitled to any commission for the sale or exchange of any real estate unless the authority for selling or exchanging such real estate is in writing and signed by the owner of his authorized agent. 2 Comp. Stat., p. 2617, § 10. The plaintiff had no written authority because the agreement had expired. A contract within the statute of frauds cannot be modified by a parol agreement. Hambleton v. Granite Co. (Vt.), 118 Atl. Rep. 878. Where a land contract is in writing an agreement modifying its provisions, such as extending time for payment of the purchase price, cannot be proved by parol. Abrams v. Eckenrode (Md.), 110 Id. 468. In Kenner v. Chanin, 98 N. J. L. 38, it was held that contracts coming within the express provisions of the statute of frauds are excepted from the rule allowing written contracts to be varied by subsequent oral agreement between the parties.

The plaintiff to recover in the instant case was obliged to have a contract in writing in order to recover his commissions from the defendant. This, as stated, he did not have because of the expiration of the time fixed in the written agreement. No oral agreement extending the date of the option supplied this defect because in the case of contracts coming within the statute of frauds there is an exception from the rule allowing merely written contracts to be varied by subsequent oral agreements.

The judgment is reversed, with costs.


text:
    PERCY C. SIMPSON, ADMINISTRATOR AD PROSEQUENDUM OF ALBERT G. SIMPSON, DECEASED, PLAINTIFF, v. JERSEY CENTRAL POWER AND LIGHT COMPANY, A CORPORATION, DEFENDANT.
    Submitted January 28, 1927
    Decided June 27, 1927.
    Negligence — Death—Contact With High Voltage Lighting Wire —Evidence of Negligence of Owner In Failing to Keep Pole Carrying Wire in Good Condition — Evidence of Ownership— No Evidence of Contributory Negligence Per Se — Verdict of $8,000 Held Excessive and Reduced to $6,000 or New Trial Awarded.
    On defendant’s rule to show cause.
    Before Justices Kalisoh, Katzenbach and Lloyd.
    Por the rule, Frank G. Turner.

    Contra, Howe & Davis.

   Per Curiam.

This case is before this court on a defendant’s rule to show cause. It was a death case. The plaintiff recovered a judgment against the defendant for $8,000. The plaintiff’s intestate, Albert G. Simpson, was a boy of sixteen years of age. Early in the morning of August 1st, 1925, he accompanied William Kauffman, the driver of a bread delivery truck owned by the Williams Baking Company, on a trip from Newark to Keansburg in the county of Monmouth. The bread had been delivered at Keansburg. The truck was on its return trip to Newark. Besides Simpson and the driver, a Mr. and Mrs. Demeter, with some of their household furnishings, were being brought from Keansburg to Newark. A heavy rain storm had taken place during the preceding evening. As the truck was proceeding along Thompson avenue in the township of Middletown, Simpson cried out, “The pole is falling.” A pole suddenly fell in front of the truck. The truck was stopped. Simpson got off of the truck with the intention of assisting the driver to back up the truck. The night was dark. Simpson was heard to cry for help. Kauffman could not see him. After he had backed the car the lights of the car showed Simpson lying on a lawn beside the road with a wire curled around his leg. He was unconscious. A call for help was made. Neighbors were attracted by the call. One, Mr. Bleiler, who lived directly opposite where the accident took place, was an expert electrician and extricated Simpson from the wire. Simpson could not, however; be resuscitated. His death was due to the electric current which was carried through the wire into his body.

Bleiler testified that the wire came off the top point of the pole; that it was a high tension No. 4x6 wire; that the insulation was gone from the wire for a distance of about six inches; that this was the portion of the wire which stuck into the boy’s leg; that it was such a wire as is used to supply light through a transformer; that the pole which fell was rotten at its base; that an inspection, if it had been made, of the pole would have shown that it was in a rotten condition; that on this particular pole an unusual strain was put due to the fact that it was not on a straight line between the poles on each side of it; that where a pole is out of line with others a back guide should be put upon it, and there was no back guide for this pole.

It was also shown that the defendant company supplied electric current for lights in the neighborhood where the accident occurred. There was no evidence that upon the pole which was erected in place of the fallen pole the letters J. C. P. & L. Co., the initials of the corporate name of the defendant, were painted in black. Simpson, at the time he was killed, was working for the Castles Ice Cream Company. He was earning $30 per week. He gave this to his mother. He was a steady worker and of good habits. The cost of his board and clothing was about $15 per week and he was allowed some two or three dollars per week spending money.

Under the rule to show cause the defendant argues — first, that the trial court erred in refusing to direct a judgment of nonsuit. The grounds of this motion were several. It was urged that there was no proof that the defendant company owned the poles or used the wires in transmitting electric current. The testimony which has been mentioned was sufficient from which ownership of the poles and operation of the wires could be inferred. It was also urged that the company had no knowledge of the condition of the pole. If the pole was in such a condition as testified to by Mr. Bleiler the defendant should have had knowledge of its defective condition as it had evidently existed for some time. The proof of the accident also brought the case within the doctrine of res ipsa loquitur. Newark, &c., Power Co. v. Ruddy, 62 N. J. L. 505.

While the brief alleges six grounds, the grounds which have been considered are repeated in the fourth, fifth and sixth subdivisions of the argument upon this point. We think there was ample proof to justify the refusal of the trial court to nonsuit the plaintiff.

The second point argued for the defendant is that the decedent was guilty of contributory negligence and that a nonsuit should have been entered on this ground. The evidence clearly presented a case where the contributory negligence of the decedent was a question to be submitted to the jury. There was nothing in that which the decedent did at the time of the accident which amounted to contributory negligence per se.

The third point argued in behalf of the defendant is that the trial court erroneously charged the jury as follows:

“This boy came in contact with a wire, and there appears to have been but one broken. It is for you to say whether or not from those facts the death occurred from contact with a broken live electric high tension wire.”

There was testimony that there was but one wire broken and that there passed through this wire a high tension electric current. We see no error in this comment of the trial judge.

The fourth point deals with that portion of the charge in which the court said it was for the jury to determine whether or not it was the defendant company that was in the operation and control of the poles and line. There were facts testified to and which have been referred to from which the jury could find that the defendant was in the operation and control of the wire and high tension line causing the accident. The evidence presented a question of fact for the determination of the jury. The court did not err in leaving this question for the jury.

The next point is that the trial judge erred in charging as follows: “Reasonable care means great care; so that the care required to maintain the line and the poles upon which they were carried means great care.” This statement of the law is sanctioned by the charge in the case of New York and New Jersey Telephone Co. v. Bennett, 62 N. J. L. 742, in which the Court of Errors and Appeals said: “One factor in the measure of reasonable care is the probable result of negligence. In the use of powerful electric current in the public streets, reasonable care is great care.”

The defendant next criticizes the following portion of the court’s charge:

“If the voltage was sufficient in those wires to destroy the life of a human being with whom they come in contact, it will be for you to say whether or not the current carried was a dangerous current and, if it was, it was the duty of the company to inspect and repair or replace any defective poles on which such wires are carried.”

We find no exception to this part of the charge. It will, therefore, not be considered.

The seventh point argued by the defendant is that the trial court erroneously refused to direct a verdict in favor of the defendant. This presents the same question as was presented upon the motion to nonsuit. We have fully covered it and sustain the court’s ruling in refusing to direct a verdict.

The final question argued in the defendant’s brief is the excessiveness of the verdict. Had the deceased lived he would have been twenty-one years old in five years. It is always problematical what a boy will do with his earnings when emancipated. We think the verdict of $8,000 is excessive. In Hoar v. Public Service, 4 N. J. Mis. R. 716 (not officially reported), a verdict of $4,500 for the death of a boy slightly under seventeen years of age was held to be excessive to the extent of $1,500. In this case the boy was indolent and lacked ambition. The deceased in the present case appears to have been ambitious and worked hard. If the plaintiff will consent to a reduction of the verdict to $6,000 the rule will be discharged, otherwise it will be made absolute.


text:
    STATE OF NEW JERSEY, EX REL. ISAAC RASKIND, RELATOR, v. THOMAS J. DOWLING, INSPECTOR OF THE BUILDING AND PLUMBLING DEPARTMENT OF THE CITY OF ORANGE, AND THE CITY OF ORANGE, RESPONDENTS.
    Submitted January 29, 1927
    Decided July 9, 1927.
    Zoning — Apartment-House in Residence District — No Appeal to Board of Adjustment — Writ Denied.
    On application for writ of mandamus.

    Before Gummere, Chief Justice, and Justice Trey-chard.
    Eor the relator, Levy, Fensier & McQloslcey (John J. Mc-ClosTcey, of counsel).
    For the respondents, William A. Calhoun.

   Per Curiam.

The relator applied to the building inspector of the city of Orange for a permit to erect a four-story brick apartment-house on premises owned by him in that city. The building inspector denied the permit for the sole reason that the land in question was in residence “A” district, which was zoned against apartment-houses.

The relator thereupon obtained an alternative writ of mandamus to which a return was made, which was demurred to. There is also presented a stipulation as to the facts.

It thereby appears that the city of Orange has a board of adjustment, whose powers have been amplified by the act of 1926, chapter 315, and that no appeal was taken by the relator to that board. In that situation the relator is not entitled to a writ of mandamus against the building inspector. So the Supreme Court has determined in several cases. See Burg v. Ackerman, 5 N. J. Mis. R. 96; Paramount Realty Co. v. Schmitt, 5 Id. 177; State v. Dowling, 5 Id. 180.

The application for the writ of mandamus must be denied, with costs.


text:
    ANNIE BOYLE AND FRANCES DILLEY, PLAINTIFFS-RESPONDENTS, v. NATIONAL UNION BANK, DEFENDANT-APPELLANT.
    Submitted June 1, 1927
    Decided July 9, 1927.
    Gifts — Bank Account — Court Charged That There was No Evidence to be Relied Upon Regarding Withdrawals — Held, Error, as There was Such Evidence.
    On appeal from the Morris County Common Pleas Court.
    Before Gummere, Chief Justice, and Justice Trenchard.
    For the appellant, King & Vogt (Elmer King, of counsel).
    For the respondents, Leon E. Gone.

   Per Curiam.

This is the defendant’s appeal from a judgment entered upon a verdict for the plaintiffs.

The appeal was dismissed by this court for failure to prosecute, but was subsequently reinstated, and is now before us for consideration.

The case was tried by plaintiffs upon the theory that there was a gift of the bank account in controversy by Patrick Boyle in his lifetime to the plaintiffs, and it was submitted to the jury upon that theory, and the jury evidently found a gift.

Manifestly, withdrawals of money from that account from, time to time by Patrick Boyle, after such alleged gift, would tend to show his retention of dominion and control of the account, and so negativo the plaintiffs’ theory of a gift.

Now, the trial-judge charged that “there is no evidence in this case that you can rely on as to who made these withdrawals.” In so charging the trial judge erred because there was ample evidence from which the jury could have properly concluded that these withdrawals, after the alleged gift, were made by Patrick Boyle. And that charge was not only erroneous but it was prejudicial to the defendant.

The judgment will be reversed and a venire de novo awarded.


text:
    ELKAY REALTY COMPANY, A CORPORATION, RELATOR, v. IRA T. REDFERN, BUILDING INSPECTOR OF THE VILLAGE OF SOUTH ORANGE, AND THE VILLAGE OF SOUTH ORANGE, RESPONDENTS.
    Submitted January 29, 1927
    Decided July 9, 1927.
    Zoning — Stores and Apartments in Restricted Territory — A Board of Adjustment Existed in the Municipality and Relator Did Not Appeal Thereto — Writ Denied.

      On application for mandamus.

    Before Gummere, Chief Justice, and Justice Trenchard.
    Eor the relator, Edward Fenias (Elias A. Ranter, of counsel).
    For the respondents, Rilcer & Rilcer (Thomas E. Fitzsimmons, of counsel).
   Per Curiam.

■This is a zoning case. The relator applied to the building-inspector of the village of South Orange for a permit to erect a two-story brick and tile building containing six stores on the first floor and four living apartments on the second floor, on property he held in the village.

The building inspector denied the permit for the sole reason that the proposed building was contrary to the building zone ordinance in that the land in question was zoned against buildings of the type proposed.

The relator obtained an alternative writ of mandamus; there is a return to the writ, a demurrer to the return and a stipulation as to the facts. It appears thereby that the village has a board of adjustment whose powers have been amplified by the act of 1926, chapter 315, and that no appeal was taken to that board. In that situation the relator is not entitled to a writ of mandamus against the building inspector. So the Supreme Court has determined in several cases. See Burg v. Ackerman, 5 N. J. Mis. R. 96; Paramount Realty Co. v. Schmitt, 5 Id. 177; State v. Dowling, 5 Id. 180.

The application for the writ of mandamus must be denied, with costs.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY HAINES, PLAINTIFF IN ERROR. THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY HAINES, PLAINTIFF IN ERROR.
    Submitted January 29, 1927
    Decided July 9, 1927.
    Crimes — Selling Liquor Illegally — Case Came up on Bills of Exceptions and Assignments of Error Only — There was Only One Exception Taken at the Trial Which Has Been Assigned as Error, Refusal of Trial Judge to Direct a Verdict of Not Guilty — Judgment Affirmed.
    On writs of error to the Burlington County Court of Quarter Sessions.
    Before Gummere, Chtef Justice, and Justice TrenCHARD.
    For the plaintiff in error, Jonathan H. Kelsey.

    For the defendant in error, George M. Hillman, prosecutor of the pleas.
   Per Curiam.

The grand jury of Burlington county found an indictment against Haines, charging unlawful sale of intoxicating liquor on the 4th day of April, 1926, in the first count; the unlawful furnishing of intoxicating liquor on the same date in the second count, and the unlawful possession on the same date in the third count.

The grand jury also returned an indictment against the same defendant charging unlawful sale of intoxicating liquors on the 30th day of April, 1936, in the first count; the unlawful furnishing of intoxicating liquors on the same date in the second count, and unlawful possession of intoxicating liquors on the same date in the third count.

Both indictments were tried together. The jury found the defendant guilty of unlawful possession on April 4th, 1936, and guilty as charged on April 30th, 1936. The defendant was sentenced on both indictments, and such judgments are brought here for review.

The cases were argued here together. The assignments of error are eight in number and may be readily disposed of.

The cases come up by bills of exceptions on assignments of error only. There was only one exception taken at the trial which has been assigned as error, and the state of the record is such as to limit us to a consideration of that exception. It is: “Because the trial judge refused to direct a verdict of not guilty on both sale and possession on April 4th, 1936.” We think there was evidence which required the submission of the question of possession on April 4th, 1936, to the jury. We think it is to be found in the testimony of Robert Burns and Hope Burns. There was no' conviction of a sale on April 4th, 1936.

The judgments under review will be affirmed.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GERTRUDE SMITH, PETITIONER, v. LELAND MANNING, RESPONDENT.
    Diabetes Mellitus — Employe Injured, While Helping Mason, Through Fall of Pail of Mortar on His Head — Death Resulted From Diabetes — Evidence Very Conflicting Whether the Disease was the Result of the Accident — Compromise Settlement Proposed and Approved.
    On findings of fact and determination and rule for judgment.
    Eor the petitioner, Harvey llolhberg.

    Eor the respondent, Carl 8. Kvebler, of McDermott, En-right & Carpenter.

   A petition was filed by Gertrude Smith, alleging that she was thirty years of age and the widow of Louis Smith, who formerly resided at 336 East Fourth street, Plainfield, New Jersey, and that on October 29th, 1925, her husband sustained an injury as a result of an accident arising out of and in the course of his employment, when a pail of mortar fell on his head; that the petitioner’s husband died on October 2d, 1926, which death is claimed to have been brought about by said injury, and as a result thereof the petitioner in said petition claims compensation for herself and her son, Eufus B. Smith, in accordance with the provisions of an act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, as approved April 4th, 1911, and as amended thereafter.

The respondent filed an answer admitting that an accident occurred on or about October 29th, 1925, when a pail of mortar fell off a scaffold and hit the petitioner on the head, and that the petitioner died on October 2d, 1926, but the respondent further set forth in said answer that the deceased recovered from the injury sustained in the accident which occurred October 29th, 1925; that the death of Louis Smith was not caused by any accident arising out of and in the course of his employment, but that the death of Louis Smith was the result of natural causes, to wit, diabetes, which disease had no relation to the injury sustained on October 29th, 1925. It was admitted for the purpose of the record that on or about October 29th, 1925, Louis Smith was employed by Leland Manning as a mason helper and was receiving weekly wages amounting to $44 per week, and that on October 29th, 1925, an accident occurred arising out of and in the course of his employment, at which time a pail of mortar fell off a scaffold and hit the man on the head. The case therefore resolved itself into a question as to the extent of the injury sustained by the deceased and as to whether the death of Louis Smith was the result of the accident.

I find from the testimony of Gertrude Smith, the widow, that she is thirty years of age and that the deceased left a son by his first wife, Rufus B. Smith, who was born on August 22d, 1911, and that the petitioner now resides at 208 Plainfield avenue, Plainfield, New Jersey. Her testimony shows that the deceased was brought to his home on October 29th, 1925, after an accident, and remained home for the balance of the day; that he went to work on October 30th, but returned early; that he did the same on October 31st and that he never returned to work thereafter.

I find that the medical assistance of Doctor De Ereitas was called and that the doctor attended him at his home immediately after the accident, and that the doctor remained in attendance until November 3d, 1925, at which time he was taken to the Muhlenberg Hospital where he was attended by hospital doctors until his discharge on December 16th, 1925, during which period of time he was treated in particular for diabetes mellitus; that after his discharge he remained at his home until September 30th, 1926, during which entire period of time lie did not return to work as he was unable to work, and that on September 30th, 1926, he was again placed in the Muhlenberg Hospital, in which institution he died on October 2d, 1926.

I find that the cause of his death was diabetes mellitus, and the contributory cause was accidosis. 1 find that the petitioner was married to the deceased in the year 1918.

During the morning session, I heard the testimony of Doctor De Freitas, who treated Mr. Smith immediately after the accident and who also received a call from Mr. Smith just before the accident, at which time he treated Mr. Smith for a cold and for a complaint of kidney trouble, although Doctor De Freitas testified that an urinary analysis did not show the presence of any sugar. The testimony of Doctor De Freitas showed that lire deceased did shortly after the accident suffer from severe convulsions and was for a period of time in a semi-comatose state; that large quantities of sugar were found and after receiving treatment to November 3d, the deceased was removed to Muhlenberg Hospital for diagnosis and examination. Doctor De Freitas contended that Louis Smith suffered at that time from diabetes which he claimed was the result of a fracture of the right frontal region of the skull, causing the concussion of the brain and disturbance of the diabetic center and the production of the sugar.

Doctor Stuart’s testimony showed that he was called in September or October, 1926, when Mr. Smith was in a critical condition and in an advanced stage of diabetes mellitus complicated with accidosis; that he was removed to the Muhlenberg Hospital again and died a few days later as a result of diabetes mellitus and accidosis. Doctor Stuart also contended that the diabetes was produced by the injury sustained on October 29th, 1925.

It was also brought out on cross-examination that the deceased sustained an injury to the head and was confined to the Muhlenberg Hospital in 1923. Doctors De Freitas and Stuart contended, however, that the diabetes could not have been the result of that accident as it would have appeared at a much earlier date.

At the opening of the afternoon session the attorneys for the respective parties submitted to the commissioner a proposition of settlement on a compromised basis which was satisfactory to both parties involved. The basis of this proposed settlement was the payment of $2,400 by the respondent to the petitioner as a lump sum payment in full compromise of all claim of the petitioner against the respondent, which sum represented approximately fifty per cent, of the maximum compensation the petitioner would receive under the Workmen’s Compensation act.

In considering the advisability of approving this settlement, I listened to the testimony of Doctor Robert E. Sheehan, one of the witnesses for the respondent who contends that he examined and treated Louis Smith on various occasions; that Mr. Smith was not suffering from any neurological symptoms and that at the time he first examined him, on January 25th, 1926, there was no evidence of any remaining symptom of the injury to the head; that although glycosuria is occasionally the result of an accident to the skull, such condition is of a transitory nature, does not become acute and disappears as the evidence of the trauma disappears, and for that reason in particular the doctor contended that he did not believe the injury sustained on October 29th was the cause of the condition which resulted in the death of Louis Smith.

It appears to me, therefore, that it is very questionable whether or not the diabetes mellitus was brought about by this injury, or whether it was entirely due to a pre-existing condition, and for that reason and other reasons I feel that the proposed settlement is a proper one, and do .therefore find that the petitioner is entitled to compensation payable by the respondent to the petitioner in one sum amounting to $2,400, and that in addition thereto respondent shall pay the petitioner funeral expenses amounting to $150, the bill for services rendered by Doctor De Ereitas amounting to $140, the bill of Doctor Stuart amounting to $26 and for the court attendance of Doctor Yood amounting to $25.

$ $ $ $ $ * *

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES CALLAHAN, PETITIONER, v. BURNS BROTHERS, RESPONDENT.
    Slight Injury on Jaw — Not Sufficient to Interfere With Work— Some Weeks Later Employe Developed Cancer of Tongue— Evidence Not Sufficient to Indicate That Cancer was the Result of the Injury — A Compromise Effected and Paid by Respondent as a Gratuity.
    On determination and rule for judgment.
    For the petitioner, Meehan & Meehari.

    For the respondent, Kent & Kent.

   S: 1: :¡s :¡s Is Is Is

Upon the pleadings, the stipulations of the attorneys for the respective parties in open court and the testimony taken, I find as follows:

The petitioner claims that while in the employ of Burns Bros., as driver of a coal truck in Jersey City, a coal chute hit him on the left side of the jaw. The injury was very slight and did not even necessitate his stopping work. Within a month thereafter he required and received cauterizing treatment for a cancer of the tongue. Petitioner claims that the cancer resulted from the alleged accident of March 10th, 1926, and that he is totally disabled as the result thereof. The employer claims that the petitioner at no time reported an accident that happened in the month of March, hut does admit that on January 22d, 1926, Callahan reported that he was struck on the jaw while working.

The respondent further claims that assuming that the alleged accident happened at the time and in the manner claimed by the petitioner, that the cancer could not and did not result from the said alleged accident.

Dr. Joseph Londrigan, who examined petitioner on behalf of the workmen’s compensation bureau, stated that in his opinion cancer bore no relation whatever to the alleged accident. Dr. William J. Arlitz, of Hoboken, who appeared on behalf of the petitioner, and who had examined the petitioner, on being questioned by the court, stated that the petitioner was suffering from cancer of the tongue and that in his opinion, based on the claim of the petitioner that he had received a blow to the jaw on March 10th, 1926, and that he had received cauterizing treatment about a month thereafter for a fully developed cancer, that in his (Dr. Arlitz’s) opinion, the cancer could not have developed as the result of the alleged accident, for the reason that too short a period of time had elapsed between the happening of the alleged accident and the full development of a cancerous growth.

The attorneys for the respondent then proposed, in view of the fact that the petitioner was an old employe of the respondent, and further, in view of the fact there was the greatest doubt that the disease described herein resulted from the alleged or any alleged accident that was compensable under the Workmen’s Compensation act, that the respondent pay to the petitioner the sum of $1,100, by way of gratuity and in full payment and settlement of any and all claims arising by reason of any alleged accident. The said proposal was thereupon submitted to the petitioner and his attorneys, who agreed to accept the same. The said offer was further submitted to Commissioner Andrew E. McBride, who confirmed the same and agreed that said amount be paid in a lump sum.

ífc ;J? ^ si?

Charles E. Corbin, Deputy Commissioner.


text:
    JAMES HENDERSHOT, PLAINTIFF-RESPONDENT, v. NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted January 29, 1927
    Decided July 19, 1927.
    Workmen’s Compensation — Federal Employers’ Liability Act— Employe of Railroad Company Was Injured While Riding, in the Course of his Employment, on an Engine which Came into Collision with two Runaway Cars — Defendant’s Contention that the Plaintiff had Failed to Establish Allegations of Negligence Without Merit — Defendant’s Negligence in Allowing Cars to Run Away Held to be the Proximate Cause of Accident — Safety Appliance Act did Apply — Jury not Permitted to Consider Unproven Allegations — Other Points Considered and Judgment Affirmed.
    On appeal from the Warren County Circuit Court.
    Before Gummere, Chief Justice, and Justice Tkenchard.
    Eor the appellant, Hobart •& Minará (George S. Hobart and John E. Selser, of counsel).
    Eor the respondent, William C. Gebhardt & Son (W. Reading Gebhardl, of counsel).
   Per Curiam.

This is an appeal from the Warren County Circuit Court. The plaintiff had the verdict of a jury, and this is an appeal from the judgment entered upon such verdict.

Plaintiff was injured while in the employ of the defendant as a brakeman, and the suit was based on the Eederal Employers’ Liability act and the Safety Appliance act.

The accident happened at three o’clock in the morning, at a point in defendant’s road where there is a single track. Plaintiff was the head brakeman of a crew on a freight train going in a westerly direction, pulled by two engines, the plaintiff riding in the first of the two engines in the fireman’s cab where his duty required him to be for the purpose of throwing the switch for the train at what is known as Kinney’s Switch, where his train had orders to pass another train which was en route coming in the easterly direction. There was a heavy descending grade going in an easterly direction down to the place of the accident and there was also a curve in the track. There were no automatic block signals on the line at this point. As the plaintiff sat in the cab of his engine he suddenly saw two freight cars coming down the grade in an easterly direction towards his train, at a high speed. They crashed into the engine, the train was wrecked and the plaintiff injured.

The two runaway cars which caused the wreck were loaded with cement, and had gotten away from the crew of the defendant operating another train which was then coming in an easterly direction. This train had orders to pass Hendershot’s train at Kinney’s Switch, and so the crew was aware that this specific train was coming in an opposite direction.. The eastbound train stopped at what is known as Green Pond Junction, and had orders to pick up the two cars of cement there.

The crew handled these two cars and placed them on one of the tracks at this junction with the idea of later attaching them to their train when they were ready, and taking them with them. One of these cars was a Maine Central car, and the other a Philadelphia and Eeading car. They were coupled together, and the hand brake appears to have been set to some extent on the Maine Central car, but it did not hold the cars, and it may be inferred from the evidence that the brake was not in an efficient and proper condition. Moreover, the crew failed to set the hand brake on the Philadelphia and Eeading ear, despite the fact, as the evidence tended to show, that the rules of the company required that the hand brakes on both of these cars should be set under these circumstances, and it was also the custom so to do. There was some evidence that wooden blocks were placed under these cars, but this may be inferred to have been done in a negligent manner, for the blocks were of no avail in preventing the cars getting away. There was a derail on this track between these cars and the main line track of the New York, Susquehanna and Western railroad, which would have prevented these ears from getting out on the main line track, and would have prevented the accident, but the crew failed to place this derail in position on the track, so, of course, it afforded no protection.

The consequence was that a short time thereafter, one of the engineers of this train saw the two cars going out of the switch and out on the main line track, which was the beginning of their runaway journey. This engineer took his engine, and, together with another engine, coupled to it, gave chase to the ears, and although they attained a speed of thirty miles an hour, and went a distance of one mile and a half to Kinney’s Switch, they were unable to even catch sight of the runaway cars.

As we read the evidence the defendant made no attempt to give any explanation for the happening of this accident.

1. The defendant contends that its motion for a nonsuit and for the direction of a verdict in its favor should have been granted on the ground that the plaintiff had failed to establish any allegations of negligence charged in the complaint.

We think that point is without merit. The complaint was broad and charged negligence in several aspects. We think it is clear that the grounds of negligence which the court submitted to the jury, namely, failure to equip the cars which ran away with efficient brakes and failure to use reasonable care in the hauling and handling of the cars, were comprehended within the complaint; and in that connection we would say that this case in many of its aspects is very similar to Smith v. New York, Susquehanna and Western Railroad Co., 46 N. J. L. 7. In that case the holding of the court was, as stated in the head note, as follows: “A railroad company left a loaded car, coupled with two empty cars, standing on a switch which inclined towards their main track, the same being secured by their brakes and a railroad tie placed under the wheels of the loaded car; the cars got upon the main track and thereby, an accident occurred, the plaintiff beiDg injured. Held, the company was not irresponsible, as a matter of law, even though the cars could not have got on the main track but for the wrongful act of a stranger.”

We think that an examination of that decision, and the reasoning by which it is supported, dispose of many of the points argued in this case against the contention of the defendant.

2. The defendant’s next point is that its motion for the direction of a verdict in its favor should have been granted on the ground that defendant’s negligence, if any, was not the proximate cause of the accident.

We think this point also is without merit. These two cars had been placed on the side track by the defendant’s servants. If they had been placed there in such a manner that they could not run away, the accident could not have occurred. This was not done, and the cars did run away and caused the accident. The plaintiff contends that they ran away because of the inefficient condition of the brakes and because of the negligent manner in which they were placed there -and allowed to remain there. Certainly such negligence would be the natural and proximate cause of the cars running away and of the resulting accident. Carey v. Deems, 101 N. J. L. 419.

3. The next point is that the evidence showed that the Safety Appliance act did not apply, and it was therefore error to leave to the jury the question whether the accident was caused by a violation thereof.

We are not impressed with the merit of this point. These cars which got out on the main track of the defendant had been hauled and handled by the defendant company, and we entertain no doubt that the Safety Appliance act applied to the situation which the evidence disclosed in connection therewith.

4. It is again urged that the trial court erroneously permitted the jury to consider allegations of negligence concerning which there was no proof, and erroneously refused defendant’s requests to withdraw such allegations from the jury.

When these requests are examined, we find no error prejudicial to the defendant in the refusal to charge them, in view of the fact, as we believe it to be, that the trial judge limited the charges of negligence to be considered by the jury to failure to properly equip the cars, and carelessness in the hauling and handling of the cars.

5. It is next said that the trial judge erroneously permitted the jury to consider as possible ground of liability on the part of the defendant, a claim of negligence which was not alleged, to wit, carelessness on the part of the defendant’s employes in blocking the runaway ears in the freight yard.

We think there is no merit in this point, because, as we think, the complaint was broad enough to comprehend that phase of the proof. And, moreover, this proof was produced in the case apparently without objection at the time it came in. That this was a proper matter for the consideration of the jury, and upon which the judgment for the plaintiff might well have been rested, is illustrated by the ease of Smith v. New York, Susquehanna and Western Railroad Co., supra.

6. The next point is that the judge erroneously charged the jury as to the application of the doctrine of res ipsa loquitur.

We have examined the charge in this respect and we believe it was justified in the circumstances disclosed by the evidence. Such we believe to be the affect of our decision in McPherson v. Hudson and Manhattan Railroad Co., 100 N. J. L. 262; affirmed, 101 Id. 410.

7. Again, it is urged that the trial court erroneously charged the jury that if they found the injuries were as claimed by the plaintiff, then he was entitled -to recover a substantial sum therefor, thereby removing from the consideration of the jury the question whether the plaintiff had proved any negligence on the part of the defendant or its employes.

This point we think has no substance, as will be seen upon an examination of the entire charge, in which, of course, the trial judge properly, as we think, laid down the rules governing the jury upon the question of the liability of the defendant and the necessity of proving negligence.

8. The defendant also contends that the trial court.erroneously admitted evidence as to the alleged custom of using or applying two-hand brakes instead of one-hand brake on freight cars.

We think that a careful examination of the record will disclose that this contention is not well founded in fact. We think that it appears with reasonable clearness that the question said to.be objectionable was with respect to one brake on each car. This, of course, was not only relevant, but of the utmost importance, particularly in view of the fact that it appeared in the case that the brake was set only on one of the cars.

9. The defendant next contends that the trial court erroneously admitted argumentative evidence as to the position and condition of the derail on the switch connecting the tracks of another company with the track of the defendant.

Our examination of the testimony in question results in the conclusion that the testimony was not legally objectionable as argumentative, being rather the testimony of an expert in railroad operation, and we think unobjectionable.

10. It is next said that there was error on the part of the trial judge in the admission and exclusion of evidence relating to the nature and extent of the plaintiff’s injuries.

To that we deem it sufficient answer to say that we have examined the testimony admitted, and that excluded, involved in this point, and we find none of it which we deem to be prejudicial to the defendant.

11. Lastly, it is said that the trial judge erroneously admitted in evidence certain mortality tables without adequate proof thereof, and erroneously permitted the jury to take such tables into consideration in determining the pecuniary loss sustained by the plaintiff by reason of the accident.

We believe that contention to be ill-founded in law. It appears that the mortality table which was offered in evidence was that found in Dickinson’s Chancery Precedents. We think that was not erroneous. Camden and Atlantic City Railroad Co. v. Williams, 61 N. J. L. 646; Dickenson v. Mutual Grocery Co., 100 Id. 118.

The judgment below will be affirmed, with costs.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    IONA SIMPSON, PETITIONER, v. CHARLES APPLEGATE, RESPONDENT.
    Death of Employe — Wife and Child Lived Apart From Employe and Were Not Dependent Upon Him — Petitioner’s Claim That Husband is Liable For His Wife’s Support Does Not Bring the Case Within the Statute Relating to Distribution Under the Compensation Act.
    On determination of facts and rule for final judgment.
    Eor the petitioner, William II. Smith.

    For the respondent, Charles W. Broadhursl, appearing for Collins & Corbin.

   On October 30th, 1924, David Simpson, employed as a farm laborer by respondent, was killed, due to an elevator falling upon him. The accident arose out of and in the course of his employment with the respondent. He loft surviving a mother, father, the petitioner, his wife, and a stepchild some twelve years of age. He had worked for a period of five or six years with respondent as a farm laborer earning $15 a week. In addition to this he was given a house with rent free on respondent’s farm where he lived and supported himself during this period of time. About two years prior to decedent’s death petitioner left him and went to New York, taking her child with her. She worked in New York as housekeeper, earning $12 a week, and supported herself and child. The child at times lived with her parents in Connecticut. Decedent, after his wife left him, purchased an automobile which he was paying for in installments, and at the time of his death still owed some $75 on the same. He spent weekly $1.50 to $2 for fuel and oil to operate this car, and his parents testified that on the earnings he made from the respondent he was unable to support himself, and they frequently had to give him assistance for this purpose. According to the petitioner’s own testimony, the contributions which she received from decedent in the entire year prior to his death amounted to only $72, and this testimony was seriously impeached by a signed statement made by her after his death which contradicted her on this point.

OPINION.

The only question involved for decision is whether or not the petitioner or her child were dependent upon the decedent. After a careful consideration of the testimony adduced, taking into consideration the demeanor of the witnesses as they testified, I find that the petitioner and her child were not members of the decedent’s household and had not been such for about two years prior to the accident or death. Under the statute, therefore, no conclusive presumption of dependency arises on their behalf. The burden rests upon the petitioner to prove that she or her child were either wholly or partially dependent upon the decedent at the time of the accident or death in order to entitle them to an award of compensation. 'The rule is that a case must be determined upon its status at the time of the accident or death. I find that petitioner did not receive any money from decedent for a period of at least six months prior to the date of his accident or death. During this time, and for even a longer period, I find she was supporting herself and child. Petitioner has therefore wholly failed to sustain the burden of showing dependency either wholly or partially. Dependency in this statute means dependent for the ordinary necessities of life; one who- looks to another for support or relief. Jackson v. Erie Railroad, 91 N. J. L. 1035. Benefit and dependency are not synonymous words. Havey v. Erie Railroad, 88 Id. 684. It must appear that petitioner was actually dependent upon the decedent at the time of the accident or death for the necessities of life, involving food, raiment and shelter. Gladstone v. Trenton Coal Co., 3 N. J. Mis. R. 27.

The petitioner’s attorney contended that inasmuch as a husband is legally required to support his wife, the provisions of paragraph 12 cannot operate to debar her from compensation. The first answer to this is that even at common law, a husband was not obliged to support a wife who was living in a state of separation from him without any fault on his part, as appears to be the fact in this case. 30 C. J. 518, pl. 32; Purnell v. Purnell, 70 Atl. Rep. 187. Secondly, any and all rights petitioner has to compensation against the respondent because of the accident or death, arise solely from the compensation statute. This right was not known or recognized by the common law. Her right under this statute, therefore, cannot be increased by any rules of the common law. Her right is limited and should not be extended beyond the plain wording of the statute which provides:

“12. In case of death, compensation shall be computed but not distributed on the following basis:

“‘(e) Eor one dependent, thirty-five per cent, of wages. Hí H<

“‘(g) The term “dependency” shall apply to and include any or all of the following who are dependent upon the decedent at the time of accident or death, namely, husband, wife * * * provided, however, that dependency shall be conclusively presumed as to decedent’s widow and natural children under sixteen years of age, who were actually a part of decedent’s household at the time of his death.’ ”

The statute, according to its plain language, only applies to dependents, and it is difficult to conceive why the legislature would expressly limit the conclusive presumption of dependency in favor of the widow and children to cases where they are part of decedent’s household; if it is correct that by virtue of a common law rule making a husband liable to support his wife, that wife would be entitled to compensation under the statute regardless of dependency.

The above line of reasoning leads to the inevitable conclusion that this ease comes under the provisions of the Workmen’s Compensation act wherein no one was actually dependent upon the decedent, and recovery cannot be had under the act.

* * ***** *

W. E. Stubbs, Deputy Commissioner.


author: Harky J. Go as, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRIEDA STOECKLE, PETITIONER, v. LEE SEAMAN AND MRS. LEE SEAMAN, RESPONDENTS.
    Epidemic Encephalitis — Employe Fell From Step Ladder but was so Little Injured That the Accident Only Momentarily Interfered With Her Work — Epidemic Encephalitis Developed Some Time Afterward — Several Doctors Examined, and Held, That the Accident Appeared to' Have No Relation to the Disease.
    On petition for compensation. On finding of facts and determination.
    Por the petitioner, John C. Qrimshaw and Frank G. Turner.

    Por the respondents, Palmer & Cooper (by Ralph F. Cooper).

   *******

2. That the petitioner was employed by' the respondent Lee Seaman and not by the respondent Mrs. Lee Seaman on or about the 1st day of July, 1925, and that she continued in such employment to the 20th day of November, 1925, her duties being those of a domestic in the home of Mr. Seaman.

3. The petitioner, at the time of her alleged injuries, received for her services wages amounting to> $55 per month and board.

4. That on the 16th day of November, 1925, the petitioner claims to have fallen from a step ladder while cleaning window in the home of the respondent. The accident was not witnessed by anyone, but was so slight in its effect that the petitioner continued with her duties immediately thereafter, attended night school on the night of the accident, did the family washing on Tuesday, the 17th of November, and attended night school that night, did the family ironing on Wednesday, the 18th of November, and there being no night school on Wednesday there is some dispute as to whether the petitioner left the Seaman home that evening, but the records of the night school indicate that the petitioner attended night school on Thursday, the 19th of November.

I find from the facts heretofore stated and about to be stated that, assuming the petitioner fell from the step ladder as alleged, her injuries were so slight as to cause no interruption whatever in her services to her employer, and there was neither temporary nor permanent disability to the petitioner as a result of such a fall.

Dr. C. C. Beling testified that he had examined the petitioner on the 26th of January, 1926. This was two months and ten days after the alleged accident. He found no evidence of any organic nervous disorder, and believed she was suffering from traumatic psycho neurosis, hysterical in type. He testified that the fall as described to him could be a cause for her condition as he found it, but would not say that it probably was the cause. He merely testified that the fall was a possible cause for her condition. The only physician called by the petitioner who had treated her was Dr. Derivaux. He testified that he attended the petitioner on Friday, the 20th of November, 1925, while she was still at the home of Mrs. and Mr. Seaman, that she was black and blue under each eye as far down as the mouth, that it was impossible for her to open both her eyes, that her head was swollen to twice its size, that her face was terribly discolored, that he believes she was suffering from a hemorrage of the brain caused by the fall. It is impossible for me to reconcile this testimony with the further evidence to be given below, which is conclusively overwhelming and absolute^ contrary to the testimony given by Dr. Derivaux. The record of the Newark Memorial Hospital shows that upon admission to the hospital there were no irregularities or swellings to the head, whereas Dr. Derivaux says the head was swollen to twice its size. The hospital record shows that there was no tenderness felt in the head, whereas Dr. Derivaux says that the face was terribly discolored and so swollen that it was impossible to open both eyes. Dr. Derivaux denies that the petitioner suffered from epidemic encephalitis, although that is the diagnosis shown by the records of the Newark Memorial Hospital, where the petitioner was in his care. It is also significant that on Thursday, the 19th, and Friday, the 30th, of November, 1935, Drs. Coe and Huberman, respectively, were called to the Seaman home because of complaints of illness made by the petitioner. They testified that they found her suffering from a cold and that there was no evidence of a swelling of any kind to the head or face, or any evidence of injury to the head or face or any complaint made by the petitioner of injuries to any part of the body, nor were there any discolorations upon the face.

Dr. Derivaux testified that although he had not at any time found any organic disorder of the brain or nervous system and that the entire picture was one of a disordered mentality and that the woman was suffering from hysteria, nevertheless testified to a hemorrage of the brain, which is most decidedly an organic disorder of the brain. Dr. Derivaux called in Dr. Echikson and Dr. Ooe because he felt that he was not sufficiently competent. Dr. Echikson testified that when he examined the petitioner she was suffering from epidemic encephalitis and broncho pneumonia, and that the end results to the petitioner in this case are from epidemic encephalitis, and that they are in no wise due to an accident, and that the sign as to the location of the paralysis differ on December 7th and 8th, which indicated that trauma played no part in this case and that the excessive temperature which the plaintiff liad could not lie explained on the basis of trauma. Drs. Coe and Huberman testified that when they saw the petitioner she was not suffering from the results of whatever accident may have occurred on the 16th of November, 1925.

Dr. Dowd examined the petitioner while she was in the Newark Memorial Hospital and testified that she was suffering from epidemic meningi encephalitis, that she was actually ill with that ailment when he saw her, and had not long been ill, that her general physical condition was good, and that her illness and her present end results were in no wise due to trauma. It is to be noted that although there is some other testimony given by Dr. McArthue, of Newark, and Dr. Sheehan, of New York, in favor oí a finding for the petitioner, the only doctor called by the petitioner who actually treated or examined her while she was in the acute stages of illness was Dr. Derivaux. All the other doctors called by the petitioner have examined her long since this illness cleared up, the last two doctors having examined her as late as January of 1927.

1 therefore find that this petitioner did not suffer any temporary or permanent disability as a result of the accident she complains of as having happened on the 16th of November, 1925. I also find that the petitioner’s condition is due to epidemic encephalitis, which. I find was in no wise connected with, caused by, or aggravated by the alleged accident. * * ❖ $ # $ *

Harky J. Go as, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARIA MANNINO, PETITIONER, v. DAVIS BAKING POWDER COMPANY, RESPONDENT.
    Death — Overtime Compensation — Employe was Paid by Hour, Based on a Working Day of Eight Hours, Five and One-half Days Per Week — Overtime was Compensated at the Rate of One and One-half Times Regular Time Wages— Held, That the Facts as They Here Appear Preclude Compensation Based on Overtime Earnings.
    On determination of facts and rule for judgment.
    Eor the petitioner, Joseph F. Fitzpatrick.

    Eor the respondent, McCarter & English.

   It was admitted by the respondent that the deceased employe died as the result of an accident arising out of and in the course of his employment with the respondent. The dependency alleged in the petition is not qiiestioned by the respondent, and since the death of the decedent respondent has been paying compensation to his said dependents.

The sole question in the case was whether or not, in addition to compensation based on deceased’s wage rate, his overtime is also compensible under the particular facts. The testimony is undisputed and conclusive that the contract hire 'between the deceased and the respondent at the time of the accident, was that he was paid by the hour for an eight-hour day and a five and one-half day week. His emplojonent began at eight a. M. and ended at five p. m., with an hour at noon for lunch. It was clearly shown that the customary number of working hours constituting an ordinary working day in the character of the work involved were eight; that the wage rate at which the service was recompensed under the contract of hire in force at the time of the accident was forty-nine cents per hour, which amount amounts to $22.05 per week. Decedent was an old employe and, in addition to his regular employment, was given all possible opportunity at overtime. For all such overtime he was specially authorized in every instance by his foreman and was paid overtime rates, viz., time and a half.

The 1913 amendment to the Compensation act (Pamph. L. 1913, p. 313), which is the present law, says with reference to wages:

“Wherever in section two of this act the term “wages” is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident * *

The act never expressly excluded overtime with reference to hourly employment, but this particular question, if any, was settled by our Supreme Court in Smolenski v. Easton Coal Co., 87 N. J. L. 26; affirmed, 88 Id. 387. In that case, Mr. Justice Swayze held (at p. 288):

“We think it may fairly be held that the legislature meant that the daily wages should be taken to be what would be earned by working for the ordinary number of hours and that the employe was not to lose by reason of enforced idleness during some of those hours, nor to gain because on some days he worked overtime.

“Wages, the legislature said, must be construed to be the money rate at which the services were recompensed. What is to be considered is not the recompense in fact received, but the rate which the contract of hiring fixed, whether that rate was in fact realized for the whole time or not. We think that in an employment and in a community where the regular working week was six days of ten hours each and the workman was paid twenty'-five cents an hour, the natural conclusion of most men, if they tried to reduce the hourly rate to a "weekly rate, would be that the weekly rate was $15.” Immediately after the affirmation of the Smolenski decision by the Court of Errors and Appeals came the 1919 amendment to the Compensation law, the present governing statute, which for the first time mentions hourly employment. This reads (at p. 213) :

“Where the rate of wages is fixed by the hour, the daily wage shall be found by multipljdng the hourly rate by the customary number of working hours constituting an ordinary day in the character of the work involved.-”

It is obvious that the statute is based on the Smolenski ease. That decision was followed in Wright v. Smith, 38 N. J. L. J. 232, where compensation was awarded on an eight-hour day, five and one-half day week basis, the regular week of the decedent, though at the time of the accident he had not been actually working full weeks. It follows, therefore, that the decedent’s overtime in this ease and under the particular facts, is not compensible, and that the wage rate on which compensation is to be based in this case is $22.05. It happens that the rate at which compensation has been,' and is being paid by the respondent, is $24.75, which is more than the $22.05 rate to which the dependents are here entitled. This because the rate was not finally calculated by respondent until the formal hearing. Respondent, however, stated in open court that the- rate at which it has been paying compensation will be continued and is agreeable to having compensation fixed in accordance therewith.

The dependents are the widow and four children: Rose, born July 8th, 1917; Peter, born February 4th, 1919; Sadie, born April 4th, 1921, and Anna, bom December 3d, 1924.

It is therefore ordered that respondent pay the above-named dependents compensation as follows:

Fifty-five per cent, of $24.75, the weekly wage rate consented to by respondent for three hundred weeks; thereafter, fifty per cent, of said rate for eighty-five and six-sevenths weeks; 'thereafter, forty-five per cent, of said wage rate fox eighty-two aud two-sevenths weeks; thereafter, forty per cent, of said wage rate for one hundred and twelve and six-sevenths weeks: thereafter, thirty-five per cent, of said wage rate for one hundred and ninety-one and two-sevenths weeks. It is to be noted that respondent has already paid the dependents from the date of death of the deceased to March 14th, 1927, fifty-six weeks at the fifty-five per cent, rate, and that the funeral allowance of $3 50 has also been paid by the respondent.

Charles E. Corbin, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM LASTER, PETITIONER, v. C. G. WINANS SALT COMPANY, RESPONDENT.
    Injury to Leg — Temporary Compensation Paid — Petitioner Claims Permanent Disability — An Old Injury to Leg Existed —Appendicitis—Held Proof Not Sufficient to Connect Either With the Temporary Injury.
    On determination of facts and rule for judgment.
    Eor the petitioner, Samuel Greenstone.

    Eor the respondent, McCarter & English.

   Hi Hi ❖ H< ❖ ❖ Hs

There was no' dispute as to petitioner having been employed by respondent on February 23d, 1926; that on that day he had an accident and that he had sustained some temporary disability as a result thereof for which he had been paid by respondent. It was, however, claimed that petitioner had been permanently disabled as a result of this accident. I do not find that to be the fact.

Dr. Fern, who treated petitioner the day of the accident and for some time thereafter, testified that petitioner had a bruise on his left hip, which cleared up, and that petitioner was fit to go back to work on March 15th, 1926. Dr. Cahill testified that he examined and treated petitioner about a week later for a swelling of the right leg below the knee, a temporary condition, cured shortly thereafter. It is undisputed that about twelve years ago petitioner incurred a very serious injury to his right leg -and knee, the leg being fractured with the fracture extending into the knee. Apparently there is a bullet or something similar still lodged there. This injury has left a disability existing at the present time. It is further in evidence in the petitioner’s case that, on July 28th, 1926, petitioner became a patient at the Newark City Hospital, remaining there until August 8th, 1926. While the hospital record shows that the old knee injury was noted as such, there is nothing in that record or in the testimony of the two hospital phj'sicians to show that there was found at the hospital any injury to petitioner’s back or recent injury to his knee, or that any treatment was given him for his back or knee, or anything else other than his appendix.

This disposes of everything but the appendicitis. As to that — the accident happened February 23d, 1926 — Dr. Bergman says that on April 5th, 1926, he diagnosed the appendix condition as chronic. At the hospital it was again diagnosed as chronic, and the post-operative diagnosis was also chronic with acute accerbation. This was July 28th, 1926, five months after the accident, in which accident petitioner had fallen on his back. Under such testimony it can hardly be seriously urged that the appendicitis was caused by the accident.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK ROSTIN, PETITIONER, v. RICHARDSON & BOYNTON COMPANY, RESPONDENT.
    Injury to Leg — A Previous Injury Also Had Been Treated — No Connection Between the Two Accidents Established.
    On petition for compensation. On determination and rule for judgment of dismissal.
    Eor the petitioner, King & Vogt (C. Stanley Smith, of counsel).
    For the respondent, Clarence B. Tippett.

   ❖ ' s{« :Ji sf:

It was claimed that on or about May 3d, 1926, a hoist with a box swung around, throwing or pushing claimant backward, and his leg brushed or struck against a wire box. The evidence disclosed that he was and had been employed by Biehardson & Boynton Company for some considerable time; that on or about October 14th, 1922, he had previously been struck in the back of the left leg by a box toppling over; he was examined by Dr. Mutchler at or about that time, who found a condition which was very much similar to the present condition, and he expressed the opinion that the condtion, in his judgment, was not the result of the then described accident. Dr. Fort operated on him on or about June 7th, 1923, removing a lipoma, or fatty tumor from the posterior aspect of the left thigh, and expressed the opinion that this was not the result of a trauma. It appeared that he was paid some compensation until he returned to work the following October, 1922.

With reference to the present claim, after hearing all of the testimony, the evidence of the claimant, Dr. Baker, his physician, and the testimony of Dr. Eort and Dr. Mutehler, I am induced to the conclusion that the clear preponderance of the testimonjr indicates that the petitioner has failed to connect his condition of May, 1926, to an accident or trauma, particularly as he says he had a similar condition which developed to the size of an orange two days after the alleged accident in October, 1922. The medical evidence unquestionably shows no causal relation either by direct causation or aggravation. The operation by Dr. Eort eliminated any causal connection between the trauma and the described occurrence of October 14th, 1922, and to the same effect as to the May, 1926, occurrence. Dr. Mutehler concurs in detail.

Dr. Eort, in performing the operation in June, 1923, is clearly in the best position to testify and his testimony is entitled to the greatest weight. It is incumbent upon a petitioner to prove his claim by a fair preponderance of credible testimony, and all of the effective evidence points to no connection either by direct trauma or aggravation of any existing conditions.

It is to be noted that the present claim is upon an alleged and described accident of May, 1926, and any claim which might have attempted connection with the original described accident of October, 1922, would be now barred under section 3, paragraph 23 (h) of the statute.

$ 3$ $ $ $ $ V

Harry J. Goas, Deputy Commissioner.


author: Harry J. Coas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM C. SWENEY, SR., ADMINISTRATOR OF THE ESTATE OF WILLIAM C. SWENEY, JR., PETITIONER, v. WILLIAM C. SWENEY, SR., AND NEW JERSEY FIDELITY AND PLATE GRASS INSURANCE COMPANY, RESPONDENTS. MARY T. SWENEY, INDIVIDUALLY AND AS GUARDIAN OF JEAN SWENEY AND WILLIAM C. SWENEY, THIRD MINORS, PETITIONER, v. WILLIAM C. SWENEY, SR., RESPONDENT.
    Injury to Head and Body Through the Overturning of a Truck— Hospital Treatment and Subsequent Return to Work — Later Manifestations of Mental Derangement — Still Later an Operation for Appendicitis — Death from Operation — No Connection Shown Between the Accident and the Appendicitis, Neither Did the Mental Derangement Appear to be the Result of the Accident — Petition Dismissed.
    On petition for compensation.
    For the petitioner, King & Vogt.

    Fot the respondent, Charles W. Weeks.

   * * * * * * *

The petitions filed in this case seek to recover compensation for the death of William C. Sweney, Jr., who died on December 19th, 1925. On March 20th, 1924, he was employed by the respondent, his father, on his farm, in Morris county, and on that day met with an accident, while engaged in his father’s business, in which he was injured by the overturning of the truck which he was then driving. His jaw was broken and he was bruised about the head and body, and immediately following the accident was taken to the Morris-town Memorial Hospital and there treated for the injuries which he had sustained. His condition improved so that he was discharged from the hospital within a week, and thereafter was permitted to do some work about the farm. The injuries to his head are claimed to have caused his subsequent mental derangement, but it is unnecessary to pass upon this question because there is no suggestion in the record that the injuries to his head or the subsequent mental derangement had anything at all to do with his death. Suffice it to say that in November of 1925 he was committed to the State Hospital for the Insane.

While in that institution, the physicians concluded that the deceased was suffering from a chronic condition of appendicitis and after a consultation with Dr. Mills, decided to operate upon him to remove the appendix. This operation was performed on December 17th, 1925, and when the patient was opened, it was found that in addition to the condition of appendicitis there existed a chronic condition of cholecystitis of.the gall bladder and a scar upon the liver. The patient died before regaining consciousness on December 19th, 1925.

At the hearing I felt from the testimony of the physicians, and particularly the manner in which they gave it, that the petitioner had failed to prove any causal connection between the happening of the accident, which occurred almost two years prior to the death of the deceased, and the conditions which they found at the time of the operation, but I decided to hold the matter for a time so that I might study the testimony. After a careful consideration of all of the evidence I am of the opinion that my conclusion reached at the time of the hearing was correct, and that there is no possible connection between the accident and the death which resulted from the operation. I am entirely satisfied that the cause of death in this case was the shock resulting from the operation, as all of the doctors agree that shock from an operation of this kind may cause the death of persons otherwise in good health and even where the best of surgical treatment is used in the operation. It also appears from the testimony that the deceased did not require any medical treatment to Ms abdomen from the date of the accident down to a time shortly before the operation was performed, and the doctors were unable to say when the chronic conditions which they discovered had started, nor did they fix the cause for these chronic conditions, and further, there is no testimony whatever that the scar on the liver had anything whatever to do with the death of this young man.

The burden of proof is of course on the petitioner to show a causal connection between the accident of March, 1924, and the death occurring in December, 1925. Bryant v. Fissell, 84 N. J. L. 72; Krapowitch v. Public Service Railway Co., 3 N. J. Mis. R. 933; Kilka v. Standard Underground Cable Co., Id. 951.

Harry J. Coas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HYMAN KOVAR, PETITIONER, v. RUBIN FOX, RESPONDENT.
    Hernia — Not All of the Five Conditions of the Statute Proven, There Being no Direct Proof That There Was an Immediate Descent as the Result of the Accident.
    On determination and finding of facts and rule for judgment.
   * * * * :¡: $ *

1. That Hyman Kovar was on the 20th day of October, 1925, in the employ of Rubin Eox, the respondent, as a sales clerk or stock man, which employment was subject to the compensation section of chapter 96, laws of 1911, and the supplements and amendments thereto.

2. That on the aforesaid day, the petitioner, while in the act of lifting a keg of nails felt a severe pain in the abdominal region and ceased work. The respondent had knowledge of the accident within the time prescribed in paragraph 15 of the aforesaid act. The accident happened in the afternoon, and that evening the petitioner consulted Dr. Ring, who, upon examination of him, found that he had a double hernia.

3. The Compensation act requires conclusive proof of the five points referred to in subdivision X of paragraph 11, one of which five points is that the descent of the hernia immediately followed the cause. The testimony shows that the petitioner, between the time of his injur}' in the afternoon, and the time he was examined by Dr. Ring in the evening of that day, did not examine himself, or have any one examine him so as to be able to testify whether there was an immediate descent as required by the act. Dr. Ring testified there was no descent when he examined him that evening, and the best than can be drawn from the testimony of Dr. Ring is that, by inference, there was a descent. The legislature in its wisdom has placed the burden upon the petitioner to prove by conclusive evidence the five points stated in paragraph X of section 11, and the court, therefore, cannot find there was a descent, from inference, without substituting its judgment for the clear mandate of the act of the legislature.

4. The petitioner having failed to establish by conclusive proof that the descent of the hernia immediately followed the cause, judgment must be entered in favor of the respondent.

****** Hi

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PAUL W. BEILIG, JR., PETITIONER, v. MILLS & BROWN, RESPONDENT.
    Lead Poisoning Alleged — Employee Suffered an Illness Not, However, Clearly Identified as Lead Poisoning — No Notice of an Injury as the Result of an Occupational Disease Given Respondent — Case Dismissed.
    On findings of fact and determination and rule for judgment.
    Eor the petitioner, Howe & Davis.

    Eor the respondent, McDermott, Enright & Carpenter.

   íji í|í sfc ^

A petition was filed by P^ul W. Beilig, Jr., on or about August 7th, 1926, praying for compensation and alleging that he suffered from lead and sewer gas poisoning, which occurred on September 16th, 1925, and that he was still under medical care.

An answer was subsequently filed by the attorneys for the respondent in which it was alleged that the petitioner did not suffer any accident but that he was simply reported sick and that more than five months after he last worked for the respondent, he claimed that he contracted lead poisoning and requested compensation. It is alleged in the answer that the respondent did not have actual knowledge that the petitioner contracted an occupational disease and that the respondent never received notice that the petitioner contracted any such disease within five months from the time the employe ceased to be subject to any exposure; that there was no accident and that the petitioner did not suffer from any occupational disease.

Mr. Beilig testified that he was employed by Mills & Brown as a plumber’s helper, and had been employed by the respondents since November 1st, 1921; that on September 28th, 1925, he was taken ill, returned to' his home and has not been back to work since that date. The testimony shows that previous to that and on September 16th, 1925, he was taken ill and treated by Dr. Blakely at his office and recovered from that illness. He worked continuously from September 16th to September 28th. On September 28th, he claims to have been taken very ill and testified that he went to bed immediately after he arrived home. He testified that he had been working, taking out old ground pipes and had also been working with lead and white lead in roughing work. In all of his testimony there is no evidence that the employer during the continuance of employment had actual knowledge that the employe contracted a compensable occupational disease, and further there was no testimony to show that there was any written notice ever given to the respondent by the petitioner or by any one on his behalf. An investigation made by the insurance company for the respondent was made more than five months after the employment terminated and could not be constituted a waiver of any statutory requirement as to notice.

I have also reviewed carefully the testimony of Dr. Blakely, who was called to testify and who treated the petitioner, and I doubt very much whether the petitioner was really suffering from lead poisoning.

I, therefore, find that judgment should be entered on this petition in favor of the respondent.

❖ ‘ ^ * * >1: *

Harry J. Coas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FERRIS SCHNEDLER, PETITIONER, v. BOARD OF EDUCATION, GLEN RIDGE, RESPONDENT.
    Rate of Wages — Petitioner Alleged a Payment of Fifty Cents Per Hour and Claimed Compensation Based on that Rate — Respondent Showed that the employment was only for a Half Hour Each Day for Five Days Per Week, or $1.25 Per Week —Held that Compensation Should Be Based Upon that Rate.
    On determination of facts and order of dismissal.
   ífí ;*< :¡; s’j % í¡í

The only matter in which the sides were at variance was the rate of wage and the compensation rate to be paid. Attorney Wooloy, for the petitioner, presented that since the injured employe wás to be paid wages at the rate of fifty cents per hour, that the hourly rate of pay should he multiplied by the customary working hours of the day to determine the daily wage, and that the daily rate he multiplied by five and one-half, being the customary number of working days in the week, to determine the weekly wage.

The attorney for the respondent, James Skeffington, submitted in his argument that the general provision in the Workmen’s Compensation law for the determination of the daily rate, as well as the weekly rate of wage, was not applicable in this instance where there was a stipulated and agreed contract. The injured employe is a student in the respondent’s school, and was employed only for thirty minutes per day, five days per week, the weekly wage being $1.25. There was no stipulated hourly wage basis at the -time of hire, and considering that no such hourly basis had been established, the customary number of working hours constituting an ordinary day in the character of the work involved was clearly stipulated in the contract of hire and the total amount of the weekly earnings would, at all times, be limited to $1.25 per week.

The case as presented in the argument of counsel for both sides presents a phase of emplojunent that is unique, and since there is a stipulated period of time for each working day, namely, thirty minutes, and further, it is stipulated in the contract of hire that there are but five working days per week, and still further stipulated that a weekly wage of $1.25 is to be paid, I do find -that in this case the weekly wage on which compensation rate is to be based is $1.25, and this amount being less than the minimum compensation rate provided under the laws of this state, the full amount of the weekly wage is to be paid in compensation.

The only medical testimony heard was that given by Dr. H. Sheppard, who also presented X-rays showing partial amputation of the first phalanges of the left second and third fingers, causing thirty-three and one-third per cent, permanent partial disability of those fingers. Dr. Sheppard's testimony further indicated that the temporary total disability ended as of January 1st, 1926.

I do find that the respondent has paid compensation for temporary total disability to January 1st, 1926, a period of thirteen and three-sevenths weeks at $1.25 per week, and the respondent has further paid permanent partial disability for thirty-three and one-third per cent, of the left second and third fingers, or fifteen and two-thirds weeks, at $1.25 per week. In addition, the medical expenses incurred by reason of the services of the Mountainside Hospital, and Dr. D. C. Thompson in the respective amounts of $11 and $138, have been paid by the respondent. ^ Hí ❖ H>* ❖

Harry J. Goas, Deputy Commissioner.


author: Backes, V. C.

text:
    Barney Auto Wrecking Company, complainant, Richard Otto, receiver, defendant.
    [Decided July 26th, 1927.]
    Proof of payment to deceased persons, in cash, without receipt taken, of mortgage money, must be clear and convincing.

      Mr. Edward R. McGlynn, for the complainant.

      Mr. William H. Osborne, for the defendant.
   Backes, V. C.

The mortgage in question, which is sought to be redeemed, was made by the complainant to one Koegel, now deceased. Mrs. Koegel, the sole beneficiary under her husband’s will, and one Goekler were his executors. Both are dead and Otto is executor of her will. The mortgage is dated October 2d, 1922, payable in annual installments of $500 and six per cent, interest payable semi-annually. The complainant claims it has paid three consecutive installments of principal and six semi-annual installments of interest, and offers to pay the balance, and prays a surrender of the mortgage for cancellation. The payments, it is claimed, were made in cash, without receipt taken. The defendant, executor, can find no trace of the payments in the bank accounts of his deceased, although the amounts were not unimportant to her estate of about $50,000; the bond and 'mortgage have no notation of payments; in the decedent’s book of entries of securities, under the caption of the mortgage in question, the installments of interest of $90 under the date of their semiannual due day are charged to the time of her death, indicating that there was no payment of principal-; and the defendant, executor, has made adjustment of other securities, all conformably to the entries in that book.

Barney Harris, the president of the complainant company, testified that he made all payments to Goekler, one of the executors of the mortgagee, who was then carrying on the feed business for the estate on Perry street, Newark, except the last of principal and interest, which he says he paid to Mrs. Koegel in the presence of Goekler. Por the first six months interest (April, 1923) he says he gave his $90 check, which, because it was returned dishonored, moved Koegel to suggest cash instead of redepositing the check, and that he paid the amount later to Goekler, then in charge of the feed store. The dishonored check is not produced. The first payment of principal and interest (October, 1923) he endeavors to support by the production of a check voucher of the Bergris Realty Company, signed by Harris as president, for $300, dated October 17th, 1923, drawn on the MontclairEssex Trust Company, serial mumber 132, to the order of cash, endorsed and cashed by Harris at the trust company. The cash, with the balance furnished by the complainant company, he says, was used to make the payment. There is nothing more than Harris’ word, for this, and also that he paid the interest installments in April, 1924 and 1925. To prove the second payment of principal (October, 1924) Harris produced a check of the Bergris company on the Montclair-Essex Trust Company, serial number 455, dated October 16th, 1924, to the order of Barney Romanoff, for $526.25. Harris and Romanoff testify that Romanoff cashed the check for Harris at Romanoff’s bank, the American Natiojial Bank of Newark; that the $26.25 represented a bill for plumbing work due from Harris to Romanoff, and that Romanoff accompanied Harris to Goekler’s office where Harris paid the identical five one hundred dollar bills received from the bank. Harris says he also at that time paid the interest, and Romanoff says that there was additional money paid, and that he knew what it was for, Harris having told him. They also would have it appear that they met qxxite accidentally 031 Livingston street, Newark, and, Romanoff dunning for his bill, was asked to cash Harris’ check for $500, axid, cashing it at the bank, Romanoff accompanied Harris to look at a leak, a repair job, and on the way stopped in at Goekler’s. Romanoff says he noticed that Harris took no receipt and that he made no comment, although it was contrary to his practice. At a later hearing Romanoff testified that the $526.25 check was not cash hut that it was deposited and was part of a total of $2,681.25 deposited on the date of the check, leaving the inference that he drew his own check for the $500 cash. The third payment (October, 1925), it is claimed, was made to Mrs. Koegel, at her home, and Harris produced a check voucher of the Bergris company on the Montclair trust company, dated October 24th, 1925, for $250, to the order of cash, and endorsed and (¡ashed by him, which cash, he says, was used to make up the payment. His brother, chauffeur to Mrs. Koegel, testified he was present and saw the money paid to Mrs. Koegel; the amount he could not say, hut estimated it at “four or five or six hundred dollars,” and he says he sensed it was mortgage money because Guelder had asked him to remind his brother that the mortgage money was due.

The burden of proof of payment is on the complainant, and in a situation so remarkable as this one, where the parties to whom it is alleged payments were made are dead, the proof must be clear and convincing. The court is not obliged to accept the testimony of witnesses when the attending circumstances challenge its verity. The production of the check vouchers of the Bergris company, in the absence of the check stubs, is of no probative value. It is not at all improbable that other cheek vouchers of the Bergris company would equally well have answered the purpose as those produced. The concern had a bookkeeper. Its checks were in serial number, and their absence creates the suspicion that they would not have been supporting. As to the alleged second payment in 1924: If the meeting with Romanoff was accidental and the request for the $500 spontaneous, it is not explained how it came about that the check for $526.25 on a printed form, serial numbered, of the Bergris Realty Company, is not in the handwriting of Harris, a good penman, as would ordinarily be the case in such circumstances. It is open to belief that the check was made to Romanoff at some other time and for some other purpose. And if Romanoff deposited the check instead of cashing it, as he first testified, and drew his own check for $500, why was not that voucher produced? Romanoff was given the opportunity to produce his books to show the charge account of $26.25, to account for that odd sum on the check, but he was unable to do so, giving the excuse that his books had been destroyed or lost. Romanoff’s manner on the stand was not calculated to inspire faith in his testimony. Further, it is not explained why Harris should resort to Romanoff to cash his check for $500 instead of himself procuring the money at his own bank, as it appears he did with the checks produced to support his claim of having paid the first and last installments. There was no apparent reason for quick action at that time. And as to the payment of 1925: It at once suggests itself, why was the payment made to Mrs. Koegel when the previous five had been made to Goekler? The check stub is not - produced, and the brother’s supporting testimony, given in an indifferent manner, left the impression that he was a “pinch” witness. There are other criticism of this unsatisfactory evidence, but the outstanding thing that tests credulity is that Harris took no receipts after he was told, when his first check was protested, that cash was preferred to his checks. The natural reaction to such a rebuff would bo to ask for one; especially of payments in installments on a mortgage, and to a stranger. The omission to take receipts for cash payments may happen between confidants and occasionally, carelessty, between strangers, but hardly six times consecutively, deliberately. Harris was a man of affairs and appreciated the importance of an acquittance, and he offered no reason for not following common experience and the ordinary dictates of caution. If he, in fact, made the payments, which is doubted, he has only himself to blame if the court declines to accept his secondary proof. The defendant is entitled to the face of the mortgage and interest.