author: Eastwood, J. A. D.

text:
    RUTHERFORD LODGE NO. 547 BENEVOLENT AND PROTECTIVE ORDER OF ELKS, RUTHERFORD POST NO. 109 AMERICAN LEGION AND REYNOLDS-EVERETT-SCHNEIDER POST NO. 227 VETERANS OF FOREIGN WARS, APPELLANTS, v. ERWIN B. HOCK, STATE COMMISSIONER OF ALCOHOLIC BEVERAGE CONTROL, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 17, 1949
    Decided February 10, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Horace F. Banta argued the cause for the appellants (Edward G. Evertz, of counsel; Winne & Banta, attorneys).

      Mr. Samuel B. Helfand, Deputy Attorney General, argued the cause for the respondent (Walter D. Van Riper, Attorney General, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

Appellants attack an asserted determination by the respondent (hereinafter referred to as “Commissioner”), and contend that it unlawfully terminated their club liquor licenses as of December 1, 1948, consequent upon the result of a referendum election participated in 'by the voters of the borough of Rutherford. The Commissioner contends that he merely gave an advisory opinion or interpretation of the legal effect of the referendum election with respect to the three club licenses theretofore issued to and held by the appellants.

The relevant facts are: On November 2, 1948, a referendum election was held in the Borough of Rutherford on the question:

“Shall the retail sale of all kinds of alcoholic beverages, for consumption on the licensed premises by the glass or other open receptacle pursuant to chapter 1 of the title Intoxicating Liquors of the Revised Statutes (Section 33:1-1, et seq.), be permitted in this municipality?”

The vote was negative. The Commissioner, on November 18, 1948, in response to a letter from the Borough Clerk of Rutherford Borough, informing him of the result of said referendum, sent a communication to the clerk, stating that -by virtue of paragraph 3 of R. S. 33:1-45 and “Pursuant to the provision of the statutory section and the negative vote thereunder at 'the referendum, it will be unlawful for the Mayor and Council to issue any license which shall -permit the retail sale of alcoholic beverages for consumption -on the licensed premises by the glass or other open receptacle; and, from and after midnight of Wednesday, December 1, 1948, the three club licenses now-outstanding in the Borough shall be completely void and inoperative. (See the enclosed copies of Re Rutherford, Bulletin 63, Item 1, and Re Merchantville, Bulletin 58, Item 3.)” Under date of November 18, 1948, the Commissioner forwarded a copy of this letter to each of the appellants, stating that it was for their “prompt and careful attention. * * * ” Appellants state that thereafter they made an oral request of the Commissioner for a hearing, although the record -does not reveal this fact. In the argument before this court, it was conceded that the Commissioner had held lengthy conferences with representatives of the appellants, that in response to the request of counsel for appellants for a hearing, the Commissioner stated that the statute did not provide the means for such a hearing on the question at issue, that there was no factual issue presented and the question of the proper construction of the pertinent section of the -statute had been “completely argued before him”.

Appellants -contend that the letters written by the Commissioner constituted reviewable action or decision -by him under Rule 3 :81-8. The Commissioner contends that he did nothing more than to give utterance to his interpretation or construction of the provisions of the -statute in question, that his opinion was merely of an advisory nature, there was no formal hearing or proceeding before him, there is no authority for a hearing on the question at issue, and that he made no reviewable determination. As stated, appellants contend that the Commissioner’s action had the effect of terminating their licenses; that their licenses would not have expired otherwise until June 30, 1949; that rights valuable to appellants are involved, and to disregard the asserted determination of the Commissioner would expose appellants to prosecution under the criminal laws of this State.

Rule 3:81-8, as amended, provides that a “Review of -the final decision or action of any State Administrative Agency shall be by appeal to the Appellate Division. * * *” Formerly, such a review, if allowed, was by certiorari. The basis for the issuance of a writ of certiorari to review a decision of an administrative agency was clearly defined by Mr. Justice Heher in Morgan v. Burnett, 121 N. J. L. 352, 2 A. 2d 339 (Sup. Ct. 1938), wherein he stated:

“It is the settled rule in this court that ‘certiorari will not lie to revise or correct erroneous opinions, however hurtful they may he to individuals concerning whom they are expressed. An order, judgment, or determination affecting the rights of prosecutors is necessary as a foundation for the use of the writ.’ * * * ‘The writ of certiorari cannot be used to draw judicial opinions in advance or to affect adjudications of subordinate tribunals.’ Newark v. Fordyce, 88 N. J. L. 440, 97 A. 67, 68; Livingston v. Rector, &c., of Trinity Church, 45 N. J. L. 230; Drake v. Plumo, 44 N. J. L. 362; Watson v. Medical Society of New Jersey, 38 N. J. L. 377.”

Cf. Vesey v. Driscoll, 132 N. J. L. 293, 40 A. 2d 291 (Sup. Ct. 1944).

Our review of the letters of the Commissioner convinces us that he merely expressed his opinion or interpretation of the legal effect of the referendum election with respect to the club licenses held by the appellants, that these letters did not constitute a final decision or action by him and, therefore, are not reviewable. The decided cases of our courts so hold, supra. For many years the Commissioner has adopted the practice of furnishing his opinions and views to issuing authorities, licensees and others who have communicated with him and who have posed certain questions and problems with which they have been faced in connection with the administering of the Alcoholic Beverage Law -and the applicability thereof with respect to the conduct of their licensed business. Such advisory opinions have served a useful purpose in that they have clarified many perplexing and confusing problems encountered by the issuing -authorities, licensees and others affected -by the Alcoholic Beverage Law. These advisory opinions of the Commissioner have had a salutary effect and have been -conducive to a satisfactory and successful administering of the Alcoholic Beverage Law by the Commissioner of Alcoholic Beverage Control, to whom that task is entrusted by the express provisions of the Act. R. S. 33:1-23.

We are of the opinion that the Commissioner had no authority to and did not make a determination on the question at issue here. And, if it were considered on the -merits, it would inevitably lead to the same conclusion. Accordingly, we concur in the view he expressed, to wit: that said club licenses automatically expired on December 1, 1948, which date was the expiration of thirty days after the date of the vote at the referendum election.

We find no -merit in appellants’ contention that the referendum election did not void their licenses or that they were -only partially voided. Appellants argue that the question on which the -citizens voted applied only to plenary retail consumption licenses, as provided for in R. S. 33 :1-45, that club licenses are not prohibited by a negative vote at a referendum either under R. S. 33:1-45 or under R. S. 33:1-46, and that, assuming R. S. 33:1-45 applied to club licenses, -such licenses would then be only partially inoperative and appellants would not be precluded from selling intoxicating liquors in sealed containers for consumption on the club premises. This is a specious argument and falls of its own weight. Analogically, appellants argue that under the language of R. S. 33:1-46.1, -adopted in 1945, in the event of a negative referendum resulting in total prohibition o-f the retail sale of alcoholic beverages for consumption on the premises, such negative vote, while voiding certain enumerated licenses, does not prohibit club licenses; in fact, appellants argue, -club licenses are specifically excepted. While the preamble to this supplement is rather loosely and inartistically drawn, it is quite clear that -club licenses (except for bona fide golf and country clubs) are voided by R. S. 33:1-46.1, in the event of such a negative referendum vote, notwithstanding the fact that they are not specifically enumerated therein as one of the voided types of licenses. The supplement of 1945 was obviously adopted to provide for the issuance of -club licenses to golf and country clubs notwithstanding -a negative referendum vote. The fact that R. S. 33 :1 — 46.1 makes such a provision for club licenses solely for golf and country clubs emphasizes the fallacy of appellants’ argument. Under the Alcoholic Beverage Law the Legislature has provided for the issuance of two licenses permitting retail sale of alcoholic beverages, to wit: (1) by the glass or other open receptacle for consumption on the licensed premises and (2) in the original container for consumption off the licensed premises. A plenary retail consumption license (R. S. 33:1-12 (1) ) entitles the licensee to both privileges. A plenary retail distribution license (R. S. 33:1-12 (3a) ) only permits sales in the original container for -consumption off the licensed premises. The only distinction between a -club license -and a plenary retail consumption license is that a club license is limited to sales “to bona fide club members and their guests”, for immediate consumption on the licensed premises, (R. S. 33:1-12 (5) ). It clearly appears to us that the Legislature, by the use of the words “by the glass or other open receptacle” did not intend to make any distinction between the -prohibition of the sale of alcoholic beverages for consumption on the licensed premises, whether under a plenary retail consumption license or a club license, in the event of such a negative referendum vote. Nor are we persuaded by appellants’ argument that the Legislature intended, in the event -of a negative referendum vote, that club licenses would thereafter be void as to the sale of alcoholic beverages by the glass or other open receptacle for consumption on the premises, but -continue to be effective for the sale of alcoholic beverages in sealed containers for consumption -on the premises.

The Commissioner contends that the legislation under review here has been heretofore construed to include club licenses in those licenses that are voided under -a negative vote under R. S. 33 :1 — 45. Such construction, he argues, is found in Bulletin No. 58(3) published by the Commissioner in 1934 and in Bulletin No. 63(1) issued in January, 1935, to which reference is made in the Commissioner’s letter of November 18, 1948. The opinions expressed by the Commissioner in these bulletins do not bring them within the confines of Cino v. Driscoll, 130 N. J. L. 535, 34 A. 2d 6 (Sup. Ct. 1943), cited by the Commissioner. However, it is significant that the Legislature has failed to “indicate its disapproval thereof” (Cino v. Driscoll, supra) since the Commissioner published the bulletins in question.

Appellants argue that the referendum, election-could not void’ the licenses issued to them for which they had paid the annual license fee and which were otherwise effective until June 30, 1949. This -argument has no substance. Such a license is subject, of course, to -all of the risks which may legally attach thereto, including the possibility of an adverse referendum election such as occurred in the instant case and its resulting effect upon their licenses.

We are of the opinion that the effect of the referendum vote, by virtue of the applicable provisions of the Alcoholic Beverage Law, -automatically terminated the club licenses issued to the appellants on December 1, 1948. R. S. 33:1-45.

The appeal is dismissed, without costs.


source: Caselaw Access Project

author: McGeehan, S. J. A. D.

license: Public Domain

text:
    GEORGE L. SEITZ, ET AL., PLAINTIFFS-RESPONDENTS, v. FEDERAL CLEANERS & DYERS, INC. DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided February 23, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Abraham M. Herman argued the cause for defendant-appellant.

      Mr. Ralph W. Chandless argued the cause for plaintiffs-respondents (Messrs. Chandless, Weller, Kramer & Frank, attorneys).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

This case is before us on writ of certiorari allowed by the former Supreme Court to review a judgment for possession in landlord and tenant proceedings in the District Court of the Second Judicial District of Bergen County.

The defendant, on June 17, 1948, before the return day of the summons, filed a “special appearance” objecting to the jurisdiction of the court on two grounds: (1) that service was made upon an employee of the defendant corporation who is not an agent or officer of the corporation, and it is thereby invalid and not legal service upon the corporation; and (2) the affidavit as filed is defective in that it is based on hearsay, does not allege sufficient facts, and merely states legal conclusions. The motion to dismiss was denied June 21, 1948, and trial date set for June 24, 1948. The defendant’s attorney appeared at the trial but took no part in the proceedings. Judgment for possession followed.

The “special appearance” of the defendant coupled, in the alternative, an attack on the jurisdiction of the court over the person, with an attack which amounted to a motion to strike out the affidavit. The latter attack, if successful, would terminate the whole proceeding. While a special appearance may be. made to attack the jurisdiction of the court over the person, the joining therewith of the attack upon the affidavit made the appearance a general appearance, the affect of which is to waive all objections to the jurisdiction of the court over the person. Terminal Co. v. Stoicos, 24 N. J. Misc. 127 (Cer. Ct. 1946). But note changes effected in proceedings after September 15, 1948, by Rules 3:12-2 and 4:2-2(c).

Jt is argued that the allegations of the affidavit are insufficient -to prove the assignment of the reversionary estate to the claimant, citing Weller v. Kelly, 136 N. J. L. 282 (Sup. Ct. 1947), in which the affidavit was held to be defective. In that case, it merely alleged that “on or about December 20, 1945,” he “purchased the said property for use and occupancy by” himself and his “immediate family” and this was held insufficient because the affidavit was not made as lessor but as an assignee of the lessor, and no fact was alleged to show the assignment of the reversionary interest. Here, it alleges “on March 31, 1948, said Laurine B. Alexander (unmarried), the former owner of said premises, did, by deed of that date, convey the said lands and premises unto deponents, the present owners of the said lands and premises, which deed is recorded in Liber 2854 of Deeds for Bergen County, on pages 639, etc., and thereupon deponents'became the owners of the said premises and entitled to the reversion thereof”, which not only meets the test of Weller v. Kelly, above, but closely follows the language held sufficient in Lloyd v. Rickman, 57 N. J. L. 385 (Sup. Ct. 1894).

Objection is made that the allegation of the monthly tenancy is but a mere conclusion and not based on any facts set forth in the affidavit. The allegation is “the said Federal Cleaners & Dyers, Inc. continued in possession of said store, under said lease, until June 30, 1943, the expiration date of the said lease and upon the expiration of the same the said Laurine B. Alexander rented said premises unto said Federal Cleaners & Dyers, Inc. from month to month, from the First day of July 1943 for the monthly rental of $50.00, due and payable on the First day of each and every month in advance * * * that thereafter the said Federal Cleaners & Dyers, Inc. did pay the'said monthly rental of $50.00 unto deponents for the month of April 1948 * * *.” This allegation closely follows the allegation of tenancy approved in Steffens v. Earl, 40 N. J. L. 128 (Sup. Ct. 1878) and is sufficient.

Mr. Justice Garrison’s remarks in Lloyd v. Richman, above, are also appropriate in this case:

“We are asked to reject the plain sense of these averments, upon the ground that they are, in form, conclusions of law. Such a course would, in my opinion, be to require of unskilled suitors in these inferior courts a finesse in the use of language as much at variance with the nature of the proceedings as it would be with the character and purposes of these tribunals. No rational cause can be assigned for the rejection of words and terms universally used and correctly understood in common speech, merely because they happen to be also correct in a technical sense.”

The judgment under review is affirmed.


author: Bigelow, J. A. D.

text:
    ARTHUR M. SEITZ, JR., PLAINTIFF-APPELLANT, v. ISABELLE S. SEITZ, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 17, 1949
    Decided February 23, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. William A. Moore, argued the cause for the plaintiff-appellant.

      Mr. Huyler B. Romond argued the cause for the defendant-respondent.
   The opinion of the court was delivered by

Bigelow, J. A. D.

This is a contest over the custody of a six-year old boy whose parents are separated from each other. The Chancery Division gave custody to the mother, and the • father appeals.

A preliminary motion will first be disposed of. Although this is an appeal from a final judgment founded on the testimony of witnesses who were examined in the presence of the Court, the respondent has printed in her Appendix ex parte affidavits filed -at an early stage of the litigation on a motion for interlocutory relief. The appellant moves to expunge thaffidavits from the Appendix. While ex parte affidavits may properly be used on interlocutory applications, they cannot be the basis of a final judgment except by consent, express or implied. Test v. Test, 131 N. J. Eq. 197 (E. & A. 1942); Isscrman v. Isserman, 138 N. J. Eq. 140 (E. & A. 1946), The parties to a cause are entitled to be present when witnesses testify and to cross examine them. In the present cause, there' was no consent to the use of the affidavits on the final hearing and the learned trial judge does not seem to have based -his conclusions on them. Obviously, it ¡would be improper for us to use the affidavits on the appeal from the judgment and therefore they should not have been printed in the Appendix. The appellant’s motion to expunge is granted.

The parties have three children, Arthur, born October 7, 1942; Pauline, born in 1946; and Russell, in 1947. Mr. and Mrs. Seitz came to Bernardsville in the fall of 1946 to make their home in what had been the caretaker’s cottage on the estate of his parents. After they had lived there together for fourteen months, Mrs. Seitz left, taking with her the youngest baby, and returned to her mother’s home at Deal. Ten days later, Seitz started the present proceeding with a petition for divorce which included a prayer for custody of the children. In March, 1948, the custody of all three was committed to Mrs. Seitz pending the final hearing of the cause. Since then, they have been living with their mother, except that Arthur, on alternate week-ends and for seventeen days, June 25 to July 12, has been with his father. The cause came to a final hearing November 12, 1948, at which time, and before any proofs were taken, Seitz abandoned his prayer for divorce and for custody of the two younger infants and accordingly the hearing was confined to the question of the custody of Arthur, who was then six years old.

It seems necessary to state the substance of the testimony. Dr. Bagg, -a general practitioner of medicine, was called early in 1947 to see Pauline, who was ill. The doctor found the house in a shockingly filthy condition. There was dirt on the stairway; beds were unmade; and cigarette butts were all over. A marked odor came from the clothes hamper which was overloaded with soiled diapers. On the kitchen stove were the remains of uncooked or partly cooked food. The doctor looked into the ice box to determine under what conditions the babies’ milk was kept; he found bottles uncapped and half full, and one bottle with its nipple on lay on the floor. The following June, Dr. Bagg called again and found the child with the same ailments and the house in the same condition.

When Mrs. Seitz came for Arthur in March, 1948, he started sobbing and shouting he would not go with her; he kicked and scratched until finally she handed him over to a police^ officer whom she had brought with her.

The appellant presented three psychiatrists, and the respondent, two, who had examined Arthur at sundry times between June, 1948, and the hearing in November. They found the boy well developed and intelligent, but very nervous and restless. He was subject to a number of mental conflicts and was' badly adjusted to his situation. The child was developing neurotic tendencies and his thinking processes were even -becoming pathological. He showed a preference for his father, a marked dislike for his mother, and a hatred for his maternal grandmother, Mrs. Hayes. Dr. Spradley, one of appellant’s pathologists, saw Arthur on July 12 when he had been with his father for two weeks. The doctor observed what he thought to be a very definite improvement in the child’s emotional and nervous reactions, as compared to his condition in June. But the next fall, after the boy had spent the summer with his mother, all improvement had disappeared. The five doctors agreed that it was bad for the boy to be subjected to the influence first of one parent and then the other. None of them recommended that he remain in his mother’s custody. One group advised that he be put in the care of his father, while the others recommended that he be placed in a “neutral environment” such as a school, where he could receive psychiatric treatment for at least a year, and that, at the end of that time, he be re-examined to determine future disposition. Dr. Ford, called by respondent, said: “When he 'begins to adjust his ideas, I would start visitation -by the mother with short visits at intervals. Later on, short visits from the father, and in about a year’s time, attempt to determine the boy’s progress and the effects of the contacts of one parent and the other.”

Arthur was in a school for small children in Bernardsville until his mother took him to Deal in March, 1948, and he did very well there. His reports showed that he “plays nicely with the other children, although he is one of the youngest in the group.” Mrs. Seitz put the little boy in the school of Miss Youmans from April until the end of the spring term and then again in the fall. But in the fall, after three weeks, Miss You-mans was unwilling -to keep him longer. She thought he was in no physical condition to be in school, and he had become a problem on the playground. He did not play well with the other children. He seemed unhappy, and usually there was something disturbing him.

Such in summary were the proofs. There were much to indicate that the child would be better off and happier with his father than with his mother and no evidence at all to the contrary. While the learned judge of the Chancery Division did not file an opinion giving the reasons that led to the judgment, his reasons may be gathered from his remarks during the course of the hearing. He noted that it is the policy of,our law to award custody of children of tender years to the mother, and said that Mrs. Seitz would -be given custody of Arthur unless it were proved that she is “an awfully bad woman, morally depraved, absolutely unfit.” In our opinion, this view of the law cannot be supported. Neither father nor mother has a greater right than the other to the custody of their child, and in a contest between them, the happiness and welfare of the child is the determining factor. R. S. 9:2-4. Richards v. Collins, 45 N. J. Eq. 284 (E. & A. 1889); Lippincott v. Lippincott, 97 N. J. Eq. 517 (E. & A. 1925); In re R. L., 137 N. J. Eq. 271 (Jayne, V. C., 1945). Children of tender years are not awarded to the mother because of any rule of law, but only because in fact the mother will usually take better and more expert care of a small child than can the father. But the problem in every case is the same, What will promote the happiness and welfare of the child?

Again, the learned judge indicated that inasmuch as custody had been awared the mother pendente lite, the father must show a change in the situation since the date of that award, else the custody of the mother should be continued. We do. not concur. Interlocutory orders designed to preserve the status quo or to establish a modus vivendi pending a full inquiry at the trial, do not prejudice the rights of the parties. The court’s power and duty to make such disposition of the case as the proofs taken at the trial may show will be beneficial to the infant, remains uncurtailed.

The trial court, in harmony with its view that the issues were whether there had been a change in the situation since the order for custody, pendente lite and whether the mother was a bad woman, refused, after Dr. Bagg had testified, to receive more evidence of happenings antedating the suit, and also shut out proofs offered to show what would best advance the welfare and happiness of the child, but which did not touch the character of the mother. From what we have already said, it follows that the exclusion of such testimony was erroneous.

The court limited the psychiatrists too closely in respect to statements made by the boy while they were examining him. Their diagnosis of the condition of his mind and nervous system, their recommendation for his future treatment, were based principally on his manner and on the words he uttered. As evidence of the child’s mental reactions and to enable the court to evaluate the experts’ opinions, the child’s statements were admissible whether 'brought out on direct or cross examination, and without regard to the truth or falsity of what he said. Wigmore, Evidence (1923), sec. 1720. Whether the doctor’s recital of the child’s statement — by exception to the hearsay rule — was evidential of the facts narrated by the boy, is a different question, and one which is not now -before us. But the answer is probably in the -negative. State v. Gruich, 96 N. J. L. 202 (E. & A. 1921); Friedman v. Essex Chair Co., 135 N. J. L. 512 (E. & A. 1947).

It was a wholesome practise of the Court of Chancery when evidence of doubtful admissibility was offered, to defer -a definite ruling on the offer and to receive the testimony unless this course would prolong the -hearing unduly. The trial court was then in a position to use or to disregard the testimony as further study led to the -conclusion that the evidence was competent and material, or the reverse. The procedure indicated by Rule 3:43-2 is proper under a slightly different situation, namely, where the trial court forthwith -sustains an objection to the proffered evidence. The trial court, in the present instance, might well have followed one or the other of these courses.

At the conclusion of -the appellant’s -case, the court announced that the child would be left in the custody of his mother, and therefore the respondent -did not offer any evidence except the testimony of the two psychiatrists which had been taken, out of turn, before the appellant rested. '

The proofs fail to support the judgment and so it will be set aside, with directions that the case -be reheard on -the proofs already taken and such new evidence as may be offered and received. Our concern for the welfare of the boy has led us to consider whether he should not now be -sent to his father to be kept 'by -him until the hearing. What have been the developments since the psychiatrists saw Arthur in October? Is he happy living with his mother ? Is he well ? Has he -returned to school? Unless the Chancery Division calendar permits the matter to be tried within a very few weeks; the father should have leave to apply on notice for custody pending the hearing, and a disinterested report should be made to the 'Chancery Division, showing the present situation.


text:
    JOSEPH FRANK, PROSECUTOR, v. STANLEY W. NAUGHRIGHT, JUDGE OF THE ESSEX COUNTY COURT OF COMMON PLEAS, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided February 23, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Irving Siegler argued the cause for prosecutor (Messrs. Siegler & Siegler, attorneys).

      Mr. C. William Caruso argued the cause for respondent (Mr. Duane E. Minard, Jr. attorney).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

This case is before us ,on writ of certiorari allowed by the former Supreme Court to review a judgment of the Essex County Court of Common Pleas dismissing a writ of habeas corpus.

On December 23, 1947, the prosecuting attorney for Broward County, Florida, filed a criminal information in that County and State against Joseph Frank. The information contained two counts. The first count charged that “Joseph Frank on the 29th day of November 1947, in the County and State aforesaid did then and there unlawfully sell certain personal property to him belonging * * * ” consisting of all stock in trade in a certain going tavern business located at Fort Lauder-dale, Florida, and also all beverage licenses for said place, of business; which property was subject to a lien of a chattel mortgage without the written consent of the mortgagee- — all in violation of a cited Florida criminal statute pertinent thereto. The second count charged that on the same day and in the same place, Joseph Frank “did then and there hide, conceal and transfer certain personal property to him belonging”, described as in count one, which property was subject to a lien of a chattel mortgage, with the intent to defeat, hinder and delay the enforcement of the said lien — all in violation of a cited Florida criminal statute pertinent thereto. This information was supported by two affidavits: one made by the chattel mortgagee and the other by Anne Frank, the wife of Joseph Frank. Extradition of Joseph Frank was sought by the State of Florida. Governor Driscoll signed the warrant of rendition and Frank was arrested in Essex County. Frank then obtained a writ of habeas corpus from Judge Naughright; hearing was held thereon and the writ dismissed.

It is urged that the affidavits filed to support the information fail to do so. Frank admitted his presence in the tavern at Fort Lauderdale, Florida, on November 29, 1947. Examination of the affidavit of Diamonte Mehos, the chattel mox-tgagee, discloses full support for the essential elements of the crime charged in each count as to the stock in trade. The charge in count one as to the sale of the stock in trade is also given support by the affidavit of Anne Frank. We find that the information alleges and the affidavits support the charge of a crime in the State of Florida as to the stock in trade. When a crime against the laws of a demanding state is sufficiently charged, the sufficiency of the information to warrant conviction and judgment according to the law of the land must be determined by the courts of that state, not by those of the asylum state. See In re Williams, 101 N. J. E. 75 (Ch. 1927).

This finding makes it unnecessary to consider the further attack on the information, based on the contention that the licenses, also mentioned therein, are not personal property, and therefore the sale, hiding, concealing or transferring thereof cannot be a violation of the Florida criminal statute, which applies only to “personal property.” But see Drew v. Thaw, 235 U. S. 432 (1915), in which Mr. Justice Holmes, speaking for the court in answer to a similar contention, said: “And even if it be true that the argument stated offers a nice question, it is a question as to the law of New York which the New York courts must decide.”

The trial court refused to allow the accused to testify concerning the conversation with the affidant Anne Frank, referred to in her affidavit, and this is urged as error. The stated purpose of the testimony was to show the wife’s motivation and lack of good faith, and to attack her veracity and credit, but these are not proper subjects of inquiry by the asylum state. Munsey v. Clough, 196 U. S. 364 (1904); Drew v. Thaw, above. In addition, the affidavit of Diamonte Mehos alone is sufficient to support the charge of a crime against the demanding state.

The judgment under appeal is affirmed.


text:
    EDWARD J. KELLY, PETITIONER-RESPONDENT, v. FEDERAL SHIPBUILDING & DRY DOCK COMPANY, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 20, 1948
    Decided February 23, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Louis C. Jacobson argued the cause for petitioner-respondent.

      Mr. William L. Dill, Jr. argued the cause for respondent-appellant (Messrs. Stryker, Tams & Horner, attorneys).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

The Workmen’s Compensation Bureau entered judgment for the petitioner; on appeal to the Hudson County Court of Common Pleas, the judgment -was affirmed; and the former Supreme Court allowed a writ of certiorari to review.

Petitioner, on May 21, 1946, fell and injured his left knee in an accident which arose out of and in the course of his employment by the respondent. He was treated by the company doctor, who placed a cast on his injured leg. The cast was described as a heavy cast which extended from just above the left ankle to above the knee. Permission to walk with the cast was given by the company doctor. On July 14, 1946, while the cast was still on his leg, he attended a wedding reception, and while there suffered an injury to his right arm. He described the accident as follows:

“It was at a wedding reception, and I was inside in the living room. IVe heard all the horns blowing outside, and we thought it was the bride and wedding party back again. As I was going down the steps, I saw this little child on the steps. I thought it was going to fall, and I went to grab it. My cast was on the step, and I lost my balance, and I did not want to break the cast by jumping, so I threw all the weight on my right side, and it was too much for my right arm, so I broke my right wrist.”

On cross-examination, he testified that he did not rush, he couldn’t rush, but he walked out the front door; that two or three people were on the porch with him and the others were on the ground; that'there were six or seven steps; that two little girls about two or three years old' were on the top step and as one of them seemed to be falling off, he reached out to grasp her; and that “as I went down the steps, the cast hit the step I was stepping off. That is what made me lose my balance, the cast.” Dr. Flannagan reported that, in his opinion, the fall was the direct result of a circular plaster cast which the patient was wearing on one of his lower extremities and which prevented him from regaining his balance before falling. The judgment under appeal awarded twenty-five per cent of total disability covering both injuries — the injury to the left leg and the injury to the right arm.

The only question before us is whether the employer is responsible for payment of compensation for the injury to the arm. The fact that the second injury was a wholly independent injury and not merely an aggravation of a compensable injury makes no difference in the result if the second injury is directly connected in a chain of physical causation with the compensable injury. Flanagan v. Charles E. Green & Son, 122 N. J. L. 424 (E. & A. 1938). The chain of physical causa tion with the compensable injury may be broken by the negligence of the employee. McDonough v. Sears, Roebuck & Co., 130 N. J. L. 530 (E. & A. 1943). The fact that this employee was suffering from a leg injury and wore a cast, placed a burden upon him to restrict his activities as an ordinarily prudent man would have done under like circumstances. However, the injury and the wearing of the cast did not require the cessation of all activity. We find nothing in the evidence in this case which would lead an ordinarily prudent man to believe that, under all the circumstances, attendance at this wedding reception would be hazardous, and we find no action of the injured employee which created a hazard. His attempt to save a falling tot from harm was an instinctive act and innocently contributed to the second injury. We conclude that the second injury is directly connected in a chain of physical causation with the compensable injury. Randolph v. E. I. duPont de Nemours & Co., 130 N. J. L. 353 (Sup. Ct. 1943).

The judgment under review is affirmed.


author: Jacobs, S. J. A. D.

text:
    FELIX REMISIEWSKI, PLAINTIFF-APPELLANT, v. PARODI CIGAR COMPANY OF NEW YORK, INC., A CORPORATION OF THE STATE OF PENNSYLVANIA, LICENSED TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1949
    Decided February 16, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Andrew O. Wittreich argued the cause for the plaintiff-appellant (Mr. Robert J. Rubacky, attorney).

      Mr. Joseph Keane argued the cause for the defendant-respondent (Messrs. Milton, McNulty and Augelli, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment in the Hudson County Court of Common Pleas entered upon a directed verdict for defendant in an action by plaintiff to recover overtime wages under the Fair Labor Standards Act.

In October, 1938, the plaintiff was employed by the defendant as a watchman, fireman and porter. His hours were from 5:30 p. m. until 7:30 a. m. and as watchman he was. obliged to register hourly on the watchman’s clock at six stations within the employer’s plant. In November, 1938, he notified his employer that he was working too many hours and wanted to quit. He was then told that he could sleep at the plant from 11 p. m. until 5 a. m. and go off duty at 8 a. m. instead of 7:30 a. m. His work remained the same except that he was no longer required to register hourly between 11 p. m. and 5 a. m. Although he lived about a block away, he was not permitted to leave at any time between 5 :30 p. m. and 8 a. m. and he was not furnished with any key to the plant. He testified that his sleep between 11 p. m. and 5 a. m. was seriously disturbed by interruptions from representatives of the ADT burglar alarm system; that these interruptions occurred “two or three times a week; sometimes twice a night, sometimes three times a night”; and that they lasted from twenty minutes to two hours. Although he was paid for the periods when his sleep was interrupted, he received no other compensation for the period from 11 p. m. to 5 a. m.

At the trial the employer conceded that the plaintiff was entitled to the protection of the Fair Labor Standards Act (29 U. S. C. A. § 207) but contended that the plaintiff’s “sleeping time” between 11 p. m. and 5 a. m,, apart from the interruptions, which the employer asserts were only occasional and were fully paid for, did not constitute working time within the contemplation of the Act and that consequently it was properly excluded in determining plaintiff’s compensation. On the other hand, -the plaintiff contended that the sleeping time should have been included in its entirety within his working hours and that on that basis he was entitled to an aggregate additional sum of $3,835.69 for overtime wages. At the close of all the testimony the trial court directed a verdict for the defendant stating that the plaintiff’s claim was “for all of the six hours including that portion of it during which he slept. With the proof in that posture I certainly cannot leave it to the jury to determine how much of the six hours he slep.t and how much he was awake.”

The Fair Labor Standards Act provides that an employee engaged in commerce or in the production of goods for commerce shall receive compensation for his employment above a forty hour workweek at a rate of not less than time and one-half. Although it contains no definition as to what is working time within its contemplation, the subject has received consideration by the Administrator of the Wage and Hour Division and by the federal courts. See Armour & Co. v. Wantok, 323 U. S. 126 (1944); Skidmore v. Swift, 323 U. S. 134 (1944). In -an Interpretative Bulletin the Administrator pointed out that there was no fixed rule to determine whether periods of inactivity by employees at the employer’s premises are to be considered as working time and that the “answer will generally depend upon the degree to which the employee is free to engage in personal activities during periods of idleness when he is subject to call and the number of consecutive hours that the employee is subject to call without being required to perform active work.” In the Skidmore case Mr. Justice Jackson likewise declined to “lay down a legal formula” stating that “whether in a concrete case such time falls within or without the Act is a question of fact”. He did, however, indicate general approval of the flexible treatment and guiding principles announced by the Administrator..

In Rokey v. Day and Zimmermann, 157 F. 2d 734, 737 (C. C. A. 8th 1946) cert. den. 330 U. S. 842, 331 U. S. 864 (1947) it appeared that the plaintiff had eight hours sleeping time with infrequent interruptions. The co.urt, after pointing out that the plaintiff “was getting sleep in the same manner as if he were normally getting sleep at home or in a hotel”, ruled that his sleeping hours were properly excluded from the calculation of his working hours. See also Bell v. Porter, 159 F. 2d 117 (C. C. A. 7th 1946) cert. den. 330 U. S. 813 (1947); Bowers v. Remington Rand, 159 F. 2d 114 (C. C. A. 7th 1946) cert. den. 330 U. S. 843, 331 U. S. 864 (1947). On the other hand, in Conwell v. Central Missouri Telephone Company, 74 F. Supp. 542, 76 F. Supp. 398 (D. Mo. 1948) the court included sleeping time as part of working time where it appeared that the employees did not have “long, undisturbed sleeping periods”' comparable to their sleeping arrangements at home.

Since we are dealing with the meaning and proper application of an Act of Congress the federal authorities are binding upon us. They require that the issue here disputed between the parties be determined as a question of fact resting on an application of the general principles hereinbefore expressed to the conflicting testimony introduced at the trial. While this testimony was not as complete as it might have been the plaintiff’s evidence, including the justifiable inferences therefrom, was sufficient to raise a jury question. The jury might find that the arrangements between the employer and the employee afforded to the latter, under the particular circumstances presented, a reasonably normal night’s sleep with only occasional interruptions for which he was paid, and in such event, the plaintiff’s claim would fail. On the other hand the jury might find that the employee was not afforded a reasonably normal night’s sleep and was interrupted frequently for his employer’s benefit, and in such event the plaintiff’s claim that all of the sleeping time constituted working time for purposes of wage computations within the Fair Labor Standards Act would prevail. If plaintiff thus prevails, the employer would, of course, receive credit for payments actually made for the periods of interruption. These payments are ascertainable from the employer’s records and under such circumstances the employer may well be required to carry the burden of coming forward with evidence of their extent. See Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 (1946).

In view of the fact that respondent did not contend at the trial and is not now contending that the recent Portal-to-Portal Act (29 U. S. C. A. Sec. 251 et seq.) affords support for its position that plaintiff’s claim was properly withdrawn from the jury, we have not considered whether it has any applicability. Cf. Conwell v. Central Missouri Telephone Company, supra.

The judgment is reversed and a venire de novo is granted.


text:
    EDWARD H. COLE, PLAINTIFF-APPELLANT, v. THE PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1949
    Decided February 21, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Harold J. Sklarew, attorney for the plaintiff-appellant, argued the cause.

      Mr. Stephen V. R. Strong argued, the cause for the defendant-respondent (Messrs. Strong & Strong, attorneys).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The sole issue here, and on which plaintiff submitted his case to the First Judicial District Court of the County of Middlesex, sitting without a jury, is “Does the ‘Railroad Fence Act’, R. S. 48:12-46, impose an absolute liability upon the defendant company, under the circumstances •here, for the damages suffered by plaintiff in the loss of his cow?” An adverse judgment was rendered against the plaintiff, from which this appeal stems'. We concur in the judgment ■below.

The undisputed facts are: Plaintiff’s cow was one of a herd-of twenty-two cows “which -had broken out of plaintiff’s pasture”, and then left plaintiff’s farm “situate south of defendant’s right of way, crossed the Middlesex and Essex Turnpike, proceeded 400' to 500” northerly along Currier Road, went underneath defendant’s right of way through an underpass to the northerly side of defendant’s right of way, where the cow turned east and went up the northerly embankment of defendant’s right of way to the track where it was struck”. Railroad employees drove the other cows from the tracks. Plaintiff’s farm did not adjoin defendant’s right-of-way at any point. There was a fence on the southerly side of defendant’s right-of-way, but there was no fence on the northerly side where the cow was struck, although there was a hedge, broken through in several places, and a path that all the workmen used which ran from the underpass to the right-of-way by a gradual slope. Plaintiff’s cows used this path to reach the railroad tracks.

Plaintiff relies entirely on the statute, R. S. 48:12-46, contending that notwithstanding his farm premises do not adjoin the defendant’s right-of-way and that his cow broke out of its close and wandered for some distance along a public highway before entering upon defendant’s railroad tracks, and without asserting or proving any negligence on the part of the defendant in the operation of its train, the railroad company’s failure to erect and maintain a fence at the place where the cows entered upon the defendant’s right-of-way, made it liable for the damages suffered by plaintiff. Defendant contends that R. S. 48:12-46 imposes no such absolute liability upon it, under the circumstances here; that the Railroad Fence Act is solely for the benefit of adjoining property owners; that the law of this State imposes a duty upon the plaintiff to keep his cattle within his own close; that the proximate cause of the injury and death of the cow in question was not caused by the railroad company’s failure to erect such a fence, 'but was the plaintiff’s failure to keep his cattle within the bounds of his own premises, as required by law.

Such a right of recovery as is sought here by the plaintiff did not exist at common law. There was a duty cast upon the owner of cattle or other animals to keep them on his own premises and, if he failed to do so, he could not recover if they were accidentally injured or killed while straying. Vandegrift v. Rediker, 22 N. J. L. 185 (Sup. Ct. 1849); Price v. New Jersey Railroad Co., 31 N. J. L. 229 (Slip. Ct. 1865); Case v. Central Railroad Co., 59 N. J. L. 471 (E. & A. 1896); Van Nest v. Dealaman, 85 N. J. L. 650 (E. & A. 1913), 90 A. 308. However, in 1873 (P. L. 1873, p. 104, G. S. P. 2638) the Legislature adopted “An Act to authorize the formation of railroad corporations and regulate the same” and by Section 32 thereof, for the first time, required a company organized under the Act to erect and maintain fences on the sides of its road, and provided that “until such fences or cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done * * * to cattle, horses or other animals thereon”. The Railroad Act was revised in 1903, and was incorporated in the revision of 1937 without any substantial change. Plaintiff relies on the case of Hendrickson v. Philadelphia & Reading Railway Company, 68 N. J. L. 612, 54 A. 831 (E. & A. 1903); to support his position. This case was decided on March 3, 1903, and dealt only with the statute of 1873. The language of the 1873 Act indicates that it was the legislative intendment to protect and benefit owner-s of lands adjoining such railroads. The 1903 revision was not approved until April 14, 1903, and it necessarily follows that the Hendrickson case only -construed the 1873 statute. The Hendrickson case dealt with damages for the loss of a mare, alleged to have been caused by the failure of the railroad company to maintain in good repair a fence erected along the plaintiff’s adjoining field. Defendant, as stated, contends that the Hendrickson case and the statute applicable here merely imply that the Railroad Fence Act, at best, is for the sole benefit of the adjoining landowner and “The failure of the defendant to maintain or erect a fence in the instant case was not the proximate cause of plaintiff’s damage”, but the plaintiff’s failure to keep his cattle in his close. Under R. S. 4:20-1 et seq., landowners are required to erect and maintain fences of the type and construction therein specified for the .purpose of keeping their horses and cattle within the confines of their own premises, fixing the liability of the owner who fails to keep and maintain such fences, or such part thereof for which he may be liable, and -the resulting damages caused by his straying cattle which he may be called upon to pay in the event of his failure to comply with the provisions of that Act. In the case at bar the plaintiff concedes that his cattle -broke away from his premises and wandered for a considerable distance over public highways before it eventually -came upon the tracks of the defendant company. Under these circumstances, it appears to us that, plaintiff’s cattle having for some unknown reason broken away from the plaintiff’s close through no intervening act of the defendant, it should not be held liable for its destruction. A case somewhat analogous is that of Case v. Central R. R. Co., 59 N. J. L. 471, 37 A. 65 (E. & A. 1896); from the facts of which it is gleaned that plaintiff’s horses had broken through the fence between his pasture lot and the highway, had 'Strayed along the' highway to defendant’s railroad and there, while wandering upon the track several hundred feet from the highway crossing, had -been killed. Mr. Justice Dixon, speaking for the Court of Errors and Appeals in Case v. Central R. R. Co., supra, stated:

“The horses were trespassing upon the defendant’s track without any shadow of right, and the plaintiff did not attempt to prove that, for this trespass, the defendant was in fault under either the common law or any statute. The authorities are not entirely agreed whether in such circumstances the defendant owed to the plaintiff the duty of exercising ordinary care with respect to the horses, or only the duty of abstaining from willful injury. But if it be conceded that, prima facie, the defendant owed the larger duty of ordinary care, yet, as it appears that the animals came upon the track through the fault of the plaintiff, his claim against the defendant was legally defeated by his own contributory negligence, for, ‘according to the principles of the common law, * * * every man at his peril is bound to keep his cattle .on his own close, and prevent them from going on to that of his neighbor.’ Coxe v. Robbins, 4 Halst. 384; Chambers v. Matthews, 3 Harr. 368. It was a natural and proximate consequence of the plaintiff’s failure to discharge this duty that the horses should have strayed into the highway and thence upon the track, and there meet with injury from passing trains. Such a fault precluded recovery, even though the negligence of the defendant’s servants helped to cause the accident. Vandegrift v. Rediker, 2 Zab. 185; Price v. New Jersey Railroad and Transportation Co., 2 Vroom. 229.”

Plaintiff, in effect, says that all railroad tracks should 'be fenced. To carry this argument to its logical conclusion, would require railroad companies to erect fences at passenger stations, freight stations and sidings to protect against straying animals entering upon its tracks and imposing liability for damages as a consequence of its failure to erect such fences. We are of the opinion that the Railroad Fence Act does not justify the strained construction contended for by plaintiff. Under the factual issue here, we are satisfied that the causation of plaintiff’s damages had its origin in the plaintiff’s failure to keep his cattle within the confines of his close and not by the defendant’s failure to erect a fence at the place where the cows came upon defendant’s railroad tracks. It is immaterial, for a determination of this issue, as to how the cattle broke out of plaintiff’s pasture or who may have loosed them.

A supplemental brief filed by the defendant subsequent to the oral argument, raises the -issue.that R. S. 48:12-46 does not apply to the defendant as it is a foreign corporation and not organized under the legislation applicable -here. But this defense was not interposed at the trial before the District -Court. It may be that there are special -circumstances in this case which require the railroad, notwithstanding it is a foreign -corporation, to fence that part of its railroad where plaintiff’s cow was -struck. As to this, however, the record is -silent.

We concur in the judgment of the trial court and it is hereby affirmed, with costs.


text:
    MARY SAINTSING, PETITIONER-APPELLANT, v. STEINBACH COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 14, 1949
    Decided February 23, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Isidor Kalisch argued the cause for petitioner-appellant (Mr. Mortimer Wald, attorney).

      Mr. George Lahey, Jr. argued the cause for defendant-respondent (Messrs. Lahey and Cockeler, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from a judgment of the Monmouth County Court reversing an award by the Workmen’s Compensation Bureau in favor of the petitioner-appellant.

On April 22, 1947, petitioner was in the defendant’s employ at its department store in Asbury Park. Shortly prior thereto, the defendant’s personnel director, after a meeting with representatives of other employers in the area, had proposed to its store manager that a vaccination service be made available to its employees to guard against a smallpox epidemic which had been threatened by several cases in New York City. The proposal was adopted, vaccine was purchased through the local Department of Health and a notice was distributed to the defendant’s employees stating that, "On April 22, 1947, we will provide free innoculation to all those who choose to be immunized against smallpox. We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.”

Pursuant to this notice most of the employees, including the petitioner, were vaccinated and it is stipulated that the petitioner suffered a reaction which resulted in both temporary and partial permanent disability. Petitioner’s claim under the Workmen’s Compensation Act was sustained in the Bureau which made the factual determination that she had “suffered an injury as a result of an accident which arose out of and in the course of her employment”. The Bureau’s award was reversed on October 15, 1948, by the Monmouth County Court and the petitioner appeals therefrom.

The defendant’s personnel director testified that it was his responsibility to improve the employer-employee relationship, to promote morale and to create a happier environment for the employees. Pie acknowledged that although his activities pointed to additional employee privileges they were designed for and resulted in mutual benefits to employer and employee. Thus, the defendant has made available at its premises a cafeteria where food is served to employees at reduced prices and a medical clinic where they may receive treatment for incidental non-industrial ailments as well as industrial accidents. The personnel director further acknowledged that absenteeism disrupts orderly business and that it was in the employer’s interest that measures be taken to reduce absences but stated that the vaccination program resulted in an expected rise in absenteeism, presumably of short duration. He stressed that the vaccination was not compulsory and pointed out that to emphasize its voluntary nature the employees were required to certify that the defendant would not be responsible for the results.

The issue as to whether a disability is compensable where it has resulted from an employee’s vaccination on his employer’s direction, has been passed upon in several cases. Thus, in Sanders v. Children’s Aid Society, 238 App. Div. 746, 265 N. Y. S. 698, (1933), aff’d 262 N. Y. 655, 188 N. E. 107 (1933) all of the employees were given a diphtheria antitoxin and the claimant suffered a reaction which caused permanent disability. The court sustained an award in -the claimant’s favor finding that the unforeseen injury was the result of a compensable accident within its State Act. Similar holdings are found in Alewine v. Tobin Quarries, 206 So. Car. 103, 33 S. E. 2d 81 (1945); Spicer Manufacturing Co. v. Tucker, 127 Ohio St. 421, 188 N. E. 870 (1934); Neudeck v. Ford Motor Company, 249 Mich. 690, 229 N. W. 438 (1930); and Texas Employers’ Insurance Association v. Mitchell, 27 S. W. 2d 600 (Texas Civ. App. 1930).

The móre troublesome issue which.arises where, as here, the employer has urged but not directed the vaccination, has likewise been dealt with by the courts. In Freedman v. Spicer Manufacturing Corp., 97 N. J. L. 325 (E. & A. 1921) the employer, during the influenza epidemic of 1918, furnished a vaccine service at its plant to its employees and their families. The innoculations were voluntary but almost 900 of its 1200 employees submitted. Shortly following his innoculation the decedent employee fainted, fell and sustained a fractured skull from which he died. The Bureau denied compensation upon the finding that “it cannot be said that the said accident arose out of the employment, inasmuch as the acceptance of the innoculation was in no way compulsory or ordered by the company.” The Court of Common Pleas’ reversal of the Bureau’s action was sustained first by the Supreme Court and then by the Court of Errors and Appeals. A similar result was reached in Smith v. Brown Paper Mill Co., 152 So. 700 (La. 1934) where an employee’s innoculation at the employer’s plant against typhus resulted in permanent disability. The court, after stating that it was shown that the workmen were not “ordered or required” to take the innoculation, pointed out that, “the convenience of the facility and the posted notice constituted a suggestion, invitation and urge, calculated to induce an employee to submit to the treatment who might not otherwise have done so”, and further that it could find no difference between the action of the employee in availing himself of the innoculation facility “and that of one using any other convenience furnished at the plant for the workmen.” Cf. Taylor v. 110 South Pennsylvania Avenue Corp., 117 N. J. L. 346 (Sup. Ct. 1936) and Flanagan v. Charles E. Green & Son, 121 N. J. L. 327 (Sup. Ct. 1938) aff’d 122 N. J. L. 424 (E. & A. 1939).

On the other hand, the Supreme Court of Connecticut, with Chief Justice Wheeler dissenting, in Smith v. Seamless Rub- her Company, 111 Conn. 365, 150 Atl. 110 (1930), sustained the denial of a disability award where the employee had voluntarily availed himself of a vaccination service afforded by the employer to combat a threat of smallpox. The court approved the doctrine that if the vaccination was for the benefit of the employer or for the mutual benefit of the employer and employee, then the resulting injury would be compensable but that if it was for the exclusive benefit of the employee then it would not be compensable. Cf. Stevens v. Essex Fells Country Club, 136 N. J. L. 656 (Sup. C.t. 1948). The Compensation Commissioner had made no finding of fact that the employer was seeking to serve its own purposes and the court declined to assume as a matter of law that the vaccination was for the benefit of the employer or for the mutual benefit of both parties. In his dissenting opinion, Chief Justice Wheeler refused to accept the view that the vaccination was for the exclusive benefit of the employee, saying:

“I have no disposition to minimize the welfare of the defendant’s employees, or that of the public, as important among the motives which impelled the defendant to this course; but it is equally apparent that these were not the only beneficiaries of the defendant’s action. No doubt it was conscious, as I am, of the benefit to the operation of its business if smallpox could he kept out of its plant. The true situation will not be portrayed unless we say — its course was for the mutual convenience, that is the mutual advantage or service of both employer and employee. This is the necessary and inescapable legal inference from the facts found.”

In the case before us the Bureau found that the vaccination service furnished at the employer’s premises was a.mutually beneficial facility comparable to its medical clinic, cafeteria and other employee facilities incidental to the employment and that insofar as it aided in the prevention of smallpox within the employee group it protected the employer against possibly disastrous business consequences. The personnel director’s testimony lends support for this finding. His explicit responsibility was to aid his employer’s business by improving its relationship with its employees. When the smallpox threat arose he met with personnel directors of other establishments and then recommended that the vaccination facility be set up at his employer’s place of business. The employees, although not compelled, were strongly urged to submit to the vaccination and, in natural response, most of them did. While his efforts were highly commendable, they were in the course of his stated duties and it would be unrealistic to find that they were for the exclusive benefit of the employees and were not additionally designed to further a sound employer-employee relationship and safeguard the employer against the serious effects of a case of smallpox amongst its employees. We have concluded that the activity was mutually beneficial, .that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment within the broad and remedial intendment of the Workmen’s Compensation Act. The decision by the Court of Errors and Appeals in the Freedman case, although not accompanied by a formal opinion, must be taken to have this effect and is controlling.

Although mention has been made of the fact that the employees certified that the employer would not be responsible for the results of the vaccination the respondent does not urge that this can legally serve to remove or narrow the employer’s liability under the Act. See Micieli v. Erie Railroad Co., 131 N. J. L. 427 (E. & A. 1944).

The judgment of the Monmouth County Court is reversed.


author: Colie, J. A. D.

text:
    THE FIRST NATIONAL BANK AND TRUST COMPANY OF MONTCLAIR AND CHARLES E. JONES, EXECUTORS OF THE LAST WILL AND TESTAMENT OF RITA F. BERG, DECEASED, APPELLANTS, v. HOMER C. ZINK, DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF TREASURY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 24, 1949
    Decided February 28, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Samuel Rosenblatt argued the cause for appellants.

      Mr. William A. Moore argued the cause for respondent (Mr. Walter D. Van Riper, Attorney General, attorney).
   The opinion of the court was delivered by

Colie, J. A. D.

The executors of the will of Rita F. Berg appeal from a transfer inheritance tax levied upon the purchase on January 28, 1946 of a straight life annuity for $25,000 on the life of Mr. Wallace MacMurray and .payable to him as an inter vivos transfer made in contemplation of death. Rita F. Berg died on August 5, 1947 at the age of 78. She had no children and her husband was confined in a mental -institution. At the hearing before the Division of Taxation of the Department of Taxation and Finance the decedent’s attending physician, Dr. Charles E. Jones, testified that decedent had been under his care for secondary anemia for about three years, that she responded well to treatment, that the anemia was controllable in a person of her years, that her health was good but that she had a certain amount of arteriosclerosis which was a contributing factor in a person of her years but not sufficiently advanced to warrant treatment, tha-t she was able, up to the time of her death, to go to New York for the weekly concerts of the Philharmonic Society during the season, that she took automobile rides, walked in her garden and conversed generally in an intelligent manner. He described her as mentally alert, clear and concise, as one who read the classics and discussed musical techniques clearly and intelligently. He did not consider the anemia a contributory cause of the cerebral hemorrhage which caused her death. Mr. A. W. Ballentine, Trust Officer of the First National Bank & Trust Company, testified that he had known Mrs. Berg for 20 years; that he had discussed business matters with her practically once a week and that from 1944 until her death she handled a trust for her husband, amounting to approximately $450,000. The relationship between the decedent and Mr. Ballentine was a cordial, friendly one. In 1945 the decedent told him of her acquaintanceship with Mr. MacMurray, who was the organist of St. James Church in Montclair, an instructor in English literature in a New York college and an accomplished musician. In December 1945 they discussed the services that Mr. MacMurray was performing for her. These consisted of his coming out to Nutley several times a week; talking over the weekly Philharmonic concerts; playing excerpts from the forthcoming programs and discussing them with her. They also read together and discussed literary works. He testified that the decedent felt that Mr. MacMurray should be compensated in some way for the time that he was spending and discussed the method of doing so with Mr. Ballentine. His specific testimony is that “She felt that Mr. MacMurray should continue his studies or his work and he should be paid for what he was doing for her, because it was a loss of income there which would affect his being able to devote to his ordinary work the time that he was giving to her; that there was a loss of income to him or a possible future income.” It was upon his recommendation that she purchased the annuity policy payable at the rate of $115 a month. He described her condition as good one week prior to the onset of the cerebral hemorrhage. In fact, he said that he did not notice any physical change in her condition prior to the time of the making of the gift in question, except that as years went by, she simply lived a little more leisurely.

Mr. MacMurray testified that during the years 1945-46-47 he was in her company almost daily, and detailed the nature of their discussions as heretofore indicated. He described her as being in excellent health up to about four weeks before her death. He described the taking out of the annuity policy as “in the nature of a scholarship” and said “She felt that I could have done something if I were left free to do it. She felt I could do something and she wanted to make it possible.” Some ten months after taking out the aforementioned policy, the decedent executed a will in which she gave $50,000 and personal property to the extent of $1,000 to him-.

A tax was assessed against the value of the annuity policy under R. S. 54:34-1c — “a transfer by * * * gift made without adequate valuable consideration and within two years prior to the death of the * * * donor of a material part of his estate * * * shall in the absence of proof to the contrary, be deemed to have been made in contemplation of death * *

The burden of proof of taxability is upon the State but where the gift is made less than two years prior to the donor’s decease, a presumption arises that the gift is made in contemplation of death, and the burden is then on the taxpayer to go forward with evidence to rebut the presumption. Cairns v. Martin, 130 N. J. Eq. 313 (Prerog. 1941). In Central Hanover Bank & Trust Co. v. Martin, 129 N. J. L. 127 (E. & A. 1942) it was said “that the test of a gift in contemplation of death in the statutory sense is whether the determinative motive was ‘of the sort .which leads to testamentary disposition.’ It is requisite that the ‘thought of death’ be the impelling cause of the transfer. If that be a controlling motive inducing the disposition of the property, the transfer is taxable under the statute. * * * The inquiry therefore is whether the gift was essentially testamentary in character. Was it made as a substitute for testamentary disposition? Was the generating thought of death as distinguished from purposes associated with life?”

The testimony in this case reveals that the decedent was a person of capability and one with a keen interest in cultural subjects, and the companionship between the decedent and Mr. MacMurray was a source of enjoyment to her. Furthermore, she appreciated that the time which he devoted to her deprived him of time which he might otherwise put to his own use. It is consistent with the relationship that the decedent should make this gift in order to permit the recipient to realize upon his potentialities. Bearing in mind that the important factor in determining taxability is the donor’s motive for the gift and finding, as we do, that the motivating thought which prompted the gift was to give assurance to the donee of a sense of financial security, both present and future, and thereby allow’ him greater freedom of action in his chosen fields, relieved of some pressure from the struggle of maintaining himself, we hold that the gift was not made in contemplation of death. The choice of an annuity admirably serves to carry into effect that purpose.

The assessment is set aside.


text:
    FREDERICK CLIFTON ET AL., PLAINTIFFS-APPELLANTS, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1949
    Decided February 28, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Charles S. Okin argued the cause for plaintiffs-appellants.

      Mr. John W. Griggs, Deputy Attorney General, argued the cause for defendant-respondent (Mr. Walter D. Van Riper, Attorney General, attorney).
   The opinion of the court was delivered by

Colie, J. A. D.

The Town of Harrison passed a resolution on January 11, 1944 reciting that “Whereas, there is a shortage locally of eligible candidates for permanent appointment to the 'police and fire departments respectively due to the enlistment of large numbers of eligible candidates in the Armed Forces of our Country and the employment of others in war industries, Whereas, retirement and illness has created a shortage of manpower in both departments * * *. Whereas, until the emergency shall reduce the requirements for the services of both departments the Council in its judgment has decided that both departments need and should have additional employees, the term of whose employment shall be entirely temporary to meet the emergency. Be it resolved * * * 1. That the police and fire committees * * * are authorized to employ from time to time and entirely at the pleasure of the respective committees for such period of time not extending beyond December 31st, 1944, such additional employees as may be found necessary to carry on police and fire service. Such employees shall have the title of temporary police * * * and temporary fire department employees * * *. 2. Men employed as aforesaid * * * shall be employed at the pleasure of the committee employing them and may be discharged without cause at any time. * * * The employment * * * under * * * this resolution shall in no event, be construed or be effective to create a permanent employment * * Thereafter on May 9, 1944 the resolution was amended with respect to the rate of pay but otherwise it remained unchanged and in full force and effect.

The legislative authority for employment of temporary employees is R. S. 40:47-3, “The body or officer or officers in the respective municipalities having authority to appoint to or employ members of the police department and force, or of the fire department and force therein, may, however, employ officers or men temporarily in case of emergency, or for parts of years, where their services are not needed throughout the entire year, and discharge them at the expiration of such temporary employment.”

Plaintiffs, Michael Wenzel, Edward Kinsella, Thomas Conroy, Richard Sullivan and Henry Kaminski were appointed to the Police Department on June 9, 1944. Frederick Clifton, Thomas Ryan, Francis Ryan, Charles Melvin, James Steiner, Frank Spezzana, John Leen, William Hedderman, Thomas McIntosh, William Barton and David Szilagyi were appointed to the Fire Department on the same date. All served from that date until March 4, 1947 when they were discharged. Plaintiffs then appealed to the Civil Service Commission for reinstatement and after hearing the Commission dismissed the appeal. A writ of certiorari was allowed to review the latter order and thus the matter comes before use.

It is argued that plaintiffs hold under a resolution passed in April, 1944 which contained no limitation as to the terms of employment. In attempting to establish this fact, Michael J. Giordano, a councilman of the Town of Harrison from 1935 to 1946 was called and testified to a resolution said to have been passed in April, 1944 which purportedly was silent as to temporary employment. No such resolution appears in the minute book and the witness finally admitted that he could not remember any resolution adopted in April. The plaintiffs have failed to establish the existence of the alleged resolution of April 1944.

Plaintiffs next contend that since they were employees of the municipality on the date when civil service was adopted, therefore they are entitled to civil service status and tenure. They rely upon R. S. 11:21-6, the applicable part of which reads: “Hereafter, all * * * employees in the employ of any * * * municipality * * * at the time of the adoption of this subtitle by such * * * municipality, * * * coming within the competitive or noncompetitive class of the civil service, .except such as may be appointed betweeni the time of the filing of the petition for the adoption of this subtitle and the holding of the referendum for the adoption thereof in such * * * municipality * * *, shall continue to hold their offices or employments, and shall not be removed therefrom except in accordance with the provisions contained in this subtitle relative to the removal of persons in the competitive or noncompetitive class, it being the intention hereby to include any and all such * * * employees within the classified service of a * * * municipality * * It is said that the expression “all * * * employees” coupled with the phrase “to include any and all such employees within the classified service”, bespeaks a legislative intent to include within the term “all employees” those having not only permanent but temporary employment. The interpretation contended for may not be adopted. In Freas v. City of Cape May, 77 N. J. L. 164 (Sup. Ct. 1908) Freas claimed that under the tenure of office act, he could not he lawfully discharged without charges being preferred against him and a hearing thereon. The statute, P. L. 1899, Chapter 16, provided that “The officers and men employed in the police department of every city shall severally hold their respective offices and continue in their respective employment during good behavior, efficiency and residence in the city where employed, and no person shall be removed from office or employment in the police department of any city for political reasons, or for any other cause than incapacity, misconduct, non-residence or disobedience of just rules and regulations heretofore established, or which may be established, for the government of the police force or police department of the city; * * * and provided further, that it shall be lawful for the board, body or person in the respective cities of this state having authority to employ members of the police department therein, to employ officers or men temporarily in cases of emergency or for parts of years in cases where their services are not needed throughout the entire year, and discharge them at the expiration of such temporary employment.” The Supreme Court dismissed a writ of certiorari whereby Freas sought to review the action of the municipality in discharging -him. The court said: “The evidence leaves no doubt in our minds that it was not the intention of the common council, or the understanding of the prosecutor, that he was appointed a member of the regular police force, but, on the contrary, that he was an appointee under the proviso contained in the first section authorizing the employment and discharge of policemen temporarily in cases of emergency or for parts of years in cases where their services were not needed throughout the entire year. That they did not discharge him at the .end of the summer season, but permitted him to continue his services for a longer period, does not change the distinct terms of his employment. * * * The conclusion which we have reached is that the writ ought not to go because the affidavits upon which this application is based show that the original appointment was temporary in its character, and nothing appears to show that there was not a case of emergency requiring his continuance in office beyond the summer season of 1904.” Applying this reasoning to the instant case, it is clear that these plaintiffs held by virtue of the resolution of January 11, 1944 which clearly and repeatedly set forth the temporary nature of the employment. The wording of the proviso of section 1 of P. L. 1899, Chapter 16 and the wording of R. S. 40:47-3 demonstrates that the substance of the two enactments is identical. In Shalvoy v. Johnson, 84 N. J. L. 547 (Swp. Ct. 1913) one Shalvoy held a rule to show cause why mandamus should not issue directing the Civil Service Commission to certify his pay as court attendant in the courts of Essex County. He claimed under a temporary appointment, which he asserted became a permanent tenure by reason of Laws 1912, c. 82, a supplement to the Civil Service Act reading: “Every officer or employe of the Circuit Court, Court of Oyer and Terminer, Court of Common Pleas, or Court of General Sessions in each of the counties of this State, holding office or employment at the time of the introduction of this act, or who may -hereafter be appointed, shall continue to hold their .offices or employments, as the case may be, and shall not be removed therefrom, except in accordance with the provisions of the act to which this act is a supplement.”

The court discharged the rule, saying: “Now, it is obvious that if the supplement of 1912 be held to apply to temporary appointments, the entire scheme of appointments for merit after examination will, so far as relates to court officers, be nullified by the simple expedient of making temporary appointments; for once in office, the tenure becomes permanent by the statute of 1912, which applies to all such officers holding office at the time of the introduction of the act or appointed in the future. We cannot believe that the legislature intended the supplement to have this effect. * * * In our view, it is clear that in the clause relating to future appointees the legislature intended to include, so far as relates to counties that adopt the Civil Service act, only those court officers claiming under permanent appointment, and not those temporarily appointed. This construction as to future appointments necessarily applies also to those in service at the time of introducing the act, for the two clauses are in juxtaposition and it would be absurd to suppose that any distinction was intended.” In Freas v. Cape May, supra, the court was dealing with the tenure of office act, since repealed, and in Shalvoy v. Johnson, supra, the court was dealing with a supplement to the Civil Service Act relating to court officers. Nevertheless the reasoning in both cases is equally applicable to the present situation.

Furthermore, with the adoption by the Town of Harrison of Civil Service on November 7, 1944, Chapter 64 of the Laws of 1944, which by reenactment remained in force until June 30, 1947, became effective therein. That statute provides that “No person appointed in a provisional or temporary capacity under the provisions of this act shall by virtue thereof be granted, acquire or be given permanent status * ' * The plaintiffs’ appointments as temporary employees therefore remained unchanged by virtue of the cited statute.

The argument that the resolution of January 11, 1944 and the amendment thereto were illegally passed in that while there was a national emergency, there was none in the Town of Harrison is specious. The final point raised charges the Civil Service Commission with bias, prejudice and misapplying of the law. There is nothing to substantiate the charge of bias and prejudice and what we have said above is dispositive of the alleged misapplication of the law.

For the reasons stated, the order of the Civil Service Commission under review is affirmed.


text:
    THOMAS CALICCHIO, PLAINTIFF-APPELLANT, v. STANDARD BRANDS, INC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 21, 1949
    Decided February 28, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Stephen Mongiello, attorney for the plaintiff-appellant, argued the cause.

      Mr. Arthur F. Mead argued the cause for the defendant-respondent (Messrs. Cox & Walburg, attorneys).
   The opinion of the court was delivered by

Eastwood, J. A. D.

This is a Workmen’s Compensation case. The only issue to be decided is whether appellant sustained the burden of required proof to support his claim of increased partial permanent disability. The Bureau found that appellant had suffered an increase of partial permanent disability, amounting to 4%. The county court reversed the judgment of the Bureau, from which latter judgment this appeal was taken.

Appellant suffered an accident on February 28, 1946, arising out of and in the course of his employment by defendant, Standard Brands, Inc., resulting in an injury to his back. As the result of a formal hearing an original award of 5% of total permanent disability was made on September 19, 1946. No temporary disability was awarded. On August 29, 1947, appellant filed his claim petition for increased partial permanent disability.

Defendant contends that plaintiff did not carry the burden of establishing by the evidence that his increased disability was attributable to 'the accident for which original award was made; that subsequent to the original award he separated himself from employment by the defendant and worked for the Jarka Corporation, and his increased disability was allegedly caused by an accident suffered while employed by that company. That Calicchio had suffered an increased disability is conceded by all of the medical testimony. In addition to plaintiff’s testimony, Dr. Visconti testified that he had examined him originally on April 4, 1946, at which time he concluded that there was 10% of total permanent disability. When he re-examined him on January 8, 1948, he calculated petitioner’s disability as 15% of total. Dr. Meehan, testifying for plaintiff, stated that he examined Calicehio on February 13, 1948, and found that he had a disability of 15% of total. . Both of Calicchio’s doctors testified that the condition found upon their respective examinations was attributable to the injury he suffered when in the employ of the defendant. Dr. Watman, testifying for the defendant, stated that from his examination on July 30, 1946, there was a 3% of total permanent disability; that on April 12, 1948, when he re-examined him, he found a disability of 3 to 5% of total. Dr. Watman further testified that he was informed by the plaintiff, when he obtained a medical history from him, that since his prior examination on July 30, 1946, he had continued to do light work “but in December, of 1947, while working for the Jarka Corporation he 'had a re-occurrence of the back symptoms when he lifted some cases of dates”. Dr. Watman admitted that he found a slight,increase in Calicohio’s permanent disability, but in his opinion it was the result of the accident while working for the Jarka 'Corporation. The testimony of Dr. Watman as to the alleged statement made by Calicehio as to the accident while employed with the Jarka Corporation was not refuted by Calicchio. Dr. Watman’s testimony concluded the hearing, at which time, it was conceded at the argument before this court, Calicehio had left for Australia. Calicehio was not cross-examined by defendant’s counsel as to the alleged accident at the Jarka plant.

The Bureau found that Calicchio had borne the burden of establishing that he had suffered an increased permanent disability of 4% of total as the result of the accident in question and partial permanent disability was determined as 9% of total, and directed that the amount of the original award of 5% be deducted therefrom. The county court reversed the Bureau, holding that Calicchio had not sustained the burden of required proof and that his “aggravating disability is directly attributable to the back injury he sustained while employed by the Jarka Corporation” and “no proof to the contrary was offered by the petitioner”. We are of the opinion that the county court erred.

It cannot be gainsaid that additional compensation may 'be awarded where proof of increased disability is established -by competent evidence. Our courts have consistently held that the Bureau may modify an award of compensation to accord with an after occurring enlargement or diminution of the incapacity so found to have ensued from the established compensable injury. Drake v. C. V. Hill & Co., 117 N. J. L. 290, 187 A. 637, (E. & A. 1936); DeSantis v. Turner Construction Co., 120 N. J. L. 590, 1 A. 2d 202, (Sup. Ct. 1938); Ducasse v. Walworth Manufacturing Co., 1 N. J. Super. 77, 62 A.2d 480 (N. J. App. Div. 1948). We are satisfied -that the evidence proffered by the petitioner establishes -that 'his increased disability was the natural and probable result of the accident on February 28, 1946, in contra distinction to the claim of the defendant that his increased disability was attributable to his alleged accident at the plant of the Jarka Corporation.

Where, as here, the defendant seeks to attribute the increased disability to a cause unrelated to the accident in question, the defendant must assume the burden of establishing by competent evidence that its cause is unrelated to the original injury. There is no testimony here, other than Dr. Watman’s, to substantiate the occurrence of the second accident, nor are there any such inferences or implications in support thereof to be drawn from the testimony of Doctors Visconti and Meehan. In Marshall v. C. F. Mueller Co., 135 N. J. L. 75, 50 A.2d 158, (Sup. Ct. 1946); it was held:

“On the other hand where the employer seeks to attribute the disability of the injured employee to causes for which he is not responsible, the burden of proof in that regard is on the employer. Atchison v. Colgate, 3 N. J. Misc. R. 451; affirmed, 102 N. J. L. 425.’

This doctrine finds support in other decisions of our courts, to wit: Atchison v. Colgate & Co., 3 N. J. Misc. 451, 128 A. 598, (Sup. Ct. 1925); affirmed 102 N. J. L. 425, 131 A. 921, (E. & A. 1926); Serignese v. Air Reduction Sales Co., 135 N. J. L. 317, 51 A. 2d 543, (Sup. Ct. 1947); Ducasse v. Walworth Manufacturing Co., supra. We are of the opinion that the defendant has failed to -bear the burden of required proof to establish that the employee’s increased disability was attributable to the accident at the Jarka Corporation plant.

The judgment of the Hudson County Court is accordingly reversed and the judgment of the Bureau is affirmed, with costs.


text:
    STATE OF NEW JERSEY, RESPONDENT, v. JAMES EDWARD NOLAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 21, 1949
    Decided February 25, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Sol. D. Kapelsohn argued the cause for the defendant-appellant (Messrs. Isserman and Kapelsohn, attorneys).

      Mr. H. Russell Morss, Jr., argued the cause for the respondent (Mr. Edward Cohn, Union County Prosecutor, attorney).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The defendant-appellant was found guilty of reckless driving in the Recorder’s Court of Springfield Township'; he appealed to the Union County Court and after a trial de novo was again found guilty and was fined $15.00 and costs; he now appeals to this Court on the ground that the evidence did not warrant his conviction.

The complaining witness testified that the defendant drove a newspaper delivery truck around a severe curve at great speed, crossed the white line in the center of the road about two feet, and struck her car which was traveling in the opposite direction. She estimated that the defendant was traveling approximately 45 or 50 m'iles per hour. Another witness who described the curve as “almost a ninety degree curve”, testified that the defendant had applied his brakes so sharply that his truck skidded, crossed the white line and struck the complaining witness’ car. He estimated the defendant’s speed at about 40 miles per hour. The defendant denied that he was driving at excessive speed or that the truck had crossed the white line.

The issue presented to the trier of facts was whether the defendant had carelessly and heedlessly driven the truck “in willful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger, or be likely to endanger, a person or property.” See R. S. 39 :4-96. It was entirely factual and two tribunals have on sufficient evidence determined that he did. We see no justification for disturbing their finding. Cf. DeMoors v. Atlantic Casualty Insurance Company, 1 N. J. Super. 1, 61 A.2d 511 (App. Div. 1948); Tuzio v. Saylor, 1 N. J. Super. 61, 62 A.2d 402 (App. Div. 1948). Nor do we see any merit to the defendant’s contention that he is entitled to a reversal because -the damage was trivial and his deviation from caution was momentary. Reckless driving is condemned by the Statute even -though there be no actual damage to person or property and the defendant is not entitled to immunity therefrom because the deviation which he describes as “but for a fleeting instant of time” did not result, as it might well have, in death or serious injury.

The judgment below is affirmed.


author: Donges, J. A. D.

text:
    JOHN McGIMPSEY, AN INFANT BY FRANK McGIMPSEY AND VIOLA M. McGIMPSEY, HIS NEXT FRIEND,PETITIONER-RESPONDENT, v. JOHN A. SERRIE, TRADING AS SERRIE’S FOOD CENTER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 24, 1949
    Decided February 28, 1949.

      Before Judges McGeehan, Donges and Colie.

      Messrs. Edward A. Markley, and Charles W. Hutchinson, argued the cause for petitioner-respondent (Messrs. Markley & Broadhurst, attorneys).

      Messrs. Patrick A. Dwyer, and James P. Beggans, argued the cause for defendant-appellant (Messrs. Carpenter, Gilmour & Dwyer, attorneys).
   The opinion of the court was delivered by

Donges, J. A. D.

This is an appeal from a judgment of the Hudson County Court, affirming an award of the Compensation Bureau, for hospital services and medical services against appellant, the respondent’s employer.

Compensation was allowed to respondent and paid by appellant for the injuries alleged to have been sustained arising out of and in the course of the employment of respondent, then 13 years of age, by appellant. The only point here involved is as to the award of hospital and doctors’ charges for services found to be necessary by reason of the injury sustained on December 30, 1944, arising out of and in the course of respondent’s employment, as a delivery boy in appellant’s store.

There is no doubt that appellant was immediately informed of the accident, because respondent went to appellant’s store and told him he had just fallen off his bicycle, while delivering articles for appellant, by reason of the bicycle skidding on some ice. He went home and his mother called a doctor, who kept the boy in bed for three or four days. In January, or February, 1945, the boy’s mother informed appellant of the boy’s continued injury and requested appellant 'to furnish some x-rays. Appellant, thereupon, telephoned his insurance agent about her request for x-rays. Some time later, a representative of the insurance company gave a note for an examination by the doctor for the insurance company. Dr. Ruvane examined the respondent on March 27, 1945, at which time his mother requested that x-rays be taken, but he refused tO' have them taken. On the witness stand, the doctor expressed surprise that he did not have them taken. In September, 1945, she took him to a Dr. Benjamin who required x-rays, and who advised hospitalization for respondent. Thereupon, she requested the appellant’s insurance company to treat the respondent and the request was refused. In November, 1945, Dr. Ruvane again examined the boy and recommended he be placed in a hospital, but told the mother that he was unable to furnish any aid without the approval of the insurance company. Respondent’s attorney then called the insurance company requesting medical treatment for respondent. None was furnished. Respondent entered the Bayonne Hospital on- November 29, 1945, and remained until February 12, 1946; he returned to the hospital on August 12, 1946, and remained until October 12, 1946. The hospital bill amounted to $1,021.00, and Dr. Frank’s bill for treatment and operations amounted to $670.00. It was not disputed that these charges were reasonable.

Appellant argues that under R. S. 34:15-15, he is not liable for medical and hospital expenses without his authorization.

In Mecca v. Phoenix Brass Fittings Corp., 124 N. J. Law 6 (Sup. Ct. 1940), it was said: “The statute provides the employer shall not be liable ‘ * * * or unless the nature of the injury required such services, and the employer or his superintendent or foreman, having knowledge of such injury shall have neglected to provide the same * * * or unless the circumstances are so peculiar as shall justify, in the opinion of the Workmen’s Compensation Bureau, the expenditures assumed by the employee for such physicians’ treatment and hospital services, apparatus and appliances.’ We have already found that there was notice to the foreman and in that situation the language of Mr. Justice Case in Osborne v. Consolidated Stone and Sand Co., 109 N. J. L. 590, is pertinent: ‘Finally, the appellant disputes the allowance for medical expenses. Our disposition of point two imputes a knowledge to the employer such that it became the employer’s duty to provide the services for which the allowance was made. Workmen’s Compensation Act, supra, Section 2, paragraph 14 [now R. S. 34:15-15], That -the services were necessary and that the charges, the bulk of which were owing to the Paterson General Hospital, were reasonable are, we think, apparent. The employer did not provide the necessary medical, surgical and hospital services, and the allowance of the cost thereof was, therefore, proper.’ See, also, Beach Construction Co. v. Sullivan, 13 N. J. Misc. R. 582."

In the instant case, the employer had knowledge of the occurrence; he was requested to furnish aid and declined; he notified his insurer and left the determination of the question with his insurer, whose physician admitted the injury and recomimended hospitalization before it was commenced. Certainly, in view of the admitted injury; the payment of compensation therefor; and the knowledge of injury and demand for treatment; the terms of the statute have been met, and the award should be affirmed.