author: AYaesciie, President.

text:
    State Board of Tax Appeals.
    LUCASTON RAILROAD COMPANY, PETITIONER, v. WILLIAM D. KELLY, STATE TAX COMMISSIONER. RESPONDENT.
    Decided November 4, 1942.
    For tlie petitioner, William Olay ton Jones and Edgar S. McKaig.

    For the respondent, Harry A. Walsh.

   AYaesciie, President.

The appeal complaint filed by the Lueaston Kailroad Company seeks a reduction of the amount of the assessment and valuation placed upon its property by the State Tax Commissioner pursuant to chapter 291, laws of 1941, and the amendments thereto. At the hearing, the appellant contended that it is not subject to taxation under chapter 291, laws of 1941, and its amendments, because it is not a railroad within the meaning of that act.

The Lueaston Kailroad Company was incorporated in May, 1892, under an act of the legislature of the State of New Jersey, entitled “An act to authorize the formation of railroad companies and regulate the same,” approved April 2d, 1873, and acts supplementary thereto and amendatory thereof.

Under its certificate of incorporation, it is authorized to construct, maintain and operate a railroad for public use, in the conveyance of persons and property. However, since its incorporation, its franchise and property have been taxed as a railroad.

The Lueaston Kailroad is the roadbed and railroad tracks running from Lueaston, New Jersey, to Gibbsboro, New Jersey, a distance of about one and three-quarter miles. The ' company neither owns, leases nor operates any rolling stock. Its roadbed and tracks are-used only to carry freight between Lucaston and the John Lucas & Company paint plant at Gibbsboro. The Penn-Reading Seashore Lines furnish the .engine to haul this freight.

In the case of Sheridan v. New Jersey and New York Central Railroad Co., 104 N. J. L. 622; 141 Atl. Rep. 811, the Court of Errors and Appeals said that a common carrier is a gwast-public agency enjoying a franchise to serve the public. The Lucaston Railroad Company holds a franchise from the State of Hew Jersey to operate' a railroad for public use in the conveyance of persons and property.

A common carrier by railroad owning facilities for the transportation of persons or property in this state, is a railroad within the definition of a railroad in section 2 of article I of chapter 291, laws 'of 1941, and is therefore subject to taxation.

The Lucaston Railroad Company did not have an opportunity to submit evidence concerning the value of its real estate. Its appeal will therefore be dismissed without prejudice, and the tax assessments levied by the State Tax Commission for the year 1942 are hereby affirmed.


source: Caselaw Access Project

author: Brown, C. C. J.

license: Public Domain

text:
    Hudson County Circuit Court.
    THOMAS MORAN, PLAINTIFF, v. FIREMEN’S AND POLICEMEN’S PENSION FUND COMMISSION OF THE CITY OF JERSEY CITY (NEW JERSEY), DEFENDANT.
    Decided November 24, 1942.
    For the plaintiff, Ziegener £ Brenner.

      . For the defendant, Charles A. Rooney.

   Brown, C. C. J.

The plaintiff moves to strike the amended answer and for summary judgment upon the grounds that the “allegations contained in said amended answer are untrue in fact, and sham, and the separate defenses contained therein are frivolous.” This is the third motion, of this kind, made in the cause. The first was denied because of a defective affidavit. The second was granted and judgment entered and thereafter the judgment was opened for the purpose of permitting the defendant to file an amended answer and upon condition that the plaintiff may renew his motion to strike. The complaint contains the allegations that the plaintiff for several years has been a pensioned lieutenant of the police department of Jersey City; that he is entitled to a pension payment of $112.50 each month; that for several years and to the 1st day of June, 1940, the defendant paid the monthly pension. The suit is brought for twenty-three payments remaining unpaid since the date last mentioned. Suit was brought on April 21st, 1942. The amended answer and the first separate defense thereof admit the allegations in the complaint but the defendant refuses to pay the claim because it does not know whether the plaintiff is alive and is entitled to the pension and leaves the plaintiff to his proof. The new matter in the amended answer defends that the defendant is ready to pay the plaintiff at the city hall in Jersey City provided the plaintiff shall appear in person to be identified; that the defendant has adopted a regulation for such an appearance for the purpose of identification; that the defendant has refused to pay because the appearance was not made and that the defendant has no “knowledge or information sufficient to form a'belief as to whether plaintiff is entitled thereto or whether the person entitled thereto is in fact alive: ’ The sixth defense is to the effect that the defendant has adopted a regulation that for the duration of the present war, no pension checks are to be delivered if the pensioner does not reside in the United States and asserts that the plaintiff does not so reside. It should be noted that the regulations requiring the plaintiff to come and get his pension and that the defendant will not make payments unless the pensioner is a resident of the United States were adopted August 10th, 1942. The plaintiff's claim was reduced to judgment on July 10th, 1942. Monthly pension checks were forwarded by the defendant to the plaintiff from May, 1938, to June 1st, 1940, while the plaintiff was living in Ireland and in which place he continued to reside.

Before considering the proof submitted on the motion it is in order to consider the allegations in the answer. The part thereof, both in the separate defenses and otherwise, which alleges that the defendant “does not know whether the plaintiff is alive * * * and leaves the plaintiff to his proof” is in the nature of a plea in abatement. Whenever the subject-matter of a defense is that the plaintiff cannot maintain any action at any time in respect to the supposed cause of action it should be pleaded in bar; but matter which merely defeats the present proceeding and does not show that the plaintiff is forever concluded should generally be pleaded in abatement. Such was the common law practice. The defense of the “death” of a party plaintiff was always considered as a plea in abatement. While the defendant in the case under consideration does not directly charge the plaintiff as being non est, the essense of its argument on the motion rests primarily on that possibility. Under rule 56 of the Supreme Court pleas in abatement are abolished and in lieu thereof the objection should be made by motion. The defendant has failed to comply with this rule and it has, therefore, waived the objection by filing an answer. In any event the answer does not deny or admit the death of the plaintiff but leaves the plaintiff to his proof. An answer which does not specifically deny a matter is equivalent in law to an admission. Union Garage Co. v. Wilner, 101 N. J. L. 362; 128 Atl. Rep. 161. There is no presumption that a person in whose name a suit is brought is not living. The presumption, if any, is to the contrary. The law presumes a continuation of life until seven years have elapsed after a person has been last heard from. Vreeland v. Vreeland, 78 N. J. Eq. 256; 79 Atl. Rep. 336. A party has a right to bring a suit by and through his attorney without appearing in person. Baldauf v. Russell, 88 N. J. L. 303; 95 Atl. Rep. 96. A decision on this part of the answer is not made solely upon the effect of the pleadings and the presumption of existence but also on the proof presented. An affidavit made by the plaintiff bearing the title of the cause, sworn to on June 4th, 1942, before a consul of the United States at Dublin, Ireland, and bearing the seal of the consul contains the statement that the affiant is the plaintiff in the cause; that he resides in Dublin, Ireland, since May 10th, 1938; that he is still living and identifies his photograph and signature that is made part of the affidavit; that the defendant is indebted to him in the sum of $2,587.50 for arrearages in pension payments since June 1st, 1940, at the ■rate of $112.50 a month as a retired police lieutenant of Jersey City; that the defendant has paid for several years the pension payments due before the date last mentioned. In an affidavit by Margaret Green sworn to before the American consul at Dublin, Iieland, on June 4th, 1942, she deposes and says that she is the sister of the plaintiff who has resided in Ireland since 1938; that she sees the plaintiff very often and saw and spoke to him on the day the affidavit was made. She identifies the photograph and signature contained in the plaintiff’s affidavit as being that of her brother. Robert .Brenner, an attorney of record for the plaintiff in his affidavit says that he has known the plaintiff for over twenty years; that he is familiar with the allegations contained in the complaint through information obtained from the defendant’s representatives and correspondence with the plaintiff. He states the amount due Moran and that the defendant has refused to pay the amount due to Moran, although admitting it to be due; claiming the defendant is without knowledge that Moran is alive. This affiant says he furnished the defendant with letters and photographs of the plaintiff duly authenticated and information that plaintiff is alive and that there is on file with the Department of State at Washington •the registration of tlje plaintiff as an American citizen for two years from July, 1941, which was approved. He further states “his belief there is no defense to the action.” In an affidavit made by Drank A. Van Winkle, he says he is secretary of the defendant; he admits that Moran was retired on a pension of $112.50 a month to be paid by the defendant and that Moran has not appeared in person for his pension in over four years; that the “majority” of pensioners appear in person for their pension; that Moran has been paid his pension to June 1st, 1940, and that the pension cheeks payable since that time are-being held for Moran as the defendant. does not know “whether Moran is alive.” In the answer filed the defendant makes no specific denial that it does not owe the plaintiff the debt claimed to be due but leaves the plaintiff to his proof. The separate defenses remaining for consideration involves regulations adopted by the defendant on August 10th, 1942, which are pleaded generally in separate defenses and are as follows:

“16. In order to obtain assurance that the person claiming pension moneys is actually the person entitled thereto, The Commission may, at any time, require the said person to appear personally at the office of the Commission before the Commission will be required to make payment to said pensioner.
“17. In no case for the duration of the present war, are pension checks to be delivered if the pensioner does not reside in the United States.”

The general rule is that a pension granted by the public authorities is not a contractual obligation but a gratuitous allowance in the continuance of which the pensioner has no vested right and that a pension is, accordingly, terminable at the will of the grantor. 37 Amer. & Eng. Ann. Cases, 1915C, p. 751; Pennie v. Reis, 132 U. S. 464. It is, however, conceded in most jurisdictions that where any particular payment under a pension lias become due, the pensioner has a vested right therein. Amer. & Eng. Ann. Cases, supra; Pennie v. Reis, supra, and the claim may be enforced by an action of debt; Passaic National Bank v. Erlman, 116 N. J. L. (at p. 284). If the right to a pension installment has matured the same may not be denied or interfered with by subsequent amendments or regulations concerning the payment: 112 A. L. R. 1011. It clearly appears in the case under consideration that the claim of the plaintiff is based on a vested right; that while the regulations adopted by the defendant on August 10th, 1942, may or may not affect pension payments that become due after that date such regulations do not affect the vested right of the plaintiff which matured long before that date. As to whether the regulations adopted on tlie date last mentioned may or may not be reasonable does not affect, in either case, the vosfed right of the plaintiff. The plaintiff’s motion is granted and judgment may be entered in favor of the plaintiff for the amount specified in the complaint with interest and costs of suit.


author: Waesche, President.

text:
      State Boakd of Tax Appeals.
    CITY OF JERSEY CITY, PETITIONER, v. WILLIAM D. KELLY, STATE TAX COMMISSIONER, AND NEW YORK CENTRAL RAILROAD SYSTEM, LEHIGH VALLEY RAILROAD SYSTEM, DELAWARE, LACKAWANNA AND WESTERN RAILROAD SYSTEM, ERIE RAILROAD SYSTEM, NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD SYSTEM, PENNSYLVANIA RAILROAD SYSTEM, AND HUDSON AND MANHATTAN RAILROAD COMPANY, RESPONDENTS. CITY OF HOBOKEN, PETITIONER, v. WILLIAM D. KELLY, STATE TAX COMMISSIONER, AND NEW YORK CENTRAL RAILROAD SYSTEM, DELAWARE, LACKAWANNA AND wESTERN RAILROAD SYSTEM, ERIE RAILROAD SYSTEM, PENNSYLVANIA RAILROAD SYSTEM, HOBOKEN RAILROAD WAREHOUSE AND STEAMSHIP CONNECTING COMPANY, HOBOKEN MANUFACTURERS RAILROAD, AND HUDSON AND MANHATTAN RAILROAD, RESPONDENTS. TOWN OF SECAUCUS, PETITIONER, v. WILLIAM D. KELLY. STATE TAX COMMISSIONER, AND DELAWARE, LACKAWANNA AND WESTERN RAILROAD ’ SYSTEM. ERIE RAILROAD SYSTEM, AND PENNSYLVANIA RAILROAD SYSTEM, RESPONDENTS. TOWN OF HARRISON, PETITIONER, v. WILLIAM D. KELLY, STATE TAX COMMISSIONER, AND DELAWARE, LACKAWANNA AND WESTERN RAILROAD SYSTEM, ERIE RAILROAD SYSTEM, AND PENNSYLVANIA RAILROAD SYSTEM, RESPONDENTS.
    Decided November 4, 1942.
    For the petitioners, Frank F. McCarthy.

      For the State Tax Commissioner, Harry A. Walsh.

    For the New York Central Railroad, the Lehigh Valley Railroad, the Delaware, Lackawanna and Western Railroad and the Erie Kailroad, Maximilian M. Stallman.

    For the Pennsylvania Railroad, John A. Hartpence.

    For the Hudson and Manhattan Railroad, Carl S. KueMer.

    For the Hoboken Manufacturers Railroad and the Hoboken Railroad, Warehouse and Steamship Connecting Company, Robert J. Bain.

   Waesche, President.

On September loth, 1942, at the time of the calling of the calendar of appeals from the assessments of railroad property and excise taxes by the State Tax Commissioner for the year 1942, the president of this Board directed the attention of all counsel to that section of the statute which provides that the State Board of Tax Appeals shall conclude its hearings on or before the loth day of October following the filing of the complaint, and stated that the Board was ready to proceed with the hearings at once and to continue from day to day in order to comply with the statutory provision. During the hearings of the appeals, it became evident that it would be impossible for the Board to conclude its hearings before the 15th day of October, and the interested parties in such appeals had a bill drafted and submitted to the legislature to extend the time bevontl the loth of October, but the legislature took no action thereon.

On October 15th, 1942, the calendar of appeals not yet heard was called. All of such appeals were answered ready, and counsel for four of the respondent railroad companies then moved that the appeals be dismissed on the ground that there is no appeal pending because the appeal complaints contained no specification of the parcels of land and the improvements, as required by statute and the rules of this Board. Counsel for all of the other respondent railroad companies and the Attorney-General, on behalf of the State Tax Commissioner, joined in such motion. Argument ivas had and the parties requested, the privilege of submitting briefs. No testimony, however, was offered on any of such appeals.

While the objection made to the form of these complaints, in so far as they deal with the valuation of second class property, seems to be substantial, it appears unnecessary to determine this motion in view of the fact that in the opinion of the Board, no hearings on these appeals could legally be held after October 15th, 1942.

The Railroad Tax Law, chapter 291 of the laws of 1941, under article 6, sets out in detail the procedure to be pursued on appeal and review, and in Section 31 fixes the third Monday of June following the assessment as the day on or before which an appeal in the form of a written complaint may be filed with the State Board of Tax Appeals. Section 33 then provides that the State Board of Tax Appeals shall meet on the third Monday of June in each year for the purpose of fixing a time and place for the hearings of any such complaints so filed; section 34 then provides, “The State Board of Tax Appeals shall conclude its hearing on or before the loth day of October following the filing of the complaint, and between November 1st and November 5th following shall certify to the State Tax Commissioner its final determination.”'

It is the opinion of the Board that in so far as the Railroad Tax Law of 1941 is concerned, all of such dates are mandatory and that this Board must conclude .its hearings on or before the 15th day of October following the filing of the complaint.

These appeals are accordingly dismissed, and the tax assessments levied by the State Tax Commissioner for the year 1942 against the above named companies are affirmed, without prejudice.


author: Delmar, C. P. J.

text:
    Special Statutory Tribunal.
    STATE OF NEW JERSEY, COMPLAINANT, v. GORDON SPENCER, DEFENDANT.
    Decided December 1, 1942.
    For the complainant, James A. Breslin, Assistant Prosecutor of the Pleas.
    For the defendant, Herbert F. Myers, Jr.

   Delmar, C. P. J.

The defendant was tried and convicted in the First Criminal Judicial District Court of the County of Bergen on a complaint alleging that he did, “Cruelly abuse and needlessly kill one alley cat by beating it with a stick.”

The complaint charges that the defendant committed a misdemeanor and alleges facts which if true would constitute a violation of R. S. 4:22-17; N. J. 8. A. 4:22-l7. He waived indictment and trial by jury, pled not guilty and was tried and convicted by the judge of the aforesaid court. The defendant has taken the steps required by statute to have the conviction and the proceedings leading to it reviewed by me sitting as a statutory tribunal. There were returned to me copies of the complaint, warrant, commitment and record of conviction, together with a state of the case certified by the judge of the lower court.

Twenty reasons were advanced why the conviction should be reversed, only two of which need to be noticed: First, that the lower court erred in denying defendant’s motion to “dismiss the complaint” at the end of the state’s ease. Second, that there was no evidence justifying defendant’s conviction.

Wo objection was made to the procedure adopted, and at the hearing the so-called state of the case ivas considered by both sides as a part of the record returned to me, nevertheless, because the matter appears not to have had judicial consideration, I consider it advisable to offer some comments on what the procedure should be and the nature of the review or appeal.

My jurisdiction over the review is set forth in R. S. 2:214-14, et seq.; N. J. S. A. 2:214-14, ei seq. Section 14 provides that the “Judge of the Court of Quarter Sessions * * * may order the complaint and warrant, commitment and record of conviction to be brought forthwith before him for review.”

It also provides, if the conviction is for a criminal offense, that due notice shall be given to the prosecutor of the pleas. Section 15 provides:

“If an appeal shall be taken from, or an order of review or a writ of certiorari allowed upon, a judgment in a cause tried in a criminal judicial district court, a transcript of the proceedings and testimony made by the stenographer designated pursuant to Section 2:212-18 shall be certified by the judge as the state of the case, to be used on the hearing of the appeal, review or certiorari.”

Section 16 provides:

“If, upon a review of a conviction in a criminal judicial district court under authority of Section 2:214-14 of this title, the complaint, warrant, commitment and conviction shall be found to be illegal, the same shall be forthwith set aside, and the person so convicted shall either be discharged from custody or remanded for a new trial in such criminal judicial district court.”

In my judgment the foregoing provisions are ambiguous. Sections 14 and 16 taken together would indicate that my authority was limited to a strict review of the legality of the complaint, warrant, commitment and conviction. Section 15 indicates that where a stenographer is used in the court below, a stenographic transcript shall be returned as a part of the state of the case and that the review is in the nature of an appeal. No provision is made for a return of a transcript or certification of the testimony where no stenographer is appointed.

At common law it was the practice of magistrates to keep a docket in which was set forth the names of the witnesses and a summary of the testimony given by each. The record returned in this case includes such a summary of the testimony, and in the absence of any objection I have considered it as part of the state of the case.

Criminal judicial district courts, organized under the statute, are courts of record; B. 8. 2:212-5; N. J. 8. A. 2 :212-5, and the judges thereof have the power to make such rules and regulations as shall be necessary for the orderly conduct of the business and proceedings of his court; B. 8. 2 :214-1; N. J. S. A. 2 :214-1. So far as I have been able to learn, no such rules and regulations have ever been adopted, nor has the Court of Quarter Sessions of this county, nor any judge thereof, ever made any rules or regulations governing reviews or appeals from such courts.

The Criminal Judicial District Courts have concurrent jurisdiction with the Courts of Quarter Sessions and Special Sessions to try all misdemeanors, other than high misdemeanors, where such misdemeanors are committed within the limit of the judicial district in which such criminal court is established, and the person or persons charged with any such offense shall in writing waive indictment and trial by jury; see B. 8. 2:213-2; N. J. 8. A. 2:213-2. A trial such as therein provided for is akin to a trial by the judge of the Court of Special Sessions. If the ease at bar had been tried before a judge of the Court of Special Sessions, the defendant, upon conviction, would by virtue of B. 8. 2:195-16; N. J. 8. A. 2:195-16, have the right to the benefit of a review of the entire record of the proceedings, in addition to the procedure provided for by a strict writ of error. This latter statute wasdn effect at the time of the passage of the original act under which the Criminal Judicial District Courts were organized.

It is quite evident that one of the purposes in creating Criminal Judicial District Courts was to lift from the judges of the Court of Special Sessions some of the burden of disposing of cases in those courts. It would be anomalous if, in two courts having concurrent jurisdiction, the defendant in Special Sessions should have the benefit, if he so desires, of a review of the entire record and that he should not have the same benefit if the case was tried in a Criminal Judicial District Court. An interpretation of the various acts hereinbefore referred to which would bring about that result should not be given unless it is clear that the legislature so intended. The very paucity of description of the review in the Criminal Judicial District Court Act suggests that the legislature had in mind that the review by a judge of the Court of Quarter Sessions was but a step in the procedure outlined bjr the Criminal Procedure Act. Furthermore, B-. 8. 2:214-15; N. J. 8. A. 2:214-15, indicates that it was the legislative intention to have a review of the evidence and a statute somewhat similar in phraseology was so construed in Minochian v. Paterson, 105 N. J. L. 73; 143 Atl. Rep. 825, reversed on other grounds, 106 N. J. L. 436; 149 Atl. Rep. 61. It is, therefore, my opinion, in the absence of the authority of a decision from any higher court, that this review should open up the entire record for the consideration of this court.

There was one other matter of procedure that I think calls for some' comment. The papers returned to this court consist of a lot of loose, unconnected documents. It is my opinion that orderly procedure requires that the return made to this court consist of a single document, certified by the judge of the Criminal Judicial District Court to be the entire record of the case.

We come now to a consideration of the reasons argued in this court for a reversal. The so-called state of the case siiows that at the end of the state’s case the defendant moved for a dismissal of the complaint on nine separate counts. The complaint alleges that the defendant, “Did cruelly abuse and needlessly kill one alley eat by beating it with a stick.” It is not necessary to specify or refer to-any of the nine counts hereinbefore referred to, except No. 9, to wit, “That no evidence has been advanced by the state that the cat had been cruelly abused or needlessly killed as charged in the complaint.” The defendant’s motion was denied and an exception was allowed. I have treated this motion to dismiss the complaint as equivalent to a motion for a directed verdict because it is evident that such a motion was intended. A motion to dismiss a complaint is equivalent to a motion to quash and only raises the question as to the sufficiency of the complaint itself; 22 0. J. S., § 313, and cases cited; whereas, a perusal of the reasons given to the court indicates that a motion to direct a verdict of acquittal was intended. Whether such a verdict should be directed in favor of the defendant at the close of the state’s case is a matter resting in the discretion of the trial court; State v. Jaggers, 71 N. J. L. 281; 58 Atl. Rep. 1014. An exception to the court’s refusal to so direct was formerly considered waived if the defendant afterward proceeded to his defense. However, when the entire ease is taken up under R. S. 2:195-16; N. J. S. A. 2:195-16, a court of review is required to consider, among other things, whether the defendant has suffered manifest wrong or injury in the denial of any matter by the trial court which was a matter of discretion. This provision applies to a refusal to direct a verdict at the close of the state’s case, but it brings into review only the question whether upon the evidence as it stands when the motion was made there was a case for the jury; State v. Jaggers, supra, and State v. Lieberman, 80 N. J. L. 506; 79 Atl. Rep. 331; and(the right to a review of such ruling is not waived because the defendant afterward proceeded to his defense; State v. Bacheller, 89 N. J. L. 433; 98 Atl. Rep. 829. This is true even though such motion was not renewed at the conclusion of the whole case; State v. Bacheller, supra, and State v. Contarino, 92 N. J. L. 381; 105 Atl. Rep. 197. The question to be determined is whether when the motion was made there was a question of fact to be decided by the jury, or by the judge where jury trial is waived; State v. Cohen, 97 N. J. L. 5; 116 Atl. Rep. 724. See, also, for a review of the law, State v. Keegan, 105 N. J. L. 159; 143 Atl. Rep. 768.

In the case at bar none of the state’s witnesses offered any testimony to indicate that the defendant either cruelly abused or needlessly killed a cat, nor that he beat it with a stick. The motion for a dismissal of the complaint should have been granted. However, the defendant proceeded with his defense and offered testimony to the effect that a Mr. Kelly sought the help of the defendant’s father, who was a fish and game commissioner, in trapping a skunk which was under a building used by Mr. Kelly as a theatre and was, “smelling up the property;” that his father being away, he set traps to catch the skunk. Several days later he returned with a companion and found one of the traps was sprung by a cat which had caught its front paw in one of the traps; that in endeavoring to release the cat, the cat scratched him and bit him in eight different places on his hands, finally seizing his first finger and thumb and holding on with clamped jaws; that he endeavored to release the cat but the cat kept scratching him, causing intense pain. Finally, in order to release his hand from the cat’s mouth and to escape further attacks, he hit the cat one blow on the back of its head, killing it. The defendant’s testimony was corroborated both by Mr. Kelly and by his companion, Charles Clark.

It is a matter of common knowledge th$t a cat is never completely domesticated and will use its claws and teeth to protect itself whenever it is annoyed or believes itself to be threatened. The defendant was attempting to perform a humane act, to wit, to release the cat from the trap. The eat, evidently considering the defendant to be an enemy rather than a friend, clawed and bit him severely. The uncontradicted evidence is that the cat finally seized one of the defendant’s hands in his teeth and held fast. There was apparently no way to release the hold except by killing the cat. This was done, according to the uncontradicted testimony, by one single blow with the stick, killing the cat instantly.

The complaint in question is framed under R. S. 4:22-17; JV. J. S. A. 4:22-17, which provides in part that any person who shall unnecessarily or cruelly beat or otherwise abuse, or needlessly mutilate or kill, a living animal or creature shall be guilty of a misdemeanor. The complaint charges both cruelly abusing and needlessly killing. No objection was made as to its form. There is no evidence at all of any cruel abuse. If a person is unwarrantedlv attacked by another person he has the right to use whatever force is necessary in order to repel the attack, even to take the life of the assailant, if that should be necessary. To adopt a different rule with relation to animals would create an absurdity. Since the defendant in this case was unable to release the hold of the cat on his hand without striking it, he was fully justified in so doing, even though the result be that the eat lost its life. It cannot be said that the killing was needless.

I am satisfied, therefore, upon a review of the entire case, that there was no evidence to justify the defendant’s conviction and the same is hereby reversed. This view of the case makes it unnecessary for me to consider the other [joints urged for reversal.


author: Davidson, C. P. J.

text:
    Passaic County Court of Common Pleas.
    BERTHA MICIELLI, WIDOW OF JOSEPH MICIELLI. DECEASED, PETITIONER-APPELLEE, v. ERIE RAILROAD COMPANY, RESPONDENT-APPELLANT.
    Decided October 29, 1942.
    Por the petitioner, Nathan Babinowilz.

    Por the respondent, Hobart, Minará cG Cooper.

   Davidson, C. P. J.

This is an appeal from a determination entered in the Workmen’s Compensation Bureau upon a stipulation of facts from which it briefly appears that petitioner’s decedent was employed as a baggage' porter at the Jersey City terminal of respondent, his work confined entirely to that city and his specific duties being to handle United States mail that came from New York and load it on trains, the sacks being destined for points both within and without the State of New Jersey, to handle bundles of newspapers moving en route from New York to points within and without the State of New Jersey, and to meet incoming trains, take mail and baggage therefrom, sort it out and route it to various destinations. The employee’s hours were from ten p. M. to seven A. m. and on the day of the accident he had completed his work and was on his way home, when at seven-thirty-three a. m., in attempting to alight from a train moving into the Paterson station of the Erie Bailroad at an estimated speed of fifteen miles per hour, he was fatally injured. He had in his possession a personal pass issued by respondent for use between Jersey City, New Jersey, and Paterson, New Jersey, which pass was expressly subject to the following conditions imprinted thereon:

“A person accepting and using this free pass thereby assumes all risk of accidents, death, personal injury and loss of and damage to property whether caused by negligence o£ any railroad companjr named on the other side or negligence'' of any officer, agent or employee thereof, or otherwise.
“As a condition precedent to the issuing and use of this pass, each recipient represents that he or she is not prohibited by law from receiving such free transportation, and agrees that this pass will not be used in violation of any law and agrees that this pass is given gratuitously and furnishes no part of consideration for services, and that none of said railroad companies shall be considered as a common carrier as to the transportation furnished thereon.
“This pass is not transferable, and if presented by any other than an individual named thereon the conductor will take up pass and collect fare. This free pass is accepted and used upon the above conditions.
(Signed) Joseph Micielli.
“'This pass will not be honored unless signed in ink or indelible pencil by the person or persons to whom issued.”

The question primarily presented for determination, if liability exists, is whether the case comes under the Federal or State Act. Applying the test laid down in Shanks v. Delaware, Lackawanna and Western Railroad, 239 U. S. 536 : “whether the employee at the time of his injury was engaged in interstate transportation or in work so closely related to it as to be practically a part of it,” my conclusion is that the facts in the case under consideration make the federal statute inapplicable.

While it is true that the respondent did not expressly direct the employee to make use of the pass or necessarily use its trains for transportation; that his rate of pay was unaffected by the distance of his place of residence from Jersey City; that he might avail himself of the use of the pass within its limitations for other purposes, and that his employment would not cease if the pass were taken up by reason of frauclulent misuse, it would still appear that it represented transportation with the express knowledge and acquiescence of the employer; that it was the result of continued practice in the course of the business of the employer which had ripened into a custom to such an extent as to practically become part of the contract of employment (even though the printed conditions seek to evade such conclusion); and that the arrangement was beneficial to both employer and employee.

There would probably be little question of liability if the employer had paid for the transportation or reimbursed the employee for the cost of his ticket—the same situation prevails, in my opinion, with reference to the issuance of a pass.

Lehigh Navigation Coal Co. v. McGonnell, 120 N. J. L. 428; 199 Atl. Rep. 906, and Rubeo v. Arthur McMullen Co., 117 N. J. L. 574; 189 Atl. Rep. 662, establish the principles applicable to the present case and my conclusion is that the award of the Deputy Commissioner should in all things be affirmed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HARRY WARTELL, PETITIONER, v. JOHN J. McGARRITY, RESPONDENT.
    Decided September 21, 1942.
    Dor the petitioner, Boyle Archer {Frederick l\ Greiner).

    Dor the respondent, Ralph X. Kellam.

   It is alleged in the claim petition that Catherine Wartell, wife of the petitioner, was in the employ of the respondent on April 13th, 1941, at the Log Cabin Lodge, Medford, New Jersey, as head waitress, that on that day, while walking through the dining room in the course of her duties, the said Catherine Wartell slipped and fell on the floor, injuring her hip, and that as a result thereof she died on June 22d. 1041. It is further alleged that the petitioner, husband of the said Catherine Wartell, was dependent upon the said Catherine Wartell at the time of the accident or death. The petition also sets forth that petitioner, by reason of defective vision, has been unable to pursue his occupation of men’s tailoring for the past seventeen years, and that up to the time of the aforementioned accident he was wholly supported during that period by the decedent.

The answer of the respondent denies that the petitioner' was dependent upon the deceased at the time of the accident or death.

It was agreed that the decedent, Catherine Wartell, was in the employ of the respondent on April 13th, 1941; that on that day-she sustained an accident arising out of and in the course of her employment with the respondent; that as a result of the accident the said Catherine Wartell died on June 22d, 1941; that the respondent had due knowledge of the occurrence of the injury; that decedent worked four days a week, was paid $4.50 per day, but in view of the provisions of the Workmen’s Compensation Act, the compensation rate must be based on wages of $4.50 a day, a minimum five-day week, or $22.50 per week.

It was further agreed that the medical expenses incident to the treatment of the said Catherine Wartell, because of the accident, were paid by the insurance carrier of the respondent, and, in addition, respondent’s insurance carrier paid temporary disability for a period of nine weeks, at the rate of $10 per week; and that the funeral expenses amounting to $283 were paid by the petitioner.

The petitioner, Harry Wartell, according to his testimony, was married to the decedent, Catherine Wartell, on April 6th, 1931, in Windsor, Canada; he continued to live with the decedent until her death; at the time of the death they were residing at 7113 Louise Eoad, Philadelphia, West Oak Lane, to which place they moved in the year 1926; prior to their residence in Philadelphia, they resided at Canton, Ohio'. During their residence in Canton, Ohio, petitioner’s occupation of tailoring included selling, altering men’s clothes. Petitioner stated that the work required him to distinguish different shades of material, different weaves and designs, that it was necessary to use a needle, tape measure, and piece of chalk, that because of the condition of his eyes, he “couldn’t see things right,” that he got confused on the patterns, that it was diffcult for him to distinguish colors, and that he was unable to thread a needle. It also appears from his testimony that in the year 1926 his employer went into bankruptcy, that thereafter petitioner and his wife moved to Philadelphia, and from that time on he did no more work. The decedent was continuously employed thereafter. She had two. employers, N. Snellenberg & Co. and the respondent, John J. MeGarrity, who conducted a restaurant and hotel at Med-ford Lakes, New Jersey. Petitioner stated that his wife’s weekly earnings ran from $35 to $60, that during the entire time they resided in Philadelphia the decedent supported the petitioner. She furnished board, room, clothing, spending money, medical attention, and, in fact, everything that was needed by the petitioner. The petitioner stated that the cost of his maintenance approximated $21 a week, that these expenses were paid by the decedent out of her earnings; that they had one daughter, Grace Wartell, who is now 28 years of age. Petitioner stated that because of his eyes, he cannot read a newspaper, he does not read books. Petitioner also stated that the condition of his eyes has gotten gradually worse through the years, from the year 1926 to the year 1942.

Petitioner is 58 years of age, and the decedent, at the time of her death, was 52 years of age.

The petitioner further testified that while he and the decedent lived in Philadelphia, he performed the necessary household duties that had to be performed in the home.

Miss Grace Wartell, daughter of the petitioner and the decedent, testified that she has always resided with her moth°r and father; that she recalled the occasion when the family moved to the City of Philadelphia, approximately in the year 1926; that, to her knowledge, her father has not been gainfully employed since they moved to Philadelphia, and that her mother was gainfully employed during that time, that she was employed at N. Snellenberg & Co. and the Log Cabin Lodge, Medford Lakes. She further stated that her mother averaged from $35 to $60 a week, depending on tips. This witness further stated that she is presently self-supporting, and has been for some time, to wit, since, the year 193-4. Before that time her mother paid all the living expenses and other expenses for the members of the family. After this witness started her employment she paid the sum of $8 a week board to her mother. She stated she never contributed to the support of her father, and that while her mother was out working her father took care of the home, and that, to her knowledge, her mother completely supported her father.

Grace Wartell further testified that her father worked while they lived in Canton, Ohio, that he was not employed after they moved to Philadelphia, and that her father did the work around the house after they moved to Philadelphia.

The respondent produced Dr. James S. Shipman, who testified that he examined the petitioner on March 20th, 1942. The doctor stated that the petitioner’s vision was taken with the glasses he was wearing, that his vision in the right eye, with correction, was six over twenty-one, or approximately 75% of normal; vision with the glasses he was wearing, in the left eye, was six over twelve, or approximately 90% of normal. The doctor stated : “We attempted to refract him, roughly, to improve his vision, and with a change in his glass his vision in the right eye was improved to six over fifteen, or 80% of normal and his vision in the left eye was improved to six over six minus one letter, or practically normal in his left eye.” The doctor further stated: “In view of the patient’s symptoms, complaints, which were that he had some trouble getting around in the dark, among other things, we felt that it was wise to take a visual field test on him to see what his peripheral vision was and this test showed that his peripheral vision in his left eye was entirely normal, although there was a slight temporal contraction of the visual field in the right eye.” The left eye was entirely normal, .with the exception that he said he had a little difficulty picking up colors, blue and green at the center. There was a slight suggestion of a central scotoma for colors. The doctor stated that petitioner had trouble in relation to colors, distinguishing a dark blue from black. Further findings made by Dr. Shipman were as follows:

“The eyes were examined externally and there was a suggestion of some ptosis or slight drooping of the right upper lid which the patient could overcome voluntarily. It was not a true paralysis of the levator muscle as is the case in a true ptosis; otherwise, the eyes were externally entirely normal; conjunctiva were healthy; cornea were clear; pupils were round, equal, regular, and reacted well to light. There was no evidence of any extra-ocular paralysis, paralysis of the extra-ocular muscles.
“Looking into the eye with the ophthalmoscope, the right eye showed a few fine vitreous opacities and in the eye-grounds there was noted a considerable amount of salt and pepper-like pigmentary disturbances in the periphery with many small and some large choroidal deposits, which are not unusual and have no particular pathological significance. These were scattered mainly in the macula region.
“There was an old area of what apparently was a pathological condition down and in from the optic disc, suggesting an old chorioretinitis, but the optic nerve itself was entirely normal in color and outline, with no evidence of cupping or choking.
“The left eye showed the media to be clear except for a very few fine vitreous opacities. The eye-grounds showed a similar pigmentary disturbance in the periphery but with no evidence of any pathological scars or lesions as was noted in the inferior nasal portion of the right eye. The optic nerve was entirely normal in color and outline, with no cupping or choking and there were no fresh hemorrhages or exudates seen in either eye. And as stated before, with manifestra refraction; that is, without any drops, but refracting the patient and relying on his own statement his vision in the right eye was improved to 80% of normal for central vision and in the left eye to 99% of normal, 99%% of normal.”

In referring to the conditions found in petitioner’s eyes that would affect his ability to see, the doctor stated:

“The one in the right eye when it was active, and when that was I can’t state; it may have been five years ago; it may have been twenty-five years ago; undoubtedly did affect his vision at that time and it unquestionably still does affect the vision of the right eye to some extent. As stated, the best we could improve that vision was to 80% of normal, and I think that old scar has something to do with it and also the astigmatism which he has which is due to the curve of the cornea. He takes a very much stronger glass in that eye than he does in the other; he takes a very weak -glass in his left eye, and it’s quite possible that this eye has been that' way since birth; that the vision in his right eye has always been poorer' than it is in his left, and I firmly believe that that is quite probable. But you asked me if the lesion could affect his vision. It could have and probably did when it was active, but I don’t believe that—that the only effect that that would have now is to give him a small blanked out spot in that area of his field of vision that it would correspond to, but it wouldn’t affect his central vision which is impaired, and for that reason I feel that his central vision in that eye has probably been impaired some since birth.”

Considering all the testimony, I find that the petitioner, Harry Wartell, was the husband of the decedent, Catherine Wartell; that until the year 1926 the said Harry Wartell was steadily employed in the men’s tailoring business in the State of Ohio, and from his earnings in that trade, regularly and continuously supported the said Catherine Wartell and their minor daughter, Grace Wartell; that in the year 1926 bankruptcy of his employer threw petitioner out of work, and he and his family moved to Philadelphia, Pennsylvania; that tailoring, the only trade petitioner knew, required close work under artificial light upon varying shades and designs of materials, and petitioner, by reason of an eye condition, began to encounter difficulty in distinguishing the material colors and designs, and even in threading a needle. Consequently, petitioner and his wife arranged that she should accept gainful employment and he take charge of the home and care for the minor daughter. Having thus reversed the customary arrangement for maintenance of the family, husband and wife found their plan mutually satisfactory and continued it without interruption for some sixteen years, until the death of the wife.

In dispute of these facts respondent’s only ground for rejecting petitioner’s claim is his contention that his eye condition prevented his gainful employment.

Dr. Shipman, who testified' on- behalf of the respondent, was unable to say with certainty what petitioner’s eye condition was sixteen years ago, five years ago, or even on April 13th, 1941, when the accident to Catherine Wartell occurred, or on June 22d, 1941, when Catherine Wartell died as a result of the accident. Dr. Shipman found evidence of a former inflammatory condition, the date of which he could not fix, which in its acute stage would have affected petitioner’s vision to an extent seriously hampering him in his tailoring work. Tt is by no means clear that 75% vision in one eye and 90% vision in the other, the percentages determined by Dr. Ship-man, are adequate for proper execution by petitioner of the line, close work of petitioner’s trade. Petitioner, a tailor, says they are not and respondent offers no proof of any tailor carrying on his work with vision equally defective. Dr. Ship-man believes he can increase petitioner’s vision to 80% in the right eye and 99%in the left, but certainly petitioner in determining, as a practical matter, whether his eyesight was adequate for his trade, is not bound by the opinion of respondent’s physician, whom, before March 20th, 1942, he had never seen. In any event, the only evidence regarding the condition of petitioner’s eyes, from the year 1926 to the date of Dr. Shipman’s examination, is the testimony of the petitioner, who says his vision was inadequate for carrying on the trade he knows.

Eegardless, however, of petitioner’s physical condition in the year 1926, or at any time since, petitioner at the time of the accident and death of Catherine Wartell and for sixteen years prior thereto, was wholly supported by her. Dependency in fact, is proof beyond question. A husband is included by the Workmen’s Compensation statute among those entitled to those benefits (R. S. 1937, 34:15-13g; N. J. S. A. 34:15-13g), and it necessarily follows that compensation in accordance with the statute is payable to the petitioner. Actual dependency within the meaning of the statute is dependence in fact, and whether it exists is a question of fact. Miller v. Public Service Railway Co., 84 N. J. L. 174; 85 Atl. Rep. 1030.

Harry Wartell is related to the decedent, Catherine War-tell, in a degree mentioned in the act, and at the time of her accident and death and for many years prior thereto, was wholly supported by her. He fully qualifies for compensation under the provisions of our act. Certainly, where, as here, there is dependency in fact, the Workmen’s Compensation Bureau is neither required nor authorized by the Workmen’s Compensation Act to pass judgment on the deceased employee’s reasons for supporting such dependent. Its province is to determine “whether”—not “why”—dependency exists.

The Workmen’s Compensation Act makes no distinction between a husband and other dependents and contains no prohibition against a family arrangement under which a husband and wife each regularly perform duties normally performed by the other. The statute is broadly drawn and is to be liberally construed. Bower v. Metal Compounds Corp., 121 N. J. L. 421; 3 Atl. Rep. (2d) 164; affirmed. 122 N. J. L. 380; 5 Atl. Rep. (2d) 699. 'Its purpose is surely defeated if its benefits are denied to a man who devotes his efforts to domestic work necessary to the family maintenance simply because that work is normally performed by a woman.

I further find that Catherine Wartell, on April 13th, 1941, was in the employ of the respondent as a head waitress; that on that day she sustained an accident arising out of and in the course of her employment with the respondent, resulting in her death on June 22d, 1941; that the respondent had due actual knowledge of the occurrence of the injury.

It is, therefore, * * * ordered that judgment be entered in favor of the petitioner and against the respondent. í*: ;¡; Hi >¡; ^ #

Daniel A. Spaik,

Deputy Commissioner.


author: Kinkead, C. 0. J.

text:
    Monmouth County Circuit Court.
    EDWARD W. WALDER, PLAINTIFF, v. DR. DAVID D. MANAHAN AND DR. JOEL FELDMAN, DEFENDANTS.
    Decided December 14, 1942.
    For the plaintiff, Andrew 0. Wittreich.

    For the defendants, Durand, Ivins & Carton (J. Victor Carton) and Quinn & Doremus (John J. Quinn).

   Kinkead, C. 0. J.

The defendants seek to set aside a verdict of $20,000 awarded by a jury to the plaintiff after a six-day trial in the Monmouth Circuit Court at Freehold, on three grounds, the first ground being that the verdict in the form in which it was returned by the jury was illegal. The jury’s verdict was rendered as follows: “We find in favor of the plaintiff and against the defendants in the sum of $20,000; $10,000 against each defendant.”

The suit was based on a claim by the plaintiff that the two defendants, who are medical doctors, illegally committed the plaintiff on April 22d, 1941, to the Hew Jersey State Hospital for the Insane at Marlboro, Hew Jersey.

The complaint contained nine counts. The first three counts, charging the defendants with conspiracy, were not submitted to the jury because the court directed a verdict in favor of the defendants on these three counts. Of the remaining six counts, three were based on malicious prosecution or malicious abuse of process, and three counts were based on false imprisonment. The fourth and fifth counts charged the defendants individually with malicious prosecution. The sixth count charged the defendants jointly with malicious prosecution. The seventh and eighth counts charged the defendants individually with false imprisonment. The ninth count charged the defendants jointly with false imprisonment.

The evidence disclosed that the plaintiff’s wife and daughters concluded in April, 1941, that the plaintiff was mentally ill, and that something should be done about his illness. They proceeded to have the plaintiff committed to an institution in conformity with the provisions of R. S. 30 :4-37; N. J. S. A. 30:4-37. The certificates of two physicians, certifying to the insanity of the patient, had to be attached to the application for commitment. The defendants each signed one of these certificates, certifying to the insanity of the plaintiff, and each defendant certified that he had made a personal examination of the plaintiff on April 22d, 1941.

The defendants contend that the plaintiff charged them with being joint tort feasors, and that the attempt by the jury to apportion the damages among joint tort feasors was illegal and contrary to law. The first point to he determined, therefore, is whether or not the defendants were joint tort feasors.

The court instructed the jury in effect that any verdict in favor of the plaintiff did not necessarily have to be returned against both defendants; that the jury should only find against such defendant, if either, whom it conceived had acted without reasonable or probable cause in committing the plaintiff to Marlboro. By finding against both defendants, it is apparent that the jury determined that each defendant had failed in the duty which he owed to the plaintiff. The defendants are, therefore, joint tort feasors.

If two or more persons owe to another the same duty and by their common neglect of that duty one is injured, the tort is joint and each, any or all of the tort feasors are liable. If the negligence of the tort feasors was without concert, but such several neglects, nevertheless, concurred and united together in causing injury, the tort is equally joint, and the tort feasors are subject to a like liability. Daly v. Singac Auto Supply Co., 103 N. J. L. 416; 135 Atl. Rep. 868; Matthews v. Delaware, Lackawanna and Western Railroad Co., 56 N. J. L. 34; 27 Atl. Rep. 919.

The general rule as to the right of a jury to apportion damages among joint tort feasors is set forth in 64 Corp. Jur. 1084 as follows: “In the absence of! a statute to the contrary, damages cannot he apportioned among joint tort feasors, for the sole inquiry open is what damages plaintiff has sustained, not who ought to pay them. Discrimination according to the relative enormity of the acts of each is not permitted.”

The only Hew Jersey case in point is Ross v. Pennsylvania Railroad Co., 5 N. J. Mis. R. 811; 138 Atl. Rep. 383. The postea in that case set forth the verdict as follows: “The jury rendered a general verdict in favor of the plaintiff and against the defendants, Pennsylvania Eailroad Company and Calvin W. Steelman, and assessed the damages at the Circuit to Daniel Eoss, administrator, the sum of $16,000 against the Pennsylvania Eailroad Company; and to Daniel Eoss, administrator, the sum of $16,000 against Calvin W. Steel-man.” The matter was argued before Chief Justice Gum-mere and Mr. Justice Minturn, who held (at p. 813) : “In the absence of anything even suggestive of a different purpose on the part of the jury, we must accept its statement as indicating it; namely, to apportion the damages between the two joint wrongdoers. This, as has already been said, being without legal justification, the rule to show cause must be made absolute.”

Despite the numerous authorities from other states cited on behalf of the plaintiff, sustaining a verdict in the form in which it was rendered by the jury in the instant case, Ross v. Pennsylvania Railroad Co., supra, must be considered to he the authority on this proposition until the Court of Errors and Appeals rules to the contrary.

The second ground on which the defendants seek to set the verdict aside is that it was contrary to the weight of the evidence. The plaintiff, testifying on his own behalf, made a very convincing witness. He asserted that neither of the defendants had examined him on April 22d, 1941, the day of his commitment, as each defendant had certified; that Dr. Manahan, who was the family physician, had not treated him for a considerable period of time prior to April 22d, 1941, and that Dr. Eeldman had only treated him once, for a heart attack, during the winter of 1941, on an occasion when it was impossible for Dr. Manahan to take care of the call.

The plaintiff contended that he was absolutely sane on April 22d, 1941; that each of the defendants had committed him to Marlboro without reasonable or probable cause; that Dr. Gordon, who was in charge of the medical staff at Marlboro quickly concluded that the plaintiff was sane; and that Dr. Gordon’s opinion was sustained when the plaintiff was examined by the entire staff several days later.

The plaintiff’s testimony was all the more impressive, because he frankly admitted that on numerous occasions he was at fault in his relationship with his wife and family. It quickly became apparent that, while the plaintiff was a quick-tempered individual, and undoubtedly at times irascible and moody, that he was nevertheless sane and normal. The verdiet of the jury was clearly not against the weight of the evidence.

The third ground, on which the defendants seek to set the verdict aside, is that it was excessive and contrary to the charge of the court. The verdict was not contrary to the charge of the court except in the apportionment of the damages among the defendants. The court does not deem it necessary to rule on the question of exeessiveness in deciding this motion.

The verdict must be set aside because of the illegal form in which it was rendered, but in doing so, the court must determine whether or not the illegality is separable.

Supreme Court rule 131 directs that in case a new trial is granted it shall only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable.

The exercise of the power conferred by this rule rests in the sound discretion of the trial court. Gormley v. Gasiorowski, 110 N. J. L. 287; 164 Atl. Rep. 440; Juliano v. Abeles, 114 N. J. L. 510; 177 Atl. Rep. 666; Rossman v. Newbon, 112 N. J. L. 261; 170 Atl. Rep. 230.

In the case sub judice, the question of the liability of the defendants was fairly submitted to and decided by the jury. There was ample evidence to sustain the verdict in favor of the plaintiff. It would therefore be a miscarriage of justice, merely because of the illegal form of the verdict, to require the plaintiff to go to the burden and expense of submitting his entire proofs to a second jury.

The verdict in its illegal form is clearly separable from the issues which the jury decided. Therefore a new trial should be had as to damages only, and an order may be entered accordingly.


author: Oozzi, D. C. J.

text:
    District Court of the First Judicial District of the County of Hudson.
    FRED SCHWECKE, PLAINTIFF, v. D. LEONE, INC., A CORPORATION, AND ENO HOLDING CO., INC., A CORPORATION, DEFENDANTS.
    Decided December 10, 1942.
    For the plaintiff, Alfred A. Franclc.

    For the defendants, Popper, Feinman & Ludwin.

   Oozzi, D. C. J.

The plaintiff, Fred Schwecke, seeks damages against the defendants, for fraudulently representing or concealing the condition of an apartment which he leased from thé defendants, said apartment being uninhabitable and unfit as living quarters, to the knowledge of the defendants.

At the trial the plaintiff showed that on the 39th day of September, 1941, he leased an apartment in the basement of premises commonly known as 289 Day Avenue, in the Borough of Fairview, Hew Jersey, the term of which was to commence October 1st, 1941, at the monthly rental of twenty-four ($24) dollars per month, payable in advance. Mrs. Schwecke testified that when she applied to rent the rooms, she asked the superintendent whether the rooms were damp, and the superintendent replied, “no.” The plaintiff occupied the premises and several days thereafter was asked by the Board of Health of the Borough of Fairview, “why did you move in?” and was ordered to vacate the premises immediately, because they were declared uninhabitable by this Board of Health and that signs were placed above the door by them, reading, “These premises are nnfit for habitation.” It further appeared that the Board of Health informed them that unless they moved out voluntarily, they would have to take proceedings against them. It developed that the plaintiff’s then ten-months-old child was rendered sick by a cold and was medically attended to at a cost of fifteen ($15) dollars. The doctor was not produced to prove the reasonableness of this charge.

Mr. Greenhaus, Board of Health inspector for the Borough of Fairview, testified that he had made an investigation of of the premises on September 10th, 1941, pursuant to a complaint from the Englewood Hospital, and found that a great deal of water was accumulating underneath the floor of the apartment of said premises, at a depth of six or seven inches, and that ho ordered the landlord to install a pump to divert the waters that accumulated. He further testified that he found that the signs prohibiting the rental of this apartment, were torn down by an officer of tho defendant, D. Leone, Inc. Charges were placed by the Board of Health against an officer of D. Leone, Inc., agent for said premises, who pleaded guilty and paid two ($2) dollars costs.

It was shown that all of these facts were well known to both defendants and their agents, prior to the rental of the premises to the plaintiff, and its condition was fraudulently concealed and misrepresented. Plaintiff’s testimony was uncontradicted.

At the direction of the Board of Health, the tenant vacated the premises three weeks after occupancy thereof, after having paid the rent for tho month of October, 1941, and now sues to recover damages sustained because of the expenses incurred in moving in and moving out of said premises on the first count, and seeks reimbursement for medical expenses incurred due to the illness of his daughter in said premises, on the second count.

The defendants counter-claim by asking for the rent for the months of November and December, 1941, and January and February, 1942, in that the tenant had vacated the premises in violation of the lease entered Into between the parties, during which time the premises remained vacant. At the close of the plaintiff’s case, the defendants moved for a non-suit and the court reserved decision on this motion. The attorneys for the defendants also sought a directed verdict in favor of the defendants as against the plaintiff, on the plaintiff’s case, and also moved for a judgment on the counterclaim.

This case is strikingly similar to the recent decision of Wilday v. Panas, by our Court of Errors and Appeals, 122 N. J. L. 28; 3 Atl. Rep. (2d) 319, wherein the court said:

“There was evidence to support the conclusion of the jury that the plaintiffs were prevented from working the land, not alone by the fear of punishment for violation of the law, $ $

“It is next said that there is no such regulation mentioned as ‘sections 3 and 4 of the New Jersey Health Laws enacted March 31st, 1916.’ This indeed is true, but the health board admittedly had power to stop the plaintiffs from removing soil from a burying ground and that power was exerted in this case.”

In dealing with the defendants’ counter-claim, suffice to say that the ease of Wilday v. Panas, supra, further stated:

“It is also argued under this heading that the plaintiffs should not have challenged the defendant’s title to the premises unless there was a legal ouster, and that the plaintiffs 'were not legally ousted. But there was evidence that the paintiffs were halted in their operations on the land in question, or prevented from enjoying its use, &c., and that the situation thus obtaining was due to the fraudulent misrepresentations of the defendant, Panas, all of which, if the jury believed it, as apparently they did, was evidence of a constructive eviction. Goldberg v. Reed, 97 N. J. L. 170; 116 Atl. Rep. 429.”

In applying the principles of law referred to, in the above case, by our court of last resort, to the uncontradicted facts sub judice, the plaintiff has established a prima facie case, rendering the defendants liable to damages. The evidence discloses a constructive eviction if not an actual eviction, terminating the plaintiff’s liability to rent under the terms of the lease. See Goldberg v. Reed, supra. Accordingly, the defendants’ motions for nonsuit and a directed verdict in their favor is therefore denied, and the defendants’ counterclaim dismissed.

The liability of the defendants can be predicated upon either of two grounds; upon the commission of fraud, or upon the eviction of the plaintiff occasioned by the fraudulent representation, conduct and concealment of the inhabitable condition of the premises as substantiated by the local Board of Health.

In either event the rule of damages applicable, is that the defendants are responsible for those results injurious to plaintiff, which must be presumed to have been within the contemplation at the time of the commission of the fraud and plaintiff may recover damages for any injury which is the direct and natural consequence of his acting on the faith of the defendants’ representation. A defrauded party is not limited to general damages, but may also recover special damages which have proximately resulted from the fraud. See 27 C. J. 83, § 228, and 7 A. L. R. 1105.

This brings us to the consideration of the evidence with respect to damages. The plaintiff showed at the trial, without contradiction, that he purchased certain personal property especially adapted for this apartment, which was rendered useless by reason of his removal from said premises, the extent of the cost of the personal property purchased from a regular dealer in the ordinary course of business amounted to forty-three ($43.21) dollars and twenty-one cents.

It was one of the contentions of the defendants in this case, that the cost of the personal property is not evidence of the value of these articles.

In answer to this contention, suffice to say that in the case of Luse v. Jones, 39 N. J. L. 707, leading case in this state, followed by a long line of decisions, the courts have repeatedly sanctioned the rule that evidence of cost is one element in a criterion of value to be considered by a jury, not as a fixed value, but the basis upon which the jury may determine and consider the true value of the personal property involved at the time that the damage was sustained. See, also, Budd v. Van Orden, 33 N. J. Eq. 143; affirmed, 33 Id. 564; Farnsworth v. Miller, 74 N. J. L. 599; 70 Atl. Rep. 1100; Lebkeucher v. Pennsylvania Railroad Co., 97 N. J. L. 112; 116 Atl. Rep. 323; affirmed, 98 N. J. L. 271; 118 Atl. Rep. 926; Precipio v. Insurance Co., 103 N. J. L. 689; 137 Atl. Rep. 549; O’Brien v. Broadman, 110 N. J. L. 211; 184 Atl. Rep. 290; Spatuzzi v. Star Auto, &c., 119 N. J. L. 377; 196 Atl. Rep. 723.

It is significant to state here, that bills showing the various purchases were introduced into evidence and its admissibility is corroborative proof of value. As to the admissibility of these bills see Kolmetsky v. Pellicoff, 6 N. J. Mis. R. 315; 141 Atl. Rep. 10; affirmed, 105 N. J. L. 240; 143 Atl. Rep. 336.

In applying these principles, and the court sitting as a jury, regards that the damage sustained by the plaintiff to the personal property, amounts to thirty ($30) dollars.

This brings us to the next item of damage as shown by the plaintiff that he paid fifteen ($15) dollars to move into the premises, and fifteen ($15) dollars to move out of the premises. Upon questioning by the court, plaintiff indicated that in his experience in moving from place to place, the charge of fifteen ($15) dollars was the reasonable and usual charge, and as such, the court allowed him to testify and admit into evidence the cost of removal to and from the premises. The court, therefore, allows thirty ($30) dollars, as additional damage proven by the plaintiff.

The next item of damage to be considered is the evidence of the plaintiff that he paid fifteen ($15) dollars for five visits for medical treatment rendered by Dr. Lefkowitz in treating a cold contracted by his ten-month-old child due to the dampness of the premises. The defendants object to this element of damage because the doctor was not produced to testify as to the reasonableness of the charge.

This objection is untenable in view of the decisions of Brodsky v. Red Raven Rubber Co. (Gourt of Errors and Appeals), 111 N. J. L. 453; 168 Atl. Rep. 440; Sanders v. Hudson and Manhattan Railroad Co., 121 N. J. L. 406; 3 Atl. Rep. (2d) 86. It should be further emphasized that during this war emergency, doctors are greatly in demand and the rules as cited in these decisions, should be liberally applied, especially where the only purpose for which the doctor is to be called is to testify that his charges were reasonable. This rule is based on sound logic and common sense.

Accordingly, judgment will be entered in favor of the plaintiff against the defendants, in the sum of seventy-five ($75) dollars. -- -- -


author: Waesohe, President.

text:
    State Board of Tax Appeals.
    CITY OF NEWARK, PETITIONER, v. BLANCHARD LUMBER COMPANY, RESPONDENT.
    Decided December 22, 1942.
    Tor the petitioner, Raymond Schroeder (by Vincent J. Oasale).

    Tor the respondent, Samuel S. Ferster.

   Waesohe, President.

The Essex County Board of Taxation canceled a personal property assessment in the sum of $15,000, levied by the City of Newark against the respondent, for the year 1941. The city brings this appeal to restore the assessment. The respondent justifies the exemption upon the basis of R. S. 54:4-3.20; N. J. S. A. 54:4-3.20, providing that personal property stored in a warehouse of any person, co-partnership or corporation engaged in the business of storing goods for hire, shall be exempt. Bespondent owns no property in the petitioner taxing district other than the lumber which it stores- at the premises of Newark Tidewater Terminal. The latter, so far as the testimony before us discloses, is a public warehouse for hire, storing varied products for other bailors as well as lumber for respondent.

The city seeks to derogate from the bona fides of the warehouseman-bailee relationship here established by showing that respondent exercises custody by its own employee of the lumber stored on the warehouse premises, that the warehouse company does not check the receipt or shipment of the merchandise, and that it issues no warehouse receipts therefor. It has been heretofore settled, however, that circumstances of this nature do not defeat the applicability of the statute. Halligan & McClellan, Inc., 122 N. J. L. 551; 6 Atl. Rep. (2d) 668 (Supreme Court, 1939). All that matters is that the bailor pay a charge for the hire and that the bailee be a person or corporation engaged in the business of storing goods for hire. These facts are plainly apparent here. The exemption act is constitutional. Schwartz v. Essex County Board of Taxation, 129 N. J. L. 129; 28 Atl. Rep. (2d) 482 (Supreme Court, 1942).

The judgment of the Essex County Board of Taxation is affirmed.


author: 'W’aesche, President.

text:
    State Board of Tax Appeals.
    COLLEGE OF PATERSON, PETITIONER, v. CITY OF PATERSON, RESPONDENT.
    Decided December 22, 1942.
    For the petitioner, Edward G. Weiss.

    For the respondent, George Surosky.

   'W’aesche, President.

Petitioner’s appeal to the Passaic County Board of Taxation, praying exemption from taxation for the year 1941, on behalf of a building which it owns and occupies in the City of Paterson, and for the personal property contained therein, based upon the claim that it is used for the purposes of a school not conducted for profit, was denied by that tribunal. Hence this appeal.

Claims for exemption of the type here involved aTe among the most difficult which come before this board for determination. The test for exemption, repeatedly stated in the decisions of the courts, is that the institution must appear, from all of the facts presented, to be operated for purposes and objects which are “fundamentally charitable or philanthropic:” Dwight School of Englewood v. State Board, 114 N. J. L. 594; 177 Atl. Rep. 888 (Supreme Court, 1935); Princeton Country Day School v. State Board, 113 N. J. L. 515; 175 Atl. Rep. 136 (Supreme Court, 1934); Bancroft School v. State Board, 10 N. J. Mis. R. 656; 160 Atl. Rep. 390 (Supreme Court, 1932); Carteret Academy v. State Board, 18 N. J. L. 868 (Court of Errors and Appeals, 1923), and 102 N. J. L. 525; 133 Atl. Rep. 886 (Supreme Court, 1926); Dana College v. State Board, 14 N. J. Mis. R. 308; 184 Atl. Rep. 412 (Supreme Court, 1936); City of Trenton v. State Board, 127 N. J. L. 105; 21 Atl. Rep. (2d) 644 (Supreme Court, 1941). In all of the cases cited the test was found not to be satisfied by the exemption claimant in question.

In Institute of Holy Angels v. Bender, 79 N. J. L. 34; 74 Atl. Rep. 251 (Supreme Court, 1909), and in Mayor of Princeton, &c., v. State Board, 96 N. J. L. 334; 115 Atl. Rep. 342 (Supreme Court, 1921), exemptions were allowed. These cases were followed by this board in Buxton Country Day School, Inc., v. Township of Millburn, 18 N. J. Mis. R. 443; 14 Atl. Rep. (2d) 269 (State Board, 1940).

It is hardly possible categorically to list those circumstances which will operate to characterize an institution as conducted for profit, or as not'conducted for profit. It was stated in the Supreme Court in City of Trenton v. State Board, supra (involving the claim for exemption of Eider College):

“The applicable legal principles present no difficulty. The right to the claimed statutory exemption depends entirely upon the facts and circumstances of each particular ease * * *. The application of the stated principles to the facts and circumstances of each case is, as here, not free from difficulty.”

So far as the purely formal requirements of the exemption statute are concerned, R. S. 54:4-3.6; N. J. S. A. 54:4-3.6, the instant case presents no difficulty. The petitioner held legal title to the property as of the exemption date, was incorporated as a nou-pecuniary corporation for the purpose of operation of a school, and the land whereon the building is situated does ont exceed five acres in area.

As to whether the institution is “conducted for profit,” in the sense outlined by the cases, to wit, as to whether the purposes and objects of the school are “fundamentally charitable or philanthropic,” we have concluded, after a careful examination of the proofs, and particularly in the light of the recent decision in the case of City of Trenton v. State Board of Tax Appeals, supra, that the petitioner has failed to carry the burden of proof which rests upon it to establish the asserted right.

Petitioner was incorporated in 1934 as the project of Dr. and Mrs. Herbert S. Eobinson, who are, respectively, president and registrar of the college. The property here in question was purchased in 1935 by the Eobinsons through their personal corporation, Saher, Inc., .for a consideration represented almost entirely by a purchase-money mortgage taken back by the seller. The petitioner occupied the premises as a tenant of Saher, Inc., paying a monthly rental, until January 23d, 1940, when Saher, Inc., conveyed the premises to petitioner without any consideration. All or a substantial part of the mortgage indebtedness continues to incumber the premises.

We are not furnished any detailed description of the building, but the proofs are that Dr. and Mrs. Eobinson occupy as their living quarters, furnished free to them by the college, the entire top floor of the building. The bursar of the college resides in the building. It would thus appear that a substantial part of the entire premises is used as the living quarters of officials of the institution. While living quarters provided by a school for its president may be entitled to exemption under certain circumstances, Trustees, &c., v. Piscataway Township, 20 N. J. Mis. R. 127; 25 Atl. Rep. (2d) 248 (State Board, 1942), nevertheless if, as here, an undue proportion of the total school property appears to be provided for such purpose, that fact will be taken into account in the determination of the question as to whether the property is, as an entirety, devoted primarily to philanthropic school purposes.

A statement of income and disbursements read into evidence at the hearing shows total receipts during the school year 1940-1941, of $23,699.78 and total disbursements for that period of $20,806.89. The surplus consists of a bank balance of $1,609.09 and of what is described as a control account of $1,283.80. The bank balance compares with a balance of $151.35, as of the beginning of that year. While the compensation received by the president, the registrar and the faculty of the college is moderate, this, we believe, is accounted for by the paucity of the student body rather than by any philanthropic motivation on the part of the Robin-sons. Mrs. Robinson testified that should the number of students increase, the additional income would probably be used to increase the salaries of the president and of the faculty. It appears, furthermore, that no free scholarships were outstanding as of the assessing date, although it was testified that scholarships had on occasion been granted in the past. Mo details as to the extent thereof were furnished.

We are led to the conclusion that the strict tests applicable to the measure of proof which is required in order to establish the right of exemption from taxation, are not met by petitioners in this ease. We are satisfied that a stronger case for exemption was presented by Rider College, and yet a judgment of this board granting exemption to that institution for the year 1940 (Rider College v. City of Trenton, 19 N. J. Mis. R. 304; 19 Atl. Rep. (2d) 22) was reversed by the Supreme Court in City of Trenton v. State Board of Tax Appeals, supra. Mo such indications of self-sacrifice and devotion to the cause oí education as were found by us to exist in the Buxton Country Day School case, supra, are present in this case.

The judgment of the county board must, therefore, be affirmed, and the claim for exemption denied.


author: Wabsohe, President.

text:
    State Board of Tax Appeals.
    CITY OF NEWARK, PETITIONER, v. NINE-SIXTEEN WELFARE CLUB OF NEWARK, NEW JERSEY, RESPONDENT.
    Decided December 22, 1942.
    For the petitioner, Raymond Schroeder (by Vincent J. Casale).

    For the respondent, Ferdinand, J. Biunno.

   Wabsohe, President.

Respondent was granted an exemption from taxation for the year 1941, by the Essex County Board of Taxation, on account of a building which it uses as a club house in the City of Newark. The City appeals in order to restore the assessment. Respondent claims to be entitled to exemption from taxation under either R. S. 54:4-3.6; N. J. S. A. 54:4-3.6, exempting the property of charitable, benevolent, religious and other similar organizations, or under R. 8. 54:4-3.26; N. J. S. A. 54:4-3.26, exempting the property of fraternal organizations.

The claim under the latter section cannot be allowed in view of the decision of the New Jersey Supreme Court in The Rutgers Chapter of the Delta Upsilon Fraternity v. City of New Brunswick et al., 129 N. J. L. 238; 28 Atl. Rep. (2d) 759, holding that section to be unconstitutional. Aside from this circumstance, respondent is not entitled to exemption for the reason that we find that the property does not satisfy the statutory proviso that “no part of such property is used for pecuniary profit.” This finding, moreover, makes it unnecessary for us to determine whether respondent is the type of organization contemplated for exemption by either R. S. 54:4-3.26; N. J. S. A. 54:4-3.26, or R. S. 54:4-3.6; N. J. S. A. 54:4-3.6, as to which we entertain considerable doubt.

It is frankly conceded by respondent that a portion of its premises is rented out on a concession basis to a restaurant, and that respondent neither exercises any control over, nor partakes of the management of the restaurant. It is thus a fact that a part of the premises for which an exemption is claimed is devoted to the profit of a private restaurant .enterprise. It further results that a portion of the premises is permanently devoted to a use other than that of the respondent’s fraternal or other proper corporate purposes, that therefore the premises are not exclusively devoted to respondent’s uses, as is required by R. S. 54:4-3.6; N. J. S. A. 54:4-3.6, and that it is not substantially entirely devoted to fraternal purposes, as is required by R. S. 54:4-3.26; N. J. S. A. 54:4-3.26, under prior decisions of this board. See The Sons of Veterans Building Association v. City of Paterson, 19 N. J. Mis. R. 106; 17 Atl. Rep. (2d) 554 (State Board, 1941); Peter Post v. Warren Point Volunteer Firemen’s Association, 19 N. J. Mis. R. 367; 19 Atl. Rep. (2d) 636 (State Board, 1941) ; see, also, Cranford v. Cranford Legion Holding Co., Inc., New Jersey Tax Reports, 1934-1939, p. 293, where President Weaver of this board adverted to the circumstance that “no portion of the building is permanently rented.”

Por the réasons stated, the exemption claimed must be denied and the judgment of the Essex County Board of Taxation reversed.


author: Haeby S. Medinets, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CHARLES MAYES, PETITIONER, v. WALTER KIDDE CONSTRUCTORS, INC., AND LIBERTY MUTUAL INSURANCE COMPANY, RESPONDENT.
    Decided December 24, 1942.
    For the petitioner, David Roslcein (by Mortimer Wald).

    For the respondent, John W. Taylor (by Richard W. Tun-stead).

   * sí* # íjí sf« * #

From the stipulation of counsel and the testimony adduced, it appears that the facts in this case are not seriously in dispute. The petitioner was in the employ of the respondent on June 8th, 1942, as a laborer and was receiving wages which would entitle him to a compensation rate of $20 a week. On that date at about 12:80 p. m., the petitioner was engaged in the performance of his duties for the respondent as a buggy pusher. His job was to fill a buggy with concrete at a concrete mixer and push the filled buggy to some portion of the premises where the concrete was to be poured. These buggies, which were used not only by the petitioner but by several other employees, as well, were the property of the respondent. They wore not all identical and some were in better condition that others; that is, some were easier to handle and manipulate, depending upon the condition of the wheels and of the structure holding same.

One of the respondent’s employees, Henry Moore, was the caretaker of the equipment used on the job by the laborers and among his duties he was required to and did look after the buggies and saw to it that they were kept in good working condition, as well as to store them in a shed when they were not in use. The proofs indicate that on June 8th, 1942, the petitioner following lunch resumed his work with a buggy which he learned after a brief period of use to be other than the one which he had been using that morning. This became manifest in that the second buggy was not in as good working condition due to some defect in the wheel, as was the one which he had been using previously. The petitioner, after emptying same of concrete, set it aside and selected one which appeared to him to be in better condition. He thereupon attempted to proceed with the performance of his duties under the foreman’s orders. Hpon observing this substitution, the said caretaker, Henry Moore, stopped the petitioner, grabbed the handle of the buggy and insisted that the petitioner leave it until he first washed out the buggy which he had just abandoned. Then ensued a tussle with each of the men pulling back and forth on the handles of the buggy. During the course thereof, a fellow employee, Mitchell Hall, and later Marshall Jones, the shop steward, intervened and urged both men to continue with their work. Marshall Jones offered to wash the buggy himself. In passing, it should be observed that the assailant, Henry Moore, when he testified at the hearing, stated he did not recall that these two men attempted to intervene.

The dispute over the buggy apparently ended with the same in the petitioner’s possession and he proceeded to roll same for a distance towards the concrete mixer, evidently in the resumption of his work. As the petitioner stood by the concrete mixer, Henry Moore assailed him and struck the petitioner on the back of his head with a shovel, causing him to fall to the ground unconscious. The only explanation advanced by the assailant, Henry Moore, for this assault was that he was “mad.”

Petitioner was at once removed to St. Barnabas Hospital where he remained until June 15th, 1942. There, a diagnosis of a cerebral concussion and laceration of the forehead was made. Thereafter, the petitioner was temporarily disabled for a period of ten weeks, following which he attempted to and did perform work for the Otis Elevator Company, but due to the headaches and dizziness which he suffered following the accident, he was unable to continue at his job.

On behalf of the petitioner, Dr. Baeder, an interne at the St. Barnabas Hospital, testified that he received a history of the petitioner being struck on the head with a shovel. The petitioner, during preliminary questioning at the hospital, exhibited considerable difficulty in remembering what happened to him after the blow. Moreover, while in the emergency room, the petitioner lapsed into sleep from which it was difficult to arouse him. It was the doctor’s impression that the petitioner was suffering from a cerebral concussion. Dr. M. W. Bergman also testified on behalf of, the claimant. He first examined the petitioner on July 9th, 1942, and reached the medical conclusion that the petitioner was suffering from a cerebral concussion, laceration of the left frontal area and contusions of the right occipital region with subsequent post-concussion complications. He re-examined the petitioner on October 23d, 1942, at which time he found slight changes in his condition and estimated the petitioner’s disability to be 12%% partial permanent total.

On behalf of the respondent, Dr. Jack Blumberg testified. At the time of his examination, he .found the petitioner tense, anxious and suffering from an exaggeration of the tendon reflexes, tremors and corneal hypaesthesia. In his opinion, the petitioner was suffering from a permanent disability of 3 to 5% of total if there was a history of unconsciousness.

The disputed question is whether or not, from the facts disclosed by the evidence, the petitioner can be said to have met with an accident that arose out of and in the course of his employment. That the petitioner’s disability flowed from injuries which he received as the result of a deliberate assault committed upon him while he was in the performance of his required duties, does not, under the adjudicated eases, deprive him of the right to compensation therefor. Emerick v. Slavonian Greek Catholic Union, 93 N. J. L. 282; 108 Atl. Rep. 223; King v. Camden Paving Co., 17 N. J. Mis. R. 762; 168 Atl. Rep. 167; Barrese v. Standard Silk Dyeing Co., 110 N. J. L. 565; 166 Atl. Rep. 179; Paterson v. S. S. Thompson, Inc., 12 N. J. Mis. R. 4; 169 Atl. Rep. 338. Nor does the fact that the assault was intentionally committed alter the situation so far as the injured employee is concerned. Even in such an event, upon a showing'that he was in the course of the performance of his work and could not be said to be the aggressor, it is now well established that he sustained an accident arising out of and during the course of his employment. Foley v. Home Rubber Co., 89 N. J. L. 474; 99 Atl. Rep. 624; Winter v. U. S. Gypsum Co., 20 N. J. Mis. R. 425; 28 Atl. Rep. (2d) 545; Geltman v. Reliable Linen and Supply Co., 128 N. J. L. 443; 25 Atl. Rep. (2d) 894. On the other hand, where the assault is the result of horseplay (Powers v. Y. M. C. A. of Bayonne, 17 N. J. Mis. R. 261; 8 Atl. Rep. (2d) 189; Hulley v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007), or where the assault is motivated from purely personal causes (Yoshida v. Nichols, 12 N. J. Mis. R. 197; 170 Atl. Rep. 824), or where the injured employee is the aggressor (Merkel v. Gillespie Co., 10 N. J. Mis. R. 1081; 162 Atl. Rep. 250), compensation is to be denied.

Erom the testimony adduced, it appears that there existed no animosity between the petitioner and his assailant prior to the date of the assault. Nor was there any showing that the unprovoked assault found its inception in the spirit of horseplay nor by reason of any act of aggression on the part of the petitioner. The requirements of their employment was such that they were obliged from time to time to come in close proximity with each other and on occasions, handle the same equipment. That the incident which culminated in the assault had to do with the subject-matter of their employment and the performance by each of the men of the work for which they were hired, appears so clear as to permit of no dispute. That each of these two men, however misguided they may have been, believed that the efficient and proper performance of their work for a common master, warranted the tussle over the buggy is a conclusion, which in my opinion the evidence supports. It cannot be said that such clashes between fellow workers are not entirely unanticipated, especially in these days of stress when men’s nerves become frayed and tried. The employer takes his employees with their varying temperamental dispositions and explosive nervous propensities as well as physical infirmities. Gorman v. Miner-Edgar Chemical Corp., 16 N. J. Mis. R. 170; 189 Atl. Rep. 404.

From the testimony adduced and an application of the legal principles pertaining to the facts as I find them, I hereby find and determine that the petitioner did sustain an accident arising out of and in the course of his employment with the respondent.

* Hi ❖ if! * * *

It is, * * * ordered, that judgment be entered in accordance with the above.

Haeby S. Medinets, Deputy Commissioner.