author: DnÉwen, C. P. J.

text:
    Hudson County Count of Common Pleas.
    FRANK LOMBARDO, PETITIONER-APPELLANT, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT-APPELLEE.
    Decided June 11, 1946.
    Por the petitioner-appellant, Jacob E. Max.

    Por the respondent-appellee, Stryher, Tams & Horner.

   DnÉwen, C. P. J.

Petition was filed in the Compensation Bureau for an award to cover what the petition describes as an “injury to the left shoulder and arm resulting in permanent disability affecting the left arm.”

Petitioner’s work included the scraping of wall and ceiling surfaces with a wire brush. He is of low stature, five feet and one inch, and he testified that when he was assigned to a particular job of ceiling scraping on December 2d, 1944, he complained to the foreman that the scaffold was too low for his reach; that notwithstanding this the height of the scaffold was permitted to remain unadjusted; that in doing his utmost to perform the task assigned, and while in the act of reaching and scraping, he heard his left shoulder snap. He went to the first aid station, where his shoulder was strapped and he there had one or two subsequent treatments. On the last occasion of his going to the first aid station for treatment he says he was required to wait so long that he returned no more. He testified that the shoulder bothers him when he moves it, when the weather is a little cold or damp.

About a week after the alleged accident he was discharged. One month later he was employed by an enterprise which he describes as “the East Coast” and also at the Bayonne Naval Base, in both of which jobs his work was painting. After being last treated at the first aid station he had no treatment by a physician. At the time of the hearing he was wearing no strap or other healing or protective device for his shoulder.

The medical report of Dr. Alpert was stipulated into evidence. His examination was made March 5th, 1945, the report of which was: “There is some tenderness in the left supra-clavieular area with incomplete extension of the arm at the shoulder. Suggest X-ray of the affected area and estimate existing disability at 10 per cent, of the arm. Diagnosis of probable residual bursitis.”

Also stipulated into evidence was a report of examination made by Dr. Urban. It reads as follows:

“History: While wire-brushing overhead got pain in left shoulder. Patient claims pain left shoulder. Examination of the shoulder does not show any trauma. Perfect function. There is no swelling, no bulging, no spasm of the muscle. Not permanent.”

For respondent, Dr. Koppel gave testimony of an examination made by him on July 10th, 1945. In relation to the issues here presented the examination was negative, save only that the patient complained of pain in the left arm and shoulder. The witness stated, however, that petitioner did not complain when he moved the arm on the doctor’s examination.

Dr. Alpert’s suggestion that an X-ray be taken of the affected area was evidently not carried out.

From the above it appears that the only proof submitted to support the claim is entirely subjective. In a case of this character it would be presumptuous and arbitrary, as we judge it, to reverse the determination rendered in the Bureau. A reversal under the circumstances could be scarcely better than fiat. This is pre-eminently the kind of case in which the advantage of the trier of fact below in having the witnesses actually before him for observation of demeanor and all the other immediate tests of credibility must be given decisive weight. ISTor do we overlook the fact that in addition the record presents the unequivocal proof adduced by respondent in the testimony of Drs. Urban and Koppel.

The determination of the Deputy Commissioner was that petitioner failed to prove by the preponderance of the evidence that he had sustained any temporary or permanent disability, resulting from an accident arising out of and in the course of his employment. That result is affirmed.


source: Caselaw Access Project

author: Dkewen, C. P. J.

license: Public Domain

text:
    Hudson County Court of Common Pleas.
    JOHN BOBOWICZ, PETITIONER-APPELLANT, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT-APPELLEE.
    Decided June 10, 1946.
    For the petitioner-appellant, Samuel M. Cole.

    For the respondent-appellee, Stryker, Tams & Horner.

   Dkewen, C. P. J.

Claim petition was filed in the Compensation Bureau for an award to cover hernia, or strain in the inguinal region. We are unable to tell precisely the injury alleged for the reason that the transcript on file in this court does not include a copy of the claim petition or the answer.

For the reasons presently to appear, the case will have to be remanded to the Bureau for the taking of further proofs.

Petitioner testified that his injury was caused by the lifting of weighty materials and equipment in the course of his employment. He fixed the date of the injury as September 23d, 1943, testifying further that soon after the event he reported it to his foreman, whom he identified as one Cullen. He stated that as an immediate consequence of the injury and on the day of its occurrence he went home at noon, and that because he was late in reporting the next morning entrance into the plant was denied him for the day. From time to time thereafter he remained out until August, 1944, when his employment was discontinued.

On behalf of respondent the witness Eobert McCarthy testified that it was under his supervision, not Cullen’s, that petitioner worked at the time of the alleged injury and that never was such an injury reported to him. He did, however, identify Cullen as being another “leading man” or foreman in the shop in which petitioner worked. Also, when confronted with the fact that petitioner was transferred from him, McCarthy, to another foreman in the latter part of 1943, he admitted that the time of such transfer might have been in September of that year, later refreshing his recollection, from records, that it was not until 1944 that petitioner left his supervision.

Also called by respondent was the witness John Kenney, chief clerk in respondent’s compensation department. Through his testimony there was placed in the record the data of the company’s archives relating to first aid treatment applied for and received by petitioner. Eespondent thus established that petitioner had no first aid treatment as he claimed to have on the date of injury given by him, September 23d, 1943, and no other treatment for injuries at any time after that date, save for minor injuries having no relation whatever to the subject of this claim. The only instance of complaint by petitioner for inguinal injury, shown by respondent’s records through the witness Kenney, was a complaint made on April 10th, 1943, some five months prior to the occurrence of the injury presently in suit.

In rebuttal petitioner reiterated the date, September 23d, 1943, and also that the aforementioned Cullen was his foreman at that time. In the matter of Cullen he elaborated to the extent of saying: “When I went to work for Mr. McCarthy' that was about six months or seven months after I reported this thing to Mr. Cullen.”

At this juncture and at respondent’s request the hearing was continued over, with leave to respondent to produce petitioner’s attendance record as a test of his claim of time lost in September, 1943. On the adjourned date and before any offer by respondent, petitioner’s attorney indicated his. 'intention to “recall petitioner to fix the date of the accident.” There was objection, and without more respondent proceeded to place in evidence three time cards covering the dates September 23d, 24th and 25th. These records, within their scope, completely contradicted petitioner in the matter of time lost. Despondent then rested.

Thus stood the controversy as to dates and times when petitioner’s attorney repeated his request for leave to recall petitioner. When asked by the Deputy Commissioner to state his purpose, he did so in these words: “I will show that the exact date of the accident was September 28th, 1945,” (later corrected as a misstatement to September 28th, 1943), “and the petitioner will explain exactly how he recalls this date * * *. We find on checking—my client has checked and he finds that the exact date of the accident was on the 28th and can prove it.” Leave to recall was denied, with this pronouncement by the Deputy Commissioner: “How can I believe a man who testified twice that it was September 23d, and then comes back and says it was the 28th?”

As we judge it, the inerrancy of petitioner’s memory in the first instance was thus made a condition of his credibility. We think he should have been allowed a chance to explain his error and to substantiate his newer recollection. Without that his ease can hardly be said to have been fully tried. A different date might, though on the same claim, present a different factual contest between the parties. The Deputy Commissioner asked how he could believe one who did the very thing petitioner was asking leave to do, change the date in his testimony. It was to that question petitioner sought to give the answer and was not permitted to do so; and the same pronouncement that denied the permission carried also a fatal penalty for seeking it. What the Deputy Commissioner did, in effect, was to adjudge and condemn the explanation without hearing it. How, he asked, in the light of what petitioner proposed to do, could petitioner be believed?

That petitioner’s first recollection was countered by such a formidable array of records cannot be regarded as a valid reason for denying him a chance to make the explanation which he represents he can make. Dor such plenary contradiction nothing more was required than the original error, the rest followed. It seems to us that the giving of a chance to amend and explain is sanctioned unanswerably by its importance to petitioner if he is right and the ease with which he can he refuted if he is wrong. Finally, there can be no doubt that the allowance of petitioner’s plea to give further proof would be far more closely consonant with the liberal and remedial design of the law than would be its denial. The decisions absolving the administration of this statute from the various techniques and formalities of pleading, proof and procedure are far too numerous to require citation.

The case will be remanded to the Bureau for the taking of further testimony under the leave asked, and concerning such other matters as are thereby rendered relevant.


author: Conklin, Commissioner.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEALS OF THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD SYSTEM, AND THE LEHIGH VALLEY RAILROAD SYSTEM, FROM THE FRANCHISE EXCISE TAX LEVIED BY THE DIRECTOR OF THE DIVISION OF TAXATION, FOR THE YEAR 1945.
    Decided June 11, 1946.
    For the Delaware, Lackawanna and Western Eailroad System, Maximilian M. Stallman.

    For the Lehigh Valley Eailroad System, Raymond J. Lamb.

    For the Director of the Division of Taxation, Benjamin G. Van Tine and Benjamin M. Taub, Assistant Attorneys-GeneraL
   Conklin, Commissioner.

The Director of the Division of Taxation assessed the Delaware, Lackawanna and Western Eailroad System $1,580,739.99, and the Lehigh Valley Eailroad System $999,775.65, amounts which he determined to be due and owing the State of New Jersey as franchise excise taxes for the year 1945.

These assessments were made under authority of Pamph. L. 1941, eh. 391, as amended by Pamph. L. 1943, ch. 169, R. S. 54:39A-13, et seq.; N. J. S. A. 54:39A-13, et seq., which provides for a railroad franchise tax based on the net railway operating income of interstate systems having roads in this state, the allocation of such income taxable in New Jersey being in the proportion which the total track mileage in New Jersey hears to all tracks over which the system operates.

It is contended by the Delaware, Lackawanna and Western Railroad that railway tax accruals, as construed in accordance with the rules and regulations of the Interstate Commerce Commission and accepted and approved by it, are deductible under the Franchise Tax Act from gross revenues in determining the net railway operating income, and are not subject to revision by the Division of Taxation, and that the amounts in question were properly charged to the account “Railway Tax Accruals,” for the year 1944.

The Lehigh Valley Railroad argues that the tax law should be strictly construed as against the state; that the Director, in ascertaining its net railway operating income for the year ending December 31st, 1944, for 1945 franchise excise tax purposes, acted unlawfully and without authority in revising the company’s railway tax accrual account, which account was in accordance with the rules and regulations of the Commission and was accepted and approved by the Commission; that the Director erred in disallowing as deductions from the company’s operating revenues items of railway tax accruals totaling $5,955,099.

The questions raised by the Lehigh Valley Railroad System involve the same questions of law as those raised by the Delaware, Lackawanna and Western Railroad System. The Court of Errors and Appeals has held that “tax accruals” mean the current taxes for the particular year which have been assessed in conformity with law, c. g., the amount certified by the tax assessor, and that the state.is not concerned with the bookkeeping practices of the railroad companies. The statute provides that in computing the next preceding year’s net railway operating revenue there shall be deducted from the total operating revenue from all sources “railway tax accruals,” among other items. The intent therefore is that the deduction for “tax accruals” shall be the amount of the taxes for the year in which “the net operating railway income” is computed. See Norton, &c., v. State Board of Tax Appeals, 134 N. J. L. 57; 45 Atl. Rep. (2d) 799.

The franchise tax appeals, filed for the year 1945 by the above named companies, are dismissed.


author: Pee Cueiam.

text:
    IN THE MATTER OF “X,” A CANDIDATE FOR ADMISSION TO THE BAR.
    Submitted June 28, 1946
    Decided July 8, 1946.
    Before Justices Paekbe, Donges and Oliphant.
   Pee Cueiam.

The application must be denied because of lack of office service prior to taking the examination. The applicant did not begin office service until May 20th, 1946. He was entitled to credit on a total of twenty-four months clerkship of sixteen months attendance at law school; and consequently under the rules there should be a clear eight months of office clerkship before being admitted to the examination. The present núes do not contemplate admission of a candidate to examination until the office clerkship required by the rules has been completed.

The application is therefore denied.


author: Buklins, C. C. H. and S. C. C.

text:
    CAROLINE D. McMAHON, PLAINTIFF, v. ALEXANDER FURS, INC., A CORPORATION OF NEW JERSEY, AND FIREMAN’S FUND INSURANCE COMPANY, A CORPORATION, SEVERALLY AND JOINTLY, DEFENDANTS.
    Decided July 11, 1946.
    For the plaintiff, Altman & Backer (by Chaim H. Sandler).

    For the defendant Fireman’s Fund Insurance Company, Lloyd, Horn & Perskie (by Herbert Horn).

   Buklins, C. C. H. and S. C. C.

The defendant Fireman’s Fund Insurance Company issued its policy of inland marine insurance entitled “Furrier’s Customers Policy” wherein Alexander Cohen-Furs, Inc., was the named insured. The plaintiff stored certain fur coats with the co-defendant, Alexander Furs, Inc., a corporation of this state, at Atlantic City, Hew Jersey. It is alleged they sustained damage within the terms of the policy and that the defendant insurance company was liable to the plaintiff for the damage sustained thereunder.

Motion has been made by the defendant insurance company to strike the complaint in so far as it is directed to it on the ground that the complaint is (A) frivolous, in that it does not set up a legal cause of action, the allegations therein being conclusions only, and plaintiff was neither a party to said agreement or contract of insurance nor anything more than an incidental third party beneficiary, (B) sham, in that the policy of insurance upon which the plaintiff relies provides that any loss, at the option of this defendant, may be paid to Alexander Furs, Inc., or adjusted with and paid to assured’s customer or the owner of the property, and said defendant did, in exercising said option, make payment of loss of all customers who suffered damage to said Alexander Furs, Inc.

In support of the motion reliance is placed upon the two following cases by the defendant insurance company as supporting the first reason, namely a frivolous complaint:

(a) London Assurance v. Bigeleisen (Court of Errors and Appeals, 1944), 135 N. J. Eq. 564 (at p. 567); 39 Atl. Rep. (2d) 494, 495, wherein it was held:

“Before a claimant becomes entitled to favor as an assured he must establish that he has the status of an assured. Ordinarily the obligations arising out of a contract are not enforceable by a person who is not a party to it or in privity with it. By the statute now extant as R. S. 2 :26-3.6; N. J. 8. A. 2:26-3.6, a person for whose benefit a contract, either simple or sealed, is made may sue thereon in any court although the consideration of the contract did not move from him. But one who is not a party to a contract has no status to sue upon it if he he a person with whom the contracting parties never meant to come into contractual relations; a possible benefit to such a party by the performance of a contract is not enough to give Mm the right to maintain an action upon it. To have that effect it must appear that the contract was made for his benefit.”

(b) Grown Fabrics Corp. v. Northern Assurance Go., Ltd. (Court of Firors and Appeals, 1939), 124 N. J. L. 27 (at p. 30); 10 Atl. Rep. (2d) 750, 752. In the disposition of the case, the court said:

«* % * 0Ejy were plaintiffs not named in the policy; they did not contribute to the consideration, and, so far as appears, had no knowledge of the issuance of the policy until after the loss had occurred. * * * It is true that by the rules of interpretation and construction the meaning of an instrument must be gathered from its provisions as a whole and that if doubt arise from such perusal the benefit of the doubt must be given to the insured. Connell v. Commonwealth Casually Co., 96 N. J. L. 510; 115 Atl. Rep. 352. It is from a study of the entire instrument that wc have reached our conclusion. We find no uncertainty in the terms of the policy. Plaintiffs were strangers to the execution of the contract and to the consideration upon which the contract became effective. Before a claimant becomes entitled to favor as an assured he must establish that he has the status of an assured. Ordinarily the obligations arising out of a contract are not enforceable by a person who is not a party to it or in privity with it. By the statute now extant as R. 8. 2:26-3.6; N. J. 8. A. 2:26-3.6, a person for whose benefit a contract either simple or sealed, is made may sue thereon in any court although the consideration of the contract did not move from him. But one who is not a party to a contract has no status to sue upon it if he be a person with whom the contracting parties never meant to come into contractual relations; a possible benefit to such a party by the performance of a contract is not enough to give him the right to maintain an action upon it. To have that effect it must appear that the contract was made for his benefit.”

The instant ease is to be distinguished from those cases.

In both of them the primary property to be insured was of the warehousemen. The plaintiffs were strangers to the contract. They did not contribute to the consideration, had no knowledge of the policy until after the loss. In the Crown Fabrics case, the policy contained an express clause of statement of purpose of indemnification of legal liability of the named insured.

In a recent article entitled “Liability of a Bailee and His Insured” found in the record of the proceedings of the Section of Insurance Law of the American Bax Association, 1945 session, at page 177, the attitude of the Hew Jersey courts and the general subject is discussed.

In the instant case, property of the named insured is expressly exempted from coverage, reference is made to a customer’s receipt under which assured agrees to effect insurance on bailor’s property; provision is made for an optional and facility plan of payment. There is an uncertainty in the terms of the policy and one of the hornbook principles of the construction of a contract is the resort to the conduct of the parties. There is a dearth of pertinent facts such as the manner in which the premium was paid to the defendant, whether any portion thereof was collected from the bailors of the co-defendant for that purpose, the customer’s express knowledge of the policy, the form of the receipt issued by the bailee, thereby leaving undetermined essential fact questions.

By stipulation in the disposition of this motion, the complaint is implied by the policy referred to in the defendant’s supporting affidavit. To strike a complaint upon the ground it is frivolous is inherent and the statute merely confers a power which was exercised at common law. To do so, however, it must clearly appear to be so and to be so upon the facts alleged in the complaint. It does not so appear.

The motion to strike upon this ground is denied.

With respect to the attack upon the complaint that it is sham upon the assigned reason that prior to the institution of this suit there was paid by the defendant to the co-defendant all loss in the manner and payable under the terms of said policy directly to it under a facility of payment clause. 46 C. J. S. 138 and 145. It may be said in limine, the assertion of payment and release is premature. These defenses are affirmative defenses and are the subject-matter of an answer. Supreme Court rule 58, N. J. S. A. tit. 2. The application of the rule of undenied facts asserted by the supporting affidavit of the moving party is not applicable.

The motion upon this ground is denied.

Appropriate rule may be presented.


author: Burling, C. C. J.

text:
    Atlantic County Circuit Court.
    IDA DORFMAN, PLAINTIFF, v. JACK RICHARD BARNETT AND MOLLY BARNETT, DEFENDANTS.
    Decided July 11, 1946.

    For the plaintiff, Clarence Blitz.

    For the defendants, Altman & Baclcer (by Chaim 3. Sandler).

   Burling, C. C. J.

Plaintiff filed a complaint in ejectment against the defendants for possession of the following described premises, to wit: All that certain unfurnished apartment, styled 1-B on the first floor of the apartment building known and designated as Vermont Apartments, situate at the northeast comer of Vermont Avenue and the Boardwalk in the City of Atlantic City, County of Atlantic and. State of Hew Jersey, and alleged her right to possession accrued cm April 15th, 1946, and demand was made for mesne damages.

Defendants filed an answer of general denial, and thereby admitted possession of the premises. B. S. 2:51-14; N. J. 8. A. 2:51—14; Quinlan v. Fair Haven (Court of Errors and Appeals, 1925), 102 N. J. L. 443; 131 Atl. Rep. 870.

Motion has been made by the plaintiff to strike out the answer on the ground that it is sham and for summary-judgment.

The following facts stand uneontroverted:

The plaintiff acquired title to the premises in question, inter aMa, by virtue of the following deed: Made by Bankers-Bond and Mortgage Guaranty Company of America to Ida; Dorfman, wife of Aaron Dorfman, dated April 2d, 1946, and recorded in the office of the clerk of Atlantic County in Book 1271 of Deeds, page 262. At the time of acquiring title by the plaintiff, there was assigned the grantor’s right, title and interest in and to a certain written lease for the premises in question, dated April 11th, 1944, made by the plaintiff’s grantor’s agent to Emanuel Muchnick. The term of the lease began June 15th, 1944, and ended on June 14th, 1945. It was stipulated between the parties that the original lease was to be considered as an exhibit as if attached to plaintiff’s supporting affidavit. The lessee held over and became a tenant from month to month. The lessee died on April 7th, 1946.

The fact of the lessee’s death has created the issue in this controversy and requires the construction of the lease. Although a tenancy from month to month is not terminated by the death of the tenant and his interest passes to his administrator, Levigton v. Tuly (Court of Chancery, 1940), 126 N. J. Eq. 552; 10 Atl. Rep. (2d) 64, still the contract of the parties makes this rule inapplicable. In the written lease and contract of the parties, emphasis was laid upon the character of the occupancy. From the standpoint of the landlord,, a meticulous evaluation of the lessee was carefully exhibited in the lease. Throughout the entire contract is evinced the intention to limit the occupancy to the lessee. This was enlarged to permissively include the tenants immediate family with the lessee. Upon his death the right of possession of members of the immediate family fell.

This conclusion makes it unnecessary to determine the personnel within the meaning of the phrase "the tenant's immediate family.” Further the defendants herein are not the personal representatives of the decedent but one of the next of kin (daughter) and her husband.

Since the right to possession of the defendants is claimed solely through the lease aforesaid, applying the construction of the lease to the undisputed facts, their defense is sham.

The motion to strike the answer will be granted, and a writ of possession may issue.

The damages are not proven and are unliquidated. The proceedings are to continue as to the demand for mesne damages and leave is granted to file answer thereto. R. S. 2:27-128; N. J. S. A. 2:27-128; Supreme Court rule 82; N. J. S. A. tit. 2; Warren Balderston Co. v. Ivory (Court of Errors and Appeals, 1940), 125 N. J. L. 469 (at p. 472) ; 16 Atl. Rep. (2d) 617.

Appropriate rule may be presented.


author: Kinkead, C. C. J.

text:
    Monmouth County Circuit Court.
    IN THE MATTER OF THE APPLICATION OF THE BOND PRINTING CO., INC., TRADING AS ASBURY PARK SUN, FOR A DETERMINATION OF ITS RIGHTS, STATUS AND OTHER LEGAL RELATIONS UNDER THE STATUTES OF THIS STATE RELATING TO LEGAL ADVERTISING.
    Decided July 30, 1946.
    Por the applicant, Vincent P. Keuper and Joseph Lanigan.

    Por the defendant, the Mew Jersey Press Association, Morgan Pi,. Seifert.

   Kinkead, C. C. J.

The Bond Printing Co., Inc., trading as the Ashtiry Park Sun, has filed a petition for a declaratory judgment pursuant to the provisions of R. 8. 2:26-66, et seq.; N. J. 8. A. 2:26-66, et seq., adjudging the rights, status and legal relations of the Asbury Parle Sun under R. S. 35:1—2.1 and 35 :l-2.2; N. J. S. A. 35:1—2.1 and 35 :l-2.2, as amended by chapter 409, Pamph. L. 1941.

By consent of the petitioner, the Hew Jersey Press Association has been admitted as a party defendant to the proceeding for the reason that it has an interest therein, because the newspaper publishing business is concerned and affected by the legal question involved in this proceeding.

For many years, a newspaper known as the Red Bank' Daily Standard was published in the Borough of Bed Bank, which borough is approximately fifteen miles from the City of As-bury Park. In the latter part of 1945, the Bond Printing Co., Inc., was formed, and it purchased the assets of the Red Bank Daily Standard. In the month of December, 1945, an announcement was published in the Red Bank Daily Standard that said newspaper would thereafter be known as the Asbury Park Sun. Furthermore, pursuant to the provisions of R. 8. 35:1—3; N. J. S. A. 35:1-3, there was filed and duly recorded in the office of the clerk of Monmouth County and in the office of the Secretary of State a certificate, whereby the name The Red Bank Daily Standard was changed to that of the Asbury Park Sun.

The publication office of the newspaper was moved from Bed Bank to Asbury Park. For a short period of time thereafter, no newspaper was published, but finally during the month of January, 1946, the Asbury Park Sun commenced publication.

The two statutes involved in this application specify the qualifications which are necessary to render any newspaper eligible for state, county or municipal legal advertising. The two statutes are practically identical, with the exception that R. 8. 35:1-2.1; N. J. S. A. 35:1-2.1, applies to state advertising, and R. S. 35:1-2.2; N. J. S. A. 35:1-2.2, applies to county and municipal advertising.

The requisites qualifying any newspaper for legal advertising are substantially as follows:

1. It shall be entirely printed in the English language.

2. It shall be printed and published within the State of Hew Jersey.

3. It shall be a newspaper of general circulation, possessing an average news content of not less than thirty-five per centum (35%).

4. It shall have been published continuously in the municipality where its publication office is situate for not less them two years. (Italics supplied.)

5. It shall have been entered for two years as second class mail matter under the postal laws and regulations of the United States.

In this proceeding, we are principally concerned with the interpretation of the fourth qualification as above specified.

In December, 1945, the Bed Bank Daily Standard had possessed for many years all of the statutory qualifications requisite for legal advertising. Furthermore, it could have changed its name to the Asbury Park Sun without affecting its status, if it had continued to maintain its publication offiee in Bed Bank.

The issue, therefore, which this proceeding presents for decision is as to whether the Standard, after changing its name to the Asbury Park Sun, can also proceed to change its publication office from Bed Bank to Asbury Park without affecting its statutory qualifications.

There is nothing in the respective statutes which prohibits any legally qualified newspaper from doing what the Standard has done in the instant case, and there is nothing therein which sanctions such a course.

There are no cases in this state, or in any other jurisdiction, which are dispositive of the issue. There are a limited number of decisions which bear remotely on the points involved. In Lewis v. City of Newark, 74 N. J. L. 308; 65 Atl. Rep. 1039, the Newark Advertiser, an evening paper, published a morning paper called the Morning Star. This latter paper had been published for only two months, whereas the legislative act required that a newspaper must be continuously published for one year in order to qualify for publication of legal notices and proceedings. It was argued that the Advertiser published the Star as a morning edition, and thus it was in effect the same newspaper. The court held that the titles were different and that the newspapers were separate and distinct within the contemplation of the laws governing the publication of ordinances.

In Montecano v. Liberty Warehouse Co., 121 N. J. L. 124; 1 Atl. Rep. (2d) 462, the Jersey Observer was printed in Hoboken and had its main office there. A branch office was established in Union City, to which some of the newspapers were dispatched and from there locally distributed. It was conceded that the printing was not done at the branch office, but it was also conceded that a newspaper may be published where it is not printed. The Court of Errors and Appeals held that the newspaper was not published in Union City and gave the definition that “The place of publication of a newspaper is where the paper is * * * first issued to be delivered or sent, by mail or otherwise to subscribers.”

In Bayer v. Mayor of Hoboken, 44 N. J. L. 131, a newspaper known as the Hoboken Advertiser had its office in Hoboken. In addition, the entire matter for the newspaper was composed, set up and placed in forms in Hoboken, after which the forms were sent over to Hew York City where the press work was done. The papers were then brought back to the office in Hoboken from whence they were issued to subscribers. The Supreme Court held that the newspaper, within the reason and spirit of the law, was printed and published in Hoboken.

In construing legislation, it is the duty of the court to ascertain the legislative intent and give effect to it. Mr. Justice Heher, speaking for the Supreme Coxirt in Lynch v. Long Branch, 111 N. J. L. 148 (at p. 151); 167 Atl Rep. 664, held:

“It is an established rule in the exposition of statutes that the intention of the legislature is to be derived from a view of the whole and of every part of the statute, taken and compared together. The real intention, when ascertained, will prevail over the literal sense of terms. When words are not explicit the intention is to be collected from the context and the occasion and the necessity of the law and from the mischief felt, and the remedy in view; and the intention is to be taken or presumed according to what is consonant to reason and good discretion. In re Merrill, 88 N. J. Eq. 261, 273; 102 Atl. Rep. 400 .”

When a newspaper has become qualified by being published continuously for two years in the same municipality, can it then move about the state and change its publication office at will without affecting its status?

I think not. I believe that a qualified newspaper retains its status only during such period as it continues to be published in the same municipality where it had acquired its statutory qualification.

A newspaper is an important factor in the life and well-being of the community where it is published, and the area where it circulates. It becomes identified with its domicile in a special manner because of its influence on public opinion and its power for good.

The two statutes under consideration were clearly enacted for the protection of the newspaper business as a whole, and part of the protection provided was to require a newspaper to prove its stability by publishing continuously in a municipality for at least two years before it could become eligible to derive revenue from state, county or municipal advertising.

The Red Bank Daily Standard had been established for a number of years in Bed Bank. It was legally qualified in Bed Bank. It could have retained its qualification by continuing to publish there as the Red Bank Daily Standard. It could have changed its name to the Ashury Park Sun and have retained its qualification if it had continued to be published in Bed Bank. But the qualification acquired in Bed Bank could not be transferred to the new publication office in Asbury Park.

The phrasing of the final paragraph of each statute is significant:

“In case a newspaper cannot meet these qualifications, itself, but has acquired another newspaper which meets these qualifications, the acquiring newspaper shall be deemed to meet these qualifications if it is published in the same municipality and entered in the same post office as was the acquired newspaper.”

Thus a qualified newspaper cannot transfer its status to any purchasing or acquiring non-qualified paper, if its purchaser moves its publication office to another municipality. The publication office must remain in the same community, otherwise such a sale does not carry with it to the acquiring newspaper the qualified legal advertising status of the acquired paper.

To adopt the reasoning of the petitioner, would be to conclude that the legislative intent was to permit a qualified newspaper to move its publication office about the state at will, without loss of its qualified status, while at the same time, precluding a qualified paper from transferring its qualified status by the type of sale above outlined. I cannot concur in that reasoning, and must hold to the contrary.

There can be no question but that the ruling of the court imposes a hardship on the Asbury Park Sun. The qualified status which the Bed Bank Daily Standard had acquired during its publication in Bed Bank has been lost, and the Asbury Park Sun will be required to be published continuously in Asbury Park for a period of at least two years before it can regain that qualified status.

I can also conceive of other hardships which this legislation could impose on qualified newspapers throughout the state. Por instance, a fire or other calamity could so thoroughly wipe out a newspaper plant that it would be necessary to establish a complete new set-up. It is conceivable that in some other municipality a new plant might be readily available. But the transfer of the publication office from one municipality to another would involve the loss of the newspaper’s status.

Such matters, however, are the concern of the Hew Jersey Press Association. If they are deemed sufficiently important, I daresay that remedial legislation will be introduced by the legislature.

In fairness to the Asbury Park Sun, I should state that it is quite clear that this legislation was not designed for protection against such a publication as that newspaper has proven itself to be. The Asbury Park Sun, from its inception, has been a vigorous, virile, and interesting newspaper. Its stability has already been established. It has made its impress on the area where it serves, and its sueeess in the newspaper field seems to he assured.

I feel that I should state further that the New Jersey Press Association, in contesting this application, does not impugn the motives of the Asbwry Park Sun. At the time of the hearing of this matter before the court, counsel for the defendant read into the record the following letter of the New Jersey Press Association which authorized him to appear on behalf of the Association in this proceeding:

“In opposing the petition, the Association has no ill will for the Asbury Park Sun> hut is here because any judgment by this court would affect ail newspapers and all municipalities in the state. The Association, which has supported all legislation to raise the standards of newspapers in the state, feels obligated to make every reasonable effort to sustain the laws which it has supported over the years.

“What properly constitutes a newspaper for publication of public notices involves matters of far-reaebing importance. It is vital to both individual and public interests to be put on notice regarding any action, public or private, which may affect the rights of the individual, the community, or some group in the community. Because of the £t«m-publie nature of newspapers, it is vitally important that we have an adequate and proper definition of what constitutes a newspaper eligible for legal notices.

“Sometimes it is desired by those placing legal notices, both public and private, to select the least effective newspaper rather than the most effective medium for publication. Statutory definition of a newspaper helps prevent attempts to nullify the public purpose of legal notices.”

While it is amply clear that the statutes in question were primarily enacted to protect established newspapers from the so-called “fly-by-night” type, it is equally clear that the legislation affects with equal force, until January, 1948, even such a robust, stable publication as the Asbwry Park Sun has demonstrated itself to be.

I conclude that any time a newspaper seeks a declaratory judgment, adjudging it to he a qualified newspaper under B. 8. 35:1-2.1; N. J. 8. A. 35:1-2.1, and B. 8. 35:1-2.2; N. J. 8. A. 35 :l-2.2, that the court must test its qualification with respect to the fourth requisite by determining whether or not said newspaper has been published continuousty in the same municipality where its publication office is presently situate for a period of not less than two years. When, as in the instant case, a newspaper fails to meet that test, the court must adjudge it a non-qualified paper, until the minimum period of two years has elapsed. The petitioner’s application for a declaratory judgment is accordingly denied.


author: Deeweit, C. P. J.

text:
    Hudson County Court of Common Pleas.
    ALEX RIVERS, PETITIONER-APPELLANT, v. AMERICAN RADIATOR & STANDARD SANITARY CORPORATION, DEFENDANT-APPELLEE. JANIE RIVERS, ADMINISTRATRIX, ETC., OF ALEX RIVERS, DECEASED, PETITIONER-APPELLEE, v. EAST COAST SHIPYARDS, INC., DEFENDANT-APPELLANT.
    Decided July 26, 1946.

      Bor the petitioners, Joseph A. Lipman (Aaron Gordon, of counsel).
    Bor the defendant American Radiator & Standard Sanitary Corporation, Cox & Walburg.

    Bor the defendant Bast Coast Shipyards, Inc., James J. Sheffington.

   Deeweit, C. P. J.

In the Bureau the two cases entitled as above were, for convenience and by consent of counsel, tried together. Each, however, presents a separate and independent issue and so they were dealt with upon the hearing.

The petitioner Alex Rivers, now deceased, filed his claim petition against American Radiator & Standard Sanitary Corporation under date of April 20th, 1944. The petition states the nature of the claimed accident and injury as follows : “Injured heart and heart muscles as a result of nature of work being performed on that day,” that is, on October 16th, 1943.

While the latter petition was pending and on May 8th, 1944, Rivers, who had been out of his former employment for several months, went to work for East Coast Shipyards, Inc., as a painter, and three days later met his death while so engaged. Claim petition was filed against the latter company by his widow and administratrix Janie Rivers. The accident and injury are alleged as follows: “While scraping rust from the side or hull of a ship on the way, decedent collapsed.” He “died immediately.” The date of death was May 11th, 1944.

The facts relevant to the claim of Eivers against the Eadiator Corporation are these: He entered the employ of that company on November 27th, 1922; it was terminated on October 26th, 1943. Throughout that entire period he was continued at the same work. He drove a gas-powored truck between a metal pile in the plant yard and the cupola building where the metal was melted down. The distance between these two points of operation was short. The workman’s function was exclusively that of truck-driver. He had no part either in the loading or unloading of his truck. It was loaded by crane operation and unloaded at the furnace by a crew of men stationed there for the purpose. As one witness described it, the workman wont “from inside to outside.” There is a statement in the testimony that during a working day the workman trucked forty charges to the furnace, making eighty separate trips in all. The record does not indicate that during his entire twenty years of employment petitioner lost any time by reason of illness or injury, save only that in 1941 he was out from May 24th to June 9th with grippe. The last day he worked was October 26th, 1943, when he was on a night shift. At 6:16 A. m. he “punched out” saying that ho was “not feeling well” and that “he did not feel like working.” As Ms widow describes it: “He got sick with a cold and we had the doctors to come in.” Under a company rule, after three days’ absence from work because of illness, an employee was required to submit to a re-employment examination by the company physician. Pursuant thereto Eivers was examined by Dr. MeCarron on November 29th, 1943. This examination showed “myocarditis after pneumonia,” and the doctor advised that Eivers should not return to work. Dr. MeCarron made two subsequent examinations, one on January 6th, 1944, and the other February 25th, 1944. The result of the January examination as shown by the doctor’s records was “marked cardiac disease—should not return to work;” and the record of the third and last examination is “auricular fibrillation following pneumonia—should be discharged from further employment; not able to return to work.”

It will be noted that the claim petition against the Radiator Company was not filed until two months after the last of the three re-employment examinations.

By way of preparing for trial of this claim an examination of Rivers was also made by Dr. Yisconti on January 5th, 1944, with a finding of “serious cardiac condition; disturbance in the rate, rhythm and quality of heart sounds.” Dr. Yisconti estimated that disability was total.

An award was sought to cover the disability from the termination of employment on October 26th, 1943, until May 11th, 1944, the date of death. •

The proofs show no causal relation whatever between anything in the work or working conditions of the claimant and the disability proved. We are left entirely to speculation. Effort was made to prove an important disparity in temperature between the place where the workman loaded his truck outdoors and where he discharged it indoors. The month was October. But nothing that is said in this connection is either definite or persuasive. As one witness gave it: “Inside was warm. Inside was hot. Outside is different again in the winter" And again: “It was warmer inside where the truck stops to let the cupola be filled with iron than outside where the metal is picked up by the track.” Another witness described how the workers' within the smelter building were “thinly” clad, adding “all day long they dress very thinly because they are not going in and out of the building. The men that go to and from there, they have to be prepared, * * *. That was so even in winter time.” But all this is unsatisfactorily vague and unrelated to relevant days and ternes; it does not withstand the positive and unequivocal testimony adduced by the employer on the subject. By this it was shown that the temperature in the cupola building was approximately the same always as the outdoor temperature; and that there was no radiation of heat from the cupola into the room is demonstrated by the testimony of the witness Cathcart that he could put his “hand on the side of the shell of the cupola at any time, at any place” while the cupola was in capacity use. This was not contradicted.

But there are considerations yet more potent that weigh against the claim. Implicit in the proofs are the developing phases of the workman’s illness: cold, pneumonia, with resultant heart disease. The injury and ground of award as alleged in the elaim petition is “injured heart and heart muscles as a result of nature of work being performed on that day,” i. e., October 16th, 1943. From the cold contracted on the date named, to the disability alleged, the court is left to find its way by nothing better than unaided conjecture. The primary difficulty is the want of proved relation between the cold and any incident or condition of the work. For if there was a causal sequence that would relate the work to the ultimate disabling injury, no one has said so. There is simply no proof, medical or otherwise, upon which such a conclusion can be based. Ho accident or happening outside of the routine and the usual is so much as suggested. After working at the same task for some twenty years petitioner on the date alleged “didn’t feel well; he didn’t feel like working.” And he “punched out” of the plant to go home. And that is all there is. There is indicated no more reason why petitioner’s illness should have been induced by an event occurring or condition prevailing on or about the day in question than at any other’ time during the whole twenty year period of his employment. After examination and study of the record we are left as free to say that the disabling illness had an origin entirely apart from the employment as we are to conjecture otherwise. The burden is upon the petitioner to establish his case by a preponderance of the proof. That he has failed to do.

Petitioner cites to us the case of Richter v. E. I. DuPont DeNemours & Co., 118 N. J. L. 404; 193 Atl. Rep. 194; 119 N. J. L. 427; 197 Atl. Rep. 276. That case has no application to the facts here. Its one effect is to accent the deficiencies of the present record. There exposure to cold and dampness was specifically shown to have occurred at a definite time, and in a fully described place and conditioning; this being supplemented by unequivocal medical testimony that the given exposure was the inducing cause of the illness. Hot one of these elements is established sub judice.

The Deputy Commissioner dismissed the claim petition in the Bureau and that decision is affirmed.

This brings us to the claim of Janie Rivers as administratrix of Alex Rivers against the East Coast Shipyards, Inc. There can be no question that when Alex Rivers entered the employ of the East Coast Shipyards on May 8th, 19-44, he was suffering from a grievously advanced disease of the heart. This had been shown by the findings of three physicians, Drs. McCarron, Shapiro and Yisconti. Upon the hearing it became a postulate in the ease. The Shipyard Company required no pre-employment examination and Rivers was put to work on a scaffold, scraping rust from the outer hull of a vessel, with a wire brush. After three and one-half days of this work he collapsed on the scaffold and died very soon thereafter. The nature of the work was described by a fellow employee, the witness Casanova, who testified: “We scraping the ship up and down (witness indicates with an upward and downward motion of his hand and arm),” using a wire brush weighing about three-quarters of a pound. “It’s hard work—the wrist tire all the time. * * * He (Rivers) stop to take a rest * *■ * he breathe tired. (The witness opens his mouth and takes a deep breath.) * * * We scrape up and down with the hand (witness clenches his right hand and makes motion from left to right and up and down from above his head and then bends down to between the ankle and the right knee.)” On May 8th, his first day of employment, decedent worked from 11 A. m. to 6 or 7 p. sr. On May 9th and 10th he worked ten hours each day. On the 11th he worked from about 7:30 a. m. until his collapse at or about noon. The same witness said that he and Rivers “worked standing up—up and down * * *. Sat down part of the time. • * * We work about one hour straight and take five minute rest.” Later the witness said: “We can’t sit down. Work down. We would sit down sometimes. * * * Stand for high and sit for low.”

The circumstances immediately preceding the workman’s collapse and those attending his discovery in that state on the scaffold are given in the record as follows: The co-worker Casanova left the scaffold, he said, at 11 A. m. to go to the first aid station for attention to his eye. He returned at about 11:55 A. M. and saw decedent still working, calling out to him that it was time to eat. Decedent responded by holding np five fingers, taken to mean that he still had five minutes of work to do. Casanova then went to the restaurant alone and while there learned of decedent’s death. The first one to see decedent prostrate on the scaffold was the witness Paterson. He fixes the time at 11:45 A. M. and says: “I happened to look np and here was a fellow hanging down from the scaffold head toward the ground. His knees was up against the shell of the boat * * * We brought him np on deck and laid him on the deck. * * * I loosened up his shirt and tried to get as much air as possible to cool him off * * *. He was lying on the deck about onc-half minute, then the man just opened his month and gave a sigh, and that was the last. * * * His legs was inside here between the shell and the scaffold. Then his body and his head was hanging right down here with his arms like that, hanging down head toward the ground. * * * He had a steel scraper and wire brush. They were lying beside him on the scaffold. * * * He was bluish in the face, his lips were bluish * * *. His back was lying on the scaffold and the rest of his body was hanging down.” The witness saw no sign of injury. Immediately in front of the scaffold at the place where the body had been found the ship’s hull bore scraping marks.

The witness Casanova was confronted with a statement that had been made by him to a company representative soon after decedent’s death, in which the witness is shown to have stated “he (decedent) didn’t work hard but took it easy while he was working with me.”

A death certificate issued by the acting county physician of Hudson County gave the cause of death as coronary occlusion. Petitioner’s medical expert, Dr. Kaufman, in response to the hypothetical question stated his opinion of the cause1 of death as follows: “Mr. Rivers died from an acute cardiac attack, which resulted from the scraping of the rust, the work which he did just preceding his death; and that this was brought about because he himself went to work as a cardiac, with an irregular heart known as auricular fibrillation; * * * that the work he did on that particular morning just preeeding Ms death was greater than the cardiac reserve which he had left; and that he died as a result of this particular strain and effort on his heart.” Concerning the cause of death (coronary occlusion) as given in the death certificate, Dr. Kaufman testified further: “Whether it was acute coronary occlusion or not, we would not know without an autopsy, but certainly in a man with a fibrillating heart it is not necessary to have occlusion to die from heart failure—with or without an occlusion.” On cross-examination the doctor stated that to one suffering from a fibrillating heart, as decedent had been, acute cardiac failure “may come at any time, under many conditions; * * * it could occur without any unusual strain or effort. It could occur while he was eating a meal; it could occur while he was in bed; it could occur while he was walking up a flight of stairs in Ms own home, or from any other failure. * * * I would not say it would not come about from effort. Whether it be physical or emotional it would be effort, but the effort need not be industrial.”

The only other witness in the case testifying on the post mortem problem was Dr. Abraham B. Jaffin, called by respondent. Dr. Jaffin’s answer to the hypothetical question was to the effect that he could ascribe no relation between decedent’s work and death for the reason that to do so would in his opinion be mere speculation. The doctor’s language is: “It is my opinion that regardless of this man’s prior cardiac condition, as to whether he had a eardiac condition or not, but based entirely on the following facts, namely, that this man performed the same effort each day for several days, three or three and one-half; that there was no evidence that he did so under a long sustained effort, because he took it easy— I was told he took it easy and rested for a few minutes every hour. I assume from that that he did what he could. Therefore, I feel that I cannot honestly say that his work was a causal factor in his sudden death, because it would be too conjectural to do so under oath, as witness, sudden death occurs more frequently even without effort.” The doctor on cross-examination did say, however, that the disease from which decedent was shown to have been suffering lessens the functional capacity of the heart'“if it lasts long enough. * * * If it lasts, for instance, for days it may so tire the heart that the heart will fail.” And he added that whether fibrillation results in interference with the function of the heart “depends upon the rate, the number of beats per minute, that result in the ventricle; * * * and the man’s ventricle can carry on effectively unless the rate is so fast that ultimately he has muscle fatigue of his heart and he goes into a faint from fatigue or over-exertion of his ventricle.” The qualifications thus made by the witness relating to the duration of the evil and the rate and number of beats resulting in the ventricle can, for the want of specific proof, be related to no relevant standard and so must remain academic. Suffice it to say that from first to last, respondent’s expert declined to assert an affirmative hypothesis upon the relation of the work to the death, because of the speculative nature of the inquiry. That of petitioner’s Dr. Kaufman remains therefore, the only such hypothesis in the proofs.

It is our judgment that petitioner fully discharged the burden of proving that her decedent met his death as the result of an accident arising out of and in the course of his employment.

The main contention of respondent is that there was no accident; that without accident it cannot be said in the statutory sense that there is injury or death arising out of and in the course of the employment; in a word, that “accident” is the basic thing. We must suppose that this argument rests on the assumption that the term “accident” means the impingement upon the person of the worker of some force external to him and originating in mishap or exigent phenomenon. There was no such happening. We are persuaded, however, by a study of the cases that respondent’s assumed meaning of the term is now an anachronism. The expanding of the sense of “accident” has been a persistent process in the decisions of this and other jurisdictions and the present phase of the development renders obsolete, in our opinion, any theory that would exclude the death sub judice from that category.

Speaking of the case before the Supreme Court in Molnar v. American Smelting and Refining Co., infra, the present Chief Justice said: “As for an accident in the sense used in the earlier days, there was none; but it appears to be the effect of our more recent decisions that where the performance of manual labor entails a strain upon the heart without which death would not have occurred but in consequence of which, combined with causes disassociated with the employment, death does occur, the experience constitutes an accident within the meaning of the Employer’s Liability Act [N. J. 8. A. 34:15—1, et seq.~\ and that when the contributory strain arises out of and in the course of the employment, the accident likewise so arises.” True, there is an array of cases in which our appellate courts take occasion to point out a factor of proof in some extraordinary circumstance attending the degree or kind of effort expended by the workman, but the fact is that in many, if not in all these instances, the finding of such a factor was needless in view of the then prevailing doctrine established by our highest court. We shall trace briefly the detail of what thus we indicate. In Ciecwirz v. Public Service, 128 N. J. L. 16; 24 Atl. Rep. (2d) 394, 396, the Supreme Court speaks of the 'laborious and strenuous work of shoveling up soil.” In Schneider v. F. & S. Haerter (Supreme Court), 119 N. J. L. 548; 197 Atl. Rep. 281, we read: “The heavy work decedent was doing most of the day * * *, the more or . less extreme exertion.” In Rother v. Merchants Refrigerating Co. (Supreme Court), 122 N. J. L. 347; 6 Atl. Rep. (2d) 404, reference is made to “unusual effort” as inducing “unusual exertion.” And the same court in denying compensation in Wehrle v. Sherwin-Williams Co., 133 N. J. L. 347; 44 Atl. Rep. (2d) 389, takes occasion to observe that there was “no evidence of any great exertion.” In Passafiume v. H. T. Hynds, Inc., 128 N. J. L. 27; 24 Atl. Rep. (2d) 394, the Supreme Court relates the death of petitioner’s decedent to “the extra heavy exertion occasioned by decedent’s work.” See, also, the preoccupation of the court with special factors of exertion and stress in Bernstein Furniture Co. v. Kelly, 114 N. J. L. 500; 177 Atl. Rep. 554; 115 N. J. L. 500; 180 Atl. Rep. 832.

Though in our opinion the degree of exertion required by decedent’s employment in the instant case is sufficient to bring it within the indicated doctrine of the decisions last cited, the principle upon which our decision shall rest is ultimately established for us by judicial authority rendering it clear beyond question that no more is required, where the workman is afflicted, as here, with a predisposing cardiac weakness, than that the death or injury be shown to bear causal relation to the routine activities of the workman as normally pursued.

In Molnar v. American Smelting and Refining Co., 127 N. J. L. 118; 21 Atl. Rep. (2d) 213, the Supreme Court held that the degree of exertion is of no consequence so long as performance of the required work caused a strain of the heart. In the same opinion the present Chief Justice compiles statements of principle in this regard as then having the approval of our Court of Errors and Appeals. So important is this in the present connection that we quote the reference at length (127 N. J. L. 120; 21 Atl. Rep. (2d) 214) : “I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. * * * Eor do I think we should attach any importance to the fact that this man’s health was as described. * * * An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health. * * * The real question, as it seems to me, is this: Did it (this death) arise out of his employment? On this regard the evidence before the county court judge was undoubtedly conflicting. But he has held that it did, and I think there was suffleient evidence to support that finding. The death, says the learned judge, was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal. The fact that the man’s condition predisposed him to such an accident seems to me to be immaterial. The work was ordinary work; but it was too heavy for him. * * * When the learned county court judge has held that the result of the work was the failure of the blood supply resulting in angina pectoris, and that it was because he was engaged in doing his ordinary work under this diseased condition that this failure arose, and that the work and the disease together contributed to the death, it -would he impossible to deny that that is within the actual meaning of the words in the case I have quoted.” And 127 N. J. L. (at p. 121) ; 21 Atl. Rep. (2d) 215: “We are satisfied that but for the employment the death would not have occurred when it did. That, under the statement of principle quoted above, constitutes a statutory accident. The accident, then, consisted of the putting forth of the man’s physical effort exerted in the normal performance of his usual duties and the fatal effect thereof upon a vital organ already seriously impaired by disease. The effort would not have been undue if the man had been in health but it was excessive for the weakened member. The application of the law to the facts results in a finding that there was an accidental strain of the heart.”

In Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, the Court of Errors and Appeals reversed the Supreme Court’s denial of relief to decedent’s administratrix (121 N. J. L. 160; 1 Atl. Rep. (2d) 751), and in its opinion reviews the facts and holdings of the English decisions from which were taken the principles compiled by Mr. Justice Case in the Molnar opinion, supra. Speaking for the Court of Errors and Appeals, Mr. Justice Bodine says (121 N. J. L. (at p. 495); 6 Atl. Rep. (2d) 409) : “The Supreme Court erroneously considered the circumstance that the heart had been weakened by the strain of work over a long period of time as excluding recovery, but this is a circumstance which under our eases and those decided in England, could make no difference where the accident arose out of and in the course of the employment.”

A similar reversal is that of Ciocca v. National Sugar Refining Co., 124 N. J. L. 329; 12 Atl. Rep. (2d) 130. There death was caused by heat prostration. Decedent had been employed as a sweeper. His collapse occurred on a torrid day. He was not exposed to the direct rays of the sun and it seems to have been conceded that where he worked the temperature was a few degrees cooler than that prevailing outdoors, and also that his work required no undue or unusual effort. In the opinion of the Court of Errors and Appeals reversing the Supreme Court it is written (124 N. J. L. (at p. 334) ; 12 Atl. Rep. (2d) 132) : “We need hardly labor the point that simply because an employee does not in his employment exercise out of the ordinary effort, strain or exertion, or is not subjected to greater exposure than that to which other persons generally in that locality are exposed, it does not necessarily follow that the employee cannot otherwise sustain a compensable accident.”

This discussion would not be complete without reference to the array of liberalizing authority collected and approved by our Court of Errors and Appeals in Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512 (at pp. 519, at seq.); 6 Atl. Rep. (2d) 396. There Chief Justice Brogan, speaking for the court, brings the proposition to its ultimate simplicity and broadest inelusion by formulating the test that the injury or death must be regarded as resulting from accident “if but for the employment it would not have occurred” (122 N. J. L. (at p. 520); 6 Atl. Rep. (2d) 401).

A case that exemplifies a very recent application of the principles in question is Roma v. Associated Transport, Inc. (Supreme Court, decided May 21st, 1946), 134 N. J. L. 279; 47 Atl. Rep. (2d) 337. There it was admitted that the accident occurred in the course of the employment, but the contention was that it did not arise out of the employment. Using the word “accident” in a non-technieal sense and as connoting no more than the event of death, the same language might serve as a statement of the position taken by the present respondent.

The test of compensability is stated in Lohndorf v. Peper Bros. Paint Co., infra, as follows: “To render an injury compensable there must be an event or happening, beyond the mere employment itself, which brings about the final result or contributes thereto. * * *.” We are mindful of the words “beyond the mere employment itself.” Uo supporting authorities are given; and the qualification noted will, in any event, have to be rejected as in complete dissent from the ruling decisions. (Cases supra.)

Before leaving this question of “accident” we think the purposes of clarity would be served were we to accent the points of distinction which in our judgment prevent application to the argument before us of the decisions upon which respondent relies. In Armstrong v. Union County Trust Co., 14 N. J. Mis. R. 648; 186 Atl. Rep. 522; affirmed, 117 N. J. L. 423; 189 Atl. Rep. 138, there was no proof of any fact or circumstance attending the death, that is no proof of anything in the employment that could have contributed to or induced the fatal event. In a word, there was nothing from which an inference could be drawn. The same must be said or Nardone v. Public Service, 113 N. J. L. 540; 174 Atl. Rep. 745. There the theory of petitioner’s case was that decedent came to his death by being struck on the head by a falling brick. The counter-proof “completely exploded” this theory and. there was no other left. The court observed that there was “an utter failure to sustain the theory upon which the ease was tried.”

There are indeed cases in which death is inferred, as we infer it in the present instance, from the attendant circumstances established in the proof, and many of these are cited in the IN"ardone opinion, but for contrast. A careful reading of Azarowicz v. Metropolitan Beef Co. (Supreme Court), 118 N. J. L. 89; 191 Atl. Rep. 483, shows that the ease does not have the effect for which respondent cites it. True, the asserted principle was laid down, but a study of the facts in the case, with the resultant award for aggravation of heart disease, does not fit it to respondent’s purpose at all. In Schlegel v. Baron (Supreme Court), 130 N. J. L. 611; 34 Atl. Rep. (2d) 132, it was a question of credibility upon which the decision turned. Compensation was denied solely for the reason that there was falsification in the very claim that an accident occurred. It is equally clear that had the court believed the story of the occurrence there would have been an award of compensation. Also in Grabol v. Borstein Electric Co. (Supreme Court), 23 N. J. Mis. R. 225; 41 Atl. Rep. (2d) 521, there was no proof of a single fact from which a contributing cause of petitioner’s death could have been inferred. In Wehrle v. Sherwin-Williams Co. (Supreme Court), 133 N. J. L. 347; 44 Atl. Rep. (2d) 389, there was a like failure of proof. “The only proof of exertion” says the court “before the death was walking to the testing room and it (death) occurred before any test was made.” In a word, it was not shown that the death occurred in the course of the employment. Bouvier v. County Gas Co. (Supreme Court), 134 N. J. L. 89; 45 Atl. Rep. (2d) 894, is another case of the incredibility of the proof adduced to establish the one and only theory upon which petitioner’s case was tried. The court said: “It must be remembered that such probability (that injury was caused by the employment) was predicated upon a hypothesis which included the fact that petitioner had been struck on the left side * * *. This, we find, did not occur.” Since there was a failure of the only hypothesis tendered, the court had no other upon which to base an affirmative conclusion.

A case upon which respondent seemingly lays special stress is Lohndorf v. Peper Bros. Paint Co. (Supreme Court), 46 Atl. Rep. (2d) 439. It is our judgment that distinction between this and the New Jersey cases which rule the subject is perfectly clear. In the Lohndorf case decedent had suffered a number of heart attacks prior to the alleged “accident,” with no claim or pretense at any time that these bore a relation to his employment. On August 23d, 1944, the date on which the “accident” occurred, decedent had an attack “whiL standing by a counter doing nothing and following no unusual exertion. Another attack was experienced by him later that afternoon and again on the following day.” On August 25th, two days after the “accident” alleged in the claim petition, he suffered another attack after moving some cans of paint from a low hand-truck to the floor; and from the opinion we read that “on the following day (the 26th) he had another attack concerning which there is no evidence of anything unusual occurring or of any particular exertion, except that it was a busy day and he had been waiting on customers.” There was a conflict in the testimony given by the medical experts. Those appearing for petitioner found a contributing cause of death in decedent’s failure to give up his employment, mentioning no particular incident thereof as requiring cessation. One of petitioner’s medical witnesses did say, however, that in his opinion the work done by decedent on and after August 23d was the contributing cause of death, but, as the court comments, deceased had been doing similar work for a year and a half. It is important to observe that in this conflict of medical testimony the Supreme Court found that adduced by the employer to be “weightier and more persuasive.” In the instant case, there is no medical testimony to countervail that of Dr. Kaufman to the effect that the exertion of decedent’s work was a competent inducing factor. But apart from all this, the opinion in the Lohndorf ease by no means supports the argument of respondent here, but shows clearly that the Supreme Court in making its Lohndorf decision had no intent- but to be in full accord with the authorities supra upon which the present opinion rests. “We do not perceive,” says the court, “under the circumstances that the cases of Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, and Molnar v. American Smelting and Refining Co., 127 N. J. L. 118; 21 Atl. Rep. (2d) 213, are controlling. In these cases it was found that the deceased suffered a strain of the heart from unusually hard labor on the day in question, and that the employee collapsed shortly after his severe efforts."

If the phrases “unusually hard labor on the day in question” and “severe effort,” appearing in the last sentence of the Lohndorf excerpt above, are to be taken as intending a qualification of the cases to which they refer in such a way as to describe thereby a sine qua non of recovery, then we are bound to observe that the Lohndorf decision is therein at variance with the higher court’s conclusions indubitably established by the decisions supra.

Whether or not the judicial extension of the law of industrial accident can be said to revolutionize, as counsel urges it does, the status and responsibility of the employer into those of an outright insurer of the workman’s life, is certainly not a matter with which the authority of'this court can properly be concerned in resolving the present controversy.

There is another challenge in respondent’s argument, and which can, for the clarity of its discussion, be concretely stated thus: Even though the workman’s normal task would as matter of law be sufficient under the circumstances to supply an inducing cause of death and so to render the death an accident, there is nevertheless no proof that the work was the inducing cause, more especially in view of the medical testimony that his state of illness was so extreme that it could have resulted in death following the slightest effort or with practically no effort at all.

We have already remarked that upon the trial decedent’s grave cardiac illness was a postulate. That it was so is not at all obscured by the labored sciolism of counsel’s cross-examination of the doctors, more especially of Dr. Jaffin. The opinion of Dr. Kaufman on behalf of petitioner had, as we have seen from his testimony already quoted, made decedent’s life tenure precarious indeed. This opinion was elicited, not by counsel for petitioner but by counsel for respondent, who in cross-examining Dr. Kaufman sought not only to give emphasis to that opinion but to carry decedent’s pathological uncertainty of life to the farthest possible extreme. Kespondent’s counsel sees defensive strength in this and in his brief characterizes the result of the cross-examination as “most enlightening.” It happens to be our judgment that in plain truth no medical problem, in a practical sense, remains. With the medical proofs conditioned as shown, and uncontradicted, the argument on the cause of death as it arises from the nature of petitioner’s work, the surrounding circumstances, his collapse and demise, is an argument grounded in the law of evidence, as it seems to us, without practical relation to any problem of medicine. It having once been placed beyond controversy that the nature of the workman’s heart illness was such that he could have died in his sleep, that industrial exertion would more than suffice, there can no longer be a real need for an expert to tell us that in all likelihood he died from the effort expended in his work.

Undoubtedly it was and is the theory of counsel that in dealing with these probabilities, where a sufficient increase of the internal hazard is shown, the external hazard will thereby be rendered no longer potent. In one respect at least we are clear of probabilities and stand in the light of certainty: decedent did not die in his sleep nor in any other of the easier circumstances hypothesized by the doctor; he died while at his work.

As it appears to us, the fallacy in the theory noted lies in the failure to see that when to the fact of internal weakness is added the external effort, we are not displacing one hazard by another, but are adding rather hazard to hazard. There is no occultation of peril but an increase of peril totally. With this increase of peril there runs a corresponding increase in the grounds of probability, these centering in the hazard that is added, so that when this maximum of hazard is climaxed in death, the probability that the immediate cause of death is to be found in that by which the maximum was created, is a cogency that the illative sense does not and cannot resist. In the inference the proofs allow, decedent was to the work at which he died as an unseaworthy ship to the storm in which it sinks. It can be readily admitted, moreover, that this reasoning of the law of evidence is entirely consistent with the possibility that decedent actually died of internal causes, uninfluenced by his work. There is no requirement that such possibility be excluded in order that effect be given to the inherent probability of the circumstances proved. The latter does not collide with the former, it transcends it. Our acceptance of respondent’s view of the proofs in the respect considered would require us to exclude completely from the case the principles of circumstantial evidence.

Tor authority we cite the dissertations on the law of probability and fair inference embodied in Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43 (at p. 47); 178 Atl. Rep. 181; Jackson v. Delaware, Lackawanna and Western Railroad, 111 N. J. L. 488 (at p. 490); 170 Atl. Rep. 22; Austin v. Pennsylvania Railroad, 82 N. J. L. 416; 81 Atl. Rep. 739. See, also, the many instances of cause of death as determined by inference in the cases described and cited in Nardone v. Public Service, supra.

Exception was taken upon the hearing to the admission into evidence of the certificate of death as made by the acting county physician, but throughout the argument the point has remained unmentioned. We regard the question as of no importance. The certificate states the cause of death as coronary occlusion. Dr. Kaufman gives it as acute cardiac failure, adding that without an autopsy it cannot be told whether or not there was an occlusion. In any event and as already observed, the medical proofs are in such posture as to make it of no moment whether decedent died of the one heart illness or the other. It follows that the validity of the sward is not affected by the admission of the death certificate.

For the reasons hereinabove set forth the Bureau’s determination of fact and rale for judgment in favor of Janie Bivers, administratrix of Alex Bivers and against East Coast Shipyards, Inc., are in all things affirmed, save only with respect to the computation of $6,000 as the amount of award to petitioner. On the oral argument counsel for respondent took exception to the amount stated as being the result of a miscalculation. Since the question is raised, and the matter before this court being in the nature of a trial de novo, it becomes our duty to deal with it. When challenged in the course of the oral argument with the incorrectness of the amount, counsel for petitioner relied on what he then spoke of as a stipulation entered into upon the trial. An examination of the record does not sustain the notion that there was a stipulation. We give the details. At the conclusion of the first testimony of the administratrix, counsel for petitioner requested to be informed whether respondent denied that at the time of decedent’s death he was earning $1.10 per hour. This was followed by a “discussion off the record.” At its conclusion petitioner’s counsel dictated into the record the following: “It is stipulated that the decedent at the time of his death * *• * was earning $1.10 per hour and that he worked six days a week, subject to counsel’s advising me otherwise. If it is otherwise, I will be given an opportunity to see the record.” The court then asked: “How many hours a week ?” to which petitioner’s counsel replied: “Forty-eight hours a week, a minimum of forty-eight hours.” To all of this counsel for respondent maintained the silence that ordinarily would give consent. Were there no more than the foregoing, the making of an effective stipulation could hardly be denied. Taking respondent’s silence together with the “discussion off the record,” it would be but fair to presume that the terms had been discussed and agreed upon and then stated in the record. But there the matter does not end. Sometime later the administratrix was recalled as a witness and upon concluding her direct-examination counsel for petitioner reopened the subject of decedent’s weekly wage. The discussion runs through three pages of typescript (117 to 119, inclusive). Such doubts were raised and things said as to leave nothing of the earlier apparent stipulation, and it was the Deputy Commissioner who finally resolved the dispute as follows: “The wage question is to be ascertained by Mr. Skeffington in the records of the respondent.” This time it was petitioner’s counsel who remained silent. And there the matter remained. There is nothing in the transcript to show that the records of respondent were thereafter consulted to ascertain decedent’s weekly wage or the hours and rates by which the same could be computed. Therefore, unless there can be effective agreement now the case will have to be remanded to the Bureau for the proofs in the particular indicated. Let counsel be governed accordingly in the drawing of the determination of facts and rule for judgment in this court.

There is allowed to counsel for Janie Bivers, administratrix, as petitioner-appellee for services on this appeal the sum of $400, to be paid by respondent-appellant, East Coast Shipyards, Inc.


author: Leyden, C. C. J.

text:
    Somerset County Circuit Court.
    ARTHUR R. KERSTING AND GLADYS KERSTING, PLAINTIFFS, v. LILLIAN HARDGROVE, DEFENDANT.
    Decided July 12, 1946.
    For the plaintiffs, Lyness & Bedell (Charles Blume, of counsel).
    For the defendant, Myron L. Levy.

   Leyden, C. C. J.

Defendant moves to strike the various counts of the complaint, assigning eight reasons therefor, only two of which seem to merit consideration.

The complaint contains eighteen counts, each seeking redress for an overcharge for rent, which overcharge is alleged to be contrary to the provisions of the Emergency Price Control Act of 1942, as amended, 50 N. S. O. A. Appendix, §§ 901, ei seq., relating to the maximum rent regulation.

The summons was tested at Somerville on the 9th day of April, 1946. The overcharges set forth in the first six counts of the complaint occurred more than a year prior thereto. Section 305(e) of the act provides that if a person selling a commodity violates a regulation prescribing a maximum price, the person who buys such commodity may, within one year from the date of the occurrence of the violation, bring an action against the seller on account of the overcharge. This remedy was unheard of at common law. The federal statute creates the right and limits the recovery and the liability of the wrongdoer to actions brought within one year after payment of the overcharge. The Harrisburg, 119 U. S. 199 (at p. 214); 7 S. Ct. 140; Atlantic Coast Line Railroad v. Burnette, 239 U. S. 199; 36 S. Ct. 75. It has been similarly held in Hew Jersey. Schwartz v. Dell'Osso, 23 N. J. Mis. R. 151; 43 Atl. Rep. (2d) 306; Carmelly v. Hanson, 133 N. J. L. 180; 43 Atl. Rep. (2d) 685; Zuest v. Ingra, 134 N. J. L. 15; 45 Atl. Rep. (2d) 810, is not in conflict. The statute, in its effect, is comparable to our Death Act, R. 8. 3:41—1, et seq.j N. J. 8. A. 2:41—1, et seq. See Peters v. Public Service Corporation of New Jersey, 132 N. J. Eq. 500; 29 Atl. Rep. (2d) 189; affirmed, 133 N. J. Eq. 283; 31 Atl. Rep. (2d) 809. The first six counts, therefore, are insufficient in law in that they do not state facts sufficient to constitute a cause of action. The motion to strike is granted.

The remaining point that each count of the complaint involves a federal penalty statute cognizable exclusively in the federal courts and, therefore, the Somerset County Circuit Court has no jurisdiction, poses some interesting questions: (1) whether the State of Hew Jersey will enforce a penalty imposed by a foreign sovereignty, and (3) whether the United States government is a foreign sovereignty in so far as the citizens of Hew Jersey are concerned.

The oft repeated dictum that courts of one sovereignty will • not enforce the penal laws of a foreign sovereignty goes back to Chief Justice Marshall’s statement of the maxim of international law that “The courts of no country execute the penal laws of another.” The Antelope, 23 U. S. 66 (at p. 123), and to the case of Huntington v. Attril, 146 Id. 657; 13 S. Ct. 224, in which latter case the dispute was between the States of Hew York and Maryland over a penal statute of the State of Hew York.

The United States Constitution, article 6, paragraph 2, provides that the constitution and laws of the United States made in pursuance thereof, and all treaties under the authority of the United States, shall be the supreme law of the land, and all judges in every state shall be bound thereby. It would seem, therefore, that the laws of the United States passed agreeably to the constitution, are the laws of the several states and as binding on the citizens and the courts of the states as the state laws.

The United States government is not a foreign sovereignty as respects the several states but is a concurrent, and within its jurisdiction, a superior sovereignty. Every citizen of Hew Jersey is subject to two distinct sovereignties; that of Hew Jersey and that of the United States. The two together form one system and the two jurisdictions are not foreign to each other. See Claflin v. Houseman, 93 U. S. 130 (at p. 136). The ease of Huntington v. Attrill may be distinguished as applying only to two sovereign and independent states of the United States.

It is unfortunately true that the State of Hew Jersey had no say in the determination of whether the Emergency Price Control Act of 1942 was in fact in accordance with the United States Constitution, and its courts become merely mechanical adjuncts of the federal system. The fact remains, as I view it, that the sounder view is that the two jurisdictions are not foreign to each other.

The conclusion is that the courts of Hew Jersey, since the Congress has granted concurrent jurisdiction in the enforcement of the act, will entertain actions to enforce the penalties imposed under the Emergency Price Control Act, as amended.

The motion to strike the remaining counts of the complaint, for the reasons stated, is denied.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    LUCY DE CRESCENZI, PLAINTIFF, v. VERITAS POLITICAL CLUB, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided July 18, 1946.
    For the plaintiff, Joseph L. Kramer.

    For the defendant, John H. Deice.

   Brown, C. C. J.

The question presented for decision arises out of the defendant’s motion, in the above entitled cause, to strike the complaint on the ground that the Circuit Court is without jurisdiction to try the ease as it is a claim for a penalty based on a federal statute enacted on January 30th, 1942, entitled the Emergency Price Control Act, as amended June 30th, 194-4, under section 205(e) of said act, 50 U. S. 0. A. Appendix, §§ 901, et seq., 925 (e). The amount sought to be recovered is three times a monthly rent overcharge of $10 a month for the months of May, 1945, to the month of April, 1946, inclusive, amounting in all to $360, together with reasonable attorney’s fees and costs. The defendant relies upon a decision of the Court of Errors and Appeals of our state, Zuest v. Ingra et al., 134 N. J. L. 15; 45 Atl. Rep. (2d) 810, wherein it was held that a similar claim for a penalty under the federal statute was a suit for a penalty imposed by that statute and the state District Court, in which the action was brought, was without jurisdiction because the ación was founded upon a penalty not authorized by a law of this state. R. 8. 2:8-40; N. J. 8. A. 2:8-40. The defendant further contends that the same limitation applies to the Circuit Courts of our state and that these courts are without common law or statutory jurisdiction to try civil suits brought to recover penalties. The decision in Zuest v. Ingra, supra, relates particularly to a court of limited jurisdiction, that is, a state District Court which is evidently limited in its jurisdieton covering actions for penalties, to such as are authorized by a state statute. Our state Circuit Courts were constitutionally created in the ISTew Jersey Constitution of 1844, N. J. 8. A. It is therein provided:

“Article VI, section 1. The judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes as heretofore; a Court of Chancery; a Prerogative Court; a Supreme Court; Circuit Courts, and such inferior Courts as now exist, and as may be hereafter ordained and established by law; which Inferior Courts the Legislature may alter or abolish, as the public good shall require.”

It is apparent from this constitutional provision that a state District Court may be established, altered or abolished by the state legislature but not the Circuit Courts. They are courts created by the constitution and are unassailable by legislation in the jurisdiction which they exercised at the adoption of the constitution. C. R. R. v. Tunison, 55 N. J. L. 562; 27 Atl. Rep. 929. It is further provided in the state constitution of 1844:

“Article VI, section V. The Circuit Courts shall be held in every County of this State, by one or more of the Justices of the Supreme Court, or a judge appointed for that purpose ; and shall in all cases within the County, except those of a criminal nature, have common law jurisdiction, concurrent with the Supreme Court; and any final judgment of a Circuit Court may be docketed in the Supreme Court and shall operate as a judgment obtained in the Supreme Court from the time of such docketing.”

Subsequent amendments to the Constitution of 1844 do not affect article VI of that constitution. In construing the provisions of the 1844 constitution the general rules of construction as provided in B. 8. 1:1-1; N. J. S. A. 1:1-1, should be applied. They are in part as follows:

“In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language.”

Applying this rule to the provisions of the constitution it clearly appears that the state Cireuit Courts were constitutionally created and are courts of common law jurisdiction concurrent with the Supreme Court except in those cases of a “criminal nature.” The decision in Zuest v. Ingra, supra> applies to a District Court, a court of- limited jurisdiction, which is allowed jurisdiction on actions for penalties only where the penalties are provided under the laws of Hew Jersey. The federal act upon which the Zuest case was based did not cast jurisdiction upon the District Court but it does upon the Cireuit Court because of its common law jurisdiction. Bruen v. Ogden, 11 N. J. L. 370; Claflin v. Houseman, 93 U. S. 130; Pamph. L. 1942, ch. 104, p. 365; N. J. S. A. 2:98-23, 2:98-31.

The parties concerned with the motion, now being considered, make no claim that the case falls within the constitutional exception that it is of a “criminal nature” and that this court is without jurisdiction. The fact the suit is based upon a penalty does not make it of a “criminal nature.” The term “penalty” is equivalent to a pecuniary punishment by way of damages for a civil wrong. 30 Cyc. 1337. Sometimes the terms “penalty” and “fine” are considered in law as being the same. This construction is not strictly correct. A “penalty” is uniformly recoverable in a civil action. Brophy v. Perth Amboy, 44 N. J. L. 217; White v. Neptune City, 56 Id. 222; 28 Atl. Rep. 378; Unger v. Fanwood, 69 N. J. L. 548; 55 Atl. Rep. 42; Vanbueren v. Wildwood, 9 N. J. Mis. R. 187; 153 Atl. Rep. 260. A “fine” is rarely, if ever, recoverable in a civil action. A “penalty” when recovered, goes to the party suing; a “fine” to the state or a subdivision thereof. A “penalty” is fixed and absolute and when recovered is usually for the full amount. Nothing is left to the discretion of the court. Where a “fine” is imposed it is usually for a criminal offense and the court has much discretion and may impose a nominal amount by way of punishment. It is not uncommon for civil suits based upon penalties to be brought in the state Supreme Court as well as the Circuit Courts. Corlies v. Mayer Ice Machine Co., 17 N. J. L. J. 285; Oliver v. Larzaleer, 5 N. J. L. 513; Hays v. Storms, 64 Id. 514; 45 Atl. Rep. 809; see, also, Brophy v. Perth Amboy, supra, and cases cited thereunder. For the reasons above stated the motion to strike is denied and an order may be entered accordingly.