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

text:
    ANTONIO PISCITELLI, PLAINTIFF-APPELLANT, v. PENNSYLVANIA-READING SEASHORE LINES, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 13, 1950 —
    Decided December 20, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Edward V. Martino argued the cause for plaintiff-appellant.

      Mr. Blaine E. Capehart argued the cause for defendant-respondent (Messrs. Richards, Capehart, Smith & Wood, attorneys).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

Judgment dismissing the complaint was entered in the Chancery Division of the Superior Court on the ground that it was without jurisdiction to adjudicate the issues.

In his complaint the plaintiff alleged that while holding a permanent position as a highway crossing watchman he was discharged by the defendant in violation of seniority rights to which he was entitled under an agreement then in effect. This agreement was a collective bargaining agreement between the defendant company and the union, Pennsylvania Federation of the Brotherhood of Maintenance of Way Employees, lie sought reinstatement with back pay, restoration of seniority rights which he alleged were secured to him by this collective bargaining agreement, and restoration of retirement and pension rights. The issues as fixed by the pretrial order were (1) whether he held a permanent position, (2) if he held a permanent position, whether his seniority rights under the collective bargaining agreement were violated, and (3) whether the court had jurisdiction to interpret and apply the provisions of the collective bargaining agreement.

We agree with the court below that the jurisdiction of the National Railway Adjustment Board, under the Railway Labor Act (45 U. S. C. A., § 151, et seq.), to adjust grievances and disputes of the type here involved is exclusive. Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, 94 L. Ed. 795 (April 10, 1950), and Order of R. C. of A. v. Southern R. Co., 339 U. S. 255, 94 L. Ed. 811 (April 10, 1950).

The Slocum case involved a suit by a railroad company against two unions in a state court seeking a declaratory judgment interpreting the bargaining agreements and declaring which agreement covered the jobs in controversy. The Order of B. G. of A. case involved a suit by a railroad company against a union in a state court seeking a declaratory judgment interpreting the bargaining agreement and declaring that the agreement did not require the claimed extra pay. In both cases the United States Supreme Court held that the jurisdiction of the National Railway Adjustment Board to adjust grievances and disputes of the type involved is exclusive, and that state courts were without power to interpret the terms of such bargaining agreements and adjudicate the disputes. However, in the Slocum case the court, in speaking of the Railway Labor Act, went further and said: “The Act thus represents a considered effort on the part of Congress to provide effective and desirable administrative remedies for adjustment of railroad-employee disputes growing out of the interpretation of existing agreements.” After a discussion of its opinion in Order of R. Conductors v. Pitney, 326 U. S. 561, 90 L. Ed. 318, it continued: “This reasoning equally supports a denial of power in any court — state as well as federal — to invade the jurisdiction conferred on the Adjustment Board by the Railway Labor Act.” It then proceeded to distinguish its holding in Moore v. Illinois Central R. Co., 312 U. S. 630, 85 L. Ed. 1089 (1941), as follows: “Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the rail-’ road's action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees.”

Relying on the decisions of the United States Supreme Court in the Slocum and Order of R. C. of A. cases, the United States District Court of the Northern District of Ohio, in Kendall v. Pennsylvania R. Co., 94 F. Supp. 875, (August 7, 1950), held that it had no jurisdiction to entertain a suit by a discharged railroad employee seeking reinstatement and damages for his discharge on the ground that his seniority rights under the bargaining agreement were violated; and the New York Supreme Court (Special Term), in a similar case, Haggquist v. Hudson & Manhattan R. R., 27 L. R. R. M. 2002 (October 24, 1950), reached the same result.

To support his claim that the court below erred, plaintiff relies on Moore v. Illinois Central R. Co., above; Schlenk v. Lehigh Valley Railroad Co., 1 N. J. 131 (December 6, 1948), and Coyle v. Erie Railroad Company, 1 N. J. 350 (January 24, 1949).

In the Moore case, the United States Supreme Court held that the lower court had jurisdiction of an action at law by a discharged employee of a railroad company in which he sought damages for his wrongful discharge. In answer to the argument that Moore’s suit was prematurely brought because of his failure to exhaust the administrative remedies granted him by the Railway Labor Act, the court said: “But we find nothing in that Act which purports to take away from the courts the jurisdiction to determine a controversy over a wrongful discharge or to make an administrative finding a prerequisite to filing a suit in court.” However, this general language is no aid to the plaintiff, because of the restrictions placed upon it in the Slocum case, as shown by the quotation therefrom, above.

In the Schlenlc case, decided December 6,1948, our Supreme Court held the former Court of Chancery was without jurisdiction “to determine, either before or after the hearing and appeals provided for in this contract, the extent of the discipline the employer may impose as a condition of the employee remaining in his service or to curb the employer’s right to dismiss his employee.” In referring to a prior decree of the former Court of Chancery, which was not appealed from, the court said it was sound because “Where a contract exists, however, equity has the power, as it did here, to protect the complainant from the consequences of a hasty trial without being represented, in violation of the contractual provisions for ‘a fair hearing and investigation’ and appropriate representation thereat.” We note that the court also said: “Holding the view we do as to the lack of inherent jurisdiction of equity, we do not deem it necessary to pass on the question raised as to the necessity of the complainant exhausting his remedies before the National Eailroad Adjustment Board.”

In the Coyle case, decided January 24, 1949, our Supreme Court held that our former court of equity had jurisdiction in a case in which the employee alleged he had not been accorded a fair trial pursuant to the terms of the working agreement between the defendant railroad and the union, and on a finding that the defendant railroad had failed to comply with the terms of the contract in the investigation, that the court had power to set aside the discharge of the complainants and to order their reinstatement with back pay, retirement and pension rights, but only pending a proper investigation pursuant to the terms of the contract.

Unlike the complainants in the Schlenlc and Coyle cases, this plaintiff did not seek the aid of the Chancery Division to protect him from the consequences of a hasty trial without being represented, in violation of the contractual provisions for a hearing. What effect, if any, the Slocum and Order of R. C. of A. cases may have upon the Schlenk and Coyle cases is not before us, and we express no opinion thereon.

The plaintiff contends that the pleadings raised a justiciable controversy in the Law Division of the Superior Court, if not in the Chancery Division. Since he sought damages for illegal discharge, he may be permitted to amend his complaint so that it sets forth his choice to accept the defendant’s action in discharging him as final. Cf. Kendall v. Pennsylvania Railroad, above; Haggquist v. Hudson & Manhattan R. R., above.

The judgment is affirmed without prejudice to a motion by the plaintiff before the court below, within ten days after the remand of the record, to amend the complaint and to transfer the cause to the Law Division of the Superior Court.


source: Caselaw Access Project

author: Rogeks, J. A. D.

license: Public Domain

text:
    HELEN WILLLIAMS, PLAINTIFF-RESPONDENT, v. JOSEPHINE SANACORE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided January 3, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Emanuel Gersten argued the cause for the plaintiff-respondent (Mr. Edward E. Mishell, attorney).

      Mr. Edward T. Miller, attorney for and of counsel with defendant-appellant, argued the cause.
   The opinion of the court was delivered by ■

Rogeks, J. A. D.

Judgment for $1,000 was entered for plaintiff upon a jury verdict in her suit in the Superior Court, Law Division, Essex County, for recovery of the deposit paid under her contract with defendant for the purchase of real estate.

The appeal is from this judgment and seeks, inter alia, a review of the trial court’s denial of defendant’s motion for judgment made at the close of the evidence in the entire case.

Plaintiff’s claim was based upon her option under the contract to void it and to recover her down payment in the event that neither party to the agreement within six weeks from its date obtained a commitment for plaintiff for a $7,000 mortgage upon the described premises. That neither party obtained the required commitment within time is admitted. It is also admitted that the parties frequently discussed the procurement of the mortgage during the prescribed period and that plaintiff’s attorney requested and was granted permission to continue to seek the commitment even beyond the time afforded to plaintiff under the contract for the reason that she was the purchaser and the person who in the usual course would obtain the credit. The uncontroverted testimony is that the parties agreed verbally during the six-weeks’ term to extend the time for each to obtain the mortgage but no definite time extension was fixed. The attorney acting for plaintiff under the agreement testified to his discussions with defendant’s attorney in part as follows:

“We certainly discussed extension — Mr. Miller and myself. lie said he would extend it with me and I said I would extend it with him, * * *»
“I said, ‘Take a little more time on it. It’s all right with me.’ ”

A letter from defendant’s attorney to plaintiff’s attorney mentions an extension granted to plaintiff and her attorney testified to it being carried beyond that date at his request. It is also admitted that plaintiff made a written application for a mortgage commitment two days after the six-week period provided for in the contract. Despite the extension agreements and her own application made beyond the contract time, plaintiff one week later and. without previous warning- to defendant voided the contract and demanded the return of the deposit money upon the ground that the mortgage commitment had not been obtained in the six-weeks’ period.

The verbal agreements extending the time under the contract for obtaining the mortgage commitment were valid. Tompkins v. Tompkins, 21 N. J. Eq. 338 (Ch. 1871); Stryker v. Vanderbilt, 25 N. J. L. 482 (Sup. Ct. 1856); Kruger v. Mark, 135 N. J. Eq. 1 (Ch. 1944). The extension agreements were based upon mutual promises beneficial to the parties, an adequate consideration.

Defendant’s motion for judgment -at the close of all the evidence is to be tested by ascertaining whether a prima facie case appears upon considering all evidence adduced by plaintiff and all reasonable inferences therefrom in the light most favorable to plaintiff’s claim together with all of the uncontroverted evidence submitted by defendant. The evidence presented no issue for the jury. The only matter before the court was the legal question of the effect of the extension agreements upon plaintiff’s option under the contract to void it and to demand the return of her deposit.

It is clear that defendant’s motion for judgment should have been granted. With this disposition of the case the other grounds argued on the appeal need not be considered.

The judgment under review is reversed and judgment may Ite entered for defendant pursuant to her motion.


author: MacLeod, J. C. C.

text:
    SYDNEY G. STEIKER, ET AL., PLAINTIFF, v. PHILADELPHIA NATIONAL INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided December 6, 1950.

      Mr. Archibald Kreiger, attorney for. the plaintiffs.

      Messrs. Lum, Fairlie & Foster, Mr. John S. Foster, appearing, attorneys for the defendant.
   MacLeod, J. C. C.

This matter comes before the court, pursuant to Rule 3 :38-l, waiving a jury trial, and stipulation of submission concerning the facts, and a determination of the law as it applies to those facts.

This is a suit to recover damages as the result of a fire loss, occurring on October 27, 1948, sustained by the plaintiffs under two contracts of insurance numbered A-161 and A-162 .issued by the defendant.

It is admitted that on October 27, 1948, a fire occurred at 75 River Street, Paterson, New Jersey, and personal property owned by the plaintiffs was destroyed and damaged. It is also admitted that there was in force and effect at the time of said fire two policies of insurance issued by the defendant and that if the plaintiffs are entitled to recover, the verdict should be $25,000 with interest from December 27, 1948.

It is further agreed that the depositions of plaintiffs and witnesses and answers to interrogatories given by the plaintiffs to questions propounded by defendant are to bf considered as evidence in this case, where relevant.

The defendant contends that from the facts submitted there was no coverage for this loss, pursuant to the terms of the two contracts of insurance. It charges that the policies do not cover:

“2. (a) Automobiles while in any building or premises occupied by the insured as a factory or assembly plant and * * *
“10. Except where specifically stated lo the contrary, the word ‘automobile’ wherever used in this policy shall mean the motor vehicle, trailer or semi-trailer described in this policy. The word ‘automobile’ shall also include its equipment and other equipment permanently attached thereto, * *

The defendant argues that the insured premises at the time of the fire was an assembly plant, and further states that the chattels damaged or destroyed were not automobiles, its equipment and other equipment permanently attached thereto.

In determining the first point raised, my examination of the proof submitted pursuant to the stipulation, reveals that the plaintiffs carry on a very extensive business, dealing in pleasure cars, motor trucks and auto truck equipment, covering many locations in Paterson and the immediate area. The insured premises (75 River Street, Paterson, New Jersey) was used for mounting truck bodies, storage, display of motorcycles and truck equipment with woodworking machinery located in the rear. Other buildings owned by the plaintiffs, which adjoined the insured premises involved in this suit, were used generally for storage and display of trailers, trucks, truck equipment, general offices, garage and service station for body and fender work.

The policies in question cover many locations owned by the plaintiffs and the loss liability of the defendant is limited to specific amounts at each location.

The, evidence also shows that the plaintiffs purchased new and used motor trucks chassis, which were stored in different locations owned by the plaintiffs. At the same time or immediately thereafter, prefabricated wooden and metal bodies, specifically adapted to the truck chassis, would be purchased and allocated to that particular truck. In other words, the plaintiffs owned a particular truck chassis with a specific prefabricated body ready to be attached in the event of sale. The plaintiffs used this method of operation so that they could save space and prevent theft of parts and equipment.

The words “assembly plant” must be taken and understood in their plain, ordinary and popular sense. The mere attachment of a prefabricated body to a truck chassis was never intended to mean “assembly plant.” Neither counsel for plaintiffs or defendant have submitted any decision in this State or elsewhere construing the words “assembly plant.”

I have carefully considered the evidence submitted for the purpose of determining whether the premises in question can be, considered an “assembly plant” within the meaning of the policies. The activity of the plaintiffs does not lend to this interpretation.

The activities of the plaintiffs in placing a truck body on a chassis were incidental to their business. They were interested in selling trucks as a unit and in so doing they stored the truck body in one place and the chassis in another. When a sale was made the allocated body was mounted to the chassis so that the purchaser received a completed automobile truck.

This court must adopt the view that the activities performed by the plaintiffs were never intended to include the premises in question as an “assembly plant.” It, therefore, follows that the plaintiffs do not come within the exclusive clause as stipulated under paragraph 7(a) of the stipulation of submission.

I find that 75 River Street, Paterson, New Jersey, was not used as an assembly plant.

The second and final point for determination is as follows: “7(b) Do the items for which the plaintiffs now make claim, when not physically attached to a chassis at the time of the fire come within the term ‘automobile’ as that term is defined in the policies?”

The defendant denies liability on this question. It argues that the word “automobile” as defined in the policies was intended to mean equipment physically attached thereto. The equipment involved in this loss was not physically attached and therefore it is not responsible.

The facts, as to this point, show that the items destroyed or damaged were motorcycle tops and curtains, motorcycle panel bodies, prefabricated wooden panel bodies for trucks, metal dump bodies, etc.

The uncontradicted evidence of the plaintiffs discloses that each particular piece of equipment destroyed or damaged was allocated to a particular automobile and became part of that automobile when it was sold, even though not physically attached. Certain items were removed from a chassis at the time of their purchase by the plaintiffs and stored at 75 Iliver Street. At the time of sale by the plaintiffs, these items were then placed back on the chassis. Complete records were kept by the plaintiffs, disclosing what equipment belonged to each chassis and so earmarked. Schedules were made out for each particular truck and a marking with a tag was placed on a body, appropriating it for that particular chassis.

A careful reading of the stipulated exhibits fully discloses the operations of the plaintiffs in their method of allocation. While it is true that the equipment was not physically attached or annexed to the chassis, this court is of the opinion that “physical annexation to the chassis” was not required.

Plaintiffs apparently did not have the necessary space at Iliver Street to store all the trucks with mounted bodies, nor did they desire to expose the completed units with bodies mounted and equipment attached on the open lots, for fear of theft. According to their method of operation, each item necessary for a completed automobile truck was ready for installation, whenever a sale was made.

There is nothing in the policies that require this court to read into them an intention of “physical attachment.” A liberal and broad approach should be taken as to the words “Automobile shall also include its equipment and other equipment permanently attached thereto.” Words will not be tortured out of their usual or accepted meaning. Jasion v. Preferred Accident Insurance Co. of N. Y., 113 N. J. L. 108 (E. & A. 1934).

The policies in question should be given a reasonable construction to effectuate the purpose and intent of the parties for which it was made. It is a familiar rule that where something in a policy needs to be construed, the language not being the language of the insured but the language of the insurer, a construction most advantageous to the insured, not doing violence to the wording will be adopted. Nickolopulos v. Equitable Life Assurance Society, 113 N. J. L. 450, 456 (E. & A. 1934).

The court, therefore, finds that the items damaged and destroyed were in each instance a part of a .particular automobile, although not physically attached, so that the same constituted, within the meaning of the policies, “its equipment and other equipment permanently attached thereto.”

In view of this finding it will not be necessary to determine the rights of the United States Trust Company of Paterson.

Judgment should, therefore, be entered in favor of the plaintiffs and against the defendant for the amount stipulated.

Submit a determination of facts and conclusion of law upon notice.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS STEPHENSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided December 28, 1950.
    Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Thomas Stephenson, pro se.

      Mr. Walter G. Winne, Prosecutor of Bergen County, argued the cause for respondent.
   Per Curiam.

This appeal is stated to be an appeal from an order of the Mercer County Court “Discharging and refusing Writ of habeas corpus — dated September 20, 1950.”

On appeal to this court, our rules require the appellant to furnish an appendix which must contain a copy of the judgment, order or determination appealed from or sought to be reviewed or enforced and a .copy of the pleadings, and also a copy of such parts of the record material to the questions presented as the appellant desires the court to read. Rules 1:3-l and 1:3-2 (f). None of this vital information is before us. The appellant supplies only a “brief on appeal” and this brief does not comply with the requirements of Rule 1:3-2.

While we fully realize the difficulties in which one not a lawyer, who appears pro se, finds himself in an appeal to this court, and while we desire to make every possible allowance in such a case, it must be obvious to anyone that this court cannot reverse, affirm or modify a judgment, order or determination without knowing the contents thereof.

Disregarding the failure to supply any appendix, and all technical irregularities, we gather from the papers submitted that the appellant entered a plea of non vult before the Bergen County Court of Special Sessions on July 8, 1942, to two allegations of armed robbery and one allegation of carrying a concealed weapon. He was sentenced on July 15, 1942, to not less than ten years and not more than fifteen years on each allegation for armed robbery, to run consecutively, and to not less than two years or more than three years on the the allegation of carrying a concealed weapon, to run concurrently with the other sentence. Appellant states in his brief: “Petitioner claims he was appointed and commissioned as a Federal Officer on Jan. 20th, 1942; that his title and position was then and subsequently as follows: Chief, Division of Counter-Espionage, Executive Department, United States Government. His salary as such was designated to be $6,000.00 per year plus expenses. He received the monthly salary payments of $500.00 on February 20th, 1942, March 20th, 1942, April 20th, 1942, May 20th and June 20th, 1942. Since the latter date he did not receive any notice of separation or termination which would have lead him to believe his services with the Federal Government were terminated subsequent to June 21st, 1942, the date of his arrest in Lyndhurst, New Jersey.”

His claim here, as it was below, is that he is illegally imprisoned in the State Prison because “the petitioner identified himself as being a federal officer who claims to have had immunity from prosecution by State Authorities upon his arrest by the Lyndhurst Police on June 21st, 1942.”

The federal courts afford protection to federal officers in certain cases; for instance, by way of removal to the federal courts of criminal prosecutions commenced in a state court for acts done under color of such federal office or on account of any right, title or authority claimed under any act of Congress for the apprehension or punishment of criminals or the collection of revenue (28 U. S. C. A., § 1442), and by way of habeas corpus where the federal officer is in custody for an act done or omitted in pursuance of an act of Congress or an order, process, judgment or decree of a court or judge of the United States (28 U. S. C. A., § 2241). It is apparent that this appellant has knowledge that the federal courts afford protection in certain cases, because he made a motion before the United States Supreme Court for leave to file a petition for a writ of habeas corpus. We note that this motion was denied on October 9, 1950. Thomas Stephenson v. Page, Warden,-U. S.-, 95 L. Ed. 17 (1950).

Even if we assume that habeas corpus in our state courts is an available remedy in a proper case to one seeking protection as a federal officer in the custody of state authorities, and we accept as true the claim made by this appellant, the denial of his application for a writ of habeas corpus was proper. Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law. Colorado v. Symes, 286 U. S. 510, 76 L. Ed. 1253 (1932).

The appeal is dismissed.


author: Bigelow, J. A. D.

text:
    CARMELO CRESPO, PLAINTIFF-RESPONDENT, v. ROBERT H. LIPSCHUTZ, AND ANOTHER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided December 28, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Edward, Fishman argued the cause for the respondent.

      Mr. G. Arthur Bolte argued the cause for the appellant Eobert H. Lipschutz (Messrs. Bolte & Repetto, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The argument for the defendant-appellant leads to a single question: Was the verdict, either as to liability or as to amount of damages, against the weight of the evidence? The plaintiff was riding a bicycle along the White Horse Pike at Hammonton at night — about one A. M.— when defendant, driving an automobile in the same direction, overtook and ran into him. It is for the injuries thus inflicted that plaintiff sues. Let us reverse the logical order and consider first contributory negligence.

Plaintiff had a passenger seated on the rear mudguard, in violation of the Traffic Law, B. S. 39:4-12. But there was no proof that the bicycle wobbled in its path or other evidence that the presence of a man on the mudguard was a contributing cause of the accident. The accident happened near Holiday Inn, where plaintiff met his companion. The bicycle had traveled only about 125 feet from the point in front of the Inn where plaintiff mounted it, before it was struck by the automobile. The jury might have inferred that if plaintiff had looked carefully to his left just before starting to pedal along the highway, he would have seen defendant’s car at hand and avoided the collision. But plaintiff testified he did look and saw only one car and that at what seemed a safe distance, namely, at a certain traffic light which was proved to be four-tenths of a mile distant. Apparently the jury believed him. The White Horse Pike at Hammonton is a three-lane highway. Plaintiff was riding in the right-hand lane. There is some evidence that just before his bicycle was struck, he turned toward his left — perhaps to avoid the car he heard behind him — and that the impact occurred in the center lane, as defendant had also swerved to the left. But evidence of equal or greater weight indicates that plaintiff did not veer to his left but was hit while still riding straight ahead in the right-hand lane.

The most serious question of contributory negligence is presented by the fact that plaintiff had no light on his bicycle as required by B. S. 39:4-10. The Pike is a heavily traveled highway and the accident occurred late on a Saturday night — or rather early on Sunday morning, in August. The plaintiff’s negligence cannot be doubted. But did it contribute to bringing about the accident? That was peculiarly a jury question. S. Kosson & Sons v. Union Bldg., etc., Co., 108 N. J. L. 111 (E. & A. 1930). There aTe street lights, staggered, along the White Horse Pike in this neighborhood, each on an arm extending to the middle of the nearest lane. One of these lights was over the lane where the plaintiff was riding and 25 feet or so south (the parties were traveling northward) of the point of collision. Police Officer Patton testified that the street light “Gives a high light there, also this one and this one (he points to a sketch map), got the whole Pike lit up, got light reflection down on the road all the way along there.” The Holiday Inn also carried strong lights that shone on the highway.

With the proofs in this state, the court charged the jury, “A plaintiff will be barred from recovery where his negligence contributed to the injury in such a way that if he had not been negligent, he would have received no injury from the act of the defendant.” And again, “The failure of the plaintiff to have lights on his bicycle is a violation of the Traffic Act. Such a violation is not negligence per se, but is only a circumstance to be considered by you in determining from all the facts and circumstances w'hether the plaintiff was negligent, and whether such negligence was the proximate cause of the accident.”

One might conclude that even though defendant was driving his ear with scant attention to the road in front, yet the red gleam of a tail light on the bicycle would have caught his eye in time for him to avoid striking plaintiff. Or reasonable men might hold to the contrary that on a road as well lighted as the White Horse Pike at Hammonton, a light on the bicycle would not have materially altered the situation, and that the absence of the light was not one of the factors that brought on the accident. If different minds may honestly draw from the evidence different conclusions as to the cause o£ the accident, the solution of the question belongs to the jury. Ferguson v. Central R. R. Co., 71 N. J. L. 647 (E. & A. 1905); Garlanger v. Burlington, etc., Co., 86 N. J. L. 359 (E. & A. 1914). Where an issue of facts depends principally on permissible inferences drawn from the testimony, the verdict is not normally subject to interference. Smith v. P. Lorillard Co., 67 N. J. L. 361 (Sup. Ct. 1902); Queen v. Jennings, 93 N. J. L. 353 (Sup. Ct. 1919). While the question is close, we decline to disturb the verdict on 'the ground that plaintiff’s negligence contributed to the happening.

There were firm bases for finding defendant negligent: The excessive speed deducible from the distance his car traversed, while the bicycle covered only 125 feet. The defendant’s failure to notice the bicycle in front of him until he was within a few feet of it.

In our opinion, the evidence sustains placing liability on the defendant. Now as to damages. The verdict was $10,000, of which $2,500 or a little more may be allocated to medical expenses and loss of earnings to the time of trial. Allocate $1,500 to pain and past and future discomfort and other non-pecuniary damage. That leaves $6,000.

Plaintiff had a permanent injury estimated at a 15 to 20 per cent disability of his left leg. His leg is weaker and the knee joint stiff. “I think that if he were to be required to do prolonged laborious work, that he would get distress referable to his left knee as long as he lives.” Plaintiff was a farm laborer before the accident, and will now probably have to find some other kind of employment. Besides the injury to his leg, there was evidence that he suffered a 20 per cent loss of hearing of one ear, and a very slight loss of hearing through the other. The man was 28 years old at the time of trial. He had been earning $6 a day for a 10-hour day, but his work — or at least the rate of pay — was seasonal. The sum of $6,000 at age 28 is the present value of an annuity of $280 a year, or $5.40 a week, according to the tables contained in the court rules. Say, 15 per cent- of the wages he used to he paid.

The verdict is not excessive. Jiidgment affirmed with costs.


author: William J. Brennan, Jr., J. A. D.

text:
    IRVING SOLOMON, PLAINTIFF-RESPONDENT, v. MICHAEL E. GOLDBERG, DORIS N. GOLDBERG, DEFENDANTS-APPELLANTS, AND ELEANOR HOLDING CO., DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950 —
    Decided December 28, 1950.

      .Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Abram A. Lebson argued the cause for respondent.

      Mr. Harry Chashin argued the cause for appellants (Messrs. Marcus & Levy, attorneys).
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

Plaintiff’s complaint was brought in the Chancery Division and sought an accounting for one-half of the net profits realized by the individual defendants from the sale of lands title to which was in the corporate defendant, their personal holding corporation. Plaintiff obtained a judgment against the individual defendants who have appealed.

Plaintiff and defendant-appellants are next door neighbors in Englewood. Defendant Michael E. Goldberg is in the lumber business. In 1946 Goldberg was in the market for a lumber yard and plaintiff located one in Cresskill and, as a favor to Goldberg and without any understanding he was to be compensated for his services, negotiated its purchase for Goldberg who took title December 20, 1946, in the name of defendant Eleanor Holding Company, the personal holding corporation.

A few months later Goldberg decided to sell the property. Plaintiff testified Goldberg came to him and proposed plaintiff try to find a buyer, “I would like to get my money back.” Plaintiff told Goldberg he thought the property was “worth at least three times the price you paid for it,” and Goldberg said, “If you feel that way about it, let’s go partners;” “You don’t have to put anything up;” “You go ahead and see what you can get for that property, and everything over and above my costs, we are fifty-fifty.” The property was sold largely through plaintiff’s efforts and defendants realized a net profit of $6,772.70. It is the alleged breach of the oral agreement to divide this profit which is the subject of plaintiff’s action.

Defendants argue the judgment cannot he sustained because the contract is a real estate brokerage agreement and plaintiff can have no action for its breach for the reasons, (1) plaintiff was not a licensed real estate broker authorized to conduct the transaction as required by R. 8. 45:15-1 et seq., and (2) the oral contract was not confirmed by a writing in the manner required by the statute of frauds, R. 8. 25 :1 — 9.

Plaintiff admitted at the trial he was not a licensed real estate broker. We agree 'the contract was a brokerage agreement for breach of which plaintiff as an unlicensed broker can have no recovery and that the judgment must be reversed. We have no occasion, therefore, to consider the question of the contract’s enforceability in light of the statute of frauds.

Plaintiff’s services were limited to the listing of the property with a number of brokers as available for sale and of conducting negotiations with the ultimate purchaser. The trial court in its opinion filed January 20, 1950, found plaintiff’s services were intended to he and were in fact confined to “his efforts in selling the property.” Thus plaintiff’s services actual and contemplated were only such as are performed by a mere broker within the definition of broker found in R. 8. 45:15 — 3, “* * * a person * * * who for a fee, commission or other valuable consideration, lists for sale, sells * * * or offers or attempts to negotiate a sale * * * of real estate * * * for others.” The measure of his compensation upon a profit-sharing basis, as-distinct from a percentage commission, does not save the contract from classification as a brokerage agreement. Mendles v. Danish, 74 N. J. L. 333 (Sup. Ct. 1907).

Plaintiff maintains R. S. 45:15-4 applies. This section excepts from the licensing provisions “* * * any person, firm, partnership, association or corporation who, as a bona fide owner or lessor, shall perform any of the aforesaid acts with reference to property owned by him. * * The proofs established the property was owned by defendants through their nominee, the personal holding corporation. Plaintiff had no ownership in the property and manifestly he cannot bring himself within this exception. Annotations, 137.A. L. R. 6, at p. 125; see Gingarelli v. Gingarelli, 124 N. J. L. 299 (Sup. Ct. 1940).

Moreover, plaintiff does not come under the protection of the decisions holding that real estate brokerage licenses are not necessary where services beyond those of a mere broker are to be performed. Agreements requiring services beyond the mere listing for and negotiating of sale of the real estate of another may be actionable when the facts support an inference the one rendering these services is not a mere broker but a promoter; Montgomery v. East Ridgelawn Cemetery, 189 Misc. 99, 68 N. Y. S. 2d 836 (Sup. Ct. 1947); affirmed, 75 N. Y. S. 2d 287 (App. Div. 1946), construing R. S. 45 :15-3 of New Jersey statute; or a developer whose services also require him to improve the owner’s lands, Ruta v. Werner, 1 N. J. Super. 455 (Ch. 1948); or whose agreement is with another broker in a joint promotion venture to sell lands of a real estate development company. Chew v. Markheim, 125 N. J. L. 595 (Sup. Ct. 1941).

The services plaintiff was to render and in fact rendered under this agreement were such that a real estate broker’s license was, under the public policy of this State, a condition precedent to the maintenance by plaintiff of an action for his compensation. Corson v. Keane, 4 N. J. 221 (1950) ; Kenney v. Paterson Milk & Cream Co., 110 N. J. L. 141 (E. & A. 1933).

There is, however, the question whether the defense could be availed of by defendants at the time they first raised it in the court below. It was not affirmatively pleaded in the answer under Rule 3 :8 — 3. The answer was a general denial of the making of any agreement. No motion to amend the answer to plead the defense was made at the pretrial conference. The pretrial order was made June 9, 1949, and, so far as pertinent here, provided the issue to be determined at the trial was whether there existed any. “agreement between the parties to share the profits of the sale equally.” The trial transcript discloses no application to amend or suggestion by defendants of reliance on this defense made during the trial. It was only after the trial judge filed his opinion January 20, 1950, finding against defendants on the issue whether there was an agreement that defendants employed new counsel who, about two months later and six months after the trial, for the first time raised the question.

On March 17, 1950, the defendants, upon motion duly noticed, applied to the trial judge for an order, among other things, vacating the “decision” and “directing judgment in favor of the defendants” or, alternatively, granting a new trial with leave to amend the answer in manner evidenced in tendered written amendments (see Grobart v. Society, etc., Useful Manufactures, 2 N. J. 136 (1949)), among others, pleading as an affirmative defense that the oral agreement was “in violation of Title 45, Chapter 15, Sections 1, 2 and 3 of the Revised Statutes,” “and is, therefore, void, illegal and unenforceable.” The motion was denied by order entered March 20, 1950.

On March 24, 1950, an interlocutory judgment was entered on the January 20th opinion adjudging defendants’ liability, but not assessing the amount of damages; final judgment was entered April 21, 1950.

Litigants will not generally be permitted after trial to challenge the result upon a theory of law different from that upon which they submitted the case for determination. See Sensfelder v. Stokes, 69 N. J. L. 86 (Sup. Ct. 1903); DeBennedetto v. Friedman, 102 N. J. L. 161 (E. & A. 1925). Buie 3 :16, governing pretrial procedure, as it read at the time of the trial, expressly provided, moreover, the pretrial order should control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. Jenkins v. Devine Foods, Inc., 3 N. J. 450 (1950); Anderson v. Modica, 4 N. J. 383 (1950).

Defendants’ motion in the circumstances would normally be viewed as having come too late. We are, however, concerned here not alone with the rights of the parties inter sese; there is a consideration of public policy involved in the enforceability of this contract, and this factor constrains us to believe the general principle should not be applied in this case. The public policy of this State is not to lend unlicensed brokers the aid of the courts to enforce their brokerage agreements. Corson v. Keane, supra; Kenney v. Paterson Milk & Cream Co., supra; see Gionti v. Crown Motor Freight Co., 128 N. J. L. 407, 411 (E. & A. 1942); cf. Modern Industrial Bank v. Taub, 134 N. J. L. 260 (E. & A. 1946).

So, inasmuch as the controlling effect of the defense under R. S. 45 :15 was raised before the entry of either judgment adjudicating the rights of the parties, Kushinsky v. Samuelson, 142 N. J. Eq. 729 (E. & A. 1948), we think defendants’ motion for judgment in their favor should have been granted in the interest of the due administration of justice and in furtherance of this public policy. Cf. McCabe v. Kupper, 4 N. J. Super. 178 (App. Div. 1949).

Plaintiff argues finally the appeal should be dismissed because the notice of appeal was served and filed more than 30 days after the entry of the interlocutory judgment. The argument is not well founded. The interlocutory judgment was not appealable; it is not within the defined interlocutory judgments appealable under Rule 4:2 — 2. The appeal was properly taken from the final judgment. Rules 1:2-5 (b) and 4:2-5.

Eeversed and returned to the Chancery Division with direction to enter judgment for defendants.


text:
    JAMES GIACCHI, PETITIONER-RESPONDENT, v. RICHMOND BROTHERS COMPANY, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided January 2, 1951.
    Opinion adhered to on rehearing. See 79 A. 2d 488..

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Walter X. Trumbull argued the cause for petitionerappellee (Mr. Francis Nunziant on the brief).

      Mr. Isidor Kalisch argued the cause for respondent-appellani (Messrs. Kalisch & Kalisch, attorneys).
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

This is a workmen’s compensation case. The employee suffered injuries in an accident on May 17, 1941. His original claim petition eventuated in an award dated November 16, 1943, fixing his permanent disability at 50 % of total. His second claim petition, seeking an award for increased disability, resulted in an award made July 27, 1948, based on a finding his permanent disability at that time was 60% of total. His third claim petition, which gave rise to this appeal, sought an allowance for an alleged further increase in disability, and on February 27, 1950, an award was made in the Division of Workmen’s Compensation based on a finding his disability was 100%, permanent total. The Essex County Court affirmed by its judgment entered June 22, 1950, from which judgment the employer appeals.

The single question argued is whether the concurring finding of permanent total disability by the Division of Workmen’s Compensation and the County Court was supported by sufficient evidence that the employee’s incapacity had increased so as to warrant a judgment based on such finding.

While this court will not exercise its discretionary power under Rule 3:81-13 (cf. Rules 1:2-20 and 4:2-6) to overthrow a factual finding separately arrived at in a workmen’s compensation case by two independent tribunals and based upon'sufficient evidence (Giresi v. E. I. duPont deNemours & Co., Inc., 7 N. J. Super. 41 (App. Div. 1950); Coronato v. Public Service Coordinated Transport, 4 N. J. Super. 1 (App. Div. 1949)), we will reverse when we are satisfied the finding is not supported by sufficient evidence. See Cirillo v. United Engineers & Constructors, Inc., 121 N. J. L. 511 (E. & A. 1938).

The burden of proof of an employee seeking an award for increased disability is not satisfied by proof merely of his present absolute impairment but he must show by sufficient evidence a causally connected increase additional to the impairment adjudicated in the last determination. Cirillo v. United Engineers Constructors, Inc., supra; Hopler v. Hill City Coal & Lumber Co., 5 N. J. 466 (1950). Our examination of the record here satisfies us the employee did not meet this burden in this case.

Dr. t Goldberg was the employee’s only medical witness. He had first examined the employee December 11, 1947, after the first award and had expressed his opinion at the hearing on the second petition that the employee’s permanent disability was 75% of total. At the hearing on the instant petition he stated his opinion there had been an increase in permanent disability since that time of “approximately” 25% of total, meaning of 25% over the 75% he had testified to at the earlier hearing. lie stated, however, that a part of the increased incapacity was attributable to a developing arteriosclerotic condition and a vascular disease neither of which, as he admitted, was causally related to the accident. When pressed to say what part of the 25% increase in disability was attributed by him to the arteriosclerotic and vascular conditions, he testified, “It would be hard to separate that,” a “minor part,” “I think the majority of it (the increase) is related to the accident and its subsequent effects.”

Plainly the doctor affirmatively disclaimed that the increased disability which he found was wholly the consequence of the accident, and thus his testimony was not sufficient evidence to support the finding of the two tribunals that the employee is now permanently totally disabled as a result of the injuries which he received May 17, 1941. The employer cannot be required to bear the burden of any part of that disability not attributable to the accident.

We have noted the comment of the Deputy Director in his findings of fact and determination, “I had an opportunity to observe the petitioner at the time of the hearing and it was obvious that he is a sick man. His voice is shaky, he had tremors of the hand and body, and he sat on the end of the witness chair in apparent discomfort.” The Deputy Director had also presided at the hearing on the previous petition. His conclusions from his observations of the employee do not, however, supply the deficiency apparent in the employee’s proofs of evidence causally connecting the whole of the awarded increase in disability to the accident.

The employee’s case was not aided, we note, by the testimony of the employer’s witness, Dr. Kinley, or by the report of Dr. Ehrlich put in evidence by consent. The former testified, “there had been a change for the better” in the- employee’s condition since the witness’ examination of him before the previous award, and the latter stated his opinion to be “there is no increase in his permanent disability.”

The evidence is not only insufficient to sustain the finding made, but is also insufficient to sustain a finding of any specific or particular increase in permanent disability causally eonnnected with the accident. While we regret the necessity to remand and would desire to arrive at an independent finding, Rule 3 :81 — 13, we have no recourse in the state of the proofs but to remand for a rehearing and a new determination on the petition filed August 6, 1949.

We point out for the guidance of the Division of Workmen’s Compensation that the measure of the causally connected increase, if any, in permanent disability must be expressed in terms of an after-occurring increase additional to the 60% permanent partial disability adjudicated by the determination entered July 27, 1948, and must be based upon evidence which compares the employee’s condition at that time with his condition at the present time. Hopler v. Hill City Coal & Lumber Co., supra.

Reversed and remanded to the Division of Workmen’s Compensation for rehearing and a new determination on the petition filed August 6, 1949. No costs.


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

text:
    FLORENCE B. SLOCUM, DIRECTOR OF UNION COUNTY WELFARE BOARD, PLAINTIFF-RESPONDENT, v. JOHN KRUPY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided January 5, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Nathan Reibel argued the cause for the appellant.

      Mr. Victor H. Eichhorn argued the cause for the respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The defendant seeks to have an order of the Juvenile and Domestic Eelations Court of Dnion County, directing that he contribute the sum of $20 per month towards the support of his indigent father, set aside on the ground that during his minority his father had abandoned and deserted and failed to support him. See R. 8. 44:7-19.

The Old Age Assistance Act of 1936 provided that it shall be the duty of the Director of the County Welfare Board to ascertain the applicant’s relatives chargeable by law for his support and compel them to render assistance. P. L. 1936, c. 31, p. 63. It further provided that in the event any relative responsible for the applicant’s support failed to perform the Director’s order, the Court of Common Pleas, upon complaint, was authorized to summon the defendant and order payment of such amount as the circumstances may require. In the general statutory revision of 1937 the foregoing was embodied in R. 8. 44:7 — 19. In 1938 the Court of Common Pleas was authorized to initiate the proceeding upon certification from the Director and its jurisdiction was made state-wide. P. L. 1938, c. 361, p. 911. In 1940 the Legislature, in several enactments, expressed the general policy that a child deserted during his minority by his parent may be excused from supporting him (P. L. 1940, cc. 55, 56, 57) and in accordance with this policy the Court of Common Pleas was authorized in a proviso in R. 8. 44:7-19, to revoke the Director’s order for support or reduce its amount where it appeared that the child “was abandoned and deserted and said applicant failed to support and maintain” him during his minority.

In 1943, R. S. 44:7-19 was again amended. P. L. 1943, c. 164, p. 479. At this time the Legislature evidently contemplated vesting the Court of Juvenile and Domestic Relations with full authority, concurrent with the Court of Common Pleas, to entertain proceedings against children to compel support of their indigent parents. Thus it expressly enacted that either the Court of Common Pleas or the Court of Juvenile and Domestic Relations upon certification by the Director could summon the defendant, conduct the necessary proceedings, and enter an appropriate order for such support as the circumstances may require in the court’s discretion. Inadvertently, the proviso in R. 8. 44:7-19 was not specifically altered to include reference to the Court of Juvenile and Domestic Relations but the legislative intent, apparent from the entire enactment, seems sufficiently clear to justify supplying the omission. Orvil v. Woodcliff, 64 N. J. L. 286, 289 (E. & A. 1900); Wagner v. County Employees Pension Commission, 130 N. J. L. 230, 234 (E. & A. 1943). In actual practice (cf. Burlington County v. Martin, 129 N. J. L. 92, 93 (E. & A. 1942); Martini v. Civil Service Commission, 129 N. J. L. 599, 603 (Sup. Ct. 1943)), the Court of Juvenile and Domestic Relations construed the pertinent enactments as vesting it with adequate power under the proviso and the propriety of this construction is not questioned by the parties. See R. 8. 9:18-14(c). Indeed, denial of the power would lead to the incongruous situation in which the Court of Juvenile and Domestic Relations would be compelled to enter an order for support without regard to the legislative policy and the Court of Common Pleas, now the County Court, would be authorized to disregard the proceedings in the Court of Juvenile and Domestic Relations and invoke the legislative policy upon a direct application to enforce or review the original order of the Director. See Giordano v. City Commission of the City of Newark, 2 N. J. 585, 594 (1949), where our Supreme Court recently restated the principle that where a literal interpretation of the statute “would lead to anomalous or absurd results, the spirit of the law controls the letter.”

In the instant matter, the statement under Rule 1:2-23 of the proceedings before the Court of Juvenile and Domestic Relations discloses that pursuant to written certification from the Director of Welfare the defendant, a relative who had failed to perform the order of the Director with regard to the support of his applicant father, was directed by summons to appear before the court. On the return day there was testimony by the Director, the defendant and his brother. The defendant at that time contended that he should not be subjected to an order for support because of his father’s conduct towards him as a child but the court on Eebruary 23, 1950, ordered that he contribute $15 per month towards his father’s support. Thereafter counsel for the defendant requested a rehearing which was granted. At the rehearing the defendant testified that at the age of 12 he was committed to the State Home for Boys at Jamesburg on his father’s complaint, thereafter he was released and later recommitted, and when ultimately released, placement and employment were obtained for him away from home. His testimony further indicated that his father had not adequately supported their family, which included five children, and consequently his mother had been obliged to work from time to time to aid in their support. The record discloses that in June, 1923, a complaint was filed by the defendant’s father for incorrigibility and the defendant was committed to the State Home for Boys at Jamesburg upon order of a judge of the Court of Common Pleas. On April 13, 1950, the Court of Juvenile and Domestic Relations determined that the evidence did not establish abandonment and desertion and failure to support within the proviso in B. S. 44:7-19 and ordered that the defendant pay $20 per month towards his father’s maintenance. Notice of appeal to the Appellate Division from this order was filed on May 11, 1950.

On May 11, 1950, the defendant also filed a notice that She would apply to the Union County Court for an order revoking or modifying the order of the Court of Juvenile and Domestic Relations, and the accompanying affidavits largely restated the facts which had been presented to the Court of Juvenile and Domestic Relations. On May 19, 1950, the Union County Court denied the application and notice of appeal to the Appellate Division from this denial was filed on June 7, 1950. We find no authority for this phase of the proceedings. Appeals in causes determined by the Court of Juvenile and Domestic Relations are taken directly to the Appellate Division and not to the County Court. See Buie 6 :2-5. The proviso in B. S. 44:7-19 upon which the defendant relied authorizes the County Court in a proceeding properly initiated directly in that court to revoke or modify an order of the Director; it contains no suggestion of authority in the County Court to review an order of the Court of Juvenile and Domestic Relations.

The defendant contends that the proceedings before the Court of Juvenile and Domestic Relations should have been by complaint under Buie 6:4-l rather than bjr certification under the earlier provision of B. S. 44:7-19, and we consider this to be correct. John S. Westervelt’s Sons v. Regency, Inc., 3 N. J. 472 (1950). However, this point is now raised for the first time, no mention thereof having been made at any earlier stage of the proceedings. The defendant had ample notice and fair opportunity to be heard in the Court of Juvenile and Domestic Relations; indeed, after the original hearing which resulted in an adverse determination he was afforded a rehearing, testimony was again taken, and he was again heard fully on the single issue and defense raised by him. He was in no wise prejudiced by the procedural infirmity and, under the circumstances, we do not consider it sufficient basis for reversal. Rule 1:2-20 (b); State v. Jones, 4 N. J. 374 (1950).

The defendant further contends that the Court of Juvenile and Domestic Relations failed to give effect to the policy expressed in the proviso in E. S. 44:7-19. We find this contention to be without merit. The commitment of the defendant by order of a judge of the Court of Common Pleas was presumably upon sufficient cause and did not indicate dereliction by his father, and the testimony that his father had not adequately supported their family necessitating work from time to time by his mother did not charge or establish any willfulness. The statutory proviso requires an affirmative showing of actual abandonment and desertion and failure to support and it seems to us that the Court of Juvenile and Domestic Relations was entirely justified in its finding that the defendant’s evidence failed to establish the type of parental misconduct contemplated by the severe legislative phraseology. Cf. Frank v. Juvenile, &c., Court of Essex County, 137 N. J. L. 364, 368 (Sup. Ct. 1948); In re A. B. M., 132 N. J. Eq. 434, 441 (E. & A. 1942).

The order of February 23, 1950, directing that the defendant pay $15 per month was entered after a hearing which included testimony with respect to the extent of the defendant’s financial ability to contribute towards his father’s support. After rehearing, pursuant to the defendant’s application, the court not only affirmed its determination that he make contribution but increased the amount thereof to $20 per month. There is nothing in the record to support this increase; the statement of the proceedings before the Court of Juvenile and Domestic Relations indicates that the testimony during the rehearing did not bear on the defendant’s resources but was confined to Ms defense based on the proviso in R. S. 44:7-19.

The order of the Court of Juvenile and Domestic Relations is modified to provide that the defendant contribute $15 per month towards his father’s support and as thus modified is affirmed, without costs.


text:
    BEATRICE B. SHIMP AND GLENN D. SHIMP, PLAINTIFFS-RESPONDENTS, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, ETC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided January 4, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Je.

      Mr. Baruch S. Seidman argued the cause for respondent (Mr. Irving W. Rubin, attorney).

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

William J. Brennan, Jr., J. A. D.

The railroad appeals from a judgment entered in Middlesex County Court on a jury verdict in plaintiffs’ favor. The railroad argues the trial court erred in denying its motions for dismissal at the end of the plaintiffs’ case and for judgment at the end of the whole ease. We consider only the ruling denying the motion for judgment. City National Bank & Trust Co. v. Hassler, 9 N. J. Super. 153 (App. Div. 1950).

On the morning of May 2, 1949, the plaintiff, Beatrice Shimp, went with her mother and 26-months-old baby to defendant’s railroad station at New Brunswick where her mother was to board a train for Connecticut. She bought her mother a ticket and when the train arrived Mrs. Shimp, carrying her mother’s suitcase and the baby, boarded one of the coaches of the 16-car train, and accompanied her mother to a seat “about in the middle of the coach” where she left the suitcase and bid her mother good-bye. She immediately started to leave the coach and walked forward to the vestibule carrying the baby. Her testimony was that the train was standing still as she began to descend the steps to the platform. She said, as “I was stepping down, the first or second” step, “the train gave a severe jerk and I fell off the train.” She was holding the baby with both arms and was not using either side handrail.

These facts are taken entirely from Mrs. Shimp’s testimony, which was the only evidence offered on her behalf as to the happening of the accident, and which testimony was sharply controverted by the defendant’s proofs which tended to show she had jumped from the train as it was moving out of the station. In deciding whether this ease was properly submitted to the jury, however, we give Mrs. Shimp the benefit of all the evidence in her favor as well as all inferences favorable to her which can reasonably be drawn from the testimony adduced by both sides. Cirulli v. Licata, 10 N. J. Super. 449 (App. Div. 1950).

What relation obtained between Mrs. Shimp and the defendant? She was not a passenger and had no intention to become one. Her only purpose was to assist her mother. She admitted she did not speak to any railroad employee before boarding or while on the train. She said she saw none at any time, but it is not contended on her behalf that none was present. The fact appears to be to the contrary; the conductor and eight other trainmen who were members of the crew of this train all testified in some detail as to their respective assignments and actions in discharging their duties while the train was at the station. Since she on her own admission entered the train without notice to or knowledge by the defendant as to her purpose, or otherwise of her intent to alight before the train started, and there were no proofs from which such notice or knowledge could be inferred, did she prove a cause of action against the defendant?

While the briefs cite no New Jersey decision which has considered the question, and our own research has discovered none, there is agreement in the decisions outside this State that a person boarding a train to render assistance to a passenger is not a trespasser, but there is disagreement whether the person has the status of a passenger, invitee or licensee. Annotation, 11 A. L. R. 2d 1075; Otto v. Milwaukee N. R. Co. (1912), 148 Wis. 54, 134 N. W. 157 (licensee); Barrett v. Brooklyn Heights R. Co. (1919), 188 App. Div. 109, 176 N. Y. S. 590; affirmed, 231 N. Y. 605, 132 N. E. 906 (licensee) ; Lewis v. Illinois Central R. Co. (1928), 319 Mo. 233, 3 S. W. 2d 371 (invitee); Chesapeake & Ohio R. Co. v. Paris’ Adm’r. (1910), 111 Va. 41, 68 S. E. 398 (invitee); Arkansas & L. R. Co. v. Sain (1909), 90 Ark. 278, 119 S. W. 659 (invitee); Louisville & N. R. Co. v. Crunk (1889), 119 Ind. 542, 21 N. E. 31 (passenger). We think the sound view is that declared in the large majority of the cases that, while the person is not a trespasser, or mere licensee; a carrier sustains no such relation to a person going on a train to assist a passenger as would impose upon the carrier any duty of extraordinary care and that the law exacts of the carrier toward such person only the duty of ordinary care which is owed an invitee. Lucas v. New Bedford & Taunton Co., 72 Mass. 64 (1856);

A person who goes to a railroad station to assist a passenger in entering a train, goes with at least the tacit invitation of the carrier. While so engaged he does not stand in the relation to the carrier of a bare licensee, but should properly be deemed to have been invited to be there by virtue of the relation existing between the carrier and the intending passenger. The practice of persons not thus intending to be passengers, to assist passengers on and off trains at regular station stops is so well known that we may take judicial notice, in the absence of contrary proofs, that the practice is approved and acquiesced in by the railroad. So, Mrs. Shimp, in going upon this train to render assistance to her mother had an implied invitation to board the train to render the assistance.

The railroad’s brief cites Fleckenstein v. Great Atlantic & Pacific Tea Co., 91 N. J. L. 145 (E. & A. 1917), as supporting the view Mrs. Shimp was a mere licensee. That case held that a person was a mere licensee who accompanied another to a merchant’s store where the other intended to buy something only for himself and not for the person and the person intended to buy nothing. But see Den Braven v. Meyer Brothers, 1 N. J. 470 (1949). In any event the situations are hardly analogous. The aid given a passenger by a person boarding a train for that purpose is beneficial not only to the passenger but to the carrier as well. Such aid tends to the timely completion of the railroad’s business at the station and the maintenance of its operating schedules. In Little Rock & Forth Smith Railway v. Lawton, 55 Ark. 428, 15 L. R. A. 434 (Sup. Ct. 1892), it was said:

“For it is a matter of common knowledge that in the usual conduct of Hie passenger business it often becomes necessary for those not passengers to go upon cars to assist incoming as well as outgoing passengers, and that a practice has grown up in response to this necessity. While it perhaps arose out of a consideration for the security and convenience of the traveler, it has proven beneficial to carriers, and now prevails in this state, and extensively elsewhere, and is treated as an incident to the business in the conduct of the public and the acquiescence of carriers. It cannot be doubted that it has increased travel and the earnings of carriers, while it has promoted the convenience and security of passengers, and, if it should be abrogated, many persons would be compelled to forego journeys, to the detriment of the carrier and their own inconvenience. We conclude that such attendant performs a service is the common interest of carrier and passenger, and that his entry upon a car is upon an implied invitation, which entitles him to demand ordinary care of the carrier.”

Whether the carrier violates the duty of ordinary care, however, when the person is injured while alighting as the train is starting or after it has started is made to depend, according to almost unanimous authority, upon proof of notice to or knowledge by the carrier of such person’s intention to alight after completing the purpose to assist a passenger, or of facts justifying the inference the carrier has reason to know of or anticipate such intention. The eases are digested in the Annotation, 11 A. L. R. 2d, at pp. 1089 et seq. The reason underlying the rule is succinctly stated in % Hutchinson on Carriers (3d Ed,), § 991, as follows: “* * * for without such knowledge they may reasonably conclude that he entered to become a passenger, and cause the train to be moved after giving him a reasonable time to get aboard. He should, accordingly, notify someone in the management of the train of his presence, business or purpose, so as to create some relation to the carrier and thus make it its duty to care for him. And where the carrier’s servants have no knowledge or there are no circumstances tending to put them on notice, that a person who has boarded a train to assist another intends to alight before the train starts, they are not bound to hold the train until he has had time to disembark nor to notify him before the train is started.”

The brief for the plaintiffs concedes that liability of a carrier is conditioned on proof of such notice, actual or constructive, in respect to “* * * injuries sustained by a non-passenger who attempts to leave a train after it 'has begun to move ” but argues that this is not such a case and contends “a clear jury question was presented as to whether the train was in motion when she began to alight.”

If plaintiffs’ counsel means by this that proof of the element of notice is required only where the proofs show the person not a passenger is injured while alighting from a moving train and was unnecessary if the jury believed Mrs. Shimp’s testimony that the train was not started until after she had begun to descend the steps, no authority cited supports that proposition and we perceive no reason in principle to justify a distinction based on the fact whether the train has started before or is started as the act of alighting is attempted. The prospect of the emergency created by the attempt must in either case be within the railroad’s knowledge, or the railroad must have had reason to have known or to have anticipated it, before the carrier can be charged legally with a breach of duty.

Counsel’s argument, on the other hand, may be intended to mean that there was a conflict in the proofs whether the train when it jerked, as Mrs. Shimp said, was in fact starting or whether the jerk was merely a motion tmconnected with getting the train going; if so, and if we assume, although we do not decide, that such conflict would present a jury question because proof of notice would not be required in the latter circumstance, we find no such conflict in the evidence. Mrs. Shimp’s own version was the jerk signalled the start of the train. She was asked on cross-examination, “Well now, you say that the train started with a jerk,” and answered, “Yes, sir;” again, “And it did start with a jerk, is that your testimony today?”, “Yes, sir;” and on her redirect examination she adopted an answer read by her counsel from her pretrial deposition, “And as you were descending the steps you got to the first or second step from the bottom, the train started, is that right?”, “Yes.” The railroad’s proofs in addition contain no suggestion of a motion of the train before it started to leave the station. It was insisted by the railroad’s witnesses that the train started smoothly and without a jerk, but, accepting Mrs. Shimp’s contrary testimony, nevertheless, the only permissible inference to be made from the evidence of the train crew is that the train remained stopped after its arrival for a period of something over two minutes, the usual interval at the New Brunswick station, until all of the “fair crowd” admitted by Mrs. Shimp to be getting on and off the train had done so, and first moved when the conductor gave the signal to start the train, which signal, according to his unchallenged testimony, was given at a time when “the platform was perfectly clear.”

It is plain the railroad’s motion for judgment should have been granted. It would work injustice, not promote justice, to say that this defendant should have held this train in the New Brunswick station for longer than required to do the regular business so that Mrs. Shimp might get off, when no employee of the railroad knew or had reason to know of her presence on the train for the limited purpose she stated or that she was attempting to get off. Had any employee been given notice or had any reason to know that Mrs. Shimp was on board one of the cars for the purpose only of helping her mother, the railroad would have owed her the duty to have delayed the starting of the train a reasonable time for her to get off. But none of the train crew knew any such thing or had reason to know it. Cf. Prosser v. West Jersey & Seashore R. R. Co., 72 N. J. L. 342 (Sup. Ct. 1906); affirmed, 75 N. J. L. 614 (E. & A. 1907).

We need not decide whether Mrs. Shimp’s testimony that the train was started with “a severe jerk” was sufficient proof to show the jerk was abnormal or anything more than merely incidental to the proper operation of the train. See Henry v. Public Service Coordinated Transport, 3 N. J. Super. 140 (App. Div. 1949); Cohn v. Public Service Coordinated Transport, 109 N. J. L. 387 (E. & A. 1932). Defendant will not be held liable for her injuries consequent upon a fall alleged to have resulted from its act in having started this train in the absence of facts showing the railroad had knowledge or reason to know of her purpose in boarding the train or of some other fact from which it could be inferred the carrier had timely notice of or could reasonably be expected to have anticipated her presence on the steps in the act of alighting from the coach.

Our conclusion makes it unnecessary to decide the other points argued in the railroad’s brief.

Reversed and remanded with direction to enter judgment for the defendant. No costs.


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

text:
    HELEN HALL, PLAINTIFF-APPELLANT, v. SIDNEY HALL, DEFENDANT-RESPONDENT, AND ROOSEVELT PARK, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided January 4, 1951.

      Before Judges Freunb, Proctor and Rogers.

      Mr. William J. Reimer argued the cause for the plaintiff-appellant (Mr. H. Edward Neese, attorney).

      Mr. A. Nathan Cowen argued the cause for the defendant-respondent (Mr. George L. Lombardi, of counsel).
   The opinion of the court was delivered by

Freunb, S. J. A. D.

The issue here presented is a narrow one, namely, the date as of which there should be an accounting between the parties, formerly husband and wife, relating to a parcel of real estate purchased as tenants by the entirety.

On August 1, 1943, the plaintiff and the defendant, then husband and wife, entered into a contract to purchase a dwelling house, presumably two-family, situated on Alta Vista Place, in Perth Amboy, New Jersey. Pursuant thereto, a deed dated October 1, 1943, conveying title to them as husband and wife was deposited in escrow with the South Orange Trust Company to be delivered upon completion of payments required to be made under the contract. The parties had previously been separated, but had resumed cohabitation about five months prior to the date of the contract. The defendant testified that the property was purchased in order to provide a suitable home for his family, but the parties lived together in the property only until October, 1944, when they again separated and subsequently were divorced by final decree of the Court of Chancery dated September 26, 1947. The defendant husband collected the rents and made the payments pursuant to the contract, and upon their completion received the deed on July 29, 1948. Prior to the delivery of the deed, evidently at the request of the defendant and without the consent of the plaintiff, her name was erased from the deed by an employee of the escrow bank, so that the deed conveyed the title to Sidney Hall alone.

The plaintiff instituted this suit for reformation and an accounting, and after trial, judgment was entered directing reformation and an accounting between the parties from August 1,1943, the date of the contract. The plaintiff appeals from that part of the judgment which directs the accounting, arguing that she is entitled to one-half of all rents collected by the defendant, but is not chargeable with any of the carrying charges of the property paid by the defendant on the ground that they were gifts.

Upon the execution of the contract, the equitable title to the premises became vested in the plaintiff and the defendant as tenants by the entirety. Upon the entry of the final divorce decree on September 36, 1947, this tenancy was converted into a tenancy in common. The court below correctly stated that expenditures by a husband of his own moneys on property, title to which is taken as tenants by the entirety, are presumed to be gifts, which presumption may, however, be rebutted by proof that they were made with the intention, understanding or agreement that they should not be presumed or considered as gifts. Such proof “must be certain, definite, reliable and convincing, leaving no reasonable doubt of the intention of the parties.” McGee v. McGee, 81 N. J. Eq. 190 (E. & A. 1913); Ringold v. Ringold, 93 N. J. Eq. 357 (Ch. 1922); Mendelsohn v. Mendelsohn, 106 N. J. Eq. 537 (Ch. 1930); Strong v. Strong, 134 N. J. Eq. 513 (Ch. 1944); affirmed, 136 N. J. Eq. 103 (E. & A. 1945).

We feel, however, that there was error in the application of the rule. There was no convincing proof of an agreement between the parties that the disbursements made by the husband were not to be considered as gifts. In fact, the husband testified as follows:

“Q. Was there any arrangements for her contributions at the meeting, (referring to a meeting held on November 4, 1946, prior to the divorce), contributions toward the maintenance of the building? A. Nothing whatsoever; nothing at all.”

In paragraph 10 of the complaint it is alleged “Plaintiff is ready, willing and able to make any and all contributions required by law toward the carrying charges, taxes, insurance, maintenance, repairs and other expenses of the property in question, accruing since September 26, 1947,” and at the trial she so testified. While the plaintiff is not required to contribute toward expenditures made on the property by her husband during coverture, she should make contributions toward such disbursements from and after September 26, 1947.

Ordinarily,, the husband might be accountable for rents collected by him during coverture. Nobile v. Bartletta, 109 N. J. Eq. 119 (E. & A. 1931); Zanzonico v. Zanzonico, 124 N. J. Eq. 477 (Ch. 1938). However, under the facts of this case, it would be inequitable to require, and the plaintiff is estopped, to demand, that the defendant account for rents collected prior to the date of the final decree of divorce, because in the complaint she made no such claim nor was it advanced at the trial. It appears for the first time in the plaintiff’s brief on appeal. It has often been stated that matters not raised below should not be permitted to be raised on appeal, except where the question goes to the jurisdiction of the snbjeet matter or where a question of public policy is involved. State v. Jones, 4 N. J. 374 (1950).

The judgment of the court below is modified to the end that the accounting between the parties be from and after September 26, 1947.