author: Palmee, S. C. C.

text:
    FERDINAND KLOIDT, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT.
    Decided April 21, 1939.
    For the plaintiff, Vincent L. Gallaher.

    For the defendant, Starr, Summerill & Lloyd (Alfred E. Driscoll).

   Palmee, S. C. C.

This canse of action is submitted to the court by stipulation of certain facts, with exhibits, for the purpose of having a determination in the first instance of certain legal questions, which may make unnecessary a trial of the facts. However, the stipulation provides that in the event of the determination of the legal questions adversely to the defendant, then certain questions are to be submitted to the jury for determination as to the facts.

The stipulation is elaborate and detailed so that a recital of the facts therein set forth is unnecessary at the present time. However, for the intelligent comprehension of this memorandum it will be necessary to recite and set forth some of the facts and portions of the exhibits detailed in the stipulation.

On September 1st, 1928, the defendant issued to the General Motors Corporation, hereinafter referred to as General Motors, its subsidiaries and affiliated companies, a “Group Insurance Policy” for the benefit of certain employes of General Motors, upon certain terms and conditions therein set forth. The plaintiff was not, at that time, eligible for any benefits as therein provided he being an employe of a dealer and distribution unit of General Motors, which units were not covered by the policy as issued.

By agreement between the assured and defendant and without notice to or the consent of any of the employes of General Motors this policy was subsequently amended upon nine successive occasions, which amendments covered a great variety of changes unnecessary to enumerate at this time. On March 11th, 1931, this group policy, by agreement between the defendant and the assured, was amended so as to bring within its provisions the plaintiff as an employe of a dealer and distribution unit, and which provided that the plaintiff should receive certain benefits thereunder. Plaintiff made application in accordance with the terms of the policy and a certificate was issued to him by the defendant.

The policy as originally issued called for monthly payments of premiums by the assured, General Motors, and was for the period of one year with provisions for annual renewal thereof. It contained a provision which limited the amount that the assured could collect from its employes as a part of the premium to be paid to the defendant, but the policy did not require the assured to collect these portions of premiums from its employes. At most it was a limitation upon the amount that the assured could collect from its employes.

The amendment of March 11th, 1931, contained the following provisions, a paraphrase of which were set forth in the certificate issued to the plaintiff:

“(c) Total and Permanent Disability Benefits. Upon receipt by the company of due notice and proof in writing that any employe has, (1) while insured hereunder, (2) prior to his sixtieth birthday, and (3) after having been continuously insured hereunder for two full years, become totally and permanently disabled, as a result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation and performing any work for wage or benefit, the company will discontinue the life insurance in force on the life of said employe and three months after receipt of such proof will commence to pay, subject to the terms hereof, in lieu of the payment of life insurance at his death, monthly installments as defined below, to the said employe or to any person designated by him for the purpose.”

Effective as of May 1st, 1933, General Motors and the defendant again amended the policy by substituting for the provisions above quoted providing for the payment of total and permanent disability benefits during the lifetime of the injured employe, a new provision providing for the payment of the full amount of insurance after the death of the employe to the beneficiary named by the employe upon submission of due proof that the death of the employe insured thereunder had occurred within twelve months after the termination of his employment, and that during such period such employe had been continuously and totally disabled from engaging in any employment from the date of the termination of his employment.

The assured, General Motors, collected from and plaintiff paid to it, but not to the defendant, a portion of the cost of coverage for the plaintiff.

Prior to the effective date of said last amendment on May 1st, 1933, notice of the change of the proposed amendment was sent to and received by the plaintiff, and he was asked to return his original certificate in order that a new certificate might be issued to him showing the change in the provisions of the policy.

The plaintiff failed to surrender his certificate after receipt of notice of the change in the provisions of the policy, and on June 6th, 1933, he wrote a letter to the assured in which he stated that he was entirely satisfied with his insurance contract as originally written and that he desired to continue that contract without any change whatever.

The plaintiff alleged that he became totally and permanently disabled on June 12th, 1933, and on June 15th, 1933, wrote to the assured requesting a form for the submission of proof of his total disabilitjr, which form was sent to him and prepared and filed by him with the assured, who in turn forwarded it to the defendant. That thereafter, defendant sent fco plaintiff another form for proof of disability, together with a request for a physical examination by a physician. This, of course, was subsequent to the effective date of the change in the provisions of the policy. Thereafter, defendant advised plaintiff that payments would not be made by reason of the fact as alleged that plaintiff did not become totally and permanently disabled at the time that such provisions were in effect under the policy of insurance involved.

This suit was then brought to recover the amounts alleged to be due and to have fallen due on October 1st, November 1st, December 1st, 1933, and January 1st, February 1st, March 1st, April 1st and May 1st, 1934.

The first question for determination is whether or not the defendant and General Motors Corporation, the assured, could amend the group policy issued September 1st, 1928, without the consent of any person insured thereunder, and whether the amendment of May 1st, 1933, was a valid exercise of power by said parties, and which amendment would be effective without the consent of any person insured thereunder by any previous amendment.

The argument on behalf of the plaintiff is that he was a party to the contract, namely, the insurance policy, and that the contract was made for his benefit, and that by reason of being a party to the contract and one of the class of persons for whose benefit the contract was made it could not be altered or changed as to any of its effective provisions so far as he was concerned without his consent, and he cites in support of this contention a number of cases, the first of which is the case of Smithart v. John Hancock Mutual Life Insurance Co., 167 Tenn. 513; 71 S. W. Rep. (2d) 1059 (May 14th, 1934). The question for determination was as to the time of the filing of the proof of disability, which disability was alleged to have occurred while the insurance was in force, but that the proof of such disability was not filed until the expiration of the period of the policy. The court, however, said that:

“But when, as here, the insurer issues its certificates to the employes and the latter contribute a portion of the premium paid by the employer there arises a definite contractual relationship between the insured employes and the insurer and the certificates become integral parts of the insurance contract. The group policy and the certificate are to be construed and enforced together.”

The statement above made as to the contractual relationship between the employe and the insurer was not necessary to the decision of that case and is iu conflict with the determination of most of the other courts. It is unquestionably true that the group policy and the certificates are to be construed and enforced together, but that in itself does not constitute any contractual relationship between the employe and the insurer. The certificate is merely evidence in the possession of the employe as to the kind and nature of insurance to which he may be entitled under the terms and conditions of the master policy.

In the case of Williams v. John Hancock Mutual Life Insurance Co., 277 N. Y. Supp. 429, the plaintiff was insured as an employe under a group policy for a certain sum of money. After the accident, resulting in the disability alleged to have been incurred, there was an attempt to change the amount of insurance available to the plaintiff under these conditions. The plaintiff had no notice of the attempted decrease. The court concluded that the attempted change in the amount of insurance was ineffective if made without the consent of the insured employe, and could not be effective unless made at the time of a renewal term as provided for in the clause of the policy relating to renewals. The opinion treated the employe as one of the contracting parties. This case was reversed by the Appellate Division of the Supreme Court decided ^November 7th, 1935, in the case of Williams v. John Hancock Life Insurance Co., 283 N. Y. Supp. 87. The case was reversed upon the ground that the testimony did not indicate such a total and permanent disability as was contemplated by the insurance policy which was the basis of the suit. The court, however, said:

“In view of the conclusion we have reached we may disregard other points urged by the appellant. The judgment from which appeal was taken should be reversed on the law and facts with costs, and the complaint dismissed with costs. Certain findings of fact and conclusions of law are disapproved and reversed and a new conclusion made.”

It is impossible to determine from this opinion as to what new conclusions of law were reached by the court. The opinion dealt solely with the question as to whether the testimony justified the conclusion of total and permanent disability on the part of the plaintiff, and stated nothing as to any new conclusions of law, so that it is impossible to determine whether or not the statement in the case as to the contractual relationship existing between an employe and the insurance company was approved or not.

In the case of Butler v. Equitable Life Assurance Society, 93 S. W. Rep. (2d) 1019, the plaintiff’s decedent held a certificate issued by the defendant under a group life insurance policy. The certificate provided for total and permanent disability payments. The defense was that there had been a cancellation of the permanent disability provisions of the policy by an agreement between the employer and defendant prior to the incurring of the permanent disability by the plaintiff’s decedent. Further, that the deceased had been given notice of this change in the policy resulting in the elimination of the permanent disability provisions. The court said:

“The scope of the contract contemplates more than a mere contract between parties for the benefit of a third party, in that the master contract provides first, for the consent evidenced by application; and second, a consideration to be paid by the third party for the benefits provided for in the contract. Logical conclusions as to such a contract, we conclude, lead to the conclusion that when a third party makes application and pays the consideration as expressed in the master policy and the same is accepted by the parties in accordance with the terms of the master contract, that such payment anti such acceptance endows the third party with a vested interest. * * *

“After a careful study of the authorities we conclude that as to such a group policy as is involved in this case wherein the group policy itself imposes burdens upon the insured employe and provides for a consideration to be paid by the employe for the protection and benefits he secures thereunder, then in such event such an insured is entitled to notice of cancellation.”

In the case at bar the stipulation clearly shows notice of the cancellation of the policy and the substitution of new provisions, which notice the plaintiff admits he received prior to the effective date of the new provisions.

“We conclude as to the contract before us that if the insured employe is given notice and is awarded full opportunity to take the benefits of the clause ‘termination and conversion’ that his consent is not a prerequisite to cancellation.”

Here would seem to be somewhat of a contradictory statement as to the conclusions reached by the court. But in either event in the case at bar the plaintiff had full notice of the cancellation and an opportunity to take advantage of the other provisions of the master policy; and further, the policy provides for the payment of premiums by the employer and contains only a limitation as to the portion of the premium that the employer may call upon the employe to pay.

The case of Myerson v. New Idea Hosiery Co., 217 Ala. 153; 115 So. Rep. 94, is also cited, but this case was one against the employer on a theory of negligence and such statements from the opinion as are quoted in the brief for plaintiff have no application to the present case.

In the case of Davis v. Metropolitan Life Insurance Co., 32 S. W. Rep. (2d) 1034, decided November 28th, 1930, the plaintiff, as beneficiary named in a certificate issued by the defendant to her husband under a group insurance policy issued to the city of Knoxville, brought suit to recover the amount alleged to be due on the certificate. The policy provided that the city of Knoxville should pay monthly in advance a premium based on the number of employes covered and the policy also limited the proportion of premiums that could be collected by the city from the various employes. The city became dissatisfied with the policy and canceled it and thereupon procured another policy from another company. The plaintiff’s decedent died one day before the expiration of the grace period allowed in the policy. The grace period, the court held, applied only to the times when the policy was to be continued and not as to a time when the policy had been canceled. The court said as 'follows:

“We are persuaded that the power of cancellation of this policy applied for and issued to the city of Knoxville was in the city and that its action was binding upon the several individual employes holding certificates issued thereunder. It appears that the courts which have considered these group policy contracts have held that the contracting parties were primarily the employer and the company * * * and the insuring company has no direct contractual relationship with the several individual employes. The rights which the employes acquire are incidental.”

The court concludes that the employer has the right to cancel the contract at any time and that the employes have no interest whatsoever in the policy after its cancellation.

“The city and the company are the original contracting parties. It is the employer, here the city, which promised to pay the premiums collected in turn pro rata from its several employes. No individual employe could have exerted a right to continue the policy independent of the employer. It follows that he could not have resisted a cancellation of the group policy by agreement between employer and the company.”

In the ease of Beecey v. Travelers Insurance Co., 166 N. E. Rep. 571, the suit was by the beneficiary named in a certificate issued under a group insurance policy by the defendant. The policy provided that upon the termination of employment the insurance was to cease, but that the certificate holders would be entitled to have issued to them within thirty-one days after the termination of his employment insurance in one of the forms customarily issued by the company, in an amount equal to the amount of his protection under the group insurance policy at the time of such termination. It was contended that this conversion privilege gave the beneficiary a vested right, but the court held to the contrary and found that the employe was not a party to the contract. It further held that the employe was chargeable with notice of the terms of the master policy and that his failure to apply for the converted insurance within the specified time barred his right to such insurance, and that there was no need of any notice of cancellation from the insurance company.

The case of Boseman v. Connecticut General Life Insurance Co., 301 U. S. 196; seems to be controlling. It was decided April 26th, 1937. Plaintiff made application for insurance under a group policy issued by the defendant to the Gulf Oil Corporation in which he agreed to be bound by the rules governing the insurance and authorized a deduction from his salary each month of a sum to cover a part of the premiums to be paid by the oil corporation. This application was sent to the oil corporation and not to the defendant. The policy was for the term of one year with provisions for renewal. The insurance was to terminate as to each employe upon the termination of his employment, and stated:

“The policy and the application of the employer and the applications of the employes, if any, shall constitute the entire contract between the parties.”

The policy provided that no claim for permanent total disability incurred by any employe during his period of employment should be paid after the termination of such employment, unless such employe gave written notice of such disability to the company during the said period of employment, or within sixty days thereafter. The controversy was as to whether or not this provision, valid under the law of Pennsylvania, in which state the contract was written, should be enforced, or a provision of the law of Texas, which provided that any such stipulation fixing the time within which such notice should be given at a period of less than ninety days, was valid. The plaintiff in this case did not give the notice of disability within the sixty-dav period provided by the policy:

“Petitioner and other insured employes were not parties to nor did they have any voice in the negotiation or consummation of the contract. The terms of the policy were settled by the oil corporation and respondent. Eligible employes were given opportunity upon specified conditions to have insurance by giving payroll deduction orders approved by their employer. The policy did not of itself insure petitioner' or any other person. It merely made available specified insurance to certain employes. For the payment of premiums the insurer looked only to the corporation. The latter, for the benefit of its insured employes, assumed the burden of paying to the insurer premiums to which they, by the deduction orders, had contributed. * * *

“But the certificate is not a part of the contract of or necessary to the insurance. It is not included among the documents declared To constitute the entire contract of insurance.’ Petitioner was insured on the taking effect of the policy long before the issue of the certificate. It did not affect any of the terms of the policy. It was issued to the end that the insured employe should have the insurer’s statement of specified facts in respect of protection to which he had become entitled under the policy. It served merely as evidence of the insurance of the employe. Petitioner’s rights and respondent’s liability would have been the same if the policy had not provided for issue of the certificate.

“Employers regard group insurance not only as protection at low cost for their employes, but also as advantageous to themselves in that it makes for loyalty, lessens turn over and the like. When procuring the policy, obtaining applications of employes, taking payroll deduction orders, reporting changes in the insured group, paying premiums and generally in doing whatever may serve to obtain and keep the insurance in force, employers act not as agents of the insurer, but for their employes and for themselves.”

The case of Magee v. Equitable Life Assurance Society, 244 N. W. Rep. 518, decided October 19th, 1932, was a suit by the plaintiff against the defendant to recover on a certificate issued under a group life insurance policy. The group policy was issued by the defendant to the Louisville Gas and Electric Company and subsequently changed to cover employes of the Standard Gas and Electric Company. The court said:

“The contract was between the defendant and the employer, and except so far as the third person for whose benefit the contract was made could take advantage of the contract of the employer, there was no contractual relationship between the defendant and these third persons. It will be noted that so far as the defendant is concerned this was not an insurance policy carrying a cash surrender value, or extension of insurance because of dividends or earnings as in an ordinary life insurance policy. The beneficiary had no interest in it except that if discharged he could convert it into another form of life insurance policy if an application was made within a specified time. So far as John Magee is concerned the employer canceled the insurance without notice unless he was discharged, and discharge would be notice. So far as the defendant is concerned the rights of the parties were fixed by the contract made with the employer.”

Also the court held that if the employe was discharged, that was notice requiring him to take advantage of any conversion privilege that there might be in the policy.

I am, therefore, of the opinion that under the great weight of the authorities in this country, and the logic and reason to be deduced from the stipulated facts and exhibits in this case, that the defendant and assured, General Motors, could, without notice to the plaintiff, make effective the changes and alterations of the original contract of insurance as set forth in this case.

The next question submitted to me is “If the defendant and General Motors Corporation had the power to amend the group policy without plaintiff’s consent, whether as a question of law or of fact, it waives such right by considering a claim for disability benefits thereunder.”

The point of this question is whether the defendant, by giving some consideration to the claim for benefits presented by the plaintiff, which claim was presented after the amendment to the policy which eliminated permanent total disability benefits, then had the right to say that the plaintiff was not covered by the policy. In other words, that by reason of the conduct of the defendant it waived the change in the provisions of the policy which changes had become effective prior to the date of the alleged disability.

The discussion of this question necessarily involves that of agency, namely, as to whether or not the assured, General Motors, acted as an agent for the defendant in its dealings with the plaintiff. This question would seem to have been effectively disposed of by the United States Supreme Court in the case of Boseman v. Connecticut General Life Insurance Co., supra, wherein the court said that the employer:

“When procuring the policy, obtaining applications of emplojres, taking payroll deduction orders, reporting changes in the insured group, paying premiums and generally in doing whatever may serve to obtain and keep the insurance in force, employers act not as agents of the insurer, but for their employes and for themselves.”

As to the question of waiver, it is argued on behalf of the plaintiff that because of the defendant company accepting the proof of claim for disability and having had further correspondence with relation to the question of disability, its time and character, it thereby waived any right to insist that the question of permanent disability had been eliminated from the contract by the amendment heretofore referred to. Certainty the defendant had a right to know and to make the necessary inquiries as to whether or not plaintiff’s alleged disability had occurred while the policy provided for payments because of permanent disability or after such payments had been eliminated; the time of the alleged occurrence and its extent. Certainty by pursuing'its inquiry to ascertain and determine the existence of these allegations it could not be said to have waived any provisions of the policy, as a waiver implies the existence of some provision or condition of the contract which the party alleged to have made the waiver does not insist upon the performance. Certainty there could be no waiver of a non-existing provision of the contract. The payments provided for prior to the amendment of the contract had necessarily been taken out of the picture by the amendment. Certainty no one can be said to have waived non-existing provisions of a contract.

I am, therefore, of the opinion, that under the facts set forth in the stipulation in this case and the law applicable thereto, the defendant is entitled to a direction of verdict in its favor.


source: Caselaw Access Project

author: Pebskie, J.

license: Public Domain

text:
    EARL T. WATTERS, RELATOR, v. EDGAR WENGLE, RESPONDENT.
    Submitted May term, 1940
    Decided September 30, 1940.
    Before Bbogan, Ciitee Justice, and Justices Pabkeb and Pebskie.
    Por the relator, Glarh G. Bowers.

    Por the respondent, Edward G. Moffitt (Elvin E. Ullrich„ of counsel).
   The opinion of the court was delivered by

Pebskie, J.

The agreed, single question we are asked to decide in this cause is whether respondent’s term as tax collector of the township of Mansfield was or was not extended from three to five years by virtue of chapter 141, Pamph. L. 1936, p. 332.

This cause comes to us on information in the nature of a quo warranto filed by the attorney-general, at the relation of Earl T. Watters, a property owner, taxpayer, resident and township committeeman of Mansfield township (R. S. 2:84-l), on plea, demurrer to the plea (R. S. 2:84-12), and on stipulation of facts.

From the record so submitted, it appears that, on November 7th, 1933, respondent was elected as tax collector of the township of Mansfield for a term of three years beginning January 1st, 1934. On November 3d, 1936, respondent was again elected to the same office for a three-year term beginning January 2d, 1937, and took office.

On June 5th, 1936, the legislature passed chapter 141, Pamph. L. 1936, p. 332, which, inter alia, provides:

"1. Any person now holding the position or office of tax collector in any municipality of this state now or hereafter having a population not in excess of three hundred thousand inhabitants, as determined by the preceding federal census, or any person who shall hereafter be appointed or elected to the position or office of tax collector in any such municipality, shall hold his said office for a period of five years from the date of his said election or appointment and the terms of all such persons now in office are extended for such period as to give to said incumbent a term of five years from the date of such election or appointment; provided, that the provisions of this act shall not apply to the term, of any tax collector whose office may hereafter expire hut whose successor has been elected; and provided, further, that this act shall not apply to any person whose term of office has expired. * * *” (Italics ours.)

We here mark the fact that this statute did not take effect until December 1st, 1936, before which time, November 3d, 1936, respondent had succeeded himself to the office in question.

Notwithstanding the provisions of the statute under which respondent now claims his term was extended until 1942, respondent again ran for the office of tax collector for the township of Mansfield in an election held on November 7th, 1939. He was not re-elected. One N. B. Park received a majority of the legal votes cast for tax collector. A certificate of election was issued to him and both he and respondent now claim the right to the office.

We are entirely satisfied that respondent cannot benefit by the statute upon which he relies. For while that statute did extend the term of tax collectors in townships having a population not in excess of 300,000 inhabitants, and while the township of Mansfield admittedly falls within that category, that statute, as we have seen, provides that the extension therein granted “shall not apply to the term of any tax collector whose office may hereafter expire but whose successor has been elected.” There is no ambiguity in the language thus employed. It is clear and means just what it says. Under such circumstances there is no room for judicial construction. As of the effective date of the act, viz., December 1st, 1936, respondent’s successor had already been elected. The circumstance that respondent succeeded himself is beside the point.

The precise question presented to us for decision in this case has already received our consideration and determination at this term of court. Conklin v. Ronnie, 125 N. J. L. 208; 15 Atl. Rep. (2d) 257. In that case we held, among other things, the fact that the incumbent of the office, as the respondent here, happens to be his own successor does not exclude him from the operation of the proviso of the statute. That holding is controlling and dispositive of the case at bar.

We have considered all other points raised and find them to be without merit.

Accordingly, judgment of ouster will issue, with costs.


author: Perskie, J.

text:
    CECIL A. TUCKER, PROSECUTOR, v. HARRY RANDALL, ACTING RECORDER OF THE TOWNSHIP OF WASHINGTON, AND THE TOWNSHIP OF WASHINGTON, RESPONDENTS.
    Submitted May term, 1940
    Decided July 9, 1940.

      Before Brogan, Chief Justice, and Justices Parker and Perskie.
    Por the prosecutor, Abram Wales (Paul Rittenberg, of counsel).
   The opinion of the court was delivered by

Perskie, J.

The writ of certiorari in this case brings up for review prosecutor’s conviction in the Recorder’s Court of the township of Washington. His conviction is based upon a complaint which, among other things, charges that on June 19th, 1938, in the township of Washington, he “did solicit from house to house the gift of money for the use and benefit of an institution or organization in violation of section 3 chapter 111 of Ordinance No. 46 (Washington Township Code) * *

Section 3 of said code provides as follows:

“3. Without having first obtained a permit therefor, no person shall solicit from house to house or in any public street, park or public place, the gift of money, clothing or other thing for the use and benefit of any charitable, or other institution, organization, or cause, public or private or for any use or purpose whatsoever.”

The proofs, substantially stated, disclose that prosecutor is a member of an organized religious group or sect (Watch Tower Bible and Tract Society) more commonly known as “Jehovah’s Witnesses.” In pursuance of the beliefs of his group or sect, prosecutor conscientiously believes, among other things, that to obtain a permit (a man made requirement) to preach the gospel of God’s Kingdom would require him to do that which is in disobedience of the command of Almighty God.

The proofs further disclose that prosecutor, without the required permit, did on June 19th, 1938, call upon one Margaret Heinz in Washington township so that he might preach the beliefs of his group or sect. He found her to be one who apparently was familiar with, and favorable to, the beliefs preached by prosecutor. In fact she had donated to the organization in question for about seven or eight years. Although prosecutor asked her for only a twenty-five cent donation, Mrs. Heinz voluntarily gave him a dollar for which, in turn, she received a paid up subscription to a magazine, “Consolation,” and two small books, “Eiches” and “Cure.”

Upon the proofs so adduced the acting recorder found, apart from the questions of the right to “religious liberty” and the right to the “distribution of literature,” that the regulation here in issue was valid under the police powers oí the state. The tenuous justification for invoking these police powers was found in the municipality’s right to regulate persons coming into the municipality and “to ascertain who those persons are.” Accordingly, he adjudged prosecutor guilty as charged and imposed a sentence of $10 plus $2 costs. fit is the propriety of the judgment based upon that sentence that is now challenged.

That challenge is submitted to us for the prosecutor on brief. Five points are argued. Ho brief is submitted for respondents.

Of the five points argued two (1 and 5) require consideration.

1. Is the complaint defective? Our answer is in the affirmative.

It is the settled law that in a summary proceeding on a penal ordinance—as here—nothing is presumed or intended in favor of the complaint or the conviction thereunder. Owens v. Camden, 6 N. J. Mis. R. 279; 141 Atl. Rep. 24; Haviland v. Egan, 11 N. J. Mis. R. 799; 168 Atl. Rep. 171; McKenna v. Board of Police and Fire Commissioners, Paterson, 11 N. J. Mis. R. 945; 169 Atl. Rep. 287; Hommel v. Township of East Hanover, 13 N. J. Mis. R. 446; 178 Atl. Rep. 189; State v. Rowe, 116 N. J. L. 48, 51; 181 Atl. Rep. 706; affirmed, 122 N. J. L. 466; 5 Atl. Rep. (2d) 697. The complaint neither alleges that prosecutor solicited “without first having obtained a permit” nor does it allege the name of the organization or institution for whose use and benefit the solicitations were made. The complaint and conviction thereunder are, therefore, fatally defective.

2. Does the conviction trench upon prosecutor’s “inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience,” article 1, section 3 of our State Constitution, and upon section 1 of the Fourteenth Amendment to our Federal Constitution? Our answer again is in the affirmative. Schneider v. New Jersey, 308 U. S. 147; McLean v. Mackay, 124 N. J. L. 91; 10 Atl. Rep. (2d) 733.

The conviction is set aside, with costs.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FANNIE DUNN, PETITIONER, v. JAMES A. O’DAY, RESPONDENT.
    Decided October 11, 1940.
    For the petitioner, Franlcel & Franlcel (Charles Franlcel and David Roslcein, of counsel).
    For the respondent, Homer F. James.

   Hi Hs H< Hí ^ Hi

From the stipulations of counsel and the testimony adduced on May 3d, June 28th, July 14 and July 31st, 1940, I find and determine as follows:

That Ernest Dunn, the decedent, was admittedly in the employ of the respondent, James A. O’Day, on January 14th, 1938, and while in the performance of his duties as a chauffer, was driving the respondent’s automobile from New York to the respondent’s home at Colts Neck, Monmouth county, New Jersey. During this trip an accident occurred arising out of and in the course of Dunn’s employment, which resulted in injuries to him that caused his death on January 14th, 1938. It was testified that the decedent’s earnings at the time of his decease were $15 per week, plus room and board.

That the sole question in controversy is the marital status or relationship of the petitioner, Fannie Dunn, and the deceased employe on the date of his death. The testimony in this regard disclosed the following: On October 4th, 1921, the petitioner married one, Jesse Womack; that said Jesse Womack lived with her for about four days and deserted her; that she never heard from him again, until he was produced during the trial by the respondent. He testified that prior to his marriage to the petitioner and on December 25th, 1917, he married one, Nannie Louis Model in Virginia (as appears from Exhibit P-1) and that she died on Januar3r 7th, 1919 (see Exhibit PS); that on March 21st, 1920, at Newark, New Jersey, he married one, Vera Adams (as shown by Exhibit PS), who abandoned him, thereafter, whereupon he contracted marriage with the petitioner on October 4th, 1921. This purported marriage is evidently a bigamous one and illegal inasmuch as he testified that some two years ago Vera Adams was still living and she was pointed out to him by a friend. He further testified that without any legal dissolution of his marriage to the petitioner or to the said Vera Adams, he married again in New York (see Exhibit PS), to his present wife with whom he is now living and with whom he has had several children.

I find that at the time petitioner went through a ceremony of marriage to Jesse Womack, the said Jesse Womack was already wedded to Vera Adams by virtue of the ceremonial marriage of March 31st, 1920, who was still living and undivorced from him. Consequent^, the petitioner’s marriage to Jesse Womack was totally void. Tyll v. Keller, 94 N. J. Eq. 426, 428; 120 Atl. Rep. 6; Maxwell v. Maxwell, 98 N. J. Eq. 493; 131 Atl. Rep. 215; Ysern v. Horter, 94 N. J. Eq. 135; 118 Atl. Rep. 774. To the same effect are the provisions of Pamph. L. 1902, p. 490, commonly known as the “Marriage act,” and those of the Revision of 1937, 2:50-1.

The void marriage of the petitioner to Jesse Womack in 1921, though not annulled in a direct proceeding, constitutes no obstacle to a valid second marriage by Fannie Dunn. Schafer v. Kreslovickovo, 88 N. J. Eq. 192, 194; 102 Atl. Rep. 246; 88 N. J. Eq. 523; 103 Atl. Rep. 913; affirmed, 89 N. J. Eq. 549; 105 Atl. Rep. 239; State v. Allen, 32 N. J. L. J. 122, and if the prior marriage is utterly void because a spouse is already married, the subsequent marriage is valid. Dare v. Dare, 52 N. J. Eq. 195; 27 Atl. Rep. 654.

The respondent further contends that petitioner was not validly married to decedent Dunn. The petitioner testified that she was a maid in the same household where the decedent was employed as a chauffeur and that in May, 1939, they announced to the mistress of the house that they had been married and thereafter they were permitted to occupy together the room previously assigned to petitioner. Her testimony in this regard was amply corroborated by the mistress of the home, Miss Elizabeth O’Day. Friends of the couple, with whom the petitioner and decedent associated, testified that they knew them as husband and wife. Others produced on behalf of the respondent who resided in Elizabeth, Hew Jersey, and elsewhere, testified that they did not know them to be husband and wife. This testimony is negative at best and not decisive. It was also established that the couple occupied quarters at times in Freehold, when they were not employed; they worked and lived together as man and wife at the respondent’s farm in Colts Hock, where they were also known to some as husband and wife. The insurance agent who called on them to collect the insurance premiums knew them as husband and wife.

The testimony of the respondent’s sister, Miss Elizabeth O’Day, has impressed me considerably and I give it complete credence.

This evidence indicates that Fannie Dunn and Ernest Dunn were husband and wife by virtue of a common law marriage. Such marriages (prior to the enactment of Pamph. L. 1939, ch. 227, amending R. S. 37:1-10) have been recognized as valid in New Jersey. Conkling v. Conkling, 117 N. J. Eq. 218; 175 Atl. Rep. 132.

The two essentials of a common law marriage are capacity and mutual consent presently to become man and wife. Goldbeck v. Goldbeck, 18 N. J. Eq. 42. Cohabitation with matrimonial habit or repute is evidence of marriage. Conkling v. Conkling, supra; Proctor v. Lowe, 105 Id. 536, 541; 148 Atl. Rep. 787; Bolmer v. Edsall, 90 N. J. Eq. 299, 306; 106 Atl. Rep. 646; Applegate v. Applegate, 45 N. J. Eq. 116; 17 Atl. Rep. 293. In Castill v. Hill (1897), 55 N. J. Eq. 479; 40 Atl. Rep. 32, is found a succinct summary of the applicable law where it is held:

“The general rule, under proofs of the kind considered, is that when a man and woman constantly live together, ostensibly as man and wife, claiming to be such, and so demeaning themselves towards each other, and are received into society and are treated by their friends and relations as having and being entitled to that status, the law, in favor of morality and decency, will presume that they have been legally married. Such cohabitation and reputation are said to be matrimonial in distinction from that occasional, hidden and limited cohabitation which marks the meretricious relation.”

Having had an opportunity to observe the demeanor of the witnesses as they appeared and testified and from a careful consideration of all of the testimony adduced, I find that the petitioner and decedent were husband and wife; that the petitioner was actually a part of the decedent’s household at the time of his death and as such is conclusively presumed to be a total dependent. I further find that the petitioner is the widow and total dependent of her deceased husband, Ernest Dunn, and is entitled to the benefits of the Workmen’s Compensation act, 34:15-13, by reason of his death resulting from an accident which arose out of and in the course of his employment with the respondent.

Stephen J. Lokenz,

Deputy Commissioner.


author: Bigelow, Y. C.

text:
    Harry J. Steinlein, complainant, v. Pioneer Building and Loan Association, defendant.
    [Decided September 10th, 1940.]
    On bill, &c.

      Mr. John Warren, for the complainant.

      Mr. Frank Long {Mr. Fred G. Stickel, Jr.), for the defendant.
   Bigelow, Y. C.

This is a bill to redeem. Complainant, September 6th, 1921, borrowed $6,000 from defendant Association on bond and mortgage and the collateral security of sixty shares of installment stock of the Association. It was an ordinary building and loan mortgage transaction.

In the winter of 1930 and again in December, 1932, complainant spoke to some officer of the Association about recasting the mortgage or paying it off, but nothing was said or done of a character to affect the legal or equitable rights of the parties. So no attention need be paid to these incidents.

On March 14th, 1933, the Commissioner of Banking and Insurance issued to defendant “Order Humber one-A,” directing defendant to set up on its books of account reserves according to a certain formula, and forbidding it from making payments of the withdrawal or maturity value of shares, except trivial amounts to necessitous members. The size of the reserve required by the commissioner depended upon the book value of real estate held by the Association and the amount of mortgages on which interest was “excessively in arrears.” The reserve calculated in accordance with the commissioner’s order was $113,014.

On May 23d, the commissioner issued to defendant “Order Number three-A,” directing that the reserve be raised from certain sources—first from reserves already created and unapportioned profits, then from profits previously apportioned, lastly from other specified sources. The old reserves and unapportioned profits of defendant amounted to $29,420 and the profits apportioned to $69,584. The directors of the Association at their regular meeting June 5th, 1933, took action toward compliance with the commissioner’s order and resolved “that the Association, for the purpose of accumulating the required reserve, recapture from the installment shareholders said profits apportioned, amounting to $69,584.05, the same to be placed in the contingent reserve account.” Observe that all profits apportioned were put into reserve. Although the reserve was $14,010 below the amount indicated by the formula, the commissioner on June 9th, 1933, accepted it as sufficient.

The commissioner also, on June 9th, 1933, revoked Order Number one-A so far as defendant was concerned and issued instead to defendant “Order number one.” This order directed that not more than fifty per cent, of the dues paid in by any member shall be repaid on withdrawals or be applied as share credits upon the repayment of mortgage loans. Order three-A contained this provision, “The withdrawal value of shares determined after establishing required reserves as heretofore provided, which shares have been pledged as collateral security to a mortgage loan, may likewise be applied toward recasting of such mortgage loan.” I am uncertain whether these orders had the effect of permitting defendant on and after June 9th, to apply the withdrawal value of shares toward repayment of a mortgage, but I will, assume in favor of complainant, they had such effect.

Complainant lias never paid anything on account of the principal debt but he regularly paid interest and installment dues until and including May 6th, 1933. The dues paid amounted to $4,230 and the dividends apportioned to his shares, $1,575.78, total $5,805.78. The by-laws at that time in effect gave to complainant’s shares a withdrawal value equal to book value.

Complainant after spending the winter iti Florida, returned home in May, 1933, and appeared at a meeting of defendant’s directors—probably the June 5th meeting—and told them he wanted to satisfy his mortgage by taking credit for $5,805.75, the withdrawal value of his shares, and by paying the balance $194.25 in cash. lie was told that it had been necessary to erase the profits on all shares, that the value of his shares was only $4,230, that he would have to pay $1,770—and, I suppose, was also informed, that even the $4,230 credit would have to wait until the commissioner should approve the sufficiency of the reserve which the directors were setting up. From time to time after the June meeting, complainant discussed the matter with one or other of the Association officers, but was never willing to settle on the basis that the profits on his shares had been validly recaptured. And the officers of the Association have always insisted that their action was proper—and on that basis have been carrying on the Association’s business since 1933.

Complainant contends that any reserve required to meet actual or anticipated losses, should have been created by assessing all shareholders a percentage of the value of their shares, including in such value, not only amounts paid to the Association but also profits apportioned to the shares; that the method adopted by the Association was discriminatory, inequitable and unlawful.

The answer of the defendant repeatedly characterizes the profits of the Association which had been apportioned prior to March, 1933, as “unfixed, paper or tentative profits.” The proofs show that these adjectives do not fit the facts.

* ❖ * ffi Mi M<

Perhaps, while the profits of the Association were real, the apportionments were tentative and contingent. Dividends on the income stock, at five and one-half per cent, or six per cent, per annum, were paid semi-annually, June 1st and December 1st, and were declared by the directors, I suppose, in May and November. At the close of each fiscal year, the directors also declared upon the installment shares, a dividend, or apportioned a profit, to be placed to the credit of the shareholders. The rate for 1930 was four and one-half percent. These dividends were calculated, not alone on the amount of dues paid to the Association, but on dues plus dividends previously declared. Tor this purpose at least no distinction was drawn between dues paid and profits apportioned—they equally were the capital investment of the shareholder. The only distinction made before the spring of 1933 was that on a premature withdrawal of shares, the member-might forfeit a percentage of his apportioned profits, dependent upon the age of his shares, but he never forfeited any of his dues paid to the Association.

Let us now examine the operation by which the reserve was set up in June, 1933. There were outstanding:

Income shares ........................ $298,300
Installment shares—dues......... $469,321
Profits apportioned ............... 69,584
■-■ 538,905
$832,205

The reserve set aside, $69,584, was taken wholly from the installment members, none from the paid-up shareholders. It took twelve and nine-tenths per cent, of the former’s interest in the Association, nothing from the latter. But the inequality goes further. Among the installment members, those whose shares were the oldest, lost the most; the newer shares, to which few dividends had been added, lost little. Complainant had twenty-seven per cent, of his share value cancelled; Cronin, who took out his shares in 1930, suffered a six per cent. loss.

If the problem presented by this case were new and if complainant had acted promptly, I might agree with his contention. But defendant is able to cite two decisions that go far toward upholding the method which defendant pursued in setting up the reserve. Thirteenth Ward Building and Loan v. Weissberg, 115 N. J. Eq. 487; 170 Atl. Rep. 662; Newark Twenty-one Building and Loan v. Zuckerberg, 115 N. J. Eq. 579; 171 Atl. Rep. 804. Complainant seeks to distinguish the instant suit on slight variations in fact but unsuccessfully, in my opinion.

An even greater obstacle confronts complainant. When the directors, June 5th, 1933, set up the reserve, he immediately knew of it. Indeed, I am satisfied that some weeks in advance he knew the action was contemplated and would be taken as soon as necessary calculations could be made. He grumbled, he stopped paying dues or interest on his debt but took no action until he instituted this suit November 28th, 1936. Even the prosecution of his suit has been dilatory; replication five months overdue; complainant’s brief on final hearing submitted fifteen months after the testimony was closed. Meanwhile, the Association has been conducting its business on the basis established in June, 1933—new shares have been issued, new loans made, shares have been paid on maturity or on withdrawal, loans satisfied. It is too late to make any general alteration of the 1933 reserve account, and it would be unjust to allow a special alteration in favor of complainant alone. Complainant should have acted immediately, either to enjoin the Association from carrying into effect the resolution of June 5th, or to obtain a judicial determination of the amount required to cancel his mortgage. His laches bar his attack on the reserve. Lazear v. American Steel Foundries, 86 N. J. Eq. 21, 642; 86 N. J. Eq. 252; 100 Atl. Rep. 1030. There is due on complainant’s mortgage the entire sum borrowed, $6,000, with interest at six per cent, from May 6th, 1933. Contra should be allowed the withdrawal value of the pledged shares, namely, dues paid $4,230, and (as 1 recall) one-lialf the profits apportioned thereto since June, 1933. The Association waives fines. Complainant may redeem on this basis. Counsel should be able to agree on the calculation.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JACK KERSNER, PETITIONER, v. N. J. GOOD HUMOR ICE CREAM CO., COMMERCIAL CASUALTY INSURANCE CO., RESPONDENT.
    Decided November 1, 1940.
    For the petitioner, David RosTcein.

    For the respondent, Henry M. Grosman.

   A petition to reopen was filed in the above entitled matter by the respondent, New Jersey Good Humor Ice Cream Co., for the purpose of modifying the award previously entered in this cause on March 15th, 1939, by Deputy Commissioner John J. Stahl.

* ❖ ❖ ❖ * * *

It appears that by a previous determination of facts and rule for judgment filed in this ease and signed by Deputy Commissioner John J. Stahl, the petitioner was awarded as a result of an accident which occurred on July 20th, 1938, compensation for temporary disability from July 20th, 1938, to November 15th, 1938, and permanent disability to the extent of twenty-five per cent, of partial permanent total disability, entitling the petitioner to compensation for 125 weeks, at the rate of $19.68 per week.

The sole question in dispute is whether or not the petitioner’s disability has decreased since the date of the last adjudication.

There was adduced on behalf of the respondent, the testimony of Dr. Harold E. Smith and Dr. Anthony Parisi.

It was the opinion of Dr. Smith that the petitioner’s condition had generally improved and that the motion of his spine was better at the time of this hearing than it was at the time of the previous hearing. On cross-examination, it appears that this doctor estimated the petitioner’s present disability to be five per cent, of partial permanent total disability, and at the time of the last adjudication of this matter, it was the doctor’s opinion that the petitioner had suffered no permanent disability as a result of the said accident.

It was the opinion of Dr. Parisi that as a result of his examination of the petitioner on May 4th, 1940, the petitioner’s condition had generally improved; that he had put on some weight; that there was a decrease in the atrophy of the left lower extremity and that the petitioner generally was in a better physical condition. The doctor further testified that the petitioner had no organic disability and that his permanent disability did not exceed five per cent, of total, based upon an aggravation of a pre-existing congenital deformity. The doctor also testified that it was his opinion that on ^November 7th, 1938, the petitioner’s permanent disability did not exceed five per cent, of total, and that he so testified at the previous trial in this cause.

It requires no citations to reiterate the accepted doctrine that compensation is paid for the disability which ensues from the injury, and not for the specific injury itself. Newcomb v. Albertson, 85 N. J. L. 435; 89 Atl. Rep. 928. The respondent has failed to show that the disability from which the petitioner is now suffering has decreased from that which existed at the time of the prior adjudication.

The petitioner was called to the stand by the respondent and he testified that his condition attributable to the said accident had not improved; that be was suffering from the effects of the said accident to the same degree that he had, at the time of the previous adjudication, and in fact, that his symptoms had become more acute than they were at the time of the previous hearing. He further testified as to the petitioner’s inability to perform his normal body functions and of its interference with his daily work and routine pursuits of life.

After carefully considering all the testimony adduced before me, I find that the respondent has failed to sustain the burden of proof imposed upon it. I further find from the testimony that the petitioner’s disability has not decreased and I see no reason why I should disturb the judgment previously entered.

On a petition to establish and obtain amended compensation allowance for an increase or decrease in disability, the burden is on him who asserts the change. Pasquale v. Clyde Piece Dye Works, 120 N. J. L. 557; 1 Atl. Rep. (2d) 45; Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72 (at p. 80); 186 Atl. Rep. 821; affirmed, 118 N. J. L. 301; 192 Atl. Rep. 62; Rotino v. J. P. Scanlon, Inc., 125 N. J. L. 227; 15 Atl. Rep. (2d) 336. The testimony of increase or of decrease must be predicated upon the condition and causes determined at the original hearing. Cirillo v. United Engineers and Constructors, Inc., 121 N. J. L. 511; 3 Atl. Rep. (2d) 596.

I therefore direct the respondent to continue the payments to the petitioner in conformity with the order entered in this cause by Deputy Commissioner John J. Stahl, on March 15th, 1939.

$ ^ ^ ^

John C. Wegner,

Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    ELK REALTY COMPANY OF NUTLEY, NEW JERSEY, PETITIONER, v. TOWN OF NUTLEY, RESPONDENT.
    Decided November 12, 1940.
    For the petitioner, Barih & Barth (by Eleazer Barth).

    For the respondent, Edwin J. 0. Joerg (by William F. Gorman).

   Quinn, President.

Petitioner appeals from a judgment of the Essex County Board of Taxation denying its claim for exemption from taxation for the year 1939, on account of the land and building in the town of Nutley constituting the lodge building of the Nutley Lodge of Elks. Respondent concedes that the latter is a fraternal organization, and that it is the beneficial owner of the property in question, petitioner being its holding company, but urges that it is not entitled to exemption under the applicable statute, R. S. 54:4-3.26, because of a use of the property allegedly, for pecuniary profit. The proof in this connection was to the effect that occasionally one of the rooms in the building was made available to civic, charitable, religious and youth organizations for meeting purposes. Sometimes a charge was made to cover costs of opening the building, janitor service, and heat, while on other occasions a lesser charge was fixed, and in the case of organizations like the boy scouts, the meeting room was granted free of any charge. This does not represent the type of situation in which we have heretofore found the existence of uses by fraternal organizations of meeting rooms for pecuniary profit, in that they were held out for rental at stated fees to the general public, and were actually rented regularly and continuously to outside organizations in the manner of commercial meeting halls. Trenton Lodge No. 164, Loyal Order of Moose v. City of Trenton, New Jersey Tax Reports, 1934-1939, p. 761 (1939); Fifty-Six Seminary Avenue Corp. v. City of Rahway, New Jersey Tax Reports, 1934-1939, p. 666 (1939).

In the present case the outside use of the building was purely occasional and incidental, was infrequent, and as we find the fact, was not for pecuniary profit, but rather in the exercise by the lodge of the civic duty of making its quarters available at nominal or no charge to local communal and civic organizations and activities. In this case, as contrasted with the cases cited hereinabove, there has been no use for pecuniary profit in the statutory sense. See Trenton Lodge No. 105, Benevolent and Protective Order of Elks v. City of Trenton, 18 N. J. Mis. R. 513; 15 Atl. Rep. (2d) 97 (State Board, 1940).

The judgment of the Essex County Board is reversed, and the assessment ordered canceled.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FLORINA SULMONETTI, PETITIONER, v. AMERICAN CYANAMID COMPANY, IMPROPERLY PLEADED CALCO CHEMICAL, INC., RESPONDENT.
    Decided November 12, 1940.
    For the petitioner, Eugene A. Liotta.

    For the respondent, Gilbert E. Grogan, Jr.

   * * * * ❖ ❖

On January 20th, 1939, Julius 0. Sulmonetti met with an accident arising out of and in the course of his employment, which consisted of a fall in the plant shower room when he slipped on a piece of soap while taking his customary shower hath at the close of the day’s work—a sanitary and health measure prescribed by the respondent for the benefit of those workers whose employment exposes them to chemicals. The evidence discloses that Sulmonetti thereafter continued at his regular work without any interruption or loss of time until February 10th, 1939; that on February 11th, 1939, his day off, while sitting in a chair in a lawyer’s office at Trenton, New Jersey, transacting some private business, he suffered a stroke of apoplexy, requiring his immediate hospitalization at St. Francis Hospital of Trenton; that he was removed to his home in Bound Brook, New Jersey, on the next day and was confined to bed thereafter under the care of Dr. Carmine Falcone until February 21st, 1939; that because of the gradual retrogression of his condition, he was re-hospitalized bn February 21st, 1939—this time at the St. Feter’s Hospital, New Brunswick, New Jersey, where he died on March 5th, 1939, from the effects of a cerebral hemorrhage, following a craniotomy performed' by Dr. Francis M. Clarke.

The evidence further reveals that the petitioner, Fiorina Sulmonetti, is the lawful widow of the decedent; that she and her two infant children, Louis Sulmonetti, age fifteen years, and Julius Sulmonetti, age one year, were members of the decedent’s household at the time of the accident and death; and that they are total dependents by virtue of N. J. S. A. 34:15-13.

While obviously there appears to be no question but that Sulmonetti met with an accident on January 20th, 1939, within the purview and intendment of the Workmen’s Compensation act, the petitioner’s right to compensation is controverted by the respondent upon the ground that the injuries sustained therein were trivial and inconsequential, neither causing nor accelerating the cerebral hemorrhage which resulted in his death on March 5th, 1939.

The sole question in issue, therefore, is whether the death of Sulmonetti resulted from an accident arising out of and in the course of his employment or was due to natural causes.

The burden of proof rests upon the petitioner to establish her right to compensation. The apposite rule applicable to the present case is clearly and succinctly stated by Mr. Justice Trenchard in Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, “that the burden of furnishing evidence from which the inference can be drawn that the death of an employe was caused by an accident arising out of and in the course of employment rests upon the claimant.”

Such burden of proof, however, is not discharged if the evidence is as consistent with the theory that death was due to natural causes, as that it was due to an accident. An award of compensation cannot rest upon imagination, surmise or conjecture, or upon a choice between two views equally compatible with the evidence. The court cannot speculate as to which of several causes might have produced the death of an injured employe. See Curran v. Newark Gear Cutting Machine Co., 37 N. J. L. J. 21.

The proofs in this case, in my opinion, fail to establish that Sulmonetti’s death was due to the accident on January 20th, 1939. While it is true that the decedent slipped and fell in the shower room on the aforesaid day, I am satisfied by the greater weight of the evidence that he did not strike his head on the floor, but landed upon his buttocks, supported by his out-stretched hand; that he arose immediately from the floor with no signs of injury, and that he repaired to the locker room, dressed, checked out at the medical dispensary without mentioning a single word about the mishap or about any physical complaints; and that he thereupon left the plant for his home. The testimony of the respective parties is in sharp conflict as to the chain of events which took place during the three-week period following the mishap. The petitioner testified that, prior to the accident, her husband enjoyed good health; that upon arriving home on the day of the accident he appeared ill and presented a bruise on his right arm and a lump over the right side of his head; and that, subsequent thereto, he appeared drowsy, suffering from incessant headaches for which he took aspirin constantly in an effort to obtain relief. On the other hand, the respondent produced the time card records, which were received in evidence without objection, indicating that the decedent had worked steadily without the loss of any time from January 20th, 1939, the date of the accident, until February 11th, 1939, the day he collapsed in a lawyer’s office in Trenton. Furthermore, Ernest J. Fisher, who was employed by the respondent as Sulmonetti’s helper, testified that at no time from January 20th, 1939, to February 10th, 1939, did Sulmonotti complain of headaches, dizziness or drowsiness; that he performed his work in his accustomed skillful manner; and that, from the witness’ personal observation during this three-week period, he appeared to be in his usual good state of health. What appears to be a very significant factor as developed in the testimony adduced in behalf of the respondent, was that daily visits were made to the plant clinic and hospital by Sulmonetti at the close of his tour of duty for medical checkup for cyanosis due to chemical exposure; and that during these daily examinations for the three-week period immediately following the accident, i. e., from January 20th, 1939, to February 10th, 1939, he made no complaints of headaches, dizziness or drowsiness to the examining physician, nurse or other clinic attendants; nor did he mention the occurrence of the accident to anyone connected with the clinic.

A review of the voluminous medical testimony of the various physicians for the respective parties discloses a definite contrariety of opinion as to whether or not there exists any causal relation between the accident of January 20th, 1939, when he slipped and fell in the shower room, and the cerebral hemorrhage from which he died on March 5th, 1939.

In a situation such as this where the opinions of the several medical experts of the respective parties are so widely conflicting, it becomes necessary for me, in order to> arrive at a decision, to accept the viewpoint which seems to be the more credible, weighty and logical. In my considered judgment, I feel that the greater weight of the medical testimony preponderates overwhelmingly in favor of the respondent, in that the said accident had nothing to do, in the remotest way, with either causing or precipitating the cerebral hemorrhage from which Sulmonetti died on March 5th, 1939.

To warrant a recovery in the present proceeding, it was incumbent upon the petitioner to prove that Sulmonetti’s death was due to a compensable accident and not from natural causes. In Gilbert v. Gilbert Machine Works, Inc., 122 N. J. L. 533; 6 Atl. Rep. (2d) 213, Mr. Justice Heher, in dealing with a similar situation involving a question of causal relation, stated: “To find from these circumstances that the deceased’s demise was the result of an accident arising out of and in the course of his employment is to indulge in pure surmise and conjecture. The law places the burden of proof on the petitioner for compensation; and it is not sustained unless the evidence preponderates in favor of the tendered hypothesis. That must be rational inference, i. e., based upon a preponderance of probabilities according to the common experience of mankind. It is required to be a probable or more probable hypothesis with reference to the possibility of other hypotheses.” Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22; Kuczynski v. Humphrey, 118 N. J. L. 321; 192 Atl. Rep. 371; Manziano v. Public Service Gas Co., 92 N. J. L. 322; 105 Atl. Rep. 484.

Also in the cases of Ezyske v. Waverly Fur Dressing Co., 14 N. J. Mis. R. 218; 183 Atl. Rep. 902, upon claim that the employe fell following cold draft which produced an increase in blood pressure causing cerebral hemorrhage, held burden of proof as to accidental injury not sustained in view of medical testimony that the employe had high blood pressure and that the cerebral hemorrhage was due to natural causes.

And in the more recent case of Hornecker v. Brunner & Sons, Inc., 17 N. J. Mis. R. 368; 9 Atl. Rep. (2d) 528, the sole issue involved a question as to the cause of cerebral hemorrhage. The evidence established that the claimant’s cerebral hemorrhage was caused by a congenital and preexisting abnormal condition of the cerebral arteries and veins, which was in nowise aggravated or accelerated by his work, and that he did not suffer an injury as a result of an accident arising out of and in the course of employment within the meaning of the Workmen’s Compensation act.

Proof of disability or death overtaking a workman at his work is insufficient, in and of itself, to constitute an accident within the intendment of the statute. An accident cannot be inferred simply from the injury or death. See 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.

Upon carefully considering the entire evidence in this case, I am satisfied that the petitioner has failed to sustain the burden of proof in establishing that the death of her husband, Julius C. Sulmonetti, resulted from an accident arising out of and in the course of employment. Accordingly I am constrained to dismiss the petition. I am not convinced that the fall in the shower room on January 20th, 1939, had anything to do, in the remotest way, with his death on March 5th, 1939. While our appellate courts have repeatedly held that the Workmen’s Compensation act is a remedial statute and should be construed liberally in the interest of the workman claiming compensation thereunder (see Sack v. Ocean City, 125 N. J. L. 138; 14 Atl. Rep. (2d) 517; Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72; 186 Atl. Rep. 821; affirmed, 118 N. J. L. 301; 192 Atl. Rep. 62); such liberal construction was never intended to relieve the claimant of his incumbent duty to sustain the burden of proof. See Jacques Wolf & Co. v. Piplin (Supreme Court), 14 N. J. Mis. R. 146; 183 Atl. Rep. 187. This is a case where human impulses compel one to go the limit to palliate in some small measure the unfortunate circumstances of the present petitioner—widowed and left destitute with two small children, and which make a person regret not being possessed with power enough to believe what seems far from warranted by the evidence in the case.

It is, therefore, * * * ordered that the petition be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BANNE SCHANERMAN. PETITIONER, v. LINCOLN MORTGAGE COMPANY, RESPONDENT.
    Decided November 27, 1940.

      For the petitioner, Philip G. Schanerman.

    For the respondent, Cox & Walburg (by Arthur F. Mead).

   * % jH *

The petitioner testified with respect to the occurrence of an accident on February 29th, 1940, when he claims he fell over some tools while he was engaged in repairing some plaster following certain plumbing operations on premises at 51 Willoughby street in Newark. He stated that he had been employed by the Lincoln Mortgage Company to do incidental repair work and also to collect rents and was paid $10 a week for doing this work. He conceded that the original arrangement between himself and the respondent came about originally under an agreement made in about 1932 when the Lincoln Title and Mortgage Guaranty Company under threatened foreclosure proceedings took over the property involved as mortgagee in possession. At that time he was to receive $12.50 a week but it later dropped to $10 a week. He stated that no other arrangement was made thereafter. He stated that the rents which he collected were placed into a special account in a local bank and from that account was taken the normal operating expenses of the building involving repairs, gas and electric, taxes and so forth as well as his $10 a week. He conceded that any checks drawn against this special account were signed by himself and the Lincoln Mortgage Company. He testified that following the accident he endeavored to treat his disabled knee himself but finally sought the services of a doctor on March 17th. The doctor relieved the condition of his knee but not completely.

$ :¡s $ ^ $ ij: ^

On behalf of the respondent Jerome C. Eisenberg, a counselor-at-law, testified concerning the ownership, operation and management of the premises at 51 Willoughby street, Newark. From his testimony it appears that the petitioner owned the property from November 29th, 1926, to April 4th, 1930, and also from October 31st, 1932, to May 1st, 1940, at which time any and all interest of the Lincoln Mortgage Company or its predecessors ceased. Originally the Lincoln Title and Mortgage Guaranty Company held a mortgage on the premises, instituted foreclosure proceedings which were stayed and an agreement entered into with Mr. Schanerman, the petitioner, with respect to possession, operation and management of' the property, Mr. Schanerman desiring to retain what equity he thought he had in the property by managing the property as economically as possible and by retaining as many tenants as possible. Details of the arrangements between the parties included a deposit of all moneys collected in a special account in the National State Bank of Newark in the joint name of Arthur T. Vanderbilt trustee and Mr. Schanerman. From this account was drawn by check signed by both of the parties, moneys for the payment of normal operating expenses. It was further agreed that Mr. Schanerman was to receive a check weekly in the sum of $12.50 for his services as rent collector and that he was also to make minor repairs at his own cost and expense. The witness referred to notes which he had made at the time and stated that Mr. Schanerman had mentioned an arrangement which he had in connection with other property whereby he was allowed to draw a small amount of money each week as an income. He stated that as far as he knew there was no employment of the petitioner by the original mortgagee and he did know that no other change was made in the arrangements when the trustee was discharged and the Lincoln Mortgage Company tcok over the property following the discharge of Arthur T. Vanderbilt as trustee.

Mr. Brown, former auditor and treasurer of the Lincoln Mortgage Company, testified with respect to the operation of the joint account at the National State Bank of Newark. He further testified that Mr. Schanerman took care of all minor and small repairs on the premises and only discussed with him major expenditures for repairs, alterations and so forth. He stated that there was a janitor, Mr. Schappel, on the premises and that Mr. Schanerman, rendered bills at the end of each month for supplies, the janitor’s pay, his own $10 a week and issued a check in payment of these items which check the Lincoln Mortgage Company countersigned if approved. Mr. Brown also presented the insurance policy and stated that it was in the name of Banne Schanerman and the Lincoln Mortgage Company as partners.

# iji # ❖

The situation here presented is one which classifies itself when one considers the negotiations between the petitioner and the Lincoln Mortgage and Title Guaranty Company, then Arthur T. Vanderbilt as trustee for that company and finally the present respondent, Lincoln Mortgage Company. It appears that the only arrangement entered into between the parties was the original arrangement made between the parties when Arthur T. Vanderbilt was trustee for the mortgagee. The crux of the situation is found in the fact that a joint account was opened specially in a local bank which account was used as a depository for the income collected for the operation of the property and out of which account went payment of normal operating expenses of the building. This account was in the name of both the petitioner and the respondent and in order to draw money from this account both parties signed and countersigned the checks. It appears further from the testimony that the petitioner was very much interested in preserving and probably increasing any interest or equity which he had in the property and to that end took care of the actual management, repairs, maintenance and so forth of the property as economically as possible to the extent of doing some of the minor repair work himself.

I am satisfied that the $10 a week which he received was not in the nature of wages or remuneration for actual repair work done by him and that the relationship of master and servant did not exist between the parties. The respondent has contended that the relationship was that of partners. I am further satisfied that they are not partners as defined under Uniform Partnership act of this state. In my opinion and I find as a fact that the parties were engaged in an enterprise for the economical management of the property in question which constituted a joint venture and that they were joint co-enterprisers.

It is, therefore, * * * ordered, that the petition herein be dismissed and judgment be entered in favor of the named respondent.

John C. Wegneb,

Deputy Commissioner.


author: Kinkead, C. C. J.

text:
    STANLEY LELAND, DAVID LELAND, JOSEPH MOORE AND RUTH MOORE, PLAINTIFFS, v. CHARLES HENDERSON AND BENJAMIN STONE, INDIVIDUALLY AND TRADING AS PENN BEVERAGE CO., DEFENDANTS.
    Decided December 12, 1940.
    For the rule, Harry Edelson.

      Contra, Durand, Ivins & Carton (J. Victor Carton).

   Kinkead, C. C. J.

On October 3d, 1938, there was a collision at the intersection of West Farms Road and State Highway Ho. 9-4, in the township of Howell, Monmouth county, between an automobile owned and operated by the plaintiff Stanley Leland and a motor vehicle owned by the defendant Zenjamin Stone, trading as the Penn Beverage Co., and operated by the defendant Charles Henderson.

At the time of the collision the plaintiffs David Leland, Joseph Moore and Ruth Moore were passengers, by invitation, in the Stanley Leland car, and suits were subsequently instituted by all four plaintiffs against the defendants.

On Hovember 23d, 1938, an answer and counter-claim against Stanley Leland was filed on behalf of the defendants. On December 6th, 1938, the defendants instituted a separate suit in the Hew Jersey Supreme Court against Stanley Leland.

At the trial, by agreement of counsel, the suits of the four plaintiffs against the defendants, and the separate suit of the defendants against Stanley Leland were tried together and a voluntary nonsuit was granted on the counter-claim of the defendants against Stanley Leland. .

The evidence in the case clearly demonstrated that the collision was not the result of an unavoidable accident, but rather that it was the result of negligence on the part of either or both of the drivers. There was also no evidence in the case from which the jury could reasonably infer that there was any contributory negligence upon the part of the three invitees.

The facts in Stone et al. v. Dewarns, 7 N. J. Mis. R. 871; 147 Atl. Rep. 455, are very similar to the instant case. There the suit arose out of a collision between two automobiles. The plaintiff, Stone, with plaintiff, Kulick, as a passenger, was going south, and the defendant, who was headed north proceeded to turn west, to his own left into a street called Traphagen street, which turn would take him across the front of the Stone car. Bach driver undertook to cast the blame upon the other, but the fact is that the Stone car hit the defendant’s car on the right running board. Stone sued for damages and loss of profits from its use, and Kulick sued for personal injuries. The defendant counter-claimed against Stone for damages to defendant’s car. The jury rendered a verdict of no cause of action for either plaintiff against defendant, and no cause of action for defendant on his counter-claim against plaintiff named. The court held that a verdict of no cause of action on the counter-claim meant that the defendant was guilty of contributory negligence, entitling the plaintiff passenger, Kulick, to a new trial.

In the instant case the jury was instructed by the court that if it found that the accident occurred through the negligence of both drivers, it should return a verdict in favor of the three plaintiff passengers and a verdict of no cause of action in all the other suits. Instead of following these instructions, however, the jury returned a verdict of no cause of action as to all parties.

The three plaintiff passengers have taken this rule to show cause why the verdict against them in favor of the defendants shoidd not be set aside and a new trial granted because the verdict is contrary to law. There is no rule to show cause as to the plaintiff, Stanley Leland, nor is there any rule in the separate suits of Henderson and Stone against Stanley Leland.

A verdict which is contrary to the law of the case as declared in the charge of the court will be set aside on a rule to show cause. Smith, Kline and French Co. v. Freeman, 93 N. J. L. 45.

The verdict of the jury clearly demonstrated that the jury found there was negligence upon the part of both drivers. This being so the jury under the instructions of the court should have returned a verdict in favor of the three invitees.

Counsel for the defendants frankly concedes that if the suits of the plaintiffs and the counter-claims of the defendants had been submitted to the jury, that the rule of law laid down in Stone et al. v. Dewarns, supra, would appfy, and that the three invitees would under those circumstances have been entitled to a recovery.

The defendants do not seek to set aside the verdict returned against them. It is contended, therefore, that the court only has the authority on this motion to decide whether the verdict against the invitees is justified by the evidence. The defendants contend that the rule is different in the instant case because the issue submitted to the jury was of separate, independent causes of action which were tried together for the sake of convenience, instead of the submission of suit and counter-claim as in Stone et al. v. Dewarns, supra.

The court agrees that there was ample evidence to justify a finding by the jury that the accident occurred solely through the negligence of Stanley Leland. If the suits of the plaintiffs had been tried separate and apart from the suits of the Penn Beverage Company and Henderson against Leland, the court would not have interfered with a verdict returned in favor of the defendants against all four plaintiffs.

The court cannot agree, however, with the attempt of counsel to distinguish the case sub judice from Stone et al. v. Dewarns, supra. The rule of law laid down in that case is clearly applicable here. This being so, it necessarily follows that the jury failed to follow the instructions of the court. Therefore a new trial as to the three invitees must be granted. But in granting this new trial, it may be well to point out that no counter-suits will be involved in the re-trial. Therefore if the jury at the re-trial finds that the invitees were injured solely through the negligence of their driver, Stanley Leland, a verdict in favor of the defendants would have to be upheld.

The rule to show cause will be made absolute.


text:
    NEIL F. DEIGHAN, PLAINTIFF, v. BEVERAGE RETAILER WEEKLY AND TRADE NEWSPAPER CORPORATION, A CORPORATION OF THE STATE OF NEW YORK, A. WEISINGER, JACK H. TREUHAUF AND JOE MATZNER, DEFENDANTS.
    Submitted October 28, 1940
    Decided December 11, 1940.
    Before Justice Perskie, at chambers, pursuant to statute.
    Por the rule, Louis A. Bchijjman and Feder & Rinzler (Jack Rinzler, of counsel).

      Contra, William A. O’Brien.

   Perskie, J.

The basic question requiring decision in this case is whether defendant, a foreign corporation, was properly served. R. S. 2 :26-44.

The answer to the posed question depends entirely upon the particular proofs adduced.

Defendant Beverage Retailer Weekly and Trade Newspaper Corporation, is a corporation of the State of New York; its place of business is in the city of New York; and it has never been authorized to do business in our state. Defendant circulated its paper in New Jersey and in other places. The paper is printed by an independent company in New Jersey, i. e., a company unaffiliated with defendant, at an agreed price. When printed, the paper is mailed to its subscribers in New Jersey from defendant’s home office in New York.

Although the name of Joe Matzner appears as the New Jersey manager on the masthead of the paper, the proofs satisfy me that Matzner neither had nor performed any managerial duties. His work consisted solely of soliciting advertisements for the paper for which he was paid a commission, and of gathering news. His duty was to send the advertisements or news, or both, obtained by him, to defendant’s home office in New York City where it was either accepted or rejected. That is not doing business within our state. Cf. Hoffman v. Carter, 117 N. J. L. 205; 187 Atl. Rep. 506; affirmed, 118 N. J. L. 379; 192 Atl. Rep. 825; Manhattan Overseas Co., Inc., v. Camden County Beverage Co., 125 N. J. L. 239; 15 Atl. Rep. (2d) 217.

In this posture of the proofs, plaintiff brought an action for libel against defendant Matzner and two others. Matzner was served with a copy of the summons and complaint at his place of abode in Newark, New Jersey. Then counsel for plaintiff apparently learned that Matzner would attend a banquet on Sunday night, March 17th, 1940, at the Walt Whitman Hotel, Camden, New Jersejc Pursuant to the customary request by the sheriff of the county of Camden to be advised, in writing, upon whom, when and where process was to be served, counsel for plaintiff instructed the sheriff “to serve * * * Matzner * * * at the Walt Whitman Hotel on March 18th” (1940). Matzner was deliberately engaged in conversation and when the midnight hour of Sunday, March 17th, 1940, had passed, the deputy sheriff, as planned, approached Matzner and, according to plaintiff’s version, said to him, “Are you Joe Matzner, manager of the Beverage Betailer Weekly and Trade Newspaper?” Upon receiving an affirmative repty, he “presented him with the summons.” To Matzner’s question, “What is this?” the deputy replied, “That is a summons.” Matzner then said, “I have got one of these, I have one up in Newark,” to which the deputy answered, “That is another one for you.” According to the defendant’s version, nothing was said by the deputy sheriff as to whether Matzner was the manager of the Beverage Betailer Weekly and Trade Newspaper. At all events, the testimony is clear that the deputy sheriff did not tell Matzner, as he was obliged to tell him, if he intended to serve him in a representative capacity, that he was in fact being served in such capacity. 50 C. J. 569, § 374.

Notwithstanding the introductory remarks by the deputy sheriff, the official return of his service states that Matzner was served “personally.”

True, Matzner delivered the summons and complaint to defendant at its New York office, but it is equally true that when counsel for defendant conferred with counsel for plaintiff and told him, in effect, that he had ascertained that defendant had not been served, counsel for plaintiff stated that “* * * these defendants [meaning the corporation], were not to be considered as having been served until such time as they were properly served by his office, through the sheriff of the respective counties.” This testimony stands uncontradicted. Thereafter counsel for plaintiff sought to have the sheriff amend the return to read that Matzner was served “as agent for Beverage Betailer Weekly and Trade Newspaper Corporation.” The sheriff, however, properly took the position that he had not been requested to make such service and, therefore, made no such service. The sheriff pointed out that ho had, in fact, not been supplied with the required number of copies of the summons and complaint enabling him to have made any such service.

Even assuming that the deputy sheriff did say to Matzner, “Are you the manager,” &c., I do not, under the circumstances, construe the use of those words to be sufficient to constitute a proper service of process upon Matzner as the representative of defendant corporation. I rather construe the use of those words as a means employed by the deputy sheriff to identify Matzner.

Whatever the intention of the deputy sheriff may have been, the proofs fall altogether short of clearly and unequivocally overthrowing his official return, viz., that he served Matzner “personally.” Sweeney v. Miner, 88 N. J. L. 361, 366: 95 Atl. Rep. 1014.

Neither do the proofs, in my opinion, sufficiently establish an agency on the part of Matzner implying authority to receive or accept service for defendant. Carroll v. New York, &c., Railroad Co., 65 N. J. L. 124; 46 Atl. Rep. 708; Mulhearn v. Press Publishing Co., 53 N. J. L. 150; 20 Atl. Rep. 760. Matzner occupied desk room, in a private office, at Newark, where, at his own costs, he carried on his stated duties together with others entirely unrelated to those which he performed for defendant. The facts in the instant case are clearly distinguishable from those appearing in the case of The Massachusetts Protective Association v. Freund, 116 N. J. L. 65; 181 Atl. Rep. 905, a case strongly relied upon by plaintiff, and out of which facts the court spelled an agency “sufficiently comprehensive” to support service. In that case the foreign corporate association held out S. K. Spalding as its “general agent.” The office of the agent was held out as the office of the association. All premiums on policies from within the state were made payable at the agent’s office; and receipts thei-efor were there delivered. The agent countersigned all policies issued for delivery in this state and otherwise acted as its accredited general agent. Here nothing done by Matzner was binding on defendant until it was accepted by defendant in New York.

Furthermore, even if it could be assumed that Matzner was defendant’s agent, there is not a scintilla of proof to indicate that the cause of action arose out of any business with which Matzner, as agent for defendant, had any connection. Giovanni v. Hartford Accident, &c., Co., 120 N. J. L. 580; 1 Atl. Rep. (2d) 41.

In light of all that has been written the stated question requiring decision is answered in the negative. The defendant, a foreign corporation, was not properly served.

Accordingly, the order under date of June 14th, 1940, for an interlocutory judgment be and the same is hereby set aside and the interlocutory judgment, entered by default, be and the same is hereby vacated, with costs.