author: John C. Wegnek, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN EZYSKE, PETITIONER, v. WAVERLY FUR DRESSING COMPANY, RESPONDENT.
    Decided March 11, 1936.
    For the petitioner, Ishmael Shlarew.

    For the respondent, Avidan & Avidan.

   * * * * * * *

The substance of the testimony for the petitioner on the question of an accident in its material aspect was that while petitioner was working at his factory bench by reason of the opening of a door to the rear of the petitioner, a strong draft was created with the window in front of the petitioner, which was then opened, which draft either chilled the petitioner who had been perspiring previous to that, or caused him to fall either against the wall or to the floor. The exact cause of the fall as related by the petitioner is not stated very clearly. * * * It is alleged that petitioner fell about three times in this like manner, the last time being after he had taken a drink of water on the factory premises.

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All of the doctors who testified for the petitioner, diagnosed petitioner’s disability as a condition commonly known as a cerebral hemorrhage, some calling it a hemiplegia on the left side. It was conceded that the petitioner had an abnormally high blood pressure prior to the hemorrhage. Because the blood pressure having been high immediately following the hemorrhage, it is presumed that it must have been still higher prior to the hemorrhage. All doctors for the petitioner conceded that the condition from which the petitioner suffered could reasonably follow from natural causes because of the petitioner’s high blood pressure. An attempt was made by the medical testimony produced on behalf of the petitioner to show that the chilling of the body caused by the sudden gust of wind, which was alleged to have been produced at or about the time of petitioner’s fall, could produce such an increase in blood pressure as to cause the cerebral hemorrhage which petitioner suffered.

Bor the respondent testimony was produced by Mr. Hyman Bothberg, who was one of the persons interested in the ownership of the respondent company, who stated that at the time of the petitioner’s alleged collapse, he was in the same factory room with the petitioner; that he noticed petitioner leave his work bench, proceeding to the same room for a drink of water and then return to the work bench and just about the time petitioner was standing there, petitioner suddenly collapsed. Mr. Bothberg then removed petitioner to the outside of the room and noticing his serious condition immediately removed him to the Beth Israel Hospital. Petitioner’s testimony concedes that Mr. Bothberg removed petitioner to a point outside of the premises. Mr. Bothberg states definitely that petitioner collapsed but once.

Mr. Bothberg further testified that petitioner was working in a room used by the “floshers,” fieshers being persons who separate skins from furs with the use of knives. The work is not of a heavy nature. To the rear of this particular room is a second room part of which has been set off as a drying room and to the rear of which are the two doors, which are referred to in the testimony. It is alleged that the opening of these two doors caused the gale or the draft which produced a chilling of petitioner’s body. Mr. Bothberg was very definite in his testimony that these two doors were closed all during the morning of petitioner’s collapse. The collapse is alleged to have occurred between nine and ten o’clock in the morning. Not only were these two doors closed at that particular time but were closed by a lock and could only be opened with the aid of a key. The two doors appear to be heavy metal doors and open from the bottom to the top. Testimony appears that these doors are generally closed throughout the morning. They are open only in the evening for a short time to permit loading or unloading of the merchandise or goods.

Petitioner himself in his own testimony conceded that the door is open only for the purpose of loading and unloading.

Further, the testimony of Mr. Eothberg was to the effect that the distance from the place where petitioner was working at his work bench to these two doors in question was a distance of approximately seventy feet. Between the two rooms, that is, the room in which appears petitioner’s work bench, and the second room to the rear of which are the two doors in question, is a small door passage which is in part obstructed by a tank. The distance between the work bench and the two doors in question as further shown by the photographs and testimony of the witnesses, definitely must be greater than as testified to by petitioner.

That petitioner collapsed in the manner above recited and that he collapsed but once is further confirmed by the testimony of two co-workers, Mr. Louis Feimen and Mr. Hyman Drescher. They testified to the effect that they simply noticed that the petitioner proceeded to take a glass of water and that as petitioner returned to his work bench, he suddenly collapsed without any further cause and was then removed by Mr. Eothberg outside.

The respondent further introduced into evidence the hospital record of Beth Israel Hospital of Newark, New Jersey, by Dr. Margolis who received the petitioner at the hospital on his admission Dr. Margolis testifying from the hospital record reported in his own handwriting, stated that petitioner told him that he (petitioner) suddenly noted a severe pain in the right side of his head, which was accompanied by a feeling of faintness and dizziness; that petitioner had been suffering from headaches prior to the alleged collapse; that petitioner had a blood pressure which was very high and abnormal. The records of St. Peter’s General Hospital, New Brunswick, New Jersey, although offered into evidence by respondent were objected to by petitioner and, therefore, any information of these hospital records were not available for consideration.

In view of the above testimony as produced by the respondent and as further corroborated by the records of the Beth Israel Hospital, I find and determine that the petitioner in this case did not sustain an accident within the meaning of the Workmen’s Compensation act; that the doors to the rear of petitioner’s work bench were in fact closed and that, therefore, no such draft or force of wind was produced as alleged by the petitioner.

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The medical testimony produced by the respondent by Dr. Margolis, Dr. Blumberg and Dr. Koppel, the last two of whom examined petitioner, seems to be clear to the effect that the mere chilling of the body will not produce an increase in blood pressure so as to produce any cerebral hemorrhage. The chilling of the body will simply affect the circulatory system on the surface area. It could only affect the cutaneous circulation and could not produce the collapse described in this case. Dr. Blumberg, who has had considerable experience in these types of case, further testified that he never heard of a case of cerebral hemorrhage being produced in the manner claimed by petitioner in this case.

Prom all of the foregoing, I do therefore find and determine that the petitioner did not sustain an accident arising out of and in the course of his employment with the respondent; that petitioner’s disability was caused by a cerebral hemorrhage which was due to natural causes unrelated to his employment or conditions of employment, and further, that no accident within the meaning of the Workmen’s Compensation act or trauma in anywise aggravated or accelerated the petitioner’s pre-existing condition to produce the ultimate cerebral hemorrhage.

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John C. Wegnek, Deputy Commissioner.


source: Caselaw Access Project

author: Portee, C. C. J.

license: Public Domain

text:
    BERNICE BERRY AND WILLIAM BERRY, HER HUSBAND, PLAINTIFFS, v. TRAVELERS INSURANCE COMPANY AND TRAVELERS INDEMNITY COMPANY, CORPORATIONS, DEFENDANTS.
    Decided February 4, 1936.
    For the plaintiffs, Harry (John (John A. Laird, of counsel).
    For the defendants, Lmdabury, JDepue & Faulks (Walter F. Waldau, of counsel).
   Portee, C. C. J.

Motion before me, as Supreme Court commissioner, is to strike the complaint on the allegation that it is in part sham and in part frivolous.

It appears that on May 15th, 1933, there was a collision between an automobile owned by William Berry and driven by Bernice Berry, both plaintiffs herein, and an automobile truck owned by Abbotts Dairies, Incorporated, and driven by Edward A Moncovage. As a result, Mrs. Berry was injured and Mr. Berry’s automobile was damaged. Suit was instituted in the Esses County Circuit Court against the Abbotts Dairies, Incorporated, and Moncovage for damages suffered by the Berrys on the charge of negligence by Moncovage who was alleged to be the agent of Abbotts Dairies, Incorporated. At the time of the accident Abbotts Dairies, Incorporated, was insured against liability in the operation of its truck, by the insurance companies, defendants in the instant suit.

The action above described was tried by the late Judge Mountain on September 25th, 1934. The said insurance companies defended the action on behalf of their insured. Moncovage was defended by other counsel. At the close of that trial the court directed a verdict in favor of Abbotts Dairies, Incorporated. It is said here, and not disputed, that the ground for such ruling was that the testimony showed that Moncovage was a garage and automobile repair man and not an agent or servant of the Abbotts Dairies, Incorporated. The action continued against Moncovage alone and resulted in a verdict against him for $1,000. Execution was issued against Moncovage and returned unsatisfied. The instant action is to recover the amount of that judgment and costs against the defendant insurance companies under the terms and conditions of the insurance contracts.

It is the contention of the defendants that no valid cause of action has been shown for these reasons:

First, that the insurance did not cover Moncovage’s actions because he was not operating the truck “commercially” in that he was not on the business of the insured in transporting or delivering goods for it but, on the contrary, was in possession of the truck as a garageman for the purpose of repairing it, and that the insurance contracts expressly excepted from coverage such conditions;

Second, that the issues of fact on which recovery is sought have already been judicially decided in the action above described between the parties hereto or their privies, and that the doctrine of res adjudicada or estoppel applies and is a bar to recovery.

I am of the opinion that such is the law. The recent case of Peterson v. Preferred, Accident Insurance Co., 114 N. J. L. 180; 176 Atl. Rep. 897, supports that view, is directly in point, and is controllmg.

The issue of fact which was determined in the previous action was the status of Moncovage at the time of the accident. That is the precise question upon which the case at bar hinges. It having been adjudged by a competent court, it is conclusive as between the parties to that action and persons in privity with them and cannot again be litigated by such parties whether upon the same cause of action or upon another. This is so despite the offer of testimony that the testimony given in the previous action was false. No affidavit to that effect can now be considered in this case. Grant Inventions Co. v. Grant Oil Burner Corp., 104 N. J. Eq. 341; 145 Atl. Rep. 721. While there is not complete identity of the parties in the two actions, there clearly is under the facts and circumstances such privity as is contemplated in Peterson v. Preferred Accident Insurance Co., supra, and many other cases in point. See, also, Carter v. Public Service Gas Co., 100 N. J. L. 374; 126 Atl. Rep. 456.

No proper cause of action having been shown, the complaint will be stricken.


author: Pee Curiam.

text:
    CARL J. RAHN, PLAINTIFF-RESPONDENT, v. HARTFORD FIRE INSURANCE COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Argued January 22, 1936
    Decided March 26, 1936.
    Before Beogan, Chiee Justice, and Justices Lloyd and Donges.
    For the appellants, Arthur T. Vanderbilt and G. Dixon Speahman.

    For the respondent, Joseph T. Lieblich.

   Pee Curiam.

Plaintiff has a verdict against defendants in a suit tried in the Passaic County Court of Common Pleas, on two policies of fire insurance issued by defendants covering a frame bungalow at Dingman’s Ferry, Pennsylvania, written by one Colin Black, agent of the companies for writing policies, dated June 1st, 1932, and insuring plaintiff against loss by fire to said property, to an extent not to exceed $1,500 on each policy. Each policy warranted that the assured, Carl J. Rahn, was the owner of the premises described therein. Each policy contained these provisions:

“This entire policy shall be void * * * if the interest of the insured in the property be not truly stated therein.” “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall he void * * * if the interest of the insured be other than unconditional and sole ownership.”

“No one shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement added thereto; nor shall any such provision or condition be held to be waived unless such waiver shall be in writing added hereto.”

A fire occurred on October 20th, 1932, and a total loss ensued. Claim was made for the limits of the policies, and these claims were turned over to one Robinson, an adjuster for both companies.

The principal point litigated was as to the ownership of the property. It developed that the assured had, on February 15th, 1932, executed a deed for the property to his brother, Hans Rahn, which deed was recorded on February 17th, 1932. Upon learning of this conveyance, Robinson testified he told plaintiff on November 1st, 1932, “that in view of the fact that the policy was issued in his name and the deed to the property was in his brother’s name, that I could not proceed with any of the adjustment of this loss without endangering the companies as to the admission of liability, unless this non-waiver agreement was signed,” which agreement plaintiff signed on November 1st, 1932.

Plaintiff asserted that, on February 18th, 1932, Hans Rahn executed a deed for the property to plaintiff, Carl Rahn, which deed was not recorded until October 24th, 1933, more than a year after the fire. It was about the validity of this deed that the case was submitted to the jury.

In this posture of proofs, the court permitted this question to be answered, over objection of defendant:

“Q. Now, Mr. Eahn, when you and your brother, Hans, came into Milford to see agent Black and there was a discussion with respect to the signing of a paper, what, if anything, did the agent Black say or do with respect to the company’s admission or denial of liability or making payment? A. Mr. Black told me after I had disclosed the state of title of the property that it made no difference and that the company would settle the claims and it was after the non-waiver agreement was sent to me for signature.”

Mr. Black testified for plaintiff and disclaimed any authority beyond that contained in his written “Certificate of Authority” issued by defendant The Eranklin Eire Insurance Company, which was “to make, to countersign, issue and renew policies of insurance * * * when signed by the

officers of said company, and to consent in writing to assignments and transfers thereof, also to collect premiums for transmission to the company.” The written authority of the Hartford Company was substantially the same.

We think it was harmful error to permit this question to be answered. Despite the denial of authority b3r Black, and in the absence of any proof of such authority, to permit the plaintiff to testify that Black said the compa^ admitted liability, in spite of knowledge of a failure of title in plaintiff, was equivalent to telling the jury that the defense was not made in good faith, and that the defendants conceded plaintiff’s right to recover.

Nor was the question justified, as plaintiff argues, because defendant’s counsel on cross-examination of plaintiff, had asked him about a conversation, on October 23d, 1932, between Black and himself. That conversation had to do with the extent of the loss, and also about the existence of a deed from Hans Hahn to plaintiff, which plaintiff testified he told Black had been executed and delivered. The question, the admission of which is assigned as error, sought to establish, not what Black thought, but that the defendants admitted liability and would settle. Being admitted after a long argument as to the authority of Black to bind defendants, it could not fail to tend to impress the jury that the companies’ defense was not substantial and in good faith.

In view of our conclusion on this ground of appeal, it becomes unnecessary to pass upon the other questions raised.

The judgments under review are reversed, and a new trial granted.


author: Pee Cubiam.

text:
    BESSIE RUBY ET AL., PLAINTIFFS-RESPONDENTS, v. EMIL QUOTIDIAN, DEFENDANT-APPELLANT.
    Argued January 22, 1936
    Decided March 26, 1936.
    Before Bbogan, Chief Justice, and Justices Lloyd and Donges.
    For the appellant, Carey é Lane.

    For the respondents, Edward J. Madden.

   Pee Cubiam.

This ease is before us on appeal.

The complaint consists of two counts. The first count alleges that on December 20th, 1932, the plaintiff Bessie Buby was injured through the negligence of the defendant and seeks damages therefor. In the second count, Michael Buby, husband of Bessie, alleges that he was obliged to hire assistance to take care of his wife’s usual household duties for a long period of time and was obliged to expend large sums of money for hospital care, medical treatment, medicines, nurses and doctors’ expenses. There was no claim for compensation for the loss of consortium. The trial judge, on defendant’s motion, struck out the third paragraph of the second count, alleging payment of medical expenses and the like, on the ground that the doctors’ bills and hospital bill had not been proved.

The trial resulted in a verdict in favor of plaintiff Bessie Buby in the sum of $2,400 and a verdict of no cause of action against Michael Buby. A rule to show cause why the verdict should not be set aside on the ground that the verdicts are irreconcilable; the result of mistake; and excessive, was allowed and discharged by the trial judge.

On this appeal this action is alleged to be error and an abuse of discretion. Matters resting in discretion will not generally be reviewed on appeal, but may be so dealt with where abuse of discretion is shown. Martin v. Lehigh Valley Railroad Co., 114 N. J. L. 243; 176 Atl. Rep. 665.

In the instant case there was testimony that a Miss Barry for almost three years came every Saturday to plaintiffs’ home and did some cleaning for which she was paid seventy-five cents a week, and that plaintiff’s sister-in-law, Mrs. Young, was paid $2 a day for two weeks. While there was no claim in the complaint for loss of consortium the court, without objection, charged the jury as follows:

“Mr. Michael Buby is joined as a plaintiff here, because he says that he has been deprived of his wife’s society and companionship for the time she has been ill. If you find that Mrs. Buby is entitled to a verdict under the rules which I have laid down, you may consider the question of a sum of money which would compensate Michael Buby for that deprivation; because a husband under our law is entitled to the services and the association and consortium of his wife, as the Latin word goes, and if a person deprives him of that, that person is responsible in damages therefor.”

It will be observed that the jury disregarded the testimony with respect to outlays for assistance in the house, and disregarded the charge of the court that Michael Buby was entitled to be compensated lor loss of consortium. Liability being found, it followed, as a legal necessity, that there should have been a verdict for the husband.

This situation, in principle, is governed by Lanning v. Trenton and Mercer County Traction Corp., 3 N. J. Mis. R. 1006; 130 Atl. Rep. 444, where this court set aside a verdict under almost identical circumstances. See, also, Swiencicki et ux. v. Wieczerzak, 6 N. J. Mis. R. 145; 140 Atl. Rep. 248; Henderson v. Abbotts Alderney Dairies, 7 N. J. Mis. R. 454; 146 Atl. Rep. 47; Doherty v. Boyajian et al., 9 N. J. Mis. R. 263; 153 Atl. Rep. 375.

In the situation presented, the jury having entirely disregarded the evidence and the charge of the court, we conclude that there was an abuse of discretion in discharging the rule to show cause, for the reasons above stated, and the judgment is reversed and the cause remanded to the Court of Common Pleas with instructions to make the rule to show cause absolute.


author: Heher, J.

text:
    PATRICK DOUGHERTY, RESPONDENT, v. ANTHONY P. MILLER, INCORPORATED, PROSECUTOR.
    Argued October 3, 1935
    Decided March 27, 1936.
    Before Justices Trenchari>, He her and PeesEra.
    Por the prosecutor, Bolte & Tripician (Harry Miller, of counsel).
    Por the respondent, H. Albert Hyell.

   The opinion of the court was delivered by

Heher, J.

This is a workmen’s compensation case. On February 9th, 1934, the respondent, while lifting heavy railroad switch ties in the performance of his duties as a laborer employed by prosecutor, suffered a back injury, which, concededly, incapacitated him for a period of four and three-sevenths weeks. Prosecutor’s physician diagnosed his condition as a strain of the muscles of the right lumbar region, and treated him until March 17th, 1934, when it was concluded that full recovery was had, and the compensation payments were discontinued.

The employe thereupon filed a petition with the compensation bureau, claiming a permanent injury, and he was awarded ten per cent, of total disability. There were cross-appeals to the Atlantic County Court of Common Pleas, and that tribunal increased the award from ten per cent, to fifty per cent, of total disability.

The first point made by prosecutor is that “there is no evidence to sustain the finding that the accident to the petitioner on February 9th, 1934, resulted in an aggravation of a pre-existing arthritic condition.”

We find that there was such evidence, and that it warranted the finding that respondent was permanently disabled from the resulting injury. While he suffered an injury to his back in April, 1931, the evidence tends to show that it was not in the same region, nor was it permanent in character—at least he suffered no observable permanent disability therefrom. He continued his usual employment until the injury in question was sustained, and since then has been incapacitated. His disabling condition has been diagnosed as osteo-arthritis of the lumbar spine, and of the sacro iliac joint; and there is ample medical testimony, apart from the evidence that disability followed the injury, reasonably tending to show that, in all human likelihood, the disability was the direct result of the injury, although its fundamental cause was arthritis. It is conceded that respondent suffered the injury claimed. Prosecutor’s physician found that he had “strained all the muscles of the lumbar region on the right side.” While he insisted that the condition resulting in disability was in no sense due to the injury, the weight of the medical evidence is to the contrary. And there is, in addition, evidence of a marked decline in physical powers immediately after the accident, and an inability to do thereafter the work that before he could do without apparent strain or discomfort.

True, one of prosecutor’s medical witnesses, who examined respondent in June, 1931, testified that, while he had then fully recovered from the earlier injury, he had an arthritic condition of the spine, and in consequence thereof “would not be able to do the heavy work an ordinary man would do, probably half as much.” But the physician did not examine him again, and he agreed that there could have been an improvement. In view of the uncontroverted evidence that respondent was thereafter, and until the occurrence of the injury in question, able to do laborious work, we are not justified in finding from this physician’s testimony, based upon the one examination, and qualified as it was, that respondent, prior to this last injury, had a fifty per cent, disability, as contended by appellant.

Secondly, it is maintained that “there is no evidence to sustain the judgment of the Court of Common Pleas in increasing the award from ten per cent, to fifty per cent, total disability.”

The estimates of disability range from fifty per cent, to seventy-five per cent., and under the circumstances we are not inclined to disturb the award made in the Pleas. It is conceded that respondent is permanently disabled from doing the work that he was able to do before he sustained the injury in question, and, that being so, we think a finding of fifty per cent, total disability is not unreasonable.

Judgment affirmed, with costs.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    HELEN CICHOCKI, EXECUTRIX OF THE ESTATE OF ANDREW CICHOCKI, DECEASED, v. GEIGY COMPANY, INCORPORATED.
    Decided January 6, 1936.
    For the plaintiff, Matthew M. Slepin (Andrew 0. Wittreich, of counsel).
    For the defendant, Townsend & Doyle and Marie Townsend, Jr.

   Brown, C. C. J.

The plaintiff brings this action to recover for injuries alleged to have been sustained by the decedent while working for the defendant between the 1st day of April, 1931, and the 1st day of April, 1932. The injuries, it is charged, resulted in a disease known as silicosis. The decedent died about one year after the last mentioned date from cancer. The plaintiff does not seek to hold the defendant responsible for the death, nor is there any claim made for any excitation of or aggravation of the disease of silicosis previous to the 1st day of April, 1931. The complaint contains a general allegation of negligence, and thereafter sets forth the particulars to the effect that the defendant failed to provide a safe place for the decedent to work with proper ventilation, that proper appliances were not furnished, and that the defendant failed to inform the decedent of the hidden dangers of his employment. In deciding this motion, the court is fully cognizant of the accepted law of this state that on a motion for a nonsuit the truth of the plaintiff’s evidence is admitted and every inference of fact which may be legitimately drawn therefrom. Jones v. Public Service Railway Co., 86 N. J. L. 646; 92 Atl. Rep. 397. Also that the only presumptions of fact which the law recognizes are immediate inferences from the facts proven. Price v. New York Central Railroad Co., 92 N. J. L. 429; 105 Atl. Rep. 187.

It is of importance to note the word “immediate” in considering this motion. From the testimony it appears that the disease of silicosis manifested itself between April, 1931, and the year following. The decedent was working as an engineer and fireman in the dye works of the defendant during this period, and, upon becoming ill, he left the employ of the defendant in April, 1932, and he died about a year thereafter, from cancer, at the age of sixty-four years. His illness was first diagnosed as chronic bronchitis, and, upon X-rays being taken, it was diagnosed as pneumoconiosis ox-silicosis, which the court understands is one of the elements of the first mentioned disease. The decedent worked as an engineer and fireman in a brass works for twenty years before his employment with the defendant, and thereafter worked for the defendant for fourteen years. His only other employment was to operate a heating plant at his own home. The testimony also shows that the disease of silicosis is of comparatively recent knowledge to the medical profession, and can only be contracted through the inhalation of dust containing silica of particles of a size of not more than ten microns, larger sizes of silica particles being incapable of penetrating the lungs and being eliminated by the human mechanism of the body; some of the larger particles being caught in the nose or expectorated and the remainder eliminated, evidently, through the intestines.

The building in which the decedent worked for the defendant was two or three stories in height. On the ground floor there were three rooms separated by partitions and doors. One room was used for mixing dye materials in six rotary mills that varied in size from two to four feet in height. There was a door leading from the mixing room to an adjoining room known as the engine room or shower room, and another door leading from the shower room to the boiler room. The door leading from the mixing room to the shower room was operated by a pulley and weight; was self-closing and was usually closed. When the decedent first became employed by the defendant, steam power was used in the premises; several years before the decedent became ill electric power was substituted, the engine was removed from the engine room, and the room was converted into a locker and wash room equipped with showers for the convenience of the workmen. Notwithstanding this change of power, the decedent was retained in the employ of the defendant because of his many years of employment. The second floor of the building was used as a storage space for raw materials which were stored in barrels or drums.

The decedent’s duties, after the change of power, were to keep a fire in the boiler, which was reduced to low pressure, so as to supply heat-to the premises and furnish hot water in the shower room. He also, usually before operations and during the noon hour, oiled the mills and shafting in the mixing room, although when occasion required he would make repairs to the belting and shafts and do the oiling in the mixing room while some of the mills were in operation. The decedent was not constantly employed in the mixing room, but, on the contrary, his employment in the mixing room was occasional when any of the mills were in operation and not for long periods of time. Operations in the mixing room were carried on by the employes who worked daily ten or more hours in the room continuously, except during the noon hour.

Baw material was taken from the storage room in barrels or drums, the barrels were broken apart and the materials shoveled or scooped from the drums and broken barrels into the mills through an opening in the latter. Forty to fifty barrels were thus used each day. When the loading was finished, the opening was closed tightly and the mill put in a rotary motion. Over the top or under each mill was constructed a duct or pipe that extended to a washing apparatus in another part of the premises. By suction the air in the mixing room was changed every four minutes and was submitted to a spraying process where the solids were separated from the air and passed to the sewer outlets and the air to a stack. The mixing room was equipped with ducts, in operation in other parts of the room than those previously mentioned. There were windows in the premises, but they were closed so as to prevent the air therein from escaping to neighboring premises. While the mills were in operation, dust was present in the mixing room. Its intensity was of varying degrees. The plaintiff’s witness, who worked for years in this room, testified that during the loading operations it was so dense that he could hardly recognize a fellow workman and that the workmen would become so covered with dust about their faces and parts of their bodies that they would take showers after their work and would expectorate quantities of the dye coloring after leaving the plant. It also appeared that, while the decedent was not continuously in the mixing room, when he was there the decedent’s nose, face, and ears would become covered with the coloring matter, and he would, upon arriving home, expectorate substances of the same color.

The superintendent of the defendant company, who was called as a witness, testified that the ventilating system was in good working order and that the dust was not perceptible to the eye in the mixing room during operations, though a person passing through the room would get some of the coloring matter on his face. This witness admitted that respirators were furnished by the defendant for the workmen. There were none in use or provided during the period of which the plaintiff complains; cloths were furnished, however, to the workmen to be used as handkerchiefs. It also appeared that a respirator would answer in some degree as a preventative against the inhalation of dust.

In the fall of 1931 the decedent gave his son-in-law a small can of blue powder that was taken from a barrel in the storage room. It does not appear whether the barrel from which this was taken was then opened for the purpose or from what part of the barrel the specimen was taken. It was examined by a chemist, and he found the specimen to contain .483 per cent, of free silica. No dust count was made nor was any measurement taken of the size of the silica particles. No effort was made to ascertain the number of particles of silica of the size of ten microns or under. This witness for the plaintiff also testified that silica, to become dust, depends upon the size of the particles. The testimony also discloses that the air we breathe is usually charged in some degree with silica and that it takes from six months to two years for silicosis to manifest itself after the inhalation, depending upon the degree of concentration and exposure. There was no analysis made of the dust or materials that might have been found in the mixing room. It appeared that two hundred and fifty different kinds of dyes were mixed in the room where the mills were located.

It is accepted law in this state that under a contract of employment it becomes the master’s duty to take reasonable care to provide a proper and safe place in which the servant may work, to furnish suitable tools and implements with which to work. The servant, on his part, assumes the risks incident to his employment; also those plain and obvious dangers which are apparent to one of ordinary skill and understanding. McDonald v. Standard Oil Co., 69 N. J. L. 445; 55 Atl. Rep. 289. The duty of a master to a servant is discharged by providing for the use of the servant tools which are in common and ordina^ use and which are reasonably safe and fit for the purpose to which they are to be applied. The liability or responsibility of a master to instruct a servant as to the danger of employment arises only when the servant is himself ignorant and when the master knows the fact he ought to know. Tompkins v. Marine Engine and Machine Co., 70 N. J. L. 330; 58 Atl. Rep. 393.

Theories and inferences do not authorize a verdict or establish negligence unless they are the only conclusions which can reasonably be drawn from the facts proven. Negligence is a fact which must be shown. It will not be presumed. There is always a presumption against negligence. Bien v. Unger, 64 N. J. L. 596; 46 Atl. Rep. 593.

In an action for personal injury, the plaintiff, in order to recover damages, must do more than show the responsibility of the defendant for the injury. In the absence of direct evidence, he must show the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and exclude the idea that it was due to a cause with which the defendant was unconnected. Houston v. Traphagen, 47 N. J. L. 23; Suburban Electric Co. v. Nugent, 58 Id. 658; 34 Atl. Rep. 1069; 32 L. R. A. 700; McCombe v. Public Service Railway Co., 95 N. J. L. 187; 112 Atl. Rep. 255; Migliaccio v. Public Service Railway Co., 101 N. J. L. 496; 130 Atl. Rep. 9.

Applying these legal principles to this case, it is a question for the jury to determine whether the decedent inhaled dust while working in the plant of the defendant during the year from April, 1931, to April, 1932 It is also a question for the jury to say whether respirators should have been furnished by the defendant and whether its failure in that connection was the cause of dust inhalation by the decedent. If the dust was impregnated with deleterious and dangerous particles of silica of sufficient concentration and of the size of ten microns or less and the decedent was exposed thereto for sufficient time to incur the injuries complained of, it would be for the jury to say whether the master breached his duty to inform the servant of this danger. The question of the adequacy of the ventilating system would also be for the jury, if it was proven that silica, to the degree and the extent just mentioned, was in the dustladen atmosphere, though it has been determined that an employer is not an insurer and the duty imposed upon him is not to furnish the safest or newest and best machines and appliances. McDonald v. Standard Oil Co., supra.

In some courts it has been held that, if a ventilating system is in use, before the plaintiff can recover, he must offer affirmative proof that the system was not as efficient as those generally in use in like industries and that the system in use was not the same as reasonable care required. Pennsylvania Pulverizing Co. v. Butler (C. C. A.), 61 Fed. Rep. (2d) 311, 314. The New Jersey Supreme Court in the cease of Downing v. Oxweld Acetylene Co., 112 N. J. L. 25; 169 Atl. Rep. 709, seems to hold that it is ample evidence of negligence, though a ventilating system is installed, if smoke arises from the operations and there are further movements in a downward direction.

For the purposes of this motion, the Downing case will be followed in considering the question of adequacy of ventilation. The court finds and determines from the evidence in this case that there was no proof that the dust that existed at any time in the mixing room contained any silica; there is a want of proof that, if silica was in the dust, it was of a size of ten microns or less and that it existed in such concentrated amounts and that the decedent was exposed to the same for a sufficient length of time to cause silicosis. While it may be true that the sample procured in the storage room in the fall of 1931 contains a slight amount of free silica, .483 per cent., this does not prove that there was silica in the dust in the mixing room for nine months previous thereto. It does not prove that, if such materials were mixed with some or all the two hundred and forty-nine other kinds of material in use at the plant, silica in such quantities and of ten microns or less in size was in the dust in- the mixing room for the year complained of and was inhaled by the decedent through sufficient exposure to cause his illness. The court also finds and determines that the plaintiff has failed to exclude other causes of the disease of which complaint is made. See Migliaccio v. Public Service Railway Co., supra, and other cases cited on this point.

In the absence of direct evidence, and here is where the subject of direct evidence particularly applies, in the absence of direct evidence of responsibility, thé plaintiff must by proof exclude other causes. Other causes could more reasonably have produced the effect. For example, the employment of the decedent for twenty years in a brass works and thirteen years with the defendant company, together with the natural inhalation of silica would more probably produce the disease in a man sixty-four years of age than the inhalations from April, 1931, to April, 1932. These are some of the other causes. The plaintiff has not complained about them in his suit, nor relied upon any part of them as being the exciting cause of the disease of silicosis. The power of a judge to order a nonsuit does not depend upon the absence of all testimony in opposition to the same in favor of which the ruling is made; the test is whether there is any evidence from which the jury can reasonably conclude that the facts to be proven are established. Baldwin v. Shannon, 43 N. J. L. 596, 597; Pellington, Adm’x, v. Erie Railroad Co., 115 Id. 589, 592; 181 Atl. Rep. 39.

We have not adopted the scintilla of evidence doctrine in the State of New Jersey. Schmid v. Haines, 115 N. J. L. 271; 178 Atl. Rep. 801. Nor have we adopted the rule that an industry carried on in a lawful manner, though its operation produces dust in small or large quantities, is per se negligent. There are but few manufacturing businesses lawfully operated in this state that are not attended by dust in their operations. To hold that the existence of dust is prima facie evidence of negligence would violate the rights of operators and also the presumption against negligence.

The motion for a nonsuit is granted.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HELEN DIETZ, PETITIONER, v. EAGLE GROCERY COMPANY, RESPONDENT.
    Decided March 19, 1936.
    Por the petitioner, Louis Steisel.

    Por the respondent, Simons & McKeown.

   * # * * 5}i * *

Decedent was found dead in respondent company’s store under date of January 23d, 1935, with rope about neck and legs. Defense is that decedent did not meet with an accident arising out of and in the course of employment.

I have carefully considered the testimony of the various witnesses, noted the testimony as to the demeanor of the decedent prior to the accident, the fact that he had been promoted, his honesty and his integrity, the testimony of the police as to their findings, the position of the body, the marks on the partitions and pipe, the condition of the rope and the manner in which the window and door on the inside being barricaded and not disturbed, the door giving entrance at the front being locked, the stock and contents of register being in order, the report of Dr. Haskins and his findings that death was by "asphyxiation by hanging.” Incidental to these facts is the finding of decedent’s knife and its placement.

The question is whether or not petitioner has sustained the burden of proving that decedent met with an accident arising out of and in the course of employment.

The leading ease in New Jersey as to what constitutes an accident is Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458. I need not go into the doctrine promulgated in that case except to remark that the burden is upon the petitioner to prove an accident—1, “Arising out of;” 2, “and in the course of employment.”

In Nardone v. Public Service, 113 N. J. L. 540; 174 Atl. Rep. 745, petitioner was found on employer’s premises with a fractured skull. The Supremo Court in denying compensation and upholding the bureau stated: Death to be compensable must not only occur in course of employment, but must arise out of employment, that proper deducible inference has sufficient probative value to sustain a judgment. Suicide and murder are not to be presumed in compensation proceeding for death of employe in course of employment, where proof is lacking as to how death occurred.

Accident “arises out of emplo3onent” when it is something risk of which might have been contemplated by reasonable person, as incidental to it, and risk is incidental to employment where it belongs to or is connected with what workman has to do in fulfillment of his contract of service.

Test for determining whether death “arose out of employment,” whether proof be direct, circumstantial, or presumptive is whether proof shows that cause of death was due to risk which was directly or indirectly connected with or incidental to employment.

Mere finding of body of employe at place of his empWment where employe had right to be, does not raise presumption or rational inference sufficient to sustain verdict against employer for employe’s death where no evidence is offered to show how death occurred or that death was result of a risk which employe, as reasonable person, might have contemplated, and which risk was connected with fulfillment of employe’s contract of service.

Claimant suing for death of employe, in absence of proof as to how death occurred, has duty to prove that death was caused by accident arising out of and in course of employment, and proof, -whether direct, presumptive or circumstantial, must be legal.

To impose liability on employer for employe’s death in absence of proof as to how death occurred on presumptive or circumstantial evidence, there must be found circumstances which form basis for rational inference, tantamount to legal proof of fact, that accident resulting in death arose out of and in course of employment.

Broad and liberal interpretation given to Workmen’s Compensation act cannot justify judgment based on mere guess or conjecture, but judgment must be based on legal evidence only.

Under the circumstances I am holding that in the case sub judice petitioner has not sustained the burden of proving that decedent met with an accident arising out of and in the course of employment and I am, therefore, dismissing the petition.

$ $ $ $ H* & 3*

John C. Wegner, Deputy Commissioner.


author: Bodine, J.

text:
    FIDELITY UNION TRUST COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. GERTRUDE THURSBY BRYANT, INDIVIDUALLY, ETC., ET AL., DEFENDANTS.
    Decided March 24, 1936.
    For the plaintiff, Hood, Laferly & Campbell.

    For the defendants, Randal B. Lewis.

   Bodine, J.

(At chambers.) The plaintiff sued for a deficiency after foreclosure. Paragraph 6 of the answer is to the effect that the defendants admit that according to the decree of the Court of Chancery there appears to be due the sum set forth in the decree, but they deny that that amount is due plaintiff as the premises described in the bill of complaint, together with the buildings and appurtenances, were actually worth and had a fair market value at the time of the sale of at least $20,000, and that in any event the fair market value was far in excess of the sum of $100, and in excess of the deficiency. The first and second defenses raise the same question.

The plaintiff’s motion is to strike out the paragraphs of the amended answer which allege that the defendants had no knowledge or information as to the allegation of the complaint on the ground that the same are sham, and also to strike out paragraph 6 of the amended answer and the first and second defense on the ground that they are frivolous.

The real question at issue is the constitutionality of chapter 88. Pamph. L. 1935, p. 260; N. J. Stat. Annual 1935, § 134-49(1). At the time the plaintiff received its bond and mortgage, the statute then in force was to the effect that where a bond and mortgage were given for the same debt, proceedings to collect the same were first to foreclose the mortgage and if at the sale of the mortgaged premises the sale price should fail to satisfy the decree, interest and costs, then it should be lawful to proceed on the bond for the deficiency, provided that suit on the bond should be commenced within six months from the date of sale.

The 1935 enactment contains a recital to the effect that there was a serious public emergency and it was, therefore, necessary for the legislature to intervene so as to suspend the law until July 1st, 1938. The statute then provides that where a bond and mortgage is given the first step shall be to foreclose the mortgage, and if at the sale of the mortgaged premises the sale price should be insufficient to satisfy the decree, together with interest and costs, then it should be then lawful to proceed on the bond for the deficiency, and that all suits should be commenced within three months from the confirmation of the sale; that no action should be instituted against any party answerable upon the bond unless such party was joined in the proceeding to foreclose the mortgage, and provides further that any obligor on the bond may file an answer in the suit on the bond disputing the amount of the deficiencjp and that both parties may introduce in evidence testimony of the fair market value of the mortgaged premises at the time of the sale, and the court, sitting with or without a jury, should determine the amount of deficiency by deducting from the amount due on the bond the amount found to be the fair market value of the property. There is a provision also that the fair market value may be fixed by appraisers.

Section 7, paragraph 3 (1 Comp. Stat., p. lxix), of the constitution of this state, provides that the legislature shall not pass any law impairing the obligations of contracts, or depriving any party of any remedy for enforcing a contract which existed when the contract was made. It is to bd noted that the 1935 statute requires all suits on bonds to be commenced within three months from the date of the confirmation of the sale instead of six months from the date of sale, and it requires as a condition to instituting such suit that the party answerable on the bond shall be joined in the prior foreclosure proceedings, and further authorizes the obligor to file an answer disputing the amount of the deficiency and fixes a method for determining the fair market value of the property.

In Sayre v. Duffy, 13 N. J. Mis. R. 458; 179 Atl. Rep. 459, the 1935 statute was declared unconstitutional. In that case, however, the action was commenced prior to the time when the 1935 statute took effect. Although the statute in question purports to postpone the right to sue for the deficiency during a period of years, or during an emergency, it does not in effect do so because it requires the action to be brought within three months after the confirmation of the sale and then provides not for the recovery of the amount of the deficiency after sale, but for the recovery of the amount of the deficiency as found in the law action. The statute does not afford a period of temporary relief from the enforcement of contractual obligations, but it changes and alters the nature of the relief which existed as a means of enforcing contractual obligations. The obligee is deprived of his right to liquidate the same, and is forced to accept a right of action to determine the amount which he may recover. He does not have the six months after sale, which he formerly had, to enforce a right to recover a liquidated amount, but his right to bring an action to prove his loss is limited to the period of three months from the date of the confirmation of the fore - closure sale and exists only against those persons who were made parties to the foreclosure proceedings.

Because the legislature declares an emergency gives them no power to deprive for all time a party of an existing remedy for enforcing a contractual obligation. This was made perfectly clear in Vanderbilt v. Brunton Piano Co., 111 N. J. L. 596; 169 Atl. Rep. 177.

The motion of the plaintiff to strike out that part of the answer which alleges lack of knowledge, which the undisputed proofs show the defendants had, must be granted.

Paragraph 6 of the amended answer and also the first and second defenses are obviously frivolous, and will be stricken.


author: Boduste, J.

text:
    LAND TITLE GUARANTY COMPANY OF NEW JERSEY, RELATOR, v. THE DELAWARE RIVER JOINT COMMISSION, RESPONDENT.
    Decided March 10, 1936.
    For the relator, Bleakly, Btockwell & Burling.

    For the respondent, T. Harry Rowland and D. Trueman Stackhouse.

   Boduste, J.

(At chambers.) The respondent demurs to an alternative writ of mandamus. The problem is simply: may the Delaware Biver Joint Commission take, without instituting condemnation proceedings, relator’s land lying under the surface of a public street for subway purposes. A station platform and control room are proposed, and a stairway leading up to the sidewalk is to be built. The subway is in connection with a high speed electric rail transit line between Philadelphia and Camden. The relator has heretofore not made any use of the property. An existing areaway will be restored when the work is completed. The subway is for use in carrying passengers. By the weight of authority in other jurisdictions the demurrer must be sustained.

In our own state, the case of Laurel Garden Corp. v. New Jersey Bell Telephone, 109 N. J. L. 171; 160 Atl. Rep. 549, strongly favors this view. The respondent is authorized to build the subway by legislative and municipal authority. The subway to-day, in many places, is an essential link in public transportation. The surface of the street in congested areas is insufficient. The building of the subway in question is consistent with the use for which the highway was originally dedicated. It is of advantage to the property owner, in that it facilitates transportation to, from and by its premises. That it cannot thereafter so easily build vaults under the surface of the street is meaningless, since it never could interfere by structure with the public easement of surface passage. It has no greater rights when underground passage becomes necessary. The serviture has merely increased because of the public need. The right to pass and repass was always paramount. There is no real distinction between conduits under the surface of the highway for carrying electrical energy and conduits for carrying people to and from different parts of the municipality or adjoining cities. The servitude is commensurate with the public need to pass and repass. As times change the manner of use changes.

The demurrer will be sustained, with costs.


text:
    GEORGE C. FELTER, Jr., PROSECUTOR, v. THE BOARD OF ZONING ADJUSTMENT OF THE BOROUGH OF GLEN ROCK, RESPONDENT.
    Decided March 11, 1936.

      For the prosecutor, Merritt Lane.

    For the respondent, Maclcay & Mackay.

   Bodine, J.

(At chambers.) The writ brings up for review the action of the Glen Bock board of adjustment in sustaining the building inspector in refusing to grant prosecutor a permit for the erection of a gasoline service station. The prosecutor’s property, which is triangular in shape situate in Glen Bock, is bounded by Maple avenue, Bock road and lands of the Gulf Befining Company and Emil W. Morten. The part of the tract which he desires to devote to service station purposes has a frontage on Maple avenue of approximately one hundred and fifty feet and the nearest point of this tract to the municipal building containing the public library is three hundred and fifty feet away therefrom. Although the tract is situate in the so-called resident zone, it appears that immediately to the west thereof is a gas and service station and also an automobile garage. In the same vicinity is an automobile repair shop known as the Borough Garage; to the west of the gas station is a dwelling and store where groceries, vegetables, delicatessens, wine and liquor are sold. The property which prosecutor owns was once the site of a hotel lately burned. The old hotel was operated for over fifty years and was, when built, in what was then known as the business section of the borough. Many of the residences in the neighborhood are, in part, used for business or professional purposes. Prosecutor purchased the property for $30,000 in 1926. It is utterly unfit for the building of residences because of its peculiar shape.

I can see no basis for including this property within a residence zone, since it is clearly situate in a part of the municipality devoted to business. Since that part of the property which prosecutor desires to devote to a gasoline station is more than two hundred feet from the municipal building in which the library is situate, there is no reason to consider the validity of the ordinance, in so far as it purports to. prohibit such use within that radius. The purported limitation upon the use of prosecutor’s property is not within the purview of the statute. Gabrielson v. Glen Ridge, 13 N. J. Mis. R. 142; 176 Atl. Rep. 676. The failure to grant prosecutor a permit is violative of his constitutional rights. Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183; 147 Atl. Rep. 555.

The withholding of a permit is arbitrary and unjustified.


author: Lloyd, J.

text:
    IN THE MATTER OF THE APPEAL OF HARRY A. STARK FROM HIS SUSPENSION ON NOVEMBER 13th, 1935, AND SUBSEQUENT DISMISSAL ON NOVEMBER 26th, 1935, FROM THE POSITION OF ENGINEMAN IN THE WATER DIVISION OF THE DEPARTMENT OF PUBLIC WORKS, CAMDEN, NEW JERSEY, EFFECTIVE NOVEMBER 26th, 1935.
    Decided March 6, 1936.
    For the prosecutor, E. G. G. Bleakly.

    For the respondent, N. Thomas Smaldore.

   Lloyd, J.

In the matter of the application of the city of Camden for a writ of certiorari to review the action of the civil service commission in setting aside the dismissal of one Harry A. Stark by the city commissioners of the city of Camden, New Jersey, I have examined the testimony taken and think the proofs so clearly justify the action of the civil service commission that the application for writ of certiorari to review such action should be refused.

It is accordingly denied.


text:
    IN THE MATTER OF THE APPEAL OF PERRY GLEAVES FROM HIS SUSPENSION ON NOVEMBER 30th, 1935, AND SUBSEQUENT DISMISSAL ON DECEMBER 4th, 1935, FROM THE POSITION OF CLEANER AND HELPER AT THE CONVENTION HALL, DEPARTMENT OF PARKS AND PUBLIC PROPERTY, CAMDEN, NEW JERSEY.
    Decided March 6, 1936.
    For the prosecutor, E. G. 0. Bleakly.

   Lloyd, J.

In the matter of the application of the city of Camden for a writ of certiorari to review the action of the civil service commission in setting aside the dismissal by the city commissioners of one Perry Gleaves, I have examined the testimony taken and think the proofs so clearly justify the action of the civil service commission that the application for writ of certiorari to review such action should be refused.

It is accordingly denied.


author: Ely, D. C. J.

text:
    Second District Court of Bergen County.
    WILKIE G. ALLEN, PLAINTIFF, v. MAX G. PLOWMAN, DEFENDANT.
    Decided January 23, 1936.
    For the defendant, Hugh E. Doherty.

    For the plaintiff, John J. Winberry.

   Ely, D. C. J.

It appears that the summons in the above matter was served upon the public highway in Rutherford, New Jersey, in the proximity of the municipal building. At the time of the service of summons, the defendant had been summoned to the Police Court of Rutherford, New Jersey, and was answering such process, which arose out of an automobile accident which occurred in Rutherford, New Jersey. The process in this suit, of which service the defendant seeks to set aside, arises out of the same automobile accident. It further appears that the defendant is a resident of New Jersey.

Counsel for the defendant cites several eases as authority for his motion to set aside the service of summons. In each of these cases it appears that the defendant was a non-resident of New Jersey and was in the jurisdiction of this state as witness. I do not feel that the same rule applies where the defendant is a resident of the state. In Massey v. Colville, 45 N. J. L. 119, the court held the rule to be different in so far as a resident of the state was concerned. This distinction has been further upheld in Kutchinski v. Kutchinski, 112 N. J. Eq. 341; 164 Atl. Rep. 560, and Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643. The rule of law in such cases is, that as to a resident served while outside his home county, the immunity is only partial, or conditional, and it appears that it lies in the discretion of the court as to whether it will create any great inconvenience to the defendant to attend at the place where venue is laid in the summons.

I do not feel that the defendant will be put to any great inconvenience in these days of modern transportation by attendance at court in an adjoining county that is within ten miles of his residence. I will, therefore, deny the motion.

Motion made why writ of certiorari should not issue was denied.


author: Donges, J.

text:
    HARRIET REINHEIMER, ADMINISTRATRIX AD PROSEQUENDUM, ETC., PLAINTIFF-RESPONDENT, v. ATLANTIC CITY AND SHORE RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Argued October 1, 1935
    Decided April 6, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the appellant, Bourgeois & Coulomb and William B. Hunter.

    For the respondent, Herman J. Finn and Burton A. Gaskill.

   The opinion of the court was delivered by

Donges, J.

Plaintiff had a verdict for $25,000 for the death of her husband. The trial court reduced the verdict to $18,000, which reduction was accepted by plaintiff. Exceptions were reserved and defendant appealed, alleging error in the refusal of the trial court to nonsuit and to direct a verdict for defendant and in his charge to the jury.

From the testimony on behalf of the plaintiff it was open to the jury to find that the decedent was crossing Atlantic avenue, at Yew York avenue, in Atlantic City, from the northerly side of Atlantic avenue toward the southerly side thereof, on the westerly side of Yew York avenue. There is a double line of street railroad tracks, over which defendant operates street cars, in westerly and easterly directions. On the northerly side of the west-bound trolley tracks there is a safety island, west of New York avenue, and decedent was proceeding across Atlantic avenue in that portion of the street which would be the cross-walk, and easterly of the safety platform. There was evidence that, when he was midway between the curb and the first rail—the distance between these points being approximately twenty-six feet—he looked to the left in the direction from which the car that struck and killed him was approaching; that when he looked to the left the car was about in front of the Real Estate and Law Building, which is about one hundred feet from New York avenue, and at that moment the traffic light at New York avenue turned from green to yellow; that the car apparently started to slow down, but did not stop, but put on speed and crossed the intersection at about twenty miles per hour, striking the decedent when he was about a foot over the nearest track; that the trolley car sounded no gong or other warning as it crossed New York avenue, nor did it slacken its speed after it started across the intersection until after decedent was struck. The testimony on behalf of appellant was in sharp conflict on many essential facts, but we are not concerned now with the weight of the evidence.

Defendant's motions to nonsuit and for a direction in favor of defendant Avere upon the ground that plaintiff's decedent was guilty of contributory negligence as a matter of law.

In the situation presented by the proofs most favorable to plaintiff, we conclude that it was a question of fact fox the determination, of the jury as to whether decedent acted, in the circumstances; as a reasonably prudent man would act. On the testimony it might be concluded that the deceased observed the car approaching, observed the change in the traffic light, saw the car slowing as if to stop, and thereafter devoted his attention to other possible obstructions or traffic in the highway. Rizzolo v. Public Service Co-ordinated Transport, 111 N. J. L. 107; 166 Atl. Rep. 456.

The other errors alleged by appellant have to do with the charge of the court. Several of the points raised by appellant might justify reversal, but we. shall deal with only one of them.

Exception was duly taken to the court’s charging plaintiff’s request N o. 7, in the following language:

“The decedent had a right to assume that the trolley car in this ease would be operated at a reasonable rate of speed and in a reasonably careful manner until the contrary appeared to him.”

The vice o£ this instruction is in the last phrase—“until the contrary appeared to” the decedent. The decedent was under the duty of reasonably using his powers of observation to ascertain whether or not the motorman would do his duty. In Connolly v. Public Service Railway Co., 94 N. J. L. 157; 109 Atl. Rep. 507, the rule charged by the trial court was approved, in this form :

“But if he saw by the reasonable use of his powers of observation that the motorman was not going to do his duty, because it was the duty of the motorman to do these things, to step out in front of a moving trolley car was contributory negligence. In other words, it was the duty of Mr. Connolly in crossing the street to exercise his powers of observation and take such steps for his own safety as an ordinarily careful and prudent person would in crossing the street.”

In the instant case, the charge of the court above quoted, relieved the decedent of any duty to exercise reasonable care for his safety, and the jury was instructed, in effect, that he would not be guilty of contributory negligence in failing to exercise reasonable care in the circumstances unless, without care on his part, it was apparent that the motorman was not going to exercise reasonable care in the operation of the car. In a ease like the present one, where the questions of negligence of the defendant and the contributory negligence of the decedent were sharply controverted, it was clearly harmful error to instruct the jury that the decedent might assume performance of duty by the defendant and that the decedent was noi obliged to exercise reasonable care for his safety.

The judgment is reversed, and a new trial awarded.

Chief Justice Brogan dissents.


author: Heutze, C. P. J.

text:
    Salem County Court of Common Pleas.
    MARY E. SHARP, PETITIONER-APPELLANT, v. BOROUGH OF VINELAND, RESPONDENT-APPELLEE.
    Decided March 30, 1936.
    For the petitioner-appellant, Phillip P. Wodlinger.

    For the respondent-appellee, Ralph N. Eellam.

   Heutze, C. P. J.

The facts in this case were agreed upon between the parties while the matter was before the deputy commissioner of labor. It was admitted that the decedent, Ealph Sharp, was fatally injured as the result of an accident arising out of and in the course of his employment. The only question upon which a dispute arose was as to the number of persons who were legally dependent upon the decedent.

It undoubtedly appears that the decedent left surviving him, a widow and his child, over sixteen, who was the son of a prior marriage. This child was found to be mentally and physically deficient and an award was made to the widow and child to the extent of forty per .cent, of the decedent’s wages for three hundred weeks.

However, the petitioner, the wife of the decedent, made further claim for three other children, namely, Druscilla, Frank and Edgar, all of whom are under sixteen years of age. It was undisputed that these three children were all illegitimate children bom to the petitioner, Mary E. Sharp, prior to her marriage to the decedent and that the decedent, Ealph Sharp, was not the father of these children. Upon the petitioner’s marriage to the decedent, these children resided with the decedent and petitioner. The petitioner therefore claims that the decedent was the stepfather to these children and therefore upon his death, they could take compensation as dependents within the meaning of the so-called Workmen’s Compensation act. The deputy commissioner of labor, however, did not class these children as dependents within the meaning of the statute under paragraph 12 and therefore determined that the three children could not be awarded any compensation and dismissed the claim as to them.

No dispute has arisen as to the rights of the widow and the decedent’s own son, so I shall pass to the problem of the rights of the illegitimate children of the widow.

At common law, if a person was injured personally, any resulting loss died with him. "Actio personalis moritur cum persona." Haggerty v. Central Railroad, 31 N. J. L. 349; Gottlieb v. North Jersey Street Railway Co., 72 Id. 480; 63 Atl. Rep. 339. Statutes have been passed to correct the harsh effect of such a rule of law. If the decedent is fatally injured through the negligence of a third person, then the death statutes (1 Cum. Supp. Comp. Stat. 1911-1924, p. 927) affords the decedent’s widow, surviving husband and next of kin a remedy and they may be compensated for their injury. However, should the decedent die as the result of an accident while employed, then the Workmen’s Compensation act must be looked to. This act provides for compensation to certain enumerated persons, who if they are dependents, may secure a fixed compensation from the employer. Gregutis v. Waclark Wire Works, 84 N. J. L. 610; 92 Atl. Rep. 354. This act is in derogation of the common law and while on the other hand a general rule exists that the Workmen’s Compensation act is to be liberally construed, it must be noticed that the statute provides with particularity who are or may be dependents of a deceased workman. In fact, the act has been amended several times to specify more persons who can possibly be declared as dependents under the statute. It appears that the rule of "expressio unius esf, exclusio alterius” should be applied in this case as the legislature has specified the individuals who are to be classed as dependents. The possible dependents are “husband, wife, parents, stepparents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous child, illegitimate children, brothers, sisters, half-brothers, half-sisters, niece, nephew.” 2 Cum. Supp. Comp. Stat., p. 3876, 12, subsec. (g), as amended Pamph. L. 1928, ch. 185, p. 286; Cum. Supp. Comp. Stat. 1925-1930, p. 1979, § **236-12.

Are the three illegitimate children of the petitioner stepchildren of the decedent? If so, and since they are under sixteen and were dependent upon the decedent, they would be entitled to compensation under the statute for the death of the decedent. Though the inclusion clause, set out above, enumerating the possible dependents goes to some length, the statute makes no provision for the illegitimate children of the surviving spouse. Reference and provision is made only for the illegitimate children of the decedent. Such children are not stepchildren of the decedent. Therefore it appears that the illegitimate children of the decedent’s wife cannot be classed as dependents. The act defines certain limits and should the court extend the provisions of the act to persons not provided for by the legislature, then the court would be resorting to judicial legislation and would not be construing the provisions of the act as passed by the legislature. Scott v. Independent Ice Co. et al. (Md.), 109 Atl. Rep. 117; Chretian v. Amoskeag Manufacturing Co. (N. H.), 180 Atl. Rep. 254; Splitdorf Electrical Co. v. King et al., 90 N. J. L. 421; 103 Atl. Rep. 674; affirmed, 92 N. J. L. 524; 105 Atl. Rep. 894.

The statute does provide for stepchildren. Who may be classed as stepchildren? 3 Bouv. Dicl. 3136, contains the following definitions of the “step” relationship words:

Stepdaughter—“The daughter of one’s wife by a former husband, or of one’s husband by a former wife."

Stepfather—“The husband of one’s mother by virtue of a marriage subsequent to that of which the person spoken of is the offspring.”

Stepmother—“The wife of one’s father by virtue of a marriage subsequent to that of which the person spoken of is the offspring.”

Stepson—“The son of one’s wife by a former husband or of one’s husband by a former wife.”

Furthermore, Webster’s New International Dictionary defines stepchild as follows:

“A child of one’s wife or husband by a former marriage.”

I have gone to great length to set forth these definitions in order to show that they all specify a former married relationship out of which the offspring in question were the progeny.

The plain context of such definitions is to make as a prerequisite to one’s being a stepchild that the law must have substituted, as it were, someone else for one of the child’s parents upon the termination of the prior marriage and the consummation of a subsequent marriage involving one of the parents. In the case now before the court, these children have never liad more than one parent, namely a mother, and this relationship exists only by virtue of the statutes in this state. At common law a bastard child was nullius filius but by statute, the bastard child can inherit property by and through her or his maternal heirs or next of kin. The statutes only enlarge an illegitimate child’s rights as to his natural mother, and some statutes place certain duties upon the putative fathers but no statute exists in this state which would class the decedent in this case as a stepfather of the illegitimate children of his wife. It is unfortunate that the law has not been extended to provide for such children but until the legislature sees fit to so provide, the court is bound by the limits set forth in the statute passed by the legislature.

Therefore the determination and judgment of the deputy commissioner is affirmed, and the petition as to Druscilla Sharp, Frank Sharp and Edgar Sharp is dismissed.


author: Egan, Y. C.

text:
    J. Lane Sanborn, complainant, v. Ralph R. Sanborn et al., defendants.
    [Decided April 20th, 1936.]

      Mr. Alexander 8eclow, for the complainant.

      Mr. Alfred Brenner, for the defendants.

      Mr. J. Albert Homan, for Edward L. Whelan, clerk, guardian ad litem of infant defendants.
   Egan, Y. C.

On April 3d, 1934, Ellen T. Sanborn died leaving a last will and testament dated December 4th, 1924, which was offered and received for probate. She made bequests totaling $2,400 which are expressed in paragraphs two to five, inclusive, of the will, and hereinafter set forth. By the fifth clause, she disposed of her jewelry and personal effects. The sixth paragraph of her will is as follows:

“All the rest, residue and remainder of my estate, real and personal including my stocks which I hold in any company or corporations I give, devise and bequeath to my husband, James Lane San-born, absolutely, his heirs and assigns forever.”

The decedent appointed her husband, the complainant, executor of her will, and letters testamentary were issued to him after he duly qualified.

The entire estate consisted of personal property of the approximate value of $3,491.75. In addition, there was a trust account of the testatrix as trustee for Ruth Ellen Lincoln in the Bayonne Trust Company amounting to $406. These moneys were turned over to the beneficiary by the complainant.

The testator’s bequests are as follows:

To Ralph B. Sanborn, a son, $500; to Hazel E. Sanborn, the wife of Ralph B. Sanborn, $100; to Ralph B. Sanborn, J'r., and Rebecca Sanborn, children of the complainant’s son, Ralph B. Sanborn, $200 each; to Thelma A. Ferguson and Walter I. Ferguson, the children of a deceased daughter of testatrix, $200 each; to Ruth T. Lincoln is bequeathed $1,000 in cash and all of the testatrix’ personal effects, clothing, jewelry, bric-a-brac, and bedroom furnishings.

The entire estate is insufficient to pay the legacies, after the debts are paid. The complainant contends first, that under the sixth clause of the will he is entitled to the stocks; second, that if there is an inconsistency between the dispositions in the sixth clause of the will, the latter provision bequeathing the stock to him should prevail; third, that if any ambiguity exists, the circumstances of the parties and all of the provisions of the will manifest the intention that the stock should go to the complainant.

Where the assets of an estate are not sufficient to meet the obligations and legacies, an abatement ensues in the following manner: First, residuary estate; second, other general legacies pro rata; and third, specific bequests or devises, or where demonstrative legacies are classed as specific under the circumstances of the case, the last in order of abatement will be specific and demonstrative legacies ratably. 69 Corp. Jur. 981 10.

Counsel for the defendants argued that the decedent’s stock was disposed of by her as a part of her residuary estate, and consequently falls under that classification. I believe there is considerable force to the contention.

“A residuary legacy is only of what remains after paying debts and other classes of legacies and it is conditioned upon something remaining after the paramount claims on the testator’s estate are satisfied, it follows that the loss resulting from an insufficiency of assets must fall first on the residuary legatee and he cannot call upon either the general or specific legacies to abate in his favor even though the entire estate is exhausted so that there is no residue.” 40 Cyc. 1902 9.

“A residuary clause, which has been defined to be the clause in a will by which that part of the property is disposed of which remains after satisfying bequests and devises, is just as much a part of the will in which it appears, and its disposition of the property to which it applies is just as effective as any other provision or disposition in the testament. Its purpose and function is to make a complete testamentary disposition of the testator’s estate so that no part of it may pass as intestate property. If the testator exhausts his estate in a legal manner, although he mentions another to take a residue, the latter gift fails in the face of the fact that no residue exists.” 69 Corp. Jur. 413 1472.

In State Bank and Trust Co. v. Nolan, 130 Atl. Rep. 483 (Supreme Court of Errors of Connecticut, September 19th, 1925), the court said:

“In most cases, a residuary clause where there are other definite and important bequests cannot be taken as the primary and principal factor determinative of testamentary intent, it is a catch-all, a refuse group, a provision which operates after the operation of the other provisions of a given will, its logical position is the same as its local position, at the end of the testamentary process not at the beginning.”

See Langstroth v. Golding, 41 N. J. Eq. 49; 3 Atl. Rep. 151.

In Anderson v. Anderson, 31 N. J. Eq. 560, the court said:

“The fact of the testator having specifically devised part of the mortgaged estate and left the other part to pass by the general residuary gift is, of itself, an expression of his intention that the part which passes by the residuary gift shall be primarily liable to the whole of the mortgaged debt in exoneration of the part which is specifically devised.”

In Corwine v. Corwine, 24 N. J. Eq. 579, the personal estate was insufficient to pay all pecuniary legacies. The question there was whether or not general pecuniary legacies were a charge on the residuary real estate. In discussing the question, the court said:

“Mr. Hawkins, in his valuable treatise on the Construction of Wills * * * says: Tt has been said that a testator generally intends the legacies given by his will to be a charge on his residuary real estate, as well as on his personal estate, but they are held to be so only when the residuary real and personal estate are given together; it being a rule of construction, that if legacies are given generally and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge on the residuary real as well as the personal estate/

“The rule as here stated meets with our entire approbation. It is a simple and safe rule, founded in justice and good sense, easy of application, and one that will in a great majority of eases give effect to the real intention of the testator.”

The foregoing decision has been followed in this state and is the prevailing rule of law to-day. See Crocker v. Crocker, 112 N. J. Eq. 203 (at p. 206) ; 164 Atl. Rep. 9; Righter v. Fidelity Union Trust Co., 110 N. J. Eq. 169, (at pp. 173, 174); 159 Atl. Rep. 393.

The comments of the court in Convine v. Corwine, supra, upon the phraseology of the residuary clause in that case may be applied to the language used by the decedent in the case under consideration. In the Corwine Case the testator in disposing of his residuary estate used the following language: “I give and bequeath to my son Cornelius Corwine the entire residue of my estate, both real and personal, not otherwise disposed of * * *.” The court there observed (at p. 581) :

“The words ‘not otherwise disposed of’ appear to be merely redundant, repeating elliptically, what had already been sufficiently expressed. Supplying what the obvious meaning of the testator seems to require, the fifth clause would read thus: ‘I give, &c., to my son Cornelius, the entire residue of my estate, both real and personal, that is, my estate, both real and personal, not otherwise disposed of/ These words do not, in fact, vary the sense of the clause in question, any more than the words ‘rest and remainder’ would, if added to the word ‘residue.’ ”

Taking the foregoing language of the court and applying it to the instant case, there was no necessity for Mrs. San-born to use the words “including my stock which I hold in any company or corporations.” The fact that such stocks formed a part of the residuary estate, after paying the general legacies, they would, as a matter of fact, go to the beneficiary named in the residuary clause. The use of the quoted words was not necessary to pass the stocks to the residuary legatee if the personalty was sufficient to pay the debts, incidental administration expenses, and antecedent general legacies.

Vice-Chancellor Berry in In re Lowe’s Estate, 103 N. J. Eq. 435; 143 Atl. Rep. 222, classified legacies as follows: First, general; second, specific; and third, demonstrative.

“A general legacy may be defined as one which is payable out of the general assets of a testator’s estate, such as a gift of money, or other thing in quantity, and not in any way separated or distinguished from other things of like kind. 28 R. C. L. 290 tit. ‘Wills’ 264”

“A specific legacy is a gift by will of a specific article, or a particular part of the testator’s estate, which is identified and distinguished from all others of the same nature, and which can be satisfied only by the delivery and receipt of the particular thing given. Ibid. 263.”

“A demonstrative legacy partakes both of the nature of a general and a specific legacy. It is a gift of money or other property payable out of or charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fails. Two elements are necessary to constitute a demonstrative legacy, viz., it must appear first that the testator intended to make an unconditional gift in the nature of a general legacy; and, secondly, the bequest must be given with reference to a particular fund as a primary source of payment. Ibid. 266.”

“The fundamental distinction between general and specific legacies is that the former may be satisfied out of the general assets of the testator’s estate without regard to any particular fund, thing, or things, while the latter are gifts of particular specified things, or of the proceeds of the sale of such things, or of a specific fund or a definite portion thereof. Thornp. Wills 139 p. 121."

In 1 Kocher’s New Jersey Probate Law 548, the following appears:

“The order in which assets are to be applied to the payment of debts, in the absence of a contrary intention sufficiently expressed in the will, is, (1) the general, or residuary, personalty, not specifically bequeathed nor exonerated or exempted; (2) real estate appropriated to, and not merely charged with the payment of debts; (3) real estate descended whether acquired before or after the making of the will; (4) real estate devised charged with the payment of debts: (5) general pecuniary legacies pro rata; (6) specific and residuary devises and specific legacies pro rata; (7) real and personal property which the testator has power to appoint and which he has appointed by his will.”

This order of application has been accepted without exception as the law.

Under the facts submitted in the instant case, I am satisfied that it was the intention of the testatrix that her children and grandchildren should receive the be'quests specified by her in her will, and that her husband was to enjoy what remained of her estate after the payments of the bequests to her children and grandchildren; and that the testatrix intended that her husband should receive the stocks mentioned in the residuary clause of her will, but that it was not her desire that he should receive the same unless the remaining personal estate is sufficient to make payment of the pecuniary gifts to her children and grandchildren.

Considering all the circumstances, I believe the stocks are not a specific legacy, but they form a part of the residuary-estate. Therefore, I shall advise an order that the residuary clause shall abate in favor of the pecuniary legacies.


author: Joseph L. Smith, C. C. J.

text:
    Essex County Circuit Court.
    GLENMORE DISTILLERIES COMPANY OF NEW YORK, INCORPORATED, A CORPORATION, PLAINTIFF, v. FAST TRUCKING, INCORPORATED, A CORPORATION, DEFENDANT.
    Decided March 27, 1936.
    Eor the plaintiff, Herman 0. Silverstein.

    For the defendant, Gross & Gross.

   Joseph L. Smith, C. C. J.

This comes on a motion to strike the plaintiff’s complaint on the ground that the contract alleged therein, and made the basis of the claim, is in violation of the criminal code of the United States, and its enforcement would be contrary to public policy.

The plaintiff’s action is, in substance, based upon a contract of transportation with the defendant, a common carrier, whereby the latter agreed to transport for the plaintiff, from New York City to New Jersey, a quantity of intoxicating liquor, tó be delivered by the defendant to the consignee, 0. 0. D., and that in violation of such agreement, the defendant carrier, transporting and delivering the said liquor to the consignee, accepted a post-dated check, which was subsequently dishonored.

The defendant contends that the contract is in violation of section 389 of the United States Code Annotated, title 18, page 238, United States Criminal Code, section 239. This section provides for a maximum fine of $5,000, against any common carrier who, in connection with the transportation of any intoxicating liquor of any kind, from any state in the union, to any' other state in the union, or from any foreign country', into any state in the union, shall collect the purchase price or any part thereof, before, on or after delivery from the consignee, or shall in any manner, act as an agent of the buyer or of the seller of such liquor, for the purpose of buying ór selling or completing the sale of such liquor.

Ooncededly, the facts in the case before the court come within the purview of the statute. The principal argument of plaintiff is that the statute in question is inapplicable to the present case in that the history of the enactment of the section referred to, discloses an intent on the part of congress to regulate the transportation of intoxicating liquors between so-called wet states and dry states, and that the act was not enacted to regulate traffic between states which permit the manufacture, sale and consumption of intoxicating liquors.

The language of the act is clear and unambiguous and does not permit such an interpretation. While it is true that in construing a statute, the courts must look to the intent rather than to the letter of the statute, it is equally true that in order to discover such legislative intent, the court must look to the statutory language alone, in its application to the subject; especially where the language of the statute is explicit, and not subject to dual interpretations. In re Hudson County, 106 N. J. L. 62; 144 Atl. Rep. 169; In re Freeholders of Hudson County, 105 N. J. L. 57; 143 Atl. Rep. 536 ; Keyport and M. P. Steamboat Co. v. Farmers Transportation Co., 18 N. J. Eq. 13 ; State v. Underground Cable Co., 18 Atl. Rep. 581; Pierson v. Cady, 84 N. J. L. 54; 86 Atl. Rep. 167. Did congress intend to give to the statute the limitation suggested by the plaintiff’s attorney? It would have been a simple matter to express such limitation in the statute. The intent of congress is clearly expressed in the act. It is to prevent a common carrier from acting as an agent of buyers or sellers of intoxicating liquor in interstate commerce, except as carriers; to prevent their activities for and on behalf of buyers or sellers of intoxicating liquors in interstate commerce for the purpose of selling or completing the sale of such liquors, and specifically prohibits the collection of the purchase-money by the common carrier before, on or after delivery. The statute in question being clear and explicit, there is no occasion for the court to delve into the history of its passage in order to determine the intent of congress, sufficiently expressed in the act.

It is further argued by plaintiff that the statute in question was repealed by the eighteenth amendment and by subsequent legislation of congress. This argument is based entirely on implications. The plaintiff’s attorney refers, to section 205 (d) of the United States Code Annotated, title 27, page 116, Pocket Parts 1935, passed August 29th, 1935, as implying such a repeal; the argument being that by prohibiting the sale of distilled spirits on consignment, or on conditional sale, congress meant to permit sale by C. O. D. shipment, through common carriers. It does not so follow.

That the eighteenth amendment did not contemplate the repeal of the statute in question, is further brought out by section 35 of the National Prohibition act (U. S. Code Annotated, title 27, p. 226, § 52), which provided as follows: “All provisions of law that are inconsistent with this act are repealed only to the extent of such inconsistency and the regulations herein provided for the manufacture or traffic in intoxicating liquor, shall be construed as in addition to existing laws.”

And further, by an act of congress passed on November 23d, 1921, being chapter 134, section 5 (U. 8. Code Annotated, title 27, § 3), providing as follows:

“All laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force when the National Prohibition act was enacted, shall be and continue in force, as to both beverage and non-beverage liquor, except such provisions of such laws as are directly in conflict with any provision of the National Prohibition act or of this act.”

There is no force in the argument that the statute now before the court has been repealed, expressly or by implication.

It is further argued by the plaintiff that the .duty of the defendant in the present case, as alleged in the complaint, is distinct and separate from the contract entered into relative to the C. O. D. shipment. Plaintiff makes this assertion without further argument or analysis. The conclusion is not borne out by the facts in the case. The agreement to collect the purchase price upon delivery, is the very agreement which is alleged to have been violated, and which in turn, is contrary to the provisions of the statute above referred to.

The plaintiff further argues that the statute in question, if in existence to-day, is unconstitutional. The plaintiff cites or quotes no authority, and his contention does not go beyond the assertion of a conclusion.

The contract in question was entered into after the enactment of the statute, and therefore the statute cannot be said to be in abrogation of contractual rights; the statute is limited to common carriers engaged in interstate commerce, clearly within the province of congress to legislate upon.

It appears, therefore, that the complaint is based upon a contract in violation of the criminal code of the United States, and is therefore against public policy, and should not be enforced.

An order will be signed dismissing the complaint.