text:
    IDA GOOLSBY, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT AND GEORGE HANNON RADY, DEFENDANTS. MINNIE P. RADY, GEORGE H. RADY AND ROSE T. RADY, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the plaintiff Ida Goolsby, Haines & Ghanalis.

    Eor the plaintiff Rose T. Rady, Edward H. Baclces.

    Eor the defendant Public Service Co-ordinated Transport, Henry H. Fryling (Elmer W. Romine, of counsel).
   Per Curiam.

These two cases arose out of the same accident, were tried together in the Essex County Court of Common Pleas, came before us on an appeal by the defendant from judgments rendered against it on behalf of Ida Goolsbj’ and Rose T. Rady respectively and are here argued together.

The two plaintiffs Ida Goolsby and Rose T. Rady were passengers in an automobile owned by George Hannon Rady and driven by the latter’s wife, Minnie P. Rady. As the automobile was following one of defendant’s buses on Broad street, Bloomfield, the two vehicles collided, due as the Goolsby complaint alleges to the negligence of the operator of the automobile and also to the negligence of the defendant Public Service Co-ordinated Transport, in that its bus, while traveling at a rapid rate of speed, was brought to ant immediate standstill without notice, and as the Rose T. Rady complaint alleges solely to the negligence of the corporate defendant in the sudden stopping of its bus without warning.

Appellant’s brief presents three legal propositions. The first and second are, respectively., that the trial court committed error in refusing to grant a nonsuit and further committed error in refusing to grant a direction of verdict in favor of the appellant. There is the following testimony given by Minnie P. Rady: “Q. Now, did you see the operator of the bus give any signal to stop? A. No. Q. He did not? A. No. Q. You did not see him put his arm out? A. No. Q. You say it stopped suddenly, this bus? A. Very.”

We understand the testimoiry “Q. He did not? A. No.” to be understood as reading: “Q. He did not give any signal to stop? A. No.” The witness Hampe testifies: “The Public Service bus stopped so fast that it really seemed to buckle.” We consider that this testimony, in conjunction with other evidence which we find it unnecessary to cite, was sufficient to raise the question of negligent operation of the defendant’s bus as one of fact for the jury to determine. The refusals to nonsuit and to direct a verdict for the defendant were proper.

The remaining contention of the appellant is that the trial court committed error in refusing to charge two of its requests, namely:

“1. It is the duty of one when overtaking another vehicle directly in the line of their progress and a possible obstacle in their way, that their car be reduced to such control that it may be immediately brought to a standstill if necessary or if in attempting to pass the other vehicle, directly in front they are required to keep their said car or automobile under such control so as to avoid collision and damage.”

“9. If the operator of the bus in the course of his duties' of operation stopped the bus, it was the duty of the operator of a vehicle following not only to keep a sufficient distance behind so as to be able to stop their .car if it became necessary but also to make reasonable observations of the progress of any vehicle which they were following and if the operator of the Rady automobile failed to do this and such failure produced, or was the proximate cause of the accident then there can be no recovery as against the Public Service Corporation.”

If these requests correctly stated the law, the effect would be, in application to the instant case, to relieve the defendant company of any liability for a sudden stopping of its bus in traffic and without warning. We think that the requests are not correct statements of the appropriate legal principles and that the court did not err in refusing to charge them.

The judgment below will be affirmed.


source: Caselaw Access Project

author: Habtshokne, J.

license: Public Domain

text:
    Essex County Court of Common Pleas.
    RICHARD FREITAG, PLAINTIFF, v. HARRY E. RENSHAW, DEFENDANT.
    Eor the plaintiff, Thomas V. Fields.

    For the defendant, William E. Flanagan.

   Habtshokne, J.

In this cause, the plaintiff, Freitag, was the driver of an automobile which collided April 3d, 1930, with an automobile owned and operated by the defendant, Eenshaw. The suit is for personal injuries. The answer alleges that previous to the institution of this suit, Eenshaw, defendant herein, sued Freitag, plaintiff herein, and one Meyer, the owner of the automobile driven by Freitag, in the District Court of the First Judicial District of Essex County, for negligence in the same automobile accident involved here, but for property damage, not personal injury; that in the District Court suit said Meyer counter-claimed against Eenshaw, plaintiff herein, for property damage. The answer further alleges, and the record shows, that the District Court judge expressly found “on the main case that the defendants (Freitag, plaintiff herein, and Meyer) were guilty of negligence, but that the plaintiff himself (Eenshaw, defendant herein) was guilty of contributory negligence,” giving judgment for the defendants. The District Court judge further found on the counter-claim, “that the said Freitag (plaintiff herein) was also guilty of the contributory negligence,” giving judgment for Eenshaw on the counter-claim.

The District Court therefore had before it a cause based upon the automobile accident here involved, and both parties here involved. The court thereupon expressly adjudged both Ereitag, the plaintiff herein, and Renshaw, the defendant herein, guilty of negligence on the same facts herein involved, with the exception of plaintiff’s personal injuries.

A motion is now made by the attorney of defendant, Renshaw, to dismiss under Rule 40 (Supreme Court Rules), the above facts being admitted for the purpose of the motion.

The answer raises the defense of res adjudicate or estoppel of record, as it might more properly be termed under the circumstances. The foundation of this principle is that both public policy and the interest of the litigants alike require that there should be an end to litigation, and the good order of society demands that matters put in issue and determined by a court of competent jurisdiction should not be retried between the same parties in any subsequent suit in any court. This doctrine has been long established in this state, its latest enunciation being in the case of Bragg v. King (Supreme Court), 104 N. J. L. 4. In that case Chief Justice Gummere said:

“The doctrine of res adjudicata, as defined by our Court of Errors and Appeals, is that the judgment of a court of competent jurisdiction on a question of law or fact, when litigated and determined, is, so long as it remains unreversed, conclusive upon the parties and their privies, not only in the suit in which it is pronounced, but in all future litigation between the same parties or their privies, touching upon the same subject-matter. In re Walsh’s Estate, 80 N. J. Eq. 565.”

The difficulty in the application of the doctrine arises principally in determining the res which has been adjudicated. This res may be either the entire cause of action, which it is when the second cause of action is the same as the first and between the same parties; or if the second is a different cause of action than the first, though between the same parties, and involving additional issues, then the res adjudicated consists only of such decided issue or issues of law or fact as are identic in both actions. Bates v. Bodie, 245 U. S. 520, 526; 15 R. C. L., ¶ 438, 450.

In the latter event, it is clear that the first cause of action is not a bar to the second, since the second involves certain undecided issues. Such is the reason for the decision of our Court of Errors and Appeals in the case of Ochs v. Public Service Railway Co., 81 N. J. L. 661. But when the second cause of action is tried, any issue in that cause, identic with an issue decided in the first cause, is concluded by the decision in the first cause, by what is called an estoppel of record. In other words, the judgment in the first cause presents evidence of the fact of so high a nature that nothing which could be proved by evidence aliunde would be sufficient to overcome it. Hence it would be useless to adduce any such evidence, and the party seeking to do so is estopped or precluded by law from doing so. Sawyer v. Woodbury, 7 Gray 499, 502; City of Paterson v. Baker, 51 N. J. Eq. 49, 52.

Doubtless in Ochs v. Public Service Railway Co., supra, where the Court of Errors and Appeals found that the first trial was no bar to the second, the court in the second trial permitted in evidence as an estoppel of record the adjudication on the first trial of the defendant’s negligence.

Such is the exact situation in the case at bar. It is settled that the cause of action in the District Court for property damage differs from the cause of action here for personal injuries. Ochs v. Public Service Railway Co., supra. But the issue of fact of the negligence of plaintiff Ereitag in the automobile accident involved in both suits, has been expressly adjudicated by the District Court. That issue is concluded, so far as the same parties are concerned. Plaintiff, Ereitag, is estopped by the record to question his contributory negligence in the present suit.

Nor is this conclusion contrary to Smith v. Fischer Baking Co. et al., 147 Atl. Rep. 455. In that case since neither the same parties nor their privies were involved, the doctrine of res adjudicata could not apply whether the res were a cause of action or a single issue in the first cause, the parties in the two suits were not identic, the plantiff in the second suit not having been a party to the first action.

Nor was there any privity between the driver and owner of the automobile, parties plaintiff in the first and second actions respectively. • The basis of the second action was injury to the automobile of the owner, in which the driver had no interest whatever and consequently no privity with the owner. Such distinguishes this case from Carter v. Public Service Gas Co. (Court of Errors and Appeals), 100 N. J. L. 374, where there was an identity of interest in the master and servant in the two causes of action, both for assault and battery.

To reach a different result in this case would mean that we would permit the same party to force the same court to try the same issue—that of negligence—twice. We might also reach the ridiculous result that this same party might be found entitled to recover for personal injuries, because not negligent, yet not entitled to recover for propert}^ damage to a car he might own, because negligent. Nothing would better serve to foster litigation and, at the same time, a disrespect for our system of jurisprudence.

Judgment will therefore be entered for the defendant.


author: Pee Cukiam.

text:
    ALBERT GRANOWITZ, PETITIONER-RESPONDENT, v. HAY FOUNDRY AND IRON WORKS, RESPONDENT-PROSECUTOR.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gujvoieee, Chief Justice, and Justices Paekee and Case.
    Eor the prosecutor, Heine & Laird (John A. Laird, of counsel).
    Eor the respondent, Samuel Greenstone.

   Pee Cukiam.

The prosecutor seeks by writ of certiorari to review a judgment of the Essex County Court of Common Pleas affirming an award by the workmen’s compensation bureau rendered in a proceeding wherein Albert Granowitz, an employe of the prosecutor, was the petitioner, and the present prosecutor was the respondent. Eor convenience Hay Eoundry & Iron Works will be referred to as the employer and Albert Granowitz as the employe. The workmen’s compensation bureau determined that the employe “met with an accident arising out of and. in the course of his employment * * * while attempting to lift a heavy casting, causing a severe strain of his back and aggravating an old Potts’ disease of his spine so as to disable him from work.” The empolyer appealed from the judgment rendered thereon to the Essex County Court of Common Pleas where the findings and judgment of the workmen’s compensation bureau were affirmed and judgment entered for the employe. The Essex County Court of Common Pleas again reviewed the matter on an application of the employer to reopen the judgment and denied that application.

The employer in prosecuting its writ of certiorari first charges that the employe has failed to prove by a fair preponderance of the evidence that his condition is the result of an accident and further has failed to eliminate from the case the idea that his disability is the result of matters with which the employer is not connected. There is, we think, sufficient evidence to sustain a finding that the employe, on August 29th, 1924, in the course of his duties assisted in lifting a heavy iron casting and in so doing strained his back in such fashion as to cause a recrudescence of tuberculosis of the spine. It is not denied that if this be the fact, liability may be properly grounded thereon. The employe had been engaged by the employer for twenty-two yrears up to the time of the alleged accident, and thereafter he was completely disabled. Not once but, counting the reconsideration by the Common Pleas Court, thrice a fact finding body has determined that there was an accident and that the man’s disability is due to that accident. When two independent and distinct tribunals have examined the facts and heard the testimony, a conclusion thus reached should not be lightly disturbed by this court. Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; affirmed, 105 N. J. L. 636.

The next point is that there is no proof in the case supporting the allegations of the .petition that the injury consisted of a fractured spine. It is true that the petition recited a fractured spine as the injury and that the testimony docs not sustain that claim; but it is also true that the hearing was conducted in full knowledge of, and upon the hypothesis that, the employe claimed that the injury consisted of an opening up of and an aggravation of a preexisting diseased condition. The determination reached by the workmen’s compensation bureau was upon the issue that was tried between the parties. The reviewing court under such circumstances has power to amend the pleadings to support the judgment, and we shall exercise that power. Klie v. Hollstein, 98 N. J. L. 473.

It is next alleged that the employer had neither notice nor actual knowledge of the occurrence of any injury. There is evidence that the employer’s foreman wont to the employe’s house forthwith after the accident and either went to, or had knowledge that the employe was at the hospital, and that the employer sent to the employe Dr. Ill, who performed an operation. Indeed, the employer in its answer filed with the workmen’s compensation bureau admitted that on the date of the alleged accident the employe had made complaint thereof, though this admission was subsequently amended out. Nevertheless, the employer did not produce either the foreman or any other witness to deny knowledge of the accident. We think that the employer had such knowledge as is within the requirement of our cases. Allen v. Millville,, 87 N. J. L. 356; affirmed, 88 Id. 693.

The final contention is that the employe has not proven by a fair preponderance of the proof that there was an accident. This is answered by our conclusions as to the first point.

The judgment is affirmed, with costs.


author: Per Curiam.

text:
    WINIFRED LONERGAN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF PATRICK LONERGAN, DECEASED, PLAINTIFF-RESPONDENT, v. MEUTER BROTHERS, INCORPORATED, DEFENDANT - APPELLANT.
    Submitted May 15, 1931
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the plaintiff-respondent, Joseph H. Gaudielle and James A. Major.

    Por the defendant-appellant, Autenrieth, Gannon & Wortendylce {Reynier J. Wortendylce, Jr., of counsel).
   Per Curiam.

The appeal is by the defendant from a judgment entered in the Bergen County Court of Common Pleas upon a verdict against it and in favor of Winifred Lonergan, administratrix ad prosequendum of the estate of her husband, Patrick Lonergan.

The first two points presented on appellant’s brief are, respectively, a refusal to nonsuit and a refusal to direct a verdict for the defendant.

While there was marked dispute in the testimony, it was open to the jury to find from the evidence: The defendant company, through its sales agent, Moriarity, had been negotiating with one Milligan for the sale to the latter of a second-hand Chandler car, and in order to make a final demonstration Moriarity undertook to drive Mulligan and his friends, among whom was Lonergan, from Edgewater to New Milford and return. While Moriarity was waiting at defendant’s garage for the hour of the appointment, Ered W. Meuter, president of the defendant corporation, sent the car out on another errand. Moriarity informed Meuter that Mortality had made an appointment in Edgewater for the car, whereupon Meuter said: “Take the big Nash. Try and sell him that car.” Moriarity complied and during the trip made an unsuccessful effort at a sale. On the return trip, after the party had stopped at two roadhouses and Moriarity had had several drinks of beer and whisky, and while Moriarity was at the wheel driving at a speed of between thirty-five and forty miles per hour in a residential neighborhood, the ear left the road, hit a pole and was badly wrecked. Lonergan was injured in the accident and died, as a result, on the following day.

Supplementing the oral and documentary evidence were photographs of the wrecked car and the scene of the accident.

With the proofs in this shape we think that the trial court properly refused defendant’s motions for nonsuit and direction of verdict.

The only other point argued in the appellant’s brief is that the jury was confused by the court’s reading, in its charge, of section 1 of article IX, of chapter 281 of the laws of 1928, commonly known as the Traffic act. The matter read by the court from section 1 was as follows:

“Any person who shall drive any vehicle upon the highway carelessly and heedlessly in willful or wanton disregard of the rights and safety of others, or without due caution or circumspection, or at a speed and in a manner so as to endanger or to be likely to endanger any person or property, shall be guilty of reckless driving.”

We think there was nothing in that language to confuse the jury. The jury was distinctly told that there was no liability on the part of the defendants (Moriarity being one of the defendants below) unless Moriarity was negligent and unless such negligence was the proximate cause of Lonergan’s death. If Moriarity was guilty of reckless driving, as described in the quotation complained of, and if, further, Lonergan was injured and came to his death as the result thereof, there would be civil liability, not as a consequential outworking of the statute, but because such a state of facts constitutes actionable negligence. The jury was further instructed that the burden of proof was on the plaintiff. No harm came to the defendant from the language of the charge.

The judgment below will be affirmed.


text:
    ISRAEL H. ALBERT, TRADING AS L. ALBERT & SON, PLAINTIFF-RESPONDENT, v. FORD MOTOR COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Decided November 16, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.

      Eor the plaintiff-respondent, Gross & Gross (Joel Gross, of counsel).
    For the defendant-appellant, McCarter & English (George W. C. McCarter, of counsel).
   Per Curiam.

This appeal is prosecuted by the defendant from a judgment of the Hudson County Court of Common Pleas entered upon a verdict in favor of the plaintiff in the sum of $30,000.

The complaint embraces four counts, the essence of which is that the plaintiff had purchased from the defendant certain used machinery for the manufacture of rubber tires, had paid the full purchase price thereof and that the defendant, except as to one machine, had failed or refused to deliver the machines sold; with ensuing damages for which plaintiff sought judgment. No answer was filed. The plaintiff took interlocutory judgment by default, whereupon a rule for writ of inquiry issued and damages were assessed by a jurjr in the amount mentioned above.

The appellant argues its appeal under six points, all of which ground in the proceedings had pursuant to the writ of inquiry to assess damages The first is that the trial judge erred in permitting the plaintiff’s witnesses, Venn, Hoover and Grote, to testify as they did to the value of the machines. The appellant should, of course, present in its grounds of appeal the testimony to which objection was made and upon which the appeal was taken. The only testimony thus specified is the following: (Asked of the witness Venn) “Will you take the first piece of machinery, the No. 2 Royle tube mill, and place a value thereon, stating to the court and the jury how you arrived at that value, and fix it as of the period between February and June, 1930?”; (also asked of the witness Venn) “What value did you place on the machine, Mr. Venn?”; (asked of the witness Hoover) “Will you state, Mr. Hoover, please, how you arrived at the value of these various pieces of machinery?”; (asked of the witness Grote) “Please take up the various pieces of machinery and state to the jury the item of depreciation -which you allowed, and the value placed by you upon it.”

The appellant argues the instance of the witness Venn as typical, concedes that the witness had been engaged many years in the manufacture of rubber tires and as such had acquired large experience in the operation of rubber manfacturing machinery but nevertheless disputes the propriety of the questions. The position of Mr. Venn, as well as each of the other witnesses referred to, as an expert along the line of the questioning is, we think, adequately established. It is appellant’s contention that the machines were not extraordinary or unique but were standard and, therefore, had an available market, and that the true measure of damages was the difference between the contract price and the market or current price, relying upon the Uniform Sales act (“An act concerning the sale of goods and to make uniform the law relating thereto”). Pamph. L. 1907, p. 131; 4 Comp. Stat., p. 4647, which provides, in section 67, as follows:

“(1) Where the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for non-delivery.

“(2) The measure of damages is the loss directly and naturally resulting, in the ordinary course of events, from the seller’s breach of contract.

“(3) Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.”

There was, however, a dispute in the testimony as to whether or not there was a market for such machinery at the time of the breach of the contract, and the court in its charge made clear that the testimony as to the various elemeuts fixing value, including cost and depreciation, were to be applied only if the jury should find that there was no market value.

Appellant contends that the witness was permitted to give an estimate of value based solely on the manufacturer’s price new in June, 1930. We think not. The price new was only one of the factors that enabled the witness out of his experience, general knowledge and the examination of the specific machine to give his appraisal. Cost is one element in a criterion of value. Luse v. Jones, 39 N. J. L. 707; Voorhees v. Thomas, 107 N. J. L. 134; 152 Atl. Rep. 4.

We find no error in that type of testimony. This applies to the questions asked of the three designated witnesses.

The appellant next assumes to find an inconsistency between these two portions of the court’s charge:

(1) “The measure of the plaintiff’s damages in this case is the difference between the contract price and the market or current price of the goods at the time of the defendant’s refusal to deliver them.”

(2) “Now, gentlemen of the jury, what is the plaintiff entitled to recover? There is some question about whether or not there was a market at the time of the breach of this contract; and where there is no available market, the courts •of this state and the Court of Errors and Appeals has held as follows:

“ ‘Where there is a breach of the contract and upon the failure of proof of an available market resort may be had to a comparison between the contract price and cost of production or performance for the purpose of measuring damage.’ ”

We find no inconsistency. The first rule is that contained in section 67, subdivision 3, of the Uniform Sales law, supra, and applies when there is an available market. The second is for application when there is not such a market and is in harmony with subdivision 2 of said section 67. That these were stated to the jury as alternative rules, depending upon the factual finding, is made clear to us and, we think, was made clear to the jury by the following additional language in the charge:

“But, gentlemen, if you find from all the facts presented to you, that there was no market value as I have defined it. to you, then you will give consideration to the case which I quoted to you from the Court of Errors and Appeals as to-the cost less depreciation, and the other elements which I have already read to you from that decision.”

Appellant’s third point is that the court refused to charge its ninth request as follows:

“The contract between the parties did not require the defendant to deliver the goods sold until it received shipping-instructions from the plaintiff.”

The case had moved past the stage of defendant’s liability. The fact of the breach was determined by the default judgment. As was correctly said by the court below in its ruling, “* * * the only thing with which the jury is concerned is the damages resulting to the plaintiff as the result of that, breach.”

Points four and five are to the same effect and are subject to the same comment.

Finally, it is argued that the court erred in receiving the-affidavit of one Lennie in evidence. The only objection-stated at the trial was that the exhibit was immaterial. We.find no harmful error in that ruling.

Judgment below will be affirmed.


author: Pee Cubtam.

text:
    THE STATE v. LOUIS MEYERS.
    Submitted May 15, 1931
    Decided November 16, 1931.

      Before Gumheee, Chief Justice, and Justices Pasees and Case.
    For the plaintiff in error, Aloysius McMahon.

    For the state, John Drewen, prosecutor of the pleas, Marian Besson and Andrew 0. Wittreich, assistant prosecutors.
   Pee Cubtam.

Three indictments were found against plaintiff in error, based on one occurrence, viz., the hold-up of a silk-laden truck driven by one Foster. The general facts as the jury were entitled to find them, were that Meyers, revolver in hand, boarded the truck and compelled Foster to leave it, and Meyers’ confederates took charge of it. Foster was blindfolded and compelled to enter an automobile in company with Meyers, driven around the country for several hours, and finally released at Perth Amboy. The grand jury found indictments against Meyers, one for kidnapping, for which the offender may be sentenced for life or any term of years; one for robbery for which the limit of imprisonment is fifteen years; and one for carrying concealed weapons which is an ordinary misdemeanor. Crimes act, sections 114, 120. 2 Comp. Stat., pp. 1783, 1785; Pamph. L. 1925, p. 494. The three indictments were tried together, and there was a conviction in each. The court imposed a sentence of thirty years for the kidnapping, fifteen years for the robbery, and two years on the concealed weapons charge, the sentences to run concurrently. The entire record of proceedings at the trial is certified pursuant to section 136 of the Criminal Procedure act. The assignments of error and causes for reversal under section 136 are identical.

Two points made for reversal may be shortly disposed of: No. 3, that defendant was prejudiced by the trial of three indictments at once; and No. 6, that no indictment was moved for trial. The return to a certiorari to bring up out-branches of the record discloses clearly that all the indictments were regularly moved, and that they were tried together by the express consent of the prisoner’s then counsel.

The conviction on the indictment for concealed weapons must be reversed, as the charge of the court on that offense omitted the essential element of concealment. State v. Gratz, 86 N. J. L. 482.

With respect to the other two convictions, the points made in the brief (there was no oral argument) for the most part do not cite any particular filed causes for reversal or assignments of error, and this is not surprising, as most of the assignments are technically insufficient. No. 1, weight of evidence, is not assigned. No. 2 is to us either unintelligible or ill-founded. It is that “both charges of kidnapping and robbery are not comprehended by the facts adduced at the trial.” This does not challenge any judicial action, and we need only point to the facts above recited in answer to it on its merits.

Numbers 3, 4, 5 and 7 attack the joint trial, which as we have said, was consented to. It would be needlessly tedious to deal with the others seriatim. So far as they are legally sufficient they raise the points (a) that the kidnapping was part of the crime of robbery, or vice versa, and hence that a conviction on either indictment would include the other (we disregard concealed weapons, which is now out oí the case); (b) that the court charged erroneously on several points specified; (c) that the court erred in denying motions in arrest of judgment.

With respect to the first of these, we cannot discern that it was presented to the trial court, or appears on the face of the record. The difficulty is considering it now obviously arises out of the fact that defendant through his counsel expressly consented to the trial of all three indictments together. If he was to urge that all were based on the same act or series of acts, the proper course was to stand trial on one indictment and then plead autrefois convict (or acquit) as to the others, as was done in State v. Cooper, 13 N. J. L. 361; State v. Mowser, 92 Id. 474, and State v. Cosgrove, 103 Id. 412. Moreover, we cannot find that the alleged merger or duplication of the charges was brought to the court’s attention at any time during the trial. Even the motion to direct an acquittal was based simply on alleged insufficiency of evidence. After verdict it is too late to complain. 1 Bish. (New) Cr. Pro. 443 (3). There was a motion in arrest of judgment, based on the claim that the evidence showed legal identity of the three alleged crimes: but judgment will be arrested only for matter apparent on the record. Powe v. State, 48 N. J. L. 34; State v. Hop, 90 Id. 390; State v. Lehigh Valley Railroad Co., 94 Id. 171; State v. Columbus, 154 Atl. Rep. 605; 9 N. J. Mis. R. 512

As to the charge of the court: it is urged in the first place that under a quoted passage in the charge the jury were left-free to find defendant twice guilty of assault and battery, once on the indictment for kidnapping and once on that for robbery. A sufficient answer is that the jury did not convict of assault and battery on any one of the three indictments, and therefore the error, if any, was not harmful.

Next, that in charging on alibi, the court said in part: “If the testimony on that question alone raises a reasonable doubt, he is entitled to an acquittal.” The argument seems to be that this is not equivalent to saying (in the language of our cases), that “if the testimony created such a degree of uncertainty as to defendant’s whereabouts that the jury were not satisfied beyond a reasonable doubt of his guilt, he was entitled to an acquittal.” We think it was substantially equivalent; and that if it was not satisfactory to counsel, a suitable request should have been submitted.

Another remark of the court on the subject of alibi is criticised in the brief, but as it was not specified for error we have not considered it.

The last point remaining is that “there was a multiplicity of punishments for the same crime.” This is the same in effect as that the defendant was tried on three indictments for substantially the same offense. It does not require decision, for the same reasons already stated, viz., that at no time until the motion in arrest of judgment was it even suggested to the trial court. That court in imposing sentence on the three indictments, very sensibly prescribed that the sentences should run concurrently, and hence, when the defendant shall have served the major sentence, he will also have served the minor one.

The judgment on the concealed weapons’ indictment will be reversed: on that for kidnapping and that for robbery it will be affirmed.


text:
    AMELIA K. PETRILLA, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF STEPHEN PETRILLA, DECEASED, PLAINTIFF-APPELLANT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION, AND U-DRIVE-IT COMPANY, A CORPORATION, AND JAMES J. HARTNETT, DEFENDANTS-RESPONDENTS.
    Decided November 16, 1931.

      Before Gummere, Chiee Justice, and Justices Parker ■and Case.
    For the plaintiff-appellant, Alexander Simpson.

    For the defendant-respondent Public Service Co-ordinated Transport, Henry II. Fryling (James J. Higgins, of counsel).
   Per Curiam.

This is an appeal by the plaintiff from a judgment entered in the Hudson County Court of Common Pleas on a verdict rendered by a jury against her and in favor of Public Service •Co-ordinated Transport.

Plaintiff’s intestate died as the result of injuries received by him while in an automobile, driven by defendant James J. Hartnett, which came into collision with a bus of the defendant Public Service Co-ordinated Transport. There was factual dispute as to the incidents directly surrounding the accident; the proof of the plaintiff tending to show that the car in which the deceased was seated was proceeding on its proper side of the highway when the defendant’s bus, which was coming from the opposite direction, suddenly swerved from its true course and collided with the automobile, and the proof of the corporate defendant tending to show that the bus was, and remained, on its own side of the road, whereas the other car, suddenly and without warning, pulled out of its procession and crossed the center of the highway directly into the path of defendant’s bus, thus causing the collision. Hartnett was produced as a witness for the plaintiff. His-cross-examination disclosed that he and Petrilla were endeavoring to effect the sale of certain real estate for a woman client under an arrangement whereby Petrilla and Hartnett, were to share the profits of the transaction and were to share-the expenses of the hired car which both occupied at the time-of the accident; that Hartnett and Petrilla had hired the car, for the purpose of their enterprise, on the morning of the day in question at the “U-Drive-It Company’s garage-there at Sip avenue, near the tube station” and had together-driven to Elizabeth in order to complete certain legal details-with respect to the sale of the lots at a lawyer’s office in the-last mentioned city; that Hartnett and Petrilla had lunch on the way to Elizabeth, went to the lawyer’s office and remained there until five or five-thirty; that the two then drove to a roadhouse, had dinner and proceeded on their way back to make delivery of the car to the garage where they had hired it in the morning. Owing to this and other evidence in the trial, a disputed question arose as to whether Hartnett and Petrilla were at the time of the accident related in such circumstances of partnership or joint enterprise-as made the negligence of Hartnett, if such there was, imputable to Petrilla.

The first point on appellant’s brief presents for criticism two portions of the court’s charge. The first is:

“Now, the defendant in this case goes a step further and has developed as part of its case that on the particular day of this accident the plaintiff’s intestate set out with Hartnett to go to Elizabeth and that they were down around Linden in connection with some real estate deal. Linden, as you know, is just outside Elizabeth. And they repaired to some-local office to draw up some documents in connection with the real estate deal. Hartnett admitted that on cross-examination and said that they had a deal, which has been characterized by the defendant as a partnership deal but which to my way of thinking was more in the nature of a,, joint enterprise, because that was simply limited to one real estate deal on which they were splitting a commission; but Hartnett said they had concluded their business arrangement. Of course, that is for you to determine. I do not know whether they had or whether they had not. That is a very important fact in the ease and a very important factor. The defendant’s theory is that the business deal had not been consummated, and had not been concluded, that is, that it wasn’t wound up, and that they continued on and went on up to the Swiss Chalet, where they had dinner, and that they were still on that enterprise at the particular time of the accident. On the other hand, the plaintiffs’ insistment is that when they left Elizabeth that the business venture had failed at that moment of time and that the rest of the journey was devoted to pleasure. Now, that becomes important for this reason.”

The portion of the charge thus complained of is a mere recital either of the evidence or of the contentions of the ■opposing counsel, with the exception of the phrase which we have italicized. The comment thus injected was, we think, not only within judicial jurisdiction but also a quite appropriate and timely observation.

The second excerpt from the charge presented under the same point is as follows:

. “ Tf you find that the plaintiff’s decedent Petrilla, and Hartnett, the chauffeur, were partners, and engaged in partnership business at the time of the accident, then each is an agent of the other, and their responsibility was mutual.’

“I will so charge you, but while I am charging you that I want to say this to you, that while I notice all through the defendant’s requests to charge counsel used the word ‘partnership,’ I think the better term would be ‘a joint enterprise.’ There does not seem to be any evidence in this case that these men were partners in the general sense of the word. All the testimony seems to indicate that they were interested in putting over one isolated real estate deal. If I am in error I want counsel for the defense to contradict me.”

The first sentence was the defendant’s fifth request to charge. It was charged by the court with the limitation or qualification added in the ensuing language. Tt was only to the latter that the exception was taken. The fault alleged by the appellant appears not to be in the distinction drawn by the court between a partnership and a joint enterprise but to be, first, that the court submitted to the jury the question of the existence of any such relationship, by whatever name it be called, between Hartnett and the decedent and, second, that the court did not in terms define the expression “joint enterprise.” We think that the question was properly submitted. We think also that the context of the charge carries to the average mind what the words “partnership” and “joint enterprise” indicated. If appellant desired a more precise definition, she should have presented the same with a request to charge. Newark Passenger Railway Co. v. Block, 55 N. J. L. 605. This she did not do; nor did she except to the alleged omission.

Under point two appellant brings up this further excerpt from the charge:

“ ‘The operator of the north-bound motor bus was under no duty to anticipate that the driver of the south-bound vehicle would turn out suddenly from behind a car which he was following, and cross the centre of the road and in the path of north-bound traffic so close as to endanger the safety of both vehicles, and the occupants thereof, and, therefore, was under no duty to give any warning which would serve notice of his approach upon the driver of the south-bound vehicle.

“ T so charge you, subject to the qualifications that the recital of facts contained in that request to charge meets with your conception of what the real facts in the case are. Of course, it is the driver’s contention, you will remember, during the course of the trial, that the Hartnett car pulled out from its direct course. Hartnett on the other hand denies that he pulled out from anything. He says that the bus pulled over to his side of the road and ran into him. It is for you to determine what is the fact and which is correct.’ ”

Again regard must be had for the precise point involved. The first sentence of the excerpt was defendant’s twelfth request to charge. To that language defendant did not except. The following matter is the limitation and qualification made by the court. It is to that that the exception was taken. We consider that this observation was for the plaintiff’s benefit in that it brought home to the jury that the application of the request to charge depended upon a finding, by the jury, of the facts in accordance with the defendant’s contention. The appellant was certainly not harmed.

A further portion of the charge discussed by the appellant under this point was not excepted to by the appellant at the trial.

The final point argued by the appellant is that the court erred in charging the jury as follows:

“ T charge you that there is no evidence in this case that the brakes of the defendant’s motor bus were defective.’

“This is correct, the negligence alleged being as to lack of proper control.”

The subject-matter thus charged was defendant’s fifteenth request. There was no exception noted by the appellant; so that even if we thought, which we do not think, that the charge was erroneous, the matter is not properly before us for review.

The judgment below will be affirmed.


text:
    WINNARETA E. WRIGHT, ADMINISTRATRIX AD PROSEQUENDUM OF WASHINGTON F. WRIGHT, DECEASED, PLAINTIFF, v. JOHN W. BEITH, DEFENDANT.
    Submitted May 15, 1931
    Decided November 16, 1931.

      Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the plaintiff, Martín V. Bergen.

    Por the defendant, Walter B. Carroll.

   Per Curiam.

This is defendant’s rule to show cause why a verdict for $10,000 awarded to the plaintiff in a death action should not be set aside. The reasons argued are that the verdict was against the weight of evidence, that the court should have granted defendant’s motions for a nonsuit and for a directed verdict, and that the court erred in its charge.

The deceased Wright was a passenger in the defendant’s automobile. Both had been at a banquet in New York and were on their way back to Gloucester City late at night traveling along the New Brunswick-Trenton state road at a point near Penh’s Neck about a mile and a half to the east of Princeton. The atmospheric conditions were described by the defendant as “foggy in spots,” that is to say, there were banks of fog with clear spaces. In one of these banks of fog the defendant’s car closed up on the rear of a truck trailer before defendant was aware of it. The accident seems to have been due in large measure to such an insignificant cause as the butt of a cigar. According to the testimony of defendant, which was taken apparently without any objection that it related to a transaction with a deceased party, the deceased Wright had finished the cigar and wished to throw the butt out of the window. Defendant was at the wheel of the car, which was a coupe, and deceased was sitting on his right. The right window refused to work and the deceased asked the defendant to throw the cigar butt out of the left-hand window. Between the two, the butt dropped on the floor, and with the car still going at speed both began to grope for it, defendant keeping his left hand on the wheel and watching the road. He testified that with matters in this situation lie suddenly saw the truck ahead and had steered to clear it to the left when the deceased rose up and, in defendant’s language, “I guess he looked up and saw where we were going. Naturally anybody would. Well, he came up and grabbed the wheel with his left hand and pulled me back into the truck.” The photographs of the damaged coupe which were admitted in evidence show very clearly that there was a violent crash between the automobile and the truck or trailer ahead. While the principal impact seems to have been at the right front, the whole body is substantially a wreck, and assuming the truck was going eighteen to twenty miles an hour as was testified the jury were entitled to find that the closed automobile must have been traveling at a very high speed. There is considerable testimony with relation to statements made by the defendant after the accident and before the trial which do not include the claim that the deceased interfered with the steering gear. These are treated by counsel for the defendant on this argument as mere impeachment but counsel overlooks the fact that as the defendant was a party they are evidence of the admission class.

It is claimed, among other things, that the deceased Wright was a mere licensee in the car, but the jury were clearly entitled to find that he had been invited to go to New York on that particular ride, and consequently that the defendant owed him a duty of care. It may well be that the trip was originally suggested by the deceased; hut the testimony nevertheless indicates that the defendant postponed his trip for two or three days for the express purpose of inviting the deceased to go with him, and on the whole we see no reason to question the propriety of the finding of the jury essential to a recovery that the deceased had been invited to ride in the car.

On the question of liability, we likewise consider that the evidence was sufficient to warrant the jury in holding the defendant guilty of negligence, not only by inferring from the violence of the impact, that the car was traveling at a dangerous speed, but also from the fact of the defendant partially resigning his control over the car when traveling fast at night in a fog for the wholly unnecessary purpose of picking up a cigar butt. The court was clearly justified in declining to nonsuit or to direct a verdict and we are clear that the verdict as to defendant’s negligence was not against the weight of evidence. As to contributory negligence, the burden of proving that was on the defendant, and as the accuracy of the story that he told with regard to the alleged actions of the deceased was a matter to be determined by the jury, we are unable to say that their finding in that regard is against the weight of evidence.

The troublesome point in the case arises out of a passage in the charge of the court. This passage is not brought before us in accordance with the rules and, consequently, we are not obliged to consider it. Rule 125 provides that on rules to show cause, &c., “the party entering such rule shall write down the reasons upon which he rests such motion with such particularity as is now required in stating grounds of appeal.” The clause “with such particularity is italicized in the rule. If this were an appeal, the reason which attempts to bring this portion of the charge before us would be insufficient under the principles laid down in State v. Blaine, 104 N. J. L. 325, followed in a number of cases, because instead of quoting the passage of the charge in the reason, the latter reads as follows: “Because the court charged the jury, among other things, in substance, that if the defendant, by his act, placed plaintiff’s intestate in a position of imminent peril, the latter was not guilty of contributory negligence because in an effort to extricate himself from such position of imminent peril, he did not do the1 wisest thing, or pursue the safest course under the circumstances of the case.” This, while somewhat more specific than the reasons given in such cases as Carey v. Deems, 101 Id. 419; Shedaker v. James, 154 Atl. Rep. 394; Benson v. Brady, 5 N. J Mis. R. 13; Napper v. West Jersey and Sea shore Railroad Co., 6 Id. 1035, and Alling v. Walton, 7 Id. 101, is nevertheless obnoxious to the requirement of the rule. We do not find it necessary, however, to stand upon the strictness of this rule because counsel when excepting to the charge of the court in this regard used the following language: “I want to except to that part of your honor’s charge which deals with the party being placed in peril, on the ground that that would have no bearing on the facts in this ease.” Apart from the indefinite character of the exception, it will be observed that it is based upon the sole ground that the situation postulated by the court has no bearing on the facts in the case. The portion of the charge objected to, as now stated in the brief, reads as follows: “Your third question, then, as I have suggested it to you for your consideration, is whether or not the decedent was guilty of contributory negligence.

“You recall the testimony in the case with respect to that. The testimony of the defendant Beith, as the court recalls it, was to the effect that after Beith had reached down to find a cigar stump which had been dropped upon the floor of the car, the decedent Wright straightened himself up and took hold of the wheel of the car and twisted it, and that that was the cause of the accident. In that connection, may I say to you that where one is put in apparent danger as to cause him terror or loss of self-possession or bewilderment, he will not be as a matter of law chargeable with contributory negligence for an error of judgment in attempting to extricate himself or save himself. It is for you again to say, under all of the circumstances of the case, whether or not the decedent Wright was guilty of contributory negligence.”

We think the instruction was entirely apposite to the situation as the jury were entitled to find it, viz., deceased, a passenger in defendant’s automobile driven at high speed at night in a fog by the defendant, the latter with only one hand on the wheel and his head down looking for a trifling cigar butt and raising his head just in time to discover that he was crashing into the rear of a truck trailer. The principle of law enunciated is well settled and, as counsel notes, is taken from Barry v. Borden Farm Products Co., 100 N. J. L. 106, and previous cases. It is true that in the Barry case the party to which the rule was applied was the driver of the car and not a mere passenger; but we are not prepared to say at this time that there are no cases in which the rule may not similarly be applied to a passenger otherwise helpless, who sees, or reasonably thinks he sees, death manifestly impending because of the mismanagement of his driver. It is not necessary to pass upon this precise point because the objection to the charge, as already noted, is that it was inapplicable to the facts of the case. We think it was fairly applicable and this is all that needs to be decided at this time. The cases are'clear that there are situations in which the passenger is bound to do something in his own protection. Generally, the question relates to the duty of warning the driver or protesting without physical action. For example, in such a case as Avery v. Thompson (Me.), 103 Atl. Rep. 4 (at p. 8), the court seems to have assumed that the passenger was not entitled to do more than warn or protest, saying, “she had neither direction nor control of its operation. That was absolutely within his power.” On the other hand, in the Wisconsin case of Howe v. Corey, 172 Wis. 537; 179 N. W. Rep. 791, cited in 42 C. J. 1171, the court said in part: “We can easily conceive of cases where a clamor of direction by the guest would confuse a driver or chauffeur and increase the danger in a manner amounting to contributory negligence of the passenger. In others the duty to utter warning might be imperative. In some instances it would be rank folly to wrest the reins or the wheel from the hands of the one in charge of the vehicle. In others it might be highly necessary to do that very thing. The court cannot lay down a mathematical precept as a rule of law enjoining in detail what should be said or done or omitted in every juncture of danger.” If it may be assumed that there are cases in which a passenger in sudden emergency is justified in interfering with the control of the wheel, or perhaps requirecl to do in the exercise of proper care for himself, it should be plain that where such a feature of contributory negligence is involved, the rule of sudden emergency and exercise of judgment obtaining in similar cases of contributory negligence should be applicable also to this one. We prefer not to decide this point because it is not properly before us and content ourselves with saying that trial judges may well use the utmost caution in undertaking to apply that rule in cases involving the act of interference by a passenger with the control of a motor vehicle driven by another.

The amount of damages is not in question. Finding, as we do, that there was no error in refusing to nonsuit or direct a verdict, that the verdict was not against the weight of evidence, and that the portion of the charge that is challenged here is not obnoxious to the criticism made of it at the trial, we conclude that the rule to show cause should be discharged.


author: Pee Curiam.

text:
    SOPHIE PUTKOWSKI AND HUSBAND, PLAINTIFFS-APPELLEES, v. FRANK JARMOLI, DEFENDANT-APPELLANT.
    Submitted May 15, 1931
    Decided November 16, 1931.

      Before Gummebe, Ci-iiee Justice, and Justices Parker and Case.
    Eor the plaintiff, Feder & Rmzler.

    Por the defendant, Carl S. Fueller.

   Pee Curiam.

The female plaintiff recovered a verdict of $4,000 for personal injury claimed to have been sustained as the result of falling down a flight of stairs in a tenement house building owned by defendant and which he had invited her to inspect with a view to purchasing. Her husband joined his claim per quod and the jury awarded him $500 which is not questioned as to the amount, but the award to the wife is attacked as excessive, and the verdict generally is challenged as against the weight of evidence. Error is also alleged in refusing a direction of verdict for defendant, and in refusing two requests to charge. We are advised under point VI of the brief (the case was not orally argued) that “the reasons not specifically argued are not waived;” but as counsel has not thought fit to argue them we do not feel called upon to consider them.

The facts as the jury were entitled to find them are that defendant desired Mrs. Putkowski to buy the building in question and urged her not to be discouraged by its appearance outside but to go and examine it: that she did so, accompanied by a woman friend; that the pair inspected the building inside, and climbed to the top floor; that when plaintiff started to go downstairs again her foot caught on a defective tread which was badly worn, with projecting nails, and the condition of which was not readily visible because of being in shadow, and she fell the whole length of the stairway, sustaining a concussion of the head and shock, and later suffering a miscarriage. The condition of the stairway can hardly be said to be in dispute, as the testimony of the witness Alice Kelly agrees in material particulars with that of the defendant himself as to what he found when he examined the stairway, apparently for the first time, two days before the trial.

The first point argued is that the trial court should have directed a verdict for defendant:

(a) Because there was no proof of negligence of defendant. We think the facts above recited are quite enough to preclude a control of the verdict by the court.

(b) Because Mrs. Putkowski was guilty of contributory negligence because she was aware that the building was old and dilapidated and ought to have observed the alleged defect. There was clearly a jury question on this point.

(c) Because defendant was under no duty to light the staircase. This is immaterial on a motion to direct unless failure to light was the only negligence relied on, and that was not the case.

The second point is that the court erred in refusing to charge:

“The defendant did not assume the duty of providing and maintaining lights on the stairs and hallways or contract to provide same, and therefore there is no duty upon him to provide such lights.”

This was properly refused, because, as we think, the last clause is a non sequitor. Counsel relies on Gleason v. Boehm, 58 N. J. L. 475, and a line of decisions based on it, including Leech v. Atlantic Delicatessen Co., 104 Id. 381, holding to the effect that a landlord is not primarily under a legal duty to light the stairways. But a glance at those cases will show that there was in none of them a claim that the stairway was defective, but the sole claim was that the landlord had failed to light a stairway otherwise adequate and in good condition. That is a very different situation from the one obtaining in the present ease. Here, we think, the duty of lighting, if any, was a relative one, depending on the fact that the stairway was in bad order, and that the jury might properly say the defendant being charged with knowledge that the stairs were in bad order and negligent in not repairing them, was likewise negligent in not lighting the place where the defect existed, so that it could be readily seen.

The third point is that the findings in favor of the plaintiffs are against the weight of evidence. We do not think they were. The invitation was not denied, nor was the defect in the staircase. The evidence fairly showed that the condition had existed for months. As to contributory negligence, it was clearly a jury question and we see no reason to charge the jury with disregard of the evidence in failing to find that contributory negligence had been proved.

The fourth point is that the court refused to charge the fourth request as follows :

“If the stairway was fit for use in ascending and descending, the responsibility of safely using it was upon the plaintiff, Mrs. Putkowski.”

As to this it may be said that all the proof, as we read it, is that the stairway was unfit for use. If so, the request embodied an unwarranted assumption of fact. But apart from this, the proposition was implicit in a charge which put the right of recovery on a finding that the stairway was not fit for use. In particular, the court did charge request No. 6 which reads:

“(6) To hold the defendant liable for a defective condition of the stairway, the plaintiff must prove first a defective condition; second, that the defendant had knowledge of such condition, or, third, that it existed for such a length of time as to charge the defendant with knowledge of the same.”

This, we think, sufficiently covered the proposition contained in the fourth request.

Finally, that the verdict of $4,000 in favor of the wife is excessive. This depends upon the appraisement by the jury of the severity of the injury and its effect on the female plaintiff. She was before the jury, who saw and heard her, and heard the other evidence including that of her attending physician. Injured plaintiffs often do exaggerate the extent of their injuries, sometimes dishonestly, often even honestly. The jury were entitled to take this evidence at its face value or to discount it. Reading it from a printed book, we are hardly in a position to say that they would have disregarded their duty in doing either. At face value, we do not think the verdict so excessive as to require us to interfere with it.

The rule to show cause will be discharged.


author: Beennan, J.

text:
    Essex County Court of Common Pleas.
    STATE OF NEW JERSEY v. RALPH H. KINCAID.
    Eor the state, Harold Fisher, assistant prosecutor.
    For the defendant, Thomas Brunetto.

   Beennan, J.

This is an appeal from a judgment on conviction had against the defendant in the Recorder’s Court of the town of Montclair for operating a motor vehicle while under the influence of intoxicating liquor. At the time set for the trial, in this court, a preliminary motion was addressed to the court to set aside the conviction for reasons then assigned, and later elaborated upon in the brief filed in behalf of the defendant appellant.

It was agreed between the legal assistant for the prosecutor, representing the state, and counsel for the defendant, that the disposition of this motion would be dispositive of the case.

It appears that the defendant was arrested on the 26th day of October, 1930, in the town of Montclair, and charged with having operated a motor vehicle while under the influence of intoxicating- liquor, and that the first complaint made against him charged him with having operated a motor vehicle while under the influence of intoxicating liquor on the 27th day of October, 1930. At the trial of this issue, after the state’s case was in, there was, of course, a variance between the proof and the complaint, the proof showing the offense on the 26th and the complaint alleging the offense on the 27th, and the trial court granted a motion, at the conclusion of the state’s case, to dismiss the proceedings by reason of the variance. The appellant was released and the bail that he had originally put up for his appearance returned to him. Subsequently, on the 14th of November, 1930, a new complaint was made against the defendant-appellant for operating a motor vehicle while under the influence of intoxicating liquor, on October 26th, 1930. He was tried on this, on December 4th, 1930, and found guilty of having violated article 14, subdivision 3, of the Motor Yehicle act, in that he did, on the 26th day of October operate a motor vehicle in the town of Montclair, while under the influence of intoxicating liquor, and he was fined $200.

On the second trial counsel for the defendant appeared specially and objected to the jurisdiction of the court by reason of the prior trial and disposition, and took no other part in the proceedings. This he had to do under authority of State v. Rosenblum, 100 N. J. L. 240.

The incidental objections to the second trial I pass over, conceiving that the real meritorious question was whether or not the dismissal of the first proceeding, after the state’s case was in, was conclusive and a bar to a further complaint and further trial of the defendant. The prosecutor for the state argues in Ms brief that they were separate proceedings, one having nothing to do with the other; but it is conceded that there was but one offense. What happened, as a matter of fact, was that the state in the first instance charged the offense on the wrong date and could not sustain the charge in the field of proof. Did it have then the further right to urge a new complaint, and did the court have authority to proceed thereon? It seems to me, in reason and logic, that it should not; for if the state, by reason of defects of proof, could be permitted to try a man a second time, there is no reason why it could not be done times without number, for the same offense.

But a rule of reason is not sufficient unless it be buttressed by legal authority. I find upon examination the case of Ryley v. Brown, in Queen’s Bench Division, before Lord Coleridge, C. J., and Lord Esher, M. R., reported in 17 Cox C. C., p. 79. In that case the appellant was charged with non-compliance, on the 21st day of August, 1889, and ten days thereafter, with an order made by justices under section 2 of the Dogs act of 1871, requiring him to keep a dangerous dog under proper control. No evidence was given to support the charge except as to the 21st day of August, and the charge was dismissed on the ground that the offense had not been made out. Subsequently the appellant was charged with not keeping the dog under proper control on the 21st day of August, simply. This charge was proved and the appellant was convicted. It was held (quashing the conviction) that as the appellant was put in peril and might have been convicted on the first hearing the matter was res judicata on the second hearing, and the maxim nemo lis vexañ debet applied. It was urged in that case, by counsel for the appellant, that the matter was res judicata, and that the test was whether the evidence on both cases was the same and whether the defendant had on the first trial been put in peril, and that he had been. With this view the court, Coleridge, C. J., and Esher, M. R., coincided. This reasoning applies by clear analogy, it seems to me, in the instant case.

The conviction is set aside.


author: Ackebson, S. C. C.

text:
    FREDERICK C. HENN, PLAINTIFF, v. CHRIST HOLST AND THE AETNA CASUALTY AND SURETY COMPANY, A CORPORATION OF THE STATE OF CONNECTICUT, DEFENDANTS.
    Decided September 21st, 1931.
    For the plaintiff, Alfred L. Kettell.

    For the defendant The Aetna Casualty and Surety Company, Collins & Corbin.

   Ackebson, S. C. C.

This matter comes before me upon a stipulation between the plaintiff and defendant, The Aetna Casualty and Surety Company, which is as follows:

That the pleadings, demand of the corporate defendant for particulars, the plaintiff’s bill of particulars in response thereto, the corporate defendant’s interrogatories and the plaintiff’s answers thereto, be submitted to Honorable Henry E. Ackerson, Jr., Circuit Court judge to whom this action has been referred for trial for decision of the legal points" raised, in so far as same can be decided from the said papers, and the memoranda to be submitted to counsel. The defenses contained in the answer of the corporate defendant and in the amendment of the answer of the corporate defendant are in no way waived by virtue of the submission of the foregoing questions to the court for decision.

It appears that the defendant Christ Holst has filed an answer and counter-claim and it appears to me from an examination of the pleadings in the cause that matters of account are surely involved at least in so far as the answer and counterclaim of the defendant Holst are concerned, no matter what disposition may be made of the “legal points” raised by the above-mentioned stipulation. In view of this circumstance, and of the limited scope of the stipulaton submitted, I have decided to refer the whole matter to a referee rather than to attempt to dispose of the matter piece meal.

Counsel may therefore appear before me oh my next motion day, Friday, October 2d, at ten a. m., at which time the formal reference will be made and the referee selected and an opportunity given to reserve the right of trial by jury if so desired.


author: Lawrence. J.

text:
    SELMA ARNOLD, BY JACOB R. ARNOLD, HER NEXT FRIEND, AND JACOB R. ARNOLD, INDIVIDUALLY, PLAINTIFFS, v. CHARLOTTE OLLENDORF AND ROBERT WRIGHT, DEFENDANTS.
    Decided November 21, 1931.
    Before Lawrence, Circuit Court judge.
    For the plaintiffs, Isadore Rabinowitz.

    For the defendants, Henry K. Golenboch.

   Lawrence. J.

This was an automobile accident case tried before me and a jury at the Monmouth Circuit. It resulted in a verdict in favor of the infant plaintiff for $7,500. A rule to show cause was taken out in her behalf on the sole ground that the sum awarded was inadequate. Defendants also applied for and obtained a rule, alleging that the verdict was contrary to the weight of the evidence. Both rules were made returnable at the same time. Counsel for plaintiffs, however, instead of arguing the former on its return, announced that it had been abandoned and thereupon moved that it be discharged. Counsel for defendants urged that this motion should not prevail, since it was evident, as indicated by obtaining the rules, that all the parties to the litigation desired a new trial and that that course should be pursued as was done in what appeared to a similar situation in Miller v. Liva, 8 N. J. Mis. R. 692, and in Herbert v. Boice, 9 Id. 522. There, however, the court found that the parties concurred in the conclusion that the verdicts were the result of prejudice on the part of the jury and were not based upon a fair preponderance of the evidence; here no such unanimity appears. Plaintiff’s rule was not pressed for the obvious reason that there was no basis in fact for it. The sum awarded by the jury was not only adequate but generous,, considering the nature of the infant’s injury as disclosed by the evidence. Counsel doubtless anticipated the futility of arguing it, consequently, especially as no attack on the amount of the verdict was made under defendants’ rule, since the only point raised was that no negligence imputable to Mrs. Ollendorf had been disclosed by the evidence.

The collision which occasioned the suit involved an automobile owned by her and driven by the defendant Wright, who, it appeared, was employed as a chauffeur by Mr. Ollendorf, with one in which the infant plaintiff was riding as a passenger. It occurred on a street in Absury Park, in the early evening, and the sharp issue at the trial was whether he had any authority, express or implied, to drive the car there, and so make the owner, who was not in it at the time, legally responsible for its negligent operation.

With the finding of negligence on the part of Wright apparently no question is raised. It is urged, however, that no verdict should have gone against Mrs. Ollendorf. The state of the evidence in this regard was about as follows: On the day of the accident, she left New York, where she lived, to go to Atlantic City, in her car which was driven by Wright. Late in the afternoon, she stopped at Deal for the purpose of spending the night at the home of a friend. She directed Wright to take the automobile to a garage in Deal, advising him that he would be expected to return to the house before eleven o’clock, where lodging would be provided for him. Instead of taking the car directly to the garage, he drove it to Asbury Park and while there met with the accident. Why he went to Asbury Park, a distance of two miles from Deal, did not appear in the evidence. He was not called as a witness or examined before trial. It was open to the jury to find, however, that when in New York, in driving Mrs. Ollendorf in the car, as he usually did, it was her custom to give him money for his.meals and that while she was shopping or otherwise engaged he would retain the custody of it and go to some restaurant, returning at the time appointed by her. At the trial she stated that she did not remember whether she had given him money for his supper on the day of the accident, but since there was no direct evidence that he either knew, or was told, of any eating place in Deal, where he could or should go, and inasmuch as Asbury Park, in all reasonable probability, was the place where he would likely go for the meal, the jury could have found that this accounted for his presence there in the Ollendorf car at the time of the accident, if they believed the testimony of the witness YanWinkle as to a conversation with Mrs. Ollendorf, as they evidently did, and considered the natural inference to be drawn from the fact that Mr. Ollendorf joined with Wright, who was hurt in the accident, in filing a claim for compensation with the bureau of workmen’s compensation of New York city, in which it was stated that Wright was his employe, named the wages paid him, described the place of the accident as Asbury Park and asserted that he was injured in his regular occupation.

A review of the evidence leads to the conclusion that Wright was within the scope of an implied authority of the owner to use the car as he did and that his negligent operation was imputable to her, within the rule laid down in Ferris v. McArdle, 92 N. J. L. 580. It cannot be said, in the circumstances, that the verdict was contrary to the weight of the evidence.

The rules to show cause will be discharged.


author: Soot, J.

text:
    A. S. SIRACUSA SONS, INCORPORATED, PLAINTIFF, v. BENJAMIN F. BARD, DEFENDANT.
    Decided November 23, 1931.
    Eor the motion, Furman A. DeMaris, Jr.

      Contra, Anthony J. Siracusa.

   Soot, J.

The motion to strike the complaint is denied. This conclusion is reached under the authority of Pfeiffer v. Crossley, 91 N. J. L. 433, and the cases therein cited.


text:
    IN THE MATTER OF THE COMPLAINT AGAINST MORRIS M. APPEL, AN ATTORNEY-AT-LAW OF THE STATE OF NEW JERSEY.
    Argued October 6, 1931
    Decided November 23, 1931.
    Before Justices Tbeístchabd/Dalt and Donges.
    Eor the motion, Joseph L. Smith.

   Pee Cukiam.

The order of the court is that Morris M. Appel be suspended from practice as an attorney-at-law until the further order of this court.


author: Pee Cueiam.

text:
    NEW JERSEY STATE DEPARTMENT OF HEALTH, PROSECUTOR, v. CHARLES A. HAUSER, RESPONDENT.
    Submitted October 16, 1931
    Decided November 23, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the prosecutor, William A. Stevens and Robert Peacock.

    Eor the respondent, Howard W. Roberts.

   Pee Cueiam.

The writ in this case was allowed at the instance of the attorney-general. State v. Zabriskie, 43 N. J. L. 396.

The state department of health on the complaint of George Taylor brought proceedings against Charles A. Hauser to recover the penalty provided for a violation of the Shell Eish act of 1912, as amended. Hauser was convicted before the justice of the peace and appealed to the Common Pleas. The state sought to have the appeal dismissed on the ground that notice had not been served, as required by law, upon the prosecutor Taylor. The Common Pleas denied this motion.

There is nothing returned with the record to show what transpired, so we have no way of determining whether the notice of appeal was or was not served in accordance with the provisions of the statute.

The writ will, therefore, be dismissed.


author: Pee Ctjeiam.

text:
    ABRAHAM GOLDBERG, TRADING AS GOLDBERG’S INTERNATIONAL MUSIC SHOP, PLAINTIFF-APPELLEE, v. FRANK CHOMA, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided November 23, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the defendant-appellant, Perlman & Elias (Nicholas O. Beery, of counsel).
    Eor the plaintiff-appellee, Robert E. Pollan.

   Pee Ctjeiam.

This is an appeal from a judgment in favor of the plaintiff given in the Second Judicial District Court of the county of Bergen. The plaintiff sued to recover the balance due on the purchase price of a radio equipment sold to the defendant’s wife. The trial judge found that the radio was a necessity. The proofs tend to show that the article was suitable in view of the rank, position, fortune, and earning capacity and mode of living of the husband. The judgment was, therefore, proper (Wanamaker v. Ulizio, 102 N. J. L. 166), and will be affirmed, with costs.


author: Pee Cüeiam.

text:
    THE STATE OF NEW JERSEY, ARTHUR DAVISON, FISH AND GAME WARDEN, PROSECUTOR, v. FRED BRESLAU, DEFENDANT.
    Submitted October 16, 1931
    Decided November 23, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the prosecutor, William A. Stevens and Robert Peacock.

    Eor the defendant, Quinn, Parsons and Doremus.

   Pee Cüeiam.

The attorney-general instituted this proceeding to review the dismissal on appeal of an action brought under “An act for the protection of lobsters.” State v. Zabriskie, 43 N. J. L. 360.

It does not appear from the record before us that the notice of appeal was not served in time, nor does it appear that the complaint or warrant were sufficient. The writ will be dismissed.


text:
    S. & F. REALTY COMPANY, A CORPORATION, PLAINTIFFAPPELLEE, v. MONROE LOAN SOCIETY OF BLOOMFIELD, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided November 23, 1931.

      Before Justices Campbell, Lloyd and Bodhste.
    For the defendant-appellant, Klein & Klein (Morris Klein, ■of counsel).
    For the plaintiff-appellee, Samuel Roessler.

   Pee Cueiam.

This is an appeal from a jugment in favor of the plaintiff in the District Court for the First Judicial District of Essex -county. The action was brought for the recovery of the rent reserved in a written lease. The defendant claimed an eviction. The case was tried before the court without a jury.

The premises leased were offices on the second floor of the Union Building, 55 Washington street, Bloomfield, N. J. At the time the lease was signed the Prudential Insurance Company and the Economy Building and Loan Association were also tenants on the second floor. Subsequently they vacated the premises and the building was changed into a, hotel or rooming house. Beds and bedroom furniture were placed in the offices formerly occupied by other tenants and over the front entrance was displayed the word “Glenwood,” and on the front doors the words “Glenwood Hotel.”

“It constitutes a constructive eviction if the landlord does ■any wrongful act or is guilty of any neglect or default whereby the premises are rendered unsafe, unfit or unsuitable for occupancy in whole, or in substantial part, for the purposes for which they were leased.” 36 Corp. Jur. 264.

Whether the acts done by the landlord rendered the premises unsuitable for defendant’s occupancy and amounted to a 'constructive eviction was one of fact. The proofs tend to show that the change in no sense rendered the premises unsuitable for defendant’s use. The trial court so found.

The judgment will therefore be affirmed, with costs.


text:
    STRAUSS EQUIPMENT COMPANY AND SYDNEY PERKINS, PLAINTIFFS-APPELLEES, v. CHARLES WILSON AND ABE NELSON, DEFENDANTS-APPELLANTS.
    Submitted October 16, 1931
    Decided November 23, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the defendant-appellant Charles Wilson, Maurice J.. McKeown.

    Eor the plaintiffs-appellees, Mantel & Kaplon.

   Pee Ctjeiam.

This is an appeal from a judgment in favor of the plaintiff in the Elizabeth District Court. The trial judge sitting without a jury found that the damages for which the plaintiff' sought recovery were caused by the negligent operation of the-defendant’s car by the defendant’s agent.

The proofs set forth in the settled state of the ease indicate-not only that there was adequate proof to support the findings of negligence but also agency.

The judgment will therefore he affirmed, with costs.


text:
    VETERAN REALTY COMPANY, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLEE, v. CLARENCE MARKS, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided November 23, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-appellant, Herschenstein, O’Bnen & Tartalslcy (Samuel Tartalslcy and Harry Tartalslcy, of counsel).
    For the plaintiff-appellee, Stephen P. Piga.

   Pee Cueiam.

This is an appeal from a judgment for $500 given in the First District Court of Jersey City.

The plaintiff on August 12th, 1930, entered into a written contract to employ the defendant as a salesman. The defendant was given a drawing account of $35 a week. Upon the termination of the employment, the defendant’s drawing account of $35 a week exceeded the commissions earned and the present action was brought to recover the sum of $356.67, the balance alleged due on an accounting. The complaint also contained a count wherein recovery of $150 less an allowance of $20.50 was sought. The circumstance upon which this count was predicated will be hereafter stated.

We have searched the contract and find no provision which so much as suggests that if the salesman’s commissions fell below his drawing account he was obligated to refund the same. The whole instrument indicates that the January 1st accounting was for the purpose of determining the amount of commissions over and above the drawing account.

In Roofing Sales Co. v. Rose, 103 N. J. L. 553, it was held that where there was nothing in the contract of employment which suggested that if the defendant’s commissions fell below $40 per week, he would repay the difference between the commissions earned and the sums advanced by his employer there could be no recovery. See, also, 39 Corp. Jur. 153, 154.

We, therefore, conclude that there was error in not directing a verdict for the defendant on the first count of the complaint.

We conclude that on the second count the judgment for the plaintiff was proper. The plaintiff was engaged in the real estate business. The defendant was a salesman. The defendant on purchasing one of the properties, which the plaintiff had for sale, agreed that the plaintiff was entitled to the payment of a sum equal to the commission which would have been earned had the property been sold to a stranger. It is difficult to see how the agreement falls within the four corners of the statute of frauds. The agreement was not to pay commissions to a broker but was a mere agreement by an employe to pay that to which his employer was entitled.

The judgment will be reversed.


author: Pee Cubiam.

text:
    HAROLD J. MEE, PROSECUTOR, v. TOWN OF MONTCLAIR, RESPONDENT.
    Submitted May 15, 1931
    Decided November 23, 1931.

      Before Justices Trenuhaed, Daly and Doyges.
    For the respondent, Qeorge 8. Harris.

   Pee Cubiam.

On October 28th, 1930, the prosecutor of this writ, a member of the fire department of the town of Montclair, was served, on complaint of the chief of the fire department of the town, with written charges alleging certain violations of an ordinance of the town entitled “An ordinance to provide for, establish, regulate, and control a paid fire department; to establish rules for the government thereof, to designate the manner of appointment and removal of members of the fire department, and the paramount rights of fire apparatus in the use of the streets in the town of Montclair, county of Essex,” adopted June 2d, 1914, and amendments thereto and supplements thereof.

He was tried by the director of public safety of the town on these charges on November 10th, 1930, and on December loth, 1930, he was found guilty by the director of three of the charges.

The three charges on which the prosecutor was found guilty are in short, that on August 1st, 1930, at the township of Livingston, New Jersey, he (1) was guilty of conduct unbecoming an officer and a gentleman, in violation of article 11, section 10 of the ordinance; (2) was under the influence of intoxicating liquor, in violation of article 11, section 11 of the ordinance, and (3) was driving a car while under the influence of intoxicating liquor in violation of article 11, section 7 of the ordinance.

The director of public safety thereupon sentenced prosecutor to the loss of pay for a period of five months, from August 9th, 1930, to January 9th, 1931, inclusive.

The prosecutor, under point one, attacks the jurisdiction of the director of public safety to try him, his point being that jurisdiction to try him rested with the town commissioners as a body.

But the town of Montclair at an election held in 1916 adopted the Walsh act, and our Court of Errors and Appeals held in Foley v. Orange, 91 N. J. L. 554, that the amendment to section 4 of that act approved April 13th, 1915 (Pamph. L., p. 494), takes from the board of commissioners jurisdiction to try charges against a police officer and vests such jurisdiction in the commissioner of the department of public safety. That the same principle applies to firemen as well as policemen cannot be doubted. Herbert v. Atlantic City, 87 N. J. L. 98.

The prosecutor, however, contends that in Montclair there had been no distribution of the powers among the five departments and no assignment of the commissioner who tried the prosecutor to the department of public safety. We find otherwise. Two resolutions were passed on May 15th, 1928, when the present commission was organized, which were designed to, and did, accomplish such purposes.

The prosecutor, under point two, attacks the clarity and expression of the charges filed against him. But each charge specifies the particular section of the ordinance which was violated by the prosecutor, and precisely sets forth in what respect the section was violated, and specifies the time and place. They are sufficient.

It is argued that since the prosecutor was not on duty at the time of the offense, or in uniform, he could not properly be convicted. But this is not so. Herbert v. Atlantic City, 87 N. J. L. 98; Hailes v. Kearny, 101 Id. 401.

Under his next point the prosecutor seeks to set aside the judgment of the director of public safety on the ground of insufficiency of the evidence. But a reading of the findings and the evidence shows clearly that prosecutor was guilty as found by the director. Moreover, in reviewing the action of the director, this court will not weigh the evidence, for the purpose of reaching an independent conclusion on the question of guilt or innocence of the prosecutor. It will only ■consider such evidence for the purpose of determining whether or not it affords a rational basis for the judgment against him. If it does, then no matter whether the evidence be weak or strong, this court will not interfere. Here there was ■certainly such rational basis for the judgment.

This salutary rule has been followed in many cases. See Reilly v. Jersey City, 64 N. J. L. 508, and Herbert v. Atlantic City, supra.

Under the next point the prosecutor contends that because the Court of Common Pleas set aside proceedings against him in the BecordePs Court of the township of Livingston under the Motor Vehicle act for driving an automobile while under the influence of liquor, because of a defect in the complaint, that the director of public safety of the town of Montclair was precluded from trying prosecutor. But we think this contention is without merit. There the charge was under the Motor Vehicle act; here the prosecutor was being tried by the director of public safety for violation of the town ■ordinance, which was very different in substance.

Under his last point prosecutor argues that the director of public safety had no authority to sentence him to the loss of pay for a period of five months.

This seems to be so. But the Certiorari act provides in section 11: “In all cases of writs of certiorari now pending or hereafter brought * * * to review the proceedings of any special statutory tribunal, or to review the suspension, dismissal, retirement, or reduction in rank of any person holding office or position, state, county, or municipal, from which he is removable only for cause and after trial * * * the court may reverse or affirm, in whole or in part, such * * * findings or determination, suspension, dismissal, retirement, or reduction in rank reviewed.”

Now, under the ordinance the director of public safety could have lawfully suspended the prosecutor for a period not to exceed six months, without pay, or fined him one month’s pay. At the time the sentence by the director was imposed, the prosecutor had been suspended without pay for a period slightly exceeding four months. It is apparent that the intention of the director was to place a fine on prosecutor of loss of one month’s pay, in addition to the period which had elapsed, and we think that the due administration of justice requires that the intended sentence should now be imposed.

In Dubelbeiss v. West Hoboken, 82 N. J. L. 683 (a somewhat similar case), the Court of Errors and Appeals, after referring to the above-quoted section of the Certiorari act,, held that in consonance with the practice long adopted by the Court of King’s Bench and approved by the Court of Errors and Appeals, the Supreme Court may not only order a reversal of the judgment of an inferior tribunal, but may enter such new judgment in that court as it appears by the-record that the tribunal below ought to have rendered.

In accordance with these principles, the sentence in the present case will he modified to a fine of one month’s pay.

No costs will be allowed either party as against the other..


text:
    WASHINGTON THEATRE COMPANY, INCORPORATED, PLAINTIFF-APPELLEE, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, DEFENDANT-APPELLANT.
    Decided November 24, 1931.

      Eor the plaintiff-appellee, Lipman & Lipman.

    The judgment appealed from is in favor of the plaintiff below, the cause being heard without a jury by Judge Aaron A. Melniker, who filed the following opinion:
    ""This action was brought to recover from the defendant the expenses which the plaintiff incurred in defending itself in a law suit which it claims the insurance company should have defended.
    ""On October 21st, 1930, the defendant issued to the plaintiff a policy of insurance in which the defendant agreed—
    "" "To pay any loss by liability imposed by law upon the assured for bodily injuries * * * accidentally sustained * * * by any person not employed by the assured, caused by
    """(a) The ownership, care, maintenance, occupation or use of the premises described in the declarations, or
    “ "(b) By any business operations disclosed in the declarations, conducted by the assured on the premises either while such person is within or upon the premises of the assured % * í¡{ }

      “ "To defend * * * any suit alleging such bodily injury * *
    ""The "premises’ and "business operations’ referred to in the "declarations’ consist of a building at No. 976 Broadway, Bayonne, New Jersey, used and occupied by the plaintiff and in which plaintiff conducted a theatre.
    ""On January 30th, 1931, and while the policy was in force, suit was instituted by one Catherine Manno against the Washington Theatre Company, Incorporated, the present plaintiff, in tort for damages for negligence, it being alleged that the theatre company had failed to use proper care to protect said Catherine Manno while she was a patron in the theatre from asasult by another patron who it was alleged was ‘boisterously intoxicated/ was ‘noisy, annoying and obnoxious’ and ‘whose conduct constituted a nuisance’ and that the theatre company failed in its duty to ‘exercise proper care to make its premises reasonably safe for the patrons thereof’ and ‘to protect patrons from the violence and assault of other patrons/ and that because of such failure, said Catherine Manno was assaulted and suffered injury and damage.
    “The theatre company referred the papers in the Manno suit to the defendant insurance company which promptly disclaimed liability. The theatre company thereupon retained its own counsel and successfully defended the suit. It then made a claim against the defendant insurance company for reimbursement of the expenses incurred in such defense. The defendant refused to pay and this suit was thereupon instituted to recover such expenses, amounting to $160. There is no dispute as to the reasonableness of the charge.
    “The question of liability in this case turns upon the meaning of the words ‘bodily injury accidentally sustained’ as used in the policy of insurance upon which this action is based.
    “The insurance company denies liability on the ground that the suit against the plaintiff was not for bodily injuries ‘accidentally sustained’ and therefore not the sort of a claim the insurance company was liable for under its policy and that it was, therefore, under no obligation to defend such suit.
    “The plaintiff insists that the action was one for negligence and, therefore, one which the defendant had undertaken to protect the plaintiff against. Which contention is correct depends upon the meaning of the word ‘accidentally’ as used in the policy. In construing the policy, it must, of course, be borne in mind that in case of doubt, that construction much be adopted which favors the insured. Weiss v. Union Indemnity Co., 107 N. J. L. 348.
    “The question presented seems to be a novel one for the diligent search of counsel and the court for precedent and authority both in this state and elsewhere have been fruitless. Counsel for the plaintiff cites many eases in which it was decided that injury or death resulting from an unprovoked assault was ‘accidental’ within the meaning of accident policies insuring the victim of the assault against injury or death due to accident. Richards v. Travelers Insurance Co., 89 Cal. 170; Lovelace v. Travelers Protective Association, 126 Mo. 104. But these cases are not exactly analogous.
    “There would seem to be little doubt that an unprovoked assault upon such an assured, resulting in injury or death, would be, certainly in so far as the assured was concerned, an ‘accident’ within the meaning of these policies. A person insured against accidental injury is just as much ‘accidentally’ injured if he should be unexpectedly and without provocation assautled on the public street as he would be if an automobile ran him down as he was crossing the street.
    “And so in cases arising under ‘Workmen’s Compensation acts’ where workmen have been assaulted during working hours and at their places of employment, it has been held quite uniformly that injuries resulting from such assaults were compensable. John H. Kaiser Lumber Co. v. Industrial Commission, 181 Wis. 513; Stasmas v. Industrial Commission, 80 Okla. 221; Weekes v. William Stead, Ltd., 6 N. C. C. A. 1019.
    “These cases are obviously distinguishable from the case sub judice in which an insurance company issued what is known as a ‘pitblic liability’ policy in which it agreed to pay any loss imposed by law upon the assured for bodily injuries ‘accidentally’ sustained by another. Is an injury sustained in an assault upon such other person ‘accidentally’ sustained within the meaning of the language of the policy?
    “It is quite clear that the word ‘accidentally’ is used here not in its primary sense as a purely fortuitous happening— the kind of an event which cannot and does not give rise to any cause of action. The plaintiff would hardly be willing to pay for insurance against liability arising from such happening as there would be no liability in such case. Obviously, therefore, it is not against purely accidental injuries that the plaintiff insured itself, for it would not be liable for such accidents in any event. It is equally clear that the defendant would not and did not intend to insure the plaintiff against liability for willful injury inflicted by the plaintiff upon another. It seems to follow, therefore, that what the policy was intended to cover was the class of cases between these two extremes, namely, cases involving injuries due to or caused by the negligence of the insured.
    “Was the Manno action predicated upon such a happening? The state of demand alleges the duty of the plaintiff as an operator of a theatre to use reasonable care to protect its patrons against injury and negligent breach of such duty. This is not necessarily conclusive but it cannot be denied that such allegation constitutes a cause of action based on negligence. It is the duty of the operator of a theatre or other place of public amusement to use reasonable care not only to make the premises in which said business is conducted physically safe, but also to use reasonable care to protect its patrons from assault by its own employes or by other patrons. 26 R. C. L. 718. Of course, this duty is not an absolute duty. It is only a duty to exercise reasonable care. A theatre operator is no insurer. He is not obliged absolutely and under all circumstances to protect his patrons against assault.' Circumstances can readily be imagined in which no reasonable vigilance or reasonable effort on the part of the proprietor could prevent an assault, but surely it will not be disputed that if the proprietor permits an intoxicated and disorderly person to enter a theatre and assault an innocent and inoffensive patrons in the presence of the proprietor or of an usher who makes no effort to intervene to prevent such assault, that the theatre proprietor would be liable, and the liability would be predicated not upon the assault but upon the negilgence or lack of reasonable care on the part of the proprietor or his servants in failing to protect the victim of the assault. The injuries sustained would be the result of negligence and in so far as the victim is concerned, such injuries would be accidentally sustained, just as much as though the patron had fallen from a defective seat or through a defective trap door.
    “The Manno action against the plaintiff, therefore, being based on negligence was one within the contemplation of the contract of insurance, on which the defendant was bound to defend in plaintiff’s behalf and for its failure to do so it is liable in damages to the plaintiff for the expense plaintiff incurred in defending itself. Hill Co. v. Georgia Casualty Co., 158 Term. 194; Travelers Insurance Co. v. Henderson, 120 Ky. 218.
    "There will be judgment for the plaintiff for $160.”
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, G. Earl Brugler and Victor C. Hansen.

    For the appellee, Benjamin Nessenbaum.

   Pee Cubiam.

The judgment under review is affirmed for the reasons expressed in the opinion of Judge Melniker in the court below.