author: Jayne, C. C. J.

text:
    WANDA M. BOWEN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOEL WARREN ROSE, DECEASED, PLAINTIFF, v. HEALY’S, INCORPORATED, AND/OR HEALY’S SPECIAL TOURS, INCORPORATED, A CORPORATION, DEFENDANT. JAMES H. FISHER, BY HIS FATHER AND NEXT FRIEND, HARRY I. FISHER, AND HARRY I. FISHER, IN HIS OWN RIGHT, PLAINTIFFS, v. HEALY’S, INCORPORATED, AND/OR HEALY’S SPECIAL TOURS, INCORPORATED, A CORPORATION, DEFENDANT. GERTRUDE NORBURY, BY HER FATHER AND NEXT FRIEND, HEATH NORBURY, AND HEATH NORBURY, IN HIS OWN RIGHT, PLAINTIFFS, v. HEALY’S, INCORPORATED, AND/OR HEALY’S SPECIAL TOURS, INCORPORATED, A CORPORATION, DEFENDANT. MARY NORBURY, BY HER FATHER AND NEXT FRIEND, HEATH NORBURY, AND HEATH NORBURY, IN HIS OWN RIGHT, PLAINTIFFS, v. HEALY’S, INCORPORATED, AND/OR HEALY’S SPECIAL TOURS, INCORPORATED, A CORPORATION, DEFENDANT. EVERETT NORBURY, BY HIS FATHER AND NEXT FRIEND, HEATH NORBURY, AND HEATH NORBURY, IN HIS OWN RIGHT, PLAINTIFFS, v. HEALY’S, INCORPORATED, AND/OR HEALY’S SPECIAL TOURS, INCORPORATED, A CORPORATION, DEFENDANT.
    Decided January 22, 1938.
    For the plaintiffs, Samuel T. French and French B. Loveland.

      For the defendant, Cecil W. Rotzell, Martin J. Greenblatt and T. Millet Hand.

   Jayne, C. C. J.

The mishap which occasioned this litigation occurred on March 6th, 1937. On the afternoon of that day' a Chevrolet automobile owned by the Reverend Joel Eose was being driven by Everett ETorbury over the highway known as Delsea Drive near Malaga in Gloucester county. Mr. Rose, Mary Nor bury, Gertrude Nor bury and James Fisher were passengers in the automobile. Their contemplated destination was Woodstown. A motor bus operated by the defendant, Healy’s Special Tours, Incorporated, approached on the intersecting highway known as New Del-sea Drive. At the junction of these two highways the vehicles came into collision. Bodily injuries and incidental losses resulted from the occurrence of this collision. Mr. Eose suffered fatal injury. The five separate actions, above entitled, were thereafter instituted and all of the alleged causes of action were subsequent^ adjudicated in the one trial. The jury rendered verdicts against the defendant and in favor of the plaintiffs in each action. Damages were awarded to each plaintiff in the amounts here stated: $10,000 to Wanda M. Bowen, administratrix ad prosequendum, of Joel Eose, deceased; $15,000 to James H. Fisher; $1,451 to Harry I. Fisher; $15,000 to Mary Norbury; $500 to Gertrude Norbury; $500 to Everett Norbury and $2,236.70 to Heath Norbury.

In each action the defendant has a rule to show cause why the verdict should not be nullified and a new trial ordered. The predominant reasons written down by the defendant aver that the verdicts are (1) against the weight of the evidence; (2) contrary to the evidence, and (3) the result of prejudice, passion and sympathy. Moreover, it is asserted that the awards of damages to the administratrix, to James II. Fisher and to Mary Norbury are exorbitant. The verdict as rendered in favor of the plaintiff Heath Norbury was formerly criticised but at the argument all criticism of it was expressly abandoned.

The allowance of a new trial of all of these actions is ardently advocated on behalf of the defendant. It is true that an application for a new trial is addressed to the judicial discretion of the court. Furman v. Applegate, 23 N. J. L. 28, 33; Albert v. Hart, 44 Id. 366; Delaware, Lackawanna and Western Railroad Co. v. Nevelle, 51 Id. 332; 19 Atl. Rep. 538; Central Railroad Co. v. Tunison, 55 N. J. L. 561; 27 Atl. Rep. 929; Gaffney v. Illingsworth, 90 N. J. L. 490; 101 Atl. Rep. 243; Robinson v. Payne, 99 N. J. L. 135; 122 Atl. Rep. 882; Gormley v. Gasiorowski, 110 N. J. L. 287, 289; 164 Atl. Rep. 440; Rossman v. Newbon, 112 N. J. L. 261; 170 Atl. Rep. 230; Juliano v. Abeles, 114 N. J. L. 510; 177 Atl. Rep. 666. It is not, however, a boundless and illimitable discretion which can be peremptorily exercised. It is circumscribed by certain definitely established rules. A verdict unsupported by any credible evidence must be set aside. Oakley v. Emmons, 73 N. J. L. 206; 62 Atl. Rep. 996; Northern Railroad Co. v. Demarest, 94 N. J. L. 68; 108 Atl. Rep. 376, a verdict cannot be sustained on a theory not submitted. Hays v. Pennsylvania Railroad Co., 42 N. J. L. 446; Bowlby v. Phillipsburg, 83 Id. 377; 84 Atl. Rep. 1051; Morlock v. Kohn, 7 N. J. Mis. R. 381; 145 Atl. Rep. 627; or on a theory contrary to that upon which the case was submitted to the jury. Sensfelder v. Stokes, 69 N. J. L. 86; 54 Atl. Rep. 517; Cook v. American, &c., Gunpowder Co., 70 N. J. L. 65; 56 Atl. Rep. 114; Queen v. Jennings, 93 N. J. L. 353; 108 Atl. Rep. 379; or where the verdict plainly exhibits a compromise conclusion relative to the fundamental issue of liability. Juliano v. Abeles, supra. Where, in the consideration of conflicting testimony, the facts found by the jury will sustain the verdict, it should not be set aside merely because, in the opinion of the trial judge, the jury might have found otherwise. Knickerbocker Ice Co. v. Anderson, 31 N. J. L. 333; Queen v. Jennings, supra; Bennett v. Busch, 75 Id. 240, 244; 67 Atl. Rep. 188; Finnegan v. The Goerke Co., 106 N. J. L. 59; 147 Atl. Rep. 442; or merely because the trial judge, if required to determine the facts, would have reached a different conclusion. Faux v. Willett, 69 N. J. L. 52; 54 Atl. Rep. 520; Bowell v. Public Service Corp., 77 N. J. L. 231, 232; 71 Atl. Rep. 119. The nullification of a verdict is not justified simply because the verdict appears to be discordant with the weight of the evidence. In Cascone v. Hendrickson, 8 N. J. Mis. R. 229; 149 Atl. Rep. 337, the author of the opinion (per curiam) was constrained to remark, “it seems to be necessary to repeatedly state that the verdict of a jury will not be set aside upon the ground that it is against the weight of the evidence, unless the verdict clearly evinces that it is the result of mistake, partiality, prejudice or passion.” The mere fact that the award of damages is immoderate and excessive does not conclusively indicate that the verdict was the product of sympathy, passion or prejudice. Gray v. Elmo, 9 N. J. Mis. R. 1093, 1097; 156 Atl. Rep. 825; Gee v. Moss, 108 N. J. L. 160; 156 Atl. Rep. 458. It is, of course, a circumstance to be considered.

The following quotation taken from the opinion of Nevius, J., in the early case of Somerville and Easton Railroad Co. ads. Doughty, 22 N. J. L. 493, 497, is not only frequently pertinent but also expositive of the power of the court: “There is no evidence of any misbehavior on the part of the jury, or that they did not attentively listen to the testimony of witnesses and the arguments of counsel during a protracted trial; nor is there any proof of bias, or passion, or prejudice, in their minds, unless it is found in their verdict. This court has the power to set aside this verdict; but we will not exercise that power, unless we are clearly satisfied that it is wrong, exorbitant, and oppressive, and so much so as to strike the mind of every reasonable man, at once, that the jury, from some cause, have done the defendants gross injustice. We cannot exercise this power rudely because we may think the verdict too high; we cannot convert ourselves into a tribunal of fact; the law has not invested us with that power * * *.”

It must always be apprehended that it is pre-eminently the mission of the jury to resolve the credibility of the testimony of the witnesses; to settle the facts and to determine the inferences which ought to be logically and legitimately drawn from them. A verdict founded upon logical and legitimate inferences from facts supported by evidence is normally conclusive. Smith v. Lorillard, 67 N. J. L. 361; 51 Atl. Rep. 928.

Where it can be confidently inferred that a verdict has been fabricated by the influences of sympathy, or passion, or prejudice, or founded upon mistake, it must, of course, be annulled.

These rules which characterize the power to grant new trials are well established, yet with the assumption that the exercise of the power is basically discretionary, wo, as trial judges, are constantly importuned to weigh the conflicting testimony with exactness and precision and in reality to substitute our judgment for that of the jury. The power is essentially remedial in character. Its exercise is not intended to supplant the appropriate function of the jury.

Acknowledging, then, the legitimate range of the review on an application for a new trial, the evidence introduced at the trial of these actions has been thoughtfully examined and critically considered.

Advancing northwardly on Old Delsea Drive a point of divergency is reached at Malaga where the more recently constructed highway locally known as New Delsea Drive branches off, curving northeasterly and the Old Delsea Drive extends directly onward. The automobile was moving northerly on Old Delsea Drive. The bus approached the junction of the highways on New Delsea Drive. The opportunity of each driver to-observe the other approaching vehicle was somewhat restricted by neighboring buildings. Both drivers were acquainted with the conjunction of the highways. There was undoubtedly a violent collision between these two vehicles. It is inconceivable that this collision occurred in the absence of negligence. Broadly stated, the jury was called upon to fix the responsibility. The testimony in its cardinal particulars was discordant and conflicting and from it the jury was obliged to harvest the facts.

Everett Horbury, who was at the steering wheel of the automobile, has no remembrance of the circumstances accompanying and surrounding the occurrence of the mishap. The man employed to operate the bus was not driving it. The bus was being operated by Donald Healy, who was at the time returning home from college. Donald is the son of an officer of the defendant company and was evidently authorized to operate any of the defendant’s buses whenever he desired. The jury presumably concluded that the bus approached and entered the junction of these highways at an excessive speed: that in undertaking to conveniently pursue the curve of the highway at an immoderate speed, the driver of the bus guided it to the left of the center of New Delsea Drive as it merges with the other highway at the south and that the collision occurred at the southerly point of division of Old Delsea Drive. Was there evidence which, if deemed credible, Avould adequately uphold such a conclusion?

The witness, Beatrice DeFeo, testified that the bus was proceeding “mighty fast.” “It didn’t slow down a bit;” Martin Boseo said the bus was moving “pretty fast.” “I seen the bus run right into that car.” In his opinion the bus was running at a speed of approximately fifty miles per hour; Laura May Lenderman stated the bus was traveling at “a terrific rate of speed;” Goldie YanOrden, a passenger in the bus, related that the bus driver was “speeding.” She, Miss Lenderman, and the witness, Anna Bevis, estimated the speed of the bus to have been about sixty miles an hour. The witnesses, Wilkie, Lenderman, Bevis and the plaintiff James Fisher, all testified that the bus as it closely approached the airtomobile was in part to its left of the white center line of the intersecting highway over which it was being operated. Additionally, the witnesses, Briggs and Palmer, testified that after the occurrence of the collision they discovered fragments of glass on the highway, some of which were east of the center line. The witnesses, DeFeo, Bananno and Briggs, speak of the “loud crash,” “tremendous crash.” A photograph portraying the condition of the automobile after the collision is also informative of the probable violence of the collision. Moreover, there was testimony indicating that in the collision the front bumper of the bus was displaced, the left front head lamp and fender were damaged, the radiator was injured and the license plate attached to the front of the bus was detached. It is said that the front of the automobile was uninjured; its right front wheel was shattered; its motor broken from the bell housing and the right side near the front of the body was crushed. The distance and direction from the place of collision to the point where the vehicles ultimately rested were doubtless matters significantly regarded by the jury.

The bus driver, Donald Healy, avowed that the bus was moving at about twenty-five miles an hour as it approached the intersection. The vehicles were about one hundred and fifty or two hundred feet apart when he first saw the automobile. There were passengers in the bus who asserted that when they first saw the automobile it was two hundred or two hundred fifty feet distant. Six passengers of the bus estimated its speed as moderate and in their opinion about twenty-five miles per hour. There was testimony tending to disclose that the automobile was not moving rapidly as it came to the junction of the highways and that before the occurrence of the collision its speed was reduced and the illumination of the stop lights at the rear of the car was noticed. Yet, testimony was introduced on behalf of the defendant tending to reveal that the automobile was being operated at the rate of forty to fifty miles an hour. The witness, Yan Hook, declared that the automobile seemed to “shoot out” in front of the bus and “pick up speed.” Other testimony would conduce the impression that as the vehicles closely approached each other, the automobile veered to its left and the bus to its right and that the vehicles came into collision on the westerly side of the intersection, if not, on the westerly shoulder of Old Delsea Drive.

Sufficient of the evidence has been recited to exhibit its divergent and contradictory state. It was the province of the jury to appraise the testimony of the several witnesses and to determine in which direction the weight of the evidence inclined. Their conviction that the driver of the bus was negligent is substantiated by confirmatory evidence and is not so manifestly discordant with the weight of the evidence as to denote the pressure of sympathy, passion or prejudice in the determination of that issue.

There was evidence of circumstances from which contributory negligence on the part of Everett Norbury could have been logically and plausibly inferred. Indeed, a verdict ascribing the occurrence of this collision to the concurrent and co-operating negligence of both drivers would be more defensible. However, the attention of the jury was particularly focalized by counsel for the defendant and by the trial judge on the conduct of Everett Norbury in the management and operation of the automobile. The circumstances were, of course, productive of a variety of inferences. Where the question of contributory negligence depends upon the conclusion to be reached from a variety of circumstances considered in their relation to and their reaction upon each other, the jury and not the court is normally the tribunal to draw such conclusion. Mayes v. Splitdorf Electrical Co., 94 N. J. L. 460; 111 Atl. Rep. 10; Rochford v. Stankewicz, 108 N. J. L. 265; 158 Atl. Rep. 386. The jury resolved that Everett was not guilty of any negligence proximately contributing to the happening of this mishap. Perhaps the jurors accredited the statements that Everett was driving slowly and that the bus approached at a speed which in the existing conditions, would not be reasonably anticipated.' Peradventure, the jurors believed that in approaching the highway intersection, Everett made an observation, encompassing a distance on New Delsea Drive within which a vehicle moving at a reasonable rate of speed could have been seen. Newark Passenger Railway Co. v. Block, 55 N. J. L. 605; 27 Atl. Rep. 1067; Rockford v. Stankewicz, supra; Danner v. Kennedy, 111 N. J. L. 328, 332; 168 Atl. Rep. 445; Miller v. Public Service Co-ordinated Transport, 111 N. J. L. 339, 342; 168 Atl. Rep. 409. Possibly the jurors determined that the only causative factors of the collision were the excessive speed and the course taken by the bus as it came around the curve. Although a dissentient view on this point is entertained by the court, nevertheless the conclusion of the jury must be accorded its due and proper recognition, if our dual system in the administration of justice is to be logically and consistently supported. Recognizing, then, the limitation of the judicial prerogative, the decision of the jury determinative of these issues ought not to be set aside.

Then also, it is averred, that the awards of damages to the administratrix, to James H. Fisher and to Mary NTorbury are immoderate and excessive. The evidence relating to the injuries and losses for which compensatory damages were allowed has been thoughtfully and deliberately considered in each of these cases. A specific recitation of such evidence need not be here undertaken. The jury awarded $10,000 to the administratrix ad prosequendum. The decedent Joel W. Rose was sixty-nine years and five months of age at the time of his death. His annual salary and allowances from the Methodist Conference amounted in the aggregate to $1,450. These earnings were augmented in some inconsiderable amount by donations for his services at marriages and funerals. He was privileged to occupy a parsonage at a saving of approximately $300 a year. In season he received some contributions of an esculent nature from his grateful parishioners. At the age of sixty-nine the expectancy of life is a little less than nine years. Necessarily assuming that Mr. Rose required some part of his earnings for his own maintenance and personal requirements, it becomes at once apparent that the award in this case cannot be consistently justified. His widow was fifty-nine years of age. A grandson four years of age was a member of his household. He made a small monetary contribution annually to his son. It is elementary that in such an action the plaintiff is entitled to a capital fund which represents the present value of all the pecuniary loss which will fall upon the widow and next of kin by reason of the premature death of the intestate. Granting that the jury in such actions must pattern their estimate of damages largely on conjectures and probabilities, yet, the award in this case plainly exceeds the present worth of the pecuniary injury forecast by the evidence. It evolved from sympathy.

II the plaintiff will consent to accept $5,650 the rule will be discharged; otherwise it will be made absolute.

The jury awarded $15,000 to James H. Fisher, a boy seventeen years of age. lie was very severely injured. A precise account of his bodily injuries, their nature, extent and degree of severity would needlessly lengthen this memorandum. The damages awarded to him, although abundant, cannot be adjudged, in the light of the evidence, to be so manifestly excessive as to be indicative of the influences of sympathy, passion, partiality or prejudice.

“A new trial may be had for excessive damages, but in that case the damages ought not to be weighed in a nice balance, but must be such as appear at first blush to be outrageous and indicate passion or partiality in the jury.” 2 Tidd Prac. 909.

The allowance of damages to this plaintiff may well be taken to be expressive of the honest and impartial judgment of the jury. The rule to show cause is discharged.

There remains to be considered the verdict awarding damages of $15,000 to Mary Morbury. She suffered a rather severe concussion of the brain, a fracture of the ascending ramus, a fracture of the right femur, a compound fracture of the ulna of her left forearm,' lacerations of the forehea.d and right knee. She undoubtedly received a very severe shock which has materially disordered her nervous system. Her vision has been somewhat impaired. The fracture of the femur has resulted in a slight shortening of the right limb. The fracture of the ulna has failed to heal. Some surgical operation will be necessary to reduce and unite this fracture. She was detained in the hospital for a period of eight weeks. She still suffers pain in her back. The fractures of the pelvis and femur have healed. This plaintiff is a young girl whose appearance disclosed the effect of the disastrous ordeal through which she had passed. Here again the jury undoubtedly yielded in some degree to sympathy.

If this plaintiff will consent to accept $10,000 in lieu of the damages awarded by the jury, the rule will be discharged; otherwise it will be made absolute.

Tlie plaintiffs, whose awards have been deemed excessive, may be accorded a period of twenty days after the entry of the rule in conformity with these conclusions within which to signify, in appropriate form, their acceptance of the damages as here reduced.


source: Caselaw Access Project

author: Lawrence, S. C. C.

license: Public Domain

text:
    MONMOUTH COUNTY PUBLISHING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided March 7, 1938.
    For the motion, Snyder, Roberts & Pillsbury.

    Opposed, Thomas P. McKenna.

   Lawrence, S. C. C.

The complaint in this suit alleges legal liability of defendant county for the failure of a sheriff of the county to pay plaintiff, during the years 1930, 1931 and 1932, $1,053.50, for printing, publishing and circulating in and through the medium of its newspaper, The Daily Record, at Long Branch, the advertisements of certain sheriff’s sales listed in the bill of particulars attached. These sales, it alleges, were so advertised at the special instance and request of defendant, through and under instructions of the sheriff in question who was acting under and by virtue of his office and in accordance with his duties as required by law, thus making him, so it is asserted, the duly authorized agent and representative of defendant. Because plaintiff was not paid for its service in so advertising the sales indicated, recovery is sought of the county on the theory pleaded as stated.

The sales so advertised admittedly were officially made by the sheriff as required and directed under various executions issued out of the Court of Chancery or courts of law of the state. It was he who caused the sales to be advertised in newspapers of the county, including that of plaintiff, as an essential statutory duty and as a preliminary to a legal sale of the property involved following levy of execution. Plaintiff rendered bills to him from time to time at the rate allowed by law. He failed to pay them and, his term of office having expired, it is sought in the present suit to fix liability on the county and so recover for his default. There is nothing in the complaint to indicate that the service had been provided on the credit of the county or that any of the bills had been submitted to it for payment at the time.

Liability appears to be predicated on chapter 53 of the session laws of 1906, page 76 (4 Comp. Stat. 1910, p. 4643, §§ 38, 39; (Rev. Stat. 1937, 22:4-17), which provides that fees, costs, allowances, percentages and all other perquisites of whatever kind which by law a sheriff is entitled to charge and receive for official acts or services rendered shall be for the use of the county, accounted for as public moneys belonging to the county and paid over as required by the act. It seems accordingly to be assumed that the sheriff collected the advertising costs from the parties interested in having the sales in question made as the agent or representative of the county and to have turned them over to it in his periodic accounting under the statute, or should have done so as fees or costs belonging to the county for which he was required to account. There is, however, no specific assertion in the complaint that he actually did so. But it is alleged that the county became primarily liable to plaintiff publishing company through the supposed agency of the sheriff in incurring the indebtedness. In addition to the principal count to which reference has been made, the complaint also carries the common counts, including that for money had and received in the amount sought to be recovered for the use of the plaintiff.

Defendant moves to strike the complaint on the ground that no cause of action is stated against it, in that (1) there was no liability on the part of the county to pay the particular indebtedness incurred by the sheriff; and (2) the services allegedly performed as stated in the complaint were not rendered at or by the request of the county and there is legally no duty to pay for them so far as it is concerned.

As to the -first count in the complaint it does appear that it does not set forth a cause of action against defendant and it is apparent that it should be stricken. Under the act of 1906, by which the long standing fee system of compensating sheriffs — and other county officers — was abolished and annual salaries substituted, the cost of advertising sales of property by virtue of levies made under executions issued and directed to them by the courts of law or equity is clearly not within the category of costs or fees for which a sheriff is required to account to the county, and it will not be presumed that the printer’s fee has been collected by him and turned over to the county for the purpose of payment. He was not required to do so, because it was not a fee to which the county was entitled as a part of the revenue of the office. That contemplated by the act of 1906 for which a sheriff was thereafter required to account for and turn over to the county was manifestly that which theretofore he retained as his own in compensation for duties performed or services rendered for which, under the law as it then was, he was entitled to charge a fee. The acts relating to fees and costs of the period and since indicate what such fees were and are. Moneys received by a sheriff to defray the cost of advertising in a newspaper a sale of property under an execution issued by a court do uot belong to him. He merely becomes the medium of payment and personally liable if he does not. In such case, it may be said that his bondsmen may be called upon to pay, although it is not necessary to consider that question here.

While in the present suit it may be assumed that the sheriff became personally liable to plaintiff for the fees in question because he incurred the indebtedness and on the further assumption that he either collected them of the parties directly interested in having the sales made or deducted them from the proceeds of sale, it is sufficient to say that he was not the agent of the county in causing the advertisements of such sales in plaintiff’s newspaper. The county in fact obviously had nothing to do with them, nor had it any control over the sheriff in the performance of such duties as had been imposed upon him by law in that respect. The office is recognized as entirely independent of such control and while the county is interested in securing a proper audit of the accounts filed with it by the sheriff to the end that it may receive the revenue to which it is entitled under the law, it has no other interest in its administrative duties or services rendered to the public, nor are such duties performed or services rendered in its behalf. Daly v. Ely, 53 N. J. Eq. 270; 31 Atl. Rep. 396. If any agency existed in the present ease, it was between the sheriff and the courts out of which the executions issued or the parties causing them to be issued and the sales involved made.

While the first count in the complaint is to be struck out, technically the common counts, although evidently based on the facts set forth in that count, may not be on the present motion. On the argument no affidavits were presented by either side, nor was it rested in behalf of defendant on the theory that the pleading as a whole was sham which would have required supporting affidavits. The sole point made was that the complaint did not set forth a cause of action against the county as attempted to be set forth in count one. The common counts, of course, do set forth a cause of action, even though plaintiff may have no adequate evidence to support them at a trial. A rule may be submitted directing that the first count in the complaint be stricken and denying the motion as to the remainder.


author: Melniker, D. C. J.

text:
    Bayonne District Court.
    AUTOMOBILE BANKING CORPORATION, A CORPORATION, PLAINTIFF, v. GERTRUDE KLEIN, DEFENDANT.
    Decided February 14, 1938.
    For the plaintiff, Philip Barbash.

    For the defendant, Alexander Seclow.

   Melniker, D. C. J.

The court is required in this case to determine the question of ownership of a motor vehicle.

The defendant purchased the car at an execution sale under a judgment against a conditional vendee. The plaintiff claims title as assignee of a conditional bill of sale from the conditional vendor. The bill of sale was not filed with the register of Hudson county or in any other registration office, but notice thereof was filed in the motor vehicle department by endorsing on the bills of sale filed in that department a notation of the existence of a lien, in compliance, as contended by the plaintiff, with chapter 186 of the laws of 1936, which provides, in substance, that in a case of the conditional sale of a motor vehicle, the record of such sale with the commissioner of motor vehicles shall be deemed sufficient compliance with the provisions of the Conditional Sales act.

The defendant raises two points against the plaintiff's contention — first, that chapter 186 of the laws of 1936 is unconstitutional, and secondly, that even if it is valid, there has not been a proper compliance with its provisions.

The court cannot agree with the defendant's contention on either point. With respect to the first point, the power of the legislature to enact legislation of this character has been sustained by our courts. Hutches v. Hohokus, 82 N. J. L. 140; 81 Atl. Rep. 658; Raymond v. Township Council of Teaneck, 118 N. J. L. 109; 191 Atl. Rep. 480; Merchant Securities Corp. v. Lane, 106 N. J. L. 576; 150 Atl. Rep. 559.

With respect to the second point, the statute does not seem to require anything more than a record of the sale in the office of the commissioner of motor vehicles. If anything more were required, the legislature would undoubtedly have specifically so indicated. The filing of the title papers with the deputy is a sufficient compliance with the statute.

A matter of far greater difficulty, however, than the contentions heretofore discussed, is the matter of damages. The plaintiff contends that it is entitled to a judgment for the fair value of the car, plus damages for the detention thereof, while the defendant argues that the damages of the plaintiff should be limited to the balance due the plaintiff on the conditional bill of sale. The court is disposed to favor the latter contention in view of the provisions of the Conditional Sales act, which clearly indicate that it was the intention of the legislature, in cases of conditional sales where more than fifty per cent, of the purchase price has been paid, as in the instant case, to limit the conditional vendor to an amount which will make him whole and not permit him to be unjustly enriched by having both the goods, which are subject of the sale, and a major portion of the sales price. If the car in this case had not been rebonded, but had been left in the possession of the plaintiff, the plaintiff would have been obliged to sell the car at public auction, retain enough of the proceeds to reimburse itself for any losses it may have sustained, and render the overplus to the vendee. To permit the plaintiff to recover anything beyond that simply because the defendant has rebonded the car, would appear to be unconscionable. Some judicial support is given to this view in the cases of Sloan v. Poor, 7 N. J. Mis. R. 197; 145 Atl. Rep. 469; McClellan v. North, 14 N. J. Mis. R. 760; 187 Atl. Rep. 337; affirmed in 118 N. J. L. 68; 191 Atl. Rep. 753.

The stipulation of facts filed in this cause puts the unpaid balance due the plaintiff at $112.50. Plaintiff is entitled to judgment for this amount, plus interest from .August 23d, 1935, and $10 counsel fee. Judgment will be entered accordingly.


text:
    Atlantic County Circuit Court.
    PHILADELPHIA SAVING FUND SOCIETY, PLAINTIFF, v. FRANK DISSTON AND LIBERTY TITLE AND TRUST COMPANY OF PHILADELPHIA, PENNSYLVANIA, EXECUTORS OF THE ESTATE OF GEORGE K. BREINTNALL, DECEASED, DEFENDANTS.
    Decided December 12, 1937.
    For the plaintiff, Thompson & Hanstein (John Lloyd).

    For the defendants, Glenn & Glenn.

      Amici curiœ, Cole if Cole.

   Jayne, C. C. J.

This action was instituted to establish a debt alleged to have been due and owing to the plaintiff by one George K. Breintnall, now deceased.

Some precursory narrative of the material facts alleged in the complaint and substantiated by affidavit is necessary to exhibit the controversial issues to be considered and determined. Concisely stated, the complaint and supporting affidavit disclose that on June 10th, 1911, the plaintiff loaned to George K. Breintnall the sum of $250,000. The loan was evidenced by the bond of George K. Breintnall and secured by a concomitant mortgage covering premises designated as bios. 1228-32 Arch street, in the city of Philadelphia. The loan according to the terms of the bond and mortgage became payable five years from the date thereof with interest at the rate of four and one-half per centum, per annum. On June 10th, 1920, by virtue of an agreement between the parties, the rate of interest thereafter to be paid on the principal was increased to six per centum per annum. On August 31st, 1927, Breintnall died. At the time of his death he was a resident of Atlantic City and his last will and testament with the codicils thereto were duly admitted to probate by the surrogate of Atlantic county and the defendants, who were nominated as executors, duly qualified as such and thereupon undertook the administration of the testator’s estate. The interest accruing on the loan during the lifetime of the testator was paid and the defendants continued to pay interest on the loan at fixed rates until December 10th, 1935. On September 14th, 1927, the defendants, as executors, procured from the surrogate the usual order to limit creditors and on March 14th, 1928, a decree barring creditors was granted.

Furthermore, it is alleged in the complaint and here conceded, that the defendants on August 1st, 1929, filed with the surrogate an intermediate account which was duly allowed by the Orphans Court on September 11th, 1929. Again on April 25th, 1933, the defendants presented another intermediate account which was likewise allowed on June 21st, 1933. It is alleged and asserted by affidavit that the former account disclosed that all debts and demands against the estate presented to the executors in conformity with the notice to creditors had been paid and that the executors then retained a surplus of $828,742.96 for distribution and that the last mentioned account revealed a surplus of $318,510.09 for distribution. It is declared that the executors now retain a surplus for distribution. The plaintiff failed to present its claim to the executors within the time designated by the order to limit creditors but on January 24th, 1936, the plaintiff presented and filed with the defendants a verified statement of its claim for the principal sum of $258,241.82 with the amount of unpaid interest. On February 17th, 1936, the defendants served upon the attorneys of the plaintiff a notice that the claim was disputed and that the plaintiff should proceed forthwith to establish its claim. The affidavit at hand reports the amount of the indebtedness remaining due and unpaid.

Upon the institution of this action an answer was filed in which the defendants admitted, in Loiidem verbis, the alleged loan, the execution and delivery by the decedent of the bond and mortgage, the probate of the will, their own qualification as executors, the orders to limit and bar creditors, the filing of the accounts and the allowance thereof by the Orphans Court, the retention by them of a surplus for distribution, the presentation of the plaintiff’s claim and the service of the notice upon the plaintiff to establish its claim. The defendants in the answer vaguely denied that any sum is due and owing to the plaintiff. The answer then embraces fifteen separate and so-called affirmative defenses.

A motion for a rule striking out the answer and granting summary judgment in favor of the plaintiff was made. A motion to amend the answer and a motion to strike the complaint, notwithstanding the filing of the answer thereto, have since been evolved in the order here mentioned.

At the argument of the motion to strike the answer, counsel for the defendants expressed willingness to abandon the third, fourth, fifth, sixth, seventh, tenth, eleventh, thirteenth, fourteenth and fifteenth separate defenses. They will therefore be stricken from the answer.

In resisting the motion to strike the answer, an affidavit of the trust officer of the corporate executor was submitted. This affidavit reveals that the plaintiff failed and neglected to file a verified claim for the indebtedness due on its bond within the time prescribed by the rule to limit creditors. This affidavit also discloses that on December 27th, 1935, the defendants sold the real estate covered by the mortgage, subject to all existing liens thereon. Significantly, this affidavit relates that all of the general and specific legacies bequeathed by the testator in his will have been paid and that the executors now have assets of the estate which they regard as part of the residuary from which certain annuities are to be realized and paid to beneficiaries designated in the will.

With the proofs in this posture, counsel for the defendants requested a respite to consider the propriety of amending the answer. At this juncture one Blanchard B. Stevens, represented by his attorneys, Cole & Cole, prayed by petition that he be admitted as a party defendant in this action. It was declared in his behalf that the prosecution of this action and the ultimate recovery by the plaintiff of the alleged indebtedness would likely so diminish the remaining assets of the estate as to deprive him of the annuity bequeathed to him in the testator’s will. The prayer of this petition was denied but his attorney was accorded the privilege of submitting a brief as amicus curice.

Thereafter application was made to amend the seventh, ninth, tenth and eleventh paragraphs of the answer. The amendments deny that the estate of the decedent has been settled and deny that the surplus disclosed by their accounts was or is a surplus available for distribution, within the signification of section 72 of the Orphans Court act. The entire file evidencing the proceedings before the surrogate and Orphans Court in the administration of this estate has been produced and counsel consent that its contents may be considered in the determination of all of these motions. Obviously the proposed amendments of the answer are designed to introduce a controversial issue which is essentially a question of law. Dor this purpose the amendments are allowed.

Evidently to counterpoise the contention of the plaintiff, the defendants, upon notice, seek a rule striking out the complaint. The procedural rule which prescribes the orderty sequence in which motions are to be made and pleadings are to be filed, may, of course, be relaxed if the administration of justice in the given case will thereby be expedited. Moreover, this court has the power of its own motion to strike out a pleading that is clearly and manifestly improper, sham or frivolous. Mt. Pleasant Cemetery Co. v. Erie Railroad Co., 74 N. J. L. 100, 103; 65 Atl. Rep. 192; Becker v. Kelsey, 9 N. J. Mis. R. 1265, 1274; 157 Atl. Rep. 177; Park Gasoline Co. v. Crusius, 10 N. J. Mis. R. 147, 154; 158 Atl. Rep. 334.

It might well be concluded that in view of the notice directing the plaintiff to establish its claim, this action should be regarded as a proceeding to ascertain the debt rather than to collect it. Weatherby v. Weatherby’s Ex’rs, 63 N. J. L. 445; 43 Atl. Rep. 683; Clark v. Augustine, 62 N. J. Eq. 689; 51 Atl. Rep. 68; Rogovin v. Kridel, 116 N. J. L. 97; 182 Atl. Rep. 828. It is, however, now evident that the defendants in reality contest the alleged statutory right of the plaintiff to present its claim at this point in the administration of the estate. The controversial issues debated by counsel have now become solely legalistic in character and it is the expressed desire that the questions of law which underlie the several motions be determined. The material facts seem to be mutually conceded.

Heeding first, then, the separate defenses, it is noted that the defendants initially aver that the plaintiff is prohibited from prosecuting the present action against the defendants by the decree barring creditors in that the plaintiff failed to present its alleged claim to the executors within the time designated by the order to limit creditors. 3 Comp. Stat., p. 3835; Cranmer v. Cole, 11 N. J. Mis. R. 578; 167 Atl. Rep. 744. It is to bo observed that section 70 of the Orphans Court act states that the neglectful creditor “shall, by such decree, be forever barred of his or her action therefor against such executor or administrator, except as hereafter provided.” It is true that the rule barring creditors does not discharge the debt. It is purely administrative in character. Ryder v. Wilson’s Executors, 41 N. J. L. 9; Young v. Young, 45 Id. 197; Cunningham v. Stanford, Executrix, 69 Id. 9; Home Brewing Co. v. Mahler, 92 N. J. Eq. 323; 112 Atl. Rep. 506. The administrative character of the rule barring creditors cannot, however, be ignored. Hence the rule heretofore entered barring the creditors of this estate is efficacious, unless the present claim is appropriately presented pursuant to the authority of section 72 of the Orphans Court act. Ryan v. Flannagan, Adm’x, 38 N. J. L. 161. This defense therefore supplements the amended averments of the answer which are to be presently considered.

Secondly, it is averred that since the claim is for the amount due upon a bond with an accompanying mortgage, the plaintiff is first obliged to foreclose the mortgage. Here again, the present action might be viewed as merely a proceeding to establish the validity of the claim. Rogovin v. Kridel, supra. In the present case it transpires that the mortgage overlays real estate situate in the State of Pennsjdvania. The statute of our state requiring that the initial proceeding to collect a debt secured by a bond and mortgage shall be by foreclosure of the mortgage is not applicable where the mortgaged premises are situate outside of this state. Colton v. Salomon, 67 N. J. L. 73; 50 Atl. Rep. 588. The second separate defense will be stricken. The eighth, ninth and twelfth separate defenses are also frivolous.

Beaching now the consideration of paragraphs seven, nine, ten and eleven of the answer as now amended, it is apparent that the defendants continue to admit the filing and the allowance of the two accounts to which reference is made in the complaint but the defendants categorically deny that they have settled the estate of the decedent and they deny that there has been a settlement which exhibits a surplus to be distributed.

Broadly surveying the indisputable facts and the pertinent provisions of section 72 of the act, the situation in its legal aspect is somewhat singular. True, all claims that were presented have been paid and substantial sums have been distributed to legatees and beneficiaries named in the testator’s will. The accounts and the petitions accompanying them are expositive. Then also it is detected that the defendants heretofore filed a bill in the Court of Chancery seeking advice concerning their duties in executing the directions expressed by the testator in the eleventh clause of his will. Liberty Title and Trust Co. v. Stevens, 115 N. J. Eq. 506; 171 Atl. Rep. 531; affirmed, 117 N. J. Eq. 404; 176 Atl. Rep. 167. The basic facts evidently determined by the vice-chancellor in that cause are likewise enlightening.

The imposing question of law now fashioned by the pleadings is whether, in view of the acknowledged facts, section 72 of the Orphans Court act avails the plaintiff in upholding the present action. The pertinent part of section 72 is here quoted: “.In all cases where any executor or administrator shall have settled the estate of any decedent, or may hereafter settle the estate of any decedent, and there has been, or shall be, upon such settlement a surplus to be distributed, it shall and may be lawful for any creditor of said estate, who may have neglected to file his claim with such executor or administrator within the time herein prescribed, to present such claim to such executor or administrator under oath at any time before said surplus shall have been distributed or paid over according to law by such executor or administrator * * si; »

An examination of the statute discloses that creditors may primarily present their claims before the decree barring creditors (section 68) ; debts payable in the future may likewise bo presented (section 69); assets of the estate found by a creditor after the final settlement of the account of the representative are made available for the payment of the debt, despite the failure of the creditor to present his claim (section 70); any legacy or distributive share, not attached, and unpaid by the representative is an asset also made available for the payment of a ratable proportion of the debt of a creditor who failed to present his claim (section 77); a neglectful creditor is afforded a remedy against legatees and distributees who have given refunding bonds (section 78).

To revivify the words of the late Vice-Chancellor Backes (92 N. J. Eq. 325) : “The law prefers creditors to legatees and distributees. It is axiomatic that justice precedes generosity and that debts must be paid before gifts.” The pro-dominate object of the statute is to facilitate an orderly-settlement of an estate and to afford reasonable protection to the personal representatives in the liquidation, settlement and distribution of the estate. The statute wisely protects the due course of administration from being disordered by the chance awakening of somnolent creditors. Newbold v. Fenimore, 53 N. J. L. 307; 21 Atl. Rep. 939. The legislative intent seems to be clearly discernible. It is intended that after the decree barring creditors the personal representative shall be at liberty to proceed with the due administration of the estate until he shall have paid the debts presented and shall have definitely ascertained with judicial approval all of the expenses occasioned by the administration of the estate. Simons v. Forster, 73 N. J. L. 338, 341; 63 Atl. Rep. 858. During this period it is obviously intended that the representative shall be unmolested by creditors who have been remiss in filing their claims. When it has thus been adjudicated that there is in fact a residue of the assets of the estate available for distribution or applicable to the payment of legacies, as the case may be, then unpaid creditors are again afforded opportunities to assert their claims. It was foreseen that some representatives might neglect to make a final settlement of their accounts and in such wise indefinitely harness a creditor whose debt was barred by the decree. A specific remedy is supplied by the provisions of section 80.

In O’Neill v. Freeman, 45 N. J. L. 208, the Supreme Court was obliged to construe section 77 (then section 66) of the Orphans Court act in the particular with which we are here concerned. The court, in the opinion delivered, said:

“The statute declares that a legacy or distributive share in the hands of the personal representative shall be assets to pay the creditor who has failed to present his claim. But how will it appear that, after the payments of the debts and the commissions and costs of settlement of the estate, any residue will remain for distribution, or that there will be any balance applicable to the payment of legacies? That can be ascertained only by a final settlement of the executor’s or administrator’s account, a subject over which the court in which this suit is instituted has no jurisdiction. This court could not submit to a jury the right to determine what sum must be appropriated to the payment oi debts, to the claims oí the executor and to commissions for the purpose of arriving at the balance in hand. Not only would a verdict in this case be inconclusive as to any other creditor who might sue, but it might be in excess of the sum found to remain in the executor’s hands upon accounting in the Orphans Court. It is therefore clear that this section of the statute gives the right of suit only after final settlement in the court where the executor’s account must be passed. The terms ‘legacy and distributive share’ necessarily imply a final settlement. The first replication is faulty in failing to allege such final accounting, and an unpaid legacy or distributive share thereafter remaining in the executor’s hands.”

Significance must be attached to the conclusion of the court that there must be a judicial settlement embracing not only the payment of debts but also commissions and administration costs and expenses before a surplus or residue remains for distribution.

In Emson v. Allen, 62 N. J. L. 491; 41 Atl. Rep. 703, the executor instituted the action to recover a debt alleged to be due the estate. The defendant pleaded a set-off to which the plaintiff interposed the statutory bar by the decree of the surrogate made upon an order to limit creditors. Thereupon the defendant rejoined that at the commencement of the action the testator’s estate was solvent; that all the testator’s debts except that due to the defendant had been paid; that on the settlement of the estate there would be a large surplus to he distributed among the devisees under the will and that the surplus was still in tile hands of the executor. To the rejoinder the plaintiff addressed a demurrer. The demurrer was sustained because the rejoinder did not contain an averment that the executor has settled the estate and that upon such settlement, the surplus remained in his hands. Mr. Justice Dixon, speaking for the Supreme Court, stated: “The settlement intended by this act is, undoubtedly, a judicial settlement before the Orphans Court, the Ordinary or the Court of Chancery. Such was the construction placed in O’Neil v. Freeman, 45 N. J. L. 208, on section 66 of the Orphans Court act, a provision having a similar object but much less explicit on the point now raised than the act of 1889.” We have already perceived that in O’Neil v. Freeman it was held that section 77 of the statute granted the right of suit only after final settlement in the court where the executor’s final account must be passed. Again in Cunningham v. Stanford, 68 N. J. L. 9; 54 Atl. Rep. 245, it was held that in order to take advantage of provision 77 of the act, it was necessary for a creditor to allege and prove that there has been a final settlement of the account of the executor. Mr. Justice Case delivering the opinion of the Court of Errors and Appeals in the more recent case of Miller v. Marshall, 113 N. J. L. 420; 174 Atl. Rep. 726, said: “By section 70 it is provided that upon the making of the final decree [barring creditors], ‘any creditor who shall have neglected to bring in his debt, demand or claim within the time so limited, shall, by such decree, be forever barred of his or her action therefore against such executor or administrator,’ except that after final settlement relief may be had under certain circumstances. The exception does not concern us because there has been no final settlement of the account of the executor.” (Italics mine.)

In Smith v. Wilson, 79 N. J. Eq. 310; 81 Atl. Rep. 851, Vice-Chancellor Stevenson found: “It is established beyond doubt that the husband as administrator has received money and securities, after all other debts have been paid, far in excess of the mortgage debt.” “The bill, giving all possible force to the meagre amendment, cannot, in my judgment, be deemed as presenting a case under section 72 of the Orphans Court act. Pamph. L. 1898, p. 740. There is no allegation or proof of a judicial settlement of the decedent’s estate by the administrator, the defendant. Emson v. Allen, 62 N. J. L. 491. This is a fatal defect and makes any further discussion of other possible defects unnecessary.”

In Home Brewing Co. v. Mahler, supra, Vice-Chancellor Backes pointed out that the remedy under section 72 of the Orphans Court act was not available to the complainant because the estate had not been judicially settled.

A claim for the amount due on a bond of the deceased secured by a mortgage is nevertheless a claim which must be presented to the executors within the time fixed by the rule to limit creditors. Ray Estate Corp. v. Steelman, Adm’r, 90 N. J. L. 184; 100 Atl. Rep. 209; Smith v. Crater, 43 N. J. Eq. 636; Weatherly v. Sparks, 63 N. J. L. 445; 43 Atl. Rep. 683; Voorhees’ Case, 57 N. J. Eq. 291; 42 Atl. Rep. 567; Smith v. Wilson, 79 N. J. Eq. 310; 81 Atl. Rep. 851; Cranmer v. Cole, supra; Hackensack Trust Co. v. Van Den Berg, 92 N. J. L. 412; 105 Atl. Rep. 719; Hess v. Bugbee, 13 N.J. Mis. R. 358; 178 Atl. Rep. 626.

The decree barring creditors entered on March 14th, 1928, is an impregnable defense to the present action unless the facts alleged and supported by proof are such as to warrant the prosecution of this action under the provisions of section 72.

Perhaps in the present case it might be confidently assumed that the funds now retained by the executors will be more than sufficient for the payment of commissions, proctor’s fees and other administration expenses. In Cunningham v. Stanford, Executrix, supra (at p. 10), Chief Justice Glummere remarked: “That a decree to bar creditors will be enforced against creditors, notwithstanding that the executor has persona] assets of his testator in his hands, has been frequently decided by this court.” The fact is, however, that the amount of such outla3r in the present estate has not yet been definitely determined and judicially approved. Section 72 cannot be given a flexible construction depending upon mere probabilities in eacli ease. It may frequently occur that upon the allowance of an intermediate account, a neglectful creditor will contend that some of the balance disclosed by the account is surplus to be distributed. Assured^ it was not intended in such exigencies that the merit of the creditor’s contention should be determined in an action at law against the representative of the estate. It is desirable that the construction placed upon this section of the statute shall be definite, clear and positive in its universal application.

In the instant case the alleged amount remaining unpaid on the bond is not challenged. The other facts are not in dispute. There has been no final judicial settlement of this estate. My conclusion is that the right of a delinquent creditor to assert his claim under section 72 of the act originates only upon a final accounting wherein a surplus for distribution is determined. The plaintiff, as a creditor, can with the facts undisputed seek adequate remedy in the Orphans Court.

Counsel may, upon notice, present a rule appropriately to be entered in conformity with the conclusion here expressed.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    PETER BYRNES ET AL., PLAINTIFFS, v. BOULEVARD COMMISSIONERS OF THE COUNTY OF HUDSON AND COUNTY OF HUDSON, DEFENDANTS.
    Decided March 9, 1938.
    For the plaintiffs, Frank H. Eggers.

    For the defendants, J. Emil Walscheid.

   Brown, C. C. J.

The above entitled canse was tried before the court without a jury upon the pleadings and an agreed state of facts. The plaintiffs are fifty-eight in number, fifty-seven of whom were within the classified service of the Civil Service act and one, the head of the police department of the Hudson county boulevard commission, in the unclassified service as defined in that act. The suit is brought to recover salaries from the time of the alleged illegal discharge of the plaintiffs by the Hudson county park commission to the time of their reinstatement by the defendant boulevard commissioners of Hudson county. The law under which the Hudson county park commissioners assumed office was declared constitutional by the New Jersey Supreme Court and that decision was reversed by the New Jersey Court of Errors and Appeals. The offices and positions held by the plaintiffs were abolished and the plaintiffs discharged on the ground of economy by the Hudson county park commission while that body assumed jurisdiction over the offices and positions of the plaintiffs, as well as other matters^ theretofore controlled by the defendant commissioners. According to the facts stipulated it is agreed that on April 22d, 1930, the defendant commissioners had as its members Theodore A. Kleffman, John G. Meister and Frank B. Chapman. On that date the legislature passed a law, chapter 261, Pamph. L. 1930, p. 1092, wherein it was enacted that the offices of the defendant boulevard commissioners was abolished and all the duties and powers vested by law in such commissioners were thereafter to be exercised and performed by the Hudson county park commission. On the date last mentioned the legislature passed an act, chapter 262, Pamph. L. 1930, p. 1093, amending chapter 277, Pamph. L. 1902, p. 811, by which amendment the government and control of Hudson county parks were intended to be vested in the Hudson county park commission, the members of which were to be appointed by the governor instead of the judges of the Court of Common Pleas. The amendment provided the park commission was a body politic, with power to sue and be sued and exercise the usual powers of passing by-laws and completing other organization matters. The governor, pursuant to the law enacted, appointed James W. McCarthy and four others to be known as the Hudson county park commission. Those appointees organized and thereupon demanded of Theodore A. Kleffman and his associates a surrender of the franchises, books, papers and the like of the boulevard commissioners. The demand was refused and on April 29th, 1930, McCarthy and his associates filed in the New Jersey Supreme Court an information in the nature of a writ of quo warranto against Kleffman and his associates. On November 18th, 1930, a judgment of ouster was entered in the quo warranto proceedings in favor of McCarthy7 and Ids fellow appointees. (See McCarthy et al. v. Kleffman, et al., 107 N. J. L. 223; 152 Atl. Rep. 175). Kleffman and the other boulevard commissioners in comjfiiance with the judgment of ouster did surrender all the insignia of their office and immediately ceased to function as boulevard commissioners and those functions were transferred to and assumed by the Hudson county park commission. The defendant boulevard commissioners thereupon appealed the judgment of ouster to the New Jersey Court of Errors and Appeals, which court reversed the judgment of the New Jersey Supreme Court on October 20th, 1931, and decided that chapters 260, 261 and 262, Pamph. L. 1930, were unconstitutional and void. (See McCarthy et al. v. Kleffman et al., 108 N. J. L. 282; 150 Atl. Rep. 772). McCarthy and his associates while functioning as the Hudson county park commission did discharge the plaintiffs from their respective positions and did abolish their positions “as useless and unnecessary to the efficient and economical conduct of the administration of the affairs of said Hudson county park commission.” Group Ho. 1 of plaintiffs as set forth in the facts stipulated yvere discharged by resolution adopted December 1st, 1930; Group Ho. 2 by resolution adopted February 3d, 1931, and Group Ho. 3 by resolution adopted September 14th, 1931. The defendant boulevard commissioners restored all the plaintiffs to their positions by a resolution adopted by those commissioners on December 1st, 1931. The claims of the plaintiffs cover the period from the date of discharge to the date of reinstatement. Though the plaintiffs were promptly notified of their discharge by the Hudson county park commission, no appeal or complaint was lodged with the civil service commission nor any other action taken to test the legality of their discharge. The plaintiffs did not render any services from the time of their discharge to the date of their reinstatement though they claim to have been ready, able and willing to do so; no offer was made in that direction. The agreed state of facts contains the civil service classification of the plaintiffs, as hereinbefore stated; a description of their positions and the amount of salaries claimed due amounting in all to $115,724.43. The plaintiffs contend the action of the Hudson county park commission in discharging the plaintiffs was void and of no effect ab initio because the legislation creating that commission was declared unconstitutional and therefore the plaintiffs were illegally discharged from their positions. The plaintiffs argue the members of the park commission were not de facto officers for they claim there was no office de jure for them to occupy; that they had no apparent authority to act; that the law creating them was void from the beginning and continued to be without legal effect and afforded neither apparent power or color of title. In support of these contentions reference is made to the cases of Norton v. Shelby County, 118 U. S. 425; Flaucher v. Camden, 56 N. J. L. 244; 28 Atl. Rep. Rep. 82; Toomey v. McCaffrey, 116 N. J. L. 364; 184 Atl. Rep. 835, and particularly Hyman v. Long Branch Kennel Club, Inc., 115 N. J. L. 123; 179 Atl. Rep. 105. The defendants contend that the decision of the New Jersey Supreme Court upholding the legislation under which the boulevard commissioners were ousted from their offices and the park commission having assumed the powers and duties of the boulevard commissioners constituted the law of the state until reversed by the Court of Errors and Appeals and all acts done by the park commission in pursuance of the law thus declared prior to such reversal are valid so far as they involve the interests of the public or third persons. The action of the commission in abolishing the employment of the plaintiffs on the ground of economy in the public service was not void but legal and binding upon the plaintiffs. It is also contended the plaintiffs have no right to bring their suit because the resolutions discharging them have not been passed upon by the civil service commission and reviewed in certiorari proceedings. The passage of time has not clarified, in the reported decisions, the dispute that has existed for many years as to the protection to be afforded to acts done under an unconstitutional law. In our state the case of Lang v. Bayonne, 74 N. J. L. 455; 68 Atl. Rep. 90, decided the course to be followed in this state. Evidently the reason for the conclusion arrived at in that case was to keep disorder and chaos out of governmental affairs and establish a rule to that end. The rule is that: “An officer appointed, under authority of a statute, to till an office created by that statute is at least a de facto officer, and acts done by him antecedent to a judicial declaration that the statute is unconstitutional are valid, so far as they involve the interests of the public and of third persons.” This determination in the Lang case does not appear to have been overruled in later decisions in our state. In Hyman v. Long Branch Kennel Club, Inc., supra (a Court of Errors and Appeals decision), the court expressly stated that it did not reverse the above quoted finding in the Lang case when in referring to that determination said: “With that we have no present quarrel as it is not involved in this case.” In a later case, Toomey v. McCaffrey, supra (a Supreme Court decision), reference is made to the question of what constitutes a de facto officer but the question was not decided in that case as plainly appears from the language used which is in part: “The question might arise in the mind of some, though it is not raised in the briefs of either side, whether the relator might not, as a de facto officer, have acquired rights to this office. That consideration immediately raises the query as to whether there can be a de facto officer when a de jure office does not exist. It has been held that there cannot legally be a de facto officer unless there is an office de jure. Norton v. Shelby County, 118 U. S. 425 (and other cases), and a contrary view is expressed in Lang v. Bayonne, 74 N. J. L. 455; 68 Atl. Rep. 90 (and other cases).” In the Toomey case the question of a de facto officer had no bearing on the case for the court disposes of this proposition by stating, “we find it unnecessary to pursue this inquiry since the relator’s claim rests on no such theory.” The Supreme Court did in the Toomey case refer to the fact that the decision in Lang v. Bayonne, supra, was overruled in part in the Hyman case, but the part thus overruled was not the determination in Lang v. Bayonne of the protection that should be given to things done by an officer acting under an unconstitutional law before it is declared unconstitutional. As to this proposition the Lang case is still the law of New Jersey. It is singular that contrary views have arisen when you consider the almost unanimous approbation that is given to the case of State v. Carroll, 38 Conn. 449. The decision in Norton v. Shelby County, supra, refers to the decision in the Carroll case as being "an elaborate and admirable statement of the law.” The decision in the Lang case concurs in this encomium. The United States Supreme Court, more recently in the case of United States v. Royer, 268 U. S. 394, characterized the case of the State v. Carroll as being the leading case on the propositions under discussion. An interesting definition of what constitutes a de facto officer may be found in the case of United States v. Royer, supra, where the following definition is adopted: “A de facto officer may be defined as one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper.” "A de facto officer is one who is surrounded with the insignia of office, and seems to act with authority.” The supreme law of the state is its constitution. All statutory law to be valid must conform to the constitution. The judicial and legislative branches of our government should exercise their legitimate governmental functions without encroachment by one upon the other. When the legislature enacts a law and it is signed by the governor it is presumed to be constitutional. In re Drainage Application, 35 N. J. L. 497; Road Commission v. Harington Township, 55 Id. 327; Dixon v. Russell, 78 Id. 296; 73 Atl. Rep. 51; 12 Corp. Jur. 791. According to Allison v. Corker, Assessor (Court of Errors and Appeals), 67 N. J. L. (at p. 600); 52 Atl. Rep. 362, to state that an unconstitutional act is void is not wholly a correct statement, it is rather an unenforceable piece of legislation because it conflicts with a paramount law. The solemn act of the legislature is a fact to be reckoned with. Even the courts are without power to expunge or remove the unconstitutional act from the statutes of the state. It is an existing thing whether constitutional or otherwise. The language oí the court in Allison v. Corker, Assessor, supra, on this point is pertinent, “but I am prepared to go further and hold that an unconstitutional statute is nevertheless a statute — that is, a legislative act. Such a statute is commonly spoken of as void. I should prefer to call it unenforceable because in conflict with a paramount law. If properly to be called void, it is only so with reference to claims based upon it. Neither of the three great departments to which the constitution has committed government by the people can encroach upon the domain of another. The function of the judicial department, with respect to legislation deemed unconstitutional, is not exercised in rem, but always in personam. The Supreme Court cannot set aside a statute as it can a municipal ordinance. It simply ignores statutes deemed unconstitutional. For many purposes an unconstitutional statute may influence judicial judgment, where, for example, under color of it, private or public action has been taken. An unconstitutional statute is not merely blank paper. The solemn act of the legislature is a fact to be reckoned with. Nowhere has power been vested to expunge it or remove it from the proper place among statutes.” Another case that indicates the inaptness of saying that an act declared unconstitutional by the courts is void is the case of the Attorney-General v. McGuinness (Court of Errors and Appeals), 78 N. J. L. 346, where the following language is rrsed: “There can indeed be no greater mistake than that of regarding the power exercised by state courts in declaring legislative enactments unconstitutional as something different from and merely engrafted upon their purely judicial functions. For such mistaken conception leads to the radical error that, if duly challenged, a legislative act will be sustained only when it is demonstrably constitutional. Such a notion in effect supplements the constitution by requiring the affirmative concurrence of all three departments of the government where that instrument of the organic law requires but two, viz., the legislative and the executive, and thus in effect annexes to the judicial branch a gua,si-legislative function akin to that which the constitution itself has annexed to the executive by the veto power. That no such direct participation of the judicial department in what is essentially an incident of the law-making power, viz., the observance of constitutional limitations, was contemplated by the framers of the constitution is conclusively shown by the fact that no such provision was made by the constitution. If such participation, which amounts to a control equal in efficiency to the veto power conferred upon the executive, had been intended to be conferred upon the judiciary, it is incredible that a provision of such magnitude would not have received a like mention. As a matter of common knowledge in ninety-nine cases out of a hundred or even in a larger proportion the laws enacted by the legislature derive their entire validity as constitutional enactments solely from the source where the constitution itself has placed the determination of constitutional observance as an incident of the law-making power, viz.0 with the legislative and executive departments. No way is provided by the constitution, or even remotely suggested, by which the 'validity of such determinations may be either anticipated or postponed or held in abeyance until the result of a judicial participation can be heard from. In the vast majority of cases the judicial judgment is never invoked. What actually takes place is, that if in the course of litigation between parties it happens that the issue is affected by a legislative act, the courts decide the question thus arising upon judicial principles as an incident of litigation and not upon quasi-legislative principles as an incident of the law-making or vetoing power. The difference in principle is fundamental and the practical distinction as clear and of the same nature as that which is applied every day in the review of verdicts, where the question is not whether the court finds that a given state of facts is as the jury found it, but whether it finds that such given state of facts could not be legitimately found by the jury. The error of which we are speaking is reflected in the common expression that an act of the legislators is set aside by the courts, whereas the truth is that courts .never set aside acts of the legislature in the sense that they set aside municipal ordinances or public grants on direct attack. What the courts do is to declare in the course of a specific litigation that the rights of a party thereto are not affected' by a certain statute for tile reason oí its non-conformity to the paramount law.”

The judgment of the Supreme Court in McCarthy et al. v. Walter et al. 107 N. J. L. 223; 152 Atl. Rep. 175, was a final judgment and was the law until reversed. Handwerk v. Guttenberg, 92 N. J. L. 181; 105 Atl. Rep. 226; Attorney-General v. Town of Dover, 62 N. J. L. 138. It should be noted also that the case of McCarthy v. Walter et al., 108 Id. 282, was a quo warranto proceeding that dealt only with the title or right to the office under section 4 of the Quo Warranto act. Pamph. L. 1903, p. 377; 3 Comp. Stat., p. 4212. The case could not possibly deal with any other issue. As Chancellor Campbell said in that case, the existence of an office cannot be inquired into by a contending relator under section 4 of the Quo Warranto act. Pamph. L. 1903, p. 377; 3 Comp. Stat., p. 4212.

The legal and empowered branch of our government to declare a law unconstitutional is our courts. Comparatively few of the laws enacted are subjected to a constitutional test in a court proceeding. Much time passes, as a rule, between the enactment of a law and a judicial determination of its constitutionality. Where the law affects governmental functions public necessity very often requires a continuance of those functions. In the consideration of the rights of an individual holding a public office or position he is protected by the constitution. The public peace and orderly administration of governmental functions should be maintained while the disputed individual right to office is decided by our courts. If private judgment as to what is the law and its enforcement is followed then we have the shortest cut to public disorder and chaos. In the instant case if private judgment was the test as to the laws in question being valid or invalid it is quite possible to conceive of two sets of laborers, mechanics, police officers, secretaries and officials contending by force and possibly violence to carry on the functions of the department. A decision by the Supreme Court would not determine the dispute it would require a decision of the court of last resort and even the court of last resort has been known to reverse some of its decisions. On this point it is worthy of notice that the United States Supreme Court within the past few days reversed two of its decisions of long standing. To say that an unconstitutional law is invalid ab initio and affords no protection for acts performed by de facto officers or those exercising public functions under color of title is inviting the disorder and chaos mentioned. Considering the case of Norton v. Shelby County, supra, in all its ramifications it is not a barrier to the conclusion that the park commissioners acted as de facto officers in discharging the plaintiffs. In the light of the decision in the McCarthy case in the Court of Errors and Appeals, the office of boulevard commissioners of Hudson county was not abolished by the unconstitutional legislation and the park commission was not legally created. The functions of the office were not abolished by the decision last mentioned and the unconstitutional legislation was abortive in its effect to that end. The office and the insignia or franchise thereof having continued as well as the functions and powers thereof the only change that occurred was the exercise of the franchise, powers and functions of the office by the park commission when and after the franchise, powers and functions of the office were transferred by the defendant commissioners to the park commission under the judgment and direction of the Supreme Court. The reversal of this judgment, ipso facto, restored the franchise, powers and function of the office to the defendant commissioners. Ho enabling legislation was required to produce this result for the reason that the office continued in existence it was only the powers and functions of the office that were exercised by one set of officers under apparent power and authority created by laws that were presumptively constitutional and declared by a court of competent jurisdiction to be so and upon surrender by the defendant commission of the franchise, powers and functions of the office. Erwin v. Jersey City (Court of Errors and Appeals), 60 N. J. L. 141; 37 Atl. Rep. 732; Lang v. Bayonne, 73 N. J. L. 109; 62 Atl. Rep. 270; affirmed, 74 N. J. L. 455; 68 Atl. Rep. 90; von Nieda v. Bennett (Court of Errors and Appeals), 117 N. J. L. 231; 187 Atl. Rep. 629; Kirker v. City of Cincinnati, 48 Ohio 507; 27 N. E. Rep. 898.

This court does not subscribe to the proposition that the defendant commissioners were a de jure commission without color of office and, as such, became responsible for salaries to men who rendered no services to that commission or to any other, but in seeking to serve another commission were by it discharged.

The finding is made that the Hudson county park commission when they discharged the plaintiffs were acting as de facto officers. While their title to the office was not good in law they had unobstructed possession of the office according to a judgment of the Supreme Court; they were discharging the duties of the office in full view of the public in such manner and under such circumstances as not to present the appearance of being intruders or trespassers. They were surrounded with and possessed the insignia and all the possessions of the office which were transferred to them by the defendant boulevard commissioners. Their acts in discharging the plaintiffs were, therefore, legal. United States v. Royer, supra; Lang v. Bayonne, 74 N. J. L. 455; State v. Toth (Court of Errors and Appeals), 86 N. J. L. 247; 90 Atl. Rep. 1125; State v. Carroll, supra. It is not necessary to answer the query as to the remedy available to the plaintiffs under the circumstances of their discharge. They could have invoked the right of appeal to the civil service commission (see section 24 of the Civil Service act), and by writ of certiorari. Keegle v. Hudson County, 99 N. J. L. 26; 122 Atl. Rep. 606; affirmed, 102 N. J. L. 219; 130 Atl. Rep. 919; Dinkel v. County of Hudson, 5 N. J. Mis. R. 326; 136 Atl. Rep. 420; affirmed, 104 N. J. L. 659; 141 Atl. Rep. 919; Lindsey v. County of Hudson, 10 N. J. Mis. R. 627; 160 Atl. Rep. 212. A suit for salary is not a proper suit to determine a title to an office or position. The court finds as the facts established in the case those recited in the stipulation made between the parties, the pertinent part of which has been hereinbefore referred to, and concludes as a matter of law and decision in the case that the plaintiffs have no cause of action against any of the defendants. The judgment of the court is that of no cause of action in favor of both defendants and against all the plaintiffs.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GLADYS PENNEY HOLDEN, PETITIONER, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, RESPONDENT.
    Decided February 24, 1938.
    For the petitioner, Armstrong <& Mullen.

    For the respondent, Henry H. Fryling.

   The facts in the case sub judice are not disputed.

Decedent was employed by respondent at a weekly wage of $45.20. On May 17th, 1937, he fell or was thrown from a pole sustaining injuries which caused his death. He left surviving him a widow and adult children.

The petition is filed by the guardian of the widow.

There is no question that decedent died as a result of an accident arising out of and in the course of his employment, but the disputed question is the dependency of the widow. The marital relationship is admitted.

It would appear that the widow, Theresa Penney, in the year 1922 was confined to the State Hospital for the Insane at Gr-eystone Park. A final order of commitment was issued in 1923 to this institution. Affidavits made by decedent were to the effect he had no money saved, no property or estate and could not pay for his wife’s maintenance. She was subsequently released from this institution and on March 18th, 1927, she was recommitted to Hudson County Hospital at Secaucus and the decedent was ordered to pay towards the expense of her confinement $3.78 per week.

Subsequently on August 26th., 1927, a final order commiting the widow to Hudson County Hospital at Secaucus was signed eliminating any provision for her support by decedent.

Pursuant to order of March 18th decedent paid approximately $20.

Prom 1927 to 1931 at certain short intervals Theresa Penney, the widow, was allowed to visit her home but since 1931 to date due to her mental condition she has not been permitted to leave the institution.

Certain testimony was introduced to reflect that at times decedent furnished his wife with articles of clothing, food and other necessities but from records of institution little or no weight could be given to same. The facts are without question that the three requisites of dependency, viz., food, shelter and raiment were and are being furnished by the county.

A dependent, in law, is one who is sustained by another or relies for support upon the aid of another; who looks to another for support and relies upon another for reasonable necessities consistent with the dependent’s position in life. The dependency which justifies an award is personal dependency for support and maintenance — an actual dependency for support consistent with the dependent’s position in life. It does not include the maintenance of others whom the dependent is under no legal or moral obligation to maintain or contribution which merely enables the donee to accumulate money.

I have carefully considered the testimony, studied the briefs of both attorneys as well as made a careful research of cases. The only case and one which is cited by the respondent’s attorney in his brief is that of Roberts v. Whaley, 158 N. W. Rep. 209. Compensation was disallowed.

The Supreme Court of Michigan, in holding that under such circumstances the wife was not dependent, said:

“It appears without dispute that the wife was not living with her husband at the time of his death, and had not lived with him for nine years prior thereto. Therefore it is obvious that if she is entitled to the award, it must be by reason of her dependency on him. That question is one of fact. The stipulation of facts shows that she has been supported by the state for upwards of nine years, and that the deceased has contributed nothing. I am unable to see how upon this record it can be said that she was dependent upon her husband for support at the time of his death. The record simply shows that she was not. For cases supporting this view, see New Monckton Collieries, Ltd., v. Keeling, 4 B. W. C. C. 332; Lee v. "Bessie," 1 K. B. 85; 81 L. J. K. B. 114; 105 L. T. 659; 5 W. C. C. 55; Polled v. Great Northern Railway Co., 5 B. W. C. C. 620; Devlin v. Delaw Main Collieries, 5 Id. 349; Niddrie & Benhar Coal Co., Ltd., v. Young, 5 Id. 552; In re Nelson, 217 Mass. 467; 105 N. E. Rep. 357; In re Bentley, 217 Mass. 79; 104 N. E. Rep. 432; Batista v. West Jersey and Seashore Railroad Co. (New Jersey Supreme Court), 88 Atl. Rep. 954; In re Jones, Ohio Ind. Com. 6 N. C. C. A. 250; Finn v. Railway, 155 N. W. Rep. 721.
“Where the issue of dependency is one of fact, proof that claimant is the wife of the deceased is of course admissible, and in connection with other facts may be of help in determining that issue. Or, if the issue is whether the wife is conclusively presumed to be dependent, proof of the fact of marriage standing alone might raise a presumption that she was living with deceased at the time of his death, because wives usually live with their husbands. But where proof of marriage is followed by a concession that she had not lived with the deceased for nine years prior to his death, that she had been supported by the state, and that her husband had contributed nothing toward her support during that period, the value of such proof either on question of dependency, or in aid of the presumption, has very little force.
“The fact that claimant did not voluntarily separate from her husband is urged as a reason why she should be regarded as constructively living with him during her absence. Were this proceeding one to recover for necessaries furnished her by another, or a divorce proceeding, in which permanent alimony was to be awarded to her, this consideration would be important. This proceeding, however, is based upon a statute which provides a fund, not for the benefit of the workingman’s estate, not for the benefit of his creditors, not for those equitable entitled to be supported by him, but the fund is provided for the benefit of those dependent on his labor at the time of his death.”

Beverting to the act we find that “dependents” shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or death namely: husband, wife * * *. Provided, however, that dependency shall be conclusively presumed as to the decedent’s widow and natural children under sixteen years of age who were actually a part of decedent's household at the time of his death.

Bouvier defines dependent as “one who derives support from another.”

In my opinion the widow, Theresa Penney, was not a dependent as defined by the act and is therefore not entitled to compensation.

$ $ $ 3: $ $ 3*

John C. Wegner, Referee.


author: Proctor, D. C. J.

text:
    First Judicial District Court of Monmouth County.
    GEORGE POULOS, PLAINTIFF, v. COAST CITIES COACHES, INCORPORATED, DEFENDANT.
    Decided August 3, 1937.
    For the plaintiff, Schlossbach & Newman and Henry K. Golenbock.

    For the defendant, Alan Kraut.

   Proctor, D. C. J.

The only question to be considered is the effect of the verdict and judgment previously obtained against the defendant by the plaintiff's wife.

The first action was instituted by Susan Poulos and George FT.-Poulos against the defendant in the Second Judicial District Court of Monmouth county to recover for injuries sustained by the wife while a passenger in the defendant's bus, and for consequential injuries suffered by the husband. At the trial of the ease in the Second Judicial District Court, the husband (plaintiff here) discontinued his suit and, upon motion, which was granted, the wife's claim for damages was increased to $500. The jury returned a verdict of $200 in favor of the wife and judgment was entered thereon.

The plaintiff, George N. Poulos, instituted suit in this court for consequential damages suffered by him in the loss of society, services, and expenses, known as an action per quod consortium amisit. At the trial of this case I allowed the judgment record of the Second Judicial District Court to be offered in evidence, reserving decision as to whether or not it was admissible on the question of res adjudicata (the purpose for which it was offered).

As I stated at the end of the trial, I found as a fact that there had been no breach of duty owed to the plaintiff’s wife by the defendant, and, therefore, the only question is whether or not the judgment rendered in favor of the wife in the prior action was res adjudicata as to the husband’s claim in the instant case. If 1 am bound by the prior judgment, the judgment in the instant case should go for the plaintiff. If I am not bound, under the facts of the instant case, judgment should go for the defendant.

A married woman may maintain an action in her own name, without joining her husband therein, for all torts committed against her in the same manner as she lawfully might if a feme sols. Comp. Stat., p. 3237, § 12B. A personal injury to the wife gives rise to two causes of action; one in favor of the wife to recover for the physical injury, pain and suffering, and one in favor of the husband to recover for loss of his wife’s services, society, and for any expenses incurred. Both suits result from the same injury to the wife, it is true, but the causes of action are separate and each an entirety unto itself. Both spring into independent existence at once upon such injury.

A matter is not res adjudicata unless there be identity of the things sued for, of the cause of action, of the persons and parties, of the quality of the persons for and against whom the claim is made, and the judgment in the former suit be so in point as to control the issue in the pending action. Smith v. Fischer Baking Co., 105 N. J. L. 567; 147 Atl. Rep. 455. In the case sub judice, there is no identity of the thing sued for between the two suits. Mrs. Poulos claimed personal injuries. Mr. Poulos claims damages to his property right. It is self-evident that the parties are not the same. The husband is not in privity with the wife. His action now is on his own common law right to compensation for the loss of his wife’s services. Ho settlement or disposition of her claim could affect his without his consent. The term “privity” means mutual or successive relationship to the same rights of property. The executor is in privity with the tes-' tator, the heir with the ancestor, the assignee with the assignor, the donee with the donor, and the lessee with the lessor. See McDonald v. Gregory, 41 Iowa 142 (at p. 516).

It appears to me that the case of Smith v. Fischer Baking Go., supra, is controlling. There, the owner of an automobile brought suit against the baking company to recover for damages to her automobile caused in the collision between it and the automobile owned by the baking company. Plaintiff’s automobile, at the time of the accident, was operated by her servant, Yersoy. Prior to this suit, Yersoy brought suit for personal injuries against the baking company and judgment in that suit was for the defendant. The baking company, in the suit by the owner, pleaded res adjudicata. The court held that the prior case was not res adjudicata as the parties and issues were not the same. The ratio decidendi of the Pischer Baking Company case was that Yersoy was suing in his own right, and that the owner had not had her day in court. By the same token it may be said that Mrs. Poulos was suing in her own right, and Mr. Poulos had not had his day in court.

In order to come within the rule as to res adjudicata, the first judgment must have been binding on both parties to the second action. If the wife’s action had failed for want of evidence of defendant’s negligence and there had been a verdict for the defendant, the plaintiff, who was not a party to that action (he having withdrawn his count), with no control over that action, would not have been barred from his right to prove negligence in his own suit. As he would not have been prejudiced by one result, he cannot claim the benefit of the other. See Walker v. The City of Philadelphia, (Pa.) 45 Atl. Rep. 657.

Plaintiff relies upon the cases of Mullen v. Newcastle, 180 Ind. 103, and Black v. Eastern Railway, 257 Pa. 273, but both of these cases turn upon the language of the statute of limitations and have no application to the rule of res adjudícala. Plaintiff also cites the case of Rossman and Boehme v. Newbon, 112 N. J. L. 261; 170 Atl. Rep. 230, as dispositive oí the case at bar. In that case, the husband and wife instituted suit against the defendant for injuries sustained by the wife through the negligence of the defendant, the husband joining for consequential damages. The jury awarded damages to the wife, but was silent as to the husband’s claim. The trial judge granted a rule to show cause and made the same absolute as to damages only for both the wife and the husband. The defendant appealed upon the ground, inter alia, that, as the husband had not received a verdict in the first place, he should not have had a new trial as to damages only. The court dismissed this on the ground that the husband’s action was secondary or derivative of the wife’s and depended on the existence of the cause of action pleaded by the wife. The court said (at p. 231) :

“Unless the wife can recover for personal injuries suffered by her, the husband, in such an action, is not entitled to consequential damages. Jackson v. Boston Elevated Ry. Co., 217 Mass. 515; 105 N. E. Rep. 379; 51 L. R. A. (N. S.) 1152; 13 R. C. L. 1415. Compare Vorrath v. Burke, 63 N. J. L. 188; 42 Atl. Rep. 838. The converse of this proposition is likewise the law.” (Italics the writer’s.)

In the above case, the husband was a party to the suit with the wife, and it appears that he can recover in the event she can recover in such an action. It will be noticed that the case cited was a Massachusetts case and the Massachusetts courts have held that a judgment in favor of the wife in one suit is not res adjudícala on the issue of negligence as to the consequential damages suffered by the husband in a subsequent suit. See Erickson v. B., 230 Mass. 467; 120 N. E. Rep. 126.

The Rossman case is authority merely for the point that where the husband and wife are parties to the suit, the court, if it can ascertain the meaning of the jury’s verdict, may give it effect even though the verdict be irregular and faulty in expression. The case goes no farther.

The case of Leonardis v. Freda, 8 N. J. Mis. R. 881; 152 Atl. Rep. 239, cited by plaintiff, is not in point as it merely holds that a judgment against one joint debtor precludes a subsequent judgment against another joint debtor.

I have examined all of the cases that I could find in the reports, both in this state and in our sister states (incidentally, I have not been favored with a brief from the defendant), and I find that the overwhelming weight of authority holds that a judgment in favor of the wife is not res adjudicata as to the liability in general of the defendant for the resulting injuries to the husband. See the cases collated in the notes of 2 A. L. R., 592, and 10 L. R. A. (N. S.) 140.

I, therefore, award judgment of no cause of action in favor of the defendant.