text:
    LEHIGH VALLEY RAILROAD COMPANY, PLAINTIFF-RESPONDENT, v. METROPOLITAN LUMBER COMPANY, DEFENDANT-APPELLANT.
    Argued May 7, 1929
    Decided January 13, 1930.
    Before Gum mere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellant, Milton Unger and Leonard, J. Hmmerglick.

    Eor the respondent, George 8. Hobart.

   Pee Curiam.

The action was brought to recover rent reserved under a lease amounting to $1,800 and taxes for the years 1926 and 1927 paid by the lessor-plaintiff and payable under the terms of the lease by the lessee-defendant.

The defendant answered, admitting the reservation of rent by the terms of the lease and that such lease provided that as a part of the rental reserved it would pay all taxes and assessments against the leased premises, but denying that the plaintiff had made any payment for taxes as alleged in its complaint.

As a separate defense the defendant-appellant pleaded that since the making of the lease and prior to October 1st, 1927, the date from which the rent was sought to be recovered, a part of the leased premises had been taken by the state, under its power of eminent domain and that the defendant had, therefore, been deprived of the use and enjoyment of the portion so taken, and therefore the plaintiff below was not entitled to have and maintain its action for the rent reserved.

Upon notice and hearing the answer was stricken out and summary judgment ordered for the plaintiff below and judgment accordingly entered.-

Erom this judgment the defendant below appeals. The factual situation is that the state highway commission desired for highway purposes a portion of these leased lands and the plaintiff below as owner of the title in remainder conveyed to said highway commission eight hundred and twenty-three one-thousandths of an acre of a total of two and two hundred and thirty-eight one-thousandths acres, expressly subject to the estate and interest of the defendant below under its lease. Subsequently the state highway commission instituted proceedings to condemn the defendant-lessee’s interest in such -lands. This proceding resulted in an award to the defendant of $9,822.32 “as the value of the leasehold interest in said lands and damages thereto as aforesaid.” Such was the language of the report of the condemnation commissioners. This sum has been paid to and accepted by the defendant-appellant.

Two grounds of reversal are urged by the appellant. 1. That the proceeding in question amounted to an eviction of it as tenant and entitles it to an abatement of the rent reserved proportionate to the nature and extent of the eviction.

We think this is not legally or logically sound, but conclude that the proper rule is that laid down in 1 Washb. Beal Prop. 324, which is as follows: “It has sometimes been attempted to apply the principle of eviction from a part of the premises where lands under lease have been appropriated to public use, under the exercise of eminent domain * * * but the better rule, and one believed to be adopted in most of the states, is that such a taking operates, so far as the lessee is concerned, upon his interest as property for which the public are to make him compensation, and does not affect his liability to pay rent for the entire estate according to the tenor of his lease, and this extends to ground rent; such taking does not abate any part of the rent due.”

2. No provision is made in the statute under which the condemnation proceedings were had for the inclusion in an award made to compensate the tenant and no such amount, was included in the award made to appellant.

We conclude that this is without legal merit.

The statute in question directs the commissioners “to appraise the said land or property and assess the damages,” “to view and examine the land * * * and make a just and equitable assessment of the amount to be paid by the petitioner for such land and damages aforesaid,” and further provides that where a part of a tract is taken compensation shall be made for the value of that part taken and damages awarded, if any for and toward the portion not taken.

Here about one-third of the leased lands was taken and the lease had eleven years and four months to run. Computing the rent reserved for this term would be about $6,800; the award was $9,822.32, and the difference is $3,000. The commissioners were controlled by the measure of value of leaseholds laid down in Newark v. Eisner, 100 N. J. Nq. 101, namely the present value of the difference between the market value of the leasehold and the rent reserved, and we must say that the commissioners in their award not only applied this rule but also allowed in their award damages amounting to or being tantamount to an abatement in the rental value of the premises by reason of taking the part in question.

Wo conclude that this ground of appeal is likewise without legal substance and that the judgment under review must be affirmed.


source: Caselaw Access Project

author: Pee Oueiam.

license: Public Domain

text:
    PETER NOTEBOOM, PLAINTIFF, v. THE TEXAS COMPANY, DEFENDANT.
    Decided January 14, 1930.
    Before Gummeee, Chiee Justice, and Justices Kalisoh and Campbell.
    Por the rule, James D. Carpenter, Jr.

      Contra, Aaron L. Simon.

   Pee Oueiam.

This was an action brought by the plaintiff to recover compensation for personal injuries received by him through being run down by a truck of the defendant company, while riding his bicycle along Market street, in the city of East Paterson; The jury, after considering the evidence, returned a verdict for $5,000 in favor of the plaintiff and against the defendant.

Defendant seeks to have this verdict set aside and a new trial directed upon two grounds: First, that the finding of the jury that the injury received by the plaintiff was the result of the negligent driving upon the part of the defendant’s employe, was contrary to the clear weight of the evidence; and second, that the award is excessive. If the accident occurred as described by the plaintiff in his testimony, the jury was entirely justified in its finding that it was the result solely of the negligence of the driver of the defendant’s truck. After hearing the testimony on both sides, it was their function to determine what the truth of the matter in issue was, and the fact that they believed the plaintiff, and not the witnesses of the defendant, affords no ground for setting aside the verdict as against the weight of the evidence.

As to the award, our examination of the proofs relating to the character of the plaintiff’s injury and his loss of earnings, .satisfies us that instead of being excessive it was a very reasonable allowance that the jury made to him.

The rule to show cause will be discharged.


author: Pee Curiam.

text:
    MARTIN B. TAYLOR, PLAINTIFF, v. LEONARD W. TAFT, DEFENDANT.
    Submitted May term, 1929
    Decided January 13, 1930.
    Before Guhmere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Lester C. Leonard.

    Contra, Ward Kremer.

   Pee Curiam.

Plaintiff brought suit to recover for work and labor performed by him for the defendant, upon an alleged express oral agreement, at Hotel Taft, in Asbury Park in this state and also at the hotel of the XLNT Co. in Florida of which the defendant was the sole or controlling owner.'

He has a verdict for $5,560 which the defendant seeks to set aside upon the grounds:

1. That it is against the weight of the evidence.
2. It is excessive.
3. Because of newly-discovered evidence.

We conclude that the evidence said to be newly discovered is not of the character warranting or requiring a setting aside of the verdict and an order for a new'trial.

We are of the opinion, however, that the jury was not warranted by the proofs in finding for the plaintiff as to services said to have been performed by the plaintiff upon the hotel of the XLNT Company in Florida, and that therefore to this extent the verdict is excessive.

That amount appears to be $736. Therefore if plaintiff within thirty days from an order entered in accordance herewith shall accept a reduction of the verdict by,'$736 and to $4,824, then the rule shall be discharged, otherwise it will be made absolute and’ a venire de novo awarded as to all the issues.


author: Pee Cubiam.

text:
    MARGARET BENNETT, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. HENRY EAGLEKE ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided January 13, 1930.
    Before Gummeee, Chief Justice, and Justices Kalisoh and Campbell.
    For the rule, Isaiah Mcdlack.

    Contra, Theodore D. Parsons.

   Pee Cubiam.

On June 10th, 1928, the plaintiff Margaret Bennett, a minor, was at or near the intersection of Bridge avenue and Catherine street, in Bed Bank. Two cars, one owned by the defendant DeCarlo, and driven by the defendant Eagleke, and the other owned and driven by the defendant Perri, came into collision and the Perri car ran upon the sidewalk, striking down the plaintiff Margaret Bennett, and injuring her. The ■other ear proceeded forward on the roadway. The plaintiff, through her father as next friend, sued to recover for her injuries, and her father, in his own right, sued to recover for the cost of cure of the daughter, &c.

The'daughter has a verdict for $10,000 and the father for $1,722.30.

These verdicts we are asked to set aside for three reasons:

1. Because they are against the weight of the evidence. The principal, if not the sole reason urged under this ground is that the finding, in order to warrant recoveries by the plaintiffs, must have been that at the time of the happening the relationship of master and servant existed as between DeCarlo, the owner of the car, and Eagleke its driver, and such finding is not supported by a preponderance of the proofs.

We think the evidence warranted such finding by the jury.

2. That the verdicts are excessive.

This reason receives no justification from the proofs.

3. Because the verdicts are inconsistent in that they are against the owner of the car only and not against the driver and the owner became liable only by negligence of the driver, imputable to him as the master.

This is not a ground for setting aside the verdicts against the owner and master. Dunbaden v. Castles Ice Cream Co., 103 N. J. L. 427, and cases therein cited.

The rule to show cause will be discharged.


author: Peb Cukiam.

text:
    WARNER-QUINLAN COMPANY, PLAINTIFF, v. SAMUEL S. WAITE ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided January 13, 1930.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Lester C. Leonard.

      Contra, William Sartshorne.

   Peb Cukiam.

This suit was to recover the amount of a book account for gasoline and oil furnished by the plaintiff to the defendant Samuel S. Waite, the payment of which account was guaranteed by his wife, the other defendant.

The defendants answered and the defendant Samuel S. Waite counter-claimed for damages because of having been illegally and forcibly ejected from the possession of two gasoline stations owned by the plaintiff.

Upon a trial of the issues the jury found in favor of the defendant on his counter-claim in a sum greater than the amount of the book account and he has a verdict for the difference amounting to $259.32, which we are asked to set aside for several reasons:

1. That the verdict in favor of Amy L. White is contrary to the weight of the evidence.

2. The court erred in permitting the terms of the written guarantee to be modified by parol evidence.

3. The court erred in refusing to strike out the defense of fraud.

4. The court erred in failing to define fraud and in submitting to the jury the question of whether or not the alleged oral promise had been breached.

5. The court erred in refusing to define legal fraud.

6. The verdict on the counter-claim is against the weight of evidence.

7. The verdict is excessive.

Our examination of the proofs and a consideration of the grounds brings us to the conclusion that no prejudicial error was committed by the trial court, that the finding of the jury was not against the weight of the evidence and that the verdict is not excessive.

The rule will therefore be discharged.


text:
    JOHN J. TOMLIN v. PEOPLES RAPID TRANSIT COMPANY. OSCAR RAYER v. PEOPLES RAPID TRANSIT COMPANY. WILLIAM J. KELLEY, Sr., ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF WILLIAM J. KELLEY, Jr., DECEASED v. PEOPLES RAPID TRANSIT COMPANY. THOMAS DEERING v. PEOPLES RAPID TRANSIT COMPANY. MARY KLEINZ, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MARIE P. WALZ, v. PEOPLES RAPID TRANSIT COMPANY.
    Decided January 14, 1930.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    Bor the rule, Frank T. Lloyd, Jr.

    Contra, William C. French and William I. Gaffr'ison.

   Pee Curiam.

These cases were all tried together. They are based upon an accident occurring shortly after eight o’clock in the evening of April 9th, 1928; the accident being a collision between an automobile driven by the plaintiff Tomlin and occupied by the other plaintiffs, or their decedents, and a motor bus belonging to and operated by the defendant company. The trial resulted in a verdict in favor of each of the plaintiffs. The basis of their claim for compensation was that as the automobile in which they were riding was traveling along the White Horse Pike toward Camden, and coming from Atlantic City, and on the right-hand side of the road, the driver of the bus, which was traveling in the opposite direction, suddenly swerved it across the highway and, as a result, collided with the automobile in which the plaintiffs were riding while it was still on the right side of the road.

The case submitted by the defendant was that the accident did not happen in the way just described, but that the collision was caused by the carelessness of the plaintiff Tomlin, who was driving rapidly along the road, and who attempted to pass another automobile which was in front of him and proceeding in the same direction, and in making this attempt suddenly swerved over to the wrong side of the road, apparently not observing the bus, and colliding with it, the collision occurring when the bus was on its right side of the road.

Our examination of the testimony leads us to the conclusion that the proofs submitted by the defendant so far outweighed those offered on behalf of the plaintiffs as to make it apparent that the verdicts were based not on the proofs but on the mistake or prejudice of the jury.

Eor this reason we conclude that the rules to show cause should, each of them, be made absolute.


text:
    ELIZABETH EXNER ET AL., PLAINTIFFS, v. NEVIN BUS LINES, DEFENDANT.
    Submitted May term, 1929
    Decided January 13, 1930.

      ■ Before Gummeee, Ohiee Justice, and Justices Kalisoh and Campbell.
    Eor the rule, Harry Heher.

    Contra, David Frankel.

   Pee Cubiam.

The plaintiffs were the occupants of a Eord sedan and were proceeding from Princeton toward Lawreneeville on the Lincoln Highway.

A bus of the defendant was proceeding in the opposite direction. The two vehicles came into collision and the plaintiffs’ car was upset and damaged and Elizabeth Exner and Henry Exner, heir husband, were injured.

A trial of an action between the parties resulted in the following verdicts:

Henry Exner, for damage to car, $175.
Elizabeth Exner, $5,000, and Henry Exner, $25,000.

We are asked to set these verdicts aside upon the ground that they are against the weight of the evidence and because they are the result of passion and prejudice because during the trial a witness of the defendant was charged with perjury, arrested and let to bail.

Our consideration of the proofs leads us to the conclusion that the verdicts are not against the weight of the evidence and are not the products of bias or prejudice.

The remaining ground is that the verdicts in favor of Henry Exner and his wife, Elizabeth Exner, are excessive.

We conclude that they are and that of Henry Exner should be reduced to $15,000 and that of Elizabeth Exner to $3,000, and that if within thirty days from the entry of a rule hereunder they enter their acceptance of these reduced amounts, the present rule shall he discharged, otherwise it shall become absolute and a venwe de novo shall issue for the purpose of a retrial of all the issues.


text:
    NICK TORENO, PLAINTIFF, v. W. A. FERGUSON'S SONS, DEFENDANTS.
    Decided January 14, 1930.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, John L. Griggs.

      Contra, Elmer Friedbauer.

   Pee Cubiam.

The plaintiff brought this action to recover compensation for personal injuries received by him in a collision between a truck, in which he was riding, and which belonged to his employer, Briscow & Company, and another truck belonging to the defendant. The trial resulted in a verdict in his favor, the jury awarding him, as compensation for his injuries, the sum of $2,150.

The defendant now seeks to have this verdict set aside, first, because, as counsel alleges, it is contrary to the clear weight of the evidence on the question of the negligence of the defendant’s driver, as a producing cause of the collision; and second, because the award is excessive. Our examination and consideration of the proofs submitted at the trial leads us to the conclusion that neither one of these contentions is meritorious.

The rule to show cause will be discharged.


author: Per Curiam.

text:
    CHARLES REED, PLAINTIFF, v. FRANK N. WILLIAMS, DEFENDANT.
    Decided January 14, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, William K. Flanagan.

    Contra, Lester C.. Leonard.

   Per Curiam.

This action was brought by the plaintiff to recover compensation for personal injuries received by himself, and for the practical destruction of his horse, resulting from being run down by an automobile of the defendant, which the latter was driving. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $5,000, and we are now asked to set the verdict aside first because the proofs did not justify a finding that the accident was the result of carelessness on the part of the defendant, and second, because the verdict is excessive.

Our examination of the proofs satisfies us that neither of these contentions have substantial merit.

■ We conclude, therefore, that the rule to show cause should be discharged.


text:
    JANNETTE MARCONI, ADMINISTRATRIX AD PROSEQUENDUM OF MICHAEL MARCONI, DECEASED, PLAINTIFF, v. RAY MacELLIOTT ET. AL., DEFENDANTS.
    Submitted May term, 1929
    Decided January 13, 1930.
    Before Gummere, Chubb Justice, and Justices Kalisch and Campbell.
    For the rule, J. Victor D’Aloia.

      Contra, John W. Bishop, Jr., and William P. Braun.

   Per Curiam.

Plaintiffs intestate was struck down and injured on Market street, Newark, and died as a result of the injuries so received. He was passing from one side to the other of Market street and was struck first by the car of MacElliot and thrown in front of the truck of the other defendant, Aladdin Trucking Company.

An action for damages, under the Death act, was brought by decedent’s administratrix ad pposequendum and a trial of such action resulted in a verdict for the defendants. This we are asked to set aside—•

1. Because it is against the weight of the evidence. This we do not find to be so.

2. No contributory negligence was proved. This we do not find to be so.

3. The court erred iu refusing to charge section 4, paragraph 2 of the Traffic act (Pamph. L. 1915, ch. 156) relating to the passing of an overtaken vehicle on the left.

There was no error in refusing to so charge because the provision in question had no application to- the facts and situation presented by the present case.

4. That the jurors mistook or misunderstood Exhibit P-1, being a diagram of the place of the happening.

In support of this ground or reason depositions of eleven of the jurors were taken and presented on this rule.

This will not avail the holder of this rule. A litigant may not go behind the jury room door to establish how a verdict was arrived at. Lindauer v. Teeter, 41 N. J. L. 255, 259; Queen v. Jennings, 93 Id. 353; Bragg v. King, 104 Id. 4.

The rule will therefore be discharged.


author: Pee Cueiam.

text:
    SAVERIA WINDISCH ET AL., PLAINTIFFS, v. COMERFORD CONSTRUCTION COMPANY, INCORPORATED, DEFENDANT.
    Submitted May term, 1929
    Decided January 13, 1930.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Howard L. Miller.

      Contra, William C. French and Philip Wendlcos.

   Pee Cueiam.

Defendants were undertaking a repair and reconstruction of the White Horse Pike from Egg Harbor City to Pleasant-ville, in Atlantic county. On July 15th, 1926, while the work was still incomplete, the plaintiff attempted to cross the pike and in doing so stepped in a hole which was filled with water. She fell and was injured and has a verdict for $5,000, which, for three reasons, we are asked to set aside—■ 1. Because the trial court erred in refusing to nonsuit the plaintiff because of her alleged contributory negligence and further that such verdict is against the weight of the evidence.

The question of contributory negligence, under the facts and circumstances shown in this case, was properly submitted to the jury; and we find the proofs fully justified a finding in favor of the plaintiff not only upon this point but upon all the issues presented.

2. Because the verdict is excessive.

This we find to be not so.

3. Because no verdict was found in favor of the husband.

Of this the defendant may not complain; and it affords no ground at its hands upon which the verdict in favor of the wife may be set aside. Dunphy v. Thompson. 3 N. J. Mis. R. 1086.

The rule will be discharged.


author: .Pee Cueiam.

text:
    HAROLD THOMPSON ET AL., PLAINTIFFS, v. LIONEL W. LANCASTER, DEFENDANT.
    Decided January 14, 1930.

      Before Gummere, Chief Justice, and Justices Kaltsch and Campbell.
    Eor the rule, Lester C. Leonard.

    Contra, Theodore J. Labrecque.

   .Pee Cueiam.

This suit was brought by a boy thirteen years old to recover compensation for injuries received by him through being struck by an automobile driven by the defendant, while this plaintiff was riding his bicycle along Front street, in the town of Red Bank. The mother joined as a plaintiff to recover compensation for the expenses to which she has been put because of her son’s injuries, and the loss of the boy’s wages as a caddie on the golf course adjacent to Red Bank. The trial resulted in a verdict in favor of both plaintiffs, the jury awarding the boy $200 and his mother $500.

The first contention made on behalf of the defendant is that the verdict is contrary to the evidence, so far as the question of the negligence of the defendant is concerned; and also on the finding of lack of contributory negligence on the part of the boy. In our opinion, the testimony submitted at the trial justified the jury in their finding on both of these matters.

It is further claimed that the award to 'the mother is excessive. We find nothing in the proofs to justify this contention.

Lastly, it is contended that the court erred in refusing to charge the jury that “the defendant in this action had a right to assume that all those traveling on the highway would travel thereon in accordance with the-requirements of the Traffic act of this state;” this instruction being requested by the defendant.

Our examination of the record discloses no refusal to charge this request, but assuming the failure to do so is tantamount to a refusal, such refusal was justified for the reason that the request contained no recital of any provision of the Traffic act to which defendant desired the court to direct the jury’s attention. When counsel desires an instruction to the jury as to the effect of a statutory provision, the request should recite the very provision of the statute to which counsel desires the attention of the jury to be directed.

For the reasons indicated, we conclude that the rule to show cause should be discharged.


text:
    JACOB HOLDMAN, RESPONDENT, v. MICHAEL J. TANSEY, APPELLANT.
    Decided January 14, 1930.
    Before G-ummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the appellant, Michael J. Tansey, pro se.

    For the respondent, Louis Spiegel.

   Per Curiam.

The plaintiff 'brought suit to recover the amount claimed to be due to him from the defendant upon a promissory note for $1,000, dated October 25th, 1928, and payable thirty days after date, and also upon a check for $250, dated upon the same day. Both of these instruments were signed by the defendant and were payable to the plaintiff. The defendant filed an answer stating, with relation to the note, that “plaintiff charged defendant and defendant was compelled to pay a bonus and interest rate for the use and loan of said sum of $1,000, which was usurious and illegal.” He also set up the same defense and in the same language as to the check given by him to the plaintiff. Plaintiff thereupon moved to strike out this answer, and the court, after hearing argument on the motion, directed the answer to be stricken out as sham, and that judgment be entered for the plaintiff for the full amount of his claim. The defendant has appealed from the judgment entered in accordance with this direction.

In our opinion the action of the court in striking out the answer in this case was proper. It is entirely settled that in setting up usury as a defense in an action at law the defendant must set out the particular facts and circumstances of the supposed usurious agreement, so that the. court may see that the agreement was in violation of the statute. Taylor v. Morris, 22 N. J. Eq. 611; Crane v. Homeopathic Mutual Life Insurance Co., 27 Id. 484. The allegations of the present answer do not, in the remotest way, suggest the facts or the circumstances intended to be proved, and the plaintiff is in no way apprised by the answer of the facts necessary to be met by him in resisting the defense.

Eor the reason indicated the judgment under review will be affirmed.


text:
    ANNA ZIEFERT, PLAINTIFF v. WILLIAM E. McGEE, DEFENDANTS.
    Decided January 14, 1930.
    Before Gummere, Chief Justice, and Justices Kaliscii and Campbell.
    For the rule, Alexander Simpson.

      Contra, Joseph Couli.

   Per Curiam.

Plaintiff was struck and severely injured by an automobile of the defendant.

She has a verdict of $500 which she asks us to set aside as inadequate.

We find it to be clearly inadequate, and the rule will therefore be made absolute and a venire de novo will issue for the purpose of retrying all the issues.


author: Habby J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    BESSIE ENGEL, PETITIONER, v. ACME THEATRE CORPORATION, RESPONDENT.
   1. That on November 10th, 1928, the petitioner was employed by the respondent as an usher at a weekly wage of $10; that on the date last above mentioned and while engaged in the duties of her employment at the theatre of the said respondent on Broad street, Newark, New Jersey, she struck her right knee against one of the seats in the said theatre, sustaining an injury thereto; that she continued working but received some medical treatment for her injury from Dr. Max E. Stern, a physician of her own choosing and received two or three treatments'per week from him up to and including November 30th, 1928; that immediately upon the respondent’s learning of the said accident and on or about December 1st, 1928, it sent her for treatment to Dr. Irving M. Yanderhoff, who strapped the injured knee and advised the said petitioner that she must go to a hospital or must remain inactive and rest in bed at her home in order that the injury might be cured, but the said petitioner refused to take either of the courses mentioned; that she continued her treatments with Dr. Yanderhoff and on or about February 5th, 1929, he applied a plaster cast to the injured leg, again advising the said petitioner that she must quit work and go to a hospital; that she again refused to follow this direction but kept the plaster cast on her leg until February 9th, 1929, when she again appeared at the doctor’s office, when it was discovered that the cast had been cut across knee and broken in the back whereupon the plaster cast was removed and a knee-cap was substituted therefor; that the said petitioner continued working all of the time from the date of the accident until the date of the hearing above mentioned with the exception of two weeks beginning on February oth and extending to February 19th, 1929; that the said petitioner has consistently refused to go to a hospital or remain off her injured leg despite the advice of the respondent’s physician as well as her own physician and reiterated that refusal upon the hearing; that despite the fact that all of the physicians who testified on both sides of the case testified that that is the only treatment indicated for an injury such as has been sustained by the said petitioner and which would, if followed, greatly reduce the permanent disability entailed by the injuries, if it would not entirely cure it; that the plaintiff’s own physician, Dr. Stern, estimates that the said petitioner has lost thirty per cent, of the permanent usefulness of her said right leg and Dr. Edward W. Markens, another physician who testified on her behalf, estimates that the present permanent disability is forty per cent., but that if the treatment above mentioned had been followed by the petitioner, the disability would not exceed twenty-five per cent.; that Dr. Yanderhoff, the physician called by the respondent, estimates the permanent loss at fifteen per cent.; that, in my opinion, the petitioner has sustained a permanent loss of the usefulness of her said right leg equal to twenty-five per cent, thereof, for which she is entitled to receive from the said respondent compensation at the rate of $8 per week; that for the temporary disability entailed by the said injury, the said petitioner is entitled to receive compensation at the rate of $8 per week for one week; that the said respondent shall also pay to Dr. Max E. Stern for the treatments rendered by him to the said petitioner from November 13th to November 30th, 1928, the sum of $40, also the sum of $25 for his attendance at the hearing hereof, and shall also pay to Dr. Edward W. Martens the sum of $50 for his attendance upon the hearing.

Hi $ $ * * * *

Habby J. Goas, Deputy Commissioner.


author: Bentley, Y. C.

text:
    Emanuel Spellazzi, complainant, v. Munziate Cammarata Spallina (sometimes known as Nanziata Cammarata) and Dominick Spallina, defendants.
    [Decided February 7th, 1930.]

      Messrs. Feder & Binder, for the complainant.

      Mr. Alexander M. MacLeod, for the defendants.
   Bentley, Y. C.

In 1923 the complainant was injured by working upon a building on land the title to which he charges was held by the defendant’s wife in order that it might be kept beyond the reach of creditors of the husband but which was equitably the property of the defendant husband. In 1924 an award was made under the Workmen’s Compensation act in favor of the complainant as compensation for such injury.

The defendant wife appears to have continued to use her maiden name after her marriage in accordance with what is said to be a custom in the part of Italy from which she emigrated to this country. The defendants are people of Italian birth who have not had the benefit of our American educational system. They, like the complainant, are people in very moderate circumstances. They appear to have eked out an existence by employment at odd jobs, the running of small stores and perhaps employment in an occupation that has sprung up in this country within the last nine years. In 1920 the wife took title in her maiden name to a piece of property in Passaic county upon which the defendants established their residence and where they rented out a building in the nature of a garage with an apartment on the second floor that at one time at least was used as a room for the playing of billiards or pool.

Prom the time of the acquisition of this property the husband undoubtedly assumed the management of it, including the collection of rent and the necessary repairs. In negotiations with a bank for a loan to be secured by a mortgage upon the premises under discussion, the husband seems to have made all of the arrangements and to have signed his wife’s name to two application blanks without in any way indicating that he did so as agent or attorney for her.

Sometime prior to 1917, the husband conducted a business in partnership with another man and they appear to have fallen out at or about the time mentioned, so that there was a dissolution of the firm. There has been a great deal of confused and very unsatisfactory testimony as to whether or not the husband and former partner ever completely settled up their financial differences. The impression I gain from listening to the former partner, the husband and the other witness on this point leads me to feel that it would be a most unsafe thing to predicate any judgment upon their testimony.

The complainant bases his cause upon two theories, the first being that the property which is the subject of this bill was purchased with' money which belonged to the husband but the title taken in the name of the wife to defeat the claim of an existing creditor. The second theory is that the title was taken in the name of the wife although purchased with the money of the husband, not to defeat any particular creditor but to hinder or delay subsequent creditors generally. As already said, I cannot bring myself to a reliance upon the testimony of any of the witnesses concerning the alleged claim of the former partner of the husband. This seems to cut the ground from under the feet of the complainant so far as the first theory of his bill is concerned.

As I understand the rule laid down in Washington National Bank v. Beatty, 77 N. J. Eq. 252, a subsequent creditor can defeat a voluntary conveyance if he can prove that there was a fraudulent intent to defraud any creditor at the time the conveyance is made; but to do so he must legally prove the truth and legality of the claim of the other creditor in his suit to set aside the conveyance. That, it seems to me, the complainant has failed to do in the ease at bar. The former partner, who is the only one who has testified in favor of his claim, appears to be influenced or biased against the husband and is contradicted, not only by the husband but by two other witnesses as well who have not been shown to have any interest in this ease. Of course, I have not lost sight of the fact that the present transaction is not that of a conveyance by the husband to his wife because he never had title to the property conveyed to her, but it is not denied that relief would be given to the complainant if he had proved an existing indebtedness at the time she took title which had been paid for by her husband, and see Besson v. Eveland, 26 N. J. Eq. 468.

Erom the other aspect of the complainant’s case, however, it seems to me that he must succeed. It is common knowledge that among people of the class to which these defendants belong, the wife very frequently takes charge of the family finances brought in by the husband and that title to the family property is taken in her name. This young woman attempts to testify that she paid for the property in question out of very meagre income she had received, in part, I think, for wages while employed as a factory hand, in part from moneys she earned as a nurse-maid and in part from a small inheritance (which, as I recall it, was in the neighborhood of $400) received from the estate of some relative who died in Italy. Being unable to show any corroborating proof except the former statement in the deed through which the title came to her, she was compelled by cross-examining counsel to produce her pass book for a savings account in a bank in the city of Passaic, which shows that she opened the account in February, 1917, which has steadily grown in balance until on October 26th, 1928, it had increased to a balance in her favor in the amount of $4,211.91. On that day, which was very shortly after the first day of this final hearing, and I think within the same week, she withdrew every cent thereof, closing out the account. Furthermore, during her cross-examination she was pressed to disclose how she had made payment for the conveyance which is under attack, and when she said that the consideration was paid in cash she was asked where that cash was kept before it was delivered to her grantor, and this woman who had kept a bank account for three years to which she had constantly added up to that time without any withdrawals, replied that she kept this large sum of money, which amounted to about $1,400, in a trunk in her home. This seems to me incredible. Thrifty people of her class who come to this country at an early age and learn of our banking institutions, my experience has shown, abandon the primitive methods of keeping cash in their immediate possession and do just what this young woman was doing at that time, namely, deposit it in a bank where it is beyond the reach of fire, thieves, or other probable danger.

In addition, the bearing, demeanor, and manner of delivering their testimony stamp both of,these defendants as people who do not inspire confidence. There was the familiar air of untruthfulness about them. Whenever it became necessary through the exigencies of other developments, they did not hesitate to change their testimony during the sessions of the protracted final hearing which was broken by a number of continuances from day to day, which would give them an opportunity to confer and take stock of their previous testimony. Their dealing with the wife’s savings account was not such as ought to be expected, if the parties were telling the truth and relying upon an honest defense. Their hurried and surreptitious withdrawal of the entire balance of an account which had been maintained for over ten years, after cross-examining counsel had alarmed them by the search of his questions, speaks for itself. His questioning had warned them that he was going to set afoot an inquiry which would have (disclosed in this bank account sufficient moneys to have satisfied the award to the complainant if his bill was successfully prosecuted. All these badges of fraud seem to me to point to but one conclusion, namely, that the defendants were conscious of their guilt and feared the result of its discovery.

Because of these facts and circumstances I feel compelled to advise a decree in accordance with the prayer of the bill. In addition the decree should also award to the complainant the relief he seeks und.er the order to show cause allowed during the final hearing.


author: Buchanan, V. C.

text:
    Samuel Lifschitz et al., complainants, v. Vorclone Corporation et al., defendants.
    [Decided February 13th, 1930.]

      Mr. Morris Both, for the complainants.

      Messrs. Green A Green, for the defendants.
   Buchanan, V. C.

Complainants are owners of land and building leased by them to Brunswick Cleaners and Dyers Company. The latter purchased some machines from defendant Yorclone Company (a foreign corporation), on conditional sale contracts which were filed according to section 6 of the Uniform Conditional Sales act (P. L. 1919 p. 461), but the statement “describing the realty,” required by the third clause in section 7 of the statute was not filed. The Brunswick' company defaulted .in its payments and the Yorclone company replevined the goods. The Brunswick company is in arrears for rent, and complainants filed their bill to restrain the Yorclone company and the sheriff from removing the machines, and an order to show cause was issued on application for pendente lite restraint.

On the proofs at the hearing of the order to show cause, it clearly appears that' the articles sought to be replevined are of three classes. (1) Some are not in anywise attached to the realty: as to these complainants are not entitled to restraint. (2) Some are tanks and pipes buried underground: as to these I think complainants are entitled to interim restraint. (3) The majority aré machines and motors resting on the floor, with screws through the feet into the floor to keep them steady; some have removable connections to steam pipes which are a part of complainants’ realty (in order to lead steam into the machines); and there is some shafting-affixed to walls by screws to hold it steady.

Complainants rely on the third clause of section 7 of the act aforesaid, which reads as follows:

“As against the owner of realty the reservation of the property in. goods by a conditional seller shall be void when such goods are to be so affixed to the realty as to become part thereof, but to be severable without material injury to the freehold, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are to be affixed thereto, shall be filed before they are affixed, in the office where' a deed would be recorded or registered to affect such realty.”

The question is, are these goods “so affixed to the realty as to become part thereof?”

The statute does not define what constitutes such affixation, and the question seems res nova under the statute.

My conclusion is that these goods are not so affixed to the realty as to become part thereof. The fastenings are simply for convenience, were not intended to make them part of the realty, and do not do so in fact. Moreover they are clearly severable without material injury to the freehold, and hence complainants can suffer no irreparable damage.

The pandante lile restraint will be granted as to tanks and pipes buried underground, but will be denied (and the interim restraint discharged) as to the other articles.

No costs to either party.


text:
    West Jersey Realty Company et al., complainants, v. Hyman Martin Construction Company, Incorporated, et al., defendants.
    [Decided February 18th, 1930.]

      Mr. Michael II. Feldman, for the complainants.

      Mr. Harry Phillipson and Mr. Samuel Koestler, for the defendants.
   Buchanan, V. C.

Complainant sues to foreclose a mortgage of $1,155. The proofs show it to be entitled to a decree for $1,553.31 with interest from March 1st, 1929, at six per cent., together with the taxed costs as on an uncontested case; that the second mortgagee is entitled to decree second in priority in the sum of $1,800 with interest at six per cent, from March 19th, 1929; that the surplus, if any remains, out of the proceeds of sale, after the payment of the two mortgages, should be held to await the determination of the mechanics’ lien suit at law filed by the defendant Tobias Grunt. In the event of the etsablishment of his lien claim, Grunt will be entitled to share equally in the surplus moneys with the Earber Brothers Company, which has already established its lien claim by judgment at law.

The defendant Tobias Grunt, having been unsuccessful in the issue raised by him, counsel fee of $125 will be allowed against him individually in favor of the second mortgagee. The amount of Earber Brothers’ lien judgment is $939.28 plus $58.72 costs, of which one-half is apportioned against the mortgaged premises in this suit.


author: Fallon, Y. C.

text:
    Maltese Holding Corporation, complainant, v. Ellen Crowley et al., defendants.
    [Decided February 18th, 1930.]

      Mr. Jacob Levey (Mr. Benjamin Nessanbaum, of counsel), for the complainant.

      Miss Lillian Clawans, for the defendant Ellen Crowley (Mr. Irving W. Teeple, of counsel), for the defendants.
   Fallon, Y. C.

My consideration of the matter sub judice actuates me in determining that the defense of usury urged by the defendant Ellen Crowley, as mortgagor, cannot prevail. A corrupt bargain to contravene the statute must be established in order to sustain a plea of usury. None such has been established herein. Withholding of a part of the loan as a bonus, without a previous agreement to that effect, does not constitute usury. The defense of usury must be strictly pleaded, and the answer must set out the particular facts and circumstances of the alleged usurious agreement. Dunlap v. Chenoweth, 88 N. J. Eq. 496, and cases therein cited. The proofs disclose that although the mortgage sought to be foreclosed and the bond accompanying same recite an obligation of the mortgagor to the mortgagee in the sum of $17,000, the actual amount advanced thereunder to the mortgagor was $13,600. For the latter mentioned sum the complainant is entitled to a decree herein. I am convinced that the instrument referred to as an estoppel agreement executed by the mortgagor was not proved to have been executed by her with full knowledge of the contents thereof. The mortgagor, as a witness, impressed me that the real purport of said instrument had not been made known to her and that she had not adequate business experience to warrant the court in assuming that she should be chargeable in law with knowledge of the purport thereof. I am also convinced that the alleged estoppel agreement was not a completed instrument in the manner in which it now appears when she executed same. It is clear to me that said instrument was materially altered subsequent to the signing thereof by the mortgagor. Furthermore, the person before whom she is alleged to have acknowledged the due execution of said instrument posed as an attorney-at-law of the State of New Jersey when he was not such in fact. .It was disclosed at the hearing herein that said person, Howard M. Hirschberg, who is described in the acknowledgment to said instrument as an attorney-at-law of New Jersey, had for a considerable time previous and subsequent thereto held himself out as an attorney-at-law of New Jersey, transacting business as such with many lawyers and others in Hudson and Essex county, with the result that he directly and indirectly was responsible for victimizing and defrauding a number of persons and corporations. At the time of the hearing it was made known to the court that said Hirschberg was a fugitive from justice. The complainant, as assignee of the mortgage sought to be foreclosed herein, cannot be afforded greater rights than its assignor. Equitable defenses which the mortgagor was warranted in interposing against the mortgagee inure to her benefit as against the assignee complainant herein. L am convinced that if the complainant had exercised reasonable precaution as to the bona fides of the mortgage in question and the rights of the mortgagee thereunder, it would have readily discovered the particulars of the transaction between the mortgagor and mortgagee, and the fact that the mortgagee had not advanced to the mortgagor the full amount of said mortgage. The proofs are conflicting as to the reasons why such sum was withheld by the mortgagee from the mortgagor. On the proofs herein it is manifest that the mortgagor is entitled to an allowance upon the mortgage in the proceedings herein of the sum of $3,400. I will advise a decree herein in favor of the complainant for the sum of $13,600, with interest at six per cent., the amount of which can be readily calculated by the solicitors for the respective parties. Ño costs or counsel fee will be allowed.


text:
    HEYWOOD M. PENN, PLAINTIFF-APPELLEE, v. RADIO DISTRIBUTING CORPORATION, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October 11, 1929
    Decided January 28, 1930
    Before Justices Paekee, Black and Bodjne.
    For the defendant-appellant, Milton M. Unger.

    For the plaintiff-appellee, Leber & Rubach.

   Pee Cueiam.

Plaintiff was the owner of No. 8 West Park street, Newark, New Jersey, and brought suit in the District Court for rent due July, 1928, reserved in a written lease, by which the premises were demised for a term of years to expire April 30th, 1930. The complaint also sounds for use and occupation, but the judgment was for the rent reserved.

The defendant was the assignee of the named lessee and had made sublettings of all parts of the demised premises for the term of the lease, save as to the third floor where the subtenants’ rights expired September 1st, 1928.

The landlord made repairs and alterations to the building without the consent of the defendant. The work, however, was done with the written consents of the subtenants, who have paid their rents and made no complaints. As a result of the alterations and repairs, access to the basement has been changed and the corridor thereto and the stairs leading to the second story have been made somewhat smaller.

At the trial before the District Court, no witnesses were called on behalf of the defendant. The defendant’s refusal to pay rent was predicated solely on the ground that there had been an eviction. The District Court held otherwise, and hence this appeal.

It appears from the record that -the defendant sought relief in the Court of Chancery, and that court held that the defendant’s rights under its lease were violated. It did, however, in a subsequent proceeding vacate the restraint to the extent of permitting the present action.

The appellant’s first point is that the action was for use and occupation and not for the reserved rent. We think the complaint in the District Court shows otherwise.

Of course the eviction of a tenant from the demised premises effects a suspension of the whole rent. Morris v. Kettle, 57 N. J. L. 218. The facts, however, upon which the defendant predicates its claim that there was an eviction are not presented by the record, and even though they were the findings of fact by the District Court judge are not subject to reversal here where there is evidence to support them. O’Neil v. Pearse, 87 Id. 382; 88 Id. 733. Further, a mere trespass does not constitute an eviction. Meeker v. Spalsbury, 66 Id. 60.

In the Meeker case, Mr. Justice Collins said: “The temporary obstruction, therefore, of the passageway to the Essex Hotel, recited in the case certified, could not constitute an eviction, even if the exclusive use of the passageway can be deemed a part of the demised premises.”

The record is entirely barren of any suggestion that the tenant was either injured or disturbed in his possession by any act of the landlord. This, after all, is the ancient test of an eviction. Morris v. Kettle, supra.

It is broadly stated in 36 Corp. Jur. 256, 257, that,a mere trespass not depriving the tenant of the use and enjoyment of the premises does not amount to an eviction. O’Neil v. Pearse, supra.

The judgment below will be affirmed.


author: Pek Cuktam.

text:
    GOLDSMITH, MYER & LOBDELL, INCORPORATED, PLAINTIFF-APPELLANT, v. PHILLIP GLADSTONE, DEFENDANT-RESPONDENT.
    Argued January 21, 1930
    Decided January 28, 1930.
    Before Justices Pakkek, Black and Bobine.
    Por the appellant, Pitney, Hardin & Skinner and Shelton Pitney and William H. Osborne, Jr.

    Por the respondent, Samuel H. Nelson.

   Pek Cuktam.

This suit was brought in the Second District Court of Newark to recover $109.50 damages by a broker growing out of an alleged oral contract made over the telephone. The state of demand alleges, that on July 12th, 1929, the defendant requested the plaintiff to find a purchaser and sell for him one hundred shares of stock of the American Insurance Company and seventy-two shares of the stock of the Piremans Insurance Company “at the market,” and to buy twenty-five shares of the common stock of the Chase National Bank “at the market.”

The case was tried by the judge without a jury resulting in a judgment for the defendant. The plaintiff appeals and files five specification of determinations, with respect to which the plaintiff is dissatisfied in point of law. They are all included in and may be considered under the first one, viz., the trial judge erred in determining, that the plaintiff had not sustained the burden of proof. With the conclusion of the trial judge we concur, because, the crux of the case involves simply a question of fact. There was evidence before the court on which the judgment rests. It may not be amiss, however, to point out, that in the state of the case sent up with the appeal in the printed book, Eichard S. 'Cohen, a salesman for the plaintiff, was called and testified to the alleged transaction and Walter Otto Donath, employed in the cashier’s department of the plaintiff, the latter’s testimony, however, is simply as to the quotations of the stock, which is not in controversy. The plaintiff then rested. The defendant, Phillip Gladstone, testified on his own behalf, flatly contradicting the testimony given by the plaintiff’s witness Eichard S. Cohen, as to the alleged contract. Then the plaintiff in rebuttal called as a witness James S. Eyre, who said he was in the room when the telephone girl called “Mr. Cohen, Mr. Gladstone is on the wire.” He also testified that he did not know that Mr. Gladstone was speaking, at the other end of the wire, that he did not hear Gladstone’s voice. He concluded that it was Mr. Gladstone on the wire simply because the telephone girl called “Mr. Cohen, Mr. Gladstone is on the wire.” This .testimony was pure hearsay. The trial judge believed the testimony of the defendant and gave judgment accordingly. The judgment of the Second District Court of Newark is therefore affirmed, with costs.


author: Prr Curiam.

text:
    TOWN OF WEST NEW YORK ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, AND PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION, DEFENDANTS. TOWNSHIP OF WEEHAWKEN ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, AND PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION, DEFENDANTS.
    Argued January 23, 1930
    Decided February 4, 1930.
    Before Justices Parker, Black and Bodike.
    Eor the prosecutors in No. 230, J. Emil Walscheid.

    Eor the prosecutors in No. 242, William G. Asper.

    Eor the board of public utility commissioners, John 0. Bigelow.

    Eor Public Service Co-ordinated Transport, William H. Speer.

   Prr Curiam.

The attack is upon a change of fares posted by Public Service Co-ordinated Transport pursuant to the power to increase rates in the first instance, recognized by paragraph (h) of section 17 of the Public Utility act of 1911 {Pamph. L., p. 378), as amended by Pamph. L. 1921, p. 165. The previous rate was a straight fare of five cents. The new rate, filed with the board', effective January 1st, 1930, reads: “Ten tokens for fifty cents, each token to be good where a five cents is now charged, or ten cents cash fare where a five cent fare is now charged.”

Stated in another way, the casual rider paying in cash will be charged ten cents instead of five, as formerly; the rider buying tokens rides for five cents as formerly, except that like the purchase of a'ten-trip ticket on a railroad, he pays for ten rides at the outset.

The new rate was filed on December 9th, 1929. On December 14th Mr. Justice Kalisch made a rule to show cause in each case, returnable before himself on the 21st, why a writ of certiorari should not be allowed to review, in one case,, the “action” of the board in acceding to the increase; in .the other, to review “a certain order in the form of a letter” permitting the increase. On the argument of these rules on December 21st, he continued them to the regular term of this court, January 21st, 1930. No stay had been- ordered,, and therefore the new rate went into effect on January 1st, 1930, and had been in operation for three weeks when the cases came on for argument.

It is, to say the.least, doubtful whether the board has made any order that this court can properly lay hold of by a writ of certiorari. As we read the documents, no “order” has been made. The utility presented a petition, somewhat voluminous, the main point of which was the claim that it was, and long had been, losing money steadily at the flat five-cent rate; that some relief was essential, and proposing by way of experiment for a reasonable period to raise the single fare to ten cents but sell twenty tokens for a dollar. The board replied expressing its willingness to hold its hand for an experimental period provided the utility modify the proposed new rate to the extent of selling ten tokens for fifty cents instead of requiring the purchase of twenty in order tO' obtain what may be called the commutation rate. To this the utility acceded, and the rate was tiled accordingly.

The stress of the argument for the prosecutors seems to be on the point that there was no “hearing.” But under the act, none is required in the present status of affairs. Of course it is true that under section 16 the board may fix rates, after hearing, by order, upon notice; and as is well known, that is often done. But on the other hand, the utility may in the first instance fix its own rates. If required to file them, it must do so, section 16 (d); and, as tersely and accurately stated in the brief for one of the prosecutors, “the board may either (a) suspend the operation of the rates for not more than three months, and investigate (b) the board may remain quiescent and do nothing about it. If the latter course is pursued, the change of rates goes into effect automatically.” To which may be added (c) the board may investigate without suspending.

The second situation, as we view the matter, exists in this case. A new rate is posted, and the board “remains quiescent and does nothing about it” at this time. That is its indubitable right under the statute.

The fact that there were some preliminaries savoring of negotiation, puts no different face on the situation. This precise method was pursued, and approved, in O’Brien v. Board, 92 N. J. L. 44 (at p. 47); affirmed, 587. Moreover, the present status is altogether experimental and probably temporary. Any municipality, or any citizen, has the right to complain and ask for a hearing; the board itself may intervene at any time and order a hearing with or within ad interim suspension of the rate. But at the present stage it seems to have done nothing amenable to a writ of certiorari; certainly in our own view, nothing to call for allowance of such a writ.

Prosecutor township of Weehawken, after the argument, filed what is entitled a “reply brief” in which for the first time apparently it is suggested that Pamph. L. 1928, p. 112, a supplement to the Utilities act, is unconstitutional because its object is not expressed in its title, and for perhaps other reasons. We are unable to perceive that the validity of the 1928 act has any relevancy to the question whether the inaction of the board touching a posted increase in rates of a bus line requires our intervention at this time by certiorari.

The rule to show cause will be discharged, with costs.


author: Case, J.

text:
    JOHN GALGANSKI AND FRANCISZKA GALGANSKI, PLAINTIFFS, v. CHARLES ANDRYSIAK, MICHAEL ANDRYSIAK AND STANLEY ANDRYSIAK, DEFENDANTS.
    Decided February 13, 1930.
    Eor the plaintiffs, Weltcheh & Weltcheh.

    For the defendants, William P. Braun.

   The opinion of the court was delivered by

Case, J.

Defendants’ attorney served a demand for a bill of particulars on plaintiffs’ attorney, and the latter at the time agreed to make reply thereto; later plaintiffs’ attorney refused to render the bill of particulars upon the ground that defendants’ answer was filed prior to the serving of the demand and that, under the rules and eases, the demand was therefore untimely; whereupon defendants’ attorney, on notice, applied for an order directing that the particulars be furnished.

The action sounds in tort. Hopper v. Gillett, 6 N. J. Mis. R. 63, distinguishes between contract cases, which it determines to be largely, if not entirely, regulated by the statute, and tort cases, which it declares are controlled by the common law. In that case, sounding in tort, a bill of particulars was ordered even though answer had been filed, but the demand was made before answering and plaintiffs had stipulated in open court that the filing of an answer should not operate as a waiver of defendant’s right, if any, to apply for further answers to the demands.

It is said in Arch. Pr. 221 that the obtaining of a bill of particulars by the defendant “is usually done before plea pleaded although it is discretionary with the judge to make an order at any time before the trial, whether the application be made by the defendant or plaintiff.” Tidd Pr. says (at p. 596), “the summons for particulars, however, is usually taken out after appearance and declaration and before plea,” and (at p. 597), “in actions for wrongs, the injury complained of is in general stated in the declaration, and therefore, in such actions, it is not usual to make an order for the particulars; but the circumstances may occur which render it necessary,” and, further, “the granting of an order of particulars is considered as a matter of favor.” The gist of which is that under the practice there outlined bills of particulars were less usual in cases of tort than of contract, and in either the allowance was ordinarily before answer filed and was discretionary. So far as I am aware the same practice maintains to-day with respect to time of allowance and the discretionary phase thereof.

I apprehend that for special and satisfactory reason a bill of particulars in tort cases could be ordered after answer filed; but no reason is now presented other than that the defendants seek the information and the plaintiffs’ attorney promised to give it. Had the undertaking of plaintiffs’ attorney misled the defendants into taking a position they otherwise would not have assumed I would have considered that a special reason; but the defendants had already filed their answer when they made demand for the bill of particulars and they received the assurance with respect to the same. The defendants do not appear to be affected adversely. To countenance as regular and ordinary the making o'f such demand after answer filed would be, I think, to recognize a change in the practice; and I am not disposed to do that without a more complete and exhaustive argument than was made on the hearing of the application.

The order is denied.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. CHARLES OLIVER, PLAINTIFF IN ERROR.
    Decided February 18, 1930.
    Before Gummeke, Chiee Justice, and Justices Kalisch and Campbell.
    For the plaintiff in error, Augustus 8. Dreier.

    For the defendant in error, Abe J. David (Walter 0. Tenny, of counsel).
   Pee Cueiam.

The plaintiff in error was convicted in the Union County General Quarter Sessions Court on an indictment charging him with manslaughter. The crime grew out of the reckless driving of an automobile by the plaintiff in error on a public highway, causing the death of one Edwin Fitzpatrick.

The case is before us on strict writ of error and bills of exceptions and under the one hundred and thirty-sixth section of the Criminal Procedure act.

There are eleven assignments of errors and the same number of reasons for reversal.

Counsel of plaintiff in error, in his brief, says: “All these reasons are relied upon but for tile purpose of argument they may be conveniently grouped under two heads: (1) State did not have a case on which a verdict of guilty could bo legally predicated. (2) Errors of the court.”

Under the caption “state did not have a case,” it is argued on behalf of the plaintiff in error that there was no proof of criminal negligence to he submitted to the jury.

After the state rested, counsel of plaintiff in error asked for a direction of a verdict upon the ground that the proof on part of the state did not tend to establish that the death of the decedent was caused by the plaintiff in error as a result of his resckless disregard of human life, in the operation of the automobile, which request for the direction of a verdict was refu'sed by the trial judge and an exception was taken to such refusal.

No testimony was offered on behalf of the plaintiff in error, and the case was submitted to the jury on the testimony adduced by the state.

We think, after a careful examination of the testimony, that there was proof tending to establish that the plaintiff in error was operating his automobile along the public road under such physical conditions and circumstances, and in such a manner, from which a jury might reasonably draw the inference that he was driving his automobile with a reckless disregard of human life.

The record discloses that the plaintiff in error has only one arm. It further appeared from the testimony of two physicians that he was intoxicated. There was also testimony that he was driving his automobile along the public road at a speed of more than twenty-five miles an hour, that it was dark and that his automobile crashed headlong into decedent’s motorcycle, and with such force as to throw the decedent high up into the air, inflicting fatal injuries of which the deceased died within twenty-four hours.

We think, therefore, that the trial judge was fully warranted in refusing to take the ease from the consideration of the jury. State v. Fairbrothers, 99 N. J. L. 295.

We cannot help observing here, that a man with one arm, in a state of intoxication, propelling an automobile along a public and frequented road at a speed of more than twenty-five miles an hour, is, manifestly, a menace to life and limb.

As has been previously mentioned there are eleven assignments of errors and the same number of reasons for reversal. We look in vain, however, under caption two of the brief of plaintiff in error, entitled: “Errors of the Court,” for any assignment or specification of cause for reversal that points out intelligently the specific error in the charge of the trial judge or in the admission or rejection of testimony.

We have examined the assignments of errors and specification of causes for reversal, however, and find no substance in them.

The judgment is affirmed.


author: Pee Cttetam.

text:
    ALFRED ARMENT, PLAINTIFF-RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Decided February 18, 1930.
    Before Justices Tkenchakd, Kalisch and Lloyd.
    Eor the appellant, Perkins & Drewen.

    Eor the respondent, Pesm & Pesin (Samuel Pesm> of counsel).
   Pee Cttetam.

There was a judgment rendered in the First District Court of Jersey City, by the trial judge, sitting without a jury, in favor of the plaintiff below, and against the defendant below, for the sum of $500.

The appeal is before us upon an agreement between the attorneys of the respective litigants, submitting the minutes and proceedings of the trial of the case, as a true transcript of the minutes and proceedings thereof, and agreeing that the same shall be the state of case for appeal.

The plaintiff’s action was brought upon a policy of “group insurance” issued by the appellant company to the Bellman Brook Bleacherjr Company, insuring the lives of those employes of the bleachery company who qualified for the insurance, under the terms and conditions of the policy, and providing also for the payment of benefits to those of such qualified employes who qualified for the insurance, under the terms and conditions of the policy, and providing also for the payment of benefits to those of such qualified employes who should become wholly and permanently disabled while insured under the policy as employes of the bleachery company.

The policy in question contained the following clause: “New employes: Provided, however, that in no place shall any employe be insured hereunder unless and until he has completed an aggregate period of service of six months.”

The group policy was issued to the employer September 10th, 1920. At the time of the issuance of the group policy to the employer, the Bellman Brook Bleachery Company, the plaintiff was not one of its employes. The plaintiff became an employe on xlugust 30th, 1922, and his aggregate period of service ended January 30th, 1923, thus, it appears that the full period of the plaintiff’s service was five months. We think, therefore, that under the facts stated, the plaintiff was a new employe, and in order to have the benefit of the insurance, it was essential that he should be in the employ of the company for a period of service of six months. This he was, evidently, not.

It appears there was a certificate issued to the employer of the plaintiff for delivery to the latter upon his becoming assured and this certificate bears the date of January 30th, 1923, the date upon which he would have become insured under the group policy. The policy issued to the Bellman Brook Bleachery Company also contained the following clause: “Each new employe of the employer shall be insured hereunder on the basis upon which the insurance on the employes was originally granted, such insurance to take effect as and from six months from the time such new employe enters the employment of the employer and begins work.”

A plain reading of the policy can lead to no other conclusion than that the basis upon which the insurance was originally granted was that the employes be actually at work on the date when the policy became effective. As to those employes who were then absent, they were to receive the benefit of the insurance after their return to work in good health.

As has already been pointed out, plaintiff’s employment began August 30th, 1922, and from the testimony offered in his behalf it appears that on January 30th, 1923, he became completely incapacitated for any employment whatever, but, nevertheless, he was carried on the books of the company and received from his employer payments of moneys for several months subsequent to his becoming incapacitated, and it is to be gleaned from the testimony that the amounts so paid him were equal to the wages which he had been receiving before he became incapacitated.

Eor the respondent, the contention is, that by reason of his being carried on the books of his employer, his six months period was completed on Eebruary 28th, 1923, and that the policy became effective as to him. This would have been so if he had been actually working at that time. He left on January 30th, on the ground that he was incapacitated, and he never returned to work again. We cannot, without distorting the plain meaning of the provision in the policy declaring, “that in no case shall any employe be insured hereunder, unless and until he has completed an aggregate period of service of six months,” hold that under the evidence, the respondent had completed the six months service required by the policy.

It is further contended on behalf of the assured, that because of the delivery of the policy to him, dated the 28th day of Eebruary, 1923, which was after a six months period of employment, that that circumstance constituted a waiver of any right on part of the insurer to defeat payment of the said policy because the employe did not complete an aggregate period of six months. The policy delivered to the assured is a certificate of insurance. These certificates are not issued by the employer, but by the insurance company, and are distributed among the employer, manifestly, to be given by the latter to those employes who had actually served six months. The claim is now made that because the issuance of such certificate by the insurance company, on Eebruary 28th, 1923, without first inquiring whether the assured was still in the employ of the employer, constituted a waiver by the insurance company of enforcing any defense that it might have on the policy, because of the lack of length of actual service of the employe.

We think this view is palpably unsound. If the insurance company was misled by the fact that it appeared on the books of the employer, or by the representation of the employer that the employe was in actual service of employment six months, and whereas that was not the fact, then it seems to us, such misleading representation would clearly void the policy.

The result reached is, that the judgment of the District Court must be reversed, and judgment is directed to be entered in this court in favor of the defendant-appellant against the plaintiff-respondent.


text:
    LENA GIARDELLI AND JOSEPH I. GIARDELLI, PLAINTIFFS-RESPONDENTS, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT-APPELLANT.
    Decided February 18, 1930.
    Before Justices Trenchard, Kalisch and Lloyd.
    Eor the appellant, Henry H. Fryling.

    Eor the respondents, Breslin & Breslin (John J. Breslin, Jr., of counsel).
   Per Curiam.

Husband and wife, jointly, brought an action in the District Court, against the appellant, Public Service Railway Company, the wife suing to recover compensation for injuries sutsained by her on July 5th, 1927, while a passenger in an automobile owned and operated by her husband, which automobile came into collision with” a trolley car of the appellant company, through the alleged negligence of the latter’s servant —the husband suing for loss of consortium, and. for a reinbursement of moneys expended by him for doctors, nurses, medical services and surgical assistance made necessary for the cure of his wife by reason of his wife’s injuries.

The case was tried before the court, sitting with a jury and resulted in a verdict for the wife in the sum of $300, and in a verdict for the husband for $200.

Eour grounds are urged for a reversal of the judgment. We will proceed to consider them in their chronological order of presentation in the appellant’s brief.

First, it is contended in appellant’s brief, that the trial judge, over objection by appellant’s counsel, erroneously allowed the plaintiff-husband to testify to the amount of the bill alleged to have been paid by him, to the physician for medical treatment of the plaintiff-wife. There is no merit in this contention. Plaintiffs’ counsel asked the plaintiff-husband, the following questions: Q. “Did he [referring to the doctor], render a bill for his services? Mr. Freggens: I object unless he says yes or no. Q. Yes or no? Did he render a bill? A. Yes, sir. Q. Did you pay the bill? A. Yes, sir.” Then the following colloquy took place between the court and counsel. Defendant’s counsel said: “I object, of course, to this witness testifying to what the bill was. I have no objection to the fact that the bill was paid. The court: I will allow him to testify what he paid.” Defendant’s counsel took an exception. Plaintiffs’ counsel asked: “How much was the bill? and the answer was, a hundred and fifty dollars. Q. Have you the bill with you, the receipted bill? A. Yes.” The bill was offered in evidence by plaintiffs’ counsel, and the court sustained the defendant’s counsel’s objection.

The record further discloses that on cross-examination, defendant’s counsel elicited the fact that the husband paid *$150 for other services necessitated by his wife’s injuries.

Next, it is argued by counsel of appellant, that the trial judge erroneously refused to strike out all testimony relating to doctor bills, on the ground that there was no testimony as to their fairness or reasonableness.

The motion to strike out appears not to have been made until the end of the case. Furthermore, it appears that most of the testimony relating to the medical bills was elicited by appellant’s counsel on cross-examination. Moreover, it appears that appellant’s counsel offered no objections to any of the testimony concerning the medical bills at the time they were offered, upon the ground that it had not been established that the bills were fair and reasonable. The motion to strike out was properly refused.

The third ground urged for a reversal is, that the trial judge erroneously charged the jury as follows: “The plaintiff is entitled to such pecuniary loss as she has sustained, expenditures for her treatment and such sum as would compensate her for her injuries which she has sustained.” To this part of the charge, counsel for appellant took an exception. We think the exception taken is too broad. It is to be observed, that it nowhere points out the specific error in the charge. There was no testimony that the wife had expended any money for medical bills or otherwise, but there was evidence that the husband had. It is quite clear' to us, that if the court's attention had been directed, by counsel of appellant, that it was the husband, and not the wife who paid the medical bills for her treatment that the mistake would have been corrected. See Thibodeau v. Hamley, 95 N. J. L. 180. Furthermore, it appears from the testimony in the cause, that the female plaintiff, as a result of the collision, was painfully injured. According to her testimony she was in bed two weeks. She was confined to her home three and a half months, &c. The judgment in her favor was $300, a very moderate sum. The judgment in favor of the husband was for $200, and of course he was not only entitled to recover for moneys expended to cure his wife, but also for the loss of her services. It is, therefore, quite clear to us, that the appellant was not prejudicially injured upon the merits of the case.

Lastly, it is argued, on behalf of the appellant, that the trial judge erred in refusing to charge the jury, as follows: “When plaintiffs fail to produce their physician, there is a presumption that his testimony will not be favorable to them.” There is no such legal presumption. The trial judge was under no legal duty to charge the request.

Judgment is affrmed, with costs.


text:
    SUSAN R. FREEMAN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF EUGENE S. FREEMAN, DECEASED, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, INCORPORATED, DEFENDANT. MARTHA DUVALL, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF KIMBROUGH DUVALL, DECEASED, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, INCORPORATED, DEFENDANT.
    Decided February 20, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rules, Bourgeois & Coulomb.

      Contra, Walter S. Eeown, for Susan R. Freeman, and William C. French, for Martha Duvall.
   Per Curiam.

These cases were tried together at the Camden Circuit. The actions brought by the plaintiffs in their administrative capacity arose out of the same accident.

The only ground upon which the defendant railroad company seeks to have the verdicts set aside is, that the verdicts are contrary to the weight of the evidence.

The facts briefly stated are these: On November 21st¿ 1927, the plaintiffs’ decedents were killed at an unguarded railroad crossing while riding together in an automobile which was being propelled by Freeman.

There is testimony to the effect that at the time the automobile was struck by the defendant’s train, the train was traveling at a speed of seventy miles an hour. There was also some testimony to the effect that there were obstructions running along the railroad and a steep grade running up to the track, and that it was raining, drizzly and misty, and that the view in the direction from which the train came was interfered with; that no whistle was blown or bell rung.

The decedent, Eugene S. Ereeman, was survived by Susan E. Ereeman, his mother, whose age is forty-eight years.

The decedent Kimbrough Duvall is survived by his wife Martha and by a daughter, Dorothy.

The jury returned a verdict for Susan E. Ereeman in the sum of $4,000, and a verdict for $15,000 in favor of Martha Duvall.

The only ground for a new trial argued in brief of counsel of defendant, is, that the verdicts are clearly against the weight of the evidence.

This contention is based upon the assertion that the decedents were both chargeable with contributory negligence. Ereeman was driving the car, and Duvall was seated on the same seat next to him. Of course, unless it appered that Duvall was exercising control over the movements of the car, or co-operated with the driver in the manner in which the car was being propelled, he cannot properly be charged with contributory negligence.

The question of the alleged negligence of Ereeman the driver, was, under the evidence, clearly for the jury to decide.

A careful reading of the testimony makes it quite evident that the case was a typical one for the decision of a jury. The testimony was conflicting, and we cannot say that the jury, in arriving at the result in either case, under the evidence, was actuated by mistake, prejudice, passion or partiality, in its determination of the factual issues presented to it for consideration.

The rule to show cause in each case is discharged, with costs.


author: Ingeksoll, Y. C.

text:
    In the matter of Helena S. Simpkins, of Linwood, county of Atlantic, New Jersey, alleged to be of unsound mind.
    [Decided February 14th, 1930.]

      Messrs. Biggins & Davis, for the petitioner.

      Mr. Paul J. Farley, for the alleged incompetent.
   Ingeksoll, Y. C.

An affidavit of Prank W. Davis, of the firm of Eiggins & Davis, solicitors of the petitioner named in the petition in this cause, is presented, and application is made for the taxing of costs and expenses in said matter.

The proceedings resulted in finding the alleged lunatic to be of sound mind. The application for the taxing of costs must be denied, as the prosecutor cannot be allowed his costs and expenses, however meritorious his conduct may have been, in the absence of some fund in the control of the court out of which said costs and expenses can be directed to be paid. In re William E. Farrell, 51 N. J. Eq. 353.


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    NEWARK TITLE SUPPLY CORPORATION, PROSECUTOR. v. JOHN M. FLETCHER, OWNER, CHARLES MAURER, BUILDER, FIDELITY UNION TITLE AND MORTGAGE GUARANTY COMPANY, MORTGAGEE, ROSE S. WEISSMAN, MORTGAGEE, AND JOSEPH S. POOSHEJIAN, MORTGAGEE, RESPONDENTS.
    Decided February 19, 1930.
    Eor the prosecutor, George H. Bosenstein.

    Eor the respondent Fidelity Union Title and Mortgage Guaranty Company, Hood, Lafferty & Campbell.

    For the respondents Eose S. Weissman and John M. Fletcher, Julius Stein.

   The opinion of the court was. delivered by

Case, J.

This matter arises on a writ of certiorari issued to review a judgment entered in a mechanics’ lien action in the •District Court of Elizabeth, Dew Jersey, striking out the complaint upon the ground “that the complaint does not set forth a good and sufficient legal cause of action in that the summons was not issued and the suit was not commenced within the time required by the statute in such case made and provided.” The mandate in question is designated an order, but it appears to have the finality of a judgment and will be so treated.

The suit is for materials furnished by the plaintiff to the defendants Fletcher and Maurer, owner and builder, respectively, of a dwelling house then in the process of construction. Tlie statutory requirement is found in the Mechanics’ Lien act (3 Comp. Stat., p. 3305, pi. 18) and is as follows:

“No debt shall be a lien * * * unless a lien claim is filed * * * within four months from the date of the last work done or materials furnished for which such debt is due * * * nor shall any lien be enforced * * * unless the summons in the suit * * * shall be issued within four months from date of the last work done or materials furnished in such claim.”

The complaint alleges that the materials were furnished from August 28th, 1928, up to and including September 25th, 1928, when, as is alleged, the last materials were supplied. The lien claim was filed on January 25th, 1929, in the office of the county clerk and the summons was tested and issued on the same day. The question is whether the lien claim was filed and the summons tested and issued within the statutory period of four months from the date of the last materials furnished. In other words, is the statutory period of four months to be inclusive or exclusive of the day on which the last materials were furnished? The judgment below was based on the proposition that the period was inclusive of the day on which the last materials were furnished and that January 24th was the last day for the filing of complaint and issuing of summons. The matter is moved for argument before me as a single justice.

It must be assumed, I think, that the last materials may have been furnished at any time even up to twelve o’clock midnight of the twenty-four hours constituting the day assigned thereto, namely, September 25th, 1928. If we assume, further, that the statute had required the summons to have been issued within one day from the date of the last materials furnished, the materialman would have had all of September 26th within which to file its complaint and issue its summons. This reasoning necessarily excludes the day on which the last materials were furnished; otherwise no time might be available after the furnishing of the materials within which to institute suit, particularly in view of the fact that the summons must be endorsed by the county clerk within the same statutory period and that the office of the county clerk is not available to suitors after the termination of the business hours of the day. Had the period of limitation fixed by the statute been seven days, or one week, we should add to the available dates six more days, namely, September 27th, 28th, 29th, 30th,' October 1st and 2d. If we are led to this result by making the calculation on an assumed limitation to a day or to a weék, we are similarly controlled, it seems to me, when the limitation is on the monthly unit. What is true of a day or week is also true of a month or four months. The day of the last materials furnished is excluded. The four months beginning twelve one o’clock a. at. September 26th ends January 25th midnight. Any step taken prior to the last mentioned hour is within the period of four months. Consequently, the complaint filed and the summons issued on January 25th, 1929, were respectively filed and issued within the statutory period.

The 'same conclusion was reached by Mr. Justice Garrison, sitting in Circuit Court trials, in the case of Faith v. McNair, 13 N. J. L. J. 44. The only difference in the pertinent law, then and now, is that the period of limitation was then "within one year” (Rev. 1877, p. 67, pi. 13) and is now "within four months.” The principle is the same. A like method of computation was assumed in Melis v. Goldstein, 4 N. J. Adv. R. 364. Contra is Warsaw v. DeMayo, 145 Atl. Rep. 733.

The second point argued by respondents is not properly before me. It does not enter into the District Court finding now under review.

I conclude that the judgment of the District Court should be reversed.


text:
    JOHN F. SQUIER, EVELYN F. SQUIER AND HENRY E. SQUIER, PLAINTIFFS, v. CLAYTON H. BARLOW, HERBERT W. LANE, AND HERTZ DRIVEURSELF STATIONS, INCORPORATED, DEFENDANTS.
    Decided February 20, 1930.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Joseph Coult.

    Contra, Jacob R. Mantel.

   Pee Cueiam.

There was a verdict at the Union Circuit in favor of Evelyn F. Squier for the sum of $5,000 against the defendants Clayton H. Barlow and Herbert W. Lane. The defendant Barlow obtained a rule to show cause why the verdict should not be set aside against him.

The facts of the case are briefly these: On December 31st, 1927, the defendant Barlow hired an automobile from the Hertz Driveurself Company of Newark. Barlow used the ear to drive a group of boys to a dance at Florham Park, New Jersey. Barlow hired the car and signed for it as renter, and then took it to his home. In the evening he drove the group of boys to the dance, whore they remained until two or three o’clock in the morning. When the boys were ready to start for home they found Barlow behind the driver’s wheel. A conversation took place between Lane and Barlow, the former noticing that Barlow was acting in a peculiar manner and said to him, “you better not drive. I don’t think you are in any condition to drive,” whereupon Barlow moved out of the driver’s seat and made a place for Lane to take the driver’s seat.

We think this act on part of Barlow constituted an authorization of Lane to drive the car. On their way home, through the negligence of Lane in the operation of the car, a collision occurred between it and an automobile in which Evelyn E. Squier, one of the plaintiffs was riding as a passenger and as a result of such collision she suffered serious injuries. There is no claim made on behalf of the defendant that the collision which resulted in the injury of the plaintiff, was not due to the negligent operation of the car which Lane was driving.

The defense interposed is, that Barlow, while at the dance had been assaulted by somebody from which assault he was rendered, using the language of the witness, “he became dopey” and remained so even when he took his place in the driver’s seat of the car, and therefore, he was not in a condition to authorize Lane to take his place and drive the car.

We think, however, there was testimony from which a jury could properly find that Barlow was aware that he was not in a condition to drive the car, and therefore, he authorized Lane to drive the ear for him. Eor Lane’s negligence therefore, in operating the car, which resulted in the injury to another, Barlow must be answerable.

Next it is said that the verdict in favor of the plaintiff of $5,000 is excessive. Erom the testimony it appears that she was severely injured. At the time of the accident she was twenty years of age. She suffered a laceration of an eyeball which cleared up a week after the accident, and a nervous shock, which has left her with nervous spells now and then. The most serious injury was to her cheek which was lacerated. Six stitches were required. The s'car resulting from the laceration disfigures her face, and there is numbness from the bottom of the scar to her mouth. The injury is a permanent one, and we cannot say the jury was actuated by prejudice, partiality, mistake or passion, in reaching the result that it did.

Lastly, it is argued that the trial judge erred in charging the jury as follows: “There was a duty owing to the plaintiff, and that duty was the operation by the defendants of their car in such manner that no injury would be done other users of the highway.” The excerpts from the charge is not a fair one to the trial judge, for directly following the excerpt the court said: “There was the duty of the exercise of reasonable care in the operation of the defendants’ automobile.” This shatters the argument of defendant’s counsel that the court imposed upon the defendant an absolute duty to avoid colliding with other vehicles, &c.

The rule to show cause is discharged, with costs.


text:
    DORA JUNGE, ADMINISTRTRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN F. JUNGE, DECEASED, PLAINTIFF, v. EDITH KING, DEFENDANT. DORA JUNGE, GENERAL ADMINISTRATRIX OF THE ESTATE OF JOHN F. JUNGE, DECEASED, PLAINTIFF, v. EDITH KING, DEFENDANT.
    Decided February 20, 1930.

      Before Gummeee, Chibe Justice, and Justices Kalisch and Campbell.
    Eor the rule, Heine & Laird (M. Casewell Heine, of counsel).
    • Contra, Theodore D. Parsons (Theodore J. Labrecque, of counsel).
   Pee Cueiam.

There were two verdicts, in two separate actions brought, by the plaintiff against the defendant. In one action the plaintiff sued under the Death act, as administratrix ad prosequendum, in which action she recovered a verdict for the sum of $6,000 against the defendant, and in the other action she sued the defendant in her capacity of general administratrix of the estate of the deceased, which action resulted in a verdict, in favor of the estate for $500, against the defendant. Both, actions were tried together.

There was a separate rule to show cause in each case allowed by the trial judge why the verdicts should not be set-aside and a new trial granted.

The two grounds urged in the brief of counsel for defendant for setting aside the verdicts are as follows:

1. “The verdict in the action by the administratrix ad prosequendum is contrary to the weight of evidence, that the death of John E. Junge was the result of this accident.”

2. “The verdict in the action by the administratrix ad prosequendum, and in the action by the general administratrix are contrary to the weight of evidence that the accident was the result of the negligence of the defendant.”

Taking up first the second ground relied on by defendant, for setting aside the verdicts, a careful reading of the testimony discloses that there is no merit in this contention.

There was plenary testimony which warranted the jury in finding that it was solely through the negligent operation by the defendant of her ear that caused it to run into the car in which the deceased had been riding, and which car at the-time of the impact was standing still.

The first ground urged, by counsel for defendant, that the verdict obtained by the administratrix ad prosequendum is contrary to the weight of evidence, that the death of plaintiff’s decedent was the result of the accident finds no support from a fair reading of the testimony.

Plaintiff’s decedent was forty-two years old at the time he met with his injury, and prior thereto had been a sufferer from asthma and dropsy for a period of ten years.

The accident happened on the 23d day of December, 1927, and the plaintiff’s decedent died February 29th, 1928.

There was testimony in the case, that at the time of the accident the steering wheel of the car in which the plaintiff’s decedent had been riding was, as a result of the impact, pressed into his stomach with such force “as to bend him double” and of which injury he immediately complained, and further, that the force of the impact was such as to smash the windshield of the car and break the decedent’s eye glasses. There was also testimony that two days prior to the happening of the accident the decedent was examined by Dr. Trippe who testified he treated the decedent for cardiac asthma—an asthmatic condition resulting from a chronic heart disease and upon such examination found “there was no more asthma and the heart was functioning perfectly.” The doctor gave further testimony tending to show that after the accident the decedent became dangerously ill and the shock suffered by him as a result of the collision “was sufficient to definitely influence the old symptoms and make them very acute and dangerous.”

There was also testimony to the effect that after the accident the decedent began to fail rapidly. The medical certificate of cause of death certified “that the cause of death was probably cardian insufficiency.”

It is because of that circumstance that it is strenuously urged by counsel for defendant that death was not the proximate cause of the injury. This contention is without substance. In an action under the Death act to recover the pecuniary loss sustained by reason of the wrongful act of the person sued, satisfactory proof that death was the natural and probable consequence of the 'wrongdoer’s act is sufficient to justify a verdict against him; and such proof was present in the case now under review.

The testimony of Dr. Trippe makes it clear, that the ailment from which the decedent suffered, prior to the accident had yielded to medical treatment and the doctor gives it as his opinion that were it not for the blow in the stomach and the shock suffered by the decedent in the accident the decedent “evidently had years and years ahead of him,” and his death at the time it occurred was attributable to the injury received by him as a result of the collision.

Each rule to show cause should be discharged.