author: Flannagan, 0. P. J.

text:
    Essex County Court of Common Pleas.
    ANDREW PACIFICO, PETITIONER-APPELLANT, v. CARPENTER STEEL COMPANY, RESPONDENT-APPELLEE.
    Decided September 21, 1945.
    For the respondent-appellee, James J. OarroU.

    For the petitioner-appellant, Laurence Bemel.

   Flannagan, 0. P. J.

This is an appeal from the "Workmen’s Compensation Bureau making an award in favor of the petitioner from which the petitioner appeals. The appellant complains of the finding of the commissioner upon the question of the amount of disability. He argues that it cannot stand because it does not comply with his view of the legal value and effect of testimony of experts.

Counsel is correct in his view that the finding of the Bureau upon the percentage of disability does not follow the conclusion of any expert for either side but gives a percentage of disability which is between the percentages fixed by the various experts for the two contending parties. Thus, the percentage of disability fixed by the Bureau reflects the opinion of the commissioner alone and does not reflect that of any expert called.

The argument of the appellant seems to proceed upon the assumption that the conclusion of the Compensation Commissioner must conform to the testimony of some expert witness, otherwise it stands unsupported and must fall. With this argument I cannot agree. It would, in practical effect, make expert witnesses judges, some of whose opinions could not be overridden by the constituted judge of the facts and would have to prevail. On some occasions this might be a jury; in this instance, it was the commissioner in the Compensation Court and is the judge in this court in the present trial. The trier of the issues of fact, whether judge or jury, is not bound by expert opinion evidence. He may give such weight or no weight thereto as his judicial opinion decides it merits. Abbott’s Proof of Facts (4th ed.) 877, ¶ 20, and eases therein cited; Hull v. City of St. Louis, Trustee, 138 Mo. 618; 40 S. W. Rep. 89; 42 L. R. A. 1899, particularly note thereunder. His judgment must be based on the entire evidence taken as a whole.

As to the motion to strike the answer as out of time, I am satisfied that the disposition of this motion by the commissioner was the correct one, especially as there is no proof in the record as to when the petition was served on the respondent.. On the whole, I am satisfied with the disposition made by the commissioner and will adopt his findings. A determination may be submitted accordingly under rule 9.


source: Caselaw Access Project

author: Wabsohe, President.

license: Public Domain

text:
    Department of Taxation and Finance.
    IN THE MATTER OF THE APPEALS FILED BY THE CITY OF JERSEY CITY TO INCREASE THE 1943 VALUATION TAX ASSESSMENTS LEVIED ON REAL PROPERTY LOCATED IN SAID CITY, OTHER THAN SECOND CLASS RAILROAD PROPERTY.
    Decided September 4, 1945.
   Wabsohe, President.

In the taxing district of the City of Jersey City for the year 1943 there were 42,963 assessments upon real property.

On or about January 11th, 1943, the assessor of Jersey City filed with the Hudson County Board of Taxation his 1943 complete assessment list and duplicate. This filing of the assessment list and duplicate with the County Board of Taxation is required by law. N. J. S. A. 54:4—85.

After an investigation conducted by the Hudson County Board of Taxation, the said Board revised, corrected, and equalized the assessed value of all the real property in the taxing district of Jersey City at its true value, and did everything necessary for the taxation of property in Jersey City equally and at its true value. The law specifically requires the County Board of Taxation to revise, correct, and equalize at true value the assessed value of all the real property within the county. Therefore, the Hudson County Board of Taxation also revised, corrected, and equalized at true value the assessments on real property within all the other taxing districts located in Hudson County: Hoboken, Bayonne, Weehawken, Union City, &e.; and it likewise equalized at true value the assessments as between the several taxing districts located in Hudson County. N. J. 8. A. 54:4-46; 54:4-47.

The City of Jersey City and the County of Hudson certified to the Hudson County Board of Taxation their respective budgets for the year 1943, as required by law. R. S. 40:2—11; 2?. J. S. A. 40:2—11. Hpon ascertaining the total amount of taxes to be raised, the Hudson County Board of Taxation fixed and adjusted the amount of state school, state, and county taxes to be levied on each taxing district in Hudson County in proportion to the total sum of their respective r-atables. This apportionment of taxes among the several taxing districts of the county is a duty the statute imposes upon the County Board of Taxation. R. S. 54:4—48; N. J. S. A. 54:4r-48.

The Hudson County Board of Taxation then computed and determined the tax rate for Jersey City for the year 1943, as it is required by law to do. N. J. S. A. 54:4-52.

The Hudson County Board of Taxation certified to the tax collector of Jersey City the 1943 corrected, revised, and completed Jersey City assessment list and duplicate, the 1943 tax rate for Jersey City, and the amount of taxes to be raised by Jersey City during 1943, all of which the said County Board of Taxation is required by law to do. R. S. 54.-4M55; N. J. S., A. 54:4r-55; Duke Power Co. v. State Board of Tax Appeals, 129 N. J. L. 449; 30 Atl. Rep. (2d) 416; affirmed, 131 N. J. L. 275; 36 Atl. Rep. (2d) 201.

Jersey City did not appeal from the county equalization table although the statute permitted it to appeal. R. S. 54:2-37; N. J. S. A. 54:2-37. Hor did it appeal from the tax rate, which the statute also permitted it to do. Park Ridge v. Board of Equalization of Taxes, 86 N. J. L. 39; 90 Atl. Rep. 1019. Instead, the tax collector of Jersey City collected the 1943 taxes levied on property located in Jersey City at the tax rate fixed by the Hudson County Board of Taxation and on the property valuations as fixed and assessed by said County Board according to law.

The governing body of Jersey City did not authorize an appeal from any particular 1943 valuation assessment levied on any particular parcel of real estate. Instead, it directed that appeals be taken from every valuation assessment which was less than the respective property value as determined by the city assessor. On May 18th, 1943, the Commissioners of Jersey City adopted the following resolution:

“Resolved, that the Director of Bevenue and Finance, or his deputy, be and they hereby are authorized and directed to take such appeals from assessments or actions of the Hudson County Board of Taxation, which effected reductions in valuations of real or personal property in the City of Jersey City for the year 1943.”

Pursuant to the aforesaid resolntion, Jersey City filed 34,431 appeals with the Hudson County Board of Taxation from the 1943 valuation assessments on real estate within the taxing district of Jersey City. By this mass appeal from approximately eighty per cent, of the taxable assessments levied on real property for 1943, Jersey City sought to increase the total ratable value of real property in Jersey City by $95,816,335. An increase of $95,816,335 in Jersey City’s xatables, at the tax rate of $5,745 per $100 of assessed valuation, would produce $5,504,648.45 more taxes for local purposes than the Jersey City budget for the year 1943 authorized or required.

All of these 34,431 appeals were dismissed by the Hudson County Board of Taxation upon the ground that Jersey City had no authority to bring such a mass appeal and that, therefore, the County Board of Taxation had no jurisdiction to hear them.

Jersey City filed 39,397 appeals from the 1943 assessments with the former State Board of Tax Appeals, now the Division of Tax Appeals. They include appeals from the 34,431 assessments for 1943 on real property, which were before the Hudson County Board of Taxation on appeal and which were .dismissed by that Board because of its finding that it lacked jurisdiction to hear them.

The statute requires the city assessor to ascertain the names of the owners of all real property situated in Jersey City and to determine its full and fair value at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract on the assessing date. N. J. S. A. 54:4-23. The eity assessor is also required to file with the County Board of Taxation his complete assessment list and duplicate. N. J. S. A. 54:4—35. The County Board of Taxation is required to meet for the purpose of examining, revising and correcting the assessor’s tax list and duplicate. R. S. 54:4-46; N. J. S. A. 54:4-46.

The statute provides that:

“Each county board of taxation shall secure the taxation of all property in the county at its true value, in order that all property, except such as shall be exempt by law, shall bear its full, equal and just share of taxes.” R. S. 54:3—13; N. J. S. A. 54:3-13.

“The county board may adjourn from time to time in the discharge of its duties, and may, after investigation, revise, correct and equalize the assessed value of all property in the respective taxing districts, increase or decrease the assessed value of any property not truly valued, add to the lists and duplicates any property which has been omitted or overlooked, at its true value, and in general do everything necessary for the taxation of all property in the county equally and at its true válue.” R. S. 54:4-47; N. J. S. A. 54:4r-47.

In the ease of Merchants and Manufacturers Fire Insurance Co. et al. v. Essex County Board of Taxation et al., 15 N. J. Mis. R. 505; 192 Atl. Rep. 450, our Supreme Court said that the “clear purpose” of the statute “is to have tire county board review the assessment list and duplicates of the various taxing districts in the county, and ‘after investigation, to revise, correct and equalize the assessed value of all property in the respective taxing districts.’ ” The case of Long Rock Co. v. State Board of Assessors, 89 N. J. L. 108; 97 Atl. Rep. 900; affirmed, 90 N. J. L. 701; 101 Atl. Rep. 367, held that the statute requires the County Tax Board to equalize valuations “as between individuals and also taxing districts.” In the case of Middletown Township v. Ivins, 102 N. J. L. 36; 130 Atl. Rep. 648, the Supreme Court said:

“The duty of the county board * * *, was, ‘after investigation * * * to increase or decrease the assessed value of any property not truly valued.’ In view of what the county board did by way of investigation, and the fact that there is no complaint that these increased valuations were in excess of the true value of the property, it cannot be said that the board failed to perform Us duty ‘to secure the taxation of all property * * * at its true value, in order that all property, except such as shall be exempt by law, shall bear its full, equal and just share of taxes/ in the manner provided by law. * * *

“The assessment as oi'iginally made by the assessor does not become the assessment upon which the taxes are finally paid until after the county board of taxation has, under section 507, revised, corrected, equalized values, and increased or decreased the assessed value of any property not truly valued, and added property which has been omitted or overlooked, and, in general, until it has done all things necessary for the taxation of all property equally and at its true value.

“After having done all these things, as required by section 507 [N. J. S. A. 54: :4—4,8], the county board under the provisions of section 509 [N. J. S. A. 54:4-55], ‘shall, on or before the 1st day of April in each year, cause the corrected, revised and completed duplicates certified by said board, to be a true record of the taxes assessed, to be delivered to the respective collectors of the various taxing districts in their respective counties, and the said tax list shall remain in the office of said board as a public record/ * * *

“In the present cases the valuation or assessment made originally by the assessor, and returned to the county board of taxation, was not a completed assessment, and did not become such until acted upon by the county board, which does not render a judgment, but acts upon its own information and knowledge, and, after investigation makes the changes necessary in order to perform its duty of seeing that property is taxed equally and at its true value.”

In the absence of a contrary showing, it is to be assumed that the provisions of the statute were followed and that the assessments as revised, corrected, and equalized by the Hudson County Board of Taxation were correctly assessed at the true value of the property. Newton Trust Co. v. Atwood, 77 N. J. L. 141; 71 Atl. Rep. 110; New Jersey Bell Telephone Co. v. Newark, 118 N. J. L. 490; 193 Atl. Rep. 844; Harborside Warehouse Co., Inc., v. Jersey Gity, 128 N. J. L. 263; 25 Atl. Rep. (2d) 291; affirmed, 129 N. J. L. 62; 28 Atl. Rep. (2d) 91.

The statute permits a taxing district to take an appeal to the Division of Tax Appeals for a review of a county equalization table, but such a review must be completed before June 10th of the tax year for which the property was assessed. R. S. 54:2-37; N. J. S. A. 54:2-37. Jersey City did not appeal from the equalization of the 1943 assessments on property in Hudson County, and it is now too late for such, an appeal to be taken. Hot even with the consent of all interested parties could the Division of Tax Appeals review the 1943 Hudson County equalization table because the statute does not permit such a review after June 10th, 1943. Kenilworth v. Board of Equalization of Taxes, 78 N. J. L.. 302; 72 Atl. Rep. 966. Moreover, “it is the policy of the state that the settlement of tax controversies be effected within a reasonable time so that the assets of the dependent interlocking political divisions of city, county and state, with their financial requirements, shall be finally and harmoniously adjusted.” Montclair v. State Board of Tax Appeals, 127 N. J. L. 382, 389; 22 Atl. Rep. (2d) 525, 529; George A. Fuller Co. v. Jersey City, 21 N. J. Mis. R. 38; 29 Atl. Rep. (2d) 720.

Therefore, since there was a presumption in limine that' the Hudson County Board of Taxation equalized the 1943 assessed values of property in Jersey City and Hudson County at their true value, and since there is now no right of appeal from the 1943 equalization table, the presumption that the 1943 assessed values of property in Jersey City and Hudson County were equalized at their true value is no longer rebuttable. Hence, such presumption has become a conclusive presumption. Consequently, there cannot now be a review of this question.

There is also a presumption that the Hudson County Board of Taxation properly fixed and determined the 1943 tax rate for Jersey City, and that it properly fixed and adjusted the amount of state school, state and county taxes to be raised during 1943 by each taxing district in Hudson County. The time when a review of these matters could have been had is long past. The presumption that they were correetly and properly decided is now irrebuttable, and, therefore, these decisions of the County Board also are conclusive.

Corpus Juris Secundum states the principle of law applicable as follows: “Official acts or duties are, in the absence of evidence to the contrary, presumed to have been properly performed; and, as a general rule, it is presumed that a public official discharges his duty or performs an act required by law in accordance with the law and the authority conferred upon him, and that he acts fairly, impartially, and in good faith.” 31 C. J. S., Evidence, 799, § 146; Newton Trust Co. v. Atwood; New Jersey Bell Telephone Co. v. Newark; Harborside Warehouse Co. v. Jersey City, supra.

Therefore, we now have the following adjudications, made pursuant to law by the Hudson County Board of Taxation, which are not now subject to review: (a) the assessments on real estate in Jersey City for the year 1943 were equalized at true value; (b) the assessments on real estate for the year 1943 were equalized at true value in each of the other taxing districts of Hudson County; (c) the amount of taxes to be raised during 1943 for state school, state and county by Jorsey City and the other taxing districts in Hudson County were properly apportioned among those respective taxing districts; (d) the 1943 tax rate for Jersey City and for each of the other respective taxing districts in Hudson County was properly determined and certified to the proper tax collectors.

Since the foregoing adjudications of the Hudson County Board of Taxation are now conclusively presumed to be correct and just, and since they cannot now be attacked directly, they cannot be attacked collaterally. Freeholders of Ocean v. Township of Lacey, 42 N. J. L. 536.

The statute provides that “A taxing district which may feel discriminated against by the assessed valuation of property in the taxing district, or by the assessed valuation of property in another taxing district in the county” may appeal to the County Board of Taxation. R. S. 54:3-21. In order for a taxing district to have the right of appeal to the County Board of Taxation under this section of the statute, it must show that it feels discriminated against by reason of the valuation assessments. In order for Jersey City to show a feeling that it has been discriminated against by reason of the 1943 valuation assessments on property in Jersey City, it must appear from its 34,431 appeals on real property filed -with, the County Board of Taxation that the assessments on real property in Jersey City may have resulted in an unjust, inequitable, or unfair burden of taxes being placed upon most of the taxable real property in Jersey City by the levy of relatively lower assessments on a few other parcels within the district. But such does not appear from the appeals. Jersey City is asking for an increase of the valuation assessments on. about eighty per cent, of the taxable real property in Jersey City. An increase of the assessments will result in an increase of taxes. Moreover, Jersey City does not claim that it feels discriminated against. Its 1943 appeals are based only on the claim that approximately eighty per cent, of the 1943 assessments on real property in Jersey City are below the true value of the property. The resolution adopted by the Commissioners of Jersey City authorizes appeals from assessments “which effected reductions in valuations of real or personal property in the City of Jersey City for the year 1943.” The corporation counsel for Jersey City said in his brief filed with the Division of Tax Appeals in the 1943 appeals of Jersey City to increase the assessments on the properties of Louis D. Bettcher, Katherine Ryer, James X. Warren and Antoinette Lauria:

“The Hudson County Board of Taxation, in its revising capacity for the year 1943, deducted from the valuations on real estate as made by Jersey City’s assessor, the sum of $95,816,335, representing some 34,431 separate reductions. To review these reductions the city filed'appeals.”

Appeals which are filed merely on the ground that the assessments were reduced by the County Board, or that they were below the true value of the property assessed do not present any legal right for an appeal under section 54:3-31 of the Revised Statutes. Such grounds do not necessarily mean that Jersey City feels discriminated against. Since we must assume that the 1943 assessments on real property throughout Jersey City were equalized at true' value, and since, therefore, each parcel of real property bore only its full, equal and just share of taxes for the year 1943, it would be only sham and folderol for Jersey City to contend that the taxes on eighty per cent, of the ratabies in the taxing district should be substantially increased—not reduced—on the ground that the taxing district was discriminated against. Therefore, Jersey City had no legal right to take a mass appeal from eighty per cent, of the assessments on real property, and consequently the Hudson County Board of Taxation had no jurisdiction to consider those appeals.

Our courts have recognized that when assessments are equalized at true value within a taxing district except for a relatively few parcels of real estate, which have been assessed below their true value, an unfair tax burden would be imposed upon the balance of the taxing district, and that the taxing district, therefore, would be discriminated against in favor of a relatively few property owners. In such cases the courts have acknowledged the statutory right of the taxing district to file an appeal for the purpose of having the assessments on those relatively few parcels increased to the true value of the property. But the courts have never held that a taxing district in which assessments have been equalized at true value could appeal eighty per cent, of the assessments on real property on the ground that the said taxing district was discriminated against because said assessments are less than true value. That, in itself, does not constitnte discrimination. The purpose of section 54:3-81 of the Bevised Statutes (N. J. S. A.) in permitting a taxing district to appeal from assessments on separate parcels of real estate whenever it “may feel discriminated against” is to facilitate the correction of relatively few errors in assessments within the taxing district. The Court of Errors and Appeals in dealing with a similar taxing situation expressed itself as follows:

“In short, the design of the section, as we view it, is not so much to work a general reformation of tax valuations in a given district as to correct specific instances of error or abuse in the direction of undervaluation.” Jersey City v. Board of Equalization of Taxes, 74 N. J. L. 753, 759; 67 Atl. Rep. 38, 41.

Statutes ought not to he given a meaning that may lead to absurd, unjust or contradictory results. Jensen v. Woolworth, Co., 98 N. J. L. 529, 534; 106 Atl. Rep. 808; Donohue v. Campbell, 98 N. J. L. 755, 759, 763; 121 Atl. Rep. 700. If the assessments on real property in Jersey City for 1943 should be increased $95,816,335, Jersey City would receive $5,504,645.45 additional taxes for 1943, none of which taxes were authorized by Jersey City’s 1943 budget, and for which there is no public need. ALL of such additional taxes could only be surplus taxes for 1943, even though they were not provided for in the budget, not levied, and not needed, and although they would not be collected until two or three years after 1943. This is an absurd situation on its face. There is no justification for it whatsoever. It would be the taking of private property without compensation; it would be confiscation, not taxation. In the case of State, Baldwin, Pros., v. Fuller, 39 N. J. L. 576; affirmed, 40 Id. 615, the court said:

“The theory of taxation is that it is levied for public purposes; that it is an attribute essential to the existence of government, without which it would be powerless to discharge its functions, and for that reason it is held to be inherent. It is the public use for it which marks it as a tax. Where no public end is subserved, the power cannot be called into action.”

At another point in the opinion the court said:

“* * * that legitimate taxation is limited to the imposing of burdens, like those in question, so far as they are for the public benefit, upon the persons or property within the political district possessing powers of local government, so that the exactions are distributed over the entire territory, upon the rule of uniformity. If the constitutional guarantee is not so interpreted as to enforce this rule, the legislature may, under the guise of taxation, appropriate private property to any extent to public use, without compensation.”

In the ease of Taylor v. Smith, 50 N. J. L. 101, 106; 11 Atl. Rep. 331, 333, the Supreme Court said:

“But to justify any imposition of tax upon persons or property the purpose to be effected must be a public one. * * *

“Nothing has been better settled in this state than that the legislature has no authority to delegate the power of general taxation over persons or property, except to political divisions or corporations of the state, and that for the sole purpose of enabling them to exercise the powers of government conferred on them within their locality.”

The law requires every municipality to adopt a budget for each fiscal year. R. S. 40:2—5; N. J. S. A. 40:2—5. Upon adoption, the budget constitutes “an authorization of the amount to be raised by taxation for the purposes” of the municipality. R. S. 40:2—11, 40 :2—19; N. J. S. A. 40:2—11, 40 :2-19. The 1943 budget of Jersey City does not “authorize” these additional taxes to be raised, and the statutes provides that:

“Except as may be otherwise provided in section 40:2-31 of this title, no officer, board, body or commission shall, during any fiscal year, expend any money (except to pay notes, bonds, or interest thereon), incur any liability, or enter into any contract which by its terms involves the expenditure of money;

“a. Eor any purpose for which no appropriation is provided in the budget or by temporary appropriation pursuant to section 40:2-12 of this title, or

“b. In excess of the amount appropriated for any such purpose.” R. S. 40:2—29; N. J. 8. A. 40:2-29.

Therefore, to grant these appeals would not only be absurd and unjust, but would be contradictory to these other laws designed to regulate and control municipal governments, and paradoxically would render these very laws, which are intended to protect the taxpayers, “illegal” and nugatory. The statutes authorizing municipalities to budget and appropriate money for public use, and the statutes authorizing municipalities to raise money by taxation for public use pertain to the same purpose, to wit, the financing of municipal governments. The function of tax collectors is merely to translate municipal budgets into cash in order to obtain municipal revenue. The rule of statutory construction is fundamental that where there are different statutes relating to the same subject-matter the whole must be considered as constituting one system and mutually connected one with another. In re Book’s Will, 90 N. J. Eq. 549, 553; 107 Atl. Rep. 435; West Shore Railroad Co. v. State Board of Taxes, 92 N. J. L. 332, 335; 104 Atl. Rep. 335; Commercial Trust Company of New Jersey v. Adelung, 136 N. J. Eq. 37, 45; 40 Atl. Rep. (2d) 214. Statutes ought to be so construed that, if possible, no clause, sentence or word shall be superfluous, void or insignificant. Steel v. Freeholders of Passaic, 89 N. J. L. 609; 99 Atl. Rep. 318.

“A municipal corporation is the creature of the legislature, and possesses only such rights and powers (a) as have been granted in express terms; (b) as arise by necessary or fair implication, or are incident to the powers expressly conferred, and (e) as are essential to the declared objects and purposes of the municipality—not merely convenient, but indispensable. * * * Any reasonable or fair doubt of the existence of the asserted power, or any ambiguity in the statute whence it springs, or those in pari materia, is to be resolved against the municipality, and the power is denied. Municipalities are to be confined within the limits that a strict construction of the grants of powers will assign to them.” N. J. Good Humor, Inc., v. Bradley Beach, 124 N. J. L. 162, 164; 11 Atl. Rep. (2d) 113, 115. In the case of Englewood v. Hopper, 54 N. J. L. 544; 23 Atl. Rep. 948, the Supreme Court held that any power to increase valuations of property for the purposes of taxation was a statutory power which must be exercised in strict compliance with the statute conferring jurisdiction. In the case of Newark Aqueduct Board v. Newark, 50 N. J. L. 126; 10 Atl. Rep. 881, the Supreme Court held that the authority to levy a tax should, be clearly expressed and not left to inference.

As previously stated, by act of the legislature, every municipality is required to adopt a budget for each fiscal year. R. S. 40:2—5; N. J. S. A. 40:2—5. The “local budget law” requires each muuicipal budget to expressly state therein the “amount to be raised by taxes” for the municipality. R. S. 40:2-13, 40:2-15; N. J. S. A. 40:2-13, 40:2-15. The legislature has provided that, upon adoption, the municipal budget shall constitute an “authorization of the amount to be raised by taxation” for the purposes of the municipality adopting the budget. R. S. 40:2-ll; N. J. S. A. 40:2-11. The legislature itself expressly authorizes the amount of revenue to he raised each year by taxation for each municipality, to wit, that amount which each municipal budget provides as the “amount to he raised by taxes.” R. S. 40:2-19; N. J. S. A. 40 :2-19. This statute reads as follows:

“The amount to be raised by taxes, as stated in the budget, shall be the amount to be raised by taxation for local purposes, * * * in the case of a municipality * * *. The governing body of each county and municipality shall have power to assess, levy and collect taxes in support of any budget adopted pursuant to this chapter and for all other lawful purposes.” R. S. 40:2-19; N. J. S. A. 40:2-19.

The legislature also has provided the mechanics for assessing and collecting the taxes which it authorizes shall be levied and raised for a municipality. The process includes the judicial determination of the true value of the property to be taxed, and the ministerial duty of computing the tax rate. The total value of the ratables of a municipality for a particular year, multiplied by its tax rate for that year (assuming that the tax rate is properly computed) will equal the amount authorized by the legislature to he raised by taxes for that municipality. If the total value of the ratables of a municipality in any year are increased after its tax rate is fixed and determined for that year, the amount of taxes that actually will he raised for such year as a direct result of such increased value in the ratables, provided all the taxes assessed are collected, will exceed the amount required by the municipal budget to be raised by taxation, and will, therefore, exceed the amount authorized by the legislature to be raised by taxation for that municipality. Since the increased amount which actually will he raised by taxes is not authorized by the legislature, their levy, to the extent of such increase, is illegal. In the case of Township of Bernards v. Allen, 61 N. J. L. 228, 237, 238, 239; 39 Atl. Rep. 716, the Court of Errors and Appeals said:

“Except as the legislature of the state may confer upon political divisions powers to legislate and to provide revenue for defraying the expenses of the local governments, it has no power to delegate the power of taxation to ministerial officers or to another department of the government. Cooley Tax., p. 47; 25 Am. & Eng. Ency. L., pp. 79, 186. It may provide for the appointment of officers and other persons to assess and collect taxes, but the essential power of taxation, which is the power to levy a tax, is incapable of being delegated by the legislature.

“Every system of taxation consists of two parts—one the levying of taxes, the imposition of taxes on persons or property, the other the assessment and collection of taxes. The first is a legislative function controlled by constitutional prescriptions; the other, the assessment and collection of taxes, is mere machinery by which the legislative purpose is effectuated. Whether taxes shall be assessed and collected by officers elected by the people, called assessors and collectors, or by officers holding office under some other authority, is left to legislative discretion. Trustees of Public Schools v. Trenton, 30 N. J. Eq. 667, 678; 3 Stew. Eq. 667, 678. ‘The legislature must prescribe the rule under which taxation shall be laid, and originate the authority under which taxing officers assess and collect the taxes; it need not prescribe all the details or fix with precision the sum to be raised. If the rule is prescribed which, in its administration, works out the result, that is sufficient; but to refer the making of the rule to another authority would be in excess of legislative power. To leave to a state officer or board the power to determine whether a tax should be laid for the current year, or at what rate, or upon what property, prescribes no rule and originates no authority; it merely attempts to empower some other tribunal to prescribe a rule and set in motion the tax machinery. This is clearly incompetent.’ Cooley Tax., p. 50.

“The legislature, having prescribed a rule of taxation, may entrust the assessment and collection of taxes, in conformity with prescribed rules, to officers appointed by other authority.”

# Hi H; si? ❖ sfr

“But the essential power of taxation, the power to levy a tax, cannot be delegated by the legislature.”

In the case of Jersey City v. Martin, 126 N. J. L. 353, 360; 19 Atl. Rep. (2d) 40, 45, the Court of Errors and Appeals said;

“ ‘All taxes, whether levied for state, county, or municipal purposes, are state taxes; they can be imposed by no other authority than that of the state. The state appropriates the proceeds to what purpose it sees fit; but, however the proceeds may be appropriated, every tax is a state tax.’ ”

The power to increase the total value of the ratables of a municipality for any year, after its tax rate has been fixed and determined for that particular year, would be the equivalent of the legislative power to levy an additional tax for that year. Neither the municipalities, the County Boards of Taxation, nor the Division of Tax Appeals possess the power to levy a tax, or, which is the same thing, to increase the amount specified in the municipal budget to be raised by taxation. In fact, neither the County Boards of Taxation nor the Division of Tax Appeals possess any legislative powers whatever—only judicial and administrative or ministerial powers.

The appeals from the decision of the Hudson County Board of Taxation, filed by Jersey City to increase the 1943 tax assessments levied on real estate should be dismissed for lack of authority in the city to file said appeals, and also for lack of jurisdiction in the Hudson County Board of Taxation to consider said appeals. Since the County Board had no jurisdiction to increase the assessments mentioned in the appeals, we have none.


author: Delaney, C. P. J.

text:
    Passaic County Court of Common Pleas.
    MARY LOHNDORF, PETITIONER-APPELLANT, v. PEPER BROS., INC., RESPONDENT-APPELLEE.
    Decided October 25, 1945.
    Bor the petitioner- appellant, Ward & Levinthal.

    Bor the respondent-appellee, Wilbur A. Stevens.

   Delaney, C. P. J.

This is a compensation case. The decedent, man of fifty-nine, was employed as manager of a paint store on Main Street in Paterson, Mew Jersey. His duties consisted in selling paint and allied products over the counter, in keeping records, and in arranging the stock. The store, about sixty feet in length, had seven or eight shelves on the side, upon which the merchandise was displayed, the heavier cans being upon the floor and lower shelves, and the lighter cans on the top shelves, which were reached by an eight-foot ladder. The lead and paints, weighing from ten to fourteen pounds a gallon, came in cans, sizes from a pint to five gallons, and in containers weighing 100 pounds. The white lead cans weighed from twelve and a half to 100 pounds. Bolls of roofing material weighed from fifty-five to sixty-eight pounds. The decedent had one part-time helper, a Mr. Schmitz, who worked only in the afternoons. A Mr. Hickling, whose duty it was to drive the truck, did not assist inside the store.

Decedent died at three a. m. on Sunday, August 27th, 1944, from a coronary occlusion. Mo autopsy was madé, and the doctor who signed the death certificate has since been inducted into the armed forces. Though there was some testimony that decedent had illness of the kind before, the case rests upon repeated illnesses from "Wednesday, August 23d, through Saturday, August 26th, during which period the decedent experienced several attacks, evidenced by shortness of breath, pain in his left shoulder and in his chest, symptoms, according to the medical authorities, of coronary insufficiency or a coronary occlusion. Attacks of angina become manifest when the demand for blood is greater than the diseased coronary arteries can supply, and though these advanced attacks are usually brought on by effort, in many cases even slight effort, such as moving from chair to chair, is sufficient.

On Wednesday, August 23d, decedent had one of these attacks immediately after lunch, and relieved himself by taking a glass of water. He continued to work after ten or fifteen minutes, until four or five p. m., when he had another occurrence. After the pain subsided he worked until closing time, seven p. m. On Thursday afternoon decedent experienced another attack while at work. On Friday, an especially busy day, while decedent and his helper were unloading in the store a hand truck which had been used to convey the merchandise, decedent had another attack. On Saturday decedent complained at least twice, the last time about four P. M. At six o’clock he said, “I wish it was seven. I would go home and take a rest. I am glad tomorrow is Sunday, and I will take a good rest.”

At closing time he and the helper, Mr. Schmitz, went next door to a tavern for Alka Seltzer to relieve decedent. After ten or fifteen minutes he left, boarded a bus, and arrived home about nine p. m., when, according to his wife, he looked pale and tired, had trouble breathing, complained of pain in his chest, and was very quiet. After eating supper he did not go to bed, but sat on a chair or on the sofa, and attempted to go to the toilet four times. The last time, about three A. m., he said, “Oh,” and putting his hands on his chest fell backwards. When the ambulance, summoned by his wife, arrived, Dr. Mohnack pronounced decedent dead from a heart attack.

The contention of the respondent is that the appellant did not establish an accident, but that, as the Commissioner decided, death was the natural result of the disease of his coronary arteries, that “the disease ran its natural and progressive fatal end,” and to hold the employer liable would be to make him an insurer. He contends that the appellant did not sustain the burden of proving “that the asserted accident was at least a contributory cause, without which the occlusion would not have occurred,” and cites Schlegel v. H. Baron & Co., 130 N. J. L. 611; 34 Atl. Rep. (2d) 132, in support of that contention.

In the case above cited, claimant rested his claim upon one accident, an accident which the court found had not been established by the evidence. In the present case, the appellant does not claim any one incident as an accident, but rests her claim upon the nature of decedent’s work and the testimony of the doctors for appellant, the three of whom testified that the work decedent continued to do from Wednesday, the day of the first attack in the store, until Saturday, was definitely a contributory cause of death. Dr. Cohen, a cardiologist and chief of the cardiac clinic at Paterson General Hospital, testified that it was impossible to say whether an occlusion occurred Wednesday or whether it occurred sometime between Wednesday or Saturday, hut from the symptoms of the deee•dent, physical effort was co^ira-indicated.

Dr. Bndd, a specialist in internal medicine and cardiology, testified, in response to a hypothetical question, that “Now, by coronary insufficiency we mean that insufficient blood was flowing through the coronary vessels to supply the needs of the heart, and as a result, if this man kept on working as he did, even after this pain, and had repeated recurrences of this pain, not only that day but several days following, be was aggravating his condition, which most likely was coronary .artery sclerosis.

“If a man has coronary artery sclerosis with an anginal .syndrome, such as the man represented, and the man continues to work instead of resting, you are aggravating his condition and bringing about his eventual death, which happened in this particular ease,” and that further work was “definitely contra-indicated.”

The doctor for respondent, Dr. Jerome C. Kaufman, a cardiologist of Newark, testified that death was due to a coronary occlusion which occurred late Saturday night and that the history was devoid of any incident which is unusual or even suggesting there was any particular relationship between strain and the onset of a coronary occlusion. He stated that in his opinion decedent’s collapse occurred at nine p. m., following a full meal (the testimony says nothing about the •extent of the meal), and what that contributed was just as important as any unrelated incident in the previous week. 'This is pure conjecture as to when the fatal occlusion occurred, for there is no testimony to bear out that decedent’s symptoms were any worse after he ate than before, or than they had been during any time Saturday.

Using the test given in Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, 401, '"The requirement that the injury or death arise by accident, under our statute, is satisfied if the claimant discharges the burden of proving that the condition complained of, i. e., the injury or death, is related to or affected by the employment, that is to say, if hut for the employment it would not have occurred” (and we may add “at that particular time”).

We think this test governs this ease. Though there is no testimony as to how many heavy cans of paint the decedent sold in any one of the days in the period from Wednesday through Saturday, nor how many times he had to climb the ladder during any one of these particular days, the testimony, however, did show that the nature of the business demanded in the usual day and in the usual course of business the lifting of the cans from the floor, and the climbing of the ladder to get the smaller cans.

Dr. Budd, on behalf of the claimant, testified in response to the hypothetical question:

“It is accumulation here and possibly, or probably, I would say—you can’t say absolutely—elimbing, for instance, a ladder, even with a small weight, is quite significant, because you have to climb and balance yourself at the same time, which makes the effort worse.”

While decedent’s work was not laborious, it required physical effort, at times great physical effort. The testimony of the three doctors for the appellant was that work was definitely coatra-indicated. The respondent’s doctor said work was not contra-indieated; that not all cases showing the symptoms of the decedent are put to bed; that only extreme cases, those having from fifteen to twenty attacks a day, are put to bed. The weight of evidence, however, establishes to this court’s mind the necessity of rest.

The central question in the matter is one of faet. The burden of proof is, of course, upon the claimant. Armstrong v. Union County Trust Co., 14 N. J. Mis. R. 648; 186 Atl. Rep. 522; affirmed by the Court of Errors and Appeals, 117 N. J. L. 423; 189 Atl. Rep. 138.

The presumption is that a coronary thrombosis “was due solely to disease; and the onus is on claimant to establish that the asserted accident was at least a contributory cause without which the occlusion would not have occurred.” Schlegel v. H. Baron & Co., 130 N. J. L. 611; 34 Atl. Rep. (2d) 132.

In Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, 410, Mr. Justice Bodine quoted Lord Loreburn in Clover, Clayton & Co. v. Hughes, 3 B. W. C. C. 284, to the effect:

“In other words, did ho die from the disease alone or from the disease and employment taken together, looking at it broadly?” And “Was it the disease that did it or did the work he was doing help in any material degree ?”

Under this rule we find that the appellant has sustained the burden of proving her ease.

Where the work contributes to and accelerates the death, the death is compensable. The Commissioner found that the death was an inevitable outcome of the disease, but, in the light of the testimony of the medical authorities that effort or strain in most cases produces angina, and the fact that the decedent admittedly had several attacks either of angina or of minor occlusions before the fatal occlusion, and the fact that the fatal occlusion followed so closely on the repeated attacks of Wednesday through Saturday, whether the fatal occlusion happened at home after a meal or at work on Friday or Saturday, it would seem most logical that there is a causal connection between the work and the death.

The decedent had a coronary disease. The work put further strain on an already weak heart, lessening the ability of the heart to withstand further strain, and hastening the death. Following the law as laid down in Hentz v. Janssen Dairy Gorp., supra, these circumstances constitute an accident compensable under the statute, N. J. S. A. 34:15—1, et seq.

Hence the matter is referred to the Workmen’s Compensation Bureau for a determination in accordance with the views herein expressed.


author: Ackeeson, S. C. C.

text:
    HOBOKEN LOCAL NO. 2, NEW JERSEY STATE PATROLMEN’S BENEVOLENT ASSOCIATION, AN UNINCORPORATED ASSOCIATION, CONSISTING OF MORE THAN SEVEN MEMBERS, PLAINTIFF, v. CITY OF HOBOKEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided May 23, 1945.

      Por the plaintiff, Bothbard & Talisman.

    3Tor the defendant, John J. Fallon.

   Ackeeson, S. C. C.

Plaintiff, an unincorporated association, sues as the assignee of the claims of sixty-six members of the uniformed paid police department of the City of Hoboken for compensation alleged to be due to them for serving one day in each week, from March 12th, 1935, to the institution of this action, in excess of the limitation of six days of service in any one week prescribed by R. S. 40:47-17; N. J. S. A. 40:47-17.

The statute (R. S. 40:47-17; N. J. S. A. 40:47-17) provides as follows:

“The days of employment of uniformed members of any paid police department in any municipality, * * * shall

not exceed six days in any one week, but in case of an emergency the officer, board or other official having charge or control of all such police departments shall have full authority to summon and keep on duty any and all such officers during the period of the emergency, but within twelve months after such emergency eaeh uniformed member of such police de-1 partment shall be given a day off duty for each extra day so served by him, during the emergency.”

The mailer is presently before the court on defendant’s motion to strike the complaint on the grounds of its alleged legal insufficiency, and because an unincorporated association has no legal capacity to hold personal property or to contract, and, therefore, the aforesaid assignments of claims to the plaintiff are invalid and ineffective to sustain this action.

Two theories for recovery are advanced to support each individual elaim to compensation, and they are set forth in separate counts in the complaint. In other words eaeh assigned claim is set up in two separate counts.

In the first count respecting each of said claims, after stating the employment of the particular policeman from March 12th, 1935, to the institution of this action, it is alleged that “by virtue of the statute” (R. S. 40:47-17; N. J. S. A. 40:47—17) it became the duty of the defendant to regulate said employment in accordance therewith. It is then alleged that it also “became the duty of the defendant by virtue of the statute in such ease made and provided, as aforesaid, in the event that it employed the said [policeman] for more than six (6) days in any one (1) week to compensate [him] for the said extra day that it so employed him.” It is further alleged that the defendant employed the said policeman and that he performed services for the defendant “for seven (7) days in eaeh week” during all of the aforesaid period, “and the said defendant failed to give [him] days off for each extra day served * * * during any emergency. It then and there became the duty of the defendant * * * to compensate the said [policeman] for the reasonable value of the * * * services he rendered on the 7th day of each week * * *” as aforesaid, which has not been done.

Obviously the cause of action thus attempted to be asserted is predicated solely on the aforesaid statute. The question presented is: Does this statute give rise to a cause of action to .the particular policeman because he was required or permitted to work more than the scheduled six days a week, and in case of an emergency was not given a day off for each extra day served during such emergency?

It is a well settled rule, that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the ease that by subsequent statutes or ordinances his duties are increased and not his salary. His undertaking is to perform the duties of Ms office whatever they may be from time to time during his continuance in office for the compensation stipulated—whether these duties are diminished or increased. Whenever he considers the compensation inadequate, he is at liberty to resign. Evans v. City of Trenton, 24 N. J. L. 784, 766; State v. Paterson, 40 Id. 186; Knight v. Freeholders of Ocean, 48 Id. 70; 3 Atl. Rep. 344; Seymor v. Orange, 74 N. J. L. 549; 65 Atl. Rep. 1033. A policeman is a public officer within this rule. Specie v. Borough of Fairview, 7 N. J. Mis. R. 410; 145 Atl. Rep. 618.

Plaintiff acknowledges this rule but claims that the aforesaid statute (R. S. 40:47—17; N. J. S. A. 40:47-17) renders it inapplicable in the present case because, as stated in its brief, the intent of the legislature was to correct the mischief of the old rule whereby polieemen could be required “to work for unusually lengthy periods without extra compensation,” and the statute, by defining the regular working time of such officers, authorizes recovery of compensation for overtime service.

The difficulty with this contention lies in a misconception of the purpose of the legislation in question. It was not designed, as plaintiff supposes, to increase the compensation of polieemen for overtime service as in that type of statutes commonly referred to as “wages and hours” legislation, but rather to protect the health and increase the efficiency of policemen by requiring time off for rest, pleasure and recreation. Therefore, the cases construing statutes fixing a minimum wage, or statutes providing for or permitting overtime pay, are not applicable to the situation before us. This statute relates exclusively to the health of the policemen and not to their compensation. That this is so is manifested by the fact that where overtime service is permitted in eases of emergency, the act does not provide for extra monetary compensation therefor, but instead provision is made for a day off for each extra day served during such emergency. This statute makes no provision for any other recompense and clearly does not provide that the municipality must compensate a policeman in money if he does not get his days off as required thereby. It gives no civil remedy or private right of action for overtime service. This statute clearly indicates, as already observed, that the sole purpose of its enactment was to provide for the health and efficiency of policemen. Pericin v. Denburg’s Modern Bakery, 130 N. J. L. 547; 33 Atl. Rep. (2d) 825. The case last cited is in point and controlling upon the proposition that the statute in question does not confer a right to compensation for overtime services. It is also authority for the proposition that, even if this count had not been based upon a supposed right conferred by statute, and excluding the averments to that end, the remaining allegations would not give rise to a cause of action under the common law for damages in quasi contract on a quantum meruit basis. However, the question of an implied contract on common law principles will be more fully and appropriately dealt with hereafter in considering plaintiff’s second theory of recovery.

Turning now to the second count respecting the claim of each individual policeman, we find the pertinent averments to be as follows: “On the aforesaid date of March 12th, 1935, the said [policeman], and the defendant did agree that” the latter “should render services as a uniformed member of the Police Department of the defendant, and to be compensated as theretofore, but that the work week should consist of six (6) days only. The agreement further provided that in the event the said [policeman] should render services for a 7th day, defendant would compensate him therefor at the reasonable value thereof.” That services were rendered “on the defendant’s promise to pay for same for seven (?) days in each week from the aforesaid date of March 12th, 1935, to the institution of this suit, but in violation of its agreement as aforesaid [defendant] has failed to compensate said [policeman] for work, labor and service rendered on the 7th day of each week” during said period. It is not alleged, however, that any of the services performed on the seventh day of any week were rendered during an emergency.

The question presented by this pleading is whether, in view of the aforesaid statute (R. S. 40:47—17; N. J. S. A. 40:47—17), the agreement of a municipality engaging and promising to pay for overtime services of the members of its police department can be enforced against it?

As already observed this statute provides that “the days of employment” of such policemen “shall not exceed six days in any one week” except in cases of emergency when a day off is allowed for each extra day served during such emergency. The presumption is that the word “shall” in a statute is used in an imperative and not in a directory sense. If a different interpretation is sought, it must rest upon something in the character of the legislation or in the context which justify a different meaning. Haythorn v. Van Keuren & Son, 79 N. J. L. 101, 105; 74 Atl. Rep. 502; State v. Wilcox, 2 N. J. Mis. R. 320. It was used in a mandatory or imperative sense in this statute which embodies the public policy of protecting the health and efficiency of regularly employed policemen. As was said by our Court of Errors and Appeals in the ease of John J. Carlin, Inc., v. O’Connor, 126 N. J. L. 243 (at p. 247); 17 Atl. Rep. (2d) 584, 586, “Better working conditions for labor have always been a real concern of the legislature. Such, in fact, can be said to constitute a public policy of this state.”

To effectuate this public policy in the ease of regularly employed policemen, R. S. 40:47-17; N. J. S. A. 40:47-17, places a definite limit on the authority of municipalities with respect to their employment. A municipality is without power to exceed the limitation upon continuous service therein fixed.

It is well settled that a municipal corporation can act only-through. its authorized agents, and that where the powers of the corporation or its agents are subjected by law to restrictions with respect to the subject-matters of contract, or to restrictions as to the form and method of contracting that are limitations upon the power itself, the corporation cannot be held bound by either an express or implied contract in defiance of such restrictions. In such cases only a limited power is granted, and consequently an act done beyond the scope of such power is ultra vires and void. Jersey City Supply Co. v. Jersey City, 71 N. J. L. 631, 633; 60 Atl. Rep. 381; Bourgeois v. Freeholders of Atlantic, 82 N. J. L. 82, 86, 87; 81 Atl. Rep. 358; Hackettstown v. Swackhamer, 37 N. J. L. 191; Ely v. Newark, 76 Id. 532; 70 Atl. Rep. 159; Fletcher v. Board of Education, 85 N. J. L. 1; 88 Atl. Rep. 834; McLean v. Newark, 94 N. J. L. 401; 110 Atl. Rep. 692; Potter v. Metuchen, 108 N. J. L. 447; 155 Atl. Rep. 369; Sleight v. Board of Education of Paterson, 10 N. J. Mis. R. 523; 159 Atl. Rep. 707; 38 Am. Jur. 182, § 506.

The case sub judice is different from a suit against a private corporation on a claim arising out of an ultra vires contract. The defendant in this case is a municipal corporation. The alleged agreements out of which the plaintiffs claims arise are ultra vires, not because of the provisions of some private charter, but because they violate the public policy of this state as expressed in the aforesaid statute. Eckert v. West Orange, 90 N. J. L. 545 (at p. 549); 101 Atl. Rep. 269. The evil aimed at by this statute is the confining work of policemen and its effect upon their health and efficiency, and the public policy expressed with respect thereto cannot be maintained by upholding contracts made in violation thereof. This is emphasized by contrasting the present situation with that involved in the ease of John J. Carlin, Inc., v. O’Connor, supra, 126 N J. L. (at p. 247); 17 Atl. Rep. (2d) 586.

Where a contract is made by a municipal corporation which is not warranted by the statutory authority conferred upon it, the governing body of the corporation has at all times the right to treat the contract as void and to refuse compliance therewith. A reason frequently advanced in support of this rale is that since the powers of a municipal corporation are wholly statutory, every person who deals with sueh a body is bound to know the extent of its authority and the limitations on its powers. It is generally held that when a contract has been entered into by a municipal corporation with respeet to a subject-matter which was not within its corporate powers, or which it is authorized to make only under prescribed conditions, within prescribed limitations, or in a prescribed mode or manner, the corporation cannot be held liable on the contract regardless of whether the other party thereto has fully carried out his part of the agreement. The corporate powers of such a corporation cannot be extended by the doctrine of estoppel. 38 Am. Jur. 182, § 506; 38 Id. 202, 203, 204, § 522; Swackhamer v. Hackettstown, supra; Hill Dredging Co. v. Ventnor City, 77 N. J. Eq. 467; 78 Atl. Rep. 677; Jersey City Supply Co. v. Jersey City, supra; Eckert v. West Orange, supra; Sleight v. Board of Education of Paterson, supra.

Furthermore, the law will not permit recovery on a quantum meruit in a suit against a municipality where an express contract would be ultra vires. Recovery has frequently been allowed on a quantum meruit, where there has been some unimportant irregularity in the proceedings, or an innocent mistake as to some matter of fact. But the law will not raise an implied promise which would, as in this ease, be in direct defiance of an act of the legislature. Otherwise this statute (R. S. 40:47—17; N. J. S. A. 40:47—17), which applies to all municipalities alike, and represents a definite public policy, could be nullified by proof of the fact that the particular policeman had worked overtime and therefore was entitled to what sueh work was reasonably worth. It is a fallacy to argue that the law will raise an implied power to pay for the services after they have been rendered. The impediment to such a theory is that the municipal corporation has not the power to make the promise thus sought to be implied. Eckert v. West Orange, supra, 90 N. J. L. (at p. 550); 101 Atl. Rep. 269. To hold otherwise in this ease would amount to judicial repeal of a beneficent public policy established by legislative authority.

So, whether the plaintiff’s claims aTe based upon the statute,! or upon express or implied contract, they cannot be enforced for the reasons above expressed, and the complaint will, therefore, be stricken as frivolous because not setting forth a cause of action. The result thus reached makes it unnecessary to consider whether the assignments of the claims to the plaintiff are invalid and ineffective to sustain its right of action.

A form of order may he presented in accordance with the conclusion hereinabove expressed.


text:
    FRANK MARTZ COACH COMPANY, INC., A CORPORATION LICENSED TO TRANSACT BUSINESS IN NEW JERSEY, FOR THE USE OF MARKEL SERVICE, INC., A CORPORATION, AND AMERICAN FIDELITY AND CASUALTY INSURANCE COMPANY, A CORPORATION. PLAINTIFF, v. HUDSON BUS TRANSPORTATION CO., INC., A CORPORATION OF NEW JERSEY, AND CHARLES SNYDER, DEFENDANTS.
    Decided May 15, 1945.

      For the plaintiff, Alan Kraut.

    For the defendants, Autenrieth, & Wortendyhe.

   Ackeeson, S. C. C.

This matter is before the court for determination without a jury upon the pleadings and stipulated facts which are accepted as the findings of the court with respect to the factual situation of the parties so far as within the issues raised by the pleadings.

It appears from the original and supplemental stipulations that on August 21st, 1939, the plaintiff, Frank Martz Coach Company, hereinafter referred to as Martz, and the defendant Hudson Bus Transportation Co., hereinafter referred to as Hudson, were corporations engaged in the business of transporting passengers as common carriers. On that date Martz hired from Hudson a bus to be driven by the defendant Charles Snyder, an employee of Hudson, for the transportation of the passengers of Martz. Hudson agreed to and did in fact carry and have in effect liability insurance covering said bus. On said day this bus of Hudson, while being driven by the defendant Snyder and carrying passengers of the plaintiff Martz, was involved in a collision resulting from the negligence of Snyder who, at the time, was operating the bus as “an employee of Hudson but directed by Martz to operate” same on the trip in question. Claims were made against Martz by certain of said passengers which were settled by Martel Service, Inc., an insurance carrier for Martz, pursuant to its policy covering the plaintiff, Martz, for the total sum of ^YoO, of which $150 was paid for counsel fees in suits instituted against Martz upon said claims. It does not appear, however, that said suits were ever reduced to judgment nor that the defendants, Hudson and Snyder, were ever notified of or participated in said suits or the settlement thus reached.

After said claims were paid this action was instituted in the name of Martz, for the use of its said insurance carriers, against both Hudson and Snyder to recover the amount so paid, plus the attorney’s fee, and the alleged cause of action is set forth in two counts.

The first count of the complaint is against Hudson alone and it is not predicated upon the theory of indemnity because of any negligence on the part of the defendants in the operation of the bus. Indeed it is not averred that the collision in question was occasioned by the negligence of either of them. It is based specifically and wholly upon an alleged breach of contract in that at the time of the engagement for transportation, Hudson “agreed to provide liability insurance for the protection of the aforesaid passengers,” and “In violation of its agreement, and contrary thereto, the defendant [Hudson], failed or neglected to carry liability insurance on its vehicles, and refused to assume responsibility and control of the aforementioned claims, whereby the plaintiff,” Martz, and its insurance carriers were “forced to expend large sums of money by reason of said breach of agreement.”

According to this pleading the pertinent agreement was that Hudson was to provide such liability insurance, and upon this subject the only proof offered, as appears from the stipulated facts, is that “Hudson agreed to and did carry and have in effect liability insurance covering said bus.” Therefore, plaintiff has failed to prove a breach of the specific agreement pleaded.

The second count of the complaint is against the defendant Snyder alone and avers that on August 21st, 1939, plaintiff, Martz, “hired a bus of the defendant [Hudson] and directed the defendant Charles Snyder to operate same from a point in the State of New York to a point in the State of Pennsylvania.” That, while operating it “on behalf of the plaintiff [Martz]” through the latter state, Snyder negligently collided with another vehicle injuring several passengers in the bus he was operating. As a proximate result of Snyder’s negligence, Martz was forced to pay various sums to compensate said injured passengers, and, although Martz has demanded reimbursement from Snyder, he has refused to pay same. Therefore, Martz, for the use of its above-mentioned insurance carriers, demands as damages of the defendant Snyder the sum of $1,500.

The supplemental stipulation amends this count to allege, in accordance with the fact, as stated in the original stipulation, that Martz and Hudson were common carriers of passengers on the occasion in question. This supplemental stipulation also states that the plaintiff, Martz, was not individually negligent with respect to the collision; that the passengers whose claims were settled were free from contributory negligence, and that the amount paid in settlement of said claims and the attorney’s fees was reasonable.

The legal question' presented by this count is whether a common carrier of passengers having hired a bus and driver for the transportation of its passengers from another common carrier, under the circumstances here presented, may have indemnity from the driver for the reasonable amount paid in settlement of the claims of such passengers for injuries arising solely from the driver’s negligence, even though such claims háve not been reduced to judgment?

It appears that the accident in question occurred in the State of Pennsylvania, but the pertinent law of that state with reference to the question of liability here presented is neither pleaded nor disclosed. It must, therefore, be presumed that common law principles apply, and that they have been interpreted there as they have been here. N. J. S. A. 2:98-28 (Pamph. L. 1942, ch. 104, p. 365, § 1); Waln v. Waln, 53 N. J. L. 429; 22 Atl. Rep. 203; Coral Gables, Inc., v. Kretschmer, 116 N. J. L. 580; 184 Atl. Rep. 825; Kelly v. Kelly, 134 N. J. Eq. 316; 35 Atl. Rep. (2d) 618.

It is a general rule, approved by the courts of our state, that there can be no contribution nor indemnification between joint tort-feasors. Newman v. Fowler, 37 N. J. L. 89; Public Service Railway Co. v. Matteucci, 105 Id. 114; 143 Atl. Rep. 221; Manowitz v. Kanov, 107 N. J. L. 523; 154 Atl. Rep. 326; Cosgrove v. Ellenstein, 114 N. J. L. 155; 176 Atl. Rep. 178; Universal Ind. Co. v. Caltagirone, 119 N. J. Eq. 491; 182 Atl. Rep. 862; Florentino v. Adkins, 9 N. J. Mis. R. 446; 154 Atl. Rep. 429.

However, it is equally well settled that where a principal or employer is not in fault, but has been compelled to pay damages to a third person for the negligence of his agent or employee, he may maintain an action over against such servant or employee to recover what he has been compelled to pay. As between themselves the master and servant are not regarded as joint tort-feasors. Indeed under such circumstances the master is not regarded technically as a tort-feasor at all, but is held to liability under the doctrine of respondeat superior being, in effect, the servant’s surety. 42 C. J. S., Indemnity, 597, § 21 (cases cited in footnote 58); 31 C. J. 447, note 95; 39 Id. 1313, § 1514; 27 Am. Jur. 468, § 19; 110 A. L. R. (Annotated) 834, et seq.; Washington Gas Light Co. v. District of Columbia, 161 U. S. 316, 328; 16 S. Ct. 564; 40 L. Ed. 712; Stulginski v. Cizauskas, 125 Conn. 293; 5 Atl. Rep. (2d) 10; Travelers Insurance Co. v. Great Lakes Eng. W. Co., 184 Fed. Rep. 426, 431; 36 L. R. A. (N. S.) 60; Fedden v. Brooklyn Eastern District Terminal, 204 App. Div. 741; 199 N. Y. S. 9, 11; Karcher v. Burbank, 303 Mass. 303; 21 N. E. Rep. (2d) 542; 124 A. L. R. 1292; Kramer v. Morgan (2d Cir.), 85 Fed. Rep. (2d) 96; Huey v. Dykes, 203 Ala. 231; 82 So. Rep. 481; Doremus v. Root, 23 Wash. 710; 63 Pac. Rep. 572, 574; Story on Agency (9th ed.), § 217; 4 Thompson on Neg., § 3870; 7 Labatt, Mast. & Serv. (2d ed.) 8011.

The case of Universal Ind. Go. v. Galtagirone, supra, is not in conflict with this latter rule because our Court of Errors and Appeals was not dealing there with a suit for indemnity by a master against his servant, but the master’s insurance carrier in his right, was seeking contribution from other tortfeasors who were included, along with such master, and servant, in the judgment recovered by the injured party. Therefore, the statement in the opinion that the rule against contribution between joint tort-feasors applies “whether the one who seeks contribution was * * * liable by legal imputation, as under the doctrine of respondeat superior” was clearly applicable to the situation there presented because that doetrine is applicable where third parties are concerned but not' .as between the master and his servant alone.

The basis for the different rule where the master, who is not at fault, seeks indemnity from his servant for the result of the latter’s negligence may be found in the cases of Karcher v. Burbank and Kramer v. Morgan, supra, where it was held that the principal’s liability to a third person for the negligence of his agent is of a derivative or secondary character, resting solely on the doctrine of respondeat superior, and the principal is, in effect, the agent’s surety and can recover over against him if compelled to pay damages for his negligence while he was acting as agent within the scope of his authority. Under such circumstances the master is regarded in the role of a surety rather than a tort-feasor.

The plaintiff insists that Snyder was the agent or servant of the plaintiff, Martz, on the occasion in question and, therefore, under the last mentioned rule, he is liable to the plaintiff for the amount paid by it in settlement of the claims of its passengers.

If we exclude the stipulated fact that Martz, at the time, was a common carrier of passengers, it is doubtful whether the facts otherwise stipulated would establish the relationship of master and servant between Martz and Snyder under the tests set up in the case of Goldwyn v. Coast Cities Coaches, Inc., 129 N. J. L. 501; 30 Atl. Rep. (2d) 295. However, it appears that Martz was a common carrier, and it is settled that the obligation of a common carrier to exercise a high degree of care for the safety of its passengers cannot be delegated to an independent contractor and its agents, particularly where, as here, the carrier, whether engaged in interstate or intrastate motor carriage, is regulated by elaborate rules and regulations and required to obtain a certificate or permit to operate (49 U. S. C. A., §§ 301, et seq.; N. J. S. A. 48:4-3, et seq.; Ibid. 48:4^-18), and, therefore, is in'the exercise of a public franchise or privilege involving risk of harm to others. Karpinski v. South River, 85 N. J. L. 208, 211; 88 Atl. Rep. 1073; Barrow S. S. Co. v. Kane, 88 Fed. Rep. 197; Venuto v. Robinson, 118 Fed. Rep. (2d) 679; Duncan v. Evans, 134 Ohio St. 486; 17 N. E. Rep. (2d) 913; Chattanooga, &c., Railroad Co. v. Liddell, 85 Ga. 482; 11 S. E. Rep. 853; 13 C. J. S., Carriers, 1317, § 703. This rule was applied in those cases in which it has been held that a railroad company is responsible for the neglect or misconduct of the servants of a sleeping ear company, whereby a passenger sustains loss or injury while being transported under the contract with the railroad company. Pennsylvania Co. v. Roy, 102 U. S. 451; Dwinelle v. New York Central and Hudson River Railroad Co., 120 N. Y. 17; 24 N. E. Rep. 319; Railroad Co. v. Walrath, 38 Ohio St. 461; Kinsley v. Railroad Co., 125 Mass. 54. In Dwinelle v. New York Central and Hudson River Railroad Co., supra, it was held that the porter of a sleeping car was, while assisting the railroad company in carrying out its contract of transportation with the passenger, the servant of the company although it did not own the sleeping car, or hire or pay the porter. See, also, Thorpe v. New York Central and Hudson River Railroad Co., 76 N. Y. 406, and Pennsylvania Co. v. Roy, supra.

Obviously Martz, as a common carrier of passengers could not delegate its duty with respect to their safe transportation to Hudson, and, therefore, was responsible, so far as the passengers were concerned, for Snyder’s conduct in the operation of the bus to the same extent as though Martz had hired him for that purpose and is, therefore, entitled to indemnity from Snyder under the rule hereinabove stated.

Although defendants do not raise the point in their brief, it may be well to note that even though the settlement of the passengers’ claims by the plaintiff appears to have been voluntary in the sense that the claims were not reduced to judgments, nevertheless, that fact does not defeat the right to indemnification. Voluntary payment merely varies the degree of proof needed to establish the liability of the indemnitor by casting upon the indemnitee the burden of proving (1) that he was liable; (2) that the settlement was reasonable; and (3) that his liability was of such a character that, in spite of it, he may recover over against the defendant. Popkin Bros. v. Volk’s Tire Co., 20 N. J. Mis. R. 1; 23 Atl. Rep. (2d) 162; Wise Shoes, Inc., v. Blatt, 107 Pa. Super. 473; 164 Atl. Rep. 89, 91; Colonial Motor Coach Corp. v. New York Central Railroad Co., 131 Misc. 891, 900, 902; 228 N. Y. S. 508, 518, 520; 31 C. J. 453. The pleadings and stipulated facts in the case sub judice show that the plaintiff has met this burden.

The defendants seem to contend in their brief that the plaintiff cannot recover because, although it appears from the complaint that the plaintiff sues “for the use” of its insurance carriers, nevertheless, the complaint does not disclose that such insurance carriers are assignees or subrogees of any right or cause of action which may have accrued to the plaintiff against the defendant Snyder. However, by suing for the use of its insurance carriers, the plaintiff has disclosed on the face of the pleading, and in the accepted way, that if is a trustee for such carriers. Therefore, it cannot be of any concern to the defendant, a tort-feasor, who, at any rate, was under a legal obligation to pay the loss to the insured, as to what the contractual or legal status between the insured and its insurers is. He is protected in any event under such pleading. Jennings v. Studebaker Sales Corp., 112 N. J. L. 399, 408; 170 Atl. Rep. 626; Sullivan v. Visconti, 68 N. J. L. 543, 548, et seq.; 53 Atl. Rep. 598; Belton v. Gibbon, 12 N. J. L. 76; Howell v. Lehigh Valley Railroad Co., 94 N. J. L. 213, 217; 109 Atl. Rep. 309; Popkin Bros., Inc., v. Volk's Tire Co., supra; Travelers Insurance Co. v. Great Lakes Eng. W. Co., supra.

I, therefore, find in favor of the defendant, Hudson Bus Transportation Co., Ine., and against the plaintiff on the first count of the complaint, a verdict of no cause of action. I further find in favor of the plaintiff and against the defendant Charles Snyder on the second count of the complaint, for the principal sum of $750 and interest thereon at six per cent, from May 15th, 1943, amounting to $90, or a total sum of $840. Interest is figured from the date on which the summons herein was issued (May 15th, 1943), inasmuch as neither the complaint nor the stipulated facts disclose the date when plaintiff settled the claims of its passengers. A form of postea may be presented in accordance with the conclusions thus reached.


text:
    Passaic County Court of Common Pleas.
    JACK DONNELLY, PETITIONER-APPELLEE, v. WRIGHT AERONAUTICAL CORP., RESPONDENT-APPELLANT.
    Decided November 5, 1945.
    For the petitioner-appellee, Nathan Babinowitz and Isadora Babinowiiz.

    For the respondent-appellant, John W. Taylor.

   Delaney, C. P. J.

This is an appeal from a finding of facts and rule for judgment entered by Deputy Commissioner Stahl in the Workmen’s Compensation Bureau, awarding petitioner-appellee compensation for thirty per eent. permanent loss of the left eye. FTo question is raised on this appeal by respondent-appellant as to the happening of the accident in the course and out of the employment or that the injury resulted from foreign bodies entering the eye or that said accident resulted in a permanent injury to his left eye.

The sole question raised here by respondent concerns the quantum of the award, respondent claiming that the deputy commissioner had no power to make an award in excess of any estimate submitted by physicians testifying in the case.

The physician for petitioner, Dr. Atwood, testified that the loss of vision was about twenty per eent. The doctor for respondent testified that “ten per cent, disability could be. allowed considering the disfigurement caused by the scar and my estimate was ten per cent, disability.” In response, however, to the question on direct examination, “You say that the estimate of loss of vision is ten per cent, then?” he testified, “That is the way I feel about it.” This is a bit confusing, since he included “disfigurement” of the scar in the ten per cent, estimate and immediately afterward estimated the “loss of vision” alone at ten per cent.

We are not convinced that Dr. Lobsenz considered in his estimate of the loss of vision the interference -feat the scar caused to the vision, as did the commissioner.

Dr. Atwood’s estimate of twenty per cent, does not include the physical disfigurement of the scar, nor its interference with the vision. In his opinion, the deputy commissioner allowed the claimant thirty per cent., saying:

“It seems to me in this case to come to a conclusion as to the extent of permanent disability. It is not so much how much loss of vision the petitioner has suffered by reason of these scars, but it is rather the interference that has resulted. In other words, one may have a vision that is not disturbed as to acuity, but because some mechanical defect is in there interfering with the vision that becomes just as much a disability as if the man’s visual acuity were disturbed. * * *• I feel there is considerable interference there, which in turn affects the function of the eye. * * * And so I feel with this large sear in the pupillary area which this man has, he, to a marked degree, is suffering a loss of function of the eye. * * *

“But I am inclined to believe the permanent impairment of this man’s eye is mueh greater by reason of this sear, which looks very much like a cataract, and in considering that, there is no question in my mind that it interferes with the man’s ability to see and also to use his eye.”

The tests or charts referred to by the doctors take into consideration only loss of vision. The commissioner in his award included an additional feature, the interference of the ; sear with the vision.

The commissioner sits as a judge of the facte as well as the law, and his judgment of a fact should not be loosely-disturbed unless it is an abuse of discretion or against the weight of the evidence.

In Everhart v. Newark Cleaning and Dyeing Co., 120 N. J. L. 474; 200 Atl. Rep. 759, 760, the court said:

“Disability in the statutory sense is rarely, if ever, susceptible of precise admeasurement. Of course, the medical testimony is not conclusive. In a ease such as this, the question is one peculiarly for the experienced judgment of the determinator of the facte, who is of necessity guided largely by his own observation of the disfigured employee.”

Here there was no arbitrary decision, but the commissioner has substantiated his conclusion with valid observations, one means of discovering facte.

“Considerable weight should be given the findings of fact as found by the Deputy Compensation Commissioner, as he had the opportunity of hearing and observing the witnesses, which the Court of Common Pleas did not have.” Kaltman & Co. v. Itzkowitz, 135 N. J. L. 191; 43 Atl. Rep. (2d) 284, 285.

The judgment of the Workmen’s Compensation Bureau is affirmed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIZABETH ZIETKO, PETITIONER, v. JACQUES WOLF CO. AND NEW JERSEY MANUFACTURER’S CASUALTY INSURANCE CO., RESPONDENT.
    Decided June 25, 1945.

      For the petitioner, Nathan and Isadora Babinowitz.

    For the respondent, George E. Meredith.

   In this matter petition was filed by petitioner seeking compensation for the death of her son, which death took place on November 16th, 1939, and it is said, was by accident arising out of and in course of said decedent’s employment with respondent. The petition herein was filed May 2d, 1945, and respondent in lieu of usual answer to the same has made motion for dismissal on six counts, only one of which, namely the first, is perhaps in point with the present proceedings and on this count respondent requests dismissal on the grounds the petition was filed after the two year limitation for filing same had expired.

A petition was filed once before in this case on April 18th, 1940, which was subsequently dismissed, on proper notice, for lack of prosecution by this Bureau on February 16th, 1943. An appeal was taken from this order by petitioner to the Common Pleas Court but the same on March 2d, 1945, was dismissed without prejudice. There was also an action in the matter brought in the Supreme Court on the basis of an alleged contract to pay compensation made between the parties but which action was dismissed in that court on the ground that all original jurisdiction in the matter was in the Compensation Bureau.

In the present petition petitioner asks for a hearing on the merits; an award for seven checks issued by respondent in payment of some installments of compensation under said agreement; or an amount stipulated for in said agreement.

This agreement it is alleged was entered into by the parties on a form provided and prescribed by the Bureau and known as Form No. 4. In this form respondent undertook to pay to petitioner 300 weeks compensation at $2.28 per week totaling $684 and in addition $150 statutory funeral allowance. This agreement was made on January 27th, 1940, and was signed by the employer’s insurance carrier, named as one of respondents herein, New Jersey Manufacturer’s Casualty Insurance Co., but not by petitioner. On January 29th, 1940, there was issued and filed by the New Jersey Department of Labor its form No. 6, signed by Daniel A. Spair, secretary of Workmen’s Compensation Bureau, approving said agreement. It is alleged petitioner was advised by letter on January 24th, 1940, by said insurance carrier that it would not be necessary for her to sign any forms at this time.

Bespondent’s contention that the Bureau is without present jurisdiction in the matter because of the appeal by petitioner from its previous order dismissing the original petition to the Common Pleas is without merit as this action is on a new and not the old petition and the appeal has in any event been dismissed in the Pleas. Also its contention that the matter is res judicata by reason of the action in the Supreme Court is unfounded for in that jurisdiction there was no hearing on the merits of the controversy but merely a holding that the Supreme Court was without original jurisdiction in that matter which was in the Bureau and as to the contention that the dismissal of the previous petition by the Bureau is dispositive of the issue this is not true if the present petition is filed within a time contemplated by the statute, Sack v. Ocean City, 125 N. J. L. 138; 14 Atl. Rep. (2d) 517; City of Long Branch v. Finn, 131 N. J. L. 488; 37 Atl. Rep. (2d) 96.

As to the contention that the petition herein is filed within a time permitted by the statute it is urged by petitioner that there is in fact a valid agreement existing between her and respondent for the payment of compensation. This is the agreement above referred to that was filed by the respondent with the Department of Labor on January 27th, 1940, signed by the carrier and approved by the Bureau on its prescribed forms. Since the carrier in the case advised petitioner that it would not be necessary for her to sign an agreement and thereafter filed the papers without her signature and further subsequently made some payments on the same it would seem to me that the respondent would now be estopped to deny the eifieacy of said agreement thereby and thus the agreement becomes a valid one, Pathe Exchange, Inc., v. Court of Common Pleas, 102 N. J. L. 443; 131 Atl. Rep. 923.

Holding such agreement valid it then becomes necessary to consider petitioner’s contention that the petition herein under consideration is filed within the time provided by the statute in that payments provided in said agreement would still be due and owing and in fact would be due and owing until August 16th, 1943, and that the petitioner can bring her petition within two years of respondent’s failure to pay any one of the said weekly payments agreed to be made.

The point appears to he a novel one and I know of no case in point. The statute provides, R. S. 34:15-31; N. J. S. A. 34:15-51, inter alia, that in case an agreement for compensation has been made between the employer and the claimant, petition must be filed within two years after the failure of the employer to make payment pursuant to the terms of such agreement. And again a payment, or agreement to pay by the insurance carrier, shall for the purpose of this section be deemed a payment or agreement by the employer. This section it is to he noted does not specify on which breach of payment the statute is to toll and it would appear to me that the breach of each payment is a continuing failure to pay during the term of the payments agreed upon. Had the legislature intended that the statute should toll upon the first breach it could very readily have said so, but since it is silent on this point it seems to me that the petitioner is at liberty to file her petition within two years of respondent’s failure to meet any of the required payments within the terms of the agreement and this she does herein as the final payment is not yet due under the terms of the agreement. I will therefore find that the petition herein appears to be filed within time and deny the motion for dismissal made by respondent.

It is accordingly ordered that respondent file an answer to the petition herein in accordance with the law and that the ease proceed to trial in usual course.

Harry H. Umbergeb,

Deputy Commissioner.


author: Leyden, S. C. C.

text:
    EVERETT J. CHAPMAN, PLAINTIFF, v. GEORGE H. MITCHELL AND EVELYN ESTES, DEFENDANTS.
    Decided October 29, 1945.
    Por the plaintiff, Evans, Hand & Evans.

    Por the defendants, Charles S. Silberman.

   Leyden, S. C. C.

Supreme Court rule 81, requiring an affidavit verifying the cause of action, stating the amount claimed, and the plaintiff’s belief that there is no defense to the action, is applicable only when the motion is for summary judgment upon a debt or liquidated demand arising upon a contract, a judgment for a stated sum, or upon a statute. The present motion is to strike the answers of the defendants upon the grounds that they are insufficient in law and sham. It does not seek summary judgment and rightfully so, as a Supreme Court Commissioner has no power to enter a judgment in a Supreme Court issue. Supreme Court rule 84. The defendants’ contention that the motion is fatally defective for failure to comply with rule 81, is therefore without, merit. 1

The plaintiff is a tenant by the entirety of a house and lot situated in the Township of "Wyekoff, Bergen County. Two intruders, the defendants, occupy the premises with him at the instance of his wife, and contrary to his permission and consent. The one, Mitchell, is a discharged handyman who presently occupies sleeping quarters in the basement. The other, Estes, is a granddaughter of the wife. Both have been ordered by the plaintiff to leave and each refuses to do so. Hence this suit in ejectment.

The answers filed by the defendants are not in accordance with Supreme Court rule 185. In addition to specific denials of the paragraphs of the complaint, Mitchell’s answer contains two separate defenses to the effect that the plaintiff, together with his wife, Mary L. Chapman, employed the defendant as a caretaker for the remainder of his life and that he, Mitchell, entered the premises under the hiring and was accepted by the plaintiff as general caretaker of -file premises. The separate defense set up by the defendant Estes is to tile effect that she entered the premises with the full knowledge and consent of the plaintiff. These separate defences are insufficient in law and the denials of the allegations of the complaint aTe sham and do not entitle the defendants to defend.

The plaintiff is the master of his household. He is the managing head, with control and power to preserve the family relation, to protect its members and to guide their conduct. He has the obligation and responsibility of supporting, maintaining and protecting the family, and the correlative right, to exclude intruders and unwanted visitors from the home despite the whims of the wife. Assuming the defendants entered the premises with the permission of the plaintiff, the affidavits disclose conclusively that that permission has long since been revoked by him. The defendants have no standing in a court of law and an order may be submitted striking out the answers.