author: Evans, D. C. J.

text:
    District Court of the Second Judicial District of the County of Monmouth.
    JUAN JOSE NAVARRO, PLAINTIFF, v. PEARL MARTIN AND GEORGE R. MARTIN, DEFENDANTS.
    Decided July 31, 1944.
    For the plaintiff, Frankel & Frankel.

    For the defendants, Harry B. Cooper.

   Evans, D. C. J.

The state of demand in this matter was filed by plaintiff against defendant, George E. Martin, as owner of the automobile and against the co-defendant, Pearl Martin, as the operator of the said automobile. An answer and counter-claim was filed on behalf of both defendants. It contained firstly, the answer; secondly, a separate defense and thirdly, the counter-claim. The counter-claim is divided into three counts; the first on behalf of the defendant Pearl Martin for personal injuries for which she demands damages in the sum of $500, the second count is set forth by defendant George E. Martin and demands damages in the sum of $300 for property damage to his car and the third count is also on behalf of defendant George E. Martin for medical expenses in the care and treatment of his wife, Pearl Martin, for which he demands $200 damages. At the end of the counterclaim is another paragraph setting forth the three separate demands again.

This matter has been argued before me on motion to dismiss the counter-claim in that the total demand of defendants in said counter-claim exceeds the jurisdiction of this court.

The question actually involved appears to be: is the limitation on the demand of a party to an action or the total demands regardless of the parties and causes of actions properly joined?

The District Court is purely statutory and its jurisdictional limitations are contained in R. S. 2:8-40; N. J. S. A. 2:8-40:

“Every action of a civil nature at law, or to recover any penalty imposed or authorized by any law of this state, where the debt, balance, penalty, damage or other matter in dispute does not exceed, exclusive of costs, the sum or value of five hundred dollars, shall be cognizable in the district courts of this state.”

And as to counter-claim in R. S. 2:8-42; N. J. S. A. 2:8-42:

“Where the debt, balance or other matter in dispute, or the amount really due or recoverable, as provided by section 2:8-40 of this title, exceeds, exclusive of costs, the sum or - value of five hundred dollars, either plaintiff or defendant may recover in a district court a sum not exceeding five hundred dollars and costs, which recovery shall bar the recovery of the residue of such debt, balance or other matter in dispute in any court whatsoever.

“Either plaintiff or defendant in a set off or counter-claim may waive the excess over five hundred dollars.”

Under R. S. 2:32-49; N. J. S. A. 2:32-49, it was necessary for each of the defendants to file his or her cause of action or be barred.

The District Court Act further contains a provision for the removal of a cause to the Circuit Court in the event it exceeds the jurisdiction of this court R. S. 2:8-44; N. J. S. A. 2:8-44, and plaintiff contends defendants should follow this course or file a separate answer and counter-claim.

If it is a true statement that the counter-claim filed exceeds the jurisdictional limitation of this court then the responsibility of the defendants was to comply with this section. But was there such responsibility since the demands of neither party exceed the $500 nor could either defendant file an affidavit that he or she believed their counter-claim would exceed the sum limited?

The statutes provide in the District Court procedure R. S. 2:32-2; N. J. S. A. 2:32-2:

“Except where there is an express provision of law providing otherwise, the practice and procedure in the Circuit Courts shall, in so far as applicable, apply to the District Courts.”

I find no decision in New Jersey exactly in point with the question involved here and it may well be that common practice has avoided the issue.

Each of the defendants have a distinct and separate claim that arose out of the same accident against the' same party plaintiff. In the answer and counter-claim filed, the counterclaims of each are set up in separate counts and in no one count does the total demand of either defendant exceed the jurisdictional limitation. Each count has its own ad damnum clause and no confusion or difficulty would be presented in the formation of a judgment for one or both of defendants should either or both be successful.

A counter-claim is deemed to be a cross action, and the rules respecting the form and manner of pleading the complaint, apply to the counter-claim. Supreme Court rule 66; N. J. S. A. tit. 2. Generally a court has jurisdiction to entertain and adjudicate upon a claim asserted by way of counter-claim only where it would hare jurisdiction of an independent action upon such claim. 47 Am. Jur. 780, § 92; 57 C. J. 374, § 21.

“Plaintiff may join separate causes of action against, several defendants, if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions.” R. S. 2:27-38; N. J. S. A. 2:27-38.

Since the counter-claim in question is made up of causes of action by a husband and wife, the following section is more specific:

“A husband, in an action by himself and his wife for an injury to the wife, in respect of which the wife is a necessary co-plaintiff, may add to the cause of action claims in his own right arising ex delicto. Separate actions brought in respect to such claims may be consolidated by order of the court or a judge.” R. S. 2:27-40; N. J. S. A. 2:27-40.

And as to counter-claims the Practice Act provides:

“Subject to rules, the defendant may set off or counterclaim any cause of action.” R. S. 2:27-137; N. J. S. A. 2:27-137.

Deeming it proper practice for the defendants to join their separate causes of action in one answer and counter-claim it must next be determined whether the jurisdictional limitation is exceeded.

In determining jurisdiction the amount claimed in the complaint governs, the rule in this respect being that jurisdiction is fixed by the amount for which judgment could be rendered on the facts set out when viewed in the aspect most favorable to the plaintiff. 15 C. J. 755, § 53; 21 C. J. S., Courts, § 55; 14 Am. Jur. 408, § 210.

Mr. Justice Reed in Clancy v. Neumeyer, 51 N. J. L. 299; 17 Atl. Rep. 154, after reviewing the earlier eases on jurisdiction in Small Causes Courts Acts concluded:

“My conclusion therefore is, that the propeu practice for a justice when such a plea is tendered, claiming a balance due the defendant of over $200, is to overrule the plea on the ground of want of jurisdiction.”

A reading of Bowler v. Osborne, 74 N. J. L. 216; 64 Atl. Rep. 697, approves the theory of the amount claimed establishing the jurisdictional answer with the additional conclusion in the Errors and Appeals decision that by admitting the plaintiff’s claim the defendant can set up a claim greater than the jurisdictional amount so long as the balance claimed is under the limitation.

Mr. Justice Nevins 100 years ago in Howell and White v. Burnett, 20 N. J. L. 265, in determining the right of a party to waive interest to bring the claim within the jurisdiction stated:

“It is not denied, that the jurisdiction of a justice is limited in amount to $100, and if the demand on its face exceed that sum, the justice should dismiss the action.”

This case was cited and followed in Mooney v. Woolhouse, 77 N. J. L. 325; 72 Atl. Rep. 53, when Mr. Justice Reed interpreted the later legislative enactments respecting the District Courts. Kienzle v. Gardner, 73 N. J. L. 258; 63 Atl. Rep. 10; Corkran and Meloney v. Taylor, 77 N. J. L. 195; 71 Atl. Rep. 124.

While it has been definitely decided in our courts that single or entire causes of action may not be subdivided into" several claims and separate actions maintained thereon—Smith v. Red Top Taxicab Corp., 111 N. J. L. 439; 168 Atl. Rep. 796; Schwartz Bros. Truckmen, Inc., v. International, &c., 478, 126 N. J. L. 379; 19 Atl. Rep. (2d) 690; Alexander v. Manza, 21 N. J. Mis. R. 295; 34 Atl. Rep. (2d) 11, no ruling has been established on whether the amount of each separate demand or cause of action is the controlling factor or if it is the total of all the separate demands in any state of demand or counter-claim. It might be implied from Phillips v. Foster, 4 N. J. Mis. R. 248; 132 Atl. Rep. 327, that separate causes of action set up in one action by one party in an aggregate of over the jurisdictional limitation would not meet with approval but that is not the situation in this instance nor does it answer the present question.

Not finding any cases in point and looking to our sister states for enlightenment I find that they practically all follow the rule that the amount of the separate demands govern.

14 Am. Jur. 413, § 217, “Where several claimants have separate and distinct demands against a defendant or defendants, which may properly be joined in a single suit, the claims cannot be added together to make up the required jurisdictional amount; each separate claim, furnishes the jurisdictional test." See 15 C. J. 768, § 64; 21 C. J. S., Courts, 79, § 64.

In the State of Connecticut the courts have held as follows:

“The demurrer to the complaint was properly overruled. A demurrer was not a proper form of pleading for raising the question of jurisdiction. But since each of the five counts was for the recovery of a claim of less than $1,000, they were all properly joined in one action returnable to the court of common pleas.” Johnson v. Cooke, 85 Conn. 679; 84 Atl. Rep. 97; Ann. Cas. 1913C, 275.

“While, under section 812, Gen. St. 1888 (section 558, Gen. St. 1902) in actions brought to the courts of common pleas or district court of Waterbury, separate demands founded on contract, express or implied, some or all of which are below the jurisdiction of said courts, may be combined for the purpose of conferring jurisdiction, section 811, Gen. St. 1888 (section 557, Gen. St. 1902) does not provide for the combination of several separate claims in order to confer upon the court jurisdiction of each of such claims, but for the joinder in one complaint of any number of claims founded upon or evidenced by distinct contracts, each of which claims is within the jurisdiction of the court to which the action is brought, and for the rendering of a judgment upon each of said counts by any court whose jurisdiction is limited by the amount in controversy, although the aggregate of said claims upon which judgment is so rendered may exceed the maximum jurisdictional limit of said court. This section does not apply to the superior court, which has no maximum jurisdictional limit. The plaintiff was entitled to recover upon the first count of the complaint, but not upon the second.” Brennan v. Berlin Iron Bridge Co., 75 Conn. 393; 53 Atl. Rep. 779.

In the State of New York the courts have held as follows:

Nowinski v. LaMonte, 168 Misc. 586; 5 N. Y. S. (2d) 894, decided May 21st, 1938, Municipal Court. An infant sued for personal injuries and the father i /r loss of services and the summons demanded $1,500 for uoth. There was no endorsement on the summons or split-up of the amount. The court said: “The effect of the decisions as to the endorsement on the summons in the Municipal Court is that where the causes of action are separated and each plaintiff seeks damages on each cause of action in a sum not exceeding the jurisdictional limit of the court even though the bocy of the summons contains a demand for judgment in an amount in excess of the jurisdictional limit, the court has jurisdiction.” In this case, however, there was no such separation and the court was held to be without jurisdiction and it was further held that jurisdiction over the subject-matter cannot be conferred by consent.

Farkas v. Metz, 160 Misc. 9; 289 N. Y. S. 214, decided City Court, June 22d, 1936. The complaint set forth four causes of action and demanded specifically stated sums from the individual defendant and from the corporate defendant. Each plaintiff demanded a separate judgment against each defendant. The complaint was held good as not violating the $3,000 jurisdictional limit of the court.

Murtagh v. Keystone Transportation Co., 150 Misc. 686; 269 N. Y. S. 903, two plaintiffs joined and the body of the complaint demanded judgment for $1,250. The endorsement on the summons separated the causes of action and the plaintiff wife claimed $1,000 and the plaintiff husband $250. The sole ground for moving to dismiss was that the $1,250 demanded deprived the court of jurisdiction. The court held jurisdiction was proper.

Dobrinkin v. Union Railway Co., 130 Misc. 796; 225 N. Y. S. 376, there were two plaintiffs, husband and wife. Each in a separate cause of action demanded judgment for $3,000. The husband died and no personal representative was appointed and at the commencement of the trial the plaintiffs’ attorney moved to amend the complaint and strike out his cause of action. The motion was granted and the ease proceeded on the wife’s cause of action. After judgment on that cause of action it was claimed that the court was without jurisdiction. This claim was held invalid and it was affirmed in the Appellate Term. An appeal was taken to the Court of Appeals in 250 N. Y. 561; 166 N. E. Rep. 324, which appeal was dismissed on the ground that permission to appeal had not been obtained and the constitutional question was not raised in the lower courts.

In Merten v. Queens Rental Corp., 241 App. Div. 831; 271 N. Y. S. 271, decided April, 1934, the court held:

“The City Court has jurisdiction where several plaintiffs in one complaint each separately states his cause of action based on one and the same tort and each demands a separate judgment in an amount not exceeding $3,000. Events subsequent to our decision by a closely divided court in Dilworth v. Yellow Taxi Corp., 220 App. Div. 772; 221 N. Y. S. 813, warrant an abandonment of the theory therein enunciated and for the sake of uniformity the adoption of the rule now prevailing in the First Department.

In the ease Dilworth v. Yellow Taxi Co., supra, there were five plaintiffs in one action and the summons provided for a separate judgment for each plaintiff. The complaint separately stated the injury to each plaintiff and demanded a separate and distinct judgment. The Municipal Court and the Appellate Term held the complaint was good and the court had jurisdiction but the Appellate Division reversed and dismissed the complaint by a three to two vote, holding the Municipal Court was without jurisdiction. This same court seven years later in the above case reversed its position and in the Merten case held the maintenance of the action in that court 'was proper.

In Spetler v. Jogel Realty Co., 224 App. Div. 612; 231 N. Y. S. 517, decided City Court, December, 1928, a husband, wife and son joined as plaintiffs in one complaint and each demanded $3,000. The court was held to have jurisdiction in this action.

Sirop v. Bernard Greenwood Co., 134 Misc. 836; 236 N. Y. S. 588, 589, decided Municipal Court, September, 1929. Several plaintiffs each sued to recover $1,000 in one action in the Municipal Court and the court was held to have jurisdiction in that action.

In Agostinacci v. Brooklyn City Railway Co., 141 Misc. 908; 254 N. Y. S. 485, decided Municipal Court, November, 1931, three separate actions had been started by three separate plaintiffs arising out of one accident. The total recovery sought in the three actions exceeded $1,000. A motion was made to consolidate the actions for trial and resisted on the theory that it would deprive the court of jurisdiction. The motion was granted and it was consolidated.

In the State of Pennsylvania the courts have held as follows:

‘Tinder a statute which, although providing that rights of action by husband and wife to recover damages for injury to the wife should be redressed in one suit brought in the names of the husband and wife, kept separate the independent causes of afition and provided for the rendition of separate verdicts and the entry of separate judgments, a court has jurisdiction over such an action where the amount claimed by each plaintiff is within the court’s jurisdictional limitation, although the total amount claimed by both exceeds such limit.” 21 C. J. S., Courts, 80, ¶ 64, note 57, citing Fries v. Wiser, 62 Pa. Super. 218.

While the decisions of our sister states as cited above go farther than it is necessary for me, they aid me in determining what course our courts will adopt when it has been finally settled.

The plaintiff selected the court and under the statutes above referred to each defendant must set forth his or her counter-claim or be barred. It would seem fallacious to say that each co-defendant having separate causes o£ action against the plaintiff arising out of the same accident would have to seek out the other defendant to ascertain whether the total amount of their separate counter-claims would exceed the jurisdictional limitation. Under Warner v. Public Service Co-ordinated Transport, 9 N. J. Mis. R. 328; 153 Atl. Rep. 711; Spencer v. Haines, 73 N. J. L. 325; 62 Atl. Rep. 1009; O’Carroll v. Stark, 85 N. J. L. 438; 89 Atl. Rep. 969; Conti v. Alea, 107 N. J. L. 391; 153 Atl. Rep. 636; Lipari v. National Grocery Co., 120 N. J. L. 97; 198 Atl. Rep. 393; Picariello v. Linares and Rescigno Bank, 127 N. J. L. 63; 21 Atl. Rep. (2d) 343, and Wilson v. Deschner, 11 N. J. Mis. R. 609; 167 Atl. Rep. 670, if both defendants were successful separate judgments would be entered designating the amount for each defendant; and under Sweet v. Excelsior Electric Co., 59 N. J. L. 441; 31 Atl. Rep. 721, no judgment can be entered in favor of either defendant on the counter-claim in an amount greater than the amount claimed in the ad damnum, clause.

It would therefore seem to be the rule that the jurisdictional'limitation contained in the District Court Act is a limitation upon the total demands of any one defendant in the counter-claim regardless of the number of parties and separate causes of action properly joined therein.'

Motion of plaintiff denied.


source: Caselaw Access Project

author: Martino, D. C. J.

license: Public Domain

text:
    Camden City District Court.
    GOTHAM CREDIT CORPORATION, PLAINTIFF, v. NELLIE POWELL AND CONNIE SOKALSKI, DEFENDANTS.
    Decided July 18, 1944.
    For the plaintiff, Joseph L. Kramer.

    For the defendant Connie Sokalski, Benjamin Asbell.

    For Nellie Powell, Edward A. Tanski.

   Martino, D. C. J.

On November 13th, 1942, plaintiff recovered a judgment in the Court of Common Pleas No. 6, for the County of Philadelphia, in the State of Pennsylvania, against both defendants. The judgment was based upon a warrant to confess judgment executed by the defendants in the State of New Jersey. The warrant to confess judgment was part of a note which was executed by the defendants, and the warrant to confess judgment contained .the following provision:

“The maters jointly and severally hereby constitute and appoint the attorney for the payee herein or the holder of this note or any attorney of any Court of Eeeord of the State of Pennsylvania or elsewhere, their true and lawful attorney, for them and in their names and stead to appear for and to enter judgment against them, or any of them, for the above sum, with or without declaration filed, with costs of suit, release of errors, without stay of execution; and we also waive the right of inquisition on any real estate that may be levied upon to collect this note, and do hereby voluntarily condemn the same, and authorize the Prothonotary to enter upon the Fi. Fa., our said voluntary condemnation, and we further agree that said real estate may be sold on a Fi. Fa., and we also waive and release all benefit of relief from any and all appraisement, stay, or exemption laws of the State of Pennsylvania, or any other state and of the United States now in force, or hereafter to be passed in so far as the same can be waived by us.”

The defendants contend that judgment was improperly entered in the State of Pennsylvania. At the time of the trial counsel for defendants made much of the fact that since the warrant of attorney to confess judgment was included in the body of the note it was void under the laws of the State of New Jersey. R. S. 2:27-266; N. J. S. A. 2:27-266. The defendants therefore felt that since the warrant of attorney to confess judgment was void in the State of New Jersey where it was executed the judgment obtained therefrom was not entitled to full faith and credit by the courts of this state. . This raises the question whether a judgment entered without process, or appearance but entered in conformity with the authority given by a warrant of attorney executed by the defendants confers jurisdiction upon a court to enter a judgment which is unassailable collaterally in both domestic and foreign jurisdictions. The practice of empowering an attorney to appear and confess judgment is a part of the common law procedure. 3 Bl. Comm. 397.

In construing the statute which is now recognized as 2 :27-266, our highest court has held that this statute must be construed to be a mere regulation of the practice in our own courts. The legislature did not intend to prohibit the making in this state of warrants of attorney for use in other states which are in the form that is legal in their courts, for it placed the prohibition on this form of warrants of attorney in an act purporting by its title to regulate the mode of entering judgments which cannot have any extra territorial force. Hendrickson v. Fries, 45 N. J. L. 555. Courts have repeatedly held that the right to have a suit commence by process is a personal privilege that may be waived by the debtor. Crosby v. Washburn, 66 Id. 494; 49 Atl. Rep. 455; nor can it be denied that the warrant of attorney authorizing another to appear and enter judgment without process is a waiver of such right—Hazel v. Jacobs, 78 N. J. L. 459; 75 Atl. Rep. 903. The courts of this state have recognized the conclusive character of foreign judgments entered without process but upon the authorization of a warrant of attorney to appear for the defendant. Hendrickson v. Fries, supra; Shelmerdine v. Lippincott, 69 N. J. L. 82; 54 Atl. Rep. 237.

Since the trial, counsel for defendants contend that the judgment was not entered in the State of Pennsylvania according to the authorization signed by the defendants at the time the note which contained the warrant to confess judgment was executed. Counsel for defendants lay much stress on the case of Grover and Baker Sewing Machine Co. v. Radcliff (U. S. Supreme Court, 1860), 137 U. S. 287; 11 S. Ct. 92, where a judgment was entered by a prothonotary of the State of Pennsylvania, without the appearance of an attorney of any court of record when the authorization expressly provided that "any attorney of any court of record in the State of New York, or any other state, to confess judgment against him (us) for the said sum with release of error, &c.” The United States Supreme Court held that since the “record [judgment] did not show, nor is it contended that he was served with process or voluntarily appeared or that judgment was confessed by an attorney of any court of record of Pennsylvania,” the 'judgment was invalid.

In the case at hand the exemplified copy of the judgment record of the State of Pennsylvania shows that on November 12th, 1942, “upon motion of one Harry E. Back, Esquire, attorney for the plaintiff” Judge Elood ordered and directed the prothonotary of Philadelphia County to enter judgment on the warrant to confess. Counsel for the defendants contend that the failure of an attorney to appear for the defendants makes the judgment defective. With this contention I do not agree. The warrant to confess judgment expressly provided that “the makers jointly and severally hereby constitute and appoint the attorney for the payee herein * * * their true and lawful attorney for them * * * to enter judgment against them, &c.”

Judgment is therefore entered on behalf of the plaintiff and against the defendants together with'interest and costs.


author: Fulop, D. C. J.

text:
    District Court of the Second Judicial District of the County of Union.
    JOSEPH SEMLER AND BERT GAIMS, CO-PARTNERS, DBA JOSEPH SEMLER, PLAINTIFFS, v. AGNES M. SCHMICKER, T/A LA MODE MILLS, A CORPORATION, DEFENDANT.
    Decided August 19, 1944.
    For the plaintiffs, Jacob L. Nydick.

    For the defendant, Peter L. Hughes, Jr.

   Fulop, D. C. J.

Defendant ordered thirty dozens of “pantys” from plaintiffs in Eew York to be shipped to defendant in Rahway. The price of the goods was $413.50. The sale was on short credit, defendant to pay immediately on receipt of the goods.

The goods were sold by sample and description. Plaintiffs packed the goods ordered and shipped them by railway express, making no declaration of value in excess of $50 and providing no insurance. The goods were lost in transit.

Defendant disclaimed any interest in recovery from the express company. Plaintiffs thereupon collected $50, the limit of the carrier’s liability, credited this amount to defendant’s account, and here sue for the difference.

Plaintiffs’ proof was uncontradieted that the goods shipped were in strict conformity with the sample and description of the goods ordered. Defendant testified that she expected to pay the shipping charges.

One of the plaintiffs testified that he told the defendant that the goods would he shipped by rail or railway express and would be insured for $50 and that defendant said that would be satisfactory. Defendant emphatically denied any such conversation and denied that there was any discussion as to the method of shipping or insurance coverage. They had not had any previous dealings and defendant says she had no knowledge of the plaintiffs’ custom of shipping with no insurance coverage beyond the $50 limit of the carrier’s liability.

The sale was made in New York and should be governed by the law of that state.

Where a transaction is governed by foreign law and that law is not pleaded and proved, the presumption is that the law of the foreign jurisdiction is the same as the common law-of New Jersey. New Jersey statutory provisions are not applicable.

Neither side has pleaded or proved New York law. Both counsel cite and rely upon the provisions of the New Jersey Uniform Sale of Goods Law (R. S. 46:30; N. J. S. A. 46 :30).

However, our statute, the New York Personal Property Law, and the common law all seem to. lead to the same result.

In Miller v. Harvey (1917), 221 N. Y. 54; 116 N. E. Rep. 781; L. R. A. 1917F 559, the New York Court of Appeals in an opinion by Judge Cardozo held:

“The plaintiff sold to the defendant in the City of New York automobile tires which were to be sent by ezpress to Allenhurst, New Jersey. The price, $95.43, was paid by the defendant in advance. The seller intrusted the tires to an ezpress company without declaring their value. The waybill states that the value was asked and not given. By the contract of carriage the liability of the carrier was limited to $50, unless a greater value was ‘declared and paid for or agreed to be paid for at the time of shipment.’ The tires were lost in transit. The defendant notified the plaintiff of the loss and requested a duplicate shipment, which was made. The question to be determined is whether payment must be made again.

“The general rule is that delivery to a carrier is delivery to the buyer. Sales of Goods Act, section 127, subdivision 1; Personal Property Law, as amended by laws 1911, chapter 571, Consol. Laws, chapter 41. But the rule has its ezception. Sales of Goods Act, section 100, rule 5; section 127, subdivisions 2 and 3. Only one of them will be considered. By section 127, subdivision 2, of the Sales of Goods Act, it is provided: ‘Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages.’

“The statute is declaratory of the rule at common law. The seller must not sacrifice the buyer’s right to claim indemnity from the carrier. That rule was declared more than a century ago in Clarke v. Hutchins, 14 East 475; 104 Eng. Reprint 683. In that case the carrier gave notice that it would not be answerable for any packages above five pounds without special entry of value. The seller omitted the entry and was held to have assumed the risk. A more modern instance is a recent decision of the Supreme Court of the United States. Reid v. Fargo, 241 U. S. 544; 36 S. Ct. 712; 60 L. Ed. 1156. An agent delivered an automobile to a ■ carrier and accepted a bill of lading by -which liability was limited to $100. The acceptance of such a limitation was held to be a breach of duty. There are other cases of like tenor. Buckman v. Levi, 3 Campb. 414; Stafford v. Walter, 67 Ill. 83; Lewis v. Imhof, 138 Mo. App. 370; 122 S. W. Rep. 329; Gordon v. Ward, 16 Mich. 360. To the same effect .are the leading textbooks. Williston, Sales, §■§ 278, 595; Benjamin, Sales (5th ed.) 739; 2 Mecham, Sales, 1183; .Burdick, Sales, § 694.

“Tested by these principles, the plaintiff’s ease must fail. He limited the carrier’s liability to $50. He sacrificed the ■defendant’s right of indemnity to the extent of almost one half of the value of shipment. He did this when full indemnity could have been procured by an additional payment of •ten cents. That.was not a reasonable protection of the interests of his principal. The plaintiff’s argument, if sound, would require us to hold that the acceptance of a like limitation would be reasonable if the value had been $1,000. Precedent and reason forbid that conclusion. The seller who puts -the buyer at the mercy of the carrier must procure the buyer’s approval, or assume the risk himself.”

N. J. S. A. 46:30-25 and 46:30-52 contain the same pro-visions as the New York statute referred to by ’Judge Cardozo. The quoted case is exactly in point and the law applicable to the case at bar cannot be better stated.

The fact that the merchandise was paid for in cash in ■ advance in the quoted case, while it was to be paid for after •delivery in this case, is not material.

The only remaining question is whether plaintiffs did, in fact, obtain defendant’s assent to the unfavorable contract •with the carrier. Ho doubt it would have cost a few cents more to insure the merchandise for its full value. But this •charge did not matter to plaintiffs, since defendant was to pay the shipping charges. Plaintiffs’ counsel argues from -this that plaintiffs’ version of the facts should be believed. It seems to me to lead to the opposite conclusion.

Plaintiffs’ story necessarily presupposes a consciousness on their part of their responsibility for making a proper shipping .agreement with the carrier. In effect, they say they made a careful effort to avoid liability and to put the burden on •defendant. But the simplest and easiest way to avoid liability would have been to arrange for sufficient insurance and let defendant pay for it.

There is no indication that defendant asked plaintiffs to keep down the shipping charges. Why should plaintiffs have •been so much concerned with saving a few cents for defendant, as to get her express consent to take the risk of losing $362.50?

It would have been a simple matter for plaintiffs to note the shipping instructions on the memorandum of the order which was in fact made in writing. This was not done.

Plaintiffs say they always ship without insurance. If so, they might have protected themselves by using order forms with printed shipping instructions.

The burden of proof is on the plaintiffs. They have not satisfied me by the preponderance of the credible evidence that defendant assented to the unreasonable shipping contract.

Therefore, defendant may treat the delivery to the carrier as no delivery to her and she is not liable.

Judgment will be entered in favor of the defendant.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VINCENZO CRECCO, PETITIONER, v. DALEY EXCAVATING COMPANY, RESPONDENT.
    Decided June 28, 1944.
    For the petitioner, David Roskein.

    For the respondent, Cox & Walburg.

   A formal petition having been filed in the above ease on August 9th, 1943, claiming compensation under R. S. 1937, title 34, chapter 15; N. J. S. A. 34:15-1, et seq.; and an answer being duly filed; and the parties having appeared before me at Newark, May 18th, June 15th and June 16th, 1944; and testimony being taken in my presence and in the presence of counsel, I find and determine as follows:

Petitioner alleged that he suffered an accident April 30th, 1941, while working for the respondent; that the nature thereof was adjudicated by an order of this Bureau on October 21st, 1941, but that petitioner’s incapacity had increased.

In its answer, the respondent contended that the payments of compensation made under a formal judgment of this Bureau, dated October 16th, 1941, were proper and adequate compensation for the injury petitioner sustained as a result of the accident petitioner suffered while working for the respondent.

In support of his allegations, the petitioner testified that on September 10th, 1942, in his backyard at 59 ISTaples Avenue, Belleville, he took a step-ladder out into the yard for the purpose of picking figs from a fig tree. He stated that it was an eight-foot step-ladder and he was six steps or approximately six feet up the ladder. He had been on the ladder about eight or nine minutes and had half a pail full of figs. The ladder was being held by his wife and another woman. He was not holding on to anything and the pail was on a hook. He said that while in this position, engaged in this activity he had a sharp pain in his left knee and fell sidewise. When he fell, he struck the ground and was injured. In attempting to describe the pain, he used various descriptions, sometimes stating that he never had a pain like this one before, that it was a sharp pain, but a different one. Another time, he said that he had the pain before and it would come and go. Another time, he said it was continuous. He also remarked it was raining and change of weather would give him a sharp pain. He claimed that the pain caused him to fall from the ladder. He also stated that before he went on the ladder, he had a pain. He then described briefly the medical treatment which was rendered to him and the difficulties which he has. His wife testified as to the episode and more particularly as to holding the ladder. He said that the pail in which the figs were being put by her husband as he was up on the ladder was hung on a limb to the right side.

A Mrs. Di Martino testified she was upstairs and was asked if she would come out and hold the ladder. She testified as to the circumstances and the fall.

By consent, petitioner placed in evidence certain medical and hospital records and X-rays. Dr. Max Kummel testified from examinations made by him. He testified as to findings from examination made by him July 14th, 1941, and September 30th, 1941, in connection with an injury sustained while petitioner was working for the Daley Excavating Company, respondent. He descended the conditions which he found at that time and expressed an opinion that there was a disability of 12%% of the leg by reason of the conditions in the knee, as described. He confirmed the testimony which he gave before this Bureau in connection with the trial held October 16th, 1941, resulting in a determination of facts and rule for judgment, dated October 21st, 1941. He also testified as to examinations made in August and October, 1943, and described the conditions which he then found. He diagnosed the conditions which he then found as being a com-minuted inter and sub-trochanteric fracture. He also identified and interpreted some x-rays of the pelvis and hips and estimated the disability. He also expressed an opinion as to causal relationship.

Dr. Stockfish, neurologist, testified from an examination made by him in May, 1944. He enumerated his findings and gave his opinion as to disability and causal relationship.

^Respondent produced Dr. C. A. Beling, who examined the petitioner September 8th, 1943. He gave his various findings, more particularly, with reference to the left knee and left hip. He expressed his opinion as to causal relationship and disability.

I have not enumerated in detail the testimony, except to refer to the pertinent portions thereof. In the first place, the determination of facts and rule for judgment, dated October 21st, 1941, is res judicata. It is final and conclusive as to all questions of law and fact comprehended by the judgment, including the question of jurisdiction, the right to compensation, and also as to the nature and extent of the existing disability. Drake v. Hill, 117 N. J. L. 290; 187 Atl. Rep. 637; Tucker v. Beltramo, Inc., 117 N. J. L. 72; 186 Atl. Rep. 821; De Marco v. McGraw, 13 N. J. Mis. R. 856; 181 Atl. Rep. 639; De Pasquale v. Contalvi, 126 N. J. L. 136; 18 Atl. Rep. (2d) 840; Drexl v. Jurgensen, 19 N. J. Mis. R. 643; 22 Atl. Rep. (2d) 816.

In accordance with the said judgment, the petitioner suffered a disability to his left leg to the extent of 10% thereof ana was temporarily disabled to August 7th, 1941. Apparently, thereafter the petitioner engaged for a brief period of time in employment, and although not industrially employed, did get about without any episodes involving a giving way of his leg.

In connection with the judgment rendered, it appears that the disability allowed in the aforesaid judgment was in the nature of a restriction of extension of the left knee, to the extent of 10%, and a slight restriction of flexion and complaints of tenderness. I was careful to note the findings of Dr. Kummel in that aspect of the matter, to see whether or not there was some specific condition which would make reasonable the petitioner’s statement that he fell because of a hard or sharp pain in his knee.

In my careful consideration of the doctor’s testimony, not only did it appear that at most there were but a slight restriction of flexion, tenderness and a complaint of pain in September, 1941, but when the doctor examined on two occasions following the ladder episode, there were no findings with respect to the knee. The diagnosis involved only the hip region. The x-rays which weie taken in preparation of the petitioner’s ease were only of the hip region, and the disability which the petitioner presented was based upon the comminuted fracture in the hip region. This is confirmed by the testimony of Dr. Beling, who made a specific examination of the petitioner’s left knee and checked with an x-ray. The x-ray findings in 1943 apparently revealed the same condition as the x-rays which were used by the petitioner in 1941 and testified to by Dr. Kummel. At the examinations following the ladder episode, there was no new or acute condition found by Dr. Beling, and Dr. Kummel testified as to nothing specific involving the left knee.

Dr. Beling more concisely found that there was no swelling •or areas of tenderness about the left knee and found what apparently was the slight limitation which petitioner had and for which he was awarded disability under the previous judgment. My interest in that phase of the case was because after hearing the testimony of the petitioner and the two witnesses whom he produced, it left me very much in doubt as to the credibility of that testimony. The doubt arises from the unreasonableness of the testimony. The petitioner while on the ladder and not holding on to anything had picked enough figs to fill half a pail. The ladder once placed had not been moved. Is it true that the petitioner did not have to extend himself and do some reaching to pick enough figs to fill the pail?

Another question which came to my mind after hearing the lay testimony was a consideration of the fact that at no other time had the petitioner had such pain in his knee that he fell. It seems strange to me that the pain came at a time when he was on this eight-foot step-ladder. Or, viewed from another perspective, how is it if the petitioner had pain with his knee, that he nevertheless undertook to pick figs while six feet up on an eight-foot step-ladder ? Certainly, by doing so, he created a hazard for himself.

Without passing upon the reasonableness of the petitioner’s factual testimony, and without determining the serious question of credibility which is obviously a factor to be considered, I, however, am of the opinion that there is'a legal problem, the resolution of which is unfavorable to the petitioner under the circumstances in this particular case.

In this particular case, the testimony as I have indicated above clearly' demonstrates that the petitioner’s now existing disability is the result of a fracture in the region of the left hip. There is no testimony that there is any change or any findings in any way relating the disability of the petitioner to anything, except the collision of his body with the ground. In other words, the disability is the result of the fall from the eight-foot step-ladder.

One of the medical witnesses expressed the opinion that the. disability would not have occurred if the petitioner had not been up on the ladder. There are a number of decisions of our Appellate Courts concerning themselves with tho responsibility for disability where there are two separate episodes involved. Some of the eases involve two separate-episodes during employment.

This particular case is one wherein the event which caused rather extensive disability occurred in the petitioner’s own backyard, and he seeks therefore to charge a former employer,, with whom he had a former accident, as being the responsible party. He seeks to do so on the theory that he had a prior accident with this former employer on April 30th, 1941, and as a result of that accident, suffered an injury to his leg, more particularly, the knee. He claims that the fall from the ladder was caused by reason of a particular pain at the site of the knee which was previously injured. As previously stated by me in reference to the medical testimony adduced, there is nothing to account for such an episode. There was no fracture, the objective findings were minimal. In fact, there is no mention of the knee specifically by the petitioner’s doctors on their recent examinations after the ladder episode. I have, therefore, nothing before me in the testimony to reasonably account for the man’s fall from the ladder, except his statement that he had a pain and this caused him to fall. And yet, is that sufficient to charge his previous employer with responsibility? This ladder episode occurred a year and a half after the industrial accident. In that interim, apparently petitioner had never had any pain which caused him to fall. In my opinion, the circumstances are not such as to impose liability to respond in compensation upon the respondent, who was the employer in April, 1941.

Eeferring to the legal problem and its resolution, I am of the opinion that in consideration of the principles enunciated by our Appellate Courts, the respondent is not here liable. One of the earliest cases involving two accidents is that of Selak v. Murray Rubber, 8 N. J. Mis. R. 838; 152 Atl. Rep. 78; affirmed, 108 N. J. L. 548; 159 Atl. Rep. 93. It was there stated:

“In the present ease, the testimony is positive that boney union was far from complete and that because of this weakness, due to the primary industrial accident, a condition existed which caused a secondary event to prolong the disability.”

In the instant case, there is not even any reference to disability in the knee found in the examinations of 1943, except a confirmation that there existed the same condition which was before the court at the trial in October, 1941.

In the case of Lazzio v. Primo Silk, 114 N. J. L. 454; 177 Atl. Rep. 251, 253, liability was imposed upon the employer “because of the fact that the original injury had not completely healed at the time of the second accident.”

In the more recent case of McDonough v. Sears Roebuck, 127 N. J. L. 160; 21 Atl. Rep. (2d) 314, 315, it was stated: “In short, the inquiry is whether the injury is reasonably attributable to a' proximate cause set in motion by the accident, rather than some other agency.”

So, also in Randolph v. Du Pont, 130 N. J. L. 354; 33 Atl. Rep. (2d) 301, 302, it was stated:

“If a reasonably prudent person innocently aggravates the-harmful effect of the original injury, the original wrongful cause continues and accomplishes the final result.”

Lastly, a study of the recent ease of Reynolds v. Passaic Valley Sewage, 130 N. J. L. 437; 33 Atl. Rep. (2d) 595, satisfies me that the rule there adopted imposes the responsibility for the injuries which petitioner sustained upon himself, and not upon his former employer. Under the testimony in the instant ease, the fall which the petitioner had would not have carried the consequences which it did, had the petitioner himself not gone up on this eight-foot stepladder to pick figs in his own backyard. His actions had subjected him to a special danger, and from the testimony of his own witnesses, the injury resulted from his fall from the height at which he had placed himself and the manner-in which he was undertaking to pick the figs.

My conclusion is that there was no involvement to or-injury in the left knee following the ladder episode of September, 1942; that the petitioner by his own actions had placed himself into a hazardous position, and that solely because of this hazardous condition, had he suffered the disability which he now presents. He had placed himself in this hazardous position not by reason of any industrial occupation, or because industrial employment had required him to-engage in the particular activities of picking figs. He had done this of his own volition and as a purely personal matter, and had thus created the hazardous situation which was the-cause of sustaining the disability which he now has. In my opinion, the disability claimed is not the result of an injury which was reasonably attributable to a cause set in motion. by his industrial accident of April 30th, 1941, but rather to' a combination of circumstances which the petitioner himself created for his own personal desire.

I, therefore, conclude that the petition must be dismissed.

* ** * * * * *

Haeey S. Mmdinets,

Deputy Commissioner.


author: Oliphant, S. C. C.

text:
    PENNINGTON TRAP ROCK COMPANY, PLAINTIFF, v. PENNINGTON QUARRY COMPANY AND LINUS R. GILBERT, DEFENDANTS.
    Decided August 29, 1944.

      For the plaintiff, Katzenbach, Gildea & Rudner (George Gildea, of counsel).
    For the defendants, Samuel Koestler,

   Oliphant, S. C. C.

This is a motion by defendant Linus E. Gilbert to strike out the fourth, fifth and sixth counts of plaintiff’s complaint and to dismiss the complaint as against said defendant. The complaint contains three other counts, namely, the first, second and third which are directed against the corporate defendant and concerning which there is no dispute in so far as this motion is concerned.

The fourth count alleges in substance that Gilbert, the sole owner of all the capital stock of the corporate defendant and the one in sole and absolute control of the said defendant, ordered and directed various violations of a lease between plaintiff and the corporate defendant under which the former leased to the latter a certain quarry and the structures, tools and equipment thereon, among which violations were the failure to keep and maintain the buildings, plants, improvements, fixtures, furniture, machinery and equipment in good order and repair, the damage beyond repair of the machinery and equipment by improper use and abuse, the removal of parts of the machinery and other property, the demolition and damage of other parts, the failure to work the demised premises according to the rules and customs pertaining to stone quarries and with due regard to the preservation of the demised premises as a workable quarry, the failure to maintain the demised premises in a safe and workable condition and to do all dynamiting and excavating in strict conformity with generally accepted standards of good engineering pertaining to stone quarries, by reason of which and other acts, also alleged, the demised premises depreciated in value and were greatly damaged. The fourth count also alleges that the defendant Gilbert ordered and directed the demolition of parts of the machinery and equipment leased to the corporate defendant and ordered and directed the removal of parts of said property and equipment from the demised premises without replacing the same.

The fifth count alleges that the defendant Gilbert conspired with the corporate defendant to ruin the quarry and property of the plaintiff so that after the termination of the lease plaintiff would be unable to compete with other quarry companies owned and operated by the defendant through corporations owned and controlled by him, the intention of the defendant Gilbert being to obtain a monopoly in the crushed stone business in central and south central blew Jersey and that in furtherance of this conspiracy defendant Gilbert directed to be' done the acts and things above mentioned.

The sixth count alleges that the defendant Gilbert holds a mortgage on the premises of plaintiff and that said defendant has conspired with the corporate defendant to eliminate plaintiff as a future competitor in the crushed stone business in central and south central blew Jersey by causing the corporate defendant ,to default in .the payment of the rent required to be paid under plaintiff’s lease with the corporate defendant so that plaintiff would be unable to pay the interest and amortization payments required to be paid upon the mortgage held by defendant Gilbert who thereby would be put in a position to foreclose the mortgage and obtain possession of plaintiff’s property.

Four grounds are alleged as a basis for the motion, to wit: That each of the counts are frivolous and insufficient at law and do not state a cause of action; that the actions in these counts are prematurely brought; that these counts are obscure and uncertain and that they are irregular, defective and so framed as to embarrass a fair trial.

' The complaint in the fourth and fifth counts endeavors to hold an individual stockholder who is alleged to be the real owner and directing head of the defendant corporation liable in damages for tortious acts committed by the defendant corporation and done in violation of the terms of a lease existing between the plaintiff and the corporate defendant.

The action in these counts is based upon the alleged damage and destruction of the plaintiff’s business and property.

Defendant’s argument is two-fold; in the first place, that the defendant Gilbert is relieved of any responsibility and liability because the acts complained of represent violations of covenants contained in the written lease existing between the corporate parties and that he is further relieved because whatever was done was done by the corporation and no personal liability attaches to a stockholder, officer or director thereof.

My research, and apparently that of counsel, has revealed no determinations by the courts of this state of the precise question presented.

The rule as enunciated in 3 Fletcher Cyclopedia Corp. 360, is “The executive officers of a corporation who induce it to enter upon a wrongful course of action become subject to personal liability, and they also incur individual and personal liability for willfully and maliciously inducing their company to breach its contract with another corporation.

In Messenger v. Frye, 176 Wash. 291; 28 Pac. Rep. (2d) 1023, 1025, the court said: “The general, if not the universal rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable to third parties for such tort, nor for the acts of other officers, agents or employees of the corporation in committing it, unless he specifically directed the particular act to be done, or participated or co-operated therein.”

In the case of Luke v. DuPree, 158 Ga. 590; 124 S. E. Rep. 13, it was held actionable for one maliciously or without justifiable cause to induce another to break his contract with a third person to the damage of the latter and following that doctrine in Carpenter v. Williams, 41 Ga. App. 685; 154 S. E. Rep. 298, the court held the defendant answerable to a complaint which charged him, the president of a corporation, with being personally liable for inducing the corporation to break its contract.

Of course it has been held that an employee or officer of a corporation who acts in good faith and believes that what he does is for the best interests of the corporation in seeking to have the corporation breach its contract with a third party should be absolved from a suit of this character but the actions of the individual must be with justification. Vassar dakis v. Parish, 36 Fed. Supp. 1002; Hornstein v. Podwitz, 254 N. Y. 443 (at p. 448); 173 N. E. Rep. 674.

While the complaint here does not specifically charge that Gilbert acted maliciously “malice may be inferred from the absence of just cause or excuse.” Kamm, Inc., v. Flink, 113 N. J. L. 582 (at p. 588); 175 Atl. Rep. 62, 67.

Perhaps the leading ease on the subject is that of Hitchcock v. American Plate Glass Co., 259 Fed. Rep. 948, 952, in which the court said: “The director of a corporation is ordinarily liable only for those torts which he himself commits. But his liability is not limited to tortious acts which he actually and physically commits; it extends as well to tortious acts which he actually brings-about. Where a director or a manager of a corporation, who sustains to the corporation the relation of master or principal in the sense of being its dominating force, himself commands the commission of a tort by the corporation, though he does it as an officer and in the name of the corporation, he is individually liable.” * * * “an executive officer of a corporation cannot shield himself behind an artificial or some times an irresponsible creation from the consequences of his own acts, even though performed in the name of an artificial body.” See, also, National Cash Register Co. v. Leland, 94 Fed. Rep. 502 (at 508).

The cases of Schuster v. Largman, 318 Pa. 26; 178 Atl. Rep. 45, and Lukach v. Blair, 108 Misc. 20; 178 N. Y. Supp. 8, are cited by counsel for the defendant in support of his contentions. These hold that where officers of a corporation exercise their discretion and best judgment, there can be no personal liability for a tort arising out of the breach of a contract by the corporation. There can be no quarrel with that general theory but it cannot obtain when the officer maliciously orders the tort to be committed and his motive may be questioned and lack of justification shown. Vassardakis v. Parish, supra..

Salomon v. Salomon, Ltd., 45 Week. Rep. 193; L. R. App. Cas. 22; The Salt Lake City National Bank v. Hendrickson, 40 N. J. L. 52, and Jackson v. Hooper et al., 76 N. J. Eq. 592; 75 Atl. Rep. 568, also relied upon by the defendant are not in point.

The existence of a corporation should never be allowed to shield an individual who is in control of that legal fiction from the consequences of tortious acts maliciously ordered or directed by him to be done and perpetrated through that instrumentality.

The fourth and fifth counts of the complaint set forth good and sufficient causes of action and as to these, the motion should be denied.

With respect to the sixth count, I am of the opinion that the claim there set forth is speculative, uncertain and prematurely made. It will be stricken.


author: Burling, C. C. J. and S. C. C.

text:
    WILLIAM E. HARPER ET AL., PLAINTIFFS, v. CITY OF ATLANTIC CITY, A MUNICIPAL CORPORATION, DEFENDANT.
    Decided August 3, 1944.

      For the plaintiffs, W. Elmer Brown.

    For the defendant, Samuel Baelcer.

   Burling, C. C. J. and S. C. C.

William E. Harper and 183 other plaintiffs have brought suit against the defendant to recover the balance of salary and interest alleged to be due them for services performed as firemen during the years 1932 to 1941 both inclusive.

The complaint contains 184 separate counts (one for each plaintiff) each in substantially the same form.

The theory and substantive law of this class of actions has been explored in much recent litigation as an aftermath of the depression and recession, prior to the activity due to the present world war. For instance, Vanderburgh v. Bergen County (Court of Errors and Appeals, 1938), 120 N. J. L. 444; 200 Atl. Rep. 561; Orlando v. County of Camden (Court of Errors and Appeals, 1938), 121 N. J. L. 46; 1 Atl. Rep. (2d) 943; Van Houghten v. Englewood (Supreme Court, 1940), 124 N. J. L. 425; 12 Atl. Rep. (2d) 668; Borz v. City of Camden (Court of Errors and Appeals, 1937), 119 N. J. L. 17; 194 Atl. Rep. 66; Hopkins v. Passaic (Supreme Court, 1940), 125 N. J. L. 379; 16 Atl. Rep. (2d) 63; Kriser v. Board of Education of Trenton (Supreme Court, 1939), 122 N. J. L. 323; 5 Atl. Rep. (2d) 466; Goldberger v. Perth Amboy (Supreme Court, 1938), 16 N. J. Mis. R. 84; 197 Atl. Rep. 267; Harley v. Passaic County (Court of Errors and Appeals, 1938), 121 N. J. L. 44; 1 Atl. Rep. (2d) 454.

Tliis is a motion for an order striking out that portion of each count of the complaint which makes claim or demand for interest on the amounts allegedly due each plaintiff upon the following grounds:

1. The complaint or demand for interest is frivolous.

2. The complaint or demand for interest is sham.

3. The complaint docs not allege a cause of action by virtue of which interest can be recovered.

4. The complaint does not allege such facts as to entitle the plaintiffs to interest against the defendant, a municipal corporation.

5. The complaint does not set forth that a proper demand was made by or on behalf of the plaintiffs for payment of the sum or sums allegedly due the plaintiff, or that the defendant agreed to pay interest thereon, and hence the plaintiffs are not entitled to interest.

6. hio demand or request was ever made by or on behalf of the plaintiffs, or any of them, upon the defendant, or its proper official or officials for payment of the debts or amounts allegedly due the said plaintiffs, and hence interest does not accrue upon the same.

7. The plaintiffs did not, at any time, present a detailed verified bill of the items or demands set forth in the complaint specifying particularly how the bill or demand was made up, and hence interest does not accrue.

8. The claims against the defendant set forth in the said complaint were never presented to the Mayor of the City of Atlantic for his approval or disapproval and hence interest does not accrue.

9. The City of Atlantic City never agreed, to pay interest to the plaintiffs on the sums claimed by them, or otherwise, and hence they are not entitled to interest.

These may be classified and disposed of in three categories:

One — Comprising Reasons 1, 8, -4 and 5.

These attack the complaint upon the ground that it is insufficient in law.

Two — Reasons 2 and 6.

Eesort is made to the provisions of Supreme Court rule 85, N. J. S. A. tit. 2, and the adopted practice incident to motions to strike defenses defined by Supreme Court rules 80 to 84, inclusive, upon the ground that the demand for interest is sham.

Three — Reasons 7, 8 and 9.

These appear not to be within either of the above categories, but the information therein alleged is the subject-matter of plea and not for attack by way of affidavit or other proof. Standard Radio Corp. v. Triangle Radio Tubes, Inc. (Supreme Court, 1940), 125 N. J. L. 131 (at p. 134); 14 Atl. Rep. (2d) 763, 765; Faitoute Iron and Steel Co. v. Asbury Park (Court of Errors and Appeals, 1941), 127 N. J. L. 339 (at p. 241); 21 Atl. Rep. (2d) 796, 798.

In support of the motion, affidavits were submitted among which was the affidavit of Bessie M. Townsend, comptroller of the defendant. Subsequent to the argument of this motion, a subordinate motion was made to take oral testimony of the said Bessie M. Townsend, to enlarge upon the facts set forth in her affidavit, it being asserted that the cause of said application was the result of disagreement between opposing counsel as to certain facts which were to have been the subject-matter of stipulation for use in the primary motion and her anticipated refusal to make further affidavit upon advice of defendant’s counsel.

Both motions will be disposed of in this memorandum.

A — Principal Motion. This motion will be granted for the reasons assigned in category one of the grounds.

The substantive law is that no liability arises for interest against a municipal corporation until demand has been made for its payment unless it is otherwise agreed. Hudson County National Bank v. Bayonne (Supreme Court, 1934), 113 N. J. L. 258 (at p. 264); 174 Atl. Rep. 241; Naar v. City of Trenton (Supreme Court, 1880), 42 N. J. L. 500.

It has been argued that such doctrine does not apply where a salary has been fixed. The principle of the necessity for a demand was applied in the case of Harley v. County of Passaic (Supreme Court, 1937), 15 N. J. Mis. R. 641 (at p. 650); 194 Atl. Rep. 298, 302, wherein the plaintiff was a Common Pleas Judge of this state. This case was reversed upon other grounds, (Court of Errors And Appeals, 1938), 121 N. J. L. 44; 1 Atl. Rep. (2d) 454.

One of the leading cases citd in treatises dealing with this subject is that of Smith v. Board of Education of New York City (Court of Appeals, 1913), 208 N. Y. 84; 101 N. E. Rep. 791. This case involved the salary of an architectural draftsman in the department of education of the City of New York. The court laid down the rule which is cited in 19 R. C. L. 1049, and in Hudson County National Bank v. Bayonne (ante). However, the minority opinion in that case advanced the argument of the futility of the necessity for demand to provoke the rule.

But the trend of New Jersey decisions seems to make the demand the gist of the action for interest whore no agreement (as in this case) to pay interest is alleged in the complaint. Therefore for the purpose of this motion, assuming the principal to be due, the element which causes the action to arise for interest is the demand. This is contrast to the right to compensation from a municipality for salary itself wherein the presentation of the claim does not “create” the cause of action. In such case the cause of action exists already — it does not spring into being upon demand and refusal.

At common law the attack under these reasons would be in the nature of a general demurrer. While demurrers are abolished the motion provided for by Supreme Court rule 40 is substituted, yet the principles of common law method of pleading are essentially followed. Lully v. National Surety Co. (Court of Errors and Appeals, 1929), 106 N. J. L. 81 (at p. 83); 148 Atl. Rep. 762, 763; Savage v. Public Service Railway Co. (Court of Errors and Appeals, 1920), 95 N. J. L. 432; 113 Atl. Rep. 252; Campbell v. The Pure Oil Co. (Supreme Court, 1937), 15 N. J. Mis. R. 723; 194 Atl. Rep. 873.

Accordingly for the purpose of this motion, the defendant admits the truth of all facts well pleaded in the complaint and all inferences of fact which can be legitimately drawn therefrom. In testing the sufficiency of a pleading on demurrer thereto, its allegations may alone be looked to. The court cannot assume facts not pleaded which if pleaded would raise issues of fact. 49 C. J. 423. Where the defect appears on the face of a pleading, a demurrer may be used to take advantage of it, but such matter only and not matter which does not appear on the face of the pleading demurred to will be considered. 49 C. J. 420. The sufficiency of the complaint must be determined from the facts therein properly alleged from which a legal duty and the liability for the violation thereof are deduced. Bengivenga v. Plainfield (Court of Errors and Appeals, 1942), 128 N. J. L. 418 (at p. 424); 26 Atl. Rep. (2d) 288, 292. The power to strike out a pleading as frivolous will not be exercised until it appears to be clearly and palpably so, and that the power has been cautiously exercised Jaeger v. Naef (Supreme Court, 1933), 112 N. J. L. 417 (at p. 420); 171 Atl. Rep. 166, 167.

But the rules of pleading require the pleader either to aver directly the facts which constitutes his claim or to set forth circumstances from which those necessarily by intendment of law result. Taylor v. New Jersey Title, &c., Co. (Supreme Court, 1903), 70 N. J. L. 24 (at p. 26); 56 Atl. Rep. 152.

The gist of the cause of action is missing, the element which creates the damage for which the defendant is answerable. Ho general allegation of performance of conditions precedent as provided for by R. S. 2:27-113; N. J. S. A. 2:27-113, is set forth in the complaint and even so this element is not wi(hin the comprehension of such statutory rule. Taylor v. New Jersey Title, &c., Co. (ante). Neither is the demand an element of evidence such as is referred to in Adams v. Grady (Supreme Court, 1909), 77 N. J. L. 301; 72 Atl. Rep. 55, wherein the failure to plead in the complaint the requirement of the statute of fraud that an agreement involved in the controversy was in writing was attacked.

Since the disposition of the motion has been made upon the aforesaid grounds, it is not necessary to deal with the second category, namely that the facts were sham. In this respect, the sole affidavit of Walter II. Gates in support of plaintiffs’ position in opposition to the motion is presented. The cause of action of each plaintiff stands upon its own footing. Upon the ground of convenience, the allegations of the defendant in relation to the demand are not met by separate affidavit of each plaintiff but are shied away from and reliance has been made upon such facts as are contained in the affidavit of Mr. Gates (a former fireman and not a party). The effect and sufficiency of which is not presently weighed and determined.

With respect to the third category, expression of the court in relation to these reasons has been heretofore made in this memorandum.

The policy of modern law is to strive for a pleading and decision upon the merits. Dammarata v. Public Service, &c., Transport (Court of Errors and Appeals, 1939), 124 N. J. L. 38 (at p. 41); 11 Atl. Rep. (2d) 253.

R. S. 2:27-126; N. J. S. A. 2:27-126, provides as follows:

“The court in passing on a motion to strike out, in whole or in part, a complaint or counter-claim as insufficient in law or sham, may, in its discretion, determine whether such striking out shall be with or without prejudice to the institution of another proceeding at law, based on the same cause or causes of action as were set forth in the complaint or counterclaim or part or parts thereof struck out, which discretion shall be exercised by the court and be indicated in the order to strike out.”

In the case of Lully v. National Surety Co. (Court of Errors and Appeals, 1929), 106 N. J. L. 81 (at p. 83); 148 Atl. Rep. 762, 763, it was held:

“The object of pleading is not to defeat, but to advance the.ends of justice; not to destroy but to protect the substantial rights of parties. In accordance with this clear and obvious principle, courts of justice have manifested great and increasing liberality in allowing amendments after demurrer. By the ancient practice, indeed, no amendment was permitted after demurrer without consent, upon the principle that where a party had staked his rights upon a point of law, he was bound to abide by .his election. * * * In modern practice, however, it is well settled, in accordance with sound principle, that amendments may be made even after judgment upon demurrer, whenever the substantial ends of justice require it. Such is the law of this Court.”

To that end; leave is given to the plaintiffs to amend the complaint within twenty days from the entry to the rule hereinafter referred to so as to' allege the facts essential to the gist of this motion of the causes of action. If this leave is not exercised within said time the motion to strike shall remain unrestricted.

B — Subordinate Motion. The determination of the question raised with respect to the inherent power of and the ■exercise thereof by the court to make an order for the taking of depositions of witnesses, for use upon a motion to strike the complaint, particularly of those who may be classed as adverse to the interest of the moving party is not essential in the disposition of this motion and the motion is denied..

An appropriate rule may be presented.


author: Kingfield, D. C. J.

text:
    District Court of the First Judicial District of Warren County.
    PUBLIC FINANCE SERVICE, INC., PLAINTIFF, v. FRANCES AMATO, DEFENDANT.
    Decided September 7, 1944.
    For the plaintiff, Lewis S. Beers.

    For the defendant, Thomas J. Kelly, Jr.

   Kingfield, D. C. J.

The facts in the above case are as follows: Louis Amato applied to the plaintiff for a personal loan, which was denied him on the ground that he already had outstanding loans from other finance companies. He was advised to have another member of his family apply for a loan. In the application for the loan in question, which was signed by the defendant, her age is stated to be twenty-one years, when in fact, at that time, she was only eighteen years old. The loan was for $200, and payments on account, which were made by Louis Amato and by his sister, the defendant, reduced the principal to $174.74 Louis Amato is now in the armed services, and suit on the note, which was signed by Frances Amato, and guaranteed by her brother, Louis Amato, was instituted against the defendant, who became twenty-one years of age on April 18th, 1944. The last payment on account of the note was made by the defendant on June 19th, 1943, ten months prior to her becoming of age. It is admitted that Miss Amato did not receive any of the proceeds of the loan, all of which went to her brother. The defense was infancy.

The rule of law to be applied to the case in question was decided in the case of LaRosa v. Nichols, 92 N. J. L. 375; 105 Atl. Rep. 201, by the Court of Errors and Appeals, wherein suit was instituted upon a claim for storage and work done upon an automobile owned by an infant: If a minor under twenty-one years of age, by falsely representing himself to be an adult, which he appears to be, for the purpose of inducing another to enter into a contract with him, and, thereby, through such representation and appearance, the other party is led to believe that such an infant is an adult, and makes a contract with him the benefit of which he obtains and retains, then, in a suit on the contract, the minor will not be permitted to set up the privilege of infancy, because, by his fraudulent conduct, he has estopped himself from so pleading.

In Sonntag v. Heller, 97 N. J. L. 462; 117 Atl. Rep. 638, an infant, falsely representing his age, was able to set up a defense of infancy where he received no benefit from the contract.

In Majaika v. Jamison, 115 N. J. L. 358; 180 Atl. Rep. 402, a promissory note was given during defendant’s infancy for borrowed money, but since the money was not used for necessaries it was held to be voidable. The case also held that the mere fact that the infant remained silent and failed to disaffirm the contract after reaching majority is no ground for directing a verdict against him.

In Brinkmann v. Dorsey Motors, Inc., 121 N. J. L. 115; 1 Atl. Rep. (2d) 473; affirmed by the Court of Errors and Appeals, 122 N. J. L. 378; 5 Atl. Rep. (2d) 686, where the evidence showed that the plaintiff falsely represented himself to be an adult, which he appeared to be, and induced the defendant to enter into a contract with him, the benefits, in this case, being the use of a truck purchased from the defendant, which the plaintiff obtained and retained, the plea of infancy was not allowed.

Then in the later case of Feinsilver v. Schifter Motors, Inc., 127 N. J. L. 459; 23 Atl. Rep. (2d) 283, the facts were somewhat similar to the Brinkmann case, but the plea of infancy was allowed, since the infant oifered to credit against any recovery the reasonable value of the use and benefits which inured to him from the contract. The court held that since this stripped the infant from any benefits of the fraudulently induced contract, the plea of infancy, though belated, was nevertheless timely.

In Mandell v. Passaic National Bank and Trust Co., 18 N. J. Mis. R. 455; 14 Atl. Rep. (2d) 523, the court stated that much depends upon whether the infant m fact received the proceeds of the loan.

The finding of fact in Horwitz v. Hudson County National Bank, 125 N. J. L. 3; 13 Atl. Rep. (2d) 493, was such that the infant was estopped from pleading infancy.

In Reggiori v. Forbes, 128 N. J. L. 391; 26 Atl. Rep. (2d) 145, the infant falsely represented himself to be an adult, which ho appeared to be, and suit was brought to recover the balance due from the infant who counter-claimed for the amount of the payment he had made, claiming the agreement was unenforceable in view of his infancy. The court held that the infant was not obliged to pay the balance due on his contract but neither could he collect the payments which he had made.

Applying the principles of law in the foregoing decided cases to the matter in question, it appears to me that the plea of infancy is a good plea.

Even though the infant falsely represented herself to be an adult for the purpose of inducing another to enter into a contract with her, where there is no evidence introduced that the infant appeared to be an adult and that the other party relied upon this adult appearance, and further where the evidence clearly indicated that the infant received and retained no benefit from the contract, the minor is not nrecluded from setting up the privilege of infancy. Judgment is entered for the defendant.


author: Davidson, C. P. J.

text:
    Passaic County Count of Common Pleas.
    BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, PLAINTIFF, v. QUACKENBUSH AND COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided October 23, 1940.
   Davidson, C. P. J.

Defendant, corporate operator of a department store, is charged by the State Board of Pharmacy with violation of section 45:14-6 of the Revised Statutes; N. J. S. A. 45:14-6, in that it permitted the retailing and dispensing of a drug or medicine known as “Yitamins Plus” by a person neither a registered pharmacist or registered assistant nor under the immediate supervision of a registered pharmacist.

An alternative defense, unusual, but to some extent, at least, justified by the proofs, is interposed. Defendant’s first contention is that “Yitamins Plus” is a food product; its second, that in the event the proofs determine “Yitamins Plus” to be a medicine, it is in fact a non-poisonous patent or proprietary medicine, and as such, specifically excepted under the provisions of section 45:14-29; N. J. S. A. 45:14-29.

“Yitamins Plus” is a product comprising two types of gelatin capsules, the name is registered in the 'United States Patent Office, a disclaimer, however, having been executed as to the word “vitamin,” and the article is dispensed in a sealed, cellophane-wrapped package, plainly marked with the name, content description and directions for use. The retailer merely hands over the original sealed package and there is no reliance on the part of the purchaser upon the skill or knowledge of the dispenser.

While the witnesses produced at the trial were qualified experts with imposing records of individual achievement, there was little divergence in the factual testimony. The statute does not specifically define either “drug” or “medicine,” and the definition cited by the witnesses substantially appears to be that contained in the Federal Food Act, 21 U. S. C. A. 21:321, namely the term “drug” means “articles recognized in the official United States Pharmacopoeia,” and the term “medicine” means “articles intended for use in the diagnosis, cure, medication, treatment, or prevention of disease in man or other animals.” These definitions apply to the Federal Act, which was adopted for different and other purposes than those moving the New Jérsey statute, and cannot, in my opinion, govern the construction of the state legislation. It is common knowledge that certain foods are prescribed in the dietary treatment of disease, and while the article thus falls within the broad limit of the definition, I cannot conceive that it thus is transformed into a medicine ipso facto. Uor can I agree that a substance becomes a medicine as a fact merely because of the form, in this case, capsules, in which it is marketed.

Vitamins, as such, are not listed in the Pharmacopoeia; they are elements contained in ordinary foods and are constituents of food products — apparently the fact that they are concentrated does not change their essential character, and the theory of the defendant — it may well be nothing more than a theory — is that the concentrated product marketed by them supplies whatever deficiency may be occasioned by improper or insufficient diet, particularly as to certain food elements.

It is conceded in the evidence that “Vitamins Plus” capsules are harmless and can have no ill effect. The legislative purpose of the New Jersey statute as was said in Board of Pharmacy v. Braunstein, 2 N. J. Mis. R. 454, was “manifestly to protect the public from the dangers attendant upon the sale of poisons and powerful drugs to the public without the protection afforded by the skill and qualification necessary to safeguard the public use.”

The only recent case dealing with the problem here presented appears to be that of Kroger Grocery and Baking Co. v. The Board of Pharmacy of the State of Indiana, decided (November 6th, 1939, wherein it was held that vitamin capsules are accessory food factors and as such exempted from the operation of the Indiana State Drug Act.

My conclusion is that “Vitamins Plus” whether called an accessory food factor or a dietary supplement is still essentially a food product and the complaint, therefore, should be dismissed*


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    COLUMBO DEL FIACCO, PETITIONER, v. FEDERAL SHIPBUILDING AND DRYDOCK COMPANY, RESPONDENT.
    Decided August 30, 1944.
    For the petitioner, Avidan & Adivan (Samuel Avidan).

    For the respondent, Lindabury, Depue & Faulks (Andrew Lawrie).

   The petitioner testified that on February 22d. 1944, he was employed by the respondent company; that on that day he had taken a bus to report to work at Port .Newark for the respondent company; that this bus drove through a gate leading from the street onto the private premises of the respondent, at which point he stepped off the bus and then proceeded to walk in the direction of another gate to commence work for the day, when, after a short distance, he was struck by another Public Service bus that had been using the private grounds of the respondent as a terminal. The accident occurred within approximately one-hálf hour of his actual starting time for work for that day. Petitioner was injured in the right lower back and right leg. He had received approximately eleven treatments by Dr. DePronzo extending over a period of approximately six weeks. The petitioner’s wages were in excess of $30 per week, establishing a compensation rate of $20 per week.

There was further testimony on behalf of the petitioner which was admitted by the respondent, that the bus had used the terminal on the private grounds of the respondent for the purpose of loading and unloading passengers.

The report of Dr. DePronzo on behalf of the petitioner was offered in evidence by consent of both parties indicating a charge of $23 for eleven treatments and an estimate of permanent disability of 15-17%% of partial total disability for the sacro-iliac and myositis condition.

Por the respondent there was testimony by Eonald McG-regor confirming the fact that the bus had used the terminal on the private grounds of the Federal Shipyards; that the terminal was built in the main for the convenience of the employees of the yard and that any employee traveling by bus to approach the yard of the employer had to pass through this terminal to report for work. He further testified that this Public Service bus entered the private grounds of the respondent through one gate, then discharged the passengers at the terminal, and then was obliged to proceed through another gate to leave the respondent’s premises. He stated that sometimes sailors and other individuals working in the neighborhood would board 'the buses, and discharged on the respondent’s grounds.

Dr. Keeley, an osteopath, testified for the respondent that he had rendered first ¿id to petitioner; that he found soma injury in the region of the right lower buttock, found, no objective symptoms of injury. On cross-examination he stated that the loading platform was on the property of the respondent and that at times some British sailors from the channel some 300 feet away would sometimes come through the gate and use the bus in question.

Por the respondent the report of Dr.'Beling was offered in evidence in lieu of his testimony indicating an estimate of permanent disability of 5% of partial total disability.

At the conclusion of the case respondent’s attorney then made a motion for dismissal on the grounds that petitioner failed to prove a compensable accident.

The important question here at issue, apart from the controversy as to the extent of permanent disability, was whether or not the petitioner had sustained an accident arising out of and in the course of his employment. More specifically the important question is whether or not the petitioner was in the course of his employment at the time of the accident.

Admittedly the petitioner sustained an accident on the private grounds of his employer within a short time or approximately one-half hour of his 'commencement of work after he had left a Public Service bus which was using the private grounds of the respondent for the purpose of loading and unloading passengers. The bus terminal was permitted by the respondent primarily for the convenience of its employees. Prom the bus terminal the petitioner was proceeding in the direction of another main gate on the private grounds of the employer to go to his place of actual work.

Prom the facts of this case it appears that this petitioner was still within the zone of his employment at the time of the accident. The term “employment” as used in the Workmen’s Compensation Act, N. J. S. A. 34:15-1, et seq., is not to be construed so as to be co-extensive in time or place with the actual working hours or place of actual work. Grady v. Nevins Church Press Co., 120 N. J. L. 351; 199 Atl. Rep. 578, 580; Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023; affirmed, 86 N. J. L. 708; 92 Atl. Rep. 1087; Alberta Contracting Co. v. Santomassimo, 107 N. J. L. 7; 150 Atl. Rep. 830; Bolos v. Trenton Fire Clay and Porcelain Co., 102 N. J. L. 479; 133 Atl. Rep. 764; affirmed, 103 N. J. L. 483; 135 Atl. Rep. 915; Rubeo v. McMullen Co., 117 N. J. L. 574; 189 Atl. Rep. 662; affirmed, 120 N. J. L. 182; 198 Atl. Rep. 843; Fennimore v. Union Construction and Holding Co. (Workmen’s Compensation Bureau), 22 N. J. Mis. R. 33; 35 Atl. Rep. (2d) 32.

This rule of law has likewise been applied by the United States Supreme Court in the case of Cudahy Packing Co. v. Parramore, 263 U. S. 418; 44 S. Ct. 153, which case has ’been cited with approval in our New Jersey cases, wherein the court said:

“The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and it must include a reasonable interval of time for that purpose.”

The Court of Errors and Appeals in the Grady case, supra, stated the rule as follows:

“It is evident that we do not hold that an accidental injury to be compensable must occur within a period, of time •co-extensive with the contract for the given and customary hours of labor. The protection of the statute goes further than that and includes terms reasonably incidental to the term of employment and which attach to it with the express • or implied consent of the employer.”

In eases involving accidents to employees on their way to •work, one of the important tests is whether or not the accident occurred on the employer’s premises. This rule has been more fully stated as follows:

“In appying the rule that the employment is not limited 'by the exact time when the workman reaches the scene of ’his labor and begins it nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment, one of the tests is whether the workman is still on the premises of his employer.” 1 Honnold on Workmen’s Compensation 368.

Guided by the rules above quoted, the accident in question is clearly compensable.

The respondent in disputing the compensability of this •claim relies upon two cases, Grady v. Nevins Church Press Co., supra, and Gullo v. American Lead Pencil Co., 119 N. J. L. 484; 196 Atl. Rep. 438, 439. In both of these cases the employee met with an accident before commencing work but on the sidewalk in front of the employer’s building premises. In the Grady ease the petitioner walked up the apron of a driveway onto the sidewalk, the driveway being intended for use by vehicles, but for our purposes we may consider both of these cases of the same nature. These two cases are distinguished from the ease at issue for the reason that in the Güilo and Grady cases the injury occurred upon the sidewalk and the right of the public to the use of that sidewalk is greater than the right of the employees of the respondent. This is the distinguishing feature of these two cited cases from the ease under discussion. Said the court in the Güilo case: “The street was a public highway on which the public in general had the paramount right of user and this of course included the sidewalk.” In the case at issue the public did not have the paramount right of using the premises where the accident occurred. The accident occurred on the private grounds of the employer. The public had no paramount right to the use of the premises where the accident occurred. At best the premises were used only by such other persons who were given a license thereto. The owner of property fronting on a street is required under the law to maintain a sidewalk for public use. The rights of the public to the use of that sidewalk are greater than the rights of the owner adjacent thereto.

An added reason which may be given for holding this case compensable is that the employer was responsible for bringing onto the premises the instrumentality or the agency, namely, a bus, which caused the accident. The employer has thus increased the hazard of the employee’s approach to his actual place of work and to that extent became responsible therefor.

In accordance with the foregoing I do therefore find and determine:

1. That the petitioner did sustain an accident on February 22d, 1944, arising out of and in the course of his employment with the respondent.

2. That the petitioner as a result of said accident is entitled to compensation for temporary disability for the period of six weeks from the date of said accident, less one week waiting period, at the compensation rate of $20 per week.

3. That the petitioner is entitled to compensation for permanent disability based upon 10% of partial total disability.

* ** * * ❖ # *

It is further ordered that judgment shall be entered in favor of the petitioner and against the respondent in accordance with the foregoing.

Harry S. Medinets,

Deputy Commissioner.


author: Bowers, C. P. J.

text:
    Warren County Court of Common Pleas.
    MELVIN HELMHOLTZ, PETITIONER-APPELLANT, v. UNION BUILDING AND CONSTRUCTION COMPANY, RESPONDENT-APPELLEE.
    Decided September 8, 1944.
    For the petitioner-appellant, Blingland, Ilouman & Bernstein.

    For the respondent-appellee, George E. Meredith.

   Bowers, C. P. J.

The petitioner suffered an accident in the form of an injury to his left leg, which required amputation on October 11th, 1940. There seems to be no controversy over the fact that the stump, where the leg nad been amputated, had healed completely on March 6th, 1941, but because of the fact that it was not proper to fit an artificial appliance to the stump at that time, and which was' not done until July 13th, 1941, the petitioner claims temporary compensation for that period of time from March 6th to July 13th, 1941. This is the sole question to be determined in the appeal from the, decision of the Deputy Commissioner which dismissed petitioner’s petition by his findings dated July 29th, 1943.

Both the petitioner and respondent having relied principally upon the case of Vishney v. Empire Steel and Iron Co., 87 N. J. L. 481; 95 Atl. Rep. 143, 144, in their arguments, it is well to turn to this case for guidance. The court in that decision stated:

“Temporary, as distinguished from permanent disability under the Workmen’s Compensation Act, is a condition that exists until the injured workman is as far restored as the permanent character of the injuries will permit. An apt illustration is a case where there has been'a loss of both arms. The temporary disability to be considered in such an .instance is the physical state of the patient until the stumps are healed and he is' able to get about,” &c.

The petitioner maintains under his interpretation of this decision, that the petitioner cannot “get about” until he has an artificial limb. The respondent contends that the artificial limb has no bearing directly upon the case. I am inclined to the view that the latter is correct in his interpretation of the decision referred to.

R. S. 34:15-15; N. J. S. A. 34:15-15 directs:

“When an injured employee may be partially or wholly relieved of the effects of a permanent injury, ,by use of an artificial limb or other appliance * * * the Workmenis Compensation Bureau, acting under competent medical advice, is empowered to determine the character and nature of such limb or appliance and to require the employer or his insurance carrier to furnish the same.”

The statute is entirely silent as'to compensation to be paid for any temporary disability .until .the time of the furnisTring of the artificial limb, if directed by proper authorities. The artificial limb was granted in this case.

It was undoubtedly the intention of the legislature to be generous to those who had unfortunately lost a valuable portion of his or her body and it is further undoubtedly true that this additional grant of an artificial limb or other appliance to the unfortunate one was an extra obligation to be imposed upon the employer out of whose business or direction the injury had been suffered. It is the belief of this court that the furnishing of an artificial limb or appliance was an entirely separate matter from the healing of the wound, and the appliance could just as well be ordered separately by the proper authority during the healing of the wound or sometime after the stump or portion of the body to which it was to be attached had healed.

The quotation in the Yishney case, that the temporary disability should be considered "until the stumps are healed and he is able to get about” is good law and clear, in the opinion of the court. It clearly designated that when the stumps were healed, the injured person would next arise from his bed or chair and "get about.” As reasonable people, we know that a man with an amputated leg or legs or arms will "get about” in a different manner than if his limbs or arms were still attached to his body. In the case of a lost leg, the injured person would "get about” with the use of crutches or probably a wheelchair. The Yishney decision could not have held that the words “get about” would definitely mean the successful use of an artificial limb or arm, because this decision could not be absolutely followed in every case, inasmuch as the remaining stump might be negligible and an artificial limb could not be fitted to it. If the leg were cut •off close to the hip, or the am close to the shoulder, there could be no artificial leg or appliance in many cases and, if the Yishney ease held that until an artificial appliance was fitted temporary disability would continue, then such temporary compensation would continue during the life of the injured one, or so long as he or the physicians kept attempting to attach an appliance to the body, and which might be the source of unlimited litigation. It would, likewise, place an unfair burden upon one employer of give an unfair advantage to one injured person over another. For instance, where the one applicant’s leg was amputated a couple of inches or so shorter than another person’s injured limb, if an appliance could be fitted to one and not to the other and it took months longer for one person’s leg to be ready for the limb and another person’s leg could not be fitted to an artificial appliance, if temporary compensation. were paid to the one who would receive the limb until it was fitted and to the other only until' the stump had healed, there would not be the equitable adjustment of injured employees’ bodies contemplated by the statute, which is based upon fairness and justice to both the employer and the employee. The mere granting of the artificial appliance to one who can use it is a generous and most worthy act directed by the legislature under the circumstances to the injured employee, and to add upon the generosity of the gift of the appliance, even though worthy and deserving, temporary compensation against the employer until it be fitted is not, in the opinion of the court, what the statute contemplated as written.

It is the further opinion of this court that the temporary disability mentioned in the Vishney case, which should be paid “until the stumps are healed and the patient able to get about,” is speaking of two instances only, and they are, if the stumps are healed and the patient is “getting about,” as contrasted to lying in bed or under the care of a physician, no matter if it be by wheelchair, crutches, or sitting in ordinary chairs around the house, he is then “getting about” under the decision of the court.

It is therefore the determination of this court that the petitioner is not entitled to temporary compensation for the period of time between March 6th, 1941, when it is agreed between the parties that the stump of his leg had healed, and July 13th, 1941, at which time it is agreed that the artificial limb was fitted, and therefore it is ordered that the petition in the above entitled matter be hereby dismissed and the judgment of the court below be affirmed.