author: Dunny, C. P. J.

text:
    Hudson County Court of Common Pleas.
    DORIS HEGET, PETITIONER-APPELLANT, v. CHRIST HOSPITAL, RESPONDENT-APPELLEE.
    Decided April 7, 1948.
    For the petitioner-appellant, Nathan Rabinotvitz and William B. McMichael (Ervan F. Kushner, of counsel).
    For the respondent-appellee, William A. Davenport (Robert E, Kiernan, of counsel).
   Dunny, C. P. J.

This is an appeal from a determination in the Workmen’s Compensation Bureau wherein the petition was dismissed for lack of jurisdiction. The sole question presented both at the hearing below and on this appeal is whether the relation of employer-employee existed between the parties at the time she allegedly sustained an injury. The record discloses that on February 6th, 1939, petitioner was accepted by the respondent as a candidate to become a nurse. Prior to this acceptance, she had taken and successfully passed an examination for entrance to the School of Nurses conducted at the hospital and had paid the established entry fee of $75»

For the first five months, petitioner served as a probationer. Thereafter she was formally accepted by the respondent as a student nurse. This period of training was to last three years 'during which time she received no .wage compensation except room, board and incidentals. At the completion of the training course she would receive a certificate from the hospital and be eligible to take the examination conducted by the State Board and qualify as a registered nurse.

From the record it appears- that petitioner’s duties consisted in the following: compulsory attendance at chapel at 6:30 a. m., then breakfast and “at 7 o’clock we are given the night report of the night nurses, we are assigned to-patients, take temperatures, give bed pans, make beds, give all treatments such as enemas and so forth that is necessary, give hypodermics, intra-muscular injections and medicines.”' Petitioner testified that during the first year she worked nine hours a day when employed on the day shift and longer hours when on the night shift. The shifts were rotated by thedirectoress of nurses. It appears that petitioner worked six days or nights a week and was entirely subject to the control and supervision of the head nurse.

In return for the work performed petitioner received three meals a day and a room to sleep in plus six uniforms, twelve aprons, twelve kerchiefs, two pairs of shoes and various nursing and dietetics books.

In the formal petition filed in this cause petitioner alleged that she sustained an injury on March 39th, 1940, by accident arising out of and in the course of her employment. Kespondent in its answer denied that the relationship of employer-employee existed between the parties. At the conelusion of petitioner’s testimony the Deputy Commissioner sustained the contention of respondent and determined that “the status of preceptor and student existed between the petitioner and the respondent at the time of the alleged accident’', and thereupon dismissed the petition for lack of jurisdiction»

It is fundamental that as a necessary prerequisite for recovery under the Workmen’s Compensation Act, N. J. S. A. 34:15-1, et seq., there must exist the relationship of employer-employee, Corbett v. Starrett Bros., Inc., 105 N. J. L. 228; 143 Atl. Rep. 352. In order for that relationship to exist there must be a valid contract of service together with the right or power in the employer to control the employee with respect to the transaction out of which the injury arose, Essbee Amusement Corp. v. Greenhaus, 114 N. J. L. 492; 177 Atl. Rep. 562. The relationship of master and servant exists whenever the employer retains the right to direct the manner in which the work shall be done as well as the result to be accomplished, or in other words, not only what shall be done but how it shall be done, Errickson v. F. W. Schwiers, Jr., Co., 108 N. J. L. 481; 158 Atl. Rep. 482.

After a careful consideration of the record in this case it is my opinion that the status of a student nurse who renders service to the public and to the respondent hospital for the pecuniary gain of the latter is very similar to the old time apprentice. While all of the attributes and legal consequences of an apprenticeship relation are not present here, most of them are. In Black’s Law Dictionary (third edition) page 129, an apprentice is defined as “a person, usually a minor, bound in due form of law to a master, to learn from him his art, trade or business, and to serve him during the time of his apprenticeship,” Lyon v. Whitemore, 3 N. J. L. 845. Thus, the apprentice rendered services to his master in some trade or employment with the primary purpose of learning the trade, business or profession of the master. The apprentice usually received no remuneration for his services outside of his board and lodging, Stokes v. Hatcher, 4 Id. 84. For services rendered by him, no doubt the master received payment from the public, Bedford v. Newark Machine Co., 16 N. J. Eq. 117.

Applying the test laid down in Errickson v. F. W. Schiers, Jr., Inc., supra, to the instant case it seems to me from the circumstances described by the petitioner in her testimony that a relation of master and servant existed between these parties. I am not unmindful of the fact that one of the purposes of the respondent hospital in permitting a student nurse to practice hervart upon the public was to increase her efficiency. Another very material purpose was to derive pecuniary gain for the services performed.

The petitioner below entered into an agreement with the hospital whereby she rendered services to the hospital audits patients. Can anyone doubt the value and importance of such services? Indeed, it is to be seriously doubted that a general hospital could function without the services of student nurses. In return, she received instruction, training, food and lodging and incidental equipment. This constituted her compensation and she earned it. As was stated by the Court of Errors and Appeals in Toner v. International Association of Bridge, &c., Workers, 113 N. J. L. 29; 172 Atl. Rep. 389, although the payment of salary may be one of the elements of proof of employment, it is not controlling, the power to discharge is essential between the master and servant and is an indicium of the relationship.

This case will therefore be remanded to the Bureau to be tried on its merits.


source: Caselaw Access Project

author: Eastwood, J.

license: Public Domain

text:
    Atlantic County Court of Oyer and Terminer.
    IN THE MATTER OF THE APPLICATION OF GEORGE FREY, HARRY SAUNDERS, WILLIAM BAYNARD AND WILBURTH SPRIGGS TO QUASH SUBPŒNAS DUCES TECUM.
    For the petitioners, Harry Miller.

    For the State of hTew Jersey, Warren Dixon, Jr., Deputy Attorney-General.
   The opinion of the court was delivered by

Eastwood, J.

Petitioners are officially connected with the police department of the City of Atlantic City and make application before me, as Supreme Court Justice presiding over the Court of Oyer and Terminer in and for the County of Atlantic, to quash subpoenas duces tecum, heretofore issued out of the said Atlantic County Court of Oyer and Terminer, and directing them to appear before the grand jury in the aforesaid County of Atlantic, and produce copies of their “1946 and 1947 income tax returns, together with all supporting data and memoranda in connection therewith.”

Petitioners, in their application, recite that Warren Dixon, Jr., in May, 1947, pursuant to my request, was designated by Walter D. Van Riper, Attorney-General of the State of New Jersey, as a Deputy Attorney-General for the purpose of aiding in the prosecution of the criminal business of Atlantic County, and pursuant thereto Mr. Dixon undertook and is still engaged in an investigation of alleged violations of the gambling laws of the State of New Jersey; that the May term, 1947, grand jury has, pursuant to orders made by me, continued to and still does function as the grand jury charged with the specific duty of making inquiry into alleged violations of said gambling laws; that the subpoenas duces tecum, in question were issued and served upon the petitioners, directing them to appear before said May term, 1947, grand jury.

Petitioners, in support of their application to quash said subpoenas, argue that (1) the compulsory production of said records “constitutes an unreasonable search and seizure and is in violation of article I, paragraph I, article I, paragraph 7, of the New Jersey Constitution, N. J. S. A., and in violation of the Pifth Amendment of the United States Constitution;” and (2) “The mere fact that the papers are sought by the subpoena duces tecum at the instance of the Deputy Attorney-General conducting a grand jury investigation will not warrant their production in violation of the fundamental rights of the petitioners.”

Under point I, petitioners argue that, while they do not presently seek the protection of the Pifth Amendment to the United States Constitution against self-incrimination, the constitutional amendment in question “has some overall bearing on the question involved here in so far as the same relates to the production of private records in violation of the right of privacy.” As I view it, the question of self-incrimination cannot be raised by the petitioners at this time. The state concedes that “if the right against self-incrimination is relied on by any witness under subpoena as a reason for the non-production of records or the refusal to answer questions, the production of which or the answering of which would actually incriminate, that there can be a proper refusal predicated on the right against self-incrimination.” Such a right must be exercised by the witness when he is called upon to produce the records in question or to testify regarding same. This principle of law is so firmly established by our judicial decisions, it requires no citations to support it.

As to petitioners’ argument that the production of said income tax returns and supporting data invades their right of privacy, that they are privileged documents and, therefore, the state is not entitled to their production before the grand jury, is not supported by the weight of judicial authority. In re City of Newark, 118 N. J. L. 533; 190 Atl. Rep. 306, a lawyer named Irving Mandelbaum was subpoenaed as a witness to appear before Supreme Court Commissioner Warren Dixon, Jr., to respond to interrogation regarding “some of his personal papers, including bank statements and canceled checks, which he had been directed by the subpoena to produce.” Mandelbaum refused to testify regarding these matters on the ground that it was an intrusion into his personal affairs and that he had a constitutional right to refuse. Mandelbaum was adjudged in contempt because of his refusal to testify regarding said personal papers, in that he made no claim of self-incrimination. Mr. Justice Parker in his opinion, adjudging Mandelbaum in contempt, inter alia, stated:

“Eeverting to the particular questions before me, I consider that Mr. Mandelbaum was not justified in refusing to obey the subpoena duces tecum, In re Lefferts, 67 N. J. L. 172; 50 Atl. Rep. 342, nor was he justified in refusing to testify on the ground of irrelevancy or immateriality, and no claim of incrimination is made. As to the Union Bank, I do not understand that it objected to producing the Mandelbaum account, except that it wished his consent. If these witnesses were before a Vice-Chancellor, or in a law court. and proper objections were made by a party, apart from privilege, the judge would examine the documents and admit or exclude them according as he found them competent or otherwise.”

It is my view that the City of Newark case, supra, is dis-positive of the issue here.

Petitioners argue, also, that from the record before the court it cannot be determined whether the compulsory production of the documents mentioned in the subpoenas duces tecum is reasonable in the absence of any evidence or facts before it to enable it to pass upon that issue. Petitioners admit knowledge of the investigation which has been conducted by Mr. Dixon for many months and that the May term, 1941', grand jury is still functioning for the consideration of alleged violations of the gambling laws of this state. It seems to me that it is a justifiable implication that the testimony sought from the petitioners, particularly with regard to the documents in question, is in connection with the investigation of said alleged gambling activities in Atlantic County.- Such an inquiry is properly within the broad inquisitorial powers of the grand jury.

The parties hereto have stipulated that new subpoenas duces tecum issued and served upon the petitioners since the presentation of the petition filed herein, may be considered by me in disposing of this issue, as fully as though they had been issued and served at the time of the presentation of this application.

I have considered the other grounds advanced by petitioners and do not find that any of their constitutional rights are violated.

The application to quash said subpoenas duces tecum is denied. The petitioners are directed to appear before said grand jury, together with the documents called for in said subpoenas, when notified to do so.


author: Smith, Arthur B., 0. P. J.

text:
    Somerset County Court of Quarter Sessions.
    STATE OF NEW JERSEY v. MICHAEL BLISAK, DEFENDANT.
    Decided April 14, 1948.
    For the motion, Samuel Chiaravalli (J. Berkeley Leahy, of counsel).
    For the state, T. Girard Wharton, Prosecutor of the Pleas, and Leon Gerofsky, Assistant Prosecutor of the Pleas.
   Smith, Arthur B., 0. P. J.

The trial of the indictment against the above named defendant took place on February 10th, 11th and 12th, 1948. The indictment charged him with an assault with an offensive weapon with intent to rob one Bernard Fricke (R. S. 2:110—2 and 3; N. J. S. A. 2:110-2 and 3).

After the court had instructed the jury, the court, pursuant to the provisions of R. S. 2:190-14; N. J. S. A. 2:190-14, directed the verdict of the jury to be taken by the clerk in the absence of the judge and ordered that the court remain open for that purpose. Subsequently, in the absence of the judge, the jury returned into court and rendered their verdict to the clerk. The jury found the defendant guilty.

On February 17th, 1948, the defendant moved to arrest judgment, the motion being “based on what transpired at the trial, or rather, at the expiration of the trial,” contending that associate counsel, J. Berkeley Leahy, had requested the clerk “to poll the jury when the verdict was rendered” and that the clerk had refused this request asserting that he believed he did not possess the authority to do so and that only the court itself could poll the jury. The defendant contends that this refusal on the part of the clerk was prejudicial error and such a violation of the rights of the defendant as to require the court, on the defendant’s motion, to arrest the judgment.

The clerk’s belief that he did not possess the authority to poll a jury is not difficult of explanation and understanding. For some reason unknown and which does not appear to be very substantial, there is a difference between civil cases and criminal cases with respect to the right of the clerk to poll a jury. In a civil case “the court may direct that the jury’s verdict be taken by the clerk, in open court in the absence of the judge, and may order that the court remain open for that purpose.” R. S. 2:27-236; N. J. S. A. 2:27-236. This section of the statutes is silent respecting the polling of the jury by the clerk. However, in a criminal case the statute not only provides that the court “may direct the verdict of the jury to be taken by the clerk or his representative in open court, in the absence of the judge or judges of the court, and the judge may order that the court remain open for that purpose,” hut further provides that “On the request of the defendant or his counsel, or the state, the jury may be polled by the clerk or his said representative, and the verdict taken as though in open court before the judge or judges.” R. S. 2:190-14; N. J. S. A. 2:190-14. This distinction between civil and criminal cases with respect to the right of the clerk to poll the jury was recognized by our Court of Errors and Appeals in Francillo v. Latour, 316 N. J. L. 423; 184 Atl. Rep. 820, wherein it was held that the clerk has no authority to poll a jury in a civil case. It is quite apparent that under the circumstances prescribed in R. S. 2 :190-14; N. J. S. A. 2:190-14, the clerk may in any criminal case, except in a capital case, not only take the verdict, but, upon a proper request therefor, may also poll the jury.

An examination of the pertinent authorities indicates that there is some division of thought by the courts as to whether the polling of the jury is the absolute right of a litigant. 16 C. J., tit. “Criminal Law,” 1098, 2576; 23 C. J. S., Criminal Law, 1070, § 1392a. However, it is not deemed necessary to decide that question in this case. Whether a litigant in any case is entitled to have a jury polled seems to be dependent upon the making of a proper request therefor at a proper time in the proceedings. “The jury may be polled after the verdict is given and before it is filed; and a motion or request to poll should be made as soon as the verdict is announced; it comes too late if made after the verdict is announced and recorded, * * * It has been held that, where the judge erroneously permits the jury to be polled, although such permission should have been refused because it was not asked within the proper time, and one or more of the jurors dissents from the verdict, the verdict is not thereby vitiated.” 16 C. J., tit. "Criminal Law,” 1098, f 2577. See, also, 64 C. J., tit. "Trial,” 1060, f 863; 23 C. J. S., Criminal Law, 1071, § 1392b. “Failure to make a demand for a poll of the jury before the verdict has been recorded may constitute a waiver of the right.” 14 Am. Jur., tit. "Criminal Law,” 916, f 213. “However, a request to have the jury polled before the verdict is rendered is premature and properly denied.” 53 Am. Jur., tit. “Trial,” 704, 1017; 27 R. C. L., 839, ^ 8.

In the case of Commonwealth v. Schmous, 162 Pa. 326; 29 Atl. Rep. 644, it was held that a request to poll the jury comes too late after a verdict has been announced, recorded and affirmatively responded to by the entire jury and that where pursuant to a request thereafter received the jury is erroneously polled, the separate answers given by the jurors, if not in harmony with such verdict, may be treated as surplusage. In the last cited case the defendant was convicted of murder in the first degree. His motion in arrest of judgment was overruled and an appeal was taken. Mr. Chief Justice Sterrett, writing for the Supreme Court of Pennsylvania, said in part: “What actually occurred at the time is concisely and chronologically stated by the learned trial judge in his opinion overruling the motion in arrest of judgment, thus: ‘The jury having been brought into court, the prisoner, being in the dock, was directed to stand up, and the jury was then directed to look upon the prisoner. The clerk, addressing the jury, said-: “Gentlemen of the jury, have you agreed upon your verdict?” To which each answered, “We have.” “Who shall answer for you ?” To which each answered, “Our foreman.” The clerk then said: “In this issue joined between the Commonwealth and George Schmous, the prisoner at the bar, how say you? Is he guilty of the felony wherewith he stands charged, or not guilty?” To which the foreman answers, “We find him guilty of murder in the first degree.” The clerk then handed the indictment to the court, made the entry on the minutes, and then said to the jury: “Harken to your verdict as the eourt has recorded it. In this issue joined between the Commonwealth and George Schmous, the prisoner at the bar, you say you find him guilty of murder of the first degree, and so say you all.” To which each answered, “We do.” After this was done, counsel for defendant asked a poll of the jury, which being granted, the clerk again put to each juror, separately, the question: “In this issue joined between the Commonwealth and George Schmous, the prisoner at the bar, how say you? Is he guilty of the felony wherewith he stands charged, or not guilty ?” To which each answered “Guilty.” Ho objection was made to the answer by anyone. Counsel for defendant claims that the verdict of murder in the first degree, as so rendered and recorded, was nullified by the failure of each juror to specify the degree in his answer upon the polling.’ According to the well settled practice in the Oyer and Terminer, the request to poll the jury came too late, and should have been denied. The verdict, in due form, had already been not only announced, but recorded, and affirmatively responded to by the entire jury. The separate answers, given after all that was done, if not in harmony with the previously recorded verdict, may be treated as mere surplusage. * * * There is nothing in the alleged error that would warrant a reversal of the judgment.”

The defendant in arguing the motion to arrest judgment placed substantial reliance upon the decision of the Superior Court of Pennsylvania in the case of Commonwealth v. Lemley, 158 Pa. Super. 125; 44 Atl. Rep. (2d) 317, as establishing the defendant’s right to have the jury polled. However, as previously indicated, it is not deemed essential to the defendant’s motion to decide whether he has an absolute right to the polling of the jury. In the case relied upon by the defendant, while the court indicated that it was a defendant’s right to have a jury polled, the court plainly recognized that the exercise of the right was dependent upon a proper request being made before the recording of the jury’s verdict. In that case it appeared that a request to poll the jury had been made immediately after the first announcement of the jury’s verdict and before the recording thereof.

In the case of Roltmund v. Pennsylvania Railroad Co., 225 Pa. 410; 74 Atl. Rep. 341, it was held that a motion to poll the jury comes too late after the verdict has been announced, affirmed by the jury collectively and recorded in the minutes. In Eastley v. Glenn, 313 Pa. 130; 169 Atl. Rep. 433, it was held that after a verdict is recorded, the jury may not vary from it. See, also, Scott v. Scott, 110 Pa. 387, 390; 2 Atl. Rep. 531, 532.

In Hommer v. State, 85 Md. 562; 37 Atl. Rep. 26, it was held that the right of a defendant on trial for murder to a poll of the jury is waived if no demand therefor is made before the verdict is recorded. In that case the defendant had been convicted of murder and the question under consideration related to the defendant’s right to a poll of the jury. The court said in part: “We have no doubt as to the question in this case, and are of the opinion that the ruling of the court below was correct. * * * In Ford v. State, 12 Md. 514, it is said 'that when the jury be asked if they have agreed on their verdict, and they respond that they have, and that their foreman shall say for them, and the foreman, speaking for the whole panel, find a proper verdict, and the same be recorded, the whole panel being called upon to hearken to it as the court has recorded it, and no objection being made, either by any of the jury or the counsel for the state or prisoner, then such proper verdict, as given through the foreman, is the verdict of the whole panel, and it is too late, after the record of it, under such circumstances, for any of them to alter or amend it. It is then too late to poll the panel.’ While it is true that a prisoner is entitled, as a matter of right, to a poll of the jury, yet it is a right that can be waived; and a failure to make the demand at the proper time—that is, before the verdict has been recorded—is equivalent to a waiver. This has been the uniform practice in the courts of the state, and it is supported by both reason and authority.”

Counsel have cited no decisions by the courts of this state, and none has been found bearing upon the question now under consideration. State v. Simon, 101 N. J. L. 11; 127 Atl. Rep. 570, cited by the defendant is not helpful. It suggests only that the defendant has the right to have the jury polled, but does not decide nor discuss the timely making of a motion or request in order to preserve and exercise, such right. The same applies to Francillo v. Latour, supra, also cited by the defendant. This court, therefore, is free to, and does adopt the authorities hereinbefore cited as setting forth the correct rule relating to the question under consideration. Although they may not be regarded as authorities on the subject, it is interesting to note that O’Kegan and Schlosser in their book “New Jersey Criminal Practice and Procedure,” at page 271, paragraph 355, after citing R. S. 2:190-14; N. J. S. A. 2:190-14, state: “In either case a request must be made for such poll. The request is to be made before the jurors have assented to the verdict on the clerk’s inquiry of them and the verdict has been actually accepted and recorded.”

It becomes important to determine at what point in the proceedings the verdict shall be deemed to have been announced and recorded, and after which it will be too late to request a polling of the jury. It has been said that such a request “should be made as soon as the verdict is announced; it comes too late after the verdict has been announced and recorded.” 16 C. J., 1098; 23 C. J. S., Criminal Law, § 1392b. In Commonwealth v. Schmous, supra, and Hommer v. State, supra, it is indicated that some act between the announcement of the verdict by the foreman and the subsequent response by the entire jury constitutes the recording of the verdict. That act appears to be the entry of the verdict, as announced by the foreman, upon the minutes by the clerk. To what act could the phrase “recording of the verdict” possibly refer if not to the writing down thereof, in the minutes of the trial, by the clerk. hTo other recording of the verdict is made at that time. Certainly it could not reasonably be thought to refer to the act of the clerk at some later, indefinite date, possibly long after the trial, when the clerk shall copy his trial minutes into more permanent record books. The jury would then have long since disbanded. They could not be recalled to be polled. It seems quite obvious that the recording of the verdict referred to in the rule under consideration is that physical act of the clerk in writing down in his trial minutes the verdict of the jury as announced by the foreman, immediately following his announcement and prior to the affirmation thereof by the jury collectively. The following quotation by O’Kegan and Sehlosser at page 269 of their book “New Jersey Criminal Practice and Procedure,” from 1 Chitty’s Criminal Law, 635, 636, also appears to support this conclusion. After indicating that the foreman of the jury announces the verdict he continues: “The officer then writes the word ‘guilty’ or ‘not guilty,’ as the verdict is, after the words ‘po. se.’ on the record and again addresses the jury, ‘Hearken to your verdict as the court hath recorded. y. .> - * % * »

The testimony of three witnesses was taken on the motion to arrest judgment. The clerk testified that- as he was coming through the rotunda on the way from his office to the. court room to receive the jury’s verdict, he met Mr. Leahy, associate counsel for the defendant, who said to him, “I am going to ask you to poll the jury,” and that he replied that, he “didn’t have the authority to do it.” Any request at this time to poll the jury was most certainly premature. 53 Am. Jur. 104; 21 R. C. L. 839. The clerk then proceeded to his desk in the court room. Shortly thereafter the jury came in, the roll was called and they were asked by the clerk whether they had agreed on their verdict. In unison they replied they had and, in response to the clerk’s inquiry, that their foreman should speak for them. The foreman, being asked by the clerk whether the jury found the defendant guilty or not guilty, replied “We find the defendant guilty as charged.” Then “after recording the verdict,” the clerk again addressed the entire jury as follows: “Ladies and gentlemen of the jury, harken to your verdict as the court has ordered it recorded: You say you find the defendant guilty as charged and so say you all ?” The jury “gave their unanimous assent.” Mr. Leahy then requested that the jury be polled. Mr. Leahy was sworn as a witness in support of the motion to arrest judgment, as was also the sheriff. Mr. Leahy’s testimony was indefinite and uncertain as to when he did request the. clerk to poll the jury. He frankly admitted he couldn’t honestly say whether his request was before or after the jury had assented to the verdict as announced by the foreman. The testimony of the sheriff is as indefinite and uncertain as that of Mr. Leahy as to when Mr. Leahy requested- the clerk to poll the jury.

I am constrained, therefore, to rely upon the testimony of the clerk which is to the effect that the request to poll the jury was not made until after the verdict of the jury had been announced and recorded and affirmatively responded to by the entire jury. The request, therefore, "came too late and should have been refused by the clerk even if he- had been aware of his statutory right to poll the jury upon a proper and timely request. Finding that the request was not timely and should, therefore, have been refused by the clerk, it necessarily follows that the clerk’s refusal to poll the jury, although based upon faulty reasoning, did not violate any of the defendant’s rights and affords no support for the defendant’s motion to arrest judgment. The motion must, therefore, be denied.

It is urged on behalf of the state that the defendant’s motion should be denied for the further reason that the alleged error of which the defendant complains, is not one appearing on “the record” and, therefore, even if the error in fact existed, could not be taken advantage of on a motion in arrest of judgment. The cases of State v. Crusius, 57 N. J. L. 279; 31 Atl. Rep. 235; State v. Bove, 98 N. J. L. 350; 116 Atl. Rep. 766; affirmed, 98 N. J. L. 576; 119 Atl. Rep. 926, and State v. Landecker, 100 N. J. L. 195; 126 Atl. Rep. 408, cited on behalf of the state appear to support this contention. In Van Demark v. Sartorius, 122 N. J. L. 503; 7 Atl. Rep. (2d) 168, the judge had withdrawn, and the return of the jury was under the supervision of the deputy clerk who, on request, polled the jury. The proceedings incident to the rendition of the verdicts were shown by extrinsic proofs, namely, by the minutes of the trial proved by the person who had been deputized by the county clerk to take them. The Supreme Court, speaking through Mr. Justice Case, said, 122 N. J. L. (at p. 504); 7 Atl. Rep. (2d) (at p. 169) : “It may here be noted that the minutes so taken and proved are not a part of the record.” And, 122 N. J. L. (at p. 505); 7 Atl. Rep. (2d) (at p. 170): “The motion was, in effect, if not in precise words, a motion in arrest of judgment. If it is to be treated as such, it must be predicated on an intrinsic cause appearing on the face of the record. Paradise v. Great Eastern Stages, Inc., 114 N. J. L. 365; 176 Atl. Rep. 711. * * * If, in these cases, a deputy clerk had the authority—and this is conceded—to fake the verdicts but had, as we are obliged to find, no authority to poll the jury, then it follows that what he did with respect to the poll is, regardless of the manner in which it is proved, not a part of the verdicts and ought not to be, as in fact it is not, a- part of the record.

"Therefore, if defendant’s motion, renewed before us, is to be accorded the status of a motion in arrest of judgment, it must be denied, because the alleged fault upon which it depends does not appear on the face of the record. * *

Since a motion in arrest of judgment may be addressed only to errors appearing on "the record” and the alleged error of which the defendant complains is not a part of the record, the defendant’s motion must also be denied for this reason.


author: Smalley, C. C. J.

text:
    Mercer County Circuit Court.
    HARRY C. HARPER, COMMISSIONER OF LABOR OF THE STATE OF NEW JERSEY, PLAINTIFF, v. NEW JERSEY MANUFACTURERS CASUALTY INSURANCE COMPANY, DEFENDANT.
    Decided April 9, 1948.
    For the plaintiff, Walter J). Van Riper, Attorney-Genera] (by Grace J. Ford, Assistant Deputy Attorney-General),
    For the defendant, George F. Meredith.

   Smalley, C. C. J.

This action was tried without a jury in accordance with application made and stipulations filed.

Suit is brought by the plaintiff to recover from the defendant the sum of $7,229.54.

Plaintiff claims that this sum is due from the defendant, pursuant to R. S. 34:15-94; N. J. S. A. 34:15-94.

“R. S. 34:15-94; N. J. S. A. 34:15-94. Payments to Commissionek oe Laboe ; Amoent oe Eund. Each mutual association or stock company writing compensation or employers’ liability insurance in this state,, and each self-insurer, shall annually, on or before March first in each year, pay to the commissioner of labor a sum equal to one per cent, of the total compensation paid out by such mutual association, stock company or self-insurer during the calendar year next preceding the due date of such payment. Such sum shall be paid by the commissioner of labor to the state treasurer.

“When the total amount of all such payments into the fund, together with the accumulated interest thereon, equals or exceeds one and one-half million dollars ($1,500,000.00) no further contributions to said fund shall be required to be made; but whenever, thereafter, the amount of such sum shall be reduced below one and one-half million dollars ($1,500,000.00) by reason of payments out of such funds pursuant to section 34:15-95 of this title, then such contributions to such fund shall be resumed forthwith, and shall continue until such sum shall again amount to one and one-half million dollars ($1,500,000.00) together with accumulated interest thereon.”

The condition of the fund on hand being less than $1,500,000 makes the payments as required under the statute due and owing.

Plaintiff is the Commissioner of Labor of the State of New Jersey, and the person designated by R. S. 34:15-94; N. J. S. A. 34:15-94, to receive these payments.

Plaintiff now seeks to recover from the defendant, one per cent, of the total compensation paid by the defendant company during the calendar year of 1945.

Defendant is a mutual association organized and existing under, and by virtue of the laws of the State of New Jersey, writing compensation for employers’ liability insurance in this state, and is therefore' required to pay to the plaintiff the sum equal to one per cent, of the total compensation paid out by it during the calendar year of 1945, on or before the 1st day of March, 1946.-

R. S. 34:13-13; N. J. S. A. 34:15-13, provides for the payment by the carrier of funeral expenses.

R. S. 34:15-15; N. J. S. A. 34:15-15, provides for the payment by the carrier of medical expenses.

Defendant admits that it has paid out, pursuant to R. S. 34:15-1, et seq.; N. J. S. A. 34:15-1, el seq., the amount o£ $2,797,802.74, inclusive of the amount for medical aid and funeral expenses, for the calendar year of 1945. Defendant has paid to the plaintiff the sum of $20,056.84, but refuses to pay to the plaintiff one per cent, of the medical and funeral expenses, which amounts form the basis of this suit, it being defendant’s contention that medical aid and funeral expenses are no part of “total compensation paid out.”

There is no dispute as to these facts. The real issue is: does the term “total compensation paid out” as set forth in R. S. 34:15-94; N. J. S. A. 34:15-94, include medical and funeral expenses. If it does, the plaintiff is entitled to judgment for the amount as claimed. If the answer to the question is in the negative, there must be judgment for the defendant and against the plaintiff of no cause of action.

This “one per cent, fund” was constituted by the legislature to provide aid to "persons totally disabled, as a result of experiencing a subsequent permanent injury under conditions entitling such persons to compensations therefore, when such persons had previously been permanently and partially disabled from some other cause.” R. S. 34:15-95; N. J. S. A. 34:15-95. To provide a fund for this purpose, the legislature required insurance carriers to pay to the Commissioners of Labor, “a sum equal to one per cent, of the total compensation paid out.”

The parties, during the time of trial, recognizing the difficulty of presenting proof of payment to each and every individual receiving medical aid, stipulated the following:

“Dor the limited purpose of agreeing on a figure to guide the Court in the event that it decides that medical and funeral expenses are included in the term ‘total compensation,’ as stated in R. S. 34:15-94 [N. J. S. A. 34:15-94], so as to make such payments subject to an assessment of one per centum (1%), the Defendant stipulates the amount of $717,703.84 as the total of its medical expenses paid out in. the calendar year 1945, and $5,250.00 as the total of its funeral expenses paid out in the same year.” This stipulation, as entered, for the first time makes this matter one of Statutory interpretation.

The legislature, in the year 1923, first established this “one per cent, fund,” or “second injury fund.” There were amendments by the legislature in 1931, 1936, 1938 and in 1945, but the pertinent phrase involved in this litigation namely, “* * * a sum equal to one per cent, of the total compensation paid out,” has remained constant and unchanged up until the present time.

In 1945 the legislature removed the ceiling of $200,000 and' increased the amount in this fund to $1,500,000. It did not change the language as to the basis of ■ calculation that the carriers or self insurers were to use when required to make payments to the Commissioner of Labor.

Beginning in 1923 and up and until 1946, all personnel in authority connected with the Department of Labor never construed this assessment to include payments for medical aid and funeral expenses.

Por the first time, in 1946 demand was made for this additional assessment based on the expenditure made by the defendant for medical and funeral expenses. What is it that 1ms caused this change of position by those assigned to the plaintiff’s office? It cannot be fairly said that it was the action of the legislature in the year 1945, because, the only pertinent change was to increase the amount of the fund. No change in the language of the act since its inception can therefore be the moving cause.

Plaintiff .contends that the' term “compensation,” under the act, includes medical and funeral expenses and that our courts have heretofore so determined this question. K., pages 95 and 96. In support of this contention, plaintiff cites Greif v. Betsy Ross Ice Cream Co., 19 N. J. Mis. R. 397; 20 Atl. Rep. (2d) 597; affirmed, 127 N. J. L. 323; 22 Atl. Rep. (2d) 571. In the Pleas the court said (19 N. J. Mis. R. (at p. 400); 20 Atl. Rep. (2d) (at p. 599)):

“It is the opinion of this court that the rendition of medical treatment is an integral part of the humane intention of the legislature to give to employees the protection required under the exigencies. Medical treatment is as much a part of the compensation as the monetary award and a contrary interpretation would be inimicable to the whole theory of this social legislation.”

In the Supreme Court opinion (127 N. J. L. (at p. 324); 22 Atl. Rep. (2d) 571, 572) it was said:

“We think the following words of the statute are significant : 'Any payment made in accordance with the provisions of article 11 of this chapter (34:15-7, et seq.) shall constitute an agreement for compensation.’ [N. J. S. A. 34:15-51.] The several classes of compensation run consecutively (34:15-16).”

By reason of this pronouncement, plaintiff asks this court to construe the term “compensation” so as to include medical and funeral expenses in the calculations, when contributions, from the carriers and self insurers are required.

If this decision is dispositive of the problem, then thia court’s work is easily and quickly accomplished, but I can not so agree.

G-reif suffered an accident arising out of and in the course of his employment on the 1st day of September, 1938. On October 5th, 1940, the petition for compensation was filed. The solo question was, whether the employer’s act in reimbursing the employee on January 11th, 1939, for a surgical belt in the amount of $25 and on February 6th, 1939, for bandages and adhesives in the sum of $9.19, extended the time to file a claim beyond the two year period.

There the court refused to deny to the injured workman the right to have his claim adjudicated by the imposition of the technical defense of the statute of limitations. The court did not define the word “compensation,” but did construe the meaning and effect of the words “any payment” as used in R. S. 34:15-51; N. J. S. A. 34:15-51. It said, in substance,, that an employer could not furnish to his injured employee medical aid and at the very same time rely on the statute-of limitations, in the event the petition for compensation was-not filed within two years of the happening of the accident.

Here we are concerned with the matter of an assessment. Called by any other name, it is still nothing but a tax measure. The principles involved are far and away from common ground and the rule enunciated in one can not bind nor fit the other.

It is trite, but true, to say that workmen’s compensation is social legislation and must be liberally construed. It is equally true to say that any- legislation, if it be of a tax nature, must be strictly construed. Public Service Co-ordinated Transport v. State Board of Tax Appeals, 115 N. J. L. 97; 178 Atl. Rep. 550.

What is possibly the best available definition of the term “compensation,” appears in the statute itself in the language of R. S. 34:15-35; N. J. S. A. 34:15-35:

“* * * The bureau and the judge of the court of common pleas will regard the intention of this chapter that compensation payments' are in lieu of wages, and are to be received by the injured employee or his dependents in the same manner in which wages are ordinarily paid.”

The defendant in his brief at page 35 makes a statement worth quoting. “It seems apparent, therefore, that the industry of counsel for the plaintiff has been unable to find a ease in New Jersey which precisely defines the term ‘compensation,’’ and the writer of this Brief, after a reasonably thorough search, confesses to the same inability.”

This dearth of cited authority has caused this court to join the hunt for some real guide in determining this interesting and novel question. Having been asked to take judicial notice of one Governor’s message, I have read several such messages and find in the year 1945 (the year when the amount in this fund was increased to $1,500,000) that Governor Edge, in his first annual message to the legislature, on January 5th, 1945, at page 10, said:

“* * * I am recommending immediate legislation to remove the present statutory limit of $300,000 on the amount of the one per cent, or ‘second injury* fund. This fund is usfed to compensate workers who become totally disabled from the' effects of industrial injury following a previous disability. The fund is maintained by contributions from insurance carriers and these carriers are both willing and able to continué their contributions. Repeal of the statutory limit will clear the way for them to do so and also will assure protection to those whom we wish most to aid.”

The legislature’s response to this message was prompt. It proceeded to adopt in the very next month, February, 1945, chapter 10 of the laws of 1945 (R. S. 34:15-94; N. J. S. A. 34:15-94) which removed the ceiling and increased the fund from $200,000 to $1,500,000. It did not change the language in the method of calculating the assessment. Nothing is disclosed that spells out an intention to increase the scope of the assessment to include some items never before assessed.

Failure to enact the legislation of 1945 would have meant no further contribution by the carriers or self insurers; the amount in the fund at that time being far in excess of $200,000. See R., pages 10 and 11.

This action by the legislature to continue the contributions must not be interpreted as enlarging the scope of the tax or assessment. If that is what the legislature had in mind, and it must be presumed that it had knowledge of the method of calculating this assessment, it would have amended the pertinent part of the act and enlarged the scope of the assessment.

As was said in Young v. Civil Service Commission, 127 N. J. L. 329 (at p. 332); 22 Atl. Rep. (2d) 523 (at p. 525), “the matter was one within the control of the legislature and we deem it significant that, with the knowledge of this construction of the statute, the legislature did nothing to indicate disproval of this construction.”

Since the date of the inception of this “one per cent, fund” (1923), and until the time of this suit (1946), those charged with the collection of these funds have never sought to include medical and funeral expenses as proper items in calculating the amount due from the carriers or self insurers to the Commissioner of Labor.

The established custom and practice of those who have been long connected with the administration of this complex and social program must be given real consideration when there is no judicial determination to the contrary.

‘In Central Railroad Company of New Jersey et al. v. Thayer-Martin, 114 N. J. L. 69 (at p. 78); 175 Atl. Rep. 637 (at p. 641), the court, after citing a long line of cases, enunciated the rule that will govern this court.

“* * * ipjjg practical construction given to the law by the'board for nearly half a century on which it reached its conclusions is strong evidence that it is right. It has become the firmly rooted, established, and fixed law applicable thereto. It cannot, under these circumstances, be changed by or through the judicial branch of our government. The relief, if, any, prosecutors are entitled to have in the premises must come, if at all, by or through the legislative branch of our government. This we think is the well-settled law.”

If the plaintiff is to succeed in this suit, he must do so solely because of his interpretation of the principle laid down in Greif v. Betsy Ross Ice Cream Co., supra.

Having expressed an unwillingness to follow this interpretation, and being unable to find that the'term “compensation” is therein specifically defined, this court is equally unwilling to cast aside statutory definitions, legislative intent, established custom and practical interpretation, and indulge in judicial legislation.

I therefore find and determine, that the plaintiff has failed to establish that there is due from the defendant the stipulated sum of $7,229.54, and that the term “compensation,” oir “total compensation,” as set forth in R. S. 34:15-94; N. J. S. A. 34:15-94, does not include medical and funeral expenses.

Judgment, therefore, will be entered in favor of the deféndant and against the plaintiff of no cause of action.


author: Case, Chief Justice.

text:
    JAMES EVANS, PROSECUTOR, v. A. MICHAEL LEPORE, RECORDER OF THE CITY OF UNION CITY, RESPONDENT.
    Decided May 11, 1948.
    Before Case, Chief Justice.
    Bor the prosecutor, Solomon Golat.

    Bor the defendant, Fred Fichmann.

   Case, Chief Justice.

(Orally.) In this case we are met with this proposition: the prosecutor, James Evans, was charged with distributing circulars without having first received a permit from the chief of police in conformance with the ordinance of the City of Union City regulating canvassing, soliciting and distributing circulars and other matter within that city and providing penalties for the violation. There was a conviction under that complaint. That conviction is now before me under writ of certiorari. This is the return of the writ of certiorari. I am deciding the case upon such facts and such facts only as are shown in the record before me and upon the law, as I understand it, applicable to that state of facts and to the ordinance under which the conviction was had.

The circulars that were being distributed had to do directly or indirectly with an effort to roll hack as the expression in the circular had it, prices from their then level to an earlier-level and solicited the distributee • to communicate with his congressman in the effort to obtain or to retain price control, and I assume that by price control was meant control under federal legislative action. So the circular was within, as I understand it, the right of American citizens to endeavor to present their views to Congress. Unless there was some valid restraint upon the exercise of that privilege and right interference with the right is unlawful.

Interference is based upon the provisions of the ordinance which provides that no person except as in the ordinance provided shall canvass, solicit or distribute circulars or any other matter, or call from house to house in the City of Union City without first having reported to and received a written permit from the chief of police, and the ordinance further provides that the chief of police shall have power to grant a permit to canvass, solicit or distribute circulars, the permit to have certain limitations as to hours or days, with the further direction to the chief of police to refuse to issue a permit in all eases where the .application of the canvasser or person desiring to solicit or distribute circulars upon any further investigation made by and at the discretion of the officer shows that the person is not of good character, or that he is canvassing for a project not free from fraud. The ordinance further provides that before the permit may issue, the person desiring the permit shall make an application, giving his or her full name and address, his height, weight, place of birth, whether married or single, residence, whether or not previously arrested or Convicted of crime, by whom employed, the address of employer, the clothing worn, and the description of the project for which he or she is canvassing, soliciting or distributing circulars, and that each applicant shall be fingerprinted and photographed before a permit shall be issued.

All of that is required with the net result that if the person is thus shown to be not of good character the permit may be denied and the chief of police is made the judge of whether the person is of good character or the project free from fraud.

I am unable to- distinguish this case on any of the facts before me from the federal decisions that have been referred to, Schneider v. State (Town of Irvington), recorded, I think, in 308 U. S. 147; 60 S. Ct. 146; Lovell v. City of Griffin, 303 U. S. 444 ; 58 S. Ct. 666; McLean v. Mackay, 124 N. J. L. 91; 10 Atl. Rep. (2d) 733; Edgewater v. Cox, 123 N. J. L. 212; 8 Atl. Rep. (2d) 375.

It is said that the court in those cases did not receive or consider the argument and did not consider the argument that the right of free speech and free press is subject to the police power. I think that it is not accurate to say that those questions were not presented or considered and I take it that nevertheless the proposition is sound that the right of free press and of free speech is not an absolute right hut is subject to certain poliee powers. I am unable, sitting here as a single justice, to overrule the courts’ decisions to which I have referred, and there are decisions of like character holding that such an ordinance, as the one before us does not come within the realm of reasonable control of police power against these rights that have been named.

That brings me necessarily to the conclusion that the ordinance is not sound and that the conviction thereunder should be reversed.


author: Francis, A. M.

text:
    Frances B. Straver, petitioner, v. Daniel Straver, defendant.
    [Decided April 7th, 1948.]

      Messrs. Biker, Marsh & Scherer (Mr. Everett M. Scherer, appearing), for the petitioner.

      Messrs. Goult, Satz, Morse <6 Gault (Mr. David M. Satz, appearing), for the defendant.
   Francis, A. M.

On October 8th, 1946, the defendant filed a petition seeking modification of the provision of a divorce decree which required him to pay to his former wife the sum of $20 weekly for the support of the infant child of their marriage.

The decree nisi in the divorce action between the parties was entered January 7th, 1932. By it the petitioner, then Mts. Straver, was granted a divorce on the ground of adultery. She was awarded the custody of Joyce Faith Straver and $20 a week for her maintenance. The child was then two years of age. The decree contained no provision for visitation by the father. Whether this was an oversight or by design does not appear, although it is plain that the parties had some specific understanding under which the father could see his daughter at regular intervals.

The application for reduction was argued and on October 29th, 1946, an order was entered reducing the allowance to $7 per week, effective retroactively to July 1st, 1946. The July date was chosen apparently because the affidavit of defendant in support of the petition to modify was made on' that date. An appeal was taken and the Court of Errors and Appeals reversed (140 N. J. Eq. 480; 54 Atl. Rep. (2d) 925) saying that examination of the affidavits ffieads us to the conclusion that they did not present sufficient facts upon which to base the order appealed from.” And further that -due process of law would best be satisfied if the issue were determined in an orderly procedure on due notice and oral proofs.

Following the remittitur, rehearing was had on the affidavits and on such oral proofs as the parties cared to submit. Previous to the rehearing an order was issued which required the defendant to show cause why he should not be held in contempt for failure to pay the weekly allowance of maintenance of $20 from July 1st, 1946, and- for failure to pay a balance due on counsel fees and costs of $153.51.

At the close of the hearing leave to file briefs was granted; The defendant’s brief presents two contentions: (1) that the payments should be reduced from $20 to $7 weekly for the period from July 1st, 1946, to May 24th, 1947, and (2) that as of May 24th, 1947, all payments should cease because -on that day the infant child of the marriage reached the age of eighteen years and became emancipated.

The July 1st, 1946, date is used by Straver because the arrearages sought to be recovered in this proceeding begin as of .that time. It seems to be uncontradieted that between 1933 and .1939 h,e made no payments under the decree, but from 1939 on to July 1st, 1946, the over all average of the payments was about $20 weekly. So far as the record shows, no effort was made to enforce the decree between 1933 and 1939. The explanation offered by Mrs. Straver (now Pagan) is that she knew Straver was in financial difficulty and, consequently, she did not press him.

The Alleged Agbeement to Accept $7.00 Weekly.

The defendant contends that long prior to July 1st, 1946, an agreement was made whereby the petitioner agreed to accept $7 weekly for the support of their child, and that the $20 weekly allowance in the decree nisi should be reduced to that amount from July 1st, 1946, to the date of the infant’s eighteenth birthday. Petitioner emphatically denies the making of any such agreement. She says that during the depression years no payments were made to her. Then in 1939, on discussion of the matter, Straver asked her to take $7 weekly, which he would pay regularly and which sum she could always count on. Then he would make such payments in addition at intervals, which would, on an overall basis, average out to the required $20.

In the petition for modification Straver asserted that some time after the remarriage of his former wife she removed to Hew York City with their child “with the understanding that the said child would only require the payment of $7 per week.” In the supplemental affidavit, filed after the order appealed from was entered, he said: “My wife and I were under the impression that the decree nisi provided for payments of $25 per week until such time as petitioner remarried and in which event the payments were to be $7 per week, which amount your deponent has paid regularly through the years.” At the hearing he testified substantially to that effect, saying (without reference to the decree nisi) that on petitioner’s remarriage it was “our impression” that the payments were to be $7 weekly.

The conduct of Straver down to the filing of the application to revise the decree belies the making of any such agreement, and supports Mrs. Fagan’s assertion of their arrangement. Both parties concede that the total sums paid for support met the requirement of the order for $20 a week. Furthermore the answering affidavit of Mrs. Fagan on the application to reduce the award, recites that in May, 1945, he ceased payments and she obtained an order to show cause why he should not be adjudged in contempt. Following the service of this order “and after negotiation he, in June, 1946, paid up his arrearages at the rate of $20 per week.” This statement is admitted.

Petitioner put in evidence a cheek of the defendant dated March 25th, 1946, in the amount of $264.50, which bears in the lower left-hand corner the following notation:

$244.50
20 weekly
$264.50

Defendant places nmcli emphasis on a number of references, in letters received from petitioner to $7 weekly payments. However, her explanation of the arrangements between them seems a reasonable one, particularly in the light of payment, of an average of $20 weekly from 1939 to July 1st, 1946. ÍTor can it be overlooked that at no time was an order ever entered modifying the decree nisi from $20 to $7. It seems me that if such a reduction had been agreed upon, the' defendant would have litigated the question when the contempt proceedings were brought against him early in 1946. Payment of the arrearages in full at that time is strongly indicative of absence of such an agreement.

In my judgment the weight of the evidence is against thn defendant on this point and I find that there was no such agreement.

Emancipation op the Inpant-Daughteb.

Joyce Straver reached the age of .eighteen years on May 24th, 1947. The defendant says that this fact, plus others-to be alluded to presently, demonstrates that she has become emancipated. Consequently he should be relieved of the duty of further support. There is no age fixed in the law when a child becomes emancipated. Prior to twenty-one years there is a presumption against it, and the burden of establishing the status by competent evidence in on him who asserts it. Cafaro v. Cafaro, 118 N. J. Law 123; 191 Atl. Rep. 472. Even "arrival at the age of twenty-one years, does not, ipsofacto, result in emancipation. Arrival at majority is prima facie, but not necessarily emancipation.” Goldstein v. Goldstein, 4 N. J. Mis. R. 711; 134 Atl. Rep. 184.

In recognition of the presumption against the emancipation of a minor, Vice-Chancellor Gray, in Wilson v. Wilson, 41 Atl. Rep. 355-356 (not officially reported) in fixing support for an infant daughter said:

“Eor the support of the girl, that is to continue for a long while, and the order (unless some occasion for change appears) will last from this time when the girl is ten years of age until she comes to be twenty-one; that is eleven years.”

In an effort to meet this burden, the defendant, in addition to pointing to her age, says that Ms daughter has relinquished the use of Ms name, and is known as Joyce Pagan, that she has become estranged from Mm, and that she denies filial obedience to Mm, particularly because she refuses to give up school and become self-supporting. With respect to the use of her step-father’s name, Pagan, the proof establishes that she has been known as Joyce Pagan since she was four years old, and I am convinced that the assumption and continued use of the name was with the acquiescence of her father.

The estrangement between them is a condition which has grown over a period of years. It is, unfortunately, an all too common result of homes destroyed by divorce. It arose here through grievances about support, about clothes, about education and because of the father’s feeling that bis daughter should become self-supporting. The daughter testified that the defendant told her that when she became sixteen years of age he would disown her because she was not a good daughter and that he would not support her after that age. This is denied by Mm, but it is significant that she reached sixteen years on May 24th, 1945, and he ceased payments on May 21st, 1945. Thereafter he did not comply with the support order until contempt proceedings were instituted.

Joyce Pagan testified that she ceased seeing her father in June, 1945, and has not visited Mm since. She said she doesn’t want to see Mm anymore. On the father’s part, he has made no inquiry about the cessation of the visits and has made no effort to have them resumed.

It must be kept in mind, in connection with the problem of emancipation, that the petitioner has the custody and control of this child. The child lives with her, is subject to her parental domination and is still attending school. No one suggests that she is emancipated from her mother and where, as here, the control of the mother is the vital factor, there can be no emancipation in the absence of relinquishment or loss of that control.

What the defendant is really saying here is that his daughter is now old enough to go to work, to become self-suporting, that he is under no .duty to furnish her with a college education and that, if she refuses to accept employment, he should not be obliged to support her. This contention is based on the. ancient doctrine that a father who supports his child is entitled to her services. However, in modern times this rule must be subject to the qualification imposed by custody orders in divorce cases.

It seems to be the established law of New Jersey that a father is under no duty to provide a college education for a son or daughter, and this regardless of his financial capacity, Streitwolf v. Streitwolf, 58 N. J. Eq. 570; 41 Atl. Rep. 876; 43 Atl. Rep. 683. In our ease the petitioner, who has custody of the child under the order of this court is not seeking to impose on the father the cost of college education. She simply asks that he continue to support his daughter according to that order, while she assumes the burden of the tuition. When an order is made giving the custody of a child to a mother, there must be implicit in the order a grant of sufficient control to make the custody effective. In my judgment the mother in such a case is invested with the discretion to determine whether or not the child should receive education beyond that which is mandatory under the law. Having made a determination that the advanced education should be given, even though the cost thereof cannot be assessed against the father, his duly to maintain the child, having regard to her reasonable needs and to his financial condition, continues to exist. Petitioner had decided that her daughter. should attend college. Such decision is her right under the custody order, and the defendant will be required to provide reasonable support, exclusive of the education cost, gauged by her needs and his means.

It might be urged that, under such a doctrine, a mother could permit her child to remain a student indefinitely be.yond her majority, and force the father to provide support so long as he has the means to do so. However, no effort is being made to lay down an all inclusive rule. Bach case will have to be determined on its own facts, and the attainment of majority with its concomitant presumption of emancipation will always be one of the vital facts.

Accordingly, as to the defendant’s second contention, I find that the daughter of the parties is not now and was not emancipated on May 24th, 1945, her eighteenth birthday.

The real issue between the parties here is the amount the defendant should pay for the support of his child, having in mind her needs and his financial capacity.

In the defendant’s orginal affidavit of July 8th, 1946, in support of his application for revision of the decree nisi, he said his income had been reduced to $3,000 less unspecified office expenses, that he had been obliged to borrow $1,500 on “the equity of $3,500 which he has in real estate.” He mentioned also his interest in The Panda, Inc., a tavern which, he said, was then “subject to being closed due to accidental circumstances.” No reference was made to previous earnings from this tavern.

In this same affidavit he asserted that prior to January, 1946, his daughter had been demanding a fur coat. At this time he suggested (as appears by his second affidavit) that at the end of the school year (which would be June, 1946) she take a position with the insurance company he represented or in his office, where she could earn $18 a week. If she did this, he would give her an additional $18 a week as a gift. This statement does not indicate a consciousness of a declining adjustment business or of an inability to comply with the maintenance order.

In 1944 he acquired an interest in a supper club in Newark known as “Pat & Don’s” for $3,000. The affidavit says the “greater portion” of this money was borrowed. This interest was sold within a year for the same sum. However, no statement appears as to just what portion of this money was actually his, or what he did with it thereafter.

In October, 1944, he bought an interest in The Panda, Inc., for $3,500. He said that between October, 1945, and October, 1946, he paid $2,900 of this amount in weekly installments, leaving a $600 balance which was still due on the date of the second affidavit, January 7th, 1947. It is difficult to believe that if this $3,500 was borrowed money, no payments wore made on the loan between October, 1944, and October, 1945. In any event the asserted payments indicate an income from some source of approximately $60 a week for the year October, 1945, to October, 1946. In addition, at the hearing in February, 1948, he testified that he had a $4,500 investment in The Panda, which means that somehow another thousand dollars of his money had filtered into the business.

In July, 1946, he borrowed $5,000 from the Fidelity Union Trust Company of Uewark on collateral owned by his sister. Since that time $1,000 had been paid on the note out of Panda receipts.

In petitioner’s affidavit the allegation is made that the defendant gave a financial statement to Dunn & Bradstreet on December 17th, 1945, to the effect that the fixtures and furnishings of The Panda were worth $40,000 and that the weekly sales were approximately $700. This assertion is not denied, nor is the statement produced.

According to Straver’s testimony, he had a $6,000 investment in a supper club before he went into The Panda. The place or his interest therein was sold in March, 1945. What happened to the money is not shown.

In 1946 he sold two pieces of real estate for $13,500. The purchase price was $9,500. The record is not clear as to what portion was profit nor as to what was done with the profit.

It is conceded that he has been paying $50 a month in liquidation of a loan secured by his automobile. This money Straver said is advanced by his wife, who likewise pays their rent of $50 a month. His wife earns $50 a week. Whether this is gross or net to her, does not appear. Assuming it to be net, if Straver is earning nothing, then he and his wife are living on $100 a month, which is very questionable.

It appeared that Straver had done appraisal work for the Commercial Casualty Insurance Company for a number of years. He testified that he lost the business because of unfavorable publicity about his being an alien. This non-citizenship became known in the Alcohol Beverage Control Board proceedings and my notes indicate that The Panda was closed from October 15th to December 15th, 1947, as the result thereof. If this publicity in fact cost him the appraisal work, then it wasn’t until the end of 1947, and no hooks or records are presented to show what the earnings were from that source until the loss occurred.

The office from which this appraisal work was conducted is still in existence, and Straver’s brother is said to be receiving some of the work. Straver’s name is still on the door of the office, although he said this is just an accommodation. How the brother happened to succeed the defendant in the business, or whether there was some connection between them and the insurance companies before Straver’s alleged difficulties is not explained. The brother was not produced, nor was anyone from the insurance company produced to confirm the loss of the business.

According to Straver, he is now the general manager of The Panda and he has no other business. He says that since July 1st, 1946, he has received only $300 as earnings from this source. Despite this he has sought no other employment. Ho books or records of The Panda are produced and Straver’s statement is the only proof of its financial trouble. It is fairly inferable from the testimony that this tavern has been paying his purchase money obligation and installments on his Fidelity Union Trust Company note, and that his interest is greater than the ten per cent, he asserts.

Under all of the circumstances it is my opinion that the defendant has not sustained the burden of establishing that the decree nisi should be modified so as to reduce or cancel his obligation to support his child. The defendant will be required to satisfy the arrearages and continue payment at the rate of $20 weekly for her maintenance.


author: Drewen, C. P. J.

text:
    Hudson County Court of Common Pleas.
    ELEANOR MOLESKI, PETITIONER-APPELLANT, v. MORRIS BOHEN AND HERBERT PRESTUP, TRADING AS WILLIAM ZALKIN, RESPONDENTS-APPELLEES.
    Decided May 12, 1948.
    For the petitioner-appellant, Archie Elkins.

    For the respondents-appellees, Harlcavy & Lieb.

   Drewen, C. P. J.

Petitioner claims an award for the death of her husband. He was 37 years of age and had been in respondent’s employ for approximately ten years, minus, time spent in the military service. His work was that of driving respondents’ delivery truck, loading and delivering large quantities of various building materials. That decedent’s death occurred in the course of his employment is admitted. The issue turns on whether it resulted from an accident arising out of the employment.

He died on May 29th, 1947, at about 6:30 p. at., his working day having begun at 7:50 A. at. He had just left his truck in front of a customer’s dwelling and ascended the porch steps to inquire of the householder about a place for the deposit of the goods to he delivered. He had rung the bell and while awaiting the response dropped dead on the porch.

We do not see how it could be fairly doubted that the man had had a hard, laborious day; an unusually hard day according to the testimony of witnesses on both sides, testimony that remains unchallenged. To begin with, the heat was extraordinarily oppressive. The official records in evidence show that at 8 A. m. it was 76, at 12 m. it was 83, at 1 p. m. 85 and that between 4 and 6 p. M. it slowly receded from 85 to 78. Apart from this abstract record, the degree of human reaction to the weather is shown by the testimony of decedent’s foreman, who describes the day as “very, very hot.” Respondents’ witness Rud'at says: “It was almost a record temperature,” and witnesses on both sides describe decedent while at work as sweating “quite a bit.”

The day’s succession of tasks, culminating in the final collapse, is shown as follows: Beginning at 7:50 A. m. decedent helped to load a truck with bags of cement weighing about 94 pounds each. At 8:30 A. m.. he left respondents’ yard with a load of cement in bags intended for four or five deliveries, these requiring the carrying of cement from the trucks to the delivery premises. At 10 A. M. he returned to the yard and he, with another, transferred 80 bags of material weighing about 100 pounds each from one truck to another, which was later driven by decedent for the delivery of the load. After making the delivery he drove to the yard of a concern referred to as Tompkins Brothers and helped in the loading on his truck, by hand, of a “couple of hundred bricks.” He returned to the yard at about 12:30 and spent the next forty minutes or so at lunch. At approximately one o’clock he left the yard with a load for delivery consisting of ten bundles of sheet rock weighing about 95 pounds each, 30 joists and several bags of plaster weighing about 100 pounds each. At 3 p. m. while on the road with this material one of the truck tires went flat and he laid up for about two hours waiting for the mechanic and necessary equipment. During this interval decedent and -his helper “waited in the shade,” except that decedent aided the mechanic in removing the disabled wheel and putting the new one in place. Each of these operations required the lifting of the wheel, weighing about 80 or 90 pounds, from the ground, a distance of about one inch. After the making of this repair decedent returned to the yard at about 4 p. m. He immediately drove out another truck laden with approximately five tons of material, to be disposed of in five deliveries. It was while waiting on the porch, as already shown, in anticipation of the fifth delivery that decedent died.

The four deliveries already made required numerous trips from the truck to a garage or cellar or other place of deposit, all at various distances from the truck, and frequently with objects weighing singly or in the aggregate almost 100 pounds per trip. Some of the carrying and pulling decedent did alone and some of it with the help of the purchaser. He climbed on and off his truck. He walked up and down the steps of terraces and porches, and at least one, and seemingly two, cellars. His helper had to remain on the truck so as to hand the goods down, the truck had been loaded so high. As decedent’s foreman testified, “It was all heavy stuff.” The making of the four trips required the handling of large, heavy and awkwardly shaped pieces which on one occasion had to be, with difficulty, maneuvered into a cellar. The difficulty mentioned is decribed in detail by the witness Mc-Cardle to whom the perticular goods were delivered. The witness Clements, to whom the second delivery was made, said that he and decedent made eight trips into the cellar with sheet rock and that “the job was too heavy for one man.” That the work was unusually arduous and heavy is further shown by the testimony of decedent’s foreman that “it was a very hard day’s work, * * * unusually hardthat “there was an accumulation of orders for sheet rock,” which accounted for the extraordinary amount of such material handled that day.- And the witness Bohen, one of the respondents, says that because of the “heaviness of the work” it was necessary that day to supply decedent with a helper. But the helper was not assigned until alter lunch, when decedent left the yard at one o’clock. It should be noted too that respondents in their brief expressly concede “that the work that day was extra heavy,” though urging that the presence of the helper reduced decedent’s work to normal. The avoidance begs the question. Plainly the difference here between a helper and no helper is the difference between the difficult and the impossible. The proofs show with picturesque clarity how the height of the five-ton load made it imperative that there be an extra man. And how much of the five tons of building material had already been lifted and carried or dragged from the truck when only the last delivery had yet to be made does not precisely appear, but it is indubitable in the circumstances that it was the greater portion by far.

Uow, in the course of the five deliveries and toward the end of the day, decedent manifested, according to the proofs in petitioner’s ease, certain definite cardiac symptoms. Bespondent denies there were antecedent symptoms, and upon the one factual issue thus resulting the ultimate outcome depends. It will be seen that the theories of the medical experts finally are not in disagreement, but that all alike, in the last analysis, are shown to be for or against the claim of causal relation, depending upon whether the positive or negative contention prevails in this matter of the symptoms.

What are the proofs? Petitioner’s case shows by the testimony of Krosn, the helper on the truck, that after decedent had made the third delivery he was “all in,” was sweating and blue in the face and started to breathe heavily; that at the same time he held his hand over his chest and complained of severe pain. After resting ten or fifteen minutes he said he was “all right,” climbed back on the truck and drove to the place of the fourth delivery, where the aforementioned difficulty was had in getting the goods into the cellar. Upon the completion of this delivery decedent again complained of severe pain in the chest and again breathed heavily. The blueness returned to his face, and before climbing back on the truck he remained standing beside it for about five minutes, then remarking: “All right, we can go. This is the last stop we have to finish and we can go home.” The drive between the fourth and fifth deliveries was a matter of a few blocks, and during it, according to the helper, decedent’s breathing was very heavy all the time. Upon arriving at the last place of delivery decedent left his truck and walked slowly up the steps to the porch. It was here, in the manner already described, that he fell and died. ■ It should be added that when the foreman, Slomovitz, saw decedent at about four o’clock in the afternoon the latter was “sort of poofed out. He was like gray, tired.” Respecting the testimony of Krosn, respondent relies for contradiction mainly on the witnesses Rudat and MeCardle, the persons by whom the goods were received at the third and fourth places of delivery and who rendered decedent some .help. It was Rudat, it should be remembered, who received the goods at the third stop, where decedent is described as showing the symptoms after completing the delivery and returning to the truck, and 'where he stood beside the truck several minutes before driving off. Rudat’s testimony, notwithstanding what he says on direct examination, is all reduced to the important admission that “whether he [decedent] stopped on the way from the garage [where the goods were placed] to his truck” he (Rudat) “did not actually know;” nor what decedent’s appearance was, with reference to his face, when he arrived “at his truck.” It is obvious that Rudat’s testimony can be given no effect in the particular now examined, and for an additional reason presently to appear.

As to happenings at the fourth stop, the witness MeCardle does not controvert the helper’s testimony at all with relation to decedent’s appearance and behavior after making the delivery. He did not see, and was in no position to say. He testifies: “I immediately went into'the house. I did not watch him for any period of time. The man did not take more than two steps until I had gone in the door.”

There are other witnesses from whom respondents elicited certain negative answers bearing on this subject, but none of these persons was shown to have been present or in a position to make the necessary observations at any of the times mentioned by Krosn and Slomovitz, nor is it contended by petitioner that the questioned phenomena were extant all the time, nor that decedent spoke constantly of pain, but that these things happened in paroxysms and as indicated by the proofs.

Respondents rely further for contradiction on a statement made by Krosn to an officer of the Kearny police and written out by the officer a very short time after decedent had been pronounced dead. The statement contains the following: “Q. Had Alex complained at any time while yon were with him of feeling ill? A. Ho, sir, he was his nsnal self all afternoon, langhing and joking and not complaining of not feeling well.” What Krosn says concerning this is that “he [the policeman] didn’t ask me after. He only asked me how Alex was in the beginning;” that he told the officer Alex felt all right when they started out; and that his statement to the officer of Alex’s condition relates to the time “before we got to Lyndhurst.” The officer says that when the statement was taken from Krosn the latter was “pretty much excited.” And he describes further the general atmosphere of disturbance prevailing at the time.

It is not our judgment that under all the circumstances, in dealing with this question of credibility, a generalized statement like that claimed to have been given the police should be permitted to eounter-vail the more particular details in the description specifically elicited from the witness in direct and cross-examination in a formal hearing. But aside from the failure of these attempts to contradict Krosn’s testimony of antecedent symptoms, it must not be overlooked that the testimony is strengthened by its own inherent probability. The witness is telling of the last few hours of the life and work of one who toward the end of a long, laborious day dropped dead; he is telling of what, in the physical appearance and manifestations of the victim, preceded the death and while the victim was still in the course of his heavy work. Respecting the physical appearance and the manifestations described, it is implicitly postulated in the testimony of the medical witnesses on both sides that these symptoms are such as normally precede sudden death from cardiac cause. Upon an overwhelming preponderance of probability the petitioner’s proofs must prevail, and thus is established in the ease, as already explained, the factual premise of the medical conclusions, which we next consider.

For the petitioner were Drs. Bernstein and White; for respondent, Dr. Kaufman. On a hypothesis which included the antecedent symptoms aforementioned, petitioner’s doctors both testified that death was the result of myocardial infarction secondary to acute coronary insufficiency and that it was causally related to the arduous work done by decedent during his last day.. Dr. White gave it as his further opinion that decedent had had a prior existing coronary arteriosclerosis. Petitioner’s physicians expounded their theories at length and, as we judge, with credible cogency, supported in the ease of Dr. White by a plenitude of autoptic experience as army surgeon in the late war. Respondents’ Dr. Kaufman, on a hypothesis which excluded the antecedent symptoms (but included the alleged answer of Krosn to the police respecting the normal appearance of decedent and the absence of complaints of illness), declared at first that without an autopsy any statement of diagnosis or of causal relation could be no better than' conjecture. He later receded from this position when he testified that the lapse of fifteen or twenty minutes between the delivery of the fourth load and the final collapse made it, not conjectural or impossible, but "difficult to say that such a coronary occlusion was related to the employment,” the doctor having previously admitted that were there no such interval there would be no problem of causal relation. But the ultimate significance in the testimony of the opposing physicians attaches to the following. When required to include the antecedent symptoms in his hypothesis, Dr. Kaufman admitted that in such case the man who examined the body and signed the death certificate would have the "proper facts to assume that he died of coronary occlusion;” and at no time did Dr. Kaufman suggest that given the cause of death as coronary occlusion, there would remain any serious doubt of the relation between the death and the effort. Dr. White, on the other hand, when required to predicate his opinion upon a converse exclusion of the antecedent symptoms—notwithstanding he had previously stated this would not alter his view—and to assume also, contrary to his •opinion, the absence of underlying sclerosis, declared that the sudden death from strain "of one in perfect health” while not impossible, would not be probable. It is these mutual1 concessions of the doctors, based upon correlatively opposite amendments of their respective hypotheses, that make the medical pronouncements contingent in their import solely upon the presence or the absence of the antecedent symptoms. And since, for the reasons already set forth, we judge the fact of these symptoms to be evidentially established, the medical testimony is relieved of controversy and places causality beyond dispute.

The dismissal in the Bureau was based upon the following •conclusions of the Deputy Commissioner:

"From the medical testimony it appears that one cannot be certain of the cause of death without a post mortem, which was not performed. However, I believe, there is sufficient •evidence in this case to warrant a presumption that death was due to heart failure.

"The burden is on the petitioner to prove that there was something unusual about the decedent’s employment which -either caused or contributed to his death.

"After a most careful study of the entire evidence, I am unable to find any unusual circumstance that contributed to his death. There was no direct trauma. It was not proven that it was an abnormally hot day. There was no proof of a pre-existing heart disease. It was not shown that any unusual effort was expended or that the decedent was put to any excessive strain at the time of his death.”

In the first place, by way of clarification let it be said, we are aware of no burden on petitioner to prove that the death was "caused or contributed to” by "an unusual circumstance” or "an excessive strain” in the work, even though such proof be present here, and we cite as authority on the point Molnar v. American Smelting and Refining Co., 127 N. J. L. 118; 21 Atl. Rep. (2d) 213; Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409; Ciocca v. National Sugar Refining Co., 124 N. J. L. 329; 12 Atl. Rep. (2d) 130; Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396. Moreover, where the workman is shown, through illness, to be affected by a predisposing incapacity for the burden of his work, that circumstance becomes no more than evidence bearing on the question of probable cause, so that “pre-existing heart disease” is certainly not a condition of recovery. The settled law of this state we understand to be that where the work is too much for the workman, sick or well, his death as a consequence is compensable. Chief Justice Case in Molnar v. American Smelting and Refining Co., supra (127 N. J. Eq. 118; 21 Atl. Rep. (2d) 314) quotes with approval from Bollinger v. Wagaraw Building Supply Co., supra, as follows: “I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. * * * ISTor do I think we should attach any importance to the fact that this man’s health was as described. * * * An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.” It is our understanding also that whenever our higher courts have shown concern with usual or unusual conditions of the work in contemplating causal relation in a cardiac case, most recently in Young v. Sheffield Farms, 136 N. J. L. 489; 56 Atl. Rep. (2d) 868 (“unusual episode”), it has been by way of the appraisal of evidence and not the defining of a rule of recovery.

If we may be permitted to add reason to authority, we venture to suggest that the vice of the requirement in claims of this kind that the work presents some unusual circumstance or episode lies in the fact that it considers one while ignoring the other of two inseparable factors, the worker and the work. In Hentz v. Janssen Dairy Corp., supra, the Supreme Court had denied compensation. In restoring the award, the Court of Errors and Appeals said: “The Supreme Court erroneously considered the circumstance that the heart had been weakened by the strain of work over a long period of time as excluding recovery, but this is a circumstance which under our eases and those decided in England, could make no difference where the accident arose out of and in the course of the employment.”

In making the present decision we are not unmindful of that of our Supreme Court in the recent case of Young v. Sheffield Farms, supra. We believe the two cases to be readily distinguishable, (a) because the present proof giving rise to fair inference of the effect on the workman of the stress and burden of the work is definitely stronger; (b) because in the present case, and apparently not in the other, the question of causality is resolved by the contingent assent of the medical witnesses in the manner shown above; (c) because, with respect to the Supreme Court’s mention of "unusual episode” in the work, we cannot discern from the opinion as a whole that anything of that kind is intended to indicate a principle of recovery, more especially in view of repeated decisions to the contrary in the cases hereinabove cited and in others; and (d) because in the present case there was tacit withdrawal by the witness who advanced it of the proposition that autopsy is necessary, besides which there is certainly no reason to suppose that the Supreme Court in Young v. Sheffield Farms intended to present the paradox of requiring autoptic certitude while at the same time expressly adhering to the fundamental principle of proof by a preponderance of probabilities according to the common experience of mankind.

This court finds that petitioner’s husband, Alexander Moleski, met his death on May 29th,, 1947, as the result of injuries sustained in an accident arising out of and in the course of his employment.

The record contains the following stipulations: that the weekly wage was $50; that decedent left him surviving in addition to petitioner, a minor child, born September 19th, 1946, both dependent; and that the expense of the funeral was in excess of $250.

There is awarded in accordance with the foregoing the maximum compensation which the statute provides. All payments are to be made to Eleanor Moleski, petitioner, as the widow and as surviving parent of the said infant. The form of determination and judgment will be settled, and all allowances made, on notice.