text:
    VALERIE TAYLOR, AN INFANT, BY HER NEXT FRIEND, GUSTAVE TAYLOR, AND GUSTAVE TAYLOR, INDIVIDUALLY, PLAINTIFFS-APPELLEES, v. MAJESTIC BUILDING AND LOAN ASSOCIATION, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January term, 1936
    Decided August 6, 1936.
    Before Justices Hehek and Pebskie.
    For the appellant, Schneider <& Schneider.

    For the appellees, Jacob M. Goldberg (Morris Barr, of counsel).
   The opinion of the court was delivered by

Pebskie, J.

This is defendant’s appeal from judgments entered by the trial judge, sitting without a jury, in favor of the infant plaintiff for $100 and in favor of the father for $41 and costs.

The defendant owned a four-story sixteen-tenant apartment house building in Newark, New Jersey. The basement apartment was leased by a Mrs. Bowman, with whom the infant plaintiff was temporarily domiciled. In order to obtain access to this apartment it was necessary to descend a stairway leading from the sidewalk. While descending this stairway the infant plaintiff fell, sustaining the injuries for which she now seeks to recover. There was evidence that the step on which the plaintiff fell was loose and rotten and had been in such condition for five or six months prior to the accident; and that the defendant admitted making repairs thereto after the accident. At this posture of the proofs a motion for a nonsuit was made; it was denied. The defendant resists these rulings on the ground that this was no common stairway, and that there was no agreement on the part of the landlord to repair. The plaintiffs admit the non-existence of any landlord’s agreement to repair. They rest their right of action on the theory that the defendant maintained control of the stairway, which was the only means of ingress and egress to and from the apartment.

In the absence of any promise on the part of the landlord to repair, defendant’s liability must rest solely on the fact that it retained control and possession of the stairway in question. The court so found. We are then met with the question as to whether there is any legal evidence to support such a finding. If so, the judgment must be sustained. Tor, as stated in Portley v. Hudson and Manhattan Railroad Co., 111 N. J. L. 204; 168 Atl. Rep. 184; affirmed, 113 N. J. L. 13; 172 Atl. Rep. 384, “this court will not review the findings of the District Court on questions of fact beyond inquiring whether there was any legal evidence on which the findings may be based.” See, also, Doolittle v. Mark (Court of Errors and Appeals), 88 N. J. L. 515; 94 Atl. Rep. 569. Evidence was adduced to show that repairs to this stairway were made subsequent to the accident. This, though not evidence of negligence, since it may be but the action of a prudent man in taking steps to prevent the recurrence of an event he had no reason to foresee in the first instance, does tend to show that control and possession of the premises remained in the landlord. Perry v. Levy, 87 N. J. L. 670; 94 Atl. Rep. 569. It does, moreover, tend to show that the stairway was not a part of the leased premises for apparently the landlord was not deprived of its right of entry to make the repairs. Its right of entry and control over the damaged premises rendered it liable for injuries caused by the defect. Siggins v. McGill, 72 N. J. L. 263, 264, et seq.; 62 Atl. Rep. 411; Gillvon v. Reilly, 50 N. J. L. 26; 11 Atl. Rep. 481.

It is, of course, the well established law of this state as set forth in Bolitho v. Mintz, 106 N. J. L. 449, 451, 452; 148 Atl. Rep. 737, that as a general rule, “the landlord is not liable for injuries sustained by a tenant or his family, or guests, by reason of the ruinous condition of the premises demised, there being upon the letting of a house or lands no implied contract or condition that the premises are or shall be fit and suitable for the use of the tenants. Siggins v. McGill, 72 N. J. L. 263; 62 Atl. Rep. 411; Reilly v. Feldman, 103 N. J. L. 517; 138 Atl. Rep. 307. But, there are clear and well defined exceptions to this rule, as where the landlord retains to himself control of the halls and stairways for the common use of the occupants and those having lawful occasion to be there. Gillvon v. Reilly, 50 N. J. L. 26; 11 Atl. Rep. 481; Gleason v. Boehm, 58 N. J. L. 475; 34 Atl. Rep. 886; under such circumstances, the landlord is bound to take reasonable care to have such places reasonably fit for use in, or where the landlord agrees or assumes a legal obligation to repair. LaBrasca v. Hinchman, 81 N. J. L. 367; 79 Atl. Rep. 885; Hahner v. Bender, 101 N. J. L. 102; 127 Atl. Rep. 202; Perry v. Levy, 87 N. J. L. 670; 94 Atl. Rep. 569.” See, also, Clyne v. Holmes, 61 N. J. L. 358; 39 Atl. Rep. 767, and Folley v. United Building and Loan Association of Hackensack (Supreme Court), 117 N. J. L. 54.

Thus liability, in the case at bar, is not sought to be fastened upon the landlord because of an implied contract of fitness of the leased premises, or upon an agreement to repair, but rather is it based upon the theory that the landlord retained control of the stairway in question. This theory of liability finds perfect expression in section 360 of the Bestatement of the Law of Torts:

“A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor’s control, if the. lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”

The proofs were plenary to support the result reached. Judgment is affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GENERAL ELECTRIC CONTRACTS CORPORATION, A CORPORATION, ETC., PLAINTIFF-APPELLANT, v. WILBUR V. BAND, DEFENDANT-APPELLEE.
    Submitted October 11, 1935
    Decided August 27, 1936.
    Before Justices Trenchard, Heher and Perskib.
    For the plaintiff-appellant, Herman J. Finn.

    For the defendant-appellee, William Cantor (Seymour Cantor, of counsel).
   Per Curiam.

This appeal brings up for review a judgment entered upon the verdict of a jury in the District Court in favor of the defendant-appellee and against the plaintiff-appellant.

On June 15th, 1934, defendant purchased from Clark Adams, Incorporated, a General Electric refrigerator and executed a contract of conditional sale which provided for a down payment of $9 and twenty-eight monthly installments of $7.26 each. The contract further provided that title to the refrigerator was to remain in the seller until the entire time price was fully paid in cash, and in the event the buyer failed to pay said time price or any part thereof when due, then the entire unpaid price shall at once become due and payable. Thereafter Clark Adams, Incorporated, assigned the contract to the plaintiff. The payments due November 16th, December 16th, 1934, January 16th, February 16th, 1935, were not paid and plaintiff under the contract declared the unpaid balance of $174.24 due and payable and when payment was not made, instituted this suit. All this was proven at the trial without contradiction and was in effect admitted by the defendant.

The defense was that on or about February 1st, 1935, an adjuster of the plaintiff called to see defendant concerning the several delinquent payments; that defendant informed the adjuster that he had not been paid his salary as an employe of Atlantic City since October, 1934, and hence was unable to make the monthly payments; that the adjuster informed him that unless the delinquent payments were made plaintiff would be obliged to take the refrigerator; that defendant inquired as to what would become of the payments already made and was informed that the plaintiff would retain those for the use of the box; that defendant told the adjuster that he could not make the payments and was informed by him that he was obliged to take the box; that he, the defendant, then said, “you are retaking the box and also keeping the money which I have paid,” and was informed, “yes, I will have our men pick it up in the morning;” that no one called for the box the next morning or any time thereafter, nor did anyone call to see him concerning the box of which he still retained possession; that thereafter this suit was instituted.

At the conclusion of the defendant’s case plaintiff moved for a directed verdict in its favor upon the grounds that the proof was uncontradicted that the sum of $174.24 was due and unpaid; that defendant’s conversation with the adjuster did not constitute a defense because the contract in question gives the seller, or its assigns, the right to sue for the unpaid balance immediately upon default, and this right is in addition to the right to repossess the refrigerator; that the contract provides that these rights are cumulative and not alternative, and in the present case, they axe taking advantage of the right to sue for the unpaid balance; that the contract provides that it may be assigned without notice to the buyer, and when assigned, shall be free from any defense, counter-claim or cross-complaint of the buyer; that there was no testimony showing any consideration for the alleged subsequent agreement to accept the return of the box instead of insisting upon the performance of the contract; and if there was such an agreement it would constitute a waiver of the seller’s rights under the contract, and could not be binding since the contract provides that no waiver or modification shall be binding unless written upon or attached to the contract.

This motion was denied and exception allowed, and the jury returned a verdict of no cause of action.

We think that the court erred in refusing to direct a verdict in favor of the plaintiff since it was uncontradicted that the sum of $174.24 was due and unpaid, and the defendant still had the actual possession of the box.

As we have seen, the contract provides for monthly payments and reservation of title until the installments are paid in full and gives the seller, or its assigns, the right to sue for the unpaid balance immediately upon default, and to repossess the refrigerator upon default. ZtSTot only that, but our Uniform Conditional Sales act (2 Cum. Supp. Comp. Stat., p. 3129, § 182-87) defines the rights and obligations of the parties. Section 3, supra, p. 3130, § 182-89, provides that the buyer is liable to the seller for the purchase price, or for installments thereof, as the same becomes due, whether or not the property has passed to the buyer. (This is declaratory of the common law. R. C. Bartley Co. v. Lee, 87 N. J. L. 19; 93 Atl. Rep. 78.) Section 16, supra, p. 3133, § 182-102 provides that when the buyer is in default in the payment of any sum due under the contract, the seller may retake possession of the goods, and upon the performance of certain statutory provisions outlined in sections 19, 21, 22 and 24, supra, pp. 3134, 3135, §§ 182-105, 107, 108, 110, the buyer would be liable for a deficiency, if any, if the proceeds of the resale are not sufficient to defray the expenses thereof and the balance due on the purchase price. It seems clear, all things considered, that the seller is not restricted to any one particular remedy. The contract executed by the buyer in this case provides that all rights and remedies are cumulative and not alternative. The fact that the seller has other remedies does not limit or defeat his right to insist upon the payment of the price by the buyer. This right could only be limited in the event he actually retook the physical possession of the refrigerator and in that event he would still have a right to resell the refrigerator, purchase at his own sale (section 19, supra) and hold the buyer liable for any deficiency including all expenses incurred in the transaction. Sager v. Schmidt, 98 Conn. 736; 120 Atl. Rep. 504; United Machinery Co. v. Etzel, 89 Conn. 336; 94 Atl. Rep. 356. In this case there has been no actual physical retaking of the refrigerator. It is still in the possession of the defendant, who admitted he had not paid the balance due. Under these circumstances the court should have directed a verdict in favor of the plaintiff.

We think there was no consideration to support the alleged subsequent promise of the plaintiff’s agent to retake the box and waive its rights under the contract to enforce payment. Since the seller has a right to retake the box upon default and retain the payments made, any subsequent promise to retake the box and waive the right to insist upon performance of the contract and agree not to hold the buyer for any deficiency upon resale would be without consideration. Viewing the defendant’s testimony in the most favorable light it was merely a promise on the part of the plaintiff’s representative that he would retake the box and relieve him from any further responsibility. The right to retake the box upon default was a right the plaintiff always had. It was given to him both by the contract and by the Uniform Conditional Sales act. Certainly such a promise, without more, would not defeat the right of the plaintiff to insist upon the performance of the covenant to pay, the right likewise given it both by the contract and the Uniform Conditional Sales act. The only purported consideration to support the promise that the plaintiff would retake the refrigerator and not look to the defendant for performance under the terms of the contract or sue him for any deficiency upon resale was the promise to surrender the box. This alleged consideration was unreal, since the contract itself gives this right. Coneededly, the defendant was in default and he gave up nothing whatever to be relieved of liability. Such a purported promise on the part of the plaintiff was nudum pactum. Durant v. Block, 113 N. J. L. 509; 174 Atl. Rep. 889; Conover v. Stillwell, 34 N. J. L. 54; Hasbrouck v. Winkler, 48 Id. 431; 6 Atl. Rep. 22.

Also it seems clear that the plaintiff did not lose its right to sue for the price by a mere statement of intention to retake the refrigerator, where, as here, nothing was done towards taking possession thereof. Pacific Carbonator Co. v. Haydes, 26 Cal. App. 607; 147 Pac. Rep. 988; Edward Thompson Co. v. Brown, 171 Minn. 483; 214 N. Y. 284; Claude Neon Lights, Inc., v. Kingsberg, 142 N. Y. Misc. 608; 254 N. Y. S. 467.

Our conclusion is that the judgment must be reversed, with costs, and the record remitted to the court below for further proceedings agreeably to this opinion. Such will be the order.


author: Pee Curiam.

text:
    THE CITY OF ASBURY PARK, PROSECUTOR, v. J. EDWARD KNIGHT, JUDGE OF THE COMMON PLEAS COURT IN AND FOR MONMOUTH COUNTY, AND JAMES SULLIVAN, RESPONDENTS.
    Submitted May 15, 1936
    Decided September 10, 1936.

      Before Justices Parker, Lloyd and Donges.
    Por the prosecutor, Ward Kremer.

    Por the respondents, Lester G. Leonard.

   Pee Curiam.

This case involves the removal of a policeman by the city manager of Asbury Park, appeal to the Common Pleas, reversal and reinstatement of the officer.

The charges on which the conviction (subsequently reversed) was based were bribery in accepting the sum of $5 to suppress knowledge of crime, signing the name of a magistrate to a warrant, and without authorization of that officer representing that it was properly issued, and finally withholding information of the existence of a gambling resort in Asbury Park.

We are called on to deal with the case under writ of certiorari, and hence obliged to pass upon the evidence, the weight of which is the sole ground upon which the review is rested. Under the obligation imposed by the burden of proof of guilt our conclusion is that upon the proofs taken before the judge of the Common Pleas Court on appeal (heard by him de novo under chapter 29 of the laws of 1935, N. J. Stat. Annual 1935, § *136-1603a) a finding in favor of the defendant was properly made.

A fact to challenge immediate attention is that the offenses, if committed at all, were committed nearly two years before the charges were made. Conviction, if justified, must rest substantially upon the testimony of a fellow officer named Bell and an illicit liquor dealer named Brown. Both of these men possessed in the fall of 1933 all the knowledge they claimed to have when testifying in 1936. Why Officer Bell should have kept the information to himself if he believed that the crime of bribery had been committed is not explained. Under these circumstances we conclude that the charges, specifically denied by the respondent, were not sustained and the judgment is affirmed, with costs.


text:
    FRANK STEFANIK, PROSECUTOR, v. OCEAN ACCIDENT AND GUARANTEE CORPORATION, DEFENDANT.
    Submitted May 5, 1936
    Decided September 10, 1936.
    Before Justices Parker and Lloyd.
    Eor the prosecutor, Felix Rospond.

    Eor the defendant, Isidor Kalisch.

   Per Curiam.

The case presents several questions of practice under the Workmen’s Compensation act, which need not be definitely decided, for reasons which will appear.

Prosecutor was an employe of Mira Theatres Corporation, which appeared to control two moving picture houses, one called the Essex Theatre, at No. 100 Springfield avenue, Newark, the other called the Congress Theatre on South Orange avenue, also in Newark. The Mira Corporation carried compensation insurance with the Ocean company, defendant above named, covering accidents at the Essex Theatre and that alone, though including in item 6 of the coverage clauses, "all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said declarations or elsewhere in connection with, or in relation to, such work places.”

Petitioner was injured while working, not at the Essex Theatre named in the policy, but at the Congress Theatre. He brought his petition for compensation in the bureau against the employer Mira Corporation, not mentioning the insurer or insurance in any way. The omission, if he intended to rely ultimately on the insurance, may be excused by the fact that the case of Brown v. Conover, 116 N. J. L. 184; 183 Atl. Rep. 304, holding that the insurer may be joined in the original petition, had not then been decided. The case proceeded to an award against the employer alone, which was not appealed. Payments of compensation having ceased, petitioner, relying on the language of section 10 of the “Compulsory Insurance act” of 1917 (Pamph. L., (at p. 526); Cum. Supp. Comp. Stat. 1911-1924, p. 3899, § **236-77), filed his petition against the present defendant in the Common Pleas. The language is: “or by subsequent application to the Court of Common Pleas, upon the failure of the employer, for any reason to make adequate and continuous compensation payments.” Defendant moved for a dismissal of the petition in the Pleas on several grounds, the first as stated in its notice filed April 20th, 1936, being in effect a demand of oyer of the policy and asserting that such oyer would show that the policy did not cover the accident in question. The Pleas struck out the petition on two stated grounds, which we incline to think are ill-founded but which as we said at the outset, need not be definitely passed upon, if, as we conclude, the judicial action can be supported on any other legal ground. McCrory Stores v. S. M. Braunstein, Inc., 99 N. J. L. 166; 122 Atl. Rep. 814; Somers Lumber Co. v. Kaufman, 102 N. J. L. 601; 133 Atl. Rep. 200.

The original petition against the employer is not laid before us; but the bureau award finds that petitioner was employed as handy man at the Essex Theatre, and on the day of the accident was directed to go to the Congress Theatre “for the purpose of making certain electrical repairs and performing other duties” and that “while thus engaged he sustained accidental injuries which arose out of and in the course of his employment with the respondent.” The fourth specific finding states that petitioner was then “under the supervision and control of the management of the Essex Theatre, and that the tools, ladders and equipment which he was using in the performance of [his] duties had been transferred from the Essex Theatre * * * pursuant to the instructions of the manager,” &c. All of which is doubtless true, but which altogether fails to intimate that petitioner was doing Essex Theatre work at Congress Theatre. And the petition in the Pleas against the insurance company merely alleges an accident in the Mira Corporation employment, the award, and the subsequent failure to pay: annexing a copy of the determination in the bureau.

The Chief Justice, who allowed the writ of certiorari, also made an order that the petition in the Pleas be amended by' annexing a copy of the entire insurance policy, which is now before us, and by the express terms of the order is to “be considered by the reviewing court as though the petition originally contained the said insurance policy in toto."

The procedure has been described in some detail in order to make it clear that there is nothing in the original finding, or in the petition to the Pleas, or elsewhere in the record, to suggest that the accident at the Congress Theatre was connected in any way with work at the Essex Theatre. The use of the same implements means nothing in that regard. Consequently the petition with policy annexed, presented no case for judicial consideration, and the present writ must be dismissed.

This result makes it unnecessary to consider the constitutional questions of trial by jury, &c., though we incline to think them without merit in view of the ease of Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85; 86 Atl. Rep. 451; 86 N. J. L. 701; 91 Atl. Rep. 1070, and the express agreement in the policy to be amenable to the Workmen’s Compensation act.

Let the writ be dismissed, with costs.


author: Per Ctjkiam.

text:
    JOHN ZICARELLI, PROSECUTOR, v. GENERAL FINANCE COMPANY, RESPONDENT.
    Submitted May 15, 1936
    Decided September 10, 1936.
    Before Justices Pabkbk, Lloyd and Donges.
    For the prosecutor, Tucker & Tucker.

    Por the respondent, Joseph M. Goldweber.

   Per Ctjkiam.

The writ in this case is to review the action of the District Court of Bayonne in setting aside a judgment which had been previously rendered.

The contention of the prosecutor is that inasmuch as thirty days had expired since the rendition of the judgment, the court was powerless to act, claiming that the section of the District Court act limits the power of the court after the thirty days to cases of after discovered evidence.

If there were nothing in the case other than the rendition of a judgment and its being set aside to give the defendant a new trial after the thirty days of course the statute would control as many cases disclose, but where, as in the present case, a palpable fraud is committed on court and counsel we think the court is not powerless. The testimony on the rule disclosed that in the case (which was an action in attachment to recover moneys claimed to have been improperly paid to get an automobile back and for loss of money and other property due to the action of the defendant in taking possession as plaintiff claims improperly) on the return day when the ease was called for trial the - defendant’s attorney disclosed to the attorney of the plaintiff that the plaintiff had executed a full release to the defendant on its claim; that plaintiff’s attorney recognized this as proper and agreed to discontinue the action and the record was so marked in pencil, and that defendant’s counsel then left the court room. Instead of doing as he had agreed in open court, plaintiff’s counsel then proceeded to prove his claim and obtained judgment. The court is certainly not powerless to correct the injustice and it was so held in Geithner v. Paechiana, 8 N. J. Mis. R. 384; 150 Atl. Rep. 240.

The order is affirmed, with costs.


author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    CATHERINE LYNN, PETITIONER-APPELLANT, v. TEXTILE LEATHER, AND GREAT AMERICAN INDEMNITY COMPANY, RESPONDENTS-APPELLEES.
    Decided May 15, 1936.
    For the petitioner-appellant, David BosJcein.

    For the respondents-appellees, Autenrieth & WortendyTce (by Alfred H. Grimminger).

   Hartshorne, C. P. J.

The question here is whether a claim for death due to compensable occupational disease lies under the Workmen’s Compensation act, when the petition was filed some six years after the last exposure to the disease, but the employer had not filed a report as required by the Reporting act. The petitioner-appellant, whose claim was dismissed in the bureau, alleges that her claim does not fall within the requirements of section 22 (e) (Pamph. L. 1924, ch. 124; Cum. Supp. Comp. Stat. 1911-1924, p. 3883, § **236-30), but falls within the provisions of section 23 (h) (Cum. Supp. Comp. Stat. 1911-1924, p. 3886, § **236-32 (h) of such act, the limitations referred to in such section not being applicable, if the employer has failed to make reports as required by the Reporting act. The ground of petitioner’s said claim is that a claim for death resulting from occupational disease is entirely different, and governed by different principles, from one for mere personal injury resulting from the same cause.

Section 22 of the act, enacted in 1924 as a supplement to the original act, alone permits recovery for compensable occupational diseases. Subsection (e), supra, thereof provides: “All claims for compensation for compensable occupational disease” shall be barred, unless a petition is filed within a year after the date of last exposure to the disease. That the legislature meant to include claims for death, as well as others, resulting from compensable occupational disease, seems clear, since, in the immediately preceding subsections (c) and (d) (Cum. Supp. Comp. Stat. 1911-1924, § **236-28-29) the legislature spoke of such death claims. Similarly, in the original act, applying to accident cases, the legislature does not set up separate limitations as to accidents resulting in death from those resulting in mere personal injury. Both are covered by section 5 of the Procedural act. Pamph. L. 1918, ch. 149, as amended by Pamph. L. 1921, ch. 229; Cum. Supp. Comp. Stat. 1911-1924, p. 3890, § **236-46, and Pamph. L. 1931, ch. 280. This section, in the same way as section 22 (e), supra, does not expressly allude to death claims, but calls for the filing of the petition within a certain period by “every claimant for compensation,” in the same way as section 22 (e) does as to “all claims for compensation.”

Counsel for petitioner-appellant is apparently led astray by the historical accident that the common law did not recognize tort claims causing death, so that these latter had to be created separately by statute. Wot so under the Workmen’s Compensation act. There a death claim was created in the same way and at the same time as the claim for mere personal injuries, by section 7 of the original act, which gave “compensation for personal injuries to or for the death of such employe,” when caused “by accident.” Pamph. L. 1911, ch. 95, § 7; Cum. Supp. Comp. Stat. 1911-1924, p. 3870, § **236-7. It is not the death or injury which are the basis of recovery, but the accident itself, the death or injury being mere results. Similarly, when, in 1924, the legislature permitted recovery for compensable occupational diseases, it did not permit recovery for all death or personal injuries occurring during employment, but only when same occurred as a result of compensable occupational diseases. It is the disease which is the criterion, and by the express wording of the statute “all claims” therefor must be made within a year from the time of the last exposure.

Finally, it should be noted that by section 22 (f) (Cum. Supp. Comp. Stat. 1911-1924, p. 3884, § **236-31) of the statute, section 23 (h) (Cum. Supp. Comp. Stat. 1911-1924, p. 3886, § **236-32 (h), relied on by the petitioner-appellant, applies to her claim only if such section is consistent with section 22 (e). Cum. Supp. Comp. Stat. 1911-1924, p. 3884, § **236-30. The provisions of the 1921 act above alluded to are not so consistent, since such act differs from 22 (e), supra, as to the date from which the period starts to run. And the period prescribed by reference under the 1931 act differs, in that it prescribes two years instead of one, as prescribed by section 22 (e), supra.

It seems clear then that the petition in question is governed by the provisions of section 22 (e), supra, not 23 (h), supra. As such, it is settled that the Reporting act does not apply. Herod v. Mutual Chemical Co., 115 N. J. L. 369; 180 Atl. Rep. 432. So that the petitioner, having hied her petition almost five years late, is barred.

The order of the workmen’s compensation bureau is affirmed, and a determination may be entered accordingly.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGE SCHENCK, PETITIONER, v. NEW JERSEY STATE HIGHWAY DEPARTMENT, RESPONDENT.
    Decided September 1, 1936.
    For the petitioner, Theodore Strong & Son.

    For the respondent, Robert S. Eartgrove.

   In the case sub judice petitioner was employed by the state highway department as a laborer and engaged in road repair and construction. On November 14th, 1935, he met with an accident arising out of and in the course of his employment.

Question to he decided by bureau is whether petitioner comes within the jurisdiction of the Workmen’s Compensation act or if provisions of chapter 81, laws of 1933 (N. J. Stat. Annual 1933, p. 493, § **236-103) as amended apply.

Eespondent has produced “Assignment Ship—Works Program” marked R-l in evidence which reflects that the petitioner, George Schenck, having been certified upon relief rolls was ordered to report to work at seven-thirty a. m., October 29th, 1935, and assigned to Project No. W.P.H. 95 D and 95 E of the New Jersey state highway department at Sand Hills route 26. This slip was signed by petitioner and I have no reason to doubt its authenticity. It was while working on this project that he was injured.

Bespondent further produces copies of “Project Agreement under The Federal Aid Boad Act,” marked R-2 and R-8 in evidence which covers projects W.P.H. 95 D and 95 E on which petitioner was employed.

These agreements entered into between the federal government through the secretary of agriculture and the state highway department of New Jersey specifically state the funds to be paid by the federal government to said highway commission for the construction of said highway known as Sand Hills route 26 and particularly states funds are provided under “Emergency Belief Appropriation Act of 1935 (Public Resolution No. 11—74th Congress). U. S. C. A., tit. 15, § 728, note § 11.

I have before me the Federal Highway act, chapter 119, section 1, 42 Stat. 212 (U. S. C. A., tit. 23, § 1), covering highway construction under the Hational Recovery act, federal aid, &c. This act provides for the aid of states in road construction and authorizes the above appropriations.

Chapter 81, laws of 1933 (N. J. Stat. Annual 1933, p. 493, § **236-103), provides that “employment provided by this state, as by any county or municipality, or by any board, commission or agency thereof, pursuant to any plan of relief heretofore or hereafter authorized and approved by the state director of emergency relief, is hereby declared to be casual employment * * *.”

In view of fact that petitioner’s employment was in the nature of that provided for in chapter 81, laws of 1933, supra, as amended as supplemented I am holding employment was “casual” and dismissing petition.

Petitioner has relief as provided in section 2, Public Besolution No. 11—74th Congress (U. S. C. A., tit. 15, § 728, note § 2), which provides ways and means for reimburse*ment to injured employes under relief projects.

It is, therefore, ordered that judgment be entered in favor of the respondent and that the petitioner herein be and the same is hereby dismissed.

John C. Wegner, Referee.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELLA BARCALOW, PETITIONER, v. BOARD OF EDUCATION OF THE BOROUGH OF CALDWELL, NEW JERSEY, AND HARTFORD ACCIDENT AND INDEMNITY COMPANY, A CORPORATION, RESPONDENTS.
    Decided August 6, 1936.
    For the petitioner, David Boshein.

    For the respondents, Qox <& Walburg (Arthur Mead, of counsel).
   Hi Hí ❖ ❖ ❖ ❖ ❖

From the stipulation of counsel, and from the testimony adduced, I find that on May 1st, 1935, and for several years prior thereto, the petitioner was employed as a pastry baker at the Grover Cleveland High School in the borough of Caldwell, New Jersey, at a salary of $15 per week, her usual working hours being between sevent-thirty in the morning and four-fifteen in the afternoon. Her duties, inter alia, consisted of preparing the pastries and the desserts necessary to serve at the daily school luncheons. This she did with dispatch and without any discomfort or disability. To those persons with whom she came into contact during her daity routine, she appeared to be, to all outward appearances, a normal, healthy and active individual with no apparent ailment. She performed in addition to the duties of her employment, her household duties, and took an interest in her communal affairs. The testimony further indicates that the petitioner, unbeknownst to herself, but disclosed only on X-ray examination, had a hypertensive aortic heart. This produced no disability, no discomfort nor did it in anywise interfere with her ability to carry on her work up to the time of the occurrence of May 1st, 1935.

The testimony is clear, that on May 1st, 1935, at about nine-forty-five A. M., the petitioner, in attempting to lift a large aluminum mixing bowl containing custard sauce, having a weight of from forty to fifty pounds, and while in the act of so doing, felt a severe wringing sensation in her heart region. This pain continued in its severity for approximately ten minutes and then intermittently for the next twenty-five minutes. The petitioner attempted to do part of her work during this interval and, at the conclusion thereof, collapsed in the ladies’ room where she had gone for relief.

The petitioner produced Dr. H. G. Schurman, who arrived at the school shortly after her collapse. He rendered medication and sedatives and directed her removal to her home. It was this doctor’s diagnosis that the petitioner had suffered an acute dilatation of the heart. There was also produced on behalf of the petitioner, Dr. Harry Halprin, who has been treating the petitioner from August 15th, 1935, together with Dr. Leon Lewis and Dr. Otto Lowy. It was the opinion of the physicians that the petitioner had suffered a strain of the muscles of her heart at the time of the lifting effort described, causing an acute cardiac dilatation resulting in her collapse and her present incapacity.

Since the time of this accident, the petitioner has been under constant medical treatment. She suffers from shortness of breath, general weakness, inability to walk up steps and the numerous disablements referable to her condition. The change taking place in the petitioner since this accident is marked. Prior thereto she was a steady worker, under no physical impairment. To-day she is almost completely disabled.

The respondent produced on its behalf Dr. Jacob Polevsky and Dr. Cushenielli. It is the opinion of Dr. Jacob Polevsky that the acute symptoms which manifested themselves on May 1st, 1935, when the petitioner lifted the bowl filled with custard, as she alleged, was brought on by a thyroid storm. The doctor, however, was of the opinion that a lifting effort and the exertion accompanying it may of itself be sufficient to bring about the thyroid storm. I, however, find from the testimony adduced that the petitioner’s condition was not produced by hyperthyroidism. It was the opinion of Dr. Cushenielli that the accident produced a disability which was merely temporary in extent and the petitioner’s condition was not permanent.

After carefully considering all the testimony adduced by the various witnesses, I am of the opinion that the petitioner did, on May 1st, 1935, while and in the act of lifting the aluminum bowl containing custard, as she described, suffer a strain when she over-exerted the muscles of her heart, producing a sudden acute dilatation thereof, the subsequent collapse and the resultant disability from which she is now suffering.

The work in which the petitioner was engaged at the time of the occurrence was in the usual course of her duties in her employment as pastry baker. The evidence indicates that the lifting of the aluminum bowl with its contents caused a strain on the muscles of the heart and brought on an acute cardiac dilatation, which the attending physicians as well as the experts who testified on behalf of the petitioner clearly indicate. It follows, that the decedent’s collapse and subsequent incapacity arose out of the petitioner’s employment, that the petitioner was in the act of lifting this aluminum bowl with its contents, and that the strain and acute cardiac dilatation occurred in the course of her employment is not open to doubt. The result which followed her lifting effort was neither designed nor expected by her. Her physical structure gave way under the stress of her exertion and labor. She was doing her work exactly as she intended to do it, but the injury which resulted therefrom was accidental, and the strain of the petitioner’s heart muscle produced a sudden dilatation of the heart itself. This occurrence is none the less accidental.

This reasoning is entirely in line and in accordance with the decisions of our Supreme Court on the subject, in Van Meter v. E. R. Morehouse, Inc., 13 N. J. Mis. R. 558; 179 Atl. Rep. 678; Marotta v. Fabi, 13 N. J. Mis. R. 690; 180 Atl. Rep. 545; Matthews Construction Co. v. Ranallo, 13 N. J. Mis. R. 878; 181 Atl. Rep. 901, to the following effect: A sprain in the back is obviously an accident, and when it arises out of and in the course of the employment (as here), the workman is entitled to compensation. Had the workman broken his leg or sprained his ankle while at work, it clearly would have been called an accident. A sprain of the back falls no less in the same category. While doing his work there was something unforeseen, unexpected or unusual that produced the results. Such results seem clearly accidental.

By a clear analogy, therefore, a strain of the heart under similar circumstances is also compensable. An internal injury that is itself sudden, unusual, and unexpected is none the less accidental, because its external cause is a part of the victim’s ordinary work done in her usual manner. If a laborer performing his usual task, in his wonted way, by reason of strain, breaks his wrist, nobody would question the accidental nature of the injury. If instead of the wrist it is an artery that breaks, the occurrence is just as clearly an accident. And if the strain, instead of causing the rupture of a subordinate blood vessel, produces a sudden dilatation of the heart itself, the occurrence is none the less accidental. Brown’s Case (Me.), 123 Atl. Rep. 421, 422.

I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. The testimony is replete with expert medical opinion that the strain in fact caused the dilatation, and that if it had not not been for the strain, the dilatation would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade. The very statement of the requirement of such a standard to measure compensability under legislation of such prime remedial import as our state Workmen’s Compensation act exposes its utterly frivolous character. See Clover, Clayton & Co., Ltd., v. Hughes (1910), Appeal Cases, 242 (at pp. 246, 247).

The disability from which the petitioner is now suffering was brought on by reason of a strain sustained by her on May 1st, 1935, when she sustained an injury directly traceable to and occurring in the course of her employment, when she suddenly experienced a wringing sensation and terrific pain in the heart region. The lifting, which produced this strain, occurred when her cardiac reserve was somewhat depleted. The lifting effort at the time of the said exertion, was an additional strain on her heart, causing the symptoms which she manifested and the resultant collapse.

I therefore find that the petitioner, on May 1st, 1935, sustained an accident, which accident arose out of the course of her employment, and is therefore entitled to the benefits provided under the terms and provisions of the Compensation act of this state.

As a result of the said accident, petitioner shall be entitled to receive compensation for temporary disability from May 1st, 1935, to February 1st, 1936, a period of thirty-nine and three-sevenths weeks at the compensation rate of $10 per week. The respondent, however,' is to receive credit for payment voluntarily made by it for a period of twelve weeks. The cost of the medical treatment of the petitioner by Drs. H. C. Schurman, E. C. Butler and Harry Halprin are properly chargeable to the respondent, as I find that the same were reasonably necessary for the proper treatment of the petitioner. To Dr. Harry Halprin, for medical services rendered from May 1st, 1936, there shall be paid the sum of $80; there shall be paid to the petitioner, the sum of $112.70 in reimbursement for drugs and medications purchased by her from Stark’s Pharmacy to May 20th, 1936.

After carefully considering the testimony adduced by the various physicians, and having had an opportunity to personally observe the petitioner on her several appearances in court, I feel that the permanent disability from which the petitioner is suffering is equivalent to sixty-six and two-thirds per cent, partial permanent total disability.

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FABIANO AGRESTA, PETITIONER, v. NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, RESPONDENT.
    Decided September 3, 1936.
    For the petitioner, Manuel J. Preola.

    For the respondent, Charles J. Gormley.

   % & % % ❖ ❖

The facts in the case sub judice are admitted. Petitioner was employed by the respondent company as a track laborer who at the time of accident was tightening a bolt on a rail on the coal bridge located in the respondent’s yards at Weehawken, New Jersey. This bridge was used to unload coal cars into bins which coal was transported by boats outside of state.

Petitioner stresses point that compensation had been paid under the state statute. The payment of compensation is not an admission of liability and does not bar employer from interposing any valid defense at time of hearing.

I have carefully read the briefs submitted by both petitioner and respondent and made a careful study of cases referred to as well as other cases analogous to the issue.

The burden placed upon petitioner is to prove that his case comes within the state statute. That doctrine is promulgated in the case of Carberry v. Delaware, Lackawanna and Western Railroad Co., 93 N. J. L. 414; 108 Atl. Rep. 364; Lincks v. Erie Railroad Co., 91 N. J. L. 166; 108 Atl. Rep. 176; Brinsko’s Estate v. Lehigh Valley Railroad Co., 90 N. J. L. 658; 102 Atl. Rep. 390; Hart v. Central Railroad Co., 106 N. J. L. 31; 147 Atl. Rep. 733, and Flynn v. New York, Susquehanna and Western Railroad Co., 90 N. J. L. 450; 101 Atl. Rep. 1034.

In Vincelli v. New Jersey Central Railroad Co., 98 N. J. L. 726; 121 Atl. Rep. 132, the test as to whether or not an employe was engaged in interstate or intrastate commerce was stated to be “not whether an employe is at the time of the accident engaged in work indispensable to functioning of the railroad as an interstate carrier but whether employe is working upon some instrumentality used by the carrier in its interstate business.

In the Hart case above cited the court stated “some instrumentalities of interstate railroad, such as bridges, stations, road beds are permanently in interstate commerce.” In Frazier v. Hines, 260 Fed. Rep. 874; McLean v. Boston and Maine Railroad, 116 Atl. Rep. 435, and Johnson v. Atlantic Coast Line, 107 S. E. Rep. 31, employes injured in repair of road bed were held to be engaged in interstate commerce.

I am, therefore, holding that petitioner was engaged in interstate commerce for the reason that: 1. Bridge in question was without doubt an instrumentality of interstate commerce by reason of its intimate and actual connection with such commerce. 2. The work being done by petitioner was a required act for the purpose of repairing an agency devoted to such commerce and which if not repaired would impede the same, and in view of these holdings I am dismissing petition.

It is, therefore, ordered that judgment be entered in favor of the respondent and that the petition herein be and the same is hereby dismissed.

John C. Wegner, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RAYMOND W. HULBERT, PETITIONER, v. WARREN FOUNDRY AND PIPE COMPANY AND/OR WARREN FOUNDRY AND PIPE CORPORATION, RESPONDENT.
    For the petitioner, Gebhardt & Gebhardt.

    For the respondent, Clarence B. Tippett.

   This is on a petition for compensation filed by the petitioner, Baymond W. Hulbert, for the purpose of obtaining additional compensation under the Workmen’s Compensation act of this state.

On January 31st, 1925, the petitioner was employed by the respondent as a helper in a repair gang, and on that day met with an accident in which his right arm and right leg were so seriously injured that it was necessary to amputate the former four inches below the shoulder and the latter five inches below the knee.

Under section 11 (v) of the Workmen’s Compensation act (Cum. Supp. Comp. Stat. 1911-1924, p. 3874, § **236-11 (v) the loss of these two members constitutes total permanent disability. Accordingly, the respondent’s insurance carrier paid the petitioner compensation for this total permanent disability for the period of four hundred weeks at $17 per week, and then continued the payments at the same rate until April 20th, 1934, at which time the payments were discontinued by reason of the fact that the respondent claimed that it was no longer incumbent upon it to make further payments. Sometime thereafter, the petitioner filed this petition for the purpose of obtaining further compensation.

It also appears that no compensation has been paid in this case for the temporary disability sustained by the petitioner.

The rehabilitation commission of New Jersey undertook to rehabilitate the petitioner and sent him to Churchman Business College, in Easton, Pennsylvania, for the period from March, 1932, to April 20th, 1934. At this institution the petitioner took certain courses designed to fit him to do general clerical work. He was somewhat handicapped because of the fact that his previous education did not go beyond the sixth grade, but the record indicates that during this period of about two years he devoted himself to his studies and made considerable progress. The petitioner is now twenty-seven years of age.

Since the completion of his business college work the petitioner has endeavored to obtain employment both from the Warren Foundry Company and from various other employers in the vicinity of Phillipsburg, New Jersey, and Easton, Pennsylvania. Mr. Churchman, the principal and proprietor of Churchman Business College, and Mr. Patrick Deignan of the New Jersey rehabilitation commission, who had charge of his rehabilitation, made a great effort to obtain employment for the petitioner but were unable to do so, on account of the serious physical handicaps from which he suffered, as the result of the loss of his arm and part of his leg.

At the time of the hearing it appeared that the petitioner had not been able to obtain any employment of any character whatever.

There are two questions before me for determination in this proceeding, the first being as to whether the petitioner is entitled to be paid compensation for his temporary disability which I find extended from the time of the accident for a period of forty-three weeks.

In the case of Vishney v. Empire Steel and Iron Co., 87 N. J. L. 481 (at p. 483); 95 Atl. Rep. 143, the Supreme Court, in discussing the subject of temporary disability, held that “temporary disability 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; * * *.”

Applying this test to the petitioner, the evidence indicates that he is entitled to be paid compensation for temporary disability for the period of forty-three weeks, from the time of the accident. The respondent’s insurance carrier admits that this compensation has not been paid, its explanation therefore being, that since this was a case of total permanent disability, the petitioner was not entitled to be paid compensation for temporary disability also. The practice of the workmen’s compensation bureau of this state, however, is so well settled to the contrary that I deem it unnecessary to discuss the question further. The rule is that the injured employe who has suffered permanent total disability, is entitled to be paid compensation for temporary disability on the same basis as an employe whose injuries were not so serious, subject to the test above set forth. The petitioner is entitled to be paid compensation for temporary disability for the period of forty-three weeks at $17 per week.

The second issue in the case is more involved and will require more extended discussion. This is as to whether the petitioner is entitled to have his compensation payments for total permanent disability continued after April 20th, 1934, when they ceased.

The section of the statute which determines the solution of this problem is 11 (b) which is as follows (Pamph. L. 1911, ch. 95, as amended by Pamph. L. 1923, ch. 49, p. 101; Cum. Supp. Comp. Stat. 1911-1924, p. 3872, § **236-11 (b), I have underscored the parts of the statute which in my judgment are particularly significant:

“* * * This compensation shall be paid for a period of four hundred weeks, at which time compensation payments shall cease unless the employe shall have submitted to such physician or educational rehabilitation as may have been ordered by the Eehabilitation Commission of the State, and can show that because of such disability it is impossible for him to obtain, wages or earnings equal to those earned at the time of the accident, in which case further weelely payments shall be made during the period of such disability; the amount thereof to be the previous weekly compensation payment diminished by that portion thereof that the wage, or earnings, he is then able to earn, bears to the wage received at the time of the accident. In calculating compensation for this extension beyond four hundred weeks the minimum provision of eight dollars shall not apply. This extension of compensation payments beyond four hundred weeks shall be subject to such periodic reconsiderations and extensions as the case may require, and shall apply only to disability total in character and permanent in quality, and shall not apply to any accident occuring prior to July fourth, nineteen hundred and twenty-three.”

There is no dispute in this ease but that the petitioner has duly submitted himself to such physical and educational rehabilitation as has been ordered by the rehabilitation commission of this state.

It is earnestly contended by counsel for the petitioner in their brief that the theory of the legislature in a situation such as this, was that at the expiration of the period of four hundred weeks or sometime thereafter, a reconsideration of the case would be had, due to the fact that even if the employe was totally and permanently disabled as a matter of law, as is the petitioner, it might have been possible for the rehabilitation commission to rehabilitate him in some ingenious fashion, so that he would, be able to obtain some wages or earnings.

The petitioner’s contention further is that when this •rehabilitation has been completed and if the employe is able, as the result thereof, to help himself and earn a little money, the plan was for the employer to get some of the benefit of this rehabilitation in the form of some decrease in the compensation rate. That on the other hand it was clearly intended that where it was not possible to rehabitate the employe, or where even if he had been rehabilitated, it was impossible for him to obtain any wages or earnings, that then the compensation payments should continue for the rest of his life.

Counsel for the petitioner further argue that the underlying purpose of this scheme was to provide a system such that when the employe was unable to earn anything and therefore it became a question as to whether the taxpayers or industry should be responsible for his care and support, that industry should be compelled to continue to carry the burden since industry was directly responsible for his incapacity.

On the other hand, counsel for the respondent presents a different theory. Counsel admits in his brief that the petitioner has been unable to secure a position. It is contended, however, that inasmuch as there was some testimony to the effect that Ilulbert had been qualified by his business college course for the work of a junior bookkeeper, the rate of pay for which is $15 per week, that he has therefore established a theoretical earning capacity, and that consequently, his compensation rate should be reduced under the provisions of section 11 (b) above set forth.

The difficulty with this theory is that there is nothing in the statute nor in sound reason to justify its adoption, and I am therefore unable to do so.

In my opinion, a reading of the statute makes the intention of the legislature clear beyond any question, namely, that before any reduction in the compensation rate can take place, it must appear that the employe is gainfully employed and that he is actually earning wages of some amount.

The statute reads, “and can show that because of such disability it is impossible for him to obtain wages or earnings equal to those earned at the time of the accident.” In my opinion the statutory language used here clearly contemplates the receipt of actual wages or earnings and not some more potential earning capacity.

This view is further strengthened by the clauses that immediately follow the above quotation in the statute, “in which case further weekly payments shall be made during the period of disability; the amount thereof to be the previous weekly compensation payment diminished by that portion thereof that the wage or earnings he is then able to earn, bears to the wage received al\ the time of the accident.” It is highly significant in my opinion that here again the statute makes no reference to earning capacity as such, but refers solely to the actual wages or earnings that he is able to earn.

Moreover, it is obvious that under the act, in order to compute the amount of the reduction of the compensation rate, the actual wages then earned by the employe is a necessary factor in the formula. In the present case, however, this element is entirely lacking because he has not earned wages. There is, therefore, nothing upon which to base such a reduction.

I am convinced that if the legislature had intended that the test should be that of a mere theoretical or potential earning capacity, it could easily have said so. On the contrary, since it has so definitely made the test that of the actual wages earned, if any, I am therefore constrained to adopt the latter construction of this statute.

The wisdom of the legislature in making this the test is apparent from the situation that existed in this case, where the great difference between a theoretical and an actual earning capacity is apparent by reason of the fact that despite all of the extraordinary efforts made by the petitioner and others in his behalf, to secure employment for him, it was impossible to do so. It is apparent, from the evidence, that whatever his theoretical earning capacity might be, if any—from a practical standpoint, he has none.

It appeared that the petitioner himself had applied to some eleven firms in the vicinity of Phillipsburg and Easton for work as a clerk, but was refused a job by all of these concerns, and in most instances because of his injuries.

Patrick Deignan, the vocational examiner of the rehabilitation commission, testified that he had interviewed some seven employers in an effort to get the petitioner a job but was unable to do so because of the latter’s physical condition. He was not even able to induce the Warren Foundry Company itself to take him back, although at that time the company had a position open for him, the reason being that the company was unwilling to take the chance of his being injured again. It is also very significant that Deignan tried to induce several firms to employ him for a training or “try-out” period without the obligation of paying him any wages, but none of them would accept him even on this basis.

Likewise, Mr. Churchman was unable to get him employment because of the general objection by employers to his physical condition, despite the fact that Churchman made a special effort to locate a position for him.

Various representatives of the National lie-employment office of Warren county testified also that Hulbert had been registered for employment with that office since December 15th, 1933, but that they had failed to get any position for him due to his disability. They agreed with Deignan and the director of the National Re-employment Service office of Hunterdon county, that from a practical standpoint, it was impossible for the petitioner to obtain any wages or earnings; that he was not able to earn any wages and was unemployable on account of his serious physical disability. The testimony on this point was overwhelming.

In this situation, the question arises as to whether the legislature intended that industry should continue to support this man, who is the victim of our modern system of industry, by means of compensation payments until it is possible for him to earn enough wages to take care of himself, or whether he shall become a burden on society and the taxpayers. It is my opinion that the first of these two alternatives is the one that is far more consonant with the purposes of the Workmen’s Compensation act, and I adopt that conclusion.

This viewpoint is further strengthened by the respondent’s own witness, Joseph Spitz, the assistant director of the New Jersey rehabilitation commission, who testified that under the definition of “rehabilitation,” in use by the New Jersey commission and the federal authorities and also practically all of the states of this country, an injured man is not considered to be rehabilitated until he is remuneratively emplojred, and that furthermore as soon as he ceases to be so employed he is no longer considered to be rehabilitated but drops back into the class of unrehabilitated cases.

It therefore appears that the rehabilitation authorities are virtually unanimous in the view that mere theoretical earning capacity is not enough, but that the work of rehabilitation is not complete until the individual is able to obtain, and keep a remunerative position.

Both Spitz and Deignan agreed that the petitioner has not been fully rehabilitated because he has not been able to obtain any remunerative employment.

It will thus be perceived that we are dealing with the interpretation of a statute, the whole theory of which is postulated upon the idea that the employe may be restored to some earning capacity bjr the process of rehabilitation. Furthermore, under the well settled definition of “rehabilitation” we find that, in order to be rehabilitated, a man must have acquired an actual earning capacity rather than one that is merely theoretical.

In the light of this situation, the only logical conclusion is that under section 11 (b) (Cum. Supp. Comp. Stat. 1911-1924, p. 3872, § **236-11 (b) the legislature intended that the employe should be remuneratively employed before there can be any reduction in his compensation rate.

The final argument of counsel for the respondent was that the real reason that the petitioner was unable to obtain a job and earn some money, was the lack of opportunity for employment, due to the depression. While I am not convinced that this factor enters in the situation at all, nevertheless, it is unnecessary to decide this question inasmuch as the record is replete with the testimony to the effect that it was due to his physical disability rather than to the depression, and I so find.

The question which has been presented to me in this case is one oí novel impression in this state. A similar situation, however, is presented in certain other states where the test under the statutes, as to total and permanent disability, is as to whether the injured employe is able to obtain any wages. The question has arisen in this connection as to whether a theoretical earning capacity was intended by such a statute, or actual earnings.

In the case of Reilly v. Carroll (Conn.), 147 Atl. Rep. 818, the employe sustained an injury to the left eye. He was able to do some work but could obtain only temporary jobs for short intervals and then only infrequently. The court held that he was entitled to an award of total permanent disability, the test being as to whether he was able to obtain employment. The language of the court is peculiarly apt to the instant case, page 819 :

“The object of our statute was to give compensation for a total or partial loss of the capacity to earn wages. * * * If * * * the injured employe by reason of his injury is unable in spite of diligent efforts to obtain employment, it would be an abuse of language to say that he was still able to earn money, that he still had a capacity for work, even though his physical powers might be such as to enable him to do some kinds of work if practically the labor market were not thus closed to him. * *

A somewhat similar situation existed in the case of Olson v. Triplett (Ky.), 75 S. W. Rep. (2d) 367. Here it appeared that although the employe could perform some light work as a carpenter, he was not able to do all kinds of carpenter work, and therefore could not obtain any employment. The court held that he was totally and permanently disabled, and based its decision upon the following reasonings:

“It is well settled that 'total disability' does not mean absolute helplessness or entire physical disability. It means loss of earning power as a workman, in consequence of the injury, whether the loss manifested itself in inability to perform such work as may be obtainable or inability to secure work to do. Consolidation Coal Co. v. Crislip, 217 Ky. 378; 289 S. W. Rep. 270. In the Crislip case, supra, it was held that an injured employe is 'totally disabled5 when he is disqualified from performing the usual tasks of a workman in such a way as to enable him to procwre and retain employment. Conceding, without deciding, that Triplett is able to perform some light work as a carpenter, yet it is common knowledge that he would find difficulty in obtaining employment as a carpenter unless he was physically able to discharge ALL the duties ordinarily expected and required of a carpenter.”

A slightly different set of facts existed in Fennell’s Case (Mass.), 193 N. E. Rep. 885. Here the employe sustained such an injury to one eye that it was very apparent that he had only one effective eye, and he finally got to the point where no one would employ him on this account. Despite the fact that admittedly he could do a great deal of work, the Massachusetts court came to the conclusion that the real test did not stop there but included the question as to whether he could obtain employment, and held that since he could not do so, he was entitled to an award of total permanent disability. It is thus apparent that the courts above referred to have refused to adopt the test of a theoretical or potential earning capacity, and hold that the determining factor is as to whether the employe is actually able to obtain employment. If, as in these cases, it is impossible for him to get a job, then he is held to be totally and permanently disabled, under those statutes.

It is obvious that the very same reasoning is directly applicable to the interpretation of section 11 (b), supra, of our act, where the legislature prescribed as the test, the actual ability to get a job and earn wages.

On this aspect of the case, my conclusion therefore is, that it is impossible for the petitioner to obtain any wages or earnings, and he is not able to earn any wages, and that therefore he is entitled to be paid compensation at the rate of $17 per week beginning as of April 20th, 1934, and continuing until the order accompanying this opinion is modified in accordance with the provisions of section 11 (b), supra.

John J. Stahl, Deputy Commissioner.


author: Lawrence, S. C. C.

text:
    ROBERT SHERWOOD, RECEIVER OF THE BROAD STREET NATIONAL BANK OF RED BANK, NEW JERSEY, PLAINTIFF, v. HARVEY W. YOUNG, DEFENDANT.
    Decided September 18, 1936.
    For the motion, Leo J. Warwick (Stanley Cohen).

    Opposed, Edward W. Wise.

   Lawrence, S. C. C.

This is a suit on two promissory notes made by Lucretia T. Young to the order of her husband, the defendant, endorsed by them and discounted for his accommodation by the Broad Street National Bank of Bed Bank, now in the custody of the comptroller, and of which plaintiff is receiver. The notes fell due on April 25th, 1933, and May 8th, 1933, respectively, were not paid and were duly protested. $3,734.12 remains due on the former and $5,402.26 on the latter. On April 26th, 1935, the sums due not having been paid, the predecessor of plaintiff as receiver of the bank required defendant and his wife to give security for the payment of the notes and they executed and delivered to the receiver a bond and mortgage for $10,000, which contained the following condition:

“This bond and the accompanying mortgage are given as full collateral security for any note or notes made, executed or endorsed by the said Harvey W. Young or Lucretia T. Young, his wife, now held by the party of the second part or hereafter coming to his hands, or to the hands of his successors or assignees, including all interest, costs and charges thereon, and for any renewal or renewals oí any of said note or notes, and in the event oí payment oí all of said notes, together with all interest, costs and charges thereon, this bond is to be surrendered receipted for cancellation to the party of the first part, Harvey W. Young, by the party oí the second part, his successors or assigns, and in the event of default made in the payment of any note or notes, this bond shall become due immediately upon such default, although the period herein mentioned for the payment thereof may not have expired.”

After the execution and delivery of the bond and mortgage, Mrs. Young died and plaintiff, in the present suit, elected to proceed against the husband alone to recover the amount due on the notes.

Defendant’s answer neither admits nor denies the allegations of the first and second counts of the complaint containing a recital of the making and discount of the notes, their protest and the sums remaining unpaid, but in separate defenses sets up that plaintiff is precluded from recovery on the notes, alleging that the bond and mortgage were executed and delivered for the same debt and that he must first resort to a foreclosure of the mortgage, in pursuance of chapter 231 of the laws of 1932, page 509 (N. J. Stat. Annual 1932, § 134-48), entitled, “An act to amend an act entitled, ‘An act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder,’ approved March twenty-third, one thousand eight hundred and eighty-one;” which amended act was approved June 14th, 1932, and chapter 82 of the laws of 1933, approved March 29th, 1933, page 172. N. J. Stat. Annual 1933, § 134-48.

Plaintiff moves to strike the answer as sham and the separate defenses as frivolous on the ground that the making, delivery and discount of the notes, the protest and the amount remaining unpaid is not denied and could not be; while the condition of the bond and mortgage clearly indicates a waiver of the provision of the statutes invoked. This appears to be so. In Callan, v. Bodine, 81 N. J. L. 240; 79 Atl. Rep. 1057, it was said that the provision requiring the foreclosure of the mortgage as the first step in the proceeding for the collection of a debt is a personal privilege and is not designed to secure any object of public policy; and being a personal privilege, a party has a right to waive his privilege under the statute. To like effect is Crosby v. Washburn, 66 N. J. L. 494; 49 Atl. Rep. 455. The bond and mortgage here involved were in terms given as collateral security for any notes made, executed and endorsed by defendant or his wife, and any renewals thereof, held by the receiver of the bank, together with all interest, costs and charges thereon, with the distinct provision that should the notes be paid, the bond and mortgage would be canceled and returned to defendant. There could be no clearer indication of the purpose for which they were given, and plaintiff could either bring an action on the notes or proceed to realize the value of the pledge or security. Polhemus v. Prudential Realty Corp., 74 N. J. L. 570; 67 Atl. Rep. 303. He was not precluded in the circumstances by the statutes pleaded. The provisions were made inapplicable by the precise terms of the condition of the bond and mortgage. It may thus be said that the holding in Knight v. Cape May Sand Co., 83 N. J. L. 597; 83 Atl. Rep. 964, and in Wildwood Title and Trust Co. v. Geisenhoner, 11 N. J. Mis. R. 871; 168 Atl. Rep. 751, is not controlling. The conclusion is that defendant has no proper defense and that the answer should be stricken as sham and the separate defenses as frivolous.


author: Peb Ctikiam.

text:
    WILLIAM LEVINE, PROSECUTOR, v. STATE BOARD OF REGISTRATION AND EXAMINATION IN DENTISTRY, RESPONDENT.
    Argued January 23, 24, 1936
    Decided September 21, 1936.

      Before Justices Hehbk and Pbbskie.
    For the prosecutor, William H. Speer.

    For the defendant, David T. Wilentz, attorney-general.
   Peb Ctikiam.

The writ of certiorari in this cause brings up for review a resolution of the state board of registration and examination in dentistry revoking prosecutor’s license to practice dentistry in this state.

The complaint charged, but did not set forth the facts upon which the charge was based, that the prosecutor “did during the month of November, 1934, advertise the prices and charges to be made for dental work done by him, as well as advertise the character and durability of said work, in certain newspapers” contrary to subdivision (g) of section (7), chapter 87, Pamph. L. 1934, p. 258; N. J. Stat. Annual 1934, § 56-26.

The challenged resolution, in substance, recites the charge as aforesaid; that prosecutor was served with the complaint; that the cause was presented to the board on stipulation of facts, but does not set forth the facts so stipulated, and merely finds prosecutor “guilty as charged in the complaint,” and revokes his license to practice dentistry in this state.

We are met, in limine, both on the oral and written argument, with objection to the record. It is argued for the prosecutor that the challenged resolution is fatally defective in that it does not contain a statement of the evidence upon which the revocation was based. That is so. Sawicki v. Keron et al., 79 N. J. L. 382; 75 Atl. Rep. 477; Marter v. Repp et al., 80 N. J. L. 530; 77 Atl. Rep. 1030; affirmed, 82 N. J. L. 531; 81 Atl. Rep. 1134; O’Driscoll v. Scott et al., 12 N. J. Mis. R. 516; 172 Atl. Rep. 797; Freudenreich v. Borough of Fairview (Court of Errors and Appeals, 1934), 114 N. J. L. 290, 292; 176 Atl. Rep. 162.

Thus a decision of the question whether the board acted within the purview of the statute in confining the hearing to a consideration of the revocation only of prosecutor’s license, and properly ignored the consideration of the suspension of his license; or, whether the provision of the act of 1934, supra, is unconstitutional will have to await the presentment of these questions in a proper record.

The challenged resolution is set aside, but without costs. Board of Tenement House Supervision v. Schlechler, 83 N. J. L. 88; 83 Atl. Rep. 783.


author: Delmar, C. P. J.

text:
    Bergen County Court of Common Pleas.
    ANNA C. MANION, IN BEHALF OF HERSELF AS WIDOW AND IN BEHALF OF THE CHILDREN OF FREDERICK L. MANION, DECEASED, PETITIONERS, v. EDER ERECTING COMPANY, RESPONDENT.
    Decided September 16, 1936.
    For the petitioner, Kent <& Kent.

    For the respondent, Walter X. Trumbull.

   Delmar, C. P. J.

This is an appeal from the decision of the deputy commissioner of labor, of the workmen’s compensation bureau, dismissing a claim for compensation at the end of the petitioner’s case. It may be gathered from the record that Frederick L. Manion, the decedent, was injured on February 9th, 1926, in an accident while in the employ of the respondent, that when injured, and for sometime prior thereto, he was afflicted with syphilis, which was at that time apparently inactive, and did not interfere with his ability to work. Shortly after receiving his injury the decedent became permanently and totally disabled as the result of his syphilitic condition becoming activated, and on August 6th, 1927, he was confined to the insane asylum at Greystone Park, where he remained continuously until January 3d, 1933, when he died from a cerebral hemorrhage, which was the end result of his syphilitic condition.

In 1929 a formal proceeding was instituted in the workmen’s compensation bureau by his wife as his guardian, “on behalf of herself and her children,” and after a hearing thereon, the deputy commissioner decreed an award of compensation to the then petitioner. No appeal was taken from this determination, and compensation was paid thereunder up to the time of the decedent’s death, since which time a new petition, which is the foundation of the present proceeding, was filed to recover an award of compensation for his death, which the petitioner claims is a direct result of the original accident. After the petitioner’s case was in, the deputy commissioner dismissed the petition, holding that the petitioner failed to produce any competent proof that the decedent’s death was caused by the injury sustained by the petitioner’s decedent in an accident arising out of and in the course of his employment with the respondent. From this determination the petitioner appeals to this court and seeks a reversal.

I have examined the record carefully and find it barren of any evidence that the petitioner’s decedent died as a result of an accident arising out of and in the course of his employment, unless the same may be found in the “Findings of Fact and Eule for Judgment” in the prior proceeding. This document was offered in evidence by the petitioner but was not actually received or marked as an exhibit, the referee remarking “that is a part of the record anyway.” From which informality the first point of controversy arises, the petitioner claiming that it should be considered as a part of the evidence, the respondent contesting this claim. The Compensation act provides that the official conducting the hearing for the bureau is not governed by the rules of evidence. Cum. Supp. Comp. Stat. 1911-1924, p. 8892, § **236-50. The cases hold that the bureau cannot, however, base its findings on incompetent evidence. Helminsky v. Ford Motor Co., 111 N. J. L. 369; 168 Alt. Rep. 420; Friese v. Nagle Packing Co., 110 N. J. L. 588; 166 Atl. Rep. 307. This court should look at the substance of what transpired before the referee and not the form. Scalise v. Uvalde Asphalt Paving Co., 98 N. J. L. 696; 121 Atl. Rep. 693. I am inclined to think that the referee was of the opinion that this document being a part of the records of the bureau need not be received as an exhibit because he would consider it as a part of the records of the bureau and give it such weight as it may be entitled to as evidence. The failure of the respondent to object to its admission and reception as evidence, coupled with the referee’s remark that it is a part of the record anyway lead me to the conclusion that it should be given the same weight as evidence as if it had been formally offered and received as an exhibit. It is, however, not clear what that weight is. The petitioner argues that the “Findings of Fact and Eule for Judgment” are res adjudícala. Further, that if it is not res ad judicata then at least it is evidence sufficient to establish, in connection with the other evidence, a prima facie case on behalf of the petitioner. To render a prior judgment res adjudicóla, the records must show the identity of the thing sued for; of the cause of action; of the persons and parties; of the quality of the persons for and against whom the claim is made; and the judgment in the former suit must be so in point as to control the issue in the pending proceeding; the issue was taken on the same allegations which are the foundation of the second action. Smith v. Fischer Baking Co., 105 N. J. L. 567; 147 Atl. Rep. 455.

Any rights which the petitioner in the present ease may have for compensation for the death of her husband are rights which flow directly from the statute. They are not rights to which she succeeds as the representative of her husband. Lusczy v. Seaboard By-products Co., 101 N. J. L. 170; 127 Atl. Rep. 212.

If the doctrine of res adjudicóla may be applied to sustain the claim of the petitioner, it could as well be done to prevent or bar such a claim. Consistency would require the application of the rule in the latter situation if it is to be applied in the former. There is no good reason for the admission of the finding of the referee in the prior proceeding when favorable to the petitioner that would not apply if the finding of the referee were adverse to the petitioner. The application of such rule would, in many instances, result injuriously to dependents of injured workmen. Industrial Commission of Ohio v. Davis, 186 N. E. Rep. 505. Neither is there an identity of the thing sued for—of the cause of action. In the former proceeding it was essential to the petitioner to establish that Manion’s condition of illness was aggravated as a result of an accident arising out of and in the course of his employment. In the present proceeding it is essential that the petitioner establish that the death of the decedent was due to an accident arising out of and in the course of his employment. It is clear, therefore, that there is no identity of the thing sued for and the issue is not taken on the same allegations. The matter is, therefore, not res adjudicata. Having come to this conclusion, it still remains to determine what weight, if any, should he given to the document in question as evidence in the present proceeding. The petitioner contends that where evidence is admitted in a trial court, either without objection or over objection of the successful party, the party offering such evidence is entitled to have it considered by the trial court in arriving at its conclusion, citing Daire v. Moore, 1 N. J. L. 111; Smith v. Delaware and Atlantic Telephone and Telegraph Co., 63 N. J. Eq. 93; 51 Atl. Rep. 464; 64 Corp. Jur. 224; Anselwitz v. Greenstein, 163 N. Y. Supp. 180; Flora v. Carbeau, 38 N. Y. 111. This rule, however, in my opinion, should have no application in a hearing before the workmen’s compensation bureau, which is not bound by the strict rules governing the admission of evidence in the courts. It was pointed out in Sealsie v. Uvalde Asphalt Paving Co., that it was the desire of the legislature “to permit the statutory tribunal of the first instance, which may or may not be composed of individuals learned in the subleties and niceties of the law of evidence, to hear and investigate each and every claim for compensation unhampered by the observance of the rules of evidence.” A different rule, however, applies to the probative force of such evidence as may be received in a hearing before the bureau. It is well settled that the determination of the bureau must be founded upon competent evidence. Helminsky v. Ford Motor Co., supra; Friese v. Nagle Packinq Co., 110 N. J. L. 588; 166 Atl. Rep. 307.

In order to sustain her contention that this decedent died as a result of injuries arising out of and in the course of his employment, the petitioner relies on that part of the findings of fact and rule for judgment in the prior proceeding, which recites “as a result, however, of the physical injuries sustained in this accident, the said disease which was then dormant and would otherwise have so remained, became activated and aggravated, so that as a direct result thereof Frederick L. Manion became physically and mentally totally and permanently disabled, &c.” Inasmuch as the decedent was living at the time when this finding was made, it is clear that the deputy commissioner who made said findings could not have had in mind that the decedent would die as a result of the accident. The most that he could have meant was that the disease would have remained temporarily dormant had it not been for the accident.

The court will take judicial notice that syphilis is a disease which frequently remains apparently dormant in a person for a long period of years and then suddenly breaks out with renewed activity usually leading to the premature death of the afflicted person.

The strongest evidence offered on behalf of the petitioner is that there is a possibility that the decedent’s death was hastened by reason of the accident. However, the petitioner cannot make out a case by showing such to be a possibility. In order for her to recover, she must have shown that this was at least a probability.

There is another respect in which the petitioner has failed to establish a proper basis for a reversal. This court is limited on appeal to a consideration of the transcript of the record and testimony before the workmen’s compensation bureau. It is the duty of the appellant to prepare the same, have it duly certified and then filed in the county clerk’s office. Pamph. L. 1931, ch. 280; N. J. Stat. Annual 1931, § **236-60. In the case under review, a complete transcript of the record has not been filed in the county clerk’s office. I notice especially the absence of Exhibits P-1 and P-B on behalf of the petitioner, and the failure to have the findings of fact and rule for Judgment in the prior case returned as a part of the records in the pending proceeding. No objection to this informality was raised by the respondent, but since this court cannot properly review the proceedings of the bureau without having a complete record before it, the petitioner’s failure to present such record entitles the court on its own initiative to dismiss the appeal.

The action of the referee in dismissing the petition is, therefore, affirmed.


text:
    STEVE STEVENSON ET AL., PLAINTIFFS-RESPONDENTS, v. THE NORTH JERSEY PUBLISHING COMPANY, DEFENDANT-APPELLANT.
    Submitted January 21, 1936
    Decided September 19, 1936.
    Before Brogan, Chiej? Justice, and Justices Lloyd and Donges.
    For the appellant, Grosso & Anderson.

    For the respondents, Louis J. Goldberg and Ralph N. Solo dar.

   Pee Curiam.

This is an appeal from a judgment of the Essex County Court of Common Pleas in a suit for money alleged to be due under two contracts of employment.

The claim of the plaintiff Steve Stevenson was that he was employed by the defendant company, publisher of the Orange Daily Courier, on October 15th, 1930, at a salary of $50 per week for a period of six months, after which he was to receive $75 per week and was to be paid in one lump sum an amount sufficient to make up to $75 per week his salary for the six months he had received $50 per week. The same sort of an agreement was alleged by the other plaintiff, Mabel Gouldy Stevenson, except the figures were $25 a week to be increased at the end of six months to $40, and the arrearages to be paid. They were employed as newspaper reporters and writers. The defense was a denial of any such contract, and it was claimed by defendant that the sums paid plaintiffs were the full salaries agreed to be paid.

The plaintiff testified that his first conversation regarding employment of him and his wife was with Harry Balch, president of defendant company, and Charles E. Marsh, who was not an officer of the defendant but was an officer of General Newspapers, Incorporated, which was a stockholder in defendant. The principal point in dispute is Marsh’s authority to bind defendant. After the first conversation on October 15th, 1930, Stevenson was told to bring his wife to the Hotel Vanderbilt that night to meet with Marsh and Balch and conclude the contract. At the night meeting, Balch was not present, and the contract relied on by plaintiffs was concluded between them and Marsh. Defendant denies that any such contract was made and denies Marsh’s authority to make it.

Plaintiffs’ proofs were that they worked at the salary agreed upon, and after more than six months had passed, Stevenson spoke to Balch about the increase and the back pay and was told that the paper did not have the money and Mr. Marsh would have to advance it. Later Stevenson took the matter up with Marsh and received Marsh’s check for $200 on account. He received no more of the back pay nor did he receive the increase. Mrs. Stevenson received nothing above the $25 per week.

The trial court took the view that there was evidence from which the jury might find that the defendant, through its president, Balch, knew of the terms of the agreement between plaintiffs and Marsh, and from which they might find the defendant had ratified the contract.

The first point is that it was error to permit Stevenson to answer the following question: “Will you tell the gist of that conversation.” This refers to the conversation with Marsh when the contract of hiring was consummated. The objection was on the ground that Marsh’s authority to bind the defendant had not been shown. We think the question was admissible, subject to evidence being produced of Marsh’s authority, and in view of the subsequent evidence on the subject of ratification, we are of the opinion that the question was properly allowed. There was no motion to strike.

The second point is that the motions to nonsuit and direct a verdict should have been granted because there was no evidence of a contract duly entered into by the defendant. We think, in view of the testimony that Balch knew of the terms of the contract, and in view of his conduct in continuing plaintiffs in the employ of the defendant, that there was evidence from which the jury might find that Marsh had authority or at least that there was ratification by the defendant.

Point three is that “since ratification was not pleaded and plaintiffs were limited by particulars to proof of agency, the court’s submission of the case to the jury on the theory of ratification was harmful error.” This is based on grounds of appeal dealing with the charge of the court on this subject. We think the complaint alleged the contract with sufficient broadness to permit proof of the contract by ratification. The bill of particulars mentioned does not appear to be printed in the record so we cannot deal with that.

Point four, embracing grounds of appeal 3, 4, 5 and 6, attempts to argue rulings on the admission of evidence, but an examination of the record reveals that none of the questions set out in those grounds of appeal were excepted to by counsel.

Point five relates to testimony of Edward W. Neill, an employe of the defendant, regarding a conversation with Balch which tended to show knowledge on the part of Balch of the arrangement for withholding a part of Stevenson’s salary. Balch admittedly being the president and authorized agent of the defendant, this proof was competent on the question of knowledge and ratification.

Finding no harmful error, the judgment is affirmed, with costs.


author: Pee Ctjeiam.

text:
    LEO GETZOFF, PLAINTIFF-APPELLEE, v. VON LENGERKE BUICK COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 15, 1936
    Decided September 24, 1936.
    Before Justices Bodine and Hehee.
    For the defendant-appellant, Chivian & Chivian {Herman Chivian).

    For the plaintiff-appellee, Cohn & Kohlreiter {Peter Cohn).

   Pee Ctjeiam.

Defendant appeals from a judgment in favor of the plaintiff who purchased from it, a dealer, a new Pontiac sedan under a conditional sales contract. The contract provided as follows: “No warranties, expressed or implied, representations, promises or statements have been made by the seller unless endorsed hereon in writing.”

The ease was tried in the District Court without a jury. The state of the case, as settled, indicates that recovery was predicated upon the alleged breach of an implied warranty. The testimony received indicated that the car was defectively constructed. The parties having agreed that the written contract contained the terms of their bargain, evidence, to support recovery on the theory of an implied warranty of fitness, was inadmissible. It seems that the error was sufficiently raised in the court below and in the specifications before us.

Judgment is reversed.


author: Pee Cukiam.

text:
    FANNY BRUSSELS, PLAINTIFF-APPELLEE, v. GRAND UNION COMPANY, DEFENDANT-APPELLANT. LESLIE I. BRUSSELS AND LUCILE HIGGINS, PLAINTIFFSAPPELLEES, v. GRAND UNION COMPANY, DEFENDANT-APPELLANT.
    Submitted May 15, 1936
    Decided September 24, 1936.
    Before Justices Bodine and Hehek.
    For the defendant-appellant, Kalisch & Kalisch (Samuel Kalisch).

    For the plaintiffs-appellees, Major, Back & Garlsen (James A. Major).

   Pee Cukiam.

These two cases were tried together. The facts appear to be that Norman H. Brussels at the request of his mother, Fanny Brussels, and in her behalf, purchased canned peas for family use from the defendant grocery company. The proofs show that the peas, although properly prepared for a meal, made Mrs. Brussels ill; also her son, Leslie, and the maid of all work, Lucile Higgins. For the suffering caused by food poisoning they all had judgment. The defendant appeals.

The trial court found, as he could well do from the evidence, that the peas were unwholesome and not of merchantable quality. That there may be recovery for breach of an implied warranty upon the sale of articles of food, even in cans, seems settled. Griffin v. James Butler Grocery Co., 108 N. J. L. 92; 156 Atl. Rep. 636. The warranty runs only to the purchaser. 26 Corp. Jur. 784; Gearing v. Berkson, 223 Mass. 257; 11 N. E. Rep. 785. A manufacturer of a commodity canned, bottled or sealed in a container or wrapper is under a duty to an ultimate consumer to exercise reasonable care in its production, regardless of contractual relations. Cassini v. Curtis Candy Co., 113 N. J. L. 91; 172 Atl. Rep. 519. .The defendant may have been the manufacturer of the article found deleterious, but there is neither allegation nor proof thereof. Panny Brussels, having made the purchase through the agency of her son, was entitled to recover for breach of warranty. On the proofs adduced, not so the plaintiffs in the other action. As to them there must be a reversal.