author: Garantí, D. C. J.

text:
    Fifth Judicial District Court of Bergen County.
    THOMAS LICCIARDI, CHARLES BENIGNO AND EMERY WENZEL, PLAINTIFFS, v. ALBERT A. MOLNAR AND GARFIELD TAXPAYERS’ CITIZENS ASSOCIATION, A CORPORATION, DEFENDANTS.
    Decided November 2, 1945.

      Eor the plaintiffs, Gibarles Bernstein.

    Eor the defendants, Dominiclc F. PacheTla.

   Garantí, D. C. J.

The plaintiffs, Thomas Licciardi, Charles Benigno and Emery Wenzel, members of the Board of Tax Assessors of the City of Garfield, bring this action of libel against the Garfield Taxpayers’ Citizens Association and Albert A. Molnar, its president. The alleged libel complained of is contained in a letter addressed by the said defendants to the mayor and city council of the City of Garfield. The communication in question is as follows:

“We have followed very close the actions of your governing body with request for a request for an investigation by the Prosecutor and the Grand Jury into official acts.

“We wish to suggest that you specifically ask the Prosecutor and Grand Jury to look into reports that the firm of Samuel Hird and Sonsj of this City, was requested to make a payment of $10,000 if their assessments were to be kept at the level in which they were at that time, and when the management refused to pay the payment, they were increased $300,000, whereupon the Hird Company has manifested determination to move from Garfield.

“We have had correspondence with the prosecutor, on the above mentioned item and many other matters. We wish to criticize the honorable Mayor for vetoing the request for an investigation, for it is our opinion that every official encouragement cooperation should be given to the authorities.”

This letter was marked in evidence and is referred to as Exhibit PS.

The plaintiffs aver that the defendants meant by the said letter to charge that the plaintiffs were guilty of serious and reprehensible crimes, such as willful malfeasance and misfeasance in the performance of their duties as tax assessors, conspiracy to defraud, bribery or attempted bribery, failure to properly value and assess the property of the firm of Samuel Hird and Sons, and that they had unlawfully or corruptly requested $10,000 as a consideration to refrain from increasing the assessments on said firm’s property. The defense is that the defendants did not, in their letter to the mayor and city conncil, charge the plaintiffs with the commission of any of the crimes referred to in the state of demand but that in good faith and in the performance of what they conceived to be their duties as taxpayers and in the fulfillment of the purposes for which the defendant association was formed, they merely asked the mayor and city council to have the proper officials conduct an inquiry into the situation. The defendants eLaim that the alleged libel was qualifiedly privileged.

Libel is the defamation of a person by the publication of any writing tending to expose him to public hatred, contempt or ridicule. Hot every defamatory publication, however, is legally actionable.

It is well settled that defamatory words uttered in a privileged communication are not actionable unless there be proof of actual malice. If such words axe uttered bona fide on a privileged occasion in an honest belief that they are true, the party injured is remediless. In such a case it is immaterial that the words are false. I find it unnecessary, therefore, to consider the truth or falsity of the reports referred to in Exhibit PS.

The fundamental question in this ease upon which the issue hinges is whether the letter sent by the defendants to the mayor and city council was written and published under such circumstances as to bring it within the class of communications which the law denominates qualifiedly or conditionally privileged communications. As stated by our Court of Errors and Appeals in King v. Patterson (Court of Errors and Appeals, 1887), 49 N. J. L. 417, 420; 9 Atl. Rep. 705, 706.

“The occasions which give rise to the privilege of speaking or publishing words which otherwise would be defamatory and actionable are various. Thus, memorials to officers of state respecting the conduct of magistrates and officers, comments by electors upon the character of candidates for office, communications in matters of public interest in which the public generally is concerned, communications in the interest of third persons or for the protection of the party’s own interest, communications respecting the character of servants or the credit and responsibility of tradesmen, or made in the performance of social, moral or legal duties, come within the class of privileged communications. Whether the privilege is available as a defense depends upon the circumstances of the particular case—the situation of the parties, the person to whom, the circumstances under which, and the manner in which the communication was made. A publication which in one case would be justifiable, in another case would be without justification. A criticism of the public acts of a candidate for office may be inserted in a public newspaper or be proclaimed by a circular, but such publicity given to comments derogatory to the character of a servant or to the financial standing of a trader would be illegal.”

In Finkelstein v. Geismar, 91 N. J. L. 46; 106 Atl. Rep. 209; affirmed, 92 N. J. L. 251; 106 Atl. Rep. 209, the rule was stated as follows:

“A communication is qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do.”

In Harrison v. Bush, 85 E. C. L. 348, Lord Chief Justice Campbell stated the rule as follows:

“A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without this privilege, would be slanderous and actionable.”

This statement of the rule was approved by Chief Justice Gummere in Lawless v. Muller, 99 N. J. L. 9 (at p. 12) ; 123 Atl. Rep. 104.

A communication which is qualifiedly privileged is not actionable unless maliciously made. If there is express malice, then the defense of privilege must be overruled. By express malice in this connection is meant some motive actuating the defendant different from that which prima facie rendered the communication privileged and being a motive contrary to good morals. The existence of such a motive may be legitimately gathered from the character of the defamatory communication—as, if the terms nsed be utterly beyond and disproportionate to the facts which the defendant had reason to believe; or from the circumstances under which the communication is made—as, if the defamatory matter is communicated to those who have no interest or concern in it; or from any extraneous facts which tend to prove it. Finkel stein v. Geismar, supra; Fahr v. Hayes, 50 N. J. L. 275; 13 Atl Rep. 261.

The burden of proof is upon the plaintiffs to establish that the communication was libelous. On the other hand, the burden of proving that the occasion of publication was privileged is on the defendants. Where the communication is privileged it is for the plaintiffs to establish the existence of malice. King v. Patterson, supra.

It is therefore incumbent upon me as trier of the facts to determine from all of the evidence, both testimonial and documentary, whether the defendants issued and published the letter in question, marked Exhibit "P-8” in evidence, under circumstances reasonably believed by the defendants to exist which cast on them the duty of publishing such communication.

I have carefully considered all of the testimony and exhibits and I find as a fact that the defendants have established by a preponderance of the evidence that they had reasonable cause to believe that circumstances existed which cast upon them the duty of addressing the communication, Exhibit P-3, to the mayor and council of the City of Garfield.

The Garfield Taxpayers’ Association was formed to “promote and encourage the development of the City of Garfield; to further and protect the interests of property owners in the City of Garfield; to acquaint the people with the methods of raising tax moneys in the municipality; to contest useless municipal expenditures; and to do any and all other things-to the end that municipal expenses may be reduced and taxes-lowered correspondingly,” and “to gather, receive and disseminate such information with reference to municipal taxation and improvement as may seem helpful to the members * * Amended certificate of incorporation of Garfield Taxpayers’ Citizens Association, Exhibit P-12. The chief reason for the existence of the defendant association is to-enable its membership to take concerted action on matters of public interest relating to municipal affairs and particularly on questions of taxation. I find as a fact that the defendant association and its president in issuing and publishing the communication in question, acted under the belief, which I find to be reasonable under all of the circumstances, that they were performing their civic duty as taxpayers and performing the function for which the defendant association was incorporated. I find that they did not act recklessly without inquiry into the source of the rumors, but on the contrary, that they proceeded with care and deliberation. It appears that the matter was discussed at a regular meeting of the association; that a committee was appointed to investigate the situation and that it was only after the coming in of the report of the committee that the association ordered that the request for a grand jury investigation be sent to the city council. The communication complained of was thereupon addressed to the mayor and city council pursuant to the order of the membership.

I conclude upon the facts as I have found them that the communication was qualifiedly privileged. I find further that the plaintiffs have failed to prove by a preponderance of the evidence that the defendants were motivated by malice. My finding is to the contrary, namely, that the defendants were actuated solely by their desire to render a public service. This is apparent not only from the caution with which they proceeded, to which reference has been made hereinabove, but also from the nature and contents of the communication and the fact that it was addressed to the chief executive officer and governing body of the municipality, both of whom are charged with responsibility for the proper functioning of the municipal government. If a lawfully incorporated organization of citizens and taxpayers cannot respectfully request the mayor and council of their city to cause an official investigation to be made of reports of graft and corruption which have been disseminated through the community, then we have not democracy but despotism. As stated by the court in Howarth v. Barlow, 113 App. Div. 510; 99 N. Y. S. 457, 459:

“The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism.”

In that case a communication by a member of the village taxpayers’ association to the president of the village with reference to the propriety of bills presented for audit by the plaintiff, clerk of the board of village trustees, was hele qualifiedly privileged. The court held that:

“The occasion of the communication of the defendant to the president of the village was qualifiedly privileged, which was pleaded as a defense, and the jury should have been charged (if the case be one for the jury) that unless the plaintiff proved by a preponderance of evidence that the words of the defendant were spoken maliciously, such privilege shielded the defendant, and the verdict had to be in his favor; that it would not be enough for the jury to find that the intent attributed by the plaintiff to the defendant was false, but that they must find in addition that the defendant was actuated by a malicious motive in expressing it in order to render a verdict against him.”

'The court held that it was error to charge “that if the jury find from the evidence that the words uttered were such as imputed crime or tended to injure him in his business, that the plaintiff is entitled to a verdict.” See, also, A. L. I., Restatement of Torts, § 598; Previn v. Tenacre, Inc. (C. C. A. 3d, 1933), 70 Fed Rep. (2d) 389.

The processes of democracy require a comprehensive forthright and open discussion of public problems and of the acts and conduct of public servants. So long as the citizen acts in good faith upon reasonable cause and solely out of a desire to serve the public weal his utterances in the nature of Exhibit P-S are privileged. I find that the communication, if libelous, was qualifiedly privileged; that it was made in good faith and without malice and for the purposes giving rise to the privilege.

Judgment for the defendants.


source: Caselaw Access Project

author: Boberson, C. P. J.

license: Public Domain

text:
    Hudson County Court of Common Pleas.
    JULIA HARDT, PETITIONER-APPELLANT, v. JOHN F. CUNNINGHAM, RESPONDENT-APPELLEE.
    Decided November 26, 1945.
    For the petitioner-appellant, David Beriih&im {Edward J. Abromson, of counsel).
    For the respondent-appellee, John (?. Flanigan.

   Boberson, C. P. J.

This is an appeal from a determination and judgment of the Workmen’s Compensation Bureau, dismissing the petition filed by Julia Hardt, dependent widow of Peter Hardt, deceased, for compensation for the death of her said husband resulting from accidental drowning.

The record consists of a stipulation of facts stating that the accident happened on August 7th (or 8th), 1942, resulting in death occurring on the same day due to accidental drowning. Peter Hardt, the deceased, was employed by the respondent on the day in question as captain of a barge. The home port of the barge was in the State of New York. The barge had proceeded from the State of New York to the State of New Jersey and had moored at a dock on the Passaic Biver at Harrison, New Jersey, and had been there a day or so, loading scrap iron or scrap metals, preparatory to moving on to Buffalo, New York. For the purpose solely of the motion to dismiss the petition, it was admitted that the accident arose out of and in the course of the employment. It was stipulated also that the Passaic Elver is a river being navigable waters of the United States. On the day in question the deceased had been in Harrison and was on his way back to the barge. The decedent jumped from the dock or pier of Schiovanni and Bonomo where the barge was being loaded preparatory to its going to Buffalo and had reached the barge in an upright position and lost his footing and fell backward into the water of Passaic Biver, and was drowned. There was a ladder on the barge which could have been taken to the dock and left there to use for coming back again to the barge, but it had not been taken by the deceased when he left the barge to go ashore. The jump was only two or three feet, the barge having sunk down a distance of two or three feet below the level of the dock because of the weight of the metal in it. The center of the barge is where the scrap metal went into a pit or hold and there was a narrow walk about two and a half feet wide around the outer edge of the barge. When the deceased jumped he landed on this two and a half foot walk and lost his equilibrium and instead of going into the pit where the metal was, he fell backward and his head struck one of the pilings.

The only issue in this ease is whether this matter is within the jurisdiction of the Workmen’s Compensation Bureau of the State of New Jersey or should be brought in a court of admiralty. To determine this issue it is necessary to decide whether this accident happened on land or on navigable waters.

My research has failed to find any authority directly in point. One of the eases nearest to it is Union Oil Co. v. Industrial Accident Commission, 295 Pac. Rep. 513; 211 Cal. 398. In that case a captain of an oil barge, used to carry oil to ships and wharves in various parts of San Francisco bay, had left the barge and gone ashore. At about ten P. m. he and a friend went to the wharf where the barge was tied. The deck of the barge was about eighteen inches higher than the level of the wharf and the usual method of getting aboard was to stand on the wharf, grasp the barge’s stanchions, and then step on deck. The barge captain’s friend preceded him and climbed on board in this manner. Shortly after-wards, he heard the captain exclaim, “Oh,” and turning, saw his head disappear over the edge of the wharf and heard a splash. The captain had apparently fallen through the open space between two piles. It was stipulated that the death was due to drowning. In discussing the jurisdictional problem presented by the ease, the court said: “The deceased was a seaman, engaged in maritime work, and died as a result of drowning in navigable waters of the United States. The cause of action for his death would ordinarily come within the admiralty jurisdiction (citing London Guarantee, &c., Co. v. Brooke, 279 U. S. 109; 49 S. Ct. 296; 73 L. Ed. 632). To this rule there is the well settled exception that, if an injury is initiated and consummated on land, it comes within the state jurisdiction. Eespondent commission proceeded upon the theory that Captain Pelle fell from the wharf, and that the injury was therefore initiated and consummated with reference to the wharf and not the barge or the navigable waters. The chief reliance is on the case of T. Smith, & Sons, Inc., v. Taylor, 276 U. S. 179; 48 S. Ct. 228; 72 L. Ed. 520, where an employee at work on a stage resting upon a wharf was struck by a sling operated on the vessel and knocked off the stage into the water. The court said: ‘Plaintiff in error * * * argues that as no claim was made for injuries sustained while deceased was on land and as the suit was solely for death that occurred in the river, the ease is exclusively within the admiralty jurisdiction. But this is a partial view that cannot be sustained. The blow by the sling was what gave rise to the cause of action. It was given and took effect while deceased was upon the land. It was the sole, immediate mid proximate cause of his death. * * * The substance and consummation of the occurrence which gave rise to the cause of action took place on land.’ ” The court affirmed an award in favor of claimants.

In the matter of The Atna, 297 Fed. Rep. 673, the court stated (at p. 675), “when a person is injured in passing over a ladder connecting a vessel with the shore, the admiralty has jurisdiction if he is injured, that is, wronged, before he is entirely free from the ship and has safely reached the shore. If he is passing from the shore to the ship the admiralty has not jurisdiction until he has reached the ship, and is entirely separated from the shore.” The court used the word “safely” commenting on passage from ship to shore, the same rule should apply from shore to ship.

In The Strabo, 98 Fed. Rep. 998, the court stated that the accident commenced on the ship and held that admiralty had jurisdiction.

In The Albion, 123 Fed. Rep. 189, a libel was filed in admiralty. The libelant attempting to board the steamer after dark walked overboard and it was held that the suit could not be maintained in admiralty because the jurisdiction extends only to torts committed afloat upon navigable waters.

In Baldwin v. Linde-Griffith Const. Co., 115 N. J. L. 608; 181 Atl. Rep. 35, cited by counsel, although not a compensation ease but a suit under the Death Act, the court stated “The defendant, however, in support of the judgment below, strongly urges that even admitting that the injury was received on land, nevertheless death occurred in navigable water. This, if true, is wholly immaterial. It was the blow which was received on the coffer dam which gave rise to the cause of action, and the essential character of that cause of action is not altered at all because the decedent was precipitated into navigable water even though his death might have been caused by drowning. * * *

“Since we are of the opinion that the happening in question occurred on land and that it is the place where the accident originates that determines the issue of jurisdiction between the common-law state court and the federal admiralty jurisdiction, it is perhaps unnecessary to consider any other question raised in the briefs.”

In the matter now before the court, the deceased jumped from the dock, landed on the barge in an upright position, lost his equilibrium, fell backward into the water and was drowned. I find that the accident originated on the land where the deceased first exerted the strength to jump and caused his body to move first to the barge momentarily and then to the water. Although it was stipulated that he “reached” the barge and in another place that he “landed” on this barge, I do not find that he reached the barge safely. At most he was there only momentarily on his way from the dock to the water and I do not find that he reached the barge in the usual sense which means he arrived there safely or securely. In view of the foregoing, I am of the opinion that this matter is within the jurisdiction of the Workmen’s Compensation Bureau of this state and that the judgment of the Bureau dismissing the petition should be set aside and the matter should be remanded for further proceedings.


author: Delaney, C. P. J.

text:
    Passaic County Court of Common Pleas.
    JOSEPH DI MARIA, PETITIONER-APPELLEE, v. CURTISS WRIGHT CORP., RESPONDENT-APPELLANT.
    Decided November 23, 1945.
    For the petitioner-appellee, Nathan Rabinowitz and Isadora Rabinowitz.

    For the respondent-appellant, John W. Taylor.

   Delaney, C. P. J.

This is an appeal from a finding of facts and rule for judgment of the Workmen’s Compensation Bureau, allowing an award to petitioner-appellee, hereinafter referred to as petitioner.

Petitioner was employed in sand rolling blades, i. e., smoothing the blade by means of a roller sander operated by compressed air. As the roller sander "turns over,” the roller sanding gun, held by the operator, vibrates. The petitioner, who started to work on this machine on June 21st, 1943, claims that by July 2d, 1943, his hands became so stiff that he reported to and was treated by a Dr. Wallace, physician for respondent-appellant, hereinafter referred to as respondent. Petitioner was given treatment at the plant clinic, such as diathermy and massage, to both hands, and continued to work on the sand rolling machine until the middle of September, 1943. After September he was transferred to a different department as stock selector, though the treatments were continued until October. At present his hands are stiff, he has difficulty in opening them at times, and he cannot close them sufficiently to make a fist in the usual way, or does so with difficulty. His condition was diagnosed as traumatic, chronic, progressive, adhesive teno-synovitis of the flexor tendons of both hands, which Dr. Samuel Kleiner, physician for petitioner, estimated as 15% disability.

Dr. Wallace, for respondent, did not testify, but a report of Dr. Liebovitz, estimating petitioner’s disability as 10% of total was offered into evidence without objection. The deputy commissioner allowed 15% of total.

The contention of respondent is "that petitioner failed to prove that he suffered an 'injury’ by 'accident,’ and the evidence establishes that his disability and condition are 'occupational’ and thus not compensable.”

Taking up this last contention first, wo have come to the conclusion that the petitioner’s condition is not occupational. The medical testimony was that "there are certain individuals who are susceptible to this constant chronic irritation of those tendons of the hands that produce adhesions in the tendon area, which just happened in this particular ease,” and that this condition has appeared during this war in war workers who have used those vibrating guns in all airplane manufacturing plants and other places, and that he has had "quite a few.”

In Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. §12, the court defines occupational disease as “one that from common experience is visited upon persons engaged in a particular occupation, in the usual course of events. It is one incidental to the employment itself, e. g., painters become affected with lead colic or lead poisoning; telephone operators develop ear trouble; phosphorus poisoning is common to those who work in the manufacture of fireworks. These examples might be multiplied. In such instances they are injuries or diseases common to workers in those particular trades, and, manifestly, do not arise by accident as the term 'accident’ is commonly understood.”

Where a person receives an injury because he is “susceptible” to a cause, that injury can hardly be called occupational, which is a condition common to all who engage in the work.

The report of Dr. Liebovitz, offered into evidence with consent of counsel, reads, “It is a rare condition and it may be due to repeated trauma in which fibrotic changes are set up, following small pinpoint hemorrhages.”

Though this condition has become noticed during this war among workers who use vibrating machines, the operator has to have a susceptibility before the constant vibration causes injury. This cannot be said to be a common experience, where the injury is due to vibration plus an individual and peculiar reaction to it.. If the injury were due to vibration alone, it would be an occupational disease. The stiffness resulting in the petitioner’s hands became apparent within eleven days, including Sundays, and is a condition which is stationary, according to medical testimony. The court has no statistics as to the number of people so affected in this occupation, and, “No testimony was offered that any other employee was similarly affected,” Davies v. Onyx Oil and Resin Co., 130 N. J. L. 381, and without this evidence, in the light of the medical testimony we can only reach the conclusion that the injury suffered by petitioner is peculiar and individual, and is therefore not occupational.

The respondent also contends that the petitioner did not sustain a compensable accident because no definite or specific time or occasion can be placed, and supports this contention by citing Liondale Bleach Works v. Riker, 85 N. J. L. 426, and Smith v. International High Speed Co., 98 Id. 574. We have, however, the later cases of Davies v. Onyx Oil and Resin Co., supra, where the petitioner suffered three attacks approximately six months apart, caused by the inhaling of noxious fumes over a period of time, in which the court said, “Exposure to the fumes probably predisposed him to the condition which resulted * * *. The contact with or density of the fumes on these occasions when he suffered as described were accidents;” and the case of Mecca v. Phoenix Brass Fittings Corp., 124 Id. 6.

In the instant case the petitioner testified that “At this particular job I started on June 21st, 1948, and I noticed it [the stiffness] coming on and didn’t report it until July 2nd of the same year,” and that on a particular day, July 2nd, “I felt it [his hands] get pretty tight and couldn’t use it,” so that he reported his condition and was given treatments. It is on this date, July 2nd, that petitioner places tile date of the accident, and under the ruling of Davies v. Onyx Oil and Resin Co., supra, we concur.

The finding of the deputy commissioner is affirmed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GRACE BROWN, PETITIONER, v. PHILMAC SPORTSWEAR CO., RESPONDENT.
    Decided November 26, 1945.
    For the petitioner, Robert Queen.

    For the respondent, John W. Taylor (Arthur J. Blake, appearing).
   Petitioner alleged that on December 31st, 1942, she was injured while working for respondent. By its answer respondent denied that tbp. petitioner suffered an injury by accident arising out of and in the eourse of her employment. At the hearing counsel stipulated that the question of whether the petitioner sustained an accident arising out of and in the course of her employment he first submitted, before inquiry into the nature and extent of any disability resulting therefrom. At the conclusion of petitioner’s case on this point, respondent moved to dismiss the petition.

It appears from the testimony that the petitioner and her daughter were each employed by the respondent; that on the day in question an altercation arose between two other employees, Jean and Sarah, over a personal issue, terminating in a fight between the two, and’causing such excitement among the one hundred odd female employees that the foreman summoned help from another department and ordered all to leave the premises. During the melee the employees were milling around and Leila stated she climbed upon a table and was “looking on.” After the fight was stopped petitioner took Leila, her daughter, and Sarah, one of the participants in the fight, to the table where she had been working, obtained their hats and coats, when the big boss, Phil, came and called to the two girls, took hold of each and started to put them out, at which time the foreman ran over and took hold of Sarah, Phil retaining his hold on Leila. At this point the petitioner attempted to wrest her daughter from the grasp of Phil, whereupon she stated that he kicked her, knocking her to the floor and inflicting the injuries resulting in the disability for which compensation is sought. The act of the petitioner in attempting to wrest her daughter was described by the petitioner as “I pulled her away,” by Leila as “She pulled me away,” by Sarah as “Mrs. Brown ran over and grabbed Leila from Phil,” and by another witness as “Mrs. Brown tried to get Leila from Phil.” The affair reached such proportions that those in authority at the respondent plant summoned the police. It was described by several witnesses as “quite a big excitement” and “never seen anything like it.”

Under these facts, did the petitioner meet with an accident that arose out of and in the course of her employment. It has been determined that an assault committed upon a workman while in the performance of his duties constitutes an accident within the meaning of the Workmen’s Compensation Act, N. J. S. A. 34:15-1, et seq. Emerick v. Slavonian Greek Catholic Union, 93 N. J. L. 282; 108 Atl. Rep. 223; Barrese v. Standard Silk and Dyeing Co., 110 N. J. L. 565; 166 Atl. Rep. 179; King v. Camden Paving Co., 11 N. J. Mis. R. 762; 168 Atl. Rep. 167. Likewise where the assault was intentionally committed, where it ean be shown that the injured was in the performance of his work and was not the aggressor. Geltman v. Reliable Linen Co., 128 N. J. L. 443; 25 Atl. Rep. (2d) 894; Winter v. U. S. Gypsum Co., 20 N. J. Mis. R. 425; 28 Atl. Rep. (2d) 545; Mayes v. Walter Kidde Co., 21 N. J. Mis. R. 19; 29 Atl. Rep. (2d) 722. On the other hand, where the assault is the result of horse-play (Hulley v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007; Mountain Ice Co. v. McNeil, 91 N. J. L. 528; 103 Atl. Rep. 184), or where the assault was actuated by personal causes (Yoshida v. Nichols, 12 N. J. Mis. R. 197; 170 Atl. Rep. 824; Giles v. W. E. Beverage Co., 133 N. J. L. 137; 43 Atl. Rep. (2d) 286), or where the injured employee is the aggressor (Merkel v. Gillespie Co., 10 N. J. Mis. R. 1081; 162 Atl. Rep. 250), or where the employee provokes the assault (Lindsay v. Hoffman Beverage Co., 19 N. J. Mis. R. 356; 19 Atl. Rep. (2d) 824), compensation is denied.

From a careful reading of the law, I think it may fairly be said that an employee owes a certain duty to his employer to use reasonable effort in the furtherance of the business of his employer, and likewise a foreman is obligated to a greater degree by reason of the very position he occupies. ISTor do I believe it ean be doubted that upon a person in a supervisory capacity rests the responsibility of endeavoring to «maintain reasonably efficient performance of the business of his employer in an orderly manner by those over whom he has. supervision.

IJpon a careful consideration of the facts and a review of the law, it is my conclusion that the petitioner in attempting to wrest her daughter from the grasp of the foreman, prompted though she may have been by the maternal instinct of protecting her child, was not acting either in the performance of her duties nor in the furtherance of the business of her employer. On the contrary, I believe the facts clearly indicate, and I find that her act constituted an attempted interference in the performance by the foreman of his duties, and that she thereby became the aggressor by provoking the assault, and therefore did not suffer an accident, within the meaning of the Workmen’s Compensation Act, that arose out of and in the course of her employment.

It is, therefore, * * * ordered that the petition filed herein be and the same is hereby dismissed.

E. Wayne Kraft,

Deputy Commissioner.


author: Delmar, C. P. J.

text:
    Bergen County Court of Common Pleas.
    MICHAEL A. TIRAK, PETITIONER-APPELLEE, v. FORD MOTOR COMPANY, RESPONDENT-APPELLANT.
    Decided October 17, 1945.
    Por the petitioner-appellee, Roihbari, Greenstone & Harris (Herbert E. Greenstone).
    Por the respondent-appellant, McCarter, English & Egner (Verling G. Entenum).

   Delmar, C. P. J.

Prom a judgment of the Workmen’s Compensation Bnreau in favor of the petitioner-appellee, the respondent-appellant appealed to this court.

After an examination of the transcript of the record and the briefs ©f counsel and their arguments, I have come to the ©j0els3ic.il that the judgment should be rendered in favor of the respondent-appellant.

The record shows that Michael A. Tirak suffered two compensable accidents, one while in the employ of the Pord Motor Company and another one after filing his petition for compensation while in the employ of J. Eich Steers Company. Both accidents resulted in injuries to his back in the same part of the saero-iliac region. As the result of the first injury he lost no time from work, excepting a part of a day when he was receiving treatment from the company’s doctor. He continued in the employ of the Eord Motor Company for three months doing lighter work than he was oceustomed to doing, and was then discharged as a result of a general layoff. He then obtained employment with the Steer Company putting points on piles with an axe. He suffered occasional pain which did not prevent him from doing his work until about a month later when, while swinging an axe, he felt a crippling pain in his back which necessitated a layoff for four or five days and as a result of which he has since been unable to do heavy work.

As a result of the Eord Motor Company accident he was treated by Dr. Mockett, the company physician, who testified that his examination disclosed no objective findings and was entirely negative "except for a complaint of pain in the right lumbar region on right side bending.” He was also treated by his own doctor, namely, Dr. Seyler, who did not testify. Other than the testimony of Mr. Tirak and Dr. Mockett, the record consists of the testimony of two experts for the petitioner and two for the respondent.

Admittedly the petitioner received an injury of a permanent nature for which he is entitled to be compensated, however, I think the weight of the testimony is to the effect that this injury occurred as the result of the accident suffered while in the employ of the Steer Company. I think that the law laid down in the case of Silberman v. National Egg and Product Co., 131 N. J. L. 286; 35 Atl. Rep. (2d) 877 (opinion by Mr. Justice Heher) is applicable to a case of this sort.

The petitioner-appellee having failed to prove by the weight of the evidence that his injuries, under the law, are compensable by the respondent-appellant, judgment should go in favor of the latter.


author: Btjbling, C. C. J.

text:
    Atlantic County Circuit Court.
    RITA DeCICCO, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN A. DeCICCO, DECEASED, PLAINTIFF, v. MARLOU HOLDING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided November 20, 1945.
    For the plaintiff, John B. Baratta.

    For the defendant, DeBrier & Shahadi (by George T. Naame).

   Btjbling, C. C. J.

This is a motion to strike the amended complaint on the ground that: “The complaint discloses no cause of action, in that, said cause is based upon the doctrine of res ipsa loquitur and no facts are set forth in which this doctrine may be invoked.” By stipulation the notice and reason applied to the complaint as amended.

In a motion of this character, all facts adequately alleged in the complaint must be accepted as true, as well as all inferences of fact which can be logically and legitimately drawn from them. Campbell v. The Pure Oil Co. (Supreme Court, 1937), 15 N. J. Mis. R. 723; 194 Atl. Rep. 873.

The pertinent facts as alleged in the amended complaint are found in paragraphs 1, 2 and 3 of the amended complaint as follows:

“1. At all the times hereinafter mentioned and for a long period of time prior thereto, the defendant was the owner, operator and entity in control of a certain apartment building, known as Loumar Apartments, situate on Pacific Avenue, opposite the foot of Ocean Avenue in the City of Atlantic City, County of Atlantic and State of Hew Jersey.

“2. At all the time hereinafter mentioned the plaintiff’s intestate was an air raid warden in and about the course of his duties along and upon the said Pacific Avenue, a public highway, in the city, county and state aforesaid.

“3. On September 14th, 1944, plaintiff’s intestate, while succoring distressed way-farers in a storm then in progress and while in the course of his duties as aforesaid, was struck by a piece of defendant’s said building, which had become loosened and detached and fell therefrom; and from his injuries so received died.”

A fallen object is the common circumstance calling for the invocation and application of the doctrine of res ipsa loquitur. Cleary v. Camden (Supreme Court, 1937), 118 N. J. L. 215 (at p. 219); 192 Atl. Rep. 29; affirmed (Court of Errors and Appeals, 1937), 119 N. J. L. 387; 196 Atl. Rep. 455.

In Soriero v. Pennsylvania Railroad Co. (Court of Errors and Appeals, 1914), 86 N. J. L. 642 (at p. 643); 92 Atl. Rep. 604, 605, which involved the falling of a stone from the wall of the defendant upon the plaintiff, the rule is stated thus:

“The gravamen of the allegation imposing liability is that the plaintiff was lawfully upon the public highway, when a stone, due to defendant’s carelessness in maintenance, fell, causing the injury complained of. That situation brings the case within the familiar principle which attributes negligence to an abutting owner of property, who so negligently manages the same that a passerby lawfully upon the highway is injured.

“Addison states the principle thus: ‘Every occupier of a house adjoining a highway is responsible for injuries to a passerby arising from things falling from the house into the streets, unless he can show that the fall arose from storm or tempest, or some inevitable accident. 1 Add. Torts 253 and cases cited.

“In 29 Cyc. 593, it is stated that ‘the doctrine under consideration has been applied in cases of materials or articles falling from buildings or other structures on to passersby on a public street; and the unexplained falling of a building or other structure creates a presumption of negligence.’ ”

The defendant maintains the court should take judicial notice that on the 14th day of September, 1944, there was a storm in Atlantic City of hurricane or tempest type and in doing so that the doctrine is not applicable and since there are no special allegations of actionable negligence, the cause of action must fall since it is not established that the accident occurred in the ordinary course of things.

This contention overlooks the fact that it is the falling of a piece of defendant’s building which is the occurrence that does not happen in the ordinary course of things. This being so, the happening of the accident justifies the inference of the want of due care or negligence, the effect of which is described in Galbraith v. Smith (Supreme Court, 1938), 120 N. J. L. 515 (at p. 516) ; 1 Atl. Rep. (2d) 34, 35:

“True, defendant is always entitled to go forward, as she did in the case at bar, with explanatory testimony to negative the inference of negligence, but the inference remains nonetheless, and should be considered by the trier of the facts. Thus, under the circumstances here exhibited, it might well have been that, notwithstanding a consideration of the inference raised by the invocation of the doctrine of res ipsa loquitur, the trier of the facts might have concluded that defendant had exercised due care and thus incurred no liability. But the conceded failure to consider that inference, along with the other proved facts, was harmful and prejudicial error.”

Since the storm of September 14th, 1944, in Atlantic City was of relatively short duration as to period of high wind and its intensity and velocity, evidence of the circumstances as they existed at the time of the alleged event comes within the category of explanatory testimony to negative the inference.

Further, however, in this class of eases where it is contended that the plaintiff’s damages were occasioned by an act of God, the rule has been stated thus:

“The rule as to damages for injury resulting from negligence concurrent with inevitable accident is thus stated in 29 Gyc. 504:

“ ‘Nevertheless the rule imposing liability on defendant, although another efficient cause concurs with- defendant’s negligence, applies where an accident or act of God is the concurring cause. And the same is true where the primary cause was an accident for which defendant was not liable if the injury would not have resulted but for his negligence, or where by the exercise of ordinary care the result might have been essentially mitigated.’ ” Clark v. Public Service Electric Co. (Court of Errors and Appeals, 1914), 86 N. J. L. 144 (at p. 154); 91 Atl. Rep. 83, 86, and in Meyer Brothers, &c., Co. v. National Malting Co. (Supreme Court, 1940), 124 N. J. L. 321 (at p. 323); 11 Atl. Rep. 840: “Moreover the rule imposing liability on defendant, although another efficient cause concurs with defendant’s negligence, applies where an act of God is the concurring cause.”

So that, since it is not shown conclusively that the act of God is the sole efficient cause of damage then it becomes a factual question as to whether the act of God is the sole efficient cause and whether the defendant’s negligence is the sole or a concurring, efficient cause within the rule that requires the owner of a building in such a situation to comply with the following duty: .' ''' •

"That rule is circumscribed by the limitation of reasonable care to protect the public against defective construction, or disrepair of property adjoining the public highway, and is co-equal only with the care required of the ordinary prudent man under similar circumstances.” Soriero v. Pennsylvania Railroad Co., 86 N. J. L. (at p. 646); 92 Atl. Rep. 604.

The burden of proof rests throughout, however, upon the plaintiff to establish actionable negligence. Cleary v. City of Camden, 118 N. J. L. (at p. 223); 192 Atl. Rep. 29; Klatt v. Hoboken Bank for Savings (Supreme Court, 1941), 126 N. J. L. 96 (at p. 98); 18 Atl Rep. (2d) 602.

The motion is denied, and an appropriate rule may be presented.


author: Burling, C. C. J. and S. 0. C.

text:
    MICHAEL OKIN AND ARTHUR T. OKIN, T/A GARRIS GALLERIES, PLAINTIFFS, v. RAILWAY EXPRESS AGENCY, A DELAWARE CORPORATION, DEFENDANT.
    Decided December 8, 1945.

      Eor the plaintiffs, Altman & Baclcer (by Chaim U. Sandler.).

      For the defendant, S. Paul Bidgway.

   Burling, C. C. J. and S. 0. C.

Motion has been made by the plaintiffs for an order:

(a) Striking out, severally and jointly:

“A. The entire answer;

“B. The general denial contained in the answer;

“C. Each affirmative or separate defense contained in the answer.”

Upon the following grounds:

“1. That same are untrue in fact and sham.

“2. That same are insufficient in law to constitute a defense or defenses to the complaint.

“3. That same are frivolous.

“4. That same are repetitious.

“5. That same are argumentative.

“6. That same are so framed as to embarrass or delay a fair trial.”

(b) And for summary judgment.

Since there is no common law duty devolving upon an express company or other common carrier to act as the collecting agent of the shipper, such obligation arises by contract, express or implied. 13 C. J. S., Carriers, 382, § 186.

The duty of the carrier has recently been defined in S. B. Penick & Co. v. Triple “M" Trans. Co. (Supreme Court, 1943), 131 N. J. L. 114 (at p. 115); 34 Atl. Rep. (2d) 898, 899, as follows:

“When a carrier makes a contract to collect on delivery, it stands with reference to it just as any other agent and for breach of its duty in the collection of the price is liable for whatever it would have collected if the duty had been fulfilled, Joseph Mogul, Inc., v. C. Lewis Lavine, Inc., 247 N. Y. 20; 159 N. E. Rep. 708.”

The complaint alleges an agreement in paragraph 2 thereof as follows:

“2. On or about the date aforesaid plaintiffs, delivered to defendant and defendant accepted from said plaintiffs at Atlantic City, New Jersey, a package containing a diamond ring under an agreement wherein and whereby defendant contracted to transport said package and deliver same to one Ernest S. Softley, Scranton, Pennsylvania, for a reward, and defendant further agreed, without reservation, to collect on the delivery of the ring aforesaid to the said Ernest S. Softley the sum of three hundred ten ($310.00) dollars for and on account of the plaintiffs, and to forthwith remit the said amount to the plaintiffs.”

Its breach is attributed by the plaintiff to defendant’s failure to collect and remit after delivery.

Defendant’s general denial in face of facts alleged in its affirmative defenses is obviously sham in part.

The first affirmative defense alleges shipment was made and accepted under terms of an express receipt. By stipulation of parties at time of argument, photostatic copy thereof was produced and it should be considered as if incorporated in the answer. The receipt was dated September 19th, 1944.

The affirmative defenses, five in number, are erected upon two propositions:

(a) Defenses 1 and 3 hinge upon the question of examination before payment by the consignee.

(b) Defenses 2, part of 3, 4 and 5 are based upon the alleged fraud and breach of warranty of plaintiff, in relation to their contract with the consignee.

The Uniform Sales of Goods Law provides: B. 8. 46:30-53; N. J-. S. A. 46:3"0-53—Examination of goods: *******

(3) Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words "collect on delivery,” or otherwise, the buyer is not entitled to examine the goods before payment of the price, in the absence of agreement permitting such examination.

No positive provision for examination by consignee is contained in the express receipt and the only reference thereto is contained in the following language:

“4. Unless caused m -whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage or delay caused by— * * *

e The examination by, or partial delivery to the consignee of C O D shipments. * *

The complaint alleges that as between the defendant and the plaintiffs the contract of shipment was without reservation as to a collection upon delivery. Assuming the carrier was justified in permitting inspection by the consignee within the terms of the contract of shipment, the consignee was under a duty to pay or return the goods. 13 C. J. 8., Carriers, 384, § 186; Rolla Produce Co. v. American Railway Express Co. (Springfield Court of Appeals, Missouri, 1920), 205 Mo. App. 646; 226 S. W. Rep. 582. The carrier in allowing inspection by the consignee should have so provided.

Upon a c. o. d, shipment, the carrier cannot make absolute delivery without collecting and leave the shipper to his recourse against the consignee. That is the very situation which a c. o. d. is designed to protect. The defendant violated its contract.

Eeliance is made by the defendant upon the case of Herrick v. Gallagher (New York Supreme Court, 1870), 60 Barb. 566. The facts in that case are to be distinguished from the case at bar. In that case it was admitted by all concerned that the contents of the shipment were worthless and a fraud perpetrated by the consignor. In the present case, if treated as fraudulent, duty rested upon the consignee to rescind and to return the shipment and bring suit for recovery of the original payment made on account against the consignor, or tender return of the goods concurrently with the return of part payment by seller. R. 8. 46:30—75(4); N. J. 8. A. 46:30-75(4); Auto Brokerage Co. v. Ullrich (Court of Errors, 1925), 102 N. J. L. 341 (at p. 343); 131 Atl. Rep. 901. He elected to retain the shipment with full knowledge of his alleged fraudulent conduct of plaintiffs. Kammerer v. Schuten (Court of Chancery, 1926), 99 N. J. Eq. 578 (at p. 582); 133 Atl. Rep. 483. Question of public policy to refuse aid to one who is alleged to have been fraudulent is not involved.

The general denial is sham. State v. Owens (Supreme Court, 1945), 23 N. J. Mis. R. 122 (at p. 126); 41 Atl. Rep. (2d) 809. The affirmative defenses are frivolous. The answer will be stricken.

Since this is a Supreme Court issue, as Supreme Court Commissioner no power exists to make an order for summary judgment. The pertinent practice is referred to in State v. Owens, 23 N. J. Mis. R. (at p. 132); 41 Atl. Rep. (2d) 809.

Appropriate rule may be presented.


author: Parker, J.

text:
    JENNIE FASSO, PROSECUTOR, v. ANTHONY SENERCHIA AND PEARL SENERCHIA, HIS WIFE, DEFENDANTS.
    Decided December 26, 1945.
    Before Justice Parker, at chambers.
    Por the prosecutor, Julius Fielo.

   Parker, J.

This is an action of certiorari argued before the undersigned sitting as a single Justice of the Supreme Court pursuant to statute. • The writ brings up a judgment of dispossession in a landlord and tenant case, entered in the District Court of the Essex County Judicial District on October 22d, 1945.

The attack on this judgment of dispossession is in substance and effect that the landlord’s original affidavit is defective on its face because it alleges that the tenancy originated by agreement between the parties the 1st day of July, 1945, the tenancy to be from month to month, but that the landlords notice to terminate that tenancy was dated and served on June 28th, 1945, three days before the relation of landlord and tenant was created.

ISTotwithstanding this situation, the District Court Judge seems to have held—at least by implication—that such notice was a valid notice and that the tenancy thereby was terminated on October 1st, 1945.

I am unable to take this view. It is my judgment that if a notice to terminate a tenancy is to be given by either party to the other it should be given at some time during the period when the tenancy is actually in effect and not at a time when no relation of landlord and tenant exists, and apparently before it has begun to exist.

This view leads to a judgment setting aside the judgment of dispossession of the District Court, with costs.


text:
    Passaic County Court of Common Pleas.
    SAM COVITZ, PETITIONER-APPELLEE, v. CARROLL BAKERY, RESPONDENT-APPELLANT.
    Decided January 3, 1946.
    Por the petitioner-appellee, Marcus & Levy.

    Por the respondent-appellant, Edward DeSevo.

   Delaney, C. P. J.

This is a compensation ease involving a hernia. The petitioner seeks compensation under the Workmen’s Compensation Act (R. 8. 34:15-12, subd. x; N. J. 8. A. 34:15—12, subd. x), which states that “inguinal hernia is a disease which ordinarily develops gradually, being very rarely the result of an accident.”

Under the above statute only “real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall,” is compensable; or “unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain that, first, the descent of the hernia immediately followed the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employee was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia * * *; fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.” It is the second type under which this petitioner seeks compensation.

The petitioner-appellee, hereinafter called the petitioner, was employed in the bakery of respondent-appellant, hereinafter called the respondent, as a truck driver from 3 A. M. to 7:00 or 7:30 A. sr., after which time he worked inside as a baker’s helper. One of his duties as a baker’s helper was each day to “get in” the flour, twelve to fourteen hags, each weighing 100 pounds, for the night man. Early in the afternoon of the day of the alleged accident, as the petitioner was lifting the last bag of flour off the floor, he felt pain in the left groin and was forced to drop the flour to the floor. He went to Mr. Eabinowitz, one of the owners of the respondent, in his employer’s office, where he reported the accident to Mr. Eabinowitz, who advised him to see a doctor and called Dr. Bohl, but was unable to reach this physician, whose office hours wore not until the evening.

According to the testimony of the petitioner, he examined himself in Mr. Eabinowitz’s office and found on his left groin a lump the size of a “nickle or a prune” and showed it to Mr. Eabinowitz. Mr. Eabinowitz did not remember the incident, though he did not contradict it. The petitioner also testified that he lay down on a couch in Mr. Eabinowitz’s office for two to two and a half hours. Mr. Eabinowitz did not remember whether or not the petitioner lay down in his office at any 'time, hut said that he could have done so, for Mr. Eabinowitz is not at any one particular time very long in the office.

Mr. Babinowitz, however, remembered the petitioner’s reporting to him of the sudden pain on lifting a bag of flour and said that the petitioner looked and acted like a man in pain.

This is the testimony as to the severe pain, prostration, notice by claimant and communication to employer, and there is no testimony to contradict it.

There is conflicting evidence as to the date of the accident, but though the petitioner could not remember at the hearing the exact date, his testimony was that he went to Dr. Bohl’s office the night of the accident, that the doctor examined him and told him he needed an operation or a truss. There is no contradiction that the petitioner consulted the doctor only once. The doctor testified that the petitioner told him the night he reported, which the doctor said was January 26th, that petitioner’s left lower abdomen started to pain him on January 12th, that he went home, did not go to a doctor, and went to work the next day. Yet on cross-examination we have the following testimony from the doctor:

“Q. Mow, you have, Doctor, here on your paid bill, Doctor, ‘date of accident 1/12/44/ isn’t that correct? A. That’s right” (meaning that is what the bill reads, not that what it reads is correct).

“Q. And you have, Doctor, on this sheet, ‘date of accident 1/12/44’? A. That’s right.”

The doctor, reading from his own record, further testified:

“A. ‘When did you first treat the claimant? 1/12/44/ which I stated before.”

It would seem that this testimony shows more than strange coincidence. That the doctor might have been in error on one of the dates we can understand, but that he was consistently in error on all of them we think most unlikely.

This court finds as a fact that the date of the accident was January 12th, and that the petitioner reported to the physician within twenty-four hours, as is required by the statute.

There is one other conflict in the testimony, and that is as to the immediate descent of the hernia. We have the consulting doctor’s opinion that the hernia was one “not of recent origin” and “a hernia of long standing.” As against this we have the petitioner’s claim that the sndden pain and descent occurred within a very short time and his story to the doctor the night he reported to him, as evidenced by this testimony:

“Q. And also in question sixteen [referring to the doctor’s record] with respect to history or evidence, he [the petitioner] stated that he did not have the lump before and it did not hurt him. You did not mention that before, did you, Doctor? A. I wasn’t asked the question.”

Having accepted January 12th as the date of the accident and that the petitioner reported to the doctor that same night, we can only conclude that there was the immediate descent of the hernia following the cause, as is required by the statute.

To sift truth from confusing and conflicting testimony is always difficult, but we find that the proof here, though contradicted and controverted, is “convincing.” In the words of Chief Justice Brogan in DiMieri v. Metafield, 126 N. J. L. 484; 20 Atl. Rep. (2d) 39, 41:

“The petitioner must prove that the hernia is the immediate result (Cf. Borodaeff v. Province, &c., 109 N. J. L. 25; 160 Atl. Rep. 513; affirmed, 110 N. J. L. 20; 163 Atl. Rep. 892) of a sudden effort or strain and the proof of the five requirements must be such as will reasonably negative the inference or conclusion that it was congenital or of slow development or caused by disease rather than an untoward incident. Consequently it is unimportant whether the conclusive proof required by the statute is challenged or not— that it be contradicted or not—so long as it leaves the mind of the fact finder convinced that the hernia resulted not from disease or cor genital weakness but immediately from sudden strain or effort in the course of the employment.”

Once we accept the date of January 12th as the date of the accident, and January 12th as the date of the petitioner’s visit to the consulting physician, there is no other conclusion but that the petitioner has established a compensable claim under the statute, R. S. 34:15-12, subd. x; N. J. S. A. 34:15-12, subd. x.

The judgment of the Y/orkmen’s Compensation Bureau is affirmed.


text:
    Passaic County Court of Common Pleas.
    LEONORA SCHUMACHER, PETITIONER-APPELLEE, v. WRIGHT AERONAUTICAL CORPORATION, RESPONDENT-APPELLANT.
    Decided January 15, 1946.
    For the petitioner-appellee, George F. Losche.

    For the respondent-appellant, J ohn TP. Taylor.

   Delaney, C. P. J.

In this compensation ease, petitionerappellee, hereinafter called the petitioner, claims compensation for an operation which she alleges was made necessary because her work aggravated an already existing physical condition—Azarowicz v. Metropolitan Beef Co., 118 N. J. L. 89; 191 Atl. Rep. 483; Matthews Construction Co. v. Ranallo, 13 N. J. Mis. R. 878; 181 Atl. Rep. 901; affirmed, 117 N. J. L. 148; 187 Atl. Rep. 372; Dougherty v. Miller, 14 N. J. Mis. R. 229; 183 Atl. Rep. 904; affirmed, 117 N. J. L. 454; 189 Atl. Rep. 137; and the questions involved are, did petitioner sustain the burden of proving an injury by accident arising out of and in the course of her employment? and did said injury result in the condition for which she claims compensation?

Petitioner was engaged by respondent-appellant, hereinafter called the respondent, a manufacturer of airplane motors, as a tester, which necessitated the setting up of an engine by hoisting it to a stand. The hoisting of the engine requires approximately a 7o-pound pressure, which the operator exerts by pulling on the hoist attached to the engine. The operator starts in an upright position and pulls until she is in a squatting position, feet about one and one-half to two feet apart.

On September 8th, twenty days before the alleged injury, the petitioner had consulted her physician, Dr. Pindar, about pains in her lower abdomen and had been treated for a retroverted uterus. She was given conservative routine treatment twice a week, of packing, to bring down the swelling of the organ and to replace it into position. The series of treatments was not completed, because on September 28th petitioner’s condition was worse and the history of fainting spells so bad that Dr. Pindar advised an operation which, after consultation with a specialist, was performed.

On the morning of the 28th, as petitioner was hoisting an engine into place, she felt very severe pain, as if “everything were falling out.” She went to the control room, sat upon a stool, and shortly afterwards fainted. She was carried to the plant hospital at 8:25 A. m. and at 11 A. m. sent home in the plant ambulance. She dressed, was driven to Dr. Pindar’s office, where she was in a state of shock. She does not remember being taken from the control room to the hospital. She had had fainting spells on the 21st and 23d, caused by pressure on the ovary.

There is contradictory testimony as to whether or not the petitioner worked the morning of the alleged injury. Petitioner testified that she reported to work at the usual time, 7:15, that she was feeling all right until she started to hoist the engine. Her supervisor testified that she reported to his desk late, at 7:35, said she was not feeling well, and that he sent her to work in the control room, to do pencil work. About twenty minutes later he walked into the control room and found petitioner in a faint; that her clothes were clean. A fellow tester testified that petitioner’s clothes were dirty and “everything about her was an indication that she had been working. I mean, your hair gets messed up, your face and hands get dirty; your clothes are dirty—anything coming in contact with the hoist.”

The plant records are definitely not dispositive as to whether the petitioner did or did not hoist the engine on the 28th. The testimony of the other witnesses is no aid in establishing this point.

The petitioner’s contention is that the hoisting of the engine on the 28th aggravated her condition and necessitated an operation. Dr. Pindar testified that the retroversion was more marked on the 28th and that its condition was aggravated by the work petitioner did, for any pulling, lifting, or shoving had a natural tendency to relax the ligaments.

Dr. Bohl testified for the respondent and said that petitioner’s work had no causal connection with her operation, for in pulling as she did she did not use ligaments which support the uterus. He accounts for the acuteness of her condition on the 28th as due to a rundown condition.

Dr. Meneve, a gynecologist, testified as an expert for respondent, and said that in his opinion strain on lifting would not be reflected on the uterine ligaments; that retroversion of the uterus is “progressive” and does not occur spontaneously; that there was no causal connection between her work and her condition on the 28th, because “her uterus wasn’t any more retroverted before the accident than it was after the accident or vice versa; she had a retroversion.” How, these two statements seem contradictory, for if this condition is “progressive,” how can a physician say it can be no more retroverted? The petitioner’s consulting and attending physician, besides, testified that on the 28th the retroversion was more marked.

Where there is contradictory medical testimony, it is reasonable to give greater weight to the consulting physician’s testimony, especially where, as here, she was also the treating physician and knew the petitioner’s condition before the date of the accident. Markiewicz v. International Milk Co., Inc., 19 N. J. Mis. R. 57; 17 Atl. Rep. (2d) 158; Dunn v. Atlantic City, 120 N. J. L. 141; 199 Atl. Rep. 5; affirmed, 121 N. J. L. 588; 3 Atl. Rep. (2d) 583.

We find that the weight of the evidence establishes the fact that petitioner did report to work that morning in her usual capacity of engine tester and was so engaged until she became unable to continue, and, therefore, she sustained the burden of proving an injury by accident arising out of and in the course of her employment, and that that injury necessitated the operation for which she claims compensation.

As to the award given by the deputy commissioner, both temporary and permanent, we find that there is testimony to support his findings.

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


author: Kalteissen, C. P. J.

text:
    Middlesex County Court of Common Pleas.
    IRENE JORGENSEN, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION OF THE STATE OF NEW YORK, DEFENDANT.
    Decided December 21, 1945.
    Por the plaintiff, David I. Stepacoff.

    Por the defendant, Clifford I. Voorhees.

   Kalteissen, C. P. J.

On August 3d, 1936, two policies of insurance were issued on the life of the late Wilbur A. Jorgensen, husband of the plaintiff. The plaintiff seeks to enforce payment under the accidental death benefit clause of each of the policies. The difference of opinion is with reference to the interpretation to be given the following, which appears under the accidental death benefit section of each of the policies, "no accidental death benefit will be paid if the death of the insured is the result of self-destruction, or while the insured is in military or naval service in time of war.”

The late Wilbur A. Jorgensen was a corporal in the Military Police Corps engaged on town patrol at Bangalore, India, on October 18th, 1944, and while operating a motorcjmle on patrol, an accident occurred, which resulted in his death. Was the deceased “in military or naval service in time of war?” A person is in military service from the time he is sworn in. After he is inducted, his movements are definitely governed by others, and not by himself. This is certainly so while he is on active duty. The clause in the policy is unambiguous, and is definitely conditioned upon status; and not the nature of the deceased’s activity.

There is no question but that all conditions or exceptions in a policy which tend to limit the liability of the insurer, should be construed most strongly against the party preparing the contract for whose benefit they are inserted, but it is a well settled rule that in construing an insurance contract, which by reason of ambiguities is capable of two reasonable interpretations, that interpretation will be adopted which is most favorable to the insured. However, there is also a well settled rule, that if the clause or clauses are plain and unambiguous, no construing would be necessary, and there could be no interpretation but one—they must be governed by the words used, and no interpretation can be written in. This is true when the clause or clauses are not open to more than one interpretation.

The insured, while not engaged in actual combat, was definitely according to the governmental reports, performing part of his duties riding a motorcycle on town patrol. There is therefore, a definite causal relation between the military service and his death. It is certainly most unlikely that the deceased would be in Bangalore, India, were it npt for the fact that he was in military service.

Counsel for plaintiff and defendant has furnished the court with exhaustive and very helpful briefs. They discuss many of the eases that have been decided, and many of the cases cited are among the leading cases in point. The court feels that because of the clarity of the issue in the instant case, that it is unnecessary to mention the eases applicable to the points in issue in this opinion.

It is the court’s opinion, after having carefully listened to the arguments of counsel and studied the briefs submitted, that the assured was “in military service in time of war,” at the time of the accident, resulting in his death. Judgment is rendered in favor of the defendant.


text:
    Passaic County Court of Common Pleas.
    FRANK BUDREVIE, PETITIONER-APPELLANT, v. WRIGHT AERONAUTICAL CORPORATION, RESPONDENT-APPELLEE.
    Decided January 15, 1946.
    For the petitioner-appellant, Isadore Rdbinowitz•
    For the respondent-appellee, John W. Taylor.

   Delaney, C. P. J.

This is a compensation case dealing with horseplay as the cause of the accident. Petitioner-appellant, hereinafter called petitioner, with six or seven other employees, was riding on an elevator in respondentappellee’s factory. After lunch, about twelve-thirty, petitioner got on the elevator in the basement to ascend to his work on the second floor, in company with these other employees, all men. The elevator was crowded, containing barrels of garbage and boxes, besides the employees, Petitioner, who was standing in the front of the elevator, was pushed, as he concedes in his brief, “intentionally in a spirit of fun” by a fellow employee, and slipped so that his leg was caught between the elevator and shaft and broken before the elevator eonld be stopped.

The contention of the petitioner is that this accident, concededly caused by horseplay, is compensable because the condition of the elevator was a contributing cause without which the accident would not have happened. The petitioner claims to have slipped from the shove because of oil on the floor of the elevator and on his shoes. There was no gate on the elevator.

In his brief, petitioner cites many cases to support his contention, but we find that the contributing causes were all due to the nature of the employment, and most of them do not have a sportive act as the proximate cause. We understand the law to be that an injury caused by accident is not compensable if that accident is sportive in origin, unless such sportiveness is customary and dangerous so that the employer knew or should have known the probable consequences of danger resutling from these sportive acts and took no steps to prevent their recurrence. Staubach v. Cities Service Oil Co., 126 N. J. L. 479; 19 Atl. Rep. (2d) 882; Hulley v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007. There is no contention in the instant case that there was customary horseplay on the elevator.

Here we have an admitted act of skylarking resulting in an injury, and, therefore, this injury did not arise “out of” the employment.

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


author: Leyden, C. C. J.

text:
    Bergen County Circuit Court.
    HELEN LANG, PLAINTIFF, v. EDWARD A. LANG, DEFENDANT.
    Decided February 13, 1946.
    For the plaintiff, Samuel L. Kinsley.

    For the defendant, Clyde Christie (Ellis K. Kopp, of counsel).
   Leyden, C. C. J.

The motion is to strike the complaint as insufficient in law.

The complaint alleges, substantially, that in July, 1945, the plaintiff and defendant sold premises owned by them as tenants by the entirety for the sum of $5,000; that the defendant fraudulently induced the plaintiff to endorse the cheek given in payment under a promise to pay her the sum of $2,500 of the proceeds; that the defendant failed to pay her said sum and in fact 'converted it to his own use. She seeks as damages $2,500 with interest from July 10th, 1945.

It was admitted on the argument that the parties were divorced from the bonds of matrimony by decree on December 17th, 1945.

The plaintiff has no standing in a court of law. Whether the complaint sounds in contract or in tort is of no great moment. A wife has no right of action at law sounding in contract against her husband. Any agreement between them is at law null and void and cannot be enforced. National Bank of Rahway v. Brewster, 49 N. J. L. 231; 12 Atl. Rep. 769. So, too, a wife has no right of action at law sounding in tort against her husband. This well settled rule was recognized in 1939 by the present Chief Justice in Hudson v. Gas Consumers’ Association, 123 N. J. L. 252; 8 Atl. Rep. (2d) 337, and ho there pointed out that no statute has been enacted in this state that disturbs the rule. No change has since been made. R. 8. 37:2-5; N. J. 8. A. 37:2-5.

The plaintiff contends, however, that the divorce removes the disability and the action is now maintainable. There is no merit in this argument. A limited divorce would not enable the wife to sue her husband. Drum v. Drum, 69 N. J. L. 557; 55 Atl. Rep. 86. If the husband were dead the wife could not, at law, sue the representative of the husband for money received by him on her behalf during the marriage. Rusling v. Rusling’s Executors, 47 N. J. L. 1. Such transactions and agreements were null and void at law on the theory of unity of husband and wife. Death certainly terminates a marriage as effectively as a divorce. A divorce from the bonds of matrimony, with the consequent change in status of the parties, does not operate to vivify a transaction between a husband and wife made during coverture and thus enable the ex-wife to sue the ex-husband at law for damages arising out of the breach of the so-called agreement or transaction, in the absence of a statute granting such right, nor does such a change in status create a cause of action at law sounding in tort against the ex-husband where none existed during coverture.

The objection to the form of the notice of motion is without merit. There is a distinction between the ground that a complaint does not constitute a cause of action (Dunn v. Chernewski, 101 N. J. L. 27; 127 Atl. Rep. 338), and that, as here, the complaint does not state facts sufficient to constitute a cause of action. The latter reason is good.

Finally, the plaintiff in her brief requests, if the determination of this motion is adverse, that the cause be transferred to the Court of Chancery pursuant to B. 8. 2:26-60, et seq.; N. J. 8. A. 2:26-60, et seq* The striking of the complaint is not tantamount to a dismissal of the action. The process is still outstanding and the cause pending. Although transactions between husband and wife are null and void at law, equity may afford relief to the ex-wife. Demarest v. Terhune, 62 N. J. Eq. 663; 50 Atl. Rep. 664; Fike v. Fike, 3 N. J. Mis. R. 485; 128 Atl. Rep. 849; affirmed, 99 N. J. Eq. 424; 132 Atl. Rep. 922; Freitag v. Bersano, 123 N. J. Eq. 515; 198 Atl. Rep. 845. However, the application to transfer the cause should be made on motion.

The motion to strike is granted.


text:
    Passaic County Court of Common Pleas.
    LORETTA VAN NESS, PETITIONER-APPELLEE, v. BOROUGH OF HALEDON, RESPONDENT-APPELLANT.
    Decided February 4, 1946.
    Bor the petitioner-appellee, Marcus & Levy.

    Bor the respondent-appellant, William A. Davenport.

   Delaney, C. P. J.

This is an appeal from the finding of facts and determination and rule for judgment of the Workmen’s Compensation Bureau, in which the petitioner was granted compensation for herself and her two infant sons, dependents of Charles Van Ness, deceased, her husband and the father of her two children.

Decedent was employed by the DeCora Company in Hale-don and was a regularly appointed marshal on the Haledon police force. As a police marshal he was subject to call twenty-four hours a day, and in case of emergency would be called any one of the twenty-four hours, and Officer Van Ness was often called while at work with the DeCora Company. It was customary for Officer Van Ness to report to the police station every day, whether he was assigned to duty or not, and for the chief, if he was there, to send him out to assist the regular officer when a call came in. Whether “detailed” or not, a marshal was to assist a regular officer. These were not “actual duty assignments,” but emergency assignments, taken care of as they arose. Dor a marshal to be detailed to an actual duty assignment, the need of such detail would have to be known in advance, when the schedule for the police assignments was made up.

The three boroughs of Haledon, North Haledon and Prospect Park had a reciprocal and mutual arrangement by which a call coming in to the police department of one borough would be answered by the police department of another borough if that were necessary.

On the night of July 10th, 1944, decedent was attending a court session of the North Haledon Police Court as a witness to a motor vehicle violation in which he had assisted Captain Stutz, of the North Haledon police, a few days previously. A radio call came to the Haledon police department and advised that department that a woman had fallen down a flight of stairs in a house on Saw Mill Road in North Hale-don, and that she was in serious condition. Because Captain Stutz, of the North Haledon police, was attending the North Haledon Police Court, and therefore was out of call, Officer Romanelli, of the Haledon police, knowing this, picked up the call, drove to the North Haledon police station to ascertain the location of the home where the emergency had occurred. As he drove into the yard of the police station, Captain Stntz came running out of the door. The emergency had also been reported to the North Haledon police by telephone. Captain Stutz, with two councilmen, got into the North Haledon police ear, and Officer Yan Ness, the decedent, into the Haledon police ear, which Officer Eomanelli was driving.

The two cars proceeded to the scene of the emergency, Captain Stutz and Officer Eomanelli taking charge at the side of the woman, Officer Yan Ness at the head of the stairs. Deciding that the woman needed an ambulance, Captain Stutz went to the North Haledon police car to summon the ambulance by radio. Officer Yan Ness followed him, and when the Captain was unable to make contact with the ambulance corps, Yan Ness suddenly remembered that that night the eorps was having a meeting in the corps’ rooms, attached to the ambulance station. There was no phone in the corps’ rooms. He said, “They are down in the corps’ rooms. I will go for them.” He got into the Haledon police car alone. He drove at a fast speed, with siren blowing, red flasher working, and at one obstructed corner rounded it on two wheels, and pulled up in front of the ambulance station.

Mr. Brown, a police marshal of the Haledon police department, who was also the chief of the Haledon Ambulance Association, which had just adjourned its meeting, saw the advance of the police car and went to the curb to meet it. Decedent, excited and flushed, yelled, “Dave—Dave—get the ambulance right away, right away, North Haledon, North Haledon, Saw Mill Eoad, Saw Mill Eoad, a lady, a lady— follow me, follow me,” and turned the police car around, drove twenty-five to thirty-five feet and stopped. Brown, now at the wheel of the ambulance, pulled behind the stationary police ear, blew his horn, and then hurried to the police car, where he found Yan Ness slumped over the wheel, waving his arms, and muttering, “The woman, the woman, the woman.” Yan Ness was immediately placed in the ambulance and driven to the hospital, where he died about ten minutes after arrival, before he could be examined.

The question in this case hinges on whether there was an employer-employee relationship at the time of the accident. The respondent contends that there was not, and could not be, according to the ordinance, unless the marshal was engaged in “actual duty assignment” directly by the chief, and that Van Ness was not engaged in an “actual duty assignment” because he was not paid for the work he did on July 10th, nor could he have been, since the chief had not actually assigned him.

The ordinances under consideration are:

“The Council of the Borough of Haledon hereby ordains that a Police Department be and hereby is established in this Borough consisting of a Chief of Police and such policemen and marshals as shall hereinafter be appointed.” Section 1, Ordinance 81.

“The compensation of the members of the department shall be determined by the Council. The marshals shall be paid only for such time as they shall be engaged in actual duty assignment of the Mayor, Police Committee, or Chief of Police.” Section 13, Ordinance 81.

“All orders and assignments for any member of the Police Department from the Mayor or Police Committee shall be made to and through the Chief of Police.” Section 14, Ordinance 81.

We do not agree with the respondent’s contention, for we conclude because of the very nature of a marshal’s job there were other assignments than actual duty assignments. Had Officer Van Ness been in the police station when this emergency call came through and had the chief also been there, and had the chief said, “Van Ness, go with Officer Bomanelli,” can we say there would have been no relationship of employer-employee because Officer Van Ness was not on an “actual duty assignment?” Was there no relationship of employer and employee whenever Van Ness was called on the twenty-four hour subject-to-call arrangement? Van Ness was a marshal and was in the performance of his duties at the time. Some duties, emergency, he performed without compensation; other duties, which were detailed beforehand, “actual duty assignments,” he was paid for. He and the borough realized the nature of the employment, that much or some of it would be emergency, that if it were he could not be actually assigned, since actual assignment of necessity meant knowledge of the need for his services in advance.

Notice that the ordinance does not read all “actual duty assignments/’ but reads “All orders and assignments.” These orders and assignments axe not qualified in any way, but are all-inclusive and refer to those which are actual duty assignments, for which compensation is to be paid, and those which are emergency, for which no compensation is to be paid.

If a marshal, before he acted in an emergency, were first to get an actual duty assignment from the chief before he attempted to handle an emergency, his usefulness would not be very great. The admission of oral testimony by the chief here to establish custom and not only permission but direct ■orders from the chief to a marshal to accompany a regular policeman when both the chief and marshal were in the police station when a call came in, was correct, and McAnney v. Galloway Township, 120 N. J. L. 311; 199 Atl. Rep. 369, is dispositive of this point where the prescription of duties in a statute is plainly not designed to be exclusive.

Van Ness was engaged in an effort to do his duty as a police marshal, and we find that the injury or death sustained while so employed is classable as the emanation of an accident arising out of and in the course of his employment, within the intendment of the Workmen’s Compensation Act, N. J. S. A. 34:15-7, et seq., as supplemented by chapter 355 of the laws of 1931, N. J. 8. A. 34:15-43. McAnney v. Galloway Township, supra; Rightmyer v. Totowa Borough, 17 N. J. Mis. R. 300; 8 Atl. Rep. (2d) 772; Pierce v. Layton, 22 N. J. Mis. R. 9; 34 Atl. Rep. (2d) 755, and Aiello v. Borough of Verona, 18 N. J. Mis. R. 176; 11 Atl. Rep. (2d) 835.

The respondent’s other contention is that there is no proof of an injury by accident and no proof of causal relation. We cannot agree. The death certificate and three medical experts gave as the cause of death coronary occlusion. All the experts agreed that excitement, confusion, restlessness, anxiety, emotional strain, could produce coronary occlusion. The testimony clearly establishes the excited, confused, emotional state of Van Ness. There is no other medical conclusion offered as to the cause of death. The medical expert for the respondent said that without an autopsy any cause of death was speculation. That may be true, but we have no autopsy here to aid us. We must deal with the facts as we have them. That the decedent was excited we know from witnesses who saw and heard him, and from the witnesses who saw the manner in which he drove his car. That coronary occlusion is a logical medical hypothesis is evident.

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


author: Fulop, D. C. J.

text:
    District Court of the Second Judicial District of the County of Union.
    SANDFORD BIERMAN, INDIVIDUALLY AND T/A MAR-SAN CO., PLAINTIFF, v. FRED BARTHELMEUS, DEFENDANT.
    Decided February 14, 1946.
    For the plaintiff, Benjamin 8. Appel.

    For the defendant, Levy & Krauss.

   Fulop, D. C. J.

This is a suit for a commission upon the sale of a retail business. Defendant agreed in writing that the plaintiff should have the exclusive right to sell defendant’s business for a period of ninety days and expressly agreed to pay plaintiff a commission of ten per cent, of the selling price if the business was sold within the ninety days, whether or not the buyer was procured by plaintiff.

The description of the business to be sold included a lease of the store premises for four and one-half years.

Defendant sold the business including the lease, within the ninety day period, to a purchaser procured by another broker, not the plaintiff.

Defendant contends that he did not understand the contract with the plaintiff, that the true contract was that plaintiff should receive his commission only if he procured the purchaser. Also, that plaintiff expressly agreed to the sale through the broker who procured the buyer and thereby waived or modified the written agreement. I find, as a fact, that the agreement was made as written, without any fraud or mistake, and that there was no enforceable waiver or modification.

However, the plaintiff cannot recover. He is not a licensed real estate broker. The transaction included the sale of the lease for which no separate price was fixed. The transaction is not divisible. A leasehold is an interest in real estate within the meaning of R. 8. 45 :15—3; N. J. 8. A. 45 :15—3. See Tamarin v. Fitzpatrick (1925), 125 Misc. 823; 211 N. Y. S. 616.

Plaintiff’s claim is barred by R. 8. 45 .T5-1; N. J. 8. A. 45:15-1. Kenney v. Paterson Milk and Cream Co. (Court of Errors and Appeals, 1933), 110 N. J. L. 141; 164 Atl. Rep. 274, is exactly in point. The only difference is that in the reported case the real estate was to be conveyed, presumably in fee. But the statute covers an interest in real estate as well.

Judgment will be entered in favor of the defendant.