author: Heeb, A. M.

text:
    Esther Soos, petitioner, v. Emrich Soos, defendant.
    [Decided June 2d, 1936.]

      Mr. Harry Unger, for the petitioner.

      Mr. Edmond J. Dwyer {Mr. Louis Auerbacher, of counsel), for the defendant-connter-elaimant.
   Heeb, A. M.

The wife’s petition seeks a decree of divorce from the bond of matrimony on the ground of extreme cruelty under P. L. 1928 ch. 187 p. 494 (Cum. Supp. Comp. Stat. 1911-1924 p-989 § 62-Sa), commonly known as the Blackwell act, which provides that “Divorce from the bonds of matrimony may be decreed for extreme cruelty in either of the parties, * * * provided, that no petition for divorce shall be filed until after six months from the date of the last act of cruelty complained of.”

The husband answers denying the allegations of the petition and counter-claims for divorce under the same statute. Both claims are at issue and have come to final hearing.

During the progress of the hearing certain questions arose as to the form of both petition and counter-claim, and as to the competence of evidence of alleged acts of cruelty which occurred during the six months’ period immediately preceding the filing of the petition and during the pendency of the suit, and it was stipulated that such evidence be received subject to the court’s subsequent determination of its competence, under such amendments of the pleadings to be made as should be found proper and necessary to have them conform to and support the proofs. Both parties desire that all of the evidence offered on each side be considered by the court, to the extent of its jurisdiction to consider it, under such suitable amendments of the pleadings as the court may properly make by consent, and such desire accords with the policy of the law that the court should so far as possible hear the whole case between the parties. Williams v. Winans, 22 N. J. Eq. 573, 577; Dowling v. Dowling, 93 N. J. Eq. 159; 115 Atl. Rep. 378; Von Bernuth v. Von Bernuth, 76 N. J. Eq. 487; 74 Atl. Rep. 252.

The question of the competence of this evidence is involved in and will be disposed of by the court’s determination of the reserved questions with respect to the form of the pleadings, and will be discussed in connection therewith.

The first inquiry relates to the form of the petition and to the extent to which it may be amended by consent. It was filed on April 30th, 1935, and complains of alleged acts of extreme cruelty on the part of the defendant extending over a period of time commencing shortly after the marriage of the parties on May 30th, 1914, and continuing to June 9th, 1934. The petitioner alleges that on June 9th, 1934, she “informed the defendant that she could no longer stand his cruel and abusive treatment, and that she was compelled to separate herself from him. Thereupon, the defendant pleaded with petitioner not to do so, and upon his promise and undertaking then and there made that he would reform his ways and correct his habits, and never thereafter beat, abuse and treat petitioner cruelly, and never again treat her as he had done theretofore, the petitioner agreed to condone his said offenses and not to separate herself from him, on condition, however, that a resumption or continuance of his cruelty or ill-treatment of her would cause her to separate from him * * *.

“By reason of the defendant’s cruelty, the petitioner has had no personal (sic) relations with him since March of nineteen hundred and thirty-four.”

The petition then goes on to allege that since June 9th, 1934, and until April 6th, 1935, the defendant failed to adhere to his promise to cease from abusing her; that throughout that whole period he beat and abused her until she was finally compelled to separate herself from him. And then follows the allegation that “more than six months have elapsed since the act of cruelty complained of in June of 1934, and petitioner further alleges that in fact and by operation of law, her agreement of condonation was conditional upon a discontinuance of any further cruelty on the part of the defendant, and he having failed to perform the said condition, nullified thereby her act of condonation; and petitioner relies therefore upon the acts of cruelty up to June, 1934, as the basis of this petition for divorce.”

It will be noted that the petition alleges acts of cruelty committed within the six months’ period immediately preceding the filing of the petition, but does not complain of such acts as constituting (in conjunction with the earlier acts) the cause of action sued upon. Had it so complained of them it would have been defective because violative of the statutory proviso (Cum. Supp. Comp. Stat. 1911-1924 p. 989 § 62-Sa) that “no petition for divorce shall be filed until after six months from the date of the last act of cruelty complained of.” The object of the proscription is to afford the injured party time to calm down and reflect before taking the serious step of suing for a divorce. Coe v. Coe, 97 N. J. Eq. 57; 127 Atl. Rep. 39; affirmed, 99 N. J. Eq. 422; 131 Atl. Rep. 922. It precludes the filing of the petition until the cause of action is six months old. Where it appears that the petition is filed before that time it is the duty of the court to dismiss it as prematurely filed, whether the defendant pleads the proviso as a defense or not: the state is a party. Wilsdon v. Wilsdon, 4 N. J. Mis. R. 879. On the other hand, if the proofs establish a cause of action based upon allegations of acts occurring more than six months before the filing of the petition further allegations of acts within that period do not justify a dismissal. If they are pleaded as constituting in conjunction with the earlier acts the cause of action sued upon, the petition is defective but may be amended. Wallace v. Wallace, 122 N. J. Eq. 292; 164 Atl. Rep. 565.

The petition in this case sets up acts which took place within the proscribed six months’ period as constituting not a part of the cause of action, but a breach of the condition of a supposed condonation. If the allegations with respect to condonation were sufficient, taken as true, to establish a condonation in fact, there could be no valid objection to the inclusion of the allegations of subsequent acts as showing a breach of the condition. While condonation is ordinarily an affirmative defense which to be available must be pleaded by the defendant (Burke v. Burke, 113 N. J. Eq. 77, 80; 166 Atl. Rep. 140; Wallace v. Wallace, supra; Rich v. Rich, 109 N. J. Eq. 216; 156 Atl. Rep. 442), it is not improper for the petitioner to anticipate such a defense by setting it up in the petition and then alleging acts amounting to a breach of its condition. Stevens v. Stevens, 14 N. J. Eq. 374, 375; Newton v. Newton, 86 N. J. Eq. 129, 131; 97 Atl. Rep. 294.

But the allegations of the petition in this ease, taken as true, do not spell out a condonation. On the contrary they show that in fact there never was a condonation, and the evidence clearly bears this out. An agreement to condone, without more, is not condonation. Nor can there be a condonation where there have been no “personal” (the pleader intended “sexual”) relations between the parties following the last act of cruelty complained of, where, as in this case, the parties are sexually capable and such was their prior normal relationship. Wallace v. Wallace, supra; Klein v. Klein, 6 N. J. Mis. R. 359, 361; 140 Atl. Rep. 233. See Hann v. Hann, 58 N. J. Eq. 211; 42 Atl. Rep. 564; Goeger v. Goeger, 59 N. J. Eq. 15; Taber v. Taber, 66 Atl. Rep. 1082, 1084. See, also, 2 Bish. Mar., D. & Sep. (1891) § 274; 6 A. L. R. 1157; 40 Dickinson L. Rev. (1936) 92 (abstracted in 2 Current Legal Thought No. 5 p. 499). There is no element of estoppel in this case such as was involved in the separate maintenance suit of Rossi v. Rossi, 97 N. J. Eq. 134; 128 Atl. Rep. 386. See, also, Potts v. Potts, 42 Atl. Rep. 1055, 1058.

The failure of the petition to allege facts from which con-donation can be spelled out leaves the allegations of subsequent acts, pleaded as constituting a breach of the condition, mere surplusage so far as concerns the avowed purpose of the petitioner in pleading them. But for the stipulation they would be open to objection as being impertinent. But if by amendment they may be retained as relevant for any other purpose such amendment may be made, and this depends upon whether proof of them may properly be received at the hearing although they occurred within the proscribed six months’ period. If such facts are relevant for any purpose there can be no objection to alleging them in the petition in spite of the fact that they do not constitute part of the cause of action. Dodd v. Wilkinson, 42 N. J. Eq. 647, 651; 9 Atl. Rep. 685; Leslie v. Leslie, 50 N. J. Eq. 155; 24 Atl. Rep. 1029; affirmed on main case, 52 N. J. Eq. 332; 31 Atl. Rep. 724; Daly v. Watson, 118 N. J. Eq. 258; 178 Atl. Rep. 781 ; see Lutz v. Lutz, 52 N. J. Eq. 241; 28 Atl. Rep. 315. On the contrary, their inclusion in the petition may elicit admissions of value to petitioner, and will certainly tend to eliminate surprise and consequent delay. While it is not essential that such facts be pleaded it would seem to be the better practice.

Assuming always that the defendant’s acts which occurred within the proscribed period are set up in the petition not as in themselves or in conjunction with the defendant’s earlier acts constituting the cause of action, may not evidence of such later acts be admitted and considered by the court as giving character to the earlier acts, without doing violence to the statutory proviso f Is not the nature of the offense of extreme cruelty such as to justify and sometimes require a consideration of all of the defendant’s acts down to and including the pendency of the suit, as tending to corroborate, explain or characterize the acts upon which the cause of action is based ? Such has been the established rule in actions for divorce from bed and board for extreme cruelty and in separate maintenance suits based upon extreme cruelty. Cook v. Cook, 11 N. J. Eq. 195, 201; Cavileer v. Cavileer, 94 N. J. Eq. 160, 166; 119 Atl. Rep. 101; see O’Brien v. O’Brien, 103 N. J. Eq. 214, 220; 142 Atl. Rep. 898; affirmed, 105 N. J. Eq. 250; 147 Atl. Rep. 911; English v. English, 27 N. J. Eq. 579, 584; 19 C. J. 180 § 841- So that unless the term “extreme cruelty” has acquired a different connotation under the Blackwell act the same rule should be applied.

The term “extreme cruelty” as used in the statute empowering the court to grant decrees of divorce from bed and board (P. L. 1907 ch. 216 p. 474, § 8; 2 Comp. Stat. pp. 2028, 2029) has acquired a definite connotation through many years of judicial interpretation, both in the ecclesiastical tribunals and in our own courts. See Smith v. Smith, 40 W. J. Eq. 566, 593. As enunciated in a late case the general rule is that to warrant a divorce from bed and board on the ground of extreme cruelty of the husband such conduct by the husband must be shown as will justify the court in believing that if he is allowed to retain his power over his wife, and she is compelled to remain subject to him, her life or her health will be endangered, or that he will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. The remedy is quia timet. It is not so much punitive as preventive and anticipatory. “Courts interfere on the ground of cruelty to prevent future harm, rather than to punish the offender for what has already been done.” Bonardi v. Bonardi, 113 N. J. Eq. 25; 166 Atl. Rep. 207 (a constructive desertion case) and cases cited. See, also, Black v. Black, 30 N. J. Eq. 215, 221; reversed on other grounds, 31 N. J. Eq. 798; Cook v. Cook, 11 N. J. Eq. 195; Fallon v. Fallon, 111 N. J. Eq. 512; 162 Atl. Rep. 406; Regan v. Regan, 100 N. J. Eq. 158; 135 Atl. Rep. 478; Casey v. Casey, 83 N. J. Eq. 603; ,93 Atl. Rep. 720.

Such being the meaning of the term at the time of the enactment of the Blackwell act, it must be assumed that the legislature in using the identical words “extreme cruelty” in the Blackwell act intended to affix to the offense the same attributes it has possessed in the bed and board cases (see In re Sifola, 101 N. J. Eq. 540, 542; 138 Atl. Rep. 369; Stale v. Garthwaite, 23 N. J. Law 143; 59 C. J. 1050 § 620), unless the proviso of the act has the effect of changing the character of the offense.

In my judgment the character of the offense of extreme cruelty under the Blackwell act is the same as it is in the bed and board cases. See Sachse v. Sachse, 107 N. J. Eq. 41; 151 Atl. Rep. 744; Dinnebeil v. Dinnebeil, 109 N. J. Eq. 594; 158 Atl. Rep. 475; Restaino v. Restaino, 110 N. J. Eq. 563; 160 Atl. Rep. 345 (cases under the Blackwell act wherein the same definition has been adopted). See, also, Youmans v. Youmans, 3 N. J. Mis. R. 576, 577; 129 Atl. Rep. 122. The effect of the proviso of the act is merely to change the point of time at which a cause of action for extreme cruelty must vest or accrue. In the bed and board cases the cause of action must be vested not later than at the time of the filing of the petition. In actions under the Blackwell act the cause of action must accrue at least six months prior to the time of the filing of the petition.

Once the cause of action in either a bed and board case or in a case brought under the Blackwell act becomes vested, subsequent repentance by the defendant cannot constitute a defense per se, for a cause of action cannot become vested at all if it is subject to be defeated by the defendant’s subsequent conduct, and until it is vested no suit can be based upon it. Consequent^', since the cause of action in the bed and board cases must vest not later than at the time of the filing of the petition, repentance during the pendency of the action is not a defense per se. Nor is repentance a defense per se in actions under the Blackwell act if made during or after the six months’ period, for the reason that the cause of action is and must be vested, if at all, prior to the commencement of the proscribed period.

While it is imperative that the cause of action in bed and board cases vest not later than at the time of the filing of the petition, and in cases under the Blackwell act not later than at a date six months prior to the time of the filing of the petition, nevertheless the cause of action in either case may vest at a point of time preceding the time at which it must accrue. See Gartner v. Gartner, 109 N. J. Eq. 112; 156 Atl. Rep. 673. A cause of action for extreme cruelty in either case vests at that moment of time when the offense is committed (see Coe v. Coe, 97 N. J. Eq. 57, 59; 127 Atl. Rep. 39; affirmed, 99 N. J. Eq. 422; 181 Atl. Rep. 922), that is to say, at a time when an act or acts have been perpetrated which would be sufficient then to induce the court to believe that there is reasonable apprehension of injury to the health or life of the aggrieved spouse. See Klein v. Klein, 6 N. J. Mis. R. 359, 360; 140 Atl. Rep. 233. Further acts of cruelty may aggravate, and may continue the extreme cruelty as a cause of action (Cf. Adler v. Adler, 110 N. J. Eq. 381, 392), but they do not postpone the vesting of the cause of action if they are not needed to constitute the offense. Heiiee if the act or acts are sufficient to vest a cause of action prior to the time of the filing of the petition in a bed and board case or preceding the date of the proscribed six months’ period in a case under the Blackwell act, repentance on the part of the defendant at any time after such vesting cannot amount to a defense in itself.

Yet such repentance alter the accrual of the cause of action is in my judgment a relevant fact to be considered, not as a defense to or in avoidance of the vested cause of action, but rather in explanation of the acts relied upon as constituting the cause of action. The acts of cruelty committed may have been so sanguinary and brutal that the court will not be inclined to believe the defendant, as in O’Neill v. O’Neill, 30 N. J. Eq. 119, where promises of reformation were made during the hearing (see, also, Graecen v. Graecen, 2 N. J. Eq. 459; Arrowsmith v. Arrowsmith, 71 Atl. Rep. 702, 704), or the defendant may be laboring under that infirmity of temper which will not permit him to adhere to his promise, as in Holden v. Holden, 1 Hag. Con. 458, 457; 161 Eng. Rep. 614- On the other hand, protestations of repentance after the commission of the alleged acts relied upon as constituting the cause of action may, depending upon the nature of the alleged acts of cruelty and the history of the married life of the parties, negative the existence of a cause of action for extreme cruelty. Such protestations may reflect the “character of the man” and induce the court to believe that his previous acts do not constitute extreme cruelty since it is reasonably certain that they will not be repeated in the future to the detriment of the wife’s health, as in English v. English, 27 N. J. Eq. 579, 584, where the court considered evidence of penitent acts on the part of the husband during the pendency of the action as well as during a four days’ period between the separation and the filing of the bill. See, also, Lynch v. Lynch, 16 Atl. Rep. 175; Saunders v. Saunders, 82 N. J. Eq. 491; 89 Atl. Rep. 518.

While the cases just considered were actions for divorce from bed and board for extreme cruelty, there appears to be no decision under the Blackwell act at variance with the view that protestations of repentance after the cause of action accrues may be considered as explanatory of the acts complained of as constituting the cause of action. The case of Coe v. Coe, supra, lends support to the view that the cause of action is vested when the offense is committed. The view that protestations of repentance are not per se a defense is also in accord with the dictum (p. 59) of the Coe Case. Neither the Coe Case nor the case of Klein v. Klein, supra, held that protestations of reformation may not be considered in order to characterize and lend color to the acts complained of as constituting the cause of action accrued six months before the filing of the petition or earlier. The dictum in the Coe Case with respect to the vesting of the cause of action was not intended as an intimation that a cause of action for extreme cruelty is never vested in the bed and board cases, for obviously if this were true a party could never bring suit for a decree of divorce from bed and board.

The case of Hart v. Hart, 99 N. J. Eq. 373; 131 Atl. Rep. 903, decided merely that an aggrieved spouse may institute an action under the Blackwell act at a date which is six months from the commission of the last act of cruelty complained of and need not await the expiration of six months from the date of the separation of the parties. See, also, Michels v. Michels, 110 N. J. Eq. 393, 395; 160 Atl. Rep. 518 Ross v. Ross, 105 N. J. Eq. 170; 147 Atl. Rep. 193; affirmed, 106 N. J. Eq. 277; 148 Atl. Rep. 920; Klein v. Klein, supra. The court in the Hart Case recognized the rule that the cause of action must vest at least six months prior to the filing of the petition, but no question of repentance was involved.

The case of Gartner v. Gartner, 109 N. J. Eq. 112, involved the communication of a venereal disease to the wife—an act of- extreme cruelty per se (see Fallon v. Fallon, supra), and apparently was the only act of extreme cruelty complained of. At the time of the institution of the action the husband was insane, but at the time of the commission of the act of extreme cruelty and for some time thereafter he was mentally competent. The court held that such subsequent insanity was no defense as the cause of action was complete before the husband became insane. The insanity of a defendant subsequent to the accrual of a cause of action against him for-extreme cruelty may be a material fact, however, if it be explanatory of or characterize the act or acts of cruelty relied upon as constituting the cause of action. On the other hand, the subsequent total and permanent disability of the defendant through accident not connected with the conduct eompiained of could not under any circumstances reflect the character of the man at the time of the commission of the alleged acts of cruelty and would be wholly irrelevant. In determining either in a bed and board case or in a case brought under the Blackwell act whether the defendant has been guilty of extreme cruelty the court must base its judgment upon the character of the acts committed not later than at the time at which the cause of action must vest. While the remedy in either case is anticipatory, the court cannot base its decree upon any acts committed at a time later than the time at which the cause of action must vest, but may consider evidence of events occurring subsequent to the time at which the cause must vest if and only if they tend to explain and characterize the earlier acts relied upon as constituting the cause of action. For this purpose it is competent for the court in either class of cases to consider protestations of reformation on the part of the defendant after the cause of action has vested and also to take into account acts of cruelty committed since the accrual of the cause of action, whether such acts occur within the six months’ period under the Blackwell act or during the pendency of the action. In desertion cases the cause of action vests at the termination of two years of willful, continued and obstinate desertion. And jret it is competent to consider acts of the parties subsequent to the two years’ period for the purpose of determining if in fact the desertion during the two years’ period was willful and obstinate. Thus if a husband makes advances after the two years’ period, such fact may tend to show that the desertion during the statutory period was in fact obstinate. Mayerson v. Mayerson, 107 N. J. Eq. 63, 66; 151 Atl. Rep. 855. See, also, Fry v. Fry, 100 Atl. Rep. 839, 840.

For the above reasons, the petition may be amended so as to allege as the cause of action all acts now set forth therein down to the date of October 29th, 1934, six months prior to the filing of the petition. Beyond that point the petition cannot be amended so as to add any allegations with respect to the cause of action. Lederer v. Lederer, 95 N. J. Eq. 558; 123 Atl. Rep. 241. Nor can it be supplemented. Henry v. Henry, 79 N. J. Eq. 493; 82 Atl. Rep. 47; affirmed, 81 N. J. Eq. 512; 86 Atl. Rep. 1102. Acts which occurred subsequently to October 29th, 1934, may be set up in the amended petition, not as part of the cause of action, but as giving character to the earlier acts complained of.

The second inquiry concerns the extent to which the counter-claim may be amended or supplemented to include as part of the cause of action acts of alleged extreme cruelty on the part of the petitioner which are proved to have occurred less than six months before the counter-claim was filed, and acts which occurred after the counter-claim was filed.

Here we are not confronted with the jurisdictional conditions contained in sections 6 and 7 (P. L. 1907 ch. 216 pp. 476, 477; 2 Comp. Stat. pp. 2029, 2030) of the Divorce act which preclude the filing of a supplemental petition, since the court has jurisdiction of the counter-claim not through the service of process but by virtue of its jurisdiction of the petition. P. L. 1916 ch. 57 p. 102; Cum. Supp. Comp. Stat. 1911-1924 P. 991 § 62-14b; Rule 261; Von Bernuth v. Von Bernuth, supra; Duke v. Duke, 70 N. J. Eq. 135; 62 Atl. Rep. 466; affirmed, 72 N. J. Eq. 434; 65 Atl. Rep. 1117. There is no restraint upon tin court’s power to permit the filing of a supplemental counter-claim setting up as part of the cause of action for extreme cruelty acts which occurred less than six months before the filing of such supplemental counter-claim unless it is to be found in the proviso of the Blackwell act, and the question therefore is whether the proviso applies to causes of action brought by counter-claim.

The counter-claim in this case was filed on June 25th, 1935, and alleges a series of acts on the part of the petitioner of which the last occurred during September, 1934, more than six months before the counter-claim was filed. It contains an allegation that subsequent acts of cruelty were committed and claims “the right” to file an amendment (by way of supplement) at a subsequent time to include allegations of such later acts after the lapse of six months following their occurrence. There can be no valid objection to such supplement, particularly in view of the stipulation. But as already pointed out evidence has been taken of acts which occurred pending suit and less than six months ago, and whether allegations of these later acts may be set up by supplement, and the evidence of them considered by the court, as a part of the cause of action, depends upon whether the proviso applies or not.

There never has existed a doubt that the proviso of the act does not preclude a defendant from setting up acts occurring within the proscribed period strictly by way of recrimination, if such acts constitute a cause of action (Cilente v. Cilente, 104 N. J. Eq. 605; 146 Atl. Rep. 469), and in my judgment such acts may be pleaded and proved as a basis for affirmative relief by way of counter-claim.

The proviso specifically applies only to petitions. It does not mention counter-claims. While the provisions of rules 70, 71 and 261 make the counter-claim a substitute for the cross-bill or cross-petition under the practice existing prior to 1915 (McAnarney v. Lembeck, 97 N. J. Eq. 361; 127 Atl. Rep. 197), the failure of the legislature to include in the proviso any reference to counter-claims while at the same time specifically providing for petitions creates a doubt as to whether the legislature intended to extend the restriction to suits brought by counter-claim.

This doubt may be resolved by examining the reasonableness of the result if the restriction is so extended, bearing in mind the legislative purpose in adopting the proviso. Wheeler v. Ellis, 56 N. J. Law 28; 27 Atl. Rep. 911; Sivade v. Smith, 104 N. J. Eq. 528; 146 Atl. Rep. 364. The proviso restricts the operation of the enacting clause by setting up a time limitation upon the injured party’s resort to the remedy created thereby. Unlike the usual statute of limitation it fixes a time before which, instead of a time after which, suit may not be brought, a terminus a quo instead of a terminus ad quern. The difference is one of essence. The ad quem limitation, when available, furnishes a permanent bar to any remedy and so indirectly destroys the right. For this reason the opposing party has a substantial interest in it and a corresponding right to set it up in defense. But the limitation a quo contained in the proviso is but a temporary stay provided in the interest of public policy, not in the interest of the opposing party. The cause of action as such is in nowise, directly or indirectly, disturbed or affected thereby." During the interval of waiting the opposing party is likewise powerless to disturb or affect it by any means at his command. Hence it cannot be said that he has any interest in maintaining the delay or any corresponding right to insist upon it. If he does so it will be regarded as in the interest of public policy rather than in his own, just as the court on its own motion will enforce the condition of the proviso.

Whether the proviso was intended to apply to a cause of action set up by counter-claim, therefore, depends solely upon whether, if so applied, it will reasonably tend to further the public policy for which it was designed. In the Ooe Qase this court defined the public policy to be “to give the injured party time to calm down and reflect, put the offender on probation, and to forgive if pardon is deserved.” The purpose of the enforced delay is to discourage an impulsive, ill-advised resort to the court, not to withhold the remedy from an injured party who deliberately seeks it. The legislative scheme for securing deliberation is delay. Whether delay is the most effective means to that end is immaterial; at least it is a means reasonably calculated to secure the object sought when applied to a petition, for in that case it effectually postpones litigation for the desired interval of time.

But if it is applied to a counter-claim it fails to accomplish this legislative purpose. Litigation has already been instituted. The defendant is involved therein notwithstanding the proviso. The opportunity for reflection has passed. The purpose for which the period of reflection was designed has been defeated. If under the circumstances the defendant has sufficient self-control to maintain a calm mind, there is no longer any point to it. The petitioner has demonstrated an unrepentant attitude by the institution of the suit. It would be inconsistent and absurd to count the time occupied by the pendency of the suit as a period of probation, nor can the injured defendant reasonably be expected to believe that the petitioner deserves forgiveness of the injury when he has added to it the insult of instituting a matrimonial action. If a six months’ delay were to be considered as reasonably tending to produce sober reflection in such a case, logically it should not commence to run until the termination of the suit by a dismissal of the pettiion.

Wot only does the purpose of the proviso fail if it is attempted to apply its provisions to the counter-claim, but the result of such application places the defendant at a distinct disadvantage in the litigation brought against him. In such suit the defendant is free to defend by setting up in recrimination extreme cruelty consisting of acts some of which may have been committed less than six months before he files his answer. Assume his defense successful. Is he to be denied affirmative relief because all of the acts constituting his cause of action may not have occurred more than six months before, and told to return later on and file an independent suit in which he may be obliged to prove the acts all over again? Rather than place upon him such purposeless hardship the court might delay making its decree until the six months have passed and then after suitable amendments of the pleadings grant him affirmative relief in the same suit. But in either case the delay cannot reasonably be considered as furthering the legislative purpose.

Por these reasons it seems to me that the clear policy and purpose of the proviso lies in its application to suits brought by petition only, and that such construction is in accord with the established rules applied in the solution of similar statutory ambiguities. Thus the Attorneys’ Lien act (P. L. 1914 ch. 201; Cum. Supp. Comp. Stat. 1911-1924 p. 1805 § 116-76), providing that “after the service of a summons and complaint in any action at law, or the filing of a bill of complaint or petition in the court of chancery, or the service of an answer containing a counter-claim in any action at law, the attorney * * * shall have a lien,” &c., has been construed as not extending a lien to a solicitor who files a counterclaim in equity (i. e., a cross-bill or cross-petition under the practice prior to 1915. See 4 Mercer Beasley L. Rev. 90). MacDonnell v. Vitille, 111 N. J. Eq. 502; 162 Atl. Rep. 738; McCarthy v. McCarthy, 117 N. J. Eq. 22; 174 Atl. Rep. 751. A strict construction must also be applied to the proviso of the Blackwell act, so as to limit the operation of the enacting portion of the act no further than the language of the proviso clearly requires. Clark Thread Co. v. Kearny, 55 N. J. Law 50; 25 Atl. Rep. 327. See Hart v. Hart, supra. The enacting portion unquestionably contemplates suits brought either by petition or by counter-claim, but the more specific language of the proviso fails to include counter-claims although expressly designating petitions. The court is without authority to interpolate a word omitted from a statute unless it clearly appears that the legislature intended to include it. Inhabitants of Township of Orvil v. Woodcliff, 61 N. J. Law 107, 111; 38 Atl. Rep. 685; 59 C. J. 992 § 593.

Such construction is also in accord with the policy of equity already adverted to, to render a complete decree adjusting all rights and protecting the parties from future litigation.

The defendant under the stipulation and in one pleading may therefore amend his counter-claim to conform to the proofs adduced as to the petitioner’s acts of cruelty from September, 1934, until thie filing of the counter-claim on June 25th, 1935, and supplement his counter-claim as to acts of cruelty proved to have been committed since the filing of the counterclaim down to the termination of final hearing. See Rules 63, 71. The original cause of action under the counter-claim was for an absolute divorce for extreme cruelty. The amendment and supplement setting up the subsequent acts of cruelty are germane to the original cause of action if germane they need be in view of the stipulation of the parties. See Fodor v. Kunie, 92 N. J. Eq. 301, 304; 112 Atl. Rep. 598; O’Donnell v. McCann, 77 N. J. Eq. 188, 193; 75 Atl. Rep. 999; Tyree Chancery Pr. (2d ed.) (1933) §§ 35, 43.

After the amendments shall have been made as above directed, and suitable answers filed, the factual issues will be determined by a consideration, to the extent and for the purposes above indicated, of all of the evidence of alleged cruel conduct on the part of each of the parties toward the other down to the last day of the hearing.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THE STATE OF NEW JERSEY, EX REL. ARTHUR L. MOUNCEY, RELATOR, v. GEORGE SCHEETZ, DEFENDANT.
    Submitted May term, 1936
    Decided May 18, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the relator, Raymond Chasan, Harlan Besson, Robert Carey and Harry Lane.

    Por the defendant, William A. O’Brien and Arthur B. Archibald.

   Per Curiam.

Except for the changes in the identity of the parties litigant and of their attorneys this case is in all things the same as State, Harriet V. Colton, Relator, &c., v. Edith Kreutzinger, 116 N. J. L. 456; 185 Atl. Rep. 18, decided contemporaneously herewith. Por the reasons stated in the determination of that ease the demurrer herein is overruled and judgment on the information will be for the respondent, with costs.


author: Perskie, J.

text:
    HARRY B. SMITH, PLAINTIFF-APPELLEE, v. WEST SIDE HARDWARE COMPANY, DEFENDANT-APPELLANT.
    Submitted January 31, 1936
    Decided June 5, 1936.
    Before Justices Hehek and Perskie.
    For the appellant, Edward Madden.

    For the appellee, Herbert Rapfogel (Irving Solomon, of counsel).
   The opinion of the court was delivered by

Perskie, J.

This cause comes to us on defendant’s appeal from a judgment entered by the trial judge, sitting without a jury, in the sum of $500 in favor of the plaintiff.

On December 1st, 1934, the plaintiff was the owner and operator of a Franklin automobile which he had purchased new in 1930. About seven-twenty p. ji. of that day he was proceeding in a southerly direction on a highway known as the Hudson County Boulevard, in Jersey City, and upon reaching the intersection of Montgomery street and the highway came to a complete stop because the signal lights, governing traffic in a northerly and southerly direction, were then red. On the opposite side of the street, facing the automobile of the plaintiff and headed in a northerly direction, were two other automobiles at a complete stop. The plaintiff so placed his automobile as to indicate to the drivers of the automobiles on the opposite side'of the street that he intended to make a left turn and proceed on Montgomery street. When the lights changed, turning to green, thus indicating traffic to move north and south, the two waiting automobiles that were proceeding in a northerly direction acknowledged plaintiff’s intention to turn left, and permitted him to make such turn before they proceeded. The plaintiff turned his automobile and by the time he had the machine straightened out to proceed on Montgomery street, was struck by an automobile truck of the defendant that was proceeding in a northerly direction along Hudson County Boulevard, and which passed the two aforesaid standing automobiles, on the right side thereof, nearest the gutter.

There was no service upon the operator of defendant’s truck, who was also made a party defendant.

At the conclusion of the case defendant’s attorney moved for a directed verdict on the grounds that the plaintiff had failed to show any negligence on the part of the defendant, and that plaintiff was guilty of contributory negligence. This motion was denied. For the same reasons urged below it is now argued by the appellant that it was error to deny the motion.

We think that the grounds argued are clearly without merit and that the motion was properly denied.

It will be observed that save as to a showing, by a transcript of the testimony in a similar case between the same parties, on June 18th, 1935, that plaintiff did not see defendant until “he hit me, just as he was coming,” whereas at the instant trial he testified that he saw him first about two lengths away from his car (approximated to be about twenty-four feet), as he made the aforesaid turn, defendant offered no other proofs as to the happening of the accident. It concentrated its proof to the damages to the automobile.

Whether the defendant exercised the degree of care that the circumstances, here exhibited, demanded by seeking an opportune time to cross the highway, and whether the plaintiff, proceeding as he did, was guilty of contributory negligence, in failing to anticipate defendant’s oncoming car and thus causing the collision, were questions of fact for the determination of the judge as the trier of the facts. Kidder v. Hoffman, 12 N. J. Mis. R. 186; 170 Atl. Rep. 607.

The result reached is fully supported by the proofs.

Judgment is affirmed, with costs.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA M. DAGGETT, PETITIONER, v. BERGENFIELD BOROUGH MAYOR AND COUNCIL, RESPONDENT.
    Decided May 19, 1936.
    Por the petitioner, Morris B. Kantof.

    Por the respondent, Winne & Banta.

   This is a claim coming on for determination under the provisions of the New Jersey Workmen’s Compensation act, in which a petition was filed on November 15th, 1935, and answer filed on or about November 30th, 1935. The case was brought on for hearing at Hackensack, New Jersey, on January 20th, 1936, February 17th, 1936, March 7th, 1936, March 23d, 1936, and April 6th, 1936-; the respondent being represented by John Christie, for Winne & Banta, Esqs.

It appears from the testimony and the petition as presented in connection with this claim that the petitioner’s deceased husband had been employed by the American Express Company, until the time of his death which occurred on April 27th, 1935. It appears that he had been in good health up to the date of his death. On the morning of April 27th, 1935, at about ten thirty-nine A. m., the fire signal sounded, decedent ran to the fire in response to said call. Decedent, while engaged in extinguishing a brush and field fire in the borough of Bergenfield, while wielding a beater and engaged in the act of extinguishing the fire, smoke and flames blew up into his face and body making it necessary for him to suddenly apply his strength and muscle to avoid being burned. He was choking and gagging as a result of smoke and fire. Flames shot up suddenly being fanned by the wind and fell suddenly and shot up repeatedly. Decedent worked desperately to save himself and to prevent serious spreading of the fire. Face and eyebrows and eyelashes were singed and burned. Decedent choked as a result of smoke and fire in his lungs. While decedent was on his way toward home from the first fire, a second alarm sounded about two or three minutes after the completion of the extinguishment of the first fire; decedent then rushed back toward the firehouse in response to the second alarm. On his way decedent was stricken and immediately taken in an automobile to the office of Dr. Lloyd B. Whitman. When the doctor examined decedent he found that death had already occurred about a minute or two prior to his examination and that in his opinion death was due to acute dilatation of the heart. It was the opinion of this doctor and that of Dr. George D. Appold, that the petitioner’s decedent came to his death as the result of acute dilatation of the heart, followed as result of the nervous strain and exertion accompanying the wielding of the beater by decedent while he was engaged in the act of extinguishing the fire and by the inhalation of smoke by decedent and the necessity of using his strength to avoid being burned by the flames which he was endeavoring to extinguish. Running to the second fire was an aggravation of the acute dilatation of the heart, suffered by the decedent while engaged in the extinguishment of the first fire.

Dr. Leo Koeppel, appearing for the respondent, expressed the opinion that the petitioner’s husband died of natural causes, and that the acute dilatation of the heart suffered by the decedent was brought about by the accumulation of exertion on the part of the decedent in running to the first fire and working desperately in extinguishing the first fire and then running to the second fire. All of which in his opinion was responsible íot the acute dilatation of the heart suffered by the decedent. It was his opinion that decedent’s death was not brought about by any one particular act performed by him on that day, but by the accumulation of acts.

I find as a fact from the evidence submitted by both petitioner and respondent that the petitioner’s decedent came to his death as the result of acute dilatation of the heart, brought about by the exertion and strain of decedent, in using a beater to beat out the flames, decedent running to the fire, his walk back to the firehouse, his answering of the second alarm, all justify the conclusion that the unusual exertion brought about the fatal result.

Chapter 173 of the laws of 1931 (N. J. Stat. Annual 1931, §§ **336-38a(l) et seq.) gives special provision for compensation to be paid to volunteer firemen, to provide compensation under three different conditions which might exist. Eirst, provision is made for compensation to volunteer firemen or his dependents when said volunteer fireman was at the time of the accident earning a regular weekly salary. Second, provision is made for determining the compensation rate when the volunteer fireman is not receiving a wage, but has an income derived from some other source. Third, when the volunteer fireman is not working for a wage and has no income at the time of the accident, but was at a previous time employed and receiving wages. The present case comes under the second definition as indicated above, and in such instance the statute provides that the compensation rate shall be at the rate of forty per cent, for two dependents or the rate of thirty-five per cent, for one dependent, or the sum of $14 per week for three hundred weeks, and the sum of $13.35 per week until the infant son, Charles, arrives at the age of sixteen.

In the present case the decedent left his wife, Anna M. Daggett, and a son, Charles, aged seven on June 37th, 1935; at the time of his death decedent was earning $7 per day, for a five day week, as chauffeur for the American Express Company. Under the provisions of the statute, therefore, compensation in this claim will be at the rate of $14 a week for a period of three hundred weeks and at the rate of $13.35 per week until the son, Charles Daggett, arrives at the age of sixteen years.

It is, therefore, on this 19th day of May, 1936, ordered, that the respondent pay to the petitioner the sum of $14 a week beginning as of April 21th, 1935, for a period of three hundred weeks and the sum of $12.25 a week until the son, Charles Daggett, arrives at the age of sixteen years. The amount which has accrued to date of first payment will be paid in one lump sum.

sfc $ % « H* ^ *

John C. Wegner, Deputy Commissioner.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM DOMSCHEIT, PETITIONER, v. NATURAL PRODUCTS REFINING COMPANY, RESPONDENT.
    Decided May 19, 1936.
    Dor the petitioner, Joseph A. Visconti.

    Dor the respondent New Jersey Manufacturers’ Casualty Insurance Company, Richard W. Baker.

      For the respondent American Mutual Insurance' Company, James Carroll.

   Pursuant to the provisions of the Workmen’s Compensation act formal petition was filed with this bureau in the city of Trenton on the 17th day of March, 1934. The petitioner was represented by Joseph A. Visconti. An answer thereto was filed, the respondent was represented by Richard W. Baker. The matter was heard before this court at Jersey City on the 24th day of April, 1934.

The petitioner alleged and supported by competent testimony the following facts: He was employed by the Natural Products Refining Company from the latter part of 1930 until March 7th, 1934. That he was employed as a cooper, which necessitated the handling of soda (sodium bichromate) which was contained in the barrels around which he placed the hoops. That until the 7th day of December, 1933, he was exposed to sodium bichromate dust and fumes. On or about the 7th day of December, 1933, and thereafter he was transferred to another job and thereafter ceased to be exposed, and that this was done upon the recommendation of Dr. Fred Finn, who had examined the petitioner prior to this date. That as a result of such exposure to sodium bichromate he contracted chrome poisoning affecting particularly the nose and throat. That from December 7th, 1933, until March 7th, 1934, when he was discharged by the respondent he was not exposed.

Dr. Ferdinand Pflug, qualifying as a nose and throat specialist, testified in the petitioner’s behalf. His examination made on the 16th day of April, 1936, of petitioner’s nose revealed a complete destruction of the cartilaginous portion of the nasal septum, and that his examination at that time of the throat, by laryngoscope, showed an absorption of the epiglottis. That these conditions were proximately caused by chrome poisoning. It was his opinion that permanent disability was approximately three per cent, of total for the nose and ten per cent, of total for the throat.

Dr. George Meehan also testified in the petitioner’s behalf. That his examination was confined to the nose. He found a perforation of the nasal septum due to chrome poisoning and estimated the permanent disability from two and one-half per cent, to five per cent, of total.

Dr. A. C. Ruoif testified for the respondent that there was a perforation of the septum though incomplete. That upon his examination he found no evidence of throat irritation or destruction due to chrome poisoning. He stated that he did find a scar on the hard palate which may have resulted from chrome irritation. He estimated the disability at three per cent, of total.

In the case sub judice petitioner is alleging disability due to chrome poisoning and owing to the change in carriers by respondent, assured, shortly before petitioner’s last exposure, has joined both carriers, viz., New Jersey Manufacturers’ Casualty' Insurance Company and the American Mutual Insurance Company.

It would appear that New Jersey Manufacturers’ Casualty Insurance Company were the carriers until sometime in November, 1933, when coverage was taken over by the American Mutual Insurance Company. In December, 1933, at the advice of Dr. Finn, medical examiner for the later company, petitioner was changed to other employment at which there would be no exposure to chrome. Subsequently after being effective one month there was a change in coverage and the New Jersey Manufacturers’ Casualty Insurance Company again became the carrier. Question is against what carrier should judgment be entered.

From the testimony it would appear that petitioner was affected by chrome poisoning previous to December 7th, 1933. He had been treated by a physician for the condition. Examination by Dr. Finn resulted in a change in employment.

Tn the case of Textile Leather Co. v. Great American Indemnity Co., 108 N. J. L. 121; 156 Atl. Rep. 840, and Textile Leather Corp. v. Sun Indemnity Co. et al., 108 N. J. L. 207; 156 Atl. Rep. 842, it was held, “that the time fixed for compensation for disability or death occurring by reason of occupational diseases is when incapacity or death occurs and not when the poison specified makes its first appearance.”

In the instant case incapacity did not occur on December 7th. It was merely a recommendation of the doctor that the cause be removed and a change in occupation recommended. The effect was present and had been present for sometime previous to this date. Prom experience and expert medical testimony the effects of chrome upon the employe is not instantaneous but in a gradual process over a period of time. In the cases referred to I do not believe that it was the intent of the court to make a carrier’s policy retroactive and charge them with all disabilities that existed prior to the effectiveness of their contract but feel that the decision only applies where the condition is one that is progressive and does not attain its maximum effect until petitioner is compelled to cease work.

In this case sub judice I am of the opinion that petitioner’s condition was not in any way effected by his exposure two or three weeks prior to the date of his transfer to other employment. I am of the opinion that at that time the condition had become stationary and any further exposure would not in any way increase the disability.

I am, therefore, granting the motion of the American Mutual Insurance Company dismissing any claim against them in connection with this case and holding the New Jersey Manufacturers’ Casualty Insurance Company as the carrier.

I have carefully considered all medical testimony and feel that as a result of exposure petitioner is suffering from a perforation of the nasal septum as well as some involvement of the throat for which he is entitled to a permanent disability' of five per cent, of total.

íjc iji # % ❖ ❖ ❖

John C. Wegner, Referee.


author: Olipbajstt, S. C. C.

text:
    MAYME FULMER, PLAINTIFF, v. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, DEFENDANT.
    Decided June 3, 1936.
    For the plaintiff, Allan Benny.

    For the defendant, Collins & Corbin (Edward A. Marhley and James J. Langcm).

   Olipbajstt, S. C. C.

This matter is before me sitting as a Supreme Court commissioner on a rule to show cause why a new trial should not be granted on the ground of newly discovered evidence.

Suit was instituted by summons tested July 17th, 1935, plaintiff alleging that she is the holder of an insurance policy providing for disability benefits of $85.88 a month and the waiver of the premium of $420 per annum if she became wholly and permanently disabled in accordance with the provisions of the policy. Plaintiff alleged in her complaint that she was continuously and at all times wholly totally and permanently disabled by disease since the 18th day of January, 1935, and that after said date she was unable to engage in any occupation or perform any work for compensation of financial value. In October an amended complaint was filed in which claim was made for the disability benefits plaintiff alleged she was entitled to, accruing since the filing of the original complaint. Defendant denied that plaintiff is or ever was totally, permanently and wholly disabled in accordance with the provisions of the policy.

The case was tried on January 7th, 8th and 9th, 1936. The jury returned a verdict against the plaintiff and in favor of the defendant; the verdict being no cause of action. Postea was signed January 10th and judgment for defendant entered January 16th. On March 10th, 1936, a rule was signed by me, sitting as a Supreme Court commissioner, requiring the defendant to show cause why a rule should not be made setting aside the verdict and granting a new trial. The rule of March 19th was based on the verified petition of plaintiff in which it is stated that since the trial she has discovered new evidence which will probably change the result provided a new trial is granted.

The defendant contends that the trial judge is without jurisdiction to entertain this application. I do not think so. Rules 122 and 123 of the Supreme Court specifically give such power to the trial judge. Cohen v. New Jersey and New York Railroad Co., 11 N. J. Mis. R. 483; 166 Atl. Rep. 715; O’Donnell v. Laggren Bros. Co., Inc., 111 N. J. L. 319; 168 Atl. Rep. 460.

On the trial of the case two doctors testified' on behalf of the plaintiff and three on behalf of the. defense. The new evidence which is the basis for the present application is that of another physician, Dr. Neustaedter, who analyzes the symptoms, both objective and subjective of the plaintiff, as a result of which he says the plaintiff is suffering from incipient Basedow’s disease, and that by reason thereof, she is incapacitated from following any gainful occupation. The symptoms relied upon by Dr. Neustaedter were related and referred to in practically all particulars by the medical witnesses at the trial, but none of them applied the words Basedow’s disease to her condition. Voluminous testimony was taken by the parties by virtue of the order to show cause. That testimony shows that Dr. Eeustaedter says that the plaintiff is suffering from Basedow’s disease, while five doctors on behalf of the defendant claim she was 'and is not so suffering.

There are three cardinal principles expounded by our courts as necessary to be shown in order to permit a plaintiff to be entitled to a new trial. The newly discovered evidence must be of such a character that it would probably change the result if a new trial were granted; it must be shown that due diligence was exercised to produce the evidence on the former trial; and the newly discovered evidence must not be cumulative.

In view of the testimony taken under the rule, I am not satisfied that the result would be changed b]r the introduction of the alleged new evidence at the second trial, as that evidence is sharply contradicted. In Mechanics Fire Insurance Co. v. Nichols, 16 N. J. L. 411, Chief Justice Hornblower denied an application for a new trial saying: “It is against the general rule, to grant a new trial merely to let in newly discovered evidence, of facts and circumstances, relating to matters which were controverted on the former trial, unless those facts or circumstances were important and conclusive in their nature upon the rights of the parties, and the newly discovered evidence is of such a character, as clearly and decisively to establish them the one way or the other. ISTew trials would be endless if every additional circumstance, bearing on the matter in controversy, was a cause for a new trial.” In Hoban v. Sandford and Stillman, 64 Id. 426; 45 Atl. Rep. 819, the court said: “If the materiality of this newly discovered evidence is admitted, yet it must be such evidence as would, in all probability, have changed the result. It must be such evidence to produce on another trial an opposite result on the merits.” To the same effect are the decisions in Christie v. Petrullo, 101 N. J. L. 492; 128 Atl. Rep. 853, and Paradise v. Great Eastern Stages, Inc., 114 N. J. L. 365 ; 176 Atl. Rep. 711, a decision by Chief Justice Brogan, speaking for the Court of Errors and Appeals, and other cases too numerous to mention.

This is not a case where there are witnesses to an accident or witnesses to dealings between parties. This plaintiff was examined by several physicians previous to her trial, at which those physicians testified. After trial, she submits herself for examination to another physician, an alleged expert, who makes according to the plaintiff a somewhat different diagnosis and prognosis of her condition. If the plaintiff was not satisfied with the testimony to be given at her trial, she could have submitted herself for examination to others, including Dr. Keustaedter. Plaintiff is in somewhat straitened financial circumstances and not able to spend money for experts, but this is not a reason for the court to consider on this motion. If a new trial was granted and the plaintiff again was unsuccessful, on the theory advanced for a new trial by the plaintiff, she might then go to other physicians, who might diagnose her condition differently from that already done and seek another new trial on that testimony. A procedure such as this would make litigation endless and interminable. 'There would be no finality to it. I am of the opinion that the present testimony, the basis for the application, could have been secured for presentation at the trial, with due diligence. I am further of the opinion that the evidence is cumulative. The plaintiff contended that she was wholly, totally and permanently disabled from disease and was unable to engage in any occupation or perform any work for compensation of financial value. The defense was that she was not so incapacitated. The testimony of Dr. Neustaedter would only corroborate that offered by the other physicians on behalf of the plaintiff at the time of the trial even though he called her condition by another name. It would, therefore, be only cumulative testimony. As said by Mr. Justice Katzenbach in Christie v. Petrullo, supra; “These rules of law must be strictly enforced. If not strictly enforced it would open the door for litigants to withhold available testimony, and then if the result of the trial was adverse, resort could be had under the guise of newly discovered testimony to obtain another trial in which the litigant could correct the mistakes made in the former trial and perhaps secure a different result. The aim of the law should be to force litigants to the fullest preparation of their cases before trial. This can best be accomplished by strictly enforcing the principles of law governing new trials.”

The words of Chief Justice Brogan in Paradise v. Great Eastern Stages, Inc., supra, seem to me to fit the present situation. He said: “It is the intendment of the law that litigants make the fullest preparation for trial and if those additional facts, presented on the rule, were not presented at the trial, as they readily might have been, that ls the misfortune of the defendant.” In this case it is the misfortune of the plaintiff. “New trials are not to be favored even on the ground of newly discovered evidence unless the court feels that the evidence, newly discovered, more than likely would change the result and that it could not have been presented at the trial by the exercise of ordinary diligence.” Numerous cases were cited by the Chief Justice, following which he said: “These early cases and ancient common law authorities are purposely cited to make manifest for how long the rule enunciated has been followed. To adopt the appellant’s view would undermine the whole system of practice in this particular that has obtained from earliest times. There is nothing in this case to show that the testimony obtained on deposition was not available previous to trial. That the very opposite is true is manifest. It is sound jurisprudence and public policy as well that there be a finality to judgments and that a verdict rendered after a full and fair hearing, both sides having ample opportunity to present all the evidence, should not be lightly disturbed.”

The evidence taken under the rule, and which is made the basis for the present application, is evidence which the plaintiff feels, if presented, would have more weight than the evidence which was produced at the trial. In Jessup v. Cook, 6 N. J. L. 434, the court said: “It would be introducing a new rule and establishing an extremely bad precedent to set aside a verdict and grant a new trial because one party has since discovered evidence which he thinks entitled to more weight than any which he had produced at the trial.” Evidence such as is sought to be used is additional evidence to that already given to fortify a point which has already been tried in order to make it stronger. This has been repeatedly refused as any ground for a new trial. Den v. Wintermule, 13 N. J. L. 177.

Counsel for the plaintiff says that the court should exercise, under all of the circumstances, its discretion and grant a new trial. When a motion is directed to the sound discretion of the court, that discretion would be abused if it violated settled principles of law. State v. Vandervere, 25 N. J. L. 669; State v. Potter, 83 Id. 428; 85 Atl. Rep. 216.

While sympathetic with the plaintiff, I can find no grounds - which would allow me under the cases and the established law of this state, to grant a new trial. The rule will be discharged and an order to that effect may be presented.


author: Ackekson, C. C. J.

text:
    MORRIS SCHOENBERG, PLAINTIFF, v. CECILIA T. O’CONNOR, DEFENDANT.
    Decided September 21, 1935.
    For the plaintiff, Edward Schwartz.

    For the defendant, Roberson & Roberson.

   Ackekson, C. C. J.

This matter is submitted to the court for decision without a jury upon an agreed state of facts. The action is brought to recover the sum of $1,000 deposit paid, and the sum of $100 search fees incurred by the plaintiff under a contract for the purchase of certain real estate from the defendant. The theory of the action is a recission of the contract upon the ground that the defendant’s title is unmarketable because it is claimed that a strip of land eight feet in width extending along the southerly boundary of the premises in question has been dedicated to the public as a part of a public road in the process of widening and extending a previously existing private lane known as “Osborn Lane.”

It appears from the stipulated facts, and abstracts of title made a part thereof, that the aforesaid Osborn Lane was originally created in the deed of conveyance from Henry Osborn and wife to Abraham Garrabrants, dated June 3d, 1847, and duly recorded on June 7th, 1847, whereby said Osborn conveyed a portion of his lands lying to the eastward of the road now known as Broadway in the city of Bayonne to the said Garrabrants. The only provision in the deed creating said “Osborn Lane” is as follows: “Excepting thereunto on the northerly side of the lot hereby conveyed a lane of twenty links wide for and as a right of way for the use of both parties herein mentioned.” This same exception is contained in each of the deeds thereafter appearing in the chain of title except the last from Annie Kovacsv and husband to Harris Boorstein, the present owner, dated September 15th, 1919.

This lane as originally provided for and laid out did not in any way affect the premises here in question but adjoined the same on the south. The alleged dedicatory act by which it is claimed the strip eight feet wide along the southerly boundary of the premises in question is alleged to have been dedicated or offered to be dedicated as a part of a public road arises out of a written agreement entered into between Thomas McDonald, formerly the owner of the property, of which the lands in question are a part, and the aforesaid Henry Osborn, then the owner of adjoining premises to the east thereof.

The defendant contends that this agreement does not make the title unmarketable for four reasons.

In the first place, the defendant contends that the agreement between Osborn and McDonald was without consideration, lacked mutuality, and was, therefore, unenforceable and did not constitute a dedication of any.part of McDonald’s property as a public road. The only reason urged in support of this contention is, that while McDonald was in a position to dedicate to public uses all of the strip of land to be provided by him, as he still owned all of it in fee, nevertheless it is claimed that Osborn was not, because under his deed to Garrabrants in 1853, which was prior to his agreement with McDonald, he had created “Osborn Lane” as a private road “for the use of both parties” therein mentioned. It is insisted, therefore, that Garrabrants had an interest in that part of said original lane lying immediately in front of his premises and that this interest could not be affected by the later dedication of the widened and extended lane as a public road, except by his joining in the agreement. The defendant insists that the dedication of a road is tantamount to a conveyance to a municipality for the use of its inhabitants, and that Osborn having previously made conveyance to Garrabrants, was without authority to thereafter make conveyance to the municipality, and, the consideration for the agreement lacked mutuality and the consideration failed.

Whatever merit this contention may seem to have is entirely dissipated by the fact that Osborn did not convey all of his property to Garrabrants, but retained a large tract lying to the east thereof, as will appear from the stipulated facts and abstracts of title, and that the purpose of the agreement between Osborn & McDonald was not only to widen the existing road as originally laid out, but also to extend it much further to the eastward along the lines of property still owned by Osborn and McDonald as adjoining owners. In the agreement dedicating the road as thus widened and extended, care was taken to protect the parties against any restriction upon the public use thereof which might arise from the provision in the aforesaid deed from Osborn to Garrabrants, that the original lane as therein described was to be “for and as a right of wa3r for the use of both parties” therein mentioned, by providing in said agreement that “the road or lane from the Plank road to said Osborn’s house, which is twelve feet wide is subject to the restriction contained in a deed given by the said Osborn to Abraham Garrabrants in the year Eighteen Hundred and Forty-seven.” The certified copy of the deed from Osborn to Garrabrants discloses no other "restriction” upon the original road or lane than the restriction arising from the limited purpose of its creation, to wit, “as a right of way for the use of both parties” therein mentioned. It is apparent, therefore, that the aforesaid agreement between Osborn & McDonald for widening and extending “Osborn Lane” and its dedication to public use, contemplated and made provision for any rights which the said Garrabrants might be able to assert as against the public use of the lane in so far only as it affected that portion thereof lying immediately in front of and along the premises conveyed to him by virtue of his deed from Osborn. Clearly Osborn did not attempt to dedicate to the public any right which Garrabrants might have or restriction he might assert by virtue of his aforesaid deed, as the dedication of the road was made expressly subject to such possible restriction upon the public use thereof. It follows, therefore, that the defendant cannot prevail upon the first ground taken by him.

In the second place, the defendant urges that the agreement between McDonald and Osborn did not constitute a dedication, but merely an unconsummated agreement to dedicate. There can be no doubt that the agreement is crudely drawn but the test of a dedication or offer to dedicate, is to be found in the real intention of the donor. As was said in the case of Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken, 36 N. J. L. 540 (at p. 541) :

“Dedication is distinguishable from a grant in that a special grantee need not be in existence to accept the gift, and contrary to the rules of the common law, an interest in lands may thereby be granted without the intervention of the ordinary common law assurances. The intent of the donor may be gathered from his actions and declarations resting only in parole. But when that intention is once ascertained, tlie character and scope of the dedication are as unalterably fixed as if the gift had been consummated by a formal instrument of grant.”

In the case of Trustees of M. E. Church, Hoboken v. The Mayor, &c., 33 N. J. L. 13 (at p. 18), the court in speaking of a dedication said: “and in this respect it forms an exception to the general rules of transferring or granting an interest in lands, as it may be done without a deed, and without any person competent to accept the grant as grantee. The public is an ever-existing grantee, capable of taking a dedication for public uses.”

While the intent of the parties in the case' sub judice is to be gathered from the terms of a written instrument, nevertheless, having in mind the fundamental proposition that the dedication itself would not have to be consummated by a special written grant, it seems easy to gather the intention of the parties to the agreement in question to make a present dedication or offer of dedication for future acceptance by the public corporation from the provision found near the end of the agreement wherein it is stated that the road with its increased width and extension “is given and granted by the said Osborn and McDonald as a public road.” (Italics mine.)

It is, of course, true as stated in the stipulated facts, that the municipality has never taken formal action to accept the dedication, and that the present defendant and her predecessors in title have always paid the taxes levied by the city of Bayonne on the lands and premises described in the contract of sale between the parties in this action, and that they have been in physical possession of the lands and premises for the full width as described in said contract since the erection of the building thereon which was apparently in 1886. It further appears that the building extends over on to the eight foot strip along the southerly boundary of the premises in question. These facts, however, would not destroy the right of the public authorities to formally take over “Osborn Lane” as widened and extended at any time in the future, if there was really an intent to dedicate the same to public uses. The right of the public to appropriate a dedicated street to the public use at any future time when their wants or convenience may require it, attaches immediately on dedication. Lapse of time will not impair the public right. South Amboy v. New York and Long Branch Railroad Co., 66 N. J. L. 623; 50 Atl. Rep. 368; City of Long Branch v. Toovey, 104 N. J. L. 335 (at p. p. 338); 140 Atl. Rep. 415; Booraem v. North Hudson County Railway Co., 40 N. J. Eq. 557; 5 Atl. Rep. 106; Dvorin v. City of Bayonne, 111 N. J. L. 52; 161 Atl. Rep. 654.

Lead as a whole in connection with the exhibits which have been offered in this ease, there can be no doubt that Osborn and McDonald in their agreement of June 26th, 1854, intended that “Osborn Lane” as then existing as a private road should be widened and extended, not only for their mutual benefit as the former’s land had been cut off from all public highways, but also for the use of the public at such time as the public authorities might see fit to accept the dedication and assume the responsibilities incident thereto.

It is next contended by the defendant that no dedication has been accepted by the city of Bayonne and, therefore, the same could not be considered effective.

The difficulty with this contention is that the defendant fails to distinguish between the effect of dedication upon the donor and upon the donee. As was said in the ease of Dvorin v. City of Bayonne, supra:

“That recognition of a street description in the deed is as conclusive as if the street was dedicated by a map and although the municipality must accept it by formal adoption before it can be forced to repair the street dedicated, it is not essential to the consummation of the dedication so as to cut off the owner from the power of retraction or subject the dedicated lands to the public use, whenever, in the estimation of the municipal authorities, the wants or convenience of the public require it for that purpose.”

See, also, Hoboken Land and Improvement Co. v. Mayor of Hoboken, supra, and Long Branch v. Toovey, supra.

If there was a valid dedication by Osborn and McDonald, they have put it beyond their power to retract the same, and since the city might accept the dedication at any time in the future this fact would unquestionably make the title to the premises in question unmarketable.

In the fourth place, the defendant contends that the defendant and her predecessors in title have enjoyed undisturbed ownership, possession and control of the premises in question for a period in excess of thirty years and that any claim, therefore, which arose in favor of the city or members of the public prior to that time is barred and overcome by “An act for the limitation of suits respecting title to land.” Rev. 1877, page 598 (3 Comp. Stat., p. 3172), as amended by Pamph. L. 1922, ch. 188, p. 315; 1 Cum. Supp. Comp. Stat., p. 1816, § 28.

In the case of Dvorin v. City of Bayonne, supra, Vice-Chancellor Fallon said:

“It is well established that no right can be obtained against the public in dedicated lands by adverse possession, * * *. Lapse of time, however long the public right in a street is suspended, though coupled with an user by the owner, which would otherwise be adverse will not make title by prescription against the public.”

See, also, Price v. Inhabitants of Plainfield, 40 N. J. L. 608; Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken, supra; Dodge & Bliss Co. v. Mayor, &c., of Jersey City, 105 N. J. Eq. 545 (at p. 554); 148 Atl. Rep. 783.

It is evident from what has been said that the defendant could not cut off the public right by adverse user either under the statute or at common law.

The contract of sale in the instant case specifically makes the “unmarketability of title” a test of plaintiff’s right to rescind. Such a condition exists when for the vendee to accept the title proffered would lay him open to a fair probability of vexatious litigation with the possibility of serious loss. Eisler v. Halperin, 89 N. J. L. 278; 98 Atl. Rep. 245.

In the last cited case the court said:

“There may be some cases where equity would refuse relief to a vendor on account of doubtful features of title that nevertheless would not support a rescission by vendee and a suit ior recovery back of purchase-money paid; but if there be a substantial defect, the vendee may rescind and recover back his payments and interest if the title is not passed * * *. From all which considerations it should sufficiently appear that for the Eislers to accept the title proffered would lay them open to a fair probability of vexatious litigation with the possibility of serions loss. A title in that condition is plainly unmarketable and substantially defective and a purchaser is justified in refusing to accept it.”

Tested by the foregoing rule, there can be no doubt that the title in question is unmarketable and the plaintiff entitled to rescind the contract of sale. Indeed the defendant herself reveals in her brief and by a copy of an opinion of the Court of Chancery in another case between the defendant and another party, that there has already been litigation respecting the dedication here involved, which litigation was not conclusive of the questions here presented.

I, therefore, find in favor of the plaintiff and against the defendant for the sum of $1,100 with interest thereon from September 2d, 1930, amounting to $330, making a total of $1,430.


author: Pee Cueiam.

text:
    ELLEN LOWE, PLAINTIFF-RESPONDENT, v. ERNEST TEGEN, DEFENDANT-APPELLANT.
    Submitted May term, 1936
    Decided June 23, 1936.
    Before Brogan, Ctiiee Justice, and Justices Case and Perskie.

      For the plaintiff-respondent, Walter A. Beers.

    For the defendant-appellant, Wall, Haight, Carey & Hart-pence and James B. Laird, Jr.

   Pee Cueiam.

The appeal is by the defendant from a judgment entered in behalf of the plaintiff in the Essex County Circuit Court in a suit for damages growing out of injuries received by the plaintiff in being struck by an automobile owned and operated by the defendant.

Appellant complains first of the court’s refusal to grant either a nonsuit or a direction in favor of the defendant and argues thereon that the proofs fail to establish negligence against the defendant but on the contrary demonstrate conclusively the contributory negligence of the plaintiff.

The jury would have been justified in finding that: The plaintiff, a woman sixty years of age with somewhat defective eyesight but wearing trifocal glasses which gave her practical vision, at shortly after nine o’clock on Sunday evening, May 13th, 1934, was about to cross Clinton avenue at Eleventh street in the city of Newark. She made an observation up and down Clinton avenue and saw no automobiles approaching. Again, as she was on the point of crossing the street she made a further observation. She then progressed, on the cross-walk, to the middle of the street between the car tracks where she was struck by an automobile owned and driven by the defendant. Plaintiff’s course, expressed in terms of the direction in which defendant was driving, was from right to left, and her point of contact was at the left front headlight of the car. The defendant was driving at a “pretty fast” speed and had just passed another automobile which was traveling at a speed of twenty to twenty-five miles per hour. Although there was a large electric street light at the cross-walk, defendant did not observe the plaintiff until the automobile was about to hit her. >

We think that a jury question was clearly presented and that the court’s rulings were therefore without error.

Defendant also complains that the court charged the jury in the words of two requests presented by the plaintiff. The alleged fault is not that there was an erroneous statement of the law but that the evidence would not support a finding by the jury in that regard. The charges were impersonal. They consisted of abstract propositions of law and were pertinent to the issues. They present no error.

Judgment affirmed.


text:
    ANNA GRIFFIN AND JOHN GRIFFIN, PLAINTIFFS-RESPONDENTS, v. HOHORST, INCORPORATED, AND FRANK O’ROURKE, DEFENDANTS-APPELLANTS.
    Submitted May term, 1936
    Decided June 23, 1936.
    Before Bbogan, Chief Justice, and Justices Case and Perskie.
    Por the plaintiffs-respondents, Meyer Friedman and Meyer Pesin.

    Por the defendants-appellants, Armstrong & Mullen {Thomas J. Armstrong).

   Per Curiam.

The complaint grounds in personal injuries received by Mrs. Griffin from a fall suffered by her as she was alighting from the defendants’ bus, the fall being due, as alleged, to the negligence of the defendants in permitting an accumulation of ice to form on the bus step. Judgment went for the plaintiffs, and the defendants appeal.

Mrs. Griffin testified that at no time did she see any ice on the step but that, as she was attempting to arise from the ground after her fall, she took hold of the step to help herself up and, as she did so, felt ice on the step. Mrs. Griffin’s granddaughter, a child five years of age at the time of the accident and seven years of age when she was placed upon the witness stand, who had been in the company of Mrs. Griffin at the time of the accident, was asked, “did you see the ice there?” and answered, “no—yes.” She was then asked, “can you tell us about how much ice was there?” to which she answered, “no.” A pedestrian, who had been standing at the scene of the accident and had helped Mrs. Griffin to her feet, testified that he “saw a patch of ice and snow between three to four inches in diameter and a quarter of an inch thick” on the bus step. The sum of the testimony as to any icy step is therefore to be found in the last quoted sentence, and from it we accept, for the purposes of the case, that there was a bit of ice of the dimensions mentioned on the step at the time of Mrs. Griffin’s fall and that the fall was caused thereby. Presence of ice at the time of the accident is not, however, sufficient, under the circumstances of the case, to prove negligence. The doctrine of res ipsa loquitur does not apply.

The right of action depends upon negligence by the defendants, and the burden of proving that negligence is upon the plaintiffs. A bus company, like any other transportation company, is bound to inspect its vehicles but is not required to keep up a continuous inspection. Accumulations of snow and ice on car steps and platforms, which cannot be prevented in the prosecution of the carrier’s business, will not be imputed to it as negligence. It was said in Hunter v. Public Service Railway Co., 105 N. J. L. 300 (at p. 304); 144 Atl. Rep. 305:

“As has been stated, continuous inspection is not required. It would be unreasonable to hold a carrier liable for any condition of unsafety which might arise. The carrier owes a duty to transport passengers. This duty could not be performed if it was required, in order to escape liability, to have the steps of its cars free at all times from accumulations of ice and snow. To hold a carrier liable it must be shown that there has been a sufficient previous opportunity to remedy the danger. The plaintiffs’ proof was lacking in that there is nothing in the evidence to show how long the ice was on the platform, if it was there, and that the defendant below had had a sufficient previous opportunity to remove it.”

See, also, Baker v. North Jersey Street Railway Co., 77 N. J. L. 336; 72 Atl. Rep. 734, and Murphy v. North Jersey Street Railway Co., 81 N. J. L. 706; 80 Atl. Rep. 331.

There is positive testimony that there was no ice or snow upon the step when the bus began its trip a few minutes earlier. That testimony is uncontradicted unless there be a justified inference to the contrary in the quoted testimony. We think that that inference may not be fairly drawn. The street was full of snow and ice; snow had been banked towards the curb; Mrs. Griffin was wearing rubber overshoes and her granddaughter was wearing boots; the weather was cold; several other passengers had boarded the bus and some had alighted. There was, therefore, ample opportunity for pieces of ice and snow to have been tracked upon the step by the passengers since the trip had started.

Plaintiffs’ proof failed to show negligence. The refusal of the court to nonsuit and, later, to direct a verdict in favor of the defendants was, therefore, in our opinion, error.

Appellants also contend that there was legal error in the refusal to charge four certain requests. It seems to us that three of these requests were actually charged; but, whether they were or were not charged, exceptions to the refusal, if there was a refusal, were not taken and the alleged error is not properly before us. The fourth request was not framed in sufficiently comprehensive language for presentation, and we find no error in the ruling.

The judgment below will be reversed to the end that a venire de novo issue.


text:
    HUGO KRAUSE AND MARIE KRAUSE, PLAINTIFFS-RESPONDENTS, v. EMANUEL E. KATZ, INCORPORATED, A CORPORATION OF NEW JERSEY, TRADING AS BREAKERS HOTEL, DEFENDANT-APPELLANT.
    Argued May 6, 1936
    Decided June 23, 1936.
    Before Brogan, Chief Justice, and Justices Case and Persicie.
    For the plaintiffs-respondents, Robert N. McAllister and George T. Naame.

    Por the defendant-appellant, Thompson & Hansiein and John Lloyd, Jr.

   Per Curiam.

The appeal is from a judgment entered for the plaintiffs, husband and wife, against the defendant in the Atlantic Common Pleas for personal and property damage caused by an automobile collision.

Appellant presents six reasons for reversal, the first two of which are, respectively, that the court refused to nonsuit and refused to grant defendant’s motion for direction of verdict. It is admitted that the collision was between the automobiles of the respective parties. The question, in this phase of the case, is: Where did the fault lie? It is also conceded that the car of the plaintiffs was proceeding in a northerly direction on South New Jersey avenue and that the car of the defendant, just before the collision, was in process of being backed out of the driveway from defendant’s garage towards the street. Traffic was heavy and parking spaces well filled. It is contended by the defendant that at the instant of the impact its ear was standing motionless, partly on the sidewalk and partly in the gutter, and that the collision was caused by a swerving of the plaintiffs’ ear from the lane of traffic. However, it is in the proofs that plaintiffs’ car was moving along the highway in the space given over to traffic and that as it came to the driveway the defendant’s car, without warning, “shot out.” The marks of damage on the two vehicles were consistent with plaintiffs’ version and showed a collision between the rear side of the plaintiffs’ car and the back of the defendant’s car. The court was under the duty, of course, of accepting that version of the proofs that was most favorable to tlie party against whom the motions were aimed. The nonsuit and the directed verdict were properly denied.

Defendant’s next contention is that the admission of proof that the plaintiff Hugo Krause was obliged to employ additional sales persons because of the incapacity of his co-plaintiff wife was error. Assuming this to be so, we think that the error was harmless because the inquiry as to the amount thus disbursed was, on defendant’s objection, withdrawn.

The fourth and fifth points concern portions of the court’s charge. The coart charged the jury as follows:

“Contributory negligence is a charge that is made against one who claims to have been injured by the negligence of another, and who seeks to recover damages therefor. If it exists at all it is negligence in him—that is to say, the commission of some act by him or the failure to commit some act by him which, having regard to the legal duty upon him, and so on, a reasonable person would or would not have done, and which contributes to his injury in such a way that without his conduct the negligence would not have occurred.”

The objection is that this presentation is involved and confusing and that literally it is not a correct statement of the law of contributory negligence. We think that the point was well made. The form in which the charge is phrased, as well as the substance of the matter, seems to us not only to lack clarity but, when given correct and usual grammatical construction, to be an incorrect statement of the la v.

So, too, with respect to that portion of the court’s charge which reads as follows:

The negligence in this case is said to have occurred during the operation of motor vehicles upon one of the streets of Atlantic City and an adjacent passageway. So far as persons using the highways for the operation of motor vehicles is concerned, in reference to their guilt or innocence of negligence, the law is that persons lawfully using the highways for the operation of motor vehicles are required to so conduct themselves and to so operate their machines that they will not' cause injury to the person or to the property of any other person who may at the same time be lawfully using the same highway.”

The instruction that it was the duty of one lawfully using the highway so to operate his machine as not to cause injury to another is erroneous. The duty is to use reasonable care. Matheke v. United States Express Co., 86 N. J. L. 586; 92 Atl. Rep. 399.

Our examination of the sixth reason leads us to think that, while the portion of the charge there objected to is inartistic, it sufficiently presents the matter for the attention of the jury in the absence of a request for more particular language.

Judgment reversed; a venire de novo may issue.


author: Peb Cueiam.

text:
    JEANNE MAGNUS, PLAINTIFF-RESPONDENT, v. NEW JERSEY STATE FIREMEN’S ASSOCIATION, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May term, 1936
    Decided June 23, 1936.

      Before Beogan, Chibe Justice, and Justices Case and Pebskie.
    Por the plaintiff-respondent, McDermott, Enright & Carpenter and Carl 8. Kuebler.

    Por the defendant-appellant, King & Vogt and Robert II. Bchenck.

   Peb Cueiam.

The appeal is from a judgment in favor of the plaintiff. The action was brought to procure the burial benefits provided by law for the widow or next of kin of an exempt fireman.

Plaintiff’s husband became an active and lawful member of the fire department of the borough of Maywood September 7th, 1909. He was then a British subject but was naturalized as a citizen of the United States March 22d, 1912, and remained a citizen of this country until his death. He served seven full years as an active member of the Maywood fire department and on September 2oth, 1918, received from that department an exempt fireman’s certificate bearing the attestation of the mayor of the borough and declaring that he was entitled to all of the honors and privileges of an exempt fireman. That certificate was filed in the office of the clerk of the county of Bergen on October 3d, 1918. Purther, by virtue of it, Magnus was listed by the defendant upon its records as an exempt fireman.

Appellant’s first point is that its rules and regulations preclude payment to the respondent. We have examined the rather voluminous rules and regulations of the appellant and find none which, in our opinion, precludes the payment sued for. Particularly—and this seems to be the bone of the contention—we find no requirement that a fireman, in order to become eligible to benefits on the ripening of his exemption, must, as of the time when the decedent began his service, have been an American citizen at his entry into the department.

Appellant’s second point is that the moneys received by it are in the nature of tax moneys and that the persons entitled to benefit and share therein must be citizens and residents of New Jersey. We find no support for that contention either in the statute, the cases or the defendant’s rules and regulations.

Pinally it is said that the decedent’s exemption certificate was issued by an exempt association formed pursuant to Pamph. L. 1889, ch. 10, p. 19; 2 Comp. Stat., p. 2374, § 191, subsec. 1, is for a limited purpose and did not make either Magnus or his widow eligible for the benefits granted by the appellant. Magnus w’as, we find, an exempt fireman within the purview of the statutes and of the appellants’ rules and regulations. His status was sufficiently certified and the court below was justified in finding that his widow is entitled to the burial benefit.

The judgment below will be affirmed.


text:
    MAE KINGSLEY AND GLENVILLE KINGSLEY, PLAINTIFFS-RESPONDENTS, v. HOWARD A. WELCHER, DEFENDANT-APPELLANT.
    Argued May 6, 1936
    Decided June 23, 1936.

      Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the plaintiffs-respondents, Samuel E. Kresch.

    For the defendant-appellant, McCarter & English, Joseph O. Paul and Gerald McLaughlin.

   Per Curiam.

This is an appeal by the defendant, a physician and surgeon, from a judgment entered against him in the Hudson County Court of Common Pleas in an action brought by Mae Kingsley and. Glenville Kingsley, her husband, for damages resulting from ari operation alleged to have been negligently performed by the defendant upon Mrs. Kingsley.

The first point presented by the appellant is that the trial court erred in refusing to direct a verdict in his favor. The argument presented thereunder is to the effect that the affirmative credible testimony was of such a conclusive character that the court should have determined as a matter of law that the defendant did not perform the operation and that therefore the jury should be instructed to find for him. Inasmuch as the case comes up on appeal the question of the weight of the testimony is not before us. It was open to the jury to find from the evidence that the plaintiffs contracted with the defendant for the performance by him of an operation for the removal of tonsils and adenoids from Mrs. Kingsley’s throat; that Mrs. Kingsley, at the defendant’s direction, went to the Hasbrouck Heights Hospital for the operation; that Mrs. Kingsley was given preliminary attention by a nurse, put to bed and was shortly visited by the defendant who stated that he would be ready in a short while; that within a few minutes Mrs. Kingsley was taken to the operating room, was there placed under a general anesthetic, and was operated upon; that she was subsequently visited and given post-operative medical and surgical attention by the defendant; that she was informed by the defendant that he had “had a tough time with the operation” and that the operation had taken him nearly two hours to perform; and that the defendant was paid by the plaintiffs for the performance of the operation. The testimony of the defendant and of others in his behalf is that he had concluded that the operation had best be performed by another surgeon and that another had in fact performed the operation; but the question was one that, in our opinion, was controverted and was properly submitted by the court to the jury for the latter’s determination.

It is next and finally said that the trial court erred in permitting a hypothetical question to be asked of Dr. Magennis and in permitting another hypothetical question to be asked of Dr. Biddle, both of these men having been sworn as witnesses for the plaintiffs. The question propounded to Dr. Magennis was not answered in the form in which it was put. The testimony given by the witness was that the result shown by the present condition of Mrs. Kingsley’s throat is imperfect and that that condition may be due to improper action by the surgeon or to the condition of the patient—the witness was unable to say which. It is not denied by the defendant that the operation was negligently performed or that the throat does disclose the condition which Dr. Magennis attributed to it. The competency of Dr. Magennis to testify to the extent that he did and the relevancy of the testimony so given can hardly be questioned. We conclude that there was no reversible error in the court’s ruling.

. The transcript of the testimony shows that the question asked of Dr. Biddle was answered before objection was made thereto. But the objection, even if made in season, did not justify the bringing up of the ruling on appeal by exception for the reason that no grounds or reason for the objection were stated. Gluck v. Castles Ice Cream Co., 104 N. J. L. 397; 140 Atl. Rep. 419; Schnoor v. Palisades Realty, &c., Co., 112 N. J. L. 506, 508; 172 Atl. Rep. 43.

Judgment affirmed.