author: Per Curiam:.

text:
    HARRY KATZ, PROSECUTOR IN CERTIORARI, v. FANNIE ZEPELA, DEFENDANT IN CERTIORARI.
    Submitted October 19, 1931
    Decided February 15, 1932.
    Before Justices Tren chard, Daly and Donges.
    For the prosecutor in certiorari, Emil Neblo.

    For the defendant in certiorari, Minium & Weinberger.

   Per Curiam:.

This writ of certiorari brings up for review an order of the workmen’s compensation bureau which vacated an order made on February 28th, 1929, which latter order dismissed the petition for compensation of the defendant in cm-tiorari.

Fannie Zepela (hereinafter sometimes called the petitioner) is seeking to obtain compensation for the death of her husband as the result of an accident arising out of and in the course of his employment as a painter by Harry Katz, hereinafter sometimes called the prosecutor.

The accident occurred in Yew York City, on January 19th, 1928. Compensation proceedings were instituted in Yew York and resulted in judgment in favor of Mrs. Zepela against Katz but not against the insurance carrier on the ground that by the terms of the insurance policy the coverage was confined to the employers’ operating in the State of Yew Jersey. This judgment was affirmed by the Appellate Division on February 19th, 1929.

The prosecutor resided and has his place of business in Yew Jersey.

On December 4th, 1928, the petitioner filed a petition in this state for compensation, which was dismissed on February 28th, 1929, on the ground of lack of jurisdiction, the evidence then being, as in the Yew York ease, that the hiring took place in Yew York. Suit was started in this state on the Yew York judgment and then discontinued. Apparently the judgment against Katz is uncollectible. Subsequently a petition was filed seeking to have the order of dismissal set aside and the proceedings re-opened. On April 30th, 1931, an order was entered to this effect and prosecutor now seeks to have it set aside.

It appears that in the compensation case in Yew York, and at the time of the dismissal of the petition in Yew Jersey, Katz testified that he met the decedent in Yew York and hired him in that city. Later he was indicted for a violation of the Yew York statute in failing to carry insurance to cover his employes. Upon the trial of this indictment he testified that he hired decedent by telephone from his home in Jersey City. He further testified that his original story was prompted by an employe of the insurance company. Upon this testimony he was acquitted. So the petitioner now claims that a fraud was perpetrated upon the Yew Jersey compensation bureau when the petition was dismissed. It appears that this is so.

The prosecutor claims that the bureau was without jurisdiction to set aside the order dismissing the petition and that it could obtain jurisdiction only by the filing of a new petition, which he says could not be done here because more than a year has elapsed since the accident.

But we consider that this case is controlled, so far as this court is concerned, by the decision of the Supreme Court in Rose v. Wagner Construction Co., 2 N. J. Mis. R. 118, where it was said:

“The petitioner was working at the Jersey City yards of the Brie Railroad Company when his leg was accidentally crushed iñ a turntable and had to be amputated. Claiming to be the employe of the Erie Railroad Company, and on the theory that the injury had been sustained in interstate commerce, he brought suit in the federal court in New York under the federal statute. The trial of that suit was apparently delayed ‘and, while it was pending, he brought the present action under the Workmen’s Compensation act against both the Erie Railroad Company and the Wagner Construction Company in the alternative. Those companies appeared for trial on the day set, and the petitioner did not appear. The deputy commissioner, after granting an adjournment of a few hours, went on with the case in the afternoon in the absence of petitioner. The Wagner Construction Company admitted that it was the employer and consented to the compensation award; the Erie moved for and obtained a dismissal. ■ The deputy commissioner thereupon signed a judgment, which was entered as required by statute in the county clerk’s office. The claim of the prosecutor is that the jurisdiction of the commissioner ended at this point. However, counsel for petitioner went afterwards to the deputy commissioner and obtained from him an order vacating his previous order for judgment and setting aside ‘all judgments entered in any court,’ and placing the case again on the commissioner’s calendar for hearing. It is claimed that the deputy’s commissioner had no power to take this action and that the previous judgment should stand irrevocably except as affected by right of appeal. * * * But we consider that the statute does confer power to open such judgments, if not expressly, yet by plain implication. Section 11 of the act of 1918, page 433, both in its form as there enacted, and as amended in 1921 (page 733), provides that ‘the judgment of the said bureau shall be final and conclusive between the parties, and shall bar any subsequent action or proceeding, unless reopened by the said bureau or appealed as hereinafter provided.’ It is argued for the prosecutors that the subsequent portion of the statute contains no provision with respect to reopening judgment and does contain provisions with reference to appeal, and that we should, therefore, conclude that, because there is no provision for reopening as thereinafter provided, there can be no reopening. Our reading of the statute leads to precisely the opposite result. Taking the provision as a whole and in connection with its context, our construction of the same is that the clause ‘as hereinafter provided’ refers to the appeal and not to the reopening; in other words, that a correct construction of the sentence calls for a comma after the word ‘bureau.’ So read, there is, as we have just said, a plain implication of power to reopen, and this implication is in no way impaired by the previous provision in .section 10 with respect to modifying awards of compensation.”

The cases cited by the prosecutor in the case at bar deal with the modification of awards and are distinguished by the above language.

The effect of the above decision would seem to be to give the bureau the same control over its judgments that the common law courts have, and the rule there is that the power may be exercised at any time that the cause remains under the court’s control provided the moving party embraces the first opportunity he has of presenting his case. Assets Development Co. v. Wall, 97 N. J. L. 468. The defendant in the instant case seems to have been diligent.

The writ of certiorari will be dismissed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CHARLES HORTMAN, RESPONDENT, v. J. H. MORRIS COMPANY, APPELLANT.
    Submitted October 16, 1931
    Decided February 17, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    For the appellant, James J. McGoogan.

    For the respondent, Frank I. Gasey.

   Per Curiam.

The plaintiff was seriously injured, in part at least, by falling down the shaft of a temporary builder’s elevator operated by the defendant company and recovered a judgment against the appellant for damages which is now before us for review.

A preliminary question to consider is whether the matters argued on this appeal are now available to the appellant. There was a rule to show cause why a new trial should not be granted heard before the trial court. The reasons then assigned were, first, that the verdict was excessive; secondly, that it was contrary to the charge; and thirdly, that “the verdict is contrary to law.” The grounds of appeal assigned and now argued are that the court erred in refusing to non-suit, and also erred in refusing to direct a verdict for the defendant.

In the case of Cleaves v. Yeskel, 104 N. J. L. 497, it was held by the Court of Errors and Appeals that “on appeal from a judgment entered after defendant’s rule to show cause had been discharged, the appellate court will not consider and decide any question which was assigned as ground for setting the verdict aside on the rule, ¡such question being res judicata, whether argued or not, and although not decided in terms on the rule to show cause.” If, therefore, the grounds of appeal now urged were embraced within any of the three reasons assigned for a new trial, they cannot be now considered. Clearly they were not embraced in either the first or the second. The third, as we have seen, is that “the verdict is contrary to law.” Under the old practice such a reason was common enough and is to be found in a standard book like Besson’s New Jersey Law Precedents at page 207; but we are not aware of any reported decision in which its efficacy and purport have been discussed. It seems to be a sort of general assignment of error and, as such, would be entirely futile; and since the recent amendment of rule 125 of this court dating from 1915 in which it is provided that the party entering the rule shall write down the reasons upon which he rests such motion with such particularity as is now required in stating grounds of appeal, it would seem plain that the general reason that the verdict is contrary to law is something that the court on a rule to show cause is not required to consider, and properly should not consider. See Carey v. Deems, 101 N. J. L. 419 (at p. 423). Erom the memorandum filed by the trial court in discharging the rule to show cause, it is entirely plain that that court gave no consideration whatever to any reason except that of excessive damages. Notwithstanding the broad language of the case of Cleaves v. Yeskel, we think it is not applicable to a case where, as at present, the reason assigned is so vague, indefinite and general in character as to be of no legal effect whatever.

We turn, therefore, to the merits of the case.

The evidence fails to show how the accident happened beyond the fact that the plaintiff fell four floors to the bottom of the elevator shaft, following the elevator itself which was descending to the basement and having thereon two wheelbarrows, either empty or loaded with rubbish. The plaintiff was an electrician employed by the electrical contractor on a new building, who was a subcontractor of the defendant. The defendant had the general contract and had constructed the temporary elevator with its hoisting apparatus consisting of a steam engine in the basement and the usual ropes or cables and other appliances. There was a system of signals to guide the engineer in raising and lowering the elevator. The plaintiff and his fellow-workman, a man named Shafer, were working at or near the door leading into the elevator shaft on the fourth floor. There was a wooden grating which was kept most of the time in front of this door, but which at this particular time was not there. Whether the plaintiff and Shafer removed it or whether it had already been removed when they went to work at that point is not clear on the evidence. Prom the door of the shaft two planks, twelve or more feet in length, extended side by side to a finished portion of the floor at a slight incline from the elevator to the outer end and were intended to facilitate the wheeling of wheel-barrows, &c., from the elevator to the finished floor. These two planks were tied together by a short cross-plank at the entrance of the elevator and this cross-plank was nailed down to the other two planks-. The work that plaintiff was to do was to run a conduit under one or both of these planks and, in order to do this, it was necessary to take up one of the planks, and to take up that plank it was necessary to take off the cross-piece; and the only evidence on this point of the case is that of the plaintiff whose memory was badly impaired, if not destroyed, by the accident, and the testimony of Shafer. This evidence indicates that plaintiff was standing at a level of two or three feet below the plank on an old roof and was leaning over the cross-piece with a hammer in his hand in the act of taking off the cross-piece, or drawing a nail, when the elevator, without warning as the jury might find, came down from above with what is described as a swish, and the moment after it had passed, the plaintiff appeared to dive after it head first, his head coming between the two wheel-barrows, and was found in a state of collapse at the bottom of the .shaft. The evidence of one of the witnesses for the defendant, which is not contradicted, is to the effect that the cross-plank could not be taken up unless the grating or gateway was removed from its place. This is not so important on the question whether the plaintiff and Shafer removed it as to indicate that the plaintiff must have had his head very close to the opening of the .shaft, if not indeed partly within it. There is no evidence whatever of anything projecting from the elevator and no intimation that the elevator did anything except to move rapidly down the shaft at that juncture. There appears to be no testimony to show whether or not the plaintiff was struck on the head by the elevator. There were injuries to his head but they may as well have been caused by his fall down the shaft.

The motions, to nonsuit and direct were predicated both upon the alleged absence of negligence of the defendant and the alleged contributory negligence of the plaintiff. We think that there was at least a jury question with regard to negligence of the defendant, although it may well be doubted that such negligence, if it existed, was the principal cause of injury to the plaintiff unless it can be said that the plaintiff fell down the shaft because it was not protected by a gate, and can be further said that defendant was under a duty so to protect it while the plaintiff was working in that vicinity. On these points the case for the plaintiff is very meagre. But it .seems unnecessary to pursue this subject further because we consider that a clear case of contributory negilgenee was shown. The plaintiff was in a place where the open door of the shaft was perfectly obvious to him. In fact, it is clear from all the evidence in the case that it was necessary that that door should be open in order that he could do his work, lie necessarily knew that the elevator was constantly traveling up and down and it is impossible to see how he could have been struck by the elevator unless his head was partially within the elevator shaft. Ordinary common sense requires one who puts his head in an elevator shaft to see to it that the elevator is not coming down to strike him. There is nothing to show that there was any notice to the defendant or any of its servants, at any time that the plaintiff expected to intrude on the elevator shaft, and, therefore, there was no reason why the defendant should have to provide for such a contingency. If, therefore, the explanation of the accident is that plaintiff had his head in the elevator shaft and was struck by the descending elevator, the case for contributory negligence seems clearly proved. On the other hand, if the plaintiff simply fell down the elevator shaft knowing that the shaft was there, and that the doorway was open, the case is similar in all essential respects to Smith v. Van Sciver, 58 N. J. L. 190, in which a judgment of nonsuit was affirmed.

We conclude, therefore, that there was error on the part of the trial court in refusing to nonsuit or take the case from the jury and for this error the judgment must be reversed.


author: Ingeksoll, Y. C.

text:
    Henry Moss et al., complainants, v. Pleasantville Mutual Loan and Building Association, a corporation of the State of New Jersey, defendant.
    [Decided January 27th, 1932.]

      Mr. John D. McMullin, for the complainants.

      Mr. Elwood C. Weeks, for the defendant.
   Ingeksoll, Y. C.

The complainants, the heirs-at-law of one Richard Moss, deceased, allege that the defendant, being the owner of certain lands in Atlantic county, on October 1st, 1929, entered into an agreement with one Herman J. Eve to sell said premises to said Eve for a certain consideration; that they are unable to set out the terms of said agreement for the reason that the same is not of record and the defendant refuses to give them a copy thereof; that on October 4th, 1929, said Eve agreed to convey said premises to said Richard Moss for a consideration therein expressed. The complainants also allege that the said loan and building association approved said “transfer.”

This allegation is denied by the secretary of the association, who said that no such action was taken by the loan and building association, and that he, as secretary, had no knowledge of any connection between Moss and Eve.

On March 6th, 1930, the dwelling house (being the principal building upon said property) was destroyed by fire, and the loan and building association received from the insurance company a payment of loss by reason thereof.

That since said time the defendant removed the personal property from said premises and has agreed to convey a portion of said premises to another, who is not made a party hereto.

The complainants pray that an account be taken of the amount due defendant, that defendant be ordered to execute a deed to complainants, and that it be restrained from conveying or encumbering the premises.

The agreement between the defendant and Eve, which was referred to in the bill, was offered in evidence. It is an agreement to convey, by deed of general waranty, when fully paid for, clear of all encumbrances, upon the conditions thereinafter set forth, the lands and premises in question. It contained also the following clause:

“3. The party of the second part assumes and agrees to pay all taxes and other carrying charges upon the said lands and premises from the date of this agreement and also keep the lands and premises insured against loss by fire, with loss payable to the party of the first part; and in the sum of fifteen hundred dollars ($1,500).
4. If at any time default shall be made in the payment of the dues, premium, interest, fines or any other moneys above provided for, for a period of six months in the aggregate or if the party of the second part fails to keep the property insured as above provided for or the taxes paid not later than December 31 for any year for which the taxes have been assessed, then at the option of the party of the first part upon thirty days’ written notice, mailed to the party of the second part, this agreement may be terminated; and in such case all moneys paid by the party of the second part to the party of the first part shall be applied and considered as rental for the said lands and premises, and liquidated damages.”

The agreement between Eve and Moss is evidently a modified copy of the agreement between the loan and building association and Eve.

The complainants, before they can succeed, must show some contractual relation between the decedent and the loan and building association. I find as a fact that the existence of such contractual relation, in so far as the conveyance of this property is concerned, was not proven.

It follows, therefore, that it is unnecessary to consider the insistence of the defendant that the destruction of the dwelling house by fire excused the performance of the contract, as was held in Perlee v. Jeffcott, 89 N, J. Law 34.

ISTo right for a conveyance appearing, there should be no accounting in this court, an adequate remedy (if any right exists) being in the law courts.

The bill must be dismissed.


author: Beeey, V. C.

text:
    Wallace S. Myers, complainant, v. Florence Helen Myers, defendant.
    [Decided January 30th, 1932.]

      Mr. Albert J. Biederman, for the complainant-petitioner.

      Mr. George R. Sommer, for the defendant.
   Beeey, V. C.

The complainant and the defendant are man and wife and a suit for divorce is pending between the parties in this court. This bill was filed to secure an accounting of $856.10 alleged to have been withdrawn by the defendant from a joint savings bank account in the names of both parties. On the return of an order to show cause herein it appeared that all the money, except about $250, had then been spent by the defendant and restraint against the disposition of the balance pendente lite was imposed. Complainant now seeks to have defendant adjudged in contempt for spending about $100 of this balance since that restraint was imposed. The matter comes before me on the return of an order to show cause "why the defendant should not be committed to jail” for contempt. It appears that the sum in controversy was spent for medical treatment—doctors’ bills and medicines—and clothing for an infant child of the parties whom the complainant has neglected and refused to support. The defendant is undoubtedly technically in contempt and will be so adjudged, but no punishment will be imposed. The present proceeding is quite evidently born of love turned to hate. This is a court of equity, but not of vengeance. The defendant is admonished to keep the balance of the fund, about $150, intact pending final disposition of this cause, but if necessity arises, appropriate application may he made.


author: Ackerson, S. C. C.

text:
    EDWARD O’TOOLE, PLAINTIFF, v. ROBERT O’TOOLE AND SALLY E. O’TOOLE, DEFENDANTS.
    Decided February 16, 1932.
    For the plaintiff, Richard Doherty.

    For the defendants, Perkins & Drewen.

   Ackerson, S. C. C.

This matter comes before me upon a motion supplementary to a motion heretofore ruled upon by me, wherein I struck out the entire answer of the defendants except that part thereof which denies endorsement to and ownership by the plaintiff of the note upon which the suit is based as there was no proof offered upon that subject. In the course of my previous memorandum, I suggested that if counsel could agree that said note was endorsed over to the plaintiff and owned by him, I would strike out the entire answer, whereupon, by my permission, the plaintiff has presented this supplementary motion to strike out the entire answer, and has supplied the missing proof hereinbefore mentioned, and the defendants have not only failed to supply any evidence to the contrary, but their counsel have informed me that they have advised them that their failure so to do would result in their answer being stricken out.

In view of what has already been said, it is apparent that I have no other recourse than to grant the plaintiff’s motion to strike out the entire answer, and in so doing I make my memorandum on the last motion a part hereof.

An order may be presented striking out the answer in accordance with the conclusion thus reached.


author: Smith, C. C. J.

text:
    POWER BUILDING AND LOAN ASSOCIATION, A CORPORATION, PLAINTIFF, v. AJAX FIRE INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Decided February 16, 1932.
    Por the plaintiff, Julius H. Ealprin.

    Por the defendant, Lum, Tamblyn & Golyer.

   Smith, C. C. J.

The plaintiff is the holder of a fire insurance policy issued to it by the defendant and has it by reason of the fact that the plaintiff holds' a mortgage on the property covered by the policy. The policy has endorsed upon it the mortgagee clause, making it payable to the plaintiff as mortgagee to secure it on its mortgage, the amount of which is not stated in the agreed state of facts. The plaintiff was the holder of a third mortgage, and there was other insurance issued to the owner and to the other mortgagees. The fire loss was fixed at $600, and if it were prorated among the other insurance policies, the amount which the defendant would have to pay to the plaintiff would be $94.37. The mortgagee clause does not contain any provision for contribution, and it has what might be called the non-contribution clause.

This endorsement on the policy is for the protection of the mortgagee and is a separate contract between the defendant and the plaintiff from that of the agreement in the policy between the defendant and the owner.

The building covered by the policies following the fire was condemned, and subsequently the property was foreclosed and the plaintiff purchased it at the foreclosure sale and became the owner of the fee. Subsequently to that a prior mortgagee instituted foreclosure and became the owner of the fee under said foreclosure, so that the plaintiff herein lost title to the premises covered by the mortgage.

It is my conclusion that where there is no contribution clause and the loss is made payable to the mortgagee under a separate contract of insurance contained in the mortgagee clause endorsed on the policy, that the plaintiff is not obligated to accept from the defendant only its pro rata share with the other insurance for the amount of the loss suffered by the property. It is entitled to have its security remain unimpaired by the fire up to the amount of its insurance, and to have in place of the loss sustained the amount of cash which it would receive from the policy. The defendant is protected by its mortgagee clause under its right of subrogation, so that upon payment of the amount of the loss, it can be subrogated to a share in the mortgage which the amount paid bears to the amount of the mortgage, and assert the mortgagee’s right under the mortgage to that extent, or pay the full amount of the mortgage debt and receive an assignment of the mortgagee’s collateral.

The mortgagee clause provides: “Whenever this company shall pay the mortgagee (or principal) any sum for loss or damage under this policy and shall claim that as to the mortgagor or owner no liability thereof exists, this company shall, to the extent of such payment, be thereupon legally subrogated to all of the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee (or principal) the whole principal due or to grow due on the mortgage, with interest, and shall thereupon receive a full assignment and transfer of the mortgage and all such other securities; but no subrogation shall impair the right of the mortgagee (or principal) to recover the full amount of its claim.” See Palmer v. Niagara Fire Insurance Co., 87 N. J. Eq. 347.

The defendant has not made any tender of either the $600 amount of the loss or the full amount of the mortgage, and therefore has not asserted its right of subrogation which it has for its protection. The fact that the property has been sold under foreclosure to the plaintiff subsequent to the loss cannot affect the rights of the parties. The mortgage clause itself provides that “the interests of the mortgagee shall not be invalidated by any foreclosure or other proceedings or notice of sale of the property, nor by any change to the title or ownership of the property.”

The conclusion I have arrived at seems to be sustained by Vice-Chancellor Foster in the case of Palmer v. McFadden, 86 N. J. Eq. 377 (at p. 383).

Judgment will therefore be entered in favor of the plaintiff for the amount claimed.


text:
    FLORENCE DEVINE AND PATRICK DEVINE, HER HUSBAND, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDI-NATED TRANSPORT ET AL., DEFENDANT.
    Submitted October 16, 1931
    Decided February 17, 1932.

      Before Gummere, Chiee Justice, and Justices Pakkee and Case.
    Por the plaintiffs, Harry Helier.

    Por the defendant, Henry J. Sorenson and Henry H. Fryling.

   Per Curiam.

The plaintiffs, husband and wife, riding in a Pord car driven by the husband, were about to cross a trolley track of the named defendant from west to east, when the car was struck by a trolley car of said defendant going from south to north, and practically demolished. The female plaintiff sustained personal injuries, the severity of which is in dispute; her husband was not injured but joined his claim per quod and also a claim for loss of the Pord car. There was a verdict of $10,000 in favor of the wife and $2,539 for the husband. The reasons argued are refusal to nonsuit, refusal to direct verdict for defendant, verdict against weight of evidence, and excessive damages. A fifth reason directed to a passage in the charge is abandoned.

At the time of the accident the plaintiffs were living on a small farm lying on the west side of the main road from Bordentown to Trenton. In the space apparently allotted to the road, but west of the concrete roadway and between it and plaintiffs’ farm and close to the edge of the road, ran the single trolley track of the defendant. At the south of plaintiffs’ farm and between it and the next property to the south, a narrow lane ran at right angles to the road, sloping downward to the trolley track between banks, weeds and thick shrubbery which cut off all view to the south until the road was reached. To the north, over plaintiffs’ property, there was a better view as the plaintiff Patrick had cut down the growth to some extent. The two plaintiffs in their car proceeded eastwardly through the lane and down the incline, stopped with the front wheels about two feet from the track (so runs Patrick’s testimony) and both looked and listened. They could not see, because the shrubbery cut off the view to the south. The engine of the Ford—an old car assembled from parts of other cars, and which Patrick had purchased for $50'—was running, and he testified that he could not hear the trolley with the engine running. Although it was the 30th of August, the windows of the Ford were all closed except that on Patrick’s left, so that he could put out his hand as a signal. This open window was on the side away from the approaching trolley car. Florence was also looking and listening, and testified that the motor was running and “she guessed that was the reason she could not hear the trolley car coming.” She said the Ford did not stop fully at any time. Be this as it majr, it was moved ahead into the open, after looking in a place where one could not see, and listening under conditions when one could not hear, just in time to be caught at the right front wheel or in that neighborhood by the left front of the trolley car as it passed the end of the lane.

As to the plaintiff Patrick Devine, we think there should have been a nonsuit or a direction on the ground of contributory negligence, assuming the negligence of the motorman, of which we shall presently have something to say. It seems plain to us, on the plaintiffs’ own testimony, that knowing of the conditions as to visibility and the obvious danger of “going it blind” ordinary care required Patrick to stop his car and if necessary to see, get out and make sure of his safety. If the running of the engine prevented his hearing, he should have stopped the engine. The' ease seems fully within the ruling of the Court of Errors and Appeals üi Merkle v. New York, &c., Railroad Co., 49 N. J. L. 473, where the rattling of bottles in the wagon prevented hearing a train which could not be seen because of obstructions to the view.

As to the wife, it is not clear that she was other than a passenger in the Ford car, although she helped her husband on the farm, and although she also, according to her testimony, “was watching for traffic and trolleys both ways” and “did not see nor hear anything.” It is not claimed, however, that her husband’s negligence is imputable to her and consequently the question of contributory negligence as affecting her is whether her own negligence as a passenger is so plain that the court should have taken that also from the jury. We are not disposed so to hold. Then as to the negligence of the motorman, it is clear that he was familiar with the lane crossing and accustomed to give warning of his approach, and there is a clear conflict of evidence as to whether he did so on this occasion. Whether he was negligent was for the jury and we do not feel justified in disturbing their finding either on negligence or contributory negligence of Mrs. Devine.

We consider, however, that the verdict of $10,000 was excessive. The medical evidence was, as often happens, contradictory to some extent, but no bones were broken, and we feel that the jury made a clearly extravagant appraisal of her injuries. If she will accept a reduction to $5,000 the verdict in her favor may stand, otherwise it will be set aside. The rule as to the husband will be made absolute.


author: Case, J.

text:
    W. MARTIN VAN WAGNER, PROSECUTOR, v. FRANCIS V. LOWDEN ET AL., DEFENDANTS.
    Decided February 17, 1932.
    Dor the prosecutor, Stein, Stein •& Stein.

    Dor the respondents, Guy W. Gordon.

   Case, J.

W. Martin Yan Wagner seeks a writ of certiorari whereby he may test the legality of two certain resolutions passed by the council of the borough of Roselle on January 1st, 1932, the effect of which was definitely to terminate the connection of Yan Wagner, theretofore borough engineer, with the said office of the said borough engineer, to declare the office vacant and to appoint another, not as borough engineer, but to perform certain .services of an engineering character. Yan Wagner was originally appointed borough engineer in January, 1923, and held that office from that time until January 1st, 1932, by recurring reappointments. On January 1st, 1930, prosecutor was reappointed by the mayor of the borough and the appointment was confirmed by the borough council. On January 1st, 1931, and thereafter, the mayor of the borough failed to make an appointment to that office, whereupon, on May 7th, 1931, the common council, exercising its statutory authority (the mayor having failed to make an appointment for thirty days after January 1st, 1931), appointed prosecutor to the office of borough engineer for the remainder of the year 1931, the specific wording of the appointment being “that W. M. Yan Wagner be appointed borough engineer for that part of the year 1931 which remains.” On January 1st, 1932, the mayor and council of the borough passed the questioned resolutions, the first of which recited that whereas the office of the borough engineer had expired at the end of the year 1931 and it was the judgment of council that the services of a borough engineer were not necessary to the affairs of the borough, and that economy and good government required that such office should remain vacant until the necessity to obtain the services of such an officer should arise, and resolved that Mr. Yan Wagner, whose term expired at the end of 1931, should not hold or continue to occupy the position of borough engineer for any term whatever and declared the office of borough engineer-vacant; and the second of which appointed one John L. Miller to advise the council on pending engineering matters at a compensation much less than that which had theretofore been paid Yan Wagner.

The statutory authority for the appointment of a borough engineer is contained in the Borough act (Pamph. L. 1897, p. 285, as amended by Pamph. L. 1908, p. 104, and Pamph. L. 1922, ch. 141, p. 248), and reads as follows:

“In addition to the officers to be elected * * * there may be appointed * * * a borough attorney * * * and so many other officers as may be deemed necessary by the said council, who shall perform such duties as are or may be provided for by law or ordinance of said council not in conflict with law. * * * All said officers shall hold office during the pleasure of the council; provided, that no officer shall be removed without giving him an opportunity to be heard; unless sooner removed, however, they shall hold office for one year and until their successors shall have qualified. Whenever a vacancy in any such office occurs, such vacancy shall be filled by appointment for the unexpired term only.”

It seems clear that the appointment by the council on May 7th, 1931, was and could have been only until the first day of the following January. Florey v. Fanning, 90 N. J. L. 12.

The only pertinent ordinances that have been brought to my notice as pertinent to the situation and in effect on January 1st, 1931, 'are designated Ordinances Nos. 717 and 718, respectively. No. 717 provided for the appointment of the borough engineer and determined his functions. The second, a supplement to the first, fixed compensation. Repealers of these ordinances were introduced on January 1st, 1932, and were actually passed and approved on January 28th, 1932. Inasmuch as Ordinances Nos. 717 and 718 covered the entire subject-matter of the borough engineer’s office and contained within themselves repealers of inconsistent ordinances, I am obliged to conclude that, with the repeal of ordinances 717 and 718, all ordinances of the borough relating to the subject-matter have been repealed. Nothing to the contrary of this proposition has been submitted to me.

It is argued on behalf of Van Wagner that the statute provides that borough engineers and like officers “shall hold office for one year and until their successors shall have qualified” and that, therefore, Van Wagner’s term of office continues until he either is removed or until his .successor shall have qualified, and that, inasmuch as he has not been removed and no successor has qualified, he is still in office; and that the passage of the two resolutions on January 1st, 1932, threatened to disturb the prosecutor in the enjoyment of his office and, therefore, should be reviewed by certiorari.

I do not take that view. The borough council at its first opportunity after its reorganization on January 1st, 1932, and contemporaneous with the passage of the two resolutions in question, introduced repealers of the borough engineer ordinances and, after due advertisement, passed the same. As the situation now is there are no ordinances in existence providing for the appointment or compensation of a borough engineer, and there is the very clearly worded resolution of the mayor and council that the office of borough engineer is vacant. It cannot very well be argued that because the mayor and council, in the discretion imposed by the statute, determined to appoint a borough engineer that they must forever go on appointing a borough engineer or, failing appointment, retain in office the individual last appointed to that position. It is true that the repealers had not been made effective at the time the resolutions were passed, but both the repealers and the resolutions were made operative at the earliest date possible after the organization of the council. Independently of the disputed resolutions, the office of borough engineer was vacant, from and after January 1st, 1932, in the sense that there was no documentary title to the office. Abrams v. Smith, 98 N. J. L. 319; 119 Atl. Rep. 792. We now have the proposition that the prosecutor’s appointive term is ended, the mayor and common council, with whom lay the statutory discretion to appoint such an official, have determined that the office should be and is vacant, and the authorizing ordinances have been repealed. The prosecutor was not entitled to notice of any of these proceedings. His' documentary title to the office ended January 1st. The ordinance that created the office having been repealed, there does not now appear to be any office.

It was the agreement of counsel that, if the writ were allowed, it would be moved before me as a .single justice. I can see no point in allowing a writ inasmuch as the prosecutor has not, in my opinion, the color of office. The writ is denied.


author: Eldredge, C. C. J.

text:
    EMMONS G. ELZEY, PLAINTIFF, v. AJAX HEATING COMPANY AND COLUMBIA RADIATOR COMPANY, DEFENDANTS.
    Decided February 17, 1932.
    Before Eldkbdge, judge of the Circuit Court.
    Eor the plaintiff, Albert B. Melinck.

    Eor the defendant Columbia Badiator Company, Mark Marritz.

    For the defendant Ajax Heating Company, David F. Greenberg.

   Eldredge, C. C. J.

Application is made to this court for a declaratory judgment respecting the operation and effect of a certain clause contained in a contract hereinafter referred to.

On December 1st, 1931, the plaintiff entered into a contract with the. defendant Ajax Heating Company for the installation by the said defendant of a heating system in the premises occupied by the plaintiff, for the sum of $800. The said contract was later assigned by the defendant Ajax Heating Company to the Columbia Eadiator Company, the other defendant herein. The fifteenth paragraph of the contract above referred to provides as follows:

“It is hereby agreed that the purchaser herein named does hereby waive all rights to defend against the assignee in the event said contract is assigned, on any grounds whatsoever, and especially on the ground of defective work by the contractor or vendors herein named, reserving his rights to proceed against the assignor for any defective work or for any other reason that might constitute a legally sufficient defense to the contract herein set forth.”

The plaintiff alleges that the heating system installed under the contract is defective in workmanship and that there is insufficient radiation installed, as a result of which the premises occupied by him are not properly heated. An initial installment has been paid on account of the contract, and a second installment is due on February 25th, 1932.

The plaintiff adopts this method of having the contract construed because he alleges that if he defaults in his payment of February 25th and suit is brought against him by the assignee of the contract, a judgment in favor of said assignee would be for the whole balance due and he would lose the advantage of his right to make installment payments. He, therefore, asks that, the clause in the contract above recited be construed, to the end that it be declared invalid to the extent that it precludes the interposition of a defense as against the assignee, on the ground that the said clause is against public policy.

There can be no question that there are certain contracts that are unenforceable at law, and among them are contracts the objects of which are regarded by common law as contrary to pubic policy.

Public policy was defined by Vice-Chancellor Lane in Driver v. Smith et al., 89 N. J. Eq. 339, as being “that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against public good, which may be designated as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law.” Tested by this principle, it is difficult to see how the clause in question can be said to be “injurious to the public” or “against public good.” It constitutes nothing more than a waiver of a right of action which, without the presence of the clause, the plaintiff would have and to deprive him of the right to agree to such a waiver would, in the judgment of the court, be more against public policy than the enforcement of the clause itself.

In the same authority above mentioned, the vice-chancellor ■quoted Jessell, Master of Rolls, as saying in Printing Registering Co. v. Sampson, 19 Eng. L. & Eq. 462, 465; 21 E. R. C. 696: “It must not be forgotten that you are not to exceed arbitrarily those rules which say that a given contract is void .as being against public policy, because if there is one thing which more than any other public policy requires, it is that men of full age and of competent understanding shall have the utmost liberty in contracting and that their contracts, when entered into freely and voluntarily, shall be held sacred •and shall be enforced by the courts of justice. Therefore you have this paramount public policy to consider—that you .are not lightly to interfere with this freedom of contract.”

The court, therefore, determines and declares that the said paragraph, in so far as it precludes a defense by the plaintiff •as against the assignee, is valid and effective in law, and that no defense may be interposed by the plaintiff in the ■event of a suit against him by the defendant Columbia Radiator Company.


text:
    GEORGE H. LURKE AND HERMIA M. LURKE, BY THEIR NEXT FRIEND, GEORGE T. LURKE, AND GEORGE T. LURKE, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. JOHN HAGEDORN, DEFENDANT-PROSECUTOR.
    Submitted October term, 1931
    Decided February 19, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    For the plaintiffs-respondents, Durand, Ivins & Carton {James D. Carton> of counsel).
    For the defendant-prosecutor, McDermott & Finegold {Max Finegold, on the brief).
   Per Curiam.

The defendant, Hagedorn, prosecutes his rule to show cause why the verdict should not be set aside and a new trial granted for the single reason that the verdict is contrary to> the weight of the evidence. The argument is made in two parts, first, that the defendant was not negligent and, second, that the plaintiff George H. Lurke was guilty of contributory negligence. The action arises out of a collision between the automobile of the plaintiff George T. Lurke, driven by his son, George H. Lurke, and carrying Hermia M. Lurke and others as passengers, and an automobile driven by the defendant, Hagedorn, on a state highway between Freehold and Hightstown on the night of March 2d, 1930. Different portions of the testimony were divergent to the point of being in direct contradiction. There was evidence which, if believed, was sufficient to prove that the Lurke car was proceeding at a lawful rate of speed along its proper side of the highway when the car driven by the defendant, approaching rapidly from the opposite direction, suddenly and without warning swerved from its course and smashed into the other car. Evidently the jury, as it had a right to do, believed that testimony. We are unable to say that the testimony in contradiction thereof was of such weight or greater credibility as to justify the setting aside of the jury verdict. This is true both as to the question of direct negligence of the defendant, and of the contributory negligence of the plaintiff George H. Lurke.

The rule to show cause will be discharged, with costs.


author: Pee Cubiam.

text:
    ELEANOR COARI, BY HER NEXT FRIEND, VIRGILIO COARI AND VIRGILIO COARI, PLAINTIFFS, v. JULES LOLLI, DEFENDANT.
    Submitted October 16, 1931
    Decided February 19, 1932.
    Before Gummeee, Chiee Justice, and Justices Pakkee and Case.
    For the rule, Cole & Cole.

    Contra, Solve Tuso.

   Pee Cubiam.

This is on rule to show cause why the verdict of the jury in the amounts of $16,500 for Eleanor Coari and $530 for Virgilio Coari should not be set aside and a new trial awarded.

The points presented are that the verdict is against the clear weight of the evidence and that the verdict is grossly excessive.

The action was for personal injuries to Eleanor Coari received by her from being struck by the auto bus owned and driven by the defendant as the plaintiff was crossing a highway known as Central avenue, Minotola. Virgilio Coari is the father of Eleanor and sued for consequential damages. The jury was well within the evidence in finding liability on the part of the defendant. The defendant’s own testimony is dispositive of that issue. The defendant admits that at a distance of five hundred feet he saw the plaintiff starting to cross the street; that at a distance of three hundred feet he saw the plaintiff in the middle of the highway; that at a distance of one hundred and fifty or two hundred feet he sounded his horn and diverged toward the side of the road; that he did not put on his brakes, however, until he felt the plaintiff’s body in contact with his arm which was protruding from the window of his bus. There was nothing to obstruct his continuous view of the plaintiff from the time he first observed her until the impact between the bus and her body. The assertion that the horn was sounded was disputed. The defendant was negligent in the operation of his bus. We cannot say that the plaintiff was shown by the weight of the evidence to be guilty of contributory negligence.

We think, however, that the verdict of $16,500 for Eleanor Coari was excessive. If consent be given to the reduction of the verdict of Eleanor Coari to the sum of $12,000, the rule will be dismissed; otherwise the verdicts will be set aside and a new trial granted only as to the amount of damages.


author: Pek Cukiam.

text:
    TOMASINA DAMICO, RESPONDENT, v. LOUISE MAYER, APPELLANT.
    Submitted October 16, 1931
    Decided February 19, 1932.
    Before Gummeke, Chief Justice, and Justices Pakkek and Case.
    Por the plaintiff-respondent, Stephen A. Damico (Ellis S. Gottlieb, of counsel).
    Por the defendant-appellant, Albert G. Abbott.

   Pek Cukiam.

Plaintiff sued for the recovery of moneys usuriously paid to the defendant over and above the sum actually loaned on mortgage to the plaintiff plus lawful interest. The mortgage debt, including usury, had been paid in full, without protest, by the plaintiff to the defendant approximately two and one-half years before the institution of this action for the recovery. At the close of the trial the court directed a verdict for the plaintiff. Defendant appealed. Her reasons are, first, that the trial judge erred in refusing a request for a direction of a verdict in favor of the defendant, second, that the trial judge erred in granting a request for a direction of verdict in favor of the plaintiff, and, third, that the trial judge should have granted the request for a direction of a verdict in favor of the defendant because the testimony clearly showed that the plaintiff had voluntarily paid an alleged usurious debt in full, thereby waiving her right, subsequently, to bring this action.

The third point is a variation of the first, and neither the first nor the third point is before us for the reason that no such motion appears by the record to have been made and no objection noted.

The respondent contends that appellant may not raise the second point because no exception was taken at the trial. The situation was that the attorney for the plaintiff moved for a direction of verdict in favor of his client. Attorney for the defendant argued vigorously against the granting of that motion. At the conclusion of the argument the court said: “Well, I am going to direct a verdict for the plaintiff, and you [viz., the attorney for the defendant] can take it up to the Supreme Court and make some law over it.” We shall assume, without deciding, that the point is properly before us for consideration. The single matter presented by the appellant thereunder is that the court’s ruling was in error for the reason that it was within the province of the borrower to waive her rights under the usury laws and that, having paid the entire debt, including usury, without objection, she thereby did forever waive her right of recovery. Appellant’s brief assumes that the moneys were in fact usuriously paid and received. The decision by the Court of Errors and Appeals in Weitz v. Quigley, 88 N. J. L. 617, approving Brown v. McIntosh, 39 Id. 22, established the right of a borrower to maintain an action for the recovery of usurious payments upon the theory that money usuriously paid is had and received by the lender for the use of the borrower under an implied promise to repay it to him. The right of the borrower to maintain an action for the recovery of usurious payments is, therefore, established by the highest court of this state. That is a complete answer to appellant’s argument.

Judgment below will be affirmed.


text:
    SADIE TAYLOR AND MANZY TAYLOR, HER HUSBAND, IN HIS OWN RIGHT; EDITH TAYLOR AND ONEY TAYLOR, HER HUSBAND, IN HIS OWN RIGHT; NANCY PATTERSON AND CLAYBURN J. PATTERSON, HER HUSBAND, IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS, v. CHARLES ADKINS, DEFENDANT-PROSECUTOR.
    Submitted October term, 1931
    Decided February 19, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    For the plaintiffs-respondents, Walter 8. Keown.

    For the defendant-prosecutor, French, Richards & Bradley.

   Per Curiam.

This is a negligence action arising out of an automobile collision. The six plaintiffs, in a sedan car owned' and operated by plaintiff Clayburn J. Patterson, were proceeding eastwardly along Chestnut street in the city of Camden. As their car was passing the Fourth street intersection defendant’s truck, coming from the north along Fourth street and crossing Chestnut street at right angles, struck the sedan car at the rear of the latter’s left side, immediately over and back of the left rear wheel, swinging that car end foremost around into Fourth street, causing the sedan to overturn at the same time driving it against a truck which stood near the east curb of Fourth street in such fashion that the latter truck was pushed off the highway against a brick building on the inner line of the sidewalk, uprooting an intervening tree. Verdicts went against the defendant and in favor of the several plaintiffs as follows: Sadie Taylor, for personal injuries, $1,000; Manzy Taylor, husband of Sadie, for personal injuries and also for consequential damages arising out of his wife’s injuries, $1,500; Edith Taylor, for personal injuries and loss of profits from her hairdressing business, $4,000; Oney Taylor, husband of Edith, for personal injuries and consequential damages arising out of his wife’s injuries, $1,500; Nancy Patterson, for personal injuries, $1,500; Clayburn J. Patterson, husband of Nancy, for personal injuries, property damage to his automobile and consequential damages arising out of his wife’s injuries, $2,000. -

Defendant, having sued out a rule directing the plaintiffs, and each of them, to show cause why the verdicts should not be set aside and a new trial granted, assigned twenty-nine reasons and enumerates nine points.

The first point is that the verdicts are against the clear weight of the evidence. We think not. The oral testimony supplemented by the mute evidence of the photographs showing the damaged automobile and the site of the collision is ample to sustain a finding of negligence against the defendant. Likewise we find adversely to the defendant on his second point, which is on the subject of contributory negligence.

The defendant next argues that the amount of the damages is excessive. Considering the verdicts separately, as of course we must, we do not find that any one of them is so exorbitantly high as to make manifest that the verdict was not the result of fair, impartial and dispassionate consideration of all the unimpeached evidence in the cause.

Defendant next complains that the court refused to charge . that the proof by plaintiff Clayburn J. Patterson of a payment of $246.76 for repairs to the automobile was not to be considered by the jury and that the question of damage to the automobile or of recovery therefor was eliminated. We think that the court’s refusal was justified. Teets v. Hahn, 104 N. J. L. 357; 140 Atl. Rep. 427; Hintz v. Roberts, 98 N. J. L. 768; Maurer v. Simon, 4 N. J. Mis. R. 409. The damage to the automobile was shown by the testimony and the photographic exhibits sufficiently to make the request inappropriate. Beyond peradventure Patterson, defendant’s liability being assumed, was entitled to nominal property damages and that of itself would invalidate the request as worded.

The alleged error set forth in point five is not dignified by argument and we find no error.

We find no substance in point six, seven or eight.

We discover no harm to the defendant in the matter complained of under the ninth point.

The rule will be dismissed, with costs.


text:
    ELIZABETH HRADECKY, PLAINTIFF-RESPONDENT, v. JOHN GAVA, DEFENDANT-APPELLANT.
    Submitted October 16, 1931
    Decided February 19, 1932.
    Before Gummeke, Chief Justice, and Justices Pakkeb and Case.
    Por the plaintiff-respondent, Anna B. Hogan.

    Por the defendant-appellant, Auienreith, Gannon d? Wortendyhe.

   Pek Cukiam.

Plaintiff is a factory worker, who, on May 17th, 1927, as she was coming, for her noon lunch, out of the building where she was employed, found the sidewalk removed and, endeavoring to cross the space, fell and was injured.- Defendant is a contractor who, under employment by some public agency, was engaged in the removal of the old, and the building of a new, sidewalk along the street on which the building was located. Plaintiff sued, charging the defendant with negligence in the work, and recovered a judgment for $800. Defendant appeals and argues two points, first, that the plaintiff by her own negligence proximately contributed to the injuries of which she complains and is, therefore, not entitled to recover in the action, and, second, that plaintiff, knowing the danger involved in attempting to cross the excavation, took upon herself the risk of injury and, therefore, is not entitled to recover for the consequences.

The testimony upon which defendant relies in making these points is exclusively that of the plaintiff herself. Her testimony in effect is that on the morning of May 17th as she entered the building for her daily work the sidewalk was in its usual condition and the old flagging was still there, that at noon when she came out the sidewalk was torn up, but that, as there was a narrow ledge between the front of the building and the sidewalk line, she went up and down that ledge seeking a place to cross. Finding no other crossing, she stepped upon the ground where the sidewalk had been and, having put one foot down, her other foot went into a hole of soft earth extending above her ankle, thus throwing her and causing the injury. We do not read in the plaintiff’s testimony proof of that knowledge of existing conditions and incidental danger which counsel for the defendant argues is there.

It appears in part from the testimony given by the defendant, John Gava, and in part from the testimony given by defendant’s witness, Louis Gava, that not only had the sidewalk been torn up but that an excavation had been dug, that much rain had been falling and that the earth was soft. John Gava testifies: “I excavate in the morning, then excavate nothing at all the day.” Louis Gava testifies: “The day is rain, you know. I figure to myself, I say, ‘people has got to go in and go out.’ I say, ‘put another one [viz., board to walk on] because to-day is bad.’ ” Trom this testimony it appears that not only had the flagging, or, as it is sometimes called, the “sidewalk,” been torn up, but a fresh excavation had been made and the earth was freshly mired with rain. That situation does not appear in the plaintiff’s testimony nor is knowledge thereof on her part anywhere shown. The weather, according to her knowledge, was and had been clear. So far as appears she did not know, until the damage had been done, that she was stepping into wet, soft earth. A reading of excerpts from her testimony may seem to indicate that she undertook to cross the sidewalk space knowing that she could not get across, and upon that is built the argument of contributory negligence and assumption of risk; but her testimony fairly read as a whole is she could not get across without crossing the space where the sidewalk had been. Her effort was to find some other means of exit, but that does not prove that she knew of pitfalls in the sidewalk area. It further appears by the plaintiff’s testimony that the boards, which the Gavas said had been placed from the building entrance to the street to meet the exigency which they knew existed, were not in fact there. The plaintiff did know that she was stepping into an area where flagstones had been and were not, but that knowledge does not carry with it an imputation of the danger that is incident to stepping into freshly excavated earth bogged by recent rain. We think that the circumstances of the case do not bring it within the rule stated in Vorrath v. Burke, 63 N. J. L. 188. The questions of contributory negligence and assumption of risk were left to the jury, as we think they should have been, and under a charge of which the defendant does not complain.

We find no error under either of the points presented and conclude that the judgment below should be affirmed.


text:
    AGNES TIERNAN AND EDWARD TIERNAN, RESPONDENTS, v. B. & S. MOTOR SERVICE, INCORPORATED, APPELLANT.
    Submitted October 16, 1931
    Decided February 19, 1932.
    Before G-ummere, Chief Justice, and Justices Parker and Case.
    Por the respondents, Schneider & Schneider (Jacob Schneider, of counsel).
    Por the appellant,- Green <£; Green (David Green, of counsel).
   Per Curiam.

This is an appeal by the defendant-appellant from a judgment of the Essex County Court of Common Pleas entered upon a jury verdict in favor of the plaintiffs and against the defendant.

Pive points are presented in the appellant’s brief, the first four of which are grounded in the refusal of the trial court to charge certain requests.- The request discussed under the first point contains this sentence: “When the plaintiffs’ evidence is equally consistent with the absence as with the existence of negligence on the part of the defendant, plaintiff must fail.” That is a misstatement of the law, as all of the evidence, not merely the evidence given on behalf of the .plaintiff, goes to the jury. Where a party asks for an instruction which is partly good and partly bad, it is proper to refuse it altogether. Dederick v. Central Railroad Co., 74 N. J. L. 424. The request next considered contains this sentence: “The duty to exercise reasonable care by the person using the highway is mutual, and every person may assume that others traveling on the highway will comply with his obligation.” Given the ordinary and correct grammatical construction, this means that a person may assume that the obligation resting upon him will be complied with by others—• which clearly is not what counsel intended and is not a correct statement of the law. The request must stand or fall by the language in which it is presented to the court unless modified by counsel. Manchester Building and Loan Association v. Allee, 81 N. J. L. 605. In much the same manner the third and fourth requests fail to present clear and correct concepts. In the last request this sentence occurs: “When stopping or slowing up the driver of the vehicle so doing shall keep the arm and hand in a steady position with palm to the rear.” The sentence is complete within itself. Counsel evidently intended these words to be part of a reference to the provisions of the Traffic act, for consideration by the jury in determining the question of negligence; but he did not make this clear. He left the request in such shape that the quoted sentence could be understood by the jury, not as an incidental fact, but as a controlling statement of the pertinent law. Therein the request was faulty. We find no error in the court’s refusal to charge any of these requests.

The final point is that the verdict of the jury is irregular, improper and uncertain and insufficient to sustain a judgment based thereon. The argument presented under this point is that on the request of the defendant the jury, having rendered its verdict through the foreman, was polled and one of the jurymen said, “for the defendant * * * I mean for the complainant,” and that this incident vitiated the verdict. On behalf of the respondent it is argued that the polling of a jury is irregular in a civil cause. We find it unnecessary to consider the merits of the controversy. This point was presented before the trial court on a rule to show cause why the verdict should not be set aside. The appellant thereby lost his right to have the matter reviewed by an appellant tribunal. Faragasso v. Introcaso, 98 N. J. L. 583; Balint v. Stein, 9 N. J. Mis. R. 591.

The judgment below should be affirmed.


text:
    RICHARD T. SMITH, RESPONDENT, v. EDWARD A. RYAN, APPELLANT.
    Submitted October 16, 1931
    Decided February 19, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the plaintiff-respondent, Quinn, Parsons & Doremus.

    Por the defendant-appellant, Autenreith, Gannon & Wortendyke.

   Per Curiam.

Plaintiff sued in a negligence action far alleged damage to his motor boat and personal property thereon resulting from a collision with another motor boat owned and operated by the defendant. The jury awarded a verdict in favor of the plaintiff for $1,200, and from the judgment entered thereon the defendant appeals. The defendant argues two points in his brief, and we assume that such grounds as are not included within the argued points are waived.

None of the grounds included within the argument are stated with such particularity as entitle them, under our cases, to be considered. State v. Blaine, 104 N. J. L. 325; Hintz v. Roberts, 98 Id. 768. Nevertheless we have considered the points advanced and find no error therein.

The first point is that the trial court committed harmful error in admitting over objection a witness’ estimate of the probable cost of repairing the plaintiff’s boat. The only objection stated at the trial was that the measure of damage was the difference between the value before and after the collision and that an estimate was not evidential thereon. The witness was the proprietor of the Eed Bank Yacht Works and a part of his business was the building and repairing of boats. His testimony disclosed that he had knowledge of the condition of the boat at and prior to the collision. He further testified to the details of the damage, for the repair of which his estimate was made. Undoubtedly the measure of damages was the difference between the value of the boat before and after the injury; but it has been held more than once that the cost of repairs is at least evidential on that point and consequently evidence of cost of repairs is legitimate. Hintz v. Roberts, supra; Maurer v. Simon, 4 N. J. Mis. R. 409; Judge v. Starr, 5 Id. 283.

The second point is that the trial court committed harmful error in permitting, over objection, plaintiff to read to the jury a list of certain articles of personal property, lost or damaged because of the collision, with the prices that he had paid for each of them. The objection at the trial was to the propounding of the question, and the ground stated was that the price paid for an article was not evidential as to the value of the article at the time of the accident. Witness was asked the further question: “Will you kindly refer to your list again and tell us approximately when you purchased each of those articles and for how long you used each and for what kind of use you employed them from the time of their purchase until the accident?” The witness gave the information thus requested. We consider that the question objected to, fortified by the testimony last recounted, was, as against the objection stated, admissible under the rule stated in Teets v. Hahn, 104 N. J. L. 357.

Judgment below will be affirmed.


text:
    SARAH VAN BRUNT, PLAINTIFF-RESPONDENT, v. CHARLES WIENER, JACOB WIENER AND ABRAHAM WIENER, PARTNERS, ETC., ET AL., DEFENDANTS; CHARLES WIENER, DEFENDANT.
    Submitted October 16, 1931
    Decided February 19, 1932.
    Before Gummere, Chiee Justice, and Justices Parker and Case.
    Por the plaintiff-respondent, Eugene T. Sharkey.

    Por the defendant-prosecutor, Giordano, Golden & Hurley {Jules J. Golden, of counsel).
   Per Curiam.

The suit is in the New Jersey Supreme Court, Monmouth Circuit, for the recovery of damages for personal injuries suffered by the plaintiff on August 29th, 1929, in a collision between an automobile in which the plaintiff was a passenger and a truck driven by defendant Abraham Wiener and, according to the original complaint, alleged to have been owned by Charles Wiener, Jacob Wiener and Abraham Wiener, partners trading as Charles Wiener & Sons. Beatrice Denying, owner and driver of the car in which the plaintiff was a passenger, was made a party defendant, but the plaintiff submitted to a voluntary nonsuit as to her. Before the case went to the jury the complaint was amended to contain three counts, the first count charging liability against the Wieners as partners trading under the firm name of Charles Wiener & Sons, the second count being in the alternative against the same persons as trading under the name of Charles Wiener & Sons in the pursuit of a common enterprise, and the third count, also in the alternative, charging Jacob Wiener as owner of the truck and Abraham Wiener as his agent. The jury returned a verdict against Charles Wiener, Jacob Wiener and Abraham Wiener under the second count in the sum of $7,000. The rule to show cause issued to Charles Wiener, alone, and the argument is that the trial court erred in denying his motions for a nonsuit and for a directed verdict.

Charles Wiener is the father and Jacob and Abraham, brothers, are the sons of Charles. The plaintiff in her effort to prove the relationship of the defendants to each other and to the tort sued upon called all three of these defendants to the witness stand. The defendants were, as plaintiff’s witnesses, obviously hostile and so termed by the trial judge; though this phase of the case is not an essential factor in our review.

The defendants were engaged in the plumbing and heating business in the city of Long Branch. The parts that they severally took in that business and towards each other are, according to their testimony, rather kaleidoscopic. The contention in behalf of the prosecutor of the rule is that there was no testimony to support the proposition that Charles Wiener at the time of the accident was participating in a joint enterprise with Jacob Wiener and Abraham Wiener, both or either, or that Abraham Wiener, in driving the truck on the morning of the accident, was acting in furtherance of any joint undertaking in which Charles Wiener participated. Our sole study will be to ascertain whether there was any such testimony, for if there was, then upon the motions for a nonsuit and for the direction of a verdict the court was not at liberty to consider the weight thereof but was under the obligation to take as true all the evidence which supported the viewr of the plaintiff and to give her the benefit of all legitimate inferences that were to be drawn therefrom in her favor. Andre v. Mertens, 88 N. J. L. 626.

’Abraham Wiener, having testified that the name of “Charles Wiener & Sons” was on the truck which he was driving at the time of the collision, was asked: "Q. You are a member of that firm, are you not? A. I am not. Q. Do you know the members of the Charles Wiener & Sons firm? A. They happen to be my father and brother. Q. Your father and brother? A. As members of the firm.” And further: "Q. Now, Charles Wiener & Sons is engaged in the business of plumbing and heating; is that so? A. Yes, sir. Q. And sheet metal work? A. No; they are sellers of sheet metal work. Q. But they are and were in August of 1929, engaged in plumbing and heating? A. Yes, sir. * * * Q. And at that time weren’t you working for Charles Wiener & Sons ? A. No, not always.”

It further appeared that all the Wieners did business at the same address, No. 2 Second avenue, which was a combination dwelling, where they all lived, and store and office where Charles Wiener & Sons did business. Not only did the truck bear the names Charles Wiener & Sons, but the stationery used by Jacob and by the father bore that same title as a business head. Charles, it appears, had a plumber’s license to do business within the city of Long Branch but not outside that municipality, and when the outside job, toward which Abraham was driving at the time of the collision, came along this situation, as testified to by Jacob, developed: “He [the father, Charles] just had a Long Branch license, and I told my father I would take this job independent and I went out and got a license and I made a contract and I did the work;” but as to the materials: “I took them from him.”

So, it was in evidence that Charles Wiener and his son Jacob constituted the firm of “Charles Wiener & Sons;’’ that each of them in doing business used stationery bearing that name as a letterhead; that a truck having that same name operated from No. 2 Second avenue, where Charles Wiener & Sons was the only business concern with an established business office; that that truck caused the collision; that at the time of the collision the truck was being driven by Charles’ son, Abraham, and was carrying materials, which were furnished by Charles, to a job that was being done by Jacob. There was contradictory testimony. But we consider that the evidence and the inferences that might legitimately be drawn therefrom in favor of the plaintiff were such as to justify the court in leaving to the jury the issue of the existence of the joint enterprise and the participation by Charles Wiener therein.

The rule to show cause will be dismissed, with costs.


author: Bbown, S. C. C.

text:
    HOWARD BRADFORD, PLAINTIFF, v. THE COMMONWEALTH CASUALTY COMPANY, A CORPORATION, AND INDEPENDENCE INDEMNITY COMPANY, COMMONWEALTH DIVISION, DEFENDANTS.
    Decided February 20, 1932.
    For the plaintiff, William J. Cain (Alfred Brenner, of counsel).
    For the defendants, Holmwood & Creighton.

   Bbown, S. C. C.

This matter comes before the court on the plaintiff’s motion to strike out the answer filed by the defendants on the ground that the pleading is sham. According to the complaint the defendant Commonwealth Casualty Company on the 5th day of July, 1929, issued a policy of insurance to one Benjamin R. Sarsons, in which policy it was agreed'—• •

“To pay all sums which the assured shall become liable to pay as damages imposed by law for bodily injuries (including death at any time resulting therefrom) caused as the result of the ownership, maintenance or use of any automobile described in said declarations, but not exceeding the limits of insurance expressed in paragraph 9 of the declarations.” $ $ $

“To pay (a) all costs taxed against the assured in any legal proceeding defended by the company, according to the foregoing paragraph and interest accruing upon the judgment rendered in connection therewith;- (b) all premium charges in attachment or appeal bonds required in such legal proceedings- and (c) all expenses incurred by the company for investigation, negotiation and defense.”

On January 8th, 1930, Benjamin R. Sarsons, the insured, while driving his automobile in the city of Bayonne, came into collision with the plaintiff, Howard Bradford, as a result of which Bradford charged Sarsons with being careless in the operation of his automobile and brought suit in the Court of Common Pleas of Hudson county for the injuries sustained.

At the trial of the case on the 26th day of October, 1931, the jury returned a verdict in favor of the plaintiff against Sarsons in the sum of $5,383. A judgment was entered and in due course execution was issued and returned by the sheriff unsatisfied. Hnder these circumstances the plaintiff charges that the Commonwealth Casualty Company is liable under its policy to pay this judgment and in this connection relies on chapter 153, Pamph. L. 1924, p. 352.

In pursuance of the requirements of the statute above cited the policy contained this provision:

“D. The insolvency or bankruptcy of an assured shall not release the company from payment of damages sustained or loss occasioned during the life of the policy and if execution against assured in an action for damages is returned unsatisfied because of such insolvency or bankruptejq the injured or his personal representative in case of death may maintain an action against the company for the amount of the judgment obtained not exceeding the limits of the policy.”

The plaintiff also charges in his complaint that while the policy of insurance did not contain provisions of chapter 116, PampJi,. L. 1929, p. 195, that nevertheless, under the law the policy was issued subject to provisions of said law which provides in part—

“The liability of any company under a motor vehicle liability policy shall become absolute whenever loss or damage covered by said policy occurs and the satisfaction by the insured of a final judgment of such loss or damage shall not be a condition precedent to the right or duty of the carrier to make payment on account of such loss or damage. No such policy shall be canceled or annulled as respects any loss or damage by any agreement between the carrier and the insured after the said insured has become responsible for such loss or damage and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against any person for any such loss or damage if the judgment debtor was at the accrual of the cause of action insured against liability therefor under a motor vehicle liability policy, the judgment creditor shall be entitled to have the insurance money applied to the satisfaction of the judgment.” * * *

The limit of liability under the policy was $10,000.

The complaint contains the allegation that the defendant Commonwealth Casualty Company refused and neglected to pay the judgment thus recovered and that the defendant Independence Indemnity Company became merged with the other defendant and assumed all the obligations and liabilities of the Commonwealth Casualty Company.

In the affidavit presented upon the argument of the motion to strike the defendants admit the allegations of the complaint to be true except that they deny liability relying upon the separate defenses wherein it is charged that Sarsons violated his agreement with the defendants in that he did not co-operate with the defendants as required by paragraph “C” of the policy which provides:

“C. The assured shall not voluntarily assume any liability, or incur any expense, other than for immediate surgical relief, or settle any claim, except at the assured’s own cost. The assured shall not interfere in any negotiation for settlement, or in any legal proceeding, but, whenever requested by the company, and at the company’s expense, the assured shall aid in securing information and evidence and the attendance of witnesses, and shall co-operate with the company, except in a pecuniary way, in all matters which the company deems necessary in the defense of any suit or in the prosecution of any appeal, and pending the prosecution of any such appeal the company shall not become liable to pay until final judgment has been rendered establishing assured’s liability.”

The defendant in its separate defenses charges that Sarsons violated the co-operative provision of the policy in that the insured misled the defendants; * * * by violating the co-operative provision of the policy charging “upon the first trial of the suit mentioned in the complaint the assured knowingly falsified his testimony concerning the occurrence of the accident and in that upon the second trial of the suit mentioned in the complaint the assured knowingly falsified his testimony concerning the occurrence of the accident.” It further charged that the policy of insurance does not come within the perview of chapter 116, Pamph. L. 1929, p. 195, in that the policy was issued before the said law became effective.

The case was tried twice in the Common Pleas, the first trial on March 16th, 1931, and the second trial on October 26th, 1931. By agreement of counsel a transcript of the testimony of Benjamin R. Sarsons was used on the argument of the rule the same as if depositions were taken for the purpose of producing that testimony.

A reference to the testimony of Sarsons at the trial of March 16t,h, 1931, discloses that he testified:

“Well, when I was going south on Avenue C about fifteen feet or twenty feet from Fifty-second street, I seen a man step off the curb into the street. Well, I swung to the left and I couldn’t escape hitting the man, so I swerved to the left and the running board of the car seemed to hit him below the knee.”

At the second trial of the case on October 26th, 1931,- he testified, upon 'direct examination, substantially in effect the same as he did at the previous trial. His testimony in this connection is as follows:

“Q. What was the first thing that happened? A. When I was coming along the northwest corner I was going about twenty miles an hour and I seen a man come out from behind a parked car. Q. Where did he come from, do you know? A. The northwest corner, from the sidewalk. Q. And how far away from you was he when you first saw him ? A. About ten foot.”

On cross-examination at the second trial the witness recanted and admitted that he was not telling the truth in giving his testimony and in answer to a question from the plaintiff’s attorney Sarsons stated: “Q. And you didn’t see him walking, did you? A. Ho, sir. Q. So when you told me only a moment ago again that you saw him walking off of the sidewalk, that wasn’t the truth, was it? A. Ho. Q. So you couldn’t see where he walked from, could you? A. Ho, sir. Q. And you never saw him walking, did you? A. Ho, sir. Q. Either east, west, north or south? A. Ho, sir.”

And on redirect examination, in an answer to a question from his own attorney, he stated: “Q. Then, when you told me before, Mr. Sarsons, that Mr. Bradford walked off the curb, in front of a parked car, you weren’t telling me the truth as to what happened, is that right? A. Ho, sir.”

Upon this happening the attorney for Sarsons requested permission from the court to withdraw from the case stating that the defendant insurance company did not wish to waive its rights of defending under its policy on the ground that Sarsons had failed to co-operate with the insurer. This request was refused and the attorney was directed to proceed to the conclusion of the trial.

Considering first the question raised by the pleadings that chapter 116, Pamph. L. 1929, should be given a retroactive effect and thereby render nugatory the defense of want of co-operation on the part of the insured Sarsons. The record discloses the policy became effective on its date, July 5th, 1929; the accident occurred on January 8th, 1930; the act was approved April 16th, 1929, and by its terms became effective November 1st, 1929. It thus appears that the accident occurred between the date of the policy and several months after the 1929 law became effective. It is a well established rule in the construction of statutes that they are not to b.e given a retroactive effect unless the language is such as to show clearly that it was so intended. Especially is this true where there is involved a contractual relationship entered into before the statute became effective. Wittes v. Ripko, 107 N. J. Eq. 132. Applying this rule to the case in hand the conclusion is reached that the 1929 act is not retroactive so as to prohibit the defendant companies from asserting, by way of defense, the failure of their insured to co-operate with them as required by the terms of the policy.

The question then presented for determination is whether Sarsons failed to co-operate with the insurance company as required under the terms of the policy. In determining this question the co-operative provision of the policy should be subjected to the common and ordinary meaning of the language contained therein and not a strained or technical construction. Sarsons agreed with the defendant company to “co-operate with the company * * * in all matters which the company deems necessary in the defense of any' suit.” This is a material provision of the policy and a condition precedent and failure to perform, in the absence of waiver or estoppel, constitutes a defense to a charge of liability on the policy.

This provision of the policy does not require the insured to be a mere tool in the hands of the insurer but he is obliged to perform the terms of his contract of insurance on a reasonable and substantial manner. If the assured by fraudulent and collusive conduct, with a third party, impairs in a substantial degree the rights of the insurer then such conduct can be alleged as a defense to an action seeking to hold the insurer liable. The assured cannot arbitrarily and unreasonably decline to co-operate with the insurer, neither can he give false testimony, knowing the same to he false, and permitting the insurer to rely thereon to its detriment. Eailure to co-operate on some inconsequential or immaterial matter cannot be set up as a defense nor can it hardly be a ground for a defense where an insured makes an honest mistake.

In this case it appears by the insured’s own admission that he testified falsely and it also appears that the insurer relied upon this testimony. When the admitted falsity of the testimony was disclosed the defendant company asserted its objection and the insurer now claims that this false testimony substantially effected its right, under the policy.

The court is not called upon, on this motion, to determine as a fact that the testimony was false and that it did substantially effect the insurer as there appears sufficient facts in this connection to warrant the dispute being submitted to a jury for its consideration. Seltzer v. Indemnity Insurance Company of North America, 169 N. E. Rep. 403; Coleman v. New Amsterdam Casualty Co. (Court of Errors and Appeals), 160 Id. 367. See, also, 72 A. L. R. 1443.

The motion to strike the answer will be allowed as to all of the defenses interposed except that of a general denial of liability and the defenses set forth in the separate defenses and an order may be taken to that effect.


text:
    IN THE MATTER OF THE COMPLAINT AGAINST CHARLES E. S. SIMPSON, AN ATTORNEY AND COUNSELOR-AT-LAW OF THE STATE OF NEW JERSEY.
    Argued February 8, 1932
    Decided March 1, 1932.
    Before Justices Tbenohaed, Daly and Donges.
    For the motion, John Drewen.

    Contra, Robert H. McCarter.

   Per Curiam.

In this matter a complaint was made against Charles E. S. Simpson, an attorney and eounselor-at-law of this state, charging unethical and illegal conduct upon his part. That complaint was duly referred to the state board of bar examiners for investigation and report. Their report disclosed that due hearing was accorded and that they found and reported Charles E. S. Simpson “guilty of unprofessional conduct; that he is unfit to continue a member of the bar, and recommend that he be disbarred and his name struck from the rolls of attorneys and counselors of this state.”

Due examination and consideration of the matters laid before us at the argument on this motion for confirmation of the report results in the conclusion that the report must be confirmed and that said Simpson be disbarred and his name stricken from the rolls of attorneys and counselors of this state, and it accordingly is so ordered.


author: Pee Curiam.

text:
    ANTHONY DAMATO, PETITIONER-RESPONDENT, v. CONSTANTINO DE LUCIA, RESPONDENT-PROSECUTOR.
    Submitted October 19, 1931
    Decided March 1, 1932.
    Before Justices Trenchard, Daly and Donges.
    Eor the petitioner-respondent, Meehan Brothers (John J. Meehan, of counsel).

      For the respondent-prosecutor, McDermott, Enright <& <■Carpenter (Carl 8. Kuebler, of counsel).
   Pee Curiam.

This writ brings up a determination and judgment of the workmen’s compensation bureau awarding compensation to the respondent employe.

It appears that the respondent, Anthony Damato, was employed by the prosecutor of this writ at the latter’s bakery in the town of Raritan. The employment was an illegal one in view of the provisions of chapter 80 of the laws of 1923, the respondent being under the age of sixteen years. He became caught in .a mixing machine and his arm was fractured in two places and his right hand had to be amputated. A petition was filed claiming compensation under chapter 159 of the laws of 1924 (page 359) entitled “An act to .amend an act entitled An act prescribing the liability of an employer to make compensation for injuries received by an ■employe in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder’ ■approved April fourth, one thousand nine hundred and eleven.” While that proceeding was pending the respondent, by his next friend, &c., instituted an action at law in the 'Supreme Court (Somerset Circuit) seeking damages under the common law. That action came on for trial and resulted in a judgment for the respondent of $4,500 and for his parents of $1,313.25 which judgment has been satisfied. Respondent then proceeded under his petition to the workmen’s •compensation bureau and was awarded double compensation for one hundred and seventy-five weeks in accordance with the prayer of the petition. The prosecutor, the employer, -then sued out this writ, and contends, first, that, under the provisions of Pamph. L. 1924, p. 357, the respondent had no right of recovery other than that at common law which he pursued successfully.

But this contention appears to run counter to the course ■of our decisions and to the intent of the act of 1924 as construed by our courts.

Prior to the act of 1924, this court held that “where a minor under sixteen years of age was employed to operate a laundry machine in violation of the Factory act, the common law liability was not affected by the Workmen’s Compensation act, for that act applies only where the contract of hiring is a valid one. Lesko v. Liondale Bleach, Dye and Print Works, 93 N. J. L. 4. See, also, Boyle v. Van Splinter, 101 Id. 89.

Now, in the present case it is conceded that the employment was prohibited by the statute and the prosecutor of this writ in his brief says this: “Essentially this review involves a question of the construction and possibly the constitutionality of chapter 159 of the laws of 1924 which amends section 2, paragraph 9, of the act commonly known as the Workmen’s Compensation act. This statute provides, among other things, that if the minor is between fourteen and sixteen years of age and is employed in violation of the labor law the compensation award shall be double the amount allowed in the schedule set forth in the Workmen’s Compensation act and that the employer and not the insurance carrier shall be liable for the extra compensation.” And he further properly points out that the 1924 amendment concludes with the following paragraph: “Nothing in this act contained shall deprive an infant under the age of sixteen of the right or rights now existing to recover damages in a common law or other appropriate action or proceeding for injuries received by reason of the negligence of his or her master.”

Looking at our decisions we find that the act of 1924 and the proviso above quoted has already been construed by our courts.

In Mauthe v. B. & G. Service Station, 139 Atl. Pep. 244, a verdict recovered in a common law action was sustained by the Supreme Court. In the course of the opinion it was-said: “Joseph Mauthe was a minor of the age of fifteen and a half years and therefore under the age of permissive employment, under the statute, in the service of which he was engaged. This being true the common law remedies of the administrator of his estate were not affected by the Workmen’s Compensation acts. Fier v. Weil, 92 N. J. L. 610; Lesko v. Liondale Bleach Works, supra. Bnt it is contended that chapter 159 of the laws of 1924 (page 359) provides a statutory remedy in such ease which supersedes the common law remedy. The difficulty with this contention is that the second section, paragraph 9, of the act, expressly provides that nothing in the act ‘shall deprive an infant under the age of sixteen of the right or rights now existing to recover damages in a common law * * * action or proceeding for injuries received by reason of the negligence of his or her master.’ We think the result reached by the earlier decisions above cited are not intended to be modified by the statute in question.”

However, the prosecutor of this writ under this head argues* that “the amendment provided by chapter 159, laws of 1924, does not provide a compensation remedy in addition to the common law remedy.”

But that argument finds no support in the language of the proviso, or in our decision, but the contrary is indicated.

■ In Terlingo v. Belz-Parr, Inc., 106 N. J. L. 221, recovery was had by the father of an infant who was illegally employed, as general administrator and as administrator ad prosequendum, and upon appeal it was argued that the act of 1924 took away the right of recovery for the death and provided for recovery only under the statute.

That contention was held to be unsound, and Mr. Justice Bodine, speaking for the Court of Errors and Appeals, said of the 1924 statute: “By express legislative language the infant is not deprived of any rights which existed either at common law or by virtue of anjr other appropriate action or proceeding. These words of legislative purpose cannot be construed so as to deprive the representative of the deceased infant of existing rights. The legislative purpose in making this amendment is perfectly clear. The minor is given certain additional rights and is deprived of none that that exist. True, the dependents are given certain new rights, but no purpose is expressed to deprive them of those that existed. The statute is remedial, and in the absence of words an intention to curtail existing rights is not to be presumed.” That very definite statement, apparently made for future guidance, that the act gave the minor certain additional rights and deprived him of none that existed, would seem to result in the conclusion that the compensation remedy was open to the infant in addition to the common law remedy.

The only other reason assigned for setting aside the judgment is: “Because if the object of chapter 159 of the laws of 1924 was to give the minor employe double recovery against the employer in addition to his recovery at common law, such act is unconstitutional and violates article 4, section 7, paragraph 4, of the constitution of the State of New Jersey, in that such law embraces more than one object and the object or result of such construction of the law is not expressed in the title.”

Our examination of the title of the act which is quoted herein results in the conclusion that the act is not unconstitutional in the respect claimed. Young v. Sterling Leather Works, 91 N. J. L. 289; Doyne v. Stollerman, 131 Atl. Rep. 68.

The judgment will be affirmed, with costs.


author: Sooy, C. C. J.

text:
    GEORGE C. HEWITT, PLAINTIFF, v. SAMUEL C. JOHNSON, DEFENDANT.
    Decided March 2, 1932.

      For the rule, Frank S. McKee.

      Contra, LeRoy W. Loder.

   Sooy, C. C. J.

Defendant, without legal justification, through a constable, broke into the dwelling and service station building of plaintiff and removed from the dwelling practically its entire contents of household goods and took from the service station the stock of merchandise, tools, &c., and then proceeded to padlock both buildings. Defendant returned the chattels so taken on the third day after their removal but both buildings remained under padlock for ten days during which time plaintiff and his family were deprived of possession and compelled to seek lodging with a friend.

The jury was instructed that it might render a verdict for compensatory and punitive damages and were further instructed to separately state the amounts if they found against the defendant as to both forms of damage. The jury returned a verdict of $1,500 for compensatory damages and “no cause” as to punitive damages.

Plaintiff was entitled to recover, under the head of compensatory damages-, such an amount as would represent compensation for such damages as were the proximate and natural result of defendant’s illegal acts. Plaintiff, however, was obliged to present to the jury evidence upon which a just verdict could be based. He may not sustain a verdict for compensatory damages for more than the evidence will justify and after a careful reading of the testimony adduced at the trial, I am satisfied that $500 fully covers the proved compensatory damage. This sum will include all of the proved elements of damage as well as the humiliation and inconvenience suffered by plaintiff.

If plaintiff, within ten days, consents to accept a verdict for $500 this rule will be discharged, otherwise it will become absolute and a new trial had.


author: Pee Ctjeiam.

text:
    STATE BOARD OF MEDICAL EXAMINERS, PROSECUTOR, v. JOHN W. MORRISON, DEFENDANT.
    Submitted October 16, 1931
    Decided March 2, 1932.
    Before Justices Tbenciiaed, Daly and Donges.
    For the prosecutor, Willigm A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
    For the defendant, Egbert Rosecrans.

   Pee Ctjeiam.

This certiorari brings up a judgment of dismissal by the District Court of the First Judicial District of the county of Warren of a summons or warrant issued against the defendant at the instance of the state board of medical examiners upon an allegation that respondent was illegally practicing medicine and surgery.

The challenge is directed to the service of the warrant by the under-sheriff of the county of Warren when it was directed to any constable of said county, or to the sergeant-at-arms of the court issuing it, or to the inspector of the state board of medical examiners; and likewise to the fact that the command of the warrant was to produce the defendant therein before the District Court at the town hall in Phillipsburg, when in fact he was produced to the judge at Belvidere.

The attorney-general took some testimony to be used on the return of the certiorari, but this was taken without an order, and having been objected to by the defendant, it is not usable. Smart v. North Hudson County Railroad Co., 66 N. J. L. 156.

Looking to the return made by the judge, it appears that the return was amended by the judge to strike out all reference to the defendant’s having waived hearing, and it, therefore, appears that the defendant did not waive a hearing, but that the defendant appeared specially for the purpose of raising the question of jurisdiction, and this appears throughout the return as the fact. If this be so, and the ■defendant did not waive defects in the warrant and its service, we are of opinion that the warrant was not properly served and that the defendant could not be held thereunder, because it was served by someone to whom it was not directed.

The judgment is affirmed, but without costs to either party.