author: MacLeod, C. P. J.

text:
    Passaic County Court of Common Pleas.
    SIMON GLICK, PETITIONER-APPELLEE, v. WRIGHT AERONAUTICAL CORP., RESPONDENT-APPELLANT.
    Decided June 14, 1945.

      Bor the petitioner-appellee, David Cohn.

    Bor the respondent-appellant, J ohn W. Taylor.

   MacLeod, C. P. J.

A claim petition was filed in the Workmen’s Compensation Bureau, on September 28th, 1942, in which petitioner-appellee, hereinafter referred to as petitioner, alleged that ho suffered injury as a result of an accident on June 3d, 1942, at 5 :00 A. m., which accident allegedly occurred while he was working on a polishing machine. Issue was joined by respondent filing an answer denying the allegations of said petition and the issues thereafter came duly on to be heard by the Workmen’s Compensation Burean and an award of compensation benefits was made in favor of petitioner, as more fully appears from the determination of facts and rule for judgment entered by Deputy Commissioner J ohn J. Stahl, dated August 22d, 1944.

Thereafter an appeal, from the aforesaid determination of facts and rule for judgment, was duly taken to this court by respondent-appellant, hereinafter referred to as respondent, and the same came on for hearing before me, the matter being submitted to the court on the transcript of the record and testimony and on briefs, submitted by counsel for the respective parties.

According to petitioner’s testimony he was employed by respondent on May 11th, 1942, and thereafter worked approximately eleven weeks as a polisher. He claims that the machine, on which he worked, vibrated excessively. According to petitioner, on June 3d, 1942, he “was polishing a long piece of steel known as an articulating rod, * * * and there was a certain jam which caused this piece of metal to slip out of my hand and strike me on the hack of the hand.” This rod is described as having been twelve inches long and weighed six pounds. Petitioner testified that he was caused to stop work immediately; that he immediately reported the incident to his foreman “because I lost all sensation in the hand” and that ten minutes later he went to the plant hospital and was seen by Dr. Barlow, the company doctor, the following day. Petitioner denied any “disability or involvement or discomfort” in his left hand or fingers before the described incident of June 3d, 1943. He further testified that he started to lose work “right after the accident” but, subsequently, on cross-examination it was developed that he did not lose time until “about July sometime.” Again, he stated that he could not tell when his hand caused him to stop work. According to the formal claim petition, prepared by petitioner under oath, he did not start to lose time until July 38th.

Cross-examined as to the statements made by him at an informal hearing of his case had in the Workmen’s Compensation Bureau before Beferee Mobius, on August 36th, 1943, petitioner insisted that he told Mr. Mobius the same story as related on his direct examination. He also admitted giving a written statement on July 9th, 1943 (Exhibit R-l) wherein he said, “I believe the condition is due to continuous strain on finger while polishing.”

Dr. Hirschberg, petitioner’s medical witness, in answer to a hypothetical question asked by petitioner’s attorney, indicated that it was his opinion that petitioner had suffered a median neuritis of the left hand due to the alleged blow to the back of petitioner’s left hand, by reason of the aforesaid metal rod striking it. As to whether or not this condition could be caused by continuous vibration he said “* * * just vibration I wouldn’t say that in itself.” In any event, the history given Dr. Hirschberg by petitioner was that he had had a blow to his hand. Dr. Harry Yolken, also for petitioner, stated “* * * this man sustained a trauma to the median nerve resulting in a median nerve neuritis * * and, when asked to describe the “accident” to which he attributed petitioner’s condition, said, “I have in my history that a piece of metal came up and hit his hand.” Asked further if he attributed petitioner’s condition to the vibration of the machine on which he worked, he reulied, “Ho, a piece of the machine came up and hit his hand, traumatized his hand.”

For respondent, Dr. Frank A. Barlow, director of respondent’s medical department, testified he examined petitioner August 3d, 1942, at which time he was given a history by petitioner that the condition complained of “* * * was due to continuous strain on his fingers while polishing,” and he made a diagnosis of median nerve neuritis. It was his opinion that petitioner’s condition was the usual “* * * result of using the hand in that particular type of work” and was “occupational.” Dr. Barlow testified that median nerve neuritis is caused only by indirect trauma over a long period of time.

Bespondent’s only other witness, William Seymour, testified that he was present at the informal hearing had before Eeferee Mobius on August 26th, 1942. According to this witness, petitioner told Mr. Mobius that he had been working on the polishing job for two weeks, prior to June 1st, 1942, and “* * * got cramps in his hand and complained to his foreman who merely told him that was a common complaint due to the type of work he did.” Seymour denied that petitioner told Mr. Mobius that he had been struck on the back of his left hand by a piece of metal.

Two weeks after the case was closed and taken under ad- - visement by the Deputy Commissioner, petitioner moved to amend his petition “to conform to the proofs offered * * * by the respondent, as to the time and place of the accident alleged by the petitioner herein, and * * * will ask for an order permitting the amendment of said formal petition, to establish the report of an accident on May 19th, 1942.” The amendment was allowed over the objection of respondent.

The learned Deputy Commissioner in awarding petitioner compensation benefits determined “* * * that the specific incident of June 3d, 1942, did not cause the present nerve injury described by petitioner and his physicians but was caused by the repeated jarring of the petitioner’s hand in the work he engaged * * * that while working for the respondent in May, 1942, * * * that the petitioner’s left hand was injured while operating a polishing machine which * * * produced repeated trauma to his hand and jarring thereof * * *.” Thus an award predicated on neither the original nor amended petition.

After a careful review of the testimony, I am fully convinced that petitioner’s testimony is unworthy of belief. Petitioner’s testimony is unlike the story told by him to Referee llobius; it is unlike the story told by him in his written statement of June 9th, 1942; it is unlike the story related by him to Dr. Barlow, the treating physician, and is further unlike the story related by him to his own Dr. Hirschberg. Apparently he is willing to tell a different story at each "drop of the hat,” and fits the story of the moment to his own personal purposes and interest.

Claim is made that the finding of the Deputy Commissioner is supported by Exhibit B-l. Exhibit B-l in essence is a statement made by petitioner on July 9th, 1942, which was abandoned by him at the time of trial in the hope that his interests would best be served by a different story, not only abandoned but denied on cross-examination. It was only when his testimony, that he had been struck on the back of his left hand by a six pound piece of metal, was demonstrated unworthy of belief, and then only two weeks, after the ease had been submitted to the court for determination that he sought leave to amend his claim to take advantage of his self-serving declaration of July 9th, 1942. In any event, Exhibit B-l does not disclose the occurrence of an injury by "accident.”

The burden of proof is upon petitioner to prove his condition is due to a compensable accident and an "accident” can not be inferred from symptoms alone. Dr. Barlow, the attending physician, found petitioner’s condition tó be “occupational” and one which from common experience is visited, in the usual course of work, upon persons engaged in petitioner’s occupation.

Our Court of Errors and Appeals in Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, said:

"An occupational disease is one that from common experience is visited upon persons engaged in a particular occupation, in the usual course of events. It is one that is incidental to the employment itself, e. g., painters become affected with lead colic or lead poisoning; telephone operators develop ear trouble; phosphorous poisoning is common to those who work in the manufacture of fire works. These examples might be multiplied. In such instances they are injuries or diseases common to workers in those particular trades and manifestly, do not usually arise by accident as the term 'accident5 is commonly understood. Such diseases are not compensable unless made so by statute. B. S. 34:15-31; N. J. S. A. 34:15-31.55

In determining whether or not a physical condition, injury or otherwise, is compensable, the test established in the Bollinger case, supra, is,

“We have long held the view that an accident is 'an unlooked for or untoward event which was not expected or designed5 or 'an unintended or unexpected occurrence which produced hurt or loss.' Bryant v. Fissell, supra [84 N. J. L. 72; 86 Atl. Rep. 460]; Ismay v. Williamson (1908), A. C. (Eng.) 437, L. J. P. C. N. * * *"

Our Supreme Court in Liondale Bleach Works v. Riker, 85 N. J. L. 426; 89 Atl. Rep. 929, said, “The English courts seem at last to have settled that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident.55

In Smith v. International High &c., Co., 98 N. J. L. 574; 120 Atl. Rep. 188, the Court of Errors and Appeals said, “Where no specific time can be fixed when an accident is claimed to have occurred—there is no accident within the meaning of the Compensation Act.55

Cases in other states, holding that injuries resulting through mere continuance at a task, where there is no sudden or violent event producing at the time injury, are not compensable, are: Young v. Melrose Granite Co. (1922), 152 Minn. 512; 189 N. W. Rep. 426; 29 A. L. R. 506; Industrial Commission v. Borchert (1934), 49 Ohio App. 5; 194 N. E. Rep. 881; Industrial Commission v. Auler (1934), 49 Ohio App. 12; 194 N. E. Rep. 887; Riehl v. Industrial Commission (1935), 32 N. E. Rep. (2d) 439.

I am convinced that the term “injury55 as used in the Workmen’s Compensation Act, N. J. 8. A. 34:15-1, et seq., comprehends only such injuries as are accidental in origin and cause and not such conditions as are regularly expected as the result of a person doing his regular work in the regular way without the intervention of an undesigned, unintended or unexpected occurrence.

It appears from the evidence and I so find that petitioner’s condition, for which he seeks compensation benefits, is an occupational one and not the result of an unlooked for or untoward event, which was not expected or designed. Being an expected and usual result of the regular performance of his task, in the regular way, I find that petitioner did not suffer injury by “accident.” Dr. Barlow, now serving in the Armed Forces, was the attending physician and there is nothing in the evidence from which this court can conclude that his testimony is other than credible.

It is well established that where the attending physician refuses to relate a condition to an “accident” there is no basis for any inference to that effect by the court, Reimers v. Proctor Pub. Co., 85 N. J. L. 441; 89 Atl. Rep. 931; Krapowitch v. Public Service Railway Co., 3 N. J. Mis. R. 932; Kalesavich v. U. S. Metals Refining Co., 7 Id. 771; Markiewicz v. International Milk Co., 19 Id. 57; 17 Atl. Rep. (2d) 158.

Dr. Barlow, being the attending physician, is the physician best able to express an opinion as to the cause of petitioner’s condition and having refused to relate petitioner’s disability to an “accident,” in addition to having expressed the opinion that it is “occupational,” there is no basis for the determination of the Deputy Commissioner that petitioner’s condition is due to an “accident” and there is no basis for any such inference to that effect by this court. It is interesting to note that the medical experts produced by petitioner were given every reason to believe that petitioner’s condition was due to a blow to the back of his left hand and that it was on that hypothesis that they expressed opinions relating petitioner’s condition to his employment.

Petitioner, under oath, charged the onset of his present condition to a definite occurrence on June 3d, 1942, to wit, a blow to the back of his left hand by reason of a substantial piece of metal striking his hand; he charged further that he was without any discomfort or complaints respecting his left hand prior to that specific incident; that his lost time immediately began thereafter; that it was that incident that he reported to his foreman and that it was that incident which compelled him to seek medical care. To hold that his condition was due to some other cause is not understandable unless it is determined that petitioner’s testimony regarding the alleged specific incident of June 3d was a fabrication. I so find. Determining as I do that the testimony of petitioner is unworthy of belief and that the testimony at best establishes a non-compensable occupational condition, within the meaning and provisions of our Workmen’s Compensation Act, since the repeated trauma, due the constant vibration of his machine—a condition anticipated to occur from the common experience visited upon persons engaged in similar work, in the usual course of events, and for the further reasons expressed above,

It is on this- 14th day of June, 1945, ordered that the petition for compensation benefits he and hereby is dismissed and' the determination of facts and rule for judgment, entered in the Workmen’s Compensation Bureau, on August 22d, 1944, be and hereby is reversed and for nothing holden.


source: Caselaw Access Project

author: Delaney, C. P. J.

license: Public Domain

text:
    Passaic County Court of Common Pleas.
    JOHN BATESKO, PETITIONER-APPELLEE, v. WRIGHT AERONAUTICAL CORP., RESPONDENT-APPELLANT.
    Decided April 5, 1946.
    For the petitioner-appellee, David Cohn.

    For the respondent-appellant, John W. Taylor.

   Delaney, C. P. J.

This is an appeal by the respondent from an award granted the petitioner in the Workmen’s Compensation Bureau for injuries sustained by him on August 30th, 1943, while in the employ of respondent.

The petitioner has been employed by respondent off and on from 1937. On August 30th, 1943, while tightening a bolt on a Lucas boring mill with a short wrench held in his right hand, he suddenly felt something snap in his shoulder, followed by pain in the arm and numbness in the hand. He reported the occurrence to his immediate superior and then went to the plant hospital, where he was treated for a few (lays by a nurse, who, after the pain persisted, sent him to another plant hospital, where a Dr. Jones treated him by diathermy. After daily treatments there until August 30th, his arm was not relieved, and on the advice of Dr. Jones to do lighter work, he remained at home until the early part of October, since lighter work was not available in the plant. During this time ho continued to be treated by Dr. Jones and Dr. Wassing, another plant physician. His arm not improving, petitioner consulted and was treated for two months by Dr. Beading, an orthopedist in Paterson. He then consulted Dr. Hansen, of the Hew Jersey Orthopedic Hospital, and a Dr. Wallace in Clifton. The petitioner had returned to the respondent’s employ to do lighter work, but ceased work again from January 30th to March, 1944, at which time he again returned to work not requiring the use of his right arm to an appreciable degree.

From the latter part of January until February 26th, petitioner was confined to the isolation ward in Jersey City Medical Center, where he received the Kenny treatment for post poliomyelitis. This fact petitioner concealed until he was confronted with the hospital records at the trial. His reason for concealing this information, petitioner said, was that his counsel, upon being consulted about securing insurance to cover this period, told him he was not eligible for the insurance and “to forget about it.” This we concede is a weak reason for concealing so vital a fact in his medical history. While the attempt at concealment is disturbing, the fact ox petitioner’s being treated for a post poliomyelitis, however, does not confuse the issue before us.

Dr. Sprague, who treated petitioner at Medical Center, did not have the advantage of seeing petitioner until five months after the accident happened.

Dr. Bohl, who examined petitioner for the purpose of giving his opinion at the hearing, did not diagnose his condition as post poliomyelitis until he had heard Dr. Sprague’s testimony, and Dr. Bergman, who also testified on behalf of respondent, considered petitioner’s condition due to a possible poliomyelitis condition, but leaned toward the cause of enlarged glands of the cervical region.

The doctors for petitioner thought his condition due to a traumatic neuritis, caused by an injury to the brachial plexus, and attributed-the accident as alleged by petitioner the competent and producing cause of his present condition.

While it is a well settled principle of law that the burden of proving that the injury complained of by the petitioner was the result -of an accident which arose out of and in the course of his employment and rests upon the petitioner, Riley v. Crucible Steel Company of America, 132 N. J. L. 273; 39 Atl. Rep. (2d) 633; Raines v. Grant Finishing Co., Inc., 132 N. J. L. 422; 41 Atl. Rep. (2d) 127, and the proof must be such as to establish a reasonably probable hypothesis, Andres v. Keystone Varnish Co., 19 N. J. Mis. R. 74; 17 Atl. Rep. (2d) 268, nonetheless, where an employer seeks to avoid liability for compensation on the ground that the disability from which the employee is suffering is due to a cause not connected with his employment, the burden of proof of that defense rests upon the employer to the same degree. El v. Newark Star Ledger, 131 N. J. L. 373-380; 36 Atl. Rep. (2d) 616; Golden v. C. V. Hill & Co., 18 N. J. Mis. R. 330, 332; 13 Atl. Rep. (2d) 307.

The uncontroverted facts that petitioner felt great pain, as a result of his accident, on August 20th, that he reported immediately to his superior, that he persistently sought medical aid, even at his own expense, over a period of six months, and that he received competent medical care, lead us to the conclusion that on August 20th he suffered an injury as the result of an accident arising out of and in the course of his employment.

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


author: Delmar, J.

text:
    Bergen County Orphans Court.
    IN THE MATTER OF THE ESTATE OF ALLETTA B. PEARCE, DECEASED.
    Decided April 4, 1946.
    Proctors for The Hackensack Trust Company, Wurls & Plymplon (William H. Wuris, of eonnsel).
    Proctors for Alletta B. Long, Pachella & Chary (Dominich F. Pachella, of eonnsel).
   Delmar, J.

Hpon the approval by this conrt of the final account of The Hackensack Trust Company and Alletta B. Long, executors of the above-named estate, commissions in the sum of $6,141.72 were allowed to them for their services. A difference having arisen between them in regard to the apportionment of the same, The Hackensack Trust Company, claiming to be entitled to more than one-half of the commissions allowed, has petitioned this court, through its proctors, for a decree apportioning the commissions and its proctors have filed affidavits for the consideration of the court.

The proctors of the other fiduciary insist that the petitioners produce witnesses to substantiate their claims, contending that the petitioners must sustain their claims by witnesses produced in open court subject to cross-examination.

Both sides have filed briefs contending that the adjudicated decisions sustain their arguments. I have examined these decisions and find that they do not fully sustain either side. I also examined the statutes and rules and found nothing therein to indicate what the proper procedure is. In addition to which my own researches have brought to light several decisions on the subject.

The practice in matters of this kind seems not to have been fully decided but, as the result of my researches, I determine that the following is the proper procedure: The matter should properly come before this court in the first instance upon affidavits. If, from an examination of the affidavits, the dispute can be equitably decided, no further proof is necessary. If this court determines that the matter cannot be equitably decided upon the affidavits alone, then the court may order oral proofs and decide the issue after receiving such proofs. The matter of procedure seems to be largely, if not entirely, within the discretion of the Orphans Court. However, upon appeal to the Prerogative Court, that court also has the right to take oral proof regardless of the determination in the Orphans Court. There is, of course, another method of proceeding and that is to make an order of reference to a master.

Cases throwing some light upon the practice are: Pomeroy v. Mills, 40 N. J. Eq. 517; 4 Atl. Rep. 768, in which, as the basis of an application for a reconsideration of an award of commissions, affidavits were submitted to the Orphans Court and testimony taken in the same matter in the Prerogative Court; Mount v. Slack, 45 N. J. Eq. 129; 17 Atl. Rep. 297, where witnesses were heard by the Orphans Court and the evidence there taken was reviewed by the Prerogative Court; and In re Goslee’s Estate, 132 N. J. Eq. 279; 28 Atl. Rep. (2d) 110, which was determined in both courts upon affidavits. The case of Stevenson’s Adm’r v. Phillips, Ex’r of Dehart, 21 N. J. L. 70, cited by the proctors for Alletta B. Long, shows that the testimony of witnesses was heard in the Orphans Court. However, the decree of the Orphans Court was, on certiorari, reversed on other grounds. Other cases cited by the same proctor, Woodruff, Ex’r v. Lounsberry, 40 N. J. Eq. 545; 5 Atl. Rep. 99, and Squier v. Squier, 30 N. J. Eq. 627, do not throw any light upon the practice. In both eases it was indicated that proofs were taken or evidence received. This does not necessarily indicate oral testimony because, in cases where affidavits are permissible, they are accepted as proofs or evidence. See, also, to the same effect, Andress v. Andress, 46 Id. 528; 22 Atl. Rep. 124.

The statute, R. S. 3:11—6; N. J. S. A. 3 :ll-6, does not ■set forth how the dispute should be determined and the only rule of the Orphans Court I find having any bearing upon the subject is rule 32, N. J. S. A. tit. 2, which, in my opinion, -does not govern the procedure in a case of this sort.


text:
    Passaic County Court of Common Pleas.
    GEORGE V. RUTLEDGE, PETITIONER-APPELLEE, v. COUNTY OF PASSAIC, RESPONDENT-APPELLANT.
    Decided April 16, 1946.
    For the petitioner-appellee, Isadore Babinowiiz.

    For the respondent-appellant, Kalisch & Kalisch.

   Delaney, C. P. J.

This is an appeal from the Workmen’s Compensation Bureau. The finding there was in favor of the petitioner. The facts, briefly, are these: The petitioner, employed by the County of Passaic as a court attendant, while in the performance of his duties, assisted in carrying the clerk of the court (who had become prostrate as the result of some muscular disturbance) to a nearby automobile and thence to a doctor’s office. While lifting the stricken clerk into the automobile, the petitioner experienced a severe pain in the right groin. The pain continued, and upon his return to the eourt house he examined himself and found a protrusion in his groin. The petitioner then made known his disability to the chief clerk of the sheriff’s office and went home. That evening the petitioner consulted Dr. Randazzo, who found the petitioner to be suffering from an “aggravation of a proPYist.ing hernia.” It was developed by the testimony that the petitioner had previously consulted Dr. Randazzo about a complaint in the same area and the doctor had at that time recommended surgery. It was the doctor’s opinion that the lifting of the clerk had aggravated a hernia which the petitioner had had for some time.

The petitioner in his petition alleged, in answer to the question in the petition “Give nature of any injury from which you will recover,” the answer “Right hernia,” and in answer to the question, “Has any permanent injury resulted * * *” answered, “Right hernia.”

Three questions are raised by this appeal:

(1) Is the fact that the petitioner alleged a hernia in his petition and at the hearing proved an aggravation of a hernia fatal;

(3) Is an aggravation of a pre-existing hernia compensable ;

(3) Did the petitioner prove an aggravation from an accident arising out of and in the course of his employment of a pre-existing hernia?

In answer to the first question, it is pointed out that the respondent was not prejudiced by any variance between the matters set forth in the petition and the proofs offered at the hearing, which was conducted on four different occasions; but whether the award was made in this case on the theory pleaded or proved is not material, for the respondent had ample opportunity to meet any proofs offered by the petitioner. As in the case of Fontaine v. United Engineers and Constructors Inc., 12 N. J. Mis. R. 220; 170 Atl. Rep. 856, the respondent has not been prejudiced by the variance, and in keeping with the spirit of the act such variance is not fatal.

The second question raised, as to whether an aggravation of a hernia is compensable, has been answered in the affirmative by our Court of Errors and Appeals in Furferi v. Pennsylvania Railroad Co., 117 N. J. L. 508; 189 Atl. Rep. 126.

The third question, as to whether the petitioner sustained the burden of proving an aggravation of a pre-existing hernia, is answered by the testimony. The only medical testimony in the case was offered by Dr. Randazzo, the treating physician, who testified that the occurrence of the lifting of the prostrate clerk resulted in an aggravation of a pre-existing hernia and that an operation was necessary. To aggravate means to make worse or more severe. If the accident did make worse or more severe a condition from which the petitioner was suffering; and such was the proof in this ease, the petitioner is entitled to compensation, and we so hold.

The finding of facts and determination and award of the Workmen’s Compensation Bureau is affirmed.


author: Bttbling, C. C. J.

text:
    EUGENE L. McHUGH, ERMA M. STARK AND NELLIE T. MURRAY, PLAINTIFFS, v. ABRAHAM SOFFER AND ISRAEL S. SOFFER, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Decided April 17, 1946.
    For the plaintiffs, Cole & Cole (by Maurice Cole),

    For the defendants, Daniel DeBrier (by William B. Hunter).

   Bttbling, C. C. J.

These causes of action were instituted by the plaintiffs against the defendants to recover damages as the result of the alleged negligent operation of the automobile owned by the defendant Abraham Soffer and operated by the defendant Israel S. Soffer, his servant in the course of an employment. The event occurred on July 26th, 1941.

The plaintiffs Erma M. Stark and Nellie T. Murray were passengers in the automobile owned and operated by Eugene L. McHugh. The two automobiles were in collision.

The jury returned verdicts in favor of the plaintiff Eugene L. McHugh for $287.94, representing his property damage, and in favor of the plaintiff Erma M. Stark for $150, and in favor of the plaintiff Nellie T. Murray for $100, against the defendants, Abraham Soffer and Israel S. Soffer, for personal injuries. The jury further returned a verdict of no cause for action on the counter-claim of the defendant Abraham Soffer against the plaintiff Eugene L. McHugh.

Immediately upon the rendition of these verdicts on March 6th, 1946, the plaintiffs’ attorney prepared a postea and presented it to the trial judge. It was signed and filed with the 'clerk of the Supreme Court. Judgment was entered in the New Jersey Supreme Court on March 7th, 1946, in favor of the aforesaid plaintiffs for the respective amounts of their verdicts, together with costs.

On March 8th, 1946, after the entry of the judgments, the plaintiffs Erma M. Stark and Nellie T. Murray, pursuant to applications made on their behalf, were allowed a rule, directed to the defendant, to' show cause why the verdicts entered in favor of said plaintiffs, Stark and Murray, should not be set aside, for inadequacy of damages and a new trial granted as to damages only.

On the return day of this rule, the application was opposed by the defendants, and in addition thereto by prior notice, they moved to vacate and discharge the rule for the following reasons:

1. Said rule was improvidently granted and allowed, in that the said plaintiffs did voluntarily cause judgments to be entered in their favor on the verdicts which they now seek to set aside, and have, therefore, waived their right to apply for a new trial.

2. Said rule was improvidently granted and allowed, in that prior to the allowance of said rule, the said plaintiffs did affirm the correctness of said verdicts by voluntarily causing judgments to be entered thereon.

3. For the reasons aforesaid, said rule to show cause is illegal and void.

4. The said verdicts are not inadequate.

This memorandum will dispose of both applications.

With respect to the motion to dismiss the rule to show cause, it may be said at the conclusion of a trial of a Supreme Court issue by a Circuit Court Judge at nisi prius the procedure laid down by statute and rules of court contemplate the prompt reporting of the trial procedure to the Supreme Court by the trial judge. B. 8. 2:27-186 and 188; N. J. 8. A. 2:27—186 and 188; Supreme Court rules 116 and 117; 2 2?. J. 8. A. Appendix. The defendants contend that in the application of the doctrine of election of remedies and estoppel, the rule to show cause should be vacated upon the ground that the action of the attorney of the plaintiffs, in preparing the form of postea for submission to the trial judge was equivalent to a motion for judgment and thereby waived the right to move for a new trial. 29 Am. Jur. 40. Since the duty rested with the trial judge to return the transcript of pleadings into court with the postea, the mere fact that the attorney for the plaintiffs to relieve the judge prepared the form of postea cannot be construed as a waiver of the right of the plaintiffs to pursue an application for a new trial. Weinberger v. Erie Railroad Co. (Court of Errors and Appeals, 1914), 86 N. J. L. 259; 90 Atl. Rep. 1013. Time is the contemplated essence of the procedure for the entry of a judgment. This is further evinced by the rule which provides for the trial judge to establish the terms upon which the rule may be granted including a stay of execution upon the judgment. This motion is without merit and is dismissed.

With respect to the alleged inadequacy of the verdicts of the plaintiffs Stark and Murray in giving consideration to applications of this nature unless the verdict clearly evinces that it was the result of mistake, partiality, prejudice or passion or lacks any evidence to support it, it should not be annuled. Bowen v. Healy's, Inc. (Supreme Court, 1938), 16 N. J. Mis. R. 113; 197 Atl. Rep. 655.

The discretion reposed in a court to set aside a verdict is a legal discretion based upon well-settled principles, designed primarily to avoid excesses and favoritism, evolved from passion, partiality or prejudice and so palpably evinced as to invoke the restraining hand of the courts in the interest of the proper administration of justice^ Bowes v. Public Service Railway Co. (Court of Errors and Appeals, 1929), 94 N. J. L. 378; 110 Atl. Rep. 699. And it was held in the case of Goldman v. Central Railroad of New Jersey (Supreme Court, 1909), 79 N. J. L. 205 (at p. 207); 74 Atl. Rep. 261:

“* * * courts have exercised the prerogative of setting aside verdicts, only where the verdict is clearly or palpably wrong, because it is against the clear weight of the evidence, and can only be reconciled with a correct conception of justice, upon the theory that the jury were mistaken or were influenced by passion, prejudice or corruption.”

The plaintiff Erma M. Stark testified that as a result of the collision, she suffered divers lacerations, contusions and abrasions of the forehead, neck, left middle finger, right shoulder, both knees and left thigh. She was given first-aid treatment by Dr. Smith in Egg Harbor City shortly after the accident. She was then treated by Dr. C. M. Brooks of Cape May Court House. She was then treated daily by Dr. James H. Mason during her entire week’s stay in Atlantic City after the accident. Hpon her return to Allentown, Pennsylvania, she was treated by her family physician, Dr. A. C. Gallagher. As a result of her injuries, Miss Stark claimed that she lost two full weeks’ earnings and that after the two week period, she was able to work part-time for a considerable period of time. She claimed loss of earnings of $50 per week. She testified to the following medical bills: Dr. G. M. Brooks, $24; Dr. Robert A. Bradley, $5; Dr. James H. Mason, $11, and Dr. A. C. Gallagher, $49.

Dr. Harry Subin, produced by the defendants, examined Miss Stark on December 7th, 1941, more than four months after the accident. Dr. Subin testified that at that time, he observed a scar on the left side of Miss Stark’s forehead. He found tenderness on motion of the neck; pain to the top of the right shoulder and bruises of both knees. The injuries sustained by Miss Stark were necessarily productive of pain.

The plaintiff Mrs. Murray claimed to have suffered divers lacerations, contusions and abrasions, principally of the left hand, both arms and both knees. She was examined and treated by the same doctors as was Miss Stark. She claimed no loss of earnings. Dr. G. M. Brooks, $7.50; Dr. James H. Mason, $11, and Dr. A. C. Gallagher, $16. She claimed that the injuries sustained to her knee gave her trouble for a long period of time after the accident.

Dr. Subin produced by the defendants, and who examined her on December 7th, 1941, testified that at that time, Mrs. Murray was still complaining of pain in the back of the left hand, pain in the knee joints, nervousness and sleeplessness. He observed a cut on the front of her right knee. He reexamined Mrs. Murray during the course of the trial. At that time, she was still complaining of pain on the inner part of the right and left knees. He found a grating in both knees. The injuries sustained by Mrs. Murray were necessarily attended by pain.

It is obvious, clear and palpable that the jury made a mistake in failing to give effect to the rule and principles laid down in the charge of the court in evaluating and appraising the elements of damage. The rule is made absolute and a new trial granted as to damages only.

Appropriate form of rules may be presented in accordance with the conclusions herein stated.


author: Martino, D. C. J.

text:
    Camden City District Court.
    PHARES S. LEIDY, PLAINTIFF, v. THOMAS EDWARDS AND EARL V. SCOTT, Jr., DEFENDANTS.
    Decided April 29, 1946.
    ffor the plaintiff. Charles F. Rickman.

    ffor the defendant Earl Y. Scott, Jr., Bennett Clark.

   Martino, D. C. J.

Suit was instituted by the plaintiff against both defendants on January 33d, 1946. The action was based upon the alleged negligence of the defendants which resulted in property damage to an automobile owned by the plaintiff.

. Service was made upon the defendant Thomas Edwards on January 33d, 1946, by leaving a copy of the summons and state of demand with the wife of that defendant. Service was made upon Earl Y. Scott, Jr., on ffebruary 31st, 1946, by leaving a copy of the summons and state of demand with the step-mother of the defendant at his residence.

Counsel for the defendant' Earl Y. Scott, Jr., entered a special appearance on behalf of that defendant, contending that the defendant Earl Y. Scott, Jr., was a minor and had been arrested in the State of Texas on February 16th, 1946, and had been confined to the county jail at Brewster County, Texas, since the date of his arrest on February 16th, 1946, up to the present time.

Counsel for the defendant Earl Y. Scott, Jr., submits the following reasons why the purported service upon that defendant should be quashed:

1. That the minor defendant was not served at his said dwelling house or place of abode.

2. That the service upon the said defendant because of his infancy should have been made in the presence of some competent person.

The fact of the defendant’s incarceration in Texas at the time service was made was not disputed and the fact that he was a minor was also admitted.

B. 8. 2:32-27; N. J. 8. A. 2:32-27, applicable to the District Court, states that the summons shall be served upon the defendant at least five days before the time of appearance mentioned thereon by reading the same to the defendant and delivering to him a copy thereof, if he shall be found, and if not, by leaving a copy thereof at Ms dwelling house or place of abode in the presence of some person of his family of the age of fourteen years, who shall be informed of its contents.

This differs from B. 8. 2:27-59; N. J. 8. A. 2:27-59, applicable to courts generally, the provisions of which have been construed on many occasions by our courts.

Mr. Justice Yoorhees, in commenting on B. 8. 2:27-59; N. J. 8. A. 2:27-59, said: “That statute directs that it (service) shall be made at the ‘usual place of abode,’ not at his 'place of abode’.” Feighan v. Sobers, 84 N. J. L. 575; 87 Atl. Rep. 636, 637; affirmed, 86 N. J. L. 356; 91 Atl. Rep. 1068. “Abode” is one’s fixed place of residence for the time being— the place where a person dwells. One’s “usual place of abode” in the statutory view is the place where one is “actually living” at the time when the service is made. Mygatt v. Coe, 63 N. J. L. 510; 44 Atl. Rep. 198; Sweeney v. Miner, 88 N. J. L. 361; 95 Atl. Rep. 1014.

Since we are dealing with an issue in the District Court, the statute governing that court would control, and since the legislature has not seen fit to use the same language applicable to our other courts, it is this court’s opinion that the defendant Earl Y. Scott, Jr., was served at his place of abode, since it is not denied that the address where the summons was served was the defendant’s fixed place of residence.

As to the second reason for quashing the purported service upon the defendant, it appears clear the legislature has never made any special provisions with respect to service of summons upon an infant. To quote Mr. Justice Parker in McArdle Real Estate Co. v. McGowan, 109 N. J. L. 595 (at p. 600); 163 Atl. Rep. 24, 26:

“The legislature has never made any special provision for lunatics or idiots or infants, with respect to service of summons, so far as we can discover, though as early as 1820 it took occasion to exempt idiots and lunatics from arrest on civil process, even at a time when arrest for debt was the common practice; Rev. Laws 1821, p. 698, § 8; Rev. St. 1847, p. 556, § 12; Rev. 1877, p. 605, § 20; Janvier v. Coombs, 31 N. J. L. 240, 242, 243; 2 Comp. Stat., p. 2794, § 20; and by an act .of 1909 (Pamph. L., p. 313; 2 Comp. Stat. 1910, p. 2794 § 20a,), one adjudged a lunatic is exempt from suit for a month after appointment of guardian, unless the plaintiff obtains special leave of the court. * * * But in the absence of authority in this state, we consider that both legally and practically, service as prescribed by statute is sufficient. Legally, for the reasons just stated:, practically, because if the service is personal it conforms to the common law, and if made at the place of abode by leaving it with a competent person it is more likely to be turned over to an attorney.”

The application of the defendant is, therefore, denied.


author: Elannagan, C. P. J.

text:
    Essex County Court of Common Pleas.
    GRIFFITH DAVIES, PETITIONER-APPELLEE, v. ONYX OIL & RESIN COMPANY, RESPONDENT-APPELLANT.
    Decided January 26, 1943.
    Eor the petitioner-appellee, Leo Yanoff.

    Eor the respondent-appellant, Arthur F. Mead.

   Elannagan, C. P. J.

The petitioner was employed by respondent in the preparation of certain chemical products to be used in the manufacture of paint.

The discharge of his duties exposed him to contact by inhalation with a chemical product of the operation known as acrolein, which substance has an irritating effect upon animal tissue.

The presence of acrolein was unknown to petitioner, and, so far as the evidence indicates, to his employers; its presence was revealed subsequent to petitioner’s injury through chemical analysis or demonstration by Dr. Edel, a toxicologist who testified on the trial.

Petitioner had a variety of routine duties, one of them was to attend at intervals, when occasion required, in the operation of vats in which the chemical process was in progress and it was in the discharge of this duty that he was exposed to the action of the acrolein. There was no accidental external occurrence of an obvious character, such as, for example, the breaking of a pipe; petitioner’s work continued throughout his employment in apparently regular routine without special relevant incident, except the manifestations of certain symptoms, viz., coughing and bleeding through the mouth. These symptoms manifested themselves as early as January, 1941, and continued frequently in some degree until July 19th, 1941, the week of November 10th, and on November 17th, at which times they appeared in excessive form, the petitioner on those occasions coughing violently and emitting a substantial flow of blood from his mouth.

The weight of the evidence in my opinion establishes that the petitioner suffered a series of internal attacks by this irritating substance over a period from about January to November 17th, 1941, causing an accumulating irritation and impairment of the tissues or membranes of the bronchial tubes culminating in a final and disabling attack on November 17th, 1941, the resulting disabling condition being a disease designated medically as subacute chemical bronchitis.

The unforeseen, unexpected, and untoward attacks or bombardments, through inhalation, of the bronchial tissues of the petitioner by the particles of acrolein I regard as accidental injuries within the meaning of our statute. Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396; Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458.

In Liondale Bleach Works v. Riker, 85 N. J. L. 426; 89 Atl. Rep. 929, Mr. Justice Swayze, speaking for our Supreme Court (in a case where the period of exposure and of employment covered only ten days), says (at p. 429); 89 Atl. Rep. 929: “The English courts seem at last to have settled that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident within the meaning of the act. This seems a sensible working rule, especially in view of the provisions of the statute requiring notice in certain cases within fourteen days of the occurrence of the injury—a provision which must point to a specific time.”

In the instant case there were at least three occasions which can be regarded as occasions when accidents occurred, but for present purposes it is sufficient to say that the specific time is the occasion of the culminating disabling attack, viz., November 17th, 1941.

I concur in the finding of the compensation court as to the extent of the disability.

Findings may be submitted accordingly under rule 9.


author: Haetshoene, C. P. J.

text:
    Essex County Court of Common Pleas.
    JOHN J. McGRATH, PLAINTIFF, v. JOHN B. KEENAN, GEORGE E. KAAS, JOHN DUYM AND FRANK HEMMER, DEFENDANTS.
    Decided April 27, 1946.

      For the plaintiff, Armstrong & Mullen (Arthur G. Mullen),

    For the defendants Keenan, Kaas and Duym, Thomas L, Parsonnet (Joseph A. Ward).

    For the defendánt Hemmer, Fast & Fast (Louis A. Fast),

   Haetshoene, C. P. J.

The gist of the present—the fourth amended—complaint is the allegedly malicious action of the defendants in causing plaintiff to be held to bail as a witness in criminal proceedings against third parties under the statute, B. 8. 3:187-18, et seq; N. J. 8. A. 2:187-18, et seq., the which proceedings were ultimately dropped by the authorities, as were the above auxiliary proceedings against plaintiff as .a witness.

The main objection leveled by defendants at this complaint is that same sounds in malicious prosecution, and that malicious prosecution lies only for the malicious institution of legal proceedings which seek an affirmative criminal adjudication against the defendant therein, or an affirmative civil adjudication, wth some specal grievance suffered by him different from and superadded to the ordinary expenses of a law suit.

But while this constitutes the basis of the ordinary proceed-. ing for malicious prosecution, thus to limit one’s right of recovery for the undoubted wrong of unjustifiably and maliciously setting the processes of the law in motion against another to his damage, would constitute not only a. clear denial of justice, but run counter to the general principles governing such torts. Basically, the forms of proceeding known as actions for malicious prosecution, malicious abuse of process, false imprisonment and false arrest, while each differs in some particulars from the other, are all protective of an individual’s “interest in freedom from confinement,” whether such confinement be physically of the person or a limitation of one’s personal rights of freedom, as in holding a person to bail; and “it is immaterial whether the act [of defendant] directly or indirectly causes the confinement,” i. e., whether the confinement or holding to bail is done by the defendant personally, or whether, as in the instant proceeding, he instigates the action of the authorities to that end. Restatement Torts, §§ 35, 37. Clearly, this freedom of the individual is as directly interfered with by his being held to bail as a witness in criminal proceedings, under the above statute, as by his being held to bail as a defendant to answer a criminal charge.

Moreover, while the assiduity of counsel has located no previous adjudication directly in point in any jurisdiction, this is doubtless due to the unusual state of facts, and authorities do exist upholding similar actions whose gist is other than the malicious institution of legal proceedings for an affirmative judgment against the plaintiff in the suit in question. The action lias been held applicable, for instance, to cases of garnishment, purely auxiliary, as in the case at bar, to the proceedings in which judgment was obtained. Nix v. Goodhile, 95 Iowa 282; 63 N. W. 701. Again, in New York P. and N. Railroad v. Waldron, 116 Md. 441; 82 Atl. Rep. 709, plaintiff, who had been arrested and informally bailed as a witness in criminal proceedings against another, in much the same way as was plaintiff in the case at bar, was held entitled to maintain an action of false imprisonment against the persons who so arrested him and took bail, and this in a jurisdiction having a statute authorizing a magistrate to hold witnesses to bail in substantially the same way as does the above New Jersey statute. The only difference between that case and the case at bar is that there the defendant railroad company was, of course, not a magistrate authorized by the statute to detain plaintiff physically, or take money from him to bail him as a witness. Thus its action in so doing, being without shadow of legal right, was a false imprisonment, rather than, as is alleged here, a lawful imprisonment, instituted maliciously and without probable cause. Somewhat similar, indeed, is the situation in Walder v. Monahan, 21 N. J. Mis. R. 1; 29 Atl. Rep. (2d) 395, where two doctors, who had had plaintiff committed to an insane asylum, but not formally adjudicated as a lunatic, were held liable in tort, when such commitment was found to have been unlawful. Por further examples of cases where the malicious prosecution of proceedings of various sorts has been held to give rise to an action in the nature of malicious prosecution, see A. J., Malicious Prosecution, § 11; Burdich, Torts, 364, § 5. Hence, the individual’s right of freedom from either confinement or restriction upon his liberty, remains the same and will be protected, whether such right is infringed by proceedings seeking an affirmative adjudication against such party, or mere auxiliary relief.

Defendants further attack the complaint herein on the ground that same is based upon plaintiff’s physical arrest, as constituting an injury to the person, which is therefore barred, since more than two years have elapsed subsequent to such arrest. B. 8. 2:24—2; N. J. 8. A. 2:24-2. But here defendants misread the present complaint, which differs substantially from those previous filed. In the earlier complaints plaintiff relied upon his being physically held in confinement by defendants personally for a long period of time, previous to the time when plaintiff was brought before the magistrate and there held to bail. It is the latter situation only upon which the present complaint counts, and this solely by reason of defendants’ allegedly malicious misrepresentations to the magistrate, resulting in plaintiff’s holding to bail, this being an action on the case not barred for six years. B. 8. 2:24r-l; N. J. 8. A. 2:24-1). While, of course, plaintiff was momentarily in custody in the magistrate’s court before being held to bail by him, this is an inseparable incident of practically every holding to bail in a criminal proceeding. Yet since this temporary custody is not the gist of the action for malicious prosecution, same being the wrongful setting in motion of the processes of the law, Pine v. Okzewski (Court of Errors and Appeals), 112 N. J. L. 429; 170 Atl. Rep. 825, but is a mere incident, this momentary incident cannot convert the basic character of the proceeding from an action on the case to one for an injury to the person. Such being the case, it is immaterial whether the present complaint is considered one for malicious prosecution or, on the contrary, for malicious abuse of process, i. e., the use of lawful process “for purposes not justified by the law,” Schneider v. Mueller (Court of Errors and Appeals), 132 N. J. L. 163; 39 Atl. Rep. (2d) 132, 133, because of the allegation in section seven of the first count, that defendants’ object was “to put plaintiff in fear of said defendants so that he would cease investigation of violation of law in Newark’s Chinatown.” Nor is it material whether the proceedings complained of by plaintiff are, as to him, considered as civil or criminal. Nor even if civil, by his holding to bail he has clearly been “made to suffer other special grievance different from and superadded to the ordinary expenses” of a civil suit, the which give rise to a cause of action for malicious prosecution. Schneider v. Mueller, supra.

The final objection to the complaint is that its ten counts are repetitive and redundant. Of these the first five allege a conspiracy by the four defendants, separately and then jointly, to prosecute plaintiff maliciously, as aforesaid. The last five counts are substantially the same, with the elimination of the conspiracy charge. It is therefore important to note the difference between civil and criminal conspiracy. In criminal conspiracy “the agreement or conspiracy is the gravamen of the offense * * *. In civil actions, the conspiracy is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which plaintiff complains.” Van Horn v. Van Horn, 52 N. J. L. 284, 286; 20 Atl. Rep. 485; affirmed, 53 N. J. L. 514; 21 Atl. Rep. 1069. “The essence of the [civil] action, it seems, is not the conspiracy, but the damage done to the plaintiff * * Kamm v. Flink, 113 N. J. L. 582, 592; 175 Atl. Rep. 62, 68. Accordingly, in the present civil action, the gist oí the first five counts is not the conspiracy, but the damage done plaintiff, as aggravated by defendants’ conspiracy. While this same wrong is alleged in both the first five counts and the last five counts, it is clear that separate counts for such wrong may be pleaded against the defendants individually, as well as jointly, and it would further seem that the aggravation of that wrong could be pleaded in counts separate from those not alleging such aggravation.

The motion to strike the present complaint is therefore denied.


author: Burling, C. C. J.

text:
    Atlantic County Circuit Court.
    TERMINAL COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, COMPLAINANT, v. CONSTANTINE STOICOS AND CORNELIA STOICOS, DEFENDANTS.
    Decided April 9, 1946.

      For the complainant, Endicott, Dowling & Endicott (by Daniel J. Dowling and Allen B. Endicott, 3d).

    For the defendants, Morgan E. Thomas and Edward Fish-man.

   Burling, C. C. J.

On March 15th, 1946, the complainant commenced proceedings in the Atlantic City District Court to acquire possession of “a certain Hotel, designated ‘Terminal Hotel’ excepting thereout and therefrom bars, grills and all stores in premises situate at and known as Ho. 2108 Atlantic Avenue, in the City of Atlantic City” on the ground that the defendants, tenants in possession of the premises, held over and continued in possession thereof after the expiration of their term and after demand was made and written notice given by the landlord for delivery of possession of the premises to it. B. S. 2:58-17(a); N. J. 8. A. 2:58-17(a). Prior to the return date of the summons to show cause why possession should not be delivered to complainant, an application was made by defendants pursuant to B. 8. 2:58-27; N. J. 8. A. 2:58-27 (see, also, B. 8. 2:32-274; N. J. 8. A. 2:32-274) to the Honorable Frederick E. Colie, a Justice of the Supreme Court of Hew Jersey, for an order transferring the cause to the Atlantic County Circuit Court. On March 19th, 1946, an order was made by him transferring the cause to the Circuit Court of the County of Atlantic and in due season the appropriate papers were delivered to the clerk of the Atlantic County Circuit Court, thereby vesting that court with full and exclusive cognizance of the ease. B. 8. 2:58-27; N. J. 8. A. 2:58-27.

Pursuant to the mandate of the statute (B. 8. 3:58-28; N. J. 8. A. 2:58-28) a venire facias was issued by the Atlantic County Circuit Court Judge returnable within one week. Prior to the return date of the venire facias as aforesaid, defendants moved to dismiss the affidavit and the cause of action based thereon upon the grounds that:

“1. The summons to show cause in this case states that it was issued and served for default in rent, whereas, the affidavit states that possession is sought for expiration of term.

“2. The notice dated March 14th, 1946, and served upon the tenants on March 14th, 1946, after twelve noon on that date, referred to in the affidavit and made a part thereof, is defective in that it does not make a demand for possession, and further, in that it does not require immediate possession.

“3. The affidavit is defective in that it is not signed properly for the reason that there is no designation of the capacity in which the signature is affixed.

“4. The Atlantic County Circuit Court does not have jurisdiction in this case.”

The trial was adjourned to April 9th, 1946, by consent of the parties. The motion to dismiss the affidavit was argued and briefs submitted and decision reserved until the adjourned date of trial. The jury having been summoned in accordance with the venire facias and the cause coming on for trial in the presence of the parties and their attorneys to inquire into and try the proceedings for the possession of said premises, the defendants renewed their motion to strike out the affidavit of the complainant and the cause of action upon the aforesaid grounds. Ground No. 3 was abandoned at the time of the argument.

The grounds assigned are without merit and the motion is denied.

First Ground—The summons to show cause issued in this cause was prepared on the ordinary printed form used in the Atlantic City District Court. Such summons is the only one used in that court in landlord and tenant cases. On the backing or endorsement, inter alia, are the printed words “Summons to Show Cause” and beneath that, “Default in Kent.” Toward the bottom of the backing is printed in columnar form the words “Rent,” “Costs,” and “Mileage.”

The summons was prepared by counsel for the complainant and was signed and issued by the clerk of the District Court of the City of Atlantic City. Through an oversight complainant’s counsel failed to cause the words “Default in Rent” to be stricken.

There is no statutory or other authority requiring any endorsement to be placed upon the back of a summons to show cause in a landlord and tenant ease. In this respect this type of summons to show cause is to be distinguished from an ordinary summons, calling upon the defendant to answer a state of demand which sets forth an action for the recovery of a sum certain. In the latter case, B. 8. 2 :32—22; N. J. 8. A. 2 :32-22, requires the clerk of the court to enter in the body of each summons the sum demanded, and to endorse the amount of the said sum and the costs on the said summons. The reason for this requirement is set forth in B. 8. 2:32-23; N. J. 8. A. 2:32-23, which provides that the defendant, before taking any action in the cause, may pay to the constable serving the process the sum demanded with costs, and that the constable’s receipt shall be a full discharge of the defendant. In a case subject to the provision of the above two sections of the statute, the endorsement assumes some importance, which importance is totally lacking in the case of a summons to show cause under a landlord and tenant proceeding. The form of summons used in a summary dispossession proceeding under the Landlord and Tenant Act, N. J. 8. A. 2:58-l, et seq., is the same whether the tenant is being evicted by reason of the expiration of his term, or default in the payment of rent. In a case of a proceeding to evict a tenant for the non-payment of rent, where he desires to stop the proceedings by the payment of the rent claimed and costs, he is bound to pay, and the clerk of the court is bound to accept the rent claimed to be default by the oath filed with the clerk (B. 8.2:32-269; N. J. 8. A. 2:32-269).

Irregularities contained in the endorsement or backing of the writ do not operate to defeat or impair the efficacy of the writ because the endorsement is not part of the writ and is surplusage. The failure to strike out the words in question from the endorsement is an irregularity which is purely formal and defendants were not misled by it. (Paragraph 3 of the petition for removal.) The affidavit was annexed to the summons and served therewith, in accordance with the 1944 amendment to the District Court Act, B. 8. 2 :32-267; 17. J. 8. A. 2:32-267 (Pamph. L. 1944, ch. 184, p. 691, f 1).

Further an examination of the notice of the motion filed in this cause will disclose that it was coupled with a motion to strike out the affidavit, or in other words, to strike out the whole proceeding. This is equivalent to a general appearance, the effect of which is to waive all objections to the jurisdiction of the court over the person of the defendants. Bird v. Moth K-L Co. (Supreme Court, 1923), 1 N. J. Mis. R. 251; Tierney v. Tierney (Supreme Court, 1926), 4 Id. 241 (at p. 243); 132 Atl. Rep. 486; United Stales v. Griefen (Supreme Court, 1905), 72 N. J. L. 1; 60 Atl. Rep. 513; Davis v. Public Service Corp. (Supreme Court, 1909), 77 N. J. L. 275; 72 Atl. Rep. 82; Albert v. Clarendon Land Co. (Court of Chancery, 1895), 53 N. J. Eq. 623; 23 Atl. Rep. 8.

Second Ground—The point is whether or not complainant made a proper demand for possession under the provisions of B. S. 2:58-17a and B. S. 2:32-265a; 17. J. S. A. 2:58-37a and 17. J. S. A. 2:32-265a. The first notice was dated February 20th, 1946, was served on February 20th, 1946, and read as follows:

“Take Notice that we hereby demand of you to deliver unto us, your landlord, the possession of the premises, being that certain hotel designated “Terminal Hotel,” 2108 Atlantic Avenue, Atlantic City, New Jersey, and the contents thereof as described in lease between us, dated March 13th, 1945, on March 14th, 1946, at twelve o’clock noon upon which hour and day your right of possession of said premises will expire.”

The point is directed toward the second notice, dated March 14th, 1946, which was served March 14th, 1946, and which reads as follows:

“You are hereby notified to vacate and quit the premises rented to you by us, and now occupied by you, being that eertain hotel designated “Terminal Hotel,” located at Ho. 3108 Atlantic Avenue, Atlantic City, Hew Jersey, and to deliver possession thereof to us forthwith, your right to possession thereof having expired.”

Jurisdiction to be acquired in a summary proceeding must result from strict compliance with procedure provided by the statute. Perth Amboy Iron and Metal Co. v. Ellis (Supreme Court, 1933), 1 N. J. Mis. R. 154. The verbiage of the first notice is not attacked. It suffices to give jurisdiction, i ■Such compliance existed.

The second notice is not inconsistent with the first notice .and is surplusage. It was not necessary to serve a second notice and demand after the termination of the tenancy, in ■order to give jurisdiction, Levine v. Karkus (District Court,, 1942), 20 N. J. Mis. R. 389 (at p. 391); 38 Atl. Rep. (2d), 290; Quidort v. Bullitt (Supreme Court, 1897), 60 N. J. L. 119; 36 Atl. Rep. 881; Mitchell v. Morris Canal and Banking Co. (Supreme Court, 1864); 31 N. J. L. 99; Wartman v. Richards (Supreme Court, 1893), 54 Id. 535; 34 Atl. Rep. 576.

"With respect to the form of the second notice, criticism is made of the failure of exactness of the second notice because the statutory word demand is not expressly incorporated therein, notification to deliver possession forthwith is the equivalent of demand. However, it is hornbook admonition that where a statutory procedure is being followed, it is advisable to hew to the line and not attempt debatable authorship.


author: Yaw Winkle, A. M.

text:
    Grace R. Acheson, complainant, v. George W. Acheson, defendant.
    [Decided May 3d, 1946.]

      Messrs. ScammeU, Knight & Reese (Mr. Scott ScammeU, of counsel), for the complainant.

      Mr. Meyer W. Stein (Mr. John J. Breslin, Jr., of counsel), for the defendant.
   Yaw Winkle, A. M.

The parties were married on December 31st, 1933—a second marriage for both. Wow the wife is fifty-five and the husband is fifty-four. The wife’s first husband is dead but the husband’s first wife, from whom he was divorced in Wevada just before his marriage in Elkton, Maryland, to his present wife, the complainant, is still alive, and apparently she is being paid by him, whether voluntarily or under order of a court does not appear, $6,500 annually for her support, which sum he has been paying from a time before the filing of the bill for separate maintenance herein on August 6th, 1937.

Tn her bill the wife alleged the commission of many acts of extreme cruelty culminating in a brutal assault by the husband in July, 1937, after which she left him and made complaint to a justice of the peace on July 3d, 1937; and the husband was held in bail to await the action of the grand jury. The wife alleged in her bill that because of the effects of the assault she necessarily spent time for treatment in a hospital in Wew York City. This feature is mentioned because on the final hearing before me the wife alleged that she was still suffering from the effects of the assault and still needed medical treatment. In her bill she alleged that the husband was in receipt of an annual income of not less than $50,000 from certain trusts established by his parents for his benefit.

The husband filed no answer to the bill; and the cause came on for final hearing on July 5th, 1939, at which time a decree of separate maintenance was advised by the advisory master of the vicinage.

On June 26th, 1939, the husband and wife entered into an agreement of many pages covering many matters, transfers of personal property, &c. In this agreement the husband agreed to pay to the wife during their joint lives a sum representing 20% of his net income as defined in the agreement. Generally speaking, this net income was to be arrived at by a calculation beginning with the gross taxable income from the trusts. Then a deduction was to be made of the amount of federal and state taxes payable by the husband on his income and there was to be another deduction of $6,500 annually, the amount of the husband’s first wife’s alimony or support so long as bis former wife lived, &c. The agreement provided for a “drawing account” for the wife of $1,575 quarterly, a total of $6,300 for each year. After the income from the trusts for a given year had been determined on the basis of actual facts which then would be known it was provided that the wife was to receive up to the 20% of the net income.

Thus we seem to see that apparently the expectation was that the wife was to receive more than $6,300 a year for separate maintenance.

In the agreement the husband agreed to execute a will whereby he would exercise his power of appointment of or over the corpus of the trust funds so that if he should predecease the wife there would be purchased for her benefit from the corpus of the trust funds an annuity policy in a named insurance company which should provide for the payment to the wife of $7,000 annually in quarterly installments each year for the remainder of the wife’s life.

Again we seem to see that apparently the agreement provided for separate maintenance for the wife at a rate of more than $6,300 annually—probably at the rate of $7,000 annually.

A credible surmise is that if testimony had been taken in 1939 when the decree for separate maintenance herein was made as to what should be the amount to be paid her for separate maintenance to be provided by the decree, that a larger amount than is provided by the agreement would have been ordered paid.

The decree of separate maintenance of July 5th, 1939, has this recital:

The defendant interposing no defense the court finds that the defendant without any justifiable cause abandons the complainant and separates himself from her and refuses and neglects to properly maintain and provide for her.

Thus we see that the husband waived any defense he might have had to the wife’s bill of complaint.

The decree “approves” the agreement as if testimony as a basis for an approval had been taken; and the decree adopts the agreement as part of the decree, the agreement being marked Exhibit A in connection with the decree.

When matters were opened to me on a motion day and I was then informed by counsel concerning the form and contents of the decree and respecting the long agreement of the parties appended to the decree and intended to be incorporated therein as a part thereof I characterized the decree as “an unusual one.” blow, I find that Yice-Chancellor Backes in Hebble v. Hebble, 99 N. J. Eq. 53; 132 Atl. Rep. 113; affirmed, 99 N. J. Eq. 885; 133 Atl. Rep. 919, characterized the decree then before him as “a somewhat unusual decree.” That decree, like the 1939 decree in this suit, was agreed upon by the parties. In that case afterward “both parties desired a modification of the decree and the elimination of all matters except as a straight money allowance.” The unusual decree in that case had brought “complications,” and certainly the decree in this suit has brought complications and litigation.

The parties operated under the 1939 decree for some time with more or less continuity. The litigation since the making of the decree I do not need to even refer to, as I see matters, except as to the petitions now before me.

When matters were opened to me I found that the wife by her petition that had been filed was asking to have the husband adjudged to be in contempt because he had not made payments as provided in the decree, and she asked for an establishment of the arrearages and for the enforcing of their payment. And I then heard the statement of counsel for the husband that he intended to file an answer to the wife’s petition to have him adjudged to be in contempt, &c., and moreover that he intended to file a petition to have the decree of 1939 “vacated” or “reopened” or “modified.” I then stated that the circumstances appeared to be such that I would be warranted in applying the principle of the Cooper Case, 103 N. J. Eq. 416; 143 Atl. Rep. 559. In short, that as the husband was asking for affirmative relief ho would need to comply with the provisions of the decree respecting payments for separate maintenance before his application for modification would be considered.

Thereafter, after further arguments were made time was given that the husband might be enabled to file his petition for a modification and then the statement was made by counsel for the husband that he would pay up in full all arrears for separate maintenance so that his petition for a modification might be received for consideration. However, it appeared on final hearing that the husband had not paid up. On the hearing counsel for the husband stated in open court that he was then tendering a check which he had in his hands, and for $11,594.28, to the counsel for the wife and that the amount covered all arrears, but this check was not received by the counsel for the wife because something was said by counsel for the husband about “conditions.”

How, there are two petitions before me for decision, one of the complainant to have the defendant adjudged to be in contempt because of his failure to comply with the provision for payment for separate maintenance in the 1939 decree, and to establish and enforce payment of arrearages and the other of the defendant.

The petition of the defendant alleges that the decree of 1939 is coram non judice; that the agreement intended to be made part of that decree “is not binding on this court;” that “all provisions of said agreement are null and void and contrary to the public policy of this state;” that defendant’s “only obligation to complainant is his common law duty to provide proper maintenance and support;” that “this court’s jurisdiction in such eases is limited to the fixing of adequate support and maintenance under the provisions of the statute in such ease made and provided;” “that the court has no jurisdiction, inherent or otherwise, to compel the defendant to specifically perform the provisions of the said agreement as such or as part of the decree of this court;” that “the defendant and complainant were incompetent when the agreement was made to contract with respect to defendant’s common law duty to support complainant;” that “there has been a material change in defendant’s financial condition which makes it inequitable and unjust for him to be compelled to carry out the provisions of the agreement as such or as part of the decree of this court;” that the said agreement “is invalid, ambiguous, contrary to public policy, unenforceable and should be set aside and for nothing holden,” &c.

The petition of the defendant contains this paragraph:

12. Your petitioner admits the power and right of this court to enforce a husband’s legal duty to support his wife as distinguished from the power to enforce a contract for that purpose, and admits that the court in fixing the amount of separate maintenance in any case may take into consideration the amount agreed upon in any agreement between the parties but that such agreement is not controlling and may be disregarded by the court.

And the petition of the defendant contains this paragraph:

13. Your petitioner further alleges that he is and at all, times has been willing to discharge his obligation to provide suitable maintenance for the complainant and .that he will abide by any order made by this court fixing the amount of such maintenance pursuant to the provisions of the statute in such case made and provided.

The defendant’s petition concludes with the following prayer:

Your petitioner therefore prays that the said decree of July 5th, 1939, together with the agreement of June 26th, 1939, annexed thereto, may be vacated and set aside and for nothing holden, that in lieu thereof this court take testimony to determine the reasonable needs of. the complainant and your petitioner’s financial circumstances to the end that an order or decree may be made in this cause fixing the amount of separate maintenance to be payable by your petitioner to the complainant.

The petition of the defendant to the extent that it prays for a decree for separate maintenance on the basis of present conditions is to be granted; but to the extent that it prays for a vacation of the 1939 decree it is to be refused. Kor, of course, is the agreement to be “vacated” or declared “null and void” on the defendant’s present petition.

The defendant contends that the 1939 decree should be “vacated” because of the agreement feature, that is, the connecting of the agreement with the decree as shown by the decree itself. However, it is clear that the decree has legal virtue and that it is a valid decree notwithstanding that it is an “unusual” one. The agreement provided the court with a statement of the suitable amount to be decreed as separate maintenance for the complainant. It is to be said that parties should be encouraged to agree on a suitable ¿mount for separate maintenance; and when they so agree their agreement merges in the decree if the court adopts the amount stated in the agreement. Corbin v. Matthews, 129 N. J. Eq. 549; 19 Atl. Rep. (2d) 633.

A decree for separate maintenance is to be made under the authority of the statute (2:5-39). And so such a decree should bo a straight-money decree. Unusual separate maintenance decrees which provide or attempt to provide for more than separate maintenance by a straight-money ■ allowance should not be made; but if a decree is so made it is a valid decree for separate maintenance to the extent that it provides a straight-money allowance therefor. An attempt to include other matters beyond a straight-money allowance does not invalidate a decree for separate maintenance to the extent that it provides for a straight-money allowance. If parties make agreements comprehending other matters than a straight-money allowance they are to be left to their agreements and their own devices respecting them as they may be ■advised. Decrees for separate maintenance providing for more than straight-money allowances bring complications, as happened in the Hebble suit (supra,), as I have said, and sometimes they bring not only complications but litigation if either party has money to litigate with, as has happened in this suit.

Even if, as contended here, the parties being husband and wife could not enter into an enforceable agreement as between themselves still it is to be said that the agreement of 1939 is at the least a paper signed by the defendant which was then revelatory of his means and in which he stated an amount of money payments which he regarded as suitable for the separate maintenance of the complainant and which he agreed should be decreed. The agreement as to these things was evidential when the 1939 decree was made; and I may add that the agreement is so evidential now, but not controlling, subject t-o changes in the circumstances of the parties, if any since 1939, in the absence of any present agreement by the parties as to what is now a suitable money payment for the separate maintenance of the complainant. It is to be noted that the trusts mentioned in the agreement still subsist and that the defendant’s first wife is still living and he is paying to her $6,500 a year for support.

Should the agreement of 1939 be placed out of view, then I should need to consider a factor concerning which some testimony was taken but incidentally and only in response to a question or two by me, namely, “the style of living of the parties.” When this factor is to be considered by the court it is considered with the purpose of endeavoring to fix payment for separate maintenance “at what a wife would have a right to expect as support if living with the husband.” See Dietrick v. Dietrick, 88 N. J. Eq. 560; 103 Atl. Rep. 242; Dinnebeil v. Dinnebeil, 109 N. J. Eq. 594; 158 Atl. Rep. 475; Hebble v. Hebble, supra; affirmed, 99 N. J. Eq. 885; 133 Atl. Rep. 919.

If I were to consider this “style of living” factor probably more testimony would need to be taken. However, in her bill the wife alleged that the defendant owned a farm of some ninety-six acres in Sussex County, Hew Jersey, upon which there are erected numerous and expensive buildings; and she alleged that her husband had advised her that he had expended well over $100,000 in the improvement of the said farm. And the uncontradicted testimony of the wife on the hearing before me shows an established luxurious style of living when she and the husband lived together, with “servants, butler, cook, gardener and wife, extra gardeners by the day, riding horses, groom, four automobiles and swimming pool.” Perhaps it should be noted that the defendant’s mother has a mortgage on the farm referred to, on which apparently no interest has been paid during recent years, and should this mortgage be foreclosed then a levy under an execution against the defendant would apparently not be collectible from tibe farm properly.

In granting the husband’s petition for a straight-money decree to be based on the present circumstances of the parties, I have concluded that the decree should he for separate maintenance at the rate of $9,600 annually, beginning from the date of final hearing, February 26th, 1946. In fixing this amount consideration has been given to the changes in the circumstances of the parties since the decree of 1939 was made, namely, the change in the husband’s income during the years from 1939 onward and the important change brought about by the federal income tax law, which change has been effective since 1942. For the years 1942 onward the wife has been obliged to pay federal income taxes on any amounts received by her from the husband under the 1939 decree and in the same period he has been materially benefited to the extent that that law affects the amount of his net income and income taxes to be paid by him. See Christensen v. Christensen, 137 N. J. Eq. 538; 45 Atl. Rep. (2d) 677; Jacobs v. Jacobs, 328 Ill. App. 133. Because alone of the change in the federal income tax law the wife since 1942 has received less for separate maintenance than the net sum provided by the 1939 agreement and the 1939 decree which adopted the agreement to the extent as hereinbefore stated.

In attempting by these conclusions to sufficiently display how the problem of what is a proper amount to be now allowed to the wife for separate maintenance has been solved I am constrained to state that counsel for the husband have misapprehended matters, and to add that their estimates of what amount should be paid and their reasons therefor have not advanced the problem toward a solution. Without any reference to any of the factors that I need to consider, acting lawfully, counsel for the husband stated in open court that “$300 a month would give the wife a comfortable living;” and later in a letter received by way of memo counsel for the husband stated that “the amount should not exceed $6,000 a year * * * thousands of people go through a lifetime on much less.” And further counsel for the husband stated that “no reason appears why the wife should not go to work.” In short, counsel for the husband have been asking me to ascertain how cheaply the wife might live and to allow for separate maintenance an amount ascertained on that basis.

The 1939 agreement may be used by me as I have stated, to the extent that it provides for the payment of sums for separate maintenance; and taking the agreement alone into consideration, and disregarding all other factors, the change in the federal income tax law as it has affected and now affects both parties guides me to my conclusion to allow $9,600 annually for separate maintenance, which sum after payment by the wife of income taxes bears a fair correspondence to the sum provided to be paid by the 1939 agreement and the 1939 decree which adopted the agreement on this head, namely, at least $6,300 annually. Counsel for the husband seem to think that the present proceedings should result in not only a voiding of the 1939 agreement and a vacating of the 1939 decree— which is not to be the result of the present proceedings as I have hereinabove stated—but also that the agreement as a paper signed by the husband revealing his means had no evidential value at the time the 1939 decree was made and that it has no evidential value now and also that the 1939 decree is not valid even to the extent that it provided for money payments for separate maintenance.

As to arrearages—I determine that there is due for arrearages under the 1939 decree as of February 26th, 1946, the date of final hearing, $12,311.78; and that $321.27 interest computed on deferred payments is to be added thereto, making a total of arrearages and interest $12,633.05.

The order establishing the' arrearages with interest to the amount of $12,633.05 may provide that execution may issue therefor.

The application to have the husband adjudged to be in contempt for his failure to comply with the provision for payments for separate maintenance in the 1939 decree is denied, but without prejudice.

The order respecting arrearages is not to contain an order for a writ of sequestration. Such a writ may be applied for after the order is entered and should the circumstances then warrant writ of sequestration may be ordered.

I will advise a decree for separate maintenance and an order' as to arrearages in conformity with these conclusions.


author: Smith, Joseph L., C. C. J.

text:
    Essex County Circuit Court.
    WALTER L. DAVIS, PLAINTIFF, v. FRANK BURNETT, DEFENDANT.
    Decided May 23, 1946.
    For the plaintiff, Elmer 0. Goodwin.

    For the defendant, Benjamin I). Braelois

   Smith, Joseph L., C. C. J.

This is a motion to strike the answer on the ground that it is sham.

It appears from the affidavits filed herein that the plaintiff is the owner of certain premises in the City of Newark, New Jersey, in which he conducts a funeral parlor. The living quarters in said premises are occupied by the defendant and his family. The defendant and his family entered into possession as the result of an oral agreement. The plaintiff by affidavit alleges that the defendant was employed to act as caretaker of the premises and that in consideration of the services to be performed by the defendant it was agreed that the defendant could occupy the second floor apartment which has a rental value of $65 per month for the sum of $25 per month, cash, and the balance by way of services to be performed. The defendant, by affidavit, denies that he entered into an agreement with the plaintiff, and denies that he is the caretaker of the premises. He admits that an agreement was entered into between the plaintiff and the wife of the defendant. The wife of the defendant, by affidavit, denies that any member of her family was to act as caretaker. She admits that she entered into an agreement with the plaintiff whereby she rented the premises for the sum of $25 per month cash plus the furnishing of the services of her daughter in answering the telephone and the doorbell of the funeral home.

In order to strike an answer as sham the court must find that it is admittedly false or conclusively proved to be so. Milberg v. Keuthe, 98 N. J. L. 779; 121 Atl. Rep. 713. A motion to strike a pleading as sham will not be granted unless it appears to be clearly and palpably so. The duty of the court is to determine whether an issue of fact is presented, and not to try the issue. Jaeger v. Naef, 112 N. J. L. 417; 171 Atl. Rep. 166.

In the instant case it cannot he said that the answer of the defendant is admittedly or conclusively proved to be false. Bent has been defined in 36 Corp. Jur. 285, § 1037, as:

“The return, whether of money, service or specific property, which the tenant makes to the landlord as compensation for the use of the demised premises.”

Bouvier as quoted in Ocean Grove Camp Meeting Association v. Sanders, 67 N. J. L. 1 (at p. 4); 50 Atl. Rep. 449, defines rent as:

“The compensation either in money, provisions, chattels or labor, received by the owner of the soil from the occupant thereof.”

The defendant in this ease alleges the payment of rent by means of both money and services. There is a sufficient question of fact present to render it a question for the jury.

Motion is denied.