text:
    EDITH E. MARSTON, PETITIONER-RESPONDENT, v. CURTISS WRIGHT CORPORATION, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided December 15, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. John W. Taylor argued the cause for the respondent-appellant.

      Mr. Henry F. Hoey, Jr. argued the cause for the petitioner-respondent (Mr. William P. Braun, Esq., attorney).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This matter is before the court pursuant to a writ of certiorari issued by the former Supreme Court to review a judgment of the Court of Common Pleas reversing the Workmen’s Compensation Bureau and awarding compensation to plaintiff, the widow of Edwiñ Marstón.

On March 1, 1945, decedent Edwin Marston was in the employ of appellant, Curtiss Wright Corporation, as a janitor. At about 10:40 p. m. his foreman, Mr. Morris, observed him in the performance of his duties at his employer’s plant using a pail and water and washing partitions with a cloth. Approximately 25 minutes thereafter he found him lying on the third floor corridor, his head in a pool of blood and still bleeding, the pail filled partly with water, a small puddle of water near the pail, and drops of water near his feet. Immediately nearby was an open door to the janitors’ closet which contained a sink and supplies available for their use. He described the corridor floor as “tile linoleum” and stated that it had been waxed. He called the plant’s first aid unit and then left and later in the month signed a statement with respect to the occurrence, which was produced by the corporation during the hearing before the Workmen’s Compensation Bureau.

Shortly thereafter, the Chief of Police of Caldwell, who had received a telephone call from the plant, arrived and observed substantially the same conditions described above. He stated that the floor appeared “highly polished” and “as if it had been mopped.” The general foreman of the corporation testified that the floors in the building “are, as a general rule, mopped and then -buffed with a buffing machine. The floor had been waxed approximately six months before.” The Chief of Police further testified that when he arrived the only other person about was a plant guard and that he called the County Medical Examiner’s Office which arranged for the removal of the decedent’s body. Dr. Beling, Assistant Medical Examiner of Essex County, testified that he performed an autopsy and .found that the decedent had died from a fractured skull. The death certificate signed by Dr. Beling described the-immediate cause of death as “Accidental fall while at work — Fracture of skull — Subdural hemorrhage.’-’

The Court of Common Pleas, in reversing the Bureau and awarding compensation to plaintiff, found that the decedent, while engaged in the performance of the duties of his employment, fell and sustained a fracture of the skull with subdural hemorrhage and that his death was the result of an accident arising out of and in the course of his employment. The appellant, in seeking to reverse the action of the Pleas, urges, first, that it had no notice or knowledge of the injury within the requirement of R. S. 34:15-17. We are satisfied that this point is without merit. The act provides for notice to the employer “unless the employer shall have actual knowledge of the occurrence of the injury.” As stated in General Cable Corp. v. Levins, 124 N. J. Law 223, 227 (E. & A. 1940) this means “in fairness to the employer, that there -be brought home to him the occurrence of an injury suffered by an employe.” That here .the occurrence of the. injury was amply brought home to the employer corporation is evident from the attendant circumstances including the foreman’s observance of all of the known facts pertaining to the occurrence of the injury and his sighed statement with respect thereto-, his' notification to the plant’s first aid department, .the calling of the Chief of Police, and the removal of the employee’s body from the plant by the County Medical Examiner’s Office. See Ayers v. Public Service Coordinated Transport, 12 N. J. Misc. 777, R. 781 (Sup. Ct. 1934,).

The second and main point urged by the appellant is that under Kramerman v. Simon, 131 N. J. Law 250 (Sup. Ct. 1944), Armstrong v. Union County Truest Company, 14 N. J. Misc. R. 648 (Sup. Ct. 1936) affirmed 117 N. J. Law 423 (E. & A. 1937), and Nardone v. Public Service Electric and Gas Co., 113 N. J. Law 540 (Sup. Ct. 1934,), the evidence is insufficient to establish that the decedent’s death resulted from an accident arising out of and in the course of his employment. On the other hand, the petitioner urges that the facts presented sufficiently support her claim of death by such accident within Brooks v. Essex Warehouse Co., 137 N. J. Law 206 (E. & A. 1948), Mountain Ice Co. v. Durkin, 6 N. J. Misc. R. 1111 (Sup. Ct. 1928) affirmed 105 N. J. Law 636 (E. & A. 1929), and DeFazio v. Goldschmidt Detinning Co., 87 N. J. Law 317 (E. & A. 1915).

No significant purpose would be served by attempting to reconcile the different lines of cases cited; it is sufficient to recognize the presence of shifting emphasis resulting in differing conclusions resting on slight factual distinctions of doubtful significance. We need deal here only with the particular facts presented and determine therefrom whether, in the light of the liberal construction to which the Workmen’s Compensation Act' is entitled, the petitioner has, within its contemplation, satisfactorily carried the burden of establishing that the decedent’s death resulted from a compensable accident. It is conceded that while the decedent was engaged in the performance of his duties as a janitor at his employer’s plant, he died from a fractured skull and alternative possibilities have been suggested, namely, (1) that he was assaulted, (2) that a cardiac or similar seizure resulted in his fall which brought about the fracture, and (3) that he slipped on the highly polished floor while engaged in his work and fell with the resulting fracture.

With respect to the suggestion of assault, we need do nothing more than repeat the statement by the Court of Errors and Appeals in the Brooks case, supra, in dealing with an analogous situation that, “there is no justification for assuming the commission of a crime of which there is not the slightest evidence.”

With respect to the second alternative, Dr. Beling’s testimony as to the result of the autopsy affirmatively establishes that the death resulted from a fractured skull and tends to negative the possibility that a cardiac seizure or other internal disorder brought about a fall resulting in the fracture. Cf. Atchison v. Colgate & Co., 3 N. J. Misc. R. 451, 452 (Sup. Ct. 1925,) affirmed 102 N. J. Law 425 (E. & A. 1926,). In this connection it might be noted that after Dr. Beling testified that the decedent died as a result of a fractured skull, counsel for the petitioner asked whether there was any evidence that the decedent suffered from any other illness or disease but this question was not answered because of objection by counsel for the appellant. The appellant’s present standing to deny the otherwise justifiable inference from Dr. Beling’s entire testimony that the death resulted from a fractured skull and no other contributing cause may, therefore, well be doubted.

From all of the evidence presented, including proper inferences, it appears that the third alternative, accepted by the Court of Common Pleas, that the decedent slipped on the highly polished floor while engaged in his work and that his fall resulted in a fractured skull which caused his death, was "a probable or more probable hypothesis with reference to the possibility of other hypotheses.” There was no burden upon the petitioner to establish more. See Sunkimat v. Senger Coal & Ice Corp., 137 N. J. Law 103, 105 (Sup. Ct. 1948). Cf. Richmond v. Scheidell, 8 N. J. Misc. R. 468 (Sup. Ct. 1930,).

We find that the decedent’s death resulted from an accident arising out of and in the course of his employment; that the appellant had actual knowledge of the injury resulting in the decedent’s death; and that the judgment of the Essex County Court of Common Pleas should be affirmed.


source: Caselaw Access Project

author: Bigelow, J. A. D.

license: Public Domain

text:
    WALTER E. TURNER, EUGENE HULSHIZER AND CHARLES C. TRELEASE, EXECUTORS OF THE LAST WILL AND TESTAMENT OF HENRY MUELLER, DECEASED, PLAINTIFF-APPELLANTS, v. HOMER C. ZINK, COMMISSIONER, ACTING AS DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF TAXATION AND FINANCE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided December 27, 1948.
    Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Charles C. Trelease argued the cause for plaintiff-appellants (Mr. George F. F. Pollard, on the brief).

      Mr. William A. Moore argued the cause for defendant-respondent (Mr. Walter D. Van Riper, Attorney General of New Jersey).
   The opinion of the court was delivered by

Bigelow, J. A. D.

This is an appeal from the levy of an inheritance tax. The issue is the market value of shares of the capital stock of C. F. Mueller Company. Decedent owned 60% of the stock and four close relatives held the rest of it. There were no sales of stock indicating its market value, except the one sale discussed below. The book value at decedent’s death November 10, 1946, was $269.25 a share, or $1,271,937 for his holdings. Average earnings per share for the years 1944, 1945 and 1946 were $89 before providing for Federal taxes. After deducting taxes, there remained an average of $42.10 or $25.95 above 6% of book value. If we take three times that sum as a measure of good will, and add it to book value, we reach $347.10 per share. In February, 1947, three months after testator’s death, the executors began negotiations looking to the sale of the stock to the New York University Law School. The negotiations were successful and eventuated in a contract August 28, 1947, for the sale of all the outstanding stock of the Company to the Law School at a price that was equal to $444.-66 per share. A sale of all the outstanding stock and not merely decedent’s shares, was an essential condition of the deal, for the School had devised a plan whereby, if it became the sole stockholder, the Company would be freed of income tax and the School could reasonably hope for an annual return of 25% on the investment.

The parties have stipulated that the Director, “basing his action on the decision in the case of Grell v. Kelly, 132 N. J. L. 450, has valued said shares at $444.66 per share, the sales price thereof on August 28, 1948.” The executors ask that the appraisal be reduced to $425.85 per share. This would produce a tax the equivalent of the 80% credit against the Federal estate tax, and would be as advantageous to the executors as a lower valuation.

In Grell v. Kelly the decedent held a large minority interest in a company engaged in the business of building and repairing railroad docks. Every reasonable effort was made by the •executors to sell the stock to outside interests, but they found it impossible to make a profitable sale to third parties. After nine months of persevering effort, they sold the shares to the holder of the majority stock at the best price obtainable, $175 & share. The Tax Commissioner assessed the stock at $442.59 per share, namely, book value plus a good will item. The Supreme Court concluded that the shares should have been assessed at the sales price. The court in the Grell case laid down no rule of law to be followed by the taxing authorities except the familiar statutory rule that the tax shall be computed on clear market value as of the date of decedent’s death. The decision was based on a finding that the evidence established a market value of $175 a share. The sale was evidence of value as of the date of sale, and the unavailing attempts to effect a sale earlier was persuasive that the shares had no higher value at the date of death.

Let us accept the price paid for the Mueller stock by the New York Law School as strong proof of market value on the date ■of the sale. It was also a fact that book value at that time was $50 more than at the date of death, and net earnings in the intervening ten months had risen well above the three-year average. These factors which the Director felt constrained to ignore, lead us to find that market value when testator died, was substantially less than it was the following August. The Director will be instructed to reduce the appraisal by $18.81 a share to $425.85 and to reassess the tax accordingly.


author: Eastwood, J. A. D.

text:
    JOHN I. WALCUTT, PLAINTIFF-RESPONDENT, v. HOLIDAY MOTORS, INC., A CORPORATION, AND WILBUR E. TWITTY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 13, 1948
    Decided December 27, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Frederick W. Engel argued the cause of the defendants-appellants (Messrs. Sanderson and Engel, attorneys).

      Mr. Robert E. Beck argued the cause of the plaintiff-respondent (Messrs. Grosso and Beck, attorneys).
   The opinion of the court was delivered by

Eastwood, J. A. D.

This is a highway collision case. Defendant appeals from an adverse judgment returned by the Judge of Essex County District -Court, -sitting -without a jury, for the stipulated dam-ages of $200 to plaintiff’s auto-mo-bile, allegedly caused 'by negligence of defendant, Wilbur E. Twitty, operator of motor vehicle of defendant, Holiday Motors, Inc.

The issue is solely a factual -one, and for the purpose o-f this appeal the facts h-ave been stipulated. In these day-s of increasing motor traffic and the consequent risks incident thereto, this accident is not unusual, in that'it involved a collision between two automobiles at the intersection of two public thoroughfares, to wit: Park Avenue and_ Prospect Street, in the City of East Orange. There was -conflicting testimony on the question of negligence and contributory negligence. At the end of the plaintiff’s case, defendants moved for a non-suit which the court denied.

Defendants assert two grounds of appeal: (1) plaintiff was guilty of contributory negligence; and (2) that the court erred in refusing defendants’ motion for non-suit.

Under the procedure in effect prior to September 15, 1948, findings of fact by a trial judge -in the District Court on conflicting evidence, were conclusive on appeal. R. S. 2:32-202. Under present court Rules 1 :2-20 and 4:2-6, the appellate court may review the facts and make an independent finding. Rule 3:81-13. See also DeMoors v. Atlantic Casualty Insurance Company of Newark, 1 N. J. Super, 1, 61 Atl. (2d) 511 (App. Div. 1948); Tuzio v. Saylor, 1 N. J. Super. 61 (App. Div. 1948), recently decided. There was, however, ample evidence in the record here to justify the trial judge’s finding, and we see no justification for disturbing it.

Where, as here, the only basis for an appeal from an adverse judgment clearly appears to involve a controversial factual issue, we will not review the facts and make independent findings thereon, unless the interests of justice may so require.

The judgment below is affirmed, with costs.


text:
    PAUL DEMPSEY, PLAINTIFF-APPELLANT, v. EAGLE PICHER COMPANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 25, 1948
    Decided December 27, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. John A. Laird argued the cause for the plaintiff-appellant (Mr. Fred Freeman, attorney).

      Mr. Herman M. Wilson argued the cause for the defendant-respondent.
   The opinion of the court was delivered by

Bigelow, J. A. D.

We have carefully examined the evidence and agree with the Common Pleas that the prosecutor has not sustained the burden of proving that the impairment of the vision of his left eye was caused or aggravated by the accident which occurred in the course of his employment by the respondent.

The prosecutor was working at a furnace containing molten lead on November 23, 1945, when some of the lead spattered on his face and in his eyes. Within an hour or so, he was examined by Dr. Daron, an eye specialist retained by the) respondent, who removed several particles from the right eye, and one from the inside of the lid of the left eye. The doctor applied ointment and the next day, when he again saw prosecutor, he found that the left eye had healed but the right eye required treatment for a few days more. The prosecutor was examined by another specialist, Dr. Berney, a year later, November 6, 1946, and again by Dr. Daron June 9, 1947, and lastly by Dr. Berney September 10, 1947.

When Dr. Daron first saw prosecutor, he observed an old, partial cataract of the left eye. This condition grew worse, so that when Dr. Berney last examined prosecutor, he found that the vision of the eye had decreased to 20-80. The question is whether the progress of the cataract is a result of the accident. Dr. Berney expressed the opinion that it is and Dr. Daron was of the opposite opinion. Dr. Berney is at the disadvantage of having no first-hand knowledge of the condition of the eye at the time of the accident, or of the immediate apparent effect of the accident. The prosecutor himself testified that his sight became worse very shortly after the accident, but his interest in the outcome of the suit and his layman’s lack of knowledge of the causes and development of eye trouble, lead us to discount his testimony. The judgment is affirmed.


author: McGeehan, S. J. A. D.

text:
    STANLEY KOPCZYNSKI, PLAINTIFF-APPELLANT, v. COUNTY OF CAMDEN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 18, 1948
    Decided December 23, 1948.

      Before Judges McGeehan, Donges and Colie.

      Mr. Meyer L. Sakin argued the cause for plaintiff-appellant.

      Mr. George G. Tartar argued the cause for defendant-respondent.
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

Plaintiff sued to recover $249.99 in salary which plaintiff claimed was due to him as court interpreter for the period beginning February 1, 1948 and ending March 15, 1948. A judgment of no cause of action was entered in the district court in favor of the defendant, and plaintiff appeals.

Defendant conceded that the plaintiff was appointed court interpreter in 1935 by the then Judge of the Court of Common Pleas of Camden County, and that his annual salary was fixed by the Judge, both pursuant to statute (now R. S. 2:16-35 and 2:16-36); that his annual salary since January 1, 1946 was fixed at $2,000; that he continued to serve and was paid at that rate by the defendant until February 1, 1948; that the county refused to pay any salary for the period in suit; and. that plaintiff as such court interpreter was in the classified civil service. It was admitted that no resolution in connection with plaintiff’s position or salary was requested by the judge or plaintiff, that no such resolution was passed by the Board of Freeholders prior to March 16, 1948, and that the plaintiff took no appeal to the Civil Service Commission before bringing suit.. Although a resolution of the Board of Freeholders, passed May 25, 1948, was received in evidence, we disregard it as having no effect on this suit.

R. S. 2:16-35 provides: “ * * * the, judge of the court of common pleas * * * may appoint * * * interpreters * *

R. S. 2:16-36, until amended by P. L. 1947, c. 344, effective-June 25, 1947, provided:

“The compensation of interpreters appointed to interpret * * * shall bo fixed by the judge of the court of common pleas of the respective counties, or by the judges of such court if there be more-than one such judge in any county and shall he as follows:
“In counties having more than three hundred thousand inhahitants,. a salary of not viore than thirty-five hundred dollars annually;
“In counties having hettoeen two hundred thousand and three hundred thousand inhahitants, a salary of not more than twenty-five hundred dollars annually;
“In counties hordering on the Atlantic ocean and having more than eighty thousand inhahitants, a salary of not more than sixteen hundred dollars annually.
“The salaries herein provided shall be paid by the treasurer of each county, semimonthly, out of the funds of the county, and shall, whenever fixed as herein provided, be in lieu of all other fees or compensation whatsoever.”

The 1947 amendment of R. S. 2:16-36 deleted the italicized language and substituted:

provided, however, that the salaries so fixed shall not become effective unless approved by resolution of the board of chosen freeholders of the county wherein such salaries are to be paid.”

A letter dated January 21, 1948 and signed by Samuel C. Berry, Director of Revenue and Finance of Camden County, was received by the plaintiff in the latter part of January, 1948. The letter stated:

“Please be advised that the Board of Freeholders have not provided any money in the 1948 budget for your salary after January 31st; therefore, your services with the County of Camden will be terminated as of January 31, 1948.”

Plaintiff continued to report for duty between February 1, 1948 and March 16, 1948, and demanded his pay on the regular pay days.

The district court judge gave judgment of no cause of action on the ground that the letter of January 21, 1946 was a dismissal of plaintiff and therefore R. S. 11:22-38 required an appeal to the Civil Service Commission and a finding of illegality of the dismissal before a cause of action could exist in the district court. The court below relied on Keegel v. Hudson County, 99 N. J. L. 26 (Sup. Ct. 1923) and Van Sant v. Atlantic City, 68 N. J. L. 449 (Sup Ct. 1902), but in both these cases the dismissal was by the appointing authority.

R. S. 11:22-38 provides:

“No officer, clerk or employee holding a position in the competitive class shall be removed, discharged, fined or reduced, except as provided in section 11:22-6 of this title as to probationers, until he has been furnished with a written statement of the reasons for such action by the appointing authority and been allowed a reasonable time to make answer thereto. A copy of the statement or reasons therefor and the answer thereto, with the action of the appointing authority, shall forthwith be furnished to the commission and entered upon its records, and shall also be entered on the records of the department or ofEce in which the removed, discharged, fined or reduced person was or is employed. The officer, clerk or employee shall at once be notified, in writing, of the action taken on such charges and answer. The action of the appointing authority ordering or directing such removal, discharge, fine or reduction shall not take effect until approved by order of the commission. If, however, such person so ordered or directed to be removed, discharged, fined or reduced shall not, within ten days after notification, as aforesaid, apply to the commission for an' investigation of the charges on which such order of removal, discharge, fine or reduction is based, under such rules as the commission shall prescribe, such order may be approved, as of course, without hearing or investigation.”

R. S. 11:22-39 provides:

“If the application mentioned in section 11:22-38 of this title is made within the time prescribed, the commission shall fix a time and place for a hearing of the case, of which time and place written notice shall be served upon the appointing authority and the officer, clerk or employee, at least five days prior to the hearing. The respective parties may, at the hearing, be represented by counsel. * * * »

R. S. 11:22-38 and 11:22-39 apply when dismissal is by the appointing authority, but have no application when the one who attempts to dismiss has no authority, as a matter of law, to appoint or dismiss. Under R. S. 2:16-35 the appointing authority is now and has always been the judge or judges of the Court of Common Pleas. Since there was no dismissal by the appointing authority, appeal to the Civil Service Commission was no prerequisite to suit at law for salary.

We find, therefore, that the action of the court below cannot be sustained on the ground given by it. However, where there is any ground upon which the action of the lower court may be sustained, the judgment may be affirmed, although the ground or reason assigned for the action of the court may not be sustained. See Dikowski v. Metropolitan Life Ins. Co., 128 N. J. L. 124 (E. & A. 1942).

The salary of interpreters appointed pursuant to R. S. 2:16 — 35 has been fixed by R. S. 2:16-36 and its predecessor statute since before 1935, and the salary for any particular period depends on the then effective provisions of R. S. 2:16-36. Prior to June 25, 1947, if the interpreter was appointed as provided in R. S. 2:16-35 and if the judge fixed his salary within the limitations of R. S. 2:16-36, the county was obliged to pay such salary. The 1947 amendment struck out the limitations on the amount of salary which the judge could fix and substituted the proviso that the salary fixed by the judge “shall not become effective unless approved by resolution of the board of chosen freeholders.”

It is clear that any salary fixed by the judge after June 25, 1947, must be approved by resolution of the' board to become effective. To entitle an interpreter, whose salary was fixed under R. S. 2:16 — 36 and was paid by the county before the 1947 amendment, to salary for a period after the 1947 amendment, is a resolution of the board approving such salary required ? In the absence of constitutional restriction, the power of the legislature to abolish the position, or, for the future, to lower the salary or to add new or additional requirements before the former salary can be effective, cannot be questioned. See Hoboken v. Gear, 27 N. J. L. 265 (Sup. Ct. 1859). The effect of the amendment was to repeal the requirement that the. county pay the salary fixed by the judge within the "salary limitations and substitute, for the future, a requirement that the salary fixed by the judge must be approved by a resolution of the board before it becomes effective. This type of legislation is not novel — compare section 95 of the Criminal Procedure Act, P. L. 1898, p. 901, and its amendment by P. L. 1933, c. 19. Plaintiff cites the rule that statutes are to be given prospective effect unless the language is so clear and positive as to leave no other construction. This rule, however, has no application in this case, because we deal here only with the effect of the amendment on a claim for salary for a period after its enactment. It is obvious that if the amendment had abolished the position, plaintiff would not be entitled to salary after its enactment; that if the amendment had reduced the annual salary to $1,000 the plaintiff would be entitled, after the enactment, only to the reduced salary. So, here, for any period after the amendment, the plaintiff is entitled to salary only if he meets the requirements of the amendment.

To accept the argument of the plaintiff that after the amendment he was still entitled to his $2,000 salary, without approval' by resolution of the board, would be a nullification of the action of .the legislature. The provisions of R. S. 2:16-36 upon which he had to rely for his $2,000 salary before the amend-. ment, went out of the law when amended, and thereafter there was no statutory support for payment of his salary other than as provided in the amendment. Plaintiff contends that even if the amendment is prospective only and does apply to him, then a resolution of the board disapproving the salary fixed by the judge prior to its enactment is necessary. While such a provision might have been included by the legislature, we are not at liberty to supply it.

We conclude that the 1947 amendment made the right to salary for the period in suit dependent on a resolution of the board of chosen freeholders approving the salary fixed by the judge. Here, there was no such resolution and consequently no salary was due. The action of the court below is sustained on this ground.

The judgment under appeal is affirmed.


author: Jacobs, S. J. A. D. Bigelow, J. A. D.

text:
    FRANK L. ESPOSITO, PLAINTIFF-RESPONDENT, v. MICHAEL LAZAR, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 29, 1948

    Decided December 27, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Maurice C. Brigadier argued the cause for the defendant-appellant.

      Mr. Andrew O. Wittreich argued the cause for the plaintiff-respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal in a negligence action from a judgment of the Hudson County Court of Common Plea-s in favor of the plaintiff-respondent.

Upon the defendant’s invitation, the plaintiff accompanied him in the defendant’s car to the premises of Royal Motors at Jersey City. Subsequently they returned to the car where the defendant unlocked the door to permit plaintiff to enter. While plaintiff was entering, the door was closed upon his right hand causing a fracture of the second metacarpal. The plaintiff testified that “the door was slammed” on his hand by the defendant; the defendant testified at one point that he did not close the door and at another point that he did not remember closing the door. Another witness, Mr. Domanowski, who had accompanied the plaintiff and the defendant, testified that he heard plaintiff’s outcry when his hand was hurt, although he had not seen the door closed. There were no motions for non-suit or directed verdict and the trial judge submitted to the jury the issue of whether the defendant had negligently closed the door on plaintiff’s hand causing the injury. The court instructed the jury that if they found that the plaintiff was entitled to recover because of the defendant’s negligent action they would then consider and fix the amount of damages. The jury returned a verdict in favor of the plaintiff in the sum of $1200 and thereupon plaintiff obtained a rule to show cause why a new trial limited to damages should not be granted. The trial court determined that the damages were inadequate and that a new trial limited to damages would be granted unless the defendant consented to an increase to $3500. The defendant declined and a subsequent jury trying the single issue of damages rendered a verdict in the sum of $3,000 for the plaintiff. The defendant appeals on the ground that the trial court erred in limiting the new trial to damages.

The propriety of confining a new trial to damages or other question with respect to which the verdict is wrong, if separable, has long been recognized in our state. See Gaffney v. Illingsworth, 90 N. J. Law 490 (E. & A. 1917) and annotations in 2 N. J. Misc. R. pp. 1246-1251. See also Rule 3:59-1. Thus in Robinson v. Payne, 99 N. J. Law 135, 142 (E. & A. 1923) the Court of Errors & Appeals held that where it appears from a review of the entire case that the jury has determined “the question of liability fairly and upon sufficient evidence” and that the sole error relates to the i-ssue of damages, “the court has. power to confine the new trial to the question of damages, and in the interest of justice it should exercise the power.” See Petrosino v. Public Service Co-ordinated. Transport, 1 N. J. Super. 19, 61 Atl. (2d) 746 (App.Div. 1948). And in Rossman v. Newbon, 112 N. J. Law 261, 263 (E. & A. 1934) the same court in sustaining the limitation of a new trial to damages where it appeared that the jury had neglected to assess damages, with respect to one of the plaintiffs although the issue of liability was determined in his favor (Cf. Tompkins v. Pilots Association for Bay & River Delaware, 32 F. Supp. 439 (D. Pa. 1940) ) again points out that such action rests “in the sound discretion” of the trial court.

Defendant does not dispute the foregoing but contends that the jury which returned the $1200 verdict had not made separable determinations but had illegally compromised both liability and damages. If that was so, then the trial judge should have awarded a new trial on all issues rather than one confined to damages. See Juliano v. Abeles, 114 N. J. Law 510 (Sup. Ct. 1935); DePeole v. Passaic City Steam Laundry, 5 N. J. Misc. R. 687, 690 (Sup. Ct. 1927). The real question remaining, therefore, is whether, from an examination of the entire record, the assertion that the jury did not find in favor of the plaintiff on the issue of negligence but compromised that issue along with the quantum of damages, is supported.

Prior to the accident plaintiff worked in his mother-in-law’s business as a baker, receiving a regular weekly wage of $50. Since the accident he has not worked as a baker but has received substantially the same weekly amount as a salesperson in her bakery store. His medical bill was $110 which included $20 for X-rays and $90 for thirty visits to his doctor for hand massages. He testified that the prevailing wage for bakers in regular industry is $90 per week but that he would be unable to perform such work because of the injury to his hand. His doctor testified that upon examination he found that the plaintiff had suffered a “fracture of the second metacarpal of the right hand” and that this was confirmed by x-rays which were taken but not available. He did not express any opinion as to whether the condition of plaintiff’s hand would interfere with the performance of -his duties as a baker although he did state that he thought “there has been some impairment of function.” On -the other hand, the doctor called by the defendant testified that in his opinion the fracture of the second metacarpal, although it left a slight honey prominence, did not result in any impairment of the function of the hand or in any condition which would interfere with plaintiff’s performance of his work as -a baker. On cross-examination he again stated that althotígh plaintiff has the boney prominence, he was “sure he has normal function.”

It seems clear that if the jury believed the medical testimony introduced by the defendant, it could, after having determined the issue of liability in favor of the plaintiff, properly assess damages at or about $1200. Upon the hypothesis that it accepted such evidence, the verdict actually rendered by the jury would in no sense suggest any inconsistency or compromise. Cf. C. A. Lippincott & Bro. v. Matazzo, 8 N. J. Misc. R. 330, 332 (Sup. Ct. 1930). In the light of the defendant’s contention, at the trial, and his supporting medical testimony, that plaintiff had suffered no serious injury or functional impairment, we are not impressed with the defendant’s present contrary position that the plaintiff’s injuries were so serious and the verdict of $1200 so small that there must have been a compromise on the disputed issue of liability as well as damages.

The determination as to whether a verdict for inadequate damages represents an illegal compromise properly rests, in the first instance, with the trial judge who has had the advantage of observing the witnesses and conducting the trial. Where, as here, he has, by limiting the new trial to damages, determined that the issue of. liability was fairly and separately decided on sufficient evidence by the first jury and judgment has been entered upon a proper assessment of damages by a second jury, the appellate court is loath to upset his discretionary action and thus compel litigation anew on all issues. Cf. Gaffney v. Illingsworth, supra; Rossman v. Newbon, supra. Considering the entire proceedings including the testimony, the trial judge’s action on the rule to show cause, and the subsequent verdict of $3,000, we find nothing which would render the original verdict of $1200 so grossly insufficient as to establish an illegal compromise on liability warranting interference with the trial judge’s action. Indeed, examination of the authorities indicates that limitations of new trials to the issue of damages have been sustained where the suggested disparity between the original verdict and a reasonable quantum of damages was far greater than that before us. See Rossman v. Newbon, supra, at p. 262; Stott v. Schantz, 6 N. J. Misc. R. 1046 (Sup. Ct. 1928).

The judgment below is affirmed.

Bigelow, J. A. D.

(dissenting): I regret that I am unable to agree with my colleagues. The defendant-appellant assigns as a. reason for reversal that the new trial which the Common Pleas granted, should have been allowed on the whole case, if granted at all, and not limited to damages. He contends that the verdict on the first trial was a compromise and, as a step in his argument, urges the inadequacy of the damages awarded by the jury. The plaintiff-respondent answers that the evidence justified the small sum awarded. But the plaintiff moved successfully for a new trial on the ground that the verdict was too small. A verdict for personal injuries is not set aside for inadequacy when the failure to award a greater sum can reasonably be supported by the evidence, but only if the inadequacy is so clear as to raise an inference of mistake or partiality on the part of the jury. Kitten v. North Jersey St. Ry. Co., 74 N. J. Law 286 (Sup. Ct. 1907); McHugh v. Soffer, 24 N. J. Misc. R. 111 (Burling, J. C. C. 1946). We must assume that the plaintiff, on his motion for a new trial, urged that the verdict was of this character. By plain principles of estoppel he is forbidden now to take any other position. Since he sought and obtained a new trial on the theory that the damages were inadequate, on this theory must he stand to the end. Lindeman-Chevrolet, Inc. v. Reliable Woodworking Co., 4 N. J. Misc. R. 52; 103 N. J. Law 198 (E. & A. 1926). See also 5 C. J. S.., Appeal and Error, § 1506, p. 195. It is true that defendant, at the first trial, presented testimony minimizing plaintiff’s injuries, and I take for granted that -on the motion for a new trial, he vigorously-argued that the verdict was large enough. But his contention was not adopted by the court, while plaintiff’s became the law of the case (21 C. J. S. Courts, § 195, p. 332), and therefore defendant is now at liberty to make his opponent’s former contention a basis of his argument. '

On this appeal, in my opinion, the parties and this court as well, must proceed on the assumption that the verdict at the first trial was so small as to indicate clearly that the verdict in respect to damages was the result of mistake or partiality. We ought shut our minds to any other interpretation of the evidence.

Defendant’s liability was not at all clear. As plaintiff was entering the rear, right-hand door of an automobile, the door was slammed on his hand, badly injuring it. It is probable that either his friend Domanowski, or the defendant Lazar, was responsible, but plaintiff apparently did not know which one. He merely testified that they were both on the sidewalk near the door, when the door was slammed. The testimony of Doman owski and Lazar was even vaguer. Domanowski thought he got into his seat (front, right-hand seat) while Esposito, the plaintiff, was still outside with Lazar. He heard Esposito cry out with pain. “I turned around and I laughed. I seen his hand go up in a balloon. I turned around and I seen Mike Lazar at the wheel.” Asked bluntly whether it was he, Domanowski, who closed the door on Esposito’s hand, he replied, “I don’t remember closing the door.” Lazar testified that he opened both doors on the right side of the car, and then went around the front of the car. He heard Esposito scream. “Did you close the door on his hand? No, I can’t remember closing the door on his hand. I can’t remember.”

The case, as it went to the jury, presented this situation: Plaintiff had been seriously injured but whether or not defendant was liable was a question of much doubt. The jury found him liable but awarded damages in an-inadequate sum. It is reasonably inferable that the verdict was a compromise; that doubts of defendant’s liability were offset by a reduction of the amount of damages. A verdict resulting from such a compromise is wholly invalid. The granting of a new trial as to damages only worked a grave injustice to the defendant for it saddled him with the compromise debits while taking from him the credits. It was error for the trial court so to limit the new trial. DePeole v. Passaic City Steam Laundry, 5 N. J. Misc. R. 687 (Sup. Ct. 1927); Sussman v. Yellow Taxi Cab Co., 7 N. J. Misc. R. 325 (Sup. Ct. 1929); Juliano v. Abeles, 114 N. J. Law 510 (Sup. Ct. 1935); Stalter v. Schuyler, 135 N. J. Law 228 (Sup. Ct. 1947).

In my opinion, the judgment should be reversed.


author: Colie, J. A. D.

text:
    ELEANOR MOLESKI, PETITIONER-RESPONDENT, v. MORRIS BOHEN AND HERBERT PRESTUP, TRADING AS WILLIAM ZALKIN, RESPONDENTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1948
    Decided December 29, 1948.

      Before Judges McGeehan, Donges and Colie.

      Mr. Abraham I. Harkavy argued the cause for respondents-appellants (Messrs. Harkavy & Lieb, attorneys).

      Mr. Archie Elkins argued the cause for petitioner-respondent.
   The opinion of the court was delivered by

Colie, J. A. D.

This is a workmen’s compensation matter in which the deputy commissioner dismissed the petition and held that the petitioner’s decedent had not died as the result of an accident, arising out of and in the course of the employment. On appeal, the then Hudson County Court of Common Pleas reversed, holding that petitioner’s decedent died of injuries sustained in an accident arising out of and in the course of the employment.

From a study of the evidence we find the following facts: Alexander Moleski, Jr., age 37, was, on May 29, 1947, employed by respondents as a truck driver. On the day in question, he commenced work shortly before 8 A. M. His activities from then until 12:30 included loading his truck with bags of cement, each weighing about 94 pounds and making deliveries ■ to four or five customers. At each stop he assisted in delivering the cement. Thereafter, he assisted in transferring to his truck some 8000 pounds of material in 100-pound bags. After driving this load to its destination, he helped load some hundreds of bricks onto his truck. After the lunch period, he drove his truck out loaded with bundles of sheet rock, each weighing 95 pounds. While delivering this load, he had a flat tire which he assisted in changing. About 4 P. M. he again left the yard with a load of nearly five tons. With the aid of a helper who accompanied him on the afternoon trips, he delivered a part .of this load and had walked to the porch of the last customer and pressed the doorbell when he dropped dead as a result of a coronary occlusion. It is undisputed that on May 29th the temperature ranged from 76 degrees at 8 A. M. through 85 degrees at 4 P. M. and down to 78 degrees at 6 P. M.

The synopsis of our finding of facts brings this case within the holding in Bernstein Furniture Co. v. Kelly, 114 N. J. Law 500 (Sup. Ct. 1935); affirmed 115 N. J. Law 500 (E. & A. 1935). Mr. Justice Perskie, for the Supreme Court in affirming an award to the dependents of a workman who died of a cardiac failure, said: “The heat, the weight of the furniture, the difficulty in carrying the furniture up the stairs, justify the conclusion that it was an unusual exertion * * So, in the instant case the heat, the extraordinary volume of materials delivered and their heavy weights combine to create the unusual exertion which was held in the cited case to justify the finding of an accident arising out of the employment. We note in passing that the holding in Bernstein Furniture Co. v. Kelly, supra, is in nowise weakened by Lohndorf v. Peper Bros. Paint Co., 134 N. J. Law 156 (Sup. Ct. 1946); affirmed 135 N. J. Law 352 (E. & A. 1947).

The judgment under review is affirmed with costs.


text:
    NICHOLAS RICCA, MARIA C. RICCA AND ANTHONY S. RICCA, PLAINTIFFS-APPELLANTS, v. BOARD OF COMMISSIONERS OF THE TOWN OF BELLEVILLE, A MUNICIPAL CORPORATION IN THE COUNTY OF ESSEX, DEFENDANT-RESPONDENT. ANTHONY S. RICCA, PLAINTIFF-APPELLANT, v. BOARD OF COMMISSIONERS OF THE TOWN OF BELLEVILLE, A MUNICIPAL CORPORATION IN THE COUNTY OF ESSEX, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided December 27, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Emil Klein argued the cause for the plaintiffs-appellants (Messrs. Klein & Klein, attorneys).

      Mr. Lawrence E. Keenan argued the cause for the defendant-respondent (Mr. Lawrence E. Keenan, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

Certiorari was allowed by the former .Supreme Court to review two ordinances of the Town of Belle-ville adopted on November 12, 1946, one providing that no person shall ride or lead in any manner any saddle horse on .any railroad right-of-way, excepting at crossings which have in attendance regularly employed watchmen of the railroad company, and on any portion of any public highway of the Town of Belleville which is located within 50 feet of such railroad right-of-way; and the other providing for the imposition of a license fee of $250 for the conduct of a riding academy or any establishment which stables horses or ponies which are liired for use on or off the premises as saddle horses. Depositions were taken pursuant to the writs, and by stipulation both matters have been consolidated for disposition on the appeal to this court.

Plaintiffs, Nicholas and'Maria C. Ricca, have been the owners since June 12, 1933, of certain lands in a rural section of Belleville lying adjacent to the southwesterly side of the Greenwood Lake Branch of the Erie Railroad. This land has no frontage on any public street or highway and lies southwesterly from the intersection of Smallwood Avenue and Lavergne Place. Smallwood Avenue is a public street one block north of the Erie Railroad right-of-way, across the tracks from plaintiffs’ property; Lavergne Place runs from north to south, intersecting Smallwood Avenue, and is paved up to the southerly side of Smallwood Avenue; it then becomes a meandering sort of roadway to the northerly line of the Erie right-of-way, leading southwardly to the double-tracked railroad, then across ■the tracks into á private road which forms the westerly boundary of the Ricca property and the easterly boundary of premises .adjoining the Ricca property on the west. The crossing over the railroad at this point is a private unprotected crossing, constructed of a hard surface pavement to permit convenient and easy passage of pedestrians, vehicles and animals over it. Whistle sign posts are maintained by the railroad about 500 feet east and west of the crossing. The Riccas post a timetable of the trains on their property.

Nicholas Ricca operates a coal business on his property, and the riding academy has been conducted thereon by Anthony S. Ricca since 1938.

The adoption of both ordinances was obviously prompted by a fatal accident which occurred on May 11, 1946, to a young lady.who had hired one of Ricca’s saddle horses, and whose body was found later on the north side of the railroad tracks, approximately 1500 feet westerly from the crossing at Lavergne Place. There is an atmosphere of uncertainty as to how and under what circumstances her death was occasioned.

We are asked to set aside the ordinance on three grounds. They are: (1) the ordinance entitled “An Ordinance Pertaining To Saddle Horses” is arbitrary, illegal and void; (2) the licensing ordinance is arbitrary, capricious and discriminatory, and is an illegal impost in that, although adopted for regulatory purposes, provides for excessive license fees; and (3) the licensing ordinance fails to set forth a legally sufficient standard for the guidance of the licensing official. The appeal is resisted on the grounds that (1) the “Saddle Horse Ordinance” is a valid exercise of municipal police power; and (2) the licensing ordinance is a valid exercise of the taxing power or of the regulatory power of the municipality.

Our review of the proofs impels us to the conclusion that the so-called saddle horse ordinance is prohibitory and discriminatory, rather than regulatory, and for this reason cannot be sustained. Albeit, the municipality has the right to secure such ends, under the police power, for the protection of life, health, property, and for the preservation of good government and general welfare, order and security of the public (R. S. 40:48-2), such authority is limited and must conform to the requirement that the means employed in the exercise of such police power have a rational relation to that end, and are free from arbitrariness. The restraints and regulations adopted for the preservation and the general good and welfare must in all respects be reasonable in nature. N. J. Good Humor, Inc., v. Bradley Beach, 124 N. J. Law 162 (E. & A. 1939), 11 Atl. (2d) 113. It seems to us, and we so hold, that what was done here was solely with reference to the riding academy conducted by the plaintiff, Anthony S. Ricca. It fails wholly to deal with the safety of the general public, but, as stated, imposes its interdiction only upon the use of saddle horses on railroad rights-of-way and unprotected crossings. When it is borne in mind that the public has no right-of-way over thtí crossing in question, it immediately becomes apparent that the prime purpose of the saddle horse ordinance was to preclude plaintiffs from continuing the riding' academy. These factors definitely indicate that the Board of Commissioners, prompted by the incident of her death, sought to prevent the occurrence of future fatalities by prohibiting horseback riding on the railroad right-of-way. Although the intention may have been justifiable it follows that the means adopted are wholly arbitrary, discriminatory and unreasonable. As such, the saddle horse ordinance falls within the condemnation of Hart v. Teaneck Township, 135 N. J. Law 174 (E. & A. 1946), 50 Atl. (2d) 856, wherein the Court of Errors and Appeals held invalid an ordinance that attempted to close lunch wagons during the early hours of the morning. Mr. Justice Wachenfeld, speaking for the court, said:

“A municipal corporation is a creature of the Legislature, with no inherent jurisdiction to make laws, but is a government of enumerated powers acting by delegated authority which must be exercised in a reasonable manner. The power conferred on municipal corporations by the State Legislature is limited; its exercise must be directed to the protection of a basic interest of society and ‘ * * * the means employed in its exercise have a rational relation to that end, and be altogether free from arbitrariness. The restraints and regulations imposed for the general good and welfare must needs have the virtue of reasonableness.’ N. J. Good Humor, Inc., v. Bradley Beach, 124 N. J. L. 162, 168, 11 A.2d 113, 117.”

The saddle horse ordinance fails to meet the test, as repeatedly enunciated by our courts, that the regulation must be reasonable and free from discrimination. The challenged ordinance fails to do so. Cf. Falco v. Atlantic City, 99 N. J. Law 19 (Sup. Ct. 1923), 122 Atl. 610 (barber shop); Wagman v. Trenton, 102 N. J. Law 492 (Sup. Ct. 1926), 134 Atl. 115 (public auctions); Spiro Drug Service, Inc., v. Board of Commissioners of Union City, 130 N. J. Law 1 (Sup. Ct. 1943), 30 Atl. (2d) 892, affirmed 130 N. J. Law 496 (E. & A. 1943), 33 Atl. (2d) 872 (drug store) ; Starkey v. Atlantic City, 132 N. J. Law 27 (Sup. Ct. 1944), 38 Atl. (2d) 198 (drug store) ; Amodio v. Board of Commissioners of West New York, 133 N. J. Law 220 (Sup. Ct. 1945), 43 Atl. (2d) 889 (barber shop). Cf. Crawford’s Clothes, Inc., v. Board of Commissioners of Newark, 131 N.J. Law 97 (Sup. Ct. 1943), 35 Atl. (2d) 38.

The amendment to the licensing ordinance is assailed as arbitrary, capricious, discriminatory and confiscatory. We think not. It was adopted in the exercise of the authority conferred by R. S. 40:52-1 et seq. Similar license fees have been sustained in cases involving itinerant vendors, barber schools, and concessionaires of super-markets.. The defendant municipality has in effect a licensing ordinance adopted on June 30, 1931, which provides, inter alia, for the licensing of wrestling and boxing arenas at a fee of $250. We are persuaded that the volume of the riding academy business conducted by the plaintiff, Anthony S. Ricca, fully justifies the license fee imposed. In Independent Warehouses, Inc. v. Scheele, 132 N. J. Law 390 (Sup. Ct. 1945), 40 Atl. (2d) 796; affirmed 134 N. J. Law 133 (E. & A. 1946), 45 Atl. (2d) 703; affirmed 67 U. S. Sup. Ct. 1062, Justice Heher stated, inter alia:

“The quantum of the tax rests in sound discretion, guided by reason ; and judicial intervention is justifiable only where there has been an abuse of the power. If the local legislative action is not clearly unreasonable or unduly oppressive or discriminatory, its policy is not a justiciable question.”

Also, see Hoffman v. Borough of Neptune City, 137 N. J. Law 485 (Sup. Ct. 1948), 60 Atl. (2d) 798, for a discussion by Justice Jacobs of the subject of municipal license fees.

The ordinance entitled “An Ordinance Pertaining To Saddle Horses”, adopted on November 12, 1946, is set aside.

The ordinance fixing license fee is affirmed.


text:
    ALBERT GAUDETTE, PETITIONER-RESPONDENT, v. WALTER C. MILLER AND NEW JERSEY MANUFACTURERS CASUALTY INSURANCE CO., RESPONDENTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1948
    Decided December 29, 1948.

      Before Judges McGeehan, Donges and Colie.

      Mr. Isidor Kalisch argued the cause for respondents-appellants.

      Mr. John A. Laird argued the cause for petitioner-respondent (Mr. David Roskein, attorney).
   The opinion of the court was delivered by

Colie, J. A. D.

This appeal is before the court by virtue of a writ of certiorari allowed prior to September 15, 1948. The appeal seeks to reverse a judgment of the Hudson County Court of Common Pleas affirming an award of compensation to the petitioner. The question before us is whether or not the petitioner suffered an accident arising out of his employment.

We find the facts to be as follows: The petitioner, aged 60, had been a carpenter for 20 years. On March 10, 1947 he had been working on the same job for the past three weeks. On that date, he commenced work about eight in the morning and continued until noon. After lunch he resumed work and about three o’clock was seized with a sharp pain through his chest. The work consisted of cutting 2x4 beams which were just above the level of petitioner’s head when standing on a scaffold five feet above floor level. Up to the time of the seizure he had cut between 20 or 30 beams and he testified that it was a routine job for a carpenter and that the position of the beams to be cut required him to be “sort of kinked over a little bit.” The medical witnesses were divided on the question of whether or not there was a causal connection between the work and the onset of the occlusion.

The leading case dealing with cardiac failure is Lohndorf v. Peper Bros. Paint Co., 134 N. J. Law 156 (Sup. Ct. 1946); affirmed 135 N. J. Law 352 (E. & A. 1947). Mr. Justice Oliphant for the Supreme Court, after pointing out the presumption that any death from heart disease is the result of natural causes, said: “An accident is ‘an unlooked for mishap or untoward event which is not expected or designed.’ Geltman v. Reliable Linen and Supply Co., 128 N. J. L. 443; ‘an unintended or unexpected occurrence,’ Bollinger v. Wagaraw Building and Supply Co., 122 Id. 512; it is an event happening at a specific time or occasion. Liondale Bleach Works v. Riker, 85 Id. 426. The words ‘accident’ and ‘employment’ are not synonymous. To render an injury compensable there must be an event or happening, beyond the mere employment itself, which brings about the final result or contributes thereto, and without which the injury or death would not have resulted.”

On the facts in this case we find no event or happening, beyond the mere employment itself, which brought about the coronary occlusion. Accordingly, the judgment under review is reversed.


text:
    CLARENCE ZIEGLER AND ANOTHER, APPELLANTS, v. FORMAN SUTPHIN AND OTHERS, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 13, 1948
    Decided December 29, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Meyer M. Semel argued the cause for appellants (Messrs. Heuser & Heuser, proctors).

      Mr. M. Raymond McGowan argued the cause for respondents (Mr. Andrew J. Conover, proctor for respondents, Forman Sutphin and others).

      (Messrs. Birdsall & Madigan, proctors for respondent, Edwin R. Smock).

      Mr. Ernest Fasano argued the cause for respondents (Messrs. Quinn, Doremus, McCue & Russell, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The Monmouth County Orphans’ Court admitted to probate as the will of Edward R. Heyer, deceased, a certain paper writing with, the exception of the fourth paragraph therein which the court found that the testator had revoked. The paragraph excepted from probate gave the residue of testator’s estate to Clarence Ziegler and Ethel, his wife. They appeal from so much of the decree of the Orphans’ Court as denies probate to the residuary clause. The facts are these:

On Saturday, February 1, 1947, shortly before noon, testator called on his attorney, Mr. Thomas P. Doremus, and told him that he wanted to cut the Zieglers from his will, and asked him to take care of it immediately. Mr. Doremus suggested that Mr. Heyer execute a new will but added that he could not draw it that day because his clerical force had already left the office. Testator insisted on the revocation, “I want it done now; I want it done immediately.” “I haven’t made up my mind about another will yet. I don’t know who I want to leave it to.” The lawyer pressed his advice that another will be made, “otherwise his relatives would get it,” and testator replied, “I will take care of that in the future.” So Mr. Doremus, with pen, ran a line through each word of the fourth paragraph of the original will and then on the margin wrote: “I hereby revoke the fourth paragraph of my last will and testament.” Testator signed this statement on the margin and the attorney ■and a Mr. McCue, who had been asked into 'the room for the purpose, signed as witnesses. Although Mr. Heyer lived until the next December, he did not execute a new will.

Appellants say that the law does not permit a testator to revoke the residuary clause of his will. We know of no such rule. “The law gives every citizen full dominion over his property. He may do with it whatever to him may seem fit, provided his disposition of it is made pursuant to legal methods and not in contravention of the law.” Creveling v. Fritts, 34 N. J. Eq. 134, at 142 (Ch. 1881). A man may dispose of part of his property by will and leave the balance to go in accordance with the statutes of descent and distribution in cases of intestacy. Any devise .or bequest in a will can be revoked by the cancellation of the same by the testator himself or by another person in his presence, by his direction and consent. R. S. 3 :2-4; In re Kirkpatrick, 22 N. J. Eq. 463 (Zabriskie, O., 1871); Hilyard v. Wood, 71 N. J. Eq. 214 (Bergen, V. O., 1906).

Appellants next urge that the revocation of the fourth paragraph was conditional; that testator intended the revocation to be operative only if he should execute another will or a codicil disposing of his residuary estate. We cannot reconcile this theory with the proofs. The signed statement on the margin of 'the will, “I hereby revoke the fourth paragraph of my last will and testament,” is strong evidence of an unconditional intention to revoke. The undisputed testimony of the two witnesses who were present when the residuary clause was cancelled, shows the same intention. Mr. Heyer intended the revocation to take effect that day, immediately, whether or-not he should make a new will at some future time. In accordance with his intention, the revocation was effectual. In re Frothingham, 76 N. J. Eq. 331 (E. & A. 1909); In re Allen, 88 N. J. Eq. 291 (Learning, V. O.), affirmed 89 N. J. Eq. 208 (E. & A. 1918). The decree of the Orphans’ Court will be affirmed with costs to be paid by the appellants.


text:
    THE STATE OF NEW JERSEY, RESPONDENT, v. ANTHONY VIGORITO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 29, 1948
    Decided December 29, 1948.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Edward H. Saltzman argued the cause for defendant-appellant (Mr. Edward H. Saltzman, attorney).

      Mr. Manfield G. Amlicke, Prosecutor of the Pleas of the County of 'Passaic, argued the cause for the respondent (Mr. Manfield G. Amlicke, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

This appeal brings up for review the conviction of defendant-appellant (hereinafter called Vigorito) under an indictment charging him with receiving stolen property, consisting of 16 rolls of Dobby Luana 100% acetate material, of the value of $676.80, and the property of Grant Dyeing & Finishing Co., at Paterson, New Jersey, on May 23, 1946, “well knowing the said property, goods and chattels to have been feloniously stolen, * * * ”

Appellant has assigned twenty grounds of appeal, which may be conveniently grouped under five headings, requiring consideration and discussion. They are : (1) did the court err in refusing to permit cross-examination of the state’s witness, Robert Santillo, as to whether he had been sentenced on a plea of non-vult to an indictment charging him and one Michael Bonsick with breaking, entering, larceny, and receiving of the alleged stolen goods?; (2) whether the court erred and prejudiced the defendant’s case in the comments he made at the time he refused to permit the cross-examination of Santillo as to whether he had been sentenced; (3) whether the court erred in charging the applicable law; (4) whether the court erred in failing to charge the specific statute (R. S. 2:164-1) to the jury; and (5) whether the verdict was against the weight of the evidence.

The facts briefly are these: Michael Bonsick and Robert Santillo were employees of the Grant Dyeing & Finishing Company, of Paterson, New Jersey. They conceived and executed a plan of stealing certain dress material, having a value as alleged in the indictment of $676.80, then in the possession of their employer as a bailee. An investigation of the crime led to the arrest and indictment of both Bonsick and Santillo, who pleaded non-vult to the charges. Bonsick was sentenced to a 'term in the State Prison, while Santillo was still awaiting sentence at the time of the trial of the defendant. Prior to the theft, Santillo arranged with one Michael Casale, his landlord, who was engaged in the milk delivery business and whom he had known for several years, to store the material in his milk shed, located on the rear of his mother’s property, about six houses away from Casale’s home. Casale agreed to get a purchaser for the goods and produced Vigorito as such buyer. Vigorito was a junk dealer and bought remnants.

On the day of the theft Santillo met Casale and told him that he “would have the stuff” the next morning and that it would be put in the shed. On the day of the theft Casale informed Vigorito 'that Santillo expected to obtain the material that night, and told Vigorito to come around to the milk shed the following morning. At the appointed time and place, Vigorito met Casale and Santillo and, after some dickering, Vigorito paid Santillo a sum in cash testified to have been somewhere between $550 and $575. Later on in the day the defendant came to the milk shed and removed the rolls which he thereafter disposed of to an undisclosed purchaser. Parenthetically, it maybe observed that Michael Casale did not receive any money out of the transaction. He likewise has pleaded non-vult to the crime, and was awaiting sentence at the time of trial.

It is said under (1) above that the trial court erred in refusing to permit defendant to cross-examine the witness Santillo as to whether he had been sentenced on his plea of nonvult to the indictment. During Santillo’s cross-examination the following exchange occurred:

“Q. Now, Mr. Santillo, you have not been sentenced in that case yet, have you?
“Mr. Collester: Objected to as improper.
“The Court: Yes, that is up to this Court. The Court has ninety days within which to sentence.”

The purpose of the question was obviously to attack the credibility of the witness, Santillo. From the record it appears that prior to propounding the question, defense counsel had examined Santillo at length concerning his arrest; whether or not he had given a statement to the police; the number of times he had been in the prosecutor’s office prior to trial; the fact that he had spoken to representatives of the prosecutor pertaining to this case and other pertinent matters. This examination was permitted by the trial court and no objection was made thereto by the state. Also, the record reveals that the court, in the ensuing colloquy with counsel, stated that the defendant had not yet been sentenced and that the court would impose sentence on the first Friday following the completion of this trial. We are unable to perceive, under these circumstances, how the defendant Vigorito suffered any manifest wrong or injury or was in any way prejudiced by the ruling of the trial court.

It is next said (2) that the trial court erred and prejudiced the defendant’s case in certain comments he made at the time of his refusal to permit cross-examination of Santillo on the question of his sentence. The alleged error appears in the following colloquy between the court and defense counsel:

“Mr. Saltzman: I think the question is a proper one, your Honor. It goes to the question of credibility.
“The Court: Oh, no, I don’t think so. This is all one transaction involving the stealing of goods, not by him (Santillo) alone, but by another man (Michael Bonsiek) who is already in State Prison. He was on parole and violated liis parole. I sentenced him immediately, but as to these other cases, I decided to withhold sentence until all the cases have been completed, because I was informed by the Prosecutor that these other defendants were to be here as witnesses, and he didn’t want to bring them up here from State Prison. However, they will be sentenced in due time, according to law.” (Parentheses ours)

The indictments concerning Santillo and Bonsick were offered in evidence by defense counsel, and, as a matter of fact, the comment of the court was the result of defense counsel’s prior reference to the indictments during the course of the trial. Likewise, it was testified by Santillo that he and Michael Bonsick had committed the theft. Although the trial court may have been over-zealous in his comment on the question of sentence, it nevertheless follows that the defendant suffered no' manifest wrong or injury thereby. If anything, the comments served merely to emphasize the criminal status of the witness, Santillo, which certainly was not a factor of which the defendant ought now to complain.

Defendant complained further that (3) the court erroneously charged the applicable law with reference to the crime alleged in the indictment. A consideration of the court’s charge in its entirety satisfies us that no' error appears therein. Our reading of the charge convinces us that the trial court, if anything, was-careful and assiduous in defining the elements of the crime charged, the questions of the burden of proof, reasonable doubt, and the effect that the jury, acting in its province as the finder of the facts, might give to the testimony of the witnesses. In our opinion, the jury was given a full and understandable exposition of the questions of law involved, and as to how the same were to be applied to the facts as the jury might find them to be. State v. Werner, 1 N. J. Misc. R. 180 (Sup. Ct. 1923). Cf. State v. Lisena, 129 N. J. Law 569 (Sup. Ct. 1943), 30 Atl. (2d) 593, affirmed 131 N. J. Law 39 (E. & A, 1943), 34 Atl. (2d) 407.

We are asked to set aside defendant’s conviction on the grounds that (4) the trial court erred in failing to charge the specific words of the statute (R. S. 2:164-1) to the jury. No request so to charge was made by the defendant, nor was there any complaint made by counsel when the charge was concluded as to the court’s failure to charge the applicable provisions of the statute. In the absence of such request or complaint the defendant is barred from raising the question on appeal. State v. Capawanna, 118 N. J. Law 429 (Sup. Ct. 1937), 193 Atl. 902, affirmed 119 N. J. Law 337 (E. & A. 1937), 196 Atl. 679. As stated, the trial court satisfactorily and properly charged the law applicable to the crime in question. No manifest wrong or injury was suffered by the defendant thereby.

Finally, we are importuned to set aside the conviction on the grounds that (5) the verdict was against the weight of the evidence. We are entirely satisfied that it was not. There was sufficient evidence, if the jury believed it, and apparently it did, to warrant the verdict against the defendant. Likewise, the court 'did not err in refusing to acquit the defendant. The factual testimony was highly contradictory and presented a jury question which was beyond the power of the court to determine. State v. Krupin, 100 N. J. Law 7 (Sup. Ct. 1924), 125 Atl. 97, affirmed 101 N. J. Law 228 (E. & A. 1924), 127 Atl. 270. Cf. State v. Brown, 72 N. J. Law 354 (Sup. Ct. 1905), 60 Atl. 1117.

We have considered all of the other arguments advanced by the defendant in support of his contentions and find them to be without merit

The judgment of conviction is affirmed.


text:
    CLARA SMITH, PLAINTIFF-APPELLANT, v. ANDREW H. MIELE AND FRANK MIELE, T/A MIELE BROTHERS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided December 29, 1948.
    Before Judges McGeehan, Donges and Colie.

      Mr. Irving Siegler argued the cause for plaintiff-appellant (Messrs. Siegler & Siegler, attorneys).

      Mr. Bernard Herman argued the cause for defendants-respondents (Mr. Henry M. Grossman, attorney).
   The opinion of the court was delivered by

Colie, J. A. D.

This workmen’s compensation case comes up on certiorari to the Essex County Court of Common Pleas, now the Essex County Court. In the compensation bureau, plaintiff had an award based upon a finding of partial dependency. The county court reversed and dismissed the petition on the ground that any finding of the amount of decedent’s contributions “would have to rest on speculation, rather than credible evidence. ' The burden of proof has therefore not been sustained by the petitioner.”

We have studied the record bearing in mind that the deputy commissioner had the advantage of personal observation and consequently was in a better position to judge of credibility than an appellate tribunal and we find the facts to be that on July 9, 1945, Thomas Jackson, 19, was killed in an accident arising out of and in the course of his employment by Andrew H. Miele and Frank Miele, trading as Miele Brothers, For the week preceding the date of his death, he was paid $33.36. He left surviving his mother, Clara Smith; his grandmother, Emily Jackson and a half sister, Louise Wilkes. He lived in the household with Emily Jackson and Louise Wilkes and the undisputed testimony is that he gave to his mother, Clara Smith, $30. each week, of which she retained $10. toward her support and turned over $20. to the grandmother and the half sister toward their support. It follows therefrom that Clara Smith, Emily Jackson and Louise Wilkes were partial dependents within the meaning of R. S. 34:15-13 (g) and accordingly the judgment of the county court is reversed and the award entered in the Workmen’s Compensation Bureau is affirmed with costs.


text:
    RAYMOND L. BAKER, PLAINTIFF-RESPONDENT, v. MAX KAPLAN AND HARRY KAPLAN, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1949
    Decided January 14, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Henry C. Berg argued the cause for plaintiff-respondent.

      Mr. Harry E. Walburg argued the cause for defendants-appellants (Messrs. Cox and Walburg, attorneys).
   The opinion of the court was delivered by

Eastwood, J. A. D.

Defendants seek reversal of an adverse judgment of the First Judicial District Court of the County of Middlesex, sitting without a jury, in the sum of $200 damages for the death of plaintiff’s hunting dog, allegedly caused by the negligence of the defendants. We do not find any merit in appellants’ grounds of appeal.

The pertinent facts are: On the evening of April 11, 1945, defendants drove their truck, equipped with dual wheels, upon plaintiff’s farm premises for the purpose of removing two cows which they had purchased earlier that day. The truck was owned by defendant, Max Kaplan, who was accompanied by his son, Harry Kaplan, the latter of whom was operating it. Defendants drove their truck to plaintiff’s barn by way of a semicircular driveway, six feet in width, to get one of the cows. At the time it was dark and it was during this trip that they allegedly ran over and killed plaintiff’s dog. The dog was tied by a chain to a dog house 15 feet back from said driveway, the chain being 15 to 24 feet in length. Defendants did not see nor hear the dog and did not know that such an accident had occurred, although the truck was only travelling five to seven miles per hour and its headlights were lit. They had been going upon plaintiff’s premises to purchase cattle for approximately 15 years, and knew of the presence of a dog on the premises but denied that they knew the whereabouts of the dog in question. There was no eye witness to the accident. The dog’s body lay in the driveway or road when the brother of the plaintiff found it about a half hour after the defendants had left. He testified that he knew the dog was alive when defendants came upon the premises to remove the two cows they had previously purchased, having heard it barking and jumping; that a short time after they left he saw the dog lying in the road over which the truck had passed and upon examination discovered that it had been killed; that the following morning he saw the tracks of dual wheels leading to and directly over the head of the dog which was crushed and lying in a pool of blood. It was fairly inferable from the evidence that defendants’ truck had passed over the head of the dog killing it and defendants do not seriously dispute this assertion.

Defendants contend that at best plaintiff proved merely the. happening of an accident, and failed to produce any evidence of negligence chargeable to the defendants as the proximate cause of the death of his hunting dog. The propriety of the judgment may be tested by the query: “Was there any evidence from which an inference of negligence imputable to the defendants might be properly and logically drawn?” Defendants’ admission that they did not see or hear the dog, nor did they feel any jolt or bump when the truck passed over it, created a factual issue as to defendants’ negligence. The court below could, as it apparently did, justifiably infer that if the operator of defendants’ truck had exercised due care, he would have observed plaintiff's dog in time to. avoid the collision and the requisite degree of care was not used in the operation of the vehicle under the circumstances prevailing at the time. Justice Heher, in Sakos v. Byers, 112 N. J. Law 256 (E. & A. 1934), 169 Atl. 705, stated:

“The failure to make timely observation may be predicated upon the testimony of appellants, and that, standing alone, would, of course, support an inference of negligence in the operation of the automobile.”

In Niles v. Phillips Express Co., 118 N. J. Law 455 (E. & A. 1937), 193 Atl. 183, it was held:

“It remains to consider whether the operator of the truck observed the standard of care by which actionable negligence is measured. * * * The term connotes such degree of care as is commensurate with the risk of harm, such as a reasonable man would under all the circumstances deem prudent to obviate the danger, known or reasonably foreseeable; and, where the evidence, assayed by reasonable minds, may lead to bona fide differences of opinion as to whether there has been an observance of that standard of care, the question is one for the fact-finding authority. The nature of the duty resting upon defendants was a question of law; whether, in the circumstances, they rendered performance of that duty was a question of fact for the jury. Poniatowski v. Griffiths & Cinkowski, 91 N. J. Law, 663, 103 A. 192.”

The issue being a factual one, we will not disturb the findings of the court below.

We do not find any merit in the other arguments advanced by defendants for reversal of this judgment.

The judgment below is affirmed, with costs.