author: Haneman, J. S. C.

text:
    LEO COLEMAN, ADMINISTRATOR OF THE ESTATE OF RUTH ELLEN COLEMAN DIJOLES, PLAINTIFF, v. HARRY SWEENEY, ET UX., ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 10, 1951.

      Mr. William Hermann, attorney for the plaintiff.

      Mr. Edward W. Eichmann, attorney for the defendants.

      Mr. Theodore D. Parsons, Attorney General of the State of New Jersey.
   Haneman, J. S. C.

This is a suit for the foreclosure of a tax sale certificate.

Fred Coleman, plaintiff’s father, purchased the tax sale certificate from the Borough of Lawns ido, New Jersey, on March 1, 1940. Shortly thereafter he took possession of the premise's covered by the tax sale certificate and performed certain repairs and alterations thereon.

On November 18, 1940, Fred Coleman died, bequeathing the aforementioned tax sale certificate to Lulu V. Hughes, in trust for his daughter, Euth Ellen Coleman, until said daughter reached the age of 18 years. Euth Ellen Coleman (Dijoles) was of age on the date of the death of her father. She died on January 10, 1949, a resident of Philadelphia, Pennsylvania, and the plaintiff Leo Coleman, her brother, was appointed administrator of her estate.

At the time originally set for trial, one Sarah Sweeney and Frances N. Thompson, widow and daughter, respectively, of Peter Albert Sweeney, who was one of the principal devisees of Roger Sweeney, answered and appeared for trial. Thereafter, the matter was continued by consent and leave was given to counsel for Sarah Sweeney and Frances N. Thompson to attempt to locate the other devisees of Roger Sweeney. The answering defendants are all of the devisees or the heirs of the devisees of Roger Sweeney, in whose name the rcord title in fee simple to the premises is vested.

The plaintiff seeks to add to the- amount which the statute (B. 8. 54:5-58) allows him to collect upon a redemption, the cost of improvements and repairs made to the premises by Ered Coleman.

The defendants desire to redeem for such sum as the court shall find due under B. 8. 54:5-58, with the allowance of a credit to the extent of the reasonable rental value of the premises during the occupancy and possession of Ered Coleman, Ruth Di joles and plaintiff, or the actual rents collected by said parties, whichever is found to be greater. The defendants seek to establish the reasonable rental value of the premises in the condition in which Ered Coleman put them and not in the condition in which he found them.

The rights of the respective parties in connection with the foregoing demands are the sole questions here involved. In connection with this matter I find the following facts. The improvements on the realty consisted of a two-story house in need of repair. It.had been unoccupied for some time prior to the occupancy of Ered Coleman. The house required painting both inside and outside. The paper on the interior was-in bad condition. There were no inside toilets or bathrooms, no well, no electricity, no hot water heater and no furnace. The roof leaked. I find that the said Fred Coleman, who was a building contractor, installed a bathroom, a toilet, electricity, a well, a furnace, a bucket-a-day stove for furnishing continuous hot water, and a new kitchen sink. He as well . built a new cesspool, painted the entire house inside and outside, papered the interior of the house and replaced a number of rotted timbers.

There is no doubt that Ered Coleman, as the holder of the tax sale certificate, obtained no possessory right and his entrance into possession amounted to a trespass. Plaintiff is therefore not entitled to recover for any expenditures for repairs or improvements. Diamonds v. Township of Berkeley, 142 N. J. Eq. 140, 59 A. 2d 617 (Ch. 1948) ; Forster v. Davenport, 128 N. J. Eq. 385, 16 A. 2d 614 (Ch. 1940); Nelson v. Naumowicz, 1 N. J. 300, 63 A. 2d 269 (1949).

The remaining question here involved is the amount oi allowance which should be made to the defendants for the use and occupation of the premises by the said Fred Coleman or his successors.

The allowance demanded by the defendants is akin to a common law action for mesne profits. The purpose and basis of damages in such suits was the compensation of the plaintiff. Ordinarily such compensation was the fair and reasonable rental value of the land.

li. 3. 2:51-48, however, provides as follows:

“The plaintiff may recover of the defendant as damages, in his action for mesne profits, the full value of the use and occupation of tlie premises for the time, not exceeding six years before the commencement of the action, the defendant was in possession thereof, which damages shall not include the value of the use of improvements made by defendant.”

Were this an action for mesne profits, then the defendants here (as plaintiffs in such action) would not be entitled to the value of the use and occupation of the improvements.

The common law right to recovery in cases of suits for mesne profits has been restricted as above set forth. American Can Co. v. Dornoil Products Co., 126 N. J. L. 345, 19 A. 2d 646 (E. & A. 1941).

The facts are consistent with the conclusion that Fred Coleman unknowingly trespassed upon the premises. There was nothing willful or deliberate in his conduct.

There are here absent any of the factual elements which would give rise to a recovery in excess of compensatory damages. Nonetheless, it is plaintiff’s misfortune that under the law he cannot recover for the value of the improvements, the cost of which, having in mind the nature of the original, improvement, was substantial.

In this posture of the case, the defendants, who had neglected the property, who to all intents and purposes, did not even know they owned said property, seek not only to reap the benefit of the money expended upon the premises by Fred Coleman, but seek as well to obtain the benefit of the increased revenue resulting from the improvements made by him.

Both of the two ancient equitable maxims — “Equity follows the law,” and “He who seeks equity must do equity,” bar defendants from obtaining the relief demanded. I will, however, allow the reasonable value of the use and occupation of the premises, in the condition in which Fred Coleman found them, for the six years preceding the filing of the counterclaim seeking credit for the rental value as an offset against the monies to which plaintiff is entitled under the statute. See also 28 C. J. S., p. 1036; 19 C. J., p. 1242; Hodgkins v. Price, 141 Mass. 162, 5 N. E. 502 (Mass. Sup. Ct. 1886).

The testimony as to the rental value of the premises, sans the improvements made by Fred Coleman, is highly unsatisfactory and sketchy. Defendants quite patently intended to rely upon the rental value of the property with the improvements. I, however, set the reasonable value at $30 per month, which for the above referred to period, I direct should be a credit on account of the amount required to redeem. If the parties are not satisfied with this figure, in spite of the fact that they have had three icbites of the apple” by continuancés caused by their own conduct, I will set a short day for the taking of testimony for the sole purpose of establishing such value.

Judgment consistent with the foregoing will be entered.


source: Caselaw Access Project

author: Stein, J. S. C.

license: Public Domain

text:
    HOUSTON PETROLEUM CO., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. AUTOMOTIVE PRODUCTS CREDIT ASSOCIATION, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided January 15, 1951.

      Messrs. Koestler & Koestler (Mr. Melvin J. Koestler appearing), attorneys for plaintiff.

      Messrs. Stein & Stein (Mr. William C. Nowels appearing), attorneys for defendant.
   Stein, J. S. C.

Plaintiff, Houston Petroleum Go., a corporation, by this action seeks injunction and specific performance of an agreement creating covenants restricting the use of property in the City of Linden. The matter is before me on final hearing.

Lotta D. Byrnes and others, trading as Byrnes Realty. Company, the owners of a large tract of land situate in Linden, on April 15, 1947, entered into an agreement with the City of Linden imposing covenants and restrictions upon said lands. The property consisted of approximately 34 acres in area and fronted on New Jersey State Highwa3r Route No. 25 for a distance of about 2,000 feet.

The portion of the provisions of said agreement here pertinent reads:

“5. When any building shall be constructed upon any portion of said lands and premises, the owner of the portion of the land on which such building is constructed shall cause that portion of said land owned by him and lying between the Northerly line of the right-of-way of State Highway No. 25 and the seventy-five (75) foot setback line hereinbefore provided for to be seeded and suitably planted, excepting, however, such part of said area (not to exceed fifty (50%) per cent thereof) as shall be constructed as and used for driveways and parking space.”

These covenants and restrictions were to become effective as and when the above described lands and premises are reclassified so that the same shall come within and be subject to the provisions of section 6-E (light industrial district) of the zoning ordinance of the City of Linden, and shall continue in force and effect so long as said premises shall be zoned and used for light industry, subject to the following limitations :

“(a) Said covenants and restrictions may be released or modified at any time by agreement in writing between the City of Linden and the owner or owners of all or all portions of said lands and premises.
“(h) Said covenants and restrictions shall terminate on April 1, 1977.”

On the same day the agreement bears date it was submitted to the City Council of Linden, and a resolution authorizing the execution of the agreement was passed, after which the premises in question were rezoned and classified for light industry. The entire tract was later acquired by Macner Realty Company, and it became the common grantor of plaintiff and the defendant.

On July 1, 1949, the City of Linden modified the restriction for the Macner Realty Company with respect to a parcel of land described therein commencing 1,322.75 feet northeasterly from Woodlawn Avenue and fronting 300 feet on the highway from that portion of the restriction which required that when a building shall be constructed on any portion of the premises the, owner of such premises shall cause that portion of the land lying botw'een the line of the highway and the 75-foot setback line “to be seeded and suitably planted, excepting, however, such part of said area (not to exceed fifty (50%) per cent thereof) as shall be constructed as and used for driveways and parking space.”

The agreement of July 1, 1949, modifying the restrictions provided that such requirement should not apply to the partieular 300-foot lot therein described, but provided that the remaining portion of the premises described in the agreement shall be subject to all of the covenants, agreements and requirements of the agreement to the same extent as if such modification had not been made.

The agreement modifying was made for the benefit of one Morton Sand who was about to purchase and did purchase the portion of the property released from the restrictions admittedly on August 1, 1949, as the agent of the plaintiff, Houston Petroleum Co., and who later on March 31, 1950, conveyed to the plaintiff the premises so released from the restriction.

The plaintiff in the latter part of 1949 caused a large gasoline service station to be erected and constructed on the 300-foot lot so released, and in April, 1950, purchased from the Macner Realty Company additional land fronting 100 feet on the New Jersey State Highway No. 25 and obtained deed therefor May 16, 1950.

On June 27, 1950, Alfred L. Garfall likewise obtained a modification of said restrictions in the portion thereof hereinbefore quoted from the City of Linden.

Plaintiff learned that the defendant was intending to purchase premises fronting on Highway No. 25 immediately adjoining its property on the northeast, and ascertained that the defendant intended to apply for a modification of the restrictions '■ with respect to the land which it intended to acquire. Thereupon plaintiff notified the City of Linden and the Macner Realty Company by registered mail that the agreement could only be modified by agreement in which “the owner or owners of all or all portions of said lands and premises” joined.

On June 19, 1950, the City of Linden entered into an agreement with defendant, Automotive Products Credit Association, Inc., releasing and modifying the restrictions of April 15, 1947, from the provision “that the.75' setback area shall be seeded and suitably planted and that the driveways and parking space in said area shall not exceed 50% thereof.” The building inspector of the City of Linden on application to him on July 11, 1950, granted the defendant a building permit to construct a large gasoline service station in conformity with plans and specifications submitted. Plaintiff did not enter into any of the modifications of restrictions herein recited.

It is the contention of the plaintiff that the agreement of April 15, 1947, and the modification of the restriction granted to the Macner Eealty Company on July 1, 1949, were an inducing factor in the purchase of the 300-foot frontage lot by Sand from the Macner Eealty Company, because with the existing restrictive covenant appearing in said agreement and the modification thereof, the land purchased by Sand was readily usable for a large gasoline service station, and the remainder of the tract with its restrictive frontage could not be advantageously used for a gasoline station by anyone else, and asserts that to permit the defendant to build and maintain a gasoline service station will cause plaintiff damage and the loss of profits in the operation of its business. The defendant proceeded with its building and the installation of a gasoline station and the work has been practically completed.

Plaintiff’s right to the relief claimed depends wholly on the question whether or not the said restrictive covenant was imposed for the benefit or protection of itself or its predecessors in title. The plaintiff itself was not a party to the agreement by which the restrictive covenant was created and imposed and can claim nothing under it unless that covenant was clearly intended for the benefit of the then owners who entered into the 1947 agreement with the City of Linden and for their successors in title. Such purpose, designed both to benefit and bind all subsequent purchasers, is what is commonly known as a general or community restrictive scheme or plan. Where such scheme or plan is established, it is not only binding upon the owner who subjects his lands to the stated restricted use but also upon every subsequent owner whose title is derived from the common grantor. Every such purchaser has a recognized property right in the covenant and in the integrity and observance thereof and may restrain its violation. Such a general or community scheme may. however, possess certain qualifications and features which would make the foregoing principles inapplicable. Such a qualification is here present in the power reserved in the 1947 agreement to release or modify the restrictive covenants therein contained. Although the provision in'the agreement is that the release or modification must be by the written agreement between the City of Linden and the owner ox-owners of all or all portions of the lands and premises subject to the restriction, yet it follows that if a portion of those laxxds be once freed of the restriction it is as though those lands were not originally included in the restrictive scheme and the owner of the released portion is no longer interested iix the restriction in so far as it still binds unreleased lands. This result follows, pro tanto, where the action taken is not one of release but one of modification only. The modificatioix here obtained for the benefit of plaintiff’s lands operated, iix respect of the modifying matter, to remove those lands from the general scheme and the operation of the covenant. With respect to like modification for other lands, the plaintiff, by taking the modifying • agreement for its own lands, became a stranger to the restrictive covenant and its consent to like modification for the benefit of others is no longer needed. Plaintiff’s complaint is therefore without merit and injunctive relief will be denied.

It is not intended by anything said in this opinion to construe the 1947 agreement as one requiring the assent of all owners to any release or modification of the restriction. That is plaintiff’s claim and its theory of action. That point is not passed upon, but assumixxg the poixxt as a premise, I hold that when the plaintiff freed itself from certaixx aspects of the restriction, it became a stranger to those aspects when other property owners sought and obtained the like freedom.

Present judgment.


text:
    NEWARK TWENTIETH CENTURY TAXICAB ASSOCIATION, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. HARRY LERNER, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 19, 1951.

      Mr. Charles Handler, attorney for plaintiff. •

      Messrs. Crummy & Consodine (Mr. Andrew B. Crummy appearing), attorneys for defendant Harry Lerner.

      Messrs. Furst, Furst & Feldman (Mr. George Furst appearing), attorneys for defendant David E. Feldman.

      Messrs. Rothbard, Harris & Oxfeld (Mr. Fmil Oxfeld appearing), attorneys for defendants David Oxfeld and Herman Feldman.

      Messrs. Ruback, Albach & Weisman (Mr. Meyer E. Ruback appearing), attorneys for defendant Lincoln Mutual Casualty Insurance Company.
   Stein, J. S. C.

The several defendants, by four motions, seek a dismissal of the complaint herein on substantially the same ground: namely, that the complaint sets forth no claim or cause of action upon which the plaintiff is entitled to any relief. These motions are a substitute for the former general demurrer and have operated to admit, but only for the purposes of the motions, the allegations of the complaint.

The complaint is brought by an association of taxicab drivers, incorporated under our statute which permits persons to incorporate for purposes not pecuniary (R. 8. 15:1-1 el seq.). That association has for its function the good and welfare of its members and serves that object by various facilities, such as a common telephone call system, a uniform color scheme for the cabs, a central garage for the more economical purchase of gasoline and supplies, and the negotiation of liability insurance for the cabs owned by the individual members. Such insurance, which is mandatory under the law, is obtained from the defendant insurance company. The latter is a mutual company and its members are its policyholders. The plaintiff association owns no cabs and holds no insurance policy from the defendant company. The policies issued by the insurance company are issued directly to the individual members of the plaintiff association (and to outsiders), who severally and directly pay the premiums therefor to the insuranee company. The complaint fails to disclose any property right or interest residing in the plaintiff association in respect, of any of the funds, properties or assets of the insurance company.

The complaint makes various charges against the president, the vice-president and the counsel of the defendant insurance company. When these charges are examined, it is found that they all relate to acts which, if done, constitute alleged wrongs against the insurance company itself or against its policyholders. Amongst the wrongs so charged' áre excessive salaries, improper commissions, and other conduct claimed to be objectionable and prejudicial to the members of the plaintiff association as policyholders in the defendant company. It is needless to analyze each allegation, for each charge leads to the same conclusion: namely, that the alleged offending conduct does not and cannot constitute a wrong to the plaintiff association. It is clear that the association has, in respect of the affairs of the defendant insurance company and the conduct of the latter’s officers, no such property right as can be violated.

One may not have judicial redress in respect of a matter in which he is without interest, right or duty. This rule was said to be “fundamental” in the case of Baxter v. Baxter, 43 N. J. Eq. 82 (Ch. 1887) ; affirmed, 44 N. J. Eq. 298 (E. & A. 1888).

In the case of New Jersey Bankers Ass’n. v. Van Riper, 1 N. J. 193 (1948)., reversing 142 N. J. Eq. 301 (Ch. 1948), it was held that an association of member 'banks could not maintain a cause in equity in respect of a matter in which the association itself had no property interest, notwithstanding the fact that there the plaintiff association did represent a “community of purpose and unity of legal question” with which the member banks were greatly concerned.

In the case of Brown v. Ramsey, 185 F. 2d 225 (U. S. C. A. 1915), it was said: “Courts do not listen to parties who complain of wrongs done to others but not to them. In such a case there is no justiciable controversy between the parties before the court.”

It is here held that the complaint exhibits no “justiciable controversy” between the plaintiff association and the defendants herein. Nor is the complaint rescued by any claim that the association sues as a representative of its members and that therefore this is a class action. Such a representative action can be maintained only by a plaintiff who is himself a member of the class sought to be represented. See Buie 3:23 — 1 and New Jersey Bankers Ass’n. v. Van Riper, supra. Here it cannot possibly be held that the plaintiff association is itself a member of the class for which relief is sought. Therefore, for the reasons stated the motions to dismiss are granted.

After the court heard oral argument and reserved decision, plaintiff’s attorney advised the court that he was bringing a new action in behalf of individual members of the plaintiff association against the same defendants. The attorneys for the defendants have advised the court that such new action has in fact been brought and that they have been served with notice of an application to consolidate that action with the earlier one in which the motions to dismiss have been under advisement. I see no reason for withholding the dismissal of the earlier complaint. Consolidation may in proper circumstances be permitted, but only where the actions sought to be consolidated are severally maintainable. There is no advantage in consolidating a controversy so plainly non-justiciable with one of a maintainable character.

Present judgment.


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

text:
    FRANK MARZOTTO, PLAINTIFF-RESPONDENT, v. GAY GARMENT CO., A NEW JERSEY CORPORATION, DEFENDANT, AND 54-62 SUMMER AVE. CORP., A NEW JERSEY CORPORATION, AND NATHAN PECKERMAN, INDIVIDUALLY AND TRADING AS GAY GARMENT CO., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 4, 1950 —
    Decided January 25, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Breennan, Jr.

      Mr. Jerome S. Lieb argued the cause dor defendant-appellant 54-62 Summer Ave. Corp. (Messrs. Harkavy & Lieb, attorneys).

      Mr. Bernard Shurkin argued the cause for defendant-appellant Nathan Peckerman.

      Mr. Leonard Estrin argued the cause for plaintiff-respondent (Mr. Joseph P. Dallanegra, attorney).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

Judgment against defendant 54-62 Summer Ave. Gorp. and defendant Nathan Peckerman and in favor of the plaintiff was entered in the Superior Court, Law Division, upon jury verdict. Each of these defendants appeals.

At about 6 :30 a. m. on September 5, 1947, while the plaintiff was standing on the sidewalk in front of 54 Summer Avenue, in Newark, a pane of glass fell out of a window on the third floor front of the premises, struck the plaintiff and injured him. The defendant 54-62 Summer Ave. Corp. was the owner of the premises and the defendant Nathan Pecker-man was a tenant under lease of the portion of the third floor of the premises from which the pane of glass fell. The complaint charged the defendants with control of the window involved and with negligence in failing to perform the duty of keeping the premises in a reasonably safe condition.

There was testimony that examination of the window less than an hour after the accident disclosed that one whole pane of glass was gone from the lower section of the window and that there was no putty in the window. The tenant or one of his employees opened and closed the window each day and occasionally washed the inside. The lease provided:

“* * * And at the expiration of the said term, or the termination of this lease, the said party of the Second Part will quit and surrender the premises hereby demised, in as good a state and condition as reasonable use thereof will permit, damage by the elements excepted.
“The party of the second part shall take good care of the premises and shall at its own cost and expense paint and redecorate the interior and that the landlord shall make exterior repairs.
$
“In case of any damage or injury occurring to the glass in the demised premises or damage and injury to the said premises of any kind whatsoever, said damages or injury being caused by the carelessness, negligence, or improper conduct on the part of the said party of the second part, its agents or employees, then the said party of the second part shall cause the said damage or injury to be repaired as speedily as possible at its own cost and expense. * * *”

The owner argues, first, that the court erred in denying its motion for judgment at the end of the case, because the owner owed no duty to the plaintiff as to the window involved. The owner relies upon the rule that the occupier and not the landlord is bound as between himself and the public so far to keep buildings in repair that they may be safe for the public, and such occupier is prima, facie liable to third persons for damages arising from any defect. McKeown v. King, 99 N. J. L. 251 (E. & A. 1923); Ross v. Tetradis, 7 N. J. Super. 224 (App. Div. 1950).

It is the duty of the owner of a building abutting upon a public highway to maintain it in such a condition that it shall not become dangerous to the traveling public. An exception to this general rule occurs where the owner, by lease, vests a tenant with exclusive possession, thereby depriving himself of the power of entry to make repairs, in which case the owner is not liable to a passer-by if the building or a part thereof, due to a condition of disrepair arising in the course of the tenant’s occupancy, fall upon and injure the passer-by. In so far as the owner reserves control of the premises to the extent necessary to make repairs, his duty to the public, in relation to such part of the property, of maintaining it in a safe condition continues. Spinelli v. Golda, 6 N. J. 68 (1950); McKeown v. King, above; Appel v. Muller, 262 N. T. 278, 186 N. E. 785 (Ct. of App. 1933); 1 Tiffany, Real Properly, (3d ed. 1939), § 108; Restatement, Torts, §§ 377, 378; 138 A. L. R. 1078; 89 A. L. R. 480; 7 A. L. R. 204.

We agree with the court below that this owner owed a duty to the traveling public of reasonable care in the maintenance and repair of the window, because it reserved'control over such part of the property by virtue of the provision of the lease concerning the making of exterior repairs and the specific provision concerning glass. Cf. Spinelli v. Golda, above; White v. Ellison, 5 N. J. 228 (1950); Walsh v. Southwestern Bell Telephone Co., 331 Mo. 118, 52 S. W. 2d 839 (Sup. Ct. Mo. 1932); Appel v. Muller, above; Friedl v. Lackman, 136 Ohio St. 110, 23 N. F. 2d 950 (Sup. Ct. Ohio 1939).

Tlie owner argues, next, that tlie court erred in denying its motion for judgment at the end of the case because there was no proof of any negligence by the owner, and the doctrine of res ipsa loquitur did not apply because the owner did not have sole control of the pane of glass involved, citing Gildea v. Harris Fine Realty & Const. Co., 292 N. Y. S. 55 (App. Div. 1936), and Bain v. New York Majestic Corp., 31 N. Y. S. 2d 434 (App. Div. 1941).

In the Gildea and Bain cases, the court held: “Since there were two persons who may have been the cause of this accident, the landlord or the tenant, each of whom may have been independently negligent, res ipsa loquitur does not apply.” This holding is contrary to the rule in our State set forth in Meny v. Carlson, 6 N. J. 82 (1950), and to the general rule set forth in 65 C. J. S., Negligence, § 220(8) ; and apparently was repudiated by the New York Court of Appeals in the later ease of: Schroeder v. City and County Sav. Bank, 293 N. Y. 370, 57 N. E. 2d 57 (1944). In the Schroeder case the New York Court of Appeals held that the res ipsa loquitur doctrine applied to three independent defendants who were in control of the instrumentality winch caused the damage, stating: “It is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage.”

Aside from the fact that the absence of putty in the window was some evidence of negligent maintenance, the doctrine of res ipsa loquitur applied to this owner, since it reserved control of the part of the premises involved. The fact that no one had sole control of the instrumentality in this case, because control was shared by the owner and the tenant, does not prevent the application of the doctrine to both the owner and the tenant. “The word ‘exclusive’ when used to define the nature of the control necessary to invoke the doctrine of res ipsa loquitur does not connote that such control must be several and the defendant singular and never plural.” Meny v. Carlson, above; 65 C. J. S., Negligence, § 220(8). Cf. Kelly v. Laclede Real Estate and Invest Co., 155 S. W. 2d 90, 138 A. L. R. 1065 (Sup. Ct. Mo. 1941). As Professor Prosser states it: “Furthermore, it is entirely possible that the inference of negligence may arise against each of two or more parties who share control — as where each is under an obligation to inspect, and the defect is one which could have been discovered by such inspection.” Prosser on Torts, (1941), ch. 7, § 43.

Lastly, the owner argues that the trial court erred in its charge concerning the effect of the application of the res ipsa loquitur doctrine. The court charged:

“* * * Now, since under the proof here, members of the jury, it appears that this window pane fell from its framework and struck the plaintiff, under the law an inference of negligence arises against both of these defendants. ^ £ sj: s{*
“The presumption of negligence on the part of these defendants or the, inference of negligence on the part of these defendants having come into existence here, it is incumbent upon the defendants to explain that they exercised reasonable care in the, maintenance of this window. It is your duty as jurors to take into consideration all the facts disclosed by the evidence as well as the inference of negUgence that I have told you has arisen against the defendants and to decide whether or not the plaintiff has sustained the burden imposed upon him of establishing by the preponderance of the evidence that one or both of these defendants were negligent, and that that negligence was the proximate cause of the accident and of his injuries.” (Italics ours.)

In dealing with the doctrine of res ipsa loquitur, in respect to the situations in which it should be applied (Alston v. J. L. Prescott Co., 10 N. J. Super. 116 (App. Div. 1950)), we commented on the diversity of opinion thereon discoverable in the English and American cases, in the textbooks and in the law review articles, and gave illustrative citations. We deal here, not with the situations in which the doctrine should be applied, but with the more troublesome question of the mechanics of its operation when it does apply. The citations in the Alston case, mentioned above, are also enlightening on the question before us.

In our State, however, the mechanics of the operation of the rule have been stated clearly in Wildauer v. Rudnevitz, 119 N. J. L. 471 (E. & A. 1938) : “In actions for negligence where the maxim res ipsa loquitur applies, the trial judge may hold that the circumstances are such as will, unexplained, permit the jury to draw the inference of negligence, but that inference is for the jury and not for the court.” Professor Prosser states: “The majority of the American courts regard res ipsa loquitur as nothing more than one form of circumstantial evidence. * * * This usually means that the inference of negligence to be drawn from the circumstances is left to the jury. They are not compelled to find it. The plaintiff escapes a nonsuit, or a dismissal of his case; but no burden of introducing evidence is cast upon the defendant, in the sense of a directed verdict against him if he fails to do so — if he introduces no evidence at all, the jury may still find in his favor.” Prosser on Torts, (1941), ch. 7, § 44. In 173 A. L. R. 880, in discussing the question before us, the note commentator says:

“The question of the precise operation or consequence of the doctrine of res ipsa loquitur is made difficult by the variety of expressions by the court in the many cases in which the doctrine has been invoked. One of the outstanding problems is whether the doctrine permits or gives rise to a presumption of negligence, or merely a permissible inference thereof. Perusal of the cases on this point reveals a serious conflict, due perhaps to the somewhat loose expressions by the court in applying the doctrine or discussing its effect. But in cases where conscious effort was made to distinguish and determine the consequences of the doctrine, and particularly in cases of more recent origin, the majority of the courts favor the view that re,s ipsa loquitur merely warrants or justifies the drawing of an inference of negligence, and does not create a presumption of negligence so as to compel a finding thereof in the absence of explanation by the defendant.”

Also see cases gathered in 173 A. L. R. 874. But see Res Ipsa Loquitur by Sham (1945), in which the author argues that a different result should be reached, based upon his analysis of a large number of English and American cases, statements of textbook writers and law review articles.

We think the court below erred in its charge to the jury because it charged, in effect, that the facts of the occurrence compelled an inference of negligence instead of leaving for the jury the question whether the inference of negligence should be drawn; and also erred in charging that the application of the res ipsa loquitur doctrine made it “incumbent upon the defendants to explain that they exercised reasonable care in the maintenance of this window.” It is true that the court below also charged:

“* * * On the other hand, you members of the jury are the sole and exclusive judges of the facts, of the weight of the testimony, of the credibility of the witnesses, of the inferences to be drawn from the facts, and of the ultimate conclusions to be reached on all of the facts.
# jjt $ $ * * *
“If the greater weight of the evidence satisfies you that either one or both of these defendants failed to comply with or to fulfill that duty then the one who failed or both, if you so find, would be guilty of negligence, and if that negligence was the producing and efficient cause of the fall of the pane of glass from the window and of the plaintiff’s injury then such defendant or defendants would be liable to the plaintiff.
* i'fi * * * *
“Now, if after consideration of all the evidence you are satisfied that the greater weight of evidence shows the negligence of one or both of these defendants which produced this accident then you will turn to the question of damages * *

At best, two statements of the law were made to the jury, one of which was erroneous. In such a situation it will not be presumed that the jury followed the correct instruction, but the judgment will be reversed on appeal. Pucci v. Weinstein, 8 N. J. Super. 247 (App. Div. 1950).

The tenant argues only one point, namely, that there was no proof of any negligence by the tenant and the doctrine of res ipsa loquitur did not apply,'because control of the instrumentality was in more than one person.

It was the duty of the tenant to keep the demised premises in a safe condition, and an agreement by the owner to make repairs did not relieve the tenant from this duty. Spinelli v. Golda, et al., above. As pointed out above, the mere fact that control oí the instrumentality is in more than one person does not prevent the application of the doctrine to those in control. Here the control was in both the owner and tenant and the doctrine applies to both, despite the fact that neither had sole control.

Since we have concluded that there must be a reversal as to the owner because of prejudicial error in the charge, we believe that, upon terms, there should be a reversal as to the tenant also, because the prejudicial error in the charge affected both owner and tenant equally. At the conclusion of the court’s charge, the owner made known to the court the error in the charge complained of (as required by Buie 3:46), excepted thereto and argued it on its appeal, but the tenant made no objection.

In McKeown v. King, above, one defendant had taken exception to the court’s charge, but abandoned it on appeal; and the Court of Errors and Appeals held that a co-defendant who had not excepted thereto could not, on his appeal, avail himself of error in the charge. In Overend v. Kiernan, 5 N. J. Misc. 704 (Sup. Ct. 1927), one defendant had taken exception to the court’s charge, but took no appeal; and the court held that a co-defendant who had not excepted thereto could not, on his appeal, take advantage of the exceptions taken by his co-defendant. In this case, however, the owner not only made proper objection to the error in the charge, but the question was briefed and argued before us by both owner and plaintiff.

The purpose of the rule requiring that an appellant must make known to the court below his objection to the action of the court, in order to preserve his right of appeal thereon, is to put the court on notice that its action is challenged, and give it an opportunity to correct the error, if any. Here, this error was called to the court’s attention by the owner and we think it most unlikely that a further objection by the tenant, on the ground briefed and argued before us, would have resulted in any different action thereon.

“Rules of court, however, are devised as a method of facilitating the correct and orderly exposition of substantive law, and the proper administration of justice, and when for any reason they cease in actual practice to accomplish that function, their efficacy as rules pro tanto cease, and such an equitable construction or application will be accorded them, as will effectuate the manifest design and purpose of their framers.” Lambert v. Trenton and Mercer, &c., Corp., 103 N. J. L. 23, 25 (Sup. Ct. 1926).

We think it would be contrary to the spirit of our new rules if we were to affirm the judgment against the tenant in this case on the technical ground that he failed to properly object to the error in the charge, while reversing the judgment against the owner, for the same error, because such a result would defeat the end of substantial justice. Cf. McCarthy v. General Electric Co., 49 P. 2d 993, 100 A. L. R. 1370 (Or. Sup. Ct. 1935). Since the plaintiff did not induce the error in the charge, and the tenant failed to comply with the technical requirements of our rules, we think it only just that reversal as to the tenant be conditioned upon his payment of the plaintiff’s costs on his appeal.

The judgment is reversed as to the defendant 54-62 Summer Ave. Corp., with costs to abide the event; and the judgment is reversed as to the defendant Nathan Peckerman if he pays to the plaintiff the plaintiffs costs on his appeal within 30 days after service of a bill of costs upon him, otherwise the judgment against the defendant Nathan Peckerman is affirmed.

Jayne, J. A. D.

(dissenting). Notwithstanding my high regard for the unanimity of opinion of my two associates, I am unable to concur in the conclusion that the charge of the trial judge in this case was so manifestly erroneous, prejudicial, and harmful as to require a reversal of the judgment. In such a situation, I am obliged to file a memorandum of the reasons for my dissent. Buie 4 :A-6.

Initially I understand it to be the established rule that “when the charge of the court, taken in its entirety, presents the law fairly and clearly, so that the jury cannot reasonably be thought to have been misled by the instructions, there is no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous.” Redhing v. C. R. R. Co., 68 N. J. L. 641 (E. & A. 1903); Larsen v. Raritan Valley Farms, Inc., 109 N. J. L. 363 (E. & A. 1932); Johnson v. Central Railroad Co., 111 N. J. L. 93 (E. & A. 1933); Simons v. Lee, 117 N. J. L. 370 (E. & A. 1937).

Otherwise expressed, "although sentences in a charge may, if read apart from their connection, need some qualification to render them accurate, yet if the qualification be given in the context so that the jury cannot reasonably be thought to have been misled by the charge, taken in its entirety, there is no error.” Merklinger v. Lambert, 76 N. J. L. 806 (E. & A. 1908); J. D. Loizeaux Lumber Co. v. O'Reilly, 104 N. J. L. 510 (E. & A. 1928).

Then again, somewhat differently phrased — “If in his charge to the jury the judge uses a word or a phrase the very opposite of which he intends, and his true intent and meaning are to be gleaned from the other parts of the charge, and if upon the whole charge the jury cannot reasonably be thought to have been misled, there is no error.” (Syllabus) State v. Timmerari, 96 N. J. L. 442 (E. & A. 1921).

It is a rule equally well settled that whore two distinct propositions are charged, one correct and the other erroneous, neither of which is expressly withdrawn, so that the jury cannot decide which is right, there is consequently reversible error in the record. State v. Tapack, 78 N. J. L. 208 (Sup. Ct. 1909); Collins v. Central R. R. Co., 90 N. J. L. 593 (E. & A. 1917); Brown v. Public Service Ry. Co., 98 N. J. L. 747 (E. & A. 1923) ; Pucci v. Weinstein, 8 N. J. Super. 247 (App. Div. 1950).

Perhaps basically our diversity of opinion arises in the application of the one or the other of the aforementioned rules to this particular case.

I presume that the underscored or italicized phrases of the excerpts taken from the judge’s charge and reproduced in the majority opinion are intended to exhibit the error deemed to necessitate the judgment of reversal.

It will be expedient for me to reduplicate them with my brief comments.

I.

“* * * Now, since under the proof here, members of the jury, it appears that this window pane fell from its framework and struck the plaintiff, under the law an inference of negligence arises against both of these defendants.”

' I understand that in the opinion of the majority the use of the verb “arises” is regarded as inapt and incongruous. In our preliminary research embracing the cited English and American decisions and the informative law review articles in Alston v. J. L. Prescott Co., 10 N. J. Super. 116 (App. Div. 1950), we recognized that in such a context that identical verb was commonly employed.

We have heard the former Court of Errors and Appeals say, “The unexplained presence upon the public highway of this “runaway’ motor truck, without driver or occupant, moving along the highway to the far side thereof, mounting the curb and doing serious physical injury to a person lawfully there, raises a prima facie presumption of negligence * * Sheridan v. Arrow Sanitary Laundry Co., 105 N. J. L. 608, 611 (E. & A. 1929). In Glicken v. Bergman, 117 N. J. L. 306 (E. & A. 1936), the Court of Errors and Appeals (on p. 309) used with evident approval the phrase “was deemed to raise” the presumption.

Chief Justice Gummere, then Justice, sitting with Chief Justice Beasley and Justice Reed, in Sheridan v. Foley, 58 N. J. L. 230 (Sup. Ct. 1895), said: “In such eases the maxim 'res ipsa loquitur’ is held to apply, and it is presumed, in the absence of explanation by the defendant, that the accident arose from want of reasonable care. * * * This brick could not have fallen of itself, and the fact that it fell, in the absence of explanation by the defendant, raises a presumption of negligence.”

I decline to believe that the jury would have had any different understanding, had the judge said that the law “affords” an inference of negligence. Mumma v. Easlon and Amboy Railroad, 73 N. J. L. 653 (E. & A. 1906).

“In tort liability, a falling object is the common circumstance calling for the invocation and application of the doctrine of res ipsa loquitur.” Cleary v. Camden, 118 N. J. L. 215 (Sup. Ct. 1937), in which a number of such cases are collated.

Immediately following the excerpted passage of the charge which is regarded as improper, the court stated:

“Where it appears that an agency or an instrumentality or an object such as this pane of gláss is in the control of the defendants and there is an occurrence injurious to the plaintiff which in the ordinary course of things would not take place if the person or persons in control were exercising due care, the occurrence itself in the absence of explanation by the defendants provides prima facie evidence that there was want of reasonable or due care.” (Emphasis mine.)

The foregoing passage, I think, is an unexceptionable statement of the law.

II.

“The presumption of negligence, on the part of these defendants or the inference of negligence on the part of these defendants having come into existence here, it is incumbent upon the defendants to explain that they exercised reasonable care in the maintenance of this ivindow. It is your duty as jurors to take into consideration all the facts disclosed by the evidence as well as the inference of negligence that I have told you has arisen against the defendants and to decide whether or not the plaintiff has sustained the burden imposed upon him of establishing by the preponderance of the evidence that one or both of these defendants were negligent, and that that negligence was the proximate cause of the accident and of his injuries.”

Elsewhere in his instructions the judge stated:

“On the other hand, you members of the jury are the sole and exclusive judges of the facts, of the weight of the testimony, of the credibility of the witnesses, of the inferences to be drawn from the facts, and of the ultimate conclusions to be reached on all of the facts.
“Now, whereas here a plaintiff seeks a recovery of damages against defendants on a claim of negligence the law imposes upon him the burden of establishing his claim and his damages by the greater weight of the believable evidence, by what is sometimes oalled the preponderance of the evidence,. In the absence of such proof there can be no recovery. The right to a verdict comes into existence only when the burden of proof, as I have just explained it to yon, has been met.
# }$í i'fi * # * #
“If the greater weight of the evidence satisfies you that either one or both of these defendants failed to comply with or to fulfill that duty then the one who failed or both, if you so find, would be guilty of negligence, and if that negligence was the producing and efficient cause of the fall of the pane of glass from the window and of the plaintiff’s injury then such defendant or defendants would be liable to the plaintiff.” (Emphasis mine.)-

It is obvious that the judge properly and definitely placed the burden of proof of negligence upon the plaintiff and assured the jurors that they were the “sole and exclusive judges” of “the inferences to be drawn from the facts and of the ultimate conclusions to be reached on all the facts.”

The judge did say that “to decide whether or not the plaintiff has sustained the burden” of establishing the negligence of one or both of the defendants by a preponderance of the evidence it was their dutjf "to talce into consideration” all of the facts disclosed by the evidence including the res ipsa inference.

I deduce from the majority opinion the conviction that the doctrinal rule of res ipsa loquitur is only to be recognized in the determination by the court of motions for a dismissal of the action and for a judgment at the conclusion of the testimony and that any reference to that rule of evidence in the charge to the jury is improper. I caniiot coincide with that idea because it blindly ignores the legendary origin and realistic permanence of the so-called doctrine. Prior to the declaration of the doctrine, jurors did not suppose that they were privileged under the law to. impose liability upon anyone unless there was some proof of the specific culpable cause of the mishap. In the complete absence of such evidence, the unexplained and unaccountable occurrence was characterized as a pure accident or act of God. Hence, judges for generations have in the appropriate cases informed the jurors of the permissible inference of culpability which the law “raises” or “affords” from the circumstances of the occurrence itself.

In the present case the baneful and malignant infirmity in the charge is said to be the declaration of the judge to the jury that in considering “all of the evidence,” “all of the facts,” “the inferences to be drawn from the facts,” “the weight of tlie testimony,” “the credibility of the witnesses,” and in formulating “the ultimate conclusions to be reached,” the jurors should also “take into consideration” the res ipsa inference of negligence in deciding “whether or not the plaintiff has sustained the burden imposed upon him of establishing by the preponderance of the evidence that one or both of these defendants were negligent and that that negligence was the proximate cause of the accident and of his injuries.”

I do not discover in that instruction any justifiable reason in this case to repudiate the assertions of Justices Trenchard, Parker, and Perskie made in Galbraith v. Smith, 120 N. J. L. 515 (Sup. Cf. 1938), viz: “True, defendant is always entitled to go forward, as she did in the case at bar, with explanatory testimony to negative the inference of negligence, but the inference remains nonetheless, and should be considered by the trier of the facts. Thus, under the circumstances here exhibited, it might well have been that, notwithstanding a consideration of the inference raised by the invocation of the doctrine of res ipsa loquitur, the trier of the facts might have concluded that defendant had exercised due care and thus incurred no liability. But the conceded failure to consider that inference, along with the other proved facts, was harmful and prejudicial error.”

This appeal resembles that taken in Cleary v. Camden, supra, in which the appellate court remarked: “To pick out a sentence of the court’s charge, or a part of a sentence, or a paragraph of the charge, without regard to the charge of the court as a whole * * * is not the proper method of determining whether the court committed reversible error. The orderly and proper procedure is to study the charge of the court, with due regard to the issues and proofs, in its entirety as delivered. Does the charge as so delivered fairly and accurately state the law applicable? “Would ordinary men and jurors understand the instruction as a whole?’ Kargman v. Carlo, 85 N. J. L. 632, 638, 90 A. 292, 295; Lyon v. Fabricant, 113 N. J. L. 62, 67, 172 A. 567.”

The judgment in this case does not appear to be unjust. Nothing in the record persuades me that the jury was misled in concluding that some one or both of the defendants.were negligent in allowing a pane of glass over which such defendant had control to fall from the window upon the plaintiff.

I agree that the trial judge might have prudently and precautiously advised the jury that with respect to all inferences, they were at liberty to select or reject according to the dictates of their own judgment.

I cannot acquiesce in the notion that in a case of circumstantial evidence the court commits reversible error in instructing the jurors to ““take into consideration” all of the legitimate inferences and reasonable probabilities, unless the court also instructs the jury that in their assortment of the inferences and probabilities so considered, they can exercise discrimination in selecting some and rejecting others. To me, it is unimaginable that jurors who are informed by the court that they ““are the sole and exclusive judges of the fads, of the weight of the testimony, of the credibility of the witnesses, of the inferences to be drawn from the fads, and of the ultimate conclusions to be reached on all of the facts” need to be additionally informed that in the performance of that function they can accept some and reject other ““inferences” in arriving at the ““ultimate conclusions.” Unlike my colleagues, I am unable to discern any basis for their conclusion that the court’s charge ““compelled” the jury to adopt without choice the res ipsa inference of negligence.

But in reviewing judicial action on appeal, the unity of pragmatical acceleration and academic precision may be recognized as a cherished ideal, but during the period of progression toward that visionary destination, the limitations of human capacities of circumspection should not be ignored.

To declare that a trial judge in referring to the doctrine, principle, maxim, rule of res ipsa loquitur commits reversible error in a charge delivered to a jury oí laymen in that he employed the phrase “presumption of negligence” instead of “inference of negligence,” or used both phrases, seems to me to be too sophistical. Alston v. J. L. Prescott Co., 10 N. J. Super. 116, 119 (App. Div. 1950).

I am constrained in the present case respectfully to dissent from the conclusion of the majority and 1 vote to affirm. In consequence, I refrain from any comment upon the action of the majority in also reversing the judgment against the tenant.


author: Bigelow, J. A. D.

text:
    CATHERINE PEPE AND ANOTHER, PLAINTIFFS-APPELANTS, v. STEVE URBAN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 16, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Harry Chashin argued the cause for the appellants (Messrs. Marcus & Levy and Hyman W. Rosenthal, attorneys) .

      Mr. Joseph J. DeLuccia argued the cause for the respondent (Mr. A. Leo Bohl, attorney).
   The opinion of the court was delivered by

Bigelow, J. A. D.

This appeal is unusual in that no consideration need be given to the facts that led to the litigation. The only matter fox discussion is the court’s handling of a situation arising at the trial from the failure of one of plaintiff’s witnesses to appear.

The trial of the action, which was brought on account of personal injuries allegedly resulting from defendant’s negligence, consumed a little more than one court day. At ten minutes before 1:00 o’clock, counsel for the plaintiff announced that he had completed the presentation of evidence on the subject of negligence; that he had subpoenaed a Doctor Crescente on the question of damages, but that he had not arrived. “His office informs me that he has been in an operation, so I am helpless without him at this stage.” The court thereupon recessed for lunch. At 2 :00 o’clock, the doctor had not yet arrived; so the defendant put in his case on liability and, at 3 :15, rested, except for his medical testimony. The court recessed for five minutes. Counsel for plaintiff then presented an affidavit of service of the subpoena, and addressed the court:

“I have been in constant endeavor to communicate with Doctor Crescente, have spoken with his nurse two or three times since recess at one o’clock, and each time the answer has been given that the doctor has not been in touch with his office. When I spoke with her this morning, she said the doctor was in an operation which was an emergency and that he left word that he would try to be here by 12:30.”

Then counsel asked the court to issue a warrant to bring in Doctor Crescente, or in the alternative to carry the case until the next morning. But the court declined: “A warrant may cause a lot of damage. * * * I think we must go on with the case. We cannot afford to lose this time.” Counsel made a last motion, for a dismissal of the action without prejudice, and this, too, the court denied. Thereupon, the defendant completed liis case by presenting a surgeon who testified to the extent of plaintiff’s injuries. The lawyers summed up; the next morning the court charged the jury; a verdict was returned for defendant, and judgment entered accordingly.

Since the jury found in favor of the defendant generally, the question of the severity of plaintiff’s injuries became immaterial. And yet we think the evidence of Doctor Crescente might have been an important part of her case. The court charged the jury: “If you believe a witness is deliberately falsifying his or her testimony with regard to a material fact, you may disregard all of that witness’ testimony.” If the jury thought plaintiff’s testimony about her injuries to have been deliberately false, they may have considered all her testimony, including her narrative of the accident, to have been unworthy of credit and have disregarded it. Plaintiff was subjected to a rigorous cross-examination about her injuries, the medical treatment which she received, and medical expenses incurred. Doctor Eubacky, who examined plaintiff in the interest of defendant 20 days after the accident, testified in substance that she had then fully recovered from the effects of the accident. “All her complaints could be readily attributed to an old arthritic process which she had throughout her body.” Doctor Crescente was the man who had treated plaintiff from the day of the accident until shortly before the trial — if we believe plaintiff’s testimony. She had no other physician. His corroboration would obviously have strengthened her whole case and might have produced a verdict in her favor.

The plaintiff’s attorney had taken every proper step to obtain the attendance of Doctor Crescente, although defendant argues that the subpoena should have been served earlier than it was. The trial began on Tuesday morning; the subpoena had been served on Monday. On Eriday mornings, it is customary to make up the trial list for the following week and we assume that was done in this case. Administra-Uve Rule A18. But there is always some uncertainty just when an action will be reached for trial. A case ahead of it oil the list may unexpectedly be settled or may take longer to try than anticipated. We cannot say the attorney was negligent in waiting until Monday before serving the subpoena. Counsel states that the doctor had been told earlier of the imminence of the trial. We also note that the doctor’s office was on Madison Avenue in Paterson, not far from the court house.

We think the trial judge should have granted an adjournment, or otherwise have aided plaintiff in her dilemma. Of course, the handling of problems of this sort fall within the discretion of the trial court. Heinz v. Atlantic Stages, 113 N. J. L. 321 (E. & A. 1934). The appellate court should not interfere unless it appears that appellant has suffered an injustice. Wait v. Krewson, 59 N. J. L. 71 (Sup. Ct. 1896). “The inquiry in all cases is whether injustice has been done.” Ogden v. Gibbons, 5 N. J. L. 612 (*518), at 626 (*531) (Sup. Ct. 1819). In our opinion, the substantial rights of plaintiff were infringed by the action of the court, as a result of which she was unable fully to present her case. A new trial should be granted. Carlo v. Okonite Cable Co., 2 N. J. Super. 122 (App. Div. 1949); affirmed, 3 N. J. 253 (194,9). We must never forget that courts exist for the sole purpose of rendering justice according to law. No eagerness to expedite business, or to utilize fully the court’s time, should be permitted to interfere with our high duty of administering justice in the individual ease.

The judgment is reversed. Costs will abide the outcome of the new trial.


author: Jayne, J. A. D.

text:
    THE HILLSDALE NATIONAL BANK OF HILLSDALE, NEW JERSEY, A NATIONAL BANKING INSTITUTION, PLAINTIFF-APPELLANT, v. JOHN SANSONE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1951 —
    Decided January 22, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Gordon Haviland Brown argued the cause for appellant (Mr. Harry Randall, attorney).

      Mr. Joseph Grossman argued the cause for respondent (Messrs. Grossman & Kampelman, attorneys).
   The opinion of the court was delivered by

Jayne, J. A. D.

It is expedient in the introduction of the subject matter of this litigation to reproduce here the agreed statement of facts which accompanies the present appeal. Bules 1:2-22 and 4:2-6.

“1. The plaintiff-appellant is the holder of a promissory note in the amount of $1,158.48 made by the defendant-respondent.
2. The following is a true and complete copy of the note:
‘$1158.48 August 2, 1948 No. 7665
For value received, I/we the undersigned, jointly and severally, promise to pay to the order of Economizer Products, Inc. the sum of Eleven Hundred fifty-eight and 48/100 Dollars ($1158.48) as follows:
36 equal successive monthly installments of $32.18 each and a final installment of $ beginning September 15, 1948 and the remaining installments on the same date of each month thereafter until paid, with interest at 6 per cent after maturity, at the office of The Hillsdale National Bank, Hillsdale, New Jersey. For each dollar of payment in arrears more than five days, the undersigned promises to pay to the holder hereof the sum of Five Cents as compensation for the damage and expense occasioned by such delay. We hereby waive demand notice and protest. In the event of the death, insolvency, bankruptcy or failure in business of any of the undersigned, or, in the event any installment of this note is not fully paid as herein specified, or in the event that any of the terms and conditions of a conditional sales contract dated as of even date between the maker(s) and the payee of this note are not fully complied with, this note shall, at the option of the holder hereof, become due and payable without demand and notice. We hereby agree in case of default to pay costs, including reasonable attorneys’ fees, for’ necessary court process.
It is agreed that all principal payments on this note need not be endorsed upon this note, but are to be recorded on an individual liability record held at the above mentioned bank.
John Sansone (seal)’
Endorsed on back of note:
‘For value received, pay to the order of The Hillsdale National Bank, Hillsdale, New Jersey.
Economizer Products, Inc. (Seal)
By Maurice A. Sit.ver. Pres.’
3. The note was duly endorsed by the payee thereof and was negotiated to the plaintiff-appellant on or about August 31, 1948.
4. The plaintiff-appellant paid the sum of 8950.00 for the note.
5. At the time the defendant-respondent made the note, he was insane.
6. The plaintiff-appellant received the note in good faith without notice of the insanity of the defendant-respondent and without notice of any facts indicating the insanity of the defendant-respondent.
7. The note was given in payment for an Economizer Bar Dispenser unit, which unit was sold and delivered tinder a conditional sales contract hearing the same date as the note.
8. The defendant-respondent never used the aforesaid unit and has offered to return the unit to the seller or to the plaintiff-appellant, and at the time of the trial, tendered himself ready, willing and able to return said unit to the aforesaid parties.
9. The defendant-respondent never ratified the conditional sales contract, or the note; and nothing has been paid on account of the note.”

Final judgment was entered in favor of the defendant. 8 N. J. Super. 497 (Law Div. 1950).

There are four features of this ease that attract our immediate observance. The one, that the article intended to be sold by the payee pursuant to the conditional sales agreement was not within the category of necessities. R. S. 46 :30-8. Vide, Van Horn v. Hann, 39 N. J. L. 207 (Sup. Ct. 1877); Waldron v. Davis, 70 N. J. L. 788 (E. & A. 1904); Hurey v. Leavitt, 93 N. J. L. 299 (Sup. Ct. 1919); In re Ganey, 93 N. J. Eq. 389 (Ch. 1921); affirmed, 94 N. J. Eq. 502 (E. & A. 1923). Another, that although the plaintiff had no knowledge of the defendant’s mental incompeteney, yet from the note itself it had knowledge that the instrument was associated with a contract. We do not resolve from the latter circumstance that the reference in the note to the conditional sales contract destroyed the negotiable character of the instrument. Superior Finance Corp. v. John A. McCrane, &c., Inc., 115 N. J. L. 401 (Sup. Ct. 1935); affirmed, 116 N. J. L. 435 (E. & A. 1936); see, Eastern Acceptance Corp. v. Kavlick, 10 N. J. Super. 253 (App. Div. 1950). It was, however, indicative to the plaintiff that the note originated from a contemporaneous contractual engagement in which the defendant had entered. Cf. General Contract, &c., Corp. v. Moon Carrier Corp., 129 N. J. L. 431 (E. & A. 1943). The third, that the defendant has not ratified either the sale or the note and has offered to return the property delivered to him. Vide, Miller v. Barber, 73 N. J. L. 38 (Sup. Ct. 1905). The fourth, that it is acknowledged that the defendant was insane at the time he executed the contract, and the note in suit, and that except for the absence of the appointment of a guardian we are to regard the stipulated fact of his insanity with the same significance as if it had been adjudicated.

Moreover counsel for both parties desire us to recognize the writing in suit as a negotiable instrument within the purview of our Negotiable Instruments Law (B. S.. 7:1-1) and to determine whether the insanity of the maker of a promissory note in the stipulated circumstances is a defense against a bona fide holder in due course.

It has always been interesting to recall that Lord Coke in Beverley’s Case, 4 Co. Rep. 123 b, 76 Eng. Reprint 1118 (King’s Bench 1603), announced the rule that a lunatic could not be permitted by plea to show the invalidity of his acts because to do so would.be to stultify himself. It is doubtful if that reasoning prevails in any jurisdiction at the present time. Parsons on Notes and Bills, § VI, p. 149. While the law may itself create by implication civil obligations, it seems fantastic in recognition of the fundamental idea of a contract which requires the mutual and voluntary assent of two minds, a meeting of the minds, that such an indispensable element can exist in a transaction with a lunatic. We would more reasonably suppose that a person non compos mentis has nothing which the law recognizes as a mind. Dexter v. Hall, 15 Wall. 9, 21 L. Ed. 73 (U. S. 1873); P. Ballantine & Sons v. Gulka, 117 N. J. L. 84 (Sup. Ct. 1936); 17 C. J. S. 479, § 133 a.

Justice Story in his work on promissory notes stated: “Every contract presupposes that it is founded in the free and voluntary consent of each of the parties, upon a valuable consideration, and after a deliberate knowledge of its character and obligation. Neither of these predicaments can properly belong to a lunatic, an idiot, or other person non compos mentis, from age, or imbecility, or personal infirmity. Hence it is a rule, not merely of municipal law, but of universal law, that the contracts of all such persons are utterly void.” Story, Prom. Notes, 107, § 101.

To embark upon an exploration of the adjudications of more recent years and to discuss whether in the present nomenclature of the law, contracts of a lunatic should be catalogued as “void” with the several exceptions, or “voidable” somewhat akin to those of an infant, would be a time-consuming undertaking. Vide, Eaton v. Eaton, 37 N. J. L. 108 (Sup. Ct. 1874. Cf. Matthiessen, &c., Co. v. McMahon's Adm’r., 38 N. J. L. 536 (E. & A. 1876); 1 Willis ton (Rev. ed.) 739 et seq., §§ 250, 251. We accordingly confine ourselves to the consideration of the present case.

Singularly, there is a paucity of adjudications relative to the liability of an insane maker or indorser of a negotiable promissory note to a bona fide holder in due course under the Uniform Negotiable Instruments Law. 1 We find none in our own state reports.

A reference to 28 Am. Jur. 691 el seq., §§ 55, 56, 8 C. J. 774, § 1040, 10 C. J. S. 1114, § 506 d, Beutel’s Brannan Negotiable Instruments Law (7th ed.) 756 et seq., § 55, 1 Williston on Contracts (Rev. ed.), § 250 et seq., discloses the editorial or commentators’ views with citations of cases either decided before the enactment of the. uniform act or inapplicable to the precise circumstances of the present case.

The decision of Chief Justice Williams of the Supreme Court of Ohio in Hosler v. Beard, 54 Ohio St. 398, 43 N. E. 1040 (Sup. Ct. 1896), displays a very deliberate consideration of the subject. It was therein determined that the insanity of the maker of a negotiable instrument is a defense against a holder in due course. In accord: 2 Patou’s Digest 2001, 4D;4; Barnes v. McCarthy, 132 S. W. 85, 87 (Tex. Civ. App. 1900). It is noted that the latter decision, although rendered in 1910, preceded the adoption of the Uniform Negotiable Instrument Law in Texas. But see, Brumley v. Chattanooga, &c., Co., 198 S. W. 775 (Tenn. Sup. Ct. 1917). Anent extreme intoxication, Green v. Gunsten, 142 N. W. 261 (Wis. Sup. Ct. 1913).

Counsel for the appellant conceded at the argument that in the existing state, of the admitted facts, if the instrument in its relation to the liability of the defendant is either void or voidable, the judgment for the defendant should be affirmed.

In considering the case in the light of the law merchant we decline to indulge in that concession. Our inquiry converges upon the question whether or not there existed a fundamental and instrinsie infirmity in the instrument which suffocated its legal vitalitjT as a negotiable instrument.

It is not peculiar that in the growth of the commerce of England, Lord Mansfield manifested a serious interest in the development of the law merchant with particular concern for the rights of a holder in due course. With the expansion of both domestic and foreign trade and commerce throughout the world, the pragmatical use of instruments óf a negotiable quality, approximating as closely as discreetly possible the efficiency of currency, became imperative.

The substantial object in the composition of the Negotiable Instruments Law which has been generally adopted was to codify and render uniform in some succinct fashion in statutory form the common law on the subject of such instruments. .

In the achievement of that object it is not reasonably to be assumed that the legislature of this or any other state, unless a contrary interpretation is evident, intended to abrogate a traditionally established humane principle of law and rule of civilized society. There is nothing in the statute expressly to import the conviction that a negotiable instrument of a lunatic, idiot, or insane person was intended to be converted into a valid contractual obligation.

True, the statute ordains that “A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.” R. 8. 7:2-57.

It sounds shallow to say that the Negotiable Instruments Law applies to negotiable instruments. But can a document executed by an insane person be recognized in the law as a contract, or as a will? So, can an instrument made by such a person be a negotiable instrument within the signification of the statutory or common law ?

For illustration, if this defendant had made and delivered the note in pajuaent of a gambling debt, our former Court of Errors and Appeals would have declared that it was not a negotiable instrument. “It had no life; no vitality.” Fisher v. Brehm, 100 N. J. L. 341 (E. & A. 1924).

Had it been «made by a married woman disabled by law from assuming the obligation, it would not have been a negotiable instrument. Woolverton v. Van Syckel, 57 N. J. L. 393 (E. & A. 1894); Vliet v. Eastburn, 63 N. J. L. 450 (Sup. Ct. 1899), on retrial, affirmed, 64 N. J. L. 627 (E. & A. 1900); Peoples National Bank v. Schepftin, 73 N. J. L. 29, 35 (Sup. Ct. 1905).

If, in contrast, the note had been issued in payment of a fee to an unlicensed real estate broker, it would have been deemed enforceable as a negotiable instrument by a holder in due course. Modern Industrial Bank v. Taub, 134 N. J. L. 260 (E. & A. 1946).

It is therefore perceived that the pivotal point of inquiry is whether the particular instrument is utterly void ab initio or whether it emanates from a transaction merely malum prohibitum and is thereby offensive to a phase of public policy. If void, the instrument is assuredly nonnegotiable and is not enveloped by the Negotiable Instruments Act. If, however, the instrument should be tainted in that it is rooted in an illegal transaction, or initially based upon an illegal consideration, the title of the holder in due course is under the provisions of the statute invulnerable. Modern Industrial Bank v. Taub, supra.

In the latter instance, if considered in the view of public policy, the indescribable utility of the untrammeled and unencumbered negotiation of commercial paper predominates.

Nevertheless, it is not rationalistic to believe that the statute relating to such instruments was intended to have void obligations cleansed of their inherent invalidity by merely passing through the channels of trade.

Perhaps it can be said that every subsisting principle of the common law and every extant statute is expressive of public policy. And so, the mantle of protection with which the law has traditionally clothed infants and the insane may be characterized as a garment of public policy.

. An insane person is not held amenable to the criminal laws. In this respect he is not held responsible for offenses committed against society and the government, itself. Why? Because he is mentally incapable of discriminating between that which is right and that which is wrong.

If this defendant had not signed the note or if some person had forged his signature thereto, certainly he would not have incurred the alleged liability. B. 8. 7:2-23. It would seem logically to follow that a person who at the time of placing his signature on the instrument was so bereft of reason that he. was incapable of consciously understanding the nature, import, and effect of his act is not a “maker” within the comprehension of - the statute.

There is a discernible distinction in their relationship toward an innocent holder between those who knowingly and deliberately utilize a negotiable instrument in the pursuit of an illegal transaction and those who lacked the mental capacity to contract at all. The authors of the legislation indirectly recognized the element of capacity to contract in supplying certain warranties. See R. 8. 7:2-65.

In the absence of some unequivocal expression in the statute to the contrary, the basic rule applies that where there is not the mental capacity to comprehend and understand, there is not the capacity to make a valid contract.

In general all contractual engagements must be pursued with the premonitory realization that the enforceability of the obligation fundamentally arises from the mental capacity and competency of the party to contract.

In the stated circumstances of the present case, the plaintiff in our opinion was not entitled to recover. The judgment is affirmed.


text:
    MECHANICS FINANCE CO., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. PERCY AUSTIN, DEFENDANT, AND THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, GARNISHEE-APPELLANT. MECHANICS FINANCE CO., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN McELROY, DEFENDANT, AND THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, GARNISHEE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 25, 1951.

      Before Judges McGeehan, Jayne and War. J. Brennan, Jr.

      Mr. John F. Lynch, Jr., argued the cause for the garnishee-appellant (Messrs. O’Mara, Conway & Schumann, attorneys).

      Mr. Sidney H. Kantrowitz argued the cause for the respondent (Messrs. Eichenbaum, Kantrowitz & Eichenbaum, attorneys).
   The opinion of the court was delivered by

Jayne, J. A. D.

Concisely stated, the controversial question debated by counsel is whether the wages of residents of this State who are in the employ of the Pennsylvania Eailroad Company, a foreign corporation authorized to conduct its operations in this State, which wages were contracted for, and are currently earned and paid in the State of New York, are subject to an order in garnishment proceedings by an execution creditor under our existing statute. B. S. 2:32-180 et seq.

The record before us consists of an agreed statement of facts submitted pursuant to Bules 1 :2-22 and 4:2-6. It reveals that the plaintiff-respondent recovered judgments in this State against the debtors Austin and McElroy. Each are employees of the Pennsylvania Eailroad Company in the State of New York where they perform their services and receive their wages or salaries. Each debtor is a resident of the State of New Jersejn

The Pennsjdvania Eailroad Company is a foreign railroad corporation authorized as such to conduct business within this State by P. L. 1873, c. 386.

The Hudson County District Court, in which the judgments were obtained, entered orders directing wage executions upon the salaries of the respective judgment debtors, and bjr virtue of the service of the executions upon the railroad company in this State, the company was commanded to deduct from the salaries of the respective employees the usual statutory percentage each week until the judgment debt was paid.

The railroad company, as garnishee, obtained from the District Court rules to show cause why the garnishment orders should not be vacated and quashed. The rules were discharged, and these consolidated appeals bring before us for review the propriety of their dismissal.

Our attention is immediately invited to the decision of the Supreme Court in Continental Purchasing Co., Inc., v. Williams, 132 N. J. L. 445 (Sup. Ct. 1945), which the appellant insists is decisive and conclusive.

We observe that in the cited decision the court disclosed with precision and exactness the problem presented for determination. We quote: “The question before us is whether a garnishment order may issue on a judgment obtained in this state on an employer of another state where the defendant resides and is employed.” (Emphasis ours.) Obviously, the fact that the judgment debtor was a non-resident of this State was recognized as a circumstance of salient significance. In the present proceedings the judgment debtors are residents of New Jersey.

It was accordingly concluded in the Continental case that there was “nothing in the statute which authorizes wages to be garnished when earned by a non-resident out of this state.” It is equally apparent that the solidity of the decision inheres in the finding that “there exists no such res in this state.”

We would have but little hesitation in declaring that decision inapplicable to the dissimilar circumstances of the present case, had the court not.simultaneously announced: “Non-resident garnishees are not mentioned in the statute, and we find no provision which attempts to give jurisdiction over them.” This expression of opinion cannot be evaluated as dictum. The application of the statute to non-resident garnishees, or the lack thereof, was a cogent and material point of consideration in the determination of the validity of the order under review. The annulment of the order of garnishment was evidently deemed imperative for two reasons, viz., the inapplicability of the statute to non-resident garnishees and the absence of a res within this State.

We arc aware of the field of the present appeal. While the factual circumstances of the Continental case and the present one are dissimilar as we have indicated, the question now before us is nevertheless essentially the same. It is not whether the Legislature could lawfully and constitutionally authorize the issuance of an effective order of garnishment in the circumstances of that or of the present case but whether the Legislature has endeavored to do so. It must be conceded that garnishment as known in the law is the creature of statute. If, as determined in the Continental case, the Legislature has not attempted to embrace within the existing statute non-resident and foreign corporate garnishees, our views concerning the power to do so would be merely declaratory. But see, 10 Fletcher, Cyclopedia Corporations (Perm, ed.), §§ 4735 ei seq.

Therefore to sustain the propriety of the orders under review, we are in actuality importuned to overrule at least in part the decision rendered in the Continental case.

It is not the judicial policy to overule a decision construing an act of the Legislature where the Legislature has held several sessions since the rendition of the decision without by means of supplement or amendment manifesting an intention to eradicate the construction theretofore judicially ascribed to the act. 14 Am. Jur. 287, Courts, §§ 66 et seq., and citations.

Legislative silence and inaction generate an inference of a tacit acquiescence that the judicial construction is proper and in accord with the legislative intention, for if otherwise, the legal presumption is that the terms of the statute would be so changed by the Legislature as to exclude the known construction and to effectuate the true intention. The presumption is the stronger where the Legislature has, as here, since amended the statute without disturbing the terms of the former act which received the judicial construction. Eckert v. New Jersey State Highway Dept., 1 N. J. 474 (1949); Ross v. Miller, 115 N. J. L. 61 (Sup. Ct. 1935); Lewis’ Sutherland Statutory Construction, § 499.

We refrain from indicating what our opinion might be concerning the construction of the statute if the question were now an open one. Our power to disagree with a decision of the former Supreme Court is not in doubt, but we perceive the analogical applicability of the established rule that where a decision upon a point of law has been made upon solemn argument and after mature deliberation, it ought not to be disturbed by the court in which it was promulgated, except for very urgent reasons and upon a clear manifestation of error. Bowman v. Freeholders of Essex, 73 N. J. L. 543 (E. & A. 1906); Freeholders v. Jersey City, &c., St. Ry. Co., 85 N. J. L. 179 (E. & A. 1913); Jersey City v. Blum, 101 N. J. L. 93 (E. & A. 1925); Fraser v. State Board of Education, 133 N. J. L. 597 (E. & A. 1946).

Assuming from the inaction of the Legislature that the statutory meaning as judicially construed is in accord with the legislative intent, assuredly a present judicial expansion of the statute to include non-residents and foreign corporations as garnishees would amount to judicial legislation and in essence would constitute the exercise of a legislative function by the court. Singer Sewing, &c., Co. v. N. J. Unemployment, &c., 128 N. J. L. 611 (Sup. Ct. 1942); affirmed, 130 N. J. L. 173 (E. & A. 1943); Eckert v. New Jersey State Highway Dept., supra.

In the situation presently existing, we are of the opinion that any augmentation of the statute as heretofore judicially construed is appropriately a matter within the province of the Legislature. Vide, Gold v. Housatonic R. R. Co., 67 Mass. 424 (Sup. Jd. Ct. 1854), in association with National Bank of Commerce v. Huntington, 129 Mass. 444 (Sup. Jd. Ct. 1880). Note amendment of act mentioned in Feinman v. Marks, 294 N. V. 367, 62 N. E. 2d 606 (Ct. App. 1945).

The orders under review will be set aside. No costs.