author: Preund, J.

text:
    Second District Court of the City of Newark.
    CHARLES GUENTNER, Jr., PLAINTIFF, v. DISCOUNT COMPANY OF AMERICA, A CORPORATION, AND JOSEPH SMITH, DEFENDANTS.
    Decided February 2, 1934.
    Por the.plaintiff, Jacob 8. Glideenhaus.

    Por the defendants, Dixon Spealeman.

      Amicus curia¡, William A. Wachenfeld, prosecutor of the pleas, by special assistant prosecutor, Leon W. Kapp.

   Preund, J.

The default existing at the time the car was taken was $5.55. In addition to that, before the conditional vendee may retake his car, he must pay a reasonable sum for the expense incurred in the process of retaking. In each instance what would be a reasonable sum would depend upon the reasonable work involved, necessitated by the retaking. Each case, under those circumstances, will have to stand on its own feet.

In this particular case it is apparent that the defendant knew where the plaintiff in replevin resided. I am satisfied the plaintiff kept his car there before he left in the morning and after he returned in the evening. The evidence before me discloses the time to be approximately up to nine in the morning, and after six in the evening, excepting those evenings on which he went out. The bailiff charged with the taking of the car explains that for several days after trying to iind the plaintiff at the place he was informed was the place of business of the plaintiff, he traveled about trying to discover the car upon the highway. I am satisfied he knew where he could have taken that car; there was no reason for traveling about. That may be a prevailing method of taking cars; it may be a convenient method so far as the bailiff is concerned; but to work out his own convenience at the expense of the conditional vendee cannot be permitted. There is no reason for it. The act of finding the car, unguarded, and carting it off, without going to the place where he could ordinarily get the car, affording him the opportunity of taking the car without the possibility of a tender being made, does not impress me. He could have taken that car by using reasonable diligence, at the home of the plaintiff. He saw fit to take it when the plaintiff was not present. He was motivated by the idea of taking the car when the plaintiff was not present.

He did not diligently perform his duties by going at a reasonable hour to the home of this man and taking it. The statute anticipates a fair relationship between the parties. It would be legal principle to determine that the statute anticipates that there be a demand for the sum in defualt, as is the ruling of the courts in the garage lien cases. The statute specifically anticipates certain circumstances. The construction of that act (garage lien) by the courts is to the effect that there is no lien created until there is a refusal to pay, nor a right to take possession by virtue of the lien until after demand for payment has been made.

I think it is essential to my determination at this time to decide whether or not, before the right to repossession by the conditional vendor arises, there must be a demand. It is quite certain that before repossession, a tender of the balance due under the terms of the contract—that is fairly to be construed the installment due at the time of the default—and the pajrment of a reasonable charge for repossession, gives rise to right to repossession. The reasonable charge depends upon the circumstances in each particular case. I am satisfied, where diligence afforded the bailiff an opportunity to retake by going to the vendee’s home, he should have done so.

There was some suggestion here that the process of running the business entails a cost for putting into operation the machinery for retaking. I am mindful of the fact that in the agreement between the parties there was a $52.50 charge made. I am cognizant of the testimony of the manager of the company to the effect that in the chart arrangement for charges made, there is an anticipatory charge for expenses incurred in retaking cars and tlie loss involved. A method of calculation or a strict bookkeeping analysis of the system is not essential. I am satisfied that $52.50 is quite a substantial charge, and embraces the expectations and the possibilities of' the risks of their business. It includes a general standard charge for the cost involved in retaking all cars. Surely there is ample there; irrespective of how the conditional vendor allocates its charges, not to warrant a $25 fantasy to be added to the charges already made, as a charge for the retaking.

I am satisfied there was a demand upon the bailiff Smith, who was in possession of the car, for the return of the car upon the tender of $10 for services, plus $5.55, plus $4.60. I am satisfied at the same time, it was made to Mr. Heiman by several of the witnesses here—Mr. Kapp, Mr. Glickenhaus and Mr. Guentner. I am satisfied that Smith demanded $25 for the retaking. I am satisfied that Mr. Heiman spoke to Mr. Kapp, Mr. Glickenhaus and Mr. Guentner. Mr. Guentner made arrangements to speak to some man in response to a telephone call, and I am satisfied the demand was made by Mr. Heiman, and that the demand made by Mr. Smith was with defendant’s permission and approval, and that the demand of $25 was unreasonable under the circumstances.

There having been a tender of the amount in default and a reasonable sum for the retaking, the refusal to return the car thereafter was an unlawful detainer.

There will be judgment for possession against the Discount Company of America and Joseph Smith of the chattel demanded in the writ, and a judgment of $50 for unlawful detention. There will be a $10 counsel fee under the Eeplevin act for counsel for the plaintiff.


source: Caselaw Access Project

author: Hartshorns, J.

license: Public Domain

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF JANE A. McCABE, DECEASED.
    Decided February 23, 1934.
    For the petitioners, John M. Emery.

    For the respondent, Henry J. Camby, proctor for Laura J. French, co-executrix.
   Hartshorns, J.

This is an application by two sisters, co-executrices of their mother’s will, to remove a third sister, also a co-executrix of such will, from her position as such, under section 149 of the Orphans Court act, as amended in 1921. 2 Cum. Supp. Comp. Stat., p. 2625. Petitioners charge, as bases therefor, various acts of the respondent both before and after her qualification as executrix. Respondent insists that no acts previous to her qualification can be considered under the statute, and that bad faith therein is essential for her removal.

The statute cannot be so construed. It gives the court discretionary power to remove on various grounds, among which are that such executor “has failed, neglected or refused to properly perform his duties as such executor * * * or has failed, neglected or refused to join with the other executors * * * in the administration of the estate committed to their care.” It would be quite unreasonable to construe these clauses as having an identic meaning, i. e., one being pure pleonasm. The only reasonable construction is to view the first clause as referring to the acts of an executor occurring after his qualification, the second clause as referring to his acts occurring before qualification but after the estate had been “committed to their care” by the will itself upon the death of testator. Thiefes v. Mason, 55 N. J. Eq. 456, 460; 37 Atl. Rep. 455; Mackey v. Mackey, 71 N. J. Eq. 686, 688; 63 Atl. Rep. 984. Furthermore, in view of the fact that neglect, as distinguished from refusal, is a ground for removal, it is clear that bad faith is not an essential factor. The executor’s conduct, whether with or without bad faith, must show him to have been “flagrantly derelict.” In re Hanretty’s Estate, 2 N. J. Mis. R. 55; 96 N. J. Eq. 716; 125 Atl. Rep. 563.

Petitioners, in asking for respondent’s removal, rely largely upon a series of proceedings taken in this court by respondent, on caveat, and on various exceptions to account, as indicating her failure, neglect or refusal to perform her duties. True, in certain conferences and for a considerable period during the course of such litigation as to the administration of the estate, respondent stood rather firmly on what she and her counsel deemed to be her rights, and on at least one occasion she appears to have made unjustifiable threats of reprisals, for what she mistakenly deemed to be petitioner’s unjustifiable denial of her rights. But she took no steps whatever to carry out such threats, and they were doubtless but the human result of the bitter feelings that had existed between the three sisters for several years. These feelings were fully reciprocated, and had reached such a point that petitioners, though not respondent, in open court refused to consider the suggestion of the court, that all parties stop ■wasting their inheritance in riotous litigation, both in this state and in New York, and confer together, to see if there were not some terms on which they could compose their differences.

In general, however, respondent’s unsuccessful applications to this court constitute the main grounds alleged for her removal. Note, then, her failure to promptly proceed with her duties is not due to her willful contemning of the orders of the court, for she has been practically continually before this court on her own applications for a year or more. Further, while there may well have been bad blood between the three sisters, it cannot be successfully claimed that her applications were filed in bad faith, purely to cause petitioners unjustifiable delay and expense in the administration of the estate. If such had been her purpose, she would not have either limited her appeal from the court’s decision on her caveat, or ultimately have dropped such appeal, but would have adopted that all too ready method of delay—an appeal, first, to the Prerogative Court, and thence to the Court of Errors and Appeals.

True, her applications were all denied, in one instance because she had not chosen the proper forum, and in others on the merits. But the incorrectness of her judgment as to the merits of her claims, when acting upon the advice of counsel, hardly show her to be “flagrantly derelict” in the. performance of her duties as executrix, even where, on a mere counsel fee application, she is found not to have had “reasonable cause” to litigate. She there acted upon the advice of counsel, and, furthermore, in view of the bitter feelings that had long been engendered between her and her sisters, it was as natural for her to look with suspicion upon her mother’s will, changed to her detriment from its original provisions, after her mother had been closely associated with her sisters but not with her, as it is now for her sisters to look with suspicion upon her acts in protecting her alleged rights in court.

The thought of testatrix in appointing all three sisters as executrices was doubtless to protect each in their approximately equal share in the estate. To remove respondent from such position for the above reasons, at a time when the other executrices are, to say the least, not disposed to look with favor upon her and her claims, would be an unjustifiable violation by the court both of the intentions of testatrix and of respondent’s rights. However, should further difficulties arise in the administration of the estate, prompt application for relief may be made to this court, at the foot of the order to be entered herein in accordance with this opinion. In view of the situation in this controversy, and the litigious leanings of the parties, no counsel fees or costs will be awarded either side.

As to the application to reopen the hearing on the caveat, such comes too late and will be denied. In re Roberson, 95 N. J. Eq. 672; 123 Atl. Rep. 721; Locher v. Locher, 111 N. J. Eq. 123; 163 Atl. Rep. 646.


author: Per Curiam.

text:
    HELEN BERLINGER, PETITIONER-RESPONDENT, v. MEDAL SILK COMPANY, RESPONDENT-PROSECUTOR.
    Submitted October term, 1933
    Decided March 1, 1934.
    Before Brogan, Chief Justice, and Justices Trenchabd and Heher.
    For the petitioner-respondent, Nathan Rabinowitz, Isadore Rabinowitz and Marcus & Levy (Isadore Rabinowitz, of counsel).
    For the respondent-prosecutor, Joseph G. Paul.

   Per Curiam.

This writ of certiorari was allowed to review an order made by the Passaic County Pleas, affirming an award for compensation allowed by a deputy commissioner of the workmen’s compensation bureau.

Petitioner was an employe of the defendant. She suffered an injury while she was in its employ and an award was made in her favor.

Three points are raised, one, that the condition suffered by the petitioner was not the result of an accident arising out of and in the course of the employment. We think the evidence in the case was ample to justify the finding of the deputy commissioner that the injury to and subsequent condition of the petitioner was the result of an accident that arose out of and in the course of the employment within the meaning of our statute.

The second point, that there was no cansal relation between the accident and the petitioner’s injury, calls for the same answer. The case on these issues was one of fact and there was a plentitude of testimony sufficient to fully justify the commissioner’s finding in this respect.

As to the third point made, that the employe did not sustain any accident, it is sufficient to say that the testimony overwhelmingly supports the view that she did and, therefore, the writ attacking the order made in this ease will he dismissed.


author: Porter, C. C. J.

text:
    Essex County Circuit Court.
    IN RE APPEAL OF VARIOUS PROPERTY OWNERS TO BENEFIT ASSESSMENTS FOR LOCAL IMPROVEMENTS FOR THE OPENING OF RAYMOND PLAZA WEST, MARKET STREET TO RIVER STREET, NEWARK.
    Decided March 19, 1934.
    For the objectors, Hannoch S Lasser (Herbert J. Hannoch and Aaron Lasser), Harrison A Roche (J. Henry Harrison and E. 8. Sanford), Riker ,& Riker (Theodore McCurdy Marsh), John M. Emery, Joseph 8. Zemel, George J. H. Werner, Osborne, Cornish & Scheck, Joseph L. Lippman, Bcholland & Schotland (Philip J. 8chotland), Ernest L. Quackenbush, Frank Cozzoline, Howard Isherwood, Peter A. Cavicchia, Nicholas W. Kaiser, Jr., Kanter <& Kanter (Louis C. Jacobson), Marder As Okin (Aaron Marder), Arthur T. Vanderbilt (H. Edward Toner), Henry Young, Jr., McDermott, Enright A Carpenter (Carl 8. Kuebler).

    For the city of Newark, Vincent J. Cósale.

   Porter, C. C. J.

There is before this court for confirmation the report of the Newark board of commissioners of assessments for local improvements concerning the opening of a new street. The new street is called Eaymond Plaza West and was opened through property lying between Market street and River street, a distance of about four hundred feet and a width of about one hundred feet. The report is dated November 23d, 1933.

Under date of December 18th, 1933, the report was confirmed by order of this court, except as to certain objecting property owners, sixty-three in number, whose names and location of properties appear in said order. Of those so objecting and appearing at these hearings, testimony was taken concerning some eighty separate assessments aggregating $173,659.

The report shows that the entire cost of the improvement amounted to the sum of $1,459,635.44, divided as follows:

“Amount assessed on property owners ..... $216,966.00
Amount assessed on city property......... 96,329.00
Property benefited but exempted by agreement, city of Newark-Pennsylvania Railroad .............................. 107,319.00
Amount paid by the city of Newark....... 1,039,021.44.”

It will be observed from these figures that the city was to actually receive in money against the cost of this improvement the amount “assessed on property owners,” $216,966. Deducting the sum of the assessments of the objecting owners, the subject-matter of these proceedings, $173,659, there is left the relatively small sum of $43,307 assessed against non-objecting owners. Thus it is apparent that the objection to the assessments is very general and widespread among those affected.

The paramount question raised by these proceedings is whether or not the assessments are just and fair.

From the overwhelming weight of the testimony, I must conclude that they are neither just nor fair.

To sustain these assessments, the testimony must establish these facts:

First—That the lands in question have received a peculiar benefit, advantage or increase in value.

Second—Such benefits must be present and immediately accruing from the construction of the work, tested by the influence of the improvements on the present market values.

Third—There must be a methodical and equitable basis for the assessment if benefits are present.

With respect to this last mentioned requirement, the method used by the commissioners on the whole was proper, assuming that there were, in fact, any benefits.

A graduated scale was used which represented the judgment of the board as to the scale of benefits or measure of increment of land values per front foot, consideration being given to plottage, &c., and fixing the greater increases of value at the lands nearest the improvement and decreasing the scale of increase as the distance increased from the starting point. This method, however, was not properly carried out in that the land represented by the new state highway, route 21, which runs directly through the property within the zone of the area of benefited land, at about the center of it, was disregarded. So that all lands to the west of the highway were deprived of the extra distance the same were away from the improvement to the extent of the width of the highway, about one hundred feet.

That method was not used, however, with respect to lands immediately fronting on the improvement and which, by reason of it, acquired new street frontage. It may be that the method used as to those lands was correct in principle. Nevertheless, confirmation cannot be given of same because of my conclusion as to the balance of the lands.

The difficulty I have with the entire report is that it is based on an erroneous judgment, namely, that there was an increase of values of these lands because of this new street.

That this opinion of the commissioners is not based on anything but theory, hope and expectation is inescapable upon consideration of the testimony.

But one of the three commissioners who made the assessments testified. He was exhaustively examined and gave in great detail the method used in the assessment of each piece-of property of the objectors. His testimony was frank and clear, and he doubtless gave all the information he had. But aside from the figures used and methods employed, his testimony on the vital question of the increase in values was of practically no help whatsoever. He repeatedly said that the commissioners had information as to land values before the improvement. Where that information came from and on what it was based was left largely to conjecture. Nevertheless, he said that those values were correct in the judgment of the commissioners. Then, again, he said repeatedly that the values were not the basis of the assessment because, irrespective of the values, their judgment was that the lands had increased in value to the extent of the graduated rates of increase of all properties within the boundaries of the established zone. Therefore, the only need for the values before the improvement was to add the calculated increased value to the base rate in their possession.

Whether the basic values were used in making the assessments or not, it seems quite clear that, at least, this member of the board was possessed of no personal experience with or knowledge of values on which it would be possible for him to form any sound judgment of the same. It does not follow, however, that neither he nor his colleagues on the commission, from a study of this improvement, could not have formed an opinion on which to base a judgment as to whether or not any lands were specially benefited.

The commissioners need not have been experts on real estate values or even experienced men of affairs. But this court, in reviewing their acts, must take into consideration the knowledge and qualifications of the commissioners in order to ascertain the basis on which their judgment was made. The commissioners cannot say, “we studied the matter and concluded the values were increased to such and such an amount," without giving reasons for their judgment. Eeasons, in fact, were given by this witness, which, he said, were the reasons on which not only he but the other commissioners acted and which formed their judgment.

Those reasons or factors were but two. Increased traffic which would pass the properties in the zone by reason of this new street. This was of very minor importance, in percentage about five. The major and controlling factor, making up ninety-five per cent., the witness said, was the general toning up of this entire area by reason of the change brought about by the necessary removal of old and dilapidated buildings to open the new street, hollowing this toning up process, he testified, would come a higher use of the land, a more profitable use; for instance, the establishment of hotels, theatres, retail stores of a better class than those now there.

This assessment was made during the summer of 1933 as of the end of 1931 and the beginning of 1932. It is now more than two years since the improvement and the time of the assessment. No such conditions as he pictured, as yet, have been realized. His only answer to that was that the possibilities are there. He insisted that the assessments were made only for the peculiar benefits to the land by reason of the opening of this new street and that the fact of the new Pennsylvania station fronting on the new street, as well as other changes incident to that great improvement in the immediate locality, were entirely left out of consideration.

Within this zoned area and just outside of it are other improvements and changes, made or contemplated, which cannot fail, it seems to me, to be vital factors with respect to land values and changes of uses of the property, which must follow sooner or later. I refer to the new Pennsylvania railroad .station and the necessary changes in traffic conditions by reason thereof; the underground railway on the bed of the old Morris canal; the opening of Raymond Boulevard above it; the opening directly through this area of a state highway, route 21; the removal of the farmers5 market place, between Raymond Boulevard and Commerce street; the widening of Mulberry street just outside of' this zone, and the contemplated widening and extension of Edison Place, also just outside of this zone.

WhiJe it is true that all of these changes are not being done at the same time, still, they are, as far as effects on land values, all so closely related to each other as to make it difficult, t) say the least, for anyone to separate them with respect to land values covering land generally in the entire section or in a large part of it. But assuming that it is possible to do so, the question remains whether or not it was done in the instant case. I believe not. The toning up, if any, comes as much from the new railroad station project as from the new street. If there was to be no new station, or if it was not located on the new street, the toning up factor would be lessened considerably, if not entirely eliminated.

There is, of course, a presumption of the correctness of the assessments. The proof of their erroneousness should be clear before the assessments be disapproved. Board Chosen Freeholders, &c., v. Paterson Avenue, &c., Road Commissioners, 41 N. J. L. 83. Had the case rested on the testimony of the commissioner, this presumption might well be said to have been overcome.

Be that as it may, there was an abundance of proof by landowners and experts of recognized standing, ability and wide experience to the effect that there was no increase in values at all, except as to lands actually fronting on the new street. This testimony was widely at variance with that of the commissioner on practically all phases of the case. Moreover, their testimony was based not only on wide experience and in part on expert knowledge, but, what seemed to the court, on sound reasoning. Ample consideration was given by them of the effect of the general business depression on land values and decreased rentals with respect to this zoned area and outside of it.

It may well be that land values will increase in this area, or part of it, by reason of this new street, independently of the new railroad station and other improvements referred to in that locality. It may also well be that any such increased values may have been retarded by reason of the general business depression. Nevertheless, we cannot speculate or guess what may happen some day.

The benefits must be immediately accruing, tested by the influence of the improvement on the present market value of the properties. State, N. J. R. & T. Co. v. Elizabeth, 37 N. J. L. 330; State, Kellog v. Elizabeth, 40 Id. 274; State, Morris v. Bayonne, 53 Id. 299; 21 Atl. Rep. 453.

There were various questions raised by some of the objectors as to the legality of the assessments. In the recent case, In re Mulberry Street, 11 N. J. Mis. R. 295; 166 Atl. Rep. 447, Judge Mountain said:

“On an appeal from such an assessment, the Circuit Court is to determine whether the action of the commissioners has resulted in a just and fair assessment or award.” Pamph. L. 1925, p. 242.

“This limitation makes it improper for the court to inquire into the legality of the assessment. For the purposes of this appeal, it is assumed that the commissioners of assessments observed the statutory requirements, and failure to clo so might have been tested by certiorari.”

I am accord with that view and shall follow it.

For these reasons, the report is returned without continuation.


author: Siegler, J.

text:
    Essex County Juvenile and Domestic Relations Court.
    BESSIE RICH, COMPLAINANT, v. WALLACE D. RICH, DEFENDANT.
    Dated March 4, 1934.
    Eor the complainant, Thomas Brunetto.

    Eor the defendant, Nathan A. Whitfield.

   Siegler, J.

This action is based on a complaint under the-second section of an act entitled “An act to establish Juvenile and Domestic Relations Courts, defining their jurisdiction, powers and duties and regulating procedure therein” (Revision of 1929; Pamph. L. 1929, ch. 157, pp. 274, 275), alleging-that the defendant has failed and neglected to support the complainant and their child for several years. The second count of the complaint is brought under an act entitled “Art act for the settlement and relief of the poor.” Pamph. L. 1924, ch. 132, and the supplements thereto and amendments thereof. The evidence is more directly confined to that part of the complaint which embraces the first count, and for that reason it will be discussed first.

The complainant is required, in order to succeed in this action under the first count, to bring her proof well within the provisions of the Juvenile and Domestic Eelations Court act, supra, which is set forth in the following language. Pamph. L. 1925, p. 275 :

“It shall have jurisdiction to hear and determine in summary manner, disputes involving the domestic relation where the gravamen of the complaint is the failure to provide support or adequate support.” (Italics mine.)

I find the following facts to be established:

Complainant and the defendant were married on April 15th, 1922, at Houston, Texas. Complainant is a graduate nurse and the defendant is a practicing physician. After their marriage they both practiced their respective professions and lived by their joint earnings.

The defendant experienced considerable difficulty in making a permanent domicile where he could build up his own medical practice, and therefore went from place to place as resident physician, obtaining employment on several occasions at mental hospitals.

Ho children were born of this union. Complainant and defendant, however, appeared to have had a great desire to complete their marital happiness, and proceeded to obtain a child from a child-caring institution, with the intention of adopting the child and making it part of their own family responsibility. On October 27th, 1924, the complainant and defendant entered into an agreement with the Children’s Home Society of West Virginia to take an infant then with the institution, and agreed to faithfully provide for its well-being, physical, mental and moral, in all respects as their own child, or return the child to the custody of the society. Shortly thereafter the terms of the agreement were put into effect and the child contemplated under the agreement was placed in the custody of both of these parties and remained with them until 1925, when by arrangements suitable to this defendant the child was left with a Mrs. Murphy of New York City, mother of the complainant, where the child has ever since resided, and bjr whom he has ever since been supported and maintained.

The complainant and the defendant lived quite happily together for the greater part of their married life, the complainant keeping the center of the stage, so to speak, she being able to earn more than her husband. For a long period of time, until 1929, she was furnishing the entire income which went for the care and maintenance of both the complainant and the defendant.

On January 15th, 1929, the defendant obtained a position as resident physician at the Essex County Hospital at Over-brook, New Jersey, at a salarjf of $200 a month and maintenance, which has since been increased to $220 a month and maintenance. The complainant at that time was employed as a nurse at White Plains, New York, and continued to be so employed, without any provision being made by the defendant for her support and maintenance, or for a definite place for both of them to live, either at the hospital or away from it. I take it that the defendant desired his wife to continue nursing and depend upon her own exertions for support, for there is nothing in the evidence that indicates in the slightest degree a desire or an effort on his part to contribute to the support, maintenance or care of his wife after he obtained this employment at the Overbrook Hospital. In fact, he permitted his wife thereafter to live with her mother in New York City and at Asbury Park, New Jersey, without any request or demand on his part to have his wife make her home with him.

There is nothing in the evidence to indicate that there was any substantial disturbance or dissatisfaction existing between the complainant and the defendant, except that the defendant was satisfied to leave well enough alone, and so long as he was not disturbed in his peace and quiet, he was content and satisfied with this method of living. This attitude is supported by the defendant’s letter (Exhibit C-2) dated May 20th, 1929, in which he writes to his mother-in-law, Mrs. Murphy, expressing the kindliest feeling and interest for his wife, child, and family in general. There is evidence that the complainant expressed on many occasions the hope that she and the defendant would live together, indicated a definite desire to live with him when he was ready to receive and provide for her. Something happened at this time, however, which changed the whole situation between these parties. In the early part of August, 1929, the complainant met with a very serious automobile accident in Asbury Park, Hew Jersey, from which she suffered a severe concussion of the brain and was confined in an Asbury Park hospital for about four weeks. The defendant, upon getting notice of this immediately took charge of the matter and rendered such aid and advice as the occasion demanded. He finally determined to remove complainant from this hospital, and at his direction and under his personal supervision the complainant was brought to the Essex County Hospital at Overbrook, where the defendant was living and employed. She remained as a patient at this hospital until March, 1930, during the whole of which time the defendant was with her, directing and advising the necessary medical care that she required. Complainant thereafter with the defendant’s approval was removed to the Heurological Hospital in Hew York City, where she was placed under treatment for several weeks during which time the defendant visited her. The defendant, instead of making arrangements to take his wife back to his place of abode, took no further part or interest in the care of his wife, and permitted her to shift for herself. Finding herself without her husband’s invitation to go home with him, and having no other place to go, her mother, Mrs. Murphy, undertook the responsibility of having her come to her home in Hew York City, where she has lived ever since, except for a few days in Hovember, 1933, when she attempted to make her home in Caldwell, Hew Jersey.

The complainant was determined to live with her husband at the Over brook Hospital, and in July, 1930, went there with her belongings, with the intention of staying with her husband, but he failed to provide the necessary accommodations, and she was again obliged to go back and live with her mother in New York City.

In April, 1931, the complainant in this action instituted a suit in the Court of Chancery charging abandonment under the twenty-sixth section of the Divorce act. The defendant denied the abandonment and set up a counter-claim praying for divorce on the ground of desertion. The matter was referred for final hearing to Advisory Master Yan Winkle, who heard the case in June, 1933. The bill of complaint was dismissed without prejudice, and the defendant’s petition for divorce was also dismissed without prejudice. One week later the complainant came to the Overbrook Hospital, where her husband was living and employed, and brought her personal belongings, with the intention of staying with her husband and resuming her marital relationships. He refused to accept her and peremptorily dismissed her in the following language, “no you cannot live here.” Dr. Payne, the superintendent of the institution, spoke to the defendant. The complainant said that she was determined to stay, and the defendant said, “well, I will call the police and put her out. I will not have any disturbance in the hospital. I cannot lose my position.” There she was with one of two alternatives—either to stay there and subject herself to arrest by the police, as the defendant threatened, or to leave the hospital peaceabfy and content herself with returning to her mother’s home. She adopted the latter course. This action was commenced the November following.

It is well at this point to clearly understand what a marriage relationship should mean to persons who assume this sacred responsibility. Marriage carries with it definite obligations and responsibilities. It is that act by which a man and woman unite for life with the intent to discharge toward society and one another those duties which result from the relation of husband and wife. It is frequently said in this country that marriage is nothing more than a civil contract. That it is a contract is doubtless true to a certain extent, as the law always presumes two parties of competent understanding enter into a mutual agreement which becomes exerated, as it were, by the act of marriage. But this agreement differs essentially from all others. This contract of the parties is simply to enter into a certain status or relation. The rights and obligations of that status are fixed by society in accordance with the principles of natural law, and are beyond and above the parties themselves. They may make settlements and regulate the property rights of each other, but they cannot modify the terms upon which they are to live together, or superadd to the relation a single condition. Being once bound they are bound forever. Mutual consent as in all contracts brings them together, but mutual consent cannot part them. Death alone dissolves the tie, unless the legislature, in the exercise of a rightful authority, interposes by general or special ordinance to pronounce a solemn divorce. So in other respects the law of marriage differs from that of ordinary contracts. Likewise here, so long as the marriage relationship exists, there is a common law responsibility imposed upon the husband to support and maintain his wife and family if he is able to do so. This duty of the husband to support his wife does not rest on contract but springs from the matrimonial relation. This is based on considerations of public policy. See Irwin v. Irwin, 88 N. J. Eq. 139; 102 Atl. Rep. 440; affirmed, 88 N. J. Eq. 596; 103 Atl. Rep. 1052; Boehm, v. Boehm, 88 N. J. Eq. 74; 101 Atl. Rep. 423.

The defendant’s main contention is that the dismissal of •complainant’s bill for maintenance in the Court of Chancery was res adjudicata of her rights here, and therefore this complaint should be dismissed. Assuming, but not admitting that this statement is a correct pronouncement of the law, it must be noted that the bill in the Court of Chancery for maintenance under the twenty-sixth section of the Divorce act was dismissed without prejudice against the complainant, and while all matters pertaining to that action are considered disposed of, it does not include any matter or action that may arise since the dismissal of the bill. Dowling v. Dowling, 93 N. J. Eq. 159; 150 Atl. Rep. 378. Upon the dismissal •of the complainant’s bill in the Court of Chancery, every cause of action which was matured at the time she filed the bill was res adjudicata. This also applies to the defendant’s petition for divorce, which was likewise dismissed without prejudice. And further assuming that this rule is applicable to an action like this one under consideration, this rule does not apply to any new rights that may accrue to the complainant since the dismissal of the bill, because these are without prejudice. If it can be said that the complainant up to and including the time of the filing of her bill in the Court of Chancery was not entitled to relief under the twenty-sixth section of the Divorce act, then certainly when she offered herself back to her husband in June, 1933, to live with him as husband and wife, and this offer having been made in good faith, she certainly had restored the marital status and succeeded in converting that which appeared to be a breach of that status by her into a performance which would entitle her to be restored to all her rights and privileges as the wife of the defendant. And if this defendant took it upon himself to refuse to admit her into the marital relationship as she demanded, and to which she was entitled under the existing law, he became the wrong-doer from that time on and not the complainant. Having failed to support her since that time, in addition to having refused to permit her to live in his home with him, the desertion is his since that time and not hers.

This discussion is with relation to the rights of these parties under the Divorce act, which it will be noted is a different kind of a remedy than that which is contemplated under the act which is being considered now. The objective under the Divorce act is to obtain a dissolution of the marriage, which would terminate the relationship between the parties, while under this act it is intended that the common law liability of a husband to support and maintain his wife and family shall continue until there is a dissolution of the marriage status in a court of competent jurisdiction. Examining authorities on this problem I have found very apt language which supports this principle in Bates v. Bates, 2 N. J. Mis. R. 400. Vice-Chancellor Learning, dealing with a similar situation, except that he was deciding an action under the twenty-sixth section of the Divorce act, held:

“I am unable to see how there can be any denial by the court of the complainant’s demand for support without overruling the Court of Errors and Appeals, and that I never knowingly attempt. The Court of Errors and Appeals has said, and said very emphatically, that the common law obligation of support resting upon a husband is a dual obligation, lie owes it to his wife and he owes it to society, and that obligation, the courts say, persists and continues—to use the exact language of the court, ‘unless and until’ the husband shall divorce her. In the overruled case, in which that comment was made by the Court of Errors and Appeals, the woman had been admittedly living in open adultery with another man; the husband had not seen fit to procure a divorce from her, which ho could have procured, and yet the Court of Errors and .Appeals determined that, unless and until he should procure a divorce from her, he must provide for her support. If a husband doesn’t wish to provide for the support of his wife, it would seem that he must procure his divorce and thus terminate his common law obligation of support. Two early decisions in this state had been referred to in the overruled case, which held that a husband was not obliged to support his wife if she refused to live with him and share his home. As to those cases the Court of Errors and Appeals intimated a disapproval by characterizing the rulings as obiler diclum.” See Van Ostin v. Van Ostin, 2 N. J. Mis. R. 897.

It therefore follows that if the defendant has a cause of action under the Divorce act, that entitles him to a dissolution of the marriage, he cannot by delaying the enforcement of that right deprive his wife of the right of support, for only upon dissolution of the marriage does his responsibility to support her cease. Bates v. Bates, supra.

Finding as I do (1) that the complainant has stood ready and willing to live with her husband and perform her marital responsibilities; (2) that she has committed no matrimonial offense which justifies the defendant in withdrawing from the marital relationship; (3) that the marriage relationship between these parties exists; (4) that the defendant has failed and neglected for several years to support and maintain the complainant, and (5) that the defendant has failed adequately to support his wife, the complainant has established her ease against the defendant on the first count and is entitled to the relief prayed for.

Having found as I do in favor of the complainant on the first count, it is not necessary, for the purpose of this action, to make any determination with regard to the second count. Whatever relief the complainant is entitled to she will he adequately cared for under the first count.

With respect to the support of the child, I find that the responsibility for the last few years and at the time of this action was assumed by Mrs. Murphy, who is regarded by the child as the grandmother, and for the purpose of this action there is no duty upon complainant to support this child. The child is not in need, and the evidence has not satisfied me that he requires the support of anybody but the person who is now taking care of him. There will be no allowance for the support of the child.

In fixing the amount for the support of a wife, we are governed by the principle that the support which the husband must furnish is such as is reasonable and suitable to his condition and station of life and according to his means. The common law duty of a husband to support his family has not been changed by the legislation relating to married women, nor is he relieved from liability because the wife has adequate means of her own or a separate estate. This principle has been the universal rule and has been adopted by text writers. Madden on Persons and Domestic Relations (1931 ed.), 181; 30 Corp. Jur. 1102. The defendant earns $220 a month, and in addition receives lodging and maintenance. The complainant is in a highly nervous state, not at all capable of carrying on the arduous and exacting duties of a nurse, and therefore will be obliged to live on the award received here. I regard the defendant’s income as substantial justifying a fair share of this income to be applied to the support and maintenance of the complainant, so that she, too, can live in a fair state of security.

I accordingly find that the defendant pay to the complainant $60 per month, paj^able $30 on the 1st and $30 on the 16th day of each and every month, and will sign an order in accordance with these determinations.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DUDLEY L. HALL, PETITIONER, v. BESSIE W., WARD J. AND MUNSON G. DOREMUS, RESPONDENTS.
    Decided February 24, 1934.
    For the petitioner, McCarter & English (Richard J.. Congleton, of counsel).
    For the respondents, Cox ■& Walburg (Arthur F. Mead,. of counsel).
   * * * % * # ijc.

Upon the pleadings and the testimony adduced at the hearing, the following facts appear: On July 1st, 1933, and for a long time prior thereto, Dudley L. Hall, hereinafter referred to as petitioner, was employed as a farm laborer by Bessie W. Doremus, Ward J. Doremus and Munson G. Doremus, hereinafter referred to as respondents, who were the owners and operators of a certain farm situated in Towaco, Montville’ township, Morris county, Hew Jersey. His wages were $15-per week, and his hours of employment were nine and one-half per daj-, beginning at seven-thirty a. m.—six days constituting a full week. His duties were not specific but were of a general nature pursuant to the ordinary and usual farm work. On the above day, while so employed, petitioner went to a barn shortly after seven-thirty a. m. to assist in the unloading of a wagon of hay which had been left in the barn the previous night. Upon entering the barn, petitioner proceeded to arrange the rope and tackle which were to be used in hoisting the hay from the wagon to an upper loft of the barn. It so happened that on the morning in question a cow, which was about to give birth, had been placed in a box stall, used for that purpose and located in the extreme northeastern part of the barn just opposite where petitioner was preparing the tackle. The box stall consisted of four sides of approximately three feet in height, affording an unobstructed view of the whole interior of the stall to the petitioner and others standing nearby. Being the cow’s first born, the attendants encountered much difficulty in bringing about the delivery, and as an additional complication, it developed that the birth was a breech—instead of the normal method of head first, the calf was being born by hindquarters first. By reason of these unusual circumstances attending the birth, it became necessary to extract the calf by placing a rope around the hind legs of the calf and forcibly pulling same, causing the cow to moan, groan and bawl because of the pain, agony and torture as well as the hemorrhages which followed. Due solely to the observation of this ghastly and horrible sight, petitioner was overtaken by fright, fainted and collapsed, falling backwards and striking his head against the concrete floor of the barn. As a result thereof, he suffered a fracture of the skull which was followed by mastoiditis, and it is for these injuries that he brings the present proceedings to recover compensation. The testimony further discloses that one of the petitioner’s co-workers was also overcome by the gruesome sight but was fortunate enough to stagger out of the barn and to fall upon soft grassy ground without sustaining any injury.

The vital question for determination is whether these facts are sufficient to establish an accident arising out of and in the course of employment, within the meaning and purview of the Workmen’s Compensation act.

It is significant to note that the act is silent as to what constitutes an accident arising out of and in the course of employment. The definition of this phrase must therefore be left to judicial interpretation. Although there are many decisions of the courts of last resort in this state which have given such interpretation, I believe the rule laid down in Byrant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, clearly and fully defines the legislative meaning, viz.:

“An accident is an unlooked for mishap or untoward event which is not expected or designed. Whether an accident is expected or designed is to be judged from the victim’s point of view. An accident arises out of the employment when it is something, the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A risk is incidental to an employment when it belongs to or is connected with what the workman has to do in fulfilling his contract of service; it may be an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment. An accident arises in the course of employment if the employe is doing what a man may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time.”

Obviously, the language “accident arising out of and in the course of employment” points out a distinct and definite limitation. The words “arising out of” are clearly restrictive of the cons'1 ruction of the later words “in the course of,” for they necessarily imply a class of injuries eliminated from the operation of the act, even though incurred by the workman during the course of his employment. In other words, an accident suffered by a workman while pursuing his duties gives him in itself no claim for compensation under the act, unless some essential relation and connection between the employment and the accident appear.

The respondents oppose petitioner’s right of recovery on the ground that the accident was occasioned by fright and nervous shock due to his peculiar emotional makeup, and not by any risk or hazard growing out of his work, and as such did not arise out of and in the course of his employment. In support of their contention, respondents hare cited four cases occurring in this jurisdiction. Schuster v. Perryman Electric Co., 11 N. J. Mis. R. 16; 163 Atl. Rep. 347; Coslett v. Shoemaker, 38 N. J. L. J. 116; Smith v. Crescent Belting and Packing Co., 37 Id. 292, and Lynch v. Newman, Ibid. 17; but upon a careful examination and reading of these decisions, I am satisfied they have no applicability to the case under consideration. The Schuster case merely states the proposition that incapacity through nervous shock, fright and excitement, without accompanying physical impact, is not a personal injury by accident arising out of and in the course of employunent. The soundness of the Schuster ease, which was decided by the workmen’s .compensation bureau but never taken up on appeal, is seriously questioned because it apparently assumes false premises in the conclusion reached therein, namely in following the common law ruling in two New Jersey tort cases which hold that apprehension of personal injury not in fact received which is caused byr the negligent act of another,'will not support an action, even when physical suffering follows as a consequence of the fright; and in following a proposition stated in 1 Schneider On Workmen’s Compensation Law, 640, as follows:

“Fright without actual physical injury is not sufficient to sustain an award of compensation under the Michigan act.”

Since the Workmen’s Compensation act is a remedial statute which must be construed liberally in order to carry out its beneficent purposes, it would be placing a most strained and narrow construction if the common law rule governing tort were to be applied to injuries under the act involving shock to the mental system, fright, &c. Furthermore the Michigan ruling as above referred^ to has since been abrogated more than ten years later, and as such, was not the holding in Michigan as cited in the Schuster case. Klein v. Darling Co., 217 Mich. 485; 187 N. W. Rep. 400, reversing the previous Michigan holding, stands for the proposition that nervous shock under the Workmen’s Compensation act is an accident even though unaccompanied by physical trauma. Because the facts therein have a direct bearing on the case at bar, I briefly state them as follows:

“The widow and children of the claimant (appellee) made a case upon which the workmen’s compensation board found that Klein, the deceased father and husband, was employed and worked in what was known as the vat room where there were fumes from sulphuric acid, which were injurious to his health and caused him to suffer from a toxic and nervous condition. He had previously enjoyed good health. On January 3d, 1920, he dropped a radiator which struck another employe on the head rendering him temporarily unconscious, but before the latter regained consciousness the former (Klein) became obsessed with an impression that his act had caused the fellow employe’s death and remained so impressed until, within a few days, he died, apparently from nervous exhaustion according to medical testimony. The court held it an accident within the statute, and allowed an award of compensation to stand. Judge Wiest concurring, said: ‘An accident happened in which the deceased was an actor, and the shock to him was so great and so depressed his vital forces as to kill him. We must not overlook the man’s nervous system and mental makeup, and their intimate relation to his vital forces.’ ”

Taking up the three other cases cited by respondents which, by the way, are merely Common Pleas decisions, I find that the Coslett case furnishes little or nothing on the question of mental shock. The facts indicate that the claimant, while at work upon a temporary scaffold, constructed about a building for the purpose of erecting another building over it, was accidentally pushed off two beams upon which he stood, and fell upon a single beam and astride the same, suffering an injury to one of his testicles, resulting in its removal by surgical operation, followed by a nervous disorder described by the medical experts as: “traumatic neuresthenia.” Although compensation was granted the claimant for temporary disability, the court disallowed compensation for the loss of the testicle or for the neuresthenie condition. Obviously such a narrow and strained ruling is no longer followed in this jurisdiction. The Smith case and the Lynch case are cases which have no applicability on the question of mental shock; both being death cases wherein the court held the deaths were not the result of accidents arising out of and in the course of employment—that the decedents had lost their lives solely through new and added perils to which by their own conduct they exposed themselves, not through any peril which their contract of service, directly or indirectly, involved or at all obliged them to encounter.

It is urged by petitioner that his right to recover does not rest alone because of the fright, mental shock and excitement which resulted in temporary loss of consciousness, but also because of the fall which followed, causing actual physical injuries. Prom the facts in the case at bar it is obvious that the accident consisted of the fall and -the striking of petitioner’s head against the concrete floor; that the fright and fainting spell which preceded the fall were merely provocative and excitatory factors, caused solely bj7 conditions created by the very nature of the employment, viz., the unsightly scene to which petitioner was exposed to observation; and that the said accident arose not only in the course of employment but also arose out of the employment. While there must be some causal relation between the employment and the accident, it is not necessary that the circumstances leading up to the accident should have been foreseen or expected. The accident must, however, be one which, after the events, may be seen to have had its origin in the nature of the employment.

As previously stated the contention of the respondents rests upon the view that, by reason of petitioner’s emotional infirmity which caused him to faint and fall, the injury which he sustained as a result of the fall was one which had its source outside of and disconnected with his employment, and that his employment had no causal connection with the resulting injury.

A careful search of the decisions of other jurisdictions shows that the weight of authority is contrary to this view.

In Dow’s Case, 231 Mass. 348; 121 N. E. Rep. 19, the Supreme Judicial Court of Massachusetts had before it a suit under the Workmen’s Compensation act of that state. Exemption was claimed on behalf of the industrial board upon the ground that the workman had suffered a physical collapse by reason of which he fell into machinery with which he was working. That court held that the cause of the fall was the remote cause, and that the dominant and proximate cause of his death was the fall itself, which placed the body of the workman in such relation to the revolving parts of the machine as to cause death, citing other supporting Massachusetts cases, and announced its conclusion that the injury and death arose out of and in the course of the employment.

In a more recent ease, the same court had before it a situation more nearly in point. Cusick's Case, 260 Mass. 421; 157 N. E. Rep. 596. An employe fell upon a stairs during the course of his employment and sustained injuries from which he died. It was held that his death was compensable under the Workmen’s Compensation act notwithstanding the fact that the fall occurred during an attack of epilepsy. The workman died from a fracture of the skull resulting from the fall. The court held that, if the employe was not subject to epilepsy, and fell down stairs during the course of his employment, the dependents could recover compensation, and it reasoned that the fact that he suffered from epilepsy should not bar recovery, since the protection of the statute is not limited to employes who are in good health, and that the condition of health has no more to do with the question than the lack of ordinary care, or the employer’s freedom from negligence. Supporting its conclusion, the court quotes from another of its decisions (Madden’s Case, 222 Mass. 487; 111 N. E. Rep. 379), as follows:

“It is the injury arising out of the employment and not out of disease of the employe for which compensation is to be made. Yet it is the hazard of the employment acting upon the particular employe in his condition of health and not what that hazard would be if acting upon a healthy employe or upon the average employe. The act makes no distinction between wise or foolish, skilled or inexperienced, healthy or diseased employes. All who rightly are described as employes come within the act.”

A similar question was before the Supreme Court of Connecticut in the case of Gonier v. Chase Companies, Inc., 97 Conn. 46; 115 Atl Rep. 677. There the very concise question presented was whether the death of the workman resulted from a fall from staging about eleven feet above the surface, caused by temporary unconsciousness due to disease, constituted an injury arising out of his employment. In the consideration of the question that court reviews numerous cases, as a result of which it announces its conclusion: “* * * that the danger of falling and the liability of the resulting injury was a risk arising out of the conditions of his employment; that the proximate cause of the injury was the fall and not the indigestion.”

In a case before the Supreme Court of Illinois (Rockford Hotel Co. v. Industrial Commission, 300 Ill. 87; 132 N. W. Rep. 759), it was contended that an epileptic fit caused the workman to fall into a pit of hot cinders, and, though so severely burned that he afterwards died, it was urged that the seizure was the direct cause of the injury, and that it therefore did not arise out of his employment.' The court in considering the question states as follows:

“It is generally held by the English courts and the courts of this country where the death of an employe results from a prior existing disease, like heart trouble or other impaired physical condition, while the workman was doing his ordinary work in the ordinary way, and there was no sudden, unusual or violent strain, it will not be considered an accidental death arising out of the employment within the meaning of the Workmen’s Compensation act.”

Thereafter the court further said:

“He did not die from epilepsy or a pre-existing disease but from the burns he received from falling into the pit. Some cases hold that where an employe is seized with a fit and falls to his death the employer is not liable because the injury did not arise out of the employment; but a majority of the courts, American and English, hold that if the injury was due to the fall the employer is liable even though the fall was caused by a pre-existing idiopathic condition.”

That court affirmed its position on the question in the recent ease of Van Watermullen v. Industrial Commission, 343 Ill. 73; 174 N. E. Rep. 846.

Another case quite in point is that of Matter of Connelly v. Samaritan Hospital, 259 N. Y. 137; 181 N. E. Rep. 76, which is a very recent decision by the Court of Appeals of New York. That case involved a claim of a workman who, while employed in a laundry, was injured by a fall, which injury resulted from striking a table. The reasoning of the court is as follows:

“It is the fall and the injury resulting from it that constitutes an accident within the purview of the statute. The cause may be disregarded and the injury limited to an investigation to disclose whether the fall, having occurred, bore with it such consequences as would not have occurred except for the employment. * * * If, except for the employment, the fall though due to cause not related to the employment, would not have - carried the consequences it did, then causal connection is established between injury and employment, and the accidental injury arose out of the employment. The employment has subjected the workman to a special danger which in fact resulted in injury.”

In reaching its conclusion the court applied the rule that: “Whenever conditions attached to the place of employment or otherwise incident to the employment are factors in the catastrophic combination, the consequent injury arises out of the employment.”

A very recent case in the Court of Appeals of the District of Columbia holds similarly. President and Directors of Georgetown College v. Stone, 61 App. D. C. 200; 59 Fed. Rep. (2d) 875. Death resulted from burns sustained by an employe who had an epileptic lit while using hot water in the course of his employment. The court held that such facts admitted of but one lawful conclusion, that the employe’s death was caused by the burns, and not by the epileptic fit, and that the burns were inflicted by means of instrumentalities used by the employe in the course of his employment, and therefore arose out of as well as in the course of employment. It would scarcely be claimed that, if through temporary dizziness or other cause a workman came in contact with a revolving saw or other machinery, and thus sustained injury, compensation would be denied him.

On the subject of nervous shock, it is stated in 1 Ronnold on Workmen’s Compensation, 293, § 95, that “personal injury by accident includes a nervous shock.” And on page 294, the following appears:

“The possibility of witnessing some shocking injury to a fellow workman and receiving a nervous shock therefrom is a risk of any employment. Such nervous shock arises out of and is incidental to the employment, and is compensable if it definitely causes the injury. Thus (in Yates v. South Kirby, &c., Collieries, Ltd., 2 K. B. (1910) 538), where an employe is present at the scene of the death by accident of several of his fellow employes while working on the employers’ premises, and attempts to aid in the rescue, and becomes insane in consequence of the shock incident to the excitement, peril and sense of duty to aid in the rescue, such disability is caused by accident. There is no distinction between such mental breakdown and a physical breakdown in so far as they affect the right to compensation. It is only essential in such case that the breakdown, whether mental or physical, be proximately caused by accident occurring in the course of employment.”

In seeking a compensation award, petitioner relies upon che Yates case which has been cited with approval by our Court of Errors and Appeals in the recent ease of Sigley v. Marathon Razor Blade Co., Inc., 111 N. J. L. 25; 166 Atl. Rep. 519, and also the case of Freedman v. Spicer Manufacturing Corp., 97 N. J. L. 325; 116 Atl. Rep. 427, in which the same court affirmed an award of compensation of the workmen’s compensation bureau, holding:

“The fracture of skull and death of an employe due to his fainting and falling as a result of an innoeulation induced by his employer during an influenza epidemic, and administered at the company’s plant, was -held to have arisen out of and in the course of his employment.”

The question of mental shock unaccompanied by physical impact would seem at first impression to be a novel one under this jurisdiction, but upon making an exhaustive examination of many of the earlier decisions of the Common Pleas Courts which were formerly empowered with original jurisdiction of cases arising under the Workmen’s Compensation act, I find that Judge Sullivan, in the case of Wilson v. Lake Hopatcong Ice Co. (Hudson County Common Pleas, 1915), 38 N. J. L. J. 172, recognized and applied the ruling laid down by the English court in the Yates case. In that case it appeared that petitioner’s decedent was employed by respondent as a foreman and watchman at its ice works along Lake Hopateong, his duties being to see that the night watchmen attended to their duties at three plants comprising the ice works at the lake. On the night of May 10th, 1913, some shots were fired at or near one of the ice houses, and one of the watchmen there was in such a nervous state that he was either sent home or quit his job. Petitioner claimed that her husband also received such a nervous shock by reason of the shot firing that it prostrated him and caused his death on May 21st, 1913. At this point, Judge Sullivan states:

“I am quite clear that if this be the fact, petitioner is entitled to compensation under the act. Yates v. South Kirby, &c., Collieries, 3 B. W. C. C. 418.

“Both Dr. King and Dr. Hashing, however, give it as their opinion that the shock which the decedent received on the 10th or 11th of May, if he did receive such shock, did not cause his death, because such a long interval of time elapsed after the shock up to the time of death, and they did not believe that that could have been the exciting cause, and while both testified that it was possible for such a shock to cause death at a period of ten days afterwards, it was not in their opinion probable.”

Although the case was decided adversely to the petitioner on the ground that she failed to sustain the burden of proof, .the principle of mental shock or mental injury without trauma was well recognized as a compensable injury under the purview and meaning of the Workmen’s Compensation act.

Now coming to the case at bar, and upon carefully considering and analyzing the entire testimony, I conclude that there is in this case an unbroken chain of events revealing a reasonably accurate history of cause and effect between the employment and the resulting accident, to wit: (a) the

shocking sight to which petitioner■ was exposed; (b) fright and fainting spell which overtook him as a consequence thereof; (c) fall and the striking of his head against the concrete floor, causing physical injuries;'and that these events taken separately and in their sequence are causative factors in producing 'the accident which arose out of and in the course of petitioner’s employment:

w * * * * * :ji

John J. Stahl, Deputy Commissioner.


author: Pee Cukjam.

text:
    WILLIAM W. CORDINGLEY, PROSECUTOR, v. THE BOROUGH OF MENDHAM, LEO ROBINSON, CLERK OF THE BOROUGH OF MENDHAM; CHARLES H. DAY, FRANK M. GROENDYKE AND BERKELEY LUMBER AND SUPPLY COMPANY, A NEW JERSEY CORPORATION, RESPONDENTS.
    Submitted October term, 1933
    Decided March 1, 1934.
    Before Bbogan, Chief Justice, and Justices Teenchabd and Hehee.
    For the prosecutor, Martin R. O'Keefe.

    For the respondents, David F. Barkman (Harold A. Price, of counsel).
   Pee Cukjam.

A writ of certiorari was allowed in this case to review the action of the governing body of the borough of Mendham in executing certain leases, namely (a) lease made between the borough of Mendham and Groendyke and Day, on October 1st, 1930, in which the borough is tenant; (b) lease made between the borough and Groendyke, dated June 6th, 1933, in which the borough is likewise tenant; (c) lease of borough property made to Berkeley Lumber and Supply Company, dated Ma}r 8th, 1933.

(a) On October 1st, 1930, the borough of Mendham executed a lease by which it rented from Messrs. Groendyke and Day the first floor of a cement block building located at West Main street, Mendham borough, Morris county, for the term of five years at a rental of $100 a month. The property was used by the borough to house its fire department. The use and occupancy of the premises by the town continued and the rent was paid until the month of June, 1933, at which time the prosecutor of the writ, a citizen and taxpayer, attacked this and the two other leases, alleging that the municipal action thereon was illegal and void.

The ground for attacking the first lease is that Mr. Day, one of the owners of the premises in question, was and had been since 1923, the mayor of the borough. He and Mr. Groendyke had purchased the property in question in 1927. The chief ground on which this lease is challenged is based on the thirty-second section of the Crimes act which provides, generally, that any member of any governing body who shall directly or indirectly be interested in any contract in which the municipality is concerned, the expense or consideration of which is paid by the board, &e., of which such member is a part, shall be guilty of a misdemeanor. Cf. Pamph. L. 1898, p. 803; as amended, Pamph. L. 1901, p. 393, and Pamph. L. 1907, p. 292, &c.

On behalf of the respondent Charles A. Day, mayor of the borough, it is urged that the prosecutor is in laches in his attack upon this lease.

It appears from the record that the borough attorney, on being asked for his advice in this matter, determined in June, 1933, that the lease was invalid and thereupon the lessors, Groendyke and Day, surrendered the lease to the borough council. Prom the record before us, it is evident that Mr. Day made no concealment of the fact that since 1927, he was part owner of these premises; that in 1930, he and his co-partners leased the premises to the borough and that from the date of the lease the fire department of the municipality used the premises for its purposes and that rent was paid for the same. This action on the part of the borough, in making the lease, was permitted to go unchallenged for almost three years. It was incumbent upon the prosecutor, if he desired to review this municipal action, to have done so promptly. Carr v. Merchantville, 102 N. J. L. 553, 558; 142 Atl. Rep. 1. Under the facts and circumstances here disclosed, we do not think he acted with diligence, but that he is guilty of laches.

Again we take into consideration the fact that the lessors, Groendyke and Day, and the governing body, upon receiving advice from the borough attorney on or about June 2d, 1933, that the council “had not the power to make the lease in question” promptly and mutually surrendered the lease and that this surrender was consummated before the writ in the case was allowed or sought. This surrender having been effectuated, the attack on this lease becomes an academic question.

(b) Thereafter it appears that Mr. Day sold out his interest in the property to Mr. Groendyke and received a $3,000 second mortgage for his interest and equity in the land and building; that at the meeting of the borough council, held on June 5th, 1933, the first lease having been surrendered, the municipal body leased from Mr. Groendyke the same premises for the continued use and occupancy of the fire department. The resolution in the matter of this second lease was unanimously adopted. It provided for a term of two years at the same rental, namely $100 a month, and this lease is challenged in the writ.

The prosecutor contends that this lease should be voided because Mr. Day, a member of the governing body, had an interest, as second mortgagee, in the property in question. The provisions of the thirty-second section of the Crimes act, supra, are invoked as authority for setting it aside. Much could be said by way of argument in favor of the proposition that this section of the Crimes act applies merely to the conduct of Mr. Day and has no bearing upon the legality of the lease under attack. However, we are of the opinion that Mr. Day, as mayor of the borough, is possessed of that interest in the premises, the leasing of which is the subject-matter under consideration, that the lease itself comes within the interdiction of the statute. Contracts of this kind have received the condemnation of the legislature. Sturr v. Elmer, 75 N. J. L. 443, 444; 67 Atl. Rep. 1059. The statement of the Supreme Court in that case is singularly appropriate in this: “We may remark that the invalidity of such a contract in no way rests upon the criminal intent of the member of the council. The rule is one of policy, which, without regard to intention, inexorably reaches all contracts which contravene the purposes of the law” (at p. 446).

The lease of June 6th, 1933, therefore will be set aside.

(e) The prosecutor attacks another lease made by the borough council wherein land and premises of the municipality, called borough hall, were leased to the Berkeley Lumber and Supply Company. We are of the opinion that the attack on this lease fails. The statute provides that every municipality may lease any land or building of the municipality not presently needed for public use. Cf. Pamph. L. 1917, ch. 152, art. 18, § 10 (Home Rule act). It is true that the prosecutor urges that this particular building might be renovated and used for the purposes of the fire department. The record discloses that this could be done at a cost of approximately $8,000. There is nothing, however, by way of testimony or argument, that convinces us that the renovation of this property, and the using of it as suggested by the prosecutor, would be of advantage to the municipality, or, to put it another way, that this court should substitute its judgment in the regulation of the internal affairs of a municipality for the judgment of its elected officials, in the absence of a clear showing of irregularity or fraud or abuse of discretion, none of which appears in the record before us.

Further questions raised by the prosecutor require no further consideration.

The Groendyke lease will therefore be set aside.

The writ, in so far as it concerns the lease to the Berkeley Lumber and Supply Company, will be dismissed, and since the prosecutor is partly successful in this matter and partly unsuccessful, no costs will be allowed to either side.


author: Case, J.

text:
    ANTHONY GRIPPO, PROSECUTOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF KENILWORTH, DEFENDANTS.
    Decided March 13, 1934.
    For the prosecutor, Harry J. Weiner.

    For the defendants, Charles A. Otto, Jr.

   Heard and decided by

Case, J.

The writ of certiorari brings up for review a resolution passed by the council of the borough of Kenilworth. The resolution recites the poor financial condition of the borough, the demand by associations and individuals for reductions in salary and the elimination of unnecessary offices and the conclusion of council that the recorder’s office is unnecessary, and resolves that “in the interests of economy the re-recorder’s office be abolished and that this resolution take effect immediately.”

The prosecutor was the borough recorder. He writes down four reasons why the resolution should be set aside. The first is that the office of the recorder should have been abolished by ordinance and not by resolution. The only argument advanced thereon is that the salary of the recorder was fixed by ordinance and therefore may be, reduced only by ordinance, citing Heil v. Mayor, &c., of the City of Wildwood, 11 N. J. Mis. R. 171 ; 164 Atl. Rep. 868. The fixing or reduction of salary, however, is not in question. The proofs do not show whether the determination of the borough to exercise its statutory authority to appoint a recorder was by ordinance or by resolution, or indeed that there was any determination other than the actual making of the appointment. They do show that the appointment of the prosecutor was by resolution. The statutory provision is in section 3 of the general act relating to boroughs (Pamph. L. 1897, ch. 161, as amended Pamph. L. 1922, ch. 141; 1 Cum. Supp. Comp. Stat., p. 168) : “* * * There may be appointed * * * a borough recorder * * * who shall perform such duties as are or may be provided for by law or ordinance of said council not in conflict with law,” and in section 13 of the same act. 1 Comp. Stat., p. 234:

“The council may appoint some fit person resident in said borough to be borough recorder; he shall have the same jurisdiction and power in criminal matters, cases of bastardy, relief, removal and settlement of the poor, breaches of the peace, vagrancy and disorderly conduct, and violations of borough ordinances as is vested in the mayor, the same power and authority to issue process, try and determine said causes, and fine or imprison upon conviction, and shall receive the same fees.”

In the absence of proof I may not assume that there was an ordinance either providing for the appointment of a recorder or defining his duties. The duties may be gathered from the jurisdiction and powers set up in section 13, supra.

The second reason, and the one chiefly relied upon by the prosecutor, is that the resolution was passed for political reasons and not in good faith for the purposes of economy. As is apparent from the statute the appointment of a borough recorder is permissive and not mandatory. The determination is left to the legislative function of the borough council. It is necessary that the duties falling upon a recorder shall be performed, but it is not necessary that there should be a recorder. The mayor has statutory authority for the performance of all such duties (sections 10, 11 and 12 of the Borough act); and the mayor of the borough of Kenilworth has been, and is, functioning accordingly. When the prosecutor accepted the office of recorder, he took it subject to the-right of the legislative body who created it to abolish it when the public good required that that should be done. Van Horn v. D’Arcy, 88 N. J. L. 675; 93 Atl. Rep. 597. It is said,, and there is proof to support the statement, that one of the members of the borough council was not without personal animosity towards the prosecutor; but the competent testimony does not convince me that the official action of council was motivated by that feeling. The borough was in serious-money difficulties. It was in the midst of the widespread financial doldrums. There had already been reductions in the salaries of the public officials and there appears to have-been no other office that could be abolished. While the saving accomplished by doing away with the office of recorder was slight, it was nevertheless a move in the direction of' economy and was in response to a public demand. Jacoby v. Borough of Carteret, 12 N. J. Mis. R. 199; 170 Atl. Rep. 613. By the competent testimony it appears that a salary had been set up in lieu of fees and in excess of the fees actually paid over to the borough treasury.

The third and fourth reasons are covered by the foregoing discussion and need not be stated.

I conclude that the resolution was a legal municipal act.. The writ will be dismissed, but without costs.


text:
    ROBERT A. COOK, PLAINTIFF-APPELLEE, v. CLARENCE SODEN, DEFENDANT-APPELLANT.
    Submitted January term, 1934
    Decided March 23, 1934.

      Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the plaintiff-appellee, James Mercer Davis.

    For the defendant-appellant, Jay Tomlinson.

   Per Curiam.

This is an appeal from a judgment of the District Court of Burlington county in which the jury, by direction of the court, returned a verdict in favor of the plaintiff and against the defendant for the sum of $319.29.

The plaintiff’s demand alleges that he was the defendant’s servant and agent, in charge of the operation of the defendant’s gasoline station in the city of Bordentown, and that during the term of his employment he deposited all the moneys received from sales in his own personal check account, for the benefit of the defendant and out of this same account paid the expenses of the business. The judgment directed in the plaintiff’s favor represents the amount paid out by the plaintiff for the maintenance of the business in excess of the amount collected.

In reply to a demand that the defendant specify his defenses, there is pleaded a denial that any money was owed by the defendant to the plaintiff and a further statement that the plaintiff was not authorized to act as agent to purchase any supplies or expend any money for the benefit of the defendant.

The defendant appeals on the following grounds: That the trial court denied defendant’s offer to show that the plaintiff had received a larger sum of money by way of receipts from the business than he alleged in his state of demand; that the court permitted to be read in evidence answers to interrogatories that concerned a different case in another court, as yet untried, between the same parties, and that the court improperly directed a verdict.

As to the first point, the state of case would indicate that the plaintiff sued on the proposition that as agent he had collected a sum in excess of $600 in receipts and that he expended for supplies and the like a sum in excess of $900, and claims a judgment for the balance.

The defense was a general deniál and we gather from the record, which is not as clear as it might be, that the defendant sought to show, by cross-examining the plaintiff, two things— that the plaintiff had received more in receipts from the business than he alleged and that he had expended less than he .alleged.

We make two observations at this juncture which seem to us pertinent. First, that the intended examination was proper cross-examination and should have been permitted and, second, that under the plea of general issue it was improper for the court to disallow questions, the answers to which might tend to show that the defendant was not indebted to the plaintiff at all or that he was not indebted to the plaintiff in the amount claimed, by showing either that the receipts which the plaintiff alleged or the expenditures made were not correct. The court proceeded upon the theory that the defendant was endeavoring to show moneys received by the plaintiff in other transactions unrelated to the conduct of this business and that a counter-claim or set-off should have been pleaded. As we read this record, the in-fended questions were directed at the transactions involved in this litigation and should have been allowed. Where the plea interposed is the general issue, the defendant cannot, under this plea, set-off a counter-claim arising out of an independent transaction. Sawyer v. Van Deren, 74 N. J. L. 673; 66 Atl. Rep. 396; 25 Am. & Eng. Encycl. L. 492. A set-off generally admits the plaintiff’s cause of action and urges a counter demand that had its origin independently of the act sued upon so that the amount of the claim shall be reduced by the amount set off, or even that the defendant may have an affirmative judgment for damages if the set-off is valid and exceeds the amount originally claimed by the plaintiff. It is really a counter or cross-action and does not defend against the merits of the claim which the plaintiff makes. The defendant here was attacking the plaintiffs claim, as we view this case, and it was error for the trial court to have prevented the defendant from pursuing his course.

As to the second point, the appellant complains that it was error for the court to permit to be read in evidence answers to interrogatories filed in a suit, in another court, which suit was as yet untried. The state of case seems to indicate that the evidence now complained of was contained not in answers to interrogatories but in a bill of particulars. The appellee, in his argument before the trial court, refers to the challenged evidence as being contained in a bill of particulars. We have no way of knowing which it is. However, it is plain that the answers to interrogatories, if offered by the party proposing them, shall be taken as evidence in the case in which they are part of the proceedings. See section 140, Practice act; 3 Comp. Stat., p. 4097.

There is of course a marked difference between a bill of particulars and interrogatories and answers. The former is not verified, the latter must be. Interrogatories and answers thereto axe evidential only in the ease to which they relate and in which they are proposed. By the same token, the bill of particulars relates only to the pleading of which it is explanatory and to which it is a limitation. It was error for the trial court to have received such evidence in this case. That evidence was foreign to the action before the trial court, and it was for the conduct of that other case that these particulars or answers to interrogatories, whichever they may be, were obtained.

The last point, as to whether or not this plaintiff deposited $100 to the credit of the defendant, requires no particular discussion. It is sufficient to say that from the record before us whether or not this item was placed by the plaintiff to the credit of the defendant was a fact question. The deposit slip proved nothing. It was not the best evidence. It didn’t explain where this money came from or whose it was, or, in fact, that it had ever been deposited.

The judgment under review will therefore be reversed and a venire de novo awarded, costs to abide the final outcome.


author: Pee Cuhiam.

text:
    RHODA MYLES, PLAINTIFF-APPELLANT, v. EDWARD SUSSMAN AND ROBERT W. QUARLES, DEFENDANTS-APPELLEES.
    Submitted January term, 1934
    Decided March 23, 1934.
    Before Beogan, Chief Justice, and Justices Teenciiakd .and IIbhee.
    Eot the plaintiff-appellant, John W. McGeehan.

    For the defendants-appellees, Pomerehne, Laible ■& Kautz (Henry Pomerehne, of counsel).
   Pee Cuhiam.

This is an appeal from a judgment of nonsuit of the Essex County Circuit Court in an action for personal injuries suffered by the plaintiff in being struck by a motor truck. The trial court based its judgment of nonsuit on the ground that the plaintiff “failed to make an adequate observation.” These are the facts. Plaintiff, a passenger on a bus which was traveling northerly on Grove street in Montclair, New Jersey, alighted, when the bus stopped, at a cross street known as Tuxedo road. She passed in front of the bus, which was at a standstill, and proceeded over the crosswalk almost to the opposite side when the defendant’s truck, traveling northerly, struck and injured her.

The court was of the opinion that the facts in this case were sufficiently similar to those in the case of Branigan v. Demarest, 109 N. J. L. 123 ; 160 Atl. Rep. 319, so as to-make the ruling in that case dispositive of the issue here. We do not think so and consequently there will be a reversal.

In the Branigan case the pedestrian likewise passed in front of a standing bus and was struck by an automobile that came from behind and passed the bus on its left. In that case the plaintiffs view of vehicles coming from the left rear was-obscured by the bus and it was manifest that there the plaintiff made no effective observation to convince herself that there were no vehicles approaching. Here the situation was-different. The plaintiff, Mrs. Myles, testified that from the observation made by her she could “see away down to the-end of the next block,” meaning the block to her left, which was the direction from which the defendants’ truck came. On cross-examination, plaintiff was even more definite, repeating that she could see “away down to the next block,” and that she looked to the right and left. Manifestly, if she-could see for a distance of a block in the direction from which the truck came, her vision could not have been obscured by the bus and the plain inference is that she was clear of the bus at the time of making this observation.

The only evidence upon which the negligence on the part, of the defendants in the operation of the truck could be predicated was that which described the truck as coming “very fast.” It was within the province of the jury, if they believed the testimony adduced for the plaintiff, viz., that Mrs. Myles looked to the left and right; saw no motor truck approaching within the distance of a block; that the truck approached very fast and ran the plaintiff down—to infer that the truck was negligently operated. Questions of negligence and contributory negligence are essentially fact questions for the jury.

On motion for nonsuit the trial judge is bound to accept as true the plaintiff’s evidence with all of the legitimate inferences that such evidence will support. The plaintiff’s-right to recovery is not barred because the plaintiff does not see the automobile which strikes and causes injury since our cases and common experience recognize that reasonable use of the powers of observation may be made and yet the presence of an automobile not disclosed. Puorro v. Salerno, 109 N. J. L. 381; 163 Atl. Rep. 527.

The judgment will therefore be reversed and a venire de novo awarded.


author: Pee Cubiam.

text:
    WILLIAM VEALE AND DAVID H. VAIL, PLAINTIFFS-RESPONDENTS, v. JOHN M. NICHOLS AND GROVER C. NICHOLS, INDIVIDUALLY, AND TRADING AS SOUTH JERSEY POLE COMPANY, DEFENDANTS-PROSECUTORS.
    Submitted January term, 1934
    Decided March 23, 1934.
    Before Beogan, Chief Justice, and Justices Teenciiaed and Heheb.
    For the plaintiffs-respondents, Russell S. Henderson.

    For the defendants-prosecutors, Powell >& Erickson.

   Pee Cubiam.

This writ of certiorari and the return thereto bring up for review the validity of an order holding the prosecutors of the writ to bail in a civil action. The writ particularly is ad■dressed to an order made by the Circuit Court judge of Cumberland county, denying motion to quash and set aside the said order holding the prosecutors to bail and to quash the ■capias and to discharge the bail.

The prosecutors attack the order holding the prosecutors to bail on the ground that the affidavit on -which the order holding to bail is based is fatally defective, in that it is entitled in the case. An inspection of the record in this case makes manifest the fact that the two affidavits, upon which the capias ad respondendum was sought, were entitled in the •cause; that the applicants for the capias are designated therein as plaintiffs and defendants. This being so, we must conclude that the order denying the motion to set aside the ■order holding prosecutors to bail must be vacated, the capias quashed, and the bail discharged. It is well settled that the entitling of an affidavit, the purpose of which is to secure an order to hold to bail, in a cause which is not pending, as here, is fatal to its validity. Stuerwald v. Furman, 4 N. J. Mis. R. 470; 133 Atl. Rep. 187; Van De Velde v. Colle, 8 N. J. Mis. R. 782; 152 Atl. Rep. 645; Rauschbach v. Duval Food Products Co., Inc., 11 N. J. Mis. R. 900; 168 Atl. Rep. 591; Vitalano v. Roffo, 3 N. J. Mis. R. 1130; 130 Atl. Rep. 815.

The respondents contend, in answer to this point, that the prosecutors of this writ are in laches; that having given bail they cannot now take advantage of the infirmities in the affidavit upon which the order holding to bail was founded. This point has no merit. Certainly if the judge of the court, out of which the capias to respond issues, may determine the legality of orders for bail and discharge persons illegally arrested in civil actions, whether bail has been given or not (see section 61, Practice act; 3 Comp. Stat., p. 4071), this court, on certiorari, may reverse the order of the Circuit Court which denied the application to set aside the order for bail, and such will be the order, with costs.