text:
    William Gill, complainant, v. The State Garage, Incorporated, and Max Krueger, Harriet E. Stanton and Hilda Borisov, as directors-trustees of the State Garage, Incorporated, and individually, defendants.
    [Decided July 20th, 1927.]
    Distribution of assets by the directors among some of the creditors, after a company becomes insolvent, is in violation of the statute and renders them personally liable to the sum of the misappropriation.

      Mr. John. U. Laddey, for the complainant.

      Mr. William K. Flanagan, for the defendants.
   Backes, V. C.

The complainant sustained injuries while in the employ of the State Garage, Incorporated, for which the workmen’s compensation bureau awarded him and he was paid compensation of $12 a week for two hundred weeks, to November 7th, 1923. Forty weeks additional compensation, to August, 1924, was paid by mistake; the employer resting under the belief that the allowance was for two hundred and fifty weeks. In August, 1925, the bureau modified its previous award and extended the period for two hundred additional weeks. The award has been docketed as a judgment in the Essex county common pleas, on which execution was issued to the sheriff and by him returned nulla, bona. The bill is the ordinary discovery bill, under section 70 of the Chancery act, charging that the company is possessed of secret assets. The directors are made parties to the discovery. The validity of the judgment is not questioned; nor is the propriety of the bill criticised. The defendants’ answer, and the proofs show, that in 1923, while the complainant’s primary award was current, and long before it was modified and extended, the company, while insolvent, sold its garage and used the proceeds to pay its creditors. Some of the proceeds were appropriated by Max Krueger, the president and sole stockholder, in part payment of his claim. Krueger paid all the debts except the complainant’s.

There are no assets in the company’s hands appropriable to the complainant’s judgment, they having been consumed in the payment of the company’s debts, and the complainant is not entitled to a recovery under the bill as presented. But he is not to'be denied some measure of relief against the directors upon a properly framed bill, and will be given leave to amend. Distribution of assets by the directors among some of the creditors, after a company becomes insolvent, is in violation of the statute and renders them personally liable to the sum of the misappropriation. Keen v. Maple Shade Land and Improvement Co., 68 N. J. Eq. 821; Turp v. Dickinson, 4 N. J. Adv. R. 980. The procedure is pointed out in Mallory v. Kirkpatrick, 51 N. J. Eq. 50.

Upon amendment, and the appointment of a receiver, the directors will be charged with the funds unlawfully diverted, and distribution will be ordered ratably among the creditors. Whether the complainant is entitled to preference under section 22 of the Compensation act is reserved, but it would appear to have been decided against his contention in Steel and Iron Mongers, Inc., v. Bonnite Insulator Co., 90 N. J. Eq. 200.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JANET RAMSEY, BY NEXT FRIEND, ET AL., v. J. MORGAN DIX ET AL.
    Decided July 23, 1927.
    Negligence — Malpractice by Physician — Verdict of $35,000 Set Aside as Against Clear Weight of Evidence so Far as it Finds That Defendants’ Diagnosis Failed to Exhibit That Knowledge and Skill Usual in the Profession Occupied by Defendant — Also Held That Verdict is Excessive.
    On rule to show cause allowed the defendant Dix.
    Before .Gummerb, Chief Justice, and Justice Trenchard.
    Por the rule, Frederick M. P. Pearse.

      Contra, John A. Matthews.

   Per Curiam.

This action was brought by a httle girl, twelve years old, to recover for serious injuries received by her, and which, it was alleged, resulted from malpractice on the part of the two defendants, Dr. Dix and Dr. Lippincott. The father was joined as a plaintiff, seeking to recover compensation for the expenses incurred by him as the result of the injuries received by the child. The trial resulted in an award of $35,000 for the child, $2,000 for the father, the jury assessing the damages against Dr. Dix and exonerating Dr. Lippincott. Thereupon, an application was made by counsel for Dr. Dix for a rule to show cause why this verdict should not be set aside, and the application was granted.

A number of reasons are relied on by counsel for the defendant Dix for making this rule absolute. We do not find it necessary, however, to consider more than two of them. The first is that the verdict is contrary to the clear weight of the evidence, so far as it inferentiaily finds that Dr. Dix in his diagnosis and treatment of the child’s injuries failed to exhibit that knowledge and skill which is usual in the profession which he occupies, and that such failure was due to negligence on his part. The second is that the verdicts are excessive. Our examination of the proofs sent up with the rule leads us to the conclusion that both of these contentions are justified, and that, consequently, the rule to show cause should be made absolute.

It will be so ordered.


text:
    WALTER ADAMSKI v. VICTOR NAUROT.
    Decided July 23, 1927.
    Contracts — Mechanic’s Lien — Plaintiff Contracted With Defendant, Who Later, Before Work was Finished, Stopped Plaintiff, Employing Another to Finish the Work — Held, That There was No Error in Admitting Evidence Showing Average Wages of Bricklayers During the Time Plaintiff was Engaged in Working — Held, Further, That the Burden of Proving Payments is on the One Alleging Them, and That in Cases of Dispute it Cannot be Error to Charge That Such a Dispute Exists.
    On appeal from the Passaic Circuit Court.
    Before Guaojeee, Chief Justice, and Justice Tbex-CHAB.D.
    Por the appellant, Feder & Rinzler.

    Por the respondent, Thomas J. Kennedy.

   Per Curiam.

This was an action brought upon a mechanic’s lien. The trial resulted in a verdict in favor of the plaintiff, and from the judgment entered pursuant thereto the defendant has appealed.

The proofs show that the latter contracted with the plaintiff for the erection of an addition to a building belonging to him, located in the city of Passaic, and also for extra work to be done on the building. The contract was made in the latter part of March, 1925. The plaintiff started in with his work under the contract soon after that date, and on the 19th of June of that year, when the work was nearly completed, the defendant stopped him from further performance of his contract, and employed someone else to finish the job. Upon proof of these facts, the jury found the defendant liable under his contract.

Only two grounds of reversal are argued before us. The first is that the trial court erroneously allowed evidence showing the average wages of bricklayers in March, April and May, 1925. This covered the period during which the plaintiff was engaged in the work for which he was employed, and, as a part of that work was the laying of bricks, it seems to us that the testimony was relevant as bearing upon the question of the pecuniary loss which he sustained by reason of being wrongfully prevented from finishing the work under his contract.

The only other ground for reversal is directed at the following instruction by the court to the jury: “The defendant claims that he made certain payments, and there is a dispute about that. The burden of proving the amount of the payments by a fair preponderance of the evidence rests upon the defendant.” It is difficult for us to understand why defendant's counsel considers this instruction erroneous. The law is settled that the burden of proving payment is on the party alleging it. The defendant by his answer averred payment of a certain amount. If he desired credit therefor, the obligation was on him to support that averment by proof.

The judgment under review will bo affirmed.


text:
    DAVID G. THOMAS v. THOMAS BARLOW.
    Decided July 23, 1927.
    Negligence — Injury to a Player in a Basketball Game by a Member of a Contesting Team — Plaintiff Alleged That the Injury was the Result of No Part of the Playing — Plaintiff Denied Personal Knowledge of the Cause of the Injury — Held, That the Verdict for the Plaintiff was Contrary to the Great Preponderance of the Evidence.
    Oil defendant’s rule to show cause.
    Before G itmmeee, Chief Justice, and Justice Teewchabd.
    Eor the rule, William A. Moore and Henry M. Hartmann.

   Per Curiam.

The plaintiff sued to recover compensation for injuries which he claims to have received while engaged in a game of basketball at Greenpoint, Long Island, in December, 1925. He was a member of the Perth Amboy team. The defendant was a member of the contesting team. The plaintiff’s claim was that during the game the defendant, without any reason, so far as the playing of the game was concerned, deliberately struck him with his fist in the jaw, thereby fracturing the jawbone, and seriously injuring him. The defendant denied that he had done anything of the kind, and insisted that, if he was the cause of the plaintiff’s injury, his act was entirely unintentional, and that he had no knowledge that he .had struck the plaintiff. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $3,000. Thereupon, a rule to show cause was allowed, to the defendant.

Our examination of the testimony sent up with the rule satisfies us that this verdict was contrary to the great preponderance of the evidence, which clearly indicates that, if the'injury which the plaintiff claimed to have received was the result of a blow delivered by the defendant, the blow was entirely accidental and not the result of any preconceived purpose on the part of the defendant.

Eeaching this conclusion, we have found it unnecessary to consider the other grounds advanced by the defendant for making the rule absolute.

The verdict under review will be set aside and a new trial ordered.


text:
    GERTRUDE RUSSELL v. CHARLES LEVINSOHN.
    Decided July 23, 1927.
    Landlord and Tenant — Three Counts in Complaint, the First Alleging Unlawful Eviction; the Second, Unlawful Retention of Tenant’s Property; the Third, Unlawful Arrest While on the Premises — Plaintiff Awarded Damages on Every Count — Defendant Asked for Rule on Ground That Verdict on Second and Third Counts was Against Evidence —Held, That the Award on Second Count Cannot be Set Aside, but That the Award on the Third Count was Against the Clear Weight of Evidence, No Arrest Appearing to Have Been Made.
    On defendant’s rule to show cause.
    Before Gummeke, Chief Justice, and Justice Thenchaed.
    For the rule, Edward P. Longztreet.

      Contra, Harry R. Cooper.

   Per Curiam.

The complaint in this cause contains three counts. The averments of the first count are that the plaintiff was the lessee of a room on the second lloor of certain premises located in Asbury Park, and of which defendant was the owner and lessor; that she went'into possession of the premises originally on the 1st of April, 1925, and equipped and used them as a beauty parlor; that her original lease was for a year from that date; that shortly before the expiration of the term the defendant agreed to renew the lease for an additional term of one year, and that she paid the first month’s rent on the renewal period, and that a few days thereafter the defendant unlawfully evicted her from the leased premises, and by doing so seriously injured her business by compelling her to remove her beauty parlor to another locality.

The second count alleges that, after ejecting her from the leased premises, the defendant took possession of a considerable number of chattels which were owned by her and used in her beauty parlor, and wrongfully carried them away, and subsequently refused to deliver them to her upon her demand.

The third count alleges that on the 3d of May, 1926, the plaintiff went upon the leased premises for the purpose of taking up the season’s business there under her new lease; that the defendant was in the room when she entered it and ordered her to leave; that upon her refusal to do so he procured police officers from the police headquarters, brought them to the leased premises, and caused her to be arrested by them and to be forcibly ejected from the premises.

The jury found in favor of the plaintiff upon all of the counts of her complaint, awarding her six cents damages on the first count, $500 damages on the second count, and $1,000 damages on the third count.

The contention made in behalf of the defendant on the argument of this rule is that the verdicts on the second and third counts are contrary to the weight of the evidence. Our examination of the testimony sent up with the rule leads us to the conclusion that the finding of the jury upon the second count is not so clearly against the preponderance of the testimony as to justify this court in setting it aside. As to the finding of the jury that the plaintiff was arrested illegally and was forcibly ejected from the premises by the police officers, who came there on the call of the defendant, our conclusion is that it is contrary to the great preponderance of the evidence. Each of the police officers who visited the premises was called as a witness. They testified that no one of them did anything except to visit the premises, where they found the plaintiff and the defendant quarreling about their respective rights therein; that one of the officers thereupon advised the parties that the place to settle their dispute was not upon the premises, but in the court; that after this statement was made the plaintiff got up and said, “Well, I will leave;”' and that she thereupon walked out of the room and went downstairs alone. The officers further testified that no one of them followed her out of the room or did or said anything which was even suggestive of an intention to interfere with her freedom of action. These witnesses were all of them disinterested, and one of them (Van-Brunt) was called to testify on behalf of the plaintiff. Their testimony was not in any way contradicted, except to some extent by the plaintiff herself, who stated upon the witness-stand that VanBrunt, her own witness, told her that she would have to get out, and that she then walked out, and that two of the officers followed her to the street. Even if her statement be accepted and the testimony of these police officers be rejected, we consider that the verdict upon this count cannot be supported. In Vail v. Pennsylvania Railroad Co., 5 N. J. Adv. R. 499, this court pointed out that the essential thing in an action for false arrest is the constraint of the person, and that the words or conduct of the party against whom the charge is laid must be such as to induce a reasonable apprehension of force. We find nothing in the testimony of the plaintiff that suggests such an apprehension upon her part; but, even if the contrary was the fact, we should still think this verdict should be set aside, for the reason that it entirely disregards the testimony of the disinterested witnesses with relation to the occurrences at this beauty parlor.

We find nothing of merit in the other grounds upon which we are asked to make the rule absolute.

For the reason indicated, the rule to show cause will be discharged, so far as the verdict on the second count is concerned, and will be made absolute as to so much of the verdict as relates to the third count,


text:
    PETER CIKATZ v. FELIX J. MILWID AND AGNES GAWALIS.
    Decided July 23, 1927.
    Sale of Real Estate — Suit to Recover Down Money — Plaintiff, Vendee, Claimed Property was Not as Stated in Contract of Sale, in That There Were More Mortgages Than Alleged; That There Were Two Mortgages When Only One was Represented as a First Mortgage, and That There was Another Mortgage Unmentioned; That There was a Restriction in the Deed Not Mentioned in the Contract, and That the Vendors Could Not Convey — Trial Judge Charged That These Certain Matters Must Not be Considered, but Notwithstanding Charge There was a Verdict for Plaintiff— Held, Verdict Contrary to Law, and Rule Made Absolute.
    On defendants rule to show cause.
    Before Gummere, Chief Justice, and Justice Trenchard.
    For the rule, Maurice C. Brigadier.

      Contra, Michael H. Feldman.'
   Per Curiam.

This suit was instituted by the plaintiff, Peter Cikatz, against the defendants to recover the sum of $1,000, paid by him to them as an installment of purchase-money pursuant to a contract entered into on the 9th of November, 1925, for the sale of certain property located in the city of Linden, the plaintiff being the intending purchaser and the defendants the intending vendors. The plaintiff also claimed the right to recover $150 for expenses incurred by him in having the title to the property searched.

The agreement which is the basis of this suit provided that the purchase price of the premises should be $24,800; that $1,000 should be paid upon the execution of the contract; that $11,800 should he paid in cash at the time of the dosing' of title, and that the property should be conveyed subject to two mortgages, one for $10,000, held by John J. Stamler, and another, for $2,000, heid by one Mozdeyko, thus making up the balance of the purchase price. It appeared i n the case that when the time for closing the contract arrived it had been discovered by the plaintiff that the property, instead of being subject to a first mortgage of $10,000, held by Stamler, was, in fact, subject to two mortgages, totaling that amount, viz., a $6,000 mortgage, held by Stamler, and a $4,000 mortgage, held by the Breidt Brewing Corn-pan 3-. It further appeared that a search of the title disclosed that there was a third mortgage, of $2,700, held by Mozde3ko. and a fourth mortgage, of $2,000, held by the Elizabeth Trust Companj'. It also appeared that the property was encumbered by a restriction contained in an earlier deed, which prohibited the holder of the property from selling any beer, ale or other malt liquor, except that manufactured by the Breidt Brewing Company. It further appeared in the case that the title to the property, instead of being held by the defendants as tenants in common, as was indicated by the contract, was held by Milwid as trustee for Mrs. Gawalis. The proofs also disclosed that the plaintiff refused to complete the purchase of the property — first, because of the fact of the existence of $14,700 worth of mortgage indebtedness upon the property, instead of $12,000 of such indebtedness; second, because the mortgage indebtedness to the extent of $ 10,000 was not entirely due to Stamler, hut that $4,000 thereof was due to the Breidt Brewing Company; and third, because the defendants could not, together or separately, make a good title.

The trial resulted in a verdict in favor of the plaintiff for the full amount of his claim. The defendants thereupon applied for and obtained a rule to show cause why this verdict should not he set aside and a now trial granted, upon the ground that it was against the weight of the evidence, and that there was no evidence to sustain it as against the defendants.

The question presented by this rule is whether, upon the facts proved, this verdict can be legally justified under the charge of -the court, which, of course, was the law of the case. The jury was instructed by the charge that the existence of $14,700 of mortgage indebtedness upon the property — if that was the case — afforded no ground for plaintiff’s refusal to accept the conveyance, the reason upon which the instruction was based being that, upon the payment of the second cash installment, which was to be made when the deed was to be delivered, the vendors could at once pay off the excess of the mortgage indebtedness out of the purchase-money so received, and that the plaintiff could have compelled that to be done when he paid the money. In the face of this instruction, of course, the verdict cannot be supported upon the theory that, because the mortgage indebtedness was greater than that exhibited in the contract of sale, the plaintiff was justified in his refusal to perform.

The court also charged, in effect, that the fact that, instead of their being a single mortgage upon the property for $10,000, held by Stamler, there were two mortgages, one for $6,000, held by him, and another for $4,000, held by the Breidt Brewing Company, a client of Stamler, afforded no ground for the plaintiff’s refusal to accept the conveyance. In the face of this charge, of course, the verdict of the jury cannot be supported upon the ground that the misrepresentation with relation to the ownership of this mortgage indebtedness afforded any ground for plaintiff’s refusal to perform his contract.

As to the other ground upon which the plaintiff’s refusal to accept a deed was based — namely, that the intending vendors could not execute a valid conveyance — the trial court intimated to the jury in the charge delivered to them that this ground for refusal to accept a conveyance was unsubstantial in law, although it was not expressly so declared by the court. We think, however, that the intimation of the court was sound. It appears from an examination of the state of the case that, by the terms of the trust, Milwid was obligated to convey the property at any time upon the written request of his cestui que trust, Mrs. Gawalis. The joining by her with him in the execution of the contract was, by necessary implication, a written request to make the conveyance called for by that contract. Pursuant to that request, the trustee, as the holder of the legal title, could, in our opinion, make a valid conveyance even if his cestui que trust did not join with him in its execution, and the two of them together could execute a deed conforming to the provisions of the contract which would be impregnable against any attack based upon the ground of lack of power to make it.

On the whole case, our conclusion is that the verdict was in total disregard of the evidence, so far as it was submited to the consideration of the jury, and that, for this reason, the rule to show cause should bo made absolute.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    IRVING GIFFORD, PETITIONER, v. TIMBROECK NEWMAN, RESPONDENT.
    Injury to Foot While Operating a Gasoline Engine Running a Power Shovel — Engine Back-fired, Causing Severe Sprain— Temporary Compensation Awarded, Amount of Permanent Compensation a Ground for Dispute — Testimony Regarding Extent of Injury.
    On petition, &c. On determination and order.
   This is a case in which the petitioner, Irving Gifford, seeks compensation for an injury to his right foot and ankle, while in the employ of the respondent, Timbroeck Newman, arising ont of and in the course of his employment on the 7th day of. June, 1926.

The case was heard by me at Asbury Park on the 30th day of December, 1926, and at the outset counsel for the petitioner and respondent stipulated that the petitioner was in the employ of the respondent on June 7th, 1926, at the time of the injury, and that the respondent had timely notice thereof, and that the said injury sustained by petitioner arose out of and in the course of his employment by respondent, so that the only matters to be determined are the duration of temporary disability and the amount of permanent disability, if any.

It appears from the testimony of the petitioner that the respondent was engaged in the business of carting, grading and general excavating, and that in connection with his business the respondent owned and caused to be operated an excavating shovel. The shovel was propelled and operated by a gasoline engine. The petitioner was employed by respondent to operate this shovel, and while operating it at the borough of Interlaken, New Jersey, on the 7th day of June, 1926, the engine stopped. It appeared to be the custom to start this engine by applying force to the starting apparatus with the operator’s foot, and while attempting to start the engine it “kicked” or “back-fired,” causing a severe sprain of petitioner’s right foot and ankle. The petitioner was compelled to (¡ease work immediately and seek medical aid. It appears that- a son of the respondent was working with or nearby petitioner, and the son took petitioner to the office of Ur. Reginald S. Bennett, at Asbury Park, where petitioner was treated tor his injury. Petitioner testified that he made several visits to the office of I)r. Bennett, by whom he was treated on each visit. The last visit by petitioner to Dr. Bennett was on or about October 1st, 1926. It appears that petitioner had been engaged in excavating shovel work for a great many years, and that this was his usual line of work. He testified that on or about October 1st, 1926, he had endeavored to secure employment at some other kind of work, but found that his foot and ankle were too weak to permit him to do any kind of work, and he therefore had to give it up after working only a day or two. He also testified on the day of the hearing that his foot and ankle were still weak, and that any unusual exertion on the part of his foot and ankle, caused him considerable pain. At the time of his injury petitioner was receiving a wage of $45 per week.

Dr. Bennett testified that petitioner came to him on or about June 7tli, 1926, and that he examined petitioner and found him suffering from a severe sprain of 'the right foot and ankle. It also appears from the testimony of Dr. Bennett that petitioner called at his office thirteen times for treatment, the last visit being about October 1st, 1926. Dr. Bennett examined petitioner’s foot and ankle the day of the hearing, and after this examination testified that he still found some soreness, but in 1ns opinion petitioner’s foot and ankle had improved about as much as it ever would. He also testified that it was his opinion that up to that time petitioner had been unable to pursue his usual occupation on account of this injury, and that the petitioner had suffered about a fifteen per cent, permanent loss of the use of his foot and ankle. Dr. Bennett also testified that he had treated petitioner thirteen times and that he made a charge of $3 for each treatment, but that he had not presented the petitioner with a bill, although he had told him how much it would be.

Dr. Daniel E. Eeatherston testified that he had examined petitioner’s foot and ankle at the request of respondent, and that he found petitioner suffering from a sprain. He said it was his opinion that the petitioner was able to resume his usual employment on October 1st, 1926, and that petitioner had reached the maximum improvement at that time. He also said that it was his opinion that petitioner had suffered not more than a five per cent, permanent loss of the use of his foot and ankle.

DETERMINATION AND ORDER.

Erom the foregoing I am of the opinion that Mr. Gifford was in the employ of the respondent on the 7th day of June, 1926, at the time of the injury, and that the said injury arose out of and in the course of his employment, of which injury respondent had due notice within the statutory period; that petitioner was employed by the week at the rate of $45 per week, and that as a result of the said injury petitioner suffered a temporary disability lasting from June 7th, 1926, to December 30th, 1926, and that petitioner has a permanent disability consisting of fifteen per cent, of loss of use of the right foot. Petitioner is entitled to his medical expenses amounting to $39.

It is therefore on this 25th day of January, 1927, ordered that respondent pay to the petitioner compensation for temporary disability at $17 per week, from June 7th, 1926, to December 30th, 1926, twenty-nine and four-sevenths weeks, amounting to $502.71, all of which is due as of December 30th, 1926, and seventeen and three-fourths weeks at $17 per week for permanent injury consisting of fifteen per cent, of loss of use of the right foot, amounting to $301.25, and the sum of $39 for medical expenses.

The respondent will also pay to the petitioner’s counsel the sum of $100 for his services in this cause.

W. E. Stubbs, Deputy Commissioner.


text:
    THE STATE v. JONAS NICKELSPORN AND HARRY SILVERMAN.
    Decided August 4. 1927.
    Crimes — Disorderly House — Evidence—State Allowed to Show at Trial That Certain Women, Frequenters of the Place of Defendants, on Several Occasions Had Been Convicted of Prostitution and of Other Criminal Offenses- — Held, Harmful Error, the Evidence Not Being Competent to Prove the General Reputation of Such Women in the Community, so as to Charge Defendants; That Knowledge, Actual or Constructive, of the Immoral Character of the Habitues Forms the Gravamen of the Indictment; That Specific Acts of Immorality are Irrelevant and Inadmissible.
    On error to the Hudson Quarter Sessions.
    Before Gummere, Chief Justice, and Justice Trenchard.
    Eor the plaintiffs in error, William A. Kavanagh.

    Eor the. state, -John Milton, prosecutor of the pleas.
   Per Curiam.

The defendants in this case weie indicted for the offense of keeping a disorderly house. The indictment is in the common law form, and charges that they “did unlawfully keep and maintain a certain ill-governed and disorderly house, and in said house, for their own lucre and gain, there unlawfully and willingly did cause and procure to frequent and come together certain persons, as well men and women, of evil fame and of dishonest conversation; and the said men and women in the said house of them, the said Jonas Nickelsporn and Harry Silverman, there to be and remain, drinking, tippling, fighting, whoring,” &c., &e. The trial resulted in the conviction of the defendants of the charge laid against them, and they now challenge the validity of that conviction.

The principal ground relied upon by the defendants for reversal is that the trial court erro?'icously, and over objection, permitted the state to prove as a part of its ca.se that certain women who were shown to have been frequenters of the defendants’ premises had been, on several occasions, convicted of prostitution and of other criminal offenses.

The admission of this testimony was in disregard of the decisions of our courts, and constituted harmful error. In the case of State v. Baans, 77 N. J. L. 123, the question of the legality of such testimony was considered, and it was held that evidence of specific acts of immorality committed elsewhere by women who frequented the premises of the defendant was not competent to prove the general reputation of such women in the community so as to charge the defendant with knowledge of such fact; that knowledge, actual or constructive, of the general immoral character of the habitues of a public place forms the gravamen of the indictment; that specific acts of immorality are irrelevant and inadmissible upon that issue, and that the admission of evidence showing such specific acts constitutes harmful error. This case was cited with approval by the Court of Errors and Appeals in State v. Littman, 88 Id. 392, that court declaring that by the words “evil name and fame” contained in the indictment “is meant reputation, and that cannot be proven by specific acts of misconduct.” As was stated in the Baans case, the admission of this evidence constituted harmful error, and for this reason the judgment under review must be reversed.

Reaching the conclusion we have indicated, we have found it unnecessary to consider the other grounds pf reversal submitted by counsel for the defendant.


author: Harry J. Coas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MICHAEL SECHYCHAK, ALSO KNOWN AS SCHEYNAC, PETITIONER, v. BRIDGMAN COMPANY, INCORPORATED, RESPONDENT.
    Injury to Employe’s Back — Compensation Paid for Temporary and for Ten Per Cent. Total Permanent Disability — Claim for a Greater Payment for Permanent Disability — Petitioner Suffered Two Other Accidents Between the Time of the One in Question and the Making of the Claim for Additional Compensation — Several Witnesses Examined and Petition Dismissed.
    On determination of facts and findings.
    For the petitioner, William Herein Emith.

    For the respondent, Harry E. Walburg.

   3. It was stipulated between counsel of the respective parties that the respondent had paid to the petitioner $374.43 temporary compensation at the rate of $17 a week for sixteen and one-half weeks, and $850 as permanent compensation, based on ten per cent, of permanent total disability, and it was further stipulated that the only question to be determined was whether the petitioner was entitled to any additional permanent disability.

3. The petitioner testified that on January 14th, 1935, he was employed by the respondent as a laborer, and while he was attempting to put a long pipe on to a truck, he slipped and fell backwards, striking the ground, and the pipe fell upon him, and as a result thereof, he injured his back. He continued working for a few days, and then went to a Dr. Blain for treatment, and then to a Dr. Lowenstein. He was sent by Dr. Lowenstein to the City Hospital, Newark, where he was operated on for a right inguinal hernia and appendicitis, neither the hernia nor the appendicitis being attributed to the accident. After his discharge from the City Hospital he was treated by Dr. Lowenstein until some time in April or May, 1925. After leaving the treatment of Dr. Lowenstein he had pains in his back and was compelled to wear a belt around his abdomen to help support him. On April 5th, 1926, he had an accident at his home, 271 Sherman avenue, Newark, New Jersey, when he fell down a flight of twelve steps, in which he injured his forehead, his shoulder, his right side and jaw, but claimed that his back was not injured in any way. He was incapacitated as a result of this accident for about a month. On July 29th, 1926, he went to work for -the Duratex Company of Newark, and after he had worked there a few days, he had an accident when he was pulling a can with a hook and the hook slipped and he fell forward against the can, injuring his breast.

4. Dr. Singer, a witness for the petitioner, testified that he examined the petitioner in July or August, 1926, which was after the second accident. At that time the petitioner was complaining of pain in his back and right shoulder and right chest. He examined the petitioner on the day of the hearing and testified that, in his opinion, the petitioner, as a result of the injury to his back, had sustained a twenty per cent, permanent total disability.

5. Dr. Eurman, a witness for the respondent, testified that he examined the petitioner in February, 1925, and on July 9th, 1925, and at the later date the petitioner complained of pain of the sacro-illiac region, but there were no objective symptoms of injury, except that the petitioner had slight difficulty in bending forward.

6. Dr. Trainor, a witness for the defendant, testified that he examined the petitioner in July, 1926, and that the petitioner complained of injuries to his head, right shoulder, right side and jaw, but did not complain of any disability of the back, and the petitioner also told the doctor that he had had no previous accidents.

7. Dr. Vanderhofll, a witness for the respondent, testified that he treated the petitioner in July, 1926, for the accident which the petitioner sustained at the Duratex plant. The petitioner complained of pains in his right chest, hut made no complaint of the hack injury. Dr. Yanderhoff had an X-ray taken of the petitioner’s ribs in August, 1926, and the X-ray disclosed that the petitioner had an old fracture of the ninth rib, about two inches from the point where the rib joins the spine, and that, in his opinion, the fracture to- the rib had occurred at least six weeks prior to the taking of the X-ray. He also testified that, in his opinion, when he discharged the petitioner in the latter part of August, 1926, the petitioner was not suffering from any permanent disability.

8. Dr. Brothers, a -witness for the respondent, testified that he examined the petitioner in July, 1926, and that at that time he could not find any objective symptoms of injury to the petitioner, and that, in his opinion, the petitioner was not suffering from any permanent disability.

9. Doctors Brothers and Vanderhoff also testified that, in their opinion, no doctor could say, with any degree of certainty, whether or not the petitioner’s hack condition at the time of the hearing was due to the first or second accident, unless the doctor so testifying had seen the petitioner immediately after the first accident.

10. It appears from the evidence produced by the petitioner and the respondent that the petitioner had had two accidents in which he received injuries, subsequent to the injuries for which recovery is now' sought. On April 6th, 1925, the petitioner fell backwards down a flight of twelve steps, and claims to have received injuries to his head, right shoulder, right side, and fracture of the jaw. In July, 1926, while employed by the Duratex Company, the petitioner received an injury to his right chest. The only physician produced by the petitioner -did not see or examine the petitioner until after the second accident, and T am satisfied, from the proof produced by the respondent, that the petitioner’s disability at the present time is not more than ten per cent, of total permanent disability. I also find that the petitioner has failed to prove that he sustained a disability of more than ten per cent, of permanent total as a result of the accident, while employed by the respondent. From all of the testimony produced, I conclude that the respondent has paid to the petitioner all the compensation that is due him as a result of the accident which he sustained while in its employment on January 14th, 1925.

Harry J. Coas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ARTHUR GROVES, PETITIONER, v. MONMOUTH DAIRY COMPANY, RESPONDENT.
    Hernia — Question of Liability for Doctor’s Bills and for Truss Petitioner Had Contracted For — Held that $25 was Adequate Compensation for Truss and That ' Respondent was Not Responsible for Certain Doctor’s Bills.
    On petition, &c. On findings of fact, determination and rule for judgment.
    For the petitioner, Joseph B. Megill.

    For the respondent, Carl S. Kuebler, of McDermott-, En-right <& Carpenter.

   And it appearing from the testimony in said case and the stipulation of counsel that the petitioner was employed by the respondent on February 8th, 1926, at a weekly wage of $35 per week and that upon said date the petitioner sustained an accident arising out of and in the course of the employment.

I do find upon consideration of the testimony of the petitioner, Arthur Groves, and Mr. A. E. Sidwell, that the petitioner sustained an injury caused by the breaking of a chain hoist which gave way and jerked the petitioner clear off the floor and caused him to suffer from a compensable hernia. I find that the petitioner was sent by his employer to Dr. Parker and was examined by him on the day of the accident, at which time the doctor advised an operation, although Mr. Groves claims’that the doctor finally stated it would not be advisable because of his heart condition. I find, however, that the petitioner then went to a Mr. A. E. Sidwell, of As-bury Park, and that Mr. Sidwell made a contract with him to supply him with such trusses as he would need for a period of one year, all other appliances and to effect a cure of his hernia for $75. The petitioner testified that he paid Mr. A. E. Sidwell $35 cash and gave him a note for $40. In addition to this the petitioner claims that he returned to Dr. Parker for treatment and contended that he incurred a considerable bill with Dr. Parker.

I do find from said testimony that the petitioner did sustain a compensable hernia and that he refused an operation under the election given in paragraph X of section 11 of an act prescribing the liability of an employer to make compensation for injuries received by the employe in the course of his employment as approved April 4th, 1911, and amended thereafter, but that instead the employe elected to use a truss in and about effecting a cure or alleviation of his condition; that the contract made with Mr. A. E. Sidwell was a contract between the said Sidwell and the petitioner and that the respondent or its carrier was not a party to said contract and did not adopt or ratify said contract, and that under the terms of the section of the act heretofore referred to, the liability of the respondent is limited to the reasonable cost of the truss or other appliances found necessary and compensation for twenty weeks. I find that the compensation for twenty weeks amounting to $340 has already been paid and a reasonable cost of a truss is $25, and I do find that the petitioner is entitled to receive from the respondent for said truss or appliance the said sum of $25. I further find that the respondent or its carrier did not authorize the petitioner to continue treatments with Dr. Parker, and also from the testimony of Dr. Featherston that such treatments were not necessary as a result of the hernia, and that the petitioner is not entitled to any allowance for services alleged to have been rendered by Dr. Parker. I further find that there was no legal proof offered of said services, or the value thereof, but my opinion is not based entirely upon that ground.

I find that the respondent in its answer admitted that the petitioner was entitled to the expense of a truss amounting to approximately $25, and in view of that fact, I do not feel that I can award any counsel fee in this case as from my finding and the answer filed, the respondent prevails.

% ❖ ❖ ❖

W. E. Stubbs, Deputy Commissioner.


author: Backes, V. C.

text:
    Estate of Bernard Shanley, complainant, v. Fidelity Union Trust Company, defendant.
    [Decided August 1st, 1927.]
    Trusts — Trustee Appointed by This, Court Holds Securities Which it deems it wise to Sell — Wards do Not Want Them Sold — Certain Directors of Trustee, a Corporation, Also are Directors of Corporation Which Proposes to Buy — Trustee Expresses Fear of Liability to Infant Wards Unless Indemnified — Held, Trustee May Shift Responsibility to Court by Asking Instructions.

      Mr. Thomas G. Haight, for the complainant.

      Mr. Louis Hood, for the defendant.
   Backes, V. C.

Bernard Shanley, deceased, left his estate in trust for his widow and three children during the widow’s lifetime, the principal to be divided among the children at her death. The Fidelity Union Trust Company is the substituted trustee appointed by this court. Two millions and more dollars of the securities o£ the estate are in capital stock of gas companies, leased to the Public Service Company upon rentals that assure substantia] dividends. The Public Service Company holds a controlling interest of the capital stock of most of these companies and intends to merge them into the Public Service Company, obviously, to get rid of the leases, and to that end has offered to the stockholders of the gas companies, in exchange for their shares, certain securities of the Public Service Company, or to purchase them outright at figures fixed by the Public Service Company. The Fidelity Union company, the trustee, threatens to sell the Shanley stock. More than two-thirds in interest of the Shanley estate object. They do not want their securities disturbed — at all events, not at the prices offered. Some of the directors of the Fidelity Union Trust Company, who favor the sale, are also directors of the Public Service Company. The trust company is its financial agent. Upon the filing of the bill a restraint issued and the trust company was' ordered to show cause why it should not be restrained until final hearing from making the sale. After argument, Yice-Chaneellor Backes stated:

The Court — Our trustee is not possessed of an independent and impartial judgment as to the advisability of selling the stock, and, if it be advisable, at what price. A half dozen or more members of its board of directors are directors of the Public Service Company. They represent both buj^er and seller. As stockholders of the Public Service Company they have a pecuniary interest in the sale. It may be slight, but that is unimportant. They are our trustee and the law demands of trustees the utmost fidelity. It does not tolerate personal dealing with the trust estate nor permit the making of penny’s profit. The rule is grounded in sound morals and is reflected in the supplicating words of the Lord’s prayer, “Lead us not into temptation.” This is not an imputation upon the motives of the directorate of our trustee, but a simple statement of an elemental doctrine of the obligations of trustees. Further, these directors of our trustee owe a corresponding duty of loyalty to the Public Service Company, of which they are also trustees — directors are trustees. A trustee cannot serve two masters, with sharply, conflicting interests, equally well. It has been tried before. It cannot be done. A simple illustration: The directors of our trustee are in conscience bound to consider only the welfare of our wards and strive for the best price obtainable; as directors of the Public Service Company their duty is no less to secure the most favorable terms. The true balance is infinite. Trustees are not privileged to experiment with it. In the dilemma in which it found itself the course open to our trustees was to apply to the court for instructions, not to compel our wards to appeal for protection.

Now, as to the merits: Our wards complain that the sale of their stock and the conversion into money, even though the price he fair, will result in great pecuniary loss to them through the cost of reinvestment; the profit income tax to be paid to the federal government, and the likely depreciation in income on the new investments, and also that the character of their securities will suffer in the reinvestment. Our trustee answers that the market for the stock is presently favorable, the offer is advantageous, and that it is better that our wards’ securities be diversified; that it is unwise to carry too many eggs in the same basket. To this our wards reply that they do not want a market; that their securities were the investments of their testator, are gilt edge and difficult to duplicate; that they are content and want them retained. Our trustee should not be unmindful that the securities belong to our wards, not to our trustees, and that their wish should be our trustee’s demand. And our trustee is advised that is the court’s command until the final hearing.

Our trustee expresses fear of liability to onr infant wards unless the bid be accepted, and offers to refrain from selling if indemnified. Our trustee, apparently, is not alarmed over liability for selling the stock against the protest of a large majority of our wards, and without indemnity against personal loss. The stand is inconsistent. The trustee may shift the responsibility to the court by asking instructions.


text:
    MAX LEVY v. BETSY GOLLIN.
    Decided August 4, 1927.
    Contracts — Fees of Attorney-at-Law — Attorney Made a Contract With Client to Secure a Settlement of an Alleged Potential Action For a Stated Percentage of Amount Received —Settlement Secured but Not Ratified by Clients — Judgment for Plaintiff and Appeal — Held, That the Contract was Complete and Executed; Held, Further, That Failure to Show That the Contract for a Contingent Fee was Consistent With Lawyer’s Fiduciary Duties to His Client, That Plaintiff was Entitled to Recover Only Reasonable Compensation and That the Defendants Were Several and Not Joint, Were Not Made the Basis of Any Grounds for Reversal Appearing in Record and Therefore are Not Entitled to Consideration by the Court.
    On appeal from the Hudson Circuit Court.
    Before Gummere, Chiej? Justice, and Justice Trenchard.
    Eor the appellant, Autenrieth, Gannon & Wortendyke.

    Eor the respondent, Lazarus, Brenner & Vickers.

   Per Curiam.

The plaintiff, an attorney-at-law, brought suit against Betsey Gollin, the present appellant, and her brother, Samuel Gluckman, to recover fees claimed to be due to him for services rendered to them as attorney. The defendant Gluckman resides out of the state and never was served with process. The other defendant, Betsy Gollin, answered the plaintiff’s complaint; the case went to trial, and a verdict was entered in favor of the plaintiff and against her for the full amount claimed by the former; namely, $2,100. From the judgment entered against her upon this verdict Mrs. Gollin has appealed.

The plaintiff’s claim was that he had been employed by Mrs. Gollin, acting not only lor herself, but for her brother, to prevent, if possible, an intended conveyance by her sister-in-law, the widow of Tsaac Glnekman, of all the latter’s estate to a Hebrew association known as the Hnited Congregations of Bayonne. Isaac Glnekman, by his will, had left his whole estate to his widow, Rose, and the plaintiff, Levy, advised the defendants that they had no status to prevent the proposed conveyance by the widow of Isaac to this Hebrew association, but suggested that perhaps Rose Gluckman, the widow of Isaac, might be willing to make some payment of moneys to them in order to prevent any action being brought against her relating to the proposed conveyance, and suggested that he endeavor to bring about such a result. He submitted evidence that he was employed to do this, and that he was to receive for his services, in case he was successful in accomplishing such a settlement), twenty per cent, of the moneys agreed to be paid to his clients np to $8,000, and twenty-five per cent, of any amount in excess thereof. The proofs submitted by him further showed that negotiations were subsequently entered into between himself, on the one hand, as the representative of the defendants, and Rose Gluckman and the Hebrew association on the other, with the result that Rose agreed to pay the sum of $10,000 to Betsy Gollin and her brother, to be equally divided between them, in case they agreed not to attempt to interfere with her purpose in making the transfer to the association. The plaintiff reported to his clients the result of his negotiations with Rose and the association, and presented to them an agreement for their signature, by the terms of which they agreed to waive all rights to interfere with Rose’s disposal of her husband’s estate, and Rose agreed to pay to them the sum of $10,000 for such waiver. It appeared, however, that the agreement thus proposed contained this additional provision: “It is further agreed that the aforesaid sums of money shall not become due and payable unless and until the agreement aforesaid shall be approved by a court of competent jurisdiction.” The defendants refused to sign this agreement, for two reasons — first, because they did not think the sum offered was large enough; second, because they were unwilling to bind themselves to an agreement which, so far as the payment of the money to them was concerned, would not become operative until approved by some court. In this situation, as appears from the plaintiff’s evidence, he renewed negotiations with Rose and the Hebrew association, with the result that Rose Gluckman agreed that, instead of the $10,000 being held by her until the agreement above outlined should receive judicial approval, it should be held in escrow during the pendency of the proposed judicial proceeding, to be paid to the defendants at the expiration of thirty days, during which an answer could be filed by the defendants admitting the propriety of the agreement between Rose Gluckman and the association. The plaintiff testified that he submitted the proposed modification to his client, Mrs. Gollin, and that she fully agreed to and accepted it; but that, when he presented to her a draft of the agreement thus modified, she refused to execute it.

The principal ground upon which it is contended that the judgment under review should be reversed is that, upon the facts above recited, no right to- the compensation which is the basis of the plaintiff’s suit .is shown to exist, and that, therefore, the refusal of appellant’s motion for a nonsuit and of the motion to direct a verdict, which were rested upon this contention, were without legal justification. The argument in support of this proposition is that, by the agreement between the parties, the plaintiff’s right to compensation was contingent upon the actual signing of the proposed contract by his clients, on the one part, and Rose Gluckman and the association oh the other, and the payment to his clients of the moneys called for by that contract. But this proposition seems to us to be without merit. As appears from the above recital of facts, the defendants fully agreed to and accepted the terms of the proposed modified contract between themselves and Rose Gluckman and the association. This agreement was brought about by the efforts of the plaintiff, acting as the attorney of the defendants. By bringing about an agreement which was satisfactory to all the parties, and the terms of which were accepted by the defendants, the service for which he had been employed was completely performed, and his contract was fully executed. His right to the compensation to be paid for that service thereby became fixed, and could not thereafter be destroyed by the refusal of the defendants to execute the contract which he had successfully negotiated on their behalf.

Counsel for appellant also contends that the motion to nonsuit and the motion to direct a verdict were each of them improperly denied, for the reason that the plaintiff failed to show, as a part of his case, that the contract for a contingent fee was consistent with his fiduciary duties to his clients. It is enough to say, in disposing of this contention, that the alleged failure of the plaintiff in this regard was not suggested to the trial court as a reason for granting either the one or the other of these motions.

Counsel further argues that, assuming that the proofs show a right on the part of the plaintiff to be paid for the service rendered by him, he was not entitled to the fee fixed by his contract, but only to such sum as the jury should find would be a reasonable compensation for such service; and that, therefore, the judgment under review should be reversed. We are not called upon, however, to consider the soundness of this argument, for the grounds of reversal appearing in the record contain no suggestion that the judgment should be reversed for the reason indicated.

Lastly, counsel asserts that the contract for compensation made by the plaintiff with the defendants, Betsy Gollin and her brother, Samuel Gluckman, was several and not joint; and that, therefore, the appellant, Betsy Gollin, was only liable for one-half of the contingent fee payable under the plaintiff’s contract. But this phase of the case, like that last referred to, is not made the basis of any of the grounds of reversal appearing in the record, and, therefore, is not entitled to consideration by this court.

The judgment under review will he affirmed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LIZZIE W. COLTON, PETITIONER, v. WARREN MANUFACTURING COMPANY, A CORPORATION, RESPONDENT.
    Employe Found Dead in an Underground Passageway Infrequently Used — Evidence Showed That Employe Had Used Passageway to Reach Pump House to do Some Repairing; That While on His Way He Had Come Into Contact With Insufficiently Protected Electric Wires, Resulting in Death — ■ Respondent’s Objection That This Evidence was Insufficient Not Sustained.
    SUMMARY OP PACTS.
    The petition is filed by Lizzie W. Colton against the Warren Manufacturing Company, a corporation, for compensation, burial expenses, &c., under the provisions of the Workmen's Compensation law of New Jersey, its amendments and supplements. It is found to be a fact that Lizzie W. Colton' was the wife of Harry B. Colton on July 27th, 1925, both living together, and said Lizzie W. Colton depending upon Harry B. Colton for her maintenance. Said Harry B. Colton at that time was in the employ of the Warren Manufacturing Company, working as a master mechanic at a yearly salary of $3,000. His duties were to supervise the machinery, &c., at the mills of the company, located at Milford, New Jersey. On July 27th, 1925, a pump supplying the mill did not properly operate, and Mr. Colton, going to his home at noon, told Mrs. Colton that he would go down and fix the pump. It is found as a fact that he entered the tunnel leading from the mill to the pump house, which pump house was located some distance from the mill, and beneath the level of the ground. In the tunnel leading to the pump house from the mill were a number of conduits containing charged electric wires, conveying the electric current from the engine room of the mill to the pump, and used for the operation of the pump in the pump room. After passing from the tunnel in order to reach the pump it was necessary for a person to step down some distance from the floor level of the tunnel to the floor level of the pnmp house. Leading into the pump house were the conduits placed in such a position that one in entering the pump house might naturally take hold of the conduits for support in stepping from the door of the tunnel, either to a place on top of the pump and thence to the floor of the pump house, or in rising from the floor level of the pump house to the floor level of the tunnel. Early In the evening of July 27th, 1925, the body of Mr. Colton was found on the floor of the pump house. A prompt inspection was made of the tunnel and pump house, and the conduits containing the electric wires. In the dust accumulated on the conduits mentioned above were fresh marks having the appearance of a hand and finger prints. This fact was discovered by the electrician of the defendant company, and he, being desirous of ascertaining the cause of death of Mr. Colton, proceeded to make a test of the conduits. On the conduit containing the marks of the hand and linger prints he found an electric leakage equivalent, in his judgment, to one hundred and ten volts. Shortly after the body was found a sear was observed on the left hand, and it was established the sear was not there shortly before the death.
   oniNiosr.

The respondent employer, upon the discovery of the body of Harry B>. Colton, became suspicious of the cause of death, and made a real effort to find the cause. The discovery of the hand and finger prints on the dusty conduits was the reason for the test of the conduit. The conduit was defective as it allowed electricity, presumably to the extent of one hundred and ten volts, to escape. My inquiry into this question convinces me that this leakage is sufficient to cause death under certain conditions, and I am impressed with the fact that these conditions, one of which constitutes a good grounding of the current, were here present. One could hardly arrange a better grounding than an iron pump connected by piping to the general water system of the plant. It must be borne in mind that an intensity of shock which might stun one person might be fatal to another. The duration of the exposure is also an important element. Experts, versed in such matters, are aware that an exposure of a fraction of a .minute will result far more disastrously than one of a much higher voltage in which the contact be only an instantaneous one..

Strenuous objection was made by counsel for the defense to all testimony relative to the disturbed dust on the conduit pipe, but the testimony of employes at the plant is convincing that this spot was one practically never visited by anyone unless obliged to go there. Proof that the marks of disturbed dust were made by Mr. Colton may be impossible, but this fact is patent. The electrician’s testimony indicated that deterioration of the insulation on the wire in the conduit resulted in the short circuit he found. The short circuiting condition resulted gradually and must have been present for some little time. The disturbing of the dust was recent, and if not done by Mr. Colton, then someone else must have had an experience with this conduit, and it is but reasonable to conclude that the matter would have been reported. The absence of any knowledge of this condition is too significant to be disregarded.

Taking the whole picture under observation, comprising a pump well or basement, a tunnel leading therefrom with entrance approximately four feet above the floor, a pump with a convenient stepping place about two feet high, an iron conduit, shoulder high, available as a hand hold, a short-circuited current in this conduit, a lifeless body on the floor of the pit with unnatural markings across the palm, reviewing this picture in detail I am unable to escape the conclusion that it is entirely reasonable to -infer that the deceased came to his death as the result of an electric shock, arising out of and in the course of his occupation. Such an assumption is not only reasonable but seems almost imperative.

OEDEE.

It is ordered and directed that the defendant, Warren Manufacturing Company, a corporation, do pay to the petitioner, Lizzie W. Colton, the sum of $17 a week for a period of three hundred weeks from Jnly 27th, 1925; that an additional sum of $150 be paid by the defendant, Warren Manufacturing Company, to complainant, this being the sum provided by statute for the funeral expenses incurred by the petitioner in the burial of the said Harry B. Colton; and said Warren Manufacturing Company shall also pay to William E. Cooper, as counsel for said Lizzie W. Colton, the sum of $200 as counsel fee, and the further sum of $19.15 for subpoenas and witness fees.

W. E. Stubbs, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY McTIGUE, PETITIONER, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, RESPONDENT.
    Employe, Night Watchman on a Pier, was Drowned While on Duty — Sole Question is Whether Employe was Engaged in intrastate or Interstate Commerce — Pier was Used Wholly in Handling Interstate Merchandise — Held, That the Business was Interstate, and Recourse Must be Had to Federal Employers’ Liability Act.
    On petition for compensation. On determination, statement of facts and rule for judgment.
    For the petitioner, Raskin, Hornslein <0 Riiskm (by Victor Rusk in).

    For the respondent, IF. H. Failing (by Walter F. Nivison).

   :S :!: * *

Decedent was employed by the respondent as a night watchman on piers 10 to 15, inclusive, at the Gommunipaw terminal of said respondent at Jersey City, New Jersey. These piers bordered on the North river. The duties of said decedent were generally to watch said piers, to check the arrival and departure of boats to and from said piers, to guard against fire and theft on said piers and to protect such piers and other railroad property and freight contained thereon or connected therewith. In the evening of December 17th, 1925, decedent reported for work at his usual hour of six o’clock in the evening and continued to perform his duties as watchman until about nine-thirty or ten p. M., at which time he was missed from his station. The fact of his absence was duly reported and a search instituted, but no trace of him was found until March 7th, 1926, on which date his body was found floating in the North or Hudson river at the end of pier 18, not far from the place where he was last seen alive. It further appears that shortly prior to his disappearance he had told a fellow-watchman that he was going to an office on pier 14 to put away his lunch.

It was undisputed that the death of the decedent was caused by drowning, nor was it contested that the accident arose out of and in the course of decedent’s employment. The sole issue, therefore, was whether at the time of his accident the decedent was engaged in intrastate commerce or in interstate commerce, for it is clear that if he was engaged in interstate commerce at such time the New Jersey Workmen’s Compensation act would, have no application and petitioner’s sole remedy, if any, would be under the Federal Employers’ Liability act. Rounsaville v. The Central Railroad Company of New Jersey, 90 N. J. L. 176; New York Central Railroad Co. v. Winfield, 244 U. S. 147.

In this proceeding the burden was on the petitioner to prove affirmatively that at the time of the accident the decedent was engaged in intrastate commerce. Carberry v. Delaware, Lackawanna and Western Railroad Co., 93 N. J. L. 414; Lincks v. Erie Railroad Co., 91 Id. 166. The petitioner, however, not only failed io sustain this burden, but the evidence affirmatively showed that at the time of the accident the decedent was engaged in interstate commerce.

It appeared that the piers upon which the decedent was employed were used exclusively for the handling of interstate freight, and that although the decedent had no part hi the actual handling of any of this freight, yet, his duties included the watching of the docks themselves and railroad property of a stationery character contained on such piers and used for protective purposes, such as fire hose, pails, tools, sandboxes, &c. Thus, the affirmative evidence was that the work of the decedent was in connection with property devoted exclusively to interstate commerce.

In the leading case of Pederson v. Delaware, Lackawanna and Western Railroad Co., 229 U. S. 146, the plaintiff was carrying bolts to be used in repairing a bridge belonging to the defendant and regularly used in both interstate and intrastate commerce, and while carrying such bolts was struck by an intrastate passenger train. The Supreme Court of the United States, holding that the plaintiff at the time of the accident was engaged in interstate commerce, said, inter alia:

“True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.”

In the case of Philadelphia and Reading Railway Co. v. DiDonato, 256 U. S. 327, the United States Supreme Court held that a watchman employed on an interstate railroad at a public grade crossing to signal both interstate and intrastate trains and guard the tracks against disorder and obstruction, was employed in interstate commerce, irrespective of the interstate or intrastate character of the particular train he might be flagging when injured. The court said, in part:

“DiDonato’s duty had other purpose than the prevention of a disaster to a particular train. It had purpose as well to the condition of the tracks and their preservation from disorder and obstructions.”

See, also, Flynn v. New York, Susquehanna and Western Railroad Co., 90 N. J. L. 450; Southern Pacific Co. v. Industrial Accident Commission of the State of California, 174 Cal. 8, 16.

In Culp v. Atlantic City Railroad, 93 N. J. L. 244, petitioner was injured while painting a baggage-room used by the defendant railroad company at its Cape May terminal for the storage of both interstate and intrastate baggage. The Court of Errors and Appeals held that the plaintiff was engaged in interstate commerce and consequently had no standing under the State Workmen’s Compensation act. The court said, in part:

“Whether or not the petitioner was engaged in interstate commerce depends upon whether the baggage-room was an instrumentality used by the carrier in the handling of its interstate business.”

In Vincelli v. The Central Railroad Company of New Jersey, 98 N. J. L. 726, the Court of Errors and Appeals held that a sectionman who was injured while working upon the tracks and roadbed of the railroad which at such time was used in both interstate and intrastate commerce, was engaged in interstate commerce and was not entitled to invoke the protection of the New Jersey Workmen’s Compensation act.

Thus, it appears that where an employe’s work is in connection with an instrument of the carrier used in both interstate and intrastate traffic or commerce, the employe in all of such cases is held to be employed in interstate commerce, and his remedy, if any, is exclusively under the. Federal Employers’ Liability act.

In the case at bar, however, it is undisputed that the decedent’s duties were solely in connection with property and instrumentalities of the defendant used exclusively in interstate commerce. This leads to the inevitable result that the State act has no application and the workmen’s compensation bureau is without jurisdiction. '

The case of Bissett v. Lehigh Valley Railroad Co., 4 N. J. Adv. R. 519; affirmed, 4 Id. 1855, is not in point. In that case the employe was repairing an engine which had been withdrawn from service, and the decision that the employe was engaged in intrastate commerce was specifically based upon the fact as found by the Essex County Court of Common Pleas that at the time of the accident such engine was “not engaged in any commerce” but was withdrawn therefrom for repairs. This was in line with the well-settled rule as annunciated in Herzog v. Hines, 95 N. J. L. 98; Price v. The Central Railroad Co. of New Jersey, 99 Id. 425; Jayson v. Pennsylvania Railroad Co., 3 N. J. Adv. R. 199.

The distinction between such line of cases and the instant case is obvious, for in the instant case none of the instrumentalities of transportation or property of the respondent which the decedent was watching, guarding or protecting, was withdrawn from service, but all were in service, and, in addition, exclusively used in such service in interstate commerce.

The petition should therefore be dismissed.

* ❖ ❖ * * * *

Charles E. Corbin, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JACOB MILLER, PETITIONER, v. AUTOSTRAP SAFETY RAZOR COMPANY, RESPONDENT.
    Alleged Injury to Toe of Employe — Evidence Examined, and It Does Not Appear That Petitioner Has Borne Burden of Proof That Injury was Received While Engaged in the Employment.
    On determination of facts and rule for judgment.
    Eor the petitioner, J. Thaddeus Rospond.

    Eor the respondent, McCarter & English.

   sis :¡: ❖ :i: H*

Petitioner alleged that while in the employ of the respondent a barrel slipped off a scale, a distance of perhaps six inches, striking his left foot. There is a direct conflict in petitioner’s case as to the date of this alleged accident, but none of the testimony places it prior to December 22d, 1925. On January 4th, 1926, he was operated on at Irvington General Hospital by a Dr. Gutowski. This operation, according to the doctor’s testimony, was of the type, or similar to, a hallux valgus operation, which latter is the one performed for a bunion condition and was performed on petitioner’s left big toe. This, doctor said that at that time he removed separate pieces of dead neurotic bone. Petitioner, on his direct examination, denied any trouble with his left foot prior to his alleged accident, and that it had ever been cut by a doctor prior to the operation of January 4th, 1926. On cross-examination he admitted that Dr. Gutowsky had cut his foot prior to his entrance to the hospital, and before the operation of January 4th, 1926. A witness for the petitioner, who had been a fellow-workman with him, on cross-examination, testified that petitioner, before the alleged accident, had told him about his trouble with the bunion on his left foot.

Dr. Vanderhoff, a witness for the respondent,' testified that he examined the petitioner in March, 1926, at his office, and that, in his opinion, what petitioner had been suffering from was a bunion condition in his left foot. Eegarding the separate pieces of neurotic dead bone which Dr. Gutowsky testified he found on January 4th, 1926, Dr. Vanderhoff testified that the shortest possible time for these to have formed would have been at least five weéks, and that they could not have formed within two weeks.

On entering the Irvington General Hospital on January 4th, 1926, the petitioner gave the history of his case to the historian of the hospital, Miss Fitzgerald, who testified. The official records of the hospital were in court, and using the personal history chart from such records, which was in her handwriting and signed by her, to refresh her memory, she stated that petitioner at that time complained of pain, heat, redness and swelling of left foot. That he, one year ago, noticed some redness and swelling in large toe; this condition gradually became worse. One month ago he was unable to work due to pain in left foot. He consulted his family physician who treated it and inserted a drain; that there was some slight drainage present up to the time of admission, and that petitioner stated the cause to he tight, heavy simes. She further testified that petitioner gave no other cause for his then present condition and did not ascribe it to any accident.

Prom the above resume of the testimony, it is evident that petitioner has not sustained the burden of proof which is his. From the weight of the evidence, particularly petitioner’s voluntary statement to the Irvington General Hospital, it docs not seem that the condition in his left toe was the result of any accident.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES WARD, PETITIONER, v. SHAPIRO CONSTRUCTION COMPANY, RESPONDENT.
    Injury to Finger Resulting in Infection — Employe Did Not Sustain Burden of Proof That Infection was Result of an Injury Received During the Course of Employment.
    On determination of facts and findings.
    For the petitioner, Thomas F. Griffin.

    For the respondent, Harry F. Walburg.

   #

2. The petitioner testified that on August 11th, 1926, he was working for the respondent as a laborer at Clinton, New Jersey; at that time he was using a pick when the pick struck a rock or stone and the jar caused the fourth finger of the right hand to strike against the pick handle. His finger pained him for a short while, but the finger was not cut, nor was there any break of the skin. At that time he also had a blister on this finger, but the blister did not break and he had had this blister on the finger for several days, the blister having resulted from the rubbing of his finger against the pick handle while performing his work. He continued working until August 16th, and on that day he was sent by a Mr. Knox, an employe of the respondent, to a Dr. Boothby, in Clinton, New Jersey, his right hand at that time being swollen. Dr. Boothby told the petitioner that there was an infection in the fourth finger and he applied some ointment to it and the blister then opened. The following day he was sent by Dr. Boothby to the Somerset Hospital, in Somerville, New Jersey, where the fourth finger of the right hand was amputated. Willie Jones, a witness for the petitioner, testified that he was working with the petitioner when the petitioner struck the fourth finger of his right hand against the pick handle, and he heard the petitioner complain of pain in this finger for a short time. He did not have any knowledge of the blister on the petitioner’s finger.

3. The respondent rested its case without introducing any evidence and moved to dismiss the claim petition on the ground that the petitioner had failed to prove that his injury resulted out of an accident arising out of and in the course of his employment.

4. I find from the evidence produced by the petitioner that, as a result of an infection, the fourth finger of his right hand was amputated, but that he has failed to prove that his injury was the result of an accident arising out of and in the course of his employment with the respondent. There is no evidence from which I can find that the striking of the fourth finger of the right hand against the pick handle had any connection with the infection, and if the infection followed as a result of the blister which the petitioner had on his finger, then the disability was an occupational one, resulting from the constant nse of tools and is not compensable.

% i'.i #

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BENJAMIN KOEHN, PETITIONER, v. PINCUS LARHOFF, RESPONDENT.
    Employe, a Baker, was Injured in the Back While in Course of His Employment, Through the Falling of Several Bags of Flour — Due Notice of Injury Alleged, but Not Sustained— Held, Injury of a Permanent Nature, the Impairment Being Fifteen Per cent, of the Usefulness of Body.
    On petition, &c. On determination and finding of fact and rule for judgment.
   A petition having been filed in the above-entitled proceeding praying for the determination of the compensation due the petitioner under an act of the legislature of the State of New Jersey, entitled “An act prescribing the liability of an employer to make compensation for injuries received by ail emplojT in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and acts amendatory thereof and supplemental thereto, and the said petition having been duly served and the parties having agreed upon the compensation to which the said petitioner is entitled under the act above mentioned, I do hereby determine and find as follows:

1. That on January 30th, 1926, the petitioner was employed by the respondent at an average weekly salary of $70 per week, as a baker in and about his business of baking breads and other food stuffs, and while so engaged in the course of his employment, on January 30th, 1927, at the respondent’s place of business in Newark, New Jersey, the petitioner sustained an accident, which said accident arose out of and in the course of his employment with the respondent, and I find that the respondent had due knowledge of the occurrence thereof.

2. It appears from the testimony that the petitioner, at about four o’clock in the morning of January 30th, 1926, while in the course of his duty as a baker, had occasion to go to the cellar to bring up flour. Petitioner testifies that in attempting to carry one of these bags of flour, an entire stack of bags filled with flour fell upon him throwing him to the ground sustaining the injuries complained of. That immediately thereafter he ceased working and went to his apartment, which is above that of the respondent, who is the father-in-law of the petitioner. The testimony of the respondent’s physician, Dr. Mishell, bears out the testimony of the petitioner in that he treated the petitioner on January 30th, 1926, and found a tenderness over the entire back, injuries, lacerations of the face and kindred symptoms. Dr. Mishell treated the petitioner on behalf of the respondent for a few weeks at his home, and thereupon treated the petitioner at his office until about June, 1926. He pleads lack of notice of the injury and that the petitioner did not sustain disability through an accident with him. I do not care to go into the domestic difficulties between the parties hereto. It is apparent that the same has influenced the testimony of the respondent and his son, a witness in his behalf. This is especially borne out by the fact that a large batch of checks in payment of temporary disability and part of permanent disability allowed at informal hearing and paid by the insurance on behalf of the respondent, were endorsed and cashed hy the respondent herein for his son-in-law when the parties were on better terms during the very time when the respondent claims that he had no knowledge thereof. This, together with the testimony of Dr. Mishell, the respondent’s physician who testified that he called on the petitioner, at the very same building wherein the respondent resides, and the various conversations had between the petitioner and the respondent. I find as a matter of fact that the respondent had due notice of the accident herein.

3. It appears from the testimony that the petitioner sustained an injury to the hack, a general tenderness of both lumbar regions of the sacro-iliac, especially over the fourth lumbar vertebrae and a resulting spasm of the lumbar muscles, with a limitation of flexion and loss of function, and from the testimony of both the petitioner’s and respondent’s witnesses, I find that the same has a permanent disability to the extent of fifteen per cent, of the usefulness of his body, for which the petitioner is entitled to receive compensation for a period of seventy-five weeks at the rate of $17 per week, being fifteen per cent, of total permanent disability. I therefore find and determine as follows:

(1) That on January 30th, 1926, the petitioner was employed by Pine us Larhoff, respondent herein, and that he then met with an accident arising out of and in the course of his employment with the respondent, and that the said injury was not self-inflicted, nor was intoxication the proximate cause thereof.

(2) That the respondent had due notice of the accident, and that the petitioner was at the time earning $70 per week.

(3) As result of the said accident, petitioner was injured and sustained temporary disability during a period of twenty-three and four sevenths weeks, from January 30th, 1926, to July loth, 1926, at the compensation rate of $17 per week. The full amount of which has already been paid to the petitioner.

(4) I. find, as a result of the said accident, the petitioner was injured and sustained injuries which are of a permanent nature, and as result thereof sustained an impairment to the extent of fifteen per cent, of permanent total disability, being a period of seventy-five weeks, at the compensation rate of $17 per week from July 15th, 1926.

It is therefore on this 27th day of April, 1927, ordered that judgment be entered in favor of the petitioner and against the respondent for temporary disability from January 30th, 1926, to July 15th, 1926, being twenty-three and four-sevenths weeks, the full amount of which has been paid; and it- is further ordered that judgment be entered in favor of the petitioner and against the respondent for permanent disability from July 15th, 1926, to December 21st, 1927, being a period of seventy-five weeks, at the compensation rate of $17 per week; and it is further ordered that the respondent pay to David Eoskein, attorney for the petitioner, the sum of $75 for services rendered in connection with the filing of the formal petition, and that the petitioner pay to David Eoskein the sum of $50 for services rendered in connection therewith; and it is ordered that the respondent pay to the petitioner on behalf of the expenses incurred by the petitioner for medical testimony in this matter, the sum of $100; and it is further ordered that the respondent pay the taxed costs of these proceedings.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA BELYUS, PETITIONER, v. WILKINSON, GADDIS & COMPANY, RESPONDENT.
    Old Employe Died as Result of Burns — Only Question was Whether Burns Had Been Received While in the Course of Employment.
    On determination and finding of facts and rule for judgment.
   & £ ;Jí í¡í # # &

1. The admitted and proven facts in the ease indicate that the deceased, Michael Belyus, died on August —, 1925, as a result of severe burns which he received two days previously while in the course of his employment with the respondent, and which, had continued without interruption for a period of thirty-two years.

It appears that up to six months of the time of the accident he had been employed in the stables, and on the substitution of motor trucks for horse-drawn vehicles, Belyus became a handy man in the garage. In view of his long and faithful years of service added to his inability to adapt himself to the changed conditions, lie was given considerable latitude in his work. There is testimony tending to show that he performed some work around the garages on the day in question, and the crux of the case is whether the fire and subsequent death arose out of and in the course of the employment.

No person witnessed the accident. William H. Taylor, maintenance superintendent in charge of the rolling equipment and garage in Newark, testified that the deceased was very illiterate, and that “anything he did was satisfactory to me as I was directly over him.” He was at once summoned to the scene, and noticed that fellow-employes were extinguishing fire in a paii, with nothing in the vicinity to indicate its original or to show what Belyus liad been doing with the pail. His shirt had been burned oil the body, the trousers burned in shreds, and part of the body reddened by the burns.

This witness assumed it was gasoline burning in the pail, which was located on the ground about one hundred feet from where Belyus was then standing, and he testified further that there were no lights or lighted furnace around, that ho had not been known to smoke on the premises and “they never had seen him wash anything except a chassis once in a while.”

Elmwood Helwig, foreman of the garage, in direct testimony, said that on being told by Mr. Stewart of the occurrenee, they ran over and worked frantically to extinguish the flames. The deceased groaned and they practically tore the clothes off his back, in addition to playing the hose on him.

The only witness introduced by the respondent was Charles Stewart, who testified that he first saw the deceased in flames in the stable across the street from the garage, when he went over to get a tool. While endeavoring to extinguish the flames, he asked him what had happened, to which the sole reply was, “I was washing the little boy’s pants.” No other person had yet arrived on the scene, and Belyus was in very great pain and distress, and, of course, greatly excited. The testimony further indicates that Stewart had not seen any pants at the scene of the accident, and Mrs. Belyus testified she always did the washing for her family, and no pants of other wearing apparel was missing.

This is a summary of the testimony in the case. It is quite significant that nothing is mentioned anywhere of anything in the vicinity to indicate what was burning, beyond the inflammable liquid in the pail. No pants were visible, not even a buckle or a button remained to tell the tale. Surely if pants had been washed, some tangible evidence of this would have been found. Without questioning the veracity of the sole witness for the respondent, and laboring under the stress of strong excitement, it is quite possible that he misunderstood these few words of Belyus under the extraordinary circumstances.

I am, accordingly, of the opinion that the petitioner has met the burden of proving that the accident arose not only in the course of, but also out of the employment, and that she is entitled to compensation for herself and son on the basis of total dependency upon the deceased, and that the widow of the deceased conclusively proved the dependency, and there is a minor child of the age of fourteen.

The sole dependents are Anna Belyus, the widow of the deceased, and Joseph Belyus, a son, born on January 1st, 1913. Compensation is therefore based on forty per cent, of the wages of $22, or $8.80 per week, payable to Anna Belyus for herself and son, until Joseph arrives at the age of sixteen years. Thereafter, the widow is entitled to thirty-five per cent, of the wages, or $7.70 for the unexpired period of three hundred weeks dating from the accident. Also the funeral expenses of $150 and hospital bill from the St. Michael Hospital, and counsel fee to be paid by the respondent.

# * # * ❖ #

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PHILIP FREITAG, PETITIONER, v. BRADY BRASS COMPANY AND BRONZE METAL COMPANY, RESPONDENT.
    Petitioner Alleges Lead Poisoning — Respondent Denies it, at Least so far as the Employment is Concerned — Compromise Suggested, Accepted and Approved.
    On determination.
    .For the petitioner, Emile Neblo.

    For the respondent, Richard W. Baker.

   The petitioner alleges that he is suffering from lead poisoning contracted on or about November 26th, 1926, while in the employ of the respondent. The respondent, however, denies that the petitioner is suffering from lead poisoning, and further states that if the petitioner is suffering from lead poisoning, he did not contract it while working for the respondent so as to make it a coinpensible occupational disease.

It was finally agreed between all parties that the case be settled by the respondent paying to the petitioner thirty-two weeks’ compensation for temporary disability at the rate of $17 per week, and further pay two hundred and fifty weeks’ compensation for permanent disability based upon fifty per cent, of total permanent disability. The respondent further agreed to .pay a counsel fee of $200, and further arranged to pay $50 for medical examination, together with reasonable medical expenses incurred by the petitioner up to the date of this determination. The entire amount of compensation for temporary disability to be paid forthwith.

Accordingly, after going into the matter, I hereby order that judgment be entered for the petitioner and against the respondent for thirty-two weeks’ compensation for temporary disability at $17 a week, and two hundred and' fifty weeks’ compensation for permanent disability based on fifty per cent, of partial total permanent disability, and further order that the respondent pay to the attorney for the petiioner a $200 counsel fee and $50 for medical examination; likewise, that the respondent pay reasonable medical expenses incurred to the date of this hearing. The entire amount of compensation for temporary disability to be paid forthwith.

Charles E. Corbin, Deputy Commissioner.


text:
    THOMAS ROSS, AN INFANT, BY NEXT FRIEND, v. PENNSYLVANIA RAILROAD COMPANY AND CALVIN W. STEELMAN. DANIEL ROSS, ADMINISTRATOR AD PROSEQUENDUM OF ROBERT ROSS, DECEASED, v. PENNSYLVANIA RAILROAD COMPANY AND CALVIN W. STEELMAN. DANIEL ROSS, ADMINISTRATOR AD PROSEQUENDUM OF THOMAS ROSS, DECEASED, v. PENNSYLVANIA RAILROAD COMPANY AND CALVIN W. STEELMAN.
    Decided August 4, 1927.
    Negligence — Motor Vehicle Collision With Railroad Train— Judgments Against Railroad Company in These Suits Growing Out of Accident — Held, That the Judgment was Not Clearly Excessive, That it was Not Without Legal Support, Nor was it Against Weight of Evidence.
    On defendants’ rule to show cause.
    Before Gummeee, Chief Justice, and Justice Minturx.
    For the rules, Wall, Haight, Carey & IJartpence.

      Contra, Richard, J. Mackey.

   Per Curiam.

These three cases were tried together. The first was brought by Tilomas Ross, an infant, to recover compensation for injuries received by him in a collision between an automobile in which ho was riding, and which was being driven by his father, and a train of the Pennsylvania Eailroad Company, at a railroad crossing in Milmay, New Jersey. The second suit was brought by the administrator ad prosequendum of Bobert Boss, deceased, for the pecuniary loss sustained by the boy, Thomas, through the death of his brother, Bobert, who was three years old, which resulted from the same accident. The third was brought by the administrator ad prosequendum of Thomas Ross to recover the pecuniary loss sustained by the boy, Thomas, the son of the decedent, arising out of the death of the latter, which death also occurred in the same accident. The trial of the cases resulted in a verdict in favor of the boy, Thomas, as compensation for the injuries received by him, of $20,000; in a verdict in favor of the administrator of Thomas Ross, Sr., for the sum of $12,000, as compensation for the pecuniary loss sustained by the boy, Thomas, as his-sole next of kin, and in a further verdict in favor of the administrator of Robert Ross for the sum of six cents as compensation for the pecuniary loss sustained by Thomas through the death of his small brother.

The first contention is that these verdicts, of $20,000 in favor of the boy for the injury sustained by him and $12,000 in favor of the administrator for the pecuniary loss sustained by the boy through the death of his father, are excessive. Our examination of the testimony showing the seriousness and permanence of the injury sustained by the boy leads us to the conclusion that the verdict in his favor is not so clearly excessive as to justify us in setting it aside. Nor can we say that the jury was not justified in finding that the pecuniary loss sustained by the boy by reason of the death of his father was the amount fixed them.

It is further argued that the verdicts against the Pennsylvania Railroad Company are without legal support, for the reason that it was not in control of, or operating, the train which collided with the automobile in which the boy’s father and other members of his family were riding. We think there is nothing in this contention. The train was a train of the West Jersey and Seashore Railroad Company. It is admitted that that company is controlled by the Pennsylvania Railroad Company as a part of the latter’s system, and that its railroad, at the time when the accident happened, was being operated by the latter as a part of ■ its system. The contention that the engineer of the train was being paid by the West Jersey, &c., Railroad Company, and that, therefore, the Penns3dvania Railroad Company was not responsible for his carelessness, seems to ns without merit. A man is responsible for the carelessness of his employe which produces injury to another, although the employe’s wages may be paid by some third person.

It is further argued that the verdicts are against the weight of the evidence in their finding of negligence on the part of the engine driver, the contention being that the accident was caused solely by the negligence of Eoss, the father of the infant, plaintiff in one of these cases. We think the testimony fairly supported the conclusion of the jury that the accident occurred to some extent through the negligence of the engineer in failing to discover the automobile (which had stalled upon the railroad tracks) in time to avoid the collision; for he had a clear view down the tracks, apparently, for at least a mile. We think, too, that the alleged negligence of the father, he being the driver of the ear, was not only a question to be determined by the jury, but that its finding was not so clearly against the weight of the evidence as to justify our interference.

We find nothing in the other grounds upon which we are asked to make these rules absolute which would justify such an action on our part.

Our conclusion is that, for the reasons indicated, the rules to show cause should be discharged.


text:
    DANIEL ROSS, ADMINISTRATOR AD PROSEQUENDUM, v. PENNSYLVANIA RAILROAD COMPANY AND CALVIN W. STEELMAN.
    Decided August 4, 1927.
    Negligence — Joint Negligence of Two Wrong-doers — Jury Rendered a General Verdict and Assessed the Damages in the Sum of 16.000 Against Each of the Co-defendants — A Single Verdict Against Both was Not Rendered — Held, That There is Nothing to Show the Purpose of the Jury — Rule Made Absolute.
    On defendants’ rule to show cause.

      Before Gummere, Ci-iief Justice, and Justice Minturn.
    Eor the rule, Wall, Haight, Carey & Hart-pence.

      Contra, Richard J. Mackey.

   Per Curiam.

The plaintiff brought suit as administrator ad prosequendum of Christina Boss, deceased, to recover the pecuniary loss sustained by her son and sole next of kin, who was four years old. Mrs. Boss was killed in the collision of an automobile in which she was riding with a train of the Pennsylvania Eailroad Company at a railroad crossing in Milmay, New Jersey, in November, 1923. The averment of the complaint is -that the accident was the result of the joint negligence of the íailroad company and its co-defendant, Steel-man, who was the engineer operating the train. As appears from the postea in the case, “The jury rendered a general verdict in favor of the plaintiff and against the defendants, Pennsylvania Eailroad Company and Calvin W. Steelman, and assessed the damages at the Circuit to Daniel Boss, administrator, the sum of $16,000 against the Pennsylvania Eailroad Company; and to Daniel Boss, administrator, the sum of $16,000 against Calvin W. Steelman.” The defendants contend that this verdict cannot be supported because by it the jury apportioned the damages to which the plaintiff was entitled between the joint wrongrdoers, assessing against each of them the sum of $16,000, instead of finding a single verdict against both, as the law required. Counsel for the plaintiff concedes that an attempt by a jury to apportion between joint wrong-doers the damages sustained by the plaintiff, or the person whom he represents, cannot be legally justified; but he argues that the verdict intended to be rendered and actually rendered by the jury was an award of $16,000 to the plaintiff, and the imposition upon both defendants of the liability to pay this amount. The difficulty with this contention is that the verdict itself does not show any such purpose on the part of the jury. The wording of the verdict indicates an intention to apportion the damages as between the two defendants, making each one of them liable for the amount specified in its findings, and awarding the plaintiff the sum total of these two amounts. Whether its purpose was other than that expressed by it in the verdict acually rendered cannot be guessed at by the court. In the absence of anything even suggestive of a different purpose on the part of the jury, we must accept its statement as indicating it; namely, to apportion the damages between the two joint wrong-doers.

This, as has already been said, being without legal justification, the rule to show cause must he made absolute.