text:
    HENSGEN BROS., INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES GRIP, OTHERWISE KNOWN AS KARL AUGUST GRIP, OTHERWISE KNOWN AS CHARLES GRIBUL AND WALLY EMILIA GRIP, HIS WIFE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951
    Decided April 18, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. William G. Gotshalh argued the cause for the plaintiff-respondent.

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

Eastwood, J. A. D.

This case illustrates the well-known risks inherent in oral contracts involving an expenditure of thousands of dollars. However, it demonstrates that there are persons still willing to undertake and assume that risk.

The oral contract entered into provided for the construction of a building to be used as a combination washroom and comfort station by occupants of trailers at the trailer camp of the defendants and a supplemental contract for work to include sidewalks, fire hydrants, incinerator, water lines with outlets, waste water or sewer lines with outlets, etc. The plaintiff asserts that payment was to be on the basis of cost plus commissions, totalling $37,541.97, on account of which defendants paid $26,500, leaving a balance due plaintiff of $11,041.97. The defendants assert that the plaintiff agreed to perform the necessary work and furnish the necessary materials for both the main and supplemental contracts for the sum of $26,500, which they fully paid to plaintiff. The defendants filed a counterclaim asserting in the first count thereof that the plaintiff agreed to erect “a building which was to contain a comfort station, washroom, etc., for the sum of twenty thousand ($20,000.00) dollars, which price was to include the furnishing of a proper and adequate water supply and sewer system, water mains, electrical outlets, heat units and plumbing, etc.;” that the plaintiff had breached its agreement with the defendants by using incompetent and unskilled labor and furnishing defective and substandard materials. And in the second count, which dealt with the supplemental contract for the “laying of small cement sidewalks, electrical outlets, water mains, fire hydrants, electric parts and assorted boxes, fabricating an incinerator, furnishing backboard to the slop sink, etc.,” asserted that the “plaintiff breached its agreement with the defendants in that it did not complete the aforesaid extras in a good and workmanlike manner; did not and has not performed certain of the extras, although the plaintiff has been fully paid therefore”; seeking judgment in the sum of $10,000 on the first count to compensate defendants for expenditures necessary to “complete, re-model, repair and re-alter the aforesaid building” and $5,000 on the second count “to complete the extras which should have been performed and completed by the plaintiff.” The jury returned a verdict in favor of the plaintiff against the defendants in the sum of $8,011.82. It is from this judgment that defendants appeal.

The defendants argue several grounds for a reversal of the judgment against them. We deem it unnecessary to discuss and decide all of the grounds advanced by defendants. They resolve themselves into a contention that the trial judge erred in striking the testimony of two expert witnesses, llrquhart Ward and James De Genova, whose, testimony defendants contend was properly admissible to support the allegations of the second count of the counterclaim that certain pipe known as Orangeburg pipe used in connection with the waste water line, was improper and defective material, in that it did not conform to the plumbing code of the City of Gam don and that it would cost approximately the sum of $3,000 to replace it; and, further, that the court erred in charging the jury to disregard that portion of the counterclaim which concerned the “Orangeburg pipe.”

It is interesting to note that at the trial when the witness Urquhart Ward, who was plumbing inspector of the City of Camden, testified that the Orangeburg pipe was not permissible for use in a waste water line under the Camden City code and when the other expert witness, Do Genova, testified as to the cost of replacing the Orangeburg pipe with pipe that would conform to the- Camden City plumbing code, their testimony was admitted without challenge by the plaintiff. However, at the end of the defendants’ case, the plaintiff moved that the testimony of these two witnesses be stricken, on the ground that the pre-trial order did not specify nor comprehend any claim by defendants of defective material in the waste water line laid by the plaintiff. This motion was denied, whereupon plaintiff proceeded to offer in rebuttal the testimony of Herman E. Hensgen, an official of the plaintiff-corporation, who testified that the oral agreement entered into by the parties specified the use of Orangeburg pipe for the waste water lines; that defendant, Charles Grip, was present and aided in the supervision of the laying of the Orangeburg pipe; that Grip never questioned the type of pipe that was being used and, in fact, Grip did not at any time, until the institution of this action, make any complaint that the Orange-burg pipe was defective and improper material for the purpose for which it was installed. It is significant that defendant, Charles Grip, did not return to the stand later and deny this testimony of the witness, Hensgen. The plaintiff contends that the counterclaim and the pre-trial order having failed to assert any such claim by the plaintiff, the defendants had, therefore, limited their claims and were precluded from introducing evidence to establish damages with respect to the Orangeburg pipe. The defendants contend that Buie 3 :16, prescribing pre-trial procedure in effect at the time of the entering of the pre-trial order, should control the trial of the action, rather than the rule, as amended December 19, 1949, as contended by plaintiff. It seems to us that it is immaterial, so far as this issue is concerned, whether the rule in effect at the time of the entering of the pre-trial order or the amended rule is controlling. Assuming, arguendo, that the amended Buie 3:16 is applicable, an examination of defendants’ counterclaim and the pre-trial order clearly evinces that it is the second count of the counterclaim and the statement with reference thereto in the pre-trial order that must be relied upon by the defendants if they are to succeed in their' contention. It will be helpful to consider the allegations in the second count of the counterclaim and the pre-trial order. Defendants assert therein that the oral agreement for the extras, ■which include the waste water lines in question, was breached by plaintiff “in that it did not complete the extras aforesaid in a good and workmanlike manner; did not and has not performed certain of the extras, although the plaintiff has been fully paid therefor.” That portion of the pre-trial order which is obviously applicable to the second count of the counterclaim asserts “that the cesspools and the fire hydrants were not provided and that the sidewalks and drainage outlets were done in a poor and unworkmanlike manner.” In the briefs of the respective parties and at the oral argument of this appeal, it clearly appears that the issue as to whether defendants were entitled to assert a claim for damages with respect to the Orangeburg pipe and introduce supporting evidence necessarily stems from a construction of the pre-trial order and the second count of the complaint and particularly that part of the pre-trial order which states that the “drainage outlets were done in a poor and unworkmanlike manner” (italics ours). The dispute on this issue between the parties centered around the question as to whether “drainage outlets” was sufficiently broad to include the pipe lines which conveyed the waste water from the trailers to either cesspools or a nearby creek. The defendants contend that these words are sufficiently broad to support the admission of the challenged testimony; that, if the pipe lines were not so included in that term, there would have been no outlet at all for the waste water sewerage. The plaintiff contends that the “drainage outlets” could not under any construction thereof be considered as the waste water pipe lines; that sewer outlets are the belltraps only and did not include the pipe line as well.

In considering the objective of the pre-trial rule, Judge Bolitho Laws, who has had a wide experience with pre-trial conferences and the subsequent course of action thereunder, in addressing the American Bar Association, stated:

“One of the vital, if not the outstanding, advantages of pretrial procedure is to take the trial of actions out of the realm of surprise and maneuvering, whereby an unwary counsel might see the just cause of his client lost. It may be romantic and charming to watch the skillful trial lawyer as he lies in wait to pounce upon an uninformed and less skillful counsel, but the results frequently are not just.” 10 Ford. L. Rev. 76.
Cf. Morsey v. Erle, 4 N. J. 276 (1950). Our Supreme Court, in several opinions, has commented upon the effect of Buie 3 :16. In the case of Jenkins v. Devine Foods, Inc., 3 N. J. 450 (1950), Mr. Justice Case, in speaking for the 'court, stated at p. 458:
“Our Rule 3 :16 was framed upon Federal Rule 16; but our rule makes the pre-trial conference mandatory whereas the federal rule leaves it within the discretion of the court. Bach rule states that one of the objectives is the simplification of the issues. The comments published with the widely-circulated tentative draft of our rules preliminary to final redraft and adoption noted that ‘the pretrial order not only recites the action taken at the conference, but limits the issues,’ citing in support Burton v. Weyerhacuser Timber Co., D. C., 1 F. R. D. 571, 4 F. R. S. 319, and that comment reflects our view. ‘The purpose of the pre-trial conference is to simplify the issues, amend the pleadings where necessary, and to avoid unnecessary proof of facts at the trial.’ McDonald v. Bowles, 152 F. 2d 741 (Circ. Ct. of Appeals, Ninth Circ. 1945). A court should give no instruction to the jury which would nullify the effect of a pre-trial order or be inconsistent with the issues as framed in such order. Cf. Bryant v. Phoenix Bridge Co., 43 Fed. Supp. 162 (Dist. Ct., District of Maine, S. D., 1942). The participants in a pre-trial conference should adhere to the spirit of that procedure and be held to waive questions not there presented. Frank v. Griesy, 117 F. 2d 122 (Circ. Ct. of Appeals, 9th Circ., 1941). Modification may be had at the trial to prevent manifest injustice, but the modification should be by direction and not by indirection. Full effect was not given to the pre-trial order.”

and at p. 459, made the further statement:

“It is to be noted that the trial was had prior to the changes in Rule 3:16, accomplished by the amendment promulgated December 19, 1949, which somewhat altered the exclusive control placed in the order over the subsequent course of action and which have not been evaluated herein. In order to be fair to both sides the trial should have been conducted in accordance with the rule currently in effect at the time of the trial. As that was not done the judgment ought not to stand. In view of the novelty of the practice and the absence of an earlier construction of the rule, we think that the case should not end here but should go back for retrial.”

In tlie case of Mead v. Wiley Methodist Episcopal Church, 4 N. J. 200 (1950). Mr. Justice Olipliant, speaking for the court, stated at p. 206 :

“To return to the pretrial order, its relation to and its effect upon the conduct of the trial. Rule 3:16, as it existed at the time of the trial of these eases and before its amendment on December 19, 1949, provided that the order recite the action taken as to any matters considered, that it limits the issue for trial to those not disposed of therein and that it controls the subsequent cause of action, unless modified at the trial to prevent manifest injustice. There was no modification of the instant order. This court in Jenkins v. Devine Foods, Inc., 3 N. J. 450 (Sup. Ct. 1950), gave a literal interpretation to that rule and held that where a pretrial order defining the issues is not modified before or during the trial the order controlled the course of the trial and that a court should give no instructions to a jury which would nullify the effect of a pretrial order or be inconsistent with the issues as framed in such an order. Both of these precepts were violated. As the case must be retried conceivably a new pretrial order may be entered into.”

Tlie application to strike the testimony of these two witnesses was not timely made and its allowance was erroneous. At no time when these witnesses were testifying was any objection thereto made by the plaintiff. The first time objection was made thereto was at the end of the defendant’s case, when plaintiff made its application to strike the testimony on the ground that it related to matters that were not within the confines of the pre-trial order. The motion at that time was denied and was not granted until the plaintiff renewed it at the conclusion of the entire case. In Beam v. Kent, 3 N. J. 210 (1949), Mr. Justice Wachenfeld, speaking for the Supreme Court, stated at p. 216:

“There is another reason, not advanced by either party, why there should be an affirmance. The record shows the objection to Dr. Roter’s testimony was not timely since the hearsay nature of it was revealed on direct examination and the motion to strike was not made until the end of the cross-examination.
‘The rule is established (hat counsel cannot take the chance of testimony making in his favor, and if it happens to be adverse, then interpose his objection. There is nothing to show that the defence here was not apprised of the point upon which the witness was about to speak, before his testimony relative to the sale to himself was delivered. The testimony being so in without objection, it cannot be said that the court erred in not striking it out.’ Clark v. State, 47 N. J. L. 556 (E. & A. 1885).
In Willett v. Morse, 71 N. J. L. 104 (Sup. Ct. 1904), the court, citing the rule, said:
‘It is too late to make an objection to the admission of testimony after it has all been given and is in the record. Objections must be timely, and must be made to the question.’ ”

The issue with respect to the Orangeburg pipe was not asserted by the defendants either in the counterclaim or in the pre-trial order. The term “drainage outlets” was not sufficiently specific to inform plaintiff as to the asserted claim. Uor do we find the term broad enough, in its commonly accepted meaning, to include the pipe lines. It is significant that the language used by the defendants in the first count of the counterclaim asserts that “the plaintiff breached its said agreement with said defendants by using defective and substandard materials and by using incompetent and unskilled labor” (italics ours), and with respect thereto the pretriál order states “that the work done by the plaintiff under the agreement was not completed in a good and workmanlike manner, and that certain materials furnished thereunder were not of a quality fixed by provisions of said agreement.” A comparison of the language used with respect to defendants’ claim under the first count of the counterclaim and the pre-trial order, with that used in the second count of the counterclaim and the pre-trial order, convinces us that defendants did not assert any claim for damages for the use of defective or improper material in the performance of the supplemental contract. This is apparent when we consider what the defendants state in the second count of their counterclaim, to wit: that plaintiff “did not complete the aforesaid extras in a good and workmanlike manner; did not and has not performed certain of the extras, although the plaintiff has been fully paid therefor” and the pre-trial order, stating: “that the cesspools and fire hydrants were not provided and that the sidewalks and drainage outlets were done in a poor and unworkmanlike manner.” It is evident that the first count of the defendants’ counterclaim which dealt with the contract for the erection of a combination washroom and comfort station building, clearly asserted a claim for damages for the use of defective and improper materials. However, under the defendants’ claim, as stated in both the second count of the counterclaim and the pre-trial order, no claim was made for defective materials. The allegations were that the work was done in a poor and unworkmanlike manner. We are impressed with the distinction that the, defendants themselves make in their respective claims for damages under the first and second counts. Buie 3 :16 and the pleadings as ordered to be amended controls the subsequent course of action, unless modified at the trial to prevent manifest Injustice. One of the objectives of this rule is the simplification of the issues. The participants in a pretrial conference should adhere to the spirit of that procedure and be held to waive questions not there presented. Jenkins v. Devine Foods, Inc., supra. Although the issue with respect to the Orangeburg pipe was bitterly contested at the trial, the defendants made no application to the court for modification of the pre-trial order to permit proof as to their claim. Hot having been modified, we are convinced that the defendants were not entitled to assert or introduce evidence of this claim for damages. “Modification may be had at the trial to prevent manifest injustice, hut the modification should be by direction and not by indirection.” Jenkins v. Devine Foods, Inc., supra. In this connection it is also significant that the defendants failed to take the stand to refute or deny the testimony of Herman E. Hensgen, that Orangeburg pipe was specifically agreed upon by the parties; that the defendant, Charles Grip, was present when it was laid, aided in the supervision of that work and used the pipe for a period of approximately 18 months subsequent to the completion of the contract without making any complaint as to its defectiveness. We are satisfied that for the reasons hereinbefore stated, the defendants suffered no manifest harm nor did any injustice result from the court’s erroneous exclusion of the testimony in question.

The defendants’ criticism of the court’s charge is not properly before us, in view of the fact that defendants failed to object thereto. Tornaquindici v. Bocchicchio, 11 N. J. Super. 179 (App. Div. 1951).

The judgment of the Law Division is affirmed, with costs.


source: Caselaw Access Project

author: Freund, J. S. C.

license: Public Domain

text:
    CHARLES EDWARD LUDWIG, BY HIS GUARDIAN AD LITEM, CHARLES E. LUDWIG, AND CHARLES E. LUDWIG, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. GEORGE KIRBY, FREDERICK BOHNE, RICHARD SYLSTRA, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 22, 1951
    Decided April 13, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Maurice Levinthal argued the cause for the plaintiffs-appellants (Messrs. Ward A Levinthal, attorneys).

      Mr. George F. Lahey, Jr., argued the cause for the defendant-respondent George Kirby (Messrs. Lahey )& Gockeler, attorneys).

      Mr. G. Stanley Smith argued the cause for the defendant-respondent Frederick Bohne (Messrs. Schenck, Price, Smith <f- King, attorneys; Mr. Francis J. Beyreni, of counsel).

      Mr. James B. Emory argued the cause for the defendant-respondent Richard Sylstra (Messrs. Marlcley & Broadhurst, attorneys; Mr. Edward A. Marlcley, of counsel).
   The opinion of the court was delivered by

Freund, J. S. C.

This action was brought to recover damages, by the plaintiff, Charles Edward Ludwig, a minor, 13 years of age, for injuries he sustained, and by his father, for medical expenses and loss of services. The appeal is from a judgment of dismissal entered in favor of the defendants, Bohne and Sylstra, upon the plaintiffs’ opening to the jury; and in favor of the defendant, Kirby, at the conclusion of the plaintiffs’ case. The Ludwig boy was assisting in the unloading of hay from an automobile truck and fell upon a concrete pavement. The action against all three defendants was based upon an alleged violation of the Child Labor Law, B. S. 34:2-21.1 el seq., and against Kirby, upon negligence as an additional cause of action.

Sylstra is the owner of a farm in Wyckoff, New Jersey, and Kirby is a dealer in hay. On August 4, 1949, Kirby was delivering two truckloads of hay to the Sylstra farm. One load was on a trailer-truck owned by Kirby, and the other, on a truck owned by Bohne. On two prior occasions, the Ludwig boy had assisted Kirby in unloading hay for Sylstra, and each time had received 50 cents. On the morning of the accident, he was near the farm and saw the trucks approaching. He testified:

“Well, I went up to the barn after I saw the truck go up there, and I thought maybe I might be able to earn a little money, because I was going away in a couple of weeks. I wanted to have a little spending money for my trip. So I went up there and asked Mr. Kirby if I could help him work. * * * He said yes. He gave me permission. * * * He said it would be permissible; I could.”

It was drizzling and Kirby decided to unload the Bohne truck first. It was backed into position against the barn, where an electric conveyor extended from the opening in the barn on to the front of the truck. The driver of the Bohne truck, Bird, placed the bales of hay on the conveyor, which carried them into the barn, where Kirby and Bohne received them. The plaintiff was helping to move the bales on the truck to enable Bird to place them on the conveyor, and for this purpose he was using a steel hook. He testified:

“I would get the hook into the bale, then pull the bale out of its position, and move it toward the conveyor, so that Mr. Bird could put it on the conveyor and then (it) could be put into the hay loft, where Mr. Bohne and Mr. Kirby were.”

The plaintiff said the bales “were wet and heavy and hard to handle.” Each bale measured about iy2 feet by 3 feet, and there were five layers of bales stacked on the truck. While trying to move one of the bales, the Ludwig boy was injured when the hook slipped and he fell backwards eight or nine feet off the truck down to the concrete pavement.

The complaint charged that “the defendants herein employed, permitted and suffered plaintiff to work in, about and in connection with power-driven machinery and hoisting apparatus in violation of the Child Labor Laws of the State of New Jersey.” 'The second paragraph of the complaint alleged that the plaintiff’s injuries were sustained “as a result of the negligence of all of the defendants herein and their violation of the laws and statutes of the State of New Jersey.” There is no specification of the acts constituting negligence, either in the complaint or in the pre-trial order, other than the foregoing charges that the plaintiff, a minor, was employed or allowed to work as above-described, allegedly in violation of the Child Labor Law, R. S. 34:2-21.17. However, in his opening to tire jury, the plaintiff’s counsel said: “In addition to that (Child Labor Law), we will show you that Mr. Kirby employed the boy, violated the duty of an employer to the boy, who hires young, inexperienced children to do work that is essentially dangerous.” On the argument for dismissal on plaintiffs’ opening, plaintiffs’ counsel said: “Now, as to Kirby, I think we have two causes of action: First, as his employer. Now, an employer has a common law duty to his servant to provide a safe place to work in, safe appliances, and safe conditions, and especially is that true when he employs young help or inexperienced help.” And, finally, on the argument at the close of plaintiffs’ case for direction of a verdict and judgment for Kirby, the plaintiff contended that the work performed by the Ludwig boy, an inexperienced person, constituted a dangerous occupation; that the defendant failed to provide a reasonably safe place for the boy to work; and that the facts presented a jury question. The court, however, ruled to the contrary.

The questions presented and argued on this appeal are: (1) Did the defendants violate the provisions of the Child Labor Law of New Jersey; and (2) Was a jury question presented respecting the common law liability of Kirby.

(1) The plaintiff charges specifically that the defendants violated R. S. 34:2-21.17 of the Child Labor Law, which provides that: “No minor under sixteen years of age shall be employed, permitted or suffered to work in, about, or in connection with power-driven machinery * * He contended that both the truck on which the hay was stacked and on which he was working, and the conveyor were “power-driven maehinery,” and that the defendant, Kirby, employed him, and the defendants, Bohne and Sylstra, “permitted or suffered (him) to work in, about, or in connection with” such machinery. It is to be observed that not only employment of a minor under 16 years of age is prohibited, but also permitting or suffering him to do such- work. Of course, the electrically operated conveyor is a “power-driven” machine within the meaning of the statute. For the purpose of argument, we concede, but do not admit, that the truck standing against the barn with its motor shut off and serving merely as a platform was a power-driven machine within the contemplation of the statute, and, further, that the chance service rendered by the Ludwig boy was intended to be encompassed within the provisions of the Child Labor Law. Nevertheless, we find no error in the dismissal of the complaint against the defendants for the alleged violation of the statute.

In Feir v. Weil and Whitehead, 92 N. J. L. 610 (E. & A. 1918), the court had before it for consideration the liability of the defendants to a minor plaintiff employed in violation of the Factory Act, the predecessor of the Child Labor Law. The court held that proof of employment in violation of the statute makes a prima facie case of negligence and said, “The child may show that his injury resulted from the negligence of the master, merely by showing a violation of the statute, provided such violation contributed directily to the injury or was the efficient cause of the injury of which the plaintiff complains; that such proximate cause might arise from the fact of the child’s immaturity, rendering the child incapable of appreciating the dangers in which he was placed.” In Miller v. American Cyanamid Co., 61 F. 2d 389 (C. C. A. 3d 1932), suit was brought by a minor to recover for injuries sustained as a result of tripping on a cinder while carrying mail on the premises of the defendant, a manufacturer of chemicals. The basis of the suit was an alleged violation of the New Jersey Factory Law. The court, citing Feir v. Weil, supra, said: “There must be a causal relation [ship] between the prohibited employment and the injury. * * * It is not enough, ihcrofore, for Ihe plaintiff lo show a violation of the ■statute in his employment. He must go further and show that the violation had a causal connection with his injury and this he failed to do. The plaintiff’s injury came not as a result of exposure to danger. There is no connection between the intendment of section 7 and the injury he sustained as a result of tripping on a cinder while carrying mail.”

In the instant case, the plaintiff said that on two previous occasions, Kirby told him "Just to unload hay; get a hook and unload the hay,” and on the date of the accident his work consisted only in moving the hales with the hook, and his injuries were sustained because while so doing he slipped and fell. It is obvious that there was no causal connection between his injury and power-driven machinery.

(2) The employment of the minor plaintiff: by Kirby was of the most casual nature. Casual employment is one which comes about more or loss by chance, to moot the exigencies of a particular situation or a temporary emergency. Laspada v. Public Service Railway Co., 38 N. J. L. J. 102 (Essex Common Pleas 1915); Thompson v. Wagner, 103 N. J. L. 230 (Sup. Ct. 1927), affirmed 104 N. J. L. 198 (E. & A. 1927) : Forrester v. Eckerson, 107 N. J. L. 156 (E. & A. 1930) : Cierpik v. Borough of Manasquan, 2 N. J. Super. 110 (App. Dir. 1949). The Workmen’s Compensation Act, R. S. 34:15-36, defines casual employment “if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer as employment not regular, periodic or recurring.”

The Child Labor Law, R. S. 34:2—21.2 et seq., permits the employment of minors under 14 years of age in agricultural pursuits, provided an agricultural permit is obtained. Here, no such permit was secured. The rule is well settled that it is the duty of an employer to provide his employee with ■a. safe place to work and when a minor is involved, it is the duty of an employer to explain to him fully the hazards and ■dangers connected with the business and to instruct him how to avoid them; that a minor servant is held to assume by his contract of employment only those risks of the service which are obvious to him or have been pointed out in a manner suited to his youth and inexperience. Smith v. Irwin, 51 N. J. L. 507 (E. & A. 1889); Addicks v. Christoph, 62 N. J. L. 786 (E. & A. 1899); Horandt v. Rosenthal, 81 N. J. L. 474 (E. & A. 1911).

In Smith v. Irwin, supra, the court quoted from the trial judge’s charge an excerpt which had been taken from an acknowledged authority: “ ‘Nor is this all. The master will not have discharged his duty in this regard unless the instructions and precautions given are so graduated to the youth, ignorance and inexperience of the servant as to make him fully aware of the danger to him, and to place him in substantially the same position as if he were an adult.’ ”

In Addicks v. Christoph, supra, the court after stating the foregoing doctrine, said, “The question then is, did the master in this ease perform his duty under the rule as thus stated, or rather, was the question of his fair compliance with the rule, under the circumstances, left in such doubt as to be at least debatable, and hence a proper one to be submitted to the jury ? * * * It seems to me that under all the circumstances the question of whether the defendants had performed their duty in pointing out to the plaintiff the dangers and hazards of the employment, and how to avoid them, in a manner suited to his youth and inexperience, was one about which opinions might reasonably differ, and hence was a proper one to go to the jury.”

The plaintiff being a minor 13 years of age would only be required to have assumed those ordinary risks of the service which would be obvious to, or pointed out in a- manner suited to, the comprehension of a youth of similar age, judgment and experience, and this too is usually a question for the jury to determine.

In short, the facts here presented are that on a rainy day, on top of a truck eight or nine feet above the ground, a 13-year-old boy, with no warning or instructions, was assisting in unloading baled hay by the use of a steel hook. In such a posture, it would seem that reasonable men might differ as to whether or not the minor had a safe place to work, whether the risk of the service was obvious to a boy of his youth and inexperience or should the hazards have been pointed out to him. On a motion for judgment for the defendant at the close of the plaintiffs’ case, the court must take as true all evidence which supports the plaintiffs’ view and must give it the benefit of all legitimate inferences to be drawn therefrom. Gentile v. Public Service Coordinated Transport, 12 N. J. Super. 45 (App. Div. 1951). By its judgment for the defendant Kirby, the court determined as a matter of law that he was not negligent. In this respect, we think the court erred, since the question was at least debatable and hence a proper one for the jury.

The judgment in favor of the defendants, Bohne and Sylstra, is affirmed, with costs; and the judgment in favor of the defendant, Kirby, is reversed and a venire de novo ordered, costs to abide the event.


author: JAynh. J. A. I).

text:
    EMILY B. TAYLOR, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY AND CHARLES Y. SHANER, DEFENDANTS-APPELLANTS, AND JEWETT J. CAVES, DEFENDANT. MARION FISHER SHAGG AND JOHN CONRAD SHAGG, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY AND CHARLES Y. SHANER, DEFENDANTS-APPELLANTS, AND JEWETT J. CAVES, DEFENDANT
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1951
    Decided April 17, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Bkennan, Je.

      Mr. Louis F. Slei/n, Jr., argued the cause lor appellants. (Mr. Carl T. Freggens, attorney).

      Mr. Leon, A. Wingate, Jr., argued the cause lor respondents (Messrs. Bennett A Wingate, attorneys).
   The opinion of the court was delivered by

JAynh. J. A. I).

The general supervisory power of the appellate tribunal which enables it to examine the propriety of jury verdicts and the consequent judgments founded upon them is essentially remedial in character. The power is not exercised with a view of supplanting the appropriate function of the jury. It continues to be preeminently the mission of the jury to resolve the credibility of the testimony of the witnesses, to settle the facts, and to determine the inferences which ought to be logically and legitimately drawn from them. A verdict founded upon logical and legitimate inferences from facts established by evidence is normally conclusive. Smith v. P. Lorillard Co., 67 N. J. L. 361 (Sup. Ct. 1902). But where neither the facts nor the permissible inferences from them vindicate the verdict and it is manifest that the verdict was fabricated by the influences of sympathy, or passion, or prejudice, or based upon mistake, it must in the course of the administra Hon of justice be annulled. Bowen v. Healy’s, Inc., 16 N. J. Misc. R. 113,115 (Cir. Ct. 1938). “On a review of any cause involving issues of fact determined by the verdict of a jury, the verdict, if contrary to the weight of the evidence, shall be set aside.” Rules 1:2-20; 4 :2-6.

It was storming on Tuesday morning, January 13, 1948/ A screen of snow and sleet somewhat decreased the range of visibility and an inch or two of slush overspread the highway as the defendant, the Public Service Interstate Transportation Company, through the agency of its driver, Charles Shaner, operated its passenger bus westerly on Biver Boad in the Township of Pennsauken, Camden County. About 9:30 A. M. the bus, although it was proceeding along the northerly lane of the highway, suddenly came into collision in that lane with the right side of a Eord automobile driven by the defendant Jewett Caves.

Among the several passengers in the bus were the female plaintiffs who suffered bodily injuries in the mishap. The verdict rendered at the conclusion of the trial in which the actions were consolidated awarded Mrs. Taylor $3,000 damages, Mrs. Shagg $1,000, and Mr. Shagg, who sued per quod, $1,000, and placed the liability upon the bus company and its driver, exonerating the driver of the automobile. The plaintiffs based their causes of action upon an implication of negligence on the part of the common carrier. Shay v. Camden & Suburban Ry. Co., 66 N. J. L. 334 (E. & A. 1901).

Recognizing that the bus and the automobile were proceeding in opposite directions on River Road, the proximate and efficient cause of the collision is clearly intelligible. The initial clue is supplied by the pre-trial order which states: “Defendant, Caves, asserts that while operating his car in back of the tractor-trailer, his car went into a spin prior to the collision.”

The following questions and answers extracted from the testimony of Caves are informational:

“Q. And when you were right behind the tractor-trailer, your automobile went-into a skid, didn’t it? A. I thought it did, yes, sir. ********
Q. How fast were you going when you started to skid? A. That I couldn’t say. It wasn’t as fast as I was going before. ********
Q. Tou didn’t see any bus at any time? A. No, sir. ********
Q. Do you remember anything that happened from the time you went into the skid until you were being taken out of the car? A. No, sir.
********
Q. What kind of condition was your car in after you were taken out of the ear? A. Pretty bad.
Q. What do you mean by ‘pretty bad’? A. It was mashed'beyond repair.
Q. Where was it mashed? A. On the right front side.”

The obvious preponderance of the other testimony bears out the concept that the automobile suddenly emerged from behind the tractor-trailer directly in front of the on-coming bus. Indeed. the movement of the automobile to its left before the impact was so momentary that the driver of the automobile never saw the bus. The only contribution of the bus to the occurrence of the accident was its lawful presence on the highway at the moment. The cause of the collision appears to have been the intervening circumstance that the automobile suddenly skidded directly into the path of the closely approaching bus. Assuredly that unfortunate circumstance was not originated or influenced by any negligent act or omission of the driver of the bus, and but for the circumstance of the skidding car, we think the accident would not have happened. The extremely transitory manner in which the automobile entered upon the north lane in front of the bus is reasonably deducible from the uncontroverted fact that the driver of the automobile never saw the bus. In other respects the occurrence resembles the misadventure in Boreth v. Kisselman, 7 N. J. Misc. R. 922 (Sup. Ct. 1929).

The wistful conceptions projected on behalf of the plaintiifs-respondents that the bus was traveling at an excessive rate of speed, that the windshield equipped with wipers and defrosters was completely covered with snow, sleet, and vapor, and that the automobile entered and thereafter remained on the north lane at a considerable distance ahead of the bus, succumb in our opinion to the credible predominance of the testimony to the contrary.

The verdict visiting liability on the appellants is in conspicuous opposition to the reasonable probabilities of the circumstances amid which'the mishap occurred and adverse to the manifest weight of the evidence.

The judgments are-reversed.


author: Jayne, J.'A. D.

text:
    JOSEPH SOTAK, PLAINTIFF-APPELLANT, v. THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, DEFENDANT-RESPONDENT; FRANK JELINEK, PLAINTIFF-RESPONDENT, v. JOSEPH SOTAK AND THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided April 17, 1951.

      Before Judges McGeeiian, Jayne and Wm. J. Brennan, Jb.

      Mr. Philip M. Brenner argued the cause for defendant-appellant Joseph Sotak (Mr. John T. Keefe, attorney for plaintiff-appellant Joseph Sotak).

      Mr. Stephen V. R. Strong argued the cause for defendant-appellant and respondent, The Pennsylvania Railroad Company (Messrs. Strong \& Strong, attorneys).

      M r. J ohn J. Rafferty argued the cause for plaintiff-respondent (Messrs. Rafferty •£ Blacher, attorneys; Mr. Philip Blacher, on the brief).
   The opinion of the court was delivered by

Jayne, J.'A. D.

It was about 6:30 P. M. on December 16, 1948, amid the fall of a drizzling rain intermixed with sleet that Joseph Sotak was driving his delivery truck southwesterly on Jersey Avenue in a suburb of the City of New Brunswick. He was accompanied by Erank Jelinek. They were approaching the locality where a single spur line of railroad tracks, known as the Millstone Branch, of the Pennsylvania Railroad crosses the highway from the east in a slightly southwesterly direction.

Contemporaneously a diesel locomotive operated backward was slowly drawing eight freight cars from the east. The uncontroverted fact is that on the westerly side of the highway a collision occurred between the delivery truck and the diesel engine.

The present litigation ensued consisting of the action of Sotak against the railroad company and the action of Jelinek against both Sotak and the railroad company. The actions were consolidated for trial, and pursuant to the determinations of the jury a judgment of no cause for action in favor of the defendant was entered in the action prosecuted by Sotak and a judgment was recorded in favor of Jelinek against both defendants in his action with an award to him of $15,000 damages.

The three appeals now before us constitute the outgrowth of the trial. The railroad impugns the judgment rendered against it in favor of Jelinek; Sotak feels aggrieved by the judgment imposed upon him in favor of Jelinek and is further distressed by the judgment of no cause for action which eventuated in his own case against the railroad. The transcript of the evidence has accordingly been studied in its relationship tó each appeal.

In its essential characteristics the present case was one where upon motions for dismissal the trial judge was obliged to accept as true all evidence which supported the view of the party against whom the motion was made and required to .accord him the benefit of all inferences which might logically :and legitimately be drawn therefrom, and to recognize that the existence of negligence and contributory negligence are preeminently questions of fact for the jury. Gentile v. Pub. Service Coordinated Transport, 12 N. J. Super. 45 (App. Div. 1951).

We are importuned by counsel for the appellant railroad to place this mishap in the category of those in which it has been held that the mere fact that a freight car or locomotive was momentarily standing in actual possession of a highway ■crossing is not of itself prima facie proof of negligence. Jacobson v. N. Y., S. & W. R. R. Co., 87 N. J. Law 378 (Sup. Ct. 1915); Nadasky v. Public Service Railroad Co., 97 N. J. Law 400 (Sup. Ct. 1922); Morris v. Atlantic City Railroad Co., 100 N. J. Law 328 (E. & A. 1924).

The conspicuous factual element in those cases is that the railroad train was not in motion and was in possession of the crossing at the time the highway traveller collided with the train and not the converse situation more commonly presented. Vide, Pilkington, v. Central R. R. Co. of N. J., 125 N. J. Law 22 (E. & A. 1940).

In the present case hoth the locomotive and the automobile were approaching an unobstructed crossing in pursuance of a common right of passage but in circumstances in which the operator of the train was obliged to give the statutory crossing signals. R. S. 48 :12—57. The failure to give the statutory warning when and where required has long been regarded as evidence of negligence. Walling v. Central R. R. of N. J., 82 N. J. Law 506 (E. & A. 1911). Wilson v. Central R. R. Co., 88 N. J. Law 342 (E. & A. 1915). Here also the locomotive was proceeding toward and entering the crossing at a speed of one or two miles per hour, a circumstance relevant to the care exercised by the engineer and train crew to avoid the collision. Cf. Taylor v. Lehigh Valley R. R. Co., 87 N. J. Law 673 (E. & A. 1915).

Moreover, in the use of the crossing at which this collision occurred the railroad appears voluntarily to have delegated to a member of the train crew the duty to serve as a temporary crossing flagman to give proper notice and warning to travellers on the highway of the entrance thereon of the train. In such circumstances the signalman so acting was under the common law duty to exercise reasonable care and prudence in the performance of that service and a failure to do so might constitute negligence for which the railroad company would be liable. Delaware, Lackawanna & Western R. R. Co. v. Toffey, 38 N. J. Law 525 (E. & A. 1875); Passarello v. W. J. & S. R. R. Co., 98 N. J. Law 790 (E. & A. 1923).

Keeping in view the aspects of negligence to which we have referred, our consideration of the evidence guides us to the conclusion that the alleged causes of action were justifiably submitted to the jury for determination.

Our attention is invited to the consideration of the legal status of the plaintiff Jelinek in his relationship to the driver, Sotak, and to the former’s conduct in the circumstances. Obviously the concordant testimony of both Jelinek and Sotak, however evaluated, would at least require, as was done, the submission to the jury of the question of whether Jelinek was a licensee or an invitee. Augustine v. Haas, 121 N. J. Law 58 (E. & A. 1938); Rottinger v. Friedhof, 136 N. J. Law 422 (Sup. Ct. 1948), affirmed 1 N. J. 206 (1948).

The jury evidently resolved that the mishap was proximately attributable to the cooperating and concurrent negligence of both Sotak and the servants of the railroad company. Jacobson v. Bentley Morrison Corp., 103 N. J. L. 16 (Sup. Ct. 1926); Benning v. Herbert, 107 N. J. Law 97 (E. & A. 1930). It is not proposed by the appellants that the negligence of Sotak .was imputable to Jelinek, but it is asserted that the behavior of Jelinek was also negligent and of a contributing causative effect. Cf. Mittelsdorfer v. West Jersey, &c., R. R. Co., 77 N. J. Law 698 (E. & A. 1909).

The common law concept of negligence and its affinity to the facts and concomitant conditions and circumstances of each particular occurrence is tersely and admirably stated in the opinion rendered in Niles v. Phillips Express Co., 118 N. J. Law 455, 458 (E. & A. 1937).

It is elementary that in the ordinary case to justify the court in granting a motion for judgment for the defendant on the ground of the contributory negligence of the plaintiff, such negligence “must clearly appear conclusively as a fact or by necessary exclusive inference from the plaintiffs proof.” Danskin v. Pennsylvania R. R. Co., 79 N. J. Law 526 (E. & A. 1910); Ackerly v. Pennsylvania R. R. Co., 130 N. J. L. 292 (E. & A. 1943); Willins v. Ludwig, 136 N. J. Law 208 (E. & A. 1947); Spence v. Maier, 137 N. J. Law 284 (Sup. Ct. 1948), affirmed 1 N. J. 36 (1948); Bacak v. Hogya, 4 N. J. 417 (1950); Gentile v. Pub. Service Coordinated Transport, supra. In the present case we note, that the crossing was not equipped with safety gates, bell, or other warning or protective device except the standard crossing sign on each side of the tracks. R. S. 48:12-58; R. S. 39:4-159; R. S. 48:12-83; Ackerley v. Pennsylvania R. R. Co., supra.

It is not realistic to state that the duties of a driver and of a passenger of a motor vehicle are precisely alike. It would be equally fallacious to suppose that in ordinary circumsi anees a passenger is free from all duty. The differentiation of duty inheres in the dissimilarity of their respective undertakings and in the divergent standards of conduct ordinarily exhibited by the reasonably prudent and cautious person in those respective capacities.

It is the general rule that a passenger is under the duty to exercise such a degree of care for his own safety as the exigencies of the situation reasonably require. Tobish v. Cohen, 110 N. J. Law 296 (E. & A. 1933); Wassmer v. Public Service Electric Gas Co., 122 N. J. Law 367 (E. & A. 1939); Falicki v. Camden County Beverage Co., 131 N. J. Law 590 (E. & A. 1944); Kaufman v. Pennsylvania Railroad Co., 2 N. J. 318 (1949).

But the experience of the ages reveals that the reasonably prudent passenger does not ordinarily exercise the vigilant circumspection of the conditions on the highway necessarily required of a driver. The reasonable care exacted of a passenger is in its degree made to fit the size of his known and appreciated danger. His duty cannot be otherwise abstractly defined than that he shall act as a reasonably prudent person would act under the same or similar circumstances. Such was the instruction to the jury.

Indeed, it is difficult to conceive of any field planted with a greater variety of posterior ideas and inferences more appropriately to be submitted to a jury composed of fair-minded men and women than that in which the prudence of a passenger in a period of known or unanticipated emergency is to be admeasured. Cf. Webb v. W. Jersey and Seashore R. R. Co., 100 N. J. Law 204 (Sup. Ct. 1924).

It would be an ambitious but adventurous undertaking for trial judges to attempt to point out to the jury specifically the many things which a passenger might in a moment of apprehended peril possibly do, such as turn off the switch, grasp the steering wheel, jump out of the vehicle, or warn the driver to hurry or slow down, and then inform them that the passenger’s choice may be mistaken and nevertheless not careless or imprudent. Nelson v. Nygren, 259 N. Y. 71, 181 N. E. 52 (Ct. App. 1932). It is sufficient if the jury is adequately informed of the character of the passenger’s duty, and where its observance is in substantial controversy, the jury is entrusted with its application to the circumstances of the case. Such was the course pursued by the trial judge in the instant action. We are unable to discern in the evidence any delinquency of the plaintiff Jelinek which rationally could have been regarded in his situation as contributory negligence.

The jury evidently resolved that Sotak, charged with the control of the operation of the vehicle, failed to exercise the requisite degree of care in the circumstances. There is readily discoverable in the proofs a substantial basis for that determination.

It is to be realized that the fundamental object of this appeal is not to retry the case with the substitution of our judgment for that of the jury, but primarily to correct injurious and prejudicial errors properly noted and objected to at the trial and to examine the propriety of the verdicts in the light of the supporting evidence.

Consideration has been accorded all grounds of appeal. With respect to those not heretofore discussed, it is sufficient to state that we perceive no error in the admission or exclusion of evidence or any other challenged ruling which injuriously affected the substantial rights of the appellants. Buie 3:61. Additionally, no party may urge as error any portion of the court’s charge or omission therefrom unless proper objection is interposed thereto before the jury retires to consider its verdict. Rule 3:61; J. B. Wolfe, Inc. v. Salkind, 3 N. J. 312, 317 (1949); Peter W. Kero, Inc. v. Terminal Construction Corp., 6 N. J. 361, 373 (1951); Wohlfarth v. Spencer Kellogg & Sons, Inc., 8 N. J. Super. 61, 63 (App. Div. 1950). This prerequisite was not observed in the present case.

The judgments are affirmed.


author: Freund, J. S. 0.

text:
    WASHINGTON CONSTRUCTION CO., INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MICHAEL SPINELLA, DEPENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided April 18, 1951.

      Before Judges Eastwood, Bigelow and Freund.

      Mr. Louis Santorf argued the cause for the defendant-appellant.

      Mr. Jack Rinzler argued the cause for the plaintiff-respondent (Messrs. Feder \& Rinzler, attorneys; Mr. Joseph A.. Feder, of counsel and on the brief).
   The opinion of the court was delivered by

Freund, J. S. 0.

The question on appeal is whether the-plaintiff, a general contractor under a cost-plus contract for-the construction of buildings on land owned by the defendant, is entitled to recover the percentage above the cost of materials delivered to the job, but not used in the construction, because prior to completion the owner terminated the contract in accordance with its terms. The court below construed that “The minute the materials were delivered to the job, as long as they were necessary to he used on the job, the plaintiff became entitled to collect his ten per cent,” and entered judgment in favor of the plaintiff. The defendant appeals on the ground that the court’s interpretation of the contract was erroneous.

The plaintiff agreed to erect and finish certain buildings according to plans drawn by an architect and to “find and provide such good, proper and sufficient materials of all kinds whatsoever, as shall be proper and sufficient for the completing and finishing all the said apartments and buildings * * The defendant agreed to pay the plaintiff for labor and materials “as the same costs the contractor and to pay in addition to said cost the sum equal to ten per cent of the aforesaid total cost as the profit to said contractor.” The defendant agreed to pay weekly for the labor of all persons actually engaged on the project and to pay monthly all bills for materials furnished, less discounts. The contract provided that, after the building had been completed, the defendant was to “pay to the contractor ten per cent of the total cost to represent their profit in the matter of the construction of the aforesaid.” It was further agreed, however, that the defendant should have “the option at any time during the course of construction, * * * to cancel the contract herein by notifying such contractor of such action. If such event takes place the parties hereto shall compute the total cost of construction and labor up to that date, and to pay ten per cent thereof, to the contractor as his profit up to that date.”

Pursuant to the foregoing provision, during the course of construction, the defendant elected to terminate the contract. lie paid for the labor and materials delivered to the site, but some of the materials not having been actually incorporated in the buildings, he argues that the plaintiff is not entitled to the ten per cent of their cost.

Referring to the construction of cost-plus contracts, Williston declares that the familiar rules for the construction of contracts generally are applicable. Thus,

“The primary rule is to ascertain and give effect to the mutual intention of the parties, so far as it may be done without contravention of legal principles. Greater regard is to be had to the clear intent of the parties than to any particular words which they may have used in the expression of their intent. A contract must be considered as a whole and the intention of the parties is to be collected from the entire instrument and not from detached portions. The individual clauses and particular words must be considered in connection with the rest of the agreement, and all parts of the writing and every word of it, will, if possible, be given effect. The words of contracts should be given a reasonable meaning rather than an unreasonable one and a court will endeavor to give a construction most equitable to the parties and which will not give one of them an unfair or unreasonable advantage over the other. * * * Where the parties to a contract have given it a practical construction by their conduct, as by acts in partial performance, such construction is entitled to great if not controlling weight in determining its proper interpretation.” Williston, Contracts (Rev. ed.), vol. 9, sec. 46, p. 64.

Of course, “the law will not make a better contract for parties than they themselves have seen fit to enter into, or alter it for the benefit of one party and to the detriment of the other. The judicial function of a court of law is to enforce a contract as it is written.” Kupfersmith v. Delaware Ins. Co., 84 N. J. L. 271 (E. & A. 1913); James v. Federal Insurance Co., 5 N. J. 21 (1950).

The defendant has paid for the cost of materials delivered to the site and intended to be used in the construction of the buildings. This suit was brought to recover the “plus” of the contract, the ten per cent of such cost, which was to represent the contractor’s profit. The defendant argues that the plaintiff is not entitled to this compensation because the materials delivered to the premises were not incorporated as part of the physical structure. Was it the intention of the parties that the plaintiff was to receive the ten per cent only if the buildings were fully constructed? We think not. The contract had two provisions for the payment of compensation: (1) under paragraph 5, after completion of the building, when plaintiff was to be paid ten per cent of the total cost of construction; or (2) under paragraph 9, if the contract was terminated before completion of the buildings, as happened, then “the parties hereto shall compute the total cost of construction and labor up to that date, and to pay ten per cent thereof to the contractor as his profit up to that date.”

Analogous situations arose in cases where the court was called upon to determine whether one furnishing materials intended for a building, but not used, was entitled to a lien under the general Mechanic’s Lien Law. There, the rule is that a question of fact exists: whether the items are in whole or in part for materials furnished in good faith for the erection of the building, and when that is established, it is no defense that there may have been a failure to use materials thus furnished. “The materials, having been furnished for the building, and delivered to the company or to their agents in good faith, it is immaterial to the validity of the lien whether they were used in the building or not.” Morris County Bank v. Rockaway Mfg. Co., 14 N. J. Eq. 189 (Ch. 1862); Bell v. Mecum, 75 N. J. L. 547 (E. & A. 1907); Atlantic City Lumber Co. v. Atlantic City, 104 N. J. Eq. 483 (E. & A. 1929).

So, in this case, the materials having been delivered to the premises for use in the construction of the building, the owner having paid for them and later terminating the contract in accordance with its terms, the plaintiff was entitled to compensation for his services computed on the basis agreed upon, i. e., ten per cent of the total cost of construction and labor up to that date.

The judgment is affirmed.


author: Preuktd, J. S. C.

text:
    IN THE MATTER OF THE APPLICATION OF AUDREY ELIZABETH JACKSON FOR CUSTODY OF LAURIE ELIZABETH JACKSON, INFANT. AUDREY ELIZABETH JACKSON, PLAINTIFF-RESPONDENT, v. ROLAND PEARCE JACKSON, Jr., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951
    Decided April 24, 1951.

      Before Judges Preund, Proctor and Rogers.

      Mr. Lionel P. Kristeller argued the cause for the plaintiff-respondent {Mr. Jay P. Dailey, attorney).

      Mr. Louis J. Cohen argued the cause for the defendant-appellant {Messrs. Cohen, Klein <& Rosenbaum, attorneys; Mr. Martin D. Cohen, on the brief).

      Mr. Samuel F. Penza argued the cause pro se.

   The opinion of the court was delivered by

Preuktd, J. S. C.

This appeal involves the custody of Laurie Elizabeth Jackson, an infant, born on August 22, 1947. The judgment awards custody to the mother and provides that the defendant father “may visit said child at the home of the plaintiff with whom the said child resides on Wednesday of each week at 5 P. M., for the period of one (1) hour thereafter, and on Saturday of each week between the hours of 10 o’clock in the forenoon and 12 Noon. * * * ”

The trial court in its opinion determined that the plaintiff was a fit and proper person to have custody of the child, and said, “This finding makes it unnecessary for me to consider whether and to what extent the testimony respecting the allegations made as to the defendant are true or untrue, since I do not see any basis upon which this would affect the ultimate decision which I make herein.” Accordingly, the court did not find the defendant to be an unfit person, thereby warranting the inference that he, too, is a fit and proper person.

Por the purposes of this opinion, it is unnecessary to detail the various unfortunate episodes between the parties which resulted in their separation and the custody proceeding. Our examination oí the record leads to the conclusion that both the father and the mother are fit and proper persons to have custody. Therefore, the provision of the judgment of the trial court severely restricting the father’s right of visitation is erroneous.

“Neither father nor mother has a greater right than the other to the custody of their child, and in a contest between them, the happiness and welfare of the child is the determining factor. R. S. 9 :2-4. Richards v. Collins, 45 N. J. Eq. 284 (E. & A. 1889) ; Lippincott v. Lippincott, 97 N. J. Eq. 517 (E. & A. 1925) ; In re R. L., 137 N. J. Eq. 271, (Jayne, V. C., 1945). Children of tender years are not awarded to the mother because of any rule of law, but only because in fact the mother will usually take better and more expert care of a small child than can the father. But the problem in every case is the same, What will promote the happiness and welfare of the child?” Seitz v. Seitz, 1 N. J. Super. 284 (App. Div. 1949).

Here, the mother is better able to care for the infant, and the. custody should remain with her. The father being employed, his opportunity to visit the child is necessarily limited to those times when he is not working. Consistent with the paramount concern for the welfare of the child, reasonable limitations upon the right of visitation are justified, but to coniine the father to an hour on Wednesday from 5 to 6 P. i\L and two hours on Saturday from 10 A. M. until noon is rather harsh. In Bierck v. Bierck, 123 A. 537 (Ch. 1923), not officially reported, the late Vice-Chancellor Learning said: “A court always determines that, whenever custody is awarded to a parent, the other parent' shall not only be privileged to see the children at all times, but shall be encouraged by the parent custodian in seeing them as freely, as fully, as often, and as long as possible, and in a manner best suited to the encouragement of mutual affection.”

In Turney v. Nooney, 5 N. J. Super. 392 (App. Div. 1949), the court was concerned with a boy six years of age. Judge Jacobs said: “However, in promoting the child’s welfare, tlie court should strain every effort to attain for the child the affection of both parents rather than one. * * * We believe that, rather than decreasing the father’s right of visitation, the proper direction may well be toward increasing it. * * * In any event, it is not our purpose to fix the precise times of visits or partial custody; that should be left to the advisory master whose intimate supervisory control will continue and permit, if necessary, frequent changes designed to ensure the result that the child will have the love and consortium of both parents.”

Here, the child is less than four years old. As a practical matter, her extreme youth probably precludes any extended visitation by her father at this time. However, we are of the opinion that the advisory master, always with a view to the best interests and welfare of the child and the desirability of the consortium of both parents, should consider granting to the father the right to take the child writh him from the home of the mother, for the afternoon, for the day, and, when she is older, for the weekend. Willis v. Willis, 118 A. 333 (Ch. 1922).

The appellant does not dispute the right of the court to award a counsel fee in a proceeding over the custody of a child, nor the amount allowed in this case. But he argues that the award was unwarranted because allegedly the wife who brought the proceeding deserted her husband. We see no merit in this point. Rule 3:54-7(&) authorizes the allowance of counsel fees in a matrimonial action “to be paid by any of the parties to the action, charging, if it deems it to bo just, any party successful in the action. * * * ” Rule 3 : 82(b) prescribes that the term “matrimonial actions” includes “all actions brought under the parens patriae jurisdiction for the custody of infants.” Seitz v. Seitz, 6 N. J. Super. 65 (App. Div. 1949). The court having in its discretion made an allowance it deemed just, it will not be disturbed.

The cause is remanded to the Chancery Division for further proceedings respecting the defendant’s right of visitation, in accordance with this opinion.


author: Bigelow, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES LUSTIG AND ANOTHER, DEFENDANTS-APPELRANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided April 18, 1951.

      Before Judges Eastwood, Bigelow and Freuhb.

      Mr. Edward Cohn, Prosecutor of Union County, argued the cause for the respondent (Mr. ff. Russell Morss, Jr., First Assistant Prosecutor, attorney).

      Mr. Morton Stavis argued the cause for the appellants.
   The opinion of the court was delivered by

Bigelow, J. A. D.

This is an appeal (by leave granted) from the denial of a motion to dismiss an indictment on the ground that the indictment fails to charge an offense. The State asserts that it charges the common law crime of incitement to a riot. The indictment in substance alleges that the appellants did unlawfully by speech and actions encourage and incite divers persons to unlawfully, riotously, and tumultuously assemble and gather together to disturb the peace of this State; and being so assembled and gathered together (the said divers persons) did then and there make great noises, riot, tumult and disturbance, and continued so to do for the space of one-half an hour and more, to the great terror and disturbance not only of the people of this State there inhabiting, etc.

The words in parenthesis are inserted by us, with the consent of the parties, in order to clarify the meaning of the indictment.

The first objection raised is that the indictment does not si ate the. means employed or the manner in which the appellants incited the riot. The specification is unnecessary. 2 Hawkins, Pleas of the Crown, ch. 29, § 17. 1 Chitty Criminal Law 171 and 272; Rex v. Fuller, 1 Bos. & Pul. 180; 126 Eng. R. 847 (C. P. 1797).

Next and more serious, that the acts which appellants are charged with encouraging, are not necessarily criminal.

A riot is an unlawful assembly that has developed to the stage of violence. In State v. Butterworth, 104 N. J. L. 579; 58 A. L. R. 744 (E. & A. 1928), the late Justice Kalisch carefully considered what constitutes an unlawful assembly. “At common law,” he said, “any gathering together of three or more persons, with intent to disturb the public peace, accompanied by some overt act or acts to effect that intent, was an unlawful assembly. The character of the overt acts essential to manifest this intent was of various kinds, as is illustrated by the precedents of indictments. Thus, for instance, if those gathering were armed, or were conducting themselves in such a disorderly manner as to give firm and courageous persons in the neighborhood reasonable grounds to apprehend a breach of peace as a result thereof, such gathering would be an unlawful assembly.” But Justice Kalisch was forced to admit “that the effort to give a satisfactory definition of what is an unlawful assembly meets with the same disappointing results as does the attempt to formulate a definition which would embrace all phases of fraud.”

A riot is a disturbance of the peace by three or more persons unlawfully assembled together and acting in a violent and tumultuous manner. Cf. 1 Hawkins, Pleas of the Crown, ch. 65, § 1; 4 Blackstone Commentaries 146; Russell on Crimes (1910 ed.)) 409; Wharton on Criminal Law (1932 ed.), § 1862.

Appellants contend that the indictment is fatally defective because it fails to allege that the appellants incited and encouraged three or more persons to act, or that they urged the “divers persons” to join themselves to others so that there would be at least three participants. We consider the point well taken for it is entirely settled that one or two persons acting by themselves cannot be guilty of a riot. The precedents clearly indicate that an indictment for rioting must charge that at least three persons participated. For a common law form of indictment for unlawful assembly, see State v. Butterworth.

Every fact or circumstance- which is a necessary ingredient in the offense, must be set forth in the indictment. Thus in State v. Solomon, 96 N. J. L. 124 (Sup. Ct. 1921), 97 N. J. L. 252 (E. & A. 1922), the defendant was convicted of keeping for sale adulterated whiskey, in violation of a statute which limited the offense to liquor to-be used as a beverage. Whiskey, if used at all, is almost always used as a beverage. So our Supreme Court considered that it should be presumed that the whiskey was intended for that purpose and that the indictment need not expressly allege the fact. But the Court of Errors and Appeals held to the contrary, that the omission was fatal and that the indictment charged no crime and that no valid judgment could be pronounced against ihe defendant. See also State v. Riggs, 91 N. J. L. 456 (Sup. Ct. 1918) ; appeal dismissed 92 N. J. L. 575 (E. & A. 1919). So in the indictment before us, the word divers does not denote definitely three or more, although generally used to indicate at least that number. Yet it can mean only two, and it must be taken with the meaning most favorable to the defendants.

But the State argues that an indictment for inciting need not be as precise as an indictment for the substantive offense of rioting and the State points to the precedent found in 2 Chilly Criminal Law 506. This form charges that the defendant instigated “divers liege subjects of our said lord, the king”' to assemble, etc., and that “by means and in pursuance of the said wicked instigations” a great number of people to the number of 100 or more gathered. The second clause amplifies the word divers: In pursuance of what defendant did, 100 or more people gathered. We consider the precedent of somewhat doubtful validity, but even so, it differs essentially from the indictment before us.

An indictment for inciting or procuring a third person to commit a crime must contain a statement of facts which would constitute a crime if performed by the third person. State v. Dudley, 89 N. J. L. 42 (Sup. Ct. 1916). See also State v. Boyd, 87 N. J. L. 560 (E. & A. 1915). “The omission of an essential element cannot be supplied by inference or implication.” State v. DeVita, 6 N. J. Super. 344 (App. Div. 1950). In that case, where the indictment charged that defendant solicited a third person to “alter his testimony,” we refused to supply, by implication, the element of falsity.

A study of cases dealing with riot discloses that generally the indictment arises from a gathering of persons intent on promoting some political, religious or economic cause,—-in most instances, an unpopular one. We must be on our guard not to approve a precedent that might be cited to undermine our constitutional rights of free assembly and free speech.

The order appealed from is reversed and the indictment dismissed.


author: Hegakty, A. M.

text:
    HAROLD OTTO JENSEN, PLAINTIFF, v. VIRGINIA JENSEN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 16, 1951.

      Mr. Nathan Cholodenko, attorney for plaintiff.

      Mr. Charles 8. Peraino, attorney for defendant.
   Hegakty, A. M.

This is a proceeding brought at the instance of the plaintiff on notice of motion and supporting affidavits, directed to the defendant, for an order requiring the defendant and one, Barry Jensen, now in the custody of the defendant, to submit to one or more blood grouping tests to the end that the paternity of the said child, Barry Jensen, may be determined.

The suit from which this application stems has been finally concluded, and, for an understanding of the issue herein decided, it is necessary to set forth a brief statement of the pleadings thus far filed in the cause.

On Januar3r 5, 1949, the plaintiff filed his complaint for absolute divorce against the defendant and charged in paragraph four therein that he and his wife “lived together as husband and wife until the latter part of October, 1947, at which time defendant left plaintiff and has never returned, nor has plaintiff had access to nor sexual intercourse with the said defendant since the latter part of August, 1947. On the 21st da3,r of September, 1948, the defendant was confined at Hackensack Hospital, Hackensack, Hew Jersey with a miscarriage, the dead embryo being a result of the adultery of defendant with some person unknown to plaintiff; that the defendant since her marriage with plaintiff, and in the months of October, 1947 to Ma3>3 1948, at some place unknown to plaintiff committed adultery with a person whose name and description are not known to plaintiff.” In paragraph 5 of the complaint it is alleged that three children wore born of the marriage, to wit: Virginia, aged 11; Harold, aged 9 and Jerilyn, aged 5. Harold and Jerilyn are in the custody of the plaintiff and Virginia is in the custody of the defendant. By paragraph 6 he seeks the custody of the children charging that the defendant is unfit to have the custody of any of the aforementioned children and their welfare requires that plaintiff be given their custody. In paragraph 7 of the complaint the plaintiff alleged: “On the 3rd day of Bebruary, 1947, a child, Barry, was delivered of the defendant, said child being born as a result of the adultery and illicit relationship of the defendant with one Charles Elmore, at a time and place unknown to plaintiff.” By paragraph 8, reference is made to a prior proceeding wherein the defendant charged plaintiff, in the Juvenile and Domestic Relations Court of Bergen County, with non-support of the children, Virginia Jensen and Barry Jensen. Defendant petitions said court for custody of Harold G. Jensen and Jerilyn Jensen and plaintiff petitions said court for custody of Virginia Jensen. Defendant asks no maintenance in said court for herself. Plaintiff denies the paternity of the child Barry.

Plaintiff demands judgment: (a) dissolving the marriage between the parties, (b) Awarding him the custody of the minor children, Virginia 0. Jensen, Harold G. Jensen and Jerilyn Jensen, (c) A determination of this court of the paternity of the child, Barry, through blood tests.

The answer filed by the defendant is in denial of the acts of adultery charged but she does admit so much of paragraph four of the complaint wherein is alleged she and plaintiff have been separated since October, 1947 and she had a miscarriage. She specifically denies the plaintiff had no access to nor sexual intercourse with her since the latter part of August, 1947, and further denies the dead embryo was the result of adultery. The defendant admits the birth and custody of the three children named in the complaint but charges there were four children born of said marriage including Barry, aged 19 months, in her custody. She admits proceedings were had in the Juvenile and Domestic Relations Court of Bergen County as charged, except wherein it questions the paternity of the child, Barry.

At the hearing of the cause the defendant abandoned the answer filed and the matter proceeded ex parte after the plaintiff had abandoned the allegation against the defendant wherein he charged:

“On the 3rd day of February, 1947, a child Barry, was delivered of the defendant, said child being born as a result of the adultery and illicit relationship of the. defendant with one Oharles Elmore, at a time and place unknown to the plaintiff.”

Testimony was received concerning the charge that defendant left plaintiff in October, 1947, and never returned to him and plaintiff has not had access to nor sexual relations with defendant since the latter part of August, 1947, and, on September 21, 1948, defendant was confined at Hackensack Hospital, Hackensack, New Jersey, with a miscarriage, the dead embryo being the result of the adultery of defendant with some person unknown to plaintiff, * * *.

The plaintiff had the judgment against the defendant on the charge of adultery resulting in the miscarriage. By his own statement four children were born of the marriage: Virginia, Harold, Jerilyn and Barry. In appropriate orders contained in the judgment nisi, the plaintiff was awarded custody of the children, Harold and Jerilyn, and the defendant was awarded the custody of the children,- Virginia and Barry. Each of the parties was accorded right of visitation at reasonable hours during the day. Provision was also made whereby plaintiff was ordered to pay to the defendant the sum of $25 per week for the support and maintenance of Virginia and Barry, infant children of the marriage.

By a subsequent proceeding the plaintiff sought to obtain permanent custody of the child, Virginia. The custody of Virginia, after hearing, was continued in defendant. However, the application of the plaintiff is held open to the end if changing circumstances respecting her custody require further action the same can he promptly acted upon without the necessity of a new proceeding.

It can be noted the trial of the suit for divorce proceeded without blood grouping tests having been had, as demanded, for the very obvious reason plaintiff, at the outset, abandoned the specific charge of adultery against the defendant with one Charles Elmore, allegedly the father of the child, Barry. It is conceded that Barry was born while the parties resided together, to wit: on February 3, 1947, and that the plaintiff and defendant resided together until October, 1947, when they finally separated. The plaintiff testified he and defendant have not engaged in acts of sexual intercourse since the month of August, 1947.

The affidavits filed in support of the present application clearly shows the plaintiff had knowledge of the alleged adultery of the defendant with one Charles Elmore, right after the birth of the child, Barry, and while he lived with her during 1947. Since the entry of the judgment nisi on May 5, 1949, the plaintiff has paid for the support of the child, Barry, in accordance with the order of court.

The infirmity in the plaintiff’s present application is that he permitted the suit for divorce to proceed without blood grouping tests having been made and abandoned the specific charge of adultery on which he rested his claim of disputed paternity of the child, Barry. The judgment nisi adjudges four children were born of the marriage, including the child Barry, and orders the plaintiff to support that child. In the light of the events thus related, the plaintiff cannot now invoke the provisions of R. S. 2:99—4. Ho abandoned that right when the divorce case was heard on April 21, 1949. In effect, the court is asked to re-open the case for the purpose of ordering blood grouping tests. I find and conclude, in the circumstances, the plaintiff is not entitled to the relief he is seeking and his application for an order for the tests is denied.

The plaintiff shall pay to the defendant or to her attorney a counsel fee in amount of $75.


author: Steix, J. S. C.

text:
    WILLIAM HARTWYK, PLAINTIFF, v. MONROE CALCULATING MACHINE COMPANY, A DELAWARE CORPORATION, AND UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL NO. 431, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 18, 1951.

      Mr. William J. McCormack, attorney for plaintiff.

      Mr. John 8. Russell, attorney for defendant, Monroe Calculating Machine Company.

      Mr. Morion Stavis, attorney for defendant, United Electrical, Radio and Machine Workers of America, Local No. 431.
   Steix, J. S. C.

Plaintiff, William Hartwyk, was employed by defendant. Monroe Calculating Machine Company, on August 7, 1942. In 1947 he was in the Factory Cost Department, when he was transferred to the cafeteria. He claims that lie agreed to the transfer only if his seniority in the Factory Cost Department remained undisturbed. The defendant company denies that there was any such agreement and asserts that while there was plant-wide seniority, which was strictly observed in llartwvk’s ease, there was no departmental seniority in the Factory Cost Department, departmental seniority existing- only in a few departments which required special skills of the workmen, such as tool makers, screw machine operators and the like.

In 1949 there was a rumor that Hartwyk was coming back to the Factory Cost Department, whereupon other employees protested that if he came back to that department he should be the first to be transferred to another department if any curtailment was made in the Factory Cost Department.

Hartwyk was not a member of the union. However, the union was the sole representative for collective bargaining of all employees of the company. The contract which existed between the union and the company provided for adjustment of grievances and for arbitration. On February 6, 1949, this claimed grievance by the employees of the Factory Cost Department was adjusted by determination that if Hartwyk returned to Factory Cost his plant-wide seniority would be undisturbed, but so far as the Factory Cost Department was concerned he would have to be transferred to other work before any of the other men were transferred. A memorandum of the agreement was written dated February 7, 1949, which is as follows:

“After a series of conferences on the matter of transferring William Hartwyk from the Cafeteria to MD-5, or to the position of factory cost clerk, it was agreed between us as follows:
That Hartwyk be offered a job in either of the two departments above mentioned, and that if he accepted the one in the Factory Cost Department, his company seniority, based on having been hired August 7, 1942, will not be effected; but so far as the Factory Cost Department is concerned, his seniority would begin the date that the transfer from Cafeteria to Factory Cost Department became effective. The purpose of this arrangement is to make sure that in the event of a curtailment of employment in the Factory Cost Department, Hartwyk would have to be transferred to other work before any of the men now employed in the Factory Cost Department.
These conditions' were presented to Mr. Hartwyk, and he ref used both jobs stating that he felt he was entitled to return to the Factory Cost Department with both plant and departmental seniority, dating to his original date of hire. It was explained to Hartwyk that his request could not be met, because the conditions of the transfer, outlined above, had been decided upon through the orderly process of collective bargaining between the company and the representatives of the union.”

On October 31, 1949, there was a lay-off of 93 men. Hartwyk was offered his choice of some 20 different jobs. He refused them all and quit his employment with the company.

In February, 1950, invoking the provisions of the collective bargaining contract between the company and the union, Hartwyk sought arbitration of his claim that he was entitled to seniority in the Factory Cost Department and that he had been laid off although persons employed by the company for a shorter period had been retained.

The collective bargaining contract between the company and the union provides for adjusting grievances in Article XII and, if no satisfactory settlement is arrived at under that Article, provides for arbitration in Article XIII, as follows:

“Section 1. All disputes, differences and grievances between the parties hereto, arising under the terms of this agreement, which are not satisfactorily settled following the procedure set forth in Article XII—Adjustment of Grievances—shall be referred to the President of the Company, or a representative he may delegate, and a representative of the Union for a decision.
Section 2. If a decision is not arrived at by the procedure set forth in Section 1 above, the Union shall select an arbitrator, and the Company shall select an arbitrator; both the Union representative and the Company representative shall select a disinterested third party mutually satisfactory to botli representatives, the decision of any two of such three arbitrators to be final and binding upon both the Union and the Company.
Section 3. In the event, that both the Union represental ive and the Company representative cannot agree in the selection of a disinterested third party, then the selection of said third party shall be left to the American Arbitration Association.”

When arbitration requested by Hartwyk was agreed to by the company the president of the company selected as its representative Mr. Fisher, Assistant. Works Manager. The union selected as its representativo Mr. Ray Shattuek, its president. That Mr. Fisher was an official of the company and Mr. Shat-tuck was an official of the union was well known to plaintiff. These, two, with the consent of plaintiff, selected as a disinterested third party Mr. Wallace Broadbent, a well known citizen and principal of one of our schools, who had no connection with either party. The arbitrators met, held hearings and arrived at a unanimous award in favor of the company.

Plaint ill now claims his removal from the company payroll was the result of a conspiracy and collusion between the company and the union; that he had no knowledge of the agreement made in February of 1949 until evidence thereof was brought out in the arbitration proceedings; that this agreement is invalid, discriminatory, violates plaintiff’s seniority rights, deprives plaintiff of his employment and his property right of seniority; that dnring the arbitration proceeding he learned for the first time that Shattuck was a party to the agreement; that Fisher knew of and was a party to the attempt to deprive plaintiff of his seniority; and during the arbitration was counselled, instructed and directed by company officials as to his conduct and his decision; that Fisher and Shattuck failed to make known to plaintiff that they had prejudged the seniority status and had agreed, prior to the arbitration proceeding, to render a decision adverse to plaintiff regardless of the facts; that the defendants were guilty of fraud and deceit in designating as representatives Fisher and Shattuck with knowledge that they had previously acted in concert on behalf of the company and the union in attempting to deprive plaintiff of his seniority and had, prior to their designation as representatives, prejudged the facts; and, finally, that in the arbitration proceeding Fisher considered himself the representative of Monroe, and his judgment was influenced thereby, and Shattuck considered himself as the representative of Local 431.

At the hearing before the arbitrators the memorandum dated February 7, 1949, was introduced into evidence. Ho objection was made at the time that the arbitrators had prejudged the matter and the hearing continued to its conclusion. The award was unanimous, and the hearings were continued and completed without objection by the plaintiff after the existence of the memorandum became known to him. If the agreement of February 7, 1949, constituted an objection to the arbitration, that question has been waived by plaintiff when he proceeded with the arbitration without objection. The rule is stated in 6 Corpus Juris Secundum, at page 187, as follows:

“Notwithstanding the existence of facts which may influence the judgment of an arbitrator, if a party, with knowledge of such facts, submits his ease to the decision of such person, the objection is waived; and the same rule obtains where a party, who has agreed to submit to arbitration without knowledge of disqualifying facts, afterward, during the progress of the hearing, obtains knowledge thereof but, nevertheless, proceeds, without objection to the making of an award. These principles apply to practically all types of objections, including the objection that the person selected as arbitrator had formed an opinion on the merits of the controversy; that he had had bnsiness relations with a party to the submission; that he was related to 1he party in favor of whom the award was made; or that he had an interest in the subject matter of the submission.”

In Chicago, R. I. & P. Ry. Co. v. Union Pac. R. Co., 254 Fed. 235, jt was held:

“That one of the arbitrators signing the majority award was disqualified because of interest is true. He was general superintendent of one of the tenant roads, which appellant at all times knew. Almost a month before the award it discovered the mistake in contract, and from that time knew that his road was interested in the award, and therefore that the disqualification existed. Not only did it make no objection thereafter, bul it proceeded with the arbitration and made no objection of this kind until after the award. This was a waiver.”

In San Carlo Opera Co. v. Conley, 72 Fed. Supp. 825, 833, that court held;

“Where a party to an arbitration has knowledge of facts possibly indicating- bias or prejudice on the part of an arbitrator he cannot remain silent and then laler object to the decision of the arbitrators on that ground. His silence and inaction constitute a waiver of the objection.”

Moreover, the issues raised present for decision questions of fact. Considering all the testimony it cannot be concluded that the arbitrators were guilty of fraud and deceit nor that they were selected for the purpose of depriving plaintiff of his right to seniority since the entire proceeding was conducted within and under the provisions of the collective bargaining agreement. In arbitration every intendment is indulged in favor of the award; and it is subject to impeachment only in a clear case. Held v. Comfort Bus Line, Inc., 136 N. J. L. 640 (Sup. Ct. 1948). Arbitration proceedings are favored by the courts and the courts will make all fair presumptions to sustain an award. Eastern Engineering Co. v. Ocean City, 11 N. J. Misc. 508 (Sup. Ct. 1933).

Complaint dismissed.