text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY BERINATO, PETITIONER, v. HARPER BROTHERS, INCORPORATED, RESPONDENT.
    Decided November 24, 1936.
    Pot the petitioner, Nathan Rabinowitz.

    Por the respondent, Clarence B. Tippelt.

   This is a proceeding brought by Mary Berinato, as petitioner, against Harper Bros., Inc., as respondent, seeking compensation for herself and her five infant children as total dependents of Michael Berinato, deceased, under and by virtue of the terms provisions of 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 an employe 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, together with the several acts amendatory thereof and supplemental thereto.

A petition and answer were duly filed with the secretary of the workmen’s compensation bureau, and in due course the matter came on for hearing before me, John J. Stahl, a deputy commissioner of compensation, at the bureau chambers, Paterson, New Jersey.

Upon the conclusion of the trial, counsel by stipulation agreed to submit briefs in lieu of oral argument, which briefs have been filed with me and their contents carefully examined.

The undisputed facts as developed in the evidence are as follows: On January 24th, 1936, and for a period of ten years prior thereto, Michael Berinato, petitioner’s decedent, was employed by the respondent as a truck driver, receiving for his services wages at the rate of $32.50 per week exclusive of overtime. His usual and customary hours of employment were ten per dajq from seven a. m. until five p. m., supplemented occasionally by a few hours of overtime in making an extra trip or delivery for which he received additional pay at the rate of $1.50 per extra trip. On the above day, Berinato appeared at the respondent’s garage in Hackensack at seven a. m. in apparent good health, and with one Prank Prienjrenski, as helper, was assigned to a large Mack truck of the six-wheeler type to make a delivery of three hundred cases of vinegar to Krasne Bros., Bronx, New York. They were delayed somewhat in reaching their destination because of the snow covered roads which required slower and more careful operation of the truck by Berinato than under ordinary circumstances, ■ and after unloading the vinegar, which consumed considerable time, they left Krasne Bros.’ warehouse at about six p. m. to return to Hackensack by way of the One Hundred and Twenty-fifth street ferry. They experienced considerable difficulty in keeping the truck in motion after reaching New Jersey, because of snow drifts which made some of the roads almost impassable. The average temperature for this section of New Jersey on the night of January 24th and the early morning of January 25th, as indicated by the official climatological reports of the United States weather bureau, department of agriculture, ranged from six degrees to ten degrees above zero, with a sixteen-inch snow fall and a marked increase of wind velocity. On at least two occasions the truck became so deeply imbeded in the snow that it was necessary for Berinato and his helper to spend considerable time in digging the truck free of the snow, during which time they were exposed to the inclement weather conditions. It was only after chains had been supplied them that they finally managed to extricate the truck and proceed on their journey home. It appears that on the last occasion when the truck became wedged in the snow at about twelve o’clock midnight, Berinato, after affixing chains to the rear wheels, was struck in the face and mouth by one of the chains which recoiled under the revolving wheel, causing two teeth to be knocked out, a laceration of the upper lip and a contusion along the right side of his face. They arrived at the respondent’s garage in Hackensack at five o’clock in the morning, wet, cold and fatigued. After the wound was washed and a piece of adhesive tape applied across the upper lip by a Mr. Farkus, chief dispatcher, Berinato left the garage for his home in Passaic, arriving there sometime after six o’clock. Before taking to bed, his wife bathed his face and mouth with a solution of warm water and boracic acid, observing the cut across the upper lip was bleeding, two teeth missing, and a reddened and swollen area on the right side of the face running from the mouth to the right ear. On January 26th, Berinato called upon Dr. Barney Goldstein, his family dentist, who rendered the necessary dental treatment, observing upon examination that an upper front bridge was missing, an upper right lateral tooth and an upper right central tooth were loosened, upper lip and gums were lacerated, and there appeared to he a slight mark or discoloration on the right side of the face. Although he returned to his regular work on January 28th, and continued to work steadily thereafter until February 14th, the record is replete with testimony indicating that during this entire period he suffered constant pain in and about the region of the right ear; that he complained to his wife and members of his family about his condition; and that he received homo remedies administered by his wife, such as hot applications and bathing to the affected part. On February 11th, because of the increasing severity of the condition, Dr. Jacob S. Freedman was summoned, whose examination revealed tenderness behind the right ear over the mastoid region, normal ear canal, and normal membrane with no evidence of fever. He made a diagnosis of otitis media and prescribed the usual conservative treatment consisting of sedatives and the application of an ice pack to the tender area. and recommended that the patient remain in bed. On February 18th, Dr. Freedman referred him to Dr. William Schwartz, a specialist in ear, eye, nose and throat diseases, who, upon examination, found the right ear drum dull but not inflamed, large swelling in back of right ear over the entire mastoid area, and tenderness. He made a diagnosis of perforating mastoiditis and performed a myringotomy — an incision of the right ear drum, disclosing a discharge of thick pus. Although the doctor recommended immediate hospitalization, it was not until February 20th that Berinato entered Beth Israel Hospital of Passaic where on February 22d, a mastoidectomy was performed by Dr. Schwartz. From February 27th, the date of discharge from the hospital, until March 6th he received daily treatments at the doctor’s office, but on the latter date Dr. Schwartz was summoned to the Berinato home where he found him acutely ill, suffering from dizziness, elevated temperature, vomiting and poor appetite. On the following day he appeared to be somewhat improved but a few days later he took a decided change for the worse. A spinal puncture was made and an examination of the fluid extracted, showed definite evidence of meningitis. He was removed to the Passaic General Hospital on March 11th, 1935, where an immediate operation was performed by Dr. J. Y. Bassett, assisted by Dr. Schwartz, consisting of a temporal decompression, removal of the mastoid process and the mastoid pyramid, and an opening into the cystena magna for drainage of the cervical spinal fluid. He failed to rally from the operation and on March 13th, 1935, he died — the cause of death being meningitis, mastoiditis. It is because of the death of Berinato that the petitioner, Mary Berinato, his lawful widow and mother of his five infant children, brings this proceeding to recover compensation from the respondent, claiming that his death resulted from the accident and exposure on January 24th-25th, 1935.

The burden of proof rests upon the petitioner to establish her right to compensation. The rule applicable to the ease under consideration is ably stated by Mr. Justice Trenchard in Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, “that the burden of furnishing evidence from which the legitimate inference can bo drawn that the death of an employe was caused by an accident arising out of and in the course of employment rests upon ihe claimant.”

Although there is no question but that the decedent met with an accident when he was struck in the face by a heavy tire chain on the night of January 24th, 1935, which arose out of and in the course of his employment, resulting in a laceration of the upper lip and a contusion alongside of the right face, running from the mouth to the ear, the respondent controverts petitioner’s right of recovery on the ground that Berinato’s death was not due to such accidental injuries. On this point alone 1 believe there is substantial merit to respondent’s contention. By the greater weight of medical testimony as evidenced by the opinions of Dr. Joseph Diaz, Dr. Jack Blumberg and Dr. Otto Lowy, appearing in behalf of the respondent, I am satisfied that mastoiditis follows as a result of direct trauma in two types of cases only: (1) where there is a sudden and excessive pressure of air force applied directly over the external auditory canal, causing a rupture of the drumhead and thus furnishing a portal of entry for the introduction of micro-organisms, setting up a middle ear infection; and (2) a direct blow or trauma over the mastoid region, causing a break in the skin and periosteum of the mastoid bone and producing a portal of entry of infection from without. The proofs are barren of any such circumstances in the present case. But petitioner’s right to compensation is not dependent entirely upon such proofs; a recovery may be had if from the evidence it appears that the injurious consequences resulted from the effects of: the exposure to severe weather conditions during the night of January 24th and the early morning of January 25th.

There was much time consumed at the trial on the question of whether or not mastoiditis ever results from exposure to cold, disclosing the usual contrariety of medical viewpoint. However, from the more credible and weightier medical opinion, I am convinced that exposure to extreme cold is a competent cause in setting up a middle ear infection which may subsequently develop into a case of mastoiditis; that this is accomplished by producing a congestion and a lowering of resistance in the middle ear; that germs lurking in the system are conveyed into the middle ear by means of a Eustachian tube; and that, because no resistance is offered, the germs attack the weakened area of locus minoris resistentiae, and in turn set up an infectious process (otitis media). Dr. Hobson Davis, pathologist of Paterson General Hospital, who appeared as an expert in behalf of petitioner and to whose testimony I attach considerable weight, testified in answer to a hypothetical question incorporating all the essential and material facts that there was a direct cause relation between the trauma and exposure and the resulting death; that the course of events which took place in the instant case were as follows: A lowered resistance in the middle ear caused by the trauma and exposure; micro-organisms from the mouth or nasal pharynx transmitted to this area by the Eustachian tubes; the organisms attacking this area of lowered resistance and setting up a middle ear infection; that by contiguity the infection spreading to the mastoid regions, setting up a supperative mastoiditis, and finally spreading into the meninges, causing meningitis and death. Dr. Davis expressed the opinion that the time interval between the date of exposure and the subsequent developmnt of symptoms is entirely consistent with this type of case, assigning the following reasons: that incubation is the normal period from the time of invasion of the bacteria until the first symptoms appear; that these symptoms may occur within one week to ten days; that they maj be insignificant at first, may last only a few days, and then be relieved; that this period is known as a quiescent period, during which time the patient may and often does return to work; and that at a later day the symptoms become exacerbated and acute, requiring medical and surgical intervention.

The sole issue, therefore, is one of causal relation — whether the death of petitioner’s decedent resulted from exposure caused by the conditions of his employment, which exposed him to a hazard different from and greater than that to which the general public was exposed.

“Although injuries and death resulting from exposure to a degree of cold such as may be expected under ordinary conditions incidental to the very nature of a workman’s employment are not ordinarily compensable as an ‘accident’ or an ‘accidental injury’ within the meaning of the Workmen’s Compensation acts, injurious consequences resulting from, exposure to a sudden, extreme, and exceptional degree of cold may be compensable as an ‘accident’ within the meaning of the Compensation act, as may extraordinary exposure to cold and to water or wetting.” 71 C. J. 626, § 376.

The soundness of this rule is well established in this state upon a line of cases of which Long v. Canadian Car and Foundry Co., 41 N. J. L. J. 118; Sullivan v. Clark, 3 N. J. Mis. R. 924, and Matthews v. Township of Woodbridge (S. C.), 183 Atl. Rep. 150, are typical. In the last cited case the facts were as follows: Matthews, a police officer employed by the township of Woodbridge, while on night patrol duty on February 6th, 1934, prior to leaving his post experienced numbness in his fingers due to the cold. The difficulty was frostbite. Thereafter amputation was made necessary.

Held : That the injury was accidental and arose out of and in the course of employment. Mr. Justice Bodine, speaking for the Supreme Court, stated, “it has been held by the Court of Errors and Appeals that sunstroke is compensable where the injury arose out of and in the course of the employment and where the risk was naturally connected with and reasonably incident to the work that the employe was doing, and where he was exposed to the heat of an exceptional summer day. George v. Waldron, 111 N. J. L. 4. Here all those elements are present except for the fact that there was unusual cold instead of unusual heat, and the injury was frostbite rather than sunstroke. An award to the petitioner was therefore justified.”

Similar is the holding in Sullivan v. Claris, supra, one of the earlier bureau decisions touching on the question of exposure to cold. It was held that while ordinarily compensation does not attach to injury from the act of God such as frostbite, the risk of which is common to all, if the circumstances of the employment subject the workman to a special hazard such as from excessive exposure, injury by frostbite is compensable. And in Long v. Canadian Car and Foundry, supra, a workman. who died from pneumonia contracted from exposure to cold and wetting in crossing a swampy meadow — the only means of escape and exit from an exploding munition plant— was held to have met his death by accident arising out of and in the course of his employment.

Turning to other jurisdictions, a like holding was followed in Brock, v. Lehigh Talley Coal Co., 296 Pa. 502; 146 Atl. Rep. 899. In that case the claimant’s husband died of pneumonia resulting from unusual exposure during the course of his employment in the defendant’s mine. Affirming an award of compensation the reviewing court said:

“In Jones v. Philadelphia and Reading Goal and Iron Co., 285 Pa. 317,- we held that: ‘Injury following an extraordinary exposure to wet and cold, suffered in the course of employment, may be compensable under the "Workmen’s Compensation statutes (Pa. St. 1920, §:§ 21916 el seq.; 77 P. S. §§ 1 et seq.) on the same principle as a prostration resulting from heat; so may death from pneumonia caused by an injury of unusual exposure.’ The court below properly decided that the present case was ruled b3 that decision.”

A case somewhat in point with the present one is Yellow Cab Co. v. Industrial Commission, 210 Wis. 460, except for the fact that there, too, the injurious consequences from undue exposure affected the respiratory rather than the auditory organs of the body. The facts appear as follows: Claimant was employed by a cab company to attend its office switchboard, and to assist loading and starting cabs in different localities, when so assigned. He worked nights, from six p. h. to five-thirty a. m. On the day in question, the temperature was between twenty-four and twenty-nine degrees and there had been some snow. Claimant at about eight-thirty p. m. was assigned to a building on the State University campus where a social function was in progress. Enroute he had tire trouble and had to spend fifteen minutes changing a tire and in doing so he had to kneel in the snow. He was clad in winter apparel but had forgotten his overshoes. After repairing the tire, he worked outside at the assigned building but could not get warm and suffered chills. He was very busy opening doors and moving around during this time. At about ten-thirty p. m. he went home, changed some clothes and tried to get ■warm. An hour later he returned to work and remained at the campus building until two-thirty A. m., when he returned to the cab company office and remained there until five-thirty a. m. During all that time he could not warm up and felt his head and chest filling up and becoming sore. Three days later he was taken to the hospital with lobar pneumonia. This disease ran its usual course but claimant suffered a thrombosis from the pneumonia in the leg, which interfered with circulation to the extent that a toe became gangrenous and had to be disarticulated at the proximal joint. The industrial commission held that claimant sustained an “accidental injury growing out o£ and incidental to his employment” and awarded compensation. In affirming judgment which affirmed the award of the commission, the court said:

“Claimant was exposed to a hazard that was incidental and fairly traceable to his employment as a contributory cause, and he would not have been equally exposed to that hazard apart from his employment. Likewise the exposure of [claimant] to the germination of the pneumonia germs, and the resulting pneumonia, was substantially increased by reason of the nature of the services he was obliged to render on the night in question. His pneumonia, by reason of the germination of those germs as the direct result of his exposure, was a hazard incidental to his employment. The fact that such hazard was also incidental to all similar outdoor activities affords no reason for excluding [claimant] from the benefits of the Workmen’s Compensation act.”

Similar is the holding in Larke v. John Hancock Mutual Life Insurance Co. et al., 90 Conn. 303; 97 Atl. Rep. 320. In that case there was evidence that the day was very cold; that the decedent, a robust and healthy man, left his home at quarter to six in the morning of this day and drove in the course of his business fifteen or twenty miles, making about fifty calls by going in and out of heated buildings; that when he returned home at two p. tmc. he complained of not feeling well, and that his face around the nose and eyes was a little red and around the nose was swollen. On the following afternoon a physician diagnosed his case as frostbite, and a physician testified that the assumed facts of this case, as claimed by the plaintiff, presented a case of frostbite. Erysipelas subsequent^ developed from which the claimant died. In affirming an award made by the compensation commissioner, the court said:

“The risk of frostbite to Mr. Larke was either created or greatly aggravated by his employment, which subjected him to open air work in severe cold. * * * Erysipelas developed from the frostbite; the finding on this point is conclusive. If the primary injury arises out of the employment, every consequence which flows from it likewise arises out of the employment. * * * It is immaterial that erysipelas does not ordinarily result from frostbite; it is enough if in this instance it be caused by it.”

Viewed in the light of these decisions, can it be said from a factual point of view that Berinato, who happened to be the unfortunate victim, did not suffer from unsual exposure, due to the freezing temperature, coupled with snow and severe winds during those hours of the night of January 24th and the morning of January 25th? Likewise can it be said that his illness and subsequent death were not directly traceable to such exposure, in view of the testimony of the petitioner, widow of the decedent, that prior to the time in question he was a strong, robust and vigorous man, a steady worker, never ill nor known to complain of any sickness, and that, subsequent to that eventful night, he began to experience pain in and about the region of his right ear of which condition he constantly complained to members of his family and because of its increasing severity he was compelled to cease work on February 14th, and thereafter to enter a hospital? The answers to these questions are obvious. There appears to be an abundance of competent evidence from which a reasonable inference would lie that Berinato's exposure was substantially increased by reason of the nature of the services he was called upon to perform on the night in question,, a special and peculiar danger from the elements, greater than that of the ordinary persons in the community, resulting in his illness and death, and constituting an accident within the meaning and purview of the Workmen’s Compensation act.

Much stress has been laid by the respondent upon the apparent variances in the hospital histories; but to this I attach very little significance. The history which was taken personally from Berinato at Beth Israel Hospital on February 22d, 1935, reads as follows: “Onset of illness about a month ago with earache on right side. He received medication and pain subsided. * * *” This history is entirely in accord with the facts in the case and would appear to be the more accurate of the two. The history taken at the Passaic General Hospital upon his admission on March 11th, 1935, at which time he was semitosed and unable to talk, states the following: “January 11th, 1935, took sick with severe cold followed by earache. Unattended by physician. February 12th, 1934 [1935] had mild chill and dizziness so ceased work. * * This latter history, I feel, is unreliable for the reason that it was obtained not from Berinato but from members of his family whose lack of expression in the English language, in all probability, accounts for the inaccuracies appearing therein.

The respondent also contends with vigor that the absence of any contributory cause or causes of death appearing in the certified copy of the death certificate is sufficient proof that Berinato’s death was wholly unrelated with the trauma and exposure on the night of January 24th and the morning of January 25th. To this contention I feel that there is little or no merits. Section 29 of the Evidence act (2 Comp. Siat. 1910, p. 2229) provides that all certified transcripts of death made by any physician according to law shall be received as prima facie, evidence of the matters and facts contained therein. However, where, as in this case, the said certificate is silent as to contributor}' causes, other evidence may be adduced to establish the existence of such cause or causes. See Nestico v. Delaware, Lackawanna and Western Railroad Co., 4 N. J. Mis. R. 418; 133 Atl. Rep. 83.

After carefully analyzing the entire testimony, the conclusion is inescapable that there is in this case an unbroken chain of events revealing a reasonably accurate history of cause and effect, to wit: (1) prior good health with freedom of any ear symptoms ; (2) undue exposure from extreme cold, snow and wind, on the night of January 24th and the early morning of January 25th; (3) congestion and diminished resistance in the middle ear resulting from such exposure; (4) middle ear infection; (5) mastoiditis; (6) meningitis; and (7) death.

The burden of proof which rests upon the petitioner to establish her right to compensation has been met. The evidence furnishes a basis of rational inference, tantamount to legal proof of the fact, that decedent’s death, and the disability which preceded it, resulted from an accident which arose out of and in the course of his employment. In Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 606, Mr. Justice Heher, speaking for the Supreme Court, stated:

“Circumstantial or presumptive evidence, as a basis for deductive reasoning in the determination of civil causes, is a mere preponderance of probabilities. All that is required is that the claimed conclusion from the offered fact must be a probable or a more probable hypothesis, with the possibility of other hypotheses. The test is probability rather than certainty. Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22.
I find, therefore, that the petitioner and her five infant children, Marie Berinato, born December 29th, 1926; Prank Berinato, born July 25th, 1925; Josephine Berinato, born October 5th, 1922; Prances Berinato, born May 14th, 1920, all of whom were actual members of the decedent’s household at the time of Berinato’s death and wholly dependent upon him for support and maintenance, are entitled to compensation from the respondent as total dependents, together with an allowance of compensation for temporary disability from February 15th, 1935, to March 13th, 1935, besides the medical expenses of his last illness and the statutory burial allowances in the sum of $150.
»jc H; $ $ $ ❖
It is therefore on this 24th day of November, 1936, adjudged, determined and ordered, that judgment final be entered in favor of the petitioner and against the respondent.
sj: # # * * % #
John J. Stahl,
Deputy Commissioner.


source: Caselaw Access Project

author: Pee Oueiam.

license: Public Domain

text:
    VILLAGE OF RIDGEWOOD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PROSECUTOR, v. BOROUGH OF GLEN ROCK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, RESPONDENT.
    Argued October 7, 1986
    Decided December 29, 1936.
    Before Justices Paekeb and Lloyd.
    For the prosecutor, Thomas L. Zimmerman.

    For the respondent, Winne & Banla.

   Pee Oueiam.

The writ was issued to review an ordinance of the borough of Glen Eock to open certain streets in that borough through property owned by the village of Eidgewood upon which property the village has its sewage disposal plant, and upon which it has determined to enlarge its plant.

The parties were before the courts in the case of Ridgewood v. Hopper, 13 N. J. Mis. R. 775; 181 Atl. Rep. 150; affirmed,, 116 N. J. L. 413; 184 Atl. Rep. 822, in which it was determined that Eidgewood was entitled to enlarge its sewage plant on the property without the consent of the borough of Glen Eock, and without the approval of the board of public utility commissioners. It was in this situation that the present ordinance to open streets through the sewage plant property was passed.

The ordinance provides for the opening of two highways through the territory owned by Eidgewood and upon which it is planned to extend its sewage system, and as methods of acquiring the lands for these highway extensions provides that it shall be done by gift, purchase or condemnation.

The ordinance is attacked on various grounds, among them being that the sole motive of the borough is to defeat the rights of the village as declared by the courts of the state; that the ordinance was illegally adopted because of defective notice; because of absence of notice, and on the further ground that the borough was without jurisdiction to open the streets.

With the motive of the borough we have nothing to do provided of course it was exercising a legal right, and we think it necessary, as to the other reasons, to give consideration to but one, and that is the power of the borough to condemn.

The ordinance, in so far as it provides for gift or purchase, is of course not subject to objection, but in so far as it asserts a right of condemnation we think that the borough was without authority of law to enact it. The right of the legislature to take private property for public uses as accorded by the constitution, and “the power of the legislature, on just compensation being made, to sanction the acquisition by one corporation of the franchises of another, may be considered as too firmly established to admit of debate. But it is equally certain that no such power will result from the mere authority to acquire b3 condemnation the land requisite for the enterprise. A similar immunity must be extended to the property of a corporation in connection with which its franchises are solely capable of being exercised. Such property cannot be taken where the appropriation of it to another use will destroy or impair the exercise of the franchises of another corporation, unless the power to take is given in express terms or arises from a necessary implication.” New Jersey Southern Railroad v. Long Branch, 39 N. J. L. 28.

This case based on numerous authorities therein cited is the settled law of the state and has been cited in more recent cases, the last being Ocean Grove v. Board of Education, Neptune, 3 N. J. Mis. R. 349; 128 Atl. Rep. 397. See, also, State v. Montclair, 35 N. J. L. 328, where it was held that the ordinary powers of condemnation did not authorize the taking of lands belonging to Jersey City, such lands being held for the purpose of constructing a reservoir.

The lands in question are held by the village as a part of its sewage system. While the street extensions are said not to actually pass through certain contemplated extensions as set forth in the case already cited, it appears that there have been a number of extensions and these made necessary by the growth of the village. It is reasonable to suppose that further extensions upon the ground immediately adjoining the present enlargement will be required from time to time. The property is, therefore, essential to the exercise of the franchise of the village for sewage purposes.

The lands are also devoted to a public use and lands so devoted we think additionally are not subject to condemnation under general powers to that end, but must be specifically by the legislature itself made subject to such proceedings. Lands so held are usually possessed by the corporations, municipal or private, having also general power of condemnation. To subject such lands to taking by one corporation from another under the general powers of condemnation would be to open the door to recriminatory condemnation litigation without end inasmuch as if under such authority the first taking would be justified, its re-taking would be equally within the power of the adverse party. Such we think is not the law. Property once devoted to a public use cannot be diverted therefrom without express authority of the legislature.

It may be suggested that until the right of condemnation is asserted by the borough no practical question as to the ordinance arises and proceedings to review by the court might be permitted to await such action, hut the parties argue the case on its fundamental rights and undoubtedly desire the opinion of the court on those rights. This being true, so much of the ordinance as asserts a right to condemn the property of the prosecutor will he set aside, with costs.


author: Brogan, Chief Justice.

text:
    L. H. McMILLIN, PETITIONER-RESPONDENT, v. THE CALCO CHEMICAL COMPANY, INCORPORATED, RESPONDENT-PROSECUTOR.
    Submitted October term, 1936
    Decided December 29, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the petitioner-respondent, Robert Watkins.

    For the prosecutor, Clarence B. Tippett.

   Brogan, Chief Justice.

The writ brings up for review a judgment in favor of the petitioner in a workmen’s compensation case. In the bureau the deputy commissioner found that the decedent met his death by an accident arising out of and in the course of his employment and awarded compensation to his dependents. On appeal to the Somerset County Court of Common Pleas, the findings of the bureau were affirmed.

The prosecutor of this writ of certiorari, as its first point, challenges the judgment of the court below, contending that the decedent did not meet his death by an accident arising out of and in the course of his employment, and that the petitioner below did not sustain the burden of proof to support an award by a fair preponderance of credible, legal testimonj’.

Admittedly the decedent, Thomas MeMillin, was employed in the accounting department of the Calco Chemical Company at Bound Brook, New Jersey. On the day of his death, Monday, March 14th, 1932, he came to the office of the plant, registered that fact by punching the time clock a few minutes after six in the morning and left the office shortly after two-thirty in the afternoon. The clock and time cards also show that he entered the office of the company again that same evening at seven-forty-one and left an hour later accompanied by two other members of the office staff, a Mr. Scher, his superior, and a Mr. Ortepio, a fellow employe. All three got into an automobile belonging to the decedent and as they were crossing the Central Bailroad Company right of way, which ran through or across the property of the employer, Calco Chemical Company, were run down by a train and all of them killed.

In the brief of the prosecutor, passing mention is made that the accident did not occur on the premises of the employer, but on the tracks of the railroad company. There is no merit whatever to this argument. The roadway leading into the plant, laid out as it is over the lands of the employer, was built for the convenience and use of those coming to or leaving the plant. The railroad right of way is laid out across these privately owned lands.

The employer owns the land on each side of the railroad right of way and employes parked automobiles on the land between the railroad tracks and the plant of the employer, or on the land between the railroad tracks and the public highway.

The deputy commissioner determined that employes in the accounting department quite frequently worked in the evenings; that the decedent was accustomed to work in the evenings, laying out work for other employes to do the following day, and that he reported to the office on the night of his death to perform some duty for the company. The Common Pleas Court reached the same determination and our examination of the record convinces us that there was testimony to support that conclusion.

It is argued that the bureau erroneously accepted the testimony of a Miss McLean that decedent had told her on the telephone that he had work to do on the night in question at the office that would occupy his time until nine o’clock. Whether this testimony formed a partial basis for the determination of the bureau on this element of the case does not appear since the deputy commissioner does not refer to it in his findings of fact. The Common Pleas judge, however, did refer to it and arrived at the same fact conclusion as the deputy commissioner, independent of a consideration of the testimony of Miss McLean. In this we think he was legally correct.

We think that the findings of fact of two independent fact-finding tribunals concurring in the same conclusion should not be overruled by us when the evidence before those tribunals supported their conclusion. Faley v. Trenton Malleable Iron Co., 13 N. J. Mis. R. 286; 177 Atl. Rep. 859; affirmed, 115 N. J. L. 579; 181 Atl. Rep. 149.

It is next argued that the award made to the brother and two sisters of the deceased as partial dependents cannot be sustained within the intendment of the statute. These dependents live in Ohio and the testimony of the decedent’s parents as to the partial dependence of the younger brother and two sisters was obtained by deposition. Both sides submitted interrogatories.

The evidence thus obtained tended to prove that the decedent sent his parents $30 a month to assist in the maintenance and education of these three younger members of the family. This, too, was a question of fact and was decided adversely to the prosecutor. Again we see no reason whatever to disturb the conclusion of the court below since there was evidence to support it. No good reason is advanced in the brief of the prosecutor why we should do so.

The judgment of the Common Pleas Court is affirmed, with costs.


text:
    PFISTER CHEMICAL COMPANY, INCORPORATED, A CORPORATION, PROSECUTOR, v. LAWRENCE D. ROMANO, RECORDER OF RECORDER’S COURT OF THE BOROUGH OF RIDGEFIELD, AND THE BOROUGH OF RIDGEFIELD, DEFENDANTS.
    Submitted October term, 1936
    Decided January 4, 1937.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the prosecutor, Gilbert E. Crogan, Jr. (Harry B. Hyde, of counsel).
    Por the defendants, Lloyd L. Schroeder.

   Brogan, Chief Justice.

The prosecutor of this writ was convicted in the Recorder’s Court of the borough of Ridge-field of violating a municipal ordinance, the object of which was to abate nuisances resulting from the discharge of fumes, smoke, soot, gaseous vapors, and the like.

The validity of the ordinance is challenged by the prosecutor on the ground that it is in conflict with the provisions of article 10, section 7, of the Home Rule act, chapter 152, Pamph. L. 1917; Cum. Supp. Comp. Stat. 1911-1924, p. .2105, § *136-1007. That article reads as follows:

“7. The governing body of every municipality may prescribe a penalty or penalties for the violation of any ordinance or ordinances it may have authority to pass, either by imprisonment in the county jail or in any place provided by the municipality for the detention of prisoners, not exceeding ninety days, or a fine not exceeding two hundred dollars, or both. The magistrate before whom any violator of any such ordinance is convicted shall have power to impose any fine or term of imprisonment noi exceeding the maximum fixed in such ordinance. In default of the payment of any fine imposed thereunder any person convicted of the violation of any ordinance of any municipality may, in the discretion of the magistrate by whom he was convicted, be imprisoned in the county jail, or any place of detention provided by the municipality, for any term not exceeding ninety days.” (Italics ours.)

It is quite plain that the statute enables the governing body to provide a penalty or sanction for the enforcement of its ordinances. It is also plain that the legislature intended that the tribunal before which offenses against ordinances of this character are cognizable should possess a reasonable discretion in the matter of the penalty to be inflicted upon the person found guilty of violating such ordinances.

The second section of the ordinance before us provides that offenders against its provisions shall be fined the sum of $50 or imprisoned in the county jail. We perceive no room for discretion here for a magistrate to exercise. Instead the governing body has appropriated this discretion in the ordinance itself without reference to the offender or the circumstances of the violation, and deprived the magistrate of any consideration of whether his discretion should be exercised in dealing with the offender to inflict a lesser penalty than a $50 fine. Por this reason the ordinance is invalid. A like situation was disposed of in the case of Massinger v. Millville, 63 N. J. L. 126; 43 Atl. Rep. 443, where the court said: “The power of the council was to fix the amount beyond which the fine should not go. The power to lessen that fine was vested in the magistrate by the statute, and he could not be deprived of that power by the ordinance.

“This section of the ordinance is not within the authority of the statute and is, therefore, invalid. Young & McShea Amusement Co. v. Atlantic City, 60 N. J. L. 125; 37 Atl. Rep. 444; Slocum v. Ocean Grove, 59 N. J. L. 110; 35 Atl. Rep. 794; Philadelphia, and Brigantine Railroad Co. v. Borough of Brigantine, 60 N. J. L. 127; 37 Atl. Rep. 437.

“The section of the ordinance providing a penalty being void, leaves the other parts of the ordinance unenforceable. Without the sanction of a penalty, both the ordinance and all proceedings thereunder to enforce it are entirely useless and nugatory. Smith v. Gouldy, 58 N. J. L. 562; 34 Atl. Rep. 748;” Friedman v. Maines, 8 N. J. Mis. R. 703; 151 Atl. Rep. 472; affirmed, 110 N. J. L. 454; 166 Atl. Rep. 148; Fields v. Duffy, 115 N. J. L. 319; 180 Atl. Rep. 225.

The prosecutor also challenges the validity of the conviction for the reason that the return to this writ does not set forth any evidence to show that the offense charged in the complaint was committed. The return recites that the prosecutor did, on a certain date and between certain hours of that day, permit and allow the escape of fumes, vapors, &c., in sufficient quantity to cause injury to health or damage to property within the meaning and intent of the ordinance in question. This is a mere conclusion on the part of the recorder of the municipality without any facts upon which it may be justified.

The ordinance prescribes that it shall be unlawful to permit the emission of dense smoke, &c., in sufficient quantity to cause injury to health or damage to property. Manifestly to sustain a conviction it must be shown that the violator of the ordinance offended against its provisions to a degree to warrant the conclusion that the act complained of did cause injury to health or damage to property. The return must contain sufficient recitation of testimony to warrant the finding that the offender did in fact violate the ordinance. The return herein is insufficient in this respect. Sawicki v. Keron et al., 79 N. J. L. 382; 75 Atl. Rep. 477; O’Driscoll v. Scott et al., 12 N. J. Mis. R. 516; 172 Atl. Rep. 797; affirmed, 114 N. J. L. 265; 176 Atl. Rep. 170.

Our conclusion is that the ordinance is invalid for the reasons first above indicated and that apart therefrom the conviction cannot be sustained on the record.

The judgment is reversed, with costs.


author: Per Curiam.

text:
    HERMAN COHEN, PROSECUTOR, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HAMILTON, RESPONDENT.
    Argued October 7, 1936
    Decided December 29, 1936.
    Before Justices Parker and Lloyd.
    Por the prosecutor, Frank I. Casey.

    Por the respondent, Raymond J. Stewart, Jr., and Richard J. Hughes.

   Per Curiam.

This is a rule to show cause why a writ of certiorari should not be issued to review the action of the township committee of the township of Hamilton abolishing the position of police surgeon which he had previously held. The rule is supported by depositions taken by both sides which disclose that the committee in abolishing the office was motivated by political reasons to which it contends there is to be added the more commendable purpose to reduce the expenses of the township.

It is possible that even though one motive, an improper one, and another motive, a proper one, conjoined to effect a result, such result would not be disturbed. Prom the evidence taken, however, the alleged purpose to reduce expenses is seriously impeached by the sudden filling of positions which had lain dormant for years and the rejection of the offer to do the work for substantially the pay offered to the township physician for the performance of the work previously performed by the police surgeon. This presents a situation calling for the allowance of the writ and the rule to that end is therefore made absolute.


text:
    ISRAEL RAMER, PLAINTIFF-APPELLANT, v. PEOPLES BANK AND TRUST COMPANY, DEFENDANT-RESPONDENT.
    Submitted October term, 1936
    Decided December 29, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the plaintiff-appellant, Aaron Heller.

    Por the defendant-respondent, Henry G. Whitehead.

   Brogan, Chief Justice.

The plaintiff sued the defendant bank for negligence in protesting a promissory note as a result of which the endorsers escaped liability. The court directed a verdict for the defendant and from the judgment thereon the plaintiff appeals.

The facts in the case may briefly be stated thus: The plaintiff was the payee and holder of a promissory note made by Eubin & Son, Incorporated, and Sam Rubin. The instrument carried the endorsement of Sam Rubin, S. Rubin (different persons), and I. Katz. Prior to the due date the plaintiff lodged the note with the defendant bank for collection. He testified that when he delivered the instrument to the bank for collection he gave the note-teller a slip of paper on which was written the names and addresses of the parties with instructions that notice of protest be sent to those answerable thereon if the note was not met. The note was not paid at maturity and protest notices were mailed to the maker and endorsers of the note, addressed in care of the maker. On the face of the note, exhibited in evidence, we find, under the name of the maker, a pencil notation of the address. On the back of the note, likewise in pencil, we find “c/o Sam Rubin” (maker) written opposite the name of the endorsers.

The basis of the plaintiff’s claim, charging the bank with liability, is found in his own testimony in these words: “I gave them [meaning the bank’s officer] the note with a slip of paper with the names and addresses which is on the note, the names, and I told them to have it protested in case it was not collected, and send the notice to the proper addresses, to the ones on the paper.” (Italics ours.)

Defense witness, Mr. White, note-teller in March, 1933, when the note was lodged with the bank for collection, testified that he didn’t remember the details of what transpired between the plaintiff and himself at the time the note was turned over for collection, but, stating what his practice had been in matters of this kind, said that when the note was presented for collection he asked the plaintiff for the addresses of the persons liable and then and there made pencil note of the addresses on the instrument itself.

The bank’s notary testified that he sent protest notice to the endorsers in accordance with the addresses found in pencil writing on the note, i. e., in care of the maker.

When a bank undertakes the collection of a note lodged with it for that purpose, and the mailing of protest notice to all answerable thereon, if same is not paid, it fulfills its duty in this regard if it sends the notice of protest to the parties at the address supplied by the holder of the instrument. The defendant bank says that it discharged its duty to the plaintiff in that way.

The claim of the plaintiff is that the hank was negligent in the matter of mailing protest notice to the endorsers; that the notice was not sent to the correct address of these persons. It had the burden of proving this asserted negligence. The plaintiff did not, in our judgment, discharge this burden. The plaintiff did not prove that the protest notices were sent to an address different from the one, he says, he supplied; nor did he prove what addresses he did supply on the slip which he claims he gave to the note-teller.

The judgment is affirmed, with costs.


text:
    CHARLES CRAWFORD, PETITIONER-DEFENDANT IN CERTIORARI, v. NEWARK STAR PUBLISHING COMPANY, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Submitted October term, 1936
    Decided December 29, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the petitioner-defendant, Harry Krieger (Maurice Silver, on the brief).
    Por the respondent-prosecutor, Reginald V. Spell (A. William Wann, of counsel).
   Brogan, Chief Justice.

The writ in this case brings up for review a judgment of the Essex County Court of Common Pleas in a compensation ease. The petition for compensation was dismissed in the compensation bureau because the deputy commissioner determined that the petitioner was excluded from the benefits of the statute. On appeal, the Pleas reversed this finding and awarded compensation.

The petitioner was employed by the Newark Star Publishing Company as a canvasser for subscriptions to the newspaper published by that company. In connection with his work as such canvasser, he also sold small policies of accident insurance to the subscribers for which he took a down payment of fifteen cents. The hours of his employment were fixed and he reported each morning and evening at the circulation department of the employer. His duties were to make a house to house canvass for subscriptions for which he received a definite weekly salary, plus commission, on the number of subscriptions obtained. He did not carry newspapers with him but wrote out subscribers’ orders on a form of agreement furnished by the employer, and turned in such subscriptions each evening at the office of the employer. It is admitted that he received an injury by automobile accident arising out of and in the course of his employment.

Whether the judgment for the petitioner was legally correct depends upon the construction and meaning to be given to the provisions of chapter 64, Pamph. L. 1932, p. 111; N. J. Stat. Annual 1932, § **236-102, which read as follows:

“The term ‘employe’ as used in the act to which this act is a further supplement, and all acts amendatory thereof or supplemental thereto, shall in all cases be so construed to exclude from the operation thereof any person engaged in the vending, selling or offering for sale, or delivering directly to the general public, any newspaper, magazine or periodical, or acting as sales agent or distributor as an independent contractor of or for any such newspaper, magazine or periodical.”

The act is in the disjunctive and its provisions are separable. It is the first portion of the statute that needs consideration since, plainly, the petitioner was not delivering newspapers to the general public, nor was he acting as sales agent or distributor as an independent contractor. Was he therefore engaged in vending, selling or offering for sale, any newspaper, magazine or periodical, within the meaning of the statute ?

The petitioner’s testimony plainly discloses that he was selling subscriptions for the newspaper, the delivery of the newspaper to begin at a future time. It is admitted that delivery was not to be made by the petitioner under any circumstances.

In the ordinary acceptance of the term, vending means to dispose of something to another for money, and selling connotes the transfer of something to another for a consideration, usually money, while offering for sale imports a tender or proposal to sell for a consideration.

Vending or selling a newspaper or magazine imports a transaction presently completed or capable of being completed at once. The petitioner was not, in a strict sense, selling the newspaper. He was soliciting and taking contracts from persons who were willing to purchase this certain newspaper in the future. This is not, to the ordinary mind, vending or selling newspapers. Nor do we think he was offering a newspaper for sale in the sense in which this term is intended in the statute. The words “vending, selling or offering for sale,” are set out in the same clause of the compound sentence making up this supplement to the statute. They should be considered together and, thus considered, it is our view that “offering for sale * * * any newspaper * * *” means a manual tender of the article in question. The petitioner therefore does not come within the exclusion of the statute, supra.

The judgment is affirmed, with costs.


author: Siegler, Judge.

text:
    Essex County Juvenile and Domestic Relations Court.
    HELEN STEPHENS, OF THE BOARD OF EDUCATION OF THE TOWN OF WEST ORANGE, COMPLAINANT, v. BENNO BONGART AND GERTRUDE BONGART, DEFENDANTS.
    Decided January 5, 1937.
    Eor the complainant, Norman L. Brundage.

    Eor the defendants, Carl A. Quaglia.

   Siegler, Judge.

Helen Stephens, attendance officer of the school district of the town of West Orange in the county of Essex, filed her complaint against Gertrude R. Bongart and Benno Bongart, the defendants in this action, charging that they reside within the school district of the town of West Orange, and being the parents and having custody and control of William Bongart, aged twelve, and Robert Bongart, aged eleven, their children, have, since the 5th day of April, 1936, failed to cause their said children regularly to attend the public schools of the school district of the said town of West Orange; further charging said defendants having neither caused said children to attend a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments, nor have they received equivalent instruction elsewhere than at school, contrary to the provisions of an act of the legislature of the State of New Jersey entitled, “An act to establish a thorough and efficient system of free public schools and to provide for the maintenance, support and management thereof,” approved October 19th, one thousand nine hundred and three, and the amendments thereof and supplements thereto.

The act upon which these proceedings are based, chapter 307 of the laws of 1931 (N. J. Stat. Annual 1931, § 185-165c), reads as follows:

“Every parent, guardian or other person having custody and control of a child between the ages of seven and sixteen years shall cause such child regularly to attend the public schools of such district or to attend a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or to receive equivalent instruction elsewhere than at school unless such child is above the age of fourteen years. * * * Such regular attendance shall be during all the days and hours that the public schools are in session in said school district, unless it shall be shown to the satisfaction of the board of education of said school district that the mental condition of such child is such that he or she cannot benefit from instruction in the school or that the bodily condition of the child is such as to prevent his or her attendance at school; * * *.”

The legislature has conferred power and authority upon this court to hear and determine issues condemned by the aforesaid legislation by chapter 34 of the laws of 1919, pages 69-70, approved April 7th, 1919. Cum. Supp. Comp. Stat. 1911-1924, p. 3219, § 185-165v.

The first point raised by the defendants is that the statute under which these proceedings are brought; to wit, chapter 307 of the Jaws of 1931, is invalid because it invades the fourteenth amendment of the United States constitution. The problem for determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the defendants by the fourteenth amendment: “No State shall * * * deprive any person of life, liberty, or property without due process of law.” This statute is a legitimate exercise of the police power of the state. The object of the legislation was to create an enlightened American citizenship in sympathy with our principles and ideals, and to prevent children reared in America from remaining ignorant and illiterate. If it is within the police power of the state to regulate wages, to legislate respecting housing conditions in crowded cities, to prohibit dark rooms in tenement houses, to compel landlords to place windows in their tenements which will enable their tenants to enjoy the sunshine, it is within the police power of the state to compel every resident of New Jersey so to educate his children that the light of American ideals will permeate the life of our future citizens. Police power itself is an attribute of sovereignty. It exists without any reservation in the constitution. It is founded on the right of the state to protect its citizens, provide for their welfare and progress, and to insure the good of society. It corresponds to the right of self-preservation in the individual. Its application varies with the exigencies of the situation and with the progress of mankind. It is the foundation of our social system, and upon it depends the securing of social order, the life and health of the citizen, the comfort of existence, the enjoyment of private and social life, and the beneficial use of property. It extends to the protection of life, health, comfort, and welfare of persons, the protection of property, and to the welfare of the state itself. All natural persons within the jurisdiction hold their property and pursue their various callings subject to the police power. It is inherent in the various states of the union, as well as in the federal government. It extends to regulation of education; for the very existence of our government, as well as its progress and development, depend upon the intelligence of our citizenry. McLean v. Arkansas, 211 U. S. 539; Muller v. Oregon, 208 Id. 412; Holden v. Hardy, 169 Id. 366; Jacobson v. Massachusetts, 197 Id. 11.

The defendants rely upon the authority of Meyer v. Nebraska, 262 U. S. 390, and Pierce v. Society of Sisters, and Pierce v. Hill Military Academy, 268 Id. 510, for support of their contention that the legislation under consideration is unconstitutional. The issue in the Pierce case, supra, was not that involved here. There the court was considering property rights of the appellees; the right to engage in the business of conducting a school for the instruction of children; but throughout the whole case the question of the right of the state to require children to attend school was not challenged; this right appeared to be conceded.

The court states, in that case, (at p. 534) :

“Ho question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; io require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.” (Italics mine.)

In Meyer v. Nebraska, supra, the court was concerned with a prohibition against teaching the German language to children under fourteen unless they had completed eighth grade work, and did not touch the question of the power of the state to compel education. It dealt with the right of the teacher to practice his profession, which was regarded as a property right. The question had no relation to the power of the state to compel education of the children and the duty of the parent to see to it that the children received education. The United States Supreme Court, speaking through Mr. Justice McBejmolds (at p. 402), said:

“The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instruction in English, is not questioned. Hor has challenge been made of the state’s power to prescribe a curriculum for institutions which it supports. These matters are not within the present controversy.”

See 24 R. C. L. 558, 559, and 24 R. C. L. 621; State v. Jackson, 71 N. H. 552; 60 L. R. A. 739; Parr v. State, 157 N. W. 555 (at p. 556).

In the case of State v. Williams, 228 N. W. Rep. 470, the court dealt with precisely the same type of legislation that is here considered. There, too, the constitutionality of the act was questioned, and the court squarely put at rest this problem when it said:

“What the state has a right to demand and all that is demanded by the South Dakota law is that normal children of school age attend some school, or that he be instructed by a competent instructor, and that Teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.’ Pierce v. Society of Sisters, supra,. The South Dakota law is well within this doctrine.”

In State v. Hoyt (N. H.), 146 Atl. Rep. 170, in dealing with the constitutional validity of the compulsory attendance statute, in substance like the statute in New Jersey, Chief Justice Peaslee said (at p. 170) :

“The constitutionality of the compulsory school attendance statute * * * has not been considered to be an open question in this state. State v. Jackson, 71 N. H. 552; 53 Atl. Rep. 1021; 60 L. R. A. 739. Tree schooling furnished by the state is not so much a right granted to pupils as a duty imposed upon them for the public good. If they do not voluntarily attend the schools provided for them, they may be compelled to do so.’ Fogg v. Board of Education, 76 N. H. 296, 299; 82 Atl. Rep. 173.” * * * “The defendants’ claim that the federal guaranty of liberty enables them to set at defiance any attempt of the state to prescribe the means for ascertaining the sufficiency of educational facilities furnished and to be furnished as a substitute for the public school, goes far beyond anything that has been decided to be the law.” Hid., 171.

“The importance of the inquiry thus presented is accentuated by the fact that no case of like character seems to be presented in our reports. Manifestly, the touchstone of our jurisprudence in matters dealing with custody and control of infants is the welfare and happiness of the infant. * * * Thus, it has been quite generally held that even the natural right of the father to the custody of his child cannot be treated as an absolute property right, but rather as a trust reposed in the father by the state, as parens patria for the welfare of the infant.” Lippincott v. Lippincott, 97 N. J. Eq. 517; 128 Atl. Rep. 254, 255. See, also, Ex parte Pfahler (Court of Chancery), 102 N. J. Eq. 161; 139 Atl. Rep. 906; Price v. Sainsot (Court of Errors and Appeals), 103 N. J. Eq. 355; 143 Atl. Rep. 319; Hope v. Brown (Court of Chancery), 128 Atl. Rep. 851, 852; Ziezel v. Hutchinson (Court of Errors and Appeals), 91 N. J. Eq. 325; 109 Atl. Rep. 300.

It is a rule of Jaw that a statute will not be declared to be unconstitutional — particularly by a trial court — unless its invalidity is so manifest and clear as to leave no room for reasonable doubt. Sexton v. Newark District Telegraph Co., 84 N. J. L. 85; 86 Atl. Rep. 451; O’Gorman & Young v. Phoenix Assurance Co., 105 N. J. L. 642 (at p. 645) ; 146 Atl. Rep. 370; McCarthy v. Walter, 107 N. J. L. 223; 152 Atl. Rep. 175. Additional authorities might be cited in support of this proposition, but I regard the constitutionality of this law as so well established that other citation is unnecessary. This act not contravening the constitution, is held, therefore, to be a valid exercise of the police powers of the state.

The second point for determination is whether or not the defendants provided instruction for their children equivalent to that provided in the public schools for children of similar grades and attainments.

This necessitates an analysis of the testimony. The proof is that the defendants’ children, William, twelve, and Eobert, eleven, were in the sixth and fifth grades, respectively, in the Washington Street School, West Orange, until April 3d, 1936. Erom that date, these children failed to attend a public or day school, although proper notice was served upon the defendants to return the children to a school. The defendants admit they caused the children’s withdrawal from the Washington School.

Since that time, the defendants claim that they instructed their children in their own home in the subjects taught in the fifth and sixth grades. This instruction, they claim, is equivalent to that provided in the public schools for children of similar grades and attainments. The case turns on this factual situation.

Words mid Phrases defines the word equivalent as follows: "Equivalent means equal in worth or value, force, power, effect, import, and the like.” Citing McLean v. Moran, 99 Pac. Rep. 836, 837; 38 Mont. 398.

Quite definitely, the term refers to the giving of instruction equal in value and effect to that given in a public school. In determining this question, consideration must be given, first, to the matter of the ability of the parents to provide equivalent instruction, and, secondly, to a comparison of the quality, character, and methods of teaching employed by the defendants and that of the West Orange public school system. Mrs. Bongart was graduated from the Eastern District High School, New York City, in 1911. In 1917 she was a special student at Hunter College, evening course. This required three or four evenings a week, which she carried on for only two years. She studied economies, psychology, art, portrait work, charcoal work and painting; she majored in home economics. Mrs. Bongart had no teaching experience. She was married about fifteen years ago, and her chief employment was that of housewife. Mr. Bongart is a graduate of the University of Strassbourg, in the field of electrical and mechanical engineering. He never trained for teaching, but did have employment as a teacher at the New York Aerial School, Newark Technical School and the Newark Junior High School until recently. He taught subjects in mechanical drawing and electrical engineering. The teachers in the elementary grades of the public schools, particularly the fifth and sixth grades in the West Orange school system, must have at least a high school education and three years at an approved normal school in the State of New Jersey.

The normal school curriculum includes a type of training and education intended to qualify students to teach in the elementary class in the subjects of English, history, science, sociology, civics, mathematics, hygiene, geography, art, music and physical education. The major aim is to give the teachers training in techniques of presentation of material to elementary school students. That involves the • proper selection of material, knowledge of children, and the organization of their work, so that every teacher should know the results which must be achieved in terms of knowledge, habits, skills attitudes, and appreciations. Her training should qualify her to develop individuality and the personality of each child under her supervision. One of the major aims of our public school to-day is to teach the way in which the individual must fit into the social group. The evidence establishes that the teachers in the fifth and sixth grades of Washington School possess this training and qualify in these courses.

It is clear, upon comparison, that there is a substantial variance between the training, qualifications, and experience of the defendants and those obtaining in the public school system of West Orange.

3STow, what was the instruction given by the defendants at their home? The children assemble, one in the dining room and the other in the front room, each morning at nine o’clock, and continue until twelve; they resume at one o’clock, and recess at three o’clock in the afternoon. They receive instruction in arithmetic, spelling, history, geography, language and music. In the evening, the father instructs them in science between seven and nine o’clock.

In the study of arithmetic a textbook is used by Stone and Millis, dated 1914. There were no textbooks for spelling, language, music, civics, hygiene and art; while the textbooks used were outmoded and outdated, the latest published in 1921 and the oldest in 1881, and all certainly of questionable value in the instruction of children. Spelling was taught without a book, the mother giving twenty words at random each week, which the children had to learn and place in a notebook. The other subjects were taught by assigning periods of thirty or thirty-five minutes for each. Language was largely taught through the reading of the newspapers, the Literary Digest and the Saturday Evening Post. Poetry was principally taught by the use of an occasional piece of poetry out of: the Sunday Times and the New York Daily News, a tabloid newspaper. Ho poems were memorized. Music was taught by listening to radio concerts. There were no song books or singing exercises. Mechanical drawing and current events were given by the father in the evening. The Newark Evening News and some other periodicals were sources from which current events were drawn for discussion. The Bible was read once in a while. The flag of the country was exhibited in front of the house on patriotic occasions. The mother spoke to them about hygiene and the danger of alcoholic beverages, but no hygiene textbook was used. There were no instructions in observance of patriotic holidays, and no observance of Arbor Day. There was no physical training except that which they got outside in the ordinary course of their play. They had membership in the Y. M. C. A., but failed to attend during September and October. Of this default the parents had no knowledge.

The instruction was interrupted from time to time by the mother’s household duties, occasional shopping tours, and house callers. The defendants had no definite schedule for daily instruction. The evidence indicates that the boys obtained from children in school, periodically, information as to the subjects they were studying in school, and transmitted that information to the mother, who guided herself in instrueing the children, to some extent, by it. They had no marks for their work. There were no daily work papers, tests, or examinations; at least, there were none presented in evidence. In fact, the mother admits she had no standard by which to determine whether the children were absorbing the instruction she was attempting to give. There was no organized supervision over the teaching that the defendants gave; the work of the children, and the results accomplished, were never submitted to any other competent authority for supervision, criticism, or approval.

A summary of the methods of instruction at the Washington School of West Orange will be useful for comparative purposes. The elementary grades are supervised by a specially trained person, who has complete supervision over the courses of study, the textbooks used, and the methods employed by the teachers in transmitting knowledge and the building and developing of the personalities of the children. The school is organized as a miniature community center, a sort of city, where each -child considers himself a citizen, with duties toward the community as is required on the outside. The eduational structure thus developed is in the nature of a group enterprise, where the children work together for the common good. The teacher creates the atmosphere and becomes the guiding influence. A high discipline is maintained by strict attention to the development of habits, skills and attitudes. There is group discussion. The children bring in articles from the outside. They study the biographies of great men, and discuss their achievements. In the fifth and sixth grades, reading, writing, spelling, arithmetic, English, history, geography, civics, hygiene, safety education, music, art and penmanship are taught. The children are taught to use the dictionary. The norm for instruction may be found in several monographs on each subject, provided by the state board of education, and strict adherence is required. In the fifth grade, there are seven textbooks in daily use to cover the subjects. In the sixth grade, there are also seven textbooks, supplemented by thirteen reference and reading books used in connection with their courses, and, in addition, the school library is available to them. Every text, reading, and reference book, twenty-six in number, produced in evidence, is carefully selected in accordance with the regulations of the state board of education and approved by the supervisor of the elementary grades and by the board of education of West Orange. There is a student schedule for the fifth and sixth grades, which provides for instruction from eighty-forty-five a. M. until three p. m. from Monday to Friday, inclusive. The curriculum provides for instruction in the development of abilities, habits and skills. Instruction is also given by way of travel lectures, picture studies, art and music, so that every child has something to talk about. Thus, an audience situation is created for the children, where each child is required to rise and speak to the entire group. This creates self-confidence, and tends to adjust the child to the social group.

One poem a week, and appreciation for the beauties of nature and literature are taught. Beside teaching arithmetic from texts, they instruct in practical matters requiring arithmetic. Geography is taught to meet life situations by creating interest in world travel and training the children to visualize, in their reading, places that they have studied. In music, each child is allowed to develop whatever talent he may possess. In art, each child learns the harmony of color in dress, interior decoration, and every-day life. Every morning the children have a reading from the Bible and recite the Lord’s Prayer. They salute the flag and sing patriotic songs. They observe Arbor Day and all patriotic holidays. A course in safety education and fire prevention is pursued. The month of June is devoted to review. They have physical education four periods each week under a special supervisor. In the civics course, the children are on the lookout for all material in current events. There are three school magazines. Washington School has a monthly newspaper, and all children are eligible to participate in its columns.

The textbooks used by the defendants are nine in number, and are as follows: Old Times in the Colonies, by Charles Carleton Coffin, 1881; an arithmetic book by Stone and Millis, 1914; A Marmol of Child Development, 1927; The Home Kindergarten Manual, 1921 (2 volumes); How to Teach American History, by Wayland, 1914; Rabenort’s Geography, 1921; American History, by Muzzey, 1911; The Teacher-Parent Guide to Character Building, 1926.

Prom this comparison and analysis of the evidence, I find (1) that the education, training, and equipment of the defendants are substantially inadequate, as compared with those of the public school teacher; (2) that the schedule of study and the program of activities of the defendant are irregular, uncertain, and without form, while the public school curriculum is definite and allots a specified time and, in most eases, a special teacher for every subject studied in the fifth and sixth grades; (3) that the instruction given by the defendants is without proper or modern textbooks, lacks supervision by competent authorities of pupil and teacher, lacks a method, standard, or other means of determining the progress or attainments of the child; none of which deficiencies are present in the public school; (4) that the teaching of discipline and health habits lacks plan and a trained method, fixing responsibility on the child for its execution; while, at the school, it is part of a definite program of char-actor education; (5) that the defendants cannot provide for group or class teaching, and lack the ability to develop attitudes and create a social setting so that the children may be trained to deal with their playmates and friends as a part of a social group; (6) that the public school system provides such social groups and lays emphasis on its development, and stresses the adjustment of the child to group life and group activity and a course of living that he will be required to follow and meet as he goes out into the world.

The primary function of education is to get an understanding and interpretation of modern civilization. In the early days of the republic, the idea that an educated citizenship lies at the very foundation of a democratic government has defined our philosophy of national development. For these reasons, the maintenance of an adequate system of public education for youth is a fundamental responsibility of any commonwealth. The public school system of New Jersey embodies the highest ideals of American democracy, and has developed a program which offers unusual opportunities to the children of our state. All citizens have a deep interest in our public schools, and should take pride in the high rank which they occupy in the nation. To deny children instruction seems as unnatural as to withhold their necessary subsistence. Education is brought, as it were, to the very door of all classes of society, and ignorance is quite inexcusable. The failure of the parents to provide the child with the benefits of that opportunity should be a matter of great concern when at issue. The education of youth is of such vast importance and of such singular utility in the journey of life that it obviously carries its own recommendation with it, for on it, in a great measure, depends all that we ever hope to be; every perfection that a generous and well disposed mind would gladly arrive at. It is this that usually renders one man preferable to another. And, as the great end of learning is to teach man to know himself and to fit him for life, so he who knows most is enabled to practice best and to be an example for those who know but little.

The schools, whose function frequently is thought of solely in material terms, have a far more important responsibility. They must aid parents, not simply in the training of their children for the trades and professions, whose criterion of success too often is the amount of money they can make, but, rather, the training and development of men and women of character; men and women whose minds have been trained to the understanding of basic principles and ideals, with the courage and strength of will to live up to and apply them in their daily lives.

I incline to the opinion that education is no longer concerned merely with the acquisition of facts; the instilling of worthy habits, attitudes, appreciations and skills is far more important than mere imparting of subject-matter. A primary objective of education to-day is the development of character and good citizenship. Education must impart to the child the way to live. This brings me to the belief that, in a cosmopolitan area such as we live in, with all the complexities of life, and our reliance upon others to carry out the functions of education, it is almost impossible for a child to be adequately taught in his home. 1 cannot conceive how a child can receive in the home instruction and experiences in group activity and in social outlook in any manner or form comparable to that provided in the public school. To give him less than that is depriving the child of the training and development of the most necessary emotions and instincts of life. I cannot accept the theory asserted by Mr. Bongart that, “I am not interested in method, but in results.” That theory is archaic, mechanical and destructive of the finer instincts of the child. It does seem to me, too, quite unlikely that this type of instruction could produce a child with all the attributes that a person of education, refinement and character should possess.

I have carefully observed the defendants’ children in court, their demeanor, their responses under examination, and their reaction to the proceedings while in court, and there is clear evidence that it is their belief that they are on a “grand holiday,” free from the restraints, discipline and responsibility of other children in school attendance. All of this seems to me to be attributable to the course adopted and pursued by the parents. I have also carefully examined all the evidence and exhibits, and it is my opinion that the defendants have failed to give their children instruction equivalent to that provided in the public schools in the fifth and sixth grades, but, rather, have engaged in a haphazard and hit-or-miss kind of instruction, not calculated to conform with the provisions of the statute, and that both defendants actively and independently participated in causing their children not to go to the public school or a day school. I have been satisfied beyond a reasonable doubt by the evidence of the guilt of both defendants as charged. Both defendants are hereby deemed to be disorderly persons.


author: Morrison, D. C. J.

text:
    Fourth Judicial District Court of Union County.
    ROBERT JOHNSTON, PLAINTIFF, v. EMILY DePUY, DEFENDANT.
    Decided December 31, 1936.
    For the plaintiff, Earl A. Merrill.

    For the defendant, August G. Nash.

   Morrison, D. C. J.

This controversy arises out of a suit for a month’s rent allegedly dne under a lease made August 20th, 1936, between the plaintiff, as lessor, and the defendant, as lessee, renting unto the defendant a one-family dwelling and garage at No. 628 Summit avenue, Westfield, New Jersey, for a term of one year commencing October 1st, 1936, at the annual rental of $780 payable $65 monthly, in advance. The defense to the action is the alteration of the said lease by the plaintiff lessor after the defendant lessee had executed the same.

The salient facts are as follows:

The defendant was in possession of the premises at No. 628 Summit avenue, Westfield, New Jersey, when three duplicate prepared lease forms containing the terms as hereinafter stated (together with other terms hereinafter set forth) were sent to her for signature. She received said forms in the middle of August, 1936. After signing, she returned the lease and copies to the plaintiff for his signature. She received a signed copy by mail, but her testimony is hazy as to the time she received it. On September 6th, 1936, the day before Labor Day, she first noticed that her copy contained alterations and changes therein which did not exist when she had signed the document. On September 8th, 1936, the Tuesday following Labor Day, she called the office of Dawson & John-stone, Incorporated, real estate brokers who were the agents for the plaintiff in this transaction and spoke to Mr. John-stone, telling him that the terms of the lease were changed and that the same were unacceptable to her. Nothing further was done by either the plaintiff or defendant with respect to the lease. On September 30th, 1936, the day before the commencement of the term of the lease at bar, the plaintiff moved from the premises.

I find as a fact that the five ink interlineations appearing on the lease were made by the plaintiff subsequent to the defendant’s signing of the instrument. Whether or not all of the said interlineations are of such a character that would vitiate the instrument need not here be decided. It is sufficient to the determination of this matter to consider the interlineation of the following clause:

“It is further understood and agreed between the parties hereto that the said Landlord will put the heater, range, and plumbing in good order, and Tenant shall keep same in like good order, wear and tear arising from reasonable use excepted.”

The above clause which was printed was entirely crossed out by pen, with the initials of the plaintiff, “E. J.” appearing alongside on the margin.

Does the crossing out of the above clause constitute an alteration that would render the lease unenforceable? An alteration of a written instrument, strictly speaking, is some material change made upon the face of the instrument itself by one of the parties thereto without the consent of the other. Hunt v. Gorenberg, 9 N. J. Mis. R. 463; 155 Atl. Rep. 881.

That a material alteration of a lease, after its execution by one of the parties without the consent of the other party renders it unenforceable against the non-consenting party has been determined in many jurisdictions. Thus a lessor who has altered the lease destroys his right to recover under the executory clauses, or the rents reserved. See 2 Corp. Jur. 1187 (26) and cases cited.

A perusal of the clause in question renders obvious that its elimination from the lease changes the legal import and effect of the instrument. The landlord, under this clause, assumed the duty to put the heater, range and plumbing, in the demised premises in good order. The law of this state imposed no such duty upon him. My conclusion is that this alteration changed the legal effect of the lease and resulted in a different contract between the parties. Wilson et al. v. Windolph et al., 103 N. J. Eq. 375; 143 Atl. Rep. 346; Lippincott et al. v. Windolph et al., 103 N. J. Eq. 275; 143 Atl. Rep. 346.

The plaintiff contends, however, that though there be an alteration this defense is unavailing since the defendant ratified the altered instrument. No express ratification is relied upon. It is urged that ratification should be inferred from the following acts on the part of the defendant, to wit: On September 10th and September 24th, 1936, the following advertisement was inserted in the “Westfield Leader,” a newspaper published and circulated in Westfield, New Jersey:

“Houses For Rent
Five bedrooms, oil heat, two blocks to station, garage; available Oct. 1st, 628 Summit Ave. Telephone Westfield 2-3237.”

Plaintiff argues that the insertions of this ad indicated an acceptance or ratification of the lease in its altered form; that the offer to rent on October 1st implies that the defendant was in a position to rent the same on that date and that right could only have been attained by regarding the altered lease as binding upon her. I do not agree with this contention. While an altered instrument may be ratified after the alteration has been made, the acts from which ratification may be inferred should show affirmatively an intention to recognize the validity of the instrument. The acts or conduct must be such as are inconsistent with any other hjrpothesis than that he approved and intended to adopt what had been done without his consent. 2 Corp. Jur. 492 (112), 1256 (147-156).

Measured by this guide the acts of defendant in advertising the premises for rent fall far short of ratifying the lease sub judice. Other hypotheses than ratification are equally compatible. The defendant may have desired to ascertain whether she could sublet the premises before renewing negotiations on the terms of the lease. If success mot her overtures, the making of an entirely new lease instead of adopting the altered lease, is not beyond contemplation. There is no evidence making either conclusion more probable. Then again, her acts may be construed as a desire to avoid embarrassment and litigation over the possible binding effect of the altered lease — the procuring of a new tenant by the defendant at the same or an increased rental would have resulted in no damage to the plaintiff and would have forstalled the present suit for rent. Other hypotheses are equally plausible. My conclusion is that the insertion of the ads by the defendant were not such acts from which ratification of the altered lease can be affirmatively inferred.

Lastly, it is urged that plaintiff received no notice or repudiation of the altered lease by the defendant until suit was brought. It is claimed that notice to Mr. Johnstone of repudiation of the altered lease was not notice to the plaintiff. Mr. Johnstone, as a member of the firm of Dawson & John-stone, Incorporated, was unquestionably authorized to lease the property by the plaintiff and prepared the original lease forms on his firm’s blanks. To admit that he had authority to lease but to deny that he had authority to receive communications concerning the acceptability of the terms of the lease to the lessee is paradoxical, to say tho least. If he had the power to lease, a foriiori, he had the power to speak and be spoken to concerning the acceptance of the said lease. Without deciding whether or not a formal repudiation of the altered lease was necessary, I find that the defendant did repudiate the lease within a reasonable time to the plaintiff through his agent, Dawson & Johnstone, by Mr. Johnstone.

Let judgment be entered for the defendant.


author: Meaney, C. P. J.

text:
    Hudson County Court of Common Pleas.
    SAMUEL SCHOENER, PETITIONER, v. WATSON ELEVATOR COMPANY, RESPONDENT.
    Decided December 1, 1936.
    For the petitioner, Andrew O. Wittreich.

    For the respondent, Perkins, Drewen & Nugent.

   Meaney, C. P. J.

This matter is before me on appeal from a ruling of the workmen’s compensation bureau dismissing the claim petition filed therein by the appellant, hereinafter referred to as petitioner. No testimony was taken below, the only question presented being one of law to determine whether the claim was barred by the statute of limitations contained in the act. The deputy commissioner, after hearing argument, determined that the claim was barred.

That Samuel Schoener, the petitioner, was employed by the Watson Elevator Company, the respondent below and here, and that he sustained an injury arising out of and in the course of such employment appears to be uncontroverted so far as the present situation is concerned, the petition so alleging.

He sustained his injury, according to the petition, on April 18th, 1924, but did not file his petition until December 17th, 1934. It appears also that respondent failed to file the reports, commonly known as Forms 1, 2 and 3, with the bureau, until some time in February of 1934.

Petitioner claims that because oí his employer’s failure to file the prescribed forms, the latter is deprived of the benefit of the statute of limitations. Pamph. L. 1924, ch. 187, p. 403, § 6; Cum. Supp. Comp. Slat. 1911-1924, p. 3906, § **236-99. Respondent claims that by virtue of two certain enactments of the legislature (chapter 278, Pamph. L. 1931, and chapter 280, Pamph. L. 1931) petitioner is barred.

The pertinent section of the act of 1924 is as follows:

“Any employer or insurance carrier failing to make the report as required by this act, shall in such instance be deprived of the defense provided in paragraph 23 (h) of the Workmen’s Compensation act, approved April 4th, 1911, as chapter 95, as amended by chapter 93, laws of 1919 * * *.”

Section 23 (h) of the original act, as supplemented in 1918 and as amended in 1919, Cum. Supp. Comp. Stat. 1911-1924, p. 3886, § **236-32, sec. 23 (h), fixed a limitation period of one year for filing a claim petition.

Chapter 278 of the laws of 1931 amended the act of 1924 just quoted (N. J. Stat. Annual, § **236-99), by providing for a fine for failure to file the necessary reports. It makes no reference to the fact that the employer may be barred from pleading the statute of limitations for failure to file the necessary reports and may therefore be deemed to repeal that section.

Chapter 280 of the laws of 1931 (N. J. Stat. Annual, § **236-46), then fixes a two-year period of limitation for filing a claim petition, thereby amending the act of 1918 before referred to.

Respondent contends that petitioner is barred by this last enactment of the legislature, particularly in view of this fact that chapter 278, supra, had repealed the act of 1924 upon which petitioner based his action, and relies upon Clay v. Firemen’s Insurance Co. (Essex Common Pleas), 13 N. J. Mis. 11. 63; 177 Atl. Rep. 94, as authority for its position. That case, as reported, does not set forth the facts upon which the delermination was reached, and I do not believe affects the case at bar.

In Jackson v. Florence Thread Co., 12 N. J. Mis. R. 774; 175 Atl. Rep. 96; affirmed, by the Court of Errors and. Appeals in 115 N. J. L. 175; 178 Atl. Rep. 729, cited by petitioner, the accident occurred in 19.28, but the petition was not filed until 1932. What is to be gathered from the opinion in that ease, is that, as the law existed prior to 1931, failure of the employer to file the required reports created in the injured employe a vested right to bring his action at any time thereafter, and that such vested right was (as stated in the Supreme Court opinion) “not in any way affected by the repeal of the act of 1924 by the act of 1931;” or (as stated in the Court of Errors and Appeals’ opinion) “the act of 1931 is ineffective to cut off the right of action existing in petitioner at the time of its passage.”

See, also, Freeman v. Railway Express Agency, 14 N. J. Mis. R. 316; 184 Atl. Rep. 631.

In the' case at bar, the accident occurred, as stated above, on April 18th, 1924. The act of 1924 was approved March 11th, 1924, and by force of paragraph 8 thereof, it took effect immediately upon approval. The act was, therefore, in force at the time of the injury and there accrued to the petitioner, immediately upon the happening of the accident and the failure of respondent to file the reports, whatever benefits he was entitled to under that act. By the decision in the Jackson and Freeman cases petitioner became possessed of a cause of action which the act of 1931 was ineffective to disturb.

Under the circumstances, the ruling of the bureau must be reversed, the petition reinstated, and the cause remanded for hearing.