author: Leyden, C. P. «T.

text:
    Bergen County Court of Common Pleas.
    JOHN RAIMO, PETITIONER-APPELLEE, v. FORD MOTOR COMPANY, RESPONDENT-APPELLANT.
    Decided June 16, 1936.
    For the petitioner-appellee, Patrick V. Mercolina and George T. Tickers.

    For the respondent-appellant, McCarter & English.

   Leyden, C. P. «T.

This is an appeal from the determination of the bureau awarding temporary disability from March 6th to March 23d, 1935, and permanent disability for a fifty-five per cent, loss of the right eye, or fifty-five weeks at $16.67 per week. The question presented is whether the detachment of the retina of petitioner’s right eye is the result of an accident arising out of and in the course of his employment, or the natural progress of a disease with which petitioner is afflicted.

Petitioner was employed in the body assembly section of the plant of the respondent where’he was engaged in joining the wooden support for the dome light to the center roof bows, preparatory to that unit being placed in position by a succeeding workman on the construction line.

When the petitioner was first employed in November, 1933, his physical examination by the respondent’s doctor disclosed an ankylosed condition of the right knee, the result of operations performed in 1912 and 1925 in an endeavor to correct the tubercular condition thereof. A history of tuberculosis and the operations was given by the petitioner himself. The result of the test for acuity of vision was 20/20 for both eyes, which is considered normal. He worked steadily until respondent closed its plant in August, 1934. In the December following the plant reopened and petitioner was again physically examined upon his re-employment. This examination confirmed the tuberculosis and ankylosis of the right knee. At this time the eye test showed that while the vision of petitioner’s left eye was 20/20, the vision of his right eye was 20/100, or a forty-five per cent. loss. A forty-five per cent, impairment is considered industrial blindness and therefore petitioner was instructed by the plant physician to' obtain eyeglasses.

A roof bow is a piece of wood one inch by one «inch by three feet long weighing from one-half to one pound. Petitioner testified that at one-thirty 3?. m. on February 15th, 1935, while he was- reaching above his head for a bundle of twenty-five bows from a supply rack, one of them slipped from the bundle and its end struck him in the right eye. Although he says he suffered intense pain, he did not seek first aid, but continued to work for the balance of the day. The first aid department is located at the employe’s entrance to the plant and is open twenty-four hours a day. The plant was closed on the following two days, Saturday and Sunday. He reported for work on Monday and about two p. m. made his first visit to the medical department, complaining that his eye had been injured on the Friday previous. He was examined by the plant doctor who found no objective external evidence of trauma, tiut since he subjectively complained of an impairment of vision, he was sent on February 19th to Dr. Alexander L. Smith, an eye specialist of Jersey City. Dr. Smith found a perfectly normal looking eye externally, and no evidence of a traumatic injury either externally or internally to any portion of the eye. However, he did discover that the retina was detached from its fellow, the choroid, and was studded with small unconnected grayish spots which he determined to be tubercles. His vision in that eye, four days after the alleged accident, on Dr. Smith’s test for acuitji', was 20/100.

Petitioner continued to work for the respondent until March 6th, 1935, when he quit at the suggestion of one of his physicians. Thereafter he was examined by an eye specialist of his own choice on two occasions. On the first, March 16th, there was some vision and the detachment of the retina. On the second, December 3d and 4th, the vision was reduced to the state wherein petitioner could only discern the movement of a hand at a distance of six inches from the eye.

An examination of all of the evidence leads to the conclusion that the petitioner’s impairment of vision is not due to an accident arising out of and in the course of his employment, but is the result of the progress of the disease with which the petitioner is afflicted, tuberculosis. Petitioner’s story of the happening of the accident and his subsequent conduct are irreconcilable, unreasonable and improbable. It is difficult to believe that if he were struck in the eye, a most delicate organ, with sufficient force to detach the retina, that he was able to continue work, although suffering intense pain; and it is incredible that he did not seek the services of a physican to alleviate that pain until three days after the alleged happening. He passed the first aid department twice daily during his employment and knew its location. Likewise such an accident would have left some evidence of its happening on the eyeball itself or its surrounding tissue in the form of a contusion, laceration, or external or internal inflammation or hemorrhage, even after a period of three or four days. There was none, although he insists the severe pain persisted. It might be here pointed out that detachment of the retina due to trauma, is very rare.

Petitioner produced medical testimony in an effort to support his claim, but this evidence on the question of the causal connection between the alleged accident and the injury leaves us in the realm of speculation and conjecture. Petitioner’s eye specialist would go no further than to say that if a stick of wood fell and struck petitioner in the eye, that that fact could le a causative agent for the condition which he found. This is not enough to support the inference of liability. If he is to succeed, petitoner must show more. Jacques Wolfe & Co. v. Piplin, 14 N. J. Mis. R. 146; 183 Atl. Rep. 187.

Here the petitioner has a history of tuberculosis. While it is true that tuberculosis in the human being occurs primarily in only one of two locations, the pulmonary tract or the digestive tract, it may appear in any part of the body as a secondary condition after remaining quiescent for many years in the primary focus. In this case petitioner’s tubercular condition was progressive. Arbitrarily selecting the date of the physical examination at the plant of the respondent in November, 1933, as the beginning, and the examination by his own specialist in December, 1935, as the end of a period, it is found that the tubercular condition of his right eye had progressed from normal to a forty-five per cent, loss in December, 1934, and an almost total loss in December, 1935. In this connection it will be noted that upon Dr. Smith’s examination on February 19th, four days after the alleged accident, his vision was 20/100, with no increase in disability. It may reasonably be inferred from the evidence, therefore, that the loss of vision was the result of the natural progress of his disease, namely tubercular retinitis, and the blow from the stick, if such be the fact, had no causal connection with the detachment of the retina.

The medical proof submitted in behalf of the respondent is clear and convincing upon this point. It demonstrates that even if the alleged accident did occur as related by the petitioner, it did not cause or aggravate petitioner’s then present condition. As was aptly pointed out by Mr. Justice Bodine, “compensation does not go for injuries caused by the natural progress of a disease from which a workman is suffering.” Hahne & Co. v. Guenther, 114 N. J. L. 571; 178 Atl. Rep. 58.

The loss of the sight of an eye is a most serious affliction, but examination and re-examination of the case leaves the inescapable conviction that the petitioner has not proved his claim by a fair preponderance of the evidence.

I will sign a determination dismissing the petition.


source: Caselaw Access Project

author: John J. Stahl, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    COLLEGRO SOLAZCO, PETITIONER, v. CHARLES CAROL, RESPONDENT.
    Decided May 18, 1936.
    For the petitioner, Victor Greenberg.

    For the respondent, Edwards, Smith & Dawson (by George Echelman).

   This matter comes before me on a motion made by the respondent to dismiss the petition filed on January 2d, 1936, upon the ground that the workmen’s compensation bureau is without jurisdiction to entertain the same because the previous award therein was a final adjudication on the merits and a bar to any further right of recovery under the act.

In addition to oral argument which was presented at the hearing on the motion on February 7th, 1936, counsel have submitted briefs which have been carefully examined by me.

Briefly stated the material facts are essentially as follows: Petitioner met with an accident on April 7th, 1930, arising out of and in the course of his employment, and consisting of a fall from an upper floor to the lower one while he was engaged as a hod carrier, landing upon his back. As a result of the accident he suffered a fracture of the transverse process of the second lumbar vertabra, an injury involving a sprained or chipped fracture of the fifth lumbar vertabra and certain muscular injuries in and about the lumbar region of the back. At an informal hearing held before acting Beferee Prank Mobius, at Paterson, New Jersey, on Pebruary 20th, 1931, the parties entered into a voluntary agreement by the terms of which the respondent paid to the petitioner forty-five and five-sevenths weeks compensation at the rate of $20 per week for temporary disability, and seventy-five weeks compensation at the same rate for partial permanent disability'-, based on fifteen per cent, of the total. On November 2d, 1932, a formal petition was filed, to which an answer was duly filed by the respondent. On May 1st, 1933, after several adjournments, the matter, in due and regular course, came on for hearing before me, John J. Stahl, a deputy commissioner of compensation, at the chambers of the workmen’s compensation bureau, Paterson, New Jersey, in the presence of the parties, their counsel, witnesses and medical experts. When the ease was called, respondent’s attorney, Charles M. James, Esq., advised that a compromise had been reached by the parties, and addressed th'e court as follows: (quoting from pages 3, 4, 5, of the stenographic transcript of the testimony) :

“Now, the present issue before this court is purely and simply one as to the extent of disabilitj', and on that there is a very sharp controversy as to whether the petitioner has a disability as the result of this accident, which is greater than fifteen per cent, of total permanent disability which was paid under the previous award, or whether his disability exceeds the fifteen per cent., which, as I say, has heretofore been awarded him.

“On behalf of the respondent, I say that we have had the petitioner examined and treated at various times by a great number of doctors, many of whom believe that the petitioner has no greater disability than fifteen per cent, of total, and this calculation is based upon the fact that they can find nothing in the X-rays as the result of their observations of the petitioner’s condition, which justifies and merits a greater disability than fifteen per cent, of total. I have also had Dr. Arlitz examine the petitioner to-day, and T have gotten a report from him based on an analysis of all the doctors’ examinations.

“On the other hand, on behalf of the petitioner, it is claimed that the petitioner is at present disabled permanently to the extent of one hundred per cent., and that this condition will, of course, remain so for the rest of the petitioner’s life, and, as I understand it, the petitioner is ready to substantiate this claim, should this case go to trial.

“As the result of conferences and negotiations which have taken place, as between the counsel for the petitioner and myself on behalf of the respondent, and between the witnesses and the doctors that I have, and the witnesses and the medical experts on behalf of the petitioner, we have arrived at a final closeout of this case, based upon a compromise on the merits of this case of the various contentions, and if approved by the court and if effected is to be a final and complete closeout, not subject to reopening in the future for any reason whatsoever, whether the petitioner’s disability increases, if such a thing is possible, and the basis of this final closeout is as follows: The petitioner to be awarded for a permanent disability * * * Torty-one and one-quarter per cent., which calculated is equal to two hundred and six and one-quarter weeks, leaving one hundred and thirty-one and one-quarter weeks at twenty dollars per week, inasmuch as seventy-five weeks have already been paid, so that by reason of this award there is now owing to the petitioner and will become due to the petitioner one hundred and thirty-one and one-quarter weeks at $20 which calculated is equal to $2,625. The petitioner’s attorneys are to be awarded a counsel fee * *

After explaining in detail the amount of counsel fee agreed upon, medical expenses, including X-ray examinations and costs, Mr. James continues (quoting from page 5 of the stenographic transcript) :

“This is a lump sum payment and part of the consideration for that is the fact that this is a final and conclusive settlement on the merits and not subject for reopening for any reason whatsoever in the future.”

Medical testimony was adduced by both parties—Dr. William J. Arlitz, testifying for the respondent, and Dr. Morris Joseph, testifying for the petitioner. Although their testimony disclosed the usual contrariety of medical viewpoint on the question of the nature and extent of disability resulting from the accident, they both indicated that the basis of settlement, namely, forty-one and one-quarter per cent, of total disability, as a complete and final closeout, was, in their opinions, a fair and just disposition of the case, and that the award should be made in one lump sum payment in order to dispel from the petitioner’s mind any further thought of litigation. The petitioner, thereupon, took the stand, was sworn and examined in open court, indicating his entire satisfaction with the terms of the compromise and closeout settlement. The matter was then submitted to me, as deputy commissioner; the compromise settlement was approved and an award accordingly entered thereon. On July 12th, 1933, payment of the award of one hundred and thirty-one and one-quarter weeks compensation at the rate of $20 per week was made to the petitioner by the respondent in one lump sum. Thereafter on January 2d, 1936, a supplemental petition was filed by the petitioner seeking a further recovery of compensation on the ground of increased incapacity since the entry of the previous award, pursuant to the provisions of section 21(f) of the Workmen’s Compensation act, as amended by Pamph. L. 1931, ch. 279, p. 704; N. J. Stat. Annual 1931, p. 533, § **236-241

The determinative factor, decisive of the issues raised by the motion, is as to whether the provisions of section 21(f) are applicable to the ease sub judice. This section of the statute, as amended by chapter 279, Pamph L. 1931, reads as follows:

“An agreement for compensation may be modified at any time by a subsequent agreement, or a formal award reviewed within two years from the date when the injured person last received a payment, upon the application of either party on the ground that the incapacity of the injured employe has subsequently increased, or reviewed at any time on the ground that the disability has diminished. In such case the provisions of paragraph seventeen with reference to medical examination shall apply.”

The vital question for solution is one of legal interpretation, presenting one of those highly controversial and unsettled situations wherein so much doubt has been cast upon the law governing the subject of “review of a formal award” where the subject-matter sought to be reviewed is a compromise settlement between the parties stated to be a “complete and final close-out” of the matter and thereafter approved by the deputy commissioner and entered as a formal award.

The previous award which the present petition seeks to review on the ground of subsequent increased incapacity was rendered on May 1st, 1933—the satisfaction piece, captioned “Finding of Facts, Determination and Award,” bearing the date of May 10th, 1933, obviously long after the passage of the 1931 amendment. Payment of the award, consisting of one hundred and thirty-one and one-quarter weeks of compensation at the rate of $20 per week, was made on July 12th, 1933, in one lump sum. If there had been no commutation, the weekly payments would have spread over the period from July 30th, 1932, to February 2d, 1935. Such being the facts, it would appear that section 21(f), as amended, is applicable, which provides, inter alia, that “a formal award may be reviewed within two years from the date when the injured person last received a payment.” McLaughlin v. Hahne & Co., 12 N. J. Mis. R. 6; 169 Atl. Rep. 542, and Anderson v. Public Service Electric and Gas Co., 114 N. J. L. 515; 177 Atl. Rep. 865, are controlling. The McLaughlin case stands for the proposition that the test for determining whether the 1931 amendment applies is the date of the award and not. the date of the accident, and that if the award were rendered subsequent to the taking effect of the amendment, even though the accident occurred prior thereto, the amended section applies and permits the review. The Anderson case, in construing the legal effect of a lump sum payment of an award, holds that “where a commutation is made upon the recommendation of the department of labor for the best interests of the injured workman, the statute does not apply until the statutory period after the last date compensation would be paid if no commutation was made.” Viewed in the light of these two cases, the present petition seeking the review was admittedly filed within two years from the date of the last payment of the previous award. Furthermore, upon a careful reading of the McLaughlin case, it would appear that the Supreme Court in its opinion based its decision, which was subsequently affirmed by the Court of Errors and Appeals, upon the theory which places the present case squarely within the purview of the 1931 amendment, the reason therefor advanced being that the legislature, by such enactment, intended to encompass the right to review all awards rendered from and after the date of said amendment, without regards to the nature and form of the award, whether the result of a litigated hearing or based upon a compromise settlement between the parties and entered by the bureau as a formal award.

The respondent, in opposing petitioner’s right of review, contends with vigor that section 21(f), supra, as amended, does not permit such review where the award, as here, is the result of a compromise settlement between the parties, based on a complete and final close-out on the merits, and paid in a lump sum. In support of its contention, respondent relies upon the case of Boyko v. Federated Metals Corp., 11 N. J. Mis. R. 807; 168 Atl. Rep. 672; affirmed, 112 N. J. L. 87; 170 Atl. Rep. 56; also two earlier cases decided by the workmen’s compensation bureau, Williams v. Yellow Taxicab Co., 7 N. J. Mis. R. 205, and Mandy v. Federal Shipbuilding Co., 10 N. J. Mis. R. 944; 161 Atl. Rep. 837, as well as a list of cases decided subsequent to the Boyko case, namely Olash v. General Leather Co., 12 N. J. Mis. R. 165; 170 Atl. Rep. 241; Granata v. D. W. McGee Construction Co., 114 N. J. L. 89; 176 Atl. Rep. 104, and Bronstein v. Hoffman, 13 N. J. Mis. R. 860; 181 Atl. Rep. 705. In these cases, which involved matters of compromise, approved by the burean and entered as full and final awards, petitions subsequently filed seeking to review the previous awards on the ground of increased incapacity were denied. The case of Herbert v. Newark Hardware Co., 107 N. J. L. 24; 151 Atl. Rep. 502, is likewise relied upon by the respondent. However, upon a careful analysis of these decisions, it appears that the facts therein are readily distinguishable from those of the present case.

Under the McLaughlin case, the present petition filed herein seeking a review is maintainable notwithstanding the Herbert, Boyko and Olash cases, since the original award was entered after section 21(f) (Cum. Bupp. Comp. Stat. 1911-1924, p. 3882, § **236-24 (f) was amended by chapter 279, Pamph. L. 1931, p. 704, extending the time for reviewing a formal award to two years from the date when the employe last received a payment thereon.

In the Williams case, the Mandy case, the Olash case, the Granata case, and Bronstein case and the Herbert case, the awards therein were made prior to the 1931 amendment of section 21(f). The effect of the amendment is to make all formal awards reviewable for increased incapacity whether they are based upon compromise settlements or upon litigated hearings, provided petitions for increased disability are filed within two jrears from the date of the last payment.

Section 21(f), as amended, supra, specifically provides for a review of an award for increased disability where the supplemental petition for the same is filed within two years from the date of the last payment of compensation on the award. The statute does not specify that the' award contemplated therein must be one resulting from a fully litigated case as in the Herbert case, or an award based upon a compromise settlement where there was a dispute as to liability as in the Boyko case. It speaks of an award without limitation as to the type of such award. It clearly follows that the effect of the amendment of 21(f), chapter 279, Pamph. L. 1931, p. 704, is to abrogate the ruling under the Herbert case, holding “that the payment of the previous judgment was not such a ‘last payment of compensation’ in the intendment of the statute, as would support an application to ‘review the award’ within a year after such payment of the judgment.” Since the Herbert case furnished the real basis for the decision in the Boyko case, as well as the line of cases following the Boyko ruling, it may not be amiss to briefly analyse the facts therein. In the Herbert case the so-called petition for increased disability was not based upon an increase in the disability already compensated for, but was based upon a new and distinct condition, which meant that the so-called petition to review was .in reality an original petition for an entirely new case, and since it was not filed within one year from the date of the accident or within one year from any failure .of the employer to make payment on the agreement (since there had been no agreement), it was necessary to determine whether it was governed by third situation in section 23(h) (Cum. Supp. Comp. Stat. 1911-1924, p. 3886, § **236-32, sub. 23(h)—where part of the compensation had been paid by the employer. It was likewise pointed out by the court that this third situation would not apply, since no part of section 23(h) was directed to a case of a contested claim litigated and reduced to judgment, and the judgment paid and satisfied. -It was therefore quite apparent that the payment of the judgment of compensation for the disability awarded upon the first petition could not possibly be such a payment as was contemplated under section 23(h), supra. Succintly it was held that the second petition had to be filed within one year from the date of the accident, if a review of the previous judgment on the first petition were to be sought. Hence the Herbert case became a precedent; for it became the settled practice thereafter that no review would lie where the award sought to be reviewed was the result of a litigated hearing unless the petition were filed within one year from the date of the accident and not one year from the date of the award. The Herbert case remained the law on this subject until the passage of the amendment to section 21(f), chapter 279, page 704, laws of 1931. N. J. Stat. Annual 1931, p. 533, § **236-24(f).

If the Herbert case were still the law, the case of McLaughlin v. Hahne & Co., supra, would not have been decided upon the reasons given therein; for the McLaughlin case was a litigated case just as the Herbert case was, and under the Herbert case the petition to review for increased disability would have had to be filed within one year (the time limit in effect at the time when the Herbert case was decided) from the date of the accident, or within two years (the time limit in effect at the time when the McLaughlin case was decided) from the date of the accident. The accident in the McLaughlin case occurred on September 13th, 1930; the original award was entered on May 13th, 1932; and the petition for review on the ground of increased incapacity was filed on June 13th, 1933. If the ruling in the Herbert case were still controlling, then the petition for review in the McLaughlin case would have to have been filed within two years from the date of the accident. Since the Supreme Court, as well as the Court of Errors and Appeals on affirmance, recognized the validity of the petition for review filed in the McLaughlin case on June 13th, 1933, it thereby clearly overruled the ruling in the Herbert case, because the petition in the McLaughlin case seeking a review of the previous award on the ground of increased incapacity was not filed until nearly three years after the date of the accident.

Section 21(f) (N. J. Stat. Annual 1931, p. 533, § **236-24(f) as amended does not exclude from its operation review of compromise settlements between the parties stated to be “complete and final close-outs” and thereafter approved by the deputy commissioner and entered as a formal award. If the legislature did not intend to permit an award based on a compromise as “a full, complete and final close-out” to be reopened and reviewed for increase of incapacity within two years from the date of the last payment on the award, it would have so stated by the use of appropriate language. On the contrary, it makes no distinction between an award based oil a compromised settlement or an award based upon a litigated hearing. The wording of the statute as it appeared at the time when the Herbert case was decided is radically changed by the wording of the amendment of section 21(f), supra.

In all the cases relied upon by the respondent, with the exception of the Boyko case, which cases involved matters of compromise, approved by the bureau and entered as “full- and final close-outs,” and in which petitions subsequently filed seeking to review the previous awards on the ground of increased incapacity were denied, the original awards were made prior to the 1931 amendment of section 21(f). Cum. Supp. Comp. Stat. 1911-1924, p. 3882, § **236-24, sub 21(f). In the case of Boyko v. Federated Metals Co., 112 N. J. L. 87; 168 Atl. Rep. 672, the award was entered on August 24th, 1931, i. e., after the enactment of the amendment to 21(f) on April 27th, 1931. There is an inconsistency between the Boyko case and the McLaughlin case, because the petition seeking a review in the Boyko case was denied, although filed within two years from the date of the last payment of compensation on the previous award. But the Boyko case was decided upon the authority of the Herbert case, the ruling of which was abrogated and superseded by the 1931 amendment of section 21(f), then in force. Nowhere in the opinion of the Supreme Court in the Boyko case is any reference made to the amendment of section 21(f); neither do counsel in their briefs raise the question of the applicability of such amendment.

In Ecken v. O’Brien, 115 N. J. L. 33; 178 Atl. Rep. 373, subsequently affirmed by the Court of Errors and Appeals, there was no formal award for judgment, but Mr. Justice Heher writing the opinion for the Supreme Court said that even if there had been award and final judgment, a petition for increased incapacity might be filed within two years from the date of last payment. The court there said:

“And if the order has the elements of a final award and judgment, it is reviewable under paragraph 21(f) of the act upon the ground of subsequently increased disability. Since this proceeding was instituted within two years from the date when the disabled employe last received a payment (Pamph. L. 1931, supra), it follows that an affirmance is required.”

Bronstein v. Hoffman, 13 N. J. Mis. R. 860; 181 Atl. Rep. 705, referred to by the respondent, has no bearing at all upon the present issue. In that case the original compromise award was entered on October 18th, 1929, prior to the amendment of section 21(f) in April, 1931. Furthermore the subject-matter involved a death claim, settled by way of compromise for an amount considerably less than the statutory amount because of a jurisdictional question as to whether the decedent was at the time of the alleged accident an employe within the intendment of the act or a corporate official. Ho review could possibly lie, because the case was a death case and there could be no increase of incapacity as contemplated by section 21(f) as amended. The court very properly dismissed the subsequent petition seeking a review.

Likewise in the case of Granata v. D. W. McGee Construction Co., supra, the syllabus reads as follows:

“1. Prior to the enactment of chapter 279, laws of 1931 (Pamph. L., p. 704), amending paragraph 21(f) of the Workmen’s Compensation act, it was well settled that where there was a formal adjudication on the merits, and payment of the judgment, a petition for increased disability would not lie, and that statute did not authorize, in such a situation, the reopening of the judgment and a readjudication on the theory of increased disability.

“2. The judgment in the instant case having been entered prior to the enactment of chapter 279 of the laws of 1931, the provision of that statute, that a formal award in a compensation case may be reviewed within two years, is not applicable.”

The judgment and award in the Granata case was entered prior to the amendment of section 21 (f). But the reasoning adopted in the case applies squarely to the instant case inasmuch as the award in the instant case was entered subsequent to April 27th, 1931, the effective date of the amendment to section 21 (f). The decision in the Herbert case, which was the basis for the decision in the Boyko case, was based upon the statute in force prior to the amendment to section 21 (f) passed in 1931.

It necessarily follows, therefore, that the case at bar falls within the ruling of McLaughlin case, and that the effect of section 21(f) as amended is to overrule the Herbert case, and that the decision in the Boyko case being inconsistent with the McLaughlin case, the 'latter case which is the latest pronouncement on the subject is controlling.

By the enactment of section. 21 (f) providing for a review for increased incapacity, it must be assumed that the legislature, in its wisdom, recognized that certain types of injuries grow progressively worse with time. The 1931 amendment enlarged the scope of the review by extending its operation to all formal awards where the application is made within two years from the date when the injured person last received a payment. Where subsequent increased incapacity takes place, section 21(f), as amended, permits a review, even though the previous compromise settlement, designated as “a full and final closeout,” has been duly approved by a deputy commissioner and entered as a final award. In the instant case the only question in controversy was the extent of the permanent disability, and because of the wide differences of opinion between the various doctors as to the percentage of functional impairment resulting from the accident, a compromise settlement based on forty-one and one-quarter per cent, of permanent and total disability was agreed upon. Such compromise was binding upon the petitioner only so long as the degree of his disability remained static and unchanged, notwithstanding an agreement between the parties that the ease was not to be subject to a reopening. Section 21 (f) is an integral part of the Workmen’s Compensation act, and any attempt by the parties to waive its operation and provisions would be invalid and against public policy. Likewise the approval by a deputy commissioner of such a compromise precluding the right to review would be ineffectual and clearly in excess of his statutory power.

For these reasons I hold that the petitioner is entitled to proceed with his review upon the supplemental petition filed herein. The motion of the respondent is accordingly denied.

John J. Stahl, Deputy Commissioner.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JULIA PLASKON SIBERRY, PETITIONER, v. NATIONAL SULPHUR COMPANY, RESPONDENT.
    Decided June 12, 1936.
    For the petitioner, John G. Grimshaw.

    For the respondent, Ooult, Satz •& Tomlinson (by John J. Francis).

   S|c í¡í

Case sub judice came before the workmen’s compensation bureau by order of Honorable Judge Thomas Brown of the Hudson County Court of Common Pleas, who reversed finding of said bureau in connection with new petition filed March 23d, 1935, to which petition an answer was filed May 14th, 1935.

In ruling upon motion for dismissal of said petition upon grounds of statute of limitation I held that owing to action of this bureau originally when petition was dismissed as well as subsequent action of Court of Errors and Appeals the filing of Forms 1, 2 and 3 were not mandatory.

The Honorable Judge Brown, in his judgment of reversal and remand, holds that “petitioner’s claim has never been adjudicated upon the merits. Petitioner is entitled to have her day in court. * * * the matter is remanded to the bureau for a hearing on the merits.”

In view of this order in my opinion I can only consider the testimony as presented. The legal question involved having been disposed of by a superior court cannot again be considered by me.

I have carefully reviewed the testimony upon which Deputy Commissioner Corbin predicated his award of October 25th, 1932. I have further considered the additional testimony produced before me at the various hearings held. In some instances it was stipulated as to witnesses not produced that their testimony would be the same as that contained in the state of case furnished me. Witnesses were produced who testified as to the custom of employes working for respondent and procedure followed in obtaining borax mud.

I must admit that there is some discrepancy in the testimony of one Owen O’Eeill as to his testimony before Deputy Commissioner Corbin and that contained in the depositions taken in Few York before a notary public.

Deputy Commissioner Corbin held after reviewing the testimony that petitioner had sustained the burden of making out a prima facie case and that decedent’s death was the result of an accident arising out of and in the course of his employment.

Petitioner’s case as presented before me was even stronger than when presented before Deputy Commissioner Corbin and my findings must reasonably be the same, viz.: That

petitioner has sustained the burden of proving that deceased died as the result of an accident arising out of and in the course of his employment.

Hs H* ❖ Hí ❖ ❖ H*

John C. Wegner, Referee.


author: Egan, V. C.

text:
    Myron L. Levy, trustee in bankruptcy of Michael Latorre and Annie Latorre, bankrupts, complainants, v. Anielo D’Alesandro et al., defendants.
    [Decided June 25th, 1936.]

      Mr. Michael G. Alenick, for the complainant.

      Mr. Frederick A. Pope, for the defendant Anielo D’Alesandro.

      Messrs. Ghiaravalli ■& Fioravanti, for the defendants Michael and Annie Latorre.
   Egan, V. C.

On September 28th, 1934, the defendants Michael and Annie Latorre, husband and wife, each filed a voluntary petition in bankruptcy. The complainant was appointed trustee in those proceedings. He filed the bill herein which seeks to set aside, as fraudulent, certain conveyances made by the defendant Annie Latorre to her father, Anielo D’Alesandro.

The defendants Michael and Annie Latorre, on July 9th, 1924, purchased the premises known as Ho. 97 West Eiftysecond street, Bayonne, New Jersey, subject to a mortgage of $5,500 held by Sophie F. Breithaupt which she assigned to Eugene E. A. Dombrowsky and Jeanette J. Dombrowsky, his wife. Five months later, or on December 11th, 1924, the Latorres gave a second, or subsequent mortgage on the same property for $2,750 to Umberto Taino. On July 19th, 1926, they conveyed the property to Susie Leibowitz, who, on the same day, conveyed it back to Annie Latorre. Then, on October 21st, 1926, the Latorres gave a mortgage for $3,500 on the premises to Julius and Mary Dvorin.

The first mortgagees foreclosed their mortgage, and the sheriff of Hudson county on August 10th, 1927, conveyed the property to Umberto Taino for the sum of $6,550, that being the amount the property brought at the sheriff’s sale. The foreclosure proceedings disclosed these sums due: the first mortgagees were entitled to $5,822.16; the second mortgagee, Taino, was entitled to $2,907.66; and the third mortgagees, Dvorins, were entitled to $3,624.83.

The Latorres testified that they purchased the Bayonne property for $11,000; $2,500 thereof being paid in cash, which sum they stated, they borrowed from one Perozzi. Perozzi was engaged in the real estate business and was experienced in that business. For the loan, he received no security, no mortgage, bond, note, writing or evidence of indebtedness from the Latorres. The Latorres said that subsequently, in order to pay Perozzi’s claim, they, some four or six months later, borrowed from the Dvorins the sum of $3,000 on the Bayonne property. Dvorin testified, and he is supported in his testimony by former Judge Horace Eoberson of Bayonne, that the Latorres represented that they wanted the money for the purpose of purchasing, and operating, an automobile bus. In addition to giving the Dvorins a bond and mortgage as security for the loan, the Latorres gave the eighteen promissory notes, of which the first seventeen were each in the sum of $200, plus interest, and the eighteenth note was in the sum of $100, plus interest.

Latorre, in the bankruptcy proceedings before Eeferee Porter, contradicted Dvorin’s testimony about the purported object of the loan, and testified that he used the Dvorin money to buy the Bayonne property. It will be observed that the Bayonne property was conveyed to the Latorres on July 9th, 1924, while the mortgage to Dvorin is dated October 21st, 1926, some two years later. That discrepancy, certainly, does not lend credit to Latorre’s testimony. Latorre, however, did not purchase the bus. Within a short time after Dvorin advanced them the $3,500, the Latorres moved from Bayonne and made their residence in Einderne, New Jersey. On August 22d, 1927, Annie Latorre, under her maiden name of Annie D’Alesandro, purchased property located on the corner of Einderne avenue and East Main street, Einderne, New Jersey, and paid on account of the purchase thereof the sum of $3,500. That payment, the complainant contends, was the money that was borrowed from Dvorin. This property was purchased from Edward E. and Hilda K. Meyers and Bernard and Susie Levin, through negotiations by the said Michael Latorre with the said Edward E. Meyer. The deed was recorded September 12th, 1927. At the time of the passing of the title to Annie Latorre under her maiden .iame of Annie D’Alesandro, as aforesaid, she executed a purchase-money mortgage for $5,000 to Edward E. Meyer and Bernard Levin; and, in the mortgage, she is designated “Annie D’Alesandro, single.” On July 16th, 1928, the Latorres, calling themselves Annie (Anna) D’Alesandro and Mike D’Alesandro, respectively, executed a mortgage for $8,000 covering the premises last aforesaid, to Bernhard Meyer. Approximately one and a half years later, or on February 13th, 1929, they again assumed the names of “Annie D’Alesandro and Michael D’Alesandro,” and conveyed the property to Anielo D’Alesandro, the father of Annie aforesaid.

The reason for this last mentioned conveyance, as related by the Latorres, and Anielo D’Alesandro, and witnesses produced in their behalf, is that at the time the property was conveyed from the Meyers and the Levins to Annie Latorre (or “Annie D’Alesandro”), Anielo D’Alesandro furnished the purchase price, and was the real purchaser. Their testimony is to the effect that Anielo desired his son, William. who then resided in Brooklyn, to take the title to the premises, and engage in business in Finderne. William signed -the contract to purchase from Meyer and Levin. He subsequently refused to accept the title and informed his father that he intended to settle in California. He went to that state and remained there about nine months, when he returned to Brooklyn, where he still resides.

Anielo was displeased with the attitude of his son, and he, thereupon, directed that the title to the property should be placed in the name of his said daughter, Annie, who agreed to take the title. The contract, allegedly executed by William for the purchase of the property, was not produced at the hearing.

As above indicated the deed to the Finderne property is dated August 33d, 1937. The conveyance to Anielo, by his daughter and son-in-law, was by deed dated February 13th, 1939. Ho reason appears why Anielo could not have taken the title to the premises in his own name on August 33d, 1937, as well as on February 13th, 1939. Ho testimony except the oral statements of the defendants was presented as to the circumstances surrounding the passing of the title to the premises. The attorney of William D’Alesandro supports the testimony of Anielo D’Alesandro to the effect that he, Anielo, advanced the purchase price for the property. It does not appear quite 'clear to me why Anielo allowed the title to the premises to remain in his daughter’s maiden name for almost two years before requesting that it be transferred to him. Again the record shows that Annie, in July, 1938, while the title was in her name, obtained and placed an $8,000 mortgage on the property.

On February 5th, 1939, Julius and Mary Dvorin instituted, in the New Jersey Supreme Court, an action against Michael and Annie Latorre, and on April 36th, 1939, recovered a judgment against them for $4,080.70. Within eight days after initiating the Dvorin action, or on February 13th, 1939, the premises were conveyed to Anielo. These circumstances stand out: Michael Latorre had conducted on the premises, a liquor saloon, a grocery store, and a gasoline station. The saloon was called “Mike’s place;” and the gasoline station was named “Mike’s Gas Station.” Latorre managed the saloon and the grocery store, and served patrons at the gasoline station. The liquor licenses, in at least two instances, were taken out in his name. Subsequently, Anielo appeared at the liquor ]ícense bureau, in the town, and requested that the license be changed to his name. He was then informed by the clerk of the bureau that it would be advisable to withhold his application to have the name changed until the expiration of the term for which the license had been issued. That was done; and, from then, the liquor license appeared in the name of Anielo D’Alesandro.

There appears of record in the Somerset county clerk’s office, conditional sales agreements covering chattels in the saloon in which the name of Michael Latorre appears as the purchaser. There is one conditional sales agreement dated April 19th, 1933, entered into by Lebenfeld Brothers, Incorporated, of New York, with “Mike Latorre, Main Street and Millstone Boad, Finderne, New Jersey,” purchaser. That sales contract covered: one twelve-foot front bar with six-foot return, one twelve-foot back bar, one beer cooler (two beer and one water), two four-foot copper workbenches, brass rail and brackets, one electric beer pump, two bungs and rods.

The grocery store was conducted by Latorre; he attended on the customers who made purchases there, and represented himself to them as the owner. In the bankruptcy schedules, Latorre listed as creditors, concerns which supplied groceries and fruits to the grocery store. In 1932 Latorre purchased in his name equipment for the gasoline station. A building concern submitted evidence that they had sold material to “Annie D’Alesandro,” which was used to improve the real estate where the gasoline station was located in Finderne. Promissory notes were given by the Latorres to creditors for supplying material, and for performing concrete work for, and about, the Finderne property. There is the testimony of a laborer who said he was employed and paid by Michael Latorre for working in and about the same property.

Latorre negotiated for loans on the property with several people, among them men named Pratti, Ruggieri and Meyer, in the course of which, he represented himself as the owner. Ruggieri, who holds a mortgage on the Pinderne property, confirms this testimony that Latorre said he was the owner. Pratti, who was a salesman and collector for the firm of Gunzelman & Cramer, who supplied material for the improvement of the Pindern property, testified to the same effect. I am convinced that the premises in question belonged to the Latorres.

The defendants charge that the complainant is guilty of laches. I do not agree with them. I do not find the complainant wanting in diligence. I think he was vigilant and has acted with due promptness. Where there is evidence of fraud, equity will not permit the statute of limitations to give aid and comfort to a transgressor by barring relief to one who has exercised due diligence. Sun Building-Loan Association v. Rashkes, 119 N. J. Eq. 443; 183 Atl. Rep. 274- “Laches is not like limitation, a mere matter of time, and the question as to what constitutes laches must be determined, not only from the lapse of time, but also from the facts and circumstances of the particular case and according to right and justice.” 27 Corp. Jur. 764 § 655; Burne v. Patridge, 61 N. J. Eq. 434; 48 Atl. Rep. 770.

In Patrick v. Groves (Court of Errors and Appeals), 115 N. J. Eq. 208; 169 Atl. Rep. 701, Mr. Justice Heher, who delivered the opinion for the court, said:

“Courts of equity ordinarily act in obedience and in analogy to the statute of limitations, but they will not allow the bar of that statute to prevail where it would further manifest injustice. Lincoln v. Judd, 49 N. J. Eq. 387. In equity the period of limitation begins to run only from the discovery of the fraud by the injured party, or until he was in a situation where, by the exercise of reasonable diligence, he would have discovered the fraud. Lincoln v. Judd, supra; Todd v. Rafferty’s Admrs., 30 N. J. Eq. 254, 258; Somerset County Bank v. Veghte, 42 N. J. Eq. 39, 41; Vane v. Vane (L. R.), 8 Ch. 383, 398; Rolfe v. Gregory, 4 De G., J. & S. 576, 579; Sherwood v. Sutton, 5 Mass. 143; Fed. Cas. No. 12, 782; Dodge v. Essex Insurance Co., 78 Mass. 65.”

There is no doubt in my mind that the act of the trustee in filing the bill herein is fully justified. The Bankruptcy act empowers him to institute proceedings to avoid fraudulent transfers by a bankrupt and it settles the right of such complainant to maintain this action. Section 70 E of the Bankruptcy act (11 U. S. C. A. § 110 (e) says:

“The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication. Such property may be recovered or its value collected from whoever may have received it, except a bon fide holder for value. For the purpose of such recovery any court of bankruptcy as hereinbefore defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.”

In the case of Crane v. Brewer, 73 N. J. Eq. 558; 68 Atl. Rep. 78, Vice-Chancellor Howell held (syllabus 4):

“Tinder the express terms of the Bankruptcy act of July 1st, 1898 (30 Stat. 565 ch. 541 § 70e; U. S. Comp. Stat. 1901 p. 3451; 11 U. S. C. A. § 110 {e), a trustee in bankruptcy represents all the creditors of the bankrupt, and takes all his property and rights and may institute such proceedings to avoid illegal transactions as any of them might.” United States Fidelity and Guaranty Co. v. Fuoco, 112 N. J. Eq. 238; 164 Atl. Rep. 28; Fischer, Trustee in Bankruptcy, &c., v. Cannato, 111 N. J. Eq. 345; 162 Atl. Rep. 529; Ellend, Trustee, &c., v. Marks, 109 N. J. Eq. 503; 158 Atl. Rep. 399; Unger, Trustee, &c., v. Mayer, 105 N. J. Eq. 253; 147 Atl. Rep. 509.

In Gilbert’s Collier on Bankruptcy (1927 edition), 1079, the following appears:

“By sub-division (4) property transferred by the bankrupt in fraud of his creditors passes to his trustee. This is the converse of the doctrine that trustees take title subject to equities; they also take title to property which the bankrupt has fraudulently transferred, and in which, therefore, the creditors have equities. The trustee’s interest in such property is stronger than was that of the creditors in whose stead he stands, for he has a title. The trustee is vested not only with the title of the property, but also with the creditors’ rights of action with respect to property of the bankrupt fraudulently transferred or incumbered by him, and he may assail in their behalf all of such transfers and incumbrances to the same extent as though the debtor had not been declared a bankrupt.”

The conveyance in the instant case comes within the inhibition of the Uniform Fraudulent Conveyance act, chapter 21$, laws of New Jersey 1919, page 500. Cum. Supp. Comp. Stat. 1911-1921 p. 617 §§ 11 -11$ et seq. The evidence in the case convinces me that no part of the moneys advanced toward the acquisition of the title to the premises was provided by Anielo D’Alesandro. The fact that Annie Latorre took the title under the name of D’Alesandro, rather than in her own name, and her assertion in the purchase-money mortgage given to Levin and Meyer that she was single, in my opinion, were acts of fraud. The subsequent execution of the mortgage by her and her husband, both signing under the name of “D’Alesandro,” was not an accidental mistake. It was the result of mature deliberation; done with an impure motive, and for the evident purpose of hiding their identity as the real owners of the property with the object of perpetrating a fraud upon the creditors.

At the time of the conveyance to Anielo D’Alesandro, the Latorres were unquestionably insolvent, and regardless of their intent, the conveyance is nevertheless deemed to be fraudulent. Dixon v. Eckert, 117 N. J. Eq. 544; 176 Atl. Rep. 560; Fischer v. Cannato, supra; Joseph Lande & Son, Inc., v. Amico, 109 N. J. Eq. 487; 158 Atl. Rep. 328.

The Uniform Fraudulent Conveyance act provides that a voluntary conveyance by one who is insolvent, carries with it a presumption of fraud. Horton v. Bamford, 79 N. J. Eq. 356; 81 Atl. Rep. 761; Haston v. Castner, 31 N. J. Eq. 697. It may be mentioned that in dealings between close relatives, the courts closely scrutinize their actions. Gnichtel v. Jewell, 59 N. J. Eq. 651; 44 Atl. Rep. 1099; affirming, 41 Atl. Rep. 227; Conway v. Raphel, 102 N. J. Law 531; 141 Atl. Rep. 804.

Section 4 of the Uniform Fraudulent Conveyance act of 1919 (Cum. Supp. Comp. Stat. 1911-1921 p. 617 § U-115), provides that:

“Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.”

Hull v. Angster, 107 N. J. Eq. 454; 153 Atl. Rep. 93; Kaplan v. Heiles, 107 N. J. Eq. 443; 152 Atl. Rep. 855. In Parsells Petroleum Products v. White, 109 N. J. Eq. 364; 156 Atl. Rep. 832, the court said:

“The complainant prays that the said conveyance may be set aside as fraudulent.

“This is entirely a factual question, and I am forced to the conclusion that it was fraudulent. The defendant Helen G. White produced her banking record in the Delaware County Trust Company, but she failed to produce the records of the bank in which she claims to have deposited the money received from Eugene E. White for said conveyance. I am bound to believe that had she been in possession of such records that she would have produced the same, and her failure to produce that record, it being within her power to submit it to the court, almost inevitably leads to the inference that she did not produce it because she knew that its contents were adverse to her contention, and the mind finds no difficulty, as a matter of reason, in feeling that she knew that the fact is otherwise than she claims it to be; and that upon a full disclosure of all of the circumstances affecting the case, she would not deserve to succeed. Chamberlain’s Hand Booke on Evidence 110. Under these circumstances, I am bound to conclude that the conveyance was fraudulent.”

In the instant case, the alleged contract of purchase was not produced. See the case of United States Fidelity and Guaranty Co. and Weitz, Trustee, v. Fuoco, 112 N. J. Eq. 238; 164 Atl. Rep. 28, in which the court said:

“The transactions between the defendants were complicated and I have considered them in detail, with the result that the explanations made by the defendants do not seem to me to be credible. The testimony in support of the three assignments of the mortgage under attack comes wholly from the lips of the parties vitally interested in maintaining their validity, and I consider such testimony discredited by the circumstances, by the improbability of transactions being carried on in the manner testified to and by the light of human experience. The assignments were all made for past due consideration and at a time when Fuoeo was becoming or was involved in the financial difficulties which later caused him to file a petition in bankruptcy and the burden of sustaining their hona fides is on the Nardellis. I consider the evidence insufficient to sustain the burden and there will be a decree for complainants.”

Under all the circumstances, I am satisfied that the complainant is entitled to the relief prayed for.


author: Hendrickson, C. P. J.

text:
    Burlington County Court of Common Pleas.
    LUIGI CIRILLO, PETITIONER-APPELLEE, v. UNITED ENGINEERS AND CONSTRUCTORS, INCORPORATED, RESPONDENT-APPELLANT.
    Decided June 19, 1936.
    Por the petitioner-appellee, Vincent A. deBennedetto.

    Por the respondent-appellant, Henry H. Fryling (Elmer W. Bomine, of counsel).
   Hendrickson, C. P. J.

On November 12th, 1931, Luigi Cirillo was injured by an accident while in the employ of the United Engineers and Constructors, Incorporated. Under date of November 8th, 1933, William E. Stubbs, deputy commissioner of compensation, awarded compensation to the petitioner on the basis of fifteen per cent, total disability. This judgment was paid in full. On February 5th, 1935, petitioner filed a petition to reopen his case on the ground of an increase in disability since September 21st, 1933, the date of the first hearing. On January 17th, 1936, testimony was taken before William E. Stubbs, deputy commissioner, on the petition for additional compensation arising out of increased disability. On March 11th, 1936, William E. Stubbs, deputy commissioner, awarded compensation to petitioner on a finding that there had been a fifteen per cent, increase in petitioner’s total disability.

It becomes necessary for me to decide only one question and that is whether the proofs show an increase of disability since the former award.

In arriving at my conclusions, I have taken the liberty to read the testimony taken in the first hearing, as well as the testimony taken in the second hearing. The testimony is very similar in both cases. The doctors for the petitioner in the first hearing testified that he was suffering from at least seventy per cent, total disability. The doctors for the petitioner in the second hearing testified that he is suffering from anywhere from seventy-five per cent, to one hundred per cent, total disability.

The doctors for the respondent in the first hearing testified that petitioner had no disability. In the second hearing some testified that he had no disability and two, I think, who had testified in the first trial, testified that he might have five per cent, or ten per cent, disability at this time.

On the basis of the testimony of these two doctors, who now testify that petitioner is suffering from a five per cent, to a ten per cent, disability while in the first hearing they testified that petitioner had no disability, the commissioner concludes that in view of this testimony, petitioner’s disability has increased beyond the award in the first instance and grants him additional fifteen per cent, total disability.

The petitioner at the second hearing does not produce any doctors to testify definitely of an increased disability since the first award. He simply produces doctors to testify as to the total amount of disability of the petitioner at the present time. I fail to find any testimony on the part of the petitioner upon which the commissioner could base his fifteen per cent, additional award.

I do not feel that the testimony of respondent’s doctors is sufficient to grant a new award of fifteen per cent, simply because they now testify that petitioner may have a five per cent, or a ten per cent, disability. It seems to me that this testimony is still within the fifteen per cent, first award as taken against the respondent. It would seem to me that if this testimony were taken as a basis for an additional .award, as it apparently was by the commissioner, the most he could have granted would have been five per cent, or ten per cent. In other words, it seems to me that from the testimony it would have been necessary for the commissioner to have found an increased disability of five per cent, or ten per cent; or the difference between fifteen per cent., the amount of the first award, and the amount testified to by petitioner’s doctors. The award surely must be based on the evidence and not be an amount that the commissioner might personally feel that petitioner was entitled to.

I do not feel that the evidence warrants the granting of any additional compensation.

I am also satisfied that this case comes within the rule laid down in the case of De Marco v. F. H. McGraw Co., 13 N. J. Mis. R. 856; 181 Atl. Rep. 639, wherein the court said: “By the clear weight of credible evidence no increased disability was shown. It may be that the bureau award in the first instance was too low, but if, upon the proof, such were the case, the remedy was by appeal and not by petition for the recovery of increased compensation, by reason of increased disability, which was not shown.”

In this case on the first petition and hearing, the petitioner asked for seventy per cent, disability and produced testimony of doctors to prove disability in that amount. The commissioner awarded fifteen per cent. There was no testimony upon which to base an award of that amount, it being merely the commissioner’s own personal idea as to the amount to which petitioner was entitled. If petitioner was not satisfied with the award, he should have taken an appeal. The petitioner now produces practically the same testimony and requests an additional award. He is not entitled to it.

The judgment of the compensation bureau is therefore reversed, and the compensation to the petitioner is denied.


author: Per Curiam.

text:
    DAVID HASNEY, PLAINTIFF-RESPONDENT, v. STACEY AMUSEMENT COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Submitted January 31, 1936
    Decided June 26, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the appellant Stacey Amusement Company, Cecil W. Rotzell.

    For the respondent, David L. Smith and James S. Turp.

   Per Curiam.

Plaintiff below fell into a trapdoor opening in the sidewalk used as an entranceway into the basement of property used by the Stacey Amusement Company. In an action to recover damages for injuries received plaintiff obtained a judgment against that company, and the defendant appeals, contending that on its motion there should have been a verdict directed in its favor, and that there was error in the denial of certain requests for charge.

The grounds of the motion were that no evidence of negligence existed, and that it affirmatively appeared that the plaintiff was himself guilty of negligence contributing to the accident.

The opening was provided with doors which when closed rested even with the surface of the sidewalk; when open the lids were raised a little less than two feet. It was over one of these raised lids that the plaintiff fell. There was evidence from which it could be inferred that the servant of the defendant negligently failed to guard this opening, and that due to this failure the injuries were received.

The plaintiff was using the sidewalk in common with other persons immediately preceding him at the time of the accident. formally sidewalks are presumed to be free from obstructions and pitfalls. Whether leaving the opening with its shallow lids unguarded was negligence, and whether plaintiff was guilty of negligence in failing to observe the open doors was for the jury to determine. Durant v. Palmer, 29 N. J. L. 544; Matheke v. United Stales Express Co., 86 Id. 586; 92 Atl. Rep. 399.

Our examination of the requests presented for charge leads us to the conclusion that in so far as they were proper statements of the law, the jury had already been instructed in accordance with them.

The judgment is affirmed, with costs.


author: Lloyd, J.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM A. GOLDMAN, PLAINTIFF IN ERROR.
    Submitted January 31, 1936
    Decided June 19, 1936.
    Before Bbogan, Chief Justice, and Justices Lloyd and Donges.
    For the plaintiff in error, William A. Goldman, pro se.

    For the defendant in error, William A. Wachenfeld, Joseph E. Gonion and Leon W. Kapp.

   Lloyd, J.

Plaintiff in error was convicted of the larceny of a quantity of oil and four pumps, the property of Linderman & Company, Incorporated, a corporation. The case is presented under both assignments of error and specifications of causes for reversal.

The first two points urged for reversal are that there was no proof of ownership in the Linderman Oil Company, Incorporated, and that there was no proof of a felonious intent on the part of the plaintiff in error.

The history of the case was that Emerson was a tenant of 295 Badger avenue, Newark, under a lease from Linderman & Company. His rent became in arrears and on May 10th, 1934, the landlord instituted distraint proceedings. Under these proceedings the goods here involved were distrained for rent by a constable and resulted in a sale of the goods on June 11th, 1934, to the landlord, and to it a bill of sale was delivered. Emerson, however, continued to occupy the premises under an arrangement, according to his own testimony, that he should dispose of the goods and render an account to the landlord in the form of a portion of the net profits of the sales that he might effect.

Thereafter on June 16th, 1934, the Hartol Products Company obtained a judgment against Emerson and execution was placed in the hands of Goldman, the plaintiff in error, a constable of Essex county. Under this authority Goldman visited Emerson and being unable to collect the judgment, after some delay levied upon and seized the oil and pumps, and caused the same to be taken away to a garage for storage, at the same time posting notice of sale on a pole in front of the premises. It appeared that when Goldman made the levy the notice of sale under the distraint proceedings was still posted on the wall. This notice he seems to have copied.

There was abundance of evidence to establish the ownership of Linderman & Company^ Emerson so testified, as did also officials of this company. We think there was evidence sufficient also to go to the jury of the criminal intent. While the goods were in the possession of Emerson, Goldman was apprised that there had been a levy upon those goods and a sale had. This would appear to have been sufficient to put him on guard that he might be taking away the property of someone other than that of the defendant Emerson, and if so, a felonious purpose would be implied in law.

While we think the case was for the jury and a direction of acquittal would have been improper, we think there was error in certain rulings at the trial of the case. When the witness Emerson was on the stand he was asked on cross-examination a series of questions concerning testimony given by him before the grand jury, based apparently upon a complaint made by him alleging ownership of the goods to be in himself. These questions were as follows: “Q. Do you remember testifying before the grand jury of this county ? Q. Did you testify before the grand jury? Q. An indictment was brought out against this defendant which you know to exist? Q. And you stated in that criminal complaint that you owned these goods, did you not? Q. In pursuance to that criminal complaint which you made sometime in July saying that you owned the goods, you then appeared before a police court, didn’t you? Q. Why did you make a complaint against this man in July, Mr. Emerson, if you didn’t own the goods?”

All of these questions were overruled, the court holding that the testimony given before the grand jury was privileged from disclosure under the law, and that it was not material. We think it was both material and proper. The bill of sale alleged to have been made by Emerson in pursuance of the distraint and sale and delivered to the landlord was not produced. There was the testimony already referred to, but as Emerson was one of the witnesses giving this testimony it was material that any statements inconsistent with his testimony given in court should be available. That it was not privileged from disclosure has been definitely decided in the ease of State v. Silverman, 100 N. J. L. 249; 126 Atl. Rep. 618; also State v. Bovino, 89 N. J. L. 586; 99 Atl. Rep. 313.

As to the assignments dealing with the fifth point to the effect that the plaintiff in error had submitted the facts to an attorney and had received his advice as to his rights there-Tinder, it is not clear whether this submission and advice were before or after the taking but as the case must go back for retrial on other grounds this phase of the examination will probably be clarified.

The instruction requested in the sixth point we think properly dealt with.

The judgment is reversed, and the record remanded for new trial.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MICHAEL SHEEHAN, PLAINTIFF IN ERROR.
    Submitted January 31, 1936
    Decided June 19, 1936.
    Before Bkogan, Chief Justice, and Justices Lloyd and Donges.
    Por the plaintiff in error, William Her da Smith.

    Por the defendant in error, French B. Loveland and Joseph Lanigan.

   Lloyd, J.

Michael Sheehan, a captain of police of the city of Wildwood, was jointly indicted with Doris. Bradway, the mayor of that' city, for non-feasance in office. On this indictment Sheehan was convicted and Mrs. Bradway was acquitted. Prom his conviction Sheehan has a writ of error and we are asked to review the case on both assignments of error and specification of causes for reversal.

The charge was in substance that the defendants, one as mayor of the city and the other as captain of police, knowingly permitted the existence of disorderly houses, lotteries, bookmaking, pool selling and slot machines.

The first contention of plaintiff in error is that the court should have directed a verdict of acquittal because there was no legal proof of the duties alleged in the indictment. We think this is an idle contention. Both of the defendants were under sworn duty to see to the enforcement of the laws, one as mayor and the other as a police officer, and if, as appears, there were violations of the law that it could reasonably be inferred existed within the knowledge of these officers, there was certainly a duty imposed by law to see to their suppression.

Another ground urged and argued for the direction is “that there was no intent shown on the part of the state that Sheehan refused or neglected his duty, nor did he willfully neglect his duty.” Part of this is senseless as applied to the facts. Obviously the state had no intent in the matter. If it is meant to refer to intent on the part of Sheehan, there was ample proof that he knew of the existence of these conditions, and that he willfully neglected his duty in that regard. The testimony of the widespread existence of gambling, slot machines, gambling places and their public character, together with specific proof of the attention of Sheehan being called to their existence, leaves no room for doubt that there was ample evidence to justify the conclusion that Sheehan had a guilty knowledge of their existence and willfully refrained from suppressing them.

The second point urged is that the judge committed error in charging that “an indictment is simply a charge by the grand jury that a crime has been committed by the defendants named. The charges that are made in an indictment are not necessarily—do not necessarily result in guilt. It is a mere charge of guilt.” It is difficult to see any inaccuracy in this instruction. When an indictment charges an offense it necessarily implies a charge of guilt. In this case the judge amplified his own definition as to the import of the indictment by reading the indictment in extenso. An indictment is defined to be a written accusation against one or more persons of a crime or misdemeanor. Bouv. Dict. 1542. Certainly an accusation of the commission of a crime implies a charge of guilt.

It is next argued that there was error in the failure of the judge to instruct the jury that the testimony referring to Sheehan should be confined to the acts during the period of time that he was in charge of the police department and not for any acts committed between July 20th, 1923, and March 19th, 1934, and to the instruction that the plaintiff in error was in charge of the detaij of police from July 20th, 1933, to March 19th, 1934. The point of this line of complaint is that Sheehan was chief of police but for the short period of time in August and September, 1933; that he was not responsible for the existence of crime during the full period to March 19th, 1934, and that inasmuch as the indictment charged existence of conditions from July 20th, 1933, to March 19th, 1934, there was error in the instruction. Both of these contentions are without merit. It may be said that a failure to give an instruction not asked for is not error, but passing this'criticism, we think it would have been error to have instructed the jury as is here contended. While Sheehan was not in full charge of the department as chief of police he was a captain of police and it was clearly established that the conditions testified to'existed so within his knowledge that there was a dereliction of duty in his failure to suppress them.

The last contention made is that the verdict was against the weight of the evidence. What we have already said would indicate that this is not so. While the plaintiff in error testified to the absence of knowledge of the illicit conditions existing in the city, it was clearly open to the jury without doing violence to the proofs to conclude to the contrary.

The judgment is affirmed.


text:
    ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, LIMITED, INCORPORATED, APPELLANT, v. POND COAL COMPANY, INCORPORATED, RESPONDENT.
    Argued January 21, 1936
    Decided June 26, 1936.
    Before Beogan, Chibe Justice, and Justices Lloyd and Donges.
    For the appellant, Alvord & Alvord.

    For the respondent, Frank Koiolc.

   Lloyd, J.

The insurance company brought suit against the defendant corporation to recover premiums claimed to be due on an employers’ liability policy of insurance. There was a nonsuit in the court below, and the plaintiff appeals.

The nonsuit was granted on the ground that no insurance was ever shown to have been effected with the defendant company. The facts were undisputed that a policy for one year issued to Samuel and Isaac Bleznak, a partnership trading as Pond Goal Company, in March, 1933, and the claim by the plaintiff was that it had been transferred to the name of the defendant, a corporation, and that a larger premium was due.

An examination of the proofs discloses that while the insurance company placed on its own copy of the policy a transfer such as was contended for, there was no proof that this had been ordered or authorized by the defendant or that it had been made part of the policy already issued.

It appears that there were two business concerns: (1) a partnership trading as Pond Coal Compaq, organized in 1930, and (3) a corporation known as Pond Coal Company, Incorporated, chartered in July, 1939.

If the insurance was effective to the corporation under the terms of the policy its officers would be regarded as employes and increase the premium from the $80 which had been paid by the partnership to the sum of $343.50, making a difference of $363.50, for which sum the action was instituted.

It was contended by the plaintiff that the policy was so changed on April 6th, 1933, in accordance with orders received from one Fiorelli, an insurance broker, and claimed by it to be an agent of the defendant. It seems that Fiorelli in March, 1933, received from Samuel Bleznak, a member of the partnership, an application for a policy of compensation insurance in the name of Samuel Bleznak and Isaac Bleznak, trading as Pond Coal Company. Such policy was issued by the plaintiff company, delivered to Fiorelli and by him delivered to the Bleznaks. Thereafter the plaintiff claimed that a new order was given by Fiorelli changing the policy to the Pond Coal Company, Incorporated, and produced a witness who testified that she received such an order from Fiorelli; and further that a rider making the change was issued and forwarded to Fiorelli to be attached to the policy already delivered. Fiorelli denied giving any such direction or the receipt of any such rider, or that he had ever apprised the partnership or the corporation that he had received such a paper.

We find nothing in the proofs to bind the defendant company. Whether Fiorelli was acting as the agent of the plaintiff or as the agent of the Bleznaks a partnership, is not necessary to decide. Even if he were the agent of the partnership in procuring the first policy, there was no implied authority in such employment to authorize the obtaining of substituted insurance for the corporation, and there is no proof in the case that such was ordered by the corporation or by any of its officers or agents.

The judgment is affirmed, with costs.


author: Carney, D. C. J.

text:
    Second District Court of Hudson County.
    MUGLER AUTO PIT COMPANY, INCORPORATED, v. TIDE WATER OIL COMPANY.
    Decided May 25, 1936.
    For the plaintiff, Herman E. Dultz.

    For the defendant, Benedict Krieger.

   Carney, D. C. J.

This is an action in replevin in which the plaintiff seeks to recover from the defendant, possession of a two-car Mugler auto pit, which had been installed in a gasoline station at No. 195 Washington avenue, Belleville, New Jersey; and which station was euphoniously referred to as a lubritorium. The plaintiff bases its claim on a conditional sales agreement which it made with one, Benjamin Gallison, who was formerly in possession of the lubritorium. The agreement was dated August 16th, 1932, and was filed in the county clerk’s office on September 22d, 1932. The premises came into the possession of the defendant by various lease assignments.

Chief among the many contentions raised by the defendant was the fact that the pit could not be removed without material injury to the freehold; and also, that the agreement, not having been filed in compliance with section 7 of the Uniform Conditional Sales act (Cum. Supp. Comp. Stat. 1911-1924, p. 3130, § 182-93), the reservation of title was void.

This case involves an extension of the “institution” doctrine adopted by our Court of Errors and Appeals and most recently reviewed in a learned opinion by Mr. Justice Case, in Smyth Sales Corp. v. Norfolk Building and Loan Association, 116 N. J. L. 293; 184 Atl. Rep. 204. In Domestic Electric Co., Inc., v. Mezzaluna, 109 N. J. L. 574; 162 Atl. Rep. 722, the doctrine was applied to refrigerators in apartment houses—followed in MacLeod v. Walter J. Satterthwait, Inc., 113 N. J. Eq. 238; 166 Atl. Rep. 163; Russ Distributing Corp. v. Lichtman, 111 N. J. L. 21; 166 Atl. Rep. 513, and—extended to a private dwelling in Lumpkin v. Holland Furnace Co., Inc., 118 N. J. Eq. 313; 178 Atl. Rep. 788.

The application of the “institution” theory was, however, limited and circumscribed to apartment houses by the case of Independent Aetna Sprinkler Corp. v. Morris, 114 N. J. L. 23; 175 Atl. Rep. 102, which concerned a sprinkler system in a store and office building, and followed H. G. Vogel Co. v. 295 Halsey Street Co., 109 N. J. L. 83; 160 Atl. Rep. 364, which involved a sprinkler system in a garage. The case of Smyth Sales Corp. v. Norfolk Building and Loan Association, supra, expressly overruled the Independent Aetna Sprinkler Corp. and H. G. Vogel Co. cases, and declares the rule to apply to any structure in the following language (at p. 298) :

“When a chattel which, clearly is permanently essential to the completeness of a structure, having regard to the character of that structure and the functioning of it in the use for which it was obviously designed, is actually, purposely and lawfully affixed to and into the structure, it becomes, in our opinion, a part of the realty; and if the severance of it will prevent the structure from being used for the purposes for which it was erected or for which it has been adapted, then the article is not severable without material injury to the freehold. By that standard the articles sought by plaintiff are not severable without material injury to the freehold. The willingness on the part of the plaintiff to abandon parts of the equipment does not alter the relationship which the equipment, as a whole, bears to the remaining parts of the structure. In such a situation the degree of affixation is less important than the indispensability of that which is affixed.”

Counsel have not directed me and I have been unable to find any case concerning a pit used in the functioning of a lubritorium. In Layne New York Co., Inc., v. President Hotel Co., 111 N. J. L. 338; 168 Atl. Rep. 442, the court denied the removal of a well used in conjunction with a hotel, saying:

“There seems to be no substantial distinction between the contract in this case and the one for the installation of a refrigerator plant, as in Domestic Electric Co. v. Mezzaluna.” The situation here involved seems analogous.

Considerable testimony was taken on the method of installation of the pit, the construction of it, the necessary excavation made, the design of the building for the particular purpose of a lubritorium, and the indispensability of the pit for the particular structure, from which it appears to me to be an integral part of the realty and that the removal of it would result in material injury to the freehold interdicted by the principles laid down in Smyth Sales Corp. v. Norfolk Building and Loan Association, supra; B & O Radio, Inc., v. Prudential Life Insurance Co., 116 N. J. L. 301; 184 Atl. Rep. 208.

In view of the above, judgment will be entered in favor of the defendant.


author: Newman, D. C. J.

text:
    First District Court of Monmouth County.
    THE METROPOLITAN CASUALTY INSURANCE COMPANY OF NEW YORK, A CORPORATION, PLAINTIFF, v. E. G. GRANT BROOKER, DEFENDANT.
    Decided June 24, 1936.
    Dor the plaintiff, William Wachenhuth, Jr.

    Dor the defendant, Ezra W. Karlcus.

   Newman, D. C. J.

This action is submitted to the court upon an agreed state of facts which will not be repeated here but will be referred to.

The liability of the defendant to the plaintiff is alleged to arise out of the fact that the defendant was an officer of a corporation against which the plaintiff recovered a judgment; that said corporation failed to file a report in accordance with the requirements of section 25 and 26 of the General Corporation act. Section 25 (2 Comp. Stat., p. 1611, § 25) of said act requires the filing of a certificate 'showing the total amount of capital stock paid and the manner in which it was paid. Section 26 (2 Comp. Stat., p. 1612, § 26) provides, that if any of said officers shall neglect or refuse to perform the duties required of them in preceding section for thirty days after written request so to do by a creditor or stockholder of the corporation, they shall be jointly and severally liable for all its debts contracted before the filing of such certificate.

The corporation was dissolved by a proclamation of the governor. Thereafter, plaintiff notified defendant to file said report. He attempted to do so but it was refused by the secretary of state. Section 143 of the Corporation act makes it a misdemeanor for any person to exercise or attempt to exercise any powers under'the charter of a corporation dissolved by the governor.

The position of the defendant was therefore, if we accept the contention of the plaintiff as being correct, that he, the defendant, must file the required report and at the same time he was prohibited by the law and guilty of a misdemeanor if he did file the report.

I do not think that this can be the intent of the law. In my opinion these officers are required to file a report only during the corporate existence of the company. When the company is dissolved they cease to be officers and therefore cannot act. They simply become trustees of the company’s property for the purpose of winding up its affairs. I therefore hold that inasmuch as the notice of the plaintiff to the defendant to file the report was made after the dissolution of the corporation, that it was too late and therefore gives rise to no cause of action by the plaintiff against the defendant.

Therefore, let judgment of no cause for action be entered.


author: John 0. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    OTTILIE TONSING, DEPENDENT OF AUGUST TONSING, DECEASED, PETITIONER, v. FORD MOTOR COMPANY, A CORPORATION OF THE STATE OF DELAWARE, LICENSED BY THE STATE OF NEW JERSEY TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT (RESPONDENT).
    Decided May 12, 1936.
    For the petitioner, Reuben W. Massarslcy.

    For the respondent, McCarter & English.

   Hi H* ❖ H* H* Hi H*

1. The petition filed herein was filed at Trenton on March 16th, 1936, and alleges that the decedent died on April 16th, 1935, as a result of tuberculosis brought about by exposure to benzol.

2. The last date of exposure, as alleged in the petition, was October 13th, 1932, at which time the decedent left the employ of the respondent, Ford Motor Company.

3. Section 22 (e) of chapter 124 of the laws of 1924 (Cum. Supp. Comp. Stat. 1911-1924, p. 3883, § **236-26) specifically provides:

“All claims for compensation for compensable occupational disease shall be forever barred unless a petition is filed in duplicate with the secretary of the Workmen’s Compensation Bureau, at the State House in Trenton, within one year after date on which the employe ceased to be exposed in the course of employment with the employer to such occupational disease as hereinabove defined, or in case an agreement of composation for compensable occupational disease has been made between such employer and such claimant, then within one year after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by such employer, then within one year after the last payment of compensation.”

In Herod v. Mutual Chemical Company of America, 115 N. J. L. 369; 180 Atl. Rep. 432, the Supreme Court said:

“We can do little better in demonstrating the futility of prosecutor’s argument than to repeat a portion of the deputy commissioner’s findings:

“The result necessarily follows that the motion to dismiss the petition must be granted. This conclusion is further strengthened by the different language used in the two sections. Section 22 (e) (supra), provides that the claim for compensable occupational disease shall be barred unless a petition is filed within one year after date on which the employe ceased to be exposed to such occupational disease, whereas section 23 (h) (supra) provides that claim for personal injury or death resulting from accident shall be forever barred unless a petition is filed within one year after the date on which the accident occurred. The inconsistency is apparent. It may be that the legislature intended in occupational diseases to let the defense of the statute of limitations remain even though the report was not filed because of the difficulty of determining when an emploj^e has an occupational disease. The date of the occurrence of an accident is definite as a general rule. The date when an occupational disease is incurred is indefinite. Therefore, one year from the date of the last exposure to the occupational disease is fixed as a practical matter and that bar is not lifted by chapter 187 of the laws of 1924, paragraph 6 (supra). In short there may be good reason for the enactment of paragraph 6 of chapter 187 as it now appears, but whether there is or not, it certainly does not deprive the employer of the defense given by section 22 (e) (supra).”

In view of the premises aforesaid, I find that the petition filed herein was not filed as provided by section 22 (e) aforesaid and it is my opinion that the bureau is without jurisdiction and that the petition filed herein should be dismissed.

It is, therefore, on this 12th day of May, 1936, adjudicated and ordered that the petition filed herein be and the same is hereby dismissed.

John 0. Wegner, Referee.


author: Sooy, Y. C.

text:
    Isabell E. Conway, complainant, v. John E. Cron et al., defendants.
    [Decided June 23d, 1936.]

      Mr. Harry Phillipson, for the defendants J. W. Pierson Company, Pierson Concrete Products Company and Newark Sand Company.

      Mr. Philip Ox, for the defendants Louis Tenore, Tony Appezzato and Westfield General Contracting Company.

      Mr. Lawrence Friedman, for the defendant Israel Epstein.

      Messrs. Schwartz <& Schwartz, for the defendant John P. Callaghan, Incorporated.

      Mr. David Ehrlich, for the defendant Greenberg Sash, Door and Supply Company.

      Mr. Frank Long, for the defendants Garrabrants & Zumbusch.
   Sooy, Y. C.

Defendants are stop-notice creditors and appear as defendants after decree of interpleader, with the exception of John P. Callaghan, Incorporated, who is a judgment creditor.

At the final hearing it was determined that the stop-notice creditors were entitled to have their claims paid prior to that of the judgment creditor. The claim of the Westfield General Contracting Company was disallowed by reason of the finding by the court that the claimant had filed in an excessive amount, to such an extent as to convince the court that there was fraud in the filing thereof.

At the final hearing it appeared that two of the defendants, Garrabrants & Zumbusch and the Greenberg Sash, Door & Supply Company, had filed their statements of claim prior to the final hearing but beyond the time allowed by rule 69 of this court. These defendants were permitted to prove their claims, over objections of the other defendants, and the question as to final allowance was reserved by the court, with the intimation that the court was disposed to relax the rule and permit said defendants to participate in the distribution of the moneys so as aforesaid paid into court.

Since the final hearing, I have given the matter further consideration and have analyzed the rules as they stood in 1917 and as they were amended in 1934.

Vice-Chancellor Fallon, in Israel v. Baker, 101 N. J. Eq. 699; 139 Atl. Rep. 526, in December of 1927, construing rule 69 (1 N. J. Mis. R. 748) as it then stood, held that: “non-compliance with said rule would not deprive stop-notice claimants of their statutory preference.”

In that case, as here, rules 2 and 4 (1 N. J. Mis. R. 723) of this court were urged, the former of which provides: “The time limited in these rules for doing any act may, for good cause, be extended by order either before or after the expiration of the time.”

Rule 4 (1 N. J. Mis. R. 723), provides: “These rules shall be considered as general rules for the government of the court and the conduct of causes, and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice.”

Rule 69 (1 N. J. Mis. R. 748), as it stood at the time of the decision in Israel v. Baker, supra, did not specifically provide for a penalty upon failure of a stop-notice defendant to file a statement of claim. The same rule, as amended by the chancellor on January 1st, 1934, after providing for the time within which the statements of claims should be filed by defendants in interpleader suits, added the following paragraph : “Failure to file a statement shall be deemed a waiver of the claim.”

Inasmuch as the chancellor had before him the interpretation of the rule by Vice-Chancellor Fallon, it is evident that the purpose of the amendment was to overcome the construction of rule 69 which had been placed thereon in that case.

The result necessarily is that the elasticity accorded rule 69 by Vice-Chancellor Fallon is withdrawn and the rule must be enforced, at least in cases where some strong equity does not appear, impelling the court to invoke rules 2 and 4.

Beading rule 69, in connection with the Mechanics’ Lien act, one who has filed a stop-notice is advised that he had a priority over those who file a subsequent notice but that, in interpleader, he must file the necessary statements of claim and defenses to claims, as therein provided, or be deemed to have waived his claim. And those stop-noticing defendants who have complied with the rule are advised in advance of final hearing that which they have to meet in the presentation of evidence to support their own claims, as well as to defend against another. Thus the diligent are protected and the final hearing expedited.

The decree must be that the two claims in question be disallowed.


text:
    JOHN L. SULLIVAN, PLAINTIFF-APPELLANT, v. LAWRENCE LaFRADE AND WILLIAM BAYS, DEFENDANTS-RESPONDENTS.
    Submitted January 31, 1936
    Decided June 26, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the appellant, Alfred Brenner.

    Por the respondents, Charles A. Rooney.

   Lloyd, J.

There was a nonsuit in the court below and the plaintiff appeals. The action was one to recover damages through a fall alleged to have been due to the negligence of the defendants in closing the door of a bus that he was about to enter and, as alleged in the complaint, propelling the bus “in a forward movement in a jerky, sudden, violent manner while the plaintiff was attempting to board it.”

There was no proof that the bus was started forward in a “jerky, sudden and violent manner.” It could be inferred from the testimony, however, that plaintiff was one of three men waiting for the bus at a street corner; that the bus stopped, the door opened and the other two men entered. While plaintiff’s testimony was somewhat confused as to his own actions and the subsequent movement of the bus, it was open to the jury to find from this and the testimony of another witness that the bus with the door still open, started forward as the plaintiff was entering it, and that he was thrown to the ground in consequence. From this it was also open to the jury to find that the operation of the bus was negligent in that it was prematurely started. It is as much the duty of a public carrier of passengers to afford reasonable opportunity to board the vehicle being used as it is its duty to properly operate that vehicle while in motion. In this situation it was not necessary under either the complaint or the proofs to establish that the method of starting was either jerky, sudden or violent. If it appeared as we think it might fairly be found that it did, that the bus was “propelled forward” while plaintiff was attempting to board it, the further allegation of the complaint was not essential to prove negligence, and could be disregarded.

The judgment is reversed, to the end that a new trial may be had.


author: Pee Cueiam.

text:
    SIGMAND DOBROWOLSKI, ADMINISTRATOR AD PROSEQUENDUM OF EDWARD DOBROWOLSKI, APPELLANT, v. MAX HUBBARD, RESPONDENT.
    Argued January 21, 1936
    Decided June 26, 1936.
    Before Bbogan, Chibe Justice, and Justices Lloyd and Donges.
    For the appellant, Theodore D. Parsons and Bernard PI. Weiser.

    For the respondent, McDermott & Finegold.

   Pee Cueiam.

This case presents a single point and it is whether the plaintiff was entitled to have a portion of the Traffic act read to the jury in a case brought to recover damages for the death of a child killed on the highway by an automobile.

At the conclusion of the trial and after the jury had been charged, one of the jurors asked what was the lawful rate of speed that an automobile could travel at the place of the accident. The accident occurred on a highway running through open country where the limit of speed was forty miles an hour. In response to the juror’s question the judge read article IX, section 4 of the Traffic act (Pamph. L. 1928, ch. 281; Cum. Supp. Comp. Stat. 1925-1930, p. 1549, § 179-715R (904), defining the various rates of speed permissible to one driving an automobile upon the public highways. The standard of speed so charged ran from ten miles to forty miles an hour according to the circumstances, with the qualification that if such speed is in any case unsafe it would not be lawful.

Counsel for the plaintiff at this point asked the judge to read further or instruct the jury on the law of reckless driving “since the forty miles an hour rate might not apply to this particular case.” This request was refused because not in time and not made in writing.

Whether the request was proper in time or form under the circumstances, or whether it was sufficiently specific to entitle appellant to receive affirmative response from the judge, we think it unnecessary to state for the reason that' the law as charged fairly covered the rights of the driver of the automobile in the case as presented.

Appellant insists that it was the duty of the judge to read also ■ section 1 of article IX of the Traffic act (Pamph. L. 1928, ch. 281, p. 736; Cum. Supp. Comp. Stat., p. 1548, § 179-715R (901), which provides that “any person who shall drive any vehicle upon the highway, carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger, or to be likely to endanger, any person or property, shall be guilty of reckless driving, and upon conviction shall be punished as provided in section 2 of this article.”

The section is obviously a penal one and in nowise intended to modify or supplant the regulations as to driving contained in section 4. That this is true is clear from the provision of section 2 (Cum. Supp. Comp. Stat. 1925-1930, § 179-715R (902) of the same article which provides for severe penalties including fine and imprisonment for violations.

The judgment is affirmed, with costs.