text:
    WALTER FREDERICKS, RELATOR, v. A. W. MAGEE, ACTING COMMISSIONER OF MOTOR VEHICLES OF THE STATE OF NEW JERSEY, RESPONDENT.
    Submitted May term, 1936
    Decided July 17, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the relator, Joseph F. Deegan.

    Por the respondent, David T. Wileniz, attorney-general, and Alexander F. Ormsby, assistant attorney-general.
   The opinion of the court was delivered by

Perskie, J.

The question requiring decision is whether respondent is lawfully justified in refusing to return relator’s license to operate an automobile.

The pleadings and stipulations disclose that, on August 5th, 1935, relator was apprehended by the police of the city of Perth Amboy, and that on August 6th, 1935, he was tried and convicted by the acting recorder of that city on a charge of violating section 14, subdivision 3 of the Motor Vehicle act (chapter 208, Pamph. L. 1921), amended by chapter 171, Pamph. L. 1931 (operating a motor vehicle while under the influence of intoxicating liquor). He was sentenced to pay a fine of $200 and costs and his driver’s license was revoked. On August 18th, 1935, relator was allowed a writ of certiorari to review that conviction. Pending determination of the writ, respondent placed relator’s name on what is eharacterized as the permanent prohibitory list of drivers, due to the fact that relator was a second offender by reason of a prior conviction (section 14, chapter 171, Pamph. L. 1931, p. 368; N. J. Stat. Annual 1931, § 135-63, 14, (3). On September 18th, 1935, the certiorari proceedings were discontinued. On September 19th, 1935, the recorder set aside the conviction of August 6 th, 1935. The case was retried. We are told that for the first time relator was represented by counsel and his witnesses were heard. Eelator was acquitted and the complaint against him was dismissed. He then made application for the return of his license on the ground that the revocation thereof was without sufficient cause. The application was denied. The return admits, in the main, the material averments of the writ. Eelator demurred.

In justification of respondent’s refusal, the single point is made that the recorder was without jurisdiction to change, alter or open his decision when, as here, a mandatory penalty is fixed for the violation under the Motor Vehicle act.

Chapter 171, Pamph. L. 1931, pp. 376, 377, § 25, subdiv. 1, ¶ 3; N. J. Stat. Annual 1931, § 135-76, 25 (1), If 3 of the Motor Vehicle act, reads as follows:

“In any proceeding instituted pursuant to the provisions of this act, except w'here a mandatory penalty is fixed herein, the magistrate is authorized and empowered, after conviction or after a plea of guilty or non-vult, to suspend the imposition or execution of sentence, and also to place the defendant on probation * *

It is undoubtedly true that a conviction for driving a motor vehicle while under the influence of intoxicating liquor carries with it a mandatory penalty. But obviously a conviction is sine qua non; it is a condition precedent to the resultant penalty.

It will be observed that no attack is made on the merits upon which the recorder set aside the conviction. Eespondent’s argument is tantamount to the contention that once there is a conviction the penalty for which is fixed, the recorder, the judge of the court, is without power to do anything about it. If that be sound it follows that no matter how convinced a judge may be that he reached an erroneous, illegal or void result he is powerless to remedy or correct it. Such a contention is contrary to all fundamental principles of justice. On the rights of a judge with reference to erroneous, void or voidable judgments' compare Westfield Trust Co. v. Court of Common Pleas, 115 N. J. L. 86; 178 Atl. Rep. 546; affirmed, 116 N. J. L. 190; 183 Atl. Rep. 165; Dorman v. Usbe Building and Loan Association, 115 N. J. L. 337; 180 Atl. Rep. 413; Wardell v. Warshofsky, 10 N. J. Mis. R. 519; 159 Atl. Rep. 694.

The court did not merely “suspend the imposition or execution of [its prior] sentence.” It set aside the judgment. When that judgment fell the resultant penalty necessarily fell with it.

Nor is it made to appear that the revocation by respondent of relator’s license was made “after due notice in writing” as required by chapter 49, Pamph. L. 1934, p. 136; N. J. Stat. Annual 1934, § 135-55, 6.

In fine, let it be further marked that section 25 of the Motor Vehicle act, supra, evinces a legislative policy merely concerning punishment; it does not purport to, nor does it in fact in anywise abridge or curtail the inherent right and power of courts over their judgments.

The demurrer is sustained. Peremptory writ of mandamus is awarded.


source: Caselaw Access Project

author: Heheb, J.

license: Public Domain

text:
    GLOBE INDUSTRIAL LOAN CORPORATION, FORMERLY METROPOLITAN FINANCE SERVICE, A BODY CORPORATE, PLAINTIFF-APPELLANT, v. BENJAMIN STEINBERG AND MINNIE STEINBERG, DEFENDANTS-RESPONDENTS.
    Argued January 21, 1936
    Decided July 15, 1936.
    Before Justices Heheb and Pebskie.
    Por the appellant, Irving U. Young (Arthur F. Fgner, of counsel).
    Por the respondents, no appearance.
   The opinion of the court was delivered by

Heheb, J.

Plaintiff sued on a promissory note in the principal sum of $300, bearing interest at the rate of three per cent, per month, made by respondents to appellant, then known in law as the Metropolitan Pinance Service, a corporation licensed to do business under chapter 49 of the laws of 1914, as amended, popularly called the Small Loan act. Pamph. L. 1914, ch. 49, p. 75; Cum. Supp. Comp. Stat. 1911-1924, p. 359, § 35-13; Pamph. L. 1929, ch. 293, p. 683; Cum. Supp. Comp. Stat. 1925-1930, pp. 209, 210, §§ 35-14-15-17. The note was made and delivered on June 9th, 1928, and, concededly, the transaction was within the statute referred to. The plaintiff’s license to transact business under that statute expired on Pebruary 15th, 1930, and on the 18th of the following month its corporate name was changed as indicated in the title. Thereafter it collected interest at the rate stipulated in the contract; and the District Court judge held that appellant’s “acceptance of interest,” after the expiration of its license, “at the rate permitted by the Small Loan act * * *, and its charge of interest thereafter at such rate, constituted doing business after the expiration of its license;” and that “the operation of such business after the change of its name * * *, in the absence of the statutory license, was conduct by a corporation not licensed” under that act.

In so holding, the judge fell into palpable error. As to the first ground, see Continental Finance Corp. v. Warren, 10 N. J. Mis. R. 607. And it is obvious that, for like considerations, the mere change of corporate name did not create such disability.

Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion; costs to abide the event.


author: Pekskie, J.

text:
    PENNSYLVANIA-READING SEASHORE LINES, A CORPORATION, PLAINTIFF-APPELLANT, v. UNIT CONSTRUCTION COMPANY, A CORPORATION, DEFENDANT-APPELLEE.
    Submitted January term, 1936
    Decided July 10, 1936.
    Before Justices Heher and Perskie.
    For the appellant, Thompson & Hanstein.

      Por the appellee, Emory J. Kiess (William Charlton, of counsel).
   The opinion of the court was delivered by

Pekskie, J.

This is an appeal from a judgment of the District Court of the city of Atlantic City. The judgment is based on a verdict rendered by the trial judge, sitting without a jury, in favor of the defendant below. Plaintiff’s claim sounds in contract; is evidenced by a bill of lading; and is for freight charges on goods carried by it to defendant’s consignee. Plaintiff claimed that the freight was to be charged to defendant’s account; the defendant proved, by parol evidence, that the original agreement was that the goods were to be shipped “C. O. D.” and that the change from a “C. 0. D.” shipment to a prepaid one was inserted by the carrier in the bill of lading subsequent to the original contract without defendant’s authorization. The sole question requiring decision is the propriety of the trial court’s ruling in admitting the aforesaid parol evidence concerning the bill of lading.

Plaintiff relies chiefly on the authority of Naumberg v. Young, 44 N. J. L. 331; 42 Am. Rep. 380. But the distinction here is that the evidence adduced by the defendant did not add to or alter the terms of the written contract but rather tended to show that the written instrument was not the contract of the parties—that it was never, in fact, assented to and, therefore, could not and did not bind the defendant. The plaintiff presented evidence to show that, upon discovering the non-existence of a freight agent at the address of the consignee and the resultant inability to make a “C. 0. D.” shipment, it communicated this fact to the office of the defendant corporation and was told by a girl at that office that it would be satisfactory.to send the goods prepaid. Plaintiff changed the term of the bill of lading accordingly. At this point, it becomes strikingly apparent that, by this action, the plaintiff embodied terms into the agreement which were not assented to by the defendant; for, in the absence of evidence showing any authority, a corporation cannot be bound contractually by statements of an unidentified office employe. Thus, by presenting evidence to the effect that the terms of the shipment were “C. 0. D.” defendant did not add to or alter the writing but merely showed that the written instrument did not embody the contract of the parties. For the purposes stated, the parol evidence offered was properly admitted. Compare Boulevard Globe and Lamp Co. v. Kern Gaslight Co., 67 N. J. L. 279; 51 Atl. Rep. 704; Christie v. Lalor, 116 N. J. L. 23; 181 Atl. Rep. 312. The proofs amply support the result reached by the trial judge.

Judgment is affirmed, with costs.


author: Hehee, J.

text:
    FRANK SLAFF, TRADING AS GARFIELD LUMBER COMPANY, PLAINTIFF-RESPONDENT, v. POLISH AMERICAN BUILDING AND LOAN ASSOCIATION, DEFENDANT-APPELLANT.
    Argued January 21, 1936
    Decided July 15, 1936.
    Before Justices Heher and Perskie.
    For the appellant, Patlen & Amliche {Man-field G. Amliche, of counsel).
    For the respondent, Anthony A. Pable {Kdward A. Levy, of counsel).
   The opinion of the court was delivered by

Hehee, J.

Plaintiff sued to recover the price of building materials asserted to have been sold and delivered to the defendant corporation. These goods were used to repair the damage caused by fire to a building owned by one (Jebula, upon which the defendant held a mortgage. Viewed in the light most favorable to plaintiff, the evidence tends to show not a sale of the merchandise to defendant, but an undertaking by the latter to use the avails of the fire insurance policy to liquidate the plaintiff’s claim. There was evidence reasonably indicating that only the surplus, if any, remaining after the satisfaction of all the mortgage arrearages was to be applied to the liquidation of plaintiff’s claim. And there was no proof of such a surplus. If such be the contract, the pleaded cause of action was not sustained by the proofs. It is to be remarked, in passing, that prior to the institution of this action the plaintiff recovered judgment against Cebula in an action in which the defendant here was not joined, predicated upon Cebula’s purchase of this identical merchandise; and he brought this action only after the latter filed a petition in bankruptcy.

But we need not pursue this inquiry. The trial judge erroneously struck out evidence given by the witness, Jession, relative to a purported telephone conversation had with plaintiff. The latter had testified that in a telephone conversation the defendant’s president, Kobylarz, had agreed to assume the obligation in suit. Kobylarz denied that he had had this conversation with plaintiff. He insisted that on the day in question he was not in the defendant’s office, and therefore could not have responded to plaintiff’s call. Jession, on the ether hand, said that it was he who talked with plaintiff, and that he had refused to furnish the requested “guaranty.” Plaintiff testified to only one telephone conversation with Kobylarz; and Jession’s evidence was therefore material on the basic issue.

Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion; costs to abide the event.


author: Per Curiam.

text:
    BERNSTEIN & LOUBET, INCORPORATED, RESPONDENT, v. JAKE MINKIN, PROSECUTOR.
    Submitted May 15, 1936
    Decided September 10, 1936.
    Before Justices Parker, Lloyd and Donges.
    Por the prosecutor, Walter V. Schwartz and Philip J. Schotland.

    Por the respondent, Edward B. McGlynn.

   Per Curiam.

The writ in this case was allowed to determine the validity of an attachment of a lot of tobacco products claimed to have been converted by the defendant to his own use.

Plaintiff in his brief asks to have the writ dismissed as having been issued in violation of a stipulation at the hearing .that if the then pending motion to quash the writ should be denied the defendant would “appear generally and ask for service of a complaint.”

If the defendant enter a general appearance it is a waiver of legality of issuance of the writ, and it will not be quashed. Moore v. Richardson, 65 N. J. L. 531; 47 Atl. Rep. 424, and the case proceeds as though begun by summons. Section 16, Attachment act, Pamph. L. 1901, p. 164; 1 Comp. Stat., p. 140. Here the parties stipulated that if the motion to quash (then pending) be denied the defendant would enter a general appearance, carrying with it of course all its legal implications. The motion was denied and the parties should be compelled to carry out their agreement, made in writing and filed in the cause.

The writ is dismissed, with costs.


author: Donges, J.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM P. WALTER AND WILLIAM J. MARREN, PLAINTIFFS IN ERROR.
    Argued October 6, 1935
    Decided July 18, 1936.
    Before Bkogan, Chief Justice, and Justices Lloyd and Donges.
    Bor the plaintiffs in error, Kenneth J. Dawes and Merritt Lane.

    Bor the defendant in error, Erwin E. Marshall and Leo J. Rogers.

   The opinion of the court was delivered by

Donges, J.

Plaintiffs in error were convicted at Mercer Quarter Sessions of non-feasance in office. Walter was chief of police and Marren was sergeant of police of the city of Trenton. They were jointly indicted for non-feasance in permitting certain disorderly houses and houses where lottery and numbers business was unlawfully carried on to operate. They were also indicted for accepting moneys to permit the operations aforesaid, but the prosecutor elected to stand upon the first count only.

Ninety assignments of error and ninety-three specifications of causes for reversal have been filed. These have been argued under ten heads.

The first point argued is that the court erred in declining to arrest the judgment, because the indictment was defeclive in that, in the first count, it charged each defendant with a separate and distinct offense, and also erred in declining to grant a motion to compel the state to elect against which defendant it would proceed.

This was recently decided adversely to the contention of plaintiffs in error in State v. Preiskel et al., 13 N. J. Mis. R. 736, and, as stated in the brief of plaintiffs in error, that case is controlling here.

Under point II complaint is made of certain questions asked the defendant Walter on cross-examination as to whether or not he had on some occasion refused to permit the assistant prosecutor to see certain records under his control at police headquarters, and questions asked the director of public safety and a clerk at police headquarters concerning the attempt by the prosecutor to get access to the records. It does not appear how the defendants were harmed by these questions. They had to do with a collateral matter that crept into the case, but we fail to see how they could influence the jury in reaching a conclusion on the guilt of the defendants of the charge laid in the indictment. Furthermore, it does not appear that the answers to the questions brought out anything injurious to defendants. Walter’s testimony was to the effect that he had refused the assistant prosecutor access to the records until he consulted his superior, and that thereafter he disclosed some and refused others, in accordance with the instructions received from 'the director, who testified to the same effect. We see no harmful error in this.

Point II-A is directed to certain questions asked the defense witness Sergeant Bentley concerning statements he is alleged to have made, to the assistant prosecutor. The line of examination was permitted for the purpose of testing the witness’ credibility. Most of the questions were answered before any objection was made, and we can see no prejudice to the defendants in view of the answers, which were “no” or “I can’t remember” in most cases.

Point II-B deals with testimony of the witness William Murphy, on rebuttal, with regard to an incident when the defendant Walter was present at a saloon conducted by the witness Harry Eednor. This was competent in view of Walter’s denial that he was acquainted with Eednor.

Point II-C is directed to questions asked the witness George J. Brunn concerning testimony he gave in the grand jury room which was at variance with his direct examination at the trial, and were proper questions to test the credibility of the witness. State v. Silverman, 100 N. J. L. 249; 126 Atl. Rep. 618; State v. Bovino, 89 N. J. L. 586; 99 Atl. Rep. 313.

Point III deals with certain testimony of a witness for the state.

A. The witness Angel Pelletteri was asked “at the beginning of the syndicate who handled the money and paid the expenses?” This witness had testified that he, one Tomes and Harry Eednor, the principal state witness, were associated in the numbers business. Eednor had testified that for a time he handled the money and paid money weekly to the defendants for protection. The answer to the question objected to was that Tomes had handled the money at the beginning of the syndicate. It is difficult to see in what way this question and answer were harmful to the defendants. The trial judge had already indicated that he would not permit testimony of actual transactions of the syndicate in the absence'of the defendants, but testimony from this witness of the general method of operation would seem to be proper in corroboration of Eednor’s testimony. At any rate there was no harm to the defendants in this question.

B. That it was error to permit the following question to the witness Oscar Ungaro, “did you shortly before the time your place was raided and you were arrested for numbers, have any conversation with Angel or Tomes or anyone connected with the syndicate in reference to your taking a ‘knock-off’ for them, or a set-up?”

C. That it was error to refuse do strike the testimony of this witness.

Ungaro was permitted to testify that through an arrangement with the members of the so-called numbers writing syndicate, he stationed himself in his place of business with fictitious numbers slips on his person and submitted to arrest at the hands of a group of police led by the defendant Sergeant Marren. This evidence was admitted subject to its being connected up with the defendants and the motion to strike was on the ground that it had not been, so connected. The trial judge ruled that sufficient connection had been shown in the testimony of the previous witness, Eednor, who testified that Marren came to his home and told him he must submit to a “knock-off” or arrest. Eednor testified, “he told me the other bankers are taking it and I am supposed to take it. He says Tomes took it, then Oscar Ungaro took one, and I says, fno, not to-day/ ” In view of this testimony, we think the motion to strike was properly denied.

The fourth point deals with alleged error in admitting certain testimony of Eednor. It was brought out on the cross-examination of Eednor that at one appearance before a grand jury he had given evidence at variance with his testimony at the present trial. He was then permitted to say that he had been threatened by three armed men at three o’clock in the morning while on his way from his garage to his home and told that if he testified against “the chief” before the grand jury, at his scheduled appearance later in the morning, he would get “bumped off.” We think it was proper to permit him to give an explanation of any variance in his testimony on the two occasions, and that there was no error in admitting these questions.

Point V complains of questions asked the defendant Marren concerning an arrest he made on a numbers charge outside the city of Trenton and questions asked the defense witness Patrolman Brunn, a member of Marren’s numbers squad, concerning alleged arrests and searches without proper warrants. These are claimed to be harmful on the theory that the jury might infer that because defendants used unlawful means to enforce the law on some occasions, they were under a duty to use such means in enforcing the law in the respects in which they are charged in the indictments with nonfeasance. We are of the opinion that the jury could get no such impression as this from this evidence. The court charged the jury that it was the duty of the defendants to use all proper, reasonable and effective means to enforce the law. We find no harmful error in this point.

Point VI brings up a line of questions directed to Chief Walter on cross-examination as to whether or not complaints had been made to him concerning Marren’s activities in the numbers business, accepting money from numbers writers, &c. The complaint is that hearsay evidence was permitted prejudicial to the defendant Marren. However, the trial court repeatedly told the jury that this evidence was not to be considered as affecting the defendant Marren at all. He said, “this line of testimony has no relation to the case of the state against the defendant Marren.” Since the evidence was otherwise admissible, there was no error in this action of the trial court.

Point VII deals with the presence of certain “slips,” which were prepared to resemble those contained in an exhibit, marked D-2 for identification and marked in evidence as Exhibit D-27, and used to discredit the testimony of witnesses who -apparently identified them as part of the exhibit of genuine “slips,” and with the action of the trial court in permitting the assistant prosecutor to testify with respect thereto. We conclude that the defendants were not prejudiced in having a fair trial within their constitutional rights by reason of the matters complained of under this point.

The eighth point alleges that because of the conduct of the assistant prosecutor in the examination of Walter, and with respect to Exhibit D-27, and in other respects, the defendants were prejudiced in having a fair and proper trial and Were deprived of their liberty and property without due process of law within the meaning of the constitution of New Jersey and the fourteenth amendment of the constitution of the United States. A consideration of the entire record persuades us that this point is without merit.

Point IX deals with the refusal of the trial court to charge certain requests to charge, which, in effect, were that a conviction should not be found upon the testimony of accomplices unless corroborated by other testimony than from fellow conspirators. There was no error in declining to charge as requested on this subject. State v. Hyer, 39 N. J. L. 598; 58 Atl. Rep. 107; State v. Simon, 71 N. J. L. 142; State v. Bove, 98 Id. 350; 116 Atl. Rep. 766; affirmed, 98 N. J. L. 576; 119 Atl. Rep. 926.

The last point argued is that the verdict was against the weight of the evidence and was the result of bias, passion and prejudice. A careful consideration of the voluminous record leads us to the conclusion that the evidence amply justified the verdict as to both defendants. The principal state witness Kednor told a complete, reasonable and credible story of the relationship between the defendants and persons in the unlawful numbers business. His story was corroborated from many angles by circumstantial matters and by the testimony of disinterested and reputable citizens. The defendants and many of their witnesses were enmeshed in contradictions and obvious untruths. Without reviewing the proofs in detail, we are of the opinion that the verdict was not against the weight of the evidence.

Upon examination of the record of the whole proceeding, we conclude that it does not appear that upon rulings upon evidence, the charge of the court and the conduct of the trial, the defendants suffered manifest wrong or injury.

The judgment is affirmed.


author: Brennan, C. P. J.

text:
    Essex County Court of Common Pleas.
    VINCENT BORZI, PETITIONER-APPELLANT, v. J. RICH STEERS, RESPONDENT-APPELLEE.
    Decided July 15, 1936.
    For the petitioner-appellant, Sanford M. Kirsch.

    For the respondent-appellant, Gox & Walburg.

   Brennan, C. P. J.

This is an appeal from a finding and determination in favor of the respondent-appellee, had before the workmen’s compensation bureau. The cause before the bureau was on a petition for a finding of increased disability. There are not any of the ordinary questions which frequently arise in cases of this character. It is admitted that the accident which petitioner-appellant suffered originally arose out of and in the course of his employment and that at the hearing an award was made of seven and one-half per cent, of total permanent disability. The only question before the referee at the time of the hearing on February 28th, 1935, was whether or not there had been any increase in disability since January 26th, 1934. There was offered on the whole question, the testimony of the petitioner himself, the testimony of Dr. Ralph H. Sulsberg and the testimony of Dr. James H. Trainor. The testimony of these three witnesses constituted the petitioner’s case. There was offered on the respondent’s behalf, the testimony of Dr. Roy II. Fowler. The oral testimony of these several witnesses constitutes the whole field of proof. It is significant to me to observe that the testimony of Dr. Sulsberg and Dr. Trainor is directed only to the result of their respective examinations a considerable time after the accident. Dr. Sulsberg did not examine the petitioner until April of 1934; three months after the hearing at which seven and one-half per cent, of total permanent disability had been allowed. Dr. Trainor did not examine apparently, until February 26th, 1935, some two days before the hearing on the petition for increased dis-' ability. Dr. Fowler saw the petitioner on the date of his original accident on October 4th, 1932, treated him until his discharge on December 29th, 1932, and saw him again on October 24th, 1934, a few months before the hearing on the petition for increased disability. He was the only physician who was competent to testify as to the condition of the patient as of the time or about the time of the filing of the petition for increased disability as compared with his condition as of the time of the happening of the accident. His testimony was to the effect that there had been no increase in disability over that period. The testimony of Dr. Sulsberg was to the effect that the petitioner was suffering from what he described as a twenty-five per cent, functional loss. The testimony of Dr. Trainor who had examined for the purpose of testifying apparently, was that the petitioner was the victim of a fifteen per cent, functional loss.

It is conceivable, if not likely, that the referee in arriving at his conclusion, chose to adopt the medical viewpoint of Dr. Fowler, who had attended the petitioner at the beginning and he had, of course, such prerogative as a trier of the facts. Unless the judgment or verdict of an inferior tribunal is the product of passion, partialitjr, prejudice or mistake, it should not be set aside and will not be by this tribunal. See Boesch v. Kick, 97 N. J. L. 92; 116 Atl. Rep. 796, and Salgado v. Central Dye Stuff and Chemical Co., 2 N. J. Mis. R. 1039.

The finding and determination of the referee is affirmed. Submit determination in accordance with these views, and in accordance with the rules of this court.


author: John C. Wegnek, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM HOOGEN, PETITIONER, v. RITZ CARLTON HOTEL, RESPONDENT.
    Decided July 8, 1936.
    For the petitioner, Harold Krieger.

    For the respondent, Chester W. Rothfuss.

   * # ❖ ❖ #

In the case sub judie e it is admitted that petitioner met with an accident arising out of and in the course of his employment under date of February 21st, 1935, at which time he sustained a fracture of his right foot.

Subsequently on March 28th, 1935, while journeying to a New York board of health clinic for treatment for an ailment in no way related to the initial accident he again fell sustaining an injury to his left hand.

There appears to be some discrepancy as to the manner in which this later accident occurred.

Petitioner’s testimony at the hearing held on March 10th, 1936, was to the effect that “crutch slipped and heel caught on step.”

The petitioner in a statement to the insurance company on May 29th, 1935, described the accident as follows: “1 was using two crutches. Suddenly one of my crutches slipped back and I fell forward.” In a subsequent statement taken June 4th, 1936, petitioner described the accident as follows: “My left heel caught on the edge of one of the steps and I fell forward.”

Is the petitioner entitled to compensation for this later injury ?

I have carefully considered the briefs of both attorneys and paid particular attention to the cases referred to therein:

In the case of Selak v. Murray Rubber Co., 8 N. J. Mis. R. 838; 152 Atl. Rep. 78, there was a subsequent accident and such accident aggravated the pre-existing condition caused by the original accident.

The case of Lazzio v. Primo Silk, 114 N. J. L. 450; 177 Atl. Rep. 251, accentuates the general rule in New Jersey as to the proximate cause.

In the Chiado v. Newhall Co. Case, 254 N. Y. 534, recovery was allowed on an injury resulting from a subsequent accident. In the ease of Calvin v. Emmon & Whitehead, 216 N. Y. App. Div. 377, where death resulted from an accident due to a fall caused by vertigo and such vertigo is the result of a previous accident, it was held that there was a causal relationship between the original accident which occurred in 1917 and the death as the result of the subsequent accident of 1923. Time in this instance was not an essence.

The general rule from a study of the cases is whether or not there is any independent intervening cause.

Petitioner was, due to original accident, forced to use crutches. His mode of locomotion was hampered unquestionably by the injured member and the use of crutches. His power to overcome obstacles which, to a normal person with free use of all extremities would be easily overcome, was lessened due to his handicap. In this instance whether his heel caught or the crutch slipped I am of the opinion that neither incident would be such an intervening or independent cause as to remove the case from within the jurisdiction of the Workmen’s Compensation act.

I am, therefore, holding case compensable.

Petitioner’s occupation being that of a waiter and the average number of working days in a week for that type of employment being six, which, when computed at the admitted rate of five dollars ($5) per day, entitles the petitioner to compensation based upon the maximum rate of twenty dollars ($20) per week.

It is therefore on this 8th day of July, 1936, adjudged, determined and ordered that judgment be entered in favor of the petitioner, William Hoogen, and against the respondent.

*******

John C. Wegnek, Referee.


text:
    REISS BROTHERS, INCORPORATED, A CORPORATION OF NEW JERSEY, ASSIGNEE OF ALBERT OZIMEK, PLAINTIFF-RESPONDENT, v. PETER GUNNE, DEFENDANT-APPELLANT.
    Argued May 5, 1936
    Decided July 21, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the plaintiff-respondent, Zuclcer & Goldberg (Maurice J. Zuclcer and Leonard E. Goldberg, of counsel).
    Por the' defendant-appellant, Braelow & Tepper.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff and against the defendant. Prom the state of case the following facts appear. The defendant, on November 9th, 1926, sold certain lands which were located in what was then known as Maplewood, New Jersey (which territory was later annexed by the city of Newark), to one Joseph Braelow. In the deed of conveyance a covenant was inserted that the said Gunne, at his expense, within four and one-half months after the title was taken and the purchase price paid by Braelow, would complete the laying of sidewalks, curb the streets, install gas, water and sewer mains, and pave the streets, on which the property fronted, with an eight-inch penetration pavement.

Braelow conveyed to Goldberg on Pebruary 1st, 1927, the deed containing an assignment of the covenant. .Goldberg conveyed to the Altom Eealty Company on December 19th, 1927, which company, on April 26th, 1928, conveyed to Ozimek. The deed from Goldberg to the realty company expressly assigned any rights under the covenant. The assignment of the rights by the realty company to Ozimek was by separate agreement and Ozimek assigned those covenant rights to Eeiss Brothers, Incorporated, on February 20th, 1930, also by separate agreement. Some of the obligations of the covenant to be performed by Gunne were not performed. In the meantime, the city of Newark made these improvements.

Suit was started for the cost of the improvements on June 10th, 1930. The foregoing facts were set out with particularity and it appears in the complaint that when the city of Newark annexed the territory of Maplewood, where the lands had been located, it refused to pave the street with the eight-inch penetration pavement but laid down an asphalt pavement and levied assessments therefor. It is also charged that Gunne failed to install the sewers and an assessment was made for that improvement.

A judgment by default was entered for the lack of answer. This finally was straightened out by an order setting it aside.

In the meantime, there was a substitution of attorneys for the plaintiff and later a substitution of attorneys for the defendant. On November 21st, 1933, a nonsuit was entered for lack of prosecution. This was reopened and on December 18th, 1933, an amended complaint filed. An amended answer followed, wherein it is alleged that the purchase price for the lots in question, which included the cost of these improvements, has not yet been paid by Braelow, the original grantee, to the defendant, and he therefore denied any breach of contract. The reply specifically puts that allegation in issue. On June 21st, 1934, no testimony having yet been taken, we find a memorandum by Judge Porter saying that the case was submitted “without a jury for a decision on the legal questions raised on the pleadings.” The court goes on to say, “the facts do not seem to be disputed.” This is manifestly inaccurate since fact issues were raised on the pleadings. We find no stipulation of the facts. Our consideration therefore must be controlled by the pleadings.

The court says further, “I believe that the contract price paid for the land included the expenditure of the amounts necessary to do the work then uncompleted and provided for in the contract.” But it should be noted that the defendant denies this very fact. The court’s determination, as set out in his memorandum, was embodied in findings of fact and conclusions of law dated June 27th, 1934. In the ninth paragraph thereof the court finds that “the contract price paid for the land included the expenditure of the amounts necessary to do the work then uncompleted and provided for in the contract or deed of conveyance to Joseph C. Braelow.” This conclusion has no basis in evidence that we can find in the case. As a matter of fact, up to this point, the state of case discloses that there was no testimony of any kind whatsoever taken.

On July 13th, we find notice of application for a vacation or modification of the finding of facts, &c., on the ground that the findings are not in accord with the memorandum of the trial judge and on the further ground that the conclusions should not have embodied a determination of any facts other than those that were admitted by the pleadings. Nothing appears to have resulted from this application. On July 19th, 1934, there is a notice of application by the plaintiff for the entry of judgment, and on November 27th, 1934, the trial court signed an order for final judgment. We still can discover no basis for entering judgment.

On December 7th, 1934, a rule to show cause was allowed why the judgment should not be vacated and the case restored to the calendar for trial on the issue of facts. The affidavit in support of the rule to show cause recites that Braelow did not pay the full purchase price of the land and that the cost of the installation of the sidewalks, &c., was retained. No reasons appear in support of the rule and we have no way of finding out upon what particular points the rule was argued and no counter-affidavit appears. On December 13th, 1934, however, the judgment was vacated and it was ordered that the cause of action be placed on the calendar for trial on the disputed fact issue, and further provided that the cause be set down before the trial court without a jury.

Following the state of case, page by page, we next find an affidavit of the defendant which was filed on January 13th, 1936. lie reiterates his sworn statement that Braelow never paid him the cost of making these improvements and says that the judgment should be opened. What judgment is referred to is not clear. We assume he meant the last one. We find five judgments in the state of case. On the same date, however, we find still another show cause order why the judgment should be vacated. The order refers to the judgment of December 16th, 1935, which appears somewhat later in the case. We then find a memorandum of the court of February 17th, 1936, embodying the court’s view on the case. Therein the damage question only is considered. The facts raised by the pleadings are not discussed by the court and on February 19th, 1936, there is an order for final judgment.

The judgment herein must be set aside if Braelow never paid Gunne the cost of these improvements. Gunne would not be answerable in damages unless he received the price o£ the improvements and, if he did not, he was under no obligation to perform. This fact could not have been determined except by competent testimony. There was neither competent nor, in fact, any testimony on this issue. Therefore the court’s conclusion on this point is ineffectual and void.

In defense of the judgment, it is argued on behalf of the respondent that the argument of a rule to show cause, without reservation, forecloses the appellant from reviewing any question on appeal. Ordinarily this is so and this rigid rule of law cannot be thrust aside. But here, apart from the fact that no reasons were filed in support of any of the rules to show cause, our examination of the record convinces us that the rules to show cause were addressed to one phase of the case only, viz., that of damages, and that the defendant below acted upon the assumption, as indeed he was justified in doing, that he would have his day in court on the fact issues which concerned whether or not he was liable at all.

The judgment is reversed, and a venire de novo allowed.


author: Hehek, J.

text:
    FRANCES BUCOSSI AND VICTOR BUCOSSI, PLAINTIFFS-RESPONDENTS, v. PETER MARROCCO, TRADING AS PETER MARROCCO & SON, DEFENDANT-APPELLANT, AND EDDIE MADANA, DEFENDANT.
    Argued January 21, 1936
    Decided July 22, 1936.
    Before Justices Hehek and Pekskie.
    Por the appellant, William V. Rosenlcrans.

    Por the respondents, Sydney Schwartz (Winfield S. Angle-man, of counsel).
   The opinion of the court was delivered by

Hehek, J.

This is an action in tort for negligence. Appellant, Marrocco, an undertaker engaged to conduct a funeral in the city of Paterson on March 10th, 1934, hired an automobile from the defendant, Madana, for the use of mourners who wished to join the funeral procession. On the return trip from the cemetery, Madana, the operator, following a course of his own choosing, lost control of the vehicle on an ice-covered roadway, and, in consequence thereof, the respondent Prances, one of the mourners therein, suffered personal injuries. Her husband, Victor, sued per quod. The jury returned a verdict awarding damages to respondents “against Peter Marrocco & Son,” and of “no cause of action” as to Madana.

The gravamen of the cause of action pleaded against Marrocco was negligence in “hiring an incompetent operator whose ear was not in a safe condition and having the plaintiff Frances Bucossi ride in said car,” while Madana was charged with negligence in “driving his car at a great rate of speed on the wrong side of the street without proper brakes and without having the same under proper control, so that it ran off of the road and struck a tree.”

The issues submitted to the jury, by the instructions, were the alleged negligence of Madana in the operation of the automobile, and Marrocco’s asserted failure “to exercise reasonable care in the selection of a competent contractor, * * * in engaging a man like Eddie Madana to operate this automobile.” This apparently inconsistent verdict cannot therefore be reconciled as a finding of due care by Madana and the use by Marrocco of a vehicle in an “unsafe condition” (one of the pleaded theories of negligence), such condition being unknown to Madana.

However, we need not pursue this inquiry. As pointed out, the gist of the pleaded cause of action in respect of Marrocco was his alleged failure to exercise reasonable care in the selection of a competent contractor, particularly in appointing him for the work in question knowing that the vehicle was “not in a safe condition.” But there was no evidence tending to establish that Marrocco was not a skilled and competent contractor for the work thus assigned to him, or that his automobile was mechanically defective. In fact, proofs were introduced by the defense that the brakes of the automobile, a Cadillac sedan, were in good condition, and that it was otherwise mechanically sound. It results that there was error in the denial of the motions to nonsuit and to direct a verdict.

Judgment reversed, and cause remanded for further proceedings consistent with this opinion; costs to abide the event.


author: Perskie, J.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. JOHN C. HELMS, DEFENDANT.
    Submitted May term, 1936
    Decided July 22, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the state, Thomas O. Tuso, prosecutor of the Pleas of Cumberland county.
    Por the defendant, Waddington & Matthews.

   The opinion of the court was delivered by

Perskie, J.

The defendant was indicted by the Cumberland county grand jury (December term, 1935), for obtaining property by false token and pretense. This indictment charges that on May 20th, 1935, defendant, John C. Helms, “* * * devising and intending to cheat and defraud M. Alice Pancoast of her property, unlawfully, knowingly and designedly, did falsely pretend that he, the said John C. Helms, had money in bank and that he was sending his emplojre to the property of M. Alice Pancoast, to purchase a load of chickens, and that the value thereof would be paid for in cash, and that accordingly the said John C. Helms did send his employe to the property of the said M. Alice Pan-coast, in Upper Deerfield Township, as aforesaid, who the said employe, loaded 230 chickens on the truck of Joseph C. Helms and instead of pajdng for the said chickens in cash, said employe gave to M. Alice Pancoast, a post-dated check for the sum of One Hundred and Forty-nine Dollars and Fifty Cents ($149.50), purported to have been made by the said John C. Helms, and drove away from the premises, notwithstanding the protests of the said M. Alice Pancoast, who was demanding cash in pursuance to the agreement to pay for the said chickens in cash; whereas in truth and in fact he, the said John C. Helms, did not pay the said sum of $149.50 in cash for the said .chickens, nor did he, the said John C. Helms, have $149.50 in Bank at the time of the making of the said check or at the time the said check was presented for payment, as he, the said John C. Helms then and there well knew, by color and means of which said false pretenses he,’ the said John C. Helms unlawfully, knowingly and designedly obtained from M. Alice Pancoast, 230 chickens of the value of $149.50, the property of the said M. Alice Pan-coast, with intent to cheat and defraud the said M. Alice Pancoast, contrary to the form of the statute in such case made and provided against the peace of this State, the government and dignity of the same.”

Attorneys for the defendant moved to quash the indictment. The reasons upon which that motion was based are not made to appear. At all events, the motion was denied. It is now urged that the indictment should be quashed for the reasons, (1) that it does not set forth a crime; (2) that it merely charges an ordinary business transaction, i. e., a mere promise to pay in the future; (3) that it does not set out with particularity the crime of obtaining goods by false pretense so that it is impossible for the defendant to plead thereto; (4) that it so lacks particularity in charging the "factors” of the alleged offense that it is impossible to be properly tried thereon.

Ho intimation is even made that the learned judge below abused his judicial discretion (State v. Riggs, 92 N. J. L. 575; 106 Atl. Rep. 467), or that he acted capriciously. State v. Then, 114 N. J. L. 413; 177 Atl. Rep. 87.

It is, of course, the firmly established law that our courts are always loath to quash an indictment except on the plainest grounds. State v. Johnson, 82 N. J. L. 330; 81 Atl. Rep. 657; State v. Ruffu, 8 N. J. Mis. R. 392; 150 Atl. Rep. 249; State v. Then, 114 N. J. L. (at p. 417) “* * * but defendant will be left to a demurrer, motion in arrest of judgment or writ of error.” Proctor v. State, 55 N. J. L. 472; 26 Atl. Rep. 804; State v. Ruffu, 8 N. J. Mis. R. (at p. 394).

For many years past it has been the practice “to disallow an application for a writ of certiorari to remove an indictment into the Supreme Court for the purpose of moving there to quash it, unless the prosecutor of the Pleas consented to its removal, or unless it appeared upon the face of the indictment that it was clearly defective in substance and a motion to quash had been made in the court of the first instance, which motion teas denied.” State v. Bolitho, 103 N. J. L. 246, 253; 136 Atl. Rep. 164; affirmed, 104 N. J. L. 446; 146 Atl. Rep. 927, and restated in State v. Ruffu, 8 N. J. Mis. R. (at p. 395). (Italics ours.)

The case of State v. Barone, 98 N. J. L. 9; 118 Atl. Rep. 779, so strongly urged for defendant is without application. In that case the question was whether the issuance of a postdated check and the acceptance thereof with knowledge of the fact that defendant “then had no funds in the bank upon which it was drawn” brought the maker thereof within the condemnation of Pamph. L. 1919, ch. 72, p. 133; Cum. Supp. Comp. Stat. 1911-1924, p. 868, § 52-212i And the court in deciding in the negative pointed out: “* * * nor was there even a suggestion in the evidence that the payee had been induced to accept the check by reason of any express representation with relation to it which was made by the defendant.”

We think the indictment is within the language of the statute (Crimes act, section 186, 2 Comp. Stat. (1709-1910), p. 1800); and defendant has failed to make it appear that the indictment, on its face, was clearly defective in substance.

The writ is discharged, with costs.


author: Pee Cueiam.

text:
    NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD COMPANY, PLAINTIFF-APPELLANT, v. TAYLOR FICHTER STEEL CONSTRUCTION COMPANY, INCORPORATED, DEFENDANT-RESPONDENT.
    Submitted May term, 1936
    Decided July 23, 1936.
    Before Beogan, Chief Justice, and Justices Case and Pees rie.
    Por the plaintiff-appellant, Collins & Corbin (Edward A. Marhley and Charles W. Broadhurst, of counsel).
    Por the defendant-respondent, Milton, McNulty & Augelli (John Milton, of counsel).
   Pee Cueiam.

This is an appeal from a judgment of nonsuit in the Hudson County Court of Common Pleas. The plaintiff, in its first count, claimed that the defendant was indebted to it for demurrage charges on steel shipments. In its second count claim was made for unloading charges. A verdict by consent was directed in its favor for the amount claimed in the second count. There was no testimony taken as to the allegations in the first count, the plaintiff relying on certain exhibits which were, by consent, placed in evidence to prove its case, and then rested.

The following facts appear from the exhibits. Defendant was a subcontractor in the performance of certain steel construction work and for that purpose leased some ground space from the appellant, at or near the location where the work was to be done. On January 11th, 1932, the railroad company advised the defendant that the space was available (a lease therefor being then executed) and that the work of unloading the steel by the' railroad company would be undertaken on the basis of thirty cents per ton. Three days later the defendant replied that this letter from the railroad company didn’t fully cover the understanding between the parties and rather pertinently stated, “the charge of thirty cents per ton was agreed would cover all the required unloading, placing in storage, sorting and reloading into trucks of this steel.” Nothing further appears on this phase of the business between the parties. We assume it was done on the basis of the defendant’s letter.

There is also offered in the record a letter from the assistant comptroller of the railroad company, dated January 4th, 1932 (which, it will be noted, is prior to the leasing and unloading negotiations mentioned above) addressed to the defendant, stating, “Your request for demurrage average agreement reached us * * * on Dec. 31. We are attaching two copies of the agreement and a credit application form. Please sign both copies of the agreement.. * * * Agreement should not be considered as in effect until you receive a signed copy of it.” On January 15th, 1932, the assistant comptroller of the railroad company sent another letter to the steel company saying, “we attach for your file a signed copy of average agreement demurrage contract, effective at our West End, N. J. Station, Jan. 1, 1932.” As a matter of fact, the agreement was not signed by the railroad company.

We think that this agreement is ineffectual and has no binding force upon the defendant because it was not signed by the railroad company. Parties to a proposed contract have the undoubted right to require any formality about it that they may see fit. The railroad company expressly advised the defendant that the agreement should not be considered as in effect until the steel company received a signed copy of it. It never received a copy signed by the plaintiff.

We also observe that there is nothing in the exhibits which tend to prove or would support the inference that the defendant owed any charges for demurrage. From the correspondence first mentioned, it would seem that the railroad company undertook the duty, for a consideration, of unloading the steel, placing it in storage, &c. It is not clear how, under these circumstances, there could, in the nature of things, be a demurrage charge against the defendant unless it appeared that the defendant was answerable for the delay in unloading the ears, which would result in demurrage. Certainly the plaintiff couldn’t hold the defendant responsible if it delayed in unloading its cars. Furthermore, while the bill for demurrage was admitted in evidence, the state of case discloses that it was offered simply as a record and was not received as placing any liability upon the defendant, and there was no testimony from which any liability in connection therewith could be charged against the defendant.

The judgment is affirmed, with costs.


author: Brogan, Chief Justice.

text:
    MARGARET A. FAY, PLAINTIFF-APPELLANT, v. HUDSON TRUST COMPANY, EXECUTOR OF THE ESTATE OF ARTHUR VON BRIESEN, DEFENDANT-RESPONDENT.
    Argued May 6, 1936
    Decided July 25, 1936.
    Before Brogan, Chief Justice, and Justices Case and Persicie.
    For the plaintiff-appellant, Aro G. Gabriel (John X. Shamsey, of counsel).
    For the defendant-respondent, Leuly & Moser (George P. Moser, of counsel).
   Brogan, Chief Justice.

This is an appeal from a judgment of nonsuit entered in the Hudson County Court of Common Pleas.

Plaintiff is a graduate registered nurse and had, for four years prior to the death of the decedent, a paralytic, been in attendance upon him. In the beginning of her service she was compensated at a rate which is customary for the kind of service she was rendering, which in this case called for being on hand constantly day and night. Prom January 1st, 1930, until October 1st, 1931, she agreed to serve for $200 a month and was paid at that rate. Thereafter, from October 1st, 1931, and until the decedent died, on March 29th, 1933, she received only $90 a month on account of the monthly salary of $200 a month, the decedent promising to pay the balance as soon as he was financially able to do so. The plaintiff testified, “he continued to pay me $90 a month with the balance to be paid when he sold his home or some cash came in that he expected.”

The learned trial court nonsuited the plaintiff, claiming that she had the burden of proving that the decedent had sufficient funds to pay her and did not do so, and that in the absence of such proof there was a failure of a prima facie case. We do not agree with the construction placed upon the plaintiff’s testimony by the court below. We interpret her testimony as to the agreement made with the decedent as a promise to pay what was due in the future. A promise to pay .when one is financially able, as here, implies a promise to become financially able. We are impelled to this interpretation because any other construction would result in an injustice. Even if the meaning of the agreement were doubtful, which it is not, the law favors a construction of words of this kind as involving a promise to pay rather than as words of condition. It is clear to us that the decedent, whose promise to pay included the statement that he would do so “when he sold his home or when some cash came in that he expected,” bound himself to a duty to bring about that better financial condition within a reasonable time.

Ho question is raised about the manner in which the contract was proved. We have not overlooked the case of Voor hees v. Combs et al., 33 N. J. L. 494. This case is readily distinguished from the case before us. There the claimant sought compensation for “extra” services in an amount in excess of the sum for which she promised to serve. That is not the situation in this case.

The claimant here filed a sworn proof of claim within time. The executor bank rejected it. The estate, obviously, is being administered. If there are funds enough to pay this plaintiff, should she recover a judgment, and to pay other creditors, if any there be, all will be paid. If not, she will have the right to participate proportionately in the assets of the estate.

The judgment is reversed, and a venire de novo awarded.


text:
    MARY McKERIHAN, RELATOR, v. BOARD OF EDUCATION OF WILDWOOD, RESPONDENT.
    Submitted May 5, 1936
    Decided July 27, 1936.
    Before Justices Parker, Lloyd and Donges.
    For the relator, Eugene Blanleenhorn.

    For the respondent, Harry Tenenbaum.

   Per Curiam.

This case is similar in all essential features to that of Walker v. Board of Education, 116 N. J. L. 595, and we reach the same result as in that ease for the reasons expressed therein.

Let mandamus issue for unpaid salary up to, September 11th, 1935. Costs to await further order. Pule discharged in other respects, without costs and without prejudice.


text:
    PHILADELPHIA DAIRY PRODUCTS COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. JACOB ZIMMER, TRADING AS “ZIMMER’S,” DEFENDANT-APPELLEE.
    Submitted January term, 1936
    Decided July 18, 1936.
    Before Justices Hei-iek and Pekskie.
    For the appellant, Abraham B. Klitzman (Joseph M. Turner, of counsel).
    For the appellee, Durand, Ivins é Carton (James D. Carton, Jr., of counsel).
   The opinion of the court was delivered by

Pekskie, J.

This is an appeal by the plaintiff from a jury verdict of no cause of action. The case comes to us on a state of case agreed upon by counsel for the respective parties. Suit was commenced to recover the sum of $279.60 on a book account for merchandise sold and delivered. The defendant filed a set-off in the sum of $280, claiming (a) that he was entitled to a credit of $50, which was the amount which he had paid on account of a certain bond of another corporation—Dairy Operators Company (it is well to mark the fact that the obligor of this bond is not the plaintiff in this action); (b) that plaintiff solicited the defendant’s business and as an inducement to procure the same erected a sign in front of his store, agreeing to pay $5 a month for the electricity used in operating this sign, and the costs of the said sign, so long as the defendant and plaintiff did business together. Defendant alleged that the amount due him under this agreement was $230.

At the trial the defendant waived proof of the amount claimed to be due the plaintiff and proceeded to establish Ids set-off. The defendant himself was the first witness and as to the $230 item testified that Griswold, manager of the zYsbury Park branch of the plaintiff company, had agreed in the name of the company to erect a sign in front of defendant’s store and to bear a portion of the expense for the electricity to the extent of $3 per month. It was established by the defendant, and later admitted by Griswold, that the defendant made out his check for $225, the cost of the sign, and received the amount back in cash from Griswold, as plaintiff company did not want its books to show that it was offering inducements to its customers.

As to the $50 item of the set-off, it appeared that shortly after the plaintiff and defendant began doing business together the same Griswold approached the defendant and advised him that the plaintiff company had given its Asbury Park branch a certain quota of Dairy Operators Company bonds to sell. Defendant testified that Griswold told him he was authorized by the company to agree that any customer who purchased the same would be given credit for the amount paid for said bonds. Defendant subscribed for a $100 bond and in the course of the following three months paid $50 thereon. Hearing rumors of the poor financial condition of the Dairy Operators Company, defendant made no further payments on tire bond and demanded he receive the agreed credit thereon.

Griswold was called as a witness and corroborated the defendant’s story as to the sign except that he did not recall any agreement relative to the payment of $5 per month for electricity. As to the $50 item Griswold was asked to relate certain conversations with the defendant before the agreement to purchase the bond, together with a conversation relative to the credit the defendant would receive in the event the bond vras purchased. Plaintiff objected to this question on the grounds that it violated the parol evidence rule. This objeetion was overruled and exception was taken. The same question had already been answered by the defendant and no objection had been made thereto. Objection was also made to the question asked of Griswold as to whether or not he was authorized to sell the bond by the plaintiff corporation, on the grounds that this could not bind the plaintiff due to the fact that the contract in evidence clearly indicated that Dairy Operators Company, and not the plaintiff was the one with whom the contract was made. Then followed a verdict of no cause of action (the dismissal of a rule to show cause why a new trial should not be granted, and hence this appeal).

Plaintiff’s grounds of appeal are three in number: (1) The jury returned a verdict of “no cause for action” in plaintiff’s case and this is claimed to be error. (2) It was error to ask the witness Griswold whether or not he was authorized to sell the bond by the plaintiff concern. (3) It was error to admit the oral conversations before the agreement to purchase the bond was signed and to relate conversations relative to the credits the defendant would receive.

We are of the opinion that there is no merit to any of the points in the stated grounds of appeal.

First: Although the rule to show cause contained a provision that it should not be a waiver of any grounds of appeal, the challenged propriety of the jury’s finding of no cause for action was raised on the argument on the return of the rule to show cause why a new trial should not be granted. It is res ad judicata, and, therefore, not subject to review by this court. Holden v. Rolff, 110 N. J. L. 499; 166 Atl. Rep. 201; Caterall v. Otis Elevator Co., 103 N. J. L. 381; 135 Atl. Rep. 865; Robins v. Mack International Motor Truck Corp., 113 N. J. L. 377; 174 Atl. Rep. 551; Morris Plan Corporation of New Jersey v. Leschinsky, 113 N. J. L. 414; 174 Atl. Rep. 729; Bauman v. Delaware, Lackawanna and Western Railroad Co., 114 N. J. L. 314; 176 Atl. Rep. 369.

Second: As to the propriety of the question asked Gris-wold concerning his authorization to sell the bond. Objection was made to this question on the ground that this could not be binding on the plaintiff company since the Dairy Operators Company was the sole obligor thereon. It is to be noted that this question does not involve the admissibility or non-admissibility of the declarations of an agent as in Brownfield v. Denton, 72 N. J. L. 235: 61 Atl. Rep. 378; Runk v. Ten Eyck, 24 N. J. L. 756, and Ashmore v. Pennsylvania Towing Co., 38 Id. 13. Eather are we concerned with the admissibility of the evidence to establish agency. The question in dispute could be answered “yes” or “no.” Its sole effect is to establish the fact that Griswold was an agent of the plaintiff company in this transaction. As such given under oath it is clearly admissible. Leonard v. Standard Aero Corporation of New York, 95 Id. 235, 237; 112 Atl. Rep. 252; Reid v. Tansey, 9 N. J. Mis. R. 333, 334; 153 Atl. Rep. 713; Internal Water Heater Co. v. Burns Bros., 114 N. J. L. 368, 374; 176 Atl. Rep. 380.

Third: Plaintiff’s final point is that the trial court fell into error in allowing Griswold to testify as to the conversations held prior to the agreement to purchase the bond and with reference to the credit defendant would get in the event the bond was purchased. Evidence to this effect was already in the record and no objection had been made thereto. Assuming but not so deciding, that the question was objectionable, the error was harmless. Dominiquez v. Markowitz, 12 N. J. Mis. R. 90; 169 Atl. Rep. 514; Nardone v. Public Service Co., 113 N. J. L. 540, 546; 174 Atl. Rep. 745. Nor is this evidence inadmissible under the rule of Naumberg v. Young, 43 N. J. L. 331. The oral evidence here was to show an agreement not between the parties to the contract but between one of the parties and a stranger. It is admissible. Shreve v. Crosby, 72 Id. 491, 502; 63 Atl. Rep. 333; Halliwell v. Trans-States Finance Corp., 98 N. J. L. 133, 136; 118 Atl. Rep. 837; Lifson & Son v. Williams, 10 N. J. Mis. R. 982, 983; 162 Atl. Rep. 129 (First Judicial District Court, Monmouth county). There was no written agreement at all between these two parties. The parol agreement they may have made could be shown.

Judgment is affirmed, with costs.


author: Wolbee, C. C. J.

text:
    Passaic County Circuit Court.
    CLAUDE CAIOLA, PLAINTIFF, v. ISADORE HAMMER AND LOUIS URDANG, DEFENDANTS.
    Decided May 25, 1936.
    For the plaintiff, David Cohn.

    For the defendant Isadore Hammer, Abram I. Blueslein.

    For the defendant Louis Urdang, Abraham I. Feltman.

   Wolbee, C. C. J.

This is a motion by the defendants to strike the complaint upon the ground that it fails to set forth a cause of action.

The complaint alleges that on November 9th, 1933, plaintiff was employed by Paterson Batten and Loom Builders, Incorporated, and was injured as a result of an accident arising out of and in the course of his employment; at that time the defendants were the principal stockholders of that corporation; that on April 35th, 1939, the defendants sold and transferred their shares to one Max E. Binz, and covenanted and warranted as further consideration, “that there is clue and owing by said Paterson Batten and Loom Builders, Incorporated, on open accounts and notes the sum of $5,702.20 * * * and the said parties of the first part [the defendants herein] do covenant and agree that there are no outstanding debts or notes due and owing by the said Paterson Batten and Loom Builders, Incorporated, and they do hereby guarantee and agree to and with the said party of the second part that if there should be any other claims made against said Paterson Batten and Loom Builders, Incorporated, over and above the amount specified in the schedule hereto annexed and marked ‘Schedule A,’ that they, the said parties of the first part will guarantee and agree to pay the same.”

On February 11th, 1931, plaintiff commenced an action against said Paterson Batten and Loom Builders, Incorporated, and on October 28th, 1932, recovered judgment in the Passaic County Circuit Court for the sum of $500; that execution issued and was returned unsatisfied; that plaintiff has spent further sums to satisfy said judgment, but without success; that by reason of the undertaking as aforesaid of the defendants, plaintiff contends that he is a beneficiary thereunder and seeks to recover the amount of his claim reduced to judgment and his further expenses in his effort to satisfy it.

Defendants contend that a proper construction of the contract tends to show that the plaintiff was not a person holding a claim of the type which was intended to be benefited by their undertaking; that plaintiff’s claim was not liquidated at the time of the agreement, and further, that the limit of plaintiff’s recovery, if any, in the amount of his “claim” as reduced to judgment, and not the further costs incurred in attempting to satisfy the same.

1 believe there are two questions involved:

(1) Was the cause of action vested in plaintiff on November 9th, 1923, a “claim” within the contemplation of the parties under a fair interpretation of the contract?

(2) Was the contract between the defendants and Binz made for the benefit of the plaintiff to entitle him to maintain this action?

On April 25th, 1929, the cause of action in the plaintiff (who was an infant at that time, and which fact is obtained from another phase of this case. Caiola v. Aetna Life Insurance Co., 12 N. J. Mis. R. 484, Supreme Court, 1934, per curiam; affirmed E. & A., May 14th, 1936), 116 N. J. L. 381; 184 Atl. Rep. 736, was a right, a chose in action

and was matured and capable of being asserted. I believe that in view of the comprehensive nature of the defendants’ covenant to induce the purchaser of their stock to complete the bargain, together with the particulars asserted to negative the existence of express liens, they intended to indemnify him and would pay to him as well inchoate claims or rights of action. In order to come within the terms of the contract dealing with “any other claims,” a cause of action for injuries caused by negligence was a claim. In this connection it has been held that under the Orphans Court act, requiring creditors and others having “claims” or demands to exhibit the same to the executor or administrator, upon a rule to limit creditors and others, includes a person having a cause of action, either in tort or contract. Hackensack Trust Co. v. VanDenBerg, 92 N. J. L. 412; 97 Atl. Rep. 148, E. & A., 1918; Parker, J. In that case the cause of action was one that arose under the Death act. The ratio decidendi is that the word “claim” includes claims enforceable by suit terminating in a money judgment. This reasoning was followed by Mr. Justice Trenchard in Primmer v. Baldwin, 1 N. J. Mis. R. 95, Supreme Court, 1923, in a suit for damages against the personal representatives of a deceased tori feasor whose estate had already been distributed. The reasoning of Hackensack Trust Co., supra, was followed and applied to the facts.

In Narozniak v. Perdek, 10 N. J. Mis. R. 1000, Supreme Court, 1932, per curiam, it was held that after injury and pajonent of compensation to an employe, and the death of his employer, the employe’s claim required presentation to the estate for audit and recognition, as in any other case of a claim. Tailing in this he was barred, citing Hackensack Trust Co., supra.

I conclude that the cause of action of the plaintiff which arose on November 9th, 1923, and was in existence on April 25th, 1929, was a claim within the meaning of the contract.

It remains to consider whether the plaintiff was one of the class of beneficiaries intended to be included under the contract entered into by the defendants on April 25th, 1929.

Mr. Justice Trenchard, in the case of Standard Gas Power Corp. v. New England Casualty Co., 90 N. J. L. 570; 101 Atl. Rep. 281, E. & A., 1917, referring to Comp. Stat., p. 4059, § 28 (at p. 573), said:

“Now, the statute upon which the plaintiff relies * * *, permitting a third party not privy to a contract, and who has given no consideration, to sue thereon, is limited to those for whose benefit the contract is made and does not extend to third parties who indirectly and incidentally would be advantaged by its performance.”

In that case it was found that the trial judge rightly held that the bond in question was limited to an indemnity of the obligee and was not made for the benefit of persons who furnished materials to the contractor, for whom defendant was surety.

In Chambers v. Philadelphia Pickling Co., 79 N. J. L. 1; 75 Atl. Rep. 159, Supreme Court, 1909 (affirmed, 83 Id. 543, E. & A., 1912, Voorhees, J.), (at p. 2), Chief Justice Gummere stated:

“Under this statutory provision [section 28 of the present Practice act] the sole test of the plaintiff’s right to maintain this action is whether or not the contract set out in the declaration was made for his benefit.”

In Yellow Cab, Inc., v. Bankers Indemnity Insurance Co., 110 N. J. L. 546; 166 Atl. Rep. 186, E. & A., 1933, Donges, J. (at p. 550), the bond sued on by the third person ran to a certain designated obligee “ Tor the use and benefit * * * of creditors and other persons interested in the Eeliance Casualty Insurance Company.’ The plaintiff below was a creditor of that company. Section 28 of the Practice act (Comp. Stat., p. 4059), provides that any person for whose benefit a contract is made may maintain an action thereon in any court. The plaintiff clearly falls within the class for whose benefit the bond was given. Holt v. United Security Life Insurance Co., 76 N. J. L. 585; 72 Atl. Rep. 301.”

T am of the opinion iliat the instant case is controlled by the rule of law laid down in Standard Gas Power Corp. v. New England Casualty Co., supra. A fair interpretation of the contract between the defendants and Binz made on April 25th, 1929, leads me to the conclusion that the contract was for the benefit of Binz and was intended to indemnify him, among other things, against claims like the plaintiff’s, and that the plaintiff falls into the class of those persons who may indirectly and incidentally be advantaged by the performance of the terms of an agreement between other persons. He is not, therefore, a third person beneficiary.

I will therefore grant the motion made on behalf of the defendants to strike plaintiff’s complaint upon the ground that it fails to set forth a cause of action.


text:
    Passaic County Circuit Court.
    ANNA KOPACKA (FORMERLY ANNA JANCI, ALSO KNOWN AS ANNA JOHNSON), PLAINTIFF, v. ROMAN AND GREEK CATHOLIC GYMNASTIC SLOVAK UNION SOKOL, A CORPORATION, DEFENDANT.
    Decided March 31, 1936.
    For the plaintiff, John D. Vasilylc.

    For the defendant, Alexander M. MacLeod.

   Wolbee, C. C. J.

This case was submitted upon a stipulation of facts and tried without a jury. From the stipulation, the following appears:

This is an action brought by Anna Kopaeka against the Eoman and Greek Catholic Gymnastic Slovak Union Sokol to recover upon a benefit certificate which had been issued by the defendant to John Janci (also known as John Johnson), with plaintiff as beneficiary.

The defendant is a mutual benefit society. In 1916 it issued to the above John Janci a certificate providing for a death benefit fund in the sum of $1,000, payable to plaintiff’s wife as beneficiary. The certificate, among other things, provided:

“This certificate, the Charter, Constitution and By-laws of the Union and the Application for Membership, including the statements and answers to the Medical Examiner, signed by the applicant, and all amendments to each thereof shall constitute the contract between the Union and the said member. It is further agreed that copies, certified by the Secretary of the Union, of the application for membership, of the statements and answers to the Medical Examiner, of the Charter, Constitution and By-laws, and of all amendments thereto shall be received as evidence of the terms and conditions thereof and that any changes, additions and amendments to said Charter, Constitution or By-laws duly made or enacted subsequent to the issuance of this Certificate, including those affecting dues and assessments, shall bind said member and his beneficiaries and shall govern and control the contract in all respects as fully and in the same manner as if such changes, additions and amendments had been made prior to, and were in effect at the time of the application for membership.”

In 1927, the by-laws of the defendant were further amended, and it sets forth as follows:

“Ho lapse of time, absence or disappearance of a member, heretofore or hereinafter admitted into the organization, shall entitle the beneficiaries to the death benefit, until sufficient proof of death of such member while in good standing, has been given, except as follows: the disappearance or the long continued absence of a member, shall not be regarded as evidence of his death nor give the beneficiaries the right to recover any benefit accrued by any certificate heretofore or hereinafter issued by the Slovak Catholic Sokol until the expiration of the full term of the member’s expectancy of life, according to the ÍTational Fraternal Congress table of mortality. This provision shall remain in force in every state or country, any statute or statutes of such states or countries notwithstanding. The term “while in good standing” shall signify that the death benefit certificate has not lapsed, or been forfeited and that all payments and duties towards the assembly and the Slovak Catholic Sokol have been fulfilled.”

The by-laws further provide:

“The beneficiary or beneficiaries entitled to the death benefit in accordance with these by-laws, before they may make any claim for such benefit, or before they be entitled to such benefit, shall furnish the supreme assembly, through the office of the assembly of which the deceased was a member, an official certificate of death, issued by the proper authorities, the membership certificate of said deceased member, and the certificate of the assembly of which the deceased was a member, and such further proofs as the supreme assembly may require, by its rules and regulations, for the purpose of identification.”

On February 4th, 1932, after the said John Janci had been absent for more than seven years, and upon proceedings instituted for that purpose, the surrogate of Morris county entered a decree which “ordered, adjudged and decreed that the said John Johnson be presumed to be dead.” Pamph. L. 1927, ch. 275.

It is stipulated that the present action was commenced more than one year after the entry of the decree. But it does appear that plaintiff did present the decree of the surrogate to the defendant society within one year, according to the by-laws, but that it was rejected because not in the form deemed by it to be sufficient to pay under the terms of the by-laws.

The defendant contends that in any event, the decree of presumption of death entered by the surrogate does not comply with the provisions of the by-laws as amended in 1927, and that only proof of actual death will satisfy its requirements.

The plaintiff contends that the by-law adopted in 1927 is not binding upon her because it was enacted after her husband became a member; and further, that the by-law as applicable to him is -unreasonable, void and against the public policy of this state.

I believe there are two questions presented for my determination :

(1) Was the by-law of 1927 providing for the form of proof of death binding upon the plaintiff, as a representative and one claiming under the member; and

(2) What is the validity of the by-law which attempts to alter the rules of evidence; or, as in this case, one that stipulates to dispense with the operation of a presumption raised by law ?

As pointed out, the certificate provides that the defendant reserves to itself the right to amend or alter the by-laws from time to time and as occasion may require. It is well settled that such a reservation of the right to amend is a legal right, providing that such further amendments after the issuance of the certificate, do not materially alter the contract of the member of the society. O’Neill v. Supreme Council, &c., 70 N. J. L. 410; 57 Atl. Rep. 463; Sautter v. Improved Order of Heptasophs, 76 N. J. L. 763; 71 Atl. Rep. 232; Coghlan v. Improved Order of Heptasophs, 86 N. J. L. 41; 91 Atl. Rep. 132; Parks v. Supreme Circle, &c., 83 N. J. Eq. 131; 89 Atl. Rep. 1042.

From what will hereafter appear, I believe that the by-law was reasonable, and binding upon the plaintiff or one under whose rights she claims, even though enacted subsequent to the time he became a member.

I am brought to the consideration of the legality of the by-law. As stated, the plaintiff contends that the by-law stipulating for proof of actual death is contrary to public policy.

It has been declared that public policy is a variable consideration, but the principles to be applied have always remained unchanged and unchangeable, and public policy is only variable in so far as the habits, capacities and opportunities of the public have become more varied and complex. The relations of society become from time to time more complex; statutes defining and declaring public and private rights multiply rapidly, and public policy often changes as the laws change, and therefore new applications of old principles are required. Brooks v. Cooper, 50 N. J. Eq. 761; 26 Atl. Rep. 978.

The power of courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt. Brooks v. Cooper, supra.

The theory upon which it is argued that this by-law, which dispenses with the rule of presumption of death raised by the surrogate’s decree, is void, is that the rule obtains by force of the statute, and has therefore become the public policy of this state, and the contract undertaking to change same is invalid.

This contention is without force or support. In the first place, the statute is designed as a rule of evidence, and may be rebutted. Clarke v. Canfield, 15 N. J. Eq. 119; Armstrong v. Armstrong, 99 Id. 19; 132 Atl. Rep. 237. And further, if it appears that the “decedent” at some time appears, the statute provides that his property must be restored to him. Comp. Stat., p. 1904, § 1.

Our courts have refused specific performance of contracts for the sale of real property where the title rests upon the force of such presumption. Saracino v. Kosower Construction Co., 102 N. J. Eq. 230; 140 Atl. Rep. 458. It is only in cases where no provision is made as to the form of proof of death that the fact of the death from such a presumption will arise and be considered sufficient. Apfelbaum v. Prudential Insurance Co., 12 N. J. Mis. R. 62; 161 Atl. Rep. 501.

Instances of the “resurrection” of persons presumed to be dead by decree of courts are quite often and common.

The question of the legality of bj^-laws similar to the one involved in the case at bar has been passed upon by courts of various jurisdictions.

In the first class, it is generally held that, where the presumption of death from seven years’ absence unheard of finds expression in statutory .enactment, such enactment becomes the public policy of the state, and any contract contravening such policy will not be enforced. Modern Woodmen v. Hurford, 193 Ky. 50; 21 A. L. R. 1340; 235 S. W. Rep. 24; Cobble v. Royal Neighbors, 291 Mo. 125; 21 A. L. R. 1346; 236 S. W. Rep. 306; McCormick v. Woodmen of the World, 57 Cal. App. 568; 207 Pac. Rep. 943; Sovereign Camp, W. W., v. Piper, Texas Civ. App., 222 S. W. Rep. 649; National Union v. Sawyer, 42 App. D. C. 475.

As pointed out, no such policy exists in this state. The statute creates a presumption as evidence, and was the rule at common law long anterior to its expression by the legislature.

In the second class, by-laws doing away with the presumption of death from seven years’ absence, passed after the insured had entered into the contract of insurance, although he undertook to be bound by subsequent by-laws, have been held invalid on the ground that they are unreasonable. This line of authorities has no application to this case, because the provisions of the by-laws agreeing to be bound by subsequently enacted by-iaws, is valid because of what will hereafter appear. Suffice it to say that at the time of its enactment, it was a reasonable amendment and did not materially alter the member’s rights. O’Neill v. Supreme Council, supra. It did change the form of proof of death, but whether the member had his vested right in the particular form required by the defendant remains to be considered. As illustrative of the second class of authorities, see Modern Woodmen v. While, 70 Col. 207; 17 A. L. R. 393; 199 Pac. Rep. 965; Haines v. Modern Woodmen, 189 Ia. 651; 178 N. W. Rep. 1010.

In the third class of cases, it is held that the rule of presumption of death is one of evidence only, that parties have the right by contract to change the rule, and by so doing they do not contravene the public policy of the state. Steen v. Modern Woodmen, 296 Ill. 104; 129 N. E. Rep. 546; 17 A. L. R. 406; Kelly v. Supreme Council, 46 App. Div. 79; 61 N. Y. Supp. 394; McGovern v. Brotherhood of Locomotive Firemen and Enginemen, 31 Ohio C. C. 243;

affirmed by the Supreme Court of Ohio in a memorandum opinion, 85 O. 460; 98 N. E. Rep. 1128; Porter v. Home Friendly Society, 114 Ga. 937; 41 S. E. Rep. 45; Becker v. Interstate Businessmen’s Accident Association (C. C. A.), 265 Fed. Rep. 508 (provision requiring eye witnesses to accidental injury); Mays v. Woodmen of the World, 151 Tenn. 604; 271 S. W. Rep. 34; 40 A. L. R. 1266.

As opposed to the decision of the third class, the plaintiff has cited the case of Gaffney v. Royal Neighbors, 31 Idaho 549; 174 Pac. Rep. 1014, and others. The particular case above cited is criticised by Professor Wigmore as being unsound. Wigm. Ev. 100, § 7-A. Likewise by Professor Williston in Williston on Contracts 3018, § 1725. The language of its holding is not impressive:

“We think the contract is in violation of the spirit of our insurance laws. The effect is to protect the insurer against an occasional fraudulent disappearance, and operates to defeat recovery by the beneficiary of the insured who has met death away from home or under circumstances to render identification of his body or proof of his death impossible. It not only protects the company against fraud but it as well defeats the beneficiary in some cases who is entitled to the benefits of the contract.

“Some members of the court think that the contract is unreasonable and against public policy for this reason, and that this is the better ground upon which to base the invalidity of the provision in question. Others of the court, including the writer, are of opinion, that the stronger and better ground is that it unduly limits and deprives the court of the exercise of its functions to hear any evidence upon the only issue that could be in the ease.”

In our state, I believe the by-law involved may be assimilated to provisions found in contracts of insurance limiting the time within which action must be commenced; provisions in insurance policies providing that subsequent variations must be in writing and endorsed upon the policy, and many other provisions which parties provide for the regulation of litigation and the manner of pursuing rights. As illustrative, a contract waiving a right of appeal has been upheld. Harmina v. Shay, 101 N. J. Eq. 273; 137 Atl. Rep. 558. On the insurance matters above discussed, see Ignazio v. Fire Association of Philadelphia, 98 N. J. L. 602; 121 Atl. Rep. 456; Sullivan v. Maroney, 76 N. J. Eq. 104; 73 Atl. Rep. 842; affirmed, 77 N. J. Eq. 565; 78 Atl. Rep. 150.

An excellent statement of the rule upholding the legality of such by-laws identical with that involved in the case at bar is found in Steen v. Modern Woodmen, supra:

“We think it clear, from a consideration of the by-law and the apparent purpose for which it was passed, that the age fixed at which the expectancy of life is to begin to run is the time of disappearance. The object of the by-law is to establish a rule of evidence in disappearance eases different from the seven years’ absence rule established by the common law. The rule of evidence sought to be established is that, when a member disappears and nothing is heard from him, he is presumed to live out his natural expectancy, and at the end of his natural expectancy he will be presumed to be dead, but not until that time has arrived. This natural expectancy is to be determined according to the National Fraternal Congress Table of Mortality, a table recognized by the insurance departments and the courts of practically every state in the Union. * * *

“At the time this benefit certificate was issued there was a well established rule of evidence in this state that the unexplained absence of a person from home, without having been heard from for seven years by those who would naturally have heard from him if he had been alive, although diligent efforts were made to find him, raised a presumption of death, unless the circumstances of the case were such as to account for his not being heard of, without assuming his death. Whiting v. Nicholl, 46 Ill. 230; 92 Am. Dec. 248; Donovan v. Major, 253 Ill. 179; 97 N. E. Rep. 231. This is an arbitrary presumption, rendered necessary on grounds of public policy, in order that rights depending upon life or death of persons long absent and unheard of may be settled by some certain rule. Jones, in volume 1 of his Commentaries on Evidence, section 61, says: ‘Thayer, in his usual thorough way gives an interesting and instructive account of the presumption, and fixes its application in its present form as of 1805, and that it appeared for the first time in the text-books of 1815 and was speedily followed by other eminent writers, ending in 1876 with Stephen. “Here, then,” says Thayer, “in seventy years we find the rule about a seven years’ absence (1) coming into existence in the form of a judicial declaration about what may or may not fairly be inferred by a jury in the exercise of their logical faculty, the particular period being fixed by reference to two legislative determinations, in specific cases of a like question; (2) passing into the form of an affirmative rule of law requiring that death be assumed under the given circumstances. This is a process of judicial legislation, advancing what is a mere recognition of a legitimate step in legal reasoning to a declaration of the legal effect of certain facts.” ’

“This legal presumption of death from seven years’ unexplained absence arose by analogy under two early English statutes, the one exempting from the penalty of bigamy any person whose husband or wife should be continuously beyond the seas, or should absent himself or herself for the space of seven years together, and the other providing that persons in leases for lives, who shall remain beyond the seas or absent themselves from the realm for more than seven years, shall, in the absence of proof to the contrary, be deemed naturally dead. That the rule in question is merely a rule of evidence is unquestioned. Stevenson v. Montgomery, 263 Ill. 93; 104 N. E. 1075, Ann. Cas. 1915C, 112. It is so treated by all the text-book writers. It was a rule born of necessity, to prevent the prosecution for bigamy of a deserted spouse, on the one hand, and to settle the property affairs of the absentee, on the other hand. It grew up in England at a time when travel was fraught with every danger known to man, and when means of communication were primitive. Since this rule of law was established, the social aspects of our civilization have been almost revolutionized. The improbability that accident, injury, sickness, or death could overtake a member of this society, •without information of the fact reaching his family and friends, is very great. In case of need he scarcely eonld fail to find assistance among the million members of his own fraternity. Hospital, police, burial, and other records are collected and preserved in practically every state in this country, and newspapers are published in every city and village, and, except for the reasons for which the law was originally established, there is now no sound reason for continuing the rule, except that it has existed for so long a time that convenience makes it the best rule to follow, where no other rule is established by statute or by agreement. ‘The contract in question here is insurance on life,’ and the one essential fact necessary to mature this contract is the death of the insured. The burden is on the beneficiary to prove this death. The rule of law which appellant invokes is a rule of evidence, and relates to the manner and quantum of proof necessary to establish death. By the common law rule, a finding of the death of the insured will be sustained on proof of seven years’ continued absence without intelligence of such absent person. Under the by-law in question such proof is not sufficient unless the absence has continued for a period equal to the member’s expectancy of life. There is no vested right in a rule of evidence, and parties may, by contract, change an established rule of evidence, and provide that a different rule shall apply in determining controversies that may arise between the parties to the contract. * * *”

In New Jersey it has likewise been held that no one has a vested right in the rules of evidence, even though a statute excludes certain proof and defeats recovery upon a contract otherwise legal. Kozler v. New York Telephone Co., 93 N. J. L. 279; 108 Atl. Rep. 375. In that case, Mr. Justice Swayze said:

“The question of the power of the legislature to make evidence inadmissible is different from the question so frequently passed upon of the effect of proof of evidential facts as prima facie proof of facts in issue. We do not suppose that the legislature could under the guise or form of a rule of evidence or procedure deprive parties of substantial rights. On the other hand, the legislature certainly has the power to prescribe what proof shall be essential, as, for instance, to comply with the statute of frauds; and it has also power to prescribe what contracts shall be void as against public policy, as, for instance, contracts in restraint of trade, or immoral contracts or contracts conira tonos mores. We see no reason why the legislature may not prescribe rules of evidence; for example, rules regulating the competency of witnesses and excluding them for interest, as at common law, and as we still do in the case of transactions with a decedent, even though the effect may be to prevent enforcement of a legal contract. Clearly, the legislature, in creating a new tribunal, like the Court for the Trial of Juvenile Offenders, may prescribe what record it shall keep or whether it shall keep any record at all, and if it does, what use, if any, shall be permitted of the record. It is equally clear that the legislature may prohibit parol proof of the court’s action. On general principles proof must be by the record. The fact that exclusion of parol proof because proof must be by the record, and exclusion of the record by legislative enactment may result in preventing a party from recovering on a contract because of the impossibility of proof, is no argument against the legislative restrictions. The right to contract is not unlimited. Cases are frequent where contracts are condemned as against public policy, and the legislature as long at least as its condemnation is based on substantial reason and is not merely arbitrary or colorable, may determine what is public policy. We see no reason why the legislature may not enact that it is against public policy to hold over a young person in terrorem, perhaps for life, a conviction for some youthful transgression. If it may pass an act of general amnesty, it may surely pass an act of amnesty as to juvenile offenders. * * *”

It seems that in view of the purpose which the by-law intends to preserve, namely: to prevent the assertion of doubtful claims and to adopt a rule of certainty as against one of uncertainty, and particularly in view of the beneficient purpose to maintain the fund against spurious claims for the profit of: remaining members of such mutual benefit societies, that the provision does not offend any rule of public policy of this state.

In Steen v. Modern Woodmen, supra, the court observed this thought in the following language:

“We think any provision of a contract which tends to prevent unjust and fraudulent claims should be upheld. JXo insurance society could exist on reasonable rates if the face of the straight life policy were to become due at the end of seven years. As applied to life insurance, the common law seven-years-absence rule is without reason, and is based neither on fact nor experience. While the common law rule will be enforced where the parties have not contracted otherwise, we think it not only reasonable, but entirely sound from a business standpoint, that the parties should contract to establish death, in disappearance cases, in accordance with tables scientifically made from experience. This by-law does nothing more than change a rule of evidence. * * *”

The case of Apfelbaum v. Prudential Insurance Co. is to be distinguished from the facts in this case, because there it appeared that the insured had taken out a policy of insurance. He disappeared and proceedings were taken in that case before the surrogate’s court to have him declared dead. Those proceedings culminated in the entry of a decree, as in this ease. In ordinary policies of insurance, the policy does not provide for the particular form of proof of death. As the Supreme Court said in that case that in view of the statute which prescribes the rule of evidence and which is considered as proof of death where such question comes in issue, it had to he observed, and consequently the efforts of the insurance company to prove by the mortality tables that the insured was still likely to be alive, was immaterial and irrevelant. In the case under consideration, the by-laws distinctly provide for a proof of actual death, and it expressly contracts against the effect of the presumption afforded by cur statute. The cases are manifestly distinct.

Under all the circumstances, I am satisfied that the majority rule which upholds the legality of the by-laws which provide for proof of actual death and attempt to dispense with the presumption raised by our statute, is a valid, reasonable provision which parties may stipulate to be binding upon them, and which provision does not offend or contravene the public policy of this state.

I therefore find a verdict in favor of the defendant, no cause of action.