author: Pee Cueiajm:.

text:
    ANTHONY RADZIKOWSKI, PETITIONER-DEFENDANT, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, PROSECUTOR-RESPONDENT.
    Submitted October 6, 1936
    Decided March 5, 1937.
    Before Justices Parker and Lloyd.
    For the prosecutor, Elmer W. Romine.

    For the respondent, Harry Kaplan.

   Pee Cueiajm:.

This writ brings up an order by Deputy Commissioner Stahl of the compensation bureau, dated November 14th, 1935, denying a motion to dismiss a petition for increased compensation on the ground of a prior “final adjudication of the petitioner’s claims” and thereby that the bureau was without jurisdiction to entertain such petition. No question of statutory limitation is raised. The history of the case is that after the accident in April, 1930, there was a voluntary agreement for temporary disability followed by an informal “investigation” and hearing (though the case does not specifically show it) for a commutation of permanent disability of one hundred and sixteen weeks at $20 per week until October 30th, 1933, inclusive, and resulting in a lump sum then presently payable, and paid. Next, in September, 1932, there was a formal petition for adjudication of the whole compensation to which petitioner would be entitled, and on March 9th, 1934, this came to a hearing, testimony was taken, the extent of the injury ascertained on the testimony including that of three physicians, and Deputy Commissioner Corbin made a rule for judgment, adjudging that in addition to temporary disability paid, and twenty-five per cent, permanent disability paid, petitioner was “now entitled to receive as final compensation for the injuries arising out of the accident of April 4th, 1930, an additional fifteen per cent, of total permanent disability or seventy-five weeks at the rate of $20 per week, amounting to the sum of $1,500 which is now accrued, due and payable.” After directing payment of attorney’s and physicians’ fees the rule directs entry of “judgment final” accordingly, and provides “that the entry of said judgment shall be in full payment of all compensation due the petitioner,” &c. This was also paid.

In October, 1935, however, a further petition was filed by a different attorney, reporting the prior payments. The employer moved to dismiss it on the ground “that there has been a full and final determination in this matter, and that the entry of the judgment, according to the determination in said case, was to be a full payment of all compensation due the petitioner by reason of the accident * * * and that for that reason the workmen’s compensation bureau does not have jurisdiction to entertain a further petition for compensation on the part of the petitioner.” Deputy Commissioner Stahl made an order denying this motion and directing that a hearing for increased disability proceed. It is this order which is before us for review.

It is expressly conceded by prosecutor that this is not a ease of “compromise agreement” nor a case of “final closeout agreed to by the parties and submitted to the bureau for approval.” The claim, as we understand it, is that because the bureau at a formal hearing, when entering a formal judgment, included in the rule a clause or clauses that the judgment should be in full payment of all compensation due the petitioner, this in effect is a bar and estoppel to a further petition within the statutory period claiming an increase of disability. We cannot subscribe to this view. Apart from the conditions obtaining in case of settlement by the parties, and approved thereof by the commissioner based on evidence and carried into the judgment record, the finality of a judgment resulting from litigation is determined by the law and not by act of the court pronouncing it. The law in this class of cases is statutory so far as a claim of increased disability is concerned; and it contemplates a further hearing within specified time limits, on a claim of increased disability, where the original judgment is not the result of a settlement approved by the bureau after taking suitable evidence. The subject is fully discussed in the very recent case of Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72, particularly (at pp. 78, 79); 186 Atl. Rep. 821, where other cases are cited. We see no indications of a settlement in the present case, notwithstanding that the rule for judgment was “approved as to form” by the attorneys.

The writ will be dismissed.


source: Caselaw Access Project

author: Oliphant, C. C. J.

license: Public Domain

text:
    EDMUND D. COOK, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. COMMERCIAL CASUALTY INSURANCE COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided May 16, 1936.
    For the plaintiff, Charles DeF. Besore, Thomas Potter and Hervey S. Moore.

    For the defendant, William A. Moore and Howard K. Shaw.

   Oliphant, C. C. J.

This case was tried before the court without a jury upon stipulation by the parties that a trial by jury be waived and the matter heard and determined by the court.

The case was at issue on April 18th, 1927, but the taking of testimony was not completed until February 25th, 1936, and briefs were filed in April, 1936.

It is an action on a bond given by the defendant to secure the performance by one Gallena-Poole Company, Incorporated, of a contract made by that company with the plaintiff for the construction of certain roads and the performance of certain other work at Battle Park, Princeton township, New Jersey. The contract provided that “the said materials, work and labor to be of a value of $5,000 as provided in the proposal thereafter hereto annexed and made a part hereof” and the consideration as set out in the contract was the sum of $5,000 “payment to be made by the cancellation of the promissory note for $5,000 dated March 9th, 1925, made and delivered by the party of the second part hereto to the party of the first part hereto.” It can be seen that by the terms of that contract the plaintiff was obligated if and when the work was completed to discharge a certain indebtedness amounting to $5,000 and owing by said Gallena-Poole Company, Incorporated, to the plaintiff, which indebtedness was evidenced by a promissory note and which was offered in evidence as Exhibit PS.

On the 9th day of March, 1925, the bond in suit was entered into between Gallena-Poole Company, Incorporated, as principal, Commercial Casualty Insurance Company as surety and Edmund D. Cook, Incorporated, its successors or assigns.

The evidence shows that Gallena-Poole Company, Incorporated, never began work under the contract, that it never performed the same, and that it has since become bankrupt and been discharged therefrom.

Plaintiff, after notice to the defendant, caused the work to be done at an expense to it of $4,228.62, and it is to recover these damages alleged to have been suffered by the plaintiff that this suit is brought.

The defendant interposed two affirmative defenses, (1) that because the Gallena-Poole Company, Incorporated, never began or completed performance of the contract and plaintiff never surrendered the note, the consideration of the contract to secure performance of which the bond was given failed, and (2) that subsequent to the making of the contract the parties thereto entered into a new agreement, by which the plaintiff accepted in full settlement and satisfaction of the note in question certain orders upon the board of chosen freeholders of Mercer county and thereby relinquished all of its rights under the contract and the bond thereby became discharged. The orders hereinbefore mentioned were not paid.

The facts as presented at the trial do not bear out the contention of the defendant as contained in its second affirmative defense and I am not impressed by it. The proofs show no new agreement between Gallena-Poole Company, Incorporated, and Edmund D. Cook, Incorporated, which prejudiced the right of this defendant or extended the time of performance by Gallena-Poole Company, Incorporated, whereby the defendant surety would be released and discharged.

As to the defense of failure of consideration, the facts in this were proved but the conclusion that by reason thereof the consideration of the contract failed and the bond was thereby discharged, cannot be sustained. The contract provides that the note shall be canceled after the work is performed. What the evidence actually shows is a mere breach by Gallena-Poole Company, Incorporated, of its contract and what the defendant in effect says is that it should be discharged by reason of a breach of a contract which it guaranteed should not be breached.

That type of “failure of consideration” which is a defense is where the thing expected to be received by one party and given by the other party, cannot be or has not been given without fault of the party contracting to give it. Such a failure of consideration cannot take place except where the contract has been executed by one party or where the execution of the contract was induced by mutual mistake. Where the consideration intended to be given under an executory contract so fails no rights arise for either party but the contract is discharged.

The defense interposed assumes that no rights can accrue to the innocent party from the breach of an executory contract, except the recovery of a consideration already given, since it is predicated on the failure of plaintiff to cancel the note. If this be true, no one could ever recover for the breach of an executory contract.

One of the conditions of the bond on which the defendant was surety was that Gallena-Poole Company, Incorporated, should “well and truly in all things and in good, sufficient and workmanlike manner perform said contract according to the true intent and meaning thereof.”

The true intent and meaning of the contract was that the work should be performed according to the specifications and that it should be paid for by the cancellation of the note. The Cook Company was to pay no money out.

Li order to real ize on that note of Gallena-Poole Company, Incorporated, which it held, and cause its payment, in addition to having the work contracted for performed, the contract was entered into. The true intent and meaning of the contract was to have the note paid by the work. The bond in suit contemplated the whole contract between its principal and the plaintiff. One of the purposes of the contract was to procure the payment of the note and that was an obligation assumed by the surety when it became a party to the bond. If payment by plaintiff for the performance of the contract was to have been made in cash there would be some basis for the argument of the defendant. Had the contract been that plaintiff should pay $5,000 in cash for the performance of the work and that Gallena-Poole Company, Incorporated, in turn should use the $5,000 so paid to it, to pay the $5,000 note held by the plaintiff, it would not have been incumbent upon the plaintiff to have paid Gallena-Poole Company, Incorporated, the $5,000 in cash before it brought suit for failure to perform the contract. Payment was to be made in a specific way which could not be carried out because of the failure of Gallena-Poole Company, Incorporated, to perform. Instead of the work being done and the note being canceled, the plaintiff has had to pay out the money sued for to procure the performance of the work which the principal agreed to do and which the surety guaranteed. Plaintiff still has the note which is nearly worthless, and it presents just the contingency undoubtedly sought to be avoided by the contra (it. The contract was not for the mere surrender of a piece of paper, but for the payment of an obligation evidenced by that piece of paper. The plaintiff has suffered damage to the extent of $4,228.62 by its payment of that amount, which loss would not have been sustained and the payment would not have had to be made if Gallena-Poole Company, Incorporated, had performed. This loss the defendant by the terms of the bond, agreed to bear. One of the benefits to be secured by the bond was the payment of the note. The plaintiff is entitled to be placed in the position it would have been in if the contract had been fulfilled. The defendant is entitled to the note, which the proof showed was worth $138.95, and for which amount credit should be allowed.

The plaintiff procured the work to be done for less than the amount specified in the contract.

It is admitted and proved by the evidence that there was a complete breach of the contract by Gallena-Poole Company, Incorporated, and the case resolves itself into a question as to what the measure of damages should be.

Of course, if the true measure of damages is the difference between what the contract stated the work was valued at and the amount that the plaintiff actually paid to have it done, there would be no recovery, possibly six cents, but that is not the true measure of damages. If it were, it would contravent the true intent and meaning of the contract. The true measure of damages is the actual loss sustained by the plaintiff by reason of the non-performance by Gallena-Poole Company, .Incorporated, the principal on the bond, thereby precluding the plaintiff from cancelling the note of Gallena-Poole Company, Incorporated, which it held. Those damages are to be determined from the difference between the value to the plaintiff of the performance of the contract as evidenced by the cost to the plaintiff of causing said work to be done and the sum or value which plaintiff would have been compelled to pay had Gallena-Poole Company, Incorporated, performed said contract. The cost to the plaintiff of causing said work determined from the difference between the value to the plaintiff would have been compelled to pay had Gallena-Poole Company, Incorporated, performed said contract is nothing but the cancellation of the note hereinbefore referred to, the full value of which plaintiff had already paid.

The plaintiff is entitled to damages in the sum of $4,228.62, less the value of the note amounting to $138.95, making a sum of $4,089.67, with interest thereon from July 22d, 1927, the date upon which demand was made upon the defendant, a total sum of $6,250.74, and a judgment may be entered accordingly.


author: Oliphant, S. C. C.

text:
    LOUISE FITZ RANDOLPH, PLAINTIFF, v. KARNO SMITH COMPANY, INCORPORATED, DEFENDANT.
    Decided October 7, 1936.
    For the plaintiff, James J. McGoogan.

    For the defendant, Katzenbach, Gildea, & Rudner (George Gildea).
   Oliphant, S. C. C.

This matter is before me, sitting as a Supreme Court commissioner, on a motion to strike the complaint on the ground that it fails to set forth a cause of action against the defendant. Among the reasons set forth are the following:

1. The facts alleged in said complaint, if true, would not entitle the plaintiff to judgment against the defendant.

2. A contractor who constructs a building upon the land of another is not liable to third persons for injuries received because of the manner in which such building is constructed.

3. The defendant owed no duty to the plaintiff to prevent the occurrence of the accident alleged in the complaint.

The question presented is — can an invitee on private property invited thereon by the owner, injured by a structural defect or faulty construction of a structure on that property maintain an action against the constructor of that nuisance, if it be such ?

Karno Smith Company, Incorporated, the defendant, was a contractor employed by Trinity Cathedral at Trenton in the Diocese of Kew Jersey, an association for religious purposes, to erect a crypt on land of the cathedral. The complaint alleges that the defendant completed its contract on or about January 20th, 1936.

The plaintiff complains that on January 8th, 1936, while she was a member of the congregation of the cathedral, she attended services in the crypt and that on leaving it, while passing through a door she fell from a step to the footwalk leading from the crypt to the public street.

The complaint is in two counts, the first charging negligence and the second charging the defendant with the construction of a nuisance.

It is admitted by the plaintiff that the first count, that charging negligence cannot stand, so that our decision is confined to that count charging a nuisance.

It will be seen that this action is against the contractor, not the owner of the premises. The line of demarcation between negligence and the construction and/or maintenance of a private nuisance is very slight and difficult of definition. Blackstone says, “anything that worketh hurt, inconvenience or damage” is a nuisance (3 Bl. 216), hut defines a private nuisance as “anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.” Joyce, in his work on Nuisance, page 18, defines a private nuisance as follows:

“A use made by one of his own property which works an irreparable injury to another’s property, or which deprives his neighbor of the reasonable and comfortable enjoyment and use of his property, or which violates the unwritten but accepted law of decency, or which endanger or render insecure the life and health of his neighbor, is a nuisance. So every enjoyment by one of his own property which conflicts with the rights of another in an essential degree is a nuisance. Another definition is: A private nuisance is ‘where one so uses his property as to damage another’s or disturb his quiet enjoyment of it.’ A nuisance is also defined as a ‘tort.’ It is ‘the use of one’s own property which involves injury to the property, or other right, or interest of the neighborhood.’ So where anything is constructed on a person’s premises, which of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, it is a nuisance.”

The nuisance here complained of was not on or contiguous to a public street. The plaintiff was an invitee on the cathedral property. The construction of the step was not a nuisance per se, it could only be made a nuisance by use. Its use was brought about by the invitation of the cathedral, not the defendant. The situation here differs greatly from street and highway cases where the public has a right without invitation to use the street or highway, and cases dealing with such situations are not pertinent here.

It cannot be denied that an owner of property can erect himself or hire a contractor to build on his own lands any kind of a structure, however faultily or improperly constructed. As an illustration, he can have his stairways built without railings or guards if he so desires. That is not the construction of a nuisance for which the contractor can be held liable. The owner might be liable for the maintenance of that nuisance but it is the use the steps are put to by reason of the invitation of the owner that creates the nuisance.

The erection of the step here complained of was not the proximate cause of the injury to the plaintiff. The proximate cause was the invitation by the cathedral to use that step. The doctrine of proximate cause applies equally to cases founded in negligence and in nuisance and in Styles v. F. R. Long Co., 70 N. J. L. 301; 57 Atl. Rep. 448, Mr. Justice Swayze, speaking for the Court of Errors and Appeals, said:

“It is, 1 think, safe to say that there is no right of action where .the duty of another person to exercise care intervenes between the neglect of the defendant and the injury of the plaintiff. * * *
“In a case where the duty to the plaintiff rests, in the first instance, upon some one not the defendant, and the plaintiff is injured by a failure to perform that duty, the proximate cause of the injury is the failure of the one who is under a duty immediately to the plaintiff. The failure of one whose duty is primarily to the third person, but not to the plaintiff, may, indeed, be a cause of the injury, but it is a remote, not a proximate, cause. * * *
“The plaintiff in the present case relies upon the invitation to use the bridge. That there was such an invitation to the public cannot be questioned, but it was the invitation of the county authorities, upon whom rested the duty to provide the bridge, who alone had authority to maintain such a structure.”

The plaintiff relies in part on the doctrine that “a person who creates a nuisance, whether on his land or not, is liable to others for the damages they sustain by reason of his wrongful act” (Ackerman v. Ellis, 81 N. J. L. 3), and “an action for damages may be brought against the original erector or the continuer of the nuisance.” Beavers v. Trimmer, 25 Id. 97, and Garvey v. Public Service Co., 115 Id. 380; 179 Atl. Rep. 33. Those are broad statements of the rules but do not pertain to a situation such as presented here.

There is a dearth of cases dealing with facts paralleling the present case. My research has disclosed none in this state; few outside this jurisdiction. It may well be said the cause of this is that the doctrine contended for has never been thought well founded.

If actions such as the present could lie the liability of a contractor would never cease, and the doctrines of negligence and contributory negligence would be curtailed and perhaps eliminated where buildings, walks, roads and other articles or structures are defective and out of repair because dangerous to those approaching them. If the contention of counsel for the plaintiff is correct, all such actions would be founded on nuisance and a contractor while constructing or after he has completed his contract would be for all purposes an insurer of all persons coming on or near the work, even strangers to him rightfully upon the premises.

The best discussions of the problem are .found in Kilts v. Board of Sup’rs of Kent County et al., 127 N. W. Rep. 821 (at p. 822), and Upp v. Darner, 25 Am. & Eng. Ann. Cas. 574 (at p. 576).

In the former opinion it was said “we are of the opinion that a nuisance involves, not only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same, and that the doctrine should be confined to such cases.” In the latter it was said “it is difficult at times to distinguish between actions of nuisance and actions bottomed on negligence; but in either case there must be a breach of some duty on the part of the defendant before an action will lie against him. Thus one is under no duty to keep his premises in a safe condition for the visits of trespassers. But, if he expressly or by impiication invites others to come upon his premises, it is his duty to be reasonably sure that he is not inviting them into a place of danger and to this end he must exercise ordinary care and prudence to render the place reasonably safe for the visiting.”

In the instant case, the defendant gave no invitation and had no control, as to users, over the crypt. The invitation to use was by the cathedral and any duty owed to the plaintiff was on the part of the cathedral. The plaintiff was a stranger to the contractor, the defendant. On the theory of counsel for the plaintiff the contractor would be forever liable and would subject every person who had anything to do with the authorizing, planning or erecting of this step to liability for the injury to the plaintiff.

It is, of course, unfortunate from the plaintiff’s standpoint that she cannot bring suit against the owner of the property, but that cannot concern us and this complaint failing to state a cause of action against the defendant for the reasons herein-before set forth, the motion will be granted and the complaint stricken.


text:
    JOHN RYBASACK, WHO SUES FOR HIMSELF AS WELL AS FOR THE STATE OF NEW JERSEY, PLAINTIFF, v. THE TRAVELERS INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Decided February 4, 1937.
    For the plaintiff, William Harris.

    For the defendant, Lindabury, Depue & Faulks.

   Oliphant, C. C. J.

This matter is before me, sitting as a Supreme Court commissioner, on a motion to strike the complaint on the grounds that it is in part sham, in part frivolous and that it does not state a good cause of action against .the defendant.

The suit instituted by the plaintiff is a common informer’s action in which the plaintiff claims damages under and by virtue of sections 1 and 2 of chapter 168 of the laws of 1895 (2 Comp. Stai., p. 2876, § 117), as amended by chapter 167 of the laws of 1927. Supp. Comp. Stat. 1925-1930, p. 867, § 99-121. Section 1 reads as follows:

“No life insurance company doing business in this state shall make or permit any distinction or discrimination in favor of individuals between the insured of the same class and equal expectation of life * *

Section 2 of chapter 168 of the laws of 1895, supra, is in part- as follows:

“Any person or corporation violating any of the provisions of the preceding section of this act shall, for each and every offense, forfeit and pay the sum of one hundred dollars for every twenty-five hundred dollars of insurance or fraction thereof effected by the said policy contract of insurance; such penalty to be sued for and recovered with costs in an action of debt in any court of competent jurisdiction in the county where the offense shall have been committed, or in any county wherein such offender may reside or be served with process, by any person who shall sue for the same; one-half of such penalty shall be for the benefit of the person prosecuting the suit, and the other half shall be paid to the state treasurer for the benefit of the school fund of the state.”

The plaintiff alleges that in April, 1936, the James Butler Grocery Company entered into an insurance contract with the defendant company for the purpose of obtaining group insurance for certain grocery store owners and their employes, some of which stores were owned by the James Butler Grocery Company, others not; that no employer and employe relationship existed between the owners of some of the stores and others engaged in and about some of the stores covered by the contract of insurance; that the premium charged for the life insurance to the store owners and others is less than the premium charged to individuals who obtained similar life insurance protection without the benefit of the contract which exists between the James Butler Grocery Company and the Travelers Insurance Company, and that the rates are less than regular manual rates filed. He then charges that by reason of the foregoing, the defendant company has violated the provisions of the statute heretofore quoted in that all the assureds under the contract between it and the James Butler Grocery Company have received distinction or discrimination and special favor or advantage expressly forbidden by statute.

The affidavits show that some of the members of the group of assureds are residents of New Jersey and further, that the defendant company is not domiciled here but is licensed to do business in this state.

The contract of insurance between the defendant and the James Butler Grocery Company was executed in the State of New York. Payment of premiums and loss, if any, was to be made in the State of Connecticut.

There can be no question but that the State of New Jersey cannot interfere with a contract of insurance made outside the state; and that a contract valid in the state wherein made is valid everywhere. The state cannot by its statutes control or impair transactions which are extra-territorial. Allgeyer v. Louisiana, 165 U. S. 578; Palmetto Fire Insurance Co. v. Beha, 13 Fed. Rep. (2d) 500.

The problem presented in this case is the construction of the words “doing business in this state” as contained in section 1, chapter 168, Pamph. L. 1895, as amended by chapter 167, Pamph. L. 1927, supra.

Defendant contends that the statute prohibits any life insurance company which does business in this state from having discriminatory rates anywhere and says that tl^e purpose of the legislation was to insure the financial stability of life insurance companies and to protect the public so that in buying life insurance, one person would not be preferred over another. How can it be said that if a life insurance company charges higher rates in other states or countries it can affect a company doing business here ?

The statute does not concern the power of the commissioner of banking and insurance to authorize a license or to revoke the license of an insurance company to do business in this state for financial instability or for making discriminatory rates.

It is a penal statute and must be strictly construed.

I am not persuaded by the arguments on behalf of the plaintiff or the cases cited in support thereof. A clear reading of the statute leads to the conclusion that what the legislature meant by “doing business in this state” was the making of contracts in this state. Otherwise it would have said “no company shall be allowed to do business in this state unless its rates are the same the world over and no matter where the contract is made.” What the legislature sought to do was to prevent in contracts for life insurance entered into in this state a discrimination or distinction. There is no doubt of the power of the state to prohibit foreign insurance companies from doing business within its limits. As a condition of admission, the state can impose such conditions as it pleases upon the doing of any business by those companies within Us borders, and unless the conditions be complied with, the prohibition may be absolute. Allgeyer v. Louisiana, supra.

In Palmetto Fire Insurance Co. v. Beha, supra, the question presented was, “if the Palmetto Pire Insurance Company in the transaction of its business within the State of New York does not violate the laws of New York, can its license to do business within the state be revoked because of the manner in which it conducts its business in some third state in which its business is validly conducted?” The court answered the question in the negative and said in part, “this state cannot forbid contracts of insurance relating to risks within its limits from being made between a citizen and a corporation in another state” and applied this principle even though the company complained of in that case had a license to do business in New York.

The case of State v. Lancashire Fire Insurance Co., 66 Ark. 467, is very pertinent to the case sub judice. That was an action by the state against a foreign insurance company in which the state claimed a penalty of $500. The statute which the state claimed had been violated in part read as follows: “Any corporation organized under the laws of this state or any other state or country, and transacting or conducting any kind of business in this state * * * who shall create or enter into or become a party to any pool agreement, contract, combination, association or confederation to fix or limit the price or premiums to be paid for insuring property against loss or damage by fire, shall be deemed and adjudged guilty of a conspiracy to defraud and be subject to the penal-Y'kd by this act.” The attorney-general contended -jaranee company, while a member of a trust or .nation to fix rates in any portion of the world, could do business in Arkansas without becoming liable to the penalty provided by the statute. The court said the question presented was “whether a foreign corporation, doing a fire insurance business in this state, subjects itself to a penalty by entering into an agreement with other insurance companies for the purpose of fixing rates of insurance in foreign countries, when such an agreement is neither made in this state, nor intended in any way to affect the prices or premiums to be paid for insuring property in this state.”

In part answering that question, the court said: “In determining the meaning of this statute, we must keep in mind certain well known rules of construction, based on reason, and so well settled that members of the legislature must be supposed to have been familiar with them, in framing the law. One of these rules is that the legislature is presumed to intend that its statutes shall not apply to acts or contracts done or effected beyond the limits of the state, and having no reference to or effect upon persons or property in this state * * *. For this reason, although the legislature may use general words in describing the persons or acts to which the statute applies, still it does not follow that the law has an extra-territorial effect; for it is presumed that the legislature did not intend it to have such an effect unless the language of the statute admits of no other construction. Bond v. Jay, 7 Branch 350.” Further the court said: “It is unusual for a legislature to intend that its statutes shall apply over the whole world. * * * It is so unusual for a legislature to intend that its acts shall have such world-wide effect that courts are never justified in putting such construction ■upon them, if their language admits of any other reasonable construction.”

If the argument and construction placed upon the statute by counsel for the plaintiff is followed and applied it would lead to absurd lengths. The defendant company probably carries on business throughout the world. Can it be that a different, lower if you will, rate for a life insurance contract cannot be made in London, Shanghai or Calcutta than here, even though the company does do business here, without subjecting that company to a penalty? Can it be that a resident of New Jersey cannot go to New York or Paris and make a contract for life insurance at a lower rate than he could obtain for the same policy in New Jersey without subjecting the company to a penalty?

In construing a penalty statute concerning the writing of fire insurance policies, wherein the words “legally authorized to do business in this state” were used, the Court of Appeals of Texas in Smelker v. Scott, 288 S. W. Rep. 801, said: “It is plain, we think, that compensation paid in another state by a non-resident corporation to a non-resident agent under a contract made outside of Texas is not within the subject-matter of the statute’s inhibitive words.

“If the statutes did contain grant of authority for the order, it seems to us they would operate extra-territorially and thus plainly in violation of the fourteenth amendment. Fidelity and Deposit Company of Maryland v. Tafera, 270 U. S. 426 * * *. "We cannot attribute to the legislature the purpose to do an unconstitutional thing in the absence of terms employed by it evidencing that intent.”

In People, ex rel. v. Van Amringe, 266 N. Y. 277, in a case involving group insurance, the Court of Appeals said: “In construing a section of the penal law, it is settled law that a state cannot forbid contracts of insurance relating to risks within its limits from being made between a citizen and a corporation in another state.” Allgeyer v. Louisiana, supra,; Aetna Life Insurance Co. v. Dunken, 266 U. S. 389; New York Life Insurance Co. v. Dodge, 246 Id. 357.

It is my conclusion that the statute does not apply to contracts of life insurance made and entered into outside of this state. That the words used in the statute “doing business in this state” mean the writing of business or the making of contracts in this state and that the legislature did not intend to punish acts done without its limits even though a person covered or affected thereby might be a resident of New Jersey.

The motion to strike the complaint will be granted, and an order in conformance with this view may be presented.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES O. WOOD, PETITIONER, v. MARKET-ARLINGTON COMPANY, INCORPORATED, BRANFORD-ARLINGTON GARAGE AND THOMAS COLEMAN, RESPONDENTS.
    Decided February 19, 1937.
    For the petitioner, Charles Becker.

    For the respondents, Francis A. Kenneally.

   ❖ $ ^ ❖ * # ❖ It appears from the undisputed evidence that James O. Wood, hereinafter referred to as petitioner, met with an accident on January 7th, 1936, at the Branford and Arlington Garage, which was owned and operated hy the Market-Arlington Company, Incorporated. The accident occurred while he was changing a tire on the automobile of a customer who had just made purchase of gasoline, and upon using a lift jack which was faulty and defective, the ratchet slipped, causing the handle to strike petitioner forcibly against his chest, throwing him backward and injuring his head and left leg. Petitioner was taken by ambulance to St. Barnabas Hospital where he was confined as a patient for three weeks, and thereafter was treated as an out-patient at the clinic until July, 1936.

The point of controversy is as to petitioner’s status at the time of the accident; that is, whether he was in the employ of the Market-Arlington Companji-, Incorporated, or Thomas Oolrman.

Tin- facts developed in the evidence along this line indicate that during the month of December, 1935, finding it impracticable to do repair work itself and maintain its own repair department, the Market-Arlington Company, Incorporated, entered into a contract with one, Thomas Coleman, an expert auto mechanic, by the terms of: which Coleman was to operate this department, furnishing his own equipment, parts and labor on forty per cent.-sixty per cent, basis. There seems to be no question but that Coleman conducted the same as his own independent business, having expended large sums of'money in furnishing the repair department with necessary tools and equipment, and at times employing mechanics to assist him. It appears that during the latter part of December, 1935, petitioner was hired in a dual capacity, that is, as an extra car washer and garageman’s helper by the Market-Arlington Company, Incorporated, and as a mechanic’s helper by Coleman. He received wages of $2 per day when he worked as extra man for the former, and wages based on a percentage of each job when working for the latter. It so happened that on the day of the accident, petitioner had worked all day for Coleman on a certain auto repair job. He had finished his day’s work and was awaiting the arrival of the customer on whose car repairs had been made to collect the charges; and it was while he was standing idly by that Harry H. Chezzi, employe of the Market-Arlington Company and in charge of the gasoline pumps, instructed him to change a tire on a car which had just been serviced with gasoline and oil. The accident which is the subject-matter of the present proceeding occurred while the petitioner was in the act of changing the tire. Dispensing gasoline from its gasoline service station situated immediately in front of its garage was part of the business operations of the Market-Arlington Company and not that of Coleman, and it may be inferred that inflating and changing tires of customers from time to time were incidents reasonably connected with this type of business. The question then arises, was the petitioner at the time of the accident a mere volunteer, or was he acting within the scope of his employment with the Market-Arlington Company in performing an act in furtherance of its interest? Clearly the latter.

The subject of dual employment is not covered by any specific provision in the New Jersey act. There appears to be no decisions touching on the subject in this state. The few decisions of other jurisdictions are not entirely in accord; some of the cases holding the several employers jointly liable, while others hold the employer, for whom the work was being performed at the time of the accident, individually liable. Of the two rulings, I believe the latter to be the more forceful, and the one which I am inclined to adopt. And so in the instant ease, the particular work being performed by the petitioner at the time of the accident was that of the Market-Arlington Company, and was not in any sense the work of Coleman. Accordingly, liability attaches to the Market-Arlington Company, alone.

“The relation of employer and employe may be simultaneously sustained between several employers and the same employe. Where this situation exists, the employers have, in several cases, been held jointly liable for compensation to an employe injured while on the property of, or doing work for, one of them, at least where there was a joint hiring, or where the employe was injured while performing a duty for the common benefit of all the employers; and it has been held, further, that where there is a relation of co-employers, the liability is joint and not several. On the other hand, there is authority holding, on the ground that the burden should be placed upon the particular industry in which the employe was working when injured, that only the employer in whose place of business, or in doing whose work, the employe was injured should be held liable for compensation, and not one for whom the work in which the employe was injured was not being done, nor the employers jointly, at least in the absence of a joint agreement between the employers or of a joint employment or control by them, and that the mere fact that each of two employers knows that the employe is performing a service for the other does not create a joint employment.” Corp. Jur., 71 C. J. 401, 402.

I find therefore as a fact that at the time of the accident petitioner was in the employ of the Market-Arlington Company, that the accident arose out of and in the course of said employment, and that it is immaterial that no remuneration was to be made to him for the precise service which he was rendering at the time.

* * * * * * *

John J. Stahl,

Deputy Commissioner.


author: Pee. Curiam.

text:
    ALPINE MASONIC TEMPLE ASSOCIATION, A CORPORATION OF NEW JERSEY, PROSECUTOR, v. STATE BOARD OF TAX APPEALS, BERGEN COUNTY BOARD OF TAXATION AND BOROUGH OF CLOSTER, RESPONDENTS.
    Argued January 20, 1937
    Decided March 16, 1937.
    Before Justices Parker, Lloyd and Donges.
    Por the prosecutor, Judson B. Salisbury.

    For the respondents,
   Pee. Curiam.

We concur in the general view taken by the state board in this case, that the property in question is not within the exemptions ailowed in the act of 1931. The particular claim in this case seems to be covered by our opinion in Trustees of Bergen County Odd Fellows Association v. Hackensack, 118 N. J. L. 1.

As to the fraternal lodge cases cited in the brief, the case of Trenton v. Masonic Temple Association, as reported in 8 N. J. Mis. R. 778; 151 Atl. Rep. 753, did intimate that a building owned by a masonic lodge and used in lodge work was exempt; but this was obiter dictum, and was expressly reserved on appeal. 108 N. J. Law 419; 158 Atl. Rep. 395. Tiie opinion of Newark v. Slate Board of Tax Appeals, &c., 9 N. J. Mis. R. 599; 155 Atl. Rep. 9, states no facts on which the decision is predicated. In the case of Grand Lodge, Sons of Italy v. Blum, 10 N. J. Mis. R. 758; 160 Atl. Rep. 881, the property was exclusively used as an orphan asylum. The Y. M. C. A. and Y. W. C. A. eases clearly exhibit a charitable use.

By two statutes in Pamph. L. 1936 ch. 46, p. 129; N. J. Stat. Annual 1936, § 208-66d(217), and Pamph. L. 1936, ch. 158, p. 370; N. J. Stat. Annual 1936, § 208-66d(217), the legislature has exempted property of fraternal organizations not used for profit, as also that of Young Men’s Christian Associations, &c.: but those acts are not applicable to prior cases.

The reversal of local exemption by the county board may have been irregular, but we do not pass on the point as the matter was heard on the general merits before the state board and again in this court.

The writ is dismissed.


author: Per Curiam.

text:
    JULIUS KRUMGOLD AND DAVID BERK, PLAINTIFFS, v. CAMEO THEATRES, INCORPORATED, OR BENJAMIN BERKOWITZ AND BENJAMIN S. GORLEY, IN THE ALTERNATIVE, DEFENDANTS.
    Submitted January 19, 1937
    Decided March 23, 1937.
    Before Justices Trenchard, Bodine and Heher.
    For the defendants, Gross & Gross (Benjamin Gross, of counsel).
    For the plaintiffs, Levenson, Comen & Levenson (Abe D. Levenson, of counsel).
   Per Curiam.

The defendants seek a change of venue. The action is a transitory one brought for brokerage commissions. The venue is laid in Bergen county, where the defendant Berkowitz, a resident of New York, has an office. The registered office of the corporate defendant is in Jersey City, Hudson county, New Jersey, where the other individual defendant resides. It is not clear on the record before us where the cause of action arose.

Section 202 of the Practice act (1903), chapter 247, page 590 (3 Comp. Stat., p. 4113) provides as follows:

"An action merely transitory shall at the discretion of the court be tried in the county in which the cause of action arose, or the plaintiff or defendant reside at the time of instituting such action, or if the defendant be a non-resident, in the county in which process was served upon him.”

Since the venue may be laid in the county in which the non-resident was served, and since the counties of Bergen and Hudson are adjoining and no inconvenience appears from the record, the rule should be discharged. Such will be the order.


text:
    PASSAIC METAL PRODUCTS COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. O’BRIEN BROS. SLATE COMPANY, INCORPORATED, A FOREIGN CORPORATION, DEFENDANT-APPELLEE.
    Submitted January 19, 1937
    Decided March 23, 1937.
    Before Justices Trenchakd, Bodine and Heher.
    For the plaintiff-appellant, William N. Gurtman.

    For the defendant-appellee, Sher & Sher (Sydney Sher, of counsel).
   Per Curiam.

The plaintiff appeals from a judgment in favor of the defendant. On November 11th, 1935, defendant agreed to sell to the plaintiff slate, shipments to be made when notified. The purchase was for resale to the PWA authorities. The plaintiff was unable to make resale and the defendant’s agent was requested to assist plaintiff in making the sale. He tried, but was unable to accomplish anything because of the hopelessness of the situation. Thereafter, the defendant twice wrote to the plaintiff asking advice as to when it might expect shipping orders. Hearing nothing further from the plaintiff, it resold the squares after the plaintiff’s agent had, by conversation of January 28th, 1936, advised it that it was unable to go through with the order but would try and get defendant another order to make up for it. The market price having advanced in May, the plaintiff requested immediate delivery. The defendant refusing, the plaintiff purchased in the open market and sued for the balance. The judgment must be affirmed. The proofs clearly indicate a mutual cancellation of the contract as found by the trial court.

The judgment will be affirmed, with costs.


text:
    JEANETTE BODNAR, PLAINTIFF-APPELLEE, v. THE BOARD OF HEALTH OF THE BOROUGH OF CARTERET, DEFENDANT-APPELLANT.
    Submitted January 19, 1937
    Decided March 23, 1937.
    Before Justices Trenchard, Bodine and Heher.
    Por the defendant-appellant, Nathaniel Jacoby.

    Por the plaintiff-appellee, John E. Toolan.

   Per Curiam.

The plaintiff, a nurse, employed by the board of health of the borough of Carteret, was illegally discharged January 9th, 1936. Bodnar v. Board of Health, 14 N. J. Mis. R. 318; 184 Atl. Rep. 632; affirmed, 189 Atl. Rep. 95; 117 N. J. L. 527.

The present action was brought after the decision of the Supreme Court and before the affirmance by the Court of Errors and Appeals, to recover the salary due the plaintiff for the months of January, February, March and April, 1936. The trial court refused to stay the action until the determination of the cause in the Court of Errors and Appeals.

The statute applicable to the plaintiff’s situation is as follows: “Whenever any municipal officer or employe has been or shall be illegally dismissed from such office or employment, and the said dismissal has been or shall be set aside as illegal by a court of competent jurisdiction, such officer or employe shall be entitled to recover the salary of such office or employment for the period covered by such illegal dismissal.” Pamph L. 1918, ch. 139, p. 322, as amended, Pamph. L. 1919, ch. 149, p. 323; Cum. Supp. Comp. Stat. 1911-1924, p. 2137, § *136-1320B(1). The * dismissal of plaintiff having been set aside by the Supreme Court, an action for the salary fixed for the plaintiff’s employment was well founded.

Appellant complains because the trial court refused a stay pending the determination of the invalidity of the dismissal in the Court of Errors and Appeals. The granting of a stay of a law action is usually a matter vested in the sound discretion of the trial court. The Court of Errors and Appeals having now determined that the plaintiff was unlawfully deprived of her office, we need not consider whether there should have been a stay, and the judgment below is affirmed, with costs.


text:
    IRA W. BOYCE, PLAINTIFF-APPELLEE, v. ANTHONY MILLER, DEFENDANT-APPELLANT.
    Submitted January 19, 1937
    Decided March 23, 1937.

      Before Justices Trenchard, Bodine and Heher.
    For the defendant-appellant, Joseph M. Turner.

    For the plaintiff-appellee, Gilbert H. VanNote.

   Per Curiam.

The defendant appeals from a judgment in the sum of $402.64. The action was brought to recover one cent a gallon on all gasoline sold by the defendant between July 1st, 1935, and February 29th, 1936. The plaintiff, for a number of years, had conducted a general store and gasoline station at the corner of Eoosevelt avenue and Monmouth road in the township of Ocean, Monmouth county, New Jersey. In April, 1933, he entered into negotiations with the defendant for the leasing of the real estate, the sale of the stock and good-will of the store business and the transfer of such rights as he had in the sale of Tidewater oil products. The lease was executed, as well as a bill of sale for the merchandise on hand. The defendant obtained the right to sell Tidewater oil products and remitted to the plaintiff until July 1st, 1935, the sum of one cent per gallon on the gasoline sold by him, making a total of $1,200. This last circumstance clearly demonstrated his complete understanding of the contract in suit as proved by the plaintiff’s testimony.

There was a valid consideration for the agreement by the defendant to pay one cent per gallon on the gasoline sold, whether the transaction be viewed as an entirety or three separate undertakings. The plaintiff had fully performed his part for he had put the defendant in possession of the store premises and had successfully exerted his best efforts to obtain for the defendant the right to sell Tidewater products in the same manner as he had sold them.

It is urged that the agreement to pay the one cent per gallon on gasoline sales comes within the prohibition of section 5 of paragraph 5 of the statute of frauds and perjuries (2 Comp. Stal., p. 2612), not being evidenced by writing and not being an agreement to be performed within one year from the making thereof. Contracts not to be performed within ohe year may be taken out of the statute through an entire performance by one of the parties thereto. In the case of Berry v. Dor emus, 30 N. J. L. 399, an action was brought on a contract, whereby in consideration of the sale of a house by one Mead, the defendant had promised Mead that he would pay to the plaintiff’s intestate the sum of $100 a year during her lifetime. The court said: “The ground of demanding a nonsuit was because the agreement was void under the statute of frauds, as it was not reduced to writing, and was an agreement not to be performed within a year. But here the contract on the part of Mead was actually and entirely performed, at the very time of making it. His deed was actually executed and delivered, and the defendant went immediately into possession under it, and always has been, and still is in possession of the premises under it, and always has, and still does receive the rents of the same under it. He now seeks to keep the land under the deed, and repudiate the consideration money by force of the statute of frauds. But the statute of frauds applies to no such case. It only applies to eases where neither side is to perform the contract within one year. At least it does not apply to cases where one of the parties is to perform, and does in fact perform immediately.”

In this case, the plaintiff had fully performed his agreement and all that remained for the defendant to do was to carry out his agreement which was clearly shown, if no other facts had been proven, because of his own conduct in making payments of the. stipulated sum up until the time when some dispute arose between the parties concerning an entirely different matter.

The judgment is affirmed, with costs.


author: Pee Odtuiam.

text:
    ROBERT JOHNSTON, BANKERS TITLE AND MORTGAGE GUARANTY COMPANY, AND WESTFIELD REALTY ASSOCIATES, INCORPORATED, PETITIONERS, v. THE BOARD OF ADJUSTMENT AND THE TOWN COUNCIL OF WESTFIELD, NEW JERSEY, RESPONDENTS.
    Argued January 19, 1937
    Decided March 23, 1937.
    Before Justices Trenchard, Bodine and Heher.
    For the petitioners, Earl A. Merrill.

    For the respondents, Paul Q. Oliver.

   Pee Odtuiam.

This is an application for a declaratory judgment. We have nothing before us in the way of a state of the ease except an unverified petition signed only by counsel of the petitioners. There is no evidence before us, no stipulation as to facts, and no exhibits.

The petition sets forth that the three petitioners are severally the owners of land and premises located in “A” residence district, as is said to be defined in a zoning ordinance of the town of Westfield. That ordinance is not laid before us in all of its parts, but extracts from it are recited in the petition.

The petition in effect avers that such ordinance in substance limits the use of the buildings and premises of the several petitioners (as well as all others situate in “A” residence district) to “not over one family or for one housekeeping unit.”

The petition prays that this court declare petitioners “rights with respect to the ‘use’ thereof under the ‘zoning ordinance’ of the town of Westfield, to the end that the most profitable ‘use’ may be made thereof consistent with the terms of said ordinance.”

The petitioners say in effect that the regulations imposed by the zoning ordinance with respect to “use” is not an “exercise of the police power” and it is argued that the limited use provided for in the ordinance violates both “the state and federal constitutions.”

What we have said suggests that perhaps there are several reasons why this application as presented must be denied, but certainly there is one reason which is insurmountable, and that is that the attorney-general of the state has not been served with a copy of the proceeding in order that he may be heard. The petition was filed in supposed conformity with chapter 140 of laws of 1924 (Cum. Supp. Comp. Stat. 1911-1924, p. 2835, § 163-361); but immediately it will be noticed that the petitioners have certainly failed to comply in the respect indicated, with section 11 of that statute, which reads:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard.”

How it nowhere appears that the attorney-general has been served with a copy of the proceeding, although it is quite apparent that the power of the municipality to pass the ordinance is challenged, because it is contended that its exercise was outside of police power and was unconstitutional.

In such circumstances we are precluded by the express provision of the statute from according to the petitioners any relief. So to hold puts this case in accord with In re Van Syckle, 15 N. J. Mis. R. 145; 188 Atl. Rep. 915.

The application accordingly will be denied.


author: Pee Ctjbiam.

text:
    F. ELMER NIEBUHR, PLAINTIFF-APPELLEE, v. OTTO SASSADECK, DEFENDANT-APPELLANT.
    Argued January 19, 1937
    Decided March 23, 1937.
    Before Justices Trencharb, Bodine and Heher.
    Por the defendant-appellant, Gaetano M. Belfatto.

    Por the plaintiff-appellee, Salvatore Muti.

   Pee Ctjbiam.

The defendant below appeals from a judgment for the plaintiff entered by the trial judge sitting without a jury.

The action was brought by the plaintiff, an attorney-at-law, to recover the sum alleged to be due on a certain agreement in writing whereby the defendant engaged the plaintiff as his attorney to prosecute or adjust a claim for damages arising out of an automobile accident and agreed therein to pay the plaintiff one-third of any verdict or settlement.

The plaintiff in his state of demand expressly waived any amount over and above the sum of $500.

The state of the case discloses that the parties being unable to agree upon the state of the case, they applied to the trial judge to settle it, and the case as so settled requires an examination of the propriety of the denial of the motion to nonsuit.

Now it seems clear that the motion was properly denied. The motion was rested upon grounds now to be considered: First, because no itemized bill for services had been served by plaintiff on the defendant. We think no itemized bill was necessary, since the suit was brought upon written contract in which the compensation was fixed and for which a bill was rendered. The second reason for nonsuit stated was delay by plaintiff in beginning suit on defendant’s claim. This is disposed of by the findings of the judge. He found, among other things “that the agreement above referred to was entered into between plaintiff and defendant, and that same was enforceable and binding upon defendant, having, in no way taken any unfair or improper advantage of defendant. In fact no such claim was made by defendant at the trial;” that “plaintiff, in pursuance of his duties under said contract, communicated with the insurance company insuring the person charged with negligence causing defendant’s injuries, saw the doctors who were treating defendant for the claimed injuries and obtained statements from them, saw the said insurance company’s adjuster, having three or four conferences, one of which was in New York City, and examined the injured hospital records;” that “plaintiff obtained from said insurance company, an offer to settle defendant’s said claim for $2,000 which offer was communicated to and accepted by defendant. Before consummating said settlement and within a day or two after defendant agreed to accept said offer, plaintiff was discharged by the defendant without any justifiable legal cause and that the said discharge constituted a breach, prevented plaintiff from receiving his attorney’s fee of one-third of the sum for which defendant had agreed to settle his claim and amounting to the sum of $666.66;” that “the delay, if any, in starting said suit was caused by the pendency of settlement negotiations.” The third ground alleged for nonsuit was that “defendant had not received any money or made any settlement of his said claim.” But as we have pointed out the trial judge found that plain-tilt' obtained an offer of settlement of $2,000 which offer was communicated to and accepted by the defendant, and that within a day or two thereafter he discharged the plaintiff without justifiable or legal cause. If thereafter the defendant received no money (with respect to which matter the record is silent) that was no concern of the plaintiff after he had been discharged. The fourth ground is “that the amount of plaintiff’s claim was in excess of five hundred dollars.” But we have pointed out that the excess was expressly waived. The fifth ground for nonsuit was that “plaintiff’s said suit should have been on a quantum meruitThe answer to this is that it was certainly open to the plaintiff to treat the contract as continuing, although broken by the defendant, and sue for damages for its breach (6 O. J. 724) and this the plaintiff elected to do and did.

Upon the whole we find that the motion for nonsuit was properly denied.

The defendant argues that the court erred in denying a motion for adjournment after the decision had been announced. But, at most, that matter rested in the discretion of the judge, and, certainly here there was no abuse of discretion.

He argues that the state of demand did not disclose a cause of action. We think that it certainly did.

He further seems to argue that some of the findings of facts were not justified by evidence. But the rule is that facts found by the trial judge are presumed to rest upon competent proof, and will be accepted by the reviewing court, whore, as here, nothing appears to the contrary.

The judgment will be affirmed, with costs.


author: Lawrence, S. C. C.

text:
    MINNIE COHEN, PLAINTIFF, v. THE TOWN OF MORRISTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE BOARD OF EDUCATION OF THE TOWN OF MORRISTOWN, IN THE COUNTY OF MORRIS AND STATE OF NEW JERSEY, A BODY CORPORATE; INDIVIDUALLY, JOINTLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Decided March 22, 1937.
    For the defendant town of Morristown, Nathaniel C. Toms.

    For the defendant board of education, King & Vogt (Robert H. Schenck).

    For the plaintiff, Morris Cohen.

   Lawrence, S. C. C.

Defendants, separately, move to strike the complaint filed in this suit on the ground that it does not state a cause of action against either of them, involving as it does a municipality and a public corporate body.

The factual narrative in the complaint appears to be that on August 28th, 1934, the town of Morristown was the owner of certain property adjoining Mills street, known as Lacej' Field and used as a part of the town’s park system, which field is adjacent to Memorial Field, the property of the defendant board of education; that the only method of ingress and egress to and from Lacey Field from Mills street at the time was by means of a certain culvert, bridge or walk; that in order to enter Memorial Field from Mills street it was necessary to first enter Lacey Field by walking over the culvert, bridge or walk; that the latter was constructed by the park department of the town, or its agents, servants and employes, in order to cover an open drain or stream running from the easterly side of Mills street bridge to the playground known as Lacey Field; that in constructing the culvert, bridge or walk, it was the duty of the town to provide adequate guard rails or barriers at the end of the cnlvert, bridge or walk in order to protect persons lawfully using the premises, and to provide adequate and sufficient lighting facilities for such use after dark, especially at such times as public affairs or events were being conducted by the town for the amusement, entertainment or benefit of its citizens and residents.

In constructing the culvert or bridge, it is alleged, the town failed to erect or provide adequate guard rails or barriers at the end thereof or proper lighting facilities, thereby perpetrating an act of wrong-doing on its part detrimental to plaintiff, with the result that on the evening of the day stated, while walking from Mills street over the culvert or bridge in question in order to get to Lacey Field and to cross to Memorial Field, where a pnblic spectacle and concert was being held by the town, or nnder its direction by its servants or employes, she fell from the edge of the cnlvert or bridge into the stream running thereunder and was injured. It is further alleged that the culvert or bridge was and had been since its construction openly, notoriously and commonly nsed by the townspeople as an entrance to Lacey and Memorial Fields from Mills street, and was intended when constructed to be so used. The foregoing is in snbstance taken from the first count in the complaint.

A second count charges that it was not the duty of the town to erect the culvert or bridge as a part of its strict governmental function, but in doing so, it performed a private function from which it gained a special benefit or advantage; nevertheless, in exercising this private function, it was its duty to observe due diligence and care in the construction of the culvert or bridge and failed to do so in not providing adequate guard rails or barriers or proper lighting facilities, with the result that plaintiff in lawfully using it in the nighttime fell into the stream running thereunder and was injured.

A third count alleges that the two public fields were under the joint control as to use of the defendants and that the manner in which the culvert or bridge had been constructed without the protection, of guard rails or barriers or adequate lighting facilities constituted a public nuisance, for the continuance of which, resulting in the injury to plaintiff, both became legally responsible.

Defendants in moving to strike invoke the well known rule that, in the absence- of statute, a municipal corporation or a public body such as a board of education of a school district, to which has been delegated by law the performance of governmental or public duties, cannot be held liable at the suit of an individual for negligence in the performance of such duties, the negligence so involved being a public wrong for which an indictment lies. This rule is undoubtedly applicable to the third count in the complaint, since it charges no active wrong-doing on the part of the defendants, the exception to the general rule as to non-liability, but rests on the alleged maintaining of a public nuisance. This count should be stricken. Pertinent authorities will be found cited in Allas v. Borough of Rumson, 115 N. J. L. 593; 181 Atl. Rep. 175; Hammond v. Monmouth County, 117 N. J. L. 11; 186 Atl. Rep. 452, and in Liming v. Holman, 10 N. J. Mis. R. 582; 160 Atl. Rep. 32.

As to the second count, it is not clear what is really intended to be charged, but the effort is apparently to bring it within the rule indicated in Olesiewicz v. City of Camden, 100 N. J. L. 336; 126 Atl. Rep. 317, where the municipality, in pursuance of private contract, was using some of its road machinery in doing work for another not of a public nature. Not only are insufficient facts stated in this count, but the construction of the culvert or bridge by the defendant town, without proper guards, barriers or lights, has no analogy to the factual circumstances found to be present in the cited case. This count states no legal cause of action and should, therefore, be struck out.

The first count, however, does state a cause of action against the town of Morristown within the rule followed in Allas v. Borough of Rumson, supra, and Hammond v. Monmouth County, supra, unless the facts alleged come within the provisions of chapter 460 of the session laws of 1933 (page 1550) (N. J. Stat. Annual 1934, § *136-1829B), which declares that no county, municipality or school district shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding. This act was held not applicable to road culverts in Hammond v. Monmouth County, supra, for the reason that the title limited it to public grounds or buildings. Incidentally, it may be said in passing that the statement attached to the bill as introduced in the legislature was that “the design of the above act is to clarify the existing law as to the non-liability of counties, municipalities and school districts when public grounds or building (sic) are used and individuals are injured in such use.”

Whether the culvert or bridge in question was constructed on the public ground called Lacey Meld or connecting with Mills street and as a part of it, or within its limits as a public thoroughfare, will be the subject of proof at the trial of the suit. It is sufficient to say at the moment in disposing of the present motion that pro form,a count one of the complaint does state a cause of action as to the defendant town of Morristown and should not be stricken. The motion will accordingly be denied as to this count and granted as to numbers two and three.


author: Brennan, C. C. J.

text:
    Essex County Court of Common Pleas.
    STEPHEN PRIBY, PETITIONER-APPELLEE, v. WALTER D. LEE, RESPONDENT-APPELLANT, AND GUS APPLE-QUEST.
    Decided November 6, 1936.
    Eor the petitioner-appellee, Emanuel Pfeifer.

    For the respondent-appellant, Walter A. Beers.

   Brennan, C. C. J.

This matter is before the court on appeal from a finding and determination had by the deputy commissioner of workmen’s compensation, in favor of the petitioner-appellee. The appeal is based on the proposition that learned deputy commissioner was in error in awarding compensation against both the owner and the contractor.

An examination of the testimony and a reading of the briefs on behalf of the parties in interest, draws me to the conclusion that the learned deputy commissioner fell into error in awarding compensation against both the contractor and the owner.

The pertinent facts are that the respondent-appellant, Walter D. Lee, owned a parcel of land on Meadowbrook road, Short Hills, New Jersey, upon which he erected two buildings for the purpose of selling them, and to carry out this intent he entered into several separate contracts with various contractors, for plumbing, heating, mason work, carpenter work, &c. He did none of the work himself and hired no help in the erection of these buildings. He made a written contract with the respondent, G-us Applequest, for the carpenter work on the buildings. Petitioner was employed by Applequest, and was injured in the course of his employment and for this injury compensation ran not only against Applequest as employer, but also against the owner, Lee. The learned deputy commissioner grounded the award as against the owner-appellant, upon the proposition that he was a contractor within the legal intendment of the statute; being chapter 128 oí Pamph. L. 1924, p. 245; Cum. Supp. Comp. Stat. 1911-1924, p. 3898, § **236-72. This, award was made in spite of the pronouncement of Mr. Justice Brogan, in Mittan v. O’Rourke, 115 N. J. L. 177, and the learned deputy commissioner in the process, sought to distinguish that case from the instant case, extracting some authority for his viewpoint from a pronouncement which Mr. Justice Brogan made obiter, in the course of his decision of the Mittan case, supra. In stating his reasons generally, in the Mittan case, Mr. Justice Brogan observed that "Wilson was not in the business of building houses, but had contracted with several mechanics to have a completed house erected” * * *. The inference sought to be drawn from this observation as I gather it, is that if Wilson had been engaged in the business of building houses, the judgment of the court might be otherwise. In law or logic, I am not able to adopt this viewpoint, nor do I gather that it was the intention of the Supreme Court so to hold. The pertinent part of the statute the subject-matter of consideration, follows: “Any contractor placing work with a subcontractor, shall, in the event of the subcontractor’s failing to carry workmen’s compensation instance as required by this act, become liable for any compensation which may be due an employe or the dependents of a deceased employe of said subcontractor.” In a narrow sense, a contractor is any person who contracts with another. Its meaning judicially, in a case of this kind or analogous cases, is, I think, settled by the Mittan case. A subcontractor is defined in Bouv. Diet. (Rawle’s 3d Rev.) 3163, as “one who had entered into a contract, express or implied, for the performance of an act with a person who has already contracted for its performance,” citing Lester v. Houston, 8 S. E. Rep. 366.

It seems to me that definite analogy might well be drawn from mechanics’ lien statutes as well, to establish the meaning of the words “contractor” or “subcontractor.” In 40 G. J. 132, a contractor is described as follows: “contractor, or principal contractor, or original contractor, within the .meaning of such statutes, is a person who contracts directly with the owner of the property to erect or construct a building or other structure or improvement or any main division or part thereof.” * * * The person constructing a house on his own account, or for sale, is always described in such statutes, as the builder and owner. Such, in my judgment, was Lee, in the instant case. Applequest was the contractor, Priby was the employe of Applequest, and it is my conviction and I so hold, that Lee was not a contractor within the meaning of chapter 128, Pamph. L. 1924; Cum. Supp. Comp, Stat. 1911-1924, p. 3898, § **236-72. The obvious result of this conclusion is that the determination in so far as it affects Lee, must be set aside. The finding and determination in so far as it asserts liability against Applequest, the contractor, will hold. The determination here may be submitted in accordance with these views, embracing the amount of compensation and other expenses to be paid by the contractor to the employe, as well as all the other items of expense and such counsel fees as may be awarded upon the submission of the determination.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH GERBER, PETITIONER, v. SAMUEL SHERMAN AND ARROW CONSTRUCTION COMPANY, RESPONDENTS.
    Decided February 23, 1937.
    For the petitioner, Schotland & Schotland.

    For the respondent Arrow Construction Company, George A. Meredith.

    For the respondent Samuel Sherman, Samuel Sherman, pro se.

   # # H* tH ^ # Upon the conclusion of the trial on January 19th, 1937, counsel by stipulation agreed to submit short memoranda in lieu of oral argument, which memoranda have been filed with me and their contents carefully examined.

From the evidence there appears to be no dispute that the petitioner was regularly employed by Samuel Sherman as a bricklayer, receiving wages at the rate of $40 per week; that on June 19th, 1936, while he was engaged in laying bricks upon a dwelling house then under construction at 832 South Eleventh street in the city of Newark, he met with an accident arising out of and in the course of his employment, when he fell from the scaffold on which he was working, striking his head and shoulder as he landed on the ground several feet below; that he was taken immediately thereafter to the Beth Israel Hospital by ambulance where upon admission he was still unconscious; that he remained a patient at the said hospital for a period of seven weeks under the care of Dr. Louis Byck for the following injuries: concussion of the brain with hemorrhage, multiple fractures of the skull, extensive ecchymosis and protrusion of the right eye, and contusions of the right shoulder; that following his discharge from Beth Israel Hospital petitioner was treated by Dr. Byck and is still under his care; that he has been wholly incapacitated from work up to the present time; that as a result of his injuries he now suffers from permanent disability to a considerable degree; and that his employer, Samuel Sherman, obtained due notice of the said injuries within the time fixed by paragraph 15 of the act, having been present when the accident occurred. It also appears from the undisputed evidence that the Arrow Construction Company, a corporation duly organized-under the laws of the State of New Jersey, was engaged in the business of building dwelling houses for speculation and sale; that on or about May 1st, 1936, it purchased a building lot at 832 South Eleventh street, in Newark, and shortly thereafter began building operations in the construction of a dwelling house thereon for the purpose of selling same either before or after completion; that the company did none of the actual work itself but entered into several separate contracts with various contractors, for excavating, mason work, plumbing, carpenter work and electrical work; and that on or about May 15th, 1936, after the excavation work had been finished, the company entered into a written contract with Samuel Sherman for the masonry work for the fixed price of $875, all material, however, to be furnished by the company. Pursuant to the terms of the contract, Sherman began work on May 20th, 1936, with his several employes and on J une 9th, 1936, he hired the petitioner to do the brick-veneering work, who worked steadily until the day of the accident. It also appears that on or about June 5th, 1936, the company entered into an agreement with one, Buth Dorman, for the sale of the premises subject to the existing specifications and contracts, title to same actually passing on August 25th, 1936. The evidence further discloses that at the time of the said accident Samuel Sherman was without workmen’s compensation insurance coverage in violation of the Employers’ Liability Insurance act, chapter 118, laws of 1917 (Cum. Supp. Comp. Stat. 1911-1924, pp. 3896 at seq.j §§ **236-68 set seq.), and amendments.

Although there is no question but that the respondent Samuel Sherman is primarily liable to the petitioner under the act, the main point in controversy is whether or not there is similar liability under the statute to hold the respondent Arrow Construction Company. Bestated in a clearer and more concise manner, the issue is simply this: Was the Arrow Construction Company a "contractor” within the meaning of chapter 128, laws of 1928, so as to create the relationship of contractor and subcontractor between Samuel Sherman and itself? The pertinent part of the statute, the subject-matter under consideration, reads as follows: “Any contractor placing work with a subcontractor, shall, in the event of the subcontractor’s failing to carry workmen’s compensation insurance as required by this act, become liable for any compensation which may be due an employe or the dependents of a deceased employe of said subcontractor.”

In Mittan v. O’Rourke, 115 N. J. L. 177; 178 Atl. Rap. 797, the Supreme Court held that a person, who undertakes to build a house for his own use and occupancy and who contracts with several mechanics for the erection of same, is not a contractor within the intendment of the statute; and that the mechanics undertaking their several contracts are not his subcontractors. And in the recent case of Priby v. Lee at al., 15 N. J. Mis. R. 292, Judge Brennan ruled to the same effect, holding that one, engaged in the business of building houses, who constructs a house on his own account for the purpose of sale, either before or after completion, and who contracts the actual work of construction in its various phases to others, is not such “contractor” as contemplated by the statute. In both cases the court, upon interpreting the term “subcontractor” in accordance with its statutory meaning, adopted the definition as given in Bouv. Diet. (Bowie's 3 d Rev.) 3163, as “one who had entered into a contract, express or implied, for the performance of an act with a person who has already contracted for its performance.”

Viewed in the light of these two decisions, the conclusion is inescapable that the Arrow Construction Company, at the time it undertook to build on its own account the house in question and in turn contracted the masonry work to Samuel Sherman for a certain consideration, was not a “contractor” within the meaning of chapter 128, Pamph. L. 1924; Cum. Supp. Comp. Stat. 1911-1924, p. 3898, § **236-72; and by the same token Samuel Sherman was not a “subcontractor.” It is quite clear, on the other hand, that the Arrow Construction Company was owner-builder, and Samuel Sherman was the contractor.

Petitioner, however, urges that he is entitled to recover against both, because, prior to his hire by Sherman and before the occurrence of the accident, and while the house was still under construction, the Arrow Construction Company entered into an agreement with one, Ruth Dorman, to sell the premises, subject to all existing specification and contracts, contending with vigor that the Arrow Construction Company thus became a contractor in the sense that it undertook to finish the construction of the house for another, and that Samuel Sherman thereby became a subcontractor. Such contention is untenable.' The legal status of the Arrow Construction Company and Samuel Sherman was determined at the time they entered into their contract on May 20th, 1936; and being that of owner-builder and contractor respectively, any subsequent act of one of the parties — as for example, the agreement made by Arrow Construction Company on June 5th, 1936, with Kuth Dorman for sale of the premises — could in nowise change their relation to each other or cause a transition in their status. í¡; # # % % sjs

John J. Stahl,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN BUBIS, PETITIONER, v. FLOCKHART FOUNDRY COMPANY, RESPONDENT.
    Decided March 11, 1937.
    Dor the petitioner, Perry E. Belfatto.

    Dor the respondent, Edward B. McGlynn (by Joseph Weintraubj of counsel).
   The material facts as developed in the evidence are not in dispute, and are essentially as follows: Petitioner was regularly employed as a chipper by the respondent, whose business, as its name would impart, was that of operating a foundry. His duties consisted of chipping rough edges from castings by means of an automatic chipping machine. He received for his said services an average weekly wage of $26.25, being one-fourth of the gross weekly earnings of a crew composed of himself and three other co-workers. Petitioner and his crew worked principally in a large foundry room, situated on the ground floor of a building which was unequipped with any heating s]stem. During the cold weather months it was the custom among the several employes to build coke fires in a certain drum-shaped salamander in order to heat the room and thus afford them some degree of comfort during their hours of employment. The use of this improvised heating device was known to the respondent, who, by acquiescence, permitted its continuance without objection. It so happened that on March 29th, 1935, at about eleven-forty-five a. m., because of the chilly condition of the room, ■petitioner undertook to build a fire by placing in the salamander wood and other kindling matter to which he added a small amount of gasoline from a can, and before he was able to apply a match, the gasoline came in contact with some burning embers from a previous fire which had been made earlier in the morning, causing flames to shoot out from the bottom of the salamander, igniting petitioner’s clothing and causing severe burns of his body and legs. It is for the injuries sustained therein that the petitioner brings the present proceeding to recover compensation from the respondent.

While it is conceded that the petitioner’s injuries were the result of an accident, the vital point in controversy turns upon the question of whether the said accident arose out of and in the course of his employment.

An accident arises “out of the employment” when it occurs in the course of the employment and results from a risk, danger or hazard of the employment, or from conditions incidental thereto. An accident arises “in the course of the employment” when it takes place (a) within the period of employment; (b) at a place where the employe may reasonably be, and (e) while he is reasonably fulfilling the duties of the employment or doing something incidental to it.

Ho definite rule, applicable in all cases, can be made as to what is incidental to an employment. It depends largely upon the nature of each particular employment; for what may be considered a condition incidental to one type of employment may be wholly -unrelated to another or different type of employment. However, it is generally accepted, not only in this jurisdiction but in other jurisdictions as well, that the performance of acts of personal comfort are incidents of an employment. In 71 C. J. 669, referring to acts of personal comfort there appears the following: “An injury sustained by an employe while engaged in the performance of an act essential to his personal comfort and convenience, is compensable as “arising out of” and “in the course of the employment.” And in 1 Honnold on Workmen’s Compensation there appears the following on page 381: “Acts of ministration by a servant to himself such as quenching a thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen’s Compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade.”

This rule was applied in Zabriskie v. Erie Railroad Co., 85 N. J. L. 157; 88 Atl. Rep. 824, where an employe during the hours of his work found it necessary to resort to a toilet upon the respondent’s premises, which it was shown to be the continued practice of the employer’s workmen to use without dissent of the employer, but- which toilet was so located as to make it necessary for the employe to cross the employer’s railroad tracks to reach it, in doing which he was struck by one of the employer’s trains, receiving fatal injuries; held, that the death was by accident, arising out of and in the course of his employment. Also in Hanna v. Erie Railroad Co., 8 N. J. Mis. R. 829; 152 Atl. Rep. 179, an accident occurring to an employe while eating his lunch on the employer’s premises was held to have arisen out of and in the course of the employment. And in Board of Chosen Free holders of Middlesex County v. Baker, 9 N. J. Mis. R. 1305; 157 Atl. Rep. 556, a county bridge inspector who caught fire when in the shed of one of the road contractors, having sought this shelter because of the warmth and comfort it afforded while making out his daily inspection reports, was held under the circumstances to have met his death by accident arising out of and in the course of his employment.

In line with the holding laid down in the above cited cases, it would appear that the case at bar fails within the rule pertaining to acts of personal comfort, and that the preparation of a fire by the petitioner for warmth and comfort, not only to himself but to the other workers as well, was a condition reasonably incidental to his employment.

In opposing petitioner’s right of recovery the respondent bases its main defense upon the ground that the petitioner, in using gasoline as a kindling agency, arrogated to himself added peril and danger, and in so doing acted outside the scope of his employment. While the doctrine of added risk or peril is recognized as a valid defense under the Workmen’s Compensation act, it has been invoked only when it clearly appears under circumstances such as where a workman meets with an accident while doing something wholly foreign to the work which he was employed to do. Lynch v. Newman, 37 N. J. L. J. 17, and Smith v. Crescent Belting and Packing Co., 37 Id. 292. Much time was consumed at the hearing on the question as to the permissive use of gasoline in making fires in the salamander in the respondent’s foundry. The petitioner testified that it was the accepted practice of all employes to use gasoline, old paint or other inflammable substances in the preparation of fires in order to give a quick start before adding coke, and that he had been using the same during the entire period of his employment without dissent on part of the respondent. The respondent produced several witneses, its president, its superintendent and its foreman, who testified that they were totally unaware of any such practice, and that had they known of the same, they would have issued orders immediately prohibiting its continuance. In light of this testimony it can hardly be said that petitioner was performing an act in direct disobedience of orders, because obviously no order prohibiting the use of gasoline was ever given him by the respondent. Furthermore, the vast line of decisions in this state recognizes two kinds or classes of prohibition involving the question of disobedience of orders, to wit: (a) prohibitions which limit the sphere of employment, and (b) prohibitions which deal merely with conduct within the sphere of employment. A violation of the former class bars recovery (Reimers v. Proctor Pub. Co., 85 N. J. L. 441; 89 Atl. Rep. 931, and Smith v. Corson, 87 N. J. L. 118; 93 Atl. Rep. 112); while a violation of the latter class will not preclude a right to compensation. Kolaszynski v. Klie, 91 N. J. L. 37; 102 Atl. Rep. 5, and Monis v. James Bell Co., 10 N. J. Mis. R. 619; 160 Atl. Rep. 211. In the Kolaszynshi Case, supra, it was held that disobedience of orders as to the way in which work should be done does not bar recovery where the work being done was the work the employe was expected to do and he was employed at the place he was expected to be. So an order not to use kerosene or any inflammable substance in lighting a fire does not bar recovery for the death of one employed to light a fire although the injury arose from using wood alcohol.

The social philosophy of this modern law ordains that an employer should be responsible for injuries received by an employe by reason of an accident resulting within its scope, if the employment or the conditions incident to it are the efficient cause in the production of such injuries, and that he should not be responsible, if the injuries would have come about without the intervention of the employment or the conditions incident to it. Compensation is secured to the workmen without regard to negligence because the legislature has decreed such security to be an advantage to our industries and workmen. The act is a declaration by the legislature of a public policy. See American Radiator Co. v. Rogge, 86 N. J. L. 436; 92 Atl. Rep. 86; affirmed, 87 N. J. L. 314; 93 Atl. Rep. 1083. Willful negligence on part of an injured workman is no defense under section 2 of the act, nor will it oust the court of jurisdiction if set up unless the conditions required to bring the case under section 1 are complied with. See West Jersey Trust Co. v. Philadelphia and Reading Rail road Co., 88 N. J. L. 102; 95 Atl. Rep. 753, and Taylor v. Seabrook, 87 N. J. L. 407; 94 Atl. Rep. 399.

While it may be argued that the use of gasoline by the petitioner was an act of negligence, even to the point of willful negligence, nevertheless the conclusion is irresistible that the actual task of building a fire for warmth and comfort was a condition reasonably incident to his employment, and the accident resulting therefrom arose out of and in the course of employment. And even though it be urged that such use of gasoline was a violation of a prohibited act, the foregoing conclusion would still remain unaffected because the prohibition as such dealt merely with conduct in performance of work within the sphere of his employment, and the case of KolaszynsM v. Klie, supra, would control.

Upon carefully considering the entire evidence in the ease, I find and determine as follows:

$$$$$$$

That on March 29th, 1935, the petitioner suffered personal injuries as the result of an accident arising out of and in the course of his employment.

H* Hí Hs ❖ H* H* H*

That as a result of the said accident petitioner sustained the following injuries: third degree burns of both legs, chest and body, which injuries caused him temporary disability from March 29th, 1935, to November 9th, 1935, or a period of thirty-two and two-sevenths weeks.

That petitioner suffers a permanent disability equivalent to thirty per cent, permanent and total disability as a result of the said injuries.

% * at at * * *

John J. Stahl,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIHU S. ESTES, BY MARY A. ESTES, HIS NEXT FRIEND, PETITIONER, v. CLIFFORD W. ESTES, RESPONDENT.
    Decided March 24, 1937.
    For the petitioner, Newton H. Porter.

    For the respondent, Henry M. Grosman.

   >;« H H -fi H« Hí H«

The facts briefly are as follows:

The petitioner, who was nineteen years of age, while employed in the factory of his father, at Arlington, New Jersey, May 11th, 1936, suffered an injury as result of which his right index finger came in contact with an electric fan, and was subsequently amputated. There is no dispute as to the accident or the extent of the injury resulting therefrom nor of the medical bills incidental to the treatment of the petitioner’s injury.

However, the respondent disclaims liability for compensation payments and contends that the case was not compensable because the petitioner being an unemancipated minor, could not, under the laws of this state, sue his father and that the claim was not within the purview of the Workmen’s Compensation act in New Jersey.

The petitioner claims that he received a wage of $5 a week from his father and that from these moneys he purchased all his clothes and that he received no spending money or allowance from his father except this wage. Petitioner lived with his parents.

The law is well settled that emancipation is a question of fact and is not dependent per se upon the age of the infant.

If the petitioner was not emancipated, then clearly by reason of the well settled law in this state he cannot sue his parent for compensation either at common law or by statute. Reingold v. Revngold, 115 N. J. L. 532; 181 Atl. Rep. 153.

In the instant case the facts are undisputed that the petitioner, an infant, was living with his parents, and was attending Glen Eidge High School, at the time when the accident occurred. It is admitted that he did assist his father after school hours, and it is admitted that he received checks occasionally from his father, none exceeding $5, and some were less, made payable to various trading people, presumably at the direction of the son.

Having considered all the testimony, the conclusion is inescapable that the petitioner in this case was in fact an unemancipated minor. The services he rendered to his father was such services as the father was legally entitled to receive from his son; and the moneys the petitioner received from his father were pursuant to the father’s legal obligation to maintain the child. These moneys were admittedly used to cover petitioner’s spending allowance and to pay for his clothes. The petitioner claims that he bought all his clothes, although the father- testified that he also contributed towards this expense. The very fact that the -petitioner was still going to school, is another indication of the father, the respondent in this ease, performing his legal duty to educate his child.

It is the opinion of this court that the moneys disbursed to the petitioner, by the respondent, his father, were in the nature of gratuitous allowance intended to develop character of the petitioner and teach him the habits of frugality and to live within his means. If this claim were allowed, then any school girl who helps her mother about the house and receives a weekly allowance, would be entitled to make claim for compensation, if she suffered an injury while so engaged. This contrary to the intent and the letter of the laws of this state.

It is therefore ordered, adjudged and decreed that the petitioner in this case is not entitled to compensation and the formal petition in this cause be and hereby is dismissed.

John J. Stahl,

Deputy Commissioner.


author: Lloyd, J.

text:
    ELSIE COMPARRI AND LORRAINE COMPARRI, RESPONDENTS, v. JAMES READDING, INCORPORATED, PROSECUTOR.
    Submitted October term, 1936
    Decided March 31, 1937.
    Before Justices Pabkeb and Lloyd.
    For the prosecutor, Franklin J. Marryott.

    For the defendants, Thomas G. Tuso.

   Lloyd, J.

The single question presented in this case is whether the daughter of Louis Comparri, who lost his life by drowning while in the employ of the prosecutor, is entitled to compensation on the basis of total dependency within the meaning of paragraph 12, subsection G of the Workmen’s Compensation act as amended in 1923, page 106.

The deceased left a wife and a daughter, born December 24th, 1922. He had been separated from them for several years, had contributed no support to his wife and had contributed to his daughter only under compulsion of a court order procured at the instance of the wife. The proofs showed that this order was not fully complied with, deceased at the time of his death being in arrears but keeping up the current payments of $5 per week.

During this period of separation the deceased lived in various places in the state, part of the time with another woman as his wife in Wildwood, but always separated from his wife and daughter. An award was made on a basis of full dependency and this we think was error.

Respondent relies upon the case of Schmid v. Stanton Forge Co., 104 N. J. L. 471; 142 Atl. Rep. 4, where a separation quite similar to the present existed, and also on the case of Fay v. Waldron Corp., 117 N. J. L. 123; 187 Atl. Rep. 140. Pay v. Waldron Corp. we think is not in point. In that case the family relation was not interrupted. The children of the claimant boarded with an aunt and were supported by the aunt and the father, the father in his lifetime boarding in another city where his work called him, but spending his week-ends with his children. There the family relation was maintained. Here it was wholly broken.

Schmid v. Stanton Forge Co., supra, presented facts closely analogous to those here involved, but we think the case which was in the Supreme Court was definitely overruled in Bodnarik v. Empire Floor Co., 108 N. J. L. 75; 156 Atl. Rep. 450. In the latter case the husband and wife were natives of Czecho-Slovakia. The husband left his home there some years before his death and came to this country and secured employment. The wife remained in her native land until the death of her husband and was partly supported by herself and partly by contributions from her husband. It was held that the wife-was entitled to partial support only. The Bodnarik case had been previously considered by the Supreme Court (8 N. J. Mis. R. 718; 151 Atl. Rep. 908) which on the authority of the Schmid case, cited by it, made an award as of a total dependent. But the Bodnarik case was reversed on appeal, and that reversal necessarily overruled the Schmid case, even though it was not mentioned by the appellate court.

The judgment is reversed, and the record remanded for further proceedings.