author: Delaney, C. P. J.

text:
    Passaic County Court of Common Pleas.
    SADIE KATTACK, PETITIONER-APPELLANT, v. WRIGHT AERONAUTICAL CORPORATION, RESPONDENT-APPELLEE.
    Decided March 15, 1944.
    For the petitioner-appellant, Isadore Rabinowitz.

    For the respondent-appellee, John W. Taylor.

   Delaney, C. P. J.

Sadie Kattack, widow of Kajeib Kattack, a deceased' employee of respondent-appellee, filed .a petition in the Workmen’s Compensation Bureau for compensation on behalf of herself and seven children under sixteen years of age born of her marriage with the decedent. After both parties had submitted their briefs, her petition was •dismissed, and she has appealed.

The surface facts — the contentious briefs of opposing eoun•sel notwithstanding — are not in'controversy. The difficulty, whatever it may be, lies in fixing the true significance of the facts and in safely determining the relationship, if any, 'between them. In the particular circumstances of this case, the problem should be primarily for learned, experienced, ■and neutral members of the medical profession; but we are here confronted, not merely with the usual and disconcerting ■sharp contradiction between two groups of physicians — one .group testifying for one of the parties and the other for the other party — but by the disquieting phenomenon of experts on the same side (and this is true in this instance of both sides) reaching an ulitmate common opinion by diverse roads, as if nothing in medical science had been definitely settled. The trier of the facts must assess the worth of the medical testimony and determine the matter as best he can.

The decedent worked for the respondent for only eight and ■one-half hours, that is, from 5:30 o’clock in the afternoon of July 23d, 1940, until 1:30 o’clock the following morning. He was hired as a helper in respondent’s basement foundry, where scrap aluminum was remelted and turned into ingots. Save for two days’ employment on the W. P. A. (on what dates it does not appear), he had had no work for the preceding five or six months, and meanwhile, for a few days in the month of May, he had been ill from an apparently slight attack of lobar pneumonia. He had a hypertension, “168 over 100,” now agreed by all to have been due to hardening of the arteries, but so far as was then known, and to every outward appearance, his general good health was unimpaired.

The evidence is that the 23d of July, 1940, falling in a period of protracted heat, was an uncomfortable day, the discomfort of it probably arising from its high humidity Tather than from any extraordinary heat. Whether the temperature out of doors noticeably heightened the temperature within respondent’s foundry is not disclosed, but the accordant testimony is that it was “hot” outside the foundry and still warmer within it. When the question was put to the foreman, “It’s a pretty hot place, isn’t it?” (referring to the foundry), he answered laconically, “Any foundry is” — a reply, we take it, to be quite unquestioned.

In the foundry stood two furnaces constructed of brick and steel; the larger having a capacity for 8,000 pounds of metal, the smaller 6,500 pounds. Throughout the six-and-a-half-hour period required for the reduction of the scrap aluminum to molten metal, a temperature ranging from 1,200 to 1,300 degrees was maintained in the furnaces.

The furnaces were loaded by opening their doors, each three feet square, and by tossing into them pieces of scrap aluminum, very irregular in shape, and ranging in weight from five to thirty pounds. In each process, when the metal first tossed in had been partially melted down, the furnace doors were again thrown open and the furnaces refilled by the same method. Pour men working the same shift did the work, and on the day in question Kattack had a hand in it.

When the metal became molten, an aperature plugged with fire clay at the bottom of the furnaces was opened up by a man experienced in the task; the molten lead flowed out through a steel channel, lined with fire clay, to a discharging spout, and thence was deposited in iron pans on rollers on a truck conveyor, which conveyor was pushed by the man, through the use of metal rods, into a cooling chamber. In this work, which was said not to be arduous, Kattack shared. The molten metal in the pans cooled into ingots, weighing from twenty-seven to thirty pounds each, which, when sufficiently cooled, were stacked by hand on skids. In this work Kattack also participated.

With the excessive heat of the foundry and the physical toil indispensable in the operation of it, it was a job in which, as the evidence shows, newcomers might be expected to collapse; of this experienced men on the shift were apprehensive, and an eye was kept on Kattack on this account. At about eight o’clock he was observed to be in trouble; he complained of pains in his chest; he was seen to be breathing with difficulty; and he was led upstairs into an open yard. Within five or ten minutes he went back to the foundry, with his hands pressed on his chest, saying he could not get his breath and attributing his observed distress to the abnormal and unaccustomed heat.

The respondent maintained in this department a water cooler for the men, from which they drank at frequent periods, as intended. Kattack drank from it from time to time, and he appears to have vomited as often as he drank. He kept doggedly at his work. At quitting time he made light' of the matter to his fellow-workers and walked home. As he approached his home it was evident that he was a stricken man; his head was bowed; his step was slow and faltering. Once home he was in a state of great prostration; his speech was despairing; Ms eyes glassy; the surface of Ms body-clammy; his hands clasped to his chest, as if to thrust out pain. In the course of the night, in his home, he vomited from time to time, as in the foundry.

In the afternoon of July 24th the doctor who examined him determined, that he was suffering from coronary thrombosis and sent him to the hospital.

The hospital records, admitted in evidence by consent, confirmed the diagnosis of the doctor and recorded the thrombosis as starting at eight P. si., the hour of his chest pains, on the evening of July 23d.

The decedent died in the hospital on July 31st, 1940, from a coronary thrombosis. On this point, at least, all the testimony is in accord. It is undisputed that from the time of his entrance into the hospital in mid-afternoon on July 23d until his death, he remained prostrate and in a critical state of health.

It is now obvious, we take it, that this ease cannot be here disposed of, as in the Bureau, with the incautious and sweeping statement that the “proofs in this case are barren of a single scintilla of evidence which tends to establish that Kattack’s death was due to an accident, compensable or otherwise, while in the respondent’s employ.”

At about five o’clock p. m. on July 23d Kattack walked into the foundry with high blood pressure and hardened arteries, to be sure, but in apparent health; in its superheated atmosphere, to which he was not inured, a new man in a four-man shift, who had undergone no muscular exertion, two days excepted, in nearly half a year, he toiled with them at lifting out of metal boxes some seven tons of metal, the fragments weighing from five to thirty pounds apiece. At the end of three hours he was visibly stricken with acute chest pains and with marked difficulty in breathing, his distress reflected in his face, and presently he had recurring fits of vomiting. By 1:45 o’clock July 24th he was indisputably very ill, and so continued until his death a week-later, and this by all the evidence. These are capital facts of great weight, not to be lost sight of when considering and comparing the testimony of the medical experts. What is it they say?

The petitioner called Dr. Harry Irving Katz, who was not examined on the central matter of the relation, if any, between Kattack’s employment on July 23d and his death on July 31st, Dr. Alvin E. Córtese, Dr. Adolph Kroll and Dr. A. Hobson Davis. The three last named found that the decedent’s employment was an initial and contributory cause of his death; and this, if believed, establishes a compensatory accident. Ciocca v. National Sugar Refining Company of New Jersey, 124 N. J. L. 329; 12 Atl. Rep. (2d) 130.

For the respondent, Dr. Allen Yager, Dr. Hsher Yaguda and Dr. George P. Olcutt, Jr., testified.

Dr. Katz, a general practitioner, upon examining Kattack on the afternoon of July 24th, found shortness of breath, the mucous membranes pale, respiration 40 per minute, a pulse rate of 120, temperature 97.3, blood pressure 110 over 88, loud rales throughout the lungs, and heart sounds faint.

Dr. Prank McDede, into whose care Kattack passed on entering the hospital, but who did not testify in the case, agreed with Dr. Katz’s diagnosis and found the patient suffering from a coronary thrombosis.

The correctness of this diagnosis was unquestioned by the medical experts in the case. That the man’s death on July 31st resulted from a coronary thrombosis was likewise assumed by them all.

There appears a curious divergence of expert opinion as to whether or not on July 23d Kattack suffered an attack of exhaustion.

Dr. Córtese, a practitioner of traumatic medicine, but not a cardiologist, testified that Kattack suffered such an attack, his symptoms on the evening of July 23d being typical of heat exhaustion; that the attack was productive of a shock to his system; and that the shock precipitated a coronary occlusion, eventually causing his death.

Dr. Kroll, agreeing with Dr. Córtese that Kattack’s death was an ultimate consequence of his physical toil in the high temperature of the foundry, flatly rejected the theory of heat exhaustion, although saying that many .of the clinical symptoms Of heat exhaustion are the same as those of coronary thrombosis, and that a man may suffer both at the same time. He dwelt upon the man’s hypertension; “180 over 100” he declared to be a common symptom of high blood pressure; and “110” diastolic a sign not of a sound but a pathological state. In his opinion it was this pathological condition in the decedent which, coupled with his muscular exertion in the excessive heat, produced a coronary occlusion on July 23 d, and that the occlusion so enfeebled the heart that on July 31st it failed altogether.

Dr. Davis, a pathologist, found that on July 23d Kattack had a “mild” attack of heat stroke or heat exhaustion (the two terms denoting, he said, different extents or degrees of the same thing; heat stroke being the severe or extreme case, and heat exhaustion the mild one); and the heat exhaustion produced subendocardial hemorrhages with definite injury to the endocardium on the left side of the heart, which injury ■caused a mural thrombus; and the breaking off of a fragment of the thrombus and its passing into and obstructing the coronary artery several days later gave him the second coronary occlusion, from which he died.

In the view of Dr. Davis, Kattack suffered on July 23d both a mild attack of heat exhaustion and a coronary thrombosis and both were produced by his physical work in the excessive heat of the foundry.

Testifying in the interest of the respondent, Dr. Olcutt ■said that Kattack had not suffered an attack of heat exhaustion or exhibited any symptom of it; and that there was no causal relationship between Kattack’s employment in the foundry and his death. He conceded that arteriosclerosis is the most common cause of changes in the coronary arteries leading to coronary thrombosis, and while he held that stress and strain do not effect a coronary thrombosis, he said they may deprive the heart of sufficient blood for its nourishment, and that a typical coronary death may result without any actual stoppage discoverable in the blood vessels. He declared that the most common cause which links exertion with death of a person with a pre-existing coronary condition is a degeneration of the heart muscle from an impoverishment of blood .supply, and that at some moment of exertion the heart suddenly stops.

Dr. Yager testified that there was no causal relation between the work on July 23d and Kattack’s death. He assigned as the basis of his opinion that there was no unusual effort or extraordinary strain, and found no sign of an attack of heat exhaustion. He granted in the end that unusual effort and extraordinary strain are relative things, and said in effect that a man in one state of health may undergo prodigious exertion without harm, while another in a pathological condition may suffer coronary thrombosis on slight exertion.

Dr. Yaguda found no connection “either through causation or aggravation” between the employment and Kattack’s death from a second coronary thrombosis. But he found, as did all the experts, that the decedent had a hardening of the coronary arteries, and with 'this in mind he declared that the earlier occlusion set up a disturbance in the coronary circulation and that disturbance facilitated the formation of the second occlusion, from which he died. He did, in short, allow a relationship between the first occlusion and the fatal one after all.

The proofs must show that the employment contributed to Kattack’s death. Under the cases, absolute demonstration is not required of the petitioner. Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22; Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 603; affirmed, 114 N. J. L. 254; 176 Atl. Rep. 198; Auten v. Johnson, 115 N. J. L. 72; 178 Atl. Rep. 187. Under the evidence, the whole body of the medical testimony establishes her case with a high degree of probability.

Her petition was erroneously dismissed.


source: Caselaw Access Project

author: Giordano, C. P. J.

license: Public Domain

text:
    Monmouth County Court of Common Pleas.
    CHARLES GLANTON, PETITIONER-APPELLEE, v. JOSEPH A. SHAFTO, RESPONDENT-APPELLANT.
    Decided April 11, 1944.
    For the petitioner-appellee, Joseph F. Mattice.

    For the respondent-appellant, Durand, Ivins <& Carton (Robert V. Carton, of counsel).
   Giordano, C. P. J.

This is an appeal from an award made-by the Workmen’s Compensation Bureau in favor of the-petitioner, Charles Glanton, and against the respondent,. Joseph A. Shafto.

The court has appraised the proofs and in my opinion they establish the following facts:

Charles Glanton, the petitioner-appellee, is a colored man,, approximately 37 years of age, employed at Shafto’s Garage (Joseph A. Shafto, respondent-appellant) as a handy man and mechanic’s helper. He earned $22 a week. He took orders from Joseph Shafto and the head mechanic, one Fred Smith. He had thus been employed for at least one year-prior to December 8th, 1941, when it is alleged he sustained an accident arising out of and in the course of his employment. In the garage were several fifty-gallon drums of alcohol which petitioner testified he was putting on end, or heading up, when he sustained an injury. He, Glanton, described the particular operation in the following words (page 3 of' testimony) :

“A. They were laying down, as you roll them, and I picked them up and put them on end, and when I lifted one-

Q. Well, how heavy were these barrels of alcohol?

A. I don’t know just how heavy. They were fifty-gallon-drums.

Q. You were heading them up, and what happened?

A. When I come down and come up with one, I choked right up, and my vein come right out, and I choked right up — the vein of my neck come out, and there was something-in here, like I couldn’t swallow — I drank a coca-cola. I went down in the back of the garage-and sat around in the cars,, and messed around the rest of the day.

Q. Did you talk to anybody in the place about this?

A. I told the boy.

Q. What boy?

A. I told Fred. I said, ‘I got something. It might be-indigestion, the way I choked up.’ ”

(And on pages 4 and 5 of the transcript, his testimony eontinues):

"Q. the following day, did you come back to work?

A. Yes, I did.

Q. Did you. talk to anybody that day?

A. Well, no more than I told the other boy, if I bent over-that day, if I had a tire to change, I would get dizzy in the-head, and I still had that indigestion.

Q. And did you work the following day?

A. Yes.

Q. When did you go to the doctor, if you did?

A. Well, I worked on, and stayed on there until January,, and on my neck the thing had come out so large until I couldn’t button my shirt. * * * My face puffed up and

I couldn’t lift nothing or bend over, and Smith and Shafto’sdaughter said, ‘You ain’t got no indigestion. Something else is wrong with you. Go and see a doctor.’ ”

In answer to a question: “Did you go to a doctor ?

A. Yes, I went to Dr. Edelson.

Q. Did Dr. Edelson treat you?

A. He looked at me and felt my blood vein and things and' said, ‘I. want you to go to the hospital.’ ”

The proofs indicate that Glanton visited Dr. Samuel Edelson on January 16th, 1942, and according to Dr. Edelson,. petitioner told him that he had had a cold for a number of' days and first noticed the swelling of his neck about that time. He did not tell the doctor about any accident or give him a history of trauma or strain. Dr. Edelson could not make a definite clinical diagnosis and sent Glanton to theFitkin Memorial Hospital for observation, where petitioner stayed for nine days and was examined by various doctors. Again, in February of 1942 Glanton was admitted to theFitkin Memorial Hospital. In July, 1942, Glanton was sent by the doctors at the Fitkin Hospital to Dr. Charles P. Bailey of the Hahnemann Hospital, in Philadelphia. He remained at the Hahnemann Hospital for a few days and was sent back to Fitkin Hospital for bismuth treatments for syphilis preparatory to an operation which Dr. Bailey determined was necessary. He returned to the Hahnemann Hospital on October 18th, 1942, and on October 23d, 1942, Dr. Bailey performed an exploratory operation upon Glanton, at which time he made a clinical diagnosis of “thrombosis of the superior vena cava.”

Having discovered the thrombosis, Dr. Bailey was prompted to obtain further history from Glanton as to the cause and he questioned Glanton as to possible strain. Although Glanton did not at first recall, or associate his condition with the particular operation of “heading up the drums” on or about December 8th, 1941, upon further questioning, it finally occurred to him that it was at that time, that is, while heading up” the fifty-gallon drums, that the choked-up feeling manifested itself and it was then, according to his own testimony, that “the vein came right out — the vein of my neck, and I couldn’t swallow — and drank coca-cola.”

It is obvious that Dr. Edelson who first examined the petitioner, as well as the staff physicians at the Eitkin Memorial Hospital, were unable to make a definite diagnosis. And it is quite understandable that the petitioner, who, from his testimony, reveals a very meager educational background, could not associate the “lifting of the drums” with his condition.

A careful reading of the testimony convinces me that the petitioner-appellee was' suffering from an unusual condition — a condition which is not too well known to the medical profession.

The testimony of Dr. Oscar V. Batson, a professor .of anatomy . at the Graduate School of Medicine, University of Pennsylvania (page 117 of transcript), discloses “that such a condition was first described by Yon Schroedter, in Hothuagel Hand Buch in 1884, approximately seventy-five to one hundred eases have been described and carefully recorded from the various literatures, and how complete they have been able to log all the cases in the several foreign literatures is questionable. They are extensively described in English and only since 1910, in Erance and Italy. The occlusion of the superior vena cava is rather unusual although cases apparently have occurred; it cannot be denied the study we have had here of uniform — ^of simultaneous injections of both arms is not a common condition but it is a definite, established condition.”

That Glanton did not at first connect the strain on December 8th, 1941, with his condition, is not a bar to his recovery. This theory of the law is stated in the case of General Cable Corp. v. Levins, 122 N. J. L. 383; 5 Atl. Rep. (2d) 731. And in this case the rule is' also established that notice to the physician of the respondent is such knowledge as mepts all requirements of the act and secondly the only knowledge required is actual knowledge of the injury alone and not the resultant consequences thereof.

A careful reading and study of the above mentioned case satisfies me that the actual knowledge of the employer need not be either of the cause of the injury or of the resultant consequences thereof. It suffices if the employer had actual knowledge of the injury alone, which in the instant case, according to the proofs, the respondent had.

The medical testimony is voluminous, contradictory and of a highly technical nature. After carefully analyzing and appraising the medical testimony, I have concluded that greater weight should be placed upon the evidence of the treating physicians. The law to that effect is well settled in this state. Jackson v. New York Shipbuilding Corp., 119 N. J. L. 542; 197 Atl. Rep. 284. With respect to diagnosis and causal relationship, I am constrained to the opinion that the testimony of the doctor who was in attendance of the petitioner and examined the petitioner post-operatively was obviously more informing than the opinion evidence offered by the respondent. Bove v. Highwood Coal Co., 17 N. J. Mis. R. 131; 5 Atl. Rep. (2d) 728.

When the etiology of the condition such as complained of by the petitioner gives rise to controversy among medical authorities, in appraising the evidence it is my opinion that “probability and not the ultimate degree of certainty is the test.” Auten v. Johnston, 115 N. J. L. 71; 178 Atl. Rep. 187.

The question to be determined therefore is whether or not the petitioner-appellee has established by a preponderance of probabilities the basis upon which he asserts his right to compensation as the result of an accident which arose out of and in the course of his employment. Gilbert v. Gilbert Machine Works, Inc., 122 N. J. L. 533; 6 Atl. Rep. (2d) 213; Kuropata v. National Sugar Refining Co., 126 N. J. L. 44, 47; 17 Atl. Rep. (2d) 288.

In the Workmen’s Compenstion Bureau the question was answered in the affirmative and the petitioner-appellee was awarded a judgment in his favor against the respondent-appellant. In the appraisement of evidence adduced before the Compensation Bureau, it is to be borne in mind that the Deputy Commissioner has the distinct advantage of personal observation of the witnesses, whose demeanor is ofttimes a factor of major importance in determining the probative value and weight of the evidence given. Hence, 'factual conclusions of the Compensation' Commissioner to whom the evidence has been orally presented should not be lightly disturbed. Mountain Ice Co. v. Durkin, 6 N. J. Mis. R. 1111; 144 Atl. Rep. 6; Berman v. Levenstein, 9 N. J. Mis. R. 378; 154 Atl. Rep. 110; Newell v. Workmen’s Compensation Bureau, 9 N. J. Mis. R. 1123; 157 Atl. Rep. 243; Gilbert v. Gilbert Machine Works, Inc., 122 N. J. L. 538, 539; 6 Atl. Rep. (2d) 213.

The Deputy Commissioner’s findings, in my opinion, are not against the weight of the evidence and accordingly the judgment of the court below is affirmed.


author: Fielder, V. C.

text:
    Docket 149/545
    John J. Walsh, complainant, v. International Alliance, &c., et al., defendants.
    [Decided May 16th, 1944.]

      Mr. Warren Dixon, for the complainant.

      Messrs. Milton, McNulty & Augelli (Mr. Thomas McNulty, of counsel), for the defendants.
   Fielder, V. C.

The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (hereinafter called International) is a trade union and one of its branches, Local 59, controls and exercises practically a monopoly over employment of stage employees in theatres in Hudson County. The complainant, Walsh, had been a member of the International and of the Local upward of thirty-three years. He had held the office of business manager of the Local several terms and in May, 1942, he was re-elected to that office by members of the Local for two years at a salary of $100 per week. He was brought to trial November 19th, 1942, on charges preferred against him, was adjudged guilty by a trial board and at a subsequent meeting of the Local was discharged from his office and expelled from membership. He alleges that his discharge and expulsion were brought about through a conspiracy among certain members of the Local who are named as defendants herein, to bring him to trial on false charges; that he was forced to trial in disregard of the provisions of the constitution of the International, of- the Local and of the by-laws of the Local and that the judgment against him was illegal and in violation of his rights as a member of the Local. He seeks reinstatement to the office of business manager and to membership in the Local and to recover from the Local his salary as business manager for the term for which he was elected. He also seeks money damages against the individual defendants and compensation from them or the Local for loss resulting from'his deprivation of membership in the Local. Pew of the essential facts on which this decision must rest are in serious dispute.

Ordinarily, when disciplined, a member of a voluntary association is bound by proceedings taken within the association in conformity with its constitution and by-laws to which he assented-by becoming a member. Walsche v. Sherlock, 110 N. J. Eq. 223; Cameron v. International Alliance, &c., 119 N. J. Eq. 577; Mogelever v. Newark Newspaper Guild, 124 N. J. Eq. 60; Chew v. Manhattan Laundries, Inc., 134 N. J. Eq. 566. A voluntary association may discipline a member or expel him from membership, but must do so in accordance with the laws of the association. Lo Bianco v. Cushing, 117 N. J. Eq. 593; affirmed, 119 N. J. Eq. 377; Fleming v. Moving Picture, &c., 16 N. J. Mis. R. 502; affirmed, 124 N. J. Eq. 269; Chew v. Manhattan Laundries, Inc., supra.

On the night of October 7th, 1942, a fracas in which Walsh and DeSavino (the latter one of the individual defendants herein) were participants, occurred on the stage of the Hudson Theatre just before the curtain went up. Charges- and counter-charges of assault and battery were made and at a hearing before a police judge both parties waived examination and were held for the grand jury, which body has so far failed to indict either of them. On the 14th of the month two complaints or charges presented to the. Local, were made in writing against Walsh, the one sworn to by Royal Hancox (Exhibit 0-4) and the other sworn to by DeSavino (Exhibit 0-5), both members of the Local. Exhibit 0-4 charges that Walsh, a member and officer of the Local, while intoxicated assaulted DeSavino without provocation on October 7th at the Hudson Theatre, called DeSavino vile and filthy names and vilified his character. It states the names of witfiesses and requests that Walsh be dealt with in accordance with the constitution and by-laws of the International and Local and that he be impeached. Exhibit 0-5 is in the same form as Exhibit 0-4, making the same charges against Walsh, naming the same witnesses, contains the same request that Walsh be dealt with and further, that he be expelled from membership in the International and in the Local. The charges as made by Exhibits 0-4 and 0-5 complied in form with the requirements of the constitution of the Local and informed Walsh of the time, place and nature of the charges, the section or sections of the constitution alleged to have been violated and the names of all witnesses to the offense known to the accusers.

Another written complaint (Exhibit 0-6) against Walsh was sworn to by Royal Hancox November 2d, 1942, charging that Walsh, being business manager of the Local, did on or about May 26th, 1938, and May 25th, 1942, and May 14th, 1940, in violation of a specified article and section of the constitution of the International and in violation of specified articles and sections of the constitution and by-laws of the Local — and there the charge ends abruptly, wholly failing to state or even refer to any act on the part of Walsh which was in violation of the specified provisions of the constitution and by-laws. That complaint states the names of two witnesses as having knowledge of the acts complained of and requests that Walsh be dealt with in accordance with the constitutions and by-laws of the International and the Local and be impeached in his office. It did not request that he be expelled from membership in the Local.

Exhibit 0-6 fails to comply with the provisions of the Local constitution relative to specification of charges and is inadequate in that it does not specify the nature of the offense or violation charged. The articles and sections of the constitutions of the International and of the Local specified in the complaint are obviously such as Walsh could not have been guilty of violating, and the specified section of the Local’s by-laws refers to at least nine different offenses which might be charged against a member and therefore the complaint failed to acquaint Walsh with any specific charge against him. It will hereinafter appear that the charge intended to be made against Walsh by Exhibit 0-6 was that he had received funds of the Local for his own use unlawfully or improperly.

The constitution of the Local provides for a “cognizance committee” to decide whether charges made against a member are cognizable or not. Walsh was given a hearing before that committee before he was formally served with charges and thereafter, on November 12th, copies of all three charges wer.e received by Walsh together with notice that November 19th, at 12 o’clock midnight, had been fixed for his trial before the executive board of the Local, at the Local’s meeting hall.

The constitution of the Local designates the executive board as the trial body to hear evidence on charges, to determine the guilt of the accused and to make recommendation as to the penalty to be imposed. The executive board consists of the president, the vice-president, the recording secretary, the business agent and three elected members. At the meeting in May, 1942, at which Walsh was elected business agent, the members of the Local had elected Rieley as president, Kuntze as vice-president, DeSavino as recording secretary and Allstadt, Burke and Wolff as members of the executive board. Prior to the date fixed for the executive board to hear the charges against Walsh, certain charges had been lodged with the Local against Kuntze, by reason whereof he was disqualified to sit as a member of that board. Shortly before the trial date Burke resigned as a member of the board and Richard Hancox (brother of the man who had lodged charges against Walsh) was elected in Burke’s place and DeSavino was disqualified as a member of the executive board because he had preferred charges against Walsh. The members of the executive board then qualified to sit as a trial body on the charges against Walsh were Eieley, Allstadt, Wolff and Eiehard Hancox, Walsh charges that the disqualification of Kuntze, the resignation of Burke and the election of Eiehard Hancox were part of a plan devised by the individual defendants herein to bring about his removal from office as business agent and to expel him from membership in the Local, but the evidence fails to support that charge.

The members of the executive board qualified to sit as a trial body convened Hovember 19th at the hour and place stated in the notice to Walsh. That night the trial body sat to hear charges which had been made against other members of the Local, and after disposing of those charges proceeded to the charges against Walsh. He was then called before the trial body to plead to the charges against him. If he believed that Eiehard Hancox had been elected to membership on the executive board through a conspiracy against him, or if he believed Hancox would be prejudiced against him because two of the charges against him had been preferred by Haneox’s brother, he had the right to challenge the trial body member, but he did not. A stenographic record was made of the proceedings on all charges then heard by the trial body and so much of that record as relates to Walsh’s trial was received in evidence in this cause. Erom that record it appears that the proceedings, as might be expected in a trial court composed of members of the Local, were most informal but it also appears that the proceedings were fairly conducted and I cite from that record.

As soon as the charges against Walsh were taken up he requested an adjournment of six weeks to await determination on the assault and battery charges and counter-charges made by him and DeSavino, then pending before the grand jury, and he renewed that request several times during the trial, throughout all of which he was present. His request was denied by a tie vote of the members of the trial body and I cannot say that the denial was improper. I digress to say that after Walsh had received notice of trial, he called on the president of the International with Allstadt and Wolff (the two members of the trial body who subsequently voted to grant him a postponement), with reference to (he testified) a matter other than his coming trial but he discussed with the president the subject of his trial and was advised by the president that granting a postponement was wholly within the discretion of the trial body. Because of his long membership in the Local and his own experience as a member of the executive board, he must have had knowledge of the procedure before that board as a trial board and he knew that a request for a postponement might not be granted. He should have been prepared to meet that eventuality and to present his defense.

On opening the -trial, the presiding member of the trial body read to Walsh the defective charge as alleged by Boyal Hancox in Exhibit 0-6 and stated to Walsh that such charge was based on three unauthorized checks of the Local cashed by Walsh. Production of those cheeks was the sole evidence offered in support of the charge. The two other charges of an unprovoked assault by Walsh on DeSavino were next read to Walsh and witnesses testified under oath in support thereof. Walsh was present during the entire hearing and was asked several times if he desired to examine the witnesses and if he had anything to say in denial of the three charges; his only reply was to press his request for an adjournment on the ground heretofore stated. Immediately after the conclusion of the hearing the trial body made a unanimous finding and report in writing to the Local stating therein that Walsh had been found guilty of all three charges preferred against him and recommending that he be expelled from the Local. The'finding of guilt on the charge as contained in Exhibit 0-6 was unjustified not only because that charge was defective in form but also because there was no evidence before the trial body to support a charge that Walsh had received funds of the Local improperly, but I am of the opinion that the finding of guilt on the charges as contained in Exhibits 0-4 and OS was supported by testimony before the trial body and in reaching that opinion I disregard an ex parte affidavit read in connection with those charges. Walsh was informed the night of the meeting by a member of the trial body that he had been found guilty of the charges made against him.

The report of the trial body was presented and considered at a regular meeting of the Local held December 2d, of which meeting Walsh had notice. The minutes of that meeting record that the chairman of the trial body proceeded with his report on the ease of Walsh (and others), and that the action taken by the members of the Local on the report was as follows:

“On the case of Bus. Agt. John Walsh for misappropriation of local funds the trial board unanimously voted guilty and recommended that he be impeached from that office. Accepted with the unanimous vote.
“The report on the last two charges against Bus. Agt. John Walsh which were for conduct unbecoming a member, the trial board unanimously voted guilty and recommends that he be expelled from this local union. This recommendation was accepted by a unanimous rising vote, none opposed. Two members did not vote.
“This report by the president on motion duly made and sec. was accepted and see’y to notify the gen. office of the action taken by this local union.”

Although Walsh was tried and convicted illegally of “misappropriation of local funds” and the trial body’s recommendation that 'he be expelled from the Local may have been based on its finding of guilt on that charge as well as on his guilt on the other charges, nevertheless at the meeting of the Local at which the report of the trial body was received and considered, the members of the Local dealt with each charge separately and reached a distinct decision on the misappropriation charge and another distinct decision on the assault charges. The determination of the Local that Walsh be impeached from his office as busines agent because of misappropriation of money was improper, but the determination of the Local on the assault charges that he be expelled from the Local, was justified on the testimony before the trial body and was within the powers of the membership of the Local., When Walsh ceased to be a member of the Local, his right to hold office therein terminated.

Under the constitution of the International and of the Local, Walsh had the right to appeal to the International president, and from his adverse determination to the general executive board of the parent body, and from the adverse decision of that board to the International in convention-assembled. He did appeal to the International president who sustained the action of the Local but Walsh took no further appeal. Whether, as claimed by the defendants, he was bound by the constitution of the organization of which he had become a member, to exhaust his remedies within the organization or, as' claimed by Walsh, the attempt to prosecute further appeals would have been futile, illusory and vain need not be decided, because I find that in the fracas with DeSavino Walsh was the aggressor and as I have said, I find that the Local was justified in adjudging Walsh guilty of the assault charges.

I doubt the right of this court to re-try a case of this nature for the purpose of determining the fact of complainant’s guilt of the assault offense charged against him, when the trial in which he was convicted was fairly had according to the regulations of the association of which he was a member, unless it should appear from the evidence produced before the court that the finding of guilt was clearly unjustified. '¡The testimony before me shows that the morning of the day of the fracas, officers of the International had appeared at a'meeting of the Local and had seized books of the Local because of a petition signed by several members of the Local charging that Local money had been paid out without authority. Walsh testified that the petition had been instigated by DeSavino. Testimony indicates that Walsh had been drinking during that day and-was in an intoxicated condition that night when he arrived at the Hudson Theatre where DeSavino was employed. He testified he went there to see the show from the stage, but instead of remaining at the side of the stage where he had entered five minutes before the curtain was due to go up, he crossed the stage to the place where DeSavino was stationed as electrician waiting for the performance to begin. Walsh did not explain why he approached DeSavino. He asserted that he said nothing to or made any threatening motion toward DeSavino and that the latter immediately seized an iron pipe and struck him (Walsh) one or more blows on the head, arms and body. The blow or blows caused severe wounds which required that Wálsh be taken to a hospital for treatment. His version of the assault was uncorroborated while from the testimony of four members of the Local (as well as DeSavino) who witnessed the altercation, it appears that when Walsh approached DeSavino he called the latter vile names, removed his hat and eyeglasses, struck at DeSavino who endeavored to push him away, and reached for his (Walsh’s) back pocket as though to draw a revolver and that it was then DeSavino grabbed the piece of pipe which happened to be close at hand and struck Walsh with it in self defense. The substance of that testimony was given before the trial body and as I have said, I find that body was justified in finding Walsh guilty of the charges made against him by Exhibits 0-4 and OS.

The bill of complaint will be dismissed.


author: Per Curiam.

text:
    JOHN MANEELY COMPANY, A CORPORATION OF THE STATE OF DELAWARE, PROSECUTOR, v. THE STATE BOARD OF TAX APPEALS OF NEW JERSEY AND WILLIAM D. KELLY, STATE TAX COMMISSIONER FOR NEW JERSEY, RESPONDENT.
    Submitted January term, 1944
    Decided April 24, 1944.
    Before Brogan, Chief Justice, and Justices Bodine and Colie.
    For the prosecutor, Joseph Bech Tyler.

    For the respondents, David T. Wilentz, Attorney-General (John Solan, of counsel).
   Per Curiam.

Upon an examination of the facts and the law of this case we aré of the view that the matter was correctly decided by the State Board of Tax Appeals of New Jersey' whose opinion is reported in 21 N. J. Mis. R. 229. The writ of certiorari is therefore dismissed and the tax judgment affirmed, for the reasons expressed in the opinion of the State Board of Tax Appeals of New Jersey.


author: Kingfield, D. C. J.

text:
    District Court of the First Judicial District of the County of Warren.
    WALTER D. SHOTWELL, PLAINTIFF, v. DAIRYMEN’S LEAGUE CO-OPERATIVE ASSOCIATION, INC., A CORPORATION, DEFENDANT.
    Decided April 6, 1944.

      For the plaintiff, Demaresi & Both.

    For the defendant, Herr & Fisher.

   Kingfield, D. C. J.

The state of demand in the above case contains two counts. In the first count, the plaintiff .sued to recover for milk sold and delivered to the defendant and claimed damages in the sum of $162.99; which was reduced by stipulation by both parties in open court to the •sum of $153.59. In the second count, the plaintiff sued to recover the amount of $69.34 due on a certificate of indebtedness; which was reduced by stipulation by the parties "to the suit to the sum. of $64. The defendant thereby admitted that there is due the plaintiff on both counts of his state of demand the sum of $217.59. The defendant further agreed that this amount be set off against any recovery allowed on its counter-claim, and that judgment be entered for the net amount only, if such be the case.

The counter-claim involved a suit for liquidated damages arising out of palintiff’s breach of a contract wherein the plaintiff appointed the defendant his sales agent with full power and authority to sell the plaintiff’s milk, until terminated by either party by written notice as specified in paragraph 17. The contract further provided that the plaintiff would not dispose of his milk through any other source except with the consent of the defendant. The contract also provided as follows:

“2. The producer covenants and agrees to and with the Association that if he at any time refuses or neglects to deliver such milk or the manufactured product thereof produced or manufactured by him to the Association, or upon its order, at such time and place as the Association may direct, then and in that event in every such case the producer neglecting or refusing so to do will pay to the Association for such refusal or default, the sum of Ten ($10.00) Dollars per cow for 12 cows, and if such default or refusal shall continue for more than one month, an additional sum of Three Dollars ($3.00) for each cow per month, for the same number of cows, so long as such default or refusal continues, none of which payments are to be construed to be a penalty or forfeiture, but as stipulated liquidated damages as prescribed in Section 37 of the Cooperative Corporation Law of the State of New York, and it is hereby agreed that the Association will suffer by reason of such refusal or default, it being agreed by the parties hereto that this agreement is one of a series of agreements with producers of milk, depending for its true value upon the strict adherence of each and of all of said producers to each and all of said agreements.”

The testimony indicated that the plaintiff signed the contract, although he claimed he did not read it and had no copy of same. However, it is elementary that the failure to read the contract did not relieve the plaintiff from any liability arising from its breach. The facts clearly disclosed that the plaintiff deliberately breached the contract by selling milk to O’Dowd’s Dairy, another distributor, without the consent of the defendant. Plaintiff attempted to justify his breach by a sale of the farm stock to his brother, but possession was never delivered and an immediate reconveyance was effected by the brother. The brother did not appear to testify, the bills of sale were not introduced in evidence, and the plaintiff had uninterrupted possession of the farm stock, all of Which indicated that a true sale did not take place.

This brings up the question as to whether the liquidated damage clause is enforceable as such, or whether it should be considered a penalty, and also whether its validity depends on the law of New Jersey or that of New York.

After the-plaintiff signed the contract in New Jersey, it was sent to the defendant’s office in New York where it was signed and accepted. The defendant is a New York corporation and its business is confined for the most part to New York but it does operate in four other states, including New Jersey. The case of Mayer v. Roche (Court of Errors and Appeals), 77 N. J. L. 681; 75 Atl. Rep. 235, held that the proper law of the contract is the law by which the parties thereto intended cr may fairly be presumed to have intended, the contract, to be governed. It is stated in 112 A. L. R., on page 124, as follows:

“With the qualification (1) that its enforcement must not be violative of the settled public policy of the forum, or of a statute of the forum enacted for the protection of its citizens, and (2) that it must not have been adopted with the object of evading the otherwise applicatory law, it is held or assumed in many cases, at least as to the construction, effect, and obligation of the contract, and frequently as to its validity, that a stipulation in a contract that it shall be governed or construed by the law of a particular jurisdiction is valid, and should be given effect.”

In .view of-the.above, if the parties themselves agreed that the New York law govern the clause in question, this court does not intend to overrule their expressed intention.

A New York attorney testified for the defendant and introduced in evidence section 37 of the Cooperative Corporation Law of New York, Consol. Laws, c. 77, which is as follows:

“Members may be required to sell through corporation; breach of contract. 1. The by-laws may require the members to sell all or any part of their specifically enumerated agricultural, dairy and horticultural products, exclusively through the corporation; but in such case, shall specify a reasonable period, in each year, during which any member, by giving to the corporation the notice prescribed in the by-laws, may withdraw and be released from his obligation to employ the services of the corporation in respect to such products and supplies.

“Z. The by-laws or the marketing contract may fix, as liquidated damages, which shall not be regarded as penalties, specific sums to be paid by the members to the association upon the breach of any provision of the marketing contract regarding the sale or delivery or withholding of products; and may further provide that the member who breaks his contract will pay all costs, premiums for bonds, expenses and fees, in case any action is brought upon the contract by the association.

"3. In the event of any such breach or threatened breach of such marketing contract by a member, the association shall be entitled to an injunction to prevent the further breach of the contract and to a decree of specific performance thereof. Pending the adjudication of such an action and upon filing a verified complaint showing the breach or threatened breach, and upon filing a bond in such form and amount as may be approved by the court, the association shall be entitled to a temporary restraining order and preliminary injunction against the members.”

He further testified that a contract exactly similar to the one in question and containing the same provision as to liquidated damages was construed by the New York Supreme Court and held to be one for liquidated damages and not a penalty in the ease of Parker v. Dairymen’s League Cooperative Association, Inc. (1927), 222 App. Div. 341; 226 N. Y. S. 226,

Under the circumstances, giving consideration to the fact that the parties expressly intended to be governed by New York law under which it was held that the clause in question was one for liquidated damages, recovery is allowed to the defendant on its counter-claim for $264 against which is set off $217.59, leaving a net amount due of $46.41 on its counter-claim, and judgment is accordingly entered for this amount.

It must also be mentioned that due consideration was given to the fact as to whether the enforcement of the clause violated the settled public policy of New Jersey. The court felt it did not. First of all, New Jersey law permits marketing contracts and agencies by agricultural co-operative associations; and requires members to deal through the association. Liquidated damages are allowed for the - failure of members to perform their contracts which are also held to be valid contracts. R. S. 4:13-26 to 4:13-29; N. J. S. A. 4:13-26 to 4:13-29.

There was testimony offered by Stephen Farley, a division representative of the defendant, employed by it for fourteen years, who introduced evidence showing how the defendant was damaged by the plaintiff’s breach of contract. The attorney for the plaintiff strenuously objected to Mr. Farley’s testimony which was admitted by the court.

The testimony consisted of book records showing the price the defendant received for the sale of milk for the months in question and the price the producer would have received, which showed a profit for distribution among the members of the association. There was testimony showing the amount of milk sold by the plaintiff to O’Dowd’s Dairy for the same period and the price received by him — a figure considerably more than he would have received from the defendant. The figures also indicated that the amount claimed by the defendant as liquidated damages was considerably less than the profit the defendant would have received if the plaintiff had complied with his contract with the defendant. This indicated that the amount claimed as liquidated damages for the period in. question was a sum fairly related to the actual damages suffered by the defendant.

The plaintiff’s attorney sought to establish that there was no loss to the defendant by reason of plaintiff’s breach because it was a co-operative association and not one for profit. It seems to the court that he overlooked the fact that even a non-profit organization can profit from a particular transaction which is shared in by all members of the association. There was also testimony that the defendant had milk commitments to meet and that the loss of plaintiff’s milk had to be made up elsewhere.

Finally, the New Jersey eases were considered on the question as to whether the clause in question is one for liquidated damages or a penalty. The rule in New Jersey is found in the ease of Monmouth Park Association v. The Wallis Iron Works (Court of Errors and Appeals), 55 N. J. L. 132; 26 Atl. Rep. 140.

“In determining whether a sum, which contracting parties have declared payable on default in performance of their contract, is to be deemed a penalty or liquidated damages, the general rule is that the agreement of the parties will be effectuated. Their agreement will, however, be ascertained by considering, not only particular words in their contract, but the whole scope of their bargain, including the subject to which it relates. If, on such consideration, it appears that they have provided for larger damages than the law permits, e. g., more than the legal rate for the non-payment of money, or that they have provided for the same damages on the breach of any one of several stipulations, when the loss resulting from such breaches clearly must differ in amount, or that they have named an excessive sum in a ease where the real damages are certain or readily reducible to certainty by proof before a jury, or a sum which it would be unconscionable to award, under any of these conditions the sum designated is deemed a penalty. And if it be doubtful on the vahóle agreement whether the sum is intended as a penalty or as liquidated damages, it will be construed as a penalty, because the law favors mere indemnity. But when damages are to be sustained by the breach of a single stipulation, and they are uncertain in amount and not readily susceptible of proof under the rules of evidence, then, if the parties have agreed upon a sum as the measure of compensation for the breach, and that sum is not disproportionate to the presumable loss, it may be recovered as liquidated damages. These are the general principles laid down in the text books and recognized in the judicial reports of this state.”

The above rule of law was also applied in the case of Ferber Construction Co. v. The Board of Education of the Borough of Hasbrouck Heights (Court of Errors and Appeals), 90 N. J. L. 193; 100 Atl. Rep. 329; also, see, The Borden Co. v. Manley (Supreme Court), 127 N. J. L. 461; 23 Atl. Rep. (2d) 281, and Suburban Gas Co. v. Mollica (Supreme Court), 131 N. J. L. 61; 34 Atl. Rep. (2d) 892.

The following cases set forth in the plaintifPs memorandum of law were duly considered: Cheddick’s Executor v. Marsh (Supreme Court), 21 N. J. L. 463; Whitfield v. Levy (Supreme Court), 35 Id. 149; Hoagland v. Segur (Supreme Court), 38 Id. 230; Lansing v. Dodd (Supreme Court), 45 Id. 525; Summit v. Morris Traction Co. (Court of Errors and Appeals), 85 Id. 193; 88 Atl. Rep. 1048; Gibbs v. Cooper (Court of Errors and Appeals), 86 N. J. L. 226; 90 Atl. Rep. 1115; Bonhard v. Gindin (Court of Errors and Appeals), 104 N. J. L. 599; 142 Atl. Rep. 52; 218-220 Market Street Corp. v. Krich-Radis Co., Inc. (Court of Errors and Appeals), 124 N. J. L. 305; 11 Atl. Rep. (2d) 109.

The rule of law has been the same in all of the eases although its application depended upon the particular state of facts in each case.

For the foregoing reasons judgment will be accordingly entered for the defendant on its counter-claim as herein-before set forth.


author: Leyden, S. C. C.

text:
    M. KATHLEEN LAWRENCE, ALSO KNOWN AS MARGARET LAWRENCE, PLAINTIFF, v. COMMERCIAL CASUALTY INSURANCE COMPANY ET AL., DEFENDANTS.
    Decided May 25, 1944.
    For the plaintiff, Milton O. Nurock.

    For the defendant Commercial Casualty Insurance Company, Lum, Fairlie & Wachenfeld (by Charles S. Barrett, Jr., with whom Wharton & Hall, Bowers & Rinehart, Reger & Smith, and W. Eddy Heath, representing other defendants, are associated for the purpose of the motion).
   Leyden, S. C. C.

The plaintiff, a resident of Philadelphia, Pennsylvania, has instituted an action in the Supreme Court, Somerset Circuit, against twenty-eight defendants, eighteen of whom have been served with process. Twelve of the eighteen so served have given notice to the plaintiff to post security for costs pursuant to the statute, R. S. 2:27-424; N. J. S. A. 2:27-424. Upon her failure to comply, the present motion to stay her cause was made. The plaintiff .has posted' one bond in the sum of $100 and now contends, in opposition to the motion, that she has thus satisfied the requirements of the statute. I think not. The statute provides : “If plaintiff is a non-resident he shall, if required at any time before notice of trial by notice given to him by • defendant, give bond to defendant in the sum of one hundred dollars, with sufficient surety, condition to prosecute his action with effect and to pay costs if he discontinues his action, is nonsuited or a judgment passes against him.” Its purpose is to protect our residents from unfounded and vexatious suits commenced by non-resident plaintiffs, and to secure the payment of their taxed costs in the event the plaintiff is unsuccessful.

Ordinarily, if the matter were discretionary, it would seem that a bond by the plaintiff in favor of the twelve demanding defendants in the sum of $600 would be sufficient for the purpose, but the statute is mandatory and self-executing. It provides that the plaintiff shall give bond to defendant, and when demanded, all proceedings shall be stayed until such .security is filed or deposit made. R. S. 2:27-424 and 426; N. J. S. A. 2:27-424 and 426. The late Judge Lawrence, in Waterbury v. Public Service Electric and Gas Co., 12 N. J. Mis. R. 362; 171 Atl. Rep. 779, pointed out that his inquiry at the clerk’s office elicited the information that in a suit involving' plural defendants, it is the practice to tax costs for each defendant.

The twelve defendants demanding security are entitled to . a compliance with the statute, and the action must be stayed until the security is filed or deposit made by the plaintiff in .favor of each such defendant.


author: Delmar, J.

text:
    IN THE MATTER OF THE ADOPTION OF SUSAN-, AN INFANT.
   Delmar, J.

The petitioners who reside in Union County have petitioned this court for permission to adopt Susan -, an infant, who has resided with them for more than a year prior to the filing of the petition. Susan is an illegitimate child; she was born in Hackensack. Her mother has been a resident of Bergen County ever since she was born having made her home with her parents. The child was born in' the early part of 1942. Her -mother surrendered her to the Child Welfare Department of the County of Bergen ten days after her birth, at which time she executed a form wherein she signified her consent to the child’s adoption. The petitioners acquired her custody the following day for the purpose of adopting her with the understanding between them and the Child Welfare Department that if the child did not make the proper adjustment in the petitioner’s home she would be returned to said department. Upon the filing of the petition the Child Welfare Department was appointed next friend of the said infant and has given its consent to the adoption by the petitioners.

The only question presented by the foregoing set of facts is whether the Bergen County Orphans Court has jurisdiction to decree said adoption.

An adoption proceeding is a proceeding in the nature of a proceeding in rem, and in order to give- an adoption decree extra-territorial effect it is necessary that the court making the decree should have jurisdiction over the subject-matter, which is the status of the child. Lister v. Lister, 86 N. J. Eq. 30 (at p. 35); 97 Atl. Rep. 170; Van Matre v. Sankey, 148 Ill. 536; 36 N. E. Rep. 628; 23 L. R. A. 665; 1 R. C. L. 602; 2 C. J. S., tit. “Adoption of Children," p. 369, § 1; Portman v. Mobley, 158 Ga. 269; 123 S. E. Rep. 695; Glansman v. Ledbetter, 190 Ind. 505; 130 N. E. Rep. 230; In re Finkenzeller’s Estate, 105 N. J. Eq. 44; 146 Atl. Rep. 656; affirmed, 107 N. J. Eq. 180; 151 Atl. Rep. 905.

Under R. 8. 9:3-1; N. J. S. A. 9:3-1, it is required that the petition be addressed to the Orphans Court of the county “wherein petitioner or any minor child may reside.” The petitioners resided in Union County at the time of the filing of the petition and the child actually resided with them. The meritorious question is whether such residence even though perhaps only of a temporary nature is the residence determining the jurisdiction of the court in this case.

I have been unable to find any judicial construction of the statute in question, and I have not been favored by any brief by the attorneys for the petitioners. I am confronted at the outset to such cases as Van Matre v. Sankey, supra, holding that under the Adoption Act of Pennsylvania, the word “residence” means actual residence as distinguished from domicile. See, also, Milligan v. McLaughlin, 94 Neb. 171; 142 N. W. Rep. 675; 46 L. R. A. (N. S.) 1134, for a full discussion of the subject. Appeal of Wolf, 13 Atl. Rep. 760; 10 Sadler 139 (Pa.); Dabaghian v. Kaffafian, 71 N. J. L. 115; 58 Atl. Rep. 106; (Practice Act, N. J. S. A. 2:27-19), deciding that the word “reside” means actual residence at the time of the institution of the suit.

To the contrary a long line of cases construing various statutes wherein the word “residence” has been held to mean legal residence or domicile, for instance, Russell’s Case, 64 N. J. Eq. 313; 53 Atl. Rep. 169; Hess v. Kimble, 79 N. J. Eq. 454; 81 Atl. Rep. 363; King v. King, 74 N. J. Eq. 824; 71 Atl. Rep. 687; Hervey v. Hervey, 56 N. J. Eq. 166 (at p. 174); 38 Atl. Rep. 767; Rinaldi v. Rinaldi, 94 N. J. Eq. 14; 118 Atl. Rep. 685; Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643; Cadwalader v. Howell, 18 N. J. L. 138 (Election Law). Also Woodwards App., 81 Conn. 152; 70 Atl. Rep. 453, and Greene v. Willis, 47 R. I. 375; 133 Atl. Rep. 651, denying rehearing, 47 R. I. 251; 132 Atl. Rep. 545; Johnson v. Smith, 94 Ind. App. 619; 180 N. E. Rep. 188.

Except to point out that the word “reside” or “residence” as used in a statute may mean either actual residence or place of abode or else legal residence or domicile little help can be obtained from an examination of the numerous decisions on the question.

R. S. 9:3-3; N. J. S. A. 9:3-3, requires that the petition shall state the residence of the petitioner and of the child.

R. S. 9:3-5; N. J. S. A. 9:3-5, forbids granting of a decree of adoption unless the child has been living continu ously in the home of the petitioner or petitioners for not less than one year (six months in the exercise of the court’s discretion) and requires the testimony of a witness other than the petitioner that the child has resided in the home of the petitioner for the required time.

At first blush it would seem that the word "reside” as used in the Adoption Act meant the actual residence or place of abode of the child; however, it should be noted that B. S. 9:3-5 was an amendment passed in the year 1938 and that the requirements relating to the residence of the child for six months or one year were not a part of the original- act, the author of which contemplated that the petitioners could reside in one county and that the child could reside in another county.

Although it would be natural to assume that the legislature in enacting a law would use the same word twice to convey the same meaning twice, nevertheless, this assumption is not necessarily correct. In the case of Brundred ads. Del Hoyo, 20 N. J. L. 328, it was pointed out by the Supreme Court that the legislature used the word "resident” in two different sections of the Attachment Act — in one section to mean actual residence or inhabitanee, and, in the other, to mean legal residence or domicile. The original adoption statute should be construed as of the time when it was enacted, and the amendment as of the time when it was . enacted in the light of the result sought to be achieved which was merely to prevent hasty, and, perhaps, ill-advised adoptions. Book’s Will, 89 N. J. Eq. 509 (at p. 510); 105 Atl. Rep. 878.

Statutes permitting adoption are in derogation of the common law and must be strictly construed. Book’s Will, supra; Elmer v. Wellbrook, 110 N. J. Eq. 15; 158 Atl. Rep. 760. However, this rule does not require that an unnatural construction be placed upon the language used by the legislature. At the time when the Adoption Act was originally enacted it was common practice for petitioners to adopt a child immediately upon obtaining its custody, and, in some cases, even before that, in which latter cases petitioners and the infant would ordinarily have different places of residence. Since an infant is not sui juris and therefore has no ability to determine its own residence, it follows that a child lives wherever those in whose custody it may be may happen to take it to dwell for the time being. If the word “reside” as used in section one means where the infant may live, then it would be possible to confer jurisdiction on any Orphans Court of the state by simply taking the child to live in the county in which the Orphans Court is petitioned to act, or even for a non-resident to bring a child into this state to be adopted here and then taken out; a construction opening the doors to fraud. A person may have more than one residence, but he can have only one domicile. Stout v. Leonard, 37 N. J. L. 492 (at p. 495). It is therefore a stricter interpretation of the word “reside” as used in that section to say that, it means legal residence or domicile.

The domicile of every person at its birth is the domicile of the person on whom it is legally dependent, whether that is at the place of birth or elsewhere. So the domicile of the father (if the parents are married) is ordinarily the domicile of the child. Blumenthal v. Tannenholz, 31 N. J. Eq. 194; Russell’s Case, 64 N. J. Eq. 313; 53 Atl. Rep. 169.

The domicile of an illegitimate child is determined by that of its mother. Sudler v. Sudler, 121 Md. 46; 88 Atl. Rep. 26; 49 L. R. A. (N. S.) 860; Undy v. Undy, L. R. 1, H. L. Sc. 441-9, in Ruling Cases, 782.

It is the general rule that an unemaneipated infant cannot of its own volition acquire a new domicile. Russell’s Case, 64 N. J. Eq. 313; 53 Atl. Rep. 169; Van Matre v. Sankey, supra; Sudler v. Sudler, supra.

A domicile once acquired continues until a new one is acquired. Guggenheim v. Long Branch, 80 N. J. L. 246; 76 Atl. Rep. 338; affirmed, 83 N. J. L. 628; 84 Atl. Rep. 21.

At the time of her birth Susan’s mother was legally domiciled in Bergen County. It therefore follows that Susan acquired a domicile in Bergen County and retains that domicile until she acquires a new one. The surrender of her custody to the Child Welfare Department by her mother might well be an act establishing a new domicile: it is not necessary '.to decide that point because the Child Welfare Department of Bergen County is a corporation, having its home and principal office in the City of Hackensack, within the county. The surrender of the custody of the child by that society to the petitioners established a temporary residence for the child which cannot become permanent until this court has decreed the adoption by the petitioners at which, time the child will acquire a new domicile. In re Benton, 92 Ia. 202; 60 N. W. Rep. 614; Cox v. Boyce, 153 Mo. 576; 54 S. W. Rep. 467; Note 49 L. R. A. (N. S.) 863; Shick v. Howe, 137 Ia. 349; 114 N. W. Rep. 916; 14 L. R. A. (N. S.) 980; Finley v. Brown, 133 Tenn. 316; 133 S. W. Rep. 359; 35 L. R. A. (N. S.) 1285; Van Matre v. Sankey, supra.

I therefore conclude that the words “where any minor child may reside”.as used in R. 8. 9:3-1 means “where any minor child may have its domicile” and that Susan-, having hex domicile in Bergen County this court has jurisdiction and that a decree of adoption should be signed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARK STARK, PETITIONER, v. MARTIN DRUG COMPANY, RESPONDENT.
    Decided May 16, 1944.

      For the petitioner, David Cohn.

    For the respondent, John W. Taylor.

   A formal claim petition having been filed by the petitioner,, claiming compensation benefits under the terms and provisions of the Workmen’s Compensation Act of New Jersey,, as amended and supplemented, N. J. S. A. 34:15-1, et seq., and an answer having been duly filed by the respondent, the-matter came on for hearing before me at Paterson. Testimony was taken on behalf of both parties.

Petitioner testified that he had been employed by the-respondent since March 4th, 1940, as a general handy man and clerlf. He stated that on December 2d, 1940, while working at his regular job about 11:00 p. M., a Mr. Dienges, who-was employed by the respondent as a truck driver, came in and said there was a flood in the restaurant adjoining respondent’s premises; that Dienges told Mrs. Goldstein, an officer of the respondent corporation, that he was going to fix the-radiator in the restaurant; that Mrs. Goldstein then directed petitioner to accompany Dienges and help; that he walked into the restaurant and slipped and fell on the wet floor of' the restaurant and that a radiator toppled over on his left foot causing injury to same; that he was thereafter taken to the Barnert Memorial Hospital by a Mr. Hoffman, a salesman, who happened to stop by about the time the injury occurred.

On cross-examination petitioner denied that anyone from respondent’s insurance carrier had interviewed him and obtained a statement concerning the alleged occurrence. He-admitted, however, that Mr. Dienges was not only employed as a part time employee of the respondent company, but was employed as the superintendent of the apartment building-in which both the respondent’s place of business and the-aforementioned restaurant were located and in that capacity employed by a concern entirely unrelated to respondent, company.

A Mr. Samuel Hoffman, a salesman, selling general merchandise, testified that he was in respondent’s place of business between 10:30 and 11:00 p. m., on December 2d, 1940,. and that he saw petitioner working; that a man came in and told Mrs. Goldstein that a radiator in the restaurant was leaking; that Mrs. Goldstein told petitioner to go with this other man and help fix the radiator.

On behalf of respondent, Mrs. Goldstein, secretary and treasurer of the respondent company, testified that Mr.. Dienges was employed as superintendent of the apartment house building in which respondent’s store and the restaurant were located and that he was, also, employed as a part time-worker by respondent company. She stated that, on the night of December 2d, 1940, petitioner and Mr. Dienges, as well as herself, were employed in respondent’s store. They were-packing orders to be delivered the following day. Mr. Diengeslived in an apartment located in the same building and according to her his work as superintendent of the building, in charge-of its maintenance, was entirely separate and distinct from any work performed by him on behalf of respondent company. She said that sometime during the latter part of the evening,. Mr. Dienges, in her presence, told petitioner that there had been a complaint, by the operator of the restaurant, respecting a radiator therein located. She heard Mr. Dienges ask petitioner if he would help him with the radiator after they finished their work for respondent company, and petitioner-said that he would. After petitioner and Dienges finished their work, for respondent about 10:30 p. m., they left respondent’s premises and entered the restaurant premises.. Thereafter Mrs. Goldstein learned that petitioner suffered injury while on the restaurant premises. She denied that she-instructed petitioner to help Dienges.

John Dienges testified that he was employed as superintendent of the apartment building wherein respondent’s business, as well as the restaurant, was operated. In addition to-his work as superintendent of the building he, also, had part-time work with respondent company. He is now no longer-employed by respondent. As superintendent of the building he was in charge of the maintenance of the general premises. He stated that on the night of December 2d, 1940, he was working in respondent’s store with petitioner and Mrs. Gold-stein and that while he and petitioner were working together he asked petitioner to give him a hand fixing the radiator in the restaurant, after they finished their work for the respondent company. Petitioner said that he would.. They finished their work late in the evening and then he and petitioner went next door to the restaurant to fix the radiator. It was while they were on the restaurant premises that the petitioner met with injury. Dienges’ work, according to him, was nowise related to his employment by respondent and petitioner’s services were rendered in response to Dienges’ personal request for help.

Mr. Joseph Mustard, an investigator for the Liberty Mutual Insurance Company, testifying on behalf of respondent, stated that he interviewed petitioner December 19th, 1940, respecting the alleged incident. Mr. Mustard stated that he was told by petitioner: that he was requested on the evening of December 3d, 1940, by Mr. Dienges, to go on the restaurant premises with him, after they had finished their work for respondent, to help him and that he informed Dienges that he would help him. Petitioner then said that he did not mind doing this favor for Dienges inasmuch as he was a good friend of his. Petitioner further stated, to Mr. Mustard, that when he and Dienges finished their work for respondent company about 11:30 p. at., they went into the adjoining restaurant to drain the radiator and that it was while they were preparing to do this that he met with the alleged injury. Petitioner told Mustard that he was not working for respondent company at the time of the injury and that he. was in the restaurant merely for the purpose of helping Dienges.

Mr. Hoffman, who had testified in petitioner’s main case, was recalled as a rebuttal witness and testified that he was present at .respondent’s place of business when Mr. Dienges came in and said there was a leak in the radiator of the restaurant' and requested petitioner to help him. Hoffman further stated that Mrs. Goldstein instructed petitioner to help Dienges repair it. On cross-examination Hoffman stated that Mrs. Goldstein had merely permitted Stark to help Mr. Dienges.

I have carefully considered the testimony offered on behalf of both of the parties and find that the weight of the believable testimony lies with respondent. There is no doubt in my mind but what Dienges, who was employed as the superintendent of the building in which the restaurant and respondent’s premises were located and who was responsible for the maintenance of the entire building, merely requested Stark as a personal favor, to himself, to help him with the heavy radiator and that Stark’s presence in the restaurant was occasioned merely by his own voluntary act of helping Mr. Dienges. I find as a fact that Mrs. Goldstein did not instruct nor direct petitioner to help Dienges and further find as a fact that petitioner was not engaged in the furtherance of his employment by respondent at the time of the alleged injury and that he did not leave respondent’s premises with Mr. Dienges until after he had completed his work for the day. I am not at all impressed by the testimony of Mr. Hoffman nor petitioner in this regard. I am convinced that the true version of the happening was given Mr. Mustard by petitioner and that his testimony respecting the manner in which he arrived on the restaurant premises is merely an afterthought.

The question in this case is whether or not the accident which petitioner suffered, while on the restaurant premises, arose out of and in the course of his employment.

In Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181, Mr. Justice Heher, in defining a compensable accident within the purview of the Workmen’s Compensation Act, stated as follows: “An accident arises fin the course of’ the employment when it occurs (a) within the period of employment; (b) at a place where the employee may reasonably be; and (c) while he is reasonably fulfilling the duties of the employment, or doing something incidental to it. It arises ‘out of’ the employment when the risk of such an occurrence is reasonably incident to the employment. Such a risk is one that grows out of or is connected with what a workman has to do in fulfilling his contract of service. And a risk may be incidental to the employment when it is either an ordinary risk, directly connected therewith, or one extraordinary in character, indirectly connected with the employment because of its special nature. If the danger were one to which the employee was exposed because of the nature of his employment, the accident arose out of the employment. In fine, there must be a causal connection between the conditions under which the work is required to be done and the resulting injury. The injury must have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” Hully v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007; Bryant, Adm'x, v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458; Hall v. Doremus, 114 N. J. L. 47; 175 Atl. Rep. 369.

Tested by this rule, the accident suffered by petitioner, when he offered his assistance to Mr., Dienges in the repair of a leaky radiator even though he may have obtained respondent’s permission to leave the drugstore during his period of employment for the few minutes allowed, did not arise out of nor in the course of his employment with respondent. From the time he left respondent’s drugstore, for the above stated purpose, and until his return and resumption of employment as a clerk, there was an hiatus, or temporary suspension of the employment, and an accident occurring to him during this period could not legally be charged against respondent.

Accordingly, I am constrained to hold that petitioner has failed to sustain the burden of proof in establishing a compensable accident.

It is this 16th day of May, 1944, ordered that the petition filed herein be and hereby is dismissed.

John J. Stahl,

Deputy Commissioner.


author: Burling, C. C. J.

text:
    Atlantic County Circuit Court.
    THE NATIONAL RADIATOR COMPANY, A CORPORATION OF THE STATE OF MARYLAND, JOHN SIMMONS CO., A CORPORATION OF THE STATE OF NEW YORK, AND C. H. LEIBFRIED MFG. CORP., A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFFS, v. CHELSEA HOUSING CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, OWNER, AND ANTHONY P. MILLER, INC., A CORPORATION OF THE STATE OF NEW JERSEY, GENERAL CONTRACTOR AND BUILDER, AND IRVING J. GLUCK, INC., A CORPORATION OF THE STATE OF NEW YORK, SUB-CONTRACTOR, DEFENDANTS.
    Decided March 29, 1944.
    For the plaintiffs, I. Joseph Stein (for whom appeared John W. Ockford).

      For the defendant Anthony P. Miller, Inc., a corporation of the State of Mew Jersey, Thomas H. Munyan.

   Burling, C. C. J.

This is a suit by three materialmen against the owner, general contractor and subeonstractor arising out of the construction of a private housing project in Atlantic City, Mew Jersey, under a filed contract. R. S. 2:60-115, et seq.; N. J. S. A. 2:60-115, et seq.

Motion has been made by the general contractor for a rule dropping it as a party defendant pursuant to R. S. 2:27-31; N. J. S. A. 2:27-31, and Supreme Court rule 41 N. J. S. A. tit. 2, as not being a proper party and that it has been misjoined. '

To decide the motion herein, immediate confrontment occurs with the problem as to whether a stop-notice of a materialman who furnishes to a subcontractor acts as assignment pro tanto of funds due a general contractor where a default in performance by the subcontractor has occurred and the cost of completion of that subcontract has wiped out any money otherwise due to the subcontractor from the contractor.

Subject to the cost to the owner to complete upon the default of the general contractor, a stop-notice of the material-men who furnished to the general contractor acts as an assignment pro tanto of the contract price owing by the owner to the contractor. Brown v. Home Development Co. (Court of Chancery, 1941), 129 N. J. Eq. 172; 18 Atl. Rep. (2d) 742.

The motion is resisted by the plaintiffs and it is contended by them that in the light of the opinion in St. Michael’s, &c., Hopewell v. Conneen Construction Co. (Court of Chancery, 1933), 114 N. J. Eq. 276; 166 Atl. Rep. 458; affirmed (Court of Errors and Appeals, 1933), 115 N. J. Eq. 334; 170 Atl. Rep. 649, such is the law of the State of Mew Jersey, and that the Mechanics’ Lien statute as a result of amendment in 1917 (chapter 241) and subsequent amendments thereto, now R. S. 2:60-116; N. J. S. A. 2:60-116, is so intended tó protect such materialmen and have their claims paid out of moneys due by the owner to the general contractor.

In the case of Carlisle v. Knapp (Court of Errors and Appeals, 1889), 51 N. J. L. 329 (at p. 331); 17 Atl. Rep. 633, the inconvenience that would be placed upon a general contractor if such were the law was recognized in the construction of a former act which was held to limit relief to materialmen of the general contractor. Subsequent to the enactment of the amendment of the Mechanics’ Lien Statute of 1917 (chapter 241) hereinbefore referred to, adjudication construing this statute was made in the case of Morris County Golf Club v. Hegeman-Harris Co., hereinafter referred to as the Golf Club case (Court of Chancery, 1923), 121 Atl. Rep. 528 (not reported otherwise), and which was affirmed in the Court of Errors and Appeals without syllabus upon the opinion below, George A. Mills Co. v. Hegeman-Harris Co. (Court of Errors and Appeals, 1923), 94 N. J. Eq. 802; 122 Atl. Rep. 926; 125 Id. 127, and is controlling in the present situation. In that case in paragraph 1 of the syllabus of the opinion the following statement is made:

“Where subcontractor had not been paid in full when he abandoned work and the amount unpaid was insufficient to meet claims of materialmen filed under 3 Comp. Stat. 1910, p. 3294, § 3, as amended by Act March 29th, 1917 (Pamph. L., p. 821 [N. J. S. A. 2:60-116]), and the principal contractor’s loss in completing the subcontractor’s work exceeded the balance due the subcontractor, the principal contractor’s claim for such loss was superior to those of materialmen, and he was entitled to the whole of the sum due the subcontractor.”

And in the body of the opinion the following:

“As the fund is insufficient to pay the contractor, it is entitled to the whole fund, unless by reason of the Mechanics’ Lien Act (3 Comp. Stat. 1910, p. 3290, et seq. [N. J. S. A. 2:60-l 05, et seq.), the claims of the claimants under stop-notices take precedence of the claim of the contractor. * * * “The only point that can be asserted in favor of these claimants is that, in certain instances the contractor paid in advance of the terms of its contract to Taab.”

The plaintiffs contend that the effect of the decisions in the ease of St. Michael’s, &c., Hopewell v. Conneen Construction Co., supra, hereinbefore referred to is to overrule the construction placed upon the pertinent statute in the Golf Club case, and that the statute is clearly intended to protect the materialmen and to have their claims paid out of the money due by the owner to the general contractor, regardless of the default of the subcontractor with whom they contracted, and that the cost of the completion of that subcontract has wiped out any moneys due otherwise to the subcontractor from the general contractor.

The plaintiffs contend that the reasoning of the United States District Court Judge for the District of New Jersey, in an unreported opinion in Nolan v. Chelsea Housing Corp., in a cause of action relating to this very project, gives effect to the legislative intent in the following language:

“The effect of this later decision [St. Michael's, &c., Hopewell v. Conneen Construction Co., 114 N. J. Eq. 276; 166 Atl. Rep. 458; affirmed, 115 N. J. Eq. 334; 170 Atl. Rep. 649], as I see it, is contrary to the principle established in the Golf Club case. It is sure that to some extent it relies upon the clause in the contract as to the passing of ownership of delivered materials to the contractor, and yet a careful reading indicates that the Vice-Chancellor did not agree with the determination in the former case. This latter case was affirmed by the Court of Errors and Appeals without opinion in that court, and by a divided court — eleven for affirmance, three for reversal.

“I believe I am following the latest decision of the Court of Errors and Appeals when I determine that plaintiff is entitled to the amount claimed as principal with interest.”

The soundness of this construction was attacked in an appeal from the said decision of the United States District Court for the District of New Jersey, and the Circuit Court of Appeals held that the rule in the Mills & Co. v. Hegeman-Harris Co., hereinbefore referred to as the Golf Club case (supra) remained undisturbed as the law. This opinion is reported in 128 Fed. Rep. (2d) 872 (U. S. Court of Appeals, Third District, 1942).

It has been contended by the plaintiffs that this decision is not binding in the state court in this cause of action, and while such is the case still the weight and dignity of that opinion is not to be lightly disregarded.

The decision in the Golf Club case remained undisturbed and without judicial deviation therefrom until 1933, in the St. Michael’s, &c., Hopewell v. Conneen Construction Co., supra, case, and no other pertinent adjudications have been made subsequent to the St. Michael’s, &c., Hopewell v. Conneen Construction Co., supra, case.

To avoid the effect of the decision in the Golf Club case, it is necessary to differentiate the facts in a given ease. This was the objective and the ultimate pivot of the decision in the St. Michael’s, &c., Hopewell v. Conneen Construction Co., supra, case and in the construction of the contract in the Nolan case, the United States Circuit Court of Appeals held that the differential in that ease did not exist as it did in the St. Michael’s, &c., Hopewell v. Conneen Construction Co., supra, case and that the Court of Errors and Appeals when the St. Michael’s case (referred in that as the Conneen ease) came to it on appeal, did not accept the proffered opportunity to overrule the Hegeman-Harris decision but that instead it affirmed the decision of the Court of Chancery for reasons expressed in the opinion of Vice-Chancellor Davis which had expressly distinguished the facts in the St. Michael’s, &c., Hopewell v. Conneen Construction Co., supra, case from the Golf Club case, and that the law of the state was expressed in the Hegeman-Harris Golf Club case. It then proceeded to the consideration of the contract and determined that title to the materials furnished by the plaintiffs therein was not intended to and did not pass to the general contractor, and accordingly reversed the opinion of the United States District Court.

The complaint filed in this cause of action demands judgment against the defendants generally.

No allegations are contained in the complaint that title to the materials involved was by the provisions of the subcontract intended to pass or actually did pass to the contractor upon their delivery at the side of the work.

In the main body of the complaint there is no specific allegation of the source of incurrence of the debt (paragraphs 6 and 7) but the copy of the stop-notice is incorporated inte the complaint by reference (paragraph 9) and in ¿hat notice lit is alleged that'the materials were furnished to George J. .Meek, a subcontractor and used in the buildings involved in the principal contract.

The notice of dispute in this case was given by the general . contractor. The subcontractor Irving J. Gluck, Inc., apparently has not been served in the manner provided by law and has not entered an appearance in this cause of action. The .judgment contemplated by R. S. 2:60-121; N. J. S. A. ,2:60-121, should be obtained against the party with whom .the claimant had privity of contract, namely the subcontractor., This was accomplished prior to the institution of suit in the Holan case by a default judgment against the subcontractor and thereafter suit was entered against the owner.

Upon the oral argument of this motion the plaintiffs .asserted that it was not their intention to assert a money .judgment against the general contractor.

. Under these circumstances the general contractor is not called upon to defend a general judgment in damages against itself and by virtue thereof and of the practice referred to in Sargeant Bros., Inc., v. Brancati (Court of Errors and Appeals, 1930), 107 N. J. L. 85; 151 Atl. Rep. 843, this .defendant is an unnecessary party.

. ■ It is contended by the plaintiffs that the point in issue in ¡that case was whether a suit against the owner was required ,to be instituted in the Circuit Court, and that the question of whether the general contractor was a proper party was not at issue, and that the statement of the court was therefor dictum. The statements were judicial dictum, however, and should not be lightly regarded. Crescent Ring Co. v. Travelers Indemnity Co. (Court of Errors and Appeals, 1925), 102 N. J. L. 85; 132 Atl. Rep. 106.

„ ■ .Assuming the complaint does not charge a cause of action .for a direct judgment in dollars against the general contractor .or that such a judgment against the general contractor is not to be asserted, then it is alleged by the plaintiffs that the .general contractor is a proper party otherwise.

Under the section of the Practice Act of 1912, now R. S. 2:27-25; N. J. S. A. 2:27-25, parties defendant are .described:

“Subject to rules, any person may be made a defendant, who jointly, severally or in the alternative, is alleged to have or claim any interest in the controversy, or any part thereof, adverse to plaintiff or whom it is necessary to make a party for the complete determination or settlement of any question involved therein.”

It is for the courts to give effect to the objective of the act of 1912 which was plainly designed to mould procedure and judgments at law in a large measure according to the pattern of equity. Common law conception of the parties on each side as a unit no longer obtains. Woodbridge v. DeAngelis (Court of Errors and Appeals, 1940), 125 N. J. L. 579 (at p. 581); 17 Atl. Rep. (2d) 542.

In equity practice parties defendant have long been defined and classified as necessary and proper. Necessary parties are those who are indispensable to the suit. Proper parties are defined in 1 Kocher & Trier, New Jersey Chancery Practice and Precedents 33:

“* * * proper parties are persons having no real interest in the question at issue, but who still have some interest in the subject-matter of the suit which may be conveniently settled in such suit, thereby preventing further litigation.”

In case of proper parties, complainant in equity makes them parties if he choses and the bill is not demurrable on that account. Whittemore v. Coster et al. (Court of Chancery, 1844), 4 N. J. Eq. 438 (at p. 442).

But in the case of Greiss v. Noisky, 82 N. J. Eq. 1 (at p. 7); 87 Atl. Rep. 155, 157, it was held:

“Where no relief is prayed for in a bill against a defendant, the bill will be dismissed as against him. Patterson v. Patterson, 1 Hayw. (NC) 167.”

Since no relief against this defendant is asserted in this cause of action, it is not a proper party.

The motion will be granted and appropriate rule may be presented.


author: Burlins, C. C. J. and S. C. C.

text:
    CHARLES DOUGLASS, PLAINTIFF, v. CAESAR KABALAN, DEFENDANT.
    Decided February 28, 1944.
    For the plaintiff, John Henry Reiners, Jr.

    For the defendant, Nathan O. Staller (by Albert B. Melnik).

   Burlins, C. C. J. and S. C. C.

This action was tried by the court with a jury and verdict was rendered in favor of the plaintiff against the defendant in the sum of $865.

Within due season, an application was made by the defendant and a rule was granted by my predecessor, to show cause why the verdict in the cause should not be set aside and a new trial granted. Leave was granted to take depositions to be used on the argument of the rule.

The following reasons were assigned by the defendant:

(1) Because the verdict is against the weight of the evidence.

(2) Because the verdict is against the evidence.

(3) Because the verdict is contrary to law.

(4) Because the verdict is the result of passion, prejudice and mistake.

(5) Because of the misconduct of a juror who, during the course of one of the recesses during the trial, was wrongfully and unlawfully engaged in conversation with plaintiff’s material witness, all of which was prejudicial to the rights of the defendant.

(6) Because the jury arrived erroneously at its verdict.

(7) Because the jury improperly and unlawfully reached its verdict.

Upon consent of both parties, a rule was entered herein to continue the hearing upon this rule before me.

Delay has occurred in the disposition of the rule because of the inability of the parties to obtain a transcript of the evidence taken at the trial, and the following stipulation was entered into:

“Counsel for the respective parties hereby stipulate and agree that the court shall consider as the reasons assigned for the granting of a new trial in the above entitled cause, the following:

“1 — Because of the misconduct of a juror who, during the course of one of the recesses during the trial, was wrongfully and unlawfully engaged in conversation with plaintiff’s material witness, all of which was prejudicial to the right of the defendant;

“2 — Because the jury improperly and unlawfully reached its verdict.

“The other reasons heretofore assigned as grounds for a new trial are waived for the reason that it was impossible to secure a transcript of the evidence taken at the trial of the cause, the stenographer who took the testimony having died shortly after the above stated case was tried and her notes of testimony not ever having been found.”

Depositions in the interim were taken pursuant to the' terms of the rule, by the defendant of Mary Kabalan, wife of the defendant and of 'Margaret Rea, employee of the defendant. Neither of these witnesses' testified that the alleged, conversation between the juror and the witness related to the case. Their testimony at the best was to the effect that the conversation lasted from two to four minutes in the open court room during an afternoon recess. Depositions tfere also taken by thé plaintiff of Florence Potts, an employee of the plaintiff. There is a direct and positive denial by the witness, Florence Potts, of any conversation with the juror.

The burden of proof to sustain the reasons assigned upon the argument of the rule rests with the proponent, the defendant in this case.

■ The juror was alleged to be a female, and since there was only one female juror among the twelve who served, her identity and residence was available beyond a doubt from the court records for that purpose. The conduct under investigation was external to the jury room and her testimony was competent.-

, An opportunity was extended by me to enlarge the terms of the rule .to permit the deposition of the juror to be taken and it was not accepted.

. In the syllabus of Kennedy v. Kennedy (Supreme Court, 1842), 18 N. J. L. 450, it was held:

“On rule to show cause why verdict should not be set aside, on the ground of misbehavior of jury, the affidavit of jurors in their own exculpation are admissible in evidence.”

And in the case of In re Collins' Will (Cape May County Circuit Court, 1940), 18 N. J. Mis. R. 492 (at p. 496); 15 Atl. Rep. (2d) 98, 100, it was held:

“Depositions of the members of the jury are presented on behalf of the appellant in the effort to protect the verdict. Such depositions may be employed to enable jurors to exculpate themselves from a charge of misconduct. Kennedy v. Kennedy, 18 N. J. L. 450; Hutchinson ads. Consumers’ Coal Co., 36 Id. 24.”

The proofs, even of non-pertinent conversation with the juror by the witness in the open court room, are not satisfactory. The charge was based upon the testimony of the defendant’s wife and of an employee of the defendant and they remained silent after the alleged event, until after the adverse verdict, despite the careful warning of the trial judge at the noon recess of the trial to report any such occurrences.

Since the reasons assigned as to the verdict that relate to the weight of the evidence were required to be abandoned, resort to the test of improper reflection in the verdict of a conversation (if so held) relating to a material part of the case is unavailable. Nevertheless and although I am obliged to dismiss the rule, such charges are not to bo treated lightly. It is not amiss to state that it is an impropriety which exposes a juror to suspicion if conversations are to be engaged in between a witness and juror during the course of a trial, even if it appears that the conversation was not germane to the subject-matter of the trial. Precaution leads to prevention. The appearance of evil should be as much avoided as evil itself.

Appropriate rule of discharge may be presented.