author: Wm. J. Brennan, Jr., J. A. D.

text:
    THEODORE GUACLIDES AND MARY B. GUACLIDES, PLAINTIFFS-APPELLANTS, v. BOROUGH OF ENGLEWOOD CLIFFS, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 15, 1951 —
    Decided January 24, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Irving I. Rubin argued the cause for appellants.

      Mr. Domenick F. Pachella argued the cause for respondent (Mr. Thomas S. Clancy, attorney).
   The opinion of the court was delivered by

Wm. J. Brennan, Jr., J. A. D.

Plaintiffs appeal from an adverse judgment entered after trial in the Law Division, Bergen County, in a proceeding in lieu of prerogative writ whereby they challenged as unreasonable, arbitrary and capricious a 1949 amending ordinance to the 1932 zoning ordinance of the Borough of Englewood Cliffs. The amending ordinance changed all multi-family dwelling districts within the borough to single-family dwelling zones, except a district, or a part of a district, at the extreme north end of the municipality. Plaintiffs own a 17-acre tract in one and a two-acre tract in another of the affected districts.

The borough is a small residential community on the Palisades, bounded on the west by the City of Englewood, and by the Boroughs of Port Lee on the south and Tonally on the north. It overlooks Palisades Interstate and Allison Parks, which lie to the east along the Hudson River. Route 9-W, a principal highway for traffic to and from George Washington Bridge, which is distant about a mile and a half south, traverses the length of the borough and, within borough limits, is known as Sylvan Avenue. The community is on a plateau sloping east from Sylvan Avenue toward the river to Hudson Terrace, about 30 feet below, and sloping west from Sylvan Avenue to the boundary line at the City of Englewood.

The terrain throughout the borough is typical of the Palisades area with pronounced outcroppings of rock on the plateau, especially in the undeveloped wooded areas east of Sylvan Avenue to Hudson Terrace where plaintiffs’ 17-acre tract is located; the terrain to the west of Sylvan Avenue has also essentially a rocky base, although overlaid to a greater extent with earth and shale.

The borough has not had the experience of a large increase of population and the building of many new homes which has been common to many Bergen County communities' since the opening of the George Washington Bridge in 1932, and which has been particularly pronounced since the end of World War II. Its 1932 population of about 900 has remained virtually constant and until the past year, when five new homes were built, not more than one or two houses were constructed there in any year since 1932. Builders and promoters of single-family dwelling projects, sites for which are now in short supply in the county, have inquired into the borough’s possibilities for the purpose, but, as stated by one of plaintiffs’ expert witnesses, “They didn’t touch Englewood Cliffs. Why ? On account of the rock.” This rock condition requires an expenditure of from $3,000 to $4,000 for improvements on a lot 70 feet by 100 feet, particularly along the plateau, as compared with the cost of $600 to $700, and maximum of $1,000, required generally for that size lot in most communities of the county.

The’ borough, nevertheless, has always been, and is, primarily a community- of single-family homes. Fo apartment house or other like multi-family structure has ever been built in the borough, although under the 1932 zoning ordinance such structures were permissible along the entire plateau facing the river front, and also in the southerly and middle segments of the municipality west of Sylvan Avenue, back to the City of Englewood line, and in the north end of the borough, about half way to the Englewood city line.

Plaintiffs purchased their 17-acre tract in 1945. It is located in the southerly end of the borough, east of Route 9-W or Sylvan Avenue and between that thoroughfare and Hudson Terrace. In 1949 they purchased, and now make their home on, the two-acre tract which has a large residence and outbuildings and is located on Floyd Street on the west slope.

On March 15, 1949, plaintiffs made an agreement with Lane Construction Company for the sale of about 13 acres of the 17-acre tract. That company thereupon sought the Borough council’s approval of a plot plan suitable to the erection thereon of a garden-type apartment project. Residents of the borough protested by petition to the borough council. On June 33, 1949, the challenged ordinance was introduced and became effective July 14, 1949.

The amending ordinance is applicable to every area throughout the borough where multi-family structures had been permitted under the 1933 ordinance and now permits therein only single-family structures on lots 70 feet by 100 feet, except, as mentioned, in the extreme northerly end of the borough, where, however, there are presently no sewerage facilities.

The obvious purpose and effect of the amending ordinance is to preserve the character of the borough as predominantly a community of single-family homes. We concur with the trial court’s finding that in the circumstances shown by this record plaintiffs have not sustained their allegation that the ordinance is arbitrary, unreasonable and capricious in its effect.

There is a presumption that the regulation is reasonable, and the burden is upon plaintiffs to establish the contrary. Brandon v. Montclair, 124 N. J. L. 135 (Sup. Ct. 1940) ; affirmed, 125 N. J. L. 367 (E. & A. 1940); Lumund v. Board of Adjustment of the Borough of Rutherford, 4 N. J. 577 (1950) ; Eastern Boulevard Corp. v. Willaredl, 125 N. J. L. 173 (Sup. Ct. 1940); affirmed, 125 N. J. L. 511 (E. & A. 1941). The rule is that even “if the validity of the action be fairly debatable, the legislative judgment prevails.” Appley v. Bernards Township, 128 N. J. L. 195 (Sup. Ct. 1942).

Plaintiffs argue that the ordinance does not conform to the statutory requisites laid down in R. S. 40 :55-32. We are unable to agree. The ordinance evinces, as required by that statute, (1) a comprehensive plan, (2) designed for one of the purposes enumerated in the section (in this instance, to “promote * * * the general welfare”), and (3) “made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.”

The plan is clearly comprehensive, embracing, as it does, changes in 13 specified areas, and not just in the two where plaintiffs’ tracts are located, and restricting virtually the entire community to structures of the specified single-family type, except where incidental and necessary commercial and business structures are allowed along defined areas bordering on named streets, and a small industrial zone, and except, too, the area in the north end reserved for multi-family structures. We find nothing in the ordinance to support plaintiffs’ argument that the plan manifests an attempt at “spot” zoning aimed only at plaintiffs’ tracts and intended as a discriminatory and arbitrary classification of their properties, as was held as to ordinances in the factual settings presented in Ridgefield Terrace Realty Co. v. Ridgefield, 136 N. J. L. 311 (Sup. Ct. 1947); The DeMott Homes, &c., Inc., v. Margate City, 136 N. J. L. 330 (Sup. Ct. 1947); affirmed, 136 N. J. L. 639 (E. & A. 1948); Cassinari v. City of Union City, 1 N. J. Super. 219 (App. Div. 1949); Vine v. Zabriskie, 122 N. J. L. 4 (Sup. Ct. 1939); Kerrigan Development Co. v. City of Newark, 2 N. J. Super. 590 (Law Div. 1949); Phillips v. Township Council, &c., Teaneck, 120 N. J. L. 45 (Sup. Ct. 1938); Ingannamort v. Borough of Fair Lawn, 133 N. J. L. 194 (Sup. Ct. 1945); and Dorsey Motors, Inc., v. Davis, 13 N. J. Misc. 620 (Sup. Ct. 1935). These cases are plainly distinguishable. In each the regulation in the situation shown had the purpose and effect of imposing a discriminatory restriction not applicable to lands similarly situated and usually in the immediate neighborhood. The ordinance in the instant case applies to all lands throughout the borough previously zoned for multi-family dwellings, except those in the reserved north area, and becomes and is effective at a time when no apartment house exists anywhere in the community and when plaintiffs’ 11-acre tract in common with like tracts in the immediate vicinity are undeveloped, or where built upon, are sites of single-family houses.

The design of the ordinance to promote the general welfare of the borough is evident. “Use zoning for single family dwellings serves the general prosperity and welfare.” Collins v. Board of Adjustment of Margate City, 3 N. J. 200, at 208 (1949), and cases cited therein. Although it is true that the general welfare clause of the statute cannot be invoked to prohibit a use solely because such use is “repugnant to the sentiments or desires of a particular class residing in the immediate neighborhood,” Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183 (E. & A. 1929), nonetheless, when, as here, the design is “to promote the common good of the whole or the people of such community,” Ignaciunas v. Nutley, 99 N. J. L. 389 (E. & A. 1924), the statutory requisite in this particular is fully met.

A community has broad powers reasonably to achieve the purposes to be served by zoning “to provide a balanced and well-ordered scheme for all activity deemed essential to ihe particular municipaliiv.” Berdan v. City of Paterson, 1 N. J. 199 (1948). It has been held that a municipality predominantly residential in character has the power wholly to exclude from its borders industrial enterprises or activities, or to impose limitations on the extent thereof, for the purpose of preserving its residential character, and is not required merely to restrict such enterprises or activities to particular zones or areas, at least when, although separated therefrom but in the same geographical region, there is present a concentration of industry in an area peculiarly adapted to industrial development and sufficiently large to accommodate such development for years to come. Duffcon Concrete Products, Inc., v. Borough of Cresskill, 1 N. J. 509 (1949). And, equally here, the familiar restraints limiting the exercise of the police power will not be deemed to be flouted by the legislation of this borough enacted to preserve the long-standing character of the affected areas as predominantly districts of single-family homes and excluding multi-family structures therefrom, particularly as there is not and never has been any apartment type building in such areas and the ordinance permits their construction elsewhere in the borough.

Plaintiffs argue, however, that the restriction upon use is confiscatory as applied to their lUacro tract, contending that the evidence showed the use of that tract for single-family homes is not economically feasible but is possible only at prohibitive cost. The evidence does not have so broad a reach. Plaintiffs* proofs showed only that the high cost of installing improvements for single-family houses makes the site unattractive to builders and promoters of housing projects for profit. There is no showing that individuals desiring to build homes for their own occupancy and willing and able to pay the premium cost would or will not do so. Hundreds of homes have been built in the borough and the inference is clear that their owners did not consider the higher improvement cost an insurmountable obstacle. The restriction enacted by the ordinance may well have the effect of attracting to the borough more persons desiring to build their own homes in a municipality where the intent to preserve its character as a community of single-family houses has been so definitely evidenced. A zoning ordinance does not contravene constitutional limitations merely because the restricted use may not be the most profitable use to which the property can be devoted. Cf. Brandon v. Montclair, supra; Berdan v. City of Paterson, supra; Protomastro v. Board, etc., of Hoboken, 3 N. J. 494 (1950). The restriction imposed by this ordinance is reasonably adapted to the needs of this borough and its effect in the circumstances is not a taking of property in the constitutional sense. “All property is held in subordination to the police power; and the correlative restrictions upon individual rights — either of person or of property — are incidents of the social order, deemed a negligible loss compared with the resultant advantages to the community as a whole, if not, indeed, fully recompensed by the common benefits.*’ Collins v. Board of Adjustment of Margate City, 3 N. J. at 206 (1949).

The statutory test is not, as plaintiffs apparently believe, whether the design of the ordinance encourages the most appropriate use of plaintiffs' lands, but whether it en-*, courages “the most appropriate use of land throughout the municipality,'' considering the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of property for such uses. Duffcon Concrete Products, Inc., v. Borough of Cresskill, supra. The legislative judgment implicit in this ordinance is that the most appropriate use of substantially all of the lands throughout the borough, including plaintiffs’ tracts, is for single-family dwellings and that their value should be conserved for such use. Nothing in the circumstances shown by the record justifies judicial interference with this judgment of the borough council.

Plaintiffs argue finally that the ordinance must be struck down because the proofs show it was hurriedly adopted for specific purpose of preventing their vendee from carrying out its known plan to construct the apartment building. Doubtless the filing of vendee’s plot plan brought the issue to a head. It is evident, however, that the ordinance is in every respect valid, and, in such case, the law prevailing at the time of the filing of the plot plan is an immaterial consideration. Concord Garden Apartments v. Board of Adjustment of the City of Englewood, 1 N. J. Super. 301 (App. Div. 1949). Manifestly the ordinance would not be invalid merely because of the circumstance that the vendee’s action gave incentive to its passage. The DeMott Homes, &c., Inc., v. Margate City, supra, and Ridgefield Terrace Realty Co. v. Ridgefield, supra, relied on by plaintiffs do not support plaintiffs’ proposition. The effect of the ordinance in each of those cases was such as to require in any event a finding in the particular factual circumstances presented that the municipal action was arbitrary and capricious. Plainly the mention of the proof of precipitate municipal action is to be read in the entire context of each opinion, not as intended to lay down a rule that by itself such proof established the invalidity of the pertinent ordinance, but merely that such proof tended to confirm the finding that the ordinance in the situation shown evidenced arbitrary and capricious regulation designed to forestall the legitimate plans of the property owner for the use of the affected property.

Affirmed.


source: Caselaw Access Project

author: Jayne, J. A. D.

license: Public Domain

text:
    JACK YORMACK AND ANNA YORMACK, PLAINTIFFS-RESPONDENTS, v. FARMERS’ COOPERATIVE ASSOCIATION OF NEW JERSEY, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 11, 1950 —
    Decided January 22, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. James S. Turp argued the cause for the appellant (Messrs. Turp & Coates, attorneys).

      Mr. Baruch S. Seidman argued the cause for the respondents (Messrs. Burton & Seidman, attorneys).
   The opinion of the court was delivered by

Jayne, J. A. D.

The factual circumstances of this litigation may be concisely stated. The plaintiffs have been engaged for a period of eight years at Dayton, New Jersey, in the raising and maintenance of chickens for the production of eggs for sale. The defendant is, as its corporate title implies, a farmers’ cooperative association having its store and warehouse for the sale of agricultural supplies and related products at Hightstown, New Jersey. On Saturday, June 4,1949, the plaintiffs visited the defendant’s place of business to make some purchases. It is noted that they sought to acquire for the pullets a vaccine for the prevention of fowl pox, a disinfectant powder for the nests of the layers, and a liquid insecticide for the roosts.

The plaintiffs testified that with respect to the last-mentioned article they asked the store clerk for “Black Leaf 40,” and he replied that sucli was not then on hand but that he had “something cheaper and better” for the purpose for which they informed him they desired to use it. The clerk thereupon recommended and delivered to them a live-gallon can of a product known as “ICC Carbolineum.” The plaintiffs declared that the can did not bear any label revealing the instructions for its use, and the clerk informed them that the contents could, if desired, be diluted with kerosene and could he most expeditiously applied by spraying. The plaintiffs thereupon also purchased a suitable sprayer.

On the following morning, Sunday, June 5, 1949, the plaintiffs’ son sprayed the liquid on the roosts and on the tops of the nests in the four compartments of the coop, in which about 700 chickens, classified as layers, were confined. The chickens were kept in the coop during the process of spraying. The chickens were said to he then in a good state of health, and during Sunday they did not appear to be injuriously affected by their experience.

On Monday morning, June 6, 1949, the plaintiffs observed that “there was something wrong with them.” It was noticed that their “wings drooped; their “eyes were swollen;’ feathers had disappeared from the “necks and breasts” of several and the skin thus disclosed had an aspect of irritation. About 50 died during the course of the day, and some 357 died during the succeeding two weeks. The remaining layers (1,799 pounds) were in the emergency promptly sold for the best price obtainable.

The nature of the action instituted and prosecuted by the plaintiffs to recover compensatory damages for their alleged loss cannot properly be ignored. It is manifestly ex contractu and not ex, delicto. The sole cause of action alleged is based on a breach of the statutory implied warranty of quality and fitness.

(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.” JR. S. 46:30-21.

Erom an examination of the record, it would appear that the predominant issue entrusted to the jury for determination was whether the use of the carbolineum was the proximate and efficient cause of the loss of the chickens.

Counsel for the defendant at the close of the case made a motion “for the direction of a verdict,” hence for judgment, in favor of the defendant, which was denied. The jury awarded the plaintiffs $2,500 damages.

On the record before us, the appellant has assigned three grounds for reversal, to wit, that the motion was erroneously denied; that the verdict was contrary to the weight of the evidence; and that there was a lack of evidence upon which damages could be measured.

We direct our attention to the defense. The salesman testified that the plaintiffs specifically asked for a can of carbolineum; that there was no discussion concerning its intended use; that the container bore a label; he denied that any representations were made by him relative to its quality or fitness for any purpose. He stated that no complaint was made to the defendant of its alleged injurious effects until June 14, 1949.

Other evidence disclosed that carbolineum is a-distillate of coal tar, the main component of which is anthacine oil. It has been compounded and sold since the year 1879. It is at present prepared in this territory by Rockland Chemical Company of Newark, which company has over the period of the last 25 years sold approximately a half million cases of it to poultry breeders generally, and well-over-15,000 gallons of it during the past year to poultry farmers in the State of New Jersey.-- It has-long been- approved by the United States Department of Agriculture as a specific for red mites. The president of the Rockland Company testified that throughout his lengthy experience with the product he had never known it to cause the death of chickens.

An expert witness whose qualifications were impressive and who had engaged in research of poultry feeding in the States of New York, Connecticut and New Jersey imparted the information that “better than 50 per cent” of the poultrymen use carbolineum as an insecticide. lie characterized the product as standard and efficient. Additionally, he enumerated several virus infections and respiratory diseases commonly contracted by chickens and which “generally strike very, very quickly.” To some one of these he attributed the death of the plaintiffs’ fowl.

It was conceded nevertheless that some few persons and some fowl may be allergic to such materials, and the Department of Agriculture under the provisions of the Insecticide Act required the Rockland Company to use the label bearing the inscription: “Caution: Avoid breathing vapors or fumes and avoid contact with skin.” To those susceptible, the effect resembles a superficial burning of the skin similar to sunburn. Tt was acknowledged that if the skin of some chickens came in contact with the liquid, there might be evidence of a like irritation.

Such was the posture of the evidence at the close of the case. We perceive that several controversial issues of fact were projected, such as (1) did the plaintiffs expressly or by implication make known to the salesman of the defendant the particular purpose for which the material was required; (2) did the plaintiffs rely on the seller’s skill or judgment; (3) was the material in fact reasonably fit for the purpose, if in truth the intended use was disclosed; (4) did the plaintiffs request and purchase the liquid under its trade name, in which event there was no implied warranty of its fitness for any particular purpose unless it arose by the usage of trade (11. 8. 46:30-21 (4), (5)); and (5) what damages may reasonably be supposed to have been in the contemplation of the parties at the time of the making of the sale as a result of the breach of the implied warranty P Hadley v. Baxendale, 9 Exchq. R. 341; Wolcott, Johnson & Co. v. Mount, 38 N. J. L. 496 (E. & A. 1875); Iuliucci v. Rice, 130 N. J. L. 271 (E. & A. 1943).

The circumstances accompanying and surrounding the sale were certainly disputed matters of fact. If those elements of the alleged cause of action were resolved in favor of the plaintiffs, there were two additional controversial issues of importance. Was there a breach of the warranty ? If so, was the breach the cause which naturally and probably led to and which may have been reasonably expected to produce the injurious result, or, phrased in the parlance of actions ex contractu, was the loss such as would fairly be considered as arising in the usual course of things or such as may reasonably be supposed to have been in the contemplation of the parties, at the time the contract of sale was made, as the probable result of a breach? Crater v. Binninger, 33 N. J. L. 513 (E. & A. 1869); Bonhard v. Gindin, 104 N. J. L. 599 (E. & A. 1928).

The uncontrovcrted proof disclosed that carbolineum has been compounded, sold in large quantities, and commonly used as a standard marketable insecticide particularly fop the extermination of red mites by poultry owners without harmful consequences over a relatively lengthy span of years. Equally uncontradicted is the assertion that the liquid sold and delivered to the plaintiffs was carbolineum. There was no direct evidence that the contents of the particular can sold to the plaintiffs was composed of any foreign and extraneous ingredient of an exceptionally pernicious and destructive nature which if sprayed upon roosts and nests would in reasonable probability cause the death of chickens.

But it is argued that in the present instance the circumstances engendered the reasonable inference that the normal use of the carbolineum did in actuality cause the death of some and injuriously affect the health of the remainder of the plaintiffs’ laying chickens; hence, it is insisted that there was in the present case evidentiary justification for the conclusion that the liquid was not reasonably fit for such use within the signification of the lawn

Por example, it is a subject of common knowledge that Adam hats are popularly regarded and accepted generally as a satisfactory article of men’s attire, yet in Zirpola v. Adam Hat Stores, Inc., 122 N. J. L. 21 (E. & A. 1939), we find a case in which in using one of the hats, the plaintiff’s “hair, which was naturally black, had turned a reddish-orange color on each side of his head, and that he had a skin eruption on his forehead and the frontal region of the scalp * * The court stated: “The mere fact that only a small proportion of those who use a certain article would suffer injuries by reason of such use does not absolve the vendor from liability under the implied warranty created by the statute; otherwise, in every action to recover damages for the breach of an implied warranty, it would be necessary to show that the article sold, whether it be food or wearing apparel, would be injurious to every user. It is well known that many people are immune from certain poisons as well as contagious and infectious diseases, yet it could not be contended by reason thereof that a vendor selling an article infected with disease germs or containing a poisonous substance injurious to the user of the article, would not be liable under an implied warranty, unless it could be proved that injury would be the inevitable result of the use of such article.”

It was concluded that whether there had been a breach of the statutory implied warranty was a matter of fact properly submitted to the jury for its determination, and the judgment for the plaintiff was affirmed.

Again, in Reynolds v. Sun Ray Drug Co., 135 N. J. L. 475 (E. & A. 1947), the appellant contended “that the statutory warranty is limited to a warranty that goods are reasonably lit for the purpose for which they are sold and that it cannot be said the goods are not reasonably fit for the purpose when only a small proportion of those who use a certain article a.re injuriously affected thereby. This court held to the contrary * *

We recognize the absence of any evidence which definitely informed the jury of the particular ingredient or constituent of the carbolineum which would in reasonable probability gravely injure and kill the chickens. Proof of unfitness does not necessarily require that degree of exactness and precision. Tiedje v. Haney, 184 Minn. 569, 239 N. W. 611 (Sup. Ct. Minn. 1931); Ann. Cas. 1912 D, 775; Pietrus v. J. R. Watkins Co., 229 Minn. 179; 38 N. W. 2d 799 (Sup. Ct. Minn. 1949). Indeed, the president of the company manufacturing carbolineum was asked: “What is it that causes that irritation ?” He answered: “It is the substance itself.” “And what is it in the substance that causes the irritation ?” He replied, “That nobody knows.”

Eurthermore it was not necessary for the plaintiff to prove by direct evidence the causal relation between the use of the carbolineum and the injurious result; it could be established by circumstantial evidence.

“The' plaintiff was not legally required to prove by positive testimony and.with absolute certainty that the drinking of the water was the cause of the typhoid fever.

“The plaintiff satisfied the burden which the law imposed upon him by proving such facts and circumstances from which it was made to reasonably appear that the drinking of the water was the probable efficient cause of the typhoid fever.” Jones v. Mount Holly Water Co., 87 N. J. L. 106, 112 (Sup. Ct. 1915).

There was testimony to which previous reference has been made that immediately prior to the spraying of the coops the chickens were normal; that on the following morning fifty were found dead and others “had their mouths open and were making whistling sounds;” many appeared to have been burned about the chest. The following excerpts from the testimony of the defendant’s expert witness were illuminative:

“Q. What caused that burning?
“A. Coining in direct contact with the carbolineum on the roosts.
“Q. Whether it is caused by the fumes or whether as you say it would be by coming in contact with the carbolineum on the roosts, this substance would have a burning effect on the chickens?
“A. It may have on certain chickens.
“Q. Well, taking again the hypothesis based upon facts in this case, would you say that in this case knowing the burning which appeared on these chickens, resulted from the application and use of this substance ?
“A. It could have been.
“Q. You say it could have been. Will you go so far as to say that in all probability that it did?
“A. I would say that, yes.”

There was but one other possible cause of the loss interjected. The evidence indicated the susceptibility of chickens suddenly to contract some type of the enumerated virus infections and respiratory diseases which in common knowledge is regarded as perhaps the principal hazard encountered in the pursuit of raising and maintaining chickens in large flocks. It was said by the expert that from such a cause the chickens would have manifested the same symptoms.

The requirement of circumstantial evidence in civil cases is that “The claimed conclusion from the offered fact must be a probable or more probable hypothesis, with reference to the possibility of other hypotheses.” Cf. Jackson v. Delaware,, L. & W. R. R. Co., 111 N. J. L. 487 (E. & A. 1933) ; Jochim v. Montrose Chemical Co., 3 N. J. 5 (1949).

“In civil cases it is sufficient if the circumstantial evidence be such as to afford a fair and reasonable presumption of the facts inferred. Circumstantial or presumptive evidence, as the basis for deductive reasoning in the determination of civil causes, is a mere preponderance of probabilities. * * * In the final analysis ‘probability, and not the ultimate degree of certainty is the test.’ ” Jochim v. Montrose Chemical Co., supra. Vide, Flexmir, Inc., v. Lindeman & Co., 4 N. J. 509 (1950).

Contrasting and evaluating logically permissible probabilities with regard to their qualities of comparative persuasiveness is the special function of the jury. Where fair-minded men may honestly differ as to the conclusion to be reached from the evidence, controverted or un controverted, the case must be submitted to the jury. Dobrow v. Hertz, 125 N. J. L. 347 (E. & A. 1940).

We accordingly conclude that the trial judge justifiably denied the motion.

We nevertheless perceive merit in the appellant’s remaining points.

Recognizing in the evidence the rapid succession and sequence of the events in point of time and ascribing due significance to the concession divulged by the witnesses of the defendant that carbolineum contains a component which in some instances will by its fumes temporarily disorder the respiration and if in contact with the skin will cause a slight burn, the jury might reasonably have inferred that the carbolineum proximately produced those consequences in the present ease.

But we are unable to discover in the transcript any evidence, hypothetical or of any other character, which constituted a rational foundation for the inferential probability that the carbolineum would or could cause the death of man or fowl.

The award of $2,500 damages in contrast with the evidence of the plaintiffs’ alleged loss conspicuously reveals that the jury assessed the defendant in damages not only for the fowl that died during the succeeding period of two weeks but for a sacrificial sale of the remainder of the flock which the plaintiffs apprehended would soon die, to which was super-added compensation for the complete interruption of the plaintiffs’ enterprise for a period in the future.

In that respect, namely, the admeasurement of damages, the jury was manifestly influenced either by passion, sympathy, prejudice, or mistake. The power to confine a new trial to the question of damages is exercised with caution and only in those cases where it clearly appears that the improper inducements or impulses did not affect the other issues. Juliano v. Abeles, 114 N. J. L. 510 (Sup. Ct. 1935); Esposito v. Lazar, 2 N. J. 257 (1949).

In the present case the judgment is reversed and a new trial directed on all the issues in controversy.


author: Freund, S. J. A. D. Proctor, J. A. D.

text:
    DORA MILLER AND HARRY MILLER, PLAINTIFFS-APPELLANTS, v. PUBLIC SERVICE COORDINATED TRANSPORT, A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 18, 1950 —
    Decided January 30, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Abraham I. Mayer argued the cause for the appellants (Messrs. Mayer & Mayer, attorneys).

      Mr. Carl T. Freggens argued the cause for the respondent (Mr. James O. Boyd, on the brief).
   The opinion of the court was delivered by

Freund, S. J. A. D.

The plaintiff, Dora Miller, brought suit to recover for personal injuries sustained while alighting from one of the defendant’s buses, in which she was a passenger. Prom a judgment of dismissal entered at the close of the plaintiffs’ case, this appeal was taken.

The evidence shows that Mrs. Miller, her daughter and 2i/2-year-old grandson boarded the bus .of the defendant and obtained seats without difficulty. The daughter was pregnant' and Mrs. Miller was accompanying her to the doctor and dentist. When the bus reached their destination, it was “very crowded“all the seats and all the aisle were filled“it was fully packed, the front and back, every place.” Mrs. Miller testified: “Well, I tried my best to get through and while I was trying to get myself through everybody was shoving to try to make room for me because there was no room, and as I got to the step they just pushed me and I fell down to the street.” She asked the people a few times to “please stop pushing,” but the driver did not say anything to them.

The plaintiff’s daughter testified:

“Q. How did your mother get out if it was crowded?
“A. Well, the same way I got out. Pushed out and squeezed out. The crowd just pushed us out. I was pregnant at the time and I had my son and I pleaded with them to be careful.
“Q. Pleaded with whom? A. With the crowd, but they were just trying to be helpful, but it was very crowded.
“Q. Trying to be helpful by doing what? A. By making room for us to get through. I couldn’t even reach the coin box because the passengers were standing over the box and I wasn’t within distance of them and someone took the 10c and they deposited it for me in the coin box. I couldn’t see the bus driver either because he was completely covered.”

Clearly, from the testimony it may be inferred that if the witness could not see the bus driver because of the crowd, he could not see her, nor the exit by which she and her mother were alighting. Moreover, Mrs. Miller testified that when she fell, a passenger stepped down from the bus to help her, but had to run “after the bus to get it and the bns went on.” It would thus appear that the driver was not able to see what had happened, which would bespeak such overcrowding that danger might likely arise, which foresight could have anticipated. Rivers v. Pennsylvania R. R. Co., 83 N. J. L. 513 (E. & A. 1912); Davis v. Public Service Coordinated Transport, 113 N. J. L. 427 (E. & A. 1934).

Two familiar principles apply: that a common carrier of passengers is under the duty to exercise a high degree of care, Davis v. Public Service Coordinated Transport, supra, and that on a motion for dismissal, the court must take as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor, McKinney v. Public Service Interstate Transport Co., 4 N. J. 229, 243 (1950).

In Hansen v. North Jersey Street Railway Co., 64 N. J. L. 686 (1900), the Court of Errors and Appeals held:

“A common carrier is bound to take a liigli degree of care of its passengers. This general duty includes a specific responsibility as to the entrances and exits provided for its vehicles. * * * The defendant was, therefore, bound specifically to use a high degree of care to protect the plaintiff, not indeed from crowding per se, but from danger likely to arise from crowding. Considerations of public policy strengthen this conclusion. If common carriers are to be allowed to cram their ears with passengers, to their own profit and the discomfort of the public, they should be held all the more to a strict and active responsibility to use due care to secure safe entrances and exits. Otherwise, the obligation of a plain duty will be weakened by embarrassments of their own creation. It is important to consider, in every such case, whether the danger to the passenger was one that the common carrier should have foreseen. * * * The Court of Appeals of New York, in Lehr v. Lehigh and Hudson Passenger Railroad Co. (118 N. Y. 556, 23 N. E. 889), * * * thus expressed itself: ‘It clearly appears that the defendant undertook to carry more passengers than could sit and stand within the car, and that both platform and steps were filled to their utmost capacity. The action of persons so crowded together and the great force which they exercise, sometimes almost unconsciously, on each other, is understood by carriers of passengers and their employees, and the court would not have been justified in non-suiting the plaintiff and holding as a matter of law that the exercise of reasonable foresight would not lead the defendant to anticipate that over-crowding the car and its platforms might render accidents like the one which befell the plaintiff probable.’ ”

Dunham v. Public Service Corp., 76 N. J. L. 452 (Sup. Ct. 1908); Barney v. Hudson & Manhattan R. R. Co., 105 N. J. L. 274 (Sup. Ct. 1929); Nazarro v. Hudson & Manhattan R. R. Co., 125 N. J. L. 108 (Sup. Ct. 1940).

In the instant case, although the testimony is that the bus passengers were trying to be helpful, which is to be expected under the circumstances, both witnesses testified unequivocally that when they were striving to get to the exit, the passengers kept pushing and shoving and that when Mrs. Miller arrived at the step, she was pushed out of the bus.

On the motion for dismissal, the plaintiff’s account of the accident is to be taken as accurate, and if from the facts it might reasonably be inferred that due care on the part of the defendant would have prevented the accident, the issue of negligence is raised, requiring submission to the jury. So here.

Judgment reversed and a new trial ordered, costs to abide the event.

Proctor, J. A. D.

(dissenting). My view of the record compels me to dissent from the majority opinion.

The evidence shows that Mrs. Miller, together with her daughter and 2%-year-old grandson, entered the bus and obtained seats. When the bus reached their destination all of the seats were occupied and the aisle was filled. Mrs. Miller, followed by her daughter and grandson, proceeded to the exit door at the front of the bus. It does not appear that any other passengers were leaving the bus at that time. Mrs. Miller’s explanation of the occurrence follows:

“Q. What happened as you were proceeding there? A. Well, I tried my best to get through, and while I was trying to get myself through everybody was shoving to try to make room for me because there was no room, and as 1 got to the step they just pushed me and I fell into the street.”

Plaintiff also testified she asked the passengers to stop pushing, but there is no evidence the operator heard or could have heard her. Moreover, there is no evidence that any one pushed her prior to her mishap. The only other witness called by the plaintiff's was their daughter. She testified the bus became crowded en route; that Mrs. Miller started from her seat to leave the bus about one block before their destination; that the passengers were trying to be helpful by making room for them to get through the aisle; that “They (passengers) were cooperative. There was no room and they squeezed and pushed to make room for us.” The daughter held the grandson by the hand and he was at her side as they got off the bus directly after Mrs. Miller.

While defendant, as a common carrier, is under a duty to exercise a high degree of care to protect its passengers from the acts of fellow passengers which might be reasonably foreseen, Hansen v. North Jersey St. Ry. Co., 64 N. J. L. 686 (E. & A. 1900), and the crowding of passengers in a bus calls upon the common carrier to use a degree of care commensurate with the risk of danger, Nazarro v. Hudson & Manhattan R. R. Co., 125 N. J. L. 108 (Sup. Ct. 1940); affirmed, 125 N. J. L. 509 (E. & A. 1941), overcrowding of a bus is not in itself negligence. Lehberger v. Public Service Ry. Co., 79 N. J. L. 134 (Sup. Ct. 1909).

In the present case there was nothing discernible in the movement or conduct of the passengers from which the operator of the bus could have foreseen any danger to Mrs. Miller. The passengers were orderly and “cooperative.” The proofs, taken in their most favorable light for the plaintiffs, show nothing more than a crowded bus whose passengers were endeavoring to assist Mrs. Miller in removing herself from the bus. Crowding per se does not impose liability. See Hansen v. North Jersey St. Ry. Co., supra; Nazarro v. Hudson & Manhattan R. R. Co., supra. Defendant is not an insurer of the passenger’s safety and, in the absence of negligence, is not answerable.

In the cases cited in the majority opinion, there were circumstances, in addition to the crowding, from which the carrier should have anticipated danger to its passengers. In Hansen v. North Jersey St. Ry. Co., supra, there was evidence that the motorman of the carrier observed “that the outgoing persons were pressing forward so as to exert considerable force” and that “acts of violent rudeness were committed-towards the plaintiff” in the immediate presence of the motorman. In Dunham v. Public Service Corporation, 76 N. J. L. 452 (Sup. Ct. 1908), the case, on demurrer to the declaration, turned on the question of plaintiff’s contributory negligence. In Barney v. Hudson & Manhattan R. R. Co., 105 N. J. L. 274 (Sup. Ct. 1929), the conductor “slammed” the door of the car on plaintiff’s fingers. In Nazarro v. Hudson & Manhattan R. R. Co., supra, the station platform became extremely overcrowded due to a delay in the train schedule during the rush hour, and defendant’s guards failed to control the rush' of passengers to board the train. Compare Lehberger v. Public Service Ry. Co., supra. The question of crowding is not involved in the other cases cited. In Rivers v. Pennsylvania R. R. Co., 83 N. J. L. 513 (E. & A. 1912), the negligence of the defendant carrier consisted of a sudden “jerk,” causing the plaintiff passenger to be thrown off the train. In Davis v. Public Service Coordinated Transport, 113 N. J. L. 427 (E. & A. 1934), the plaintiff passenger was injured when the bus collided with a pole.

. I think'the action of the trial court in dismissing plaintiffs’ case was proper.


author: Per Curiam.

text:
    CASIMIR KUROWSKI AND LUCILLE KUROWSKI, HIS WIFE, PLAINTIFFS-APPELLANTS, v. BOARD OF ADJUSTMENT OF THE CITY OF BAYONNE, A CORPORATE BODY, AND MORRIS PADWE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 17, 1951.

      Before Judges Freund, Proctor and Rogers.

      Mr. Stephen P. Piga argued the cause for the plaintiffskppellants.

      Mr. William Rubin argued the cause for the defendant-respondent Board of Adjustment of the City of Bayonne.

      Mr. A. Alfred Fink, attorney for defendant-respondent Morris Padwe.
   Per Curiam.

The judgment is affirmed for the reasons expressed in the opinion of Judge Brennan in the court below.


author: Eastwood, J. A. D.

text:
    GAETANO CANONICO, PLAINTIFF-APPELLANT, v. CELANESE CORPORATION OF AMERICA, PLASTICS DIVISION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1951 —
    Decided January 24, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Joseph Coult argued the cause for the plaintiff-appellant (Mr. Elias G. Willman, attorney).

      Mr. Fredrick J. Waltzinger argued the cause for the defendant-respondent (Mr. Edwin J. O’Brien, of counsel).
   The opinion of the court was delivered by

Eastwood, J. A. D.

The plaintiff, Gaetano Canónico, appeals from the judgment of dismissal entered against him by the Hudson County Court at the conclusion of his case. Mr. Canónico sought to recover damages allegedly suffered by the inhalation of non-toxic cellulose acetate dust during his employment at the defendant’s place of business.

The plaintiff’s proofs are substantially as follows: He worked in the pulverizing department in defendant’s manufacturing plant, No. 290 Eerry Street, Newark, New Jersey, from 1940 until February, 1949. The building in question is three stories in height, on the first floor of which there was a hopper for each of two pulverizers, in the basement a grinder and on the third floor several rotex machines or screens, two for one pulverizer and four for the other. The cellulose acetate material was dumped into the hopper, it then descended to the basement where it was ground, after which it was taken by an elevator from the basement to the rotex machines on the top floor. It then went through a chute into bags to the hopper floor and the coarser particles which did not pass through the screens or rotex machines were returned to be ground over again. The operation was unquestionably a very dusty one. The only ventilation were windows on the one side of the building which were closed in the winter. There were no blowers or fans and at times there was one and one-half inches of dust on the floor and 400 pounds of dust, more or less, would be swept from the floor in one day. The pulverizing room was swept frequently and a large vacuum cleaner was used in addition to the mechanical sweeping. According to the plaintiff, the dust “went all over him, his skin, face, nose, throat.” There was supporting testimony of a fellow employee “that he could not see through the dust in the room.” When the rotex screens were cleaned with an air hose, it caused the dust to go all over; Canónico and others “who worked on this floor had to take a shower every night to clean themselves” and one of the workmen “used an air hose to shoot the dust off him before he took a bath;” masks were provided by the employer but “could not be used because they had to be cleaned every three minutes and the workmen did not have time;” at the time he started in the pulverizing room, plaintiff did not use a mask; around the beginning of 1948, he used a mask for two or three minutes and found it full of powder inside and could not, therefore, use it any more; :he was never informed by anyone about the use of the mask nor what might happen to him if he did not use it. Samples of the dust taken from the pulverizing room contained particles of ten microns or less and particles of that size represented 75% of the dust sample. When plaintiff began his employment in the pulverizing room he stated his health was good; that in November, 1948, he first felt the effects oí the inhalation of the dust and sought medical aid in January, 1949; that he has not regained his health since and is suffering from a pulmonary congestion due to bronchitis and bronchiectasis involving the lower lobes of the lung, and a chronic pleuritis, causing a paralysis of the left diaphragm. Dr. Crecca, an expert in diseases and surgery of the chest, testified that it was his opinion that there was a causal relation between the employment and the plaintiff’s disease, known as pneumoconiosis, although he admitted that cellulose acetate dust is an inert organic dust and that he had never previously known or treated anyone who had suffered specifically from the inhalation of cellulose acetate dust.

At the conclusion of the plaintiff’s case, on defendant’s motion, the court directed that judgment be entered for the defendant “on the ground that clearly the plaintiff has failed to sustain his burden of establishing that the defendant was negligent and that that negligence was the proximate cause of the condition it has been testified the plaintiff suffers from.” Plaintiff contends that (1) his proofs presented a prima facie case of liability and, therefore, the court erred in entering judgment for the defendant; and (2) the court erred in refusing to permit the witness, Shelanski, to “give his opinion with respect to industrial hazards.”

The posture of the proof at the end of the plaintiff’s case ■was that while the conditions under which the plaintiff worked were very dusty, there -was no proof that the defendant had failed to conform to the standard that had been adopted and W'as in use in the conduct of similar businesses. In fact, the plaintiff did not offer proof of any standard for the elimination of the dusty conditions experienced at his place of employment or that the defendant had failed to provide necessary ventilation or proper methods for the removal of the dust. On the contrary, the proofs established that cellulose acetate dust is non-toxic and that previously, although the operation had been in effect for many years, no other employee had been known to suffer the ill effects claimed by plaintiff. Dr. Crecca, plaintiff’s medical expert, residing and practicing many years in the community where the defendant’s plant is located, admitted that he had never previously had any ease where illness or disease had been attributable to the inhalation of cellulose acetate dust; that there were a number of other causes that might equally produce the condition from which he found the plaintiff was suffering.

We recognize the fact that there have been many eases where an inexperienced employee has recovered against a master for diseases due to poisoning or infection, where the employer knew that the work assigned to the employee contained such risks, failed to warn him of their existence and to instruct him as to the precautions necessary to avoid them, but we do not find any case where an action has been successfully maintained for disease, whether of sudden or slow infection, except where the employer had a knowledge of the risk superior to that which the servant had, or might reasonably be expected to have; and that either the knowledge of the servant, or the obvious character of the danger and the means necessary to avoid or minimize it, or, on the other hand, the master’s ignorance that there was a reasonable probability or danger of such poisoning or infection, would negative a right of action at common law. On the other hand, the defendant is liable for legal damage caused by disease where he is guilty of wrongful action toward one standing in no voluntary relation to him, consisting in an omission to perform a duty imposed on him by such a relation. We find in the books cases involving the incurrence of diseases following a neglect of duty on the part of gas companies, druggists, and purveyors and manufacturers of food, which are said clearly to show that the common law recognizes a right to health, the violation of which by positive action between strangers is a legal wrong. But, with respect to actions for occupational diseases not provided for by statute, an examination of the decisions discloses a decided conflict. On the one hand, there are many statements, often pure dicta, that no action lies at common law for damages for an occupational disease, and this view has been crystallized by some decisions to the same effect, such as that in McCreery v. Libby-Owens-Ford Glass Co., 363 Ill. 321, 2 N. E. 2d 290, 105 A. L. R. 75 (Ill. Sup. Ct. 1936). In fact, some of these statements and decisions seem broad enough to exclude any recovery of damages in an action at law for an occupational disease, even where there has been some negligence on the part of the employer, such as might be found in his failing to provide a safe place in which to work, or even in an alleged failure on his part to warn the servant of the dangers involved, although the employer possessed, or was in a position to be charged with, greater knowledge of the danger than the servant had. 105 A. L. B., pp. 83-86, and cases cited therein.

The plaintiff conceded at the argument of this appeal that although he had made a careful research, he had not been able to discover any case involving the contraction of disease from the inhalation of cellulose acetate dust or other non-toxic dust, lie cites only three cases in support of his contentions, viz.: Bd. of Health of Weehawken Tp. v. N. Y. Central R. Co., 4 N. J. 293 (1950); Davis v. New Jersey Zinc Co., 116 N. J. L. 103 (E. & A. 1936); Rosacci v. U. S. Pipe & Foundry Co., 123 N. J. L. 357 (E. & A. 1939). We do not find these eases analogous. The Weehawken case deals with a conviction for violation of an ordinance of the Township of Weehawken denouncing as a public nuisance the emission within the municipality of smoke of proscribed density. The Davis case was an action based on illness caused by the inhalation of manganese poison and the judgment for plaintiff was affirmed because there was evidence which indicated that the appellant was charged with knowledge of the dangers inherent in its manufacturing process and was neglectful in not making reasonable provision to protect plaintiff from the dangerous condition which it had reason to believe existed. In the Rosacci case, which dealt with a disease contracted by the inhalation of deleterious dust, the court in affirming judgment for the plaintiff held that death from silicosis caused by dust-laden air in a place of work is a well recognized fact and that proof of the failure to make any reasonable protection for the workmen in such dangerous places and the failure to exercise any care whatever to eliminate the danger so far as practicable, presented a question for the jury’s determination.

In considering the question as to whether an occupational disease may be caused by the inhalation of cellulose acetate or other non-toxic dust, the case sub judice is one of novel impression, and our search for analogous cases has been somewhat fruitless. To demonstrate the conflicting views of our sister states, we refer to the cases of McCreery v. Libbey-Owens-Ford Glass Co., supra; Prattico v. Hudson Coal Co., 347 Pa. 490, 32 A. 2d 733 (Sup. Ct. 1943); Brown v. Tennessee Consol. Coal Co., 19 Tenn. App. 123, 83 S. W. 2d 568 (1935). The McGreery case was an action brought by an employee wherein he sought to recover damages for an occupational disease known as pneumoconiosis, caused by the inhalation of dust produced in various processes of manufacture of glass and similar products. In the McGreery case, as here, the plaintiff charged the defendant negligently failed to provide plaintiff with a reasonably safe place in which to work, in that there were no proper suction fans or reasonable apparatus installed; there were no masks or respirators provided; that defendant failed to warn plaintiff of the danger of contracting the occupational disease and negligently ordered plaintiff to work despite the danger to which he was exposed. The court in the McGreery case held that an employee has no common law right to recover damages against his employer for an occupational disease contracted as a result of his employment. This rather straight-laced position is the rule of law in several other states as indicated by the numerous citations appearing in 105 A. L. B., pp. 84-86. In the Prattico case, the employee brought an action against his employer for disease contracted from inhaling dust in a coal mine where he had been employed for eight years, admitting that he knew coal mining makes dust and his proofs merely showed that his place of employment became “so dust-laden that 'intermittently — at times’ visibility to. see another person was only three feet,” and contending that the defendant had a duty to insure the plaintiff a safe place to work and that his admitted physical condition is a conclusive answer that he was not furnished a safe place to work. The employer’s motion for judgment before the trial court was denied and this action was reversed on appeal by the Supreme Court which held:

“Notwithstanding the absence of a statutory duty, we do not mean to say that no duty whatever rested upon defendant with respect to elimination or amelioration of dust in its mine. The test of liability, however, is not that of failure to perform a statutory duty, but failure to furnish a safe place to work as measured by the standards imposed by the common law. In the case of Pauza v. Lehigh Valley Coal Co., 231 Pa. 577, at page 580, 80 A. 1120, at page 1127, the common law doctrine is well stated as follows: ‘The employer is bound to furnish machinery and appliances reasonably safe for the use intended. Reasonable safety within the meaning of the law means that the machinery and appliances furnished must be of the usual and ordinary kind adopted by those in the same kind of business. An employer is not even bound to provide the safest machinery or the newest and most approved appliances. lie has performed his duty in this respect when he furnishes those of the ordinary character in general rise in the business in which he is engaged.’ See, also, Titus v. Bradford, B. & K. Railroad Co., 136 Pa. 618, 626, 20 A. 517, 20 Am. St. Rep. 944; Ford v. Anderson, 139 Pa. 261, 263, 21 A. 18; Kehler v. Schwenk, 144 Pa. 3-48, 357, 22 A. 910, 13 L. R. A. 374, 27 Am. St. Rep. 633; Keenan v. Waters, 181 Pa. 247, 250, 37 A. 342; Venzel v. Valley Camp Coal Co., 304 Pa. 583, 589, 156 A. 240; Fox v. Keystone Telephone Co., 326 Pa. 420, 427, 192 A. 116, 110 A. L. R. 1182. ‘It is always important to keep in mind in this class of eases that the test of liability is not danger but neglige,nee, and negligence is never imputed from the employment of methods or machinery in general use in the business.’ Reeder v. Lehigh Coal Co., supra, 231 Pa. at page 570, 80 A. at page 1124. In the present case the only evidence on the subject is that the methods and equipment of defendant were of the usual and ordinary character in general use throughout the anthracite mining industry. The court below so recognized when it made the statements, acquiesced in by plaintiff, that ‘defendant’s evidence was not successfully denied * * *. The defendant used all the customary practices that are general in the anthracite mining region, as was shown by the mine foreman in charge throughout the time and the evidence of other mining engineers and coal operators.’ There was, therefore, no question of breach of defendant’s duty to furnish a reasonably safe place to work to submit to the jury, for there was no such breach shown.”

In the Brown case, an action Cor damages for silicosis, the court said that if there had been proof that the inhalation of ordinary river sand, not pulverized, might cause the disease, the failure of the employer to warn the plaintiff employee of that fact might have been negligence, notwithstanding the employer’s lack of knowledge thereof, as an obligation rests upon an employer to acquaint his employee with the dangers which can be ascertained by a knowledge of the scientific principles governing the substances and processes used in the employment, and to which, in his ignorance, the employee will otherwise be subject; but that in the state of the record there was no material evidence upon which a verdict for the plaintiff could be predicated.

The applicable law in this State is settled. Under the contract of employment, it becomes the master’s duty to use reasonable care to provide a proper and safe place in which the servant may work and to provide suitable tools and implements with which to perform his work, and for failure to use reasonable diligence to protect him from unnecessary risks and from negligence or want of care, the employer will be answerable for all the damages which may ensue. McDonald v. Standard Oil Co., 69 N. J. L. 445 (E. & A. 1903). The employee assumes the risks ordinarily incident to his employment as well as those dangers which are plain and obvious to one of ordinary skill and understanding, but not those dangers known or reasonably foreseen by the employer and unknown to the employee, nor latent dangers of which he has not been forewarned by his employer. Van Steenburgh v. Thornton, 58 N. J. L. 160 (E. & A. 1895); McDonald v. Standard Oil Co., supra; Zebrowski v. Warner Sugar Co., 83 N. J. L. 558 (E. & A. 1912); Beck v. Monmouth Lumber Co., 137 N. J. L. 268 (E. & A. 1948). Inherent in the rule as to the duty of the employer to warn is the limitation that a master is not bound to warn his servant of the danger of contracting an occupational disease, unless he is in a position to have greater knowledge than the servant of the existence of that danger. The responsibility of a master to instruct a servant as to the dangers of his employment arises only when the servant is himself ignorant thereof and the master knows the fact which the servant ought to know. Tompkins v. Machine Co., 70 N. J. L. 330 (E. & A. 1904). There was no proof here that the defendant had any knowledge whatever of any latent or other danger from the inhalation of the cellulose acetate dust; or that the employer had failed to investigate the probability of any such danger and to reasonably protect his employee. In fact, the proofs are that the dust was non-toxic and not dangerous per se. The emplo3rer is not liable for his employees’ injuries if he furnishes a place of employment and appliances of a kind in general use and conducts his business in a manner conforming to the established standards of those engaged in the specific business. Rakowski v. Raybestos-Manhattan, Inc., 5 N. J. Super. 203 (App. Div. 1949). The employer is not required to furnish the safest and finest place of employment but it must be reasonably safe and conform to the established standards in general use by those engaged in the same industry. Tompkins v. Machine Co., supra; Marsh v. Chickering, 101 N. 7. 396. The employee must establish proof of departure by the employer from the established standards. Zebrowski v. Warner Sugar Co., supra; Augerstein v. Jones & Laughlin, Ltd., 139 Pa. 183, 21 A. 24 (Sup. Ct. 1891). The mere proof that the operations were very dusty is not sufficient to establish actionable negligence against the defendant. Pennsylvania Pulverizing Co. v. Butler, 61 Fed. 2d 311 (Cir. Ct. of App., 3rd Cir., 1932). In this class of cases the test of liability is not danger, but negligence, and negligence is never imputed from the employment and methods in use or tools and machinery furnished in the operation of the business. There must be affirmative proof of such negligence. There is no question here of a breach of defendant’s duty to furnish a reasonably safe place to work to submit to the jury, as there was no such breach shown. In other words, the plaintiff failed to prove the actionable negligence charged and the court’s judgment of dismissal was, therefore, proper. Huels v. General Electric Co., 134 N. J. L. 165 (Sup. Ct. 1946).

We find no merit in plaintiff’s second ground of appeal, viz.: that the court erred in excluding the testimony of the expert witness Shelanski. Where, as here, the question as to whether a witness has such special knowledge or experience as to justify him to give opinion evidence, is one for the discretion of the trial court, his decision is conclusive unless clearly shown to be erroneous in matter of law. Chmiel v. Yatsko, 124 N. J. L. 508 (Sup. Ct. 1940). See also Cowdrick v. Pennsylvania R. R. Co., 132 N. J. L. 131 (E. & A. 1944); Wisniewski v. Weinstock, 130 N. J. L. 58 (Sup. Ct. 1943); affirmed on Supreme Court’s opinion, 135 N. J. L. 202 (E. & A. 1947). Erom our examination of the record we cannot conclude that the court improperly exercised its discretion in excluding Mr. Shelanski’s testimony.

The judgment of the trial court is affirmed, with costs.


text:
    SAL TOMEI, PLAINTIFF-APPELLANT, v. RALPH ANNETTA AND THE NEW JERSEY REAL ESTATE COMMISSION, DEFENDANT-APPELLEES.
    Superior Court of New Jersey Appellate Division
    Argued January 15, 1951 —
    Decided January 30, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Virgil J. Lanni argued the cause for appellant.

      Mr. Joseph A. Murphy, Assistant Deputy Attorney General, argued the cause for the appellees (Mr. Theodore D. Parsons, Attorney General, and Mr. John Warhol, Jr., Deputy Attorney General).
   The opinion of the court was delivered by

Jayne, J. A. D.

The narrative of the factual events underlying the subject matter of the present appeal can be summarized. The appellant was a tenant who was obliged by a final judgment of the Hudson County District Court to vacate the demised premises no later than April 1, 1950. The appellant discovered that on January 9, 1950, one Ralph Annetta, a duly licensed real estate broker of New Jersey with offices in the City of Bayonne, had caused the publication in the Bayonne Times, a newspaper .printed in that city, of an advertisement soliciting prospective purchasers of the demised premises. Assuming therefrom that the broker had been authorized to expose the property for sale by his landlord, the appellant thereupon made application to the Housing Expediter for a revocation of the “certificate relating to eviction” which had been theretofore issued and which constituted a prerequisite to the institution of the eviction proceedings. In the ensuing inquiry before the Housing Expediter the landlord filed an affidavit in which he denied that he had conferred any authority whatever upon the broker to negotiate a sale of the premises and to cause the publication of the advertisement.

In that singular state of affairs, the attorney of the appellant dispatched a letter’ to the broker, of which the following is a copy:

“March 4, 1950.
Ralph Annetta, Real Estate Broker 105 West 4th St.
Bayonne, N. J.
Dear Sir:
I have in my possession an affidavit made by John Muzzillo, owner of property at 113 West 22nd Street, Bayonne, N. J. paragraph 6 of which states as follows:
‘Landlord denies that he ever spoke to Ralph Annetta of 105 West 4th Street, Bayonne, New Jersey concerning the sale of these premises or that he ever authorized him orally or in writing in his hands for the purpose of selling the premises; landlord further denies that he ever authorized the said Ralph Annetta or any other person to insert in “The Bayonne Times,” a local newspaper, or authorized any person to advertise the said premises for sale.’
If you dispute the contents of the affidavit which imputes that you advertised a house for sale without authorization, I will draw up a replying affidavit for you. If you are contended (sic) to allow the accusation in said affidavit to stand, then my client will have no other recourse but to bring this matter to the attention of the Real Estate Board-of the State of New Jersey for investigation.
Yours truly,
(Signed) Vibgii. J. Lanni.”

The broker evidently chose to accept the latter alternative expressed in the letter. On April 7, 1950, the appellant filed a written verified complaint with the Eeal Estate Commission in which he related the aforementioned occurrences and charged:

“G. That the said Ralph Annetta misrepresented that he had authorization to sell the house and property in violation of Rev. Statutes as amended by Latos of 1948, c. 155, and being subsection (a) of said act.
7. That said Ralph Annetta, if in fact he did have authority to sell, then he was guilty of violating subsection (e) of said act because of bad faith and dishonesty in refusing to prove and defend his authorization by the refusal to sign a rebuttal affidavit.”

The Commission subsequently designated July 26, 1950, for the hearing of the complaint upon notice to the appellant and to the accused broker.

Our information relating to the latitude of the hearing is derived from the following transcription of the minutes:

“Commissioner Walker: Proceed.
Henry A. Boesch, witness called on behalf of complainant, being first duly sworn, testified as follows:
Direct Examination by Mr. Ranni:
Q. Are you connected with the Hudson County District Court?
Commissioner Walker: Just a minute. Suppose you make a brief statement of your complaint.
Commissioner Walker: You are charging principally that the agent did not have an authorization to sell?
Mr. Raimi: That’s right.
Commissioner Walker: My feeling is that the matter has been disposed of. Here is a signed authorization that the broker did have, calling for six months, and that it was repudiated by somebody— whether verbally or in writing it is neither here nor there — and the question in my mind is just whether a broker on an order from some tenant is compelled to disclose whether he has an authorization or not. This is very unusual all the way through. We cannot see any substance to the complaint and think it has already been disposed of in the courts and O. P. A. There is only one thing that would appear to me to be before us and that is the fact that this tenant is bringing-pressure on this broker and wants him punished. The matter has been disposed of and no harm has been done to the tenant. In view of that, it seems pretty far-fetched under the circumstances.
(Commissioner-President Samuel D. Walker conferred with the Commissioners present.)
Commissioner Walker: It is the unanimous vote of the Commissioners present that the complaint be dismissed. The Commission is not at all inclined to follow up cases, or adjudicate cases or complaints, that have already been settled by trial or other agencies apart from the O. P. A. Consequently, on the face of it we know of no rules or regulations within this Commission that admits that on the application of the tenant that a broker should disclose whether he has listings or whether he does not have listings. Therefore in the general substance of your complaint, from its inception, we cannot see anything to it. We find that the tenant in this ease has not been harmed, and we are going to dismiss the case.
Mr. Lanni: On the record I desire to file my objections to the ruling and base my objection on the case of Hogg v. Real Estate Commissioner, 129 Pacific 2d, page 709, and the California case, 54 Cal. App. 2, page 712, having a statute similar to that in New Jersey, in which the court held the definition of dishonesty, but where the dishonesty as is used in the section of the real estate act, enumerating the grounds on which the Real Estate Commission may suspend or revoke a broker’s license, ‘denotes an absence of integrity, a disposition to cheat.’ The complainant takes the attitude that this real estate broker knew that the complainant required his affidavit in written form before the O. P. A.; that he willfully sought to cheat this complainant of the use of that affidavit, information and proof, and by refusing to certify to what had been previously testified to, my client would thereby lose possession of his apartment, in the City of Bayonne, which is an acute housing shortage area. Complainant reserves his right to take any appeal to the proper tribunal.”

The complaining witness, Tomei, prosecutes the present appeal. Since the appeal has reached us for determination without any preliminary motion to dismiss it, we shall in the circumstances by-pass, without comment, the status of the appellant as an “aggrieved party” within the import of the statute. B. S. 45 :15-18.

The course of procedure pursued by the commissioners should be scrutinized in the light of the legislation by which their duties are defined and their activities are governed.

The title of the original act (P. L. 1921, c. 141, p. 370) is “An Act to define, regulate and license real estate brokers and salesmen, to create a State Eeal Estate Commission and to provide penalties for the violation of the provisions hereof.” The object of the act manifestly contemplated the regulation under the police power of the business of real estate brokers and salesmen. Wensley v. Godby, 101 N. J. L. 325 (Sup. Ct. 1925); Waring v. Jobs, 104 N. J. L. 158 (E. & A. 1927); Kenney v. Paterson Milk & Cream Co., 110 N. J. L. 141 (E. & A. 1933) ; Corson v. Keane, 4 N. J. 221 (1950).

It is apparent that the Commission so created was not intended to constitute a tribunal by which the civil rights and liabilities of complainants and brokers inter sese were to be adjudicated. “This article shall not be construed to relieve any person from civil liability or criminal prosecution under the laws of this State.” B. S. 45 :15-'17.

We are informed that the Housing Expediter does not receive oral testimony in the consideration of applications for the revocation of such certificates. Proof is submitted to him in affidavit form. The basic grievance of the appellant is that the broker declined to supply him for such purpose with an affidavit with respect to his authorization by the landlord to sell the demised premises.

The statute provides that the “commission may, upon its own motion and shall, upon the verified complaint of any person, investigate the actions of any real estate broker * * *.” B. S. 45:15-17. We do not interpret the statute to require the Commission to conduct a formal hearing of every such complaint. True, the act necessitates a hearing upon notice to the accused licensed broker “before suspending or revoking any license.” B. S. 4 5:15-18. Cf. Taylor v. N. J. Real Estate Commission, 136 N. J. Law 18 (Sup. Ct. 1947).

Counsel for the appellant, however, points out that whether the Commission was obliged or not to conduct a hearing, a date for such was designated and a hearing undertaken.

We deduce from the record that an investigation had been made prior to the date of the hearing and that the broker had produced his written authorization.

“Commissioner Walker: My feeling is that the matter has been disposed of. Here is a signed authorization that the broker did have * *

Obviously tbe hearing began with an inquiry into the sufficiency of the complaint in view of the existence of the broker’s written authorization. The essence of the complaint was thereupon confined by the attorney of the complainant to “conduct which demonstrates unworthiness, incompetency, bad faith or dishonesty.” R. 8. 45 :15 — 17 (e).

The commissioners then assumed for immediate purposes, without testimony, the truth of the factual ground of the complaint, namely, that the broker had declined to furnish the desired affidavit for presentation by the tenant to the Housing Expediter, and the commissioners resolved that the allegations of the complaint in that particular failed to disclose conduct on the part of the broker which in the acknowledged circumstances justified either the temporary suspension or permanent revocation of the broker’s license for unworthiness, incompetency, bad faith or dishonesty.

The commissioners concluded that “on the face of it” (the complaint) there was no relationship between the broker and the tenant which imposed upon the broker the duty voluntarily to “disclose * * * on the application of the tenant * * * whether he has listings or whether he does not have listings.”

The ruling of the Commission is analogous to the dismissal of a complaint in a court of law or equity on the ground of its insufficiency. Such action does not constitute a deprivation of due process. Assuredly the Commission was not compelled to inquire whether the landlord had filed a false affidavit with the Housing Expediter. We perceive no justification for an annulment of the conclusion of the Commission.

The determination of the Commission is accordingly sustained and the appeal dismissed.


author: Ziegener, J. C. C.

text:
    CENTRAL HOFBRAU CORPORATION, PLAINTIFF, v. 200 RIVER STREET CORPORATION, DEFENDANT.
    Hudson County Court Law Division
    Decided January 24, 1951.

      Mr. Joseph B. McFeely, for the defendant.

      Mr. Henry J. Camby, for the plaintiff.
   Ziegener, J. C. C.

Defendant moves to dismiss the complaint herein on the ground that it states no claim to relief under R. 8. 2:26-66 et seq. (Uniform Declaratory Judgments Law), and that the plaintiff has no real interest in the subject matter, and that the question is moot.

On June 8, 1950, the defendant sold and assigned to plaintiff a lease of premises in Hoboken, New Jersey, and said lease was originally made between one Raymond F. Hopper, as landlord, and defendant, as tenant, on May 1, 1946, for a term of five years. The lease contained a provision as follows: “Upon expiration of the present Ere insurance and public liabilities policies, the tenant will renew said policies in at least the same amount that is now upon the property, pay the premiums therefor and keep said policies in effect for the period of the lease.”

At the closing between ¡fiaintiff and defendant, on June 8, 1950, a dispute arose as to the fire insurance premiums and an escrow agreement was executed by the parties whereby plaintiff’s attorney was to hold the sum of $400 for a 60-day period, within which time the parties were to determine said dispute. At the expiration of that time, and at the present time, the parties could not decide the dispute. It appears that the owner of said premises paid a premium of $313.84 on September 28, 1949, for fire insurance premiums covering the premises and expiring September 28, 1952, and also paid the premiums for the former policy issued in 1946 and expiring in 1949. Evidently, as shown by the escrow agreement, the owner of the premises paid premiums totaling $627.68 for these two policies. Also, it appears that Hopper, the owner who executed the lease, subsequently conveyed the premises to Andray, Inc., the present owner. Now plaintiff herein contends that the $400 in escrow should be paid to someone, including itself, hut not to the defendant, and the rights of the parties should be determined. The $400 withheld includes the amount paid for the 1946 policy and defendant’s pro rala share for the time it was in possession under the 1949 policy.

The Uniform Declaratory Judgments Law, B. S. 2:26-66 et seq., was passed in New Jersey as a remedial sfatute, to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations. It empowers courts, among other things, to determine any question of construction or validity arising under a deed, will, or written contract, and declare the rights, status, or other legal relations thereunder of the parties thereto. Honetsky v. Russian Consolidated Mutual Aid Society of America, 114 N. J. L. 240 (Sup. Ct. 1935). However, where a plaintiff can have no relief against the party named as defendant, such party should not be forced into litigation which can have no final result in favor of plaintiff. Tanner v. Boynton Lumber Co., 98 N. J. Eq. 85 (Ch. 1925). There must be an actual controversy in existence in order for a party to avail itself of the remedy provided in the statute above mentioned. Not only must the plaintiff prove his tangible interest in obtaining a judgment, but the action must be adversary in character, that is, there must be a-controversy between the plaintiff and defendant, subject to the court’s jurisdiction, having an interest in opposing his claim. New Jersey Turnpike Authority v. Parsons, 3 N. J. 235, at page 240 (Sup. Ct. 1949).

It is apparent that the plaintiff considered that a controversy was in existence between defendant and the owner of the premises herein, and not between itself (plaintiff) and defendant, when the above mentioned escrow agreement was executed. In said agreement the introductory clause begins: “There is a dispute between the owner of the premises 200 River Street, Hoboken, N. J.' and said 200 River Street Corporation, as to the liability of the former for payment of the fire insurance premiums on the building.” That appears to be the one and only dispute, or controversy in this transaction. The plaintiff is in no wise a party to that controversy, even as assignee of the lease. The $400, as part of the purchase price, belongs to the defendant, and if the owner contends that said defendant failed to pay the premiums as agreed he may take appropriate action. The plaintiff has no interest therein, and neither the escrow holder nor the landlord is a party herein.

In view of the foregoing the other points raised by defendant need not be considered, and I will grant an- order dismissing the complaint.


author: Drewen, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOSEPH BLACKER, DEFENDANT.
    Hudson Conunty Court
    Decided January 26, 1951.

      Mr. Horace K. Roberson, County Prosecutor, attorney for the State (Mr. William A. O’Brien, Assistant County Prosetor, of counsel).

      Mr. Sol Schulman, attorney for defendant.
   Drewen, J. C. C.

This defendant was convicted in the Hudson County Traffic Court of a motor vehicle violation. He appealed to this court and the State now moves to dismiss. The question is briefed on two grounds. Pirst, it is urged that the appeal was out of time under Rule 2:11 (g) which provides: “Within 10 days after filing the notice of appeal, the appellant shall apply to the court to which the appeal has been taken for an order fixing the date of hearing. Written notice of the date of hearing shall be served on the prosecuting attorney at least 10 days before the date set for the hearing. If the appellant fails to give the required notice of the date of hearing, the appeal shall be dismissed.” It is with respect to service on the “prosecuting attorney” of the prescribed notice of the date of hearing that appellant is claimed to have breached the rule. It is important here to set forth the procedural- steps and their dates. The conviction was had on June 20, 1950. A notice of appeal was filed with the clerk of the Traffic Court on June 29, 1950. On June 28 a copy of the notice was served on the attorney for the complaining witness in the Traffic Court proceedings. On July 7, 1950, an order was signed by Judge Ziegener of this court setting July 31, 1950, as the date of the hearing de novo. On July 28, 1950, a copy of Judge Ziegener’s order was served by appellant upon the prosecutor.

It is not deniable that on the date fixed for hearing this court, as known to all concerned, was not to be in session for the holding of trials or the hearing of appeals de novo. Counsel urges that his want of timeliness in serving the notice of hearing date was due to his oversight in serving it on the attorney who represented the complaining witness in the lower court instead of on the county prosecutor. Under the circumstances I think that of no moment. What must be considered is that the established method of fixing dates for the trials of appeals de novo throughout the entire period relevant to this inquiry was, and still is, that of a calendar call presented to the court at intervals as announced from time to time by the prosecutor. According to that procedure the present case was placed by the prosecutor in the weekly call for Part I of September 25. On the latter date it was carried over with the consent of or on motion of the prosecutor to the weekly call of October 23, 1950, being then set down for hearing on November 22, 1950. Meanwhile the prosecutor made no motion and indicated no intent to challenge the validity of appellant’s status in this court. That motion was made for the first time, and without prior notice, on the aforementioned trial date, viz.: November 22, 1950. This was obviously to appellant’s prejudice.

I think, for one thing, the facts narrated involve unmistakably a waiver by the State of the omission now in point. Also, it is my view that the spirit and intent of the requirements of subdivision (g) of Buie 2:11 would in no way be served by the granting of the State’s motion. What the rule requires is “written notice of the date of hearing * * * at least 10 days before the date set for the hearing.” Under the established practice as described the court’s order cannot be said in any real sense to have fixed the date of hearing. That was not done and could not be done until the processing of the ease through the calendar call in the manner stated.. The ground of the State’s motion in this particular, however it may be said to rest on the letter of the rule, is unreal and the result of its granting would be to deny the appellant a substantial right on a ground that in truth amounts to no better than a fiction. It is not a question here of dispensing with adherence to the ten-day limitation, but rather of recognizing the existence of a system to which appellant was subject that superseded and precluded the purpose as well as the operation of the rule in that particular. It is plain that as matters 'stood the notice of hearing date given the prosecutor on July 28, 1950, served the one purpose possible of apprising him of the pendency of the appeal so that it might be listed in the then next calendar call, that of September 25, 1950, which it was. Timely service could have had no different effect.

The other ground of the motion to dismiss is based upon what is claimed to be appellant’s failure to comply with the procedure established by R. S. 39:5-12 and 39:5-16. The appellant contends that this procedure has been superseded by the provisions of Rule 2:11. The State admits as much in its brief. There are cases which appear to leave no doubt of this (State v. Yaccarino, 3 N. J. 291 (1949); State v. Smith, 6 N. J. Super. 85 (App. Div. 1949); State v. Home Fuel Oil Co., etc., 6 N. J. Super. 414 (Cty. Ct. 1949); State v. Simpkins, 8 N. J. Super. 194 (App. Div. 1950)).

The motion to dismiss the appeal is denied.