author: Jayne, S. O. C.

text:
    THE ORDINARY OF THE STATE OF NEW JERSEY, PLAINTIFF, v. DANIEL BASTIAN, MABEL HOGUE AND LAURA COIA, DEFENDANTS.
    Decided February 17, 1939.
    For the plaintiff, Nathaniel 8. Hyman.

    For the defendant, Martin Bloom.

   Jayne, S. O. C.

The present motion is leveled at.the answer of the defendant Mabel Hogue. This action is prosecuted by leave of the ordinary to establish the alleged forfeiture of the bond of an administrator. R. S. 3 :8-20. The three defendants executed the bond. The defendant Laura Coia, although served with process, was presumably disinclined to interpose a defense and it seems -to be conceded that at the solicitation of the plaintiff a final judgment has been entered against her in this action.

The answer filed by the defendant Mabel Hogue acknowledges the truth of the allegations of paragraphs one to five inclusive of the amended complaint. Paragraph six, seven and eight of the answer and also the first separate defense are apparently intended to aver that the person at whose request this action was instituted has no such interest in the administration of the estate as to be aggrieved by the breach of the condition of the bond. Of course, the determination of the ordinary to put the bond in suit must be regarded here as conclusive. In the matter of Conrad Honnass, 14 N. J. Eq. 493; In Ordinary v. Poulson, 43 N. J. L. 33. Moreover, these averments, are claimed to be sham. No affidavit is presented to substantiate the factual averments of this part of the answer. The affidavit submitted on behalf of the plaintiff evinces the falsity of such averments. Paragraphs six, seven and eight of the answer .and the first separate defense are consequently determined to be sham.

Incidentally it may be pointed out that the failure of the administrator to render an account in due form of law, is assigned as the breach of the bond. Dickerson v. Robinson, 6 N. J. L. 195; Ordinary v. Snook, 10 Id. 65; Ordinary v. Barcalow, 36 Id. 15.

Upon the assumption that the plaintiff has elected to sue all of the defendants as joint obligors, the defendant Mabel Hogue avers in the second separate defense that the entry of the final judgment against the co-defendant, Laura Coia, merged the joint obligation in the judgment. At common law a plaintiff was obliged to join as defendants all those who were jointly liable. Non-joinder of parties, then living, who jointly contracted might be pleaded in abatement and where the basic facts of the non-joinder were apparent on the face of the pleading, a demurrer, motion in arrest of judgment or writ of error were available to the defendants. Where the contract was several as well as joint, the plaintiff was at liberty to proceed against the parties jointly or each separately and where there were more than two parties to a joint and several contract, as where three obligors were jointly and severally bound, the plaintiff was obliged to either sue them all jointly or each of them separately. In an action ex contractu against several parties on an alleged joint contract, it was incumbent upon the plaintiff to prove a joint contract at the trial. 1 Chit. Pl. (14th Am. ed.) 46. Accordingly it followed that in an action against several defendants in which a joint contractual liability was alleged, the entry of a final judgment against one of the joint debtors merged the original obligation in the judgment and the cause of action against the other defendants was thereby extinguished King v. Hoare, 13 M. & W. 495; Kendall v. Hamilton, 4 App. Cas. 504; McLeod v. Power, 2 Ch. 295; Hammond v. Schofield, 1 Q. B. 453. The same determination was announced by our own Supreme Court in Coles v. McKenna, 80 N. J. L. 48; 76 Atl. Rep. 344, and the rule therein expressed was followed in Leonardis v. Freda, 8 N. J. Mis. R. 887; 152 Atl. Rep. 239. Therefore it has been the practice in such actions to enter an interlocutory judgment against the defendants who defaulted and where others have interposed a defense, a special venire was employed to try the issue as well as to assess the damages. 2 Tidd Pr. 895. The induction that the judgment of a court of record transformed the nature of the original cause of action logically introduced the sequel that the same original cause of action could not thereafter be made the subject of another action against some other defendant. Coles v. McKenna, supra.

In the present action a copy of the bond is attached to the amended complaint and reference is made to it in the body of the pleading. It may therefore be recognized. Supreme Court rule 37; Loeb v. Barris, 50 N. J. L. 382; 13 Atl. Rep. 602; City of Bridgeton v. Fidelity and Deposit Co., 88 N. J. L. 645; 96 Atl. Rep. 918. Cf. Harrison v. Vreeland, 38 N. J. L. 366. The copy of the bond exhibits the true nature of the contractual obligation upon which the alleged cause of action is founded. It transpires that the defendants expressly engaged to bind themselves jointly and severally. Overlooking the form, the complaint therefore, in substance, alleges that the defendants are liable for the breach of a joint and several undertaking. Section 2:27-25 (Revision) is as follows: “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.” See, then, Supreme Court rule 17.

Supplementing these considerations reference may be made to the two additional sections of chapter 27 (Revision) relating to procedure in courts of law. Section 2:27-247 is as follows: “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and the court may determine the ultimate rights of the parties on each side as between themselves, and may grant to a defendant any affirmative relief to which he may be entitled.”

"If a complaint or.cause of action is sustained in favor of or against only a part of the parties thereto, judgment, either interlocutory or final, may, at any stage of the proceeding, be rendered in favor of or against such parties respectively.” Section 2:27-250 is as follows: "An unsatisfied judgment against one or more of several joint contractors shall not discharge the other joint contractors from liability on the contract.”

The source of these sections of the revision is found in the Practice act of 1912. These two sections, except for some transposition of words and omissions to be presently mentioned, composed section 20 of the act of 1912. Perhaps the removal of the paragraph now designated 2:27-250 from its former context was purposeful and therefore significant.

I am asked somewhat urgently by the attorneys to determine the application, if any, of these sections of our statute to the situation existing in the present action. The language of section 2:27-250 seems to be explicit and definitely intelligible. Nevertheless, the decision in Coles v. McKenna, supra, has seemed to have continued to govern the pracatice. The case of Leonardis v. Freda, supra, was decided some years after the enactment of the Practice act of 1912 but it is not apparent from a reading of the opinion that the application of Section 20 of the Practice act (1912) was considered.

In 1910 our State Bar Association created a general committee to prepare and submit to the association a proposed supplement to the Practice act of 1903 with pertinent rules of court and adaptable forms. The object was to simplify our pleading and procedure and thereby expedite the determination of legal controversies. The proposed supplement was actually written and formulated by a subcommittee of which Messrs. Charles H. Hartshorne, Alfred P. Skinner and William M. Clevenger were the members. This subcommittee under date of January 6th, 1911, submitted a report to the general committee of the association accompanied by a proposed supplement to the Practice act with schedules of suggested rules and forms. The proposed supplement was thereafter edited and with few changes ultimately became, by action of the legislature, our Practice act of 1912. A comparison of the proposed supplement drafted by the subcommittee with the supplement as actually enacted reveals that section 21 of the former was adopted as section 20 of the latter, to which was subjoined the following sentence: “One writ of execution may issue upon one or more judgments entered in the same cause.” The subcommittee in the preparation of the proposed supplement for submission to the general committee uniformly gave references at the end of each section indicating the source from which the provisions of the section had been drawn together with the citation of any decisions of our own courts with which the provisions of the. section were discordant. It is of interest to note that at the end of section 21 of the proposed supplement as submitted by the subcommittee the case of Coles v. McKenna is cited. Eeference was also there made to the following rule promulgated under the Connecticut Practice act: “Where the plaintiff may, at his option, join several as defendants, or sue them separately, judgment without satisfaction against one shall not bar a suit against another.”

Extrinsically, it may he stated in this mere memorandum that Mr. Clevenger assures me that section 21 of the proposed supplement submitted by bis committee was intended to enable the plaintiff in an action against joint covenantors or obligors to enter a final judgment against one or more of them who failed to defend and to thereby permit the plaintiff to promptly obtain a judgment lien upon the property of such defendants and to nevertheless authorize a continued prosecution of the action against the remaining defendants. It was thought, it is said, that this could be safely done if the court were empowered to so control the proceedings that the plaintiff should receive but one satisfaction. The two sentences which were formerly embraced by section 20 of the Practice act (1912) and which have been omitted from sections 2 :27-247 and 2 :27-250 of the Eevision are: “The court shall control the proceedings so that the plaintiff shall receive but one satisfaction. One writ of execution may issue upon one or more judgments entered in the same cause.”

In the present action the complaint manifestly declares that the basic contractual obligation of the parties is joint and several. It therefore suffices to conclude that under the existing statutes where several defendants are sued in one action for the breach of a joint and several contract or obligation, the entry of a final judgment against a defendant who has defaulted, does not bar the prosecution of the action against the remaining defendant or defendants unless and until the judgment so entered has been satisfied.

The second separate defense fails to aver that the judgment entered against the defendant Coiá has been satisfied. The averments of this defense are therefore insufficient in law.

A rule in conformity with these conclusions may be presented.


source: Caselaw Access Project

author: Davis, V. C. (Orally.)

license: Public Domain

text:
    Lillie O. King et al., complainants, v. Laura V. King and Girard Trust Company, executor of the last will and testament of Bertha B. King, deceased, defendants.
    [Decided May 18th, 1938.]

      Messrs. Bleakly, Stockwell <& Burling {Mr. Henry F. Stockwell and Mr. James H. Stockwell), with whom was associated Mr. Alexander McGowan (of the Philadelphia bar), for the complainants.

      Messrs. Gurry •& Purnell {Mr. Edward T. Gurry and Mr. George Purnell), with whom was associated Mr. Edward J. Goigan, of the firm of Karr & Golgan (of the Maryland bar), for the defendant Laura Y. King.

      Messrs. Boyle & Archer {Mr. F. Morse Archer, Jr.), for the defendant Girard Trust Oompay.
   Davis, V. C. (Orally.)

The bill in this canse is filed for the purpose of determining the intent of Bertha B. King, the testatrix, in the will made by-her dated January 18th, 1934, in which will she disposed of her estate by first directing the payment of her debts, then a legacy of $5,000 to her sister, Laura V. King, then three small legacies, one to Ella Watson, another to Emma French, and another to Edna Shutz. None of the latter are relatives of the testatrix. She then provided by the third paragraph of her will that:

“All the rest, residue and remainder of my estate of whatsoever kind, whether real, personal, or mixed, and wheresoever situate, and whether now owned or hereafter acquired by me, I give, devise, bequeath, limit, and appoint absolutely unto my beloved husband, Albert S. King, and unto the heirs, executors, administrators and assigns forever of my said husband.”

Bertha B. King survived her husband, Albert S. King, for about a year after his death. In 1931 Albert S. King, the husband of Bertha B. King, executed his will, and shortly before the execution of that will he executed a deed of trust to the Girard Trust Company, which deed of trust is dated September 9th, 1931, and in that deed he made provision for a trust fund for the benefit of his wife, as I recall the testimony, of something over $100,000, which trust fund, after the decease of his wife, should be disposed of by the Trust Company for the benefit of his sisters and his nephews and nieces. No children were born of Mr. and Mrs. King. Mrs. King had one sister,. Laura V. King, who is still living. Mrs. Laura Y. King’s husband was not a relative of Albert King, the husband of Bertha King. Both families, however, appear to have been residents of Baltimore. Laura Y. King’s husband was a dentist; Bertha B. King’s husband was a business man who had, according to the testimony, acquired a considerable estate through his business operations and his investments.

It appears that the wills of both Albert S. King and Bertha B. King were prepared by an attorney connected with the Girard Trust Company. At any rate, the will of Bertha B. King was prepared by a Mr. Tuttle, a member of the bar of the State of Pennsylvania, as well as the State of Kew York, and he was an officer of the Girard Trust Company.

The question which is presented by the bill filed in this case by the next of kin and heirs-at-law of Albert S. King is whether, under the third paragraph of the will of Bertha B. King, they became entitled to her residuary estate upon the death of Bertha B. King by reason of the language used in the will, or because of the intention of Bertha B. King that that should be the effect of her will.

Certain testimony has been offered on behalf of the complaints by which it is sought to determine the question of the intention of Bertha B. King from statements made by her to persons living near her in Biverton, Kew Jersey. It is contended on the part of the complainants that this testimony is admissible for the purpose of showing the intent of the testatrix, and some of this testimony produced on the part of the complainants has been met by certain evidence on the part of the defendants. To justify the contention by the complainants that Mrs. King had no intention that her sister should have anything more than the general legacy of <$5,000 provided in the will, certain witnesses testified as to the attitude of Mrs. Bertha B. King towards her sister which, undoubtedly, was intended to create the impression she had been so far estranged by reason of some controversy which took place in 1910 concerning the disposition of the estate of the mother of these sisters, and going further back to perhaps 1905, when, it was said, the testatrix was displeased because of the alleged habits of Mrs. Laura Y. King concerning the use of intoxicants. Without deciding upon the competency of this testimony, I am discussing it merely to give a picture of the situation. But admitting, solely for the purpose of argument, that it is competent, there is nothing in the conduct of Mrs. Bertha B. King after the death of her husband, or for some time before that time, that indicated that she was so far estranged from Laura Y. King, her sister, that they had lost affection for each other. In this case, according to the testimony of Miss Trench, who was a companion to Bertha B. King, as well as some of the other witnesses who had the opportunity of observing both of these sisters from time to time, I am convinced they were not so far estranged as certain witnesses sought to indicate. Mrs. Bertha B. King, in October, 1936, a few months after her husband’s death, moved to Baltimore, the same city in which her sister resided. Apparently neither of them was in good health; they visited each other, and embraced when they met; it cannot be denied that they showed considerable affection toward each other. There were no quarrels, according to the witnesses, and I am satisfied testatrix had reached the period in her life, perhaps some time before, when such incidents as may have caused remarks attributed to Bertha B. King in the 'more or less distant past, had been forgotten, or at least forgiven. It cannot always be determined from the remarks that one sister makes to or about another, what their deep inner feelings may be. So whether or not the testimony which has been admitted conditionally is competent, I am unable to conclude therefrom that anything that was done or said would serve to change, or explain, or amplify the express language in the will of Bertha B. King. The intention of the testatrix must, after all, be gathered from the context of the will, and under the law of this state, when Albert S. King died, the legacy to him lapsed. The language of paragraph three, in which the testatrix said,. “I give, devise, bequeath, limit and appoint absolutely unto my beloyed husband, Albert S. King, and unto the heirs, executors, administrators and assigns forever of my said husband,” the rest, residue and remainder of the estate, is free of any ambiguity which calls upon me to go outside the will.

The cases in this state hold that the words there used are words of limitation and not of substitution. It is urged upon the part of the complainants that because this same language was not used making the other bequests, that circumstance creates a situation which would give rise to the necessity of having the will construed. I take no such view of the will. It is not for the court to make a will for the testatrix; and where the will on its face is entirely free of language having a doubtful significance the court may not go beyond the will itself in order to give to clear and unambiguous language a meaning different from its established legal import, nor do I think that a construction of the will, as suggested in this ease, should depend upon statements made by the testatrix, after the making of the will.

My conclusion is that upon the death of Albert S. King there was a lapse, as far as the disposition of the residuary estate of testatrix was concerned, and that upon this lapse the testatrix died intestate as to that estate and the same goes to her sister, Laura Y. King, her only next of kin and heir-at-law.


author: Oliphant, S. O. C.

text:
    THOMAS J. WOOD, PLAINTIFF, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Decided April 14, 1939.
    Por the plaintiff, Thomas B. Davidson.

    Por the defendant, Gollins & Gorlin (Edward A. Marldey, Patríele F. McDevitt and James J. Langan, of counsel).
   Oliphant, S. O. C.

On May 29th, 1936, plaintiff took out an insurance policy in the sum of $20,000 on his own life with the defendant company as insurer. It is what is known as a twenty-year endowment policy. As beneficiaries were designated “the lawful surviving child or children, if any, of the insured, share and share alike, the survivors or survivor” and as contingent beneficiaries were designated an aunt and an uncle of the insured. The policy provides that the word “child” or “children” does not include grandchildren or other remote descendants of the insured. The policy has a cash surrender value clause which provides that it may be surrendered and the value thereof paid without the consent of any beneficiary not irrevocably designated or any contingent beneficiary. The policy also contains this significant, and as far as this matter is concerned, I believe, controlling clause.

The insured “waives the right to change or revolee the designation of beneficiaries and contingent beneficiaries until he attains the age of thirty-five years.”

The plaintiff, the insured, was unmarried at the time the policy was issued, he has never married and has no lawful child or children. He will not attain the age of thirty-five until 1950.

In this suit, plaintiff endeavors to recover the cash surrender value of the policy. On June 23d, 1938, he delivered and surrendered to the defendant the policy with a written demand for its cash surrender value. That demand was accompanied by a consent and direction to pay the surrender value to the plaintiff, which was signed by the plaintiff and his aunt and uncle, the contingent beneficiaries. As heretofore stated none of the class of primary beneficiaries named in the policy were at that time in being, and obviously their consent was not obtainable. Plaintiff contends that he has a right to the surrender value for numerous reasons, which are at length set forth in his counsel’s brief.

I am of the opinion none of them need be considered as the question is entirely controlled by the clause in the policy which provides that “the right to change or revolee the designation of beneficiaries” is waived until plaintiff reaches thirty-five years of age.

Plaintiff by his own act completely divested himself of the right to revoke the designation of his child or children as beneficiaries until he attains that age. It may be that at that time there will be a child or children in being.

What the plaintiff in this suit is endeavoring to do is to revoke the designation of beneficiaries which is in violation of the contract he himself made under the clause expressly waiving his right to so revoke and also under the cash surrender clause. He is endeavoring to do by indirection that which he is prevented from doing directly. The contention that the policy is a Wisconsin contract has no merit. The Wisconsin authorities cited do not support the contention of the plaintiff.

The motion to strike the complaint will be granted. It fails to state a cause of action. An order in conformity with the conclusion herein reached may be presented.


author: Kinkead, S. C. C.

text:
    MARY KLINGER, PLAINTIFF, v. WILLIAM STEFFENS, DEFENDANT.
    Decided April 13, 1939.
    For the plaintiff, Abraham R.Klitzman (Theodore D. Parsons, on the brief).
    For the defendant, McDermott & Finegold (M. Raymond McGowan, on the brief).
   Kinkead, S. C. C.

The complaint alleges that on January 7th, 1938, the plaintiff was' a passenger in the defendant’s automobile which was being operated in the State of Florida by Benedict Klinger, the plaintiff’s husband, who was the agent, servant and employe of the defendant. The complaint further alleges that by reason of Benedict Klinger’s negligence in operating said automobile at a high and excessive rate of speed, and on the wrong side of the road, the car was caused to skid and upset, to the damage of the plaintiff.

The defendant moves to strike the complaint on the ground that an employer cannot be held liable for an injury to a wife of his employe caused by the employe’s negligence.

It is well settled under the common law that a wife cannot maintain an action against her husband for his tort. Cerruti v. Simone et al., 13 N. J. Mis. R. 466; 179 Atl. Rep. 257. “In its early stages the common law notoriously enveloped the identity of the wife, and all her possessions in the personality of the husband.” Sims v. Sims, 79 N. J. L. 577 (at p. 579); 76 Atl. Rep. 1063.

“Under the common law, a husband and wife were deemed to be one person, and, while the marriage relation continued, the legal identity of the wife was suspended or merged in that of the husband. Between the spouses, no right or cause of action existed. As to third persons, the joinder of the husband was required in all actions by or against a married woman unless he was an alien who had always resided abroad or was regarded as civilly dead. If a husband had no cause of action against a lort feasor guilty of an assault upon his wife because of his own complicity, his disability as a party plaintiff barred an action for the wrong. The wife could not sue alone. The joining of a husband in a suit for injuries to a wife, at common law, was a procedural requirement. The merits of the cause rested in her. If the husband died before or pending the suit, the right of action survived in the wife. If the wife died before or pending the suit, the right of action was extinguished.” Cerruti v. Simone et al., supra.

R. S. 37:2-9 provides that “any married woman may maintain an action in her own name, without joining her husband therein, for all torts committed against her, or her separate property, in the same manner as she lawfully might if a feme sole, and the non-joinder of the husband shall not be pleaded in any such action. In any such action the husband may join his claim for any damages he may have sustained in connection with or growing out of the injury for which his wife brings her action; but his failure to join shall not prevent him from maintaining a separate action for such damages.”

In commenting upon Pamph. L. 1906, p. 525, as amended Pamph. L. 1909, p. 210, which statute was the source of R. S. 37:2-9, in Sims v. Sims, supra, Mr. Justice Minturn (at p. 582) says: “That this act was intended to confer the power upon a married woman to protect and enforce her rights, is the specific announcement contained in its title. The body of the act declares that she may maintain an action as a feme sole might lawfully do, and without joining her husband therein for all torts committed against her or her property. Keeping in mind the old law and the existing mischief, it becomes manifest that the legislative intent which inspired this remedial measure could have been only a desire to confer upon the married woman that equality of remedy as an independent suitor which would enable her to vindicate her right in personam for a tort committed against her, and thus remedy the inequality to which she was subjected by the common law.”

A married woman may maintain an action against a third person to recover damages for personal injuries despite the fact that the jury may decide that her husband, with whom she was riding at the time, was guilty of contributory negligence. In the enforcement of her rights against a third person a married woman stands in the same relation to her husband as to a stranger. Peskowitz v. Kramer, 105 N. J. L. 415; 144 Atl. Rep. 604.

It is urged on behalf of the defendant, that the plaintiff cannot maintain her action against the defendant, because of the decisions of the courts of our state which hold, that where the employer personally is not negligent, he cannot be held liable in a case where his employe is not liable. Hummers v. Public Service Electric and Gas Co., 8 N. J. Mis. R. 689; 151 Atl. Rep. 383; affirmed, 108 N. J. L. 196; 156 Atl. Rep. 423; Carter v. Public Service Gas Co., 100 N. J. L. 374; 126 Atl. Rep. 456, and Vaniewsky v. Demarest, 106 N. J. L. 34; 148 Atl. Rep. 17; affirmed in 107 N. J. L. 389; 154 Atl. Rep. 623.

An examination of these cases discloses that in Hummers v. Public Service Gas and Electric Co., supra, the jury, in an action commenced by the plaintiff jointly against the Public Service Corporation and one Ankelein who was an employe of the said company, returned a verdict for $3,000 against the Public Service Corporation, and a verdict in favor of the defendant Ankelein, finding no cause of action as against him. The court held that a verdict in favor of the driver was by necessary implication a determination by the jury that the driver was not guilty of any negligence, which was the proximate cause of the accident. That being so the court further held that the verdict against the Public Service Corporation was illegal.

In Carter v. Public Service Gas Co., supra, Eyerson as employe of the defendant company was directed by his superior to go to the Carter home and remove a gas meter. While doing so, Eyerson became involved in an altercation with Mrs. Carter and as a consequence Eyerson commenced suit for damages against Mrs. Carter for her assault and battery, and was awarded a verdict of six cents damages. Subsequently Mrs. Carter started suit against the Public Service Corporation alleging that Everson had committed assault and battery upon her. The court held that the judgment recovered by Eyorson was res adjudicada of the suit instituted by Mrs. Carter.

In Vaniewsky v. Demarest, supra, in a suit against a master and servant, the lower court awarded a verdict in favor of the defendant driver, but gave judgment in favor of the plaintiff against the master. The Supreme Court approved the principle that: "A verdict against the master and acquitting the servant is equivalent to a finding that no cause of action exists and will not support a judgment against the master.”

The three decisions cited, clearly cannot be construed as settling the issue involved in the case sub judice.

The legal question presented by the instant case has been decided in other jurisdictions with a great diversity of opinion. New York, Pennsylvania, Massachusetts, Alabama, Ohio, Vermont and Wisconsin uphold the wife’s right to sue her husband’s employer, while Michigan, Nebraska, Iowa and Maine hold to the contrary.

The question has never been presented for decision to our Supreme Court or Court of Errors and Appeals, but in our Circuit Court a diversity of opinion likewise exists. Judge Palmer in an unreported case held that the wife cannot maintain an action against the husband’s employer while Judge Brown who wrote the decision in Cerruti v. Simone, supra, which decision is the only reported one in this state passing upon the question, held that a wife may maintain her action against the husband’s employer.

A consideration of R. S. 37 :2-9 and the decisions construing the laws which are the source of that section of our Eevised Statutes, holding that a wife may sue for all torts committed against her by a third person as if a feme sole, leads to the conclusion that a wife cannot be barred from her action against a third person, merely because the employe of that third person, whose negligence was responsible for the wife’s injuries happens to be her husband.

The motion is denied.


author: Pee Cueiam.

text:
    ELLA I. WILSON ET AL., PROSECUTORS, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF UNION ET AL., DEFENDANTS.
    Submitted October 4, 1938
    Decided January 28, 1939.
    Before Justices Case, Donges and Porter.
    Por the prosecutors, Julius KwalicJc.

    Por the defendants, Charles Wagner and Connolly rfs Uueston.

   Pee Cueiam.

■ This is the return of a rule to show cause why a certiorari should not issue to review the proceedings, determinations, recommendations and actions of the township committee, board of adjustment and building inspector of the Township of .Union, respecting the permit to defendant Ratzman for the erection and maintenance of a gasoline service station in said township.

Our study of the record persuades us that there are questions in the case which should be the subject of review.

The writ of certiorari is allowed.


text:
    THE STATE OF NEW JERSEY, EX REL. IRVING EISENBERG, RELATOR, v. GEORGE SCHEETZ, RESPONDENT.
    Argued December 16, 1938
    Decided January 5, 1939.
    Por the prosecutor of the rule, William H. Osborne, Jr.

    Por the respondent, Benjamin Bowden.

   Pee Cueiam.

It is deemed proper that an information in the nature of a quo warranto should issue. Leave will be given.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELLA MITCHELL, PETITIONER, v. SPENCER L. HAINES, RECEIVER OF THE MOUNT HOLLY NATIONAL BANK OF MOUNT HOLLY, NEW JERSEY, RESPONDENT.
    Decided April 3, 1939.
    For the petitioner, Povjell <6 Parker (Harold T. Parker).

    For the respondent, Ralph W. Haines.

   ❖ # # # * *

The testimony produced at the hearing on the part of the petitioner disclosed that the decedent, William Mitchell, was, on December 13th, 1937, at approximately six o’clock p. M., found in an unconscious condition on the floor of the boiler room under or partially under a stoop or landing to a staircase leading from the main building of the premises known as the R. C. Chance Canning Factory and owned by the respondent, to the boiler room.

At the time of his discovery, decedent was severely burned about the head, body and limbs. At the approximate location of his body there was a broken lantern, numerous tools and a leaking steam pipe. Immediately after his discovery he was taken to the Burlington County Hospital and treated for his burns and shock, and died on December 14th, 1937, approximately seventeen hours after his admittance.

Dr. Anthony V. Ziccardi testified that he took charge of the patient upon his admittance to the hospital and that he treated him for first, second and third degree burns and the resultant shock, and that in his opinion the said burns and resultant shock were the primary causes of death; that from his examination he was unable to discern any symptoms that would indicate any other cause of death.

Dr. Luis E. Viteri testified that he performed an autopsy and that he reached the conclusion that the primary causes of death were the first, second and third degree burns and the resultant shock, and that the autopsy, in his opinion, definitely determined that decedent had not had an acute heart attack sufficient to produce death or unconsciousness.

Petitioner produced testimony to the effect that decedent had been employed by William D. Marren, a previous owner of the property owned by the respondent, and that decedent’s employment was that of a fireman and general utility man around the entire premises; that at the time of the taking over of the property by the respondent, respondent continued the employment of the decedent as fireman and general uility man.

' The testimony also showed that the boiler room at the probable time and at the location of the accident was dark and that the use of artificial light, such as a lantern, was necessary in order for decedent to have proceeded with any repairs to the pipe or heating system.

It was stipulated by the parties and their counsel that decedent was receiving a salary of $15 per week and that petitioner, Ella Mitchell, was dependent upon decedent, and that she paid the funeral expenses in the sum of $269.

Eespondent submitted testimony that decedent was employed as a fireman and watchman, but that his employment was such that in the event that repairs were necessary to the building or the heating system, his employment did not cover the making of such repairs.

Eespondent also produced Dr. Lyman B. Hollingshead, who testified that decedent had high blood pressure and was suffering arteriosclerosis.

Eespondent also defended the petition upon the ground that he, as a receiver of a national bank, was a governmental agent and that by virtue thereof was not subject to the jurisdiction of the Workmen’s Compensation Bureau.

I am not impressed with the argument that a receiver of a national bank as such is a federal officer or agent, and by virtue thereof immune of liability under the Compensation act. The National Bank of Mount Holly, of which the respondent is receiver, was organized as a corporation for financial gain in the interest and benefit of its stockholders. The appearance of the respondent as receiver is a part of the federal government’s plan to protect the interest of depositors, creditors and stockholders. A receiver’s duties pertain to conservation of assets for the benefit of depositors, creditors and stockholders, and in the performance of this function, the receiver in fact acts as an agent of such depositors, creditors and stockholders, and performs a duty which is not strictly a governmental function. Immunity from suit on the part of federal officers extends only to such individuals as are strictly public officers and who are an integral part of governmental agencies in the administration of governmental functions. A receiver does not come within that class.

It can be conceded that if the Mount Holly National Bank had employed the decedent and during such employment the decedent lost his life as the result of injury which arose out of and in the course of his employment, that thereupon the Workmen’s Compensation act would be enforceable as against the bank. This being so, a receiver, stepping in to manage the bank in order to provide an orderly liquidation of its assets and the payment of its liabilities, stands in no better position than the bank itself. A judgment against the receiver can only affect the assets in his possession received in his official capacity, and in nowise affects the United States government.

The decedent was employed by the respondent in order that a building taken over by the receiver as a part of the bank’s assets should be maintained and finally liquidated as a part of the process of liquidation undertaken by the receiver.

I, therefore, conclude that the respondent is within the jurisdiction of the Workmen’s Compensation Bureau, and is subject to the provisions of the Workmen’s Compensation act of the State of New Jersey.

I also find as a fact that the decedent was in the employ of the respondent at the weekly wage of $15 a week; that the petitioner was his sole dependent; that the causes of his death were the first, second, and third degree burns, and the resultant shock received by him while he was undertaking to repair a leaky pipe leading to the boiler, located on the respondent’s premises, with the aid of a kerosene lantern, which by explosion or other cause ignited his clothing.

I also find that the repairing of the leak in question was a part of the decedent’s work and incidental to his employment, and that the injuries received by the decedent, which resulted in his death, arose out of and in the course of his employment.

' * . ❖ # ❖ * ❖ ❖

It is, therefore, on this 3d day of April, 1939, ordered, that judgment be entered in favor of the petitioner and against the respondent.

# * # # ❖ ❖ • #

Harry S. Medinets,

Deputy Commissioner.


author: Here, A. M.

text:
    Rose J. Herman, petitioner, v. Solomon Herman, defendant.
    [Decided March 8th, 1939.]

      Mr. Abe J. Dcuvid, for the petitioner.
   Here, A. M.

Petitioner secured her final decree for divorce from the bond of matrimony in this suit on September 16th, 1929. 3STo order for alimony was made pending the suit or subsequent to the decree. Application for alimony was not made until the year 1931, and it was then referred to a special master to take proofs and report to the court whether in his judgment alimony should be ordered and if so in what sum. The master heard evidence and reported on May 15th, 1931, that in his opinion the defendant should be ordered to pay alimony in the sum of $15 per week. No exceptions were filed to this report, nor was any order entered thereon. No further proceedings were taken by either party in the cause until the present application.

Defendant has been paying moneys to petitioner from time to time since the entry of the decree, for her support and maintenance, but these payments have fallen far short of the allowance recommended by the master. It is petitioner’s admitted purpose.in pressing her present application to establish the arrearages as a debt against defendant, upon which she may take out process of execution.

There is no doubt as to the power of the chancellor to make an order or decree nunc pro tunc even after a great interval of time has elapsed. Ruckman v. Decker, 27 N. J. Eq. 244; Hoyt v. Hoyt, 98 N. J. Eq. 426; 131 Atl. Rep. 127. But the power will not be exercised when to do so would disturb a status or impair a right, particularly where as in the instant case the delay has been due to the neglect of the petitioner. Rinehart v. Rinehart, 91 N. J. Eq. 354, 356; 110 Atl. Rep. 29. On the contrary, the only legitimate purpose and justification for entering an order or decree nunc pro iunc is to preclude the intervention of subsequent rights and equities from disturbing a status or impairing a right. In re Beam, 93 N. J. Eq. 593, 597; 117 Atl. Rep. 613.

To grant petitioner’s application would clearly violate this condition. Although defendant’s common law obligation to support petitioner still persists, it has remained unliquidated as to amount. Until the court orders periodic payments in the form of alimony no debt can arise in petitioner’s favor. To order payment of alimony nunc pro tunc would be to create a debt retroactively, which if not inconsistent with due process of law would at least be contrary to settled principles. Defendant’s status remains one of immunity from the obligation to pay a fixed allowance for petitioner’s support until the court orders it.

Alimony is always subject to readjustment upon a substantial change in the circumstances of the parties. In this ease, had an order for the payment of alimony been entered promptly upon the filing of the master’s report, a subsequent change of circumstances (which concededly has occurred) would presumably have led to a reduction in the amount of alimony as originally fixed, on defendant’s motion. To enter an order nunc pro tunc for the allowance recommended by the master would be to foreclose the defendant ex post facto of his right to have applied for such modification.

Petitioner’s application is predicated upon a misconception of the nature of alimony. Alimony is the periodic allowance from the husband’s income payable to the wife (or to the ex-wife who has divorced him) for her maintenance, as fixed from time to time by the court according to the varying circumstances of the parties. The allowance will not ordinarily be ordered out of the husband’s estate, nor retrospectively. Even where arrearages have accumulated under a subsisting alimony order the court is loath to enforce collection beyond one year. De Blaquiere v. De Blaquiere, 3 Hagg. Ecc. 322; 162 Eng. Repr. 1173. Such arrearages have the force of a judgment at law only when the chancellor certifies the amount thereof. Rooney v. Rooney, 102 N. J. Law 551; 133 Atl. Rep. 752. If the wife unduly delays or neglects to apply for alimony or to seek collection of arrearages under an existing alimony order the court will be inclined to find in her delay a waiver or evidence of payment. See Wilson v. Wilson, 14 N. J. Mis. R. 33; 181 Atl. Rep. 257. Alimony is ordered to the end that the wife may presently be maintained. If she continues to maintain herself for months or years without such provision her past needs will not be considered; it is sufficient that she has subsisted in the meantime. To inquire into the varying past circumstances of the parties in order to determine what the amount of alimony should have been from time to time, and to hold the husband in default for not having paid what the court may adjudge that he ought to have paid, would be to create a debt against the husband’s estate rather than a charge against his income.

Moreover, the making of an order is itself only a ministerial act, and must be based upon a previous adjudication by the court of the subject-matter embraced within its operation. In this ease there never has been an adjudication by the court respecting alimony. The master’s report was a recommendation only, not an adjudication by the court. 2 Dan. Ch. P. & P. (6th Am. Ed.) 1289; Holmes v. Holmes, 18 N. J. Eq. 141; MacDonnell v. Vitille, 111 N. J. Eq. 502, 508; 162 Atl. Rep. 738. Because the circumstances of the parties have changed substantially since the master’s report was filed, it is obvious that no adjudication- should now be made upon the basis of the proofs taken before him.

For the reason that the proceeding for alimony in this case has never been brought to an adjudication, but has been permitted to lie dormant for almost eight years, it will be considered as having been abandoned. If an order for alimony is to be made it must be based upon a new petition and fresh proofs, and will not be permitted retroactive effect.


text:
    New Jersey Department or Labor, Workmen’s Compensation Bureau.
    JESSIE L. BOVE, PETITIONER, v. HIGHWOOD COAL COMPANY, RESPONDENT.
    Decided April 19, 1939.
    For the petitioner, Harold Halpern.

    For the respondent, A. Lionel Beid.

   * * * 1 hereby find and determine as follows: * * *

2. That one Joseph E. Bove, of Teaneck, county of Bergen, and State of ISTew Jersey, was on the 14th day of January, 1938, in the employ of the respondent, his duties being those of a (coal and oil salesman) which said employment was subject to section II, chapter 95, laws of 1911, commonly known as the “Workmen’s Compensation act” and the supplements thereto and the amendments thereof.

3. That petitioner alleges that on the 13th day of August, 1938, at ten o’clock in the forenoon, the said Joseph E. Bove died as a result of the injuries suffered in an accident arising out of and in the course of his employment. This is denied by the respondent.

4. That the only dependent of the said Joseph E. Bove, deceased, is his wife, Jessie L. Bove, the petitioner herein, who was a total dependent of the said Joseph E. Bove, deceased. That the deceased’s wages were $35 per week.

That the petitioner produced Dr. Mulligan, treating physician, and Dr. L. Markely, pathologist, who performed an autopsy upon the body of decedent and whose testimony supported the contention of Dr. Mulligan as to the cause'of death and likewise petitioner’s doctor, Dr. Paul Kennedy, who testified with respect to the eardiagraph taken during decedent’s lifetime which testimony was also helpful in sustaining the petitioner’s burden of proof.

After careful consideration of all the testimony, I am of the opinion that the petitioner has sustained the burden of proof, showing the relationship between the accident and the heat prostration (stroke) of decedent. The accident weakened decedent sufficiently, and according to the testimony of Dr. Mulligan who treated the decedent from January 14th, 1938, the date of accident, to the day of his death, August 13th, 1938, lowered his vitality and predisposed him to a heat stroke which caused his death.

There was no substantial testimony offered by the respondent in opposition to petitioner’s proof as to the cause of decedent’s death. The respondent’s medical testimony consisted among other things, of two medical experts one of whom never examined the decedent in his lifetime and the other examined the decedent but on one occasion.

Dr. Mulligan, produced by the petitioner, was the decedent’s treating physician and examined the decedent on the very day of the accident, January 14th, 1938, and constantly treated said, decedent up to and including the day of his death, August 13th, 1938. The treating physician was in my opinion in a better position to determine the true cause of death. The testimony of the respondent’s experts was not sufficient to overcome the medical testimony and proof offered by the petitioner as to the cause of death.

Wherefore, it is on this 19th day of April, 1939, ordered that judgment be entered in favor of the petitioner, Jessie L. Bove, the wife of Joseph B. Bove, deceased, against the respondent, Highwood Coal Company.

tfc # & ❖ ❖ ❖

It is further ordered, that the respondent be credited with and permitted to deduct from the total award to the petitioner, the sum of $829.06, which was the net recovery heretofore had by a third party action.

John C. Wegner,

Commissioner of Compensation.


author: Smith, Joseph L., S. C. C.

text:
    WALTER K. CRATER, PLAINTIFF, v. COUNTY OF SOMERSET, DEFENDANT. THOMAS C. VAIL, PLAINTIFF, v. COUNTY OF SOMERSET, DEFENDANT. WILLIAM R. SUTPHEN, PLAINTIFF, v. COUNTY OF SOMERSET, DEFENDANT.
    Decided February 9, 1939.
    For the plaintiffs, T. Girard Wharton.

    For the defendant, Grover 8. Kipsey (Tamblyn & Fairlie, of counsel).
   Smith, Joseph L., S. C. C.

This comes on a motion to strike the answers and various defenses filed in each of the above cases, upon the ground that they are in part sham, in part insufficient in law, and in part frivolous, impertinent and scandalous. All three cases involve the same principles and will be discussed jointly.

The plaintiffs, Messrs. Crater, Sutphen and Yail, are clerk, surrogate and sheriff, respectively, of the county of Somerset, having been elected to their offices on November 2d, 1937, and having qualified for office on November of that year. They sue for balances of salaries allegedly due them for the period from May 16th to June 30th, 1938, inclusive.

The contention of the plaintiffs is, that the annual salary of each of the respective offices in counties with a population of between sixty-two thousand and eighty-two thousand is set, by the statutes applicable, at $6,000. (See B. 8. 40:41-6 for sheriff; 40:38-5 for county clerk, and 2:7-19 for surrogate); that the classification is to be determined by the latest census, and thát, according to the census of 1930, Somerset county had a population of over sixty-five thousand; that, therefore, they, as sheriff, county clerk and surrogate of Somerset county, are each entitled to said annual salary of $6,000.

The answers and the various separate defenses pleaded by the defendant majr be summarized under four headings, thus: (a) that under the statutes applicable, the plaintiffs were entitled to annual salaries of $3,500 each, which they received. Arguments of counsel disclose the statute relied upon to- be B. 8. 40:11-17, which, in substance, provides that the federal census of 1930 and the act reclassifying counties shall not operate to increase or decrease the salaries of county officers, and such officers are to continue to receive salaries at the rate received by them on April 27th, 1931. (b) Estoppel, by reason of certain acts and circumstances subsequently discussed, and (c) that it would be unlawful for the defendant to pay the salaries claimed; (d) a general denial.

The material facts in the case being agreed upon, except as hereinafter indicated, the legal validity of the defenses, as indicated under the headings a, b and c only, require consideration. These will be disposed of in the order mentioned.

(a) The defendant contends that under the statutes applicable, plaintiffs are each entitled to annual salaries of $3,500. As all three suits involve the same principles, it will be sufficient to allude to one only: for instance, the ease of the sheriff.

R. S. 1937, 40:41-6 provides a scale of salaries to be received by the sheriffs of the various counties, classified according to population; the salary of sheriffs in counties with a population of sixty-two thousand to eighty-two thousand, being set at $6,000, and in counties with a population of less than forty-eight thousand, except certain counties bordering on the Atlantic ocean, at $3,500.

40 :41-7 provides :

“Except as otherwise provided by section 40 :11-17 of this title, the salaries provided for by section 40:41-6 of this title shall be determined and paid upon a basis of population shown by the latest census, without regard to the date of election or appointment of the sheriff, and shall be paid by the proper county disbursing officer in equal semi-monthly payments.”

40:11-17 provides:

“The promulgation or taking effect of the federal census for the year one thousand nine hundred and thirty, or the passage of an act for the reclassification of counties of this state, shall not operate to increase or decrease the salary or compensation of any officer or employe of any county or municipality. All such officers and employes shall continue to receive salary or compensation at the rate received by them on April twenty-seventh, one thousand nine hundred and thirty-one.”

The act reclassifying the counties referred to in 40:11-17 is chapter 245 of the laws of 1931, which is now R. S. 40 :17-1, &c. The revisers’ note to 40:17-1 recites:

“In this revision all laws enacted prior to such reclassification act of 1931 and dealing with counties by classes have been rewritten so that they now relate, in terms, to the classes of. counties to which they were made applicable by section three of said reclassification act.”

It appears then, that the classification of counties under 40:41-6, setting forth sheriff’s salaries, will apply, unless 40:11-17 is effective, in which event the plaintiff will be entitled to an annual salary of $3,500, because prior to 1930, Somerset county had a population of less than forty-eight thousand.

The plaintiff’s first contention is that 40:11-17 does not apply to him, in that he is a state officer and not a county officer. No doubt there is some merit to this contention, and unquestionably in many respects, and for many purposes, the sheriff, county clerk and surrogate may well be considered state officers. In fact, particularly with the ease of the sheriff, we have the opinion of the late Judge Lawrence, in the case of Doyle v. County of Warren,. 15 N. J. Mis. R. 434; 192 Atl. Rep. 390, wherein he said (at p. 436) :

“It is sufficiently clear that a sheriff, although chosen by the voters to serve in a county, is a public officer in the state government. The duties he performs include services rendered not alone to the inhabitants of the county, but to the people of the state as well.”

Judge Lawrence, however, recognized that sheriffs are officers whose salaries are provided for by general laws, on the rational basis of the population of the counties wherein they serve.

We cannot escape the evident purpose of the 1931 act, 40:11-17; that is: to prevent the results of the 1930 census from increasing the salaries of officers whose compensations are based upon the population of the counties. To apply the interpretation given by the plaintiffs to 40:11-17, would seem that as to so-called state officers, whose salaries are based upon the rational basis of the population of the county wherein they serve, the results of the 1930 census are operative, and as to other officers, whose salaries are likewise based on the population of the county wherein they serve, the results of the census are inoperative. Such an interpretation would result in an illogical and unreasonable distinction.

It is perhaps sufficient to note that the revisers put “county clerks” and “sheriffs” under “elective county officers” (40:38-1, et seq. and 40:41-1, et seq.), and, immediately under “elective county officers,” they added the note:

“Surrogates, see Chap. 7 (2:7-1 et seq.) of the title Administration of Civil and Criminal Justice.”

It is evident, then, that the legislature, in adopting the Eevised Statutes, considered surrogates, county clerks and sheriffs as county officers; and, whatever may be the nature of their offices in other respects, they are county officers within the meaning of 40:11-17.

The next contention of the plaintiffs is that 40:11-17 is ■unconstitutional in that it destroys the only existing and rational basis upon which the salaries of the respective officers may be founded, violating article IV, section VII, paragraph 11 of the New Jersey Constitution, forbidding the enactment of special or local laws regulating the internal affairs of counties.

Unquestionably, R. S. 40:11-17 is an act regulating the internal affairs of counties, namely, the salaries of county officers. Freeholders of Passaic v. Stevenson, 46 N. J. L. 173; Delmar v. Bergen County, 117 Id. 377; 189 Atl. Rep. 75. The defendant, conceding that under our constitution only general laws regulating the internal affairs of the counties may be enacted, and that there must be a reasonable relationship between the classification and the object of the legislation, goes on to say, that “the basis for classification in the 1931 act (40:11-17) is not population. The basis of the 1931 statute is a freezing, a pegging of the wage, and a preservation of the status quo.” Counsel for the defendant confuses the purpose and motive of the enactment with the method by which it may be lawfully carried out. The constitutional provision requires that legislation by which this economy and freezing and pegging of wages is to be obtained, must be a general one, with a reasonable relationship between the basis of the classification and the object of the legislation. The defendant further asserts that the law is a general one, creating no preferences and establishing no inequalities. This is not so. The statute under consideration, by operation, would lead to this result: the sheriff (or other officer as the case may be) of a county which, according to the 1930 census had a population of between sixty-two thousand and eighty-two thousand, but which, according to the 1920 census had a population of less than forty-eight thousand, shall receive $3,500, but the sheriff of a county which, as of the 1930 census is similarly situated, but which, according to the 1920 census had a population of sixty-two thousand, shall receive $6,000. Obviously there is a discrimination. The only question is, is there a reasonable and logical basis for the discrimination? Hone is offered and none is perceived by the court; in effect, the statute places the fixing of salaries not upon the population served, or other factors affecting the service, but upon a historical basis, a basis not relevant or germane to the duties of the officer whose salary is affected.

Thus, in Long Branch v. Sloane, 49 N. J. L. 356 (at p. 363); 8 Atl. Rep. 101, Mr. Justice Magie states:

“* * * if the characteristics used to distinguish the objects to which the legislation applies from others are not germane to the legislative purpose, or' do not indicate some reasonable appropriateness in its application, or if objects with similar characteristics and like relation to the legislative purpose have been excluded from the operation of the law, then the classification would be incomplete and faulty, and the legislation not general, but local or special.”

That a historical past, not germane to the object of the legislation, cannot be the basis of classification, was the opinion of Mr. Justice Dixon in Stahl v. Trenton, 54 N. J. L. 444; 24 Atl. Rep. 478. In'that case, the legislature provided that in cities in which a newspaper in German language, shall have been printed for three years or more, such newspaper shall be designated as an official newspaper of the city. Holding the classification unreasonable, Mr. Justice Dixon said (at p. 445):

“The fact of the publication of a German newspaper for three years before April 11th, 1889, is made the sole basis for the classification of cities, in order to determine whether they shall be required to publish their municipal proceedings in a German newspaper. The characteristic thus made the basis of the legislative classification of cities, is one to which the purpose of the law relates; but, in my judgment, it is not one of sufficient importance to warrant the classification. To have such efficacjr, the characteristic must, in some reasonable degree, justify the peculiar legislation attempted, and render it appropriate to the municipalities affected, while it would be inappropriate to others.
“Legitimate classification rests on the qualities of objects; not on the particular time when those qualities are acquired.”

But for 40:11-11, admittedly, the basis of classification of the various counties for the fixing of the salaries of its officers, is population as ascertained by methods provided by law. R. S. 40:11-17 disregards such classification, substituting for it an ancient count, admittedly no longer true; it destroys the existing lawful basis of classification, substituting for it no logical or reasonable basis, characterizing the service rendered. Existing population becomes a reasonable and logical basis for classification, because upon the size of existing population depends the extent of the service rendered; but when we drop that criterion and adopt an obsolete census, the logical relation between population and salary is lost.

In Albright v. Sussex Co., 68 N. J. L. 523 (at p. 532); 53 Atl. Rep. 612, it is said:

“Inasmuch as most, if not all, of our towns and cities normally increase in population from year to year, it is constantly to be held in view in classifying municipalities with respect to population, that in order to insure uniformity, provision must be made for those that shall hereafter attain the requisite number of inhabitants, as well as for those already possessing it.”

And, in Dickinson v. Freeholders of Hudson, 71 N. J. L. 589 (at p. 592); 60 Atl. Rep. 220, the court says:

“Whore population is made the basis of classification for legislative purposes, a law based thereon, which excludes from its operation any county shown to be within the class, by any legally ascertained enumeration of the people, is special.”

And, again (at p. 593) :

“If the legislature may provide a classification excluding an enumeration of the people, required by the laws of our own state, why may it not, with equal propriety, say that the population fixed by a statute, as a basis of classification, shall only be operative in the counties within the act, as such population may be ascertained by every second national census * * *.
“Each county has the right to come within the class after it has been shown by any legal enumeration of the people to contain the required population * * *.
“An act which excludes counties shown to have the population required by it, by a census taken under our state law, is a special act and void.”

It appears clear, then, that salaries of counties being fixed on the basis of population, the act disregarding a lawfully taken census becomes a special act in violation of the constitution.

Nor can the act be sustained as an emergency legislation. The act does not recite that it is an emergency legislation; or that it is temporary, effective only during a limited period, or during any financial or economic crisis.

Even as an emergency act, the legislation would be defective if not general. As stated in Delmar v. Bergen County, 117 N. J. L. 377 (at p. 388); 189 Atl. Rep. 75:

“A statute which creates inequalities in the salaries of county prosecutors without regard to population, service rendered, or other general rule has been held not to be a general law. Woodruff v. Freeholders of Passaic, 42 N. J. L. 533. A law which does not operate equally on all of the class to which it relates, but creates preferences and- establishes inequalities, is not a general law. Van Riper v. Parsons, 40 Id. 1.”

It is next contended by the defendant that the plaintiffs are estopped from asserting the claim in that: (1) the plaintiffs became candidates for the offices in question with full knowledge of the salary then being paid; (2) it made its budget without knowledge of plaintiffs’ intent to seek the salary in question, and (3) that the plaintiffs submitted a budget for the year 1938, wherein they included a salary of $3,500, for themselves. It will be borne in mind, that no waiver is alleged. The plaintiffs seek nothing for the period preceding their protest; they seek balance of salaries during the period when they accepted the salaries given to them under protest. It will he noted that R. S. 40:41-7 provides that the classification shall be applicable “without regard to the date of the election or appointment of the sheriff,” similar provisions being made for the other two officers in question.

Defendant’s contention that the plaintiffs are “estopped,” is mere conclusion, giving no factual basis. Counsel for the defendant does not indicate in what manner the county changed its position upon the representation or by reason of the conduct of the plaintiffs. The sum and substance of defendant’s contention is that, relying upon plaintiffs’ acceptance of less than their lawful salary before a certain date, they were paid less after that date, over plaintiffs’ protest. The defendant alleges or avers no fact showing that it has sustained any detriment or loss by reason of any act, conduct or representation of the plaintiffs. That part of the salary which the plaintiffs, under the application of the decision in Vander Burgh v. County of Bergen, 120 N. J. L. 444; 200 Atl. Rep. 561, may be held to have waived, or to be estopped from asserting, they do not seek to recover. Their claim is confined to the balance of salary earned during the period when they accepted payments under protest.

Similar to the position of the plaintiff in Smith v. National Commercial Title, &c., Co., 120 N. J. L. 75; 198 Atl. Rep. 407, the acceptance by the plaintiff of the remittance under protest, had no misleading affect upon the defendant’s subsequent course.

In the Vander Burgh case, supra, the court specifically confined tire doctrines of estoppel and waiver to salaries or fees earned.

hfor does the defendant allege any valid agreement, mutually arrived at and agreed upon, made and entered into between the plaintiffs and the defendant, to accept the lesser salary. As stated in Galpin v. City of Chicaqo, 269 Ill. 27; 109 N. E. Rep. 713:

“It is a novel idea in the law of estoppel that the doctrine should be applied to a person who has been guilty of no fraud, simply because, under a misapprehension of the law, he has treated as legal and valid an act void and open to the inspection of all. As we understand the doctrine of estoppel in pais, it is based upon a fraudulent purpose and fraudulent result. Before it can be invoked to the aid of a litigant, it must appear that the person against whom it is invoked has, by his words or conduct, caused him to believe in the existence of a certain state of things and induced him to act upon that belief. If both parties are equally cognizant of the facts, and one has acted, under a mistaken idea of the law, the other party cannot say he has been deceived thereby, and is entitled to the application of the rules, but will be considered as having acted upon his own judgment solely.”

These separate defenses, therefore, set forth no facts constituting estoppel or waiver.

As to the fifth and seventh separate defenses, these set forth that if defendant were compelled to pay, it would be exceeding its budgets and appropriation; that the days of prosperity are over and that wages and salaries in private enterprise have been reduced, and that the defendant considers it its duty to reduce public expenses, and that it is plaintiffs’ duty to co-operate, evidently by foregoing their salary. If the plaintiffs are legally entitled to their salaries, they are under no more duty to co-operate with the defendant in the reduction of public expenditures than it is the duty of merchants to accept less than they are entitled to for merchandise which they have furnished the county.

If, as stated above, the statute in question: 40 :11-17 is unconstitutional, it was defendant’s duty to make provisions accordingly, and payment of a salary which the law requires that the county make, cannot constitute a wrong. The fifth and seventh separate defenses, therefore, set forth no defense. It follows then, that the answer and the first separate defense, merely alleging non-liability and fulfillment of liability, are sham.

Por the reasons stated, the answer and the various defenses, will be stricken as in part sham and in part insufficient in law, and an order will be entered accordingly.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LILLIAN PHILLIPS SMITH, PETITIONER, v. CITY OF PATERSON, RESPONDENT.
    Decided May 4, 1939.
    For the petitioner, Nathan Bahinowitz.

    For the respondent, Salvatore D. Viviano.

   % ❖ sfc sj: He

I find from the proofs that in the early morning of May 8th, 1934, the deceased, William Smith, while acting as a member of the fire department of the city of Paterson, sustained injuries arising out of, and in the course of, his said employment, at a fire occurring in St. Bonaventure Hall; that he was removed' to St. Joseph’s Hospital with bodily injuries and in shock; that for a considerable length of time before this accident, the deceased had some prostate trouble, of which frequency of urination was the symptom; that the deceased, after his admission to the hospital, and at about eight o’clock in the morning of the same day, was catheterized on account of a retention of urine, that a urinalysis was thereupon taken, and the urine found to be clear and sterile; that a second urinalysis was made two or three days later, and the urine again found to be clear, save for a few pus cells common in urine and of no special significance or importance;' that the patient continued at the hospital for a time, and was then removed to his home, at both places being under the care of Dr. Lawrence B. Boylan, his family physician; at his home, he complained of urinary trouble, and on June 2d, 1934 — just over three weeks after the accident — Dr. Boylan called in Dr. Bichard J. MacDonald, a urologist, who at once took a urinalysis, and found the urine to be loaded with pus and to contain blood, and who found also burning and painful urination; that thenceforth continued catheterization became necessary; and that on April 22d, 1937, Dr. Sidney Le Yine operated on the patient at the Paterson General Hospital, performing a prostatectomy, and found that he was suffering from a prostatitis and a cystitis, and that both conditions were due to infection. On the following day, the patient died. '

All the doctors, as well for the respondent as for the petitioner, agree that catheterization is an accepted agent for setting up, in due sequence, inflammation, prostatitis and cystitis. The attending physicians, Drs. Eichard J. MacDonald, Sidney Le Yine and A. Hobson Davis, concurred in the opinion that in all probability (there being no proof of any earlier catheterization or any earlier infection) that the catheterization of May 8th, 1934, at St. Joseph’s Hospital, introduced bacteria into the prostate and bladder, and set up the prostatitis and cystitis subsequently found. All the medical testimony ran to the effect that a period of time — several days — elapse between the infection and the first manifestation of it, and that the condition soon thereafter appears, which Dr. MacDonald found on or about June 3d, 1934 — urine loaded with pus cells and containing blood and the urination bloody and painful.

I find and determine that the petitioner has proven, by the weight of the evidence, the chain of events which followed and resulted from .the accident — catheterization, with resulting infection, in the hospital, and in turn prostatitis, cystitis, the operation, and death.

The contributory cause of his death, although he had myocarditis, was the operation and the shock of it, and prostatectomy and cystitis.

The death was the result of the accident, and the petitioner is entitled to ah award.

iH # íjs í$c % #

Charles E. Corbin,

Deputy Commissioner.


author: McGrath, C. P. J.

text:
    Union County Court of Quarter Sessions.
    THE STATE OF NEW JERSEY v. TILGHMAN H. KEIPER.
    Decided May 11, 1939.
    For the state, Abe J. David, prosecutor of the pleas.
    For the defendant, Joseph 8. Lindabury.

   McGrath, C. P. J.

The pertinent parts of the indictment charge Keiper with having unlawfully as an agent, solicitor, surveyor and representative of Warner Eeciprocal Insurers, solicited a contract of fire insurance in Union county and with having directly and indirectly transacted the business of fire insurance, the said Warner Eeciprocal Insurers and the said Tilghman H. Keiper not being specifically authorized to solicit and negotiate and effect, in any manner directly or indirectly, the business of insurance of any kind whatsoever within this state.

It is admitted that “Warner Eeciprocal Insurers,” mentioned in the indictment, are not incorporated but are a group of individuals, partnerships and corporations which, under the name of “Warner Eeciprocal Insurers,” exchange reciprocal indemnity contracts among themselves.

The defendant is a resident of Kew Jersey and is employed by Lansing B. Warner, Inc., of Chicago, Illinois. Lansing B. Warner, Inc., is not an insurance company but it acts as agent for Warner Eeciprocal Insurers in negotiating the exchange of these reciprocal contracts of indemnity and other matters incidental to such contracts. The policy is issued for Warner Eeciprocal Insurers by Lansing B. Warner, Inc., acting as their agent.

The situation is somewhat similar to. that disclosed in Schenck v. State, 60 N. J. L. 381; 37 Atl. Rep. 724, the decision in which was recently approved by the Court of Errors and Appeals in State v. Moresh, 122 N. J. L. 77; 3 Atl. Rep. (2d) 638. An examination of the insurance laws as interpreted in these eases discloses no ground on which the defendant could be held to have committed an offense under this indictment, and the indictment will, therefore, be quashed.


author: Kinkead, S. C. O.

text:
    MONMOUTH COUNTY PUBLISHING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided May 29, 1939.
    For the plaintiff, Thomas P. McKenna.

    For the defendant, Snyder, Roberts & Pillsbury.

   Kinkead, S. C. O.

The plaintiff is the owner of the newspaper known as the Long Branch Daily Record, and has started suit to recover for the cost of advertisements of certain sheriff’s sales, which were printed and published in said newspaper.

The defendant moves to strike the complaint on the ground that the same does not disclose a cause of action.

The advertisements were ordered and authorized by a former sheriff of Monmouth county during the years 1930, 1931 and 1932. It appears that although the sheriff’s office collected in advance from each complainant, the cost of the newspaper advertising fees in each instance, that the plaintiff was never paid by the sheriff, and has now started suit against the county of Monmouth.

It is manifest that the plaintiff can only maintain its action on the theory that the sheriff in ordering the printing of the legal advertisements was acting as the agent of Monmonth county.

Comp. Stat., p. 4643, §§ 38, 39, provide that costs, allowances, percentages and all other perquisites of whatever kind which by law sheriffs may receive for any official acts or services rendered shall be accounted for by the sheriffs to the county collectors of their respective counties.

Section 40 provides that a sheriff is personally liable for the payment to his county of all fees and costs specified in section 38; and further provides that it shall be lawful for a sheriff to exact the payment of such fees and costs in advance before performing any service in his office for which costs, fees or compensation is allowed; and provides further that it shall be lawful for a sheriff to receive from suitors and their attorneys or any person having business with the sheriff’s office reasonable deposits of money in advance to cover such fees and costs.

Deposits of money to secure the expense of advertising and printing fees paid to a sheriff by complainants cannot be classified as fees, costs, allowances, percentages or perquisites as set forth in section 38. Therefore there was no obligation on the part of the sheriff to account to his county for whatever deposits were thus collected by him.

There is nothing in section 40 which would preclude a complainant from refusing to post such a deposit with a sheriff, because such a deposit cannot conceivably be held to cover any official service to be rendered to a complainant by a sheriff. A complainant could insist upon his right to pay all advertising and printing fees directly to thé newspaper owner or publisher. Further there is no provision in this section which would prevent a sheriff from requiring each complainant desiring legal printing of sales to pay the costs of such advertising directly to the newspaper.

The procedure which is followed in the surrogate’s office of Monmouth county and many others, if not all, surrogate’s offices throughout the state, obviates the occurrence of any situation such as has arisen in the ease sub judice.

In all estate matters requiring legal advertising the surrogate directs the advertising in the newspapers and requires the newspapers' to send a bill for such printing to the representatives of the different estates.

“The sheriff considered as a mere ministerial officer has no authority in the absence of statute to pledge the credit of the county or create a county debt.” 57 Corp. Jur. 789.

“A county is not liable for expenses incurred by the sheriff without authority although in connection with the performance of his duties.” 57 Corp. Jur. 1134.

Vice-Chancellor Pitney in the case of Daly v. Ely, 53 N. J. Eq. 270; 31 Atl. Rep. 396, held that a sheriff in procuring an advertisement for a sheriff’s sale was not acting as an officer of the county, but rather as an officer of the Court of Chancery and held further that the advertisement is not made by or on behalf of the county. At page 273 the vice-chancellor states:

“But the further point was taken that neither the sheriff nor the special master are within the class to whom the power of increased payment is given, and that if the sheriff be properly classed-as an officer of the county, still, :in procuring this advertisement, he was not acting as such, but was acting as the special officer of the Court of Chancery, and that the true construction of the act of 1891 is that the advertisement for which the officer is authorized to pay the price therein named must be an advertisement by or on behalf of the county or municipality of which he is an officer, and does not apply to an advertisement made by the sheriff when acting as the officer of the Court of Chancery.
“I am inclined to think that this point is well taken. The Court of Chancery is not obliged by law to send its process to any particular officer. It may send it to one of its own officers, as a special master, or to a person specially appointed, and when a process is sent to a sheriff he does not execute it by virtue of his office as sheriff of the county, but as an officer of the Court of Chancery. The advertisement is not made by or on behalf of the county or any municipality.”

Mr. Justice Kalisch in Sullivan v. McOsker, 84 N. J. L. 380 (at p. 382); 86 Atl. Rep. 497, referred to a sheriff as an agent of the county, but the point was not specifically decided in that-case. In fact it has never been'definitely determined by our courts in New Jersey whether a sheriff is an agent for the county he serves.

' Assuming, but not deciding, that a sheriff is an agent of his county, his acts in order to impose liability on his county must be plainly within the scope of his agency. The advertisements in the instant case were not ordered by or on behalf of the county of Monmouth and the sheriff cannot be deemed to have the authority to pledge the credit of his county in such transactions.

If the legislature had intended to convey to a sheriff any such authority, the statutes requiring him to turn all fees collected by him over to the county collector of his county (Comp. Stat., p. 4643, §§ 38, 39, supra) would have included a requirement for an accounting by him of advertising costs, or deposits paid to him to secure advertising costs.

In the absence of any such statutory requirement I conclude that the sheriff in the instant case, if acting as an agent at all, was the agent of the various complainants in placing these legal advertisements, or perhaps the agent of the Court of Chancery, but clearly not the agent of Monmouth county.

The motion is granted.


author: Hartshorne, G. P. J.

text:
    Essex County Court of Common Pleas.
    JOHN BELANOWITZ, PETITIONER, v. TRAVELERS INSURANCE COMPANY, A CORPORATION, RESPONDENT.
    Decided June 13, 1939.
    For the petitioner, David Boskein (Walter-X. Trumbull).
    For the respondent, James J. Skeffington.

   Hartshorne, G. P. J.

This workmen’s compensation rule hinges on two questions, first a procedural one, as to the imposition of liability on the insurance carrier after same has already been fixed as to the employer; second, a substantive one, as to whether the functional disability test, applicable in case of accidental injuries, also applies to compensable occupational diseases.

A brief statement of the facts, in chronological order, will be helpful. During 1933 the workman-petitioner was employed by the A. Fishman Hat Company, Inc., as a result of which he was exposed to mercury poisoning, a compensable occupational disease, which he contracted on or about June 12th, 1933. He thereupon wanted to quit work, but was induced by his employer to remain on the job due to a rush of orders. It is in dispute whether or not he worked full time thereafter, but it is admitted that he was forced to quit work altogether November 3d, 1933. Meanwhile, the policy of the respondent here, the Travelers Insurance Company, which covered Belanowitz in his employment, had expired, to wit, on October 1st, 1933. Subsequent to his quitting work, the mercurial poisoning, contracted as above, so affected the workman that he became totally and permanently disabled.

Now, for the procedural facts: On compensation proceedings by the workman against his employer only, a determination and award were entered June 4th, 1934, “that the disability, as the result of his [Belanowitz’s] contraction of the occupational disease of mercury poisoning, commenced on or about the month of June, 1933, but even though he was disabled from that time until November 3d, 1933, when he finished, and beyond that up until November 21st, 1933, that inasmuch as he was employed during this period of time and paid his wages [piece work earnings], he is not entitled to any temporary compensation for that period.” A separate award for permanent disability was made of twenty-five per cent. January 17th, 1939, and after the employer had gone into bankruptcjr, another award was entered on a petition for increased compensation, filed against the employer only, by a different deputy commissioner than the one who made the first award, finding one hundred per cent, total permanent disability, and also finding that petitioner was, in fact, disabled from working for certain periods during June, 1933, due to this mercurial poisoning. Finally the present petition is filed against the insurance carrier only to “enforce the provisions” of the insurance contract for the benefit of the employe “upon the failure of the employer to make adequate and continuous compensation payments.” R. S. 34:15-84. This petition, while referring to both the above awards, relies particularly upon the second, the respondent’s answer thereto setting up the first as res judicata as to petitioner’s disability up to the time of the entry of the first award. Such is the situation in outline.

In the procedural aspect, the respondent carrier first attacks the pending petition, contending the above statute on which it is based to be unconstitutional and, second, asserts that in any event the last award cannot be enforced against it, in so far as it is inconsistent with the first, as the first is res judicata to the extent above stated. As to the constitutional question, this court would seem concluded by the decision of the Supreme Court in Harvender v. U. S. Fidelity and Guaranty Co., 8 N. J. Mis. R. 634; 151 Atl. Rep. 446. Respondent insists, however, that the decision the same year by the Court of Errors and Appeals in O’Banner v. Pendlebury, 107 N. J. L. 245; 153 Atl. Rep. 494, of a similar provision of the Workmen’s Compensation act, is so inconsistent with the Harvender ease as to impliedly overrule it. An examination of the differing statutory provisions construed in the two cases clearly reveals the reason for the difference in the result. In the O’Banner case the statute makes no provision whatever for notice, either direct or constructive, to the party sought to be affected by the proceedings in question. In the instant situation, on the other hand, the statutory provisions in that regard are explicit, the net result being that the employer is created practically as the carrier’s statutory agent for service of process, nay, more, that proceedings against the employer are practically proceedings against the carrier. “Notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be, on the part of the insurance carrier; that jurisdiction of the employer shall, for the purpose of this article, be jurisdiction of the insurance carrier, and that the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions, or awards rendered against the employer for the payment of compensation. R. S. 34:15-85. This is all additional to the provisions that the insurance contract shall be construed to be for the benefit of the employe, and that in the event of “death, insolvency, or bankruptcy of the insured employer or upon his assignment for the benefit of creditors, the insurance carrier shall immediately become directly liable,” to the employe. R. S. 34:15-82, 83, 86. No constitutional reason appears, why, if one desires to engage in a business affected with a public interest, he may not be required to appoint an agent or an alter ego of his own choice through whom, or against whom, proceedings adverse to him may be taken. The constitutional objection thus falls.

As to the further procedural question concerning the effect to be given the two above awards, in view of their inconsistency as to the incidence of petitioner’s occupational disability, we must bear in mind the fact that the purpose of the pending petition is to enforce the employe’s rights under the insurance contract, as well as the fact that the carrier is bound by the awards rendered against the employer. R. S. 34:15-84, 85. For this reason this court must consider what those rights in fact are. This court must thus consider both awards, not simply the one the petitioner may select. There is 'much, therefore, to be said for respondent’s contention that the first award is res judicata as to the issues then and there decided, and that such award, standing unappealed from, renders a subsequent differing decision a mere form of words, as to such differing point where such subsequent decision was not consented to by the other side as a re-hearing, but was an independent proceeding. This, then, applies to the issue of incapacity for work in June of 1933, as variantly decided in the two above awards. Tucker v. Beltramo, Inc., 117 N. J. L. 72; 186 Atl. Rep. 821; affirmed, 118 N. J. L. 301; 192 Atl. Rep. 62; Mangani v. Hydro, Inc. (Court of Errors and Appeals), 119 N. J. L. 71; 194 Atl. Rep. 264; Cirillo v. United Engineers (Court of Errors and Appeals), 121 N. J. L. 511; 3 Atl. Rep. (2d) 596; Drake v. C. V. Hill & Co. (Court of Errors and Appeals), 117 N. J. L. 290; 187 Atl. Rep. 637; Boyko v. Federated Metals, 11 N. J. Mis. R. 82, 85; 164 Atl. Rep. 462.

Since we are thus bound by the first award, to hold that no actual incapacity for work existed prior to the termination of respondent’s insurance policy, we now turn to the meritorious question, of whether such occupational incapacity is the sole basis'of compensability in occupational disease cases, or whether functional disability is sufficient as well, as it is in cases of accidental injury. Clearly disability, as distinguished from the mere contracting of the disease, is the test. “When the disability occurs is the time fixed for compensation, and, as in the case of an accident, disability occurs either when death or incapacity occurs and not when the first quantities of poison which may prove of no effect, are absorbed.” Textileather Corp. v. Great American (Court of Errors and Appeals), 108 N. J. L. 121; 156 Atl. Rep. 842. But the real question is whether or not either functional or occupational disability are sufficient to call for compensation. Both clearly are in the case of accident. Everhart v. Newarh Cleaning and Dyeing Co. (Court of Errors and Appeals), 119 N. J. L. 108; 194 Atl. Rep. 294; Burbage v. Lee, 87 N. J. L. 36; 93 Atl. Rep. 859; De Zeng Standard Co. v. Pressey, 86 N. J. L. 469; 92 Atl. Rep. 278; affirmed, 88 N. J. L. 382; 96 Atl. Rep. 1102; Sutkowski v. Mutual Chemical Co., 115 N. J. L. 53; 178 Atl. Rep. 71. Moreover the court in the Textileather case alludes, as above quoted, to the fact that the disability criteria in disease cases are the same “as in the case of an accident.” So the court in the Textileather case cannot have intended to exclude functional disability as an alternative criterion to occupational disability. Clearly, the reason for the court’s not alluding to functional disability in the Textileather case was the fact that the functional issue was not presented. The court merely disposed of the test that was presented, i. e., occupational disability, but in nowise stated that this test was exclusive of all others.

That this is the true situation is definitely indicated by the decision in Sutkowski v. Mutual Chemical Co., supra, decided subsequent to the Textileather case, where the court expressly hold a mere functional disability, in the absence of all occupational disability, to be compensable in an occupational disease case. There petitioner’s septum was affected by chrome poisoning. “This condition is the result of a compensable occupational disease * * *. It unquestionably resulted in a functional loss, permanent in quality. * * * This is a compensable disability, even though Sutkowski’s capacity to render the service at which he was engaged was not thereby impaired, or his earning power diminished. Tfie test is not impairment of earning capacity; it is rather the doss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life/” citing eases. Sutkowski v. Mutual Chemical Co., supra.

Further support of this sensible rule, laying down the same criterion in both accident and compensable disease cases, is found in the statute itself. “All provisions of this article and article 3 of this title [34:15-36, et seg.] applicable to claims for injury or death by accident, shall apply to injury or death by compensable occupational disease [with exceptions not here applicable].” R. S. 34:15-35. Indeed, this very case presents a clear reason why functional, as well as occupational, disability should apply to disease cases. For the workman here claims, and his employer admits, that after the workman not only contracted the disease, but was, in fact, affected by it, he sought to quit work, but was persuaded by his employer to remain to help out in the rush season. In other words, if the employe had followed his own desires and quit, the carrier would now be held responsible under.the rule now contended for by it. But because the workman sought, at the expense of his own health, to help out his employer, he is now to be deprived of recovery. This would simply put a premium on being a quitter.

The prayer of the petition will be granted and a determination may be entered accordingly.