author: Brown, S. C. C.

text:
    PHILIP NOTO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ROSA NOTO, DECEASED, AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF LENA NOTO, DECEASED, PLAINTIFF, v. JOSEPH GAMBI AND LAWRENCE TOOHERS, DEFENDANTS.
    Decided January 16, 1940.
    For the plaintiff, Guadielle •& Shuart.

    For the defendants, Mr. John W. McGeehan, Jr.

   Brown, S. C. C.

It is alleged in the complaint in the above entitled cause that Philip Noto is a resident of the borough of Brooklyn; that Bosa Noto and Lena Noto on June 21st, 1936, while passengers in an automobile owned and operated by the defendant Gambi sustained injuries which resulted in their death. The charge of negligence is made against Gambi as well as the defendant Toohers, who was driving an automobile on the same highway in the county of Union in this state when it collided with the Gambi automobile. The defendant Gambi moves to strike out the complaint on the grounds that at the time of the institution of the suit Philip Noto was not lawfully appointed administrator ad prosequendum of the decedent’s estates; that there is no administrator ad prosequendum qualified in law to maintain the above entitled action; that the action was not lawfully and properly commenced within two years after the death of Eosa and Lena Noto. Depositions taken disclose that Gambi was a resident of the State of New Jersey at the time of the occurrence; that Philip Noto was appointed administrator ad prosequendum of the estates of Rosa Noto and Lena Noto on the 26th day of July, 1938, by the surrogate of Union county in the State of New Jersey. The exhibits offered in evidence include a certified copy of the petition and letters administrator ad prosequendum granted to Philip Noto. The petition recites the residence of Lena Noto and Rosa Noto at the time of their death as being in the city of New York. According to the depositions furnished it also appears that on July 6th, 1936, letters of general administration were granted to Philip Noto by the surrogate of New York county of the estates of Lena and Rosa Noto and that Philip Noto was a resident of New York at that time. These letters of administration were known as “limited” letters and under section 122 of the Surrogate’s act of the State of New York the general administrator is authorized to bring an action for the wrongful death of the decedents. On June 20th, 1938, the summons and complaint in this cause were issued as above entitled. Counsel for the plaintiffs appeared before the surrogate of Hudson county for the purpose of obtaining letters of administration ad prosequendum on the last day before the statute of limitations under the Death act expired. The surrogate of Hudson county refused to grant letters of administration ad prosequendum to the counsel of the general administrator until the general administrator had furnished to the surrogate of Hudson county exemplified copies of his appointment by the surrogate of New York county with power to sue as provided by the law of the State of New York but that the application for letters would be retained in the meantime by the surrogate of Hudson county. The exemplified copy of letters of New York county were not furnished until a few days after the statute of limitations had expired, but the summons and complaint as above entitled were left with the sheriff of Hudson county on June 20 th, 1938, counsel believing that no objection would be made to the issuance of letters of administration by the surrogate of Hudson county. On the return date of the application for letters of administration, that is to say on June 30th, 1938, Gambi’s counsel appeared before the surrogate of Hudson county and objected to the granting of letters on the ground that said application should be made to the surrogate of the county of Union where the death occurred. The application in Hudson county for letters of administration was withdrawn and application was made to the surrogate of Union county for letters ad prosequendum and the same were granted on the 26th day of July, 1938. It also appears in the depositions taken in this cause that a reason for the delay in bringing the suit was because of negotiations pending between the parties for a settlement of the claims made for damages on account of the death of Eosa and Lena Hoto. The Death act provides in part (R. S. 2:47-3) : “Every action, proceeding or claim brought, instituted or made under and by virtue of the remedy given by this act to which this is a supplement shall be brought, instituted or made in the name of an administrator ad prosequendum of the decedent whose death gives rise to the claim under the act to which this is a supplement * * * that every action shall be commenced or sued within two years after the death of such deceased person and not after * * In the instant case the summons is tested and suit was brought on the 18th day of June, 1938, in the name of Philip Hoto, administrator ad prosequendum of the estates of Eosa Hoto and Lena Hoto. As far as the entitlement in the cause of action as well as the time within which suit was brought are stated in the complaint and summons they comply with the Death act. According to the test date of the summons the suit was brought three days before the expiration of the two years statutory limit from the date of death which was on June 21st, 1936. Our appellate courts for many years past and especially in the ease of Wilson v. Dairymen’s, &c., Inc., 105 N. J. L. 188; 143 Atl. Rep. 454, have held that in deciding motions of this kind on technicalities frequently results in a miscarriage of justice; that the aim of the decisions of the courts and the acts of the legislatures is to abolish technicalities and enable suitors to have the merits of their controversies fully tried. The Practice act (N. J. S. A. 2 :27-157) provides that in order to prevent the failure of justice by reason of mistakes and objections of form the court or judge at all times may amend any defects and errors in any proceeding in civil actions where there is anything in writing to amend. The Practice act (N. J. S. A. 2:27-158) also provides that no civil action or proceeding shall fail or be dismissed on the ground that the plaintiff or any member therein has made a mistake in the remedy or procedure. In the case of Public Service v. Post, 257 Fed. Rep. 933, it was held that the act providing for the bringing of an action by administrator ad prosequendum in nowise affected the liability of the defendant; it did not change the persons for whose benefit recovery might be had or their respective interests and such recovery remained the same. In the case of Giardini v. McAdoo, 93 N. J. L. 138; 107 Atl. Rep. 437, the plaintiff instituted a suit in a representative capacity, when, under the Pennsylvania law it should have been instituted as “widow” of the deceased; the objection was raised for the first time upon the appeal of the cause to the Court of Errors and Appeals and notwithstanding the expiration of the statute of limitations an amendment was permitted to substitute the proper party plaintiff. In the Wilson v. Dairymen’s League, &c., Inc., supra, the error in the designation of the plaintiff was not discovered until after twenty-four calendar months from the date of the death. Letters of administration ad prosequendum were not granted until more than two years after the death in that case and at the trial of the case an amendment was permitted to designate the plaintiff as administrator ad prosequendum although no exception was taken to the ruling of the court granting a nonsuit by the trial judge on ground that the right of action had been barred by the statute of limitations, the Court of Errors and Appeals overruled the nonsuit. Other cases of amendment are Boniewsky v. Polish Home of Lodi, 103 N. J. L. 323; 136 Atl. Rep. 741; Grijnuk v. McAdoo, 95 N. J. L. 256; 113 Atl. Rep. 920; Giardini v. McAdoo, supra, and Michelson v. Erie Railroad, 106 N. J. L. 147; 147 Atl. Rep. 535. The motion to strike is denied.


source: Caselaw Access Project

author: Wolber, C. C. J.

license: Public Domain

text:
    ROBERT CUNNINGHAM, CUSTODIAL RECEIVER FOR AUTO MUTUAL INDEMNITY COMPANY, A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF, v. BROCKWAY FAST MOTOR FREIGHT, INC., C. AND C. CONVEY CO., J. FISHMAN & SON, INC., DONALD P. FLOWERS, CHARLES GELLAK, GEORGE HARRIS, HARRISON MOTOR FREIGHT, DOING BUSINESS AS DELUXE TRANSPORTATION, CLARENCE LAARZ, L. & S. MOTOR LINES, INC., RALPH MUELLER, MICHAEL PALMERE, JOHN RUZILA, TRADING AS RUZILA’S EXPRESS, ALEXANDER & BETTY SOJKA, DOING BUSINESS AS EAGLE MOTOR LINES, CHARLES SZABO, Jr., WALLINGTON TRANSPORTATION CO., DEFENDANTS.
    Decided January 8, 1940.
    For the plaintiff, David Cohn.

    For the defendants J. Fishman & Sons, Inc., and Harrison Motor Freight, J. Lewis Abrarnowitz.

   Wolber, C. C. J.

This matter comes before me on a motion made on behalf of defendants to strike the complaint herein on an agreed state of facts. I have received a memorandum of law on behalf of the plaintiff and memoranda on behalf of the defendants. Although plaintiff was allowed by me to file a further brief no later than Tuesday, December 26th, 1939, none has been filed with me.

The agreed state of facts shows that the Auto Mutual Indemnity Company is a corporation organized under and by virtue of the insurance laws of the State of Hew York. This company had its principal place of business in Hew York City. It had no place of business in the State of Hew Jersey and was not authorized to do business therein. All policies concerning Hew Jersey residents were solicited in New Jersey and written and approved through either the New York or Philadelphia office of the Auto Mutual Indemnity Company. Said policies covered property located in the State of New Jersey.

On November 24th, 1937, the indemnity company was placed under the control of the Superintendent of Insurance of the State of New York. The superintendent was appointed for the express purpose of liquidating the assets of the indemnity company and conserving the same for the benefit of creditors, in conformity with the laws of the State of New York.

Prom that date on, the superintendent assumed and took over all business, property and assets of the indemnity company, and has continued to be in charge thereof for the purpose of liquidation.

On February 7th, 1938, a determination was made by the Superintendent of Insurance of the State of New York, that there were insufficient funds and assets with which to pay creditors and other liabilities of the Auto Mutual Indemnity Company. This determination was made in conformity with the laws and statutes of the State of New York. The deficiency which he found to be existing at that time has continued and still exists.

According to the statutes of the State of New York, the Superintendent of Insurance has the duty of making an assessment against all the policyholders of the indemnity company under such circumstances as were existing, in such amount as he deems necessary to cover the excess of proper liabilities over reasonable value of assets. Such determination is then to be pro-rated amongst all policyholders. After the determination is made and pro-rated with proper notice, given by mail as required by the statutes of New York, the determination and assessment, according to the statutes of New York, has the same effect as if a judgment in the original action brought in the court in which the special proceedings are pending, meaning the proceedings with respect to the liquidation of the Auto Mutual Indemnity Company.

The assessment properly and legally made was determined by the Superintendent of Insurance of the State of New York to be forty per cent, of tbe amount of the indebtedness of each policyholder, due and owing to the indemnity company.

The assessment in the amount of forty per cent, was properly and legally made, notice thereof was given as provided in such cases, by an order to show cause entered on August 12th, 1938, wherein all complainants, that is, policyholders of the insurer, were required to pay such assessment of forty per cent, on or before September 19th, 1938.

Amongst the policyholders of the indemnity company were the defendants named in this action, all of whom are within -the State of New Jersey. These defendants represent all those who were policyholders of the indemnity company in New Jersey, all of whom received copies of the rule to show cause of August 12th, 1938, wherein payment was demanded on said assessment on or before September 19th, 1938, by mail as required by the statutes of the State of New York, and all of whom have defaulted in the payment thereof.

The policies of insurance effected and written by the indemnity company on behalf of the defendants-assured were policies covering property located in the State of New Jersey. The policies issued to the defendants, J. Fishman & Son, Inc., and the Harrison Motor Freight, doing business as the DeLuxe Transportation, were solicited of the said defendants in New Jersey and were for properly located in the State of New Jersey.

On November 18th, 1937, Robert Cunningham, plaintiff in this matter, was appointed temporary custodial receiver by Vice-Chancellor Vivian M. Lewis, to take over all the business, property and assets of the Auto Mutual Indemnity Company, which were to be found in New Jersey by the same court.

Defendant’s motion to strike the complaint sets forth the following reasons:

(1) That the plaintiff, a mutual insurance company of the State of New York, was not at any time licensed to do business in the State of New Jersey and therefore cannot maintain this action, relying more specifically on sections 5 and 69 of the 1902 New Jersey Insurance law. R. S. 17:17-5 and 17:32-10.

It will be noted that in the 1937 R. S., section 5 of the Insurance law will be found in part 1, Insurance Companies Generally, chapter 17, Formation; while section 69 will be found in chapter 32, Foreign Companies.

(2) That the complaint is vague and insufficient in that the statutes of the State of Hew York are not properly pleaded.

(3) That the complaint does not indicate or state that the plaintiff herein has authority to maintain this suit.

(4) That the assessment sued upon was not properly made, in that such a proceeding being in the nature of an action in personam, no jurisdiction was ever had b3r the Hew York officials over the herein defendants, as the latter were never properly notified; no service was made upon the herein defendants within the State of Hew York.

In Delaware and Hudson Canal Co. v. Mahlenbrock, 63 N. J. L. 281; 43 Atl. Rep. 978 (1899, Depue, J.), in construing section 97 of the Corporation act of 1896, requiring the filing of a statement in the office of the secretary of state by foreign corporations transacting business in this state, it was held that the statute does not apply where the foreign corporation, accepting an order for goods given to it by a resident of Hew Jersey, receives a guarantee executed in this state and mailed to the corporation at its home office and thereupon fills the order—the contract not being concluded in Hew Jersey.

Section 98 of our Corporation act of 1896 provided that until such corporation so transacting business in this state shall have obtained said certificate of the secretary of state it shall not maintain any action in this state upon any contract made by it in this state.

This case is an authority which would indicate that section 69 of our Insurance law does not apply to the instant situation because according to the agreed state of facts, while policies were solicited in Hew Jersey and covered property therein, they were written and approved through either the Hew York or Philadelphia office of the indemnity company. The indemnity company did not enter Hew Jersey by its agents and engage in the general prosecution of its ordinary business therein.

In Stockley v. Perry (Essex County Circuit Court, 1902, Swayze, J.), 26 N. J. L. J. 4, the receiver of a Pennsylvania mutual live stock insurance company sought to recover from the defendants an assessment for the proportion of said defendants of the unpaid liabilities of the company incurred while they were members thereof and while their insurance was in force. The agreement of each defendant, as set forth in the application signed by him, is “to pay all assessments levied upon me for the mortuary and expense funds as the same are called for and in the time prescribed by the company.” The policy issued to each defendant also contained the following terms: “The insured agrees to pay any assessment that may be levied upon him from time to time for the mortuary or expense funds and within the time provided for in the notice of assessment.”

In that case it was urged at the oral argument that the company cannot recover because of the provisions of section 69 of the Insurance act of 1902. Pamph. L. 1902, p. 434. Mr. Justice Swayze held that this act is clearly inapplicable, as the company had been decreed insolvent several years before the act was passed. The policies in question had been previously issued and the court said: “It is too clear for argument that this act could not apply.”

It was further argued that the declaration did not show that the company was authorized to transact business in New Jersey. The court said the policies were Pennsylvania contracts, and enforceable in New Jersey under the rule of Northampton Mutual Live Stock Insurance Co. v. Tuttle (Supreme Court, 1878, Van Syckel, J.), 40 N. J. L. 476, unless subsequent legislation affects the company.

The court held that all subsequent statutes refer only to companies transacting business in New Jersey, and relying upon the case of Delaware and Hudson Canal Co. v. Mahlenhrock, supra, held that there was nothing to show that the company of which the plaintiff was receiver was transacting business in New Jersey within the meaning thus settled.

In answer to the bar of section 69 to this action by the plaintiff, reliance is had upon the opinion of Mr. Justice Brandéis in the United States Supreme Court on April 1st, 1935, in the case of Broderick v. Rosner, 294 U. S. 629; 55 Sup. Ct. 589. On November 17th, 1933, Broderick, as superintendent of banks of the State of New York, brought, in the Supreme Court of New Jersey, this action against five hundred and fifty-seven stockholders of the Bank of the United States, residents of New Jersey, to recover unpaid assessments levied upon them by him pursuant to law. Defendant moved to strike out the complaint on the ground, among others, that by reason of section 94b of the Corporation act of New Jersey (2 Comp. Stat. 1910, p. 1656), it failed to set out a cause of action enforceable in any court of this state. That section, first enacted March 30th, 1897, provides:

“No action or proceeding shall be maintained in any court of law in this state against any stockholder, officer or director of any domestic or foreign corporation by or on behalf of any creditor of such corporation to enforce any statutory personal liability of such stockholder, officer or director for or upon any debt, default or obligation of such corporation, whether such statutory personal liability be deemed penal .or contractual, if such statutory personal liability be created by or arise from the statutes or laws of any other state or foreign country, and no pending or future action or proceeding to enforce any such statutory personal liability shall be maintained in any court of this state other than in a nature of an equitable accounting for the proportionate benefit of all parties interested, to which such corporation and its legal representatives, if any, and all of its creditors and all of its stockholders shall be necessary parties.”

Broderick seasonably claimed that to sustain the asserted bar of the statute would violate article 4, section 1, of the Federal Constitution, which provides that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” and the legislation of Congress enacted pursuant thereto. The trial court sustained the motion to strike out the complaint. Broderick v. Abrams (Supreme Court, 1934, Parker, J.), 112 N. J. L. 309; 170 Atl. Rep. 214; affirmed by the court of errors and appeals on opinion below, 113 N. J. L. 305; 174 Atl. Rep. 507 (1934, P. C.). Mr. Justice Brandéis held that: “The power of a state to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard therein is subject to the limitations imposed by the Federal Constitution,” and further stated that a state may not, under the guise of merely affecting the remedy, deny the enforcement of claims otherwise within the protection of the full faith and credit clause, when its courts have general jurisdiction of the subject-matter and the parties.

The court further held that the nature of the cause of action brought it within the scope of the full faith and credit clause, as the statutory liability sought to be enforced was contractual in character and the assessment was an incident of the incorporation. The subject-matter was peculiarly within the regulatory power of New York, as the state of incorporation.

In respect to the determination of liability for an assessment, the New Jersey citizens submitted themselves to the jurisdiction of New York, and the Supreme Court said:

“Obviously recognition could not be accorded to a local policy of New Jersey, if there really were one, of enabling all residents of the state to escape from the performance of a voluntarily assumed statutory obligation, consistent with morality, to contribute to the payment of the depositors of a bank of another state of which they were stockholders.”

It was there further held that the fact that the assessment was made under statutory direction by an administrative officer does not preclude the application of the full faith and credit clause, and that where a state has had jurisdiction of the subject-matter and the parties, obligations validly imposed upon them by statute must be given full faith and credit by all the other states.

The court finally said that it is sufficient to decide that, since the New Jersey courts possess general jurisdiction of the subject-matter and the parties, and the subject-matter is not one as to which the alleged public policy of New Jersey could be controlling, the full faith and credit clause requires that this suit be entertained, and reversed the New Jersey judgment against plaintiff.

I am of the opinion that if there were nothing more in this case than the effort to bar the action because of the provisions of sections 5 and 69 of the Insurance law, the defendants’ motion to strike the complaint should be denied, but there is an additional provision of our Insurance law to be considered by me in the determination of this motion.

Section 88. of our Insurance law (R. S. 17:17-12), provides that no person by himself, or bjr his representative of whatsoever designation, or such representative, shall solicit, negotiate or effect any contract of insurance of any kind, or sign, deliver or transmit by mail or otherwise, any policy on any property, or receive any premium, commission, fee, or other payment thereon, or in any manner, directly or indirectly, transact the business of insurance of any kind whatsoever, within this state, unless specifically authorized under the laws of this state, and that any person violating any of the provisions of this section shall be guilty of a misdemeanor.

Section 58 of our Insurance la,w (R. S. 17:32-1), provides that any insurance company formed by authority of anothej state or foreign government may be admitted to transact in this state any class or classes of insurance authorized by law to be transacted by an insurance company of this state.

Section 59 of our Insurance law (R. 8. 17:32-2), provides that no such company shall be admitted until it

(a) Piles in the department a certified copy of its charter or certificate of organization, and a statement of its financial condition and business;

(b) Satisfies the commissioner that it is fully and legally organized under the laws of its state to do the business it proposes to transact; that its condition or methods of operation are not such as would render its operation hazardous to the public or its policyholders in this state; that, if a mutual company, it has certain net cash assets;

(c) Constitutes, by a duly executed instrument filed in the department, the. commissioner and his successor in office its true and lawful attorney, upon whom all original process in any action or legal proceeding against it may be served; and

(d) Obtains from the commissioner a certificate that it has complied with all the requirements of the law applicable to it and is authorized to transact business in this state.

In 1927, Mr. Justice Brandéis, who subsequently delivered the opinion of the United States Supreme Court in Broderick v. Rosner, supra, wrote the opinion in Bothwell v. Buckbee-Mears Co., 275 U. S. 274; 48 Sup. Ct. 124. In that case the plaintiffs, as receivers of a Maryland mutual insurance company, sued the defendant, a Minnesota corporation, in Minnesota for the amount of an assessment made upon it pursuant to a policy for “strike insurance” issued by the company. The defendant urged that’ the company, and hence its receivers, cannot maintain an action in a court of Minnesota because it did not, before writing the policy, comply with the provisions of the Minnesota law relating to foreign insurance companies doing business within the state. The statutes of Minnesota provided that a foreign insurance company shall not do business within the state unless it secures a license so to do, somewhat substantially similar to the provisions of our own statutes. The statutes further require that all persons engaged in the solicitation of applications of insurance shall be licensed, and they declared specifically that it shall be unlawful for any person to solicit or make or aid in the soliciting or making of any contract of insurance not authorized by the laws of the state, and that any person, firm or corporation not complying with the requirements as to the licensing of agents and solicitors shall be guilty of a misdemeanor.

In that case it was stipulated that the company did not comply with the requirements of the Minnesota law, and that the contract was effected by the company’s sending a representative into the state who solicited the insurance there, by the defendant’s filling out in Minnesota one of the blank forms for application distributed by the company’s agent there, and by the defendant’s then mailing it, together with a check for the first premium, to the company’s office in Maryland, upon receipt of which the policy was signed by the company in Maryland and mailed to the defendant.

Mr. Justice Brandéis said that a contract of insurance, although made with a corporation having its office in a state other than that in which the insured resides and in which the interest insured is located, is not interstate commerce. The parties had the constitutional right to make in Maryland a contract of insurance despite a prohibition of the Minnesota law. But the company, a foreign corporation, had no constitutional right to solicit the insurance in Minnesota by means of an agent present within that state. Bor the act of solicitation there the state might have punished the agent, and also the company as principal. He further said:

“As the contract was not a later independent act, but grew immediately out of the illegal solicitation, and was a part of the same transaction, being inseparably tied to it by the use of the application blank illegally distributed, the contract was tainted with the illegality. * * * Because of such taint the state, under rules of general application, would have had the right to refuse to enforce it, although made in Maryland, even if it had been wholly unobjectionable in its provisions.”

In the Bothwell case it also appeared, which does not appear in the agreed state of facts here, that the contract was otherwise obnoxious to the Minnesota law because it required the company to perform in Minnesota acts which it was prohibited from doing there. The company agreed to defend, on behalf of the insured, all suits brought by striking employes, and also covenanted to indemnify the insured for “direct loss of average daily net profits and fixed charges” due to strikes. The contract also reserved to the receiver the right to inspect the plant and books of account and papers of the business and the right to interrogate persons connected therewith, which of course had to be done in Minnesota, and all of which things were the activities of the insurance business, which the company was prohibited by valid statutes from doing within the state.

In conclusion Mr. Justice Brandéis said: “Under rules of law generally applicable a state may refuse to enforce a contract which provides for doing within it an act prohibited by its laws.”

While the Broderick case, supra, held that for the states of the union the constitutional limits imposed by the full faith and credit clause abolished in large measure the general principle of international law by which local policy is permitted to dominate rules of comity, that case is readily distinguishable from the Bothwell case and can therefore be readily distinguished from the instant case, which I think must be controlled on its facts by the Bothwell case.

In Fay v. Brewster (Supreme Court, 1883, Van Syckel, J.), 45 N. J. L. 432, an information in debt was filed to recover the penalty for violation of a supplement to the insurance laws of this state, passed March 8th, 1877, substantially in the language of our present section 88 of the insurance law. R. S. 17:17-12. The information was against a person who solicited from a Hew Jersey resident a contract of life insurance with a Connecticut company and delivered the contract of insurance to him at a time when the insurance company had not complied with the requirements of our insurance laws. The proof in the case was full that said company was not incorporated under the laws of this state and had not complied with the provisions of our insurance laws. That was held to be sufficient, and the court concluded that the proof was complete that the defendant committed the act against which the penalty of the statute is denounced.

In Columbia Fire Insurance Co. v. Kinyon (Supreme Court, 1874, Van Syckel, J.), 37 N. J. L. 33, a foreign fire insurance company chartered by the State of Pennsylvania brought suit to recover the amount of certain alleged assessments made on the deposit or premium note given by the defendant for his policy. The principal question involved was as to the force of our Insurance acts of 1860 and 1867. The matter came up on a demurrer to plaintiff’s replication. Mr. Justice Yan Syckel said that the evident purpose of our acts was to put under certain regulations the doing of business in this state by foreign insurance companies, and that this object was accomplished by prescribing the conditions under which they may effect insurances through agencies established here; that no intention was manifested of an attempt to restrain or control the business of these corporations, so far as it is transacted without the limits of this state, or to give our- legislation any extra territorial effect. Comity requires us to enforce a contract made in another state, and valid there, unless it is clearly prohibited by some provision of these enactments. Mr. Justice Yan Syckel further said:

“It may, therefore, be conceded, not only that our legislature may put under restraint business transacted in this state by a company created by the law of another state, but, in the exercise of their plenary power, may limit, if they cannot deny, the right of such company to sue in our courts. Although it would be competent, by legislation, to invalidate in our courts an insurance contract made in good faith in another state on property located here, it would be so contrary to the comity which has been observed between the states, that such an intention will not be imputed to the law maker, unless the language used so clearly expresses that purpose as to bear no other reasonable interpretation.”

Under the existing statutes, a foreign company was inhibited from transacting any business connected with insur- ' anee purchased in this state through agencies established here without conforming with the requirements of our laws and the penalties denounced by the act were aimed only at the authorized agent acting in this state. Holding that there was nothing in our state which will make the case an exception to the general rule, that the law of the place where a contract is made or to be performed, is to govern as to the nature, validity, construction and effect of such contract, being valid in such a place, it is to be considered equally valid everywhere. It will be enforced here, not proprio vigore, but ex comitate.

The learned justice held that a contract of insurance made out of this state on property here situate is validé He held that the regulations of our insurance laws are not merely for the purpose of revenue, leaving unimpaired the contract made in violation of them.

He considered the act of April 15th, 1846, imposes a tax upon foreign companies which establish agencies in this state, and held that the principal object of this statute was to deprive them of the advantage they would otherwise have over our home corporations.

The subsequent acts of 1860 and 1867, he said, manifests very, clearly the more important purpose of protecting the public against imposition, which might otherwise be practiced by wholly irresponsible companies, by requiring that the foreign companies shall exhibit under oath and file with our secretary of state a statement as to the sound, well invested capital over all claims and liabilities, before authority can be had to appoint agents. The court said:

“The agent, therefore, who acts without due authority, is not only liable to the penalty in such case prescribed, but the contract made in contravention of the law is itself void, so far as concerns the right of the foreign principal to sue upon it.”

In the instant case I conclude, under the authority of the Bothwell case, that since the solicitation of the defendants in Hew Jersey with relation to their property located here on behalf of the foreign insurance company, under the agreed facts, was a violation of our criminal law, this court should refuse the enforcement of the contract against the defendants.

Defendants’ motion to strike the complaint here will therefore be granted, without costs. Ho costs are allowed because the plaintiff here is a temporary custodial receiver, appointed by the Court of Chancery of our state.

I will sign a rule in conformance with the above determination when it is presented to me.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    THE CRAFTSMEN’S CLUB OF RAHWAY, PETITIONER, v. CITY OF RAHWAY, RESPONDENT.
    Decided February 6, 1940.
    For the petitioner, David Armstrong.

    For the respondent, Eugene F. Mainzer.

   Quinn, President.

Petitioner is the owner of a three-story brick building which, together with the lot of land upon which it is situated, was duly assessed for taxation for the year 1938 by the respondent taxing district. An application for cancellation of the levy was dismissed by the Union County Board of Taxation. The present appeal from that determination is based upon the claim that the property in question is “used in the work and for the purposes of one or more fraternal organizations or lodges,” within the scope of Pamph. L. 1936, ch. 46 (22. 8. 54:4-3.26), which grants exemption from taxation to property so specified, provided that legal or beneficial ownership thereof is in one or more of such organizations and that “no part of such property is used for pecuniary profit.” Bespondent relies upon the clause last quoted in resisting the exemption claimant and urges its applicability in the following state of facts.

Petitioner was incorporated in 1905 for the ostensible and stated purpose of cultivating social relations among its members, but actually to constitute a holding company for realty to be acquired by the Masonic organization, Lafayette Lodge No. 27, F. & A. M., Rahway, New Jersey, it being provided that membership in the Craftsmen’s Club was open to any member in good standing of the lodge and that three of its seven trustees must be past masters thereof. Shortly thereafter the club took title to the plot of land under appeal and later constructed the building now on the premises, raising part of the requisite funds through the sale of bonds to members of the lodge and others. Until April, 1937, the ground floor of the building was occupied by a United States post office, but on the assessing date for the tax year 1938 the premises served no uses other than as a place for meetings and the conduct of lodge activities by the Lafayette Lodge, the Boyal Arch Chapter, The Order of the Eastern Star, DeMolay Chapter and the Order of Odd Bellows. The first four named organizations are all affiliated Masonic groups. The last is an independent fraternal association organized on the lodge plan. Each contributed a fixed annual fee to the holding company, the largest amount being paid by the Lafayette Lodge, actually the beneficial owner of the premises.

The circumstances set out clearly substantiate petitioner’s contention that we are here confronted simply with the carrying out of a plan for the maintenance of a building for the use of several fraternal organizations through their joint financial support of the operating company which holds the title for the members of one of the said organizations. The fact that one of the organizations in question, the Odd Eel-lows, is independent of and free from affiliation with the others does not militate against the operation of the exemption statute, since that is specifically applicable where the property in question is used “for the purposes of one or more fraternal organizations, &c.”

The situation before us is readily distinguishable from that with which we were confronted in Fifty-Six Seminary Avenue Corp. v. City of Rahway (State Board), filed April 4th, 1939. There we found to exist the regular and' continuous practice by a fraternal organization of renting its meeting rooms to the general public at large at regular rates, in much the same manner of operation as exercised by public meeting halls for hire. We found this practice to constitute a use of the building for pecuniary profit in the sense that it partook of a character ordinarily calculated to render pecuniary profit, as exercised by persons or corporations generally. See the definition of this test in Benevolent Protective Order of Elks, Lodge No. 233, v. Borough of Red Bank (State Board), filed January 24th, 1939, followed in Hoboken Lodge No. 74, Benevolent Protective Order of Elks of America v. City of Hoboken (State Board), filed February 21st, 1939, affirmed, City of Hoboken v. Hoboken Lodge No. 74, B. P. O. Elks of America (Supreme Court, 1939), 123 N. J. L. 506; 9 Atl. Rep. (2d) 783.

Nor does the fact that the building was originally constructed with the proceeds of bonds invested in for profit by numerous individuals have any material bearing upon the issue before us. The benefit, if any, to such investors, resulting from the payment to them of interest or principal on their bonds, no more subjects the property to the characterization of use for profit than would the payment by petitioner to commercial interests for such services as light, heat and telephone.

•• For the reasons stated the judgment of the Union County Board of Taxation is reversed, and the assessment ordered canceled.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM MATTHEWS, PETITIONER, v. FREDERICK A. SMITH AND ETHEL HART, RESPONDENTS.
    Decided December 9, 1939.
    For the petitioner, Thomas F. Shebell.

    For the respondents, Lloyd Beatty.

   # % H* ❖ j-j

In this case it is alleged in the petition that the petitioner was involved in an accident at Asbnry Park, New Jersey, on November 23d, 1938, while in the employ of'respondent. In its answer respondent denies there was any relation of employer and employe.

Petitioner in his own behalf testified that he was engaged to build a fence on property of the estate of E. F. Hart, deceased, in Asbury Park, New Jersey, and to clean out pigeons’ nesting under the roof; that he had finished the fence and while standing on a ladder cleaning out the pigeons’ nests, he fell to the ground when the ladder slipped. For his labor he was paid at the rate of seventy-five cents per hour and was to be paid at that rate for the time required to complete the designated work. He further admitted on cross-examination that he was not supervised by anyone in executing the work.

In a proceeding to recover compensation for injuries under the Workmen’s Compensation act it is incumbent upon petitioner to establish the relationship of employer and employe.

At the conclusion of petitioner’s testimony respondent moved for a dismissal of the petition on the grounds, inter alia, that the petitioner had failed to establish this relationship and that in fact his relationship with respondent was that of an independent contractor.

The petitioner’s testimony in my opinion fails to show that respondent retained the right to direct manner or method of doing the work, particularly in view of his admission that he was not supervised in execution of the same, and he therefore is an independent contractor, and not an employe of the respondent.

This finding makes it unnecessary to rule on the other questions raised in respondent’s motion and requires a dismissal of the petition.

$$$$$$$

Harry H. Umberger,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARG. SULLIVAN SCHAFER, PETITIONER, v. IRENE A. BERNARD, RESPONDENT.
    Decided January 31, 1940.
    Por the petitioner, Myron J. Berman.

    Por the respondent, Joseph B. Kane.

   * * # # * * $

Pleadings filed in this case by petitioner allege injury to head, right arm and left knee resulting from an accident November, 1938, when two steps of cellar stars collapsed as she descended same, causing her to fall approximately six feet to concrete floor. Respondent’s answer admits an accident but controverts details of same as alleged in petition and gives date of same as November, 1939, the year apparently being in error as the answer was filed with the bureau on July 12th, 1939, and in answer to question ten of the answer respondent states the date as November, 1938.

Respondent moved for a dismissal of petition, at conclusion of the trial on the grounds that as petitioner had failed to show the date on which the alleged accident occurred she fails to prove that her injuries are the result of an accident arising out of and in course of her employment. Counsel, however, does not cite any authority for this contention nor am I aware of any direct ruling on the point. The statute itself is silent as to necessity for proving date of accident. In Liondale Bleach, Dye and, Paint Works v. Riker, 85 N. J. L. 426; 89 Atl. Rep. 929, the Supreme Court held “where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no 'injury by accident’ within the meaning of the act.” This precedent, however, does not state specifically that the actual date on which the accident occurred must be shown but seems rather to require that a definite event has taken place at a time more or less certain, as the opinion goes on to say “there may indeed be compensation awarded for resulting conditions where you can once put your finger on the accident from which they result; but the ground of the action fixed by the statute is the injury by accident, not the results of an indefinite something which may not be an accident.” In the instant case there can be no doubt that there was such definite condition.

It may be that it would be necessary to prove the exact date when time is the essence of the action, such as a claim by respondent that statutory notice or knowledge was not given or obtained within the required time, or that the petition was not filed within the time limit specified in the statute, but neither of these points are at issue here as respondent’s answer admits knowledge of the accident in November, 1938, and its occurrence in November; in fact it appears to have taken place in her presence and the petition was filed April 26th, 1939. Time was of the essence in Flood v. Newark Plumbing and Heating Co., 7 N. J. Mis. R. 981; 147 Atl. Rep. 638. Also the case of Elio v. Singer Manufacturing Co. et al., 10 N. J. Mis. R. 606; 160 Atl. Rep. 325, merely states the proposition that the Workmen’s Compensation Bureau should not dismiss a petition for failure to state therein the date on which the alleged accident occurred as this may be established in the proofs, but does not pass on the necessity of proving such date specifically. A workman who is able to prove the occurrence of an accident at a time more or less certain should not be deprived of the benefits of the Workmen’s Compensation law, merely because he is unable to prove the exact date on which the accident took place, when establishment of such date is otherwise not essential to his right of recovery.

Respondent moved for dismissal on the further ground that the alleged accident did not arise out of and in the course of the employment in that at the time of same petitioner was acting in disobedience of an express order. The proofs do not support this contention.

Respondent’s contention that the petition should be dismissed by reason of petitioner’s failure to show that the injuries complained of were not due to causes other than the accident, is so contrary to established law as to require no comment.

Respondent further requests dismissal of the petition on the ground that testimony on behalf of petitioner is not entitled to credence. I do not agree as there is nothing in the record to support this assertion other than respondent’s own denials from the stand of the occurrence of the accident. Medical experts on the petitioner’s behalf testified to certain pathalogical conditions they found existing in her left knee joint, which they say, from hypothetical questions, are related to the trauma. Respondent offers no explanation for the occurrence of these conditions.

$ $ $ $ $ $

I, therefore, find and determine from all the evidence that the petitioner suffered an accident arising out of and in course of her employment with respondent during the month of November, 1938; that the respondent had due notice of this accident; * * * that as a result of the accident she incurred injuries to the left knee; that as a result of the injuries she has suffered a permanent disability * * *; that she was temporarily disabled and under medical treatment * * * and is entitled to temporary compensation. sH & sji ^ ❖ ❖ ijs

HAKKY H. UlIBEKGER,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LILLIAN COATES, PETITIONER, v. WARREN HOTEL, RESPONDENT.
    Decided February 14, 1940.
    .For the respondent, Wilbur A. Stevens (by William Wann).

    For the petitioner, Levinson Levinson (by 0. Ernest Gatta).

   sjs # ❖ # H* # *

The petition further avers that petitioner’s wages were $15 monthly, with room and board and tips averaging $10 per week. Respondent does not deny these facts but maintains that the tips should not be included in calculating the compensation rate as they are gratuities and as such cannot be considered in such calculation.

The proofs disclose that petitioner as a result of the accident now suffers from an ununited fracture of the neck of the right femur, there being no bony union of the same, partial absorption of the head of the femur, loss of motion of leg joints, atrophy and loss of muscle tone, shortening of the leg one and three-quarters inches and complete loss of function of this member requiring the use of crutches to get about. Petitioner further complains of loss of weight since the accident, inability to sleep, leg aches all the time especially at night, pain in abdomen when moving or on sitting any length of time, must use crutches to get about at all, unable to go up and downstairs at all, extremely nervous, and inability to do any of the ordinary duties of a housekeeper. Dr. Cucinelli testifying on behalf of respondent admitted on cross-examination that petitioner’s power of locomotion is practically nil. Proofs also disclose pre-existing physical conditions characterized as myocarditis, hypertension, enlarged thyroid gland, hypertrophic arthritis of the spine. These conditions were admitted by petitioner’s medical witnesses to have pre-existed the accident. Petitioner on her own behalf testified she had always enjoyed good health before the accident, was never sick before and had worked as a waitress for a period of twenty years preceding the accident.

Petitioner’s medical witnesses estimate that she now suffers a disability total in character and permanent in quality. Respondent’s medical witnesses estimate her permanent disability as total in character of the right leg or in conjunction with the other conditions fifty per cent, of total. Petitioner’s experts insist the pre-existing conditions play no part in the present disability as they mere merely anatomical and not functionally disabling. They further maintain a neurotic condition has resulted, from the accident but this latter contention is denied by respondent’s experts.

In brief submitted on behalf of petitioner, her counsel cites a Pennsylvania decision, McGee v. Youghiogheny and Ohio Coal Co., 182 Atl. Rep. 773, in which total disability was allowed in that jurisdiction for an injury similar to that involved in the case at bar. Other cases cited of New Jersey courts do not seem relevant on the present issue, except Gorman v. Miner-Edgar Chemical Corp., 9 N. J. Mis. R. 180; 153. Atl. Rep. 271, wherein an award of seventy-five per cent, of total was allowed for an ununited fracture of the neck of the femur. However, there was an underlying Paget’s disease in this case and when it was again before the Supreme Court (123 N. J. L. 235; 8 Atl. Rep. (2d) 574), it was held that part of the disability was due to the injury and part to the Paget’s disease.

The instant case differs in the fact there is no underlying diseased condition that prevents the repair of the fracture and it is the injury alone that destroys the petitioner’s power of locomotion, except with the aid of artificial devices and even with these she has practically none as admitted by Dr. Cucinelli. The disability of an injured workman is to be measured as it exists of itself and not as it may be modified through the use of artificial devices. Johannsen v. Union Iron Works, 97 N. J. L. 569; 117 Atl. Rep. 639. Nor should an award of compensation be limited to the member of the body involved when the injury to such member affects the efficiency of the entire body, but it is to be allowed on a total permanent basis. Simpson v. New Jersey Stone and Tile Co., 93 N. J. L. 250; 107 Atl. Rep. 36.

In the case of Everhart v. Newark Cleaning and Dyeing Co., 119 N. J. L. 108; 194 Atl. Rep. 294, the Court of Errors and Appeals laid down the following doctrine: “The test of liability under the Workmen’s Compensation act is not the immediate impairment of earning power although compensation afforded by the statute is based upon and is measured by the workmen’s earnings, but is rather the loss ensuing from personal injury which detracts from the former efficiency of the workman’s body or its members in the ordinary pursuits of life.” On what theory the respondent’s doctors limit the percentage of disability in this case to fifty per cent, is beyond me, when it is admitted she is able to move about to only a very limited extent, and I am unable to perceive how anyone can follow any of the ordinary pursuits of life in a practical sense without this function. A person, who by reason of injury is able to perform only the very minor acts of life, and even those under distress, and who has only a theoretical earning power, is totally and permanently disabled within the meaning of the Workmen’s Compensation act.

I do not think the pathological conditions described in the medical testimony have any part in this disability. From the evidence they appear to have been latent and in no noticeable measure disabling. Wo human, it is common knowledge, is one hundred per cent, physically efficient. For all practical purposes the petitioner previous to the accident was one hundred per cent, efficient as we commonly know human efficiency. Her present disability I find is entirely the result of the accident.

The record discloses that after her return home from the hospital petitioner found it necessary to engage the services of a Mrs. McLaughlin, described as a practical nurse, to care for her personally and also do the general housework for a period of seventy-one days, the said Mrs. McLaughlin being paid for her sevrices $1 per day and provided with room and board at petitioner’s home for which expense petitioner asks allowance. Her husband also acted in this capacity and recompense for his services is also sought. The Compensation act (R. S. 34:15-15) provides: “The employer shall furnish to the injured workman such medical surgical and other treatment, and hospital service as shall be necessary to cure and relieve the workman of the effects of the injury, and to restore the functions of the injured member or organ where such restoration is possible; * * A reading of this entire section implies an intention on the part of the legislature to provide an injured workman, at the expense of his employer, with such medical and allied services as have a tendency to cure and relieve him of the effects of the injury. That the legislature contemplated there might be expenses for other than medical and allied care resulting from an injury is a logical conclusion from the fact that it has enumerated the ones to be included in an award of compensation, and it may therefore be inferred that it intended other elements of expense not enumerated to be excluded from a compensation award. It is my conclusion that the services of Mrs. McLaughlin and petitioner’s husband do not fall within the enumerated expenses and the claim therefor will be denied.

The question as to whether or not tips received by a restaurant waitress can be included in a computation of her compensation rate has never been passed upon by the appellate courts of this state. Counsel for petitioner in urging inclusion of tips in the compensation rate cites a number of decisions of foreign jurisdictions in which it was decided tips received by such employes should be included as part of the employe’s earnings. It is to be noted, however, that the wording of the statutes under which these rulings were made differs from ours in that they do not employ the word “gratuities.” R. S. 34:15-37 defines wages as the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others. The question would thus seem to be a mixed one of law and fact. If the tips received in this case come under the classification of “gratuities” they must be excluded from the “money rate at which the service rendered is recompensed under the contract of hire.”

It is a well known, even notorious fact, that restaurant waitresses are employed at a fixed salary payable directly by the employer, with a further understanding that tips received by them from patrons served are to be retained by the employe as further recompense for their services and there can be no doubt that the anticipation thereof influences the amount paid such emploj'-es by their employers. So fixed and general is this practice that a mere showing of an employment of this character is sufficient to raise an inference of its applicability to the contract of hire in a given case. Further strength is given this inference in the instant case by the uncontroverted testimony of the petitioner of the receipt and retention by her of tips to the amount of $10 per week. It may further be noted an allegation to this effect is contained in the petition and is undenied in respondent’s answer. When so considered by both employer and employe such tips in effect become a part of the consideration of the contract of hire and are in no sense gratuities within the contemplation of the parties to the contract. Nor are they precisely gratuities from the viewpoint of the donors, as it is a fair inference that the tipping custom influences the prices charged patrons for meals by operators of restaurants, and a higher price would be charged if the employer were obliged to pay his waitresses larger wages, which he undoubtedly would find it necessary to do were it not for the said custom. The tipping habit seems to have been adopted by the trade and public generally as a pleasant way of compensating such employes for their services.

The legislative intent apparently is to compensate injured emploj'es on the basis of their earnings and it hardly seems in harmony with the modern liberal interpretation of the Compensation act to hold a waitress’ tips to be gratuities and thus exclude from the compensation of employes of this and similar classes a major part of their earnings.

I conclude, therefore, that when, as here, the consideration of a contract of hire contemplates on the part of both employer and employe the receipt of tips to a substantial total by the latter, and the amount directly paid by the employer as wages to the employe is influenced thereby, such tips are not “gratuities” but are a part of “the money rate at which such services are recompensed under the contract of hire.”

Counsel for respondent seeks to influence me against such a conclusion by calling attention to the fact that for years it has been the holding of the bureau that tips to waitresses are gratuities and were so held in a reported case by it, Makris v. Top Hal Restaurant, 16 N. J. Mis. R. 26; 195 Atl. Rep. 857. As to this contention suffice it to say that longevity alone adds no merit to an erroneous practice nor is persuasive of its continuance.

Tips in the amount of $10 per week will therefore be included in calculating petitioner’s wages together with the cash payment of $15 per month and room and board at the statutory allowance of $5 per week which results in a finding of petitioner’s weekly wage in the amount of $18.46.

I do, therefore, find and determine that the petitioner incurred personal injuries by accident arising out of and in course of her employment with the respondent; that said accident occurred on August 17th, 1938; that respondent had due notice or knowledge of said accident; that as a result of said accident petitioner suffered a temporary disability for a period August 17th, 1938, to and including November 17th, 1939; that as a further result of said accident petitioner sustained an ununited fracture of the neck of the right femur which totally destroys her power of locomotion and causes a total permanent disability and is entitled to four hundred weeks compensation therefor, with the further right to apply for additional compensation at the expiration of this time as provided by law (R. S. 34:15-12b); that the petitioner was earning a weekly wage of $18.46 at the time of the accident; that her compensation rate is $12.31 per week. *******

Harry H. Umberger,

Deputy Commissioner.


text:
    State Board of Tax Appeals.
    BONHAM & YOUNG CO., PETITIONER, v. J. H. THAYER MARTIN, STATE TAX COMMISSIONER, RESPONDENT.
    Decided February 20, 1940.
    For the petitioner, Thomas G. Hilliard.

    For the respondent, Walter Large.

   Quinn, President.

Petitioner filed appeals for the years 1938 and 1939 from corporation franchise taxes assessed against it for said years by the State Tax Commissioner, which appeals are disposed of herewith together upon a showing of the same fact situation for each year. The claim is for cancellation of the taxes upon the ground of a right of exemption under R. S. 54:13-7, vested in petitioner as an “* * * agricultural * * * corporation at least fifty per cent, of whose capital stock issued and outstanding is invested in * * * agricultural * * * pursuits carried on within this state * *

The testimony at the hearing satisfactorily establishes the following facts. Although petitioner did at one time engage primarily in mercantile pursuits, it has since 1937 owned practically no property other than its interest, hereinafter described, in certain lands in Salem, Cumberland, and Cape May counties, where it conducts extensive operations in the breeding and trapping of muskrats for commercial purposes. Petitioner invested in a one-half interest in four thousand one hundred acres of such lands in Cumberland county, of which three hundred, used for ordinary farming, are valued at $15,000 and the remainder, devoted to muskrating, at $38,000, and holds a similar interest in eight hundred acres in Cape May county, estimated at $8,000. It also owns outright one thousand acres, valued at $10,000, and likewise devoted to muskrats. The total value of these interests thus aggregates $40,500, whereas its ownership of other property of any character is not in excess of $500.

Petitioner further offered the testimony of an accountant familiar with its affairs to the effect that 10.8 per cent, of the capital stock of the corporation was invested in the lands hereinabove mentioned.

Respondent supports its position by reliance upon the fact that legal title to the lands in question is vested in William T. Hilliard, 3d, an individual. But it has no rebuttal of the explanation made by petitioner that Hilliard holds the real estate in trust for the corporation, of which he is an officer. An equitable interest in agricultural lands actually acquired with corporate funds is, in our opinion, an investment of the corporation’s capital in agricultural pursuits.

The only remaining inquiry essential to a determination of the issue before us is as to whether the raising and trapping of muskrats constitutes the lands whereon such activity is carried on the subject of an investment for agricultural pursuits. The available authorities resolve this issue in the affirmative. According to Webster’s New International Dictionary, “Agriculture” is defined as the “art or science of cultivating the ground, including harvesting of crops and rearing and management of live stock; tillage; husbandry; farming; in a broader sense, the science and art of the production of plants and animals useful to man * * In support of the references to animals in this connection are the following case authorities: Fleckles v. Hille, 83 Ind. App. 115; 149 N. F. Rep. 915; Davis v. Industrial Commis sion of Utah, 59 Utah 607; 206 Pac. Rep. 267; Gordon v. Buster, 113 Tex. 382; 257 S. W. Rep. 220; Tower & Sons v. United States, 9 Ct. Cust. App. 307, 308; Slycord v. Horn, 179 Ia. 936; 162 N. W. Rep. 249; Bringel v. Grogan, 67 Wis. 147, 150; 29 N. W. Rep. 895.

There was testimony at the hearing that petitioner’s operations required the raising of special vegetation for the sustenance of the muskrats. "We are satisfied that this pursuit is an agricultural one, within the liberal construction of the scope and intent of this statute that has been exercised by our courts, as distinguished from the rule of strict construction ordinarily applicable to tax exemption legislation. North American Phonograph Co. v. State Board of Assessors, 54 N. J. L. 430; Burlington Distilling Co. v. State Board of Assessors, 86 Id. 92.

The assessments appealed from are canceled.


text:
    State Board of Tax Appeals.
    ALUMNI ASSOCIATION OF THE DELTA CHAPTER OF ZETA PSI FRATERNITY OF NORTH AMERICA, PETITIONER, v. CITY OF NEW BRUNSWICK, RESPONDENT.
    Decided February 20, 1940.

      For the petitioner, Newton H. Porter, Jr.

    For the respondent, no appearance.
   Quinn, President.

Petitioner heretofore duly filed its petition of appeal with the board, praying cancellation of an assessment levied for the year 1938 by the respondent taxing district upon a college fraternity house and lot and personalty there situate. The matter was originally listed for hearing on May 8th, 1939, along with a number of similar applications, but was not then disposed of. Petitioner now moves for an order re-listing the case for hearing.

The petition of appeal raises the sole issue of the right of exemption from taxation under the provisions of Pamph. L. 1936, eh. 46, exempting all real and personal property used in the work and for the purposes of any fraternal organization or lodge. The appeal being for the tax year 1938, however, and therefore determinable as of October 1st, 1937, the assessing date, the operation of the statute cited is subject to the limitation thereof contained in Pamph. L. 1937, eh. 70, approved June 3d, 1937, and. operative July 4th, 1937. Comp. Stat., p. 4976, § 13. That act amended the 1936 statute so as to provide that nothing therein contained should be construed to permit the exemption of property of college clubs, lodges or fraternities.

Since we are controlled by this legislation no proper purpose could be served by re-listing the case for hearing and the motion before us is therefore denied. The recitals in the petition of appeal expressly negativing any right to the exemption therein prayed, the petition is dismissed. See Rutgers Association of Beta Theta Pi v. City of New Brunswick (State Board), filed November 28th, 1939.


author: Collester, D. C. J.

text:
    Clifton District Court.
    INTERNATIONAL ALLIED PRINTING TRADES COUNCIL, BY PATERSON ALLIED PRINTING TRADES COUNCIL, ITS AGENT, PLAINTIFF, v. LOUIS LAZER, DEFENDANT.
    Decided January 10, 1940.
    For the plaintiff, Meyer M. Semel.

    For the defendant, Marcus & Levy.

   Collester, D. C. J.

The plaintiff herein, a printers’ union, brings suit against the defendant, Louis Lazer, to recover the statutory penalty for violation of the act relating to the unlawful use of genuine registered printers’ labels. The defendant, a non-union printer, is charged with the violation of R. S. 1937, 56 :3-8, in that he accepted orders and made sales to two organizations, namely, the Paterson Jewish Art Group and Dramatic Studio and the Freiheit Gesang Yerein. The evidence indicates that the printed matter supplied to each organization bore an unauthorized but genuine union label and that the shop number attached thereto was fictitious and counterfeit.

There can be no question but that the defendant effected the respective sales complained of. He accepted the orders; informed the purchasers that although he was not a union printer he could have the genuine union label attached on the printed matter for them; delivered the merchandise to the purchasers; presented a bill on his own billhead; and was paid for the work.

The defendant contends that the transaction was not a “sale since the defendant made no profit nor received any benefit thereby.” With this theory the court must disagree since a sale in contemplation of law does not require a profit to be realized. Likewise, this court finds from the evidence that the defendant did receive a “benefit” since, as he stated in his testimony, he performed the transaction in order to “keep his customers.”

R. S. 1937, 56:3-8 provides:

“Whenever any person, association, organization or corporation has adopted and filed for record or registry, or shall adopt and file for registry, any label, trade-mark, term or design as provided in this article, it shall be unlawful, and a violation of this article for any other person, association, organization, or corporation, to: * * *
“d. Make any use whatever of any such genuine label, trade-mark, term or design, without first obtaining, in every case, the license, consent or authority of the person, association, organization or corporation adopting, filing and registering the same, or causing the same to be adopted, filed and registered * * *.”

The legislature has also prescribed the manner in which said statute shall be construed by the enactment of B. 8. 1937, 56:3-13, which recites:

“This article shall be construed by all courts at all times, in all suits, actions and proceedings, in the most liberal manner for effecting the objects and purposes thereof and protecting the claims, rights, interest, use and property of every person, association, organization or corporation in and to any label, trade-mark, term or design filed and registered pursuant to the provisions of this article.”

The court finds from the evidence that the defendant, on the two occasions mentioned, sold the printed matter bearing an unauthorized union label to which was annexed a fraudulent and fictitious union shop number.

It is the conclusion of this court that said action by the defendant, in representing to the purchasers that the union label used was an authorized, genuine union label and that the shop number annexed thereto was an authorized union shop, was an unlawful and improper “use” of the label within the contemplation of the statute. R. S. 1937, 56:3-8 subsection d.

The defendant’s contention that he had no knowledge of the lack of authorization to use such label and that the shop number was fictitious is no defense to this action. Knowledge of the seller is immaterial since intent, where a sale is made, is not of the essence of the offense. Cigar Makers International Union of America v. William H. Goldberg, 70 N. J. L. 488; 57 Atl. Rep. 141.

It is, therefore, the decision of this court that judgment must be entered against the defendant on both causes of action set forth in the state of demand and the plaintiff is therefore awarded damages against the defendant in the total sum of four hundred dollars ($400).


text:
    State Board of Tax Appeals.
    THE FAIRMOUNT HOSPITAL, INC., PETITIONER, v. THE CITY OF JERSEY CITY, RESPONDENT.
    Decided March 5, 1940.
    Por the petitioner, Edward P. Stout.

    Por the respondent, James A. Hamill (by Prank P. McCarthy).

   Quinn, President.

Petitioner heretofore filed its petitions of appeal with this board from judgments of the Hudson County Board of Taxation, making prayer therein for exemption from taxation for the year 1938, with respect to two parcels of realty owned by it in the respondent taxing district, under R. S. 54:4-3.6.

The matter was duly set down for hearing before the board and the taking of testimony on the issue of exemption was begun on the date so designated. A question arising with respect to the admissability of certain hospital records offered in evidence on behalf of the respondent, the hearing was adjourned so as to permit counsel to stipulate with respect to the matter. Thereafter, and for the first time, petitioner made the application now before us for consideration, to amend its petition so as to pray for a reduction of the assessed valuation of the property and to eliminate the original prayer for exemption. We regard this motion as untimely and not the subject of a proper exercise of discretion, in the absence of a showing of extraordinary cause.

The motion will be denied.


text:
    State Board of Tax Appeals.
    TIDE WATER ASSOCIATED OIL COMPANY, PETITIONER, v. CITY OF JERSEY CITY, RESPONDENT.
    Decided March 5, 1940.
    For the petitioner, Edward P. Stout.

    For the respondent, James A. Hamill (by Frank P. McCarthy).
   Quinn, President.

Petitioner seeks, upon an amended petition of appeal to this board, to cancel and discharge an assessment levied against it for the year 1937 by the city of Jersey City, with respect to personal property situated in that taxing district, upon the ground that it was not the owner of the property with respect to which the assessment was levied, on October 1st, 1936, the assessing date for the year in question.

Upon a prior application made by the petitioner for cancellation of the assessment upon the ground stated, we withheld any summary disposition of the application in favor of the petitioner, for the reason that it appeared that the granting of the application might result in the escape from taxation for the year 1937, of a substantial amount of personal property situated therein. Tide Water Associated Oil Co. v. City of Jersey City (State Board), filed August 14th, 1939. We said in that case:

“It is provided by Pamph. L. 1903, ch. 208, § 30 (R. S. 54:4-54) that:

“ ‘No assessment of real or personal property shall be considered invalid because listed or assessed in the name of one not the owner thereof, * *

“The obvious error in the listing of the property in question against the Oil Company will not, therefore, invalidate the assessment. Following the practice adopted in a similar situation by the former Board of Equalization of Taxes, to the powers of which we have succeeded under Pamph. L. 1915, ch. 244, and Pamph. L. 1931, ch. 100, the assessment will not be canceled, but the City of Jersey City may amend its petitions and submit evidence as to the owners of the property on the assessing date, whereupon, upon notice, the assessment may be corrected. Union Terminal Cold Storage Co. v. Jersey City (State Board Tax Reports, 1934, p. 115). The correction may be made by stipulation entered into by all parties in interest.”

The taxing district has failed to take the action suggested by us on the foregoing application, and has adduced nothing to controvert the testimony offered on behalf of the petitioner to the effect that the personal property in question was owned by Tide Water Oil Company, a Delaware corporation, on the assessing date, and not by the petitioner. We are therefore constrained to set aside the assessment for the year 1937 as against the petitioner, Tide Water Associated Oil Company. This disposition of the case is not to be deemed a cancellation of the assessment in toto, but merely as against petitioner, and is without prejudice to any remedies which the city of Jersey City may have before any appropriate tribunal, for the collection or enforcement of its levy. We expressly reserve jurisdiction over the proceedings so that the city may, within a reasonable time, submit evidence as to the true owner of the property on the assessing date, whereupon, upon notice to such party, the assessment may be corrected, under the practice suggested in the Union Terminal Cold Storage Co. case, cited supra.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM A. HAYES, PETITIONER, v. FIRST BAPTIST CHURCH OF BLOOMFIELD AND COMMERCIAL CASUALTY COMPANY, RESPONDENTS.
    Decided February 20, 1940.
    For the petitioner, David Roskein.

    For the respondents, Henry M. Grosman.

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From the testimony adduced, I find that on March 19th, 1938, and for approximately sixteen months prior thereto, the petitioner was employed as a sexton by the respondent First Bapist Church of Bloomfield, New Jersey, at a salary of $25 a week. Iiis duties, inter alia, consisted in cleaning class rooms, arranging chairs, tending the furnace, emptying ashes and taking care of different things in and about the church premises, including small carpentry and plumbing jobs. The petitioner was apparently able to perform these duties, prior to the aforesaid date, without any discomfort or disability. He appeared to be, to all outward appearances, a normal and active individual with no apparent ailment, nor had he lost any time from his work prior to March 19th, 1938, or experienced any difficulty with his heart. It further appears that the petitioner, without any knowledge of the fact, had an arterio-sclerotic heart. This condition produced no disability, no discomfort, nor did it in anywise interfere with his ability to carry on his accustomed work, up to the time of the occurrence of March 19th, 1938.

The testimony discloses that on the aforesaid date, at about four p. m., the petitioner, together with another man, was carrying up a stairway, a heavy board about twelve feet long and three feet wide, weighing about a hundred pounds, which board was to be used for the construction or repair of a platform in the auditorium of the church in connection with a minstrel show which was to be given. The petitioner was carrying the top end of the board up the stairway and as he reached a point about one or two steps below the landing thereof, he felt something happen to his heart which made him gasp, suffered a troubled sense of suffocation, and “went weak and all the use seemed to go out of” him. He had to lay down the board which he was holding and had to support himself by resting against the wall for about three or four minutes, and then continued up the stairway as best he could and was then compelled to go to another room where he rested for another fifteen or thirty minutes. The suffocating sensation, pain and feeling of weakness did not leave him and he endeavored to carry on his duties with as little effort as possible. His condition was such, that when he attempted, that evening, to shovel coal for the purpose of preparing the furnace at the church for the next day’s services, he was again seized with the suffocating sensation and weakness and was unable to do this work and was relieved at once by his son who finished the petitioner’s task and took him home.

For the next several days the petitioner endeavored to continue with the performance of light duties; however, throughout that time he felt very weak and short of breath and testified that the suffocating sensation seized him whenever he tried to do anything strenuous. On the Thursday evening following March 19th, 1938, as he returned to the church in pursuance of his duties, he collapsed and was immediately taken to the office of Dr. H. E. Montero, where first aid was administered. He then was removed to his home where he was confined for two weeks in bed and for an additional week about his house. During his confinement at home he complained of shortness of breath, pain, the feeling of suffocation, and weakness. Since the occurrence of this accident, the petitioner has been under continued medical treatment. He still suffers from shortness of breath, the sensation of suffocation, general weakness, pain and inability to walk up steps without discomfort. With the exception of a bit of canvassing work which he endeavored to do and which only required his riding about in an automobile driven by someone else, he engaged in no work until June, 1939, when he obtained employment as a “water boy” with the W. P. A. This work required his carrying a pail of water, with a dipper, to the various men working on the project when they required a drink, and it appears that even in the performance of this light activity he has found it necessary to rest during the day.

The respondent produced and exhibited motion pictures alleged to have been taken of the petitioner while engaged in his duties as a “water boy” with the W. P. A. After viewing the motion pictures offered which purport to depict certain activity on the part of the petitioner while working on the W. P. A. project as a “water boy,” I find that they have no real significance nor am I constrained to place any real probative value on them. There appeared no time interval between the various movements of the petitioner and, as they were taken and projected in court, it appeared obvious that they were intended to give the impression that the petitioner’s activities were energetic and fairly strenuous. Prom the undisputed testimony adduced, it is evident that the duties of the petitioner as a “water bo}^” only required his going to the pump for water three or four times a day. The motion pictures offered, sought to convey the impression that the petitioner was continuously walking to and from the pump. In this and other respects, they are patently misleading and afford me no aid in determining the facts or the reasonable inferences to be drawn from that portion of the testimony.

The moving pictures, if anything, tend to corroborate the petitioner’s testimony of his present physical incapacity with respect to engaging in any gainful occupation or vocation. Total disability within the meaning of the act does not require that the petitioner be bedridden or completely -unable to get about. The term “disability” is not restricted to such disabilities as impair present earning power at the particular occupation, but embraces any loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life. Everhart v. New Jersey Cleaning and Dyeing Co., 119 N. J. L. 104; Burbage v. Lee, 87 Id. 36; Pressey v. DeZeng Standard Co., 86 Id. 469; affirmed, 88 Id. 382; Burd v. Richardson & Boynton, 40 N. J. L. J. 84. Under the law of this state, it is not incumbent upon the petitioner to prove that he is absolutely helpless in order to obtain an award for total disability. Woodrow v. Travelers Insurance Co., 121 N. J. L. 170. Furthermore, the physicians who appeared for the petitioner have testified that he has been advised that he completely refrain from work. The impelling reason for his disregard of such advice can be gleaned from his testimony to the effect, “I had to do it, or I’ll starve.” I do not believe that the petitioner should be penalized for his honest, albeit unwise, efforts to thus engage in some activity in spite of nature’s demand that he desist. I can conceive of no less strenuous work than that of a “water boy” on a W. P. A. project. The fact that he has been so engaged does not in anywise warrant my disregarding the greater weight of the credible medical testimony that he is totally and permanently disabled.

The testimony is clear and convincing that the petitioner, prior to the accidental occurrence of March 19th, 1938, was free of symptoms of coronary disease and that after his unusual physical exertion on that day, symptoms thereof became manifest. I feel and so find that the unusual physical exertion in carrying the said plank up the stairway induced the acute heart strain with the resulting stretching of the muscle fibres beyond their limits of normal elasticity with a permanent change in their structure. The testimony is clear that the petitioner was gainfully employed at a task and actually working when the cardiac symptoms manifested themselves in that he was in the act of carrying a heavy timber up a flight of steps which of itself constituted a physical exertion. The coronary symptoms immediately followed the event to which the cardiac injury is ascribed and there was a continuity of symptoms from that event to the present date.

Compensation for total disability is properly due to an employe, who suffers an accidental strain of the heart, even though the heart was previously weakened by disease, and prior to the occurrence had no disabling effects on the employe, where the accident arises out of and in the coarse of the employment. Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; Hentz v. Janssen Dairy Gorp., 122 Id. 494. Considering the petitioner’s apparent good health and his unimpaired capacity for work prior to the unusual exertion of March 19th, 1938, in the light of the subsequent developments, it is inconceivable that the acute strain was not the causative agent of the ensuing disability. Kolesnik v. Irvington Varnish, and Insulator Co., 120 Id. 8.

$ $ H* $ H? $ 3*

(Eecital of medical evidence given by seven doctors has been deleted by the editor.)

As a result of the said accident, I find that the petitioner has sustained a permanent disability which I fix at one hundred per cent, of permanent total, for which he is entitled to receive compensation for a period of four hundred weeks.

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It is, therefore, * * * ordered, that judgment be entered in favor of the petitioner and against the respondent.

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And it is'further ordered, that upon the expiration of the four hundred week period hereinabove set forth, this petitioner shall be entitled to further benefits pursuant to the provisions of R. S. 34:15-12B.

John C. Wegneb,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SYLVIA CALASCIBETT, PETITIONER, v. HIGHWAY FREIGHT COMPANY, RESPONDENT.
    Decided February 20, 1940.
    For the petitioner, Sidney Finlcel.

    For the respondent, Walter W. Hubley.

   Petitioner is the widow of Antonio S. Calascibett, who was killed on August 24th, 1938, while he was operating a truck in the employ of the respondent, Highway Freight Company.

The facts in this case are not in dispute. Petitioner’s deceased husband was employed by respondent, Highway Freight Company, on May 17th, 1938, under an agreement for the. payment of wages by the trip, at the rate of $25 per trip. Decedent worked on long-haul trips to Buffalo and other long distance points for which the respondent paid him $25 a trip. Decedent commenced work on May 17th, 1938, at ten p. m., and continued to make regular trips in the respondent’s employ and worked to August 24th, 1938, eight a. it., when the accident occurred, resulting in his death. During said period he made twenty-one trips and earned $525 in pay.

Decedent was a member of the Teamsters and Chauffeurs Hnion, Local 478, and worked under a union agreement with respondent providing for six days as constituting an ordinary week.

The question presented in this case, is how, under the law, are decedent’s wages to be computed to determine the basis for the compensation to be paid? The statutory provisions for computing wages as applicable to this case, are as follows:

2 R. S. 34:15-37. Wages; Computation. “Wages, when used in this chapter, shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others. Board and lodging when furnished by the employer as part of the wages shall be included and valued at five dollars per week, unless the money value of such advantages shall have been otherwise fixed by the parties at the time of hiring. Where prior to the accident, the rate of wages is fixed by the output of the employe, the daily wage shall be calculated by dividing the number of days the workman was actually employed into the total amount the employe earned during the preceding six months, or so much thereof as shall refer to employer. Where the rate of wages is fixed by the hour, the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of the work involved. In any case the weekly wage shall be found by multiplying the daily wage by five, or if the employe worked a greater proportion of the week regularly, then by five and one-half, six and one-half or seven, according to the custom,ary number of working days constituting an ordinary week in the character of work involved. Five days shall constitute a minimum week.

There are two dependents, the petitioner, and a son, Bichard Thomas, who was born February 3d, 1935.

Both the attorney for the petitioner and the attorney for the respondent have submitted memorandum on the question of rate. They are both of the opinion that the decedent should be classified as a piece worker and the rate computed on that basis as provided in the aforementioned section of the statute.

I do not agree with either of them in their placing the decedent in the classification of a piece worker.

Standard dictionaries define a piece work as “work done or paid for by the piece or quantity.”

The earning based upon the output of an employe depends upon -his capacity, skill, success or good fortune. Our statute provides for the procedure to be followed to compute the rate applicable. But in my opinion this provision is not applicable here.

An exhaustive search of the cases of this state and of sister states, do not reflect any case synonymous with the one sub judice. In O’Donnell v. South Fayette School District, 161 Atl. Rep. 887, where an employe was allowed $10 to clean a school room and there was evidence that the labor agreed to could be performed in three days, it was held not error to base weekly rate at $20.

Decedent’s rate was not based upon the output but based upon the time to complete a particular trip.

A careful study of the payroll record reflects that the average trip took approximately three days to complete. On a six-day week, decedent could complete two trips. His rate per trip was $25 and his weekly earning capacity would then be fifty dollars ($50) per week.

I am, therefore, holding that compensation should be based upon a wage of $50 per week and am awarding compensation as follows:

Forty per cent, of $50 per week, based upon two dependents, or $20 per week for three hundred weeks from August 24th, 1938.

Thirty-five per cent, of $50 per week or $17.50 per week from expiration of three hundred weeks to February 2d, 1951, when Bichard Thomas will be sixteen years of age.

This award is subject to modification as provided by the act in case of remarriage or death of widow before expiration of three hundred weeks or death of Eichard Thomas at any time prior to his attaining the age of sixteen.

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It is, therefore, * * * ordered, that judgment be entered in favor of the petitioner and against the respondent as aforementioned.

John C. Wegner,

Deputy Commissioner.