author: Hartshosne, J.

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF SOPHIE C. FORCE, DECEASED.
    Decided April 26, 1945.
    Proctor for the estate of Sophie C. Force, Fred W. Gaston (William A. Sumner, of counsel).
    Proctor for Edna Dewey Timson, Richard R. Fisher.

    Proctors for the next of Mn of Mary W. Potter, Hobart, Minwrd & Cooper (Ralph F. Cooper).

   Hartshosne, J.

The question here is whether or not the children of Mary W. Potter, decedent’s sister, take a specific legacy of $5,000 left in the will “to my sister Mary W. Potter,” together with one-fifth of the residue of the estate, in view of a residuary bequest of “one share to my sister Mary W. Potter.” This question is raised by the fact that Mary W. Potter had not only predeceased the decedent, Sophie C. Force, bnt had died before she executed her will. More specifically, the issue is whether the statute (R. S. 3:2-18; N. J. S. A. S :2-18) applies in favor of the named legatee’s children, when their mother died before the will was made, since all admit the act would apply if she had died subsequent to the making of the will, but before the testatrix’ death.

The act is as follows:

“When a devise or bequest is made by will to a child or other descendant of the testator or to a brother or sister or any descendant of a brother or sister of the testator, and such devisee or legatee shall, during the life of the testator, die testate or intestate leaving any child or any descendant of a child of such devisee or legatee surviving the testator, such devise or legacy shall not lapse but shall vest in any such child or descendant of a child of such devisee or legatee as if such devisee or legatee had survived the testator and died intestate; but this section shall not apply where the testator shall by the will or codicil thereto, or other instrument, have otherwise directed in regard to the'children or descendants of such devisee or legatee.”

The present Revision is, in substance, the same as the previous act, enacted first in 1824 (Elm. Dig. 601) as amended in 1887, to cover brothers and sisters of the testator in addition (Revision, p. 1246, § 22).

While the above issue was dealt with in the case of Murphy v. McKeon, 53 N. J. Eq. 406; 32 Atl. Rep. 374, it is urged that the consideration of the matter there was but dictum, in view of the fact that the statute for other reasons was there held to be inapplicable. Both because of this and because of the fact that there is a definite divergence in the authorities throughout the country on this specific point, the issue must be considered further.

The prime purpose of the statute in question, and that of the similar enactments throughout this country and England, has been repeatedly stated to be the normal, and, therefore, presumed, intention of the testator to protect the close relatives of the deceased named legatee. Murphy v. McKeon, supra; Beardsley v. Wright, 89 N. J. Eq. 58; 103 Atl. Rep. 809; Winter v. Winter, 5 Hare 306. This purpose would clearly be defeated, were the statute to be construed as inapplicable. Eor the legacies to Mrs. Potter, instead of going to her children, would under such circumstances largely, if not entirely, go elsewhere.

Furthermore, our statute, particularly in its last clause, clearly evinces the purpose of effectuating the actual intent of the testator in any particular will, such being, indeed, the cardinal purpose of the statute of wills, as a whole. Turning to the will in question, we find that the actual intent of testatrix, for which the statute in question has regard, was in fact to protect the close relatives of Mrs. Potter and that this actual intent would be defeated, were the statute held inapplicable. Such was the view of the Court of Chancery as to the similar provisions of the will involved in the case of Dildine v. Dildine, 32 N. J. Eq. 78. Though the court could not there effectuate such actual intent, since the statute, as it then existed, before its present amendment, did not cover the devisees’ sisters named in the will. That this was our testatrix’ actual intent is made more clear, when we consider how meaningless, would be the language of the will in this regard, if testatrix’ intention had been otherwise.

Such other contention is that the specific legacy of $5,000 “to my sister Mary W. Potter” is nullified, the money going instead to the testatrix’ five named residuary legatees, one of whom was Mary W. Potter. But, if such was her intent, this intent would h&ve been most simply effectuated by omitting this specific legacy “to my sister Mary W. Potter” entirely, whereupon its amount would have fallen into her residuary estate, as above, of its own force. In short, the contention that the statute does not apply makes the words of testatrix as to the specific legacy to Mrs. Potter pure surplusage.

Turning to the residuary clause, this same contention requires the nullification of the one-fifth share “to my sister Mary W. Potter,” increased as it is by $1,000 apportioned as above and requires its distribution either among the four other residuary legatees or among testatrix’ next of kin as on intestacy. If the former, then again as in the case of the specific legacy, the testatrix’ inclusion of the residuary clause in favor of Mrs. Potter becomes surplusage, since, if such clause had been omitted entirely, such share would go, of its own force, to the other four residuary legatees. On the other hand, if Mrs. Potter’s residuary share goes, as contended, to testatrix’ next of kin, it would certainly have been more clear, direct and natural for decedent to have said so in so many words, than to have used words apparently to the express contrary, i. e., that one-fifth should go “to my sister Mary W. Potter,” and this regardless of the resultant “intestacy which the law abhors.”

In short, the contention that the statute does not apply is based upon the assumption that the testatrix used words in her will which were either utterly meaningless or utterly contrary to what those words would mean to the ordinary man, and this not once, but twice. This clearly indicates that such a construction of the will is contrary to the intention of the testatrix in fact, for which the statute in question has regard, as well as contrary to its prime purpose—the protection of the close relatives of the named legatee.

The only reason advanced for this violation of this cardinal purpose of the statute is because of the technical common law distinction between void and lapsed legacies, a distinction which the statute does not express in words, and which many decisions, both in this and other jurisdictions, disregard. After all, it is the actual intent of the legislature which is the crux. And surely, it stretches the imagination to the breaking point to conclude that the legislature, composed in the main of laymen, had in mind when it enacted the statute this technical, esoteric, common law distinction, not stated in words, rather than what is admitted to be the prime purpose of the statute, i. e., the protection of the close relatives of a legatee who died “during the life of the testator.” Of course, since the law is made for man, not man for the law, it is generally desirable, in case of ambiguity in the meaning of words used by the man on the street, to resolve such doubt in accord with the intent of the man on the street rather than in accord with any fine-spun artificiality of the profession.

In addition, this protection of the named legatee’s descendants is equally essential whether the legatee died during that portion of testator’s life, which preceded his making the will, or during that portion of his life which succeeded his making the will. In fact, this contention as to such differentiation, básed as it is on the time of making the will, disregards the basic ambulatory character of wills which makes the date of death the important factor. That being so, as long as the beneficiary’s death occurred previous to the testator’s death, the legal result should be the same iu order to effectuate the intention of the statute, regardless of whether the beneficiary’s death occurred before or after the unimportant date when the will was made. See, similarly, Varick v. Smith, 69 N. J. Eq. 505-513; 61 Atl. Rep. 151.

Moreover, “testatrix is presumed to have framed her will with the statutory regulations in mind.” In re Wintermute, 97 N. J. Eq. 289; 127 Atl. Rep. 318. And it has already been held that when a testator made this statutory intent his own, by the words of his will, the issue of one dying before the testator executed his will took thereunder. Outcalt v. Outcalt, 43 N. J. Eq. 500; 8 Atl. Rep. 532. Surely the same rule should apply whether testator’s intent, identic in both instances, was actual, as In the will, or presumed, as in the statute.

Indeed, the Dildine case, supra, adds a further reason, from the historical standpoint, to show that the legislative intent of the statute in question was to protect the close relatives of the named legatee who pre-decoased testatrix, regardless of the particular time they died. For as noted, the court was compelled in the Dildine ease to violate testator’s actual intent, due to the statute’s omission to cover testator’s sisters, and it was but a few years after the Dildine decision that the legislature extended the act to cover this very point by the above amendment of 1887. It is certainly reasonable to assume that this amendment of the act to substantially its present form, so closely following tho publication of the Dildine opinion, was for the purpose of remedying the situation in that case. Yei^ in the Dildine ease “the testator’s sisters, Martha and Abigail, were dead when the will was made.” (Dildine v. Dildine (at p. 80). In other words, the history of the situation shows that the legislature intended the present act to apply to the situation in the case at bar.

Turning to the authorities elsewhere, we find tho greater weight supports the same conclusion. While California, Maryland, Oklahoma and South Carolina are to the contrary, Illinois, Iowa, Maine, Massachusetts, Missouri, Virginia and Rhode Island are in accord, Rhode Island in fact having changed from the contrary rule. Compare Windsor v. Brown, 48 R. I. 200; 136 Atl. Rep. 434, with Almy v. Jones, 17 R. I. 265; 21 Atl. Rep. 616; 4 Page, Wills (3d ed.) 203, § 1434; Lewis v. Corbin, 195 Mass. 520; 81 N. E. Rep. 248. Moreover, the courts of England, for which our courts justly have such regard, in construing a substantially similar statute, are in full accord with the reasoning, if not the holding, of our Court of Chancery in the case of Murphy v. McKeon, supra. (See not only the decisions there cited, but Wisden v. Wisden, 2 Sm. G. 396, and the more recent case of Re Stansfield, L. R. 15, Chancery Div. 84.) Again, “Although it is universally admitted that the statutes for the protection of lapses are subject to defeat by proof of a contrary intent, the intent must be clearly proved, and all doubts are to be resolved in favor of the operation of the statute.” 92 A. L. R. 848, n., and eases cited. In view of the fact that the well-reasoned opinion in Murphy v. McEeon, delivered by a jurist of such eminence as the late Chancellor McGill, has stood unquestioned in this state for a full half century, its conclusion would seem to approach closely to the authority of a binding decision. In any event, its principle has been so long accepted by the profession as governing property rights throughout this state, that its reversal now would be most unsettling to our citizens. Clapp, Wills, 183, § 113.

The authorities which deal with devises to a class, as distinguished from those to a named beneficiary, would seem inapplicable, as there is a special reason for holding the statute not to apply thereto. Trenton Trust Co. v. Sibbitts, 62 N. J. Eq. 131; 49 Atl. Rep. 530; Security Trust Co. v. Lovett, 78 N. J. Eq. 445; 79 Atl. Rep. 616. Eor does the fact that testatrix made specific bequests to Mrs. Potter’s children bring the situation within the statutory proviso where it “shall not apply.” By such bequests testatrix has not “otherwise directed in regard to the children or descendants of such devisee or legatee” within the meaning of the statute. Ryder v. Myers, 113 N. J. Eq. 360—367; 167 Atl. Rep. 22.

Since on both reason and authority the statute applies to the situation here, where the beneficiary pre-deceased not only the testatrix but the making of the will, the distribution of both the specific and residuary legacies, made by testatrix “to my sister Mary W. Potter,” will go to her descendants as if Mary W. Potter had died intestate.


source: Caselaw Access Project

author: Kinkead, C. C. J.

license: Public Domain

text:
    Monmouth County Circuit Court.
    IN THE MATTER OF THE CONTEST OF THE ALLEGED NOMINATION OF ROLAND J. HINES TO THE OFFICE OF COUNCILMAN OF THE CITY OF ASBURY PARK, IN THE COUNTY OF MONMOUTH AND STATE OF NEW JERSEY.
    Decided April 18, 1945.
    For the petitioners, Ward Kremer.

    For the respondent, Haydn Proctor, John M. Pillsbury and Nelson Ehrlich.

    For the City of Asbury Park and the city clerk, Charles Frankel.

   Kinkead, C. C. J.

The respondent, Koland J. Hines, on February 17th, 1945, filed a petition of nomination with the city clerk of Asbury Park as a candidate for the office of councilman at the municipal election which will be held in Asbury Park on May 8th, 1945.

The petitioners, on March 16th, 1945, filed a petition contesting the right of respondent to be nominated on the ground that he was not a resident of Asbury Park at the time of his nomination and that he has actually resided in the Borough of Interlaken, New Jersey, since December, 1943, and is thereby disqualified by the provisions of R. S. 40:81—1; N. J. S. A. 40:81-1, from holding public office in Asbury Park.

The respondent moves to strike the petitioners’ petition and contends, inter alia, that the right afforded by R. S. 19:29-l, et seq.; N. J. S. A. 19 :29-l, et seq., to contest the nomination of a candidate for public office is applicable only to a candidate who is nominated at a primary election, as distinguished from one (as in the instant case) who is nominated by the filing of a petition of nomination.

The legislative intent is to be gleaned from all the provisions of an enactment, taken and compared together. Ursi v. County Employees, &c., Essex, 120 N. J. L. 52; 197 Atl. Rep. 744.

R. S. 19 :29-1; N. J. S. A. 19:29-l, provides that the nomination of any person to any public office may be contested, and specifies the different grounds on which a contest may be based. The ground on which the nomination of the respondent is contested is set forth in subdivision (i), which provides that a contest may be initiated “when a petition for nomination is not filed in good faith or the affidavit annexed thereto is false or defective.”

R. S. 19:29-2; N. J. S. A. 19:29-2, provides substantially that the contest shall be commenced by the filing of a petition, signed by at least fifteen voters, with the clerk of the Circuit Court in the county where the contest is to take place.

R. S. 19:29-3; N. J. S. A. 19:29-3, is as follows: “The petition contesting any nomination to public office * * * shall be filed not later than ten days after the primary election. * * (Italics supplied.)

Neither in R. S. 19 :29—3; N. J. S. A. 19 :29-3, nor in any other section of the enactment is any provision made for the contest of a nomination by petition as distinguished from a nomination by primary election.

Furthermore, it is appropriate to note at this point that when R. S. 40:84-5; N. J. S. A. 40:84-5, was originally enacted, it provided that a candidate for public office whose nomination was effectuated by the filing of a petition of nomination had to file his petition of nomination at least fifteen days prior to the election. (This statute was amended by the 1945 legislature, N. J. S. A. 40:84-5, in order to allow ample time for the mailing of ballots to our armed forces, and petitions of nomination must now be filed at least seventy-five days prior to the election.)

The tíme limit for filing as originally enacted has a bearing on the legislative intent when the statute which fixes the timo fox the hearing of a contest is considered. R. S. 19 :29-4; N. J. S. A. 19:29-4, provides: “The court shall appoint a suitable time for hearing such complaint, not more than thirty nor less than fifteen days after the filing of the petition. * *

It follows that during the many years that the fifteen-day filing limit was in effect, it would have been impossible for the court to hear and decide before the election actually took place the contest of the nomination of a candidate who filed his petition of nomination on the last day that filing was legally permissible.

It is therefore reasonable to assume that if the legislature had intended that &. 8. 19:29—1, et seq.; N. J. S. A. 19 :29-l, et seq., should afford the right to contest a nomination by petition as distinguished from a nomination by primary election, it would have stated such intent in clear and unmistakable terms. Tailing that, the legislature would most certainly have designated such a time limit for filing a nomination by petition as would have enabled the court to have sufficient time to hear and decide the contest in an orderly manner before the advent of the ensuing election.

Mr. Justice Heher, speaking for the Supreme Court, in Singer Sewing, &c., Co. v. The New Jersey Unemployment, &c., 128 N. J. L. 611 (held at p. 616); 27 Atl. Rep. (2d) 889, 893: “The intent of the law-making body is to be found in its language; and while the letter of the enactment is not always controlling, the meaning thus expressed is not to be enlarged or modified unless the context reveals strong justification therefor. Where the legislative design is stated in clear, certain and unambiguous language, there is no room for construction. A judicial modification of the purpose thus signified would constitute the exercise of the legislative function. Departure from the literal import of the terms employed to declare the legislative object is warranted only to effectuate the intention evident from a view of the whole law and other laws in pari materia

A comparison of all of the provisions of R. S. 19:29-1, et seq.; N. J. S. A. 19:29-1, et seq., and R. S. 40:84-5; N. J. S. A. 40:84-5 (as originally enacted) leads to the inescapable conclusion that the legislative intent was to limit the contest of any nomination to those candidates who are required to be nominated at a primary election.

Respondent’s motion to dismiss the petitioners’ petition is therefore granted, and an appropriate order may be submitted.


author: Caeerey, 0. C. J.

text:
    Essex County Circuit Court.
    ALBERT SCHWARTZ AND DOROTHY SCHWARTZ, PLAINTIFFS, v. MARIETTA DELL’OSSO, DEFENDANT.
    Decided April 27, 1945.
    For the plaintiffs, Harry Levin.

    For the defendant, Joseph A. D’Alessio.

   Caeerey, 0. C. J.

This is a motion to strike part of an amended complaint. The original complaint filed in this cause, under date of April 26th, 1944, contains sixteen counts and the plaintiffs sought to recover the amount of $50 under each, count, alleging a violation of the Emergency Price Control Act, beginning as of March, 1942, until July, 1943.

That part of the statute under which plaintiffs pursued their remedy and which is pertinent, so far as this case is concerned, provides generally that any action may be brought in any court of competent jurisdiction “and shall be brought within one year after * * * rent is paid.”

All of the demands were not justified due to the limitations mentioned in section 205-e. The plaintiffs, evidently perceiving their difficulty, obtained an order from Judge William A. Smith on the 31st of May, 1944, with respect to the first thirteen counts, with leave to the defendant to renew objection to the amended complaint.

Briefly stated, the basis of the claim is this: that on March 1st, 1942, the maximum rental provided under the Emergency Price Control Act for the premises in question was $50 a month and that, in violation of the regulations, the landlord charged $53 a month.

They now seek the return of $3 excess rent paid for ten months on the specific ground that the landlord’s act was illegal and, regardless of the procedure and the remedy provided for under the Emergency Price Control Act, supplemented by Begulation 28 of the Office of Price Administration, the landlord was unjustly enriched to the extent of the $3 rental charge for the ten months.

The questions raised by this motion are these:

First, assuming that the $3 over-charge is above the rental permitted as of March 1st, 1942, may the plaintiffs recover these overcharges as a matter of right under the common law ?

Second, should section 205-e, providing for treble damages or for the recovery of $50 for each violation, depending upon which amount is the greater, be disregarded so as to enable the plaintiffs to sue for each overcharge in an action in assumpsit ?

There is some conflict of authority as to whether the statute is penal or remedial. However, that question has been settled in New Jersey by force of the opinion of Mr. Justice Case in Beasley v. Gottlieb, 131 N. J. L. 117; 35 Atl. Rep. (2d) 49, wherein it was held that the suit “is a suit of a ‘civil’ nature, remedial of a private wrong and therefore not ‘penal,’ but is a private suit for a private wrong * *

With respect to remedial statutes, our Supreme Court held in West Jersey and Seashore Railroad Co. v. Public Utility Commissioners, 8 N. J. Mis. R. 899; 152 Atl. Rep. 378, that liberality in construction of a remedial statute cannot be extended to a point of reading into the statute powers which its plain language does not give.

Taking the pleaded facts and the analysis of the statute by Mr. Justice Case that a suit for an overcharge is a private wrong, it has to be determined whether or not the payment of the $3 overcharge is in itself a “private wrong” justifying the plaintiff’s suit in assumpsit for the recovery of the alleged excessive charges of $3 a month.

There seems to be no dispute that the plaintiffs paid the defendant the rent exacted by the defendant voluntarily and received full value in return. There is no suggestion of fraud or overpayment above the agreed rental. It is clear in this posture of the case that, without the enactment of the Emergency Price Control Act, the plaintiffs would not have a semblance of a right. Therefore, it follows whatever right the plaintiffs have must spring from the act itself. The act provides the right and also the remedy.

Much stress has been placed on the doctrine that this statute, being remedial, must be given a liberal construction in order to effectuate the purpose of the act. It is also argued by the plaintiffs that they have a common law right and such right may be asserted through the medium of this statute, although admittedly only part of it can be utilized. Of course, there is no question about the rule that a remedial statute is entitled to receive a liberal construction, Haggerty v. Central Railroad Co., 31 N. J. L. 349; State v. Norton, 23 Id. 40. See, also, Crittenden v. Wilson, 5 Cowen (N. Y.) 165.

In keeping with their contention that they have a common law right, the plaintiffs argue that the statute is in derogation of their common law right, that such statutes are strictly construed, and that an inference is not to be drawn that the legislature intended to alter the common law principles further than, is clearly required. In substance, this is the language used in State v. Donovan, 129 N. J. L. 486; 30 Atl. Rep. (2d) 421. The difficulty lies in accepting the plaintiffs’ premise that the $3 a month overcharge constitutes a common law violation.

As I read the statute, whatever right the plaintiffs have flows from the statute itself and, without its application, no right of recovery would exist at all. Therefore, the limitation is one affecting the right as distinguished from one merely affecting the remedy. It is somewhat analogous to a suit under our statute justifying recovery for wrongful death.

In the case of Loewy v. Gordon, 129 App. Div. 459; 114 N. Y. S. 211, Mr. Justice Woodward, speaking for the court said :

“When a statute giving a privilege unknown to the common law, or enlarging a privilege, authorizes something to be done in the manner therein prescribed, it by necessary implication forbids that it shall be done in any other way, even though that other way should be just as good or better.” See, also, Pollard v. Bailey, 87 U. S. 520; 22 L. Ed. 376. Mr. Chief Justice Waite said:

^The liability and the remedy were created by the same statute. This being so the remedy provided is exclusive of all others. A general liability created by statute without a remedy may be enforced by an appropriate common law action. But where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that aloné must be employed,” and see Black on Interpretation of Laws (2d ed.) 367, et seq. Also see Cases on Interpretation of Statutes, Part 3, ch. 2, by Professor Frederick J. de Sloovere.

Mr. Chief Justice Green, speaking for the Supreme Court in the ease of City of Camden v. Henry Allen, 26 N. J. L. 398, and discussing a suit for the payment of taxes, which was instituted by an action of debt, held that where the statute provides another method of recovery, it can only be collected in the mode prescribed by our statute. He quoted from Stevens v. Evans, 2 Burrowes 1152, “that, upon a new statute, which prescribes a particular remedy, no remedy can be taken but tbe particular remedy prescribed by the statute.” In the same ease he also discussed United States v. Lyman, Fed. Cas. No. 15,647, 1 Mason’s C. C. R. 481:

“It was argued by the defendant’s counsel, that wherever a right is given by statute, and no remedy pointed out by which to enforce it, that there an action of debt at common law will lie; but that, wherever any remedy is provided by statute, such remedy is an exclusion of all other, and must be adopted * * *. And Mr. Justice Story, in delivering his opinion, fully admitted the principle. He said: ‘Where the debt arises by statute, an action or information of debt is the appropriate remedy, unless a different remedy be prescribed by the statute.’ ”

The plaintiffs in this action concede that they cannot recover the $50 or treble damages for the months mentioned in this paragraph under the Emergency Price Control Act by reason of the limitation thereof. To me it is manifest that their inability to apply the statute in that situation debars them from recovering their claim of $3 a month from July, 1942, to April, 1943, inclusive, which of necessity arises only by force of the same statute.

I hold that the statutory remedy is exclusive and, therefore, the counts presented by the amended complaint, seeking the recovery of $3 a month for ten months, will be stricken.


author: Evans, D. C. J.

text:
    District Court of the Second Judicial District of the County of Monmouth.
    EVELYN T. WALKER, PLAINTIFF, v. GEORGE R. STENECK, DEFENDANT.
    Decided April 27, 1945.
    For the plaintiff, David M. Kirsch.

    For the defendant, Milton A. Stein.

   Evans, D. C. J.

This action is upon a state of demand in tort claiming damages for loss of earnings and various moneys expended in medical treatment, including doctor’s bills. A notice of special appearance and intention to move for a dismissal of the suit on the ground that the cause of action is barred by the statute of limitations was filed by the attorney for defendant. The question raised on the hearing of the motion was; is the action barred by the statute of limitations ?

The summons was issued December 11th, 1944, the date of the alleged negligence as set forth in the state of demand is May 23d, 1942.

Counsel for plaintiff in his memorandum draws aside the legal veil and states that the real party in interest is the Hartford Accident and Indemnity Company and expresses his intention that this cause of action will be amended to so indicate, or, if an amendment is not possible, that a new action be instituted in that manner. One hearing has been had upon the motion and in order to avoid protracted hearings or unnecessary litigation I shall assume for the purpose of this decision that counsel for plaintiff has so amended his state of demand by and with the consent of court. The captioned' plaintiff it is alleged sustained injuries in an automobile accident on May 23d, 1942, and subsequently was awarded compensation in an informal hearing in the Workmen’s Compensation Court. In addition thereto doctors and hospital bills were paid by the real plaintiff, the employers insurance carrier. It is stated in the memorandum for plaintiff that proper notice had been sent to the defendant in accordance with the Workmen’s Compensation Act of New Jersey, which I assume is N. J. S. A. 34:15-40. Plaintiff contends that this action is governed by the ruling of Fryer v. Mt. Holly Water Co., 87 N. J. L. 57; 93 Atl. Rep. 679, and not by Smith v. Red Top Taxicab Corp., 111 N. J. L. 439; 168 Atl. Rep. 796.

Fryer v. Mt. Holly Water Co., supra, held that the statute of limitations for personal injury actions (then Comp. Stat., p. 3162, now N. J. S. A. 2:24-2) applied only to an action by the person injured, or on his behalf, for damages resulting to him from the wrongful act of the defendant and that therefore the claim of the father for loss of services and other expenses resulting from the injury to her was not within the two year statute of limitations since the right of the father was based upon a violation of his property right.

Smith v. Red Top Taxicab Corp., supra, held that loss of earnings and disbursements for physician’s services, &c., cannot be classified as damage to property but the result of personal injuries and prevented plaintiff from splitting the cause of action.

The substituted plaintiff secures its rights to reimbursement by virtue of N. J. S. A. 34:15—40 which says: “When an injured employee or his dependents fail within one year of the accident to either effect a settlement with or institute proceedings for recovery of damages for his injuries and loss against the third person or corporation, the employer or his insurance carrier, ten days after a written demand on the injured employee or his dependents, can either effect a settlement with or institute proceedings against the third person or corporation for the recovery of damages for the injuries and loss sustained by suelt injured employee or Ms dependents and any settlement made or proceedings had and taken by such employer or his insurance carrier against such third person or corporation, and such right of action shall be only for such right of action that the injured employee or his dependents would have had against the third person or corporation, and shall constitute a bar to any further claim or action by the injured employee or his dependents against the third person or corporation. The legal action contemplated herein above shall be a civil action at law in the name of the injured employee or by the employer or insurance carrier in the name of the employee to the use of the employer or insurance carrier, or by the proper party for the benefit of the next of kin of the employee.”

The very wording of the statute from which the substituted plaintiff secures its rights restricts it to the right of action that the enjured employee had or in other words a violation of her personal rights. It could possibly be termed statutory subrogation. The substituted plaintiff in this instance would be subject to the same defenses as were available against the injured employee and therefore the statute of limitations would be that of N. J. S. A. 2:24-2. Motion to dismiss granted.


author: Haktshobne, 0. P. J.

text:
    Essex County Court of Common Pleas.
    IN THE MATTER OF THE APPLICATION OF ANGELO MARINO FOR AN ORDER TO VOTE.
    Decided May 7, 1945.

      For the Superintendent of Elections, Lester E. Mohr.

    For the applicant, Michael A. Santa Maria.

   Haktshobne, 0. P. J.

Applicant has been placed on the so-called “Order List” by the Superintendent of Elections of Essex County which thus prevents his voting (R. S. 19:32-16; N. J. S. A. 19:32-16) in the forthcoming Newark city election, May 8th, 1945. This was on the ground that he was convicted of the crime of conspiracy, August 10th, 1942, in the United States District Court for the District of New Jersey, sitting at Newark. He now applies to this court for an order permitting him to vote (R. S. 19:32—18; N. J. S. A. 19:32-18), contending that the above .does not constitute just cause for placing him on the Order List. The diligence of counsel has not revealed any previous decision in this state on this point involving the construction of the State Constitution.

The determinative question is the true meaning of the applicable provisions of the New Jersey Constitution (N. J. S. A.) and the statutory enactments thereunder which, so far as pertinent, are as follows:

“Article II, Eight of Suffrage:

“Every * * * citizen of the United States, of the age of twenty-one years, who shall have been a resident of the State one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for aE officers that are now, or hereafter may be elective by the people; provided, that no person in the military, naval, or marine service of the United States shall be considered a resident in this State, by being stationed in any garrison, barrack, or military or naval place or station within this State; and no pauper, idiot, insane person, or person convicted of a crime which now excludes him from being a witness unless pardoned or restored by law to the right of suffrage, shaE enjoy the right of an elector; * * *.” Paragraph 1.

The statutory provision is as follows:

“Except as provided in sections 19:4r-2 and 19:4-3 of this title, every person possessing the qualifications required by Article II, Paragraph 1, of the Constitution of the State of New Jersey, as modified by the nineteenth amendment to the Constitution of the United States, and having none of the disqualifications mentioned in Article II, Paragraph 1, of the Constitution of the State of New Jersey, and being duly registered as required by this title, shall he entitled to vote in the polling place assigned to the election district in which he actually resides, and not elsewhere.” (R. S. 19 :4-1; N. J. S. A. 19:4-l.)

In the first place, it should be noted that it is the “Right of Suffrage” which is involved and, specifically, the qualifications and disqualifications of an “elector” or voter, as distinguished from provisions punishing for crime, which appear elsewhere in the Constitution (Articles I and VI).

In the next place, the very first line of the above constitutional provision shows that the people of the State of New Jersey, in adopting it, had in mind not alone New Jersey matters, but federal matters—the question of whether or not the would-be voter was qualified as a “citizen of the United States.” This provision may well have been inserted both so as not to restrict the right of suffrage unduly to those bom in New Jersey, as distinguished from those who have since moved here, and also because voters in New Jersey, so qualified, vote.for federal offices as well as state and local offices by virtue of the provisions of the federal constitution (Article I, section 2). But regardless of the reason, it is important to note that this provision of our constitution refers, with reason, to the status of New Jersey citizens at federal law as a ground for their qualification or disqualification as voters.

We turn, then, to the other constitutional disqualifications above quoted. Those include not merely a “person convicted oC crime * * *” hut also a “pauper, idiot, insane person.” Clearly, the purpose of this one clause, setting forth all such disqualifications together, was not to invoke a punishment or a penalty—on an insane person, for instance—but was, in accordance with the then viewpoint of the State of New Jersey, to maintain the purity of our elections by excluding those would-be voters whose status was deemed to be inimical thereto. And such has been the construction applied to similar constitutional provisions in other states. “The manifest purpose of such restrictions is to preserve the purity of elections. The presumption is that one rendered infamous by conviction of felony or other offense indicative of moral turpitude is unfit to exercise the privilege of suffrage. The exclusion must, for this reason, be regarded as a mere disqualification imposed for protection and not for punishment, as the withholding of a privilege, and not the denial cf a personal right.” 18 A. J., Elections, 230, § 80; 29 C. J. S., Elections, 58, § 33.

Our own courts have clearly recognized the reality of this difference between imposing a punishment on an individual and protecting the public by preserving the proper character of its voters and of its holders of public office. State v. Jefferson, 90 N. J. L. 507, 509; 101 Atl. Rep. 569; Walsh v. Trenton, 117 N. J. L. 64, 70; 186 Atl. Rep. 818. That such was the intent of the New Jersey Constitution is made more clear by the fact above alluded to, that this constitutional provision appears under the “Eight of Suffrage,” not among the provisions covering punishment for crime.

But it is not every crime, a conviction of which disqualifies by the above constitutional clause. The pertinent disqualification provision is of “a person convicted of a crime which now excludes him from being a witness,” subject to other conditions here immaterial. And this clause, by the use of the word “now,” refers to the time of the adoption of the constitution on September 2d, 1844. At that time the ancient statute of June 7th, 1799 (Pat. Laws 401) was still in effect, which provided that no person convicted of blasphemy, treason, murder, piracy, arson; rape, sodomy, or any infamous crime against nature, bigamy, robbery, conspiracy, forgery, or larceny above the value of six dollars shall be admitted as a witness unless first pardoned; and no person convicted of perjury or subornation of perjury shall be admitted as a witness although pardoned. Since the constitution thus refers to this particular category of crimes and. its intent was to maintain the purity of our elections, rather than to punish or penalize, it is evident that this act of 1799 was used as a convenient standard of. reference of the kind of disqualifying crimes referred to in the constitution, without listing them therein at length. In short, so far as here applicable, the pertinent constitutional provision, in substance, means that “no person convicted of the crime of conspiracy shall enjoy the right of an elector.”

That this is the true meaning of this constitutional clause, and not that same refers only to a crime which, in fact, “excludes him from being a witness,” is clear. For to-day, no crime, committed in New Jersey, for which a defendant is convicted in a court of the State of New Jersey, excludes the person convicted from being a witness. The Paterson Law of 1779 was repealed in 1874 by an act effective January 1st, 1875 (Gen. Stat., p. 3194, pl. 25, 29; Id., p. 3775, pl. 77). State v. Henson, 66 N. J. L. 601-604; 50 Atl. Rep. 468, 616. Thus, a construction that would make a disqualifying crime one which, in fact, excludes the one convicted from being a witness, nullifies that entire constitutional clause and renders its words mere surplusage, a construction which cannot be adopted if any other is reasonably open. Thus, such clause can only mean that a crime disqualifies which is of the hind which, at the time of the adoption of the constitution, excluded him from being a witness.

We come now to the crucial question, i. e., whether such conviction for conspiracy means only a conviction in the New Jersey state courts and not a conviction of the same crime in the federal courts sitting in New Jersey. Three reasons at once suggest themselves why our citizens could not reasonably have intended to disqualify, as a voter, a fellow citizen convicted of conspiracy in the state courts and, at the same time, permit another citizen to vote who was convicted of the same crime in the federal courts in New Jersey. The first is that to do so would violate the major purpose of this very provision of the constitution of maintaining the purity of the ballot. Surely, one’s character is equally tainted by a conviction of the crime of conspiracy under the same social conditions in the same state, whether rendered in a court sitting under the aegis of the federal, or of the state, authorities.

In the next place, even so far as regards the relatively minor effect upon the convicted person himself in his being prevented from voting, it would be clearly unjust to prevent the conspiracy convict in the state courts from voting and, at the same time, to permit the conspiracy convict in the federal courts, living perchance next door, to east his vote.

In the third place, the courts of this state have construed the same words in the very statute substituted for the ancient act of 1799, above quoted, in accord with this view. In 1874, at the very time the old act of 1799 was repealed as above, the legislature passed an act that “no person offered as a witness * * * shall be excluded by reason of his having been convicted of crime, but such conviction may be shown for the purpose of affecting his credit.” (Gen. Stat. 1397, § 1.) The purpose of this change was clearly to change the previous effect of convictions of crimes, not the category of such convictions. These words, “convicted of crime,” in such statute were specifically held to mean “any crime.” State v. Henson, supra. These latter words, “convicted of crime,” have remained in our law down through 1937 when the Revision incorporated the- very words of the Henson decision by using the words “any crime.” These words, “convicted of crime,” have consistently been held, from 1875 to date, by the courts of New Jersey, to cover convictions of crime in any jurisdiction, federal or state, domestic or foreign. Brown v. State, 62 N. J. L. 666, 694; 42 Atl. Rep. 811; State v. Rombolo, 89 N. J. L. 565, 568; 99 Atl. Rep. 434; State v. Metalski, 116 N. J. L. 543; 185 Atl. Rep. 351. Surely, the meaning of the very words used in a statute taking the place of the act of 1799, which the above constitutional clause uses as its standard of reference, should be applied to these same words as they appear in that constitutional clause itself. In addition, in the recent case of Schireson v. State Board of Medical Examiners, 130 N. J. L. 570; 33 Atl. Rep. (2d) 911, the situation involved the question whether a conviction in the federal courts, sitting in the State of Pennsylvania, constituted a conviction of “crime involving moral turpitude.” While this point was not directly decided, it is evident from the opinion in the ease that our highest court considered the applicant, there convicted in such federal court, to have been “convicted of crime.”

In short, to hold that our citizens in fixing the standards of a would-be voter’s character, which would disqualify him, intended to permit a man to vote when convicted of crime in the federal court, hut intended to deny this right to a man convicted of the same crime in the same city in a state court, would he “anomalous, illogical and unjust,” as the state court of Indiana held in construing a similar provision of that state’s constitution. Crampton v. O’Mara, 193 Ind. 551; 139 N. E. Rep. 360. Indeed, the only decisions there are in this country on this exact point, of the effect of a constitutional provision as to the conviction of crime as a disqualification for voting, all support the above view. State v. Sartorius, 351 Mo. 1237; 175 S. W. Rep. (2d) 787; State v. Langer, 65 N. D. 68; 256 N. W. Rep. 377; State v. Vogel, 65 N. D. 137; 256 N. W. Rep. 404.

Though involving somewhat differing situations, hut yet the effectuation of an express public policy of the state involved, see, also, Irby v. Day, 182 Ark. 595; 32 S. W. Rep. (2d) 157; State v. Irby, 190 Ark. 786; 81 S. W. Rep. (2d) 419.

The only reason advanced for the opposite construction of the above constitutional clause is the contention that the inclusion of a federal conviction in Mow Jersey, as a basis for voting disqualification, would amount to the imposition by the federal government in this state of an additional punishment for a federal crime. It is readily admitted that one sovereign cannot impose punishment within the territory of another, and that that other cannot he compelled to impose punishment within its own territory on behalf of the first. Commonwealth v. Green, 17 Mass. 515; Sims v. Sims, 75 N. Y. 466; Samuels v. Commonweath, 110 Va. 901; 66 S. E. Rep. 222; Kain v. Angle, 111 Va. 415; 69 S. E. Rep. 355; Weber v. State, 18 Okl. Cr. 421; 195 Pac. Rep. 510; Day v. Lusk, 219 S. W. Rep. 597; State v. Landrum, 127 Mo. App. 653; 106 S. W. Rep. 1111; Logan v. United States, 144 U. S. 263, 303; 12 S. Ct. 617; 36 L. Ed. 429, 443; State v. McDonald, 164 Miss. 405; 145 So. Rep. 508; State v. DuBose, 88 Tenn. 753; 13 S. W. Rep. 1088; Hildreth v. Heath, 1 Ill. App. 82.

It will further he readily admitted that ordinarily a domestic sovereign will not lend its aid to the imposition of such punishment., But none of such ordinary situations are involved in this case.

In the first place, the inclusión of a federal conviction of a crime, expressly named by reference in the constitution, neither permits the federal authorities to impose, within the exclusive jurisdiction of the state, an additional punishment for the federal crime, nor does it compel the state to do so on behalf of the federal government. This can be seen if we consider whether, in the absence of the above New Jersey constitutional clause, any federal conviction could possibly disfranchise an otherwise qualified New Jersey voter. The answer is clearly no. It is, therefore, the New Jersey constitutional clause, expressing its own public policy as to the qualifications and disqualifications of its own voters, which, of its own force, as an expression of the will of the state sovereignty, not of the federal sovereignty, serves to disqualify the voter. This public policy makes the character of such voter, in fact, the criterion. In the same way that the constitution expressly makes federal status as a citizen of the essence, so it impliedly makes federal status as a criminal, which equally affects his character as a voter, of the essence. But it is the state constitution which alone can have this effect on the individual, and which alone makes the public policy of the people of the state a reality.

Again, while ordinarily a state will not effectuate the penal policy of another for the reason that usually it has no concern therewith, nevertheless, where the people of a state deem it to their advantage to aid in the effectuation of the penal policy of a sister state, and express themselves accordingly, they not only may do so, but have done so repeatedly. In fact, the State of New Jersey has largely been the originator throughout the United States of this very principle. This principle is the very basis of the four-point Interstate Crime Control program, which sprang from the first Interstate Conference on Crime, held in Trenton in 1935, and the earlier pathfinding of the Hational Conference of Commissioners on Uniform State Laws, and has now been adopted, in whole or in part, in more than three-fourths of the states of the Union. Under this program New Jersey, for instance, has expressed its public policy to aid its sister states in effectuating their penal laws, and for the very good reason that New Jersey thus obtains the aid of all its sister states in effectuating New Jersey’s own penal laws. The constitutionality of this program has been uniformly upheld by repeated decisions. As to the Uniform Act for the Rendition of Witnesses, see In re Cooper, 127 N. J. L. 312; 22 Atl. Rep. (2d) 532; as to the Uniform Extradiction Act, see Culbertson v. Sweeney, 70 Ohio App. 344; 44 N. E. Rep. (2d) 807; 140 Ohio. St. 426; 45 N. E. Rep. (2d) 118; Cassis v. Fair (W. Va.), 29 S. E. Rep. (2d) 245; as to the Inter-State Parole and Probation Compact, see Ex parte Tenner, 20 Cal. (2d) 670; 128 Pac. Rep. (2d) 338; certiorari denied, 314 U. S. 585; 62 S. Ct. 409; 317 U. S. 597; 63 S. Ct. 151. In addition, the United States Supreme Court has expressly laid down the rule that “a state court in conformity to state policy may, by comity, give a remedy which the full faith and credit clause does not compel.” Milwaukee County v. M. E. White Co., 296 U. S. 268; 56 S. Ct. 229, 231.

Thus, it is here the public policy of the State of New Jersey, as expressed in its fundamental law, which is to be effectuated. And the state is at liberty to adopt such standard as it desires in that regard, subject of course to the requirements of the federal constitution. It can therefore adopt a penal standard set by the federal government, particularly if same accords in fact with New Jersey’s own standard expressed either in its fundamental law or its legislative acts as above.

For the reasons stated, the above cited decisions on extraterritoriality, relied on by applicant, are inapplicable to the present case. Furthermore, they do not oven purport to cover the present case. For none of them, except by dicta, refer to the right of suffrage. They are all cases dealing simply with the exclusion of a witness or removal from office. Moreover, generally speaking, they are either based upon constitutional and statutory provisions dissimilar from those in New Jersey, or they rely in doctrine upon the case of Commonwealth v. Green, 17 Mass. 515, which is based upon no constitutional or statutory provisions whatever, but upon the general principles of the common law as to extraterritoriality as above alluded to. These general principles, as shown above, either do not apply at all, or, if they do, must give way to the intent of the people as expressed in their fundamental law, the constitution. This principle is well evidenced by the two Missouri decisions of State v. Landrum (Mo.), 106 S. W. Rep. 1111, and State v. Sartorious, supra. In the earlier Landrum case the public policy of the state, as contained in its constitutional provisions as to the right of suffrage, was in nowise involved. The court therefore applied the state statute expressive of the common law rule as to extraterritoriality on exclusion of witnesses as above. On the other hand, in the Sartorius case, where the intent of the people to maintain the purity of its elections was involved, as expressed in its constitution, both the common law and Missouri statutory principles as to extraterritoriality were compelled to give way to the fundamental policy of the state constitution.

Obviously, decisions based upon a different constitutional and statutory intent are no more persuasive. In addition, the federal cases on which applicant relies of Logan v. United States, 144 U. S. 263; 12 S. Ct. 617, and Brown v. United States, 233 Fed. Rep. 353, have been overruled by the case of Rosen v. United States, 245 U. S. 467; 38 S. Ct. 148.

After all is said and done, the question here is one of constitutional and statutory construction, of effectuating the express intent of the people and their legislative representatives. The provisions in question of the New Jersey Constitution, both by reason of their title, their position and their terms, show that the intent of the people—the public policy of this state—is to safeguard tire purity of our elections, and to consider the federal status and character of our citizens in that regard. In addition, the term “convicted of a crime” has consistently been construed in this state to include convictions in other than the New Jersey state courts. Hence, it would seem clear that the intent of the people of New Jersey, in adopting their constitution, was to maintain the purity of their elections by disqualifying, among others, those convicted of the crime of conspiracy, whether such conviction occurred in a New Jersey state court or in a federal court sitting in New Jersey. I am authorized to say that Judges Uannagan, Brennan and Haughright concur in this opinion.


author: Duffy, Q. S. J.

text:
    Hudson County Court of Quarter Sessions.
    THE STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. HUMBERT BETTI, DEFENDANT-APPELLANT.
    Decided April 25, 1945.
    For the state on behalf of complaining -witness, Wilbwr L. Boss.

    For the defendant-appellant, Nicholas 8. Schloeder.

   Duffy, Q. S. J.

Humbert-Betti, the appellant, was convicted in the Third Criminal Judicial District Court of Hudson County upon a complaint charging him with the violation of R. S. 2:135-2; N. J. S. A. 2:135-2, in that he, while a tenant in possession of certain store premises located in the Town of Guttenberg, did then have in his possession on said premises a device in the nature of a slot machine, which might be used for the playing of money or other valuable thing.

The defendant had waived his right to indictment and trial by jury, and after a hearing and the conviction aforesaid, was sentenced to pay a fine of $100. From this conviction and judgment the defendant appealed to the Hudson County Court of Quarter Sessions, pursuant to R. S. 2:214-14; N. J. S. A. 2:214-14, providing for a summary review.

The complaint and warrant, proceedings and record of conviction are brought up for review. As a part of such record there is a stenographic transcript of the testimony certified by the trial judge.

No substantial dispute as to the facts in the case exists. The sole question seems to be whether this evidence discloses a violation of the statute involved.

The statute in question (R. S. 2:135-2; N. J. S. A. 2:135—2) provides that “Any person who shall have or keep in his place of business, or other premises, any slot machine or device in the nature of a slot machine, which may be used for the playing of money or other valuable thing, shall be guilty of a misdemeanor.”

The defendant, Humbert Betti, admitted that he was the owner and in possession of the confiscated machine on June 16th, 1943, at certain store premises located at 319 Seventieth Street, Guttenberg, Hudson County.

The machine was received in evidence in the court below.' From the description thereof set forth in the record, it is very similar in design and operation to the machine so graphically described by Mr. Justice Perskie in Hunter v. Teaneck, 128 N. J. L. 164; 24 Atl. Rep. (2d) 553, save for one important feature. The machine under consideration in the instant case contained no device for the recording or the awarding of free games upon the achievement of a designated high score. Nor did it provide any means for recording or awarding a prize in money, tokens or otherwise. It did, however, require the insertion of a five-eent piece to release the balls for play.

Further, it was shown that by making certain mechanical changes in the machine itself, not, however, accessible to the player, the machine could be set for from one to three free plays, but there was no meter device for recording the pay-offs.

In Stirling Distributors, Inc., v. Keenan, 135 N. J. Eq. 508; 39 Atl. Rep. (2d) 79, it was held that a slot machine providing for no free plays, prizes or the return of any money, is not a gambling device within the meaning of R. S. 2:135-2; N. J. S. A. 2:135-2, even though the dominant element which determines the result is chance, not skill.

In State v. Brandt, 122 N. J. L. 488; 6 Atl. Rep. (2d) 203, our Supreme Court, in reversing the conviction of the defendant for the possession of a pinboard machine in violation of R. S. 2:135-2; N. J. S. A. 2:135-2, said:

“The charge of the indictment is the possession of a slot machine which might be used for the purpose of playing for money, &c. There is no allegation that it was used for such unlawful purpose. In the record there is no evidence that it could be. It is readily perceived, of course, that such machine could be used for gambling. But the statutory phrase “may be used” connotes possibility of use or probability of use at best. The record contains no evidence even of the likelihood of such illicit use of the machine. * * * We reverse the conviction on the ground that no evidence whatsoever is in the case before us that the machine “may be used” for gambling. There is nothing by way of proof that this machine or any other of its kind was ever so used or that it could be, and this we think a fatal defect and requires a reversal of the judgment.”

The case of Hunter v. Teaneck, supra, is readily distinguishable. The machine therein considered had a meter which recorded games paid off, i. e., free games won by the player which were paid off, but for which, in lieu of further play, he might receive compensation and money upon demand.

Therefore, the only novel question requiring determination in this case is the one arising out of the fact that the present machine could be arranged to provide from one to three free games by the making of certain mechanical changes thereon. The consequent query is whether by reason thereof the machine falls within the prohibition of the statute.

It must be borne in mind that the action condemned by R. S. 2:135-2; N. J. S. A. 2:135-2, is the possession of a slot machine, or device in the nature of a slot machine, which may be used for the playing of money or other valuable thing. Thus, the primary consideration for determination is whether the machine or device, whatever its scope or nature, is the inducing cause to gambling for money or other valuable thing. That players may bet on the outcome of the machine in question is not determinative, since bets may be placed by those who would on almost any occurrence, Stirling Distributors, Inc., v. Keenan, supra.

After careful consideration of the record under review, it is my opinion that the machine in question is not such a gambling device. As said by the Court of Appeals of New York in People v. Jennings, 257 N. 7. 196; 177 N. E. Rep. 419, in deciding that a machine of this general character, operated in a similar manner, was not a gambling device: “the only chance connected with the operation of the machine is that wit or humor may momentarily brighten up the vacuous minds hunting amusement.”

In like manner, the United States Circuit Court of Appeals in the ease of Davies v. Mills Novelty Co., 70 Fed. Rep. (2d) 424, 426, decided:

“These machines are lacking in the essential elements necessary to make them gambling devices or gambling machines. There is no element of gain or loss, financial or otherwise, involved in the transaction.”

A similar conclusion was reached by the United States Court of Appeals for the District of Columbia in the ease of Washington Coin Machine Association v. Callahan, 142 Fed. Rep. (2d) 97, in citing In re Wigton, 151 Pa. Super. 337; 30 Atl. Rep. (2d) 352, and other cases for the principle that the right or privilege to a second try or a replay for a high score on a machine of this kind is not a thing of material value and hence not property in the sense in which the word is used in defining a gambling device. The opinion concludes :

“Many similar additional cases to the same effect have been examined by us, the citation of which will add nothing to the reasoning, but which satisfy us that the balance of judicial opinion is on the side of construing the particular character of machine we are concerned with as not within the prohibition of the gambling laws.”

The conviction of the defendant in the court below will therefore be set aside. It is my opinion that the machine in question is not violative of the statute, despite the fact that adjustments might be made in its mechanism and operation whereby free games could be awarded upon the achievement of certain designated high scores. Such free games do not constitute a valuable thing within the meaning of R. S. 2:135-2; N. J. S. A. 2:135—2. As stated by the court In re Wigton, supra:

“If the player cannot get any other consideration or reward from his play except the right to play again, his incentive for playing must be a recreational or amusement incentive only.”

The judgment under review will therefore be reversed.


author: Hebb, A. M.

text:
    Docket 62/538
    Grace Isserman, complainant, v. Abraham Isserman, defendant.
    [Decided May 16th, 1945.]

      Mr. Michael G. Alenick, for the complainant.

      Mr. Milton M. Unger, for the defendant.
   Hebb, A. M.

Complainant secured a decree for separate maintenance in this cause in the year 1927, under which (as modified by the latest of several subsequent orders) defendant for several years paid her a weekly allowance of $45 for her support and for the support and education of an infant son of the marriage in her custody, who is now nineteen years of age and is serving in the armed forces of the United States.

In February, 1943, defendant became a resident of the State of Nevada and in November of that year instituted a suit for absolute divorce against complainant in the courts of that state on the ground that the parties had lived apart, consecutively and continuously, without cohabitation, ever since July 28th, 1926.

This statutory ground for divorce in Nevada is in furtherance of the public policy of that state that when a husband and wife have lived apart from each other for a continuous and uninterrupted period of three years or more and there is no likelihood of their ever resuming conjugal relations, the best interests of society in general as well as of the parties themselves will be promoted by a dissolution of the marriage. The operation of the statute depends not upon the commission of a matrimonial offense or upon the comparative rectitude of the parties but upon the improbability of a reconciliation. A divorce may be granted on that ground at the suit of either party, without regard to any marital delictum on the part of either. Such a decree may be granted to a petitioner who has been adjudged guilty of a matrimonial offense although the defendant may be innocent of all fault. Hence the decree may consistently provide alimony for the wife whether the divorce be granted upon her prayer or upon the prayer of her husband. Herrick v. Herrick, 55 Nev. 59; 25 Pac. Rep. (2d) 378; George v. George, 56 Nev. 12; 41 Pac. Rep. (2d) 1059; 97 A. L. R. 983. Similar statutes have been adopted in other states. See Annotations: 51 A. L. R. 763; 97 A. L. R. 985; 111 A. L. R. 867; 27 C. J. S., Divorce, 943, § 229.

The complainant engaged Nevada counsel and was personally present during the proceedings in the Nevada court. She filed an answer in the cause denying defendant’s allegation that he was domiciled in Nevada and a cross-complaint for divorce on the ground of adultery. Her inconsistency in both challenging and invoking the jurisdiction of the court was afterwards cured by the amendment of her answer so as to eliminate her prior contention that defendant was not domiciled in Nevada, leaving him to his proof. Her cross-complaint was also amended by abandoning the adultery charge and substituting for it the same ground upon which defendant’s complaint was based.

In her amended cross-complaint complainant prayed “1. That she be granted a decree of absolute divorce forever dissolving the bonds of matrimony now and heretofore existing between her and the plaintiff. 2. That she be awarded the custody of the minor child, Harold A. Isserman, until his majority. 3. That all of the terms and conditions and guarantees made by stipulation of counsel herein in open court in the above entitled action be ratified, approved and confirmed by this court and the terms and conditions thereof ordered performed; that said stipulation is a part of the record and proceedings in this action and by more particular reference thereto is hereby made a part hereof,” followed by a general prayer.

The ease came on for trial in open court in the presence of the parties and their attorneys. Testimony was taken on defendant’s part to sustain his contention that he was domiciled in Nevada. It was conceded by the parties that they had lived apart, consecutively and • continuously, without cohabitation, for a period of upwards of three years, and the court was fully apprised of the circumstances and result of the New Jersey litigation.

A final decree for absolute divorce was entered on December 4th, 1943. It included a provision for the payment of a lump sum of $5,000 to complainant ($3,000 in cash within five days after the entry of the decree, and $2,000 at a later date for which a promissory note was to be delivered to complainant with the cash payment), together with alimony and maintenance for herself and their son Harold at the rate of $45 per we ek to be reduced to $30 per week upon Harold’s attaining the age of eighteen or upon his earlier induction into the armed forces of the United States, and to cease entirely and permanently five years after the date of entry of the decree or upon complainant’s earlier death or remarriage. These provisions were based upon the stipulation referred to in complainant’s prayer above quoted, which was approved by the court without inquiry into the circumstances of the parties.

Within five days after the entry of the decree the defendant delivered the cash and note to complainant’s Nevada solicitor, and made the payments of $45 per week until June 14th, 1944, when Harold became eighteen years of age. Since that date defendant has sent to complainant weekly checks of $30 each. Complainant declined to accept the cash and note from her Nevada attorney, but they have not been returned to the defendant. The proof is that they are now held for the complainant by the clerk of the Nevada court. She accepted the weekly payments of $45 each as due her under the New Jersey decree and has cashed the subsequent $30 weekly cheeks, except for a few upon which reference to the Nevada decree was endorsed. Both parties have been careful since the entry of that decree to take no action inconsistent with what they maintain to be their respective rights.

The Nevada decree contained no reservation with respect to the subsequent modification of its alimony and maintenance provisions in the event of changed circumstances. On the contrary it contained a clause exonerating defendant from all future obligation to complainant and to the child beyond that expressly provided by its terms. Nor did the stipulation upon which the decree was based contain any provision for modification. As to the decree of this court and the orders subsequently entered herein, the Nevada decree provides: “It is further Ordered, Adjudged and Decreed that the provisions herein made in this decree as to all property rights, the right of the Defendant to alimony and separate support and maintenance, and all other rights arising out of the marital relation, be, and the same are, in the place and in the stead of, any and all provisions made for said Defendant in that certain action in New Jersey entitled ‘In Chancery of New Jersey (Docket 62/538) Between Grace Isserman, Complainant, and Abraham Isserman, Defendant/ that all obligations of the Plaintiff to make any payments under said decree of said Court of Chancery of New Jersey be, and the same is (sic) hereby, terminated; that this decree completely supersedes and makes null and void said decree of said Court of Chancery of New Jersey, and said decree of said Court of Chancery of New Jersey is hereby abrogated and henceforth null and void.”

Defendant’s present application is for an order “that the final decree herein be modified and that such modified decree provide for the dismissal of the bill of complaint in this cause” and “that all orders in this cause for the support of complainant herein and said child, be vacated.” Complainant resists on the ground that the Nevada decree was procured by the defendant’s fraud, that the Nevada court lacked jurisdiction and that it had “no legal right to vitiate, alter or affect the decree” entered in this cause. She insists that defendant was not domiciled in the State of Nevada, that he was guilty of fraud in pretending that he was so domiciled and that he fraudulently conspired with -the lawyers on both sides to prevent complainant from presenting evidence that defendant’s domicile was still in New Jersey, from testifying at the hearing as to defendant’s alleged matrimonial offenses and as to his faculties and the needs of herself and the child, and to secure a stipulation as to the alimony and maintenance which was against her interest and lacking her free consent. She argues that the decree was the result of such fraud and is therefore void, and moves for an affirmative adjudication to that effect.

The Nevada decree is regular on its face. Complainant does not contend that the court which granted it lacked general jurisdiction to decree divorce or that it lacked personal jurisdiction over the parties. The decree is therefore immune to collateral attack except upon competent and satisfactory proof that the Nevada court was without jurisdiction over the subject-matter of the particular suit. Bell v. Bell, 181 U. S. 175; 21 S. Ct. 551; 45 L. Ed. 804; Streitwolf v. Streitwolf, 58 N. J. Eq. 563; 41 Atl. Rep. 876; 43 Atl. Rep. 683; 78 Am. St. Rep. 630; affirmed, 181 U. S. 179; 21 S. Ct. 553; 45 L. Ed. 807; Sprague v. Sprague, 131 N. J. Eq. 104; 23 Atl. Rep. (2d) 810; Wolff v. Wolff, 134 N. J. Eq. 8; 34 Atl. Rep. (2d) 150. Complainant insists that jurisdiction over the subject-matter was lacking in two respects, viz., that defendant was not in fact domiciled in Nevada, and that such fraud was practiced by the defendant as to render the decree lacking in due process.

A careful reading of the proofs fails to disclose any factual basis for the contention that defendant lacked a domicile in Nevada. On the contrary they indicate that he was in fact domiciled there as he claimed to be and as the court held him to be. Complainant constructively conceded this to be true by seeking and securing affirmative relief which that court would have been without jurisdiction to grant had defendant not been domiciled in Nevada. She is therefore estopped to assert the contrary. Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Horowitz v. Horowitz (R. I.), 192 Atl. Rep. 796; Gilbert v. Gilbert, 83 Ohio St. 265; 94 N. E. Rep. 421; 35 L. R. A. (N. S.) 521; Annotations: 109 A. L. R. 1018; 122 A. L. R. 1321; 140 A. L. R. 914.

Hence it is unnecessary to determine whether complainant is also barred on the ground that the Nevada decree is res judicata as to the question of defendant’s domicile, under the rule laid down in Davis v. Davis, 305 U. S. 32; 59 S. Ct. 3; 83 L. Ed. 26; 118 A. L. R. 1518. See Sleeper v. Sleeper, 129 N. J. Eq. 94, 99; 18 Atl. Rep. (2d) 1.

Aside from the question of defendant’s domicile the frauds charged by complainant are not of such a nature as to subject the Nevada decree to review in this or any other court save in the court which rendered it or by direct review thereof. Assuming them to be true they do not constitute extrinsic fraud. The jurisdiction of the. court was in nowise impaired. The essential facts were fully disclosed. Under such circumstances, if there was fraud as charged it concerned the subject-matter of the litigation and was intrinsic therein. It affected the manner of presentation of the case or defense rather than the integrity of the court’s jurisdiction to determine the issues. This is not such fraud as renders the decree void, rather than voidable. It is only where the fraud is such as results in the erroneous assumption or repudiation of jurisdiction or in the denial of due process, either substantive or procedural, that the resulting decree is left unprotected by the full faith and credit clause (article IV, section 1) of the federal constitution. See Nichols v. Nichols, 25 N. J. Eq. 60; Davis v. Headley, 22 N. J. Eq. 115, 124; Wilson v. Anthony, 72 N. J. Eq. 836, 840; 66 Atl. Rep. 907; affirmed, 75 N. J. Eq. 299; 78 Atl. Rep. 1135; Smith v. Swart, 103 N. J. Law 150; 134 Atl. Rep. 755; Dringer v. Receiver, Erie Railroad, 43 N. J. Eq. 573, 580; 8 Atl. Rep. 811; affirmed, 43 N. J. Eq. 701; 13 Atl. Rep. 664; Goodman v. Goodman, 15 N. J. Mis. R. 716; 194 Atl. Rep. 866; Wolf v. Wolf, 134 N. J. Eq. 8; 34 Atl. Rep. (2d) 150; Abbott v. Aetna Casualty and Surety Co., 42 Fed. Supp. 793; Mahoney v. State Insurance Co., 133 Iowa 570; 110 N. W. Rep. 1041; 9 L. R. A. (N. S.) 490; 31 Am. Jur., "Judgments” 191, § 595; Annotations: 33 L. R. A. (N. S.) 905; 88 A. L. R. 1301; 3 Beale, Conf. of Laws (1935) 1401; Goodrich, Conf. of Laws (Hornbook) 461; 15 Words and Phrases (Perm. Ed.) 901.

Complainant contends that the alimony and maintenance provisions of the Nevada decree, in so far as they contain arbitrary limitations upon defendant’s future obligation to support his wife and son, are invalid as essentially inconsistent with the- separate maintenance decree, 'and should therefore he disregarded because violative of the full faith and credit clause (article IV, section 1) of the federal constitution.

Whatever the res judicata effect of the separate maintenance decree may have been (if any), complainant is estopped to assert it here, not only for the reason that she asked for and received support under the Nevada decree (see 31 C. J. S., Estoppel 384, § 119) but because she did not properly assert and prove it in the Nevada proceeding. Even had she done so her remedy would have been by appeal rather than by a collateral attack, since the error, if any, was not jurisdictional. Wisconsin v. Pelican Insurance Company of New York, 127 U. S. 265, 291; 8 S. Ct. 1370; 32 L. Ed. 239, 243; Andrews v. Andrews, 188 U. S. 14, 36; 23 S. Ct. 237; 47 L. Ed. 366, 371; Anglo-American Provision Co. v. Davis Provision Co., 191 U. S. 371; 24 S. Ct. 92; 48 L. Ed. 225.

Moreover, the separate maintenance decree, so far as complainant’s support was concerned, was designed to make provision for her only so long as the parties remained apart and were still husband and wife. The alimony provision of the divorce decree was in substitution for that made by the separate maintenance decree, and superseded and so terminated it. Bassett v. Bassett (D. C., Nev.), 51 Fed. Supp. 545; Turkus v. Turkus, 180 Misc. 857; 45 N. Y. Supp. (2d) 803; 42 C. J. S., Husband and Wife, 207, 208, § 612; Cf. Schimek v. Schimek, 109 N. J. Eq. 395; 157 Atl. Rep. 649; Bowers v. Bowers, 132 N. J. Eq. 431; 28 Atl. Rep. (2d) 515. Since the Nevada court had jurisdiction to decree the divorce and since both parties were before it, its jurisdiction included the matter of alimony as an incident. In this respect the Nevada statute is similar to our own. Nev. Comp. Laws, § 9463, as amended by Stats. 1943, eh. 91. In fixing alimony it did so, quite properly, in accordance with its own law and usage, not that of New Jersey. Upon the entry of the Nevada decree, our decree therefore ceased to have any res judicata effect so far as complainant’s support is concerned, even without the pronouncement of the Nevada decree to that effect. Complainant is therefore concluded by the Nevada decree, not only with respect to the divoree but with respect to the alimony provision with its limitation.

Under the law of Nevada that decree is final, conclusive and unchangeable. It contained no reservation for modification, nor did the stipulation upon which it was based contain such a reservation. Lewis v. Lewis, 53 Nev. 398; 2 Pac. Rep. (2d) 131; Aseltine v. Second Judicial District Court, 57 Nev. 269; 62 Pac. Rep. (2d) 701. Under these circumstances, by the law of Nevada, the court’s power to modify the decree was limited to the period of six months immediately succeeding the date of its entry. Sweeney v.. Sweeney, 42 Nev. 431, 432; 179 Pac. Rep. 638; Groves v. First Judicial District Court, 61 Nev. 269; 125 Pac. Rep. (2d) 723; Jones v. Second Judicial District Court, 59 Nev. 460; 96 Pac. Rep. (2d) 1096; rehearing denied, 59 Nev. 460; 98 Pac. Rep. (2d) 342; Lauer v. Eighth Judicial District Court (Nev.), 140 Pac. Rep. (2d) 953; see Helvering v. Fuller, 310 U. S. 69; 60 S. Ct. 784; 84 L. Ed. 1084. And in this case even that six months’ moritorium was waived. It matters not that no evidence was adduced respecting the present or future needs of complainant or the financial ability of defendant, or that no actual adjudication was made, the decree having been based wholly upon the stipulation. Nor does it matter that its provisions were designed to effect the complete termination of defendant’s obligation at a certain future date, arbitrarily and without regard to what the future needs of complainant might be. Under Nevada law the •finality of tibe decree will not be affected by the subsequent destitution of complainant or by any other equitable considerations.

Article IV, section 1 of the federal constitution provides ¡that “Pull Paith and Credit shall be given in each State to 'the public Acts, Records and judicial Proceedings of every other State,” and that “Congress may by general Laws pre-. scribe the Manner in which such Acts, Records and Proceedings shall be proved, and the effect thereof.” And Congress has enacted that judgments “shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.” Act of May 26th, 1790, chapter 11, 1 Stat. 122, as amended, 28 U. S. C. A., § 687. Congress has thus distinguished between the extraterritorial effect of judgments and that of local or statutory law as such. See Williams v. North Carolina, 317 U. S. 287, 294, 296; 63 S. Ct. 207; 87 L. Ed. 283, 284; 143 A. L. R. 1273. The United States Supreme Court has from the beginning held that the Act of May 26th, 1790, chapter 11, has made that which has been adjudicated in one state res judicata to the same extent in every other. Magnolia Petroleum Co. v. Hunt, 320 U. S. 430; 64 S. Ct. 208; 88 L. Ed. 149; 150 A. L. R. 413; rehearing denied, 321 U. S. 801; 64 S. Ct. 483; 88 L. Ed. 1088; Sistare v. Sistare, 218 U. S. 1; 54 L. Ed. 905; 30 S. Ct. 682; Yarborough v. Yarborough, 290 U. S. 202, 207; 54 S. Ct. 181; 78 L. Ed. 269; 90 A. L. R. 924; Gilbert v. Gilbert, 83 Ohio St. 265; 94 N. E. Rep. 421; 35 L. R. A. (N. S.) 521; Barber v. Barber, 323 U. S. 77; 65 S. Ct. 137; 89 L. Ed. -. So far as complainant’s support is concerned the effect of the Nevada decree is to override the public policy of New Jersey and to impose upon this state the public policy of Nevada, in spite of the fact that complainant is and always has been domiciled in this state and may become a public charge. The defendant’s civil obligation toward her cannot be extended beyond the terms of the Nevada decree.

But that decree did not affect defendant’s obligation to maintain, support and educate Ms son Harold. Harold was not domiciled in Nevada. Because of the defendant’s abandonment of him (as was adjudged by the separate maintenance decree) and because of the provision of that decree granting his custody to the complainant, his domicile has been and is that of his mother, in New Jersey. In re Williams, 77 N. J. Eq. 478; 77 Atl. Rep. 350; 79 Atl. Rep. 686; Zinsser v. Zinsser, 92 N. J. Eq. 491; 113 Atl. Rep. 520; Annotation: 53 A. L. R. 1160. Nor was Harold physically present in Nevada. Under such circumstances the Nevada court was without jurisdiction to make provision for Ms maintenance to the extent of diminishing or restircting such provision as has been or may be made for him by this court. See Schneider v. Schneider, 78 U. S. (App., D. C.) 383; 141 Fed. Rep. (2d) 542, distinguishing Yarborough v. Yarborough, supra; Boens v. Bennett, 20 Cal. App. (2d) 477; 67 Pac. Rep. (2d) 715; Long v. Long, 239 Ala. 156; 194 So. Rep. 190; Weber v. Redding, 200 Ind. 448; 163 N. E. Rep. 269; Payton v. Payton, 29 N. M. 618; 225 Pac. Rep. 576; Sanders v. Sanders, 223 Mo. App. 834; 14 S. W. Rep. (2d) 458; Hachez v. Hachez, 124 N. J. Eq. 442; 1 Atl. Rep. (2d) 845; Goodman v. Goodman, 15 N. J. Mis. R. 716; 194 Atl. Rep. 866; Levy v. Levy, 17 N. J. Mis. R. 324; 9 Atl. Rep. (2d) 779.

The child is a ward of this court by virtue of the separate maintenance decree and of his continued domicile and residence in this state. He may again require some contribution from his father before he attains his majority. If so, under our law, he will be entitled to it. An order will be advised that the allowance provided by the decree and subsequent orders herein be abated prospectively from the date of entry of the Nevada decree. The decree will not be-vacated, however, nor the bill dismissed at this time. They will be held to the end that application may be made on Harold’s behalf for further allowances if the occasion should arise. After he attains his majority the defendant may renew his motion to dismiss the bill.


author: Bubling, 0. C. J. and S. C. C.

text:
    ABE ZEBLE, PLAINTIFF, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, ELIZABETH GETTLEMAN, MORRIS GETTLEMAN, CHARLES GETTLEMAN, JOSEPH FARRINGTON AND FRED SIRIS, JOINTLY AND SEVERALLY, DEFENDANTS.

      Decided March 29, 1945.
    For the plaintiff, Alexander Blati.

    For the defendant The Prudential Insurance Company of America, a corporation, Smathers, Scott & Munyan.

   Bubling, 0. C. J. and S. C. C.

Motion has been made by the remaining defendant, The Prudential Insurance Company of America, a corporation, in the above entitled cause to strike out the first, second, third and ninth counts of the complaint in the above entitled cause which are the counts of the complaint applicable to this defendant.

As a prelude to the defense of this motion an application has been made by the plaintiff for “leave to subpoena the bank account of Charles Gettleman, Elizabeth Gettleman, and Morris Gettleman, to ascertain whose funds purchased premises 110 Eoosevelt Place, Atlantic City, Mew Jersey; and to apply for leave to examine and subpoena Elizabeth Gettleman, Morris Gettleman and Charles Gettleman to appear before said court at such time and place as may be designated and fixed by said court for the purpose of giving oral testimony pertaining to the offer for the purchase of the aforesaid premises and the purchase. And that the Defendant, The Prudential Insurance Company, be ordered to produce for inspection by the Plaintiff an original and three copies of an agreement dated June 7th, 1943, signed by Elizabeth Gettleman, Prudential Insurance • Company or its representatives, and Abe Zeble. And said application is in compliance with a Petition of the Plaintiff, a copy of which is hereto annexed and made a part hereof. And, further, that said proof be received and considered by said Court in connection with the determination of the motion made on behalf of the Defendant, The Prudential Insurance Company, herein to strike Plaintiff’s complaint filed in this cause, notice of which motion is on file herein.”

TTpon the argument of the motion for leave as aforesaid the defendant offered to produce for inspection by the plaintiff the original and two executed copies of the agreement dated June 7th, 1943, entitled “Offer to purchase” referred to in the petition, in possession of the defendant, it being asserted that the third copy was not in possession of the. defendant.

It is conceded that the usual and customary procedure on motions to strike upon the ground that the complaint is sham is by affidavit. R. S. 2:27-124; N. J. 8. A. 2:27—124, which ■ authorizes such motions does not prescribe the method for presenting proofs in support thereof. Eules of procedure for this eourt anticipate the necessary proofs on motions to strike answers and for entry of summary judgment. Supreme Court rules 80 to 85; N. J. S. A. tit. 2. Eule 85 provides that the rule relevant to striking out frivolous or sham pleas shall be applicable to motions to strike out complaints. It is by this latter rule that practice for presenting affidavits to strike out a complaint is authorized. Tradesmen’s National Bank and Trust Co. v. Cummings Brothers Co. (Supreme Court, 1931), 9 N. J. Mis. R. 1333 (at p. 1334); 157 Atl. Rep. 386.

It is contended that the right to direct the taking of testimony of witnesses by or under the direction of the court to be used in support of or in defense of motions to strike is an inherent and discretionary power of the court. Assuming that such inherent power exists, a diligent search through the reported cases of the state and the standard and recognized text books relating to Ffew Jersey practice did not divulge a reported case wherein such procedure was resorted to. In Muhlenbeck v. West Hoboken (Supreme Court, 1923), 2 N. J. Mis. R. 7, the inference from a reading of this case is that application was made to take testimony upon the issue of a sham plea and it was denied, upon the ground it would have served no practical legal purpose in that cause.

It is true that the want of precedent has never been considered as a bar to appropriate action, still in the light of accepted practice, resort to the procedure applied for should not be made unless it is mandatory in the due administration of justice. The court should not accept an invitation into a speculative inquiry and fishing expedition.

The plaintiff stems his right to recover against the defendant upon a contract for the payment of commissions to him as a real estate agent which contract admittedly required the approval of the Finance Committee of the defendant (paragraph 13 of the first count of the complaint). To support the proof of the plaintiff in this respect, the taking of the testimony of Elizabeth Gettleman, Morris Gettleman and Charles Gettleman, three of the original defendants, and the examination of their bank accounts would serve no legal purpose. The cause of action asserted by the plaintiff against the defendants, Elizabeth Gettleman, Morris Gettleman, Charles Gettleman, Joseph Farrington and Fred Siris, upon a previous motion to strike the complaint as to them, was admittedly based upon asserted applicability of the principles set down by the Court of Errors and Appeals in the case of Louis Kamm, Inc., v. Flink (Court of Errors and Appeals, 1934), 113 N. J. L. 583; 175 Atl. Rep. 63. The gravamen of the eause of action against this defendant is not asserted in accordance with said principles. Count 9 of the complaint which incorporates by reference count 4 of the complaint and particularly paragraph 9 thereof do not charge this defendant with unjustifiable and malicious interference with plaintiffs business.

lío allegation is made of the refusal of Elizabeth Gettleman, Morris Gettleman and Charles Gettleman to execute an affidavit of the pertinent facts.

Assuming that the court has the power to order the testimony of the witnesses to be taken and used in support of the defense of a motion of this nature, there is no special reason why the power should be exercised, and the exercise of a sound discretion leads to refuse it in the motion sub judies.

An appropriate rule may be presented.


author: Bubling, C. 0. J.

text:
    DONATO GRASSO, BY HIS NEXT FRIEND. CARMEN GRASSO, Sr., CARMEN GRASSO, Sr., IN HIS OWN RIGHT AND CARMEN GRASSO, Jr., PLAINTIFFS, v. PENNSYLVANIA-READING SEASHORE LINES, DEFENDANT.
    Decided May 18, 1945.

      For the plaintiffs, Leon Leonard.

    For the defendant, Lloyd, Horn S Perskie (by John Lloyd).

   Bubling, C. 0. J.

These causes of action sound in tort and the gravamen of the complaint is actionable negligence and the specific grievance complained of is the violation of the statute of this state (R. S. 48:12-57; N. J. S. A. 48:12-57), with respect to sounding of a whistle, or a ringing of a bell by a locomotive, in approaching a grade crossing of a highway. They were tried at the Atlantic County Circuit with a jury and verdicts were rendered in favor of the plaintiffs and against the defendant as follows:

(a) In favor of the plaintiff Donato Grasso by his next friend Carmen Grasso, Sr., for fifteen thousand dollars ($15,000).

(b) In favor of the plaintiff Carmen Grasso, Sr., in his own right for five thousand dollars ($5,000).

(e) In favor of tho plaintiff Carmen Grasso, Jr., for seven hundred dollars ($700).

Within due season an application was made by the defendant and a rule was granted with exceptions reserved to show cause why the verdicts should not be set aside and new trials granted upon the grounds that:

1. Said verdicts were contrary to the weight of the evidence.

2. Said verdicts were contrary to the evidence.

3. Said verdicts were so excessive as to exhibit passion, prejudice, sympathy, partiality or mistake on the part of the jury.

A single reason is now relied upon by the defendant in support of its application, as set forth in its brief as follows:

“That the verdict was contrary to the evidence and to the weight of the evidence on the issue of contributory negligence. The reasons being so limited it is understood that the verdict returned in favor of the plaintiff, Carmen Grasso, Jr., is not in issue on this application, since there was admittedly no evidence to make that plaintiff subject to the defense of contributory negligence. It is not to be assumed, however, that the defendant concedes that its agents were negligent. The defendant concedes only, for the purpose of the argument of this rule, that there was question for the jury on the issue of ‘primary’ negligence under the applicable judicial decisions of the courts of this state.”

The third reason, namely, excessiveness of the verdicts was not argued and is therefore deemed to he abandoned.

The only verdicts that are in issue, therefore, are the verdicts rendered in favor of the plaintiff Donato Grasso, by his next friend, Carmen Grasso, Sr., and in favor of Carmen Grasso, Sr., in his own right.

The plaintiff Donato Grasso, a minor, seventeen years and five months of age, at the time of the event, was the operator without the permission and upon no mission of the plaintiff Carmen Grasso, Jr., the owner of a Chevrolet stakebody truck. The truck was involved in a collision with the defendant’s locomotive with resulting personal injuries to Donato Grasso. The plaintiff Carmen Grasso, Sr., was Donato’s father and sued for alleged consequential damages. The collision occurred on the 1st day of March, 1942, in midafternoon, at a grade crossing unprotected, except by a warning sign as is required by R. S. 48:12-58; N. J. S. A. 48:12-58, of the right of way of the defendant with a dirt and unimproved street known as Fifteenth Street, leading from Blue Anchor Boad in a northeasterly direction, in the Town of Hammonton, County of Atlantic. The weather was clear and at the point of the intersection there are two sets of tracks, one set for the north-bound trains from Atlantic City, and the second set for south-bound traffic to Atlantic City. The train was a New York express which left Atlantic City at 3:10 p. si., and was scheduled to arrive at New York at 5:50 p. m., and was running on scheduled time as it passed through Hammonton at a speed of seventy-five miles per hour. The plaintiff Donato Grasso was proceeding in a northeasterly direction on Fifteenth Street and intended to proceed over the crossing. There was an additional occupant of the truck who was riding on the front seat with the plaintiff Donato Grasso and he sustained injuries which resulted in his immediate death so that his testimony was consequently not available. The conduct of the plaintiff in reaching the north-bound tracks was tersely described by him as follows: He was proceeding ten to twelve miles an hour after he left Egg Harbor Koad. He brought the truck to a complete stop “even with the bank” “near the crossing” “closer than twenty feet” from the nearest rail. He stopped, looked and listened and while stopped, he looked to the right, to the loft and then to the right again. He could see around twenty-five to thirty feet down the second track. Then he put the truck in first gear and started to go across and when he looked up to the right again, the train was “right on top of me.” The right rear side of the truck was struck by the locomotive.

There were introduced into evidence a map resulting from a survey of the premises by a civil engineer of the defendant and numerous photographs (two in number by the plaintiff and nineteen in number by the defendant) of the general locus in quo, together with the testimony of witnesses on behalf of and other than the plaintiff and on behalf of the defendant relating to the scope and extent of the view at various locations along Fifteenth Street and at and adjacent to the intersection.

The defendant contends that the great weight of evidence in this ease shows that Donato Grasso, Jr., failed to observe the duty of care which rested upon him and that (1) the testimony of the plaintiff to the effect that where he stopped “even with the bank” and made his observations which was “closer than fifteen feet” and “away closer than twenty feet” to the nearest railroad track he could “only see twenty-five to thirty feet” is contrary to the remaining evidence in the ease as to the extent of the view at said location and that it can only he concluded that he either did not look or did not heed what was there for him to see and that (2) even if it be true that his view was limited to twenty-five to thirty feet up the track at the point where he stopped “that it must be concluded that he was negligent” in failing to stop and make observations at a still nearer point where even he would have to admit that there was ample view available to him.

The duty of care resting upon the plaintiff was defined by the court in its charge to the jury and accepted by both parties, without exceptions as follows:

“The measure of conduct with respect to the operator of the automobile is that it was the duty of the operator of the automobile to exercise that degree of care and prudence which a reasonably prudent person would exercise under like circumstances. He should observe that degree of care, precaution and vigilance which the circumstances justly demand.”

A railroad is a known place of danger and at the highway crossing, the railway company had the prior right of way and the failure of those in charge of the locomotive to give the prescribed or customary audible warning does not relieve a traveler on the highway from his duty to exercise that degree of eare and caution which the law requires of one entering a place of known danger.

The plaintiff’s testimony that his view was limited to twenty-five to thirty feet down the second track at the point where he stopped “even with the bank” “closer than twenty feet” from the nearest rail is contrary to the remaining evidence in the case. His witness, David M. Adams, testified at that point (twenty feet from the near track) you could see at least a quarter of a mile.

However, accepting as a postulate the plaintiff’s testimony of the view (of only twenty-five feet to thirty feet of an approaching train), when he proceeded in first, gear from a stationary position to cross, he had to travel twenty feet (the point of stop) plus twelve feet two inches (the distance from the west rail of the north-bound track to the west rail of the south-bound track) to reach the west rail of the north-bound track and then to traverse it to reach a point of safety. When he looked again the train was “on top of him.” The rule of effective observation as defined in Conkling v. Erie Railroad Co. (Court of Errors and Appeals, 1899), 63 N. J. L. (at p. 342); 43 Atl. Rep. 666, 667, namely:

“* * * the duty of the traveler on the highway does not stop with looking and listening, but he must exercise care to select a position from which an effective observation can be made, and he must also exercise care to make the act of looking and listening reasonably effective,” together with the conclusively demonstrated unobstructed view of an approaching train by the photographs when ten feet and less from the nearest rail further disposes of this decision. During this time, his conduct clearly spells negligence which proximately contributed to the collision. Tf he had stopped short of the west rail of the south-bound track for an instant—he was in a place of safety—and looked toward Hammonton he could not have failed to see the train which struck him. The exercise of reasonable prudence would have protected him from injury. The following language borrowed from the opinion in the case of Dourte & Irelan v. Pennsylvania Railroad Co. (Supreme Court, 1928), 6 N. J. Mis. R. 559 (at p. 660); 142 Atl. Rep. 440, is particularly appropriate:

“According to his own story, his conduct was very largely the cause of the accident. If he could not see in the direction from which the train was approaching from the place where he was sitting in the truck, it was his duty, not only for his own protection, but for the protection of his master’s property, to change his position to one from which he could see, or, if it was impossible to observe the approach of a train from any place in the truck then it was his duty to get out of that vehicle and to go forward and make the observation necessary for his own protection and that of his master.”

The verdicts for the plaintiffs Donato Grasso and Carmen Grasso, Sr., are manifestly discordant with the pertinent law and with the clear weight of the evidence.

The rule as to the verdicts of the plaintiffs Donato Grasso, by his next friend, Carmen Grasso, Sr., and Carmen Grasso, Sr., in his own right, is granted and made absolute and a new trial granted, and as to the verdict of the plaintiff Carmen Grasso, Jr., the rale is denied and discharged.

An appropriate rule may be presented.