author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CHARLES STONE, PETITIONER, v. J. T. SIMMEN, RESPONDENT.
    For the petitioner, Theodore Strong, Jr.

    For the respondent, Arthur F. Mead.

   ^ sji }|i $ # ^ ' $ $

1. The petitioner alleged that while working for the respondent as a route foreman he froze his left foot.

❖ . ❖ sjc sH ❖ # %

3. He did not tell the respondent that he had suffered an accident but mentioned that he had frozen his toes, not saying how it had occurred.

##****❖*

6. Several lay witnesses testified for the petitioner, to the effect that they knew that he had frozen his toes' and that he wa's wearing a boot on his foot and that his foot was giving him discomfort. None of these witnesses, however, were superiors óf the petitioner, and although they might have known of this condition; this knowledge was not noticed to the respondent.

7. The burden of proof is upon the petitioner to prove knowledge or notice of the employer within ninety days of the injury which the man is alleged to have suffered, and the petitioner has failed to sustain this burden of proof. Bryant v. Fissell, 84 N. J. L. 72; section 15, Workmen Compensation law.

It is therefore ordered that this petition be dismissed.

W. E. Stubbs, Deputy Commissioner.


source: Caselaw Access Project

author: Haeby J. Goas, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN ROTHWELL, PETITIONER, v. PUBLIC SERVICE TRANSPORTATION COMPANY, RESPONDENT.
    For the petitioner, Charles Becker.

    For the respondent, Henry J. Sorenson.

   The petitioner was employed by the Public Service Transportation Company; that in the course of his duties on that particular day it became necessary for him to convey ten bus windows from one end of the bus to the other end; while the petitioner was doing this work he met with an accident which was described by himself in the following language: “I was putting ten bus windows from one end of the bus to the other and in putting them to the ground I felt something snap in my back.”

$ $ $ $ H* v ijc

The only matter at issue is whether or not there is any resulting permanent disability. The first doctor to attend the petitioner after the above outlined occurrence was Dr. Pas-call, who saw him the first time on February 22d, 1928, at his home, at which time the petitioner showed signs of a muscle strain of the back in the lumbar sacro region. Dr. Pascall saw him two or three times that week, at the end of which time he advised the petitioner that he could again commence work. The doctor testified that from the history of the ease, and his findings, he concluded that there was no sacro-iliac condition present. He also stated that the putting down of seventy pounds to the floor by this petitioner would not cause a sacro-iliac strain. On July 12th, 1927, the petitioner was examined by Dr. Pascall, and this examination disclosed nothing which would demonstrate that the petitioner was suffering from a permanent disability as a result of the above described accident. The petitioner, to support his contention that there was permanent disability present, produced Dr. Silverste.in, who.testified that an- examination revealed a spasm of the right lumbar muscles, painful right sacroiliac joint, and limitation of motion of the right joint. Dr. Silverstein stated that the condition which he found present would entitle the petitioner to ten or twelve per cent, permanent disability. Dr. Silverstein further testified that it is more probable that the petitioner would be strained in lifting a weight of seventy pounds than in placing it down upon the floor.

Towards the latter part of April, 1928, the petitioner was examined by Dr. Shapiro, who found muscular spasms of the-back, pain in the sacro-iliac region, and limitation of motion.. These disabilities which he characterized as permanent were described by Dr. Shapiro as ten per cent, loss of physical function. Dr. Shapiro treated the petitioner on twelve occasions extending from the latter part of April, 1927, to the first day'of January, 1928. -Ten of these treatments were prior to August 1st, 1927, and two of them subsequent thereto.

The respondent in proof of its contention that the petitioner had suffered no permanent disability as a result of this accident produced Dr. Hicks, who testified that the petitioner was examined by him oh December 1st, 1927, at which time there was no objective disability, and he could find nothing. At this time the petitioner complained of pain, and when asked to localize the pain he put his hand generally over the back region, and was unable to place his hand upon an exact spot. In' answer to a hypothetical question as to whether an accident as described by the petitioner could cause a lesion of the sacro-iliac joint, the doctor answered in the negative, stating that a permanent lesion cannot be produced by voluntary lifting, nor by the voluntary releasing of a weight which is carried. Dr. Hicks stated that the petitioner is suffering from no functional disability from any lesion.

Dr. Washington, who examined the petitioner on March 19th, 1927, testified that the petitioner complained of pain in the right lumbar region, and in the sacro-iliac region, but outside of the complaints made by the petitioner there was nothing which would indicate a functional disability. Dr. Washington -further testified that the voluntary conveying of the weight by this petitioner could not cause a sacro-iliac strain. On July 1st, 1927, the petitioner was again examined by Dr. Washington, at which time the petitioner still complained of pain. Dr. Washington was of the opinion that there was no functional disability which is of a permanent character.

After considering the testimony as produced by both the petitioner and respondent, I find that the petitioner did not sustain a lesion of the sacro-iliac joint, but the petitioner may have had a strain of the muscles of the back which invariably disappears readily.

Hi * ❖ * H;

Haeby J. Goas, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    KATIE SCHWARTZ, PETITIONER, v. HARRY KRIEGER, RESPONDENT.

      For the petitioner, Charles Gorsch.

    For the respondent, Harley,• Cox c& WaTburg.

   ********

2. The petitioner, in her claim petition, alleges that she was employed by the respondent as a janitress-and general caretaker of the premises known as No. 899 Hunterdon street, in the city of Newark; that on January 24th, 1927, between three and four p. m. she had swept the front and rear foyer halls of the said premises and u>;as taking the refuse, collected from said halls, to the rear alleyway where the garbage cans are kept, and after depositing the refuse in the garbage cans she was returning to the halls when she slipped and fell on the icy sidewalk and sustained a fracture of the femur .of the left leg. The petitioner testified that she had been engaged by the respondent aá a janitress and that her work included sweeping halls, putting on the lights and taking in the garbage cans from the street to the yard; that on the day of the accident she was cleaning the front vestibule and had carried some refuse, collected in the vestibule, to the garbage cans in the yard and was returning to the house when she slipped on an icy isdewalk and fell, injuring herself. She also testified that she always swept the halls on the first floor as janitress and that the tenants did not, at any time, sweep the halls. She also testified that she lived in the premises with her son-in-law and daughter and that she paid $15 a month board to her son-in-l.aw and that after she began to work as a janitress the respondent, who was the landlord, deducted $10 from her son-in-law’s rent and she thereafter only paid $5 a month board. On cross-examination she admitted that she testified, under oath, at an informal hearing on September 23d, 1927, and that at that time she testified that before the accident she took some garbage out to the cans in the yard and that the garbage consisted of dirt and papers which she had swept up in the halls. She also admitted that at the informal hearing she did not testify that she had cleaned out the front vestibule immediately prior to the accident.

Mrs. Berkowitz, a daughter of the petitioner, testified that she was present when the respondent engaged her mother to-do the janitor work and that after the accident she herself took care of the janitor work until the building was sold by the respondent.

The respondent testified that he had not engaged the petitioner to do any work for him, but that he had engaged the daughter of the petitioner to sweep out and clean the front vestibule, carry in the garbage cans from the street and turn the lights off and on. He also testified that there was no-sweeping for the janitress to do in the hallways as the tenants themselves took turns doing this work. He further testified that he had never paid the petitioner any money and that he-had deducted $10 a month from the rent of Mr. and Mrs. Berkowitz, the daughter and son-in-law of the petitioner. The wife of the respondent, who was present when the contract of employment was made, corroborated him on this phase of the case.

Three tenants, a Mrs. Wallad, a Mrs. Plackcey and a Mrs. Eretag, testified that they were tenants at the time of the accident and had been for a long time prior thereto; that it was the custom of the tenants to take turns in sweeping out. the halls and that the janitress did not do this work and never had done it. Mrs. Wallad and Mrs. Eretag testified that they heard the petitioner scream when she fell and that they went down to the back yard and found her lying on the ice. They carried her into the house and gave her first aid treatment. Mrs. Plackcey came to the apartment after the petitioner had been carried in. Mrs. Wallad asked the petitioner why she went out into the yard on such a stormy day, the testimony being that it was sleeting at the-time. The petitioner stated that she had some garbage in her kitchen which she wished to carry to the garbage can; that she had done this and was returning to the apartment at the time of the accident. Mrs. Wallad was corroborated on this conversation by the other tenants who were present. The petitioner denied that this conversation took place.

A Mrs. Brodkin testified for the petitioner that she saw her fall and that she came to the apartment and was there when the tenants carried her in. The three tenants referred to denied that Mrs. Brodkin was present at the time. The three tenants referred to also testified that they had seen both the petitioner and her daughter, Mrs. Berkowitz, sweep the halls and also the front vestibule prior to the accident.

This is one of those cases in which, there is a sharp dispute of fact as to the material questions involved. The respondent denies that the petitioner was employed by him and that the accident arose out of and in the-course of any employment. It is clear from a reading of the testimony that the petitioner has failed to sustain the burden of proof placed upon her by the statute. The mere fact that the petitioner on some occasions had turned on the lights and cleaned the front vestibule and the halls is by itself no proof of the contract of hire. If the petitioner’s daughter, Mrs. Berkowitz, was engaged by the respondent to take care of the- front vestibule, the lights and the garbage cans, • it does not seem inconsistent with that arrangement that the petitioner should assist her daughter in performing these light duties. The testimony is overwhelmingly in favor of the respondent that the halls were kept clean by the tenants through an arrangement among themselves and that this was not. part of the work to be performed by the janitress. The petitioner is also faced with her testimony under oath, at the informal hearing, where she testified that she was carrying garbage to the yard and that this garbage was paper and dirt which had accumulated in the halls. In that testimony she did not mention that she had performed any work in the front vestibule prior to the accident or that she had removed any dirt in the front vestibule. Then again in her claim petition, under oath, she states that she was taking refuse, which she had collected after sweeping the front and rear foyer halls, to the garbage cans just before the accident occurred.

Tile tenants who testified for the respondent apparently are disinterested and there was no evidence of any kind which would indicate that they had any ill-will towards the petitioner. The petitioner did not produce any tenant or any •other disinterested witness to show that sweeping the halls was a part of the janitress’ duty. Mrs. Brodkin, who testified in her behalf, is a next door neighbor, but her testimony was contradicted by three of the tenants. She admitted on cross-examination that she left the apartment before the tenants, so that she did not know what conversation took place between the petitioner and the tenants.

I have reviewed the testimony carefully, both in the informal and in this hearing, and I am constrained to find that the petitioner has failed to prove her case by a fair preponderance of the evidence and that the respondent must prevail.

sj: ❖ ❖ ❖ ❖

Harry J. Goas, Deputy Commissioner.


author: Hakry J. Ooas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTHONY GENTILE, PETITIONER, v. BOTANY WORSTED MILLS, RESPONDENT.
    Eor the petitioner, Ely & Ely.

    Eor the respondent, Clarence B. Tippeit.

   The petitioner alleged that he had sustained a hernia by accident while pushing a two-wheeled hand truck loaded with wool; that he told the foreman who instructed him to seethe doctor when he arrived at eleven a. m. The occurrence was stated to have taken place at or about eight A. h. that morning. Petitioner asserts he did not continue his regular-work but waited around, doing a few odd jobs until the-doctor arrived, when he saw him, was examined and was-told he had a hernia; was advised to procure a truss and claimed he did and returned to work, finishing out the day.. He thereafter worked for another week when he was discharged by the respondent.

The foreman denied knowledge or notice of an accident or injury as claimed by petitioner, asserted that petitioner told him about eight a. m. on the morning in question that he felt a pain in his right side; that the day before, when taking a bath, he noticed a lump on his side; that the foreman told him to see the plant doctor on his arrival at eleven a. m.,. which the man did.

Without commenting further on the testimony, I am induced to the conclusion that the petitioner failed to sustain the burden required in showing a compensable hernia; that the uncontradicted evidence shows he was on his feet after this alleged occurrence for at least three hours, working around and doing odd jobs such as picking up paper and wool, and assisting in some duties until the doctor came.. There seems not to be the degree of prostration which a real, traumatic hernia would necessarily require.

Proof of accident itself is denied by the foreman, who-gives a history contrary to the petitioner’s claim.

There is the further fact that proof shows claimant appeared at an informal hearing, told his story to the referee,, who denied an award on the ground of lack of prostration.

After giving careful consideration to the evidence produced,, and the reasons advanced by the respondent herein for denial of an award,

Hakry J. Ooas, Deputy Commissioner.


author: Smith, J.

text:
    Essex County Circuit Court.
    ABRAHAM HAAS, TRADING AS HAAS SHOE SHOP, PLAINTIFF, v. CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANT.
    For the plaintiff, Milton M. Unger (Leonard J. Emmerglick, of counsel).
    For the defendant, Charles M. Myers (Vincent J. Casóle, of counsel).
   Smith, J.

Motion was made to strike out the answer as frivolous, and at the time of the argument the defendant, who had given notice in the answer that the complaint did not disclose any cause of action and reserved the right to move to strike out the complaint either before or at the trial, moved without objection on the part of the plaintiff to strike out the complaint as not setting forth a cause of action.

While this motion should have been made before answer was filed or at the trial, I believe under the rule I have the right to entertain it, and there being no objection made on behalf of the plaintiff, I will consider it. My determination on this motion made by the defendant will render unnecessary my passing on some of the points raised by the plaintiff.

The plaintiff’s contention is that in taking land, under lease to him, for a street widening, the defendant took immovable improvements to a building on the property taken, and terminated by the taking of the property, the business there conducted by the plaintiff, in effect,, depriving him of a good will built up in connection with that business.

The complaint further refers to the fact that the defendant took possession of the lands and buildings under condemnation proceedings, and I think it is fair to assume on this motion that by reference to such taking the plaintiff admits that compensation was made as provided by the statute referred to, for the value of the land taken and the damages thereto, said statute providing for the method of compensation to the plaintiff for his rights under his leasehold. If I am wrong in this assumption, objection should be made by the plaintiff before the order is signed.

The affidavits presented on the defendant’s motion clearly show that compensation was awarded to the plaintiff out of the money paid into the Court of Chancery which was awarded for the taking of the lands and-damages thereto. These affidavits, of course, cannot be used on the motion to strike out the complaint unless consented to by the plaintiff.

The plaintiff’s contention is that the statute referred to, namely, the Home Eule act, which provides for the taking of private property for a street widening, does not provide for the award to the plaintiff of compensation for the good will and improvements which he has made. The statute itself only provides for the award of damages for the land taken and the damages to the remaining land, and, of course, does not direct compensation to be made for good will. In so far as permanent improvements are concerned, they inure to the landlord and are covered by any award made to him. .

Originally in this state land was taken by the state for public roads or streets without compensation. The constitution of 1844 provided that “land maj'- be taken for public highways as heretofore until the legislature shall direct compensation to be made.” The compensation which the legislature has directed to be made is an award for the land taken and damages to the remaining land. No provision has been made for compensation for losses such as complained of by the plaintiff, and the losses complained of by the plaintiff cannot be included in the award made in the condemnation. Cook v. Newark, 99 N. J. Eq. 527; affirmed, 100 Id. 581; Newark v. Eisner, 100 Id. 581, following Freeholders of Hudson Co. v. Emmerich, 57 Id. 535.

The argument made on this motion was to the effect that the plaintiff is protected in a right for compensation for his good will by the fourteenth amendment to the federal constitution providing that the state shall not deprive any person of property without due process of law. I have examined the cases submitted: That of Chicago, Burlington and Quincy Railroad v. Chicago, 166 U. S. 226, and Monongahela Navigation Co. v. United States, 148 Id. 312.

These federal cases persuppose that what the party is deprived of is some property to which he is entitled to be compensated for if taken for public use. The reference as heretofore contained in the state constitution of 1844 is explained in the case of Mangles v. Hudson County Board of Chosen Freeholders, 55 N. J. L. 90. It is shown that the original grant of land in East Jersey included five per cent, for opening highways, and this was limited to four rods. I think we must therefore assume that this right to take land for highways is one inherently reserved when the grants were made, as being necessary for the use of the property granted. If it were not for roads, free access could not be had to the property granted.

The rule of damage for taking land for highways does not include compensation for loss of good will. This is shown in Lew. Eminent Domain (3d ed.) § 727; previous edition, section 487. This textbook is referred to by Vice-Chancellor Emery in his opinion in the case of Board of Chosen Freeholders of Hudson County v. Emmerich, supra.

The motion on behalf of the plaintiff to strike out the answer and counter-claim will bo denied, and the defendant’s motion to strike out the complaint will be granted.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JACOB THOMAS, PETITIONER, v. HUGH SIMANTON, RESPONDENT.
   Testimony in this case shows that the petitioner was a night watchman in the garage of respondent * * *. While pushing a wheelbarrow loaded with ashes up an incline in the rear of the respondent’s garage he slipped, and while falling struck the lower righ-hand side of his stomach on the wheelbarrow. He was immediately stricken with a severe sharp pain, and as soon as possible he proceeded as best he could to the office telephone, a distance of about one hundred and ten feet, for the purpose of calling a doctor. As he was about to telephone, Dr. Young drove his car into respondent’s garage and petitioner explained the situation to him. Dr. Young immediately drove him to his office, and having examined him, diagnosed the ease as hernia.

Dr. Young’s sworn statement admitted in evidence states, among other things, “he was tender over the hernia, but it was easily reduced,” which conclusively proves there must have been a previous descent of said hernia. Dr. Young then took the petitioner to his home where petitioner.notified his employer of the accident. In accordance with Dr. Young’s recommendation the petitioner entered Easton Hospital and was operated on for hernia ■ * * *.

In view of the facts which developed at the trial of this claim, I' am of the opinion that this case is to be classified from paragraph 11 (X) of the Compensation laws. The defense of the respondent in this matter seems to rest wholly on the contention that there was no prostration experienced by the petitioner immediately following this alleged accident. In taking this stand the respondent errs in that he is failing to use the word “prostration” in the manner described by the statute. By referring to said paragraph 11 (X) of the Compensation law, it will be noted that the term “prostration” is not used without some modification. It states very definitely that the prostration must be to the extent that the employe is compelled to cease work immediately.

In the case at bar the testimony shows that the petitioner ceased work immediately after the occurrence of the accident because of the severe pain which he had, and while still in distress, suffering intensely, he proceeded to call a doctor. It is evident from the testimony that the petitioner ceased work because of his pain and prostration and immediate need of medical aid.

The full five elements of paragraph 11 (X) of the Compensation law have been met, namely:

1. The descent of hernia shall immediately follow the cause;

2. There must be severe pain in the hernial region;

3. There must be such prostration as to compel the employe to cease work immediately;

4. That these facts must be conveyed to the employer within twenty-four hours;

5. The physical distress must be such as to require the attendance of a physician within twenty-four hours.

The petitioner is entitled to an award.

* * * % v * ifc ❖ ❖

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH POLITO, PETITIONER, v. COTEX CORPORATION, RESPONDENT.
    Eor the petitioner, William Notte.

    Eor the respondent, Carl 8. Kuebler, of McDermott, En-right & Carpenter.

   The petitioner, Joseph Polito, alleged that he was employed by the respondent as a colorer and that on December 21st, 1926, he had been poisoned internally from poisons which entered his system while has was working; that he has heart trouble and pains in his chest; that he spits blood and is very weak and unable to work.

It is admitted by the respondent that he was employed by it as color mixer at a salary of $31 per week, and that in December, 1926, he reported ill and was found to be troubled with a slight touch of benzol poisoning. In its answer respondent alleges that he was completely recovered on February 12th, 1927.

I have listened to the testimony of Dr. Irving Willner, M.D., who advises that there is a history of expectoration of blood from the time he stopped work until the present time; that the examination of his lungs does not reveal the presence of any active tuberculosis. There appears to be, however, a chronic bronchitis; that there is some enemia present; that the heart and abdomen appear to be normal; that reflexes are somewhat increased and Rhomberg positive. The doctor advises that the case is one of benzol poisoning and that although the man claims he has been unable to work, there is no reason why he cannot do some types of work, and the doctor 'testified that from the appearance of his hands, he would believe that he had done some work. Dr. Willner was of the opinion that the petitioner was disabled to the extent of twenty-five per cent, of total permanent and that he might improve somewhat in the near future.

I have considered the case carefully and am of the opinion that the petitioner contracted benzol poisoning, an occupational disease, in the course of his employment, and that his disability commenced within five months after the termination of his exposure, and that he should receive temporary disability for twenty-five weeks at $17 per week, in addition to the temporary disability which he has already received of four weeks, and he should receive for his permanent disability twenty-five per cent, of total, or one hundred and twenty-five weeks at $17 per week.

* s ***** *

Harry J. Goas, Deputy Commissioner.


author: Haeky J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MINNIE B. ADAMS, PETITIONER, v. PETER C. QUACKENBUSH, RESPONDENT.
    For the petitioner, Frank Smit.

    For the respondent, Clarence B. Tippett.

   ##*****#

The claim presented by the petitioner was that while employed by the respondent, and at the time while cleaning an electric dish-washing machine and having started the motor on it, her left middle finger was caught and cut by the machine, causing later amputation of part of the said finger. It was contended by petitioner that she was engaged by respondent to clean an apartment to he occupied by him at 555 East Twenty-seventh street, Paterson, New Jersey, and in consequence was making this claim for compensation.

Mr. Quackenbush asserted, in substance, that he had rented a new apartment at the above address, which consisted of about six rooms; that he desired a woman to do some cleaning preparatory to his occupancy, which work consisted of cleaning the bathroom, the floor of the kitchen, removing paint stains from the fireplace in the living room, and that upon the completion of such cleaning work as he described, which ought not to have taken more than one full day or a part of another, thg work which he desired would be done. He particularly testified that he inquired of petitioner if she knew anything about an electric dishwashing machine; petitioner replied that she knew nothing of such, whereupon he informed her to leave that thing alone and not to touch it, but to do the other cleaning work which he had outlined.

Without commenting in detail upon the testimony produced by the petitioner, her husband and Dr. Curtis, I am satified that the petitioner failed to present evidences meriting this ■claim being held compensable under the New Jersey Workmen’s Compensation act. The petitioner was solely employed to do a cleaning job in a small apartment. She was not a Tegular employe in the sense that the Compensation act construes. She was not engaged by this employer to perform ■services in connection with any business of the employer. Her employment was not regular, periodic or recurring within the contemplation of section 3, paragraph 23 (c). Her work was solely casual, within the contemplation of the statute .and decisions. Her particular business, if it may be termed such, was working out for various persons or customers, doing ■cleaning jobs. This particular job was solely and only confined to cleaning this small apartment which had been newly painted, the floors previously varnished, so that in no sense was her employment by Mr. Quackenbush other than a mere ■casual employment.

“Casual” is the antonym of the phrase “regularly employed.” It is universally defined as something which happens by chance, and lor our purposes, where an employment ■cannot be characterized as permanent or periodically regular •or recurring, but occurs by chance, and with the intention and understanding that it is not continuous, it is casual. Such ■an employe is known as a “casual employe.”

In addition to the objection against an award on the ground ■of this being a casual employment, the respondent’s counsel urged that the particular injury so sustained did not arise ■out of and in the course of the contemplated work or services for which the petitioner was engaged, since the respondent had limited the sphere of her work by particularly excluding with due notice and instructions to her, any services to be performed about or upon this electric dishwashing machine. Consequently, by her own act she had taken herself outside of any employment, and had assumed by her voluntary act a special, increased hazard.

Haeky J. Goas, Deputy Commissioner.


author: Pee Curiam.

text:
    ANNA RUBEL, PLAINTIFF, v. OSCAR WEISS ET AL., DEFENDANTS.
    Decided May 4, 1929.
    Before Gummfjie, Chief Justice, and Justice Paeecee.
    For the rule, William B. Stiles.

      Contra, Feder & Binzler.

   Pee Curiam.

The plaintiff, about ten o’clock in the morning, was riding in an automobile, owned by her and driven by her partner, along Main avenue, in the city of Passaic, traveling in a northerly direction. At the same time an automobile belonging to the defendant Weiss was being driven in a westerly direction on Brook avenue, an intersecting street. The automobile of the latter was being operated by the defendant Dora Bluestein. The two automobiles collided at the intersection of the streets named, injuring the plaintiff and damaging her car. She claims that the collision was the result of the carelessness of the defendant Dora Bluestein in driving the defendant Weiss’ ear, and brought suit against her, and also against the defendant Weiss, whose agent she was, to recover compensation from them for the injuries received by her and the damage done to her car. The trial resulted in a verdict of $2,500. in favor of the plaintiff and against the defendant Weiss only.

The first ground upon which we are asked to make this rule absolute is that the verdict so rendered was in direct opposition to the charge of the court. And this is true. The court charged the jury that if they should find Weiss liable because of his ownership of the car and the agency of Mrs. Bluestein, “the verdict in that case will be against both Mrs. Bluestein and Mr. Weiss, because, even though Mrs. Blue-stein might be the agent of Mr. Weiss, if she was negligent, she is personally responsible for her own wrongful act, as well as her principal, for whom she is the agent.” Ordinarily the failure of a jury to find a verdict either for or against one or more of the defendants in an action is no ground for' setting aside such verdict as to the defendant against whom it is rendered. But this principle does not apply where the court expressly charges the jury that their verdict must be against both or neither of the defendants, and the jury deliberately disregards that instruction.

For this reason, the rule to show cause will be made absolute.


author: Per Curiam.

text:
    HUBERT SAN GIULIANO, PLAINTIFF, v. THE BLACK AND WHITE CAB COMPANY, DEFENDANT.
    Decided May 4, 1929.

      Before G-ummere, Chief Justice, and Justice Parker.
    For the rule, Salvatore F. La Corte.

      Contra, John A. Bernhard.

   Per Curiam.

The plaintiff, a boy ten years of age, was crossing North avenue, in the town of Cranford, in a small wagon which he was propelling by one leg, the other leg being in the bottom of the wagon. The defendant company’s taxicab ran into the boy while he was crossing the street, inflicting the injuries to recover compensation for which the present suit is brought. The jury found a verdict in his favor and assessed his damages at $3. The plaintiff seeks to have this verdict set aside and a new trial ordered.

By its verdict the jury declared that the driver of the defendant’s cab was guilty of negligence causing the accident and that the boy did not contribute thereto by his own negligence. This is a necessary conclusion to be reached upon the finding that the plaintiff was entitled to recover. If this finding is justified by the evidence, the award of $3 as compensation for the boy’s injuries is entirely without justification, in view of the medical testimony in the case; and the verdict ought to be set aside for that reason. The smallness of the award would seem to indicate that the jury had some doubt on the question of the defendant’s liability.

Our conclusion is that the rule to show cause should be made absolute and the case sent back to be tried de novo.


text:
    DICK HOFSTEDE ET AL. v. CARMELO DiSTEFANO.
    Decided May 4, 1929.
    Before Gummejje, Chief Justice, and Justice Parker.
    For the rule, Mark Townsend, Jr.

    Contra, Robert H. Doherty.

   Per Curiam.

The plaintiff, Dick Hofstedé, a boy twenty years old, while riding a bicycle in a northerly direction on the Hudson County Boulevard,-was run into by the automobile of the defendant, which was traveling in the opposite direction. The present suit is based upon the boy’s claim that the collision resulted solely by reason of the carelessness of the driver of the defendant’s car. His mother, who is a widow, also claims to be entitled to compensation for medical expenses incurred by her in the treatment of her son, and for the loss of his wages resulting from the accident. The trial resulted in an award to the boy of $2,200 and to the mother of $800.

The first contention .on the part of the defendant is that the verdict is contrary to the clear weight of the evidence, both upon the question of his negligence and also on the question of the contributory negligence of the boy. Our examination of the proofs satisfies us that this contention is without merit. If the testimony submitted by the plaintiffs is accepted as true, it is clear that the defendant alone was responsible for the accident, and it was for the jury to say, after having seen and heard the witnesses produced by the plaintiffs, and also those called on behalf of the defendant, whether the testimony of the witnesses on the one side or the other should be accepted as true. They believed the witnesses called by the plaintiffs, and in our opinion were entirely justified in doing so.

The only other ground for making the rule absolute is that the trial court erroneously overruled the motion of the defendant to strike out a part of the testimony of one Dr. Helfond relating to the loss of the function of the boy’s arm; the ground of the motion being that the doctor’s opinion was based upon subjective symptoms elicited by him at an examination made of the boy’s condition merely for the purpose of testifying at the trial. In passing upon this ground for making the rule absolute it may be conceded that the testimony was objectionable. It appears, however, that this testimony was given during the morning session of the court; that after it was given the noon recess was taken; that after the noon recess the plaintiffs called two more witnesses and then rested their ease, and that after the plaintiffs had rested this motion was made. The court refused to consider it on the ground that it came too late, and in our opinion the court’s action was entirely justified. The testimony was introduced without objection made when it was offered. Under our practice a motion to strike out testimony must be made immediately after its admission or as soon thereafter as its illegality might have been discovered. There is no explanation for the delay in making the motion in the present case, and in the absence of such explanation the action of the '’ourt, as we have already stated, was entirely proper.

The rule to show cause will be discharged.


text:
    CHARLES R. GUERIN ET UX. v. WILLIAM J. KLOD.
    Decided May 4, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the rule, Heine & Laird.

      Contra, Wilbur A. Heisley.

   Per Curiam.

The plaintiffs in the present case are husband and wife. While they were riding in a car owned by and driven by the husband along the road from Eatontown to Long Branch they were run into by a car operated by the defendant, Mod. Mrs. Guerin was injured in the collision, and the car in which they were driving was considerably damaged. The plaintiffs claimed that the collision was due solely to the negligence of the defendant, Mod, and brought the present suit to recover compensation for the injuries received by the wife, and also for the loss of her services by the husband resulting from the accident and for the medical expenses incurred by the husband in the treatment of her injuries, and also for the damage done to his car. The trial resulted in a verdict in favor of each of the plaintiffs, the jury awarding the wife $2,000 and the husband $1,000.

The first contention made before us is that the damages awarded Mrs. Guerin are excessive. Our consideration of the proofs in the cause leads us to the conclusion that the award to her is very moderate.

It is further claimed that the award to the husband is also excessive. The proofs satisfy us that this contention is also without merit.

Other grounds upon which we are asked to make the rule absolute are directed at alleged errors in the charge to the jury upon the subject of the rights of the parties upon the respective highways along which they were severally traveling, and upon the instruction that the jury could not render verdicts in excess of the ad damnum clauses contained in the complaint. In our opinion, each of these matters was correctly dealt with by the trial court.

For the reasons indicated, the rule to show cause will be discharged.


text:
    JOHN HAMMOND ET AL. v. JOSEPH WACKER.
    Decided May 4, 1929.
    Before Gummere, Chiee Justice, and Justice Parker.
    For the rule, George W. G. McCarter.

      Contra, Theodore D. Parsons.

   Per Curiam.

This is an action for personal injuries. The trial resulted in verdicts in favor of the plaintiff John Hammond and of his mother, with whom he was living and who supported him. The facts relating to the accident were as follows: The defendant operated an auto bus under a contract with the board of education of Middletown, which required him to carry pupils to and from the Leonardo High School. John Hammond was one of the pupils so carried. He was thirteen years old. The accident happened in East Keansburg, at the corner of Port Monmouth road and Ocean avenue. The auto bus was then upon its way to the high school, and one of its regular stops was on the far corner of these two intersecting streets. At that corner some sixteen boys and girls, including the plaintiff John Hammond, had collected, waiting for the arrival of the bus. John saw it approaching, and, instead of waiting until it came to a standstill at its regular stopping place, hurried across the intersecting street, evidently for the purpose of being one of the first of the crowd of sixteen to get on the bus. The door of the bus was open, and he attempted to board it while it was still in motion and approaching its regular stopping place. At that moment the bus swung off the concrete toward the curb, and John, who had taken hold of the handles of the bus, lost his grip, slipped under the wheels and was run over. This is his own story, and it demonstrates that the accident was due, in part at least, to his own negligence.

Por this reason the rule to show cause will be made absolute.


author: Pee Cukiam.

text:
    DANIEL HENDERSON ET UX. ET AL. v. ABBOTTS ALDERNEY DAIRIES, INCORPORATED.
    Decided May 4, 1929.

      Before Gummeke, Chjee Justice, and Justice Pakkee.
    Eor the rule, Howard L. Miller.

      Contra, LeBoy W. Loder.

   Pee Cukiam.

This is an automobile accident case. On the 6th of July, 1926, two of the plaintiffs, Rae Henderson and Jennie Stancil, were driving along the Millville Pike, near Bridgeton, in an automobile belonging to the former’s husband. As they reached the intersection of a highway known as Carmel road a truck belonging to the defendant company came out of this road and collided with the car in which these two women were riding. They brought suit against the company to recover compensation for the personal injuries that were received by them respectively in the collision. Their husbands were joined as plaintiffs. Stancil claimed compensation for the loss of services and companionship of his wife and for the medical expenses incurred by him in the treatment of her injuries. Henderson claimed like compensation, and also compensation for the damage to his car. The trial resulted in the rendition of a verdict in favor of Mrs. Henderson for $10,000; of a verdict in favor of Mrs. Stancil for $1,750; of a verdict in favor of Mr. Henderson for $1,500, and of a verdict of no cause of action as to Mr. Stancil.

The finding of the jury in favor of Mrs. Stancil and against her husband was in direct disregard of the charge of the court, which was that if they found the driver of the defendant’s truck solely responsible for the accident, they should return verdicts in favor of each one of the four plaintiffs. The only ground upon which the verdict against Stancil can be justified under the charge is that the jury found that the defendant’s driver was not guilty of negligence causing the accident. If that finding was justified, then the finding in favor of the other plaintiffs cannot be sustained. Lanning v. Mercer County Traction Co., 3 N. J. Mis. R. 1006. In that case we stated that verdicts similar to those in the present case were absolutely irreconcilable and demonstrated the unfitness of the jury to determine the respective rights and obligations of the parties to that litigation. This statement, in our opinion, is applicable to the jury in the present case.

The rule to show cause will be made absolute.


author: Per Curiam:.

text:
    THOMAS N, ADKINS, ADMINISTRATOR AD PROSEQUENDUM, PLAINTIFF, v. PHILADELPHIA, TRENTON AND CHESTER COMPANY, DEFENDANT.
    Decided May 4, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the rule, Clarence E. Case.

      Contra, Frederick A. Pope.

   Per Curiam:.

This is an automobile accident case. The decedent, Adkins, was an employe of one Cordrey. The accident which caused his death occurred while he and his employer were returning from New York in a truck which was being driven by the latter. The decedent was asleep in the rear of the truck. Both parties lived near Delmar, a town on the boundary line separating the southerly part of the State of Delaware from the State of Maryland. They left that place on the 4th of August, 1927, with a load of produce to be delivered in New York. They traveled all day, reaching New York at about eleven o’clock at night. Upon reaching their destination they discharged their load, and half an hour later started on their journey home. At a point on the Lincoln Highway near New Brunswick their truck collided with a truck owned by the defendant corporation.

The principal question for determination was whether the accident was the result of the carelessness of the driver of the defendant’s truck, or that of Cordrey, or the concurrent negligence of the two. Our examination of the proofs leads us to the conclusion that the accident was solely the result of negligence on the part of Cordrey. By his own admission, made to at least two disinterested witnesses almost immediately after the occurrence of the accident, he had fallen asleep in the truck and did not wake up until almost the moment of the collision. The great preponderance of the evidence clearly supports the conclusion that the driver of the defendant’s truck was traveling on the right-hand side of the road; that he saw the plaintiff’s truck approaching, wabbling from one side of the road to the other; that as it got near to him it suddenly swung straight at him; that in order to avoid a head-on collision he undertook to pass it on the left, whereupon the other truck suddenly changed his course and almost immediately smashed into that of the defendant.

The verdict of the jury being contrary to the great weight of the evidence, the rule to show cause will be made absolute for that reason.


text:
    DONATO LATTANZI, PLAINTIFF, v. PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANT.
    Decided May 4, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the rule, Henry H. Fryling.

    Contra, William C. French.

   Per Curiam.

The plaintiff brought the present suit to recover compensation for personal injuries received by him in a collision between a motor truck which belonged to him, and in which he was riding, and a bus of the defendant company, and also for damages done to his truck. The plaintiff’s truck was being driven by his son, a boy eighteen years old, who had no driver’s license. The trial resulted i'n a verdict in the plaintiff’s favor, the jury awarding him $10,000.

Our examination of the testimony in the case satisfies us that the finding of the jury, which exonerates the plaintiff’s driver from negligence contributing to the accident, is contrary to the great weight of the evidence.

Eor this reason the rule to show cause will be made absolute.


text:
    FRANCES C. ROGERS, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Decided May 4, 1929.
    Before Gummeke, Chief Justice, and Justice Pabkeb.
    For the rule, Henry H. Fryling.

      Contra, James W. Rea, Jr.

   Pee Cukiam.

The plaintiff brought this action to recover compensation for personal injuries suffered by her and for damage done to her automobile resulting from a collision with a trolley car of the defendant in June, 1926, at about nine o’clock in the evening. The trial resulted in a verdict in her favor, the jury awarding her $1,200.

Our examination of the evidence sent up with the rule satisfies us that, on her own testimony, the collision is shown to have been the result in part, if not altogether, of her own negligence.

For this reason, the rule to show cause will be made absolute.


text:
    WILLIAM S. VOORHEES, PLAINTIFF, v. BOICE RUNYON COMPANY, DEFENDANT.
    Decided May 4, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the rule, Charles Jones.

      Contra, Farncis A. Gordon and David T. Wilentz.

   Per Curiam.

This action was brought to recover compensation for personal injuries. The plaintiff visited the lumber-yard of the defendant for the purpose of purchasing a board of a particular size and material. He was taken charge of by an employe of the defendant and shown to a bin in which such lumber was stored. The bin was part of a wooden shed, and the defendant’s servant called the attention of the plaintiff to a particular board in the pile that was there stored. The plaintiff was doubtful whether this board was just what he wanted, being uncertain as to its size, and he was then furnished with a rule by the defendant’s employe by which to measure this particular board. In order to reach it, the plaintiff walked across a flooring, or plank, in the bin, which broke after he had taken two or three steps, causing him tp fall. As the result of his fall he received the injuries for which he now seeks compensation. The trial terminated in jis favor, the jury awarding him $10,500.

The first contention, on behalf of the defendant is that the present rule should be made absolute because the trial court erroneously refused to nonsuit the plaintiff, and also denied a motion to direct a verdict in the defendant’s favor. Our examination of the evidence satisfies us that the refusal of each of these motions was proper.

It is further contended on behalf of the defendant that the finding by the jury that the accident was the result of negligence on the part of the defendant, and that the plaintiff did not contribute thereto by his own negligence, is contrary to the clear weight of the evidence. We cannot concur in this view.

It is further argued that the court erroneously refused to charge the jury certain requests submitted by the defendant. Our consideration of these requests leads us to the conclusion that the refusal of the court'to charge them as submitted was proper.

Lastly, it is contended that the verdict is excessive. An examination of the proofs bearing upon the character of the plaintiff’s injuries satisfies us that this contention is well founded.

If the plaintiff will consent to a reduction of the .verdict to $7,000, he may enter judgment for that amount; otherwise the rule to show cause will be made absolute.


text:
    MARGARET L. GOODRIDGE, RESPONDENT, v. ALFRED CREW, Jr., ET AL., EXECUTORS, ETC.. APPELLANTS.
    Decided May 4, 1929.

      Before Gummere, Chief Justice, and Justice Parker.
    Eor the appellants, Addison P. Rosenkmns.

    For the respondent, Peter J. McGinnis.

   Per Curiam.

The plaintiff brought the present suit upon a parol contract entered into between her husband and the defendants’ testator somewhere about the year 1910, by the terms of which the latter, one Alfred Crew, promised Goodridge, who was in his employ looking after the financial end of Crew’s business, that if he would continue in that employment as long as he lived—that is, as long as Crew lived—he would amply provide for Goodridge and his wife during their natural lives; or, in the event that Goodridge died before him, he would provide a pension for Mrs. Goodridge for her life. Pursuant to this contract Goodridge remained in Crew’s employment until the former’s death in March, 1926. Crew died in October of the same year. After his death his executors refused to recognize any obligation arising out of the contract between these two men and declined to pay Mrs. Goodridge anything by reason thereof. She thereupon brought the present suit.

The validity of the contract was not attacked. The only question raised by the defendants was one of fact, namely, whether this contract had ever been entered into between Crew and Goodridge. The jury found that it had been and rendered a verdict in favor of Mrs. Goodridge, awarding her $29,250. The defendants have appealed from the judgment entered on this award.

The only grounds relied upon for reversal are directed at alleged errors in the admission of testimony tending to show the amount of the estate which Crew left at his death and the extent of the business carried on by him as indicated by his bank balances from time to time during his lifetime and after the making of the alleged contract. Crew was engaged in the business of silk dyeing and finishing, and the financial part of the business, as has already been stated, was entrusted to Goodridge. The value of the services rendered by the latter naturally must have depended largely upon the size of the business and the income and outgo therefrom. In other words, the value of the services of the financial agent of a concern which is carrying on a business of many thousands of dollars a year is much greater than the value of services rendered by such an agent in a business which is earning only a few thousand dollars a year; and the amount of the principal’s bank account from time to*time, and the amount of the estate left by him at his death, and which it was shown was largely the result of the profits accruing from the business while Goodridge was in his employ, were material as indicating the value of the services rendered by Goodridge to his employer, those services being a material element in determining what would be a fair pension for the plaintiff in case her husband’s death occurred during the lifetime of Crew.

We conclude that there was no error in the admission of the testimony referred to, and, as the validity of the contract was not involved in the litigation, the judgment under review will be affirmed.


text:
    GEORGE KIRCHNER, PLAINTIFF, v. JOSEPH SCHMITZBERGER, DEFENDANT.
    Decided May 4, 1929.
    Before Gummeee, Chief Justice, and Justice Parker.
    Eor the rule, Emile Neblo.

    Gonira, Reynier J. Wortendylce, Jr.

   Pee Curiam.

The present suit was brought by the plaintiff, a young child, about five years old, to recover compensation for injuries received through being struck by an automobile of the defendant on Madison street, in the city of Hoboken. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $500. He now asks to have this verdict set aside on the ground that the award is inadequate.

A consideration of the character of the plaintiff’s injuries and the results thereof satisfies us that the sum awarded by the jury as compensation therefor is not so inadequate as to justify us in setting the verdict aside. ■

The rule to show cause will be discharged.


text:
    MICHAEL S. PRECKER ET AL., RESPONDENTS, v. JACOB WINARSKY, APPELLANT.
    Decided May 4, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    For the appellant, Philip J. Schotland.

    For the respondents, Andrew J. Whinery.

   Per Curiam.

The plaintiffs, who are practicing attorneys-at-law of this state, brought suit against the defendant to recover compensation for legal services rendered to him, including a counsel fee which they claimed was paid by the express authority of the defendant, who agreed to reimburse them therefor. The case was tried before Judge Yan Riper, without a jury, and at the close of the hearing he directed a judgment in favor of the plaintiffs for the full amount of their claim. From this judgment the defendant has appealed, and has filed the following grounds for reversal: (1) The judgment of the court is against the weight of the evidence. (2) The judgment of the court is not supported by the evidence. (3) The amount of the judgment of the court is excessive and is not supported by the evidence.

On appeal from a judgment brought up for review, this court will take cognizance only of errors of law alleged to have been committel by the court below during the trial of the cause. VanSciver v. Public Service Railway Co., 96 N. J. L. 13. None of the grounds of appeal in the present case suggests the existence of any such errors. They all relate to matters which would be pertinent on a rule to show cause, but not one of them forms the basis for the review of a judgment on appeal.

Eor the reason indicated, the judgment of the Essex County Court of Common Pleas will be affirmed.


text:
    RICHARD MINOCHIAN ET AL., PROSECUTOR, v. CITY OF PATERSON, DEFENDANT.
    Decided May 6, 1929.
    Before Justices Teenchard, Kalisch and Lloyd.
    Eor the prosecutor, Edward F. Merrey.

    Eor the defendant, Benjamin J. Spitz.

   Per Curiam.

The petition for a rehearing is denied.

Reported in 6 N. J. Adv. R. 1905.


author: Bodine, J.

text:
    WILLIAM V. CONKLIN ET AL., PROSECUTOR, v. MAYOR AND COUNCIL OF THE CITY OF LINDEN AND JOSEPH SHUR AND LOUIS OKUN, TRADING AS SHUR & OKUN, DEFENDANTS.
    Argued April term, 1929
    Decided May 6, 1929.
    For the rule, William L. Edwards.

      Contra, Sigurd A. Emerson.

   The opinion of the court was delivered by

Bodine, J.

The prosecutor Conklin is engaged in the heating and ventilating business. The city of Linden has undertaken the erection of a new city hall. Pursuant to advertisement, bids were received by the mayor and common council. Bidders were invited to procure copies of the plans and specifications and to submit their bids upon a form to be procured from the architect in charge. Mr. Conklin’s bid for the work called for under group No. 4 was $21,931, and for the alternate No. 1 for heating during construction, eight hours, $20; sixteen hours, $36; twenty-four hours, $48. The bid of Shur & Okun, the successful bidder, was $22,750 for the work under group No. 4, with the alternate bid for heating during construction, eight hours, $16; sixteen hours, $32; twenty-four hours, $48.

The mayor and common council, under the advice of the architect, and the proofs show the advice reasonable, awarded the alternate bid for heating for sixteen hours a day. About six months heating will be required. Shur & Okun’s bid was low, so the contract was awarded to them pursuant to chapter 137 of the laws of 1925.

The proposals for the work required the bidders to submit with their bids the name and size of the oil burner which they proposed to use. Conklin did not do this. This circumstance is probably sufficient to deny him any relief here. See Case v. Trenton, 76 N. J. L. 696.

However, the prosecutor contends that there is some irregularity in the adoption of the plans and specifications. The plans and specifications were prepared a number of years ago by a former architect and were paid for by the city. The project was abandoned, and on January 28th of this year an ordinance was passed undertaking the work and employing the present architect, who made some changes in the plans and specifications. However, the plans and specifications as finally evolved by the present architect were furnished to the prosecutor and all other bidders so that they were all bidding for the same thing. Neither the contractor, Conklin, nor the other prosecutor as taxpayers suffered any special injury by reason of a change of plans and specifications by the present architect since all bidders were bidding on precisely the same thing. See Atlantic Gas and Water Co. v. Atlantic City, 73 N. J. L. 360.

The proposal for alternate bid No. 1, which is the basis for the contention that Conklin was the low bidder rather than Shur & Okun, reads as follows: “The heating contractor shall state in his estimate the sum he will charge per day for furnishing labor to operate the boiler during such period as temporary heat may be required. The sum stated shall cover all costs in connection with the temporary heat, except the cost of fuel which will be furnished by the owner.” It is difficult to understand how, in view of this mandatory provision requiring a bid for furnishing heat during construction a contention can be maintained that Conklin was low since Shur & Okun’s bid to furnish the heat was $4 less per da3q and heat for sixteen hours per day for at least six months is required.

The rule will be dismissed.


author: Pee Cükiam.

text:
    DANIEL ROSS, ADMINISTRATOR AD PROSEQUENDUM OF CHRISTINA ROSS, DECEASED, PLAINTIFF, v. THE PENNSYLVANIA RAILROAD COMPANY ET AL., DEFENDANTS.
    Submitted October term, 1928
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.
    For the rule, Wall, Haight, Carey & Hartpence.

      Contra, Richard J. Mackey (Joseph Walker Magrauth, of the New York bar, on the briefs).
   Pee Cükiam.

The plaintiff has a verdict for $25,000 for damages for the death of Christina Eoss, the mother of Thomas Eoss, Jr., who at the time of the death of his mother was about four years of age. He is her sole next of kin.

The single ground urged under this rule is that the verdict is excessive.

We think it is. If the plaintiff will consent to a reduction of the verdict to the sum of $15,000, it may stand for that amount, otherwise the rule to show cause will be made absolute and a venire de novo issue as to the question of damages only.


text:
    EDWARD H. ELLIS v. VICTOR ROBINSON.
    Decided May 9, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the rule, Bleakly, Stockwell & Burling.

    Contra, S. Huntley Beckett and Samuel P. Orlando.

   Per Curiam.

The plaintiff was a contractor engaged in the work of constructing a state highway leading from Yineland to Mill-ville. The highway consisted of a twenty-foot width of concrete, with gravel shoulders on each side ten feet in width. On the 12th of November, 1926, after his day’s work had been completed, the plaintiff parked his truck on the side of the road, and while it was standing there the defendant, who was driving a Nash sedan owned by him, ran into the rear end of the truck, damaging it to some extent. The plaintiff brought the present suit to recover compensation for the injuries done to his truck, claiming that the collision occurred solely by reason of the negligence of the defendant. The latter counter-claim, alleging that the collision was the fault of the plaintiff, and that as a result thereof he was severely injured and his car greatly damaged. At the trial of the case the defendant, in support of his contention, produced evidence showing that the truck was parked diagonally on the side of the road along which the defendant’s car was traveling in such a way that part of it projected over the concrete; that it was dusk at the time of the collision, which occurred about half past five in the evening; that he was driving on the right-hand side of the road and near the edge of the concrete; that there was no light on the truck; that he did not see it until he was almost upon it, and that he then undertook to swerve so as to avoid a collision, but was unsuccessful in doing so. At the close of the case the jury returned a verdict of no cause of action as to the plaintiff, and awarded the defendant $3,000 on his counter-claim.

The first contention made by the plaintiff before us is that this verdict is against the weight of the evidence. His case before the jury was that the truck was not parked in the way claimed by the defendant; that it did not project over the concrete; that although it had no lights on it, it was not necessary, because the accident occurred about five o’clock and before it grew dark. The jury, after a consideration of the testimony, accepted the story of the witnesses produced by the defendant, and rendered their verdict accordingly. That they were justified in accepting this testimony as a true statement of the facts cannot be successfully controverted; and this testimony fully supported their verdict.

It is further argued that the trial court erred in refusing to nonsuit the defendant on his counter-claim upon the ground that there was no evidence to support it. Eor the reasons already stated, we consider this ground for setting aside the verdict to be without weight.

Lastly, it is asserted on behalf of the plaintiff that the damages awarded are excessive. We think not. The jury was justified in finding that, as a result of the accident, the defendant was incapacitated for work for nearly a year, thereby suffering a loss of earnings amounting approximately to $1,200. The proof submitted by the defendant shows that the value of his automobile was decreased by the collision to the extent of $800. His medical expenses as the result of the accident were between $85 and $100. The balance of the award, somewhat less than $1,000, was presumably for pain and suffering on the part of the defendant and resulting from the accident.

For the reasons stated, the rule to show cause will be discharged.


text:
    OTIS WILLIS v. JOHN A. BOEHME.
    Submitted October 12, 1928
    Decided May 7, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the appellant, Ward Kramer.

    Eor the respondent, William Hartshorne.

   Per Curiam.

The present suit was brought by the plaintiff to recover a commission from the defendant, who was a real estate agent in Asbury Park and Bradley Beach. The latter having become aware that one Mrs. Haschert was intending to purchase a summer home in that neighborhood and knowing that she was related to the plaintiff, sought him out and promised that if he could get Mrs. Haschert to purchase property which was in his (the defendant’s) hands for sale as a real estate broker he would pay the plaintiff half the commissions received for the sale. The plaintiff accepted the offer and showed Mrs. Haschert various pieces of property in that locality which had been placed by the respective owners thereof with the defendant for sale, with the result that she became interested in one of them and negotiated with the defendant for its purchase, and that purchase was finally consummated. Plaintiff then requested the defendant to pay him the one-half of the commission received by him from the latter on the sale, and this request was refused. He then instituted the present suit and the trial resulted in a verdict in his favor. Prom the judgment entered thereon the defendant has appealed.

The single ground upon which we are asked to reverse the judgment under review is that the trial court erred in refusing to direct a nonsuit or a verdict for the defendant. These motions were made upon the theory that it conclusively appeared that the plaintiff while acting as the representative of Mrs. Haschert in the transaction was attempting to persuade her to purchase the property in order that he might share in the commissions to be paid by the owner in case of the sale; and the argument is that public policy will not recognize the validity of a contract such as that now before us when these facts are made to appear. We have no quarrel with the legal proposition, but our examination of the case satisfies us that it was a disputed question of fact at the trial whether the plaintiff was or was not acting in a dual capacity, that is, acting as the representative of Mrs. Haschert in the transaction and also attempting for his own benefit to persuade her to purchase the property. This being so it was for the jury, not for the court, to determine the status of the plaintiff in the transaction leading to the purchase of the property by Mrs. Haschert; and, consequently, the motions to nonsuit and to direct a verdict for the defendant were each of them properly refused.

The judgment under review will be affirmed.


author: Pee Cueiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. FRANK MAURONE, PLAINTIFF IN ERROR.
    Submitted January term, 1929
    Decided May 8, 1929.
    Before Justices Black, Campbell and Case.

      For the plaintiff in error, Robert Peacock.

    For the state, George M. Hillman.

   Pee Cueiam.

The plaintiff in error was convicted in the Burlington Court of Quarter Sessions on two indictments, tried together, the one charging him with atrocious assault and battery upon Hubert Kernan and the other charging a like offense upon Frank Murray. The cases are brought up on writ of error under the one hundred and thirty-sixth section of the Criminal Procedure act. The assignment of causes sets forth six reasons, namely:

1. The state failed to prove defendant guilty of the charges.

2. The court failed to direct a verdict in favor of the defendant, Frank Maurone.

3. The verdict was against the weight of the evidence.

4. The court allowed illegal evidence to be presented against the defendant.

5. The court’s charge was contrary to law.

6. The court rejected legal evidence for the defendant. An examination of the evidence shows that the verdict is not against the weight of the evidence, which finding disposes of the first, second and third reasons.

On the argument counsel for the defendant waived and abandoned the fifth assignment.

There were no specifications under the fourth and sixth assignments; therefore these assignments do not comply with the requirement that the grounds of error or causes for reversal must be definitely pointed out and assigned or specified with sufficient precision to apprise the court and opposing counsel of the injury complained of. State v. Herron, 77 N. J. L. 523; 71 Atl. Rep. 274; State v. Schultz, 126 Id. 443. Nevertheless, we have examined the matters referred to thereunder in the brief of counsel and find no prejudicial error therein.

The judgment under review will be affirmed.


author: Pee Cubiam.

text:
    MARY BIER ET UX ET AL. v. HARRY HOHORST ET AL.
    Decided May 7, 1929.
    Before Gummebe, Chiee Justice, and Justice Paekek.
    Eor the rule, Samuel Ilirschberg.

      Qontra, George L. Record.

   Pee Cubiam.

Three of the plaintiffs in this case, Mary Bier, Bertha Bier and Howard Loutell, were each of them injured in a collision between a sedan ear in which they were riding and an auto bus owned by the defendant Hohorst and driven by the defendant Stoebling. They sued to recover compensation for the injuries received by them respectively. The remaining plaintiff, Joseph Bier, is the husband of Mary Bier and the owner of the sedan car in which the other plaintiffs were riding at the time of the collision. He seeks remuneration for the expenses incurred by him in the treatment of his wife for her injuries; compensation for the loss of her services and companionship, and payment of the moneys expended by him in the repair of his car. The basis' of the claims of the several plaintiffs was and is that the collision was due solely to the carelessness of the defendant Stoebling in his driving of the bus. The trial resulted in a verdict in favor of the defendants, and we are now asked to set it aside as contrary to the weight of the evidence.

In view of the instructions of the court in the charge to the jury, the verdict was, by necessary inference, based upon a finding that the collision was not caused by any negligence on the part of the defendant Stoebling in the driving of the bus. Our examination of the proofs sent up with the rule satisfies us that the jury.was entirely justified in so finding.

The rule to show cause will be discharged.


text:
    CLIFTON JORDAN, PROSECUTOR, v. BOROUGH OF DUMONT ET AL., RESPONDENTS.
    Submitted January term, 1929
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.
    Eor the prosecutor, J. Emil Walscheid.

    Eor the respondents, William M. Seufert.

   Per Curiam.

This proceeding brings up for review proceedings culminating in the award of a contract to I. B. Miller, Incorporated, for the improvement of New Milford avenue, in the borough of Dumont, in Bergen county.

The proceedings and award are attacked in two directions, viz.:

1. Because the proposals and bidding sheets left open to each bidder to designate the number of working days in which he would perform the work.

This is violation of section 5, article 11 of the Home Rule act (Pamph L. 1917, ch. 152) and of the principle enunciated by Armitage v. Newark, 86 N. J. L. 5. For this reason alone the proceedings under review must be set aside.

2. Because the bidders were required to bid upon certain quantities and sizes of cement pipe for subdrainage and the specifications and contract contained no requirement therefor, and such items constituted a part of the basis of estimating the standing of the bidders.

This is not denied by the respondents but they attempt to urge that it is immaterial because they say it is well known that in all such improvements subdrainage is necessary, and, no doubt, it will be necessary here.

We think it is but proper to note that the successful bidder, I. B. Miller, Incorporated, bid extremely low on these items and that excluding its bid upon these items it would not have been the lowest bidder. This places the bona fides of these items in serious doubt and dispute and would incline us to the conclusion that the bidding was not open to equal opportunity by all bidders.

The proceedings under review will be set aside, with costs.


author: Pee Cdeiam.

text:
    COMMUTERS’ COACH COMPANY, RELATOR, v. JOSEPH MINTON, DIRECTOR OF PUBLIC WORKS OF BAYONNE, ET AL., RESPONDENTS.
    Submitted January term, 1929
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.
    For the rule, Thomas F. Meehan.

      Contra, James Benny.

   Pee Cdeiam.

The issuance of a writ of mandamus is sought to compel the director of public works of the city of Bayonne to issue a permit to relator to erect a garage for the storage of its buses on Broadway in that city.

We think that in the exercise of proper judicial discretion the writ should be denied because the proofs fairly establish, that the location of the proposed garage is in a residential section of the city, although more or less undeveloped and the city commissioners have appointed a zoning commission, pursuant to statute, and said commission is proceeding with its-work, which should not be interfered with or disturbed by a structure of this kind at this time.

The rule to show cause is therefore discharged, with costs.


author: Backes, Y. C.

text:
    Solomon Bernstein, complainant, v. New Jersey Bankers Securities Company, a corporation, et al., defendants.
    [Decided May 11th, 1929.]

      Messrs. Leber & Bubaclc, for the complainant.

      Messrs. Collins & Corbin, for the defendants.
   Backes, Y. C.

The directors of the New Jersey Bankers Securities Company agreed, subject to the approval of two-thirds in holdings of its stockholders, to exchange all its tangible assets, with a single exception, for one hundred fifty-two thousand three hundred and forty-nine shares of preferred stock, known as Class A, non-voting, of the Equitable Finance Corporation of New York, which would yield to the Bankers company one share of the Equitable for every shareholder’s four shares in the Bankers. The bill charges that the exchange is in effect a merger and ultra vires, and that it is unfair and inequitable, in that an exchange on a true value basis should yield two hundred twenty-nine thousand five hundred and fifteen shares of the Equitable. A meeting of the stockholders was called to ratify the agreement. On the filing of the bill an order to show cause issued with a temporary restraint against carrying the agreement into effect, and later another against holding the meeting. Counsel furnished the court with their affidavits before the hearing day and at the hearing, for reasons then stated and some unspoken but hereafter given, the court announced (the defendants having filed their answer) that hearing on the rule would be continued to final hearing, and for that purpose would give an early day and set the cause down for May 23d, to which Mr. Markley, counsel for the defendant, expressed entire satisfaction. He has the reporter’s notes. The meritorious questions were not considered. Notwithstanding his acquiescence in the course he has appealed from the order of continuance which carries the restraint against consummating the deal but lifts the embargo on the ratification meeting. After the hearing was adjourned counsel together prepared the form of the order and upon presentation at side-bar Mr. Markley stated that he did not wish to be regarded as consenting to the order. Thinking that he desired to relieve himself of criticism from his client, if any, and to pass it on to the court, the court acquiesced. Had he expressed himself as dissatisfied or intimated a desire to proceed the hearing would have been resumed, but not on the affidavits alone. The underlying circumstances were such as to warrant a cross-examination of the affiants for fuller information than that furnished by the affidavits, and that would have been the course. That information it was hoped would be forthcoming in an- open court hearing of witnesses. The court’s purpose in continuing the hearing to final hearing was two-fold: to protect the directors against a responsible misstep, possibly induced by the same sinister influence that beguiled some of their predecessors into a confidence which permitted others to loot the company and despoil the stockholders; and to insure the fifteen thousand stockholders a fair and equitable exchange and protect them against a possible second raid, of which there were some ear-marks.

After the disclosure before a legislative committee which investigated the affairs of the Bankers company and the activities of Harry Weinberger, its promoter, a bill was filed for a receiver of the company in which the directors were charged with serious misconduct in corporate management; and particularly Weinberger, the master mind, who ran riot with the company’s finances and is still at large. The court sat in that case and is fully informed of the then situation. The suit was eventually discontinued upon a reorganization of the directorate and the election of the present board, the individual defendants in this action, and after Weinberger agreed to purchase one hundred seventy-two thousand and thirty-four shares of the company stock and thereby restore to its treasury $2,500,000. This, by paying $200,000 in cash and giving his note for $2,300,000, secured by collateral and a guarantee to the extent of $50,000 by each of the members of the old board responsible for the debacle. The one hundred seventy-two thousand and thirty-four shares are part of the collateral and in Mr. Markley’s hands as trustee to vote them in the interest of the company.

As to the exchange: The Bankers have assets of $8,792,513.69, book value, which for exchange purposes were cut down to $5,558,584.14. The exchange values were calculated on average bid and ask quotations of the stocks of the two companies. Neither is on an exchange. It is a moot question whether this or true book values of the respective companies is an equitable basis of exchange. It would seem that the moribund Bankers is at a disadvantage and it is suggested as to the Equitable, that the market is sometimes rigged. Mr. Jelin, until recently the managing director of the Bankers, estimates the loss to his institution at $1,500,000, and in calculating the assets of the two companies at their book value arrived at the result of two and eight-tenths shares of the Bankers for one share of the Equitable, as against four for one on quoted prices; and he also points out what he regards as an unfair and apparently arbitrary reduction of $850,000 in assets value of the Bankers for purposes of the trade. It also appears in the proofs, by way of supporting the charge of unfairness of the exchange, that Weinberger initiated and negotiated the deal with one Spielberg, who controls the Equitable, and that in the first proposition of exchange, submitted by a public accountant, as advisor, the $2,300,000 note of Weinberger was disregarded as an asset in arriving at the exchange ratio of four to one, and that in the second, made within a week, the note was taken into account at its face value and by a readjustment of the values of the other assets of the Bankers the exchange ratio remained the same, four to one. And further, in the formal agreement submitted to the stockholders for ratification it is stipulated as a condition precedent that Weinberger’s written assent should be procured to the Bankers transferring his $2,300,000 note. These things give pause. The court at this time has no comment to make as to the fairness or unfairness of the contract. It may be highly beneficial to the stockholders that the exchange be made, and it may be disastrous. The court makes no criticism of the directors’ conduct, treating them at this time as having acted in good faith, but the court wants to be shown. It is not unmindful that ordinarily it is not the business of the court to interfere with the management of the internal affairs of corporate bodies in the absence of fraud, but it must be observed that the present transaction is not the ordinary business of the defendant company but is what may be called a bulk sale and to all practical purposes a merger, and as to this the stockholders are entitled to the fullest discovery and protection against their trustees, the directors, in a situation where they collectively have such vast sums at stake.

The fact that the complainant has but a small holding is not overlooked, but that is irrelevant in view of the fifteen thousand shareholders for whose protection the bill is filed and who have already suffered losses of millions of dollars. Under the manipulation of the market by Weinberger, aided by an ornate and supine board of directors, the stock sold as high as $17.50 per share; today the shares are selling at five and six dollars.

• The speeding up of the cause was thought to be to the advantage of all concerned. Query: Is there something concealed that ought to be revealed?


text:
    FLORIAN BEDNARIK, PLAINTIFF, v. MANUEL METH, DEFENDANT.
    Decided May 7, 1929.
    Before G-ummeke, Chief Justice, and Justice Pakkek.
    Eor the rule, Nicholas 8. Schloeder.

      Contra, Warren Dixon.

   Pee Cukiam.

The plaintiff brought suit on a promissory note for $500 made by one Zemanek and endorsed by the defendant, Meth. The note was dated December 1st, 1925, and fell due thirty days from the date thereof. The defendant, Meth, filed an answer to the complaint denying liability, and, the case being at issue, it was regularly set down for trial at the Hudson Circuit on due notice. When the day fixed for the trial arrived the case was called and the trial thereof was moved by counsel for the plaintiff, both the defendant and his attorney being absent from the court. A jury was thereupon empanelled and the case tried ex parte, with the result that a verdict was rendered in favor of the plaintiff for the full amount of the note. The defendant now asks to have this verdict set aside because the case was tried in the absence of himself and his attorney. We consider that the mere fact of such absence affords no reason for granting the relief sought. Presumably it was due to the neglect of the defendant’s attorney. He attempts to excuse his absence by saying that he was led to believe, from inquiry among lawyers who had other causes in the trial list that his client’s case would not be reached on the day that it was called and moved; that relying on the result of his inquiry, he went away from town to attend to other business and was gone for several days, not returning until after the case was tried. His own statement as to the cause of his absence shows that the failure to put in a defense at the trial was due éntirely to his neglect of his client’s interests. If the defendant had a good defense and his attorney by his neglect deprived him of the opportunity to submit it, he, perhaps, may have a cause of action against his attorney for the loss which he has sustained, but this is not a matter now before us for decision.

The rule to show cause will be discharged.

Note—Mr. Sehloeder, who argued the rule, was not the attorney in the court below, of whom reference is made in the opinion.


author: Pee C deiam.

text:
    ALBERT V. DEMAREST, PROSECUTOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF BERGENFIELD, RESPONDENT.
    Submitted January term, 1929
    Decided May 7, 1929.
    Before Justices Black, Campbell and Case.

      For the prosecutor, Clyde Christie.

    For the respondent, James 8. De Turck.

   Pee C deiam.

An ordinance known as No. 230 ior the improvement of Station Square, in the borough of Bergenfield, was duly adopted providing for the doing of the work as a general improvement, the cost to be met and paid by general taxation. This was September 9th, 1924. On July 27th, 1926, ordinance 311 was adopted amending the foregoing ordinance by increasing the appropriation for the work from $31,000 to $70,000. On August 13th, 1928, ordinance 390 was introduced and passed on October 1st, 1928, attempting to amend ordinance 230 so that the improvement should be local, instead of general, and the cost assessed specially against the lands benefited instead of being paid for from the general tax funds.

At the time of the introduction of this last ordinance the improvement had been substantially completed. There was no notice of intention to introduce this ordinance, although a hearing seems to have been accorded to the property owners affected, before its final passage.

Respondent seems to urge no reason or ground looking toward the sustaining of the legality of this ordinance 390, nor do we think any can be successfully urged, but three grounds appear to be urged, in avoidance, as it were, of an adverse finding upon the merits.

These grounds are:

1. That it does not appear that the prosecutor has any interest as a taxpayer to prosecute the present action, citing Jordan v. Dumont, 6 N. J. Mis. R. 311. The answer to this is that such finding of the Supreme Court has been overruled by the Court of Errors and Appeals in the same case. 6 N. J. Adv. R. 1889.

2. That the present action is premature because there is nothing to show that the lands of the prosecutor would be assessed for any part of the improvement.

We think this is entirely without legal merit.

3. There is nothing to show that the prosecutor would be put to any loss because his share of the general tax would be as great or greater than a special assessment against his lands.

We think this also is without legal merit.

The ordinance and the proceedings under review must be set aside, with costs.


text:
    JULIA STAMBAUGH ET AL., PLAINTIFFS, v. JACOB LIFLAND ET AL., DEFENDANTS.
    Decided May 7, 1929.
    Argued before Gummebe, Chief Justice, and Justice Parker.
    Eor the rule, Thomas P. Meaney.

    Contra, Pearce B. Franklin.

   Per Curiam.

This is an automobile accident case. The plaintiff Julia Stambaugh, a girl about twenty years old, while riding in the car of her friend, Herman Greenberg, was injured in a collision between that car and one being driven by the defendant Jacob Lifland. She brought the present suit to recover compensation for those injuries, her father being joined as co-plaintiff and seeking to recover the expenses incurred by him in the treatment of his daughter’s injuries and losses sustained by him resulting therefrom. The trial resulted in a verdict of $15,000 in favor of the daughter and $1,000 in favor of the father. The defendant Lifland thereupon applied for and obtained a rule to show cause why the verdict should not be set aside and a retrial granted as to damages only, and the single contention made before us is that the award to the daughter, and also that to the father, are each of them excessive.

Our examination of the proofs sent up with the rule leads us to the conclusion that, although the verdict in favor of the daughter is large, it is not so plainly excessive as to justify our interference. The amount awarded to the father by the verdict is, in our opinion, a very reasonable one.

The rule to show cause will be discharged.


text:
    HERMAN SCHROEDER, Jr., PLAINTIFF, v. THOMAS WHITESIDE ET AL., DEFENDANTS. EDWARD G. HILL, PLAINTIFF, v. THOMAS WHITESIDE ET AL., DEFENDANTS.
    Decided May 7, 1929.
    Argued before Gummere, Chief Justice, and Justice Parker.
    For the rule, Eugene G. Schwinghammer and Paul M. Salsburg.

    Contra, Cole & Cole.

   Per Curiam.

Each of these cases is identical in character and were tried together. The defendants in the suits are one Whiteside, a member of the Local Union Brotherhood of Painters, and the union itself. The complaint in each case avers that White-side caused the arrest and imprisonment of the plaintiff upon a false charge of criminal conspiracy; and, further, that at his instigation, the Local Union Brotherhood of Painters, without just cause, illegally expelled the plaintiff from membership therein with the result that his ability to obtain employment was practically destroyed. Based upon these facts each plaintiff claimed to be entitled to compensatory and punitive damages against Whiteside and also against the Local Union Brotherhood of Painters.

The trial of the two cases resulted in a verdict in favor of plaintiffs; the jury awarding each of them $2,000 as against Whiteside on the charge of false imprisonment and $10,500 against the two defendants jointly for wrongful expulsion from membership in the union.

Our examination of the proofs in these cases convinces us that the total award of $12,500 to each of the plaintiffs is grossly excessive, and that for this reason the verdict in each case should be set aside. Eeaching this conclusion, we have not considered it necessary to pass upon the other reasons submitted by counsel for the defendant in support of his contention that a new trial should be directed.

The rule to show cause will be made absolute.


text:
    JOSEPH HANIMANN, PLAINTIFF, v. FREDERICK R. SCHELLHORN, DEFENDANT.
    Decided May 7, 1929.

      Argued before Gummere, Chiee Justice, and Justice Parker.
    Eor the rule, Perlcins & Drewen.

      Contra, I. Paeber Qoldenhorn.

   Per Curiam.

The plaintiff instituted this action to recover damages for malicious prosecution. In May, 1923, the defendant made a criminal complaint against him, charging him with the crime of embezzlement in converting to his own use moneys that he had received as the agent of the defendant, with intent to defraud the latter.

The charge was made the subject of an investigation by the grand jury, and an indictment was found. After a good deal of delay, the prosecutor of the pleas, pursuant to the order of the court, entered a nolle prosequi, and thereafter the present suit was brought. At the close of the trial the jury returned a verdict in favor of the plaintiff and against the defendant “for $2,500 punitive damages plus compensatory damages.”

The first ground urged for making the present rule absolute is that the verdict is against the weight of the evidence because of the plaintiff’s failure to show by a preponderance of the proofs that there was any want of probable cause. We consider this contention to be without merit. When proof is submitted that the criminal charge laid against the plaintiff is false, such proof justifies an inference of want of probable cause and of malice. Vladir v. Klopman, 9 N. J. L. 575, and cases cited. The effect of this legal rule is to place upon the defendant the burden of overcoming the inference thus raised by evidence introduced by him at the trial, and the action of the criminal court in entering the nolle prosequi justified the conclusion that the affidavit charging the criminal offense was false. By its verdict the jury found that the inference of want of probable cause was not overcome by the testimony submitted by the defendant, and our examination of the case satisfies us that this finding was justified.

The only other contention before us is that the verdict is legally erroneous because it awarded punitive damages only and nothing by way of compensation. This contention, however, is without basis of fact to support it. It is true that the award was for a single sum; hut the jury, in order to avoid any doubt as to its action, expressly declared that this single sum included both compensatory and punitive damages.

The rule to show cause will he discharged.


text:
    JAMES IACONIO, BY HIS NEXT FRIEND, JULIA IACONIO, PLAINTIFF, v. JOHN D’ANGELO ET AL., DEFENDANTS.
    Submitted January term, 1929
    Decided May 8, 1929.
    Before Justices Black, Campbell and Case.
    Eor the rule, Coult, Satz & Tomlinson.

    Contra, Peter Hofstra (Meyer Lobsenz, on the brief).
   Per Curiam.

The plaintiff, six and one-half years old at the time of the accident, ten years old at the time of the trial, was injured on April 16th, 1925. The witnesses of the accident were: On behalf of the plaintiff, the plaintiff himself and another lad one year his senior; on behalf of the defendants, Louis D’Angelo and his brother, John D’Angelo (one of the defendants), a high'school student, both of whom, Louis constantly and John after school hours, worked for the defendant James P. D’Angelo. The issue is whether the defendant John D’Angelo did an act of willful injury to the plaintiff in that he pushed him off the running board of an automobile truck while the truck was being driven rapidly. The trial judge so stated the issue and the jury found a verdict for the plaintiff. The matter comes up on the defendants’ rule to show cause, grounding in the allegation that the verdict was contrary to the clear weight of the evidence.

The plaintiff testified that, uninvited, he got on the running board at the left side of the car driven by John D’Angelo while the car was going slowly, that “John started to go faster when I was on the running board so I told him to stop, and he didn’t stop, so he pushed me off.” The plaintiff subsequently testified that he did not actually see John reach out and push him, but that he (the plaintiff) was on the driver’s side “and I felt it was John’s hand.” The other lad, David DiProsky, testifies that, when the plaintiff got on the running board of the truck, the truck was going slowly, that the ear then went fast, and after this John, with his left hand, pushed him off.

Almost precisely that state of facts was presented to the Court of Errors and Appeals on the appeal following a non-suit on the first trial of the same action, and the opinion (Iaconio v. D’Angelo et al., 142 Atl. Rep. 46, opinion by Chancellor Walker), held: “Now, it is perfectly obvious under the testimony that when the car slowed up the boy jumped on the running board, that it was thereafter propelled quite fast, and when he called out to have it stopped he was deliberately pushed off by the driver. In these circumstances, there can be no other conclusion hut that, by reckless indifference to consequences, the driver consciously and intentionally did the wrongful act of ejecting the boy from the car, where the latter appears to have been a trespasser, by deliberately pushing him off.” It is true that no testimony had been presented by the defense at that time and also that the testimony adduced by the defense in the present trial presents an entirely different story; and it is argued by the defense that the evidence of the plaintiff Iaeonio and of his witness DiProsky, because of their youth, is of trifling value. But the last mentioned evidence was of sufficient value to bring forth the opinion of the Court of Errors and Appeals just referred to. The trial court permitted these lads to testify; indeed counsel for the defense said in each instance he had no objection to their being sworn. There was no motion to strike their testimony. There was no motion directed toward a nonsuit or toward a direction of verdict. The court charged at length upon this branch of the testimony. In other words, the evidence given by these lads went to the jury without objection by the defense. The jury, having seen and heard these and the remaining witnesses, obviously reached.the conclusion, in the sharp contradiction of evidence, that the plaintiff’s version was correct.

We are unable, from the printed page, to say that the verdict is contrary to the clear weight of the evidence. As that was the only point raised in defendants’ brief, the rule will be discharged, with costs.


author: Pee Ctjexam.

text:
    JENNIE LARKEN, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. EDITH LLOYD ET AL., DEFENDANTS.
    Submitted January term, 1929
    Decided May 8, 1929.
    Before Justices Black, Campbell and Case.
    Eor the rule, William, B. Stites.

    Contra, Michael Breithopf.

   Pee Ctjexam.

This action was brought to recover compensation for personal injuries resulting in the death of plaintiff’s decedent. The injuries occurred to the decedent while he was riding a motorcycle driven by his son along Van Burén Place in the township of North Bergen. The defendant Edith Lloyd was the owner and the defendant Joseph C. Williams was the driver of the automobile which, in collision with the motorcycle, caused the injuries. Negligence of the defendants is alleged in the complaint.

The trial resulted in a verdict for the plaintiff for $7,875. The defendants obtained a rule to show cause and, having filed seven reasons for the granting of a new trial, rely on four of them in their brief. We have considered the points thus argued and the evidence relating thereto but find no substantial reason for disturbing the verdict of the jury.

The rule to show cause is therefore discharged, with costs.