text:
    WILLIAM P. WALKER v. HARVEY R. BERGEN, ADMINISTRATOR OF ESTATE OF CHARLES F. WALKER, DECEASED.
    Argued October 6, 1925
    Decided March 18, 1926.
    Contracts—Services Rendered and Voluntarily Accepted Imply Promise to Pay, Except Where Services are Rendered by Members of Family to Each Other Living as One Household —Held, That the Limitation Does Not Apply to Present Case —These Services Were Not Such as Are Ordinarily Rendered by One Member to Another—But Even if the Rule Applied, it was for the Jury to Determine Whether the Evidence Left the Case “in Equipoise”—There was Testimony From Which This Could be Found—Also, it was for Jüry to Determine Whether Father Did Not Intend to Compensate Son.
    On defendant’s rule for new trial.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Alvin W. SyTces.

    Contra, W. Holt Apgar.

   Pee Curiam.

The plaintiff is a son of the defendant’s intestate, and brought suit to recover compensation for services rendered by him to his father on the latter’s farm, for the period of six years preceding the father’s death. The father was a farmer in Mercer county and was seventy-five years old at the time of his death. Two of his sons, the plaintiff and his brother, Edward, although married, remained at home and worked on the farm for their father up to the time of his death. The plaintiff was never paid anything for his services. He had a home with his father, where he lived with his wife and child.

Plaintiff has a verdict of $7,200, which defendant seeks to set aside, urging two reasons.

The first is that the trial court should have nonsuited the plaintiff, upon being moved so to do, for the reasons—(a) that there was no proof of an express contract between the plaintiff and the decedent whereby decedent undertook or agreed to pay the plaintiff for the services rendered; (b) the circumstances under which the services were rendered were such as not to exhibit a reason or proper expectation that there would be compensation.

The contention seems to be that as there was no specific agreement for compensation between the father and the son, there is no implication that the father expected to pay, or that the son expected to receive, compensation for the work done. The doctrine appealed to is that contained in the opinion of the Court of Errors and Appeals in Disbrow v. Durand, 54 N. J. L. 343, where this language is employed in stating the rule: “Ordinarily, when services are rendered and voluntarily accepted, the law will imply a promise upon the part of the recipient to pay for them; but where the services are rendered by members of a family, living as one household, to each other, there will be no such implication from the mere rendition and acceptance of the services. In order to recover for the services, the plaintiff must show either that an express contract for remuneration existed or that the circumstances under which the services were rendered were such as exhibit a reasonable and proper expectation that there would be remuneration. The reason of this exception to the ordinary rule is, that the household family relationship is presumed to abound in reciprocal act of kindness and good-will, which tend to the mutual comfort and convenience of the members of the family and are gratuitously performed, and, where that relationship appears, the ordinary implication of a promise to pay for service does not arise, because the presumption, which supports such ‘implication, is nullified by the presumption that between members of a household services are gratuitously rendered. The proof of the services, and as well of the family relation, leaves the case in equipoise, from which the plaintiff must remove it or fail.”

We think that this rule is limited to household services and has no application to- the present case. The services which plaintiff sought to be compensated for were not such as are ordinarily and usually rendered by one member of a family or household to another. But even if this rule does apply, it was for the jury to determine whether or not the evidence left the case "in equipoise,” or was sufficient to carry it beyond, thus entitling plaintiff to recover. There was testimony from which this could be found, and its weight was for the jury to determine.

Again, it was for the jury to determine whether the father did not intend to compensate the son, and the son so expect, through some provision in the father’s will. There was evidence to support such finding, and, under such .circumstances, a recovery could be had upon a quantum meruit upon the principle laid down in Smith v. Smith, 28 N. J. L. 208.

The other reason urged is that the verdict is excessive. The verdict of $7,200 represents compensation at the rate of $100 per mo-nth for six years, which, in our judgment, under the proofs in this case, is not excessive.

The rule will be discharged, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MAX SATSKY, PLAINTIFF IN ERROR.
    Decided March 18, 1926.
    Crimes—Larceny—Taking of Automobile by Constable to Satisfy Lien of His Employer—Court Erred in Charging That if Satisfied That a Previous Alleged Lien was Lawfully Made, Then Your Verdict Must be Guilty—The Criminal Intent Which is an Essentia! Part of Larceny, Involve a Knowledge That the Property Belongs to Another—Defendant May Make Good His Defense if He Can Show That Because of a Misapprehension as to His Legal Rights He Honestly Believed the Articles to be His Own—Verdict Against Weight of Evidence.
    On error to the Quarter Sessions of Morris county.
    Before Gummere, Chiee Justice, and Justices Kalisch and Campbell. >.

    For the plaintiff in error, Harold Simandl.

    For the defendant in error, Albert II. Holland.

   Per Curiam.

Plaintiff in error and one Gilliland were indicted charged with that, on September 25th, 1924, they unlawfully did steal, take and carry away a certain motor truck, the goods and chattels of one Floyd Tredway, and also by a second count in said indictment were charged with unlawfully and feloniously receiving such truck, knowing that the same had been stolen.

Upon a trial under said indictment Gilliland was acquitted, and the plaintiff in error was found guilty and was sentenced to serve a term of not less than fonr nor more than seven years in the state prison and pay a fine of $500. The writ is a strict writ of error on exceptions, and also brings up the whole record under section 136 of the Criminal Procedure act.

The truck was owned by Nat Bloom, who stored it in the garage of Gilliland. One Halpern, who kept a boardinghouse and operated with it a soft-drink establishment, and who also had a gasoline tank from which he served motorists, claimed a lien upon the truck for gas and oil alleged to have been furnished to Bloom. Halpern undertook to enforce his lien under the Garage Keepers’ Lien act (Pamph. L. 1915, p. 556), and authorized one Tredway to seize the truck for such supposed lien. Shortly before September 25th, 1924, Tredway, finding the truck in front of the garage of Gilliland, seized the same in accordance with his authorization, chained and locked the same and placed a notice of lien upon it. Gilliland informed Tredway that there was money due him on account of garage storage of the truck. A few days thereafter Tredway placed the truck in Gilliland’s garage, again chaining and locking it. Gilliland at this time also seized the truck to satisfy the amount due him for storage. Satsky, a constable, and an agent of the Ideal Tire and Rubber Company, which maintained a garage on Halsey street, Newark, New Jersey, also claimed a lien upon the truck for tires and supplies furnished, and, upon finding .the liens ‘ claimed by Halpern and Gilliland, went to Halpern’s establishment, and satisfying himself that Halpern was not engaged in the business of keeping a garage or place for storage, or repairing motor vehicles, concluded that Halpern was not entitled to a lien under the Garage Keepers’ act. He then met Gilliland, and, upon satisfying himself that Gilliland’s claim or lien was good, arranged to procure an assignment of it. Thereupon, Gilliland and Satsky interviewed Bloom, the owner of the truck, who was indifferent as to what became of the truck. Satsky thereupon gave Gilliland and Bloom his business cards bearing his address, requesting them to give them to any person who might desire any information as to the whereabouts of the truck, as he intended to seize the truck under his principal’s lien. An arrangement was entered into between Satsky and Gilliland ivhereby the latter was to receive a cheek at the office of the Ideal Tire and Rubber Company, Halsey street, Newark, New Jersey, for the amount of his claim upon his executing to that concern an assignment of his claim and lien.

Thereupon, Satsky removed the truck from Gilliland’s garage and drove it to the place of business of the Ideal Tire and Rubber Company in Newark, where Gilliland came and received his cheek and executed an assignment of his claim. Halpern called at Gilliland’s garage and was given one of Satsky’s cards, and thereupon called upon him at the address on the card. Satsky offered to purchase Halpern’s lien if Halpern could assure him that he was, in fact, a garage keeper. Subsequently, Satsky and Gilliland were indicted and tried, with the result as hereinbefore stated.

It is unnecessary for us to deal with each one of the fifty-nine assignments of error and sixty reasons for reversal, because amongst them there are, at least, two requiring a reversal of the judgment below.

The first is that there is prejudicial error in the trial court’s instructions to the jury and refusal to charge requests bearing upon the point erroneously and incorrectly charged.

The learned trial judge charged, amongst other things: “And if you are satisfied, beyond a reasonable doubt, that Halpern was a garage keeper and had this lien upon the car, and had posted the notice and locked it up, and that Satsky came and took it away, then your verdict as to Satsky will be guilty.”

This instruction entirely eliminated the question of felonious intent in such taking and was contrary to law. While it is true that one may be1 guilty of larceny in taking goods from one having a special ownership therein, yet, as was said in Adams v. State, 45 N. J. L. 448: “It would not be every taking by a mere stranger of these goods from the possession of the constable that would amount to larceny. A felonious intent would be a requisite ingredient to such a crime.”

In Cutter v. State, 36 N. J. L. 125 (at p. 127), it is held “The criminal intent, which is an essential part of that crime [larceny], involves a knowledge that the property taken belongs to another; but even when all the facts are known to the accused, and so the right to the property is a mere question of law, still he will make good his defense if he can show in a satisfactory manner that, being under a misapprehension as to his legal rights, he honestly believed the articles in question to be his own.”

Aside from this, a consideration of the proofs satisfies us that, upon an application of the correct principles of law, the verdict is against the weight of the evidence.

The judgment below is therefore reversed.


author: Per Oubiam.

text:
    ERNEST N. DURYEE v. YELLOW CAB COMPANY ET AL.
    Submitted November 5, 1925
    Decided March 18, 1926.
    Negligence—Plaintiff Severely Injured—Verdict for $17,000 Not Excessive.
    On defendants’ rule to show cause.
    Before Gummere, Chibe Justice, and Justices Kalisch and Campbell.
    Eor the rule, Edward R. McGlynn.

    Contra, James R. Nugent.

   Per Oubiam.

Plaintiff has a verdict for $17,000, and defendants have this rule to show cause why the verdict should not be set aside upon the sole ground that it is excessive. Plaintiff, a man of fifty-five years of age, was severely injured. He underwent two operations upon his head resulting in the removal of a portion of his scalp, and he is left with facial disfigurements. His expenses in effecting a cure were large and lie lost considerable sums of money because of his inability to carry on his business.

We do not find the verdict excessive to an extent permitting us to set it aside.

The rule to show cause will therefore be discharged, with costs.


author: Peb Oueiam.

text:
    MARY HEWITT AND CHARLES L. HEWITT v. ATLANTIC AND SUBURBAN RAILWAY COMPANY.
    Argued October 6, 1925
    Decided March 18, 1926.
    Negligence—Injury to Passenger on Trolley Car—Court's Refusal to Charge “If the Jerk or Stop of a Car When Drifting Back, and the Drifting Back at That Point was Usual, and Not Unusual, There Can be No Recovery,” Sustained—Verdict Not Excessive.
    On defendant’s rule to show cause.
    Before Gummebe, Chibe Justice, and Justices Kalisch and Campbell.
    Por the rule, Bourgeois & Coulomb.

      Contra, John C. Reed.

   Peb Oueiam.

Plaintiff, Charles L. Hewitt, has a verdict of $2,000 to compensate him for his loss by way of loss of services and society of his wife and cost of effecting a cure of injuries sustained by her in being thrown by a sudden jerk of a trolley ear of defendant upon which she was a passenger.

Two reasons are urged why this verdict should be set aside—first, because it is excessive. We think it is not. Second, the refusal of the learned trial judge to charge the following request:

“If the jerk or stop of a car when drifting back, and the drifting back at that point was usual and not unusual, there can be no recovery.” Upon that point the trial court charged: “I am inclined to charge you, not as I have been requested, but that if in the stopping of this trolley car there was nothing unusual to the stopping of a trolley ’car, and that the stop itself was in no respect negligence, then the plaintiff cannot recover.”

We find that the .instruction requested was erroneous, and that the instruction as given to the jury by the learned trial judge was a correct statement of the legal principle applicable.

There was no error, therefore, in refusing to charge as requested.

The rule to show cause is discharged, with costs.


text:
    PINELOT COMPANY, RELATOR, v. THE CITY OF EAST ORANGE ET AL., DEPENDANTS.
    Argued October term, 1925
    Decided March 18, 1926.
    Zoning—Stores in Residence District—Upon Consideration of Facts and Adjudicated Cases on the Subject, Ordered That Peremptory Mandamus be Issued.
    On rule to show cause.
    Before Justices Parker, Minturn and Black.
    Eor the rule, Howe & Davis.

      Contra, Eiker <& Eiker.

   Per Curiam.

A rule to show cause why a mandamus should not issue commanding defendants to issue a building permit to the relator. The facts are that the relator is the owner of a tract of land on the easterly side of Harrison street, in the city of East Orange, having a frontage of seventy-nine feet and a depth of one hundred feet. On this property it wishes to erect a one-story building to contain five stores. The relator applies to the board of adjustments of zoning, and to the common council of East Orange, for an amendment of the zoning ordinance large volume residence district to business district, and was refused. The relator then made application to the building inspector of the city of East Orange, submitting an application in writing, plans, specifications, and tendering the legal fee. Permission was refused, and the building inspector thereupon refused the plans, specifications, application and fees. The reason for the refusal is that the zoning ordinance in force forbids the erection of retail stores on said premises, the property being located in what is known as a large volume residence district.

Our conclusion, after examination and consideration of the facts, and the adjudged eases upon the subject, is that a peremptory writ of mandamus should issue. Such will be the order.


text:
    WILLIAM J. HORNER, PLAINTIFF, v. EARL A. ATCHISON, DEFENDANT.
    Argued January term, 1926
    Decided March 18, 1926.
    Fornication—Service of Summons and Complaint Made Upon Mother of Defendant During His Absence From the State— Notice of Executing Writ of Inquiry, Also so Served—Judgment for Plaintiff—Record Induces Conclusion That Defendant was Aware of Proceedings and Left the Jurisdiction to Avoid Personal Service—Judgment Will Stand but . Assessment of Damages will be Opened to Give Opportunity to be Heard as to the Quantum of Damages.
    On. rule to show cause.
    Before Justices Parker, Minturn and Black.
    Eor the plaintiff, McKirgan <& Gilson.

    Eordhe defendant, Frank E. Bradner.

   Per Curiam.

A verdict for the plaintiff for $8,135.40 was rendered under the following circumstances: The plaintiff alleges that the defendant, on May 30th, 1934, seduced and committed fornication with his daughter, and that she became pregnant and gave birth to a child. The summons and complaint were served on the mother of defendant, at her place of abode during his absence from the state, and he did not receive them until after judgment had been entered, and a verdict had been rendered on the writ of inquiry. Notice of executing the writ of inquiry was also served on his mother at her place of abode during his absence from the state, and he received that notice after the writ had been executed. Notice of motion for final judgment was served in the same way.

All these papers were delivered to defendant when he returned to his mother’s home about August 27th, 1925. He then applied for a rule to show cause, which was granted, and leave was given to both parties to take depositions. The rule was granted to set aside the verdict and inquisition, so as to allow defendant to plead and defend.

Our examination and consideration of the record induces us to conclude that the defendant, if he did not have personal notice of the service of original process, was aware of it, and betook himself to another jurisdiction to avoid personal service, and perhaps arrest. The process was not served upon a stranger or at a stranger’á abode, but upon the defendant’s mother, at her home, where the defendant resided, and the reasonable inference is that she, with motherly solicitude, at least, notified him of the fact or caused the papers to be delivered to him. Now that a large verdict has gone against him, he appears for the purpose of vacating the same.

The judgment, in our opinion, should stand, but the assessment of damages upon the writ of inquiry should be opened to the end that the defendant may be given the opportunity of being heard in the usual form upon that procedure as to the quantum of damages.

Such will be the rule.


text:
    ALICE MORAN, PLAINTIFF-APPELLEE, v. SANTO BORRELLO ET AL., DEFENDANTS-APPELLANTS.
    Argued October term, 1925
    Decided March 18, 1926.
    Sale of Land—Breach of Contract—Alleged Inability to Give Good Title—Contract Contemplated Passing of a Marketable Title at Time of Delivery of Deed—Tenement-House Violations Were Sufficiently Substantial to Justify Rejection of Proffered Title—Where Bond and Mortgage are Called for, Land, Not Personal Responsibility, is the Principal Security Looked for so That Tender by the Assignee of His Own Bond Will Suffice.
    On appeal from the Second District Court, Jersey City.
    Before Justices Parker, Minturn and Black.

      For the defendants-appellants, John N. Platoff.

    Por the plaintiff-appellee, Armstrong & Mullen.

   Per Curiam.

This action was tried in the Second District Court of Jersey City, without a jury, and judgment was for plaintiff for $416.56.

One John McHugh entered into a contract with the defendants for the purchase of certain premises for $11,000, and assigned his contract to the plaintiff, Alice Moran, who brought action to recover $300 deposit and $316.56 expended for search fees, on the ground of defendants’ alleged inability to give good title.

The first point is that there was no evidence that plaintiff tendered, or was ready, willing and able to tender, a bond properly executed by John McHugh, the assignor. Tender by plaintiff was excused, since defendants were unable to perform. But it was incumbent upon plaintiff in an action for damages for breach of contract, to show that she was ready and willing to perform. The state of the ease recites that at the time of closing of title the plaintiff was prepared with her own bond, and that the assignor was not present.

It has been held that where a bond and mortgage are called for, the land, and not the personal responsibility of the vendor, is the principal security looked for, so that tender by the assignee of his own bond will suffice. 27 R. C. L. 536, § 270.

The contract provides: “Seller to take back a purchase-money mortgage of $2,500 at six per cent., payable, &e. Said mortgage can be paid off at any time.” It will be observed that this requirement provides for no bond, and in some jurisdictions promissory notes are substituted therefor.

The next point is that there was no legal excuse for the plaintiff’s failure to make a tender. The contract provided: “It is understood and agreed that the buildings comply with the regulations of the state board of tenement-house supervision, to be shown by the report of the secretary, where such * * * regulations apply.” The inspector’s report showed certain structural violations for which the defendants at the time of the closing of title offered to deduct $200 from the purchase price, but the plaintiff demanded $500 therefor.

The defendants contend that this provision had reference to violations existing at the time the contract was entered into, and not as of time of closing the title. We think the contract contemplated the passing of a marketable title at the time of the delivery of the deed, and the plaintiff could not have anything short of that forced upon him. Upon this point it is also urged that the tenement-house violations, if any, were unsubstantial and did not justify rejection of the proffered title. They were sufficiently substantial to justify the defendants in making an allowance therefor, and in any event they were specially provided for as an encumbrance in the contract of the parties.

The judgment will be affirmed.


author: Pee Cueiam.

text:
    JOHN A. NAPPER v. WEST JERSEY AND SEASHORE RAILROAD COMPANY. JOHN W. SNYDER v. WEST JERSEY AND SEASHORE RAILROAD COMPANY.
    Argued October 6, 1926
    Decided March 24, 1926.
    Negligence—Grade Crossing Accident—Injury to Motor Car— Judge’s Charge Exacted More of Defendant Than was Legally Required—Venire Oe Novo Awarded.
    On defendant’s rule for new trial.
    Before Gtjmmeee, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Bourgeois & Coulomb.

      Contra, Wescott-S Weaver and Joseph Beck Tyler.

   Pee Cueiam.

The plaintiffs in both of these actions, which were tried together, have verdict for damages for personal injuries received in a collision between a motor car in which they were riding and a train of the defendant company at a grade crossing of the Glassboro pike, and the defendant has a rule to show cause why the verdicts should not be set aside and a new trial had.

The learned trial judge in his charge read to the jury the portion of the statute requiring the giving of the statutory signals of bell or whistle and also the statute relative to the duty of railroad companies at crossings where safety gates or other warning appliances have been installed. He then proceeded to narrate to the jury the contentions of the respective parties as to the performance of the duties imposed upon the defendant and also to instruct them as to the duties of the respective plaintiffs, and then concludes or sums up the duties of the defendant in the following language:

“If you should find that the railroad company exercised all of the care, or due and reasonable care in accordance with the statutory obligations at this crossing, by providing a watchman in lieu of the gates while they were out of order, by having a lighted head light upon their front car, this being an electric train, by blowing their whistle and ringing their bell, then your verdict would be for the defendant for no cause of action.”

This exacted more of the defendant than was legally required, inasmuch as the duty imposed by the statute to give warning is either by ringing the bell or blowing the whistle, not both.

The rule to show cause must, therefore, be made absolute, and a venire de novo awarded.


author: Pee Oueiam.

text:
    LORIN M. KOHN ET AL., PARTNERS, ETC., TRADING AS KOHN & COMPANY, v. RICHARD COE.
    Argued October 7, 1925
    Decided March 24, 1926.
    Contracts—'Sale of Corporate Stock—Defendant’s Counter-claim —Plaintiff Contended That Transaction was That of Principal and Broker; Defendant, That it was One of Purchase and Sale—Held, it was Error to Charge That the Transaction was One of Purchase and Sale, the Transaction was a Disputed Question of Fact to be Submitted to Jury.
    On plaintiff’s rule to show cause.
    Before Gummeke, Ohiee Justice, and Justices Kalisch? and Campbell.
    For the rule, Cohn & Cohn.

      Contra, Aaron Lasser.

   Pee Oueiam.

In September, 1922, the defendant purchased stock in the St. Lawrence Peldspar Company, for which he made a cash payment of $2,631.25. Under date of November 1st, 1923, defendant executed and delivered to plaintiff three promissory notes—one for $1,000, payable three months after date; one for $631.25, payable four months after date, and the third, for $1,000, payable six months after date. On April 23d, 1924, suit was brought by plaintiff upon the two notes of $631.25 and $1,000, which had at that time become due and were unpaid. Defendant answering admitted the execution of the notes, but denied that any sum was or remained due thereon; that plaintiff had agreed to deliver to him five hundred share of said stock and an additional five hundred shares for the sum of $5,262.50 upon account of which defendant had paid $2,631.25; that five hundred shares of the total number before mentioned would be delivered by plaintiff to . defendant on November 1st, 1923, and defendant at such time should have the option of accepting the five hundred shares without further payment, or require the delivery of one thousand shares upon a further payment of $2,631.25; that defendant exercised his option to accept five hundred shares and plaintiff refused to make delivery thereof; that, subsequently, plaintiff represented that the St. Lawrence Peldspar Company was a going concern and that its stock was of great value and induced the defendant to take the one thousand shares, and that, relying upon such representations and the promise of plaintiff to deliver the five hundred shares and the five hundred additional shares, the defendant, on January 2d, 1924, executed and delivered the before-mentioned three notes, all of which were dated November 1st, 1923; that said St. Lawrence Peldspar Company was not of the financial condition as represented, and plaintiff did not deliver the one thousand shares as agreed; that on September 14th, 1922, when defendant agreed to purchase said stock, it was agreed that upon the payment of the purchase price of the plaintiff would deliver five hundred shares as a premium in addition to the five hundred shares purchased, and that defendant has offered to pay the balance of such purchase price, but plaintiff has refused to deliver the five hundred shares purchased or the five hundred premium shares.

By way of counter-claim defendant pleaded the alleged breaches of contract on the part of the plaintiff above set forth, and that for such breach and failure to deliver the stock the defendant sought recovery of the amount paid by him $2,631.25, and interest. To the answer and counterclaim plaintiff repljed, denying every allegation.

At the trial the plaintiff undertook to show that the transaction was that of principal and broker by which plaintiff purchased five hundred share of the stock fox defendant’s account, the latter paying one-half the purchase price and plaintiff holding the stock purchased as security for the balance of the purchase price, and that the three notes, of which the notes in suit were two, were given for the balance, the plaintiff still holding the stock as security until the payment of the notes.

The defendant contended that the transaction was one o E purchase and sale, and that the notes were given for the balance of the purchase price upon the agreement that one thousand shares would be delivered to defendant, January 3d, 1923, the day succeeding the delivery of the notes.

The trial judge in his charge to the jury instructed them that the transaction was that of purchase and sale, and, as plaintiff had not delivered or tendered a delivery of the stock, they could not have a recovery upon the two notes in suit, but that in that respect the verdict must he in favor of the defendant.

The result of the trial of the issue was a verdict in favor of the defendant for $2,839.12, being the sum of $2,631.25 paid on account of the stock and interest thereon.

The plaintiff has a rule to show cause why the verdict should not he set aside and a venire de novo awarded.

We conclude there was error in charging that the transaction was one of sale and purchase, and that the right of defendant to recover upon his counter-claim was that of demand for and failure to deliver the stock.

What the transaction was, was a disputed question of fact to be submitted to the jury for determination under proper instructions.

If the facts found were as alleged by the plaintiff, it was a brokerage transaction and not a sale, and if the facts found were as the defendant insisted, then it was an agreement to deliver stock upon the delivery of the notes; and failure to deliver was a breach of the agreement entitling defendant to rescind and recover back the price paid.

The rule to show cause is therefore made absolute, and a venire de novo is directed.


text:
    SECURITY TRUST COMPANY, PLAINTIFF-APPELLANT, v. EMANUEL GIGLIO AND BEN DI MEDIO, DEFENDANTS-APPELLEES.
    Argued October term, 1925
    Decided March 26, 1926.
    Negotiable Instruments—Endorsements—Forgery—Wife of Alleged Maker of Note Forged His Name and Drew Proceeds From Bank—Transaction ail Without Alleged Maker’s Knowledge—Whether Wife was an Agent of Husband, Including Power to Sign Notes, a Question of Fact for Jury—The Endorser Impliedly Warranted the Note Valid.
    Before Justices Parker, Minturn and Black.
    Por the plaintiff-appellant, French & Richards.

    Por the defendant-appellee Giglio, Frank F. Neutzer.

    Por the defendant-appellee Di Medio, Joseph H. Carr.

   Per Curiam.

This action was tried in the District Court of Camden without a jury, and judgment was in favor of both defendants.

The action was brought by the plaintiff, trust company, on a renewal note for $450, purporting to have been made by Emanuel Giglio to the order of himself, and endorsed Emanuel Giglio, Ben Di Medio, Emanuel Giglio. The note had been discounted under these circumstances. The wife of Emanuel Giglio, duly identified by the trust company, opened an account therein in the name of her husband, and presented a signature card bearing his name.

A note purporting to have been made by Emanuel Giglio to his own order, and by him endorsed, was taken by Emanuel’s fifteen-year-old son, Salvatore, to one Ben Di Medio, who, in compliance with a previous request of Mrs. Giglio, endorsed the note in blank for the accommodation of Emanuel Giglio. This note, purporting to have been again endorsed by Emanuel Giglio, was presented by the wife to the plaintiff, trust company, and by it discounted by crediting the proceeds to the account of Emanuel Giglio. All of the account, except $7.50, was withdrawn by cheeks bearing the name of Emanuel Giglio.

The evidence showed that all of these transactions were without the knowledge of Emanuel Giglio, whose name, in each instance, had been forged by the son, at the instigation or coercion of the mother, who has since departed for parts unknown. The plaintiff contends that there was error in the court’s refusal to direct a verdict against both defendants, maker and endorser.

As to the defendant Emanuel Giglio, it is insisted that even if his name was forged to the note, he was estopped because he permitted his wife to attend to his business, and one of the checks withdrawing the account had been used to pay a plumber bill for work on his dwelling.

Assuming for present purposes that this, and cognate evidence in the case, would permit a jury, or the court sitting as a jury, to infer, as a matter of fact, that the alleged agency of the wife included power to sign promissory notes in the husband’s name, this remained a question of fact, and as such was decided adversely to plaintiff by the trial judge. This, therefore, was legitimate finding of fact, and as such cannot be disturbed on this appeal.

As, to Di Medio, the endorser, the situation, and, necessarily, the result, are different. Under the Negotiable Instrument act (3 Comp. Stat., p. 3743), by his endorsement he impliedly warranted that the note was valid and subsisting negotiable paper. At common law and in this state the rule was similar to that expressly enunciated in the Negotiable Instrument act. Edmunds v. Rose, 51 N. J. L. 547; 3 R. C. L. 1148.

Therefore, as to the defendant Di Medio, the judgment will be reversed, otherwise affirmed.


author: Porter, J.

text:
    Essex County Orphans Court.
    In the matter of a paper-writing purporting to be the last will and testament of Leila Smith.
    [Decided April 1st, 1926.]
    Wilis—Probate—-Lack of Testamentary Capacity and Undue Influence Alleged—Testatrix an Invalid for Many Years, but of Sound Mind—Testimony Clearly Shows That Her Mind was Sound the Day Will was Executed—Mother of Testatrix, Natural Recipient of Her Bounty, Had Sufficient Money, as Testatrix Said—Evidence Indicated Testatrix Did Not Want Her Mother to Know of Her Act—Friends and Rector of Church the Principal Beneficiaries—Undue Influence Not Shown.
    On appeal from a decree of surrogate, admitting will to probate.

      Messrs. Hood, Lafferly & Campbell (bv Mr. .Louis Hood), for the appellant.

      Messrs. Osborne, Cornish & Scheck (by Mr. Harry V. Osborne), for the executor-respondent.

      Messrs. Biker & Biker (by Mr. Andrew Van Blarcom), for Myra Germand and Dorothy Germond, legatees.
   Porter, J.

This ease comes before me on appeal from a decree of the surrogate, admitting to probate a paper-writing purporting to be the last will and testament of Leila M. Smith, deceased.

The appellant’s contention is that there was a lack of testamentary capacity and that undue influence was resorted to in the procurement of the will. The testimony is that testatrix, Leila M. Smith, was unmarried and lived with her widowed mother in the village of South Orange, where together they occupied a large old-fashioned house, and where Miss Smith died on September 13th, 1925. Miss Smith was over fifty years of age, and Mrs. Smith, her mother, over eighty years of age. The other members of the household were Margaret Cunningham, a cook and house servant, and Jessie B. Browning, a practical nurse who looked after Miss Smith. John McGarry was also employed about the place as gardner and furnace man. Mr. Smith died about eight years ago. ' Miss Smith was a.n invalid for many years, and for several years before her death was practically helpless, unable to walk, write, dress or feed herself. Her vocal organs were affected so that she did not speak distinctly. Both she and her mother -were, and had been for years, members of the Church of the Holy Communion of South Orange. They had not attended service there since Mr. Smith’s death. The rector of that church, Rev. George A. Hanna, was in the habit of calling upon them and administering the sacrament of Holy Communion to them about four times each year.

First, as to testamentary capacity.

The testimony clearly shows that Miss Smith was very intelligent and fully competent to make a will. In fact, there is no testimony to the contrary except as to her mental condition during the last days of her life. Up until about ten days or two weeks before her death she was able to sit in a chair, as had been her habit. During the last ten days or two weeks, however, her condition became such that she was unable to be taken from her bed.

The alleged -will was dated September 11th, 1925, which fell on Friday, death ensued on Sunday morning, September 13th. The attending physician, Dr. William E. Wakeley; Rev. Mr. Hanna, the nurse, Mrs. Browning; the servant, Miss Cunningham; the latter’s niece, Marie Gelshiman; Mary G. Elsmore and Arthur A. Mitchell, all testified as to Miss Smith’s physical condition on September 11th, the date of the alleged wall. The last three named were the attesting witnesses to it. The testimony of these witnesses as to what transpired in the sick room and the conversations had between some of them and Miss Smith on that day leaves no doubt that she was possessed of her mental faculties and was fully competent to comprehend the nature of her acts and therefore had testamentary capacity.

Against that testimonjq however, is that of Mrs. Smith, who testifies that Miss Smith was only semi-conscious on Friday, the 11th, and that she had been with her practically all of that day. Dr. Wakeley’s testimony is that Miss Smith had a sinking spell and was nearly in a state of coma on the preceding Tuesday or Wednesday, and was not in that condition on Friday. The clear weight of the testimony is that Miss Smith was not in the condition on Friday described by her mother. Mrs. Smith has evidently referred to her daughter’s condition of coma as spoken of by the doctor, and is mistaken as to the day of its occurrence. The testimony is that the will was received by mail on the 10th and read to Miss Smith on that day. Mrs. Nicolay testifies that she called at the Smith home on Thursday, the 10th, and was there from about eleven to two o’clock, and that Miss Smith was very sick and did not speak to her. That does not necessarily disprove the fact of her having been too- sick at other times that day to have understood the reading of the will.

The standard of testamentary capacity has been fixed by our courts at a very low point in the scale of intelligence. The right of a testator, however feeble his powers of mind or body, to the control of his property by testamentary disposition, so long as he has intelligence to exert it, has been inflexibly maintained. Loveridge v. Brown, 3 N. J. Adv. R. 1050. Thus, in the case of In re Hanes’ Estates, 3 N. J. Adv. R. 1651, it was said: “Our courts guard the right of testamentary disposition jealously. They hold that this right may be exercised by a person of very moderate capacity. He must have a disposing mind and memory, but his memory may be very imperfect. lie may not be able at all times to recollect names, persons or the families of those with whom he has been intimately acquainted. He may at times ask idle questions, and repeat those which have been asked and answered ; he may not have sufficient strength of memory and vigor of intellect to digest all parts of a contract, and yet be competent to make a will. If he is capable of recalling of what his property consists 'and who, either in consequence of ties of blood or friendship, should be objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, he may make a valid will.” See, also, Ward v. Harrison, 3 N. J. Mis. R. 470; In re Freeman’s Will, 2 N. J. Mis. R. 786.

Applying these principles to the case under consideration it must follow that Miss Smith possessed testamentary capacity at the time of the execution of the will by her.

Second, as to undue influence.

The first inquiry is as to the person or persons against whom this, charge lies and the motive. The will remembers the friends and relatives of Miss Smith, the nurse, the servants and the library, and gives the residue to Eev. Mr. Hanna in trust for the use of the church. Mrs. Smith, of course, as the nearest, and, I take it, the dearest relative of Miss Smith and the natural object of her bounty. She is left only certain jewelry. However, the will gives the reason for that, saying, “My mother is already well provided for, so that I give her nothing more.” Prom the testimony it appears that Mrs. Smith owns valuable real property, one piece in New York ■City, the income from which maintains her. It would seem that there was a basis for that statement in the will, and that the reason for not leaving anything of substance to Mrs. Smith was based on facts or what, at least, could have been considered fact by Miss Smith.

Miss Smith was deeply religious and very much interested in the work of the-church, and especially in the Alaska mission. The nurse had been caring for Miss Smith for nearly two years. The servant for about eighteen years and the gardener for several years. The amounts bequeathed to them are not large nor unreasonable. There is some testimony that Mrs. Browning was not always kind to Miss Smith. It may be argued from that that Miss Smith would therefore not be likely to remember her in her will. But Mrs.. Browning attended to the preparatioh of the will, as will be referred to later, and so would not likely be left out because of that fact. The testimony of her unkindness showed nothing serious to have occurred and in itself can have but little weight. The Rev. Mr. Hanna had no knowledge of the will until after Miss Smith’s death. He testified that she had never discussed the subject of a will with him. He does not personally profit by the will, and, of course, there is no evidence of any kind that he had anything whatever to do with the making of it. If there was any undue influence used it must have been resorted to by Mrs. Browning or Miss Cunningham. Both of these women appeared very intelligent and Capable.

The only basis at all for charging undue influence lies in the suspicious circumstances surrounding the making and executing of the will. Miss Cunningham says that Miss Smith spoke to her about her will on three occasions, going into some details about it. All of those conversations were within a few weeks of the date of the will. Miss Browning says that she was instructed by Miss Smith a few weeks before the date of the will to find out whether a will could be made and executed without the necessity of an attorney coming to the house. She told her her mother would not approve of her making a will, and so she did not want her mother to know about it. Mrs. Browning called upon Mr. Harry Y. Reeves, an attorney whom she knew, and received advice. Miss Smith, upon being informed that an attorney need not be present upon the execution of the will, instructed Miss Browning to give directions to Mr. Reeves to draw the will. She dictated to Mrs. Browning the provisions which Mrs. Browning wrote clown in a memorandum book, which was preserved and put in evidence. The will was drafted by Mr. Reeves and received by registered mail on September 11th. Instructions were then given to summon witnesses. The will was read to Miss Gelshiman in the presence of and within hearing of Miss Smith. The will was then executed in accordance with the statute. Miss Cunningham testified that she was instructed to stay with Mrs. Smith in her room while the will was being executed, so that she should be kept in ignorance of it. She also testified that she was further instructed to tell no one of file occurrence. Later on, after the death of Miss Smith, Mr. Francis Lafferty and Mrs. Nicolay called on Miss Cunningham and questioned her about the will. She then denied all knowledge of it. ■ She explains that by saying that she acted thus because of Miss Smith’s instructions. It is testified that Miss Smith said that her mother would not let her make a will. The mother denies that she would have objected—on the contrary, she says that had she known she wanted to do so she would have sent for a lawyer to attend to the matter. It is apparent from the testimony that Miss Smith had reason to think that her mother would have objected. Several witnesses, three of them old friends of Miss Smith, and one neighbor and friend of shorter acquaintance, all gave testimony that Mrs. Smith had refused to allow her daughter several things which she very much wanted to have and which she was willing and able to pay for, and all of which would have given her much pleasure. These friends tried to induce Mrs. Smith to give her consent, and only desisted in their effort when requested to do so by Miss Smith. It seems that Mrs. Smith was the dominant personality and had her own way in the conduct of her daughter. Considering the physical, condition of Miss Smith for so many j^ears, Mrs. Smith was obliged to devote her whole life to her, she cared for her constantly and did what she could for her alwaj's, except in the instances cited, so it was natural, perhaps, for her to dominate her even to the extent of thinking for her.

From all of this testimony it is clear that Miss Smith wished to keep her mother in ignorance of the will. Mrs. Nicolay was kept away from the house on the morning the will was executed, undoubtedly, in furtherance of this desire. Nor did Miss Smith inform Mrs. Nicolay of the will, although she freely' talked with and consulted Mrs. Nicolay, who was her cousin, and almost daily visitor. It is true that Mrs. Nicolay testifies to a conversation with Miss Smith about a will within a few weeks of her death, in which she expressed a wish that her mother should receive her estate. I have no doubt of the truth of that testimony, and it may well be that such was her wish at that time. Eor some reason, perhaps a realization of her condition, she came to a different conclusion, as evidenced - from the testimony. Surely there was a sufficient time intervening for her to have done so.

It is settled that the influence which the law denominates “undue” must be such to destroy the free agency of the testator and amount to oral or physical coercion.

It must be proved, moreover, that the act done was the result of such coercion. There must be a control exercised over the mind of the testator or an importunity practiced which he could not resist. Loveridge v. Brown, 3 N. J. Adv. R. 1050.

And in the case of In re Young's Estate, 90 N. J. Eq. 236, it was held that a person competent to make a will has a right to the aid of any person she may think proper to select when she desires to put her testamentary wishes in form to have legal efficiency, and if she exercises this right without improper influence or control, though she selects, a person she intends to make one of her beneficiaries, that fact, in the absence of evidence, showing an abuse of confidence, constitutes no reason why probate should be denied to her will.

In this case it is obvious that no such dominating influence exists.

The impression I gained from the appearance of Miss Cunningham and Mrs. Browning on the witness-stand, together with the testimony given by them, convinces me that there was no undue influence exercised by them. Especially is this so when the provisions of the will are read. Had this will been of their making they would probably not have been satisfied with such modest sums, and would more likely, it seems to me, have made Mrs. Smith the residuary legatee rather than the church.

It follows, therefore, that the testatrix being mentally competent, and the will not being the product of undue influence, must be admitted to probate.


author:
Haley J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES ROBINSON COMPANY, PETITIONER, v. EUREKA PRINT WORKS, RESPONDENT.
    On determination and award.
    Eor the petitioner, Nathan Rabinowitz.

    Eor the respondent, Richard W. Baker.

   On behalf of the petitioner Dr. Withers was called to testify and the petitioner himself testified. On behalf of the respondent Dr. Rnssel and Dr. Meloney testified.

After thoroughly reviewing the testimony in this case I find that the petitioner suffered an injury arising out of and in the course of his employment with the respondent Eebruary 3d, 1926; that he was unable to work for a period of eight (8) weeks, and that the petitioner is suffering from a permanent disability of ten per cent, of partial total permanent disability.

# * * * * * %

Haley J. Goas,

Deputy Commissioner.


author: Per Cubiam.

text:
    MILDRED E. MELOSH, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Decided April 1, 1926.
    Negligencei—injury to Motor Vehicle and Owner by Trolley Car —Verdict for Plaintiff Inadequate as to Compensation for Personal Injuries.
    On plaintiff’s rule to show cause.
    Before Gummere, Chiee Justice, and Justices Kalisch and Campbell.
    For the plaintiff, Melosh, Morten & Melosh.

    For the defendant, Joseph Goult (Leonard J. Tynan, of counsel).
   Per Cubiam.

There was a verdict for the plaintiff in the Hudson County Circuit, and against the defendant, for $785, in an action brought against it by the plaintiff to recover damages for personal injuries she sustained and for damages done to her automobile in which she was riding and operating through the alleged carelessness of the defendant’s servants in the operation and running one of the defendant’s trolley cars upon a public highway by running the car into the rear of the plaintiff’s automobile, with the result that she was bruised in and about her body, sustained an incomplete fracture of the ninth rib and nervous shock. The accident happened at about four o’clock in the afternoon on the 23d day of May, 1924. Her car was standing still in the trolley tracks, and she testifies that she was waiting for the traffic officer to give the signal to go ahead; she had been in this position for three or four minutes when, as she says, there was “an awful crash from the back which I was not expecting, and the next thing I remember was Officer Tremble taking me up and giving me air.” The damage done to the automobile she describes as follows: “Why, the back was all caved in and the rear springs were bulged about like that [indicating]. The tank was all shattered and all the glass was broken. Every bit of the upholstery was as if somebody had taken a knife and cut it. The front seat had been tom out from the impact from the rear. * * * I was sitting upright. When the policeman took me out I was down flat; the seat was just pushed right out flat.” She further testified that she fainted, “was terribly shaken up” and had an “awful pain in her side.” The medical testimony disclosed that she had an incomplete fracture of the ninth rib, and that she was suffering from nervous shock and was in a highly nervous condition, which would last at least for some time to come. The plaintiff’s complaint contained four counts. The first count sought to recover damages for personal injuries sustained by her, namely, for pain and sufferings and moneys laid out for medical treatment and medicines; the second count for damages, because of the impaired value of the car; the third count to recover expenses incurred in repairing the car, and the loss of the use of the car for a period of-eight weeks; the fourth and last count to recover the sum of $77.80, the value of the insurance premium paid by her on the car, and which was lost to her by reason of the collision. The jury’s verdict, as recorded, is: “They found a verdict in favor of the plaintiff and against the defendant and assess the damages as follows: Eor damages to the car, $635; for doctors, $50; for personal injuries, $100; making a total of $785, and so they say all.”

The circumstance that the jury itemized the damages is helpful in the solution of the question, whether or jnot it arrived at its result through mistake, or inadvertence or prejudice. There was, and could only properly be, a single verdict under the form of action brought. The plaintiff obtained a rule to show cause why the verdict should not be set aside.

It is argued in the brief of counsel of plaintiff that the verdict is inadequate as to the amount of damages awarded for personal injuries. We find no fault with the finding of the jury under the evidence as to the property damages, but the amount of damages awarded by the jury as compensation for the personal. injuries sustained by the plaintiff is clearly inadequate and for this reason, the plaintiff is entitled to have the verdict set aside and a new trial ordered.

Eule to show cause is made absolute, costs to abide the event.


author: Newman, J.

text:
    Passaic Circuit Court.
    Jos. Melis and Angelo Antuzzi, trading at Melis & Antuzzi Company, plaintiffs, v. Max Goldstein, builder and owner; Samuel Eichenbaum, owner, et al., defendants.
    [Decided March 10th, 1926.]
    Mechanics’ Lien—Plaintiffs’ Motion to Amend Lien Claim—Summons was Issued One Day After Time to Issue Summons Had Run—Motion Denied.
    On motion to amend lien claim.
    Before Judge Newman.

      Mr. Vincent J. Paterno, for the plaintiffs.

      Messrs. Ward & McGinnis and Messrs. Weinberger & Weinberger, for the defendants-mortgagees.
   Newman, J.

The lien claim in this case, as filed, stated that the labor was performed and materials furnished “between the 2d day of July, 1924, and the 12th day of September, 1924.'” It is settled in this state that a period of time defined as between two certain dates does not include either of the terminal dates. Delaware, Lackawanna and Western Railroad Co. v. Mehrhof Brothers, 53 N. J. Law 205. Therefore, under that declaration no labor or materials were furnished on September 12th, 1924.

Plaintiffs now move to amend the lien claim by making it read that the labor and materials were furnished “from about the 2d day of July, 1923, to and including the 12th day of September, 1924.”

Defendants concede the authority of the court to make certain amendments pursuant to section 19 of the Mechanics5 Lien act, but resist this application for amendment on the ground that the lien had been discharged, and that an amendment which would operate to revive the claim cannot be made.

Section 31, paragraph 3 of the act, provides one method of the discharge of the lien “by the expiration of the time limited for issuing a summons on such lien claim without any summons being issued.55

Section 18 provides that no debt shall be a lien * * * unless a lien claim is filed within four months from the date the last work done or materials furnished for which such debt is due, * * * nor shall any lien claim be enforced * * * unless the summons in the suit shall be issued within four months from the date of the last work done or materials furnished in such claim. Summons was issued January 12th, 1925.

As the lien now reads, the time to issue summons expired on January 11th, and perforce of the statute just quoted, when that date elapsed without the issuance of the summons the lien was discharged.

It is true that in the case at bar the period intervening between the expiration of the time for issuing of summons and the actual issuance thereof is but one day. But the principal involved is the same, and if the amendment could bo made when the intervening period is but one day it could with equal propriety be made when such period was one month, and in the interim between those dates strangers to the litigation might acquire rights or interests in the property which would be cut off by a prosecution of the lien claim without an opportunity to be heard in defense of their rights. This procedure, for the same reason, has been condemned by our court of errors and appeals. Wheeler v. Almond, 46 N. J. Law 161.

Eor that reason the motion to amend must be denied. The ease -will be put in the week’s call for the week of March 15th, at which time appropriate motions may be made by the mortgagees, which will doubtless dispose of the ease so far as they are concerned, and will give the plaintiff an opportunity to test the soundness of these conclusions in an appellate court. This does not undertake to dispose of the claim as to the builder and owner.


author: Oappbey, J.

text:
    Essex County Orphans Court.
    In the matter of the estate of Mary E. Winans, deceased.
    [Decided March 5th, 1926.]
    Accounting—Executor—Exceptions—Failure to Charge Account With $20,000 Claimed by Executor as a Gift to Him From Testatrix—Testatrix About Ninety Years Oldi—Circumstances Considered, and Held That Alleged Donor Did Not Have Benefit of Independent Advice and That Donee Has Not Sustained the Burden of Proof to Show Absence of Undue Influence—Duty of Persons so Situated to Show, Beside Absence of Undue Influence and Deception, That All was Fair, Open, Voluntary and That it was Well Understood.
    On exceptions to accounting.

      Mr. John Trier, for the accountant.

      Mr. Arthur B. Seymour, for the exceptant.
   Oappbey, J.

Arthur W. Snow, executor under the last will and testament of Mary E. Winans, deceased, has filed an account of his administration of the testatrix’s estate, to which account exceptions have been made, alleging that the said executor has not charged himself with the sum of $35,000 in moneys and securities delivered to him by Mrs. Winans in her lifetime. There is no denial on the part of the executor that he did not include as part of the assets of the estate the sum of $20,000, claiming it as his own by way of a gift from the testatrix during her lifetime.

The validity of the gift is attacked on three grounds— (1) that the donor lacked mental capacity sufficient to make the gift; (2) that the transfer of the money was not full nor was dominion over it complete, and, therefore, not a valid gift inter vivos; (3) that the donor did not have the benefit of independent advice, and that she was the subject of undue influence.

The evidence showed that the testatrix died on August 15th, 1922, aged eighty-nine or ninety years; that prior to April of that year she lived in Caldwell, New Jersey, and managed her own business affairs with the occasional aid of Mr. Charles J. Thorne, a friend. This consisted of the receipt of interest on money invested in various savings banks, the return from stock in the Swift Company and the preparation of her income tax reports. The total estate was, approxiimately, $45,000. The proofs further show that in May, 1922, after Mrs. Winans was removed from Caldwell to East Orange, Mr. Snow, who had prior to this time visited the testatrix not more than three or four times a year, took a marked interest in her affairs, calling at her home in company with his sister, Mrs. Mary 6. Grasshof, many times. Mrs. Grasshof also manifested an interest in Mrs. Winans. There was an immediate response to this sudden solicitation on the part of Mr. Snow and Mrs. Grasshof, and, in one month’s time, Mrs. Winans, according to the testimony, requested that Mr. Snow take charge of her entire estate, which he agreed to do. During this period, or, to be exact, on May 17th, 1922, Mrs. Winans made her will and designated Mr. Snow her executor, and, also, a beneficiary to the extent of $5,000, which, according to Mrs. Grasshof, was in recognition of Mr. Snow’s kindness to Mrs. Winans’ brother Bobert, who was the father of Mrs. Snow. This transaction was carried on through the agency of Mrs. Grasshof, who testified that she made notes from the dictation of Mrs. Winans, and later Mr. Frederick Hey, a lawyer, drew the will in keeping with the desires of the testatrix. Mr. Snow testified that he learned of the existence of the will through Mrs. Grasshof, but she did not make mention of the legacy to him, a statement viewed in the light of all the circumstances, that seems incredible. Mrs. Grasshof further testified that it was the intention of the deceased to give Mr. Snow $25,000 as a legacy, but decided to make a gift to him during her lifetime instead. The evidence further shows that beginning in May, when Mr. Snow assumed entire charge of the affairs of Mrs. Winans, to about the middle of July, and, approximately, one month before the death of the testatrix, she withdrew $35,982.54, almost her entire estate, in moneys from the various banks and turned it over to Mr. Snow, which he placed in his own account, eo-mingled with his own funds, and, while there is some-conflict in the testimony as to his presence at these withdrawals, there is no doubt as to Mrs. Grasshof’s participation and guidance. Of this amount $15,418.95 was invested for the benefit of Mrs. Winans. The balance $20,000, was kept and used by Mr. Snow as his own money as a gift from the testatrix. Mr. Snow testified that he learned of this gift which he so utilized from Mrs. Grasshof; that ho went to see the testatrix and told her that he was reluctant to take it; that he felt the deceased would not have enough to take care of herself. Mr. Snow further testified that Mrs. Grasshof came to him with the paper marked in evidence Exhibit IS—

“Dear Arthur: I give you twenty thousand dollars for your service to me and faithful attention to my brother, Brother Bobert, Bobert Winans. Mary E. Winans, May, Mary.”-

(Further writing unintelligible.)'

There is no date on the exhibit, but the proof indicates it was signed the early part of June. This note seemed to satisfy Mr. Snow, and, despite his position as vice-president of a bank and his forty-three years’ experience in banking, he accepted this money as his own without any regard to his obligation as a fiduciary and one having the utmost confidence of a woman almost ninety years of age, weakened by a disease which caused her death but a short time after his acceptance.

Coming now to the specific objections raised by the exceptions, I do not feel that the proof is sufficient to hold that the deceased lack mental capacity to make the gift, and, while there is some suggestion in the evidence supporting the contention that Mrs. Winans would receive the interest on the $20,000 during her lifetime, I feel this is not inconsistent with the claim that the gift was absolute in character. There is no doubt in my mind, however, that Mrs. Winans was under the complete influence of Mrs. Grasshof, who, in turn, exercised that dominance on behalf of Mr. Snow. Prom April, when Mrs. Winans was removed to East Orange, to the date of her death in August, there is not a syllable of evidence showing that the decedent had the benefit of any independent or competent advice touching upon her affairs. Mr. Thorne, who up to the month of April, 1922, had been comewhat of an advisor, and in whom Mrs. Winans had confidence, was no longer consulted. In his stead Mrs. Grasshof assumed absolute control. She was ever present, and the withdrawal of the 'savings accounts, the making of the will and the transfer of the entire estate to Mr. Snow, are striking examples of her complete administration, and, furthermore, the promptness with which she obtained ■Exhibit IS from Mrs. Winans, when Mr. Snow showed some reluctance in accepting the, ‘$20,000, indicates an-eagerness and intensity of purpose that savors of undue influence, if not coercion.

The legality of the gift, under the circumstances as disclosed in this case, has been passed upon in many eases, and the rule applicable is no- better expressed than by Slack et al. v. Rees, 66 N. J. Eq. 447, where a gift made by a father of advanced years and in infirm health to a daughter furnishing him care and service was set aside.

Chief-Justice Gummere, speaking for the court of errors and appeals, - said the conveyance must be set aside, because in making it the donor did not have the benefit of competent and independent advice, and, quoting from Hall v. Otterson, 52 N. J. Eq. 528, said: “In all transactions between parties occupying relations, whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists, the burden of proof is thrown upon the person in whom the confidence is reposed, and who has acquired an advantage, to show affirmatively, not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was 'well understood.” “Where parties hold positions in which one is more or less dependent upon the other, courts of equity hold that the weaker party must be protected, and they set aside his gifts, if he had not proper advice, independently of the other.” Haydock v. Haydock, 7 Stew. Eq. 575. “The rule to be gathered from the English and American cases is that the burden of proof is cast upon the donee to establish that the donor fully appreciated what he was doing, or, at all events, in the doing had the benefit of disinterested and competent advice.” Coffey v. Sullivan, 18 Dick. Ch. Rep. 302. The court further pointed out that “its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee as it is to afford him protection against the consequences of voluntary action on his part, induced by the existence of the relationship between them, the effect of which, upon his own interest, he may only partially understand or appreciate.”

Vice-Chancellor Green, in Hall v. Otterson, supra, quoting from Rhodes v. Rate, L. R. 1 Ch. App. 252 (at p. 257), said: “I take it to be a well-established principle of this court that persons standing in a confidential relation toward others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show, to the satisfaction of the court, that the person by whom the benefits have been conferred had competent and independent advice in conferring them. This, in my opinion, is a settled general principle of the court, and I do not think that either the age or the capacity of the person conferring the benefit, or the nature of the benefit conferred, affects this principle.” Judge Kekewich, in Allcard v. Skinner, 36 Ch. Div. 145 (at p. 158), says: “Where the paramount influence presumably exists, it [the law] casts on the possessor of such influence the burden of proving that the gift was free, and it holds an essential part of that proof to be that the donor had ‘competent independent advice/” and Lord-Justice Lindley (at p. 181) : “In this class of cases it has been considered necessary to show that the donor had independent advice and was removed from the influence of the donee when the gift to him was made.” See, also, Prideaux v. Lonsdale, 1 De G., J. & S. 433; Savery v. King, 5 H. L. Cas. 627; In re Garnett, 31 Ch. Div. 1; Dolliver v. Dolliver, 94 Cal. 642; Leech v. Fare, cited in 13 Am. L. Reg. (N. S.) 350.

Mr. Justice Garrison' defines independent advice in this language: “Proper independent advice in this connection means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was, not only competent to inform him correctly as to its legal effect, but who was furthermore so disassociated from the interest of thé donee as to be in a position to advise with the donor impartially and confidently as to the consequences to himself of his proposed benefac-' tion.” Post v. Hagan, 71 N. J. Eq. 243.

From a careful reading of the testimony it ,is manifest that Mrs. Winans had not the benefit of independent advice with regard to this donation of $20,000 claimed by Mr. Snow as his own, and, furthermore, the donee has not sustained the burden of proof cast upon him to show absence of undue influence. Eor these reasons the exceptions are sustained. And Arthur W. Snow is directed to account to the estate for the money claimed as a gift to himself.


text:
    STATE BOARD OF MEDICAL EXAMINERS, PLAINTIFF-APPELLEE, v. GEORGE GESE, DEFENDANT-APPELLANT.
    Submitted January 29, 1926
    Decided April 23, 1926.
    Medicine—¡¡legal Practice—Trial Without Jury and Constitutionality of Act Heretofore Affirmatively Determined—Certiorari, Not Appeal, the Only Proper Mode of Review.
    On appeal from the District Court.
    Before Justices Parker, Minturn and Black.
    Por the appellant, Benjamin E. Gordon.

    Por the appellee, Edward L. Katzenbach, attorney-general, and Grover G. Richman, second assistant attorney-general.
   Per Curiam.

As to matters of procedure, this case is controlled by our recent decision in State Board v. Roche, 4 N. J. Adv. R. 417; 132 Atl. Rep. 86, holding that certiorari, and not appeal, is the only proper mode of review. The appeal will therefore be dismissed, with costs.

In view of the fact that the cited decision was very recently promulgated, we have thought it advisable, notwithstanding the faulty practice, to look into the merits, and discover no meritorious ground of appeal. The matter of trial without jury has already been settled by our decisions (State Board v. Buettal, 131 Atl. Rep. 89), so, also, has the question raised as to the constitutionality of the act on which the suit .is based; the complaint we deem sufficient, and there was ample evidence that the appellant undertook, ostensibly at least, to diagnose and treat diseases by the general methods of the medical profession.

Let a rule of dismissal of the appeal be entered.


text:
    PAUL J. FRANKLIN v. SAMUEL WIENER.
    Submitted January 29, 1926
    Decided April 23, 1926.
    Rule to Show Cause—Application to Enlarge Rule of Trial Judge Allowing Rule Limited to Excessive Damages—Case Examined for Intrinsic Merit on Any of the Grounds Sought and Were Found.
    On defendant’s rule to show cause. On application to enlarge scope of the rule.
    Before Justices Parker, Minturn and Black.
    Por the defendant, 'Frank G. Turner.

   Per Curiam.

The trial judge allowed a rule to show cause, limited to excessive damages. The present application is to the court, in banc to enlarge the rule by the reservation of exceptions, and also by adding reasons that the verdict is against the weight of evidence, against the charge of the court and contrary to law; further, if exceptions are not reserved, by adding that the trial court refused to nonsuit and to direct a verdict for the defendant. We have examined the case with a view of ascertaining whether there is any intrinsic merit in any of the grounds sought to be added as reasons for a new trial, and find none. These grounds have been argued in the brief submitted on this motion, and as no beneficial end would be subserved by a further argument of them, we conclude that the exceptions should not be reserved, and that the motion to enlarge the rule should be denied. Such will be the order.


author: Aokerson, J.

text:
    Hudson County Circuit Court.
    JOSEPH GENATT. ADMINISTRATOR AD PROSEQUENDUM OF JOSEPH GENATT, Jr., DECEASED, PLAINTIFF, v. ADOLPH BENTZ, DEFENDANT.
    Negligence—Death of Boy Nine Years Old Through Contact With Vicious Dogs—Damages Held Excessive—Measure of Damages in Such Case Considered and Verdict of $10,200 Reduced to $3,500.
    Eor the plaintiff, George T. Vickers (of Lazarus, Brenner & Vickers).

    Eor the defendant, Edward A. Markley and Edward Hollander.

   Aokerson, J.

This matter comes before me upon a rule to show cause why the verdict of $10,200 in favor of the plaintiff should not be set aside and a new trial granted.

The reasons nrged in support of the rule are, that the verdict is excessive and against the weight of the evidence, and the resnlt of passion, prejudice or mistake.

I am unable to agree that the verdict is against the weight of the evidence, but I do believe that the verdict is grossly excessive.

The boy, whose death resulted in this suit, was nine years and two months of age at the time of his death. He was a school hoy, and during vacation had helped a peddler two or three days a week, for which he received fifty cents a day and a little more on Saturday.

An examination of the precedents discloses that the range of compensation in snch cases in the Supreme Court from the year 1902 has been $1,000 for the death of a boy foul years and fonr months of age in the case of Graham v. Consolidated Traction Co., 65 N. J. L. 540, to $3,000 in the year 1925 for the death of a boy fonr years and eight months of age in the case of Brew v. Davidson, 128 Atl. Rep. 613.

It would seem, therefore, that the Supreme Court has made allowance for the depreciating value of the dollar over a range of twenty years, and that the rulings of the Circuit Courts upon the subject of damages in similar cases should be in harmony with the rulings of the Supreme Court.

In the case last cited the boy was four years and eight months of age, and if $3,000 was sufficient in such a case, it would seem that for the death of a boy nine years and two months of age a slightly larger sum should be awarded, because the probabilities of a boy ten years of age, being able and willing to contribute to the family purse, is greater than a boy only five years of age. The intervening five years between the ages of five and ten are critical years, and during that time the boy’s development will indicate with increasing certainty the characteristics of the boy for energy and ability or for idleness and incapacity.

It may be argued that ‘in the case of Powers v. Standard Oil Co., 98 N. J. L. 730, a verdict for .$5,000 in favor of a girl nine years and four months of age was reduced to $3,000 in the year 1925, and, for that reason, $3,000 is all that should be awarded in the instant case,-but, in the ease of a girl, the probabilities of her contributing to the family purse are lessened because of the probability of her marrying and being less able to make contributions or as large • contributions as a bojr.

It seems to me that the character of the injury, which resulted in the death of the plaintiff’s intestate in the present case, unduly influenced the jury to award the sum of $10,200. The boy was killed by two, apparently, vicious dogs, under ¡such circumstances as would naturally excite the sympathy of the jury, and for that reason I have reached the conclusion that if the plaintiff will remit $6,700 of the verdict and so indicate on the 'record within ten days from March 27th, 1926, that the verdict may stand for $3,500, in which ease the rule will be discharged, otherwise the rule "will be made absolute and a venire de novo issued.


author:
Harry J.. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    PAUL L. PARMELEE, PETITIONER, v. HERCULES POWDER COMPANY, RESPONDENT.
    Alleged Accident at First Diagnosed as Rheumatism—Statement Made at Time to Immediate Superior Not to be Construed as Due Notice-—No Other Notice Within Statutory Time— Case Dismissed.
    On determination of facts and judgment.
    For the petitioner, John M. Mills.

    For the respondent, John A. Graves.

   The facts show that the petitioner, Paul L. Parmelee, was in the employ of the respondent during February, March and April, 1925, at the respondent’s plant, located at Kenvil, New Jersey, at the rate of thirty-two dollars and sixteen cents ($32.16) per week; that from the petitioner’s testimony he suffered an injury in 1920, causing what is termed "sacroiliac luxation;” that he had a recurrence of discomfort therefrom in subsequent years on several occasions; that in the early part of February, 1925, he was engaged on respondent’s plant in moving a heavy piece of machinery, and that, due to a strain, he received the injury herein complained of; that after his work was completed, he stated to one Sweeney, his immediate superior, “I said it was a very heavy lift and quite a strain carrying it in;” that thereafter he visited his physician, Dr. Plume, who treated him for a considerable time under the diagnosis of rheumatism, and that he gave no written or other statutory notice to his employer, within the time prescribed by the act, of any injury received by him in the course of his employment. Petitioner testified, further, that he always believed he was suffering from rheumatism, and never knew that his injury might have been due to an accident in the course of his employment until he received the advice of physicians whom he employed after he was treated by Dr. Plume, and that he then thought that the injury occurred by reason of various strains during February, March and April, 1925, but finally concluded that his trouble was due to the lifting of said machinery.

Dr. Mills, called on behalf of petitioner, testified that petitioner was suffering with saero-iliae luxation, and described the injury as a fracture of the sacrum (a composite bone formed by the unión of the vertebrae between the lumbar and caudal regions, constituting the dorsal part of the pelvis), and the ilium, which is an expanded part of the hip bone, these two bones, in a person of mature age, being united to form, in effect, an integral part; that petitioner, with proper treatment, would suffer no permanent disability; that he was unable to state how great a strain it would take to cause such an injury; that it might occur from slight exertion when the body was in certain positions; that, in his opinion, the old injury had completely healed, callous having formed around the break to effect a firm union and render the bone as stable as it was in its original condition, and that, in his opinion, petitioner’s disability was not-related to the 1920 injury, but was a distinct and new break in the bone.

The petitioner then rested his case.

The assistant plant superintendent at respondent’s works, called on behalf of respondent, testified that, according to his recollection, the petitioner did not complain to him at the time he carried the machinery, as aforesaid, and likewise, respondent’s general foreman, and the electrical foreman, testified to substantially the same effect.

Said witnesses testified, further, that petitioner did not notify them at any time that he had received an injury in the course of his work, but, on the contrary, had stated to them that he was suffering from rheumatism and gave that as his reason for discontinuing work on April 12th, 1925.

I conclude that there was no notification of an accident by petitioner to respondent within the statutory period, and certainly not at the time of the alleged occurrence. The conversation that most nearly may be claimed to give the proper notice is that of petitioner to Sweeney—“I said it was a very heavy lift and quite a strain carrying it in.” I fail to find,in the testimony any definite notice, and I do not feel that the above testimony of petitioner of his conversation to Sweeney could be construed as such a notification, or as actual knowledge of the happening of an accident, for it is a matter of common knowledge that people work under great difficulties and under stress without necessarily meeting with an accident. Another significant fact is that petitioner did not, apparently, give any history of an accident on his first visit to Dr. Plume, as is evidenced by Dr. Plume treating him for a considerable time under the diagnosis of rheumatism. If an employe strains himself, knowledge thereof is usually confined solely to himself, with no outward evidence 'thereof, and it is encumbent upon an employe in such cases to notify his employer within the period prescribed by the statute, it being impossible for the employer to acquire knowledge thereof unless the strain results in an injury causing prostration or other like effect, which it did not do in this case. Petitioner’s statement to his foreman does not constitute “actual knowledge”' by the employer of the occurrence of an injury. It was a mere remark, not that petitioner had been injured, but that it was “quite a strain carrying it in.” Remarks are not sufficient to charge an employer with “actual knowledge.” He must have real and certain knowledge of the injury independent thereof in order to have “actual knowledge.” If petitioner did strain himself at the time alleged, it was known only to himself, as he went right on about his Work thereafter until April, 1925, and, apparently, was not aware that he was injured in February, 1925, when he swore to his petition, for he then stated the accident happened in February, March and April, 1925, and, apparently, it was only between that date and the date of the hearing that he came to the conclusion that the injury happened in February, 1925. Petitioner gave no written or other notice of the time and place of the happening of the alleged injury until the afternoon of the hearing, to wit, on December 8th, 1925.

I, therefore, do find and determine from the evidence as follows:

Eespondent having no “actual knowledge”,of the happening of an accident as alleged by petitioner and as required by section 15 of the Workmen’s Compensation act, and petitioner having failed to notify respondent of said alleged accident or injury within the statutory period, the claim petition herein must be dismissed.

Wherefore, it is on this 15th day of February, a. d. 1926, order that judgment final be entered in favor of respondent, Hercules Powder Company, and against the petitioner, Paul L. Parmelee, and that claim petition. No. 4312 is hereby dismissed, and compensation is hereby disallowed.

Harry J.. Goas,

Deputy Commissioner.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MARY LENORTH, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL KRUTULIS, PETITIONER, v. LINDEN CONTRACTING COMPANY, RESPONDENT.
    Driver of Trucking Team Thrown From Truck Through the Jolting Caused by the Uneven Road—Death Resulting—Evidence Examined at Length—Compensation Fixed.
    On determination of facts and rule for judgment.
    For the petitioner, William N. Becker.

    For the respondent, McCarter & English and Gerald M. F. McLaughlin.

   I do find and determine from the evidence taken in this cause as follows, to wit:

1. That Michael Krutulis, deceased, was, on the 10th day of December, 1923, in the employ of the respondent, Linden Contracting Company, in the capacity of driver of a two-horse-drawn material wagon, which employment was subject to 'the compensation section of chapter 95, laws of New Jersey, 1911, and supplements thereto.

2. That, on the above-mentioned date, Michael Krutulis met with an accident arising out of, and in the course of, said employment, resulting in his death, leaving surviving him a wife and son.

■3. That the respondent herein had knowledge of said accident within the time prescribed by law.

1. That, at the time of the accident, the said Michael Krutulis-received wages in said employment amounting to the sum of twenty-four ($24) dollars for a full week.

5. That no compensation was paid to the petitioner by way of compensation on account of the death arising out of said accident.

6. That the petitioner had expended money for burial of Michael Krutulis made necessary on account of the death resulting from the accident.

L That Mary Lenorth, a niece of the deceased, made application for, and received from the surrogate of the county of Union, letters of administration ad prosequendum, to prosecute an alleged claim of the widow and next of kin of Michael Krutulis, late of the city of Linden, New Jersey, who died intestate December 10th, 1923, against the Linden Contracting Company, of 450 Wood avenue, Linden, New Jersey, or any other person or persons or corporation, whose wrongful act, neglect or default caused the death of the said Michael Krutulis.

8. That the widow, Antanina Krutulis, and son, Joseph Krutulis, next of kin, of Michael Krutulis, reside in Alytaus, Lithuania, filed with the surrogate of the county of Union letters of renunciation of the estate of Michael Krutulis, who died intestate, and being entitled to have administration of the effects of said deceased, renounced said right of administration, and requested the appointment of Mary Lenorth, who, in pursuance thereof, is prosecuting this action.

9. That the son, Joseph Krutulis, at the time of the death of his father, was above the age of sixteen years, and under the act cannot be considered a dependent, and is therefore mot entitled to any benefits thereunder.

10. Erom the testimony of Mary Lenorth, she stated that the deceased left home on December 10th, 1923, for his work with the Linden Contracting Company, and that some time later she saw his dead body at the morgue in Elizabeth, and also, when the body was brought home by the undertaker, that she paid for the funeral and burial expenses out of the funds of the estate, and that she gathered his personal belongings together and sent them to his dependents in Europe.

11. Erom the testimony of Julius Lopach, he stated that on the morning of December 10th, 1923, while he was looking out of a window of his home on Pratt Place, Linden, New Jersey, he saw a wagon drawn by two horses turn in from Washington avenue into Elm street, and as the wagon approached a point on Elm street, between Washington avenue and Maple avenue, he noticed “that the wagon went up and down, due to the bad condition of the road, and that the front wheels of the wagon fell and sank into a big ditch around eighteen inches deep, that had been dug a couple of weeks before, and which had since sunk in, causing the driver to pitch sideways from his seat and fall to the ground, causing the horses to. run away for a distance of a number of blocks uncontrollable, and that the man crawled up and started to walk bended down, and walked down Maple avenue and walked over to Henry street; he still had his corn cob in his mouth and his whip in his right hand. He was moaning all the time. He took a little rest on the comer and then he was staring around, looking after his horses, and then he went somewhere further down,” and that upon his attention being called to the fact that a man was lying on the ground on Stone street and Henry street, he hastened over to identify him, and he stated “that it was the same man that he saw fall off the wagon, and that the deceased was lying face down on the ground, and that he was moaning something which I did not understand,” and “that the deceased soon stopped breathing, moaning and moving.” And “that the team of horses belonged to the Linden Contracting Company; and that the deceased was pronounced dead by the ambulance physician, who arrived within twenty minutes, and that two hours later the undertaker arrived and took charge of the body, and, upon cross-examination, he stated that he did not see any blood on the deceased.”

12. Michael Budrecki testified that he was the undertaker that buried the deceased, and he took charge of the body at Morton’s Morgue in Elizabeth about three or four o’clock in the afternoon of the same day, and that, while dressing the body for burial, he noticed a red bruise about one and one-half or two inches over the right forehead, and that there was a soft spot in the head or scalp upon the front portion, and that it felt like it was broke or something, and that “it was a break and swollen,” and that his charges for burial were about $400.

13. Annie Kriel stated that she saw the deceased at seven thirty a. m. sitting on the corner of Henry and Stone streets, and asked him “what is the matter,” and that he did not answer; that she stayed about five minutes and then walked away, returning later to learn that the man had died.

14. Ellen Lamont and Antonia Byer testified that on December 10th, 1923, a man died on Stone and Henry streets, Linden, New Jersey.

15. John M. Miller, a witness on behalf of the respondent, testified that he was a police officer of Linden, and found Michael Krutulis lying on the side of the road, and that when he arrived there there were a number of people there, that he felt of his pulse and found him dead, and that he saw no blood, that his hat was on; he testified to no direct evidence of the cause of death of the deceased, to contradict the testimony of the witnesses for the petitioner. The same is true in reference to the testimony of Gez.a Mihalkovitz, ■who was employed by Morton’s Morgue, and Joseph B. Gallagher, witnesses on behalf of the respondent.

Leave was granted to the perties at the close of case to serve interrogatories and cross-interrogatories on the question of dependent, and upon the return of the depositions of Antanina Krutulis, of Alytaus, Bepublic of Lithuania, under the hand and seal of the American consul, it disclosed that the widow was totally dependent upon her husband for support and maintenance, and that she had received during his lifetime on an average of one hundred and forty dollars ($140) a year, or about three dollars ($3) per week, and that her son’s earnings were about one dollar per week, which clearly indicates that he was dependent upon the income of his mother.

In case of death, petitioner is entitled to compensation for the maximum period of three hundred (300) weeks, computed on a basis of thirty-five (35) per centum of the weekly earnings of -twenty-four ($24) dollars, being eight-dollars and forty ($8.40) cents, and being a total of twenty-five hundred and twenty ($2,520) dollars, and the sum of five dollars ($5) for stenographic service, and the sum of one hundred ($100) dollars for burial cost and the sum of twenty-three ($23) dollars cost of interrogatories.

That petitioner is entitled to an attorney’s fee in the sum of five hundred ($500) dollars, to be paid to William N. Becker, attorney for petitioner, to be paid in the following manner:

Two hundred and fifty dollars ($250) by the respondent and two'hundred and fifty dollars ($250) by the petitioner.

It is therefore, on this 24th day of February, 1926, ordered that judgment final be entered in favor of this petitioner, and that the respondent make payment to the petitioner as follows:

Permanent compensation at the rate of eight dollars and forty ($8.40) cents per week for three hundred (300) weeks, commencing from the date of the death of the deceased, from the 10th day of December, 1925, and the sum of five dollars ($5) for cost of suit incurred iu accordance with the law, and the sum of twenty-three dollars ($23) for cost of depositions, together with a counsel fee of two hundred and fifty dollars ($250), to be paid to William N. Becker, attorney for petitioner.

Charles E. Corbin,

Deputy Commissioner.


author:
Habky J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    SIMON BEAM, PETITIONER, v. MORRIS S. TRIMMER, DEFENDANT.
    Injury While Working at Saw Mill Resulting in a Fail and a Dislocated Shoulder—Had Worked for Employer Eighteen Years and Had Never Complained of Dizzy Feelings—Injury as Result of Employment.
    On determination and finding of facts and rule for judgment.
   A petition having been filed in the above-entitled proceeding praying for the determination of the compensation due the petitioner under an act of the legislature of the State of New Jersey, entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the acts amendatory thereof and supplemental thereto, and the said petition having been duly served and an answer thereto having been filed, and the hearing of the said matter having been adjourned from time to time until Tuesday, February 9th, 1926, at which time the parties appeared before me at the city of Morris-town, county of Morris, and State of New Jersey, and I having heard and considered the testimony adduced and the admissions as presented by both sides, do hereby determine and find as follows:

1. That some'time on or about April 3d, 1925, at about two r. a!., the said petitioner was employed by the respondent as a laborer, also known as a sawer, on a mill at the sawmill of the respondent, located in and near Lebanon, Hunterdon county, and State of New Jersey. The petitioner was employed at a weekly wage of $18.90, and while engaged in the duties of his employment, the said petitioner, while endeavoring to lift, and did lift, a log on the carriage of the mill, when the petitioner slipped, fell, and with his right arm extending across part of the mill, sustaining an injury or dislocation of his shoulder.

2. I find the petitioner worked approximately eighteen years for the respondent, and never during that time had the petitioner complained to the respondent of any dizzy feelings. I further find that the accident arose out of and in the course of his employment, and that the petitioner is now suffering from the above-mentioned injury, and that he is entitled to receive compensation for one hundred and twenty (120) weeks at the rate of $12.60 .per week or a. total of $1,512, for permanent disability, and he is also entitled to receive for temporary disability from April 3d, 1925, to June 8th, 1925, approximately two months and five days, amounting to $111.40,, and $10 for medical expenses.

3. The preponderance of medical testimony conclusively shows that the dislocation of right shoulder joint was caused by the accident, injuring the nerve which supplies the fingers of the right hand, causing a permanent injury of his shoulder, of sixty per cent, of the total disability of his right arm, associated with a marked atropy of the structure and muscles, causing part of loss of function of right hand, arm and shoulder.

It is ordered, on this 3d day of March, 1926, that the respondent pay to the petitioner the compensation as above authorized, and the accrued compensation for both temporary and permanent disability from the day of the accident to the day of the signing of the order and determination. Also the medical expenses and attorney fee. The respondent is also to pay to Charles Becker, attorney for petitioner, the sum of $175 on account of his services rendered in this procedure, and the petitioner is also to pay to Charles Becker the sum of $175 for legal services rendered in this case.

Habky J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ALBERT KAWALSKI, PETITIONER, v. ADAM LAYTHAM, RESPONDENT.
    Injury Due to “Kick” From Motor of Truck Employe was Cleaning—Employe Had Been Expressly Charged Not to Touch the Engine—Held Not Necessary to Do So to Clean the Truck— Accident Accordingly Did Not Arise Out of the Employment.
    On petition for compensation. On finding of facts and determination.
    Por the petitioner, Joseph Stein.

    Por the respondent, John C. Barbour.

   2. That the petitioner was employed by the respondent as a truck driver in the early part of the month of September, 1925, and that he continued in such employment up to the 29th day of September, 1925; that his duties consisted of driving an automobile truck, and on the said 29th day of September, 1925, his duties consisted of cleaning the body of an automobile truck ordinarily driven by the respondent.

3. That the petitioner, at the time of injury, received for his services wages amounting to $30 per week.

4. That on the 29th day of September, 1925, the petitioner sustained personal injuries as the result of an accident.

5. That the petitioner called, no witnesses in his behalf, but his testimony was that on the morning of the accident he had been instructed by the respondent to clean the truck ordinarily driven by the respondent, and that in order to clean the body 'it was necessary for him to raise it; that in order to raise the'body it was necessary for him to start the engine and then throw a lever, which would raise the body; that in cranking the engine the motor kicked, causing a fracture of his right wrist. Petitioner denied that he had been expressly instructed by the respondent not to touch the engine, and denied that he had been told by the respondent that the motor would kick if he attempted.to crank it.

6. That the respondent produced five witnesses on his behalf and established -the following: That on the morning of September 29th, 1925, the respondent, himself, backed out of the garage the automobile truck ordinarily driven by him, placing it in the yard between his garage and the rear of his house, and himself raised the body of the truck; that he instructed the petitioner to clean the body of the truck and gave the petitioner explicit orders not to touch the engine and not attempt to crank it, as the motor would kick; that the respondent then took the truck ordinarily driven by the petitioner and left the yard about six-thirty in the morning; that at the time the respondent left the' yard the body of the truck, which was to be cleaned by the petitioner, was in a raised position. The respondent was corroborated by his wife, who stood in the rear door of their home about ten feet from the truck; by Arie Kaptain, a next-door neighbor, who was on his way to work, and who stopped for a few minutes in the respondent’s yard; by Richard Stellman, who was delivering rolls at the rear door of respondent’s home, and by William Dipple, who was seeking employment by the respondent and who was awaiting an opportunity to speak to him. The respondent was further corroborated by the testimony of one Yan Orden, who went to the respondent’s home on the afternoon of September 29th, 1925, to do some repair work on the engine of the truck in question, and who testified that when he arrived the body of the truck was in a raised position; that he made some repairs to the engine and then lowered the body and drove the truck into the garage. The accident had happened about nine o’clock in the morning while the petitioner was attempting to crank the motor in order, as the petitioner claimed, to' raise the body. The petitioner did not offer any testimony whatsoever that he succeeded in cranking the motor or in raising the body, which, of course, is unlikely, in view of his wrist having been fractured in the attempt.

7. I do find and determine that, in order to clean the body of the truck, it was not necessary for the petitioner to crank the motor.

8. I do find and determine that the injury resulted from the direct disobedience of express orders. The disobedience or orders in this case was not a disobedience of orders as to the way in which the work should be done, as in the case of Kolaszynski v. Klie, 91 N. J. L. 33. On the other hand, the accident occurred while the petitioner was in the doing of an act which he was explicitly forbidden by his master to do-, as in the case of Smith v. Corson, 87 Id. 118, for his work did not necessitate the cranking of the engine.

9. I do find and determine on this 4th day of February, 1926, that the said accident did not arise out of and in the course of his employment, as shown by the overwhelming preponderance of evidence on the part of the respondent, and it is thereby ordered that the petition herein he and the same hereby is dismissed.

Hakky J. Goas,

Deputy Commissioner of Labor.