author: Pee Ctjeiam.

text:
    PHILIP G. MERKEL, PETITIONER-PROSECUTOR, v. T. A. GILLESPIE COMPANY, INCORPORATED, RESPONDENT.
    Submitted May term, 1932
    Decided September 30, 1932.
    Before Justices Paekee, Campbell and Lloyd.
    Por the prosecutor, David Roskein.

    Por the respondent, Arthur F. Mead.

   Pee Ctjeiam.

There are two matters before us.

Cause Pío. 224 is a writ of certiorari to review the judgment of the Court of Common Pleas of Essex county dismissing an appeal in a workmen’s compensation matter, and Pío. 255 is a motion to dismiss the appeal to this court, in the same matter, for lack of diligent prosecution.

Dealing with the latter cause first, it might well be dismissed because of non-compliance with our rules. Proper diligence is not perfectly apparent but by our disposition of the cause, upon its merits, legal and factual, respondent is not disadvantaged by a refusal to dismiss. The motion to dismiss is therefore denied, without costs.

Directing our attention to cause PTo. 224 the facts are:

Merkel, the prosecutor, and others, as employes of the respondent, Gillespie & Company, were engaged in laying water mains in Jersey City. The performance of this work required the excavation of a trench and the lowering therein, and connecting up, of the pipes, length by length. A point in the work seems to have been reached where the trench was obstructed by a tree stump -which it was attempted to remove by a crane, located on the highway, and tackle attached to the stump. One Stahlberg was acting as signalman for the crane operator and he and Merkel and another or others were assigned to care for the traffic on the highway so that it would not come into collision with the crane. The tackle had, several times, been placed upon the stump but slipped each time that the crane attempted to pull. Finally, Merkel appears to have undertaken to direct Stahlberg and other employes how to arrange the tackle. This started an argument between them, during which they called each other names and finally Merkel approached Stahlberg making an attempt to hit him, which blow Stahlberg dodged and in turn he struck Merkel, knocking him down and injuring him.

Upon a hearing before a deputy commissioner of the compensation bureau, that officer found that the injuries to Merkel did not arise out of and in the course of his employment and therefore he was not entitled to an award for compensation under the Workmen’s Compensation act.

Upon appeal from such finding to the Court of Common Pleas that tribunal dismissed the appeal for the same reason, citing as authority Hully v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007; Walther v. American Paper Co., 89 N. J. L. 732; 99 Atl. Rep. 263, and Mounian Ice Co. v. McNeil, 91 N. J. L. 528; 103 Atl. Rep. 912.

The facts in none of these cases present a situation identical with the case before us, but from them we think the policy of the courts of this state can clearly be discerned.

In Hully v. Moosbrugger, supra, the workman, at the time of the happening, was engaged in a work for his master and as the result of the swing of the arm of a fellow-employe, said to be in horse-play, which he attempted to dodge, he slipped and fell, receiving injuries resulting in his death. The Court of Errors and Appeals reversed an award of compensation, that court holding: “In the ease at bar the employer was not charged with the duty to see to it that none of his employes assaulted any other one of them either willfully or sportively. And when one made such an assault upon another he was guilty of the doing of a negligent act as an individual tort feasor, for which his employer was not responsible. * * * The accident in this case was clearly not one within the scope of the employment of the decedent, nor was it one arising out of a risk reasonably incident to that employment.

We are of the opinion that an employer is not liable under the Workmen’s Compensation act (Pamph. L. 1911, p. 134) to make compensation for injury to an employe which was the result of horse-play or skylarking, so-called whether the injured or deceased parly instigated the occurrence or took no part in it, for, while an accident, happening under such circumstances, may arise in the course of, it cannot be said to arise out of the employment.”

In Walther v. American Paper Co., supra, a night watchman was beaten and robbed by a fellow-employe, upon the premises of the employer and while the watchman was on duty. He died from his injury and an award of compensation was reversed by the Court of Errors and Appeals, because, inasmuch, the court said as “the assailant’s purpose in going to the mill at night and hiding in it was to rob Walther, and he did not attempt any robbery from the office of the mill, or any destruction of the mill property or any mischief or crime other than the robbery of Walther * * * the death of Walther did not arise out of his employment.”

In Mountain Ice Co. v. McNeil, supra, McNeil was injured by a blow on the head with an ice pick, at the hand of a fellow-employe who previously had tried to pull from under McNeil a box upon which he was sitting while engaged in work. McNeil had repeatedly told him to stop and finally a scuffle ensued which was put an end to by the foreman. Subsequently the blow, causing the injury, took place. The Court of Errors and Appeals reversed an award for compensation, saying: “We think that because of the skylarking which came under the observation of the president and superintendent of the ice company’s plant, namely, skylarking between those boys, charged the president and superintendent with contemplating no more than that the same thing might occur again, that is skylarking or horse-play—not that one boy might thereafter commit an atrocious assault upon the other.”

In Schmoll v. Weisbrod, 89 N. J. L. 150; 97 Atl. Rep. 723, Weisbrod while delivering beer for his employer was shot by some person, unknown, and died as a result of the shooting. This court reversed an award for compensation, saying: “* * * the testimony utterly fails to show any motive for the attack upon the deceased. The assailant of the deceased was unknown. His motive in making the attack was also unknown. Ho robbery or attempt at robbery was shown. The person who shot the deceased might have shot him out of revenge for some fancied wrong or by mistake or by accident. There was no proven fact or circumstance before the court below that connected the shooting either directly or indirectly with the employment of the deceased as driver or collector.-”

In one of our earliest cases under the Compensation act (Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458), where the workman was killed by the falling upon him of a metal bar from an upper story of a building, this court, in affirming an award of compensation, most significantly said: “It is to be observed that there is no evidence from which it might be inferred that the other workman intentionally caused the bar to fall on the decedent, and the presumption is to the contrary. We are, therefore, not now concerned with the question whether an employe is intentionally injured by another, it may be properly characterized as an accident as was held in Nisbet v. Rayne and Burn (1910), 2 K. B. 689, it being there said that the occurrence must be judged from the victim’s point of view.”

Appellant cites several cases in other jurisdictions which appear to hold that there may be recovery of compensation for injuries received by a workman through an assault and battery committed upon him by a co-worker.

Because of what appears to us to be the plainly displajred contrary policy of the courts of this state, by the cases to which we have referred, we do not find ourselves swayed by the findings of other jurisdictions, and certainly not in the ease before us where, as before indicated, the appellant-claimant was the aggressor.

In the well reasoned opinion of the Court of Errors of New York in Verschleiser v. Joseph Stern Son, Inc., 128 N. E. Rep. 126, it is said: “The man who initiates an assault is doing a willful thing, but this cannot be said of the man who, surprised by physical assault, or insult, reacts and in self-protection strikes another.” In considering the foregoing it is to be borne in mind that the courts of the State of New York recognize the right of compensation for injuries to an employe arising from attacks by co-employes. Heitz v. Ruppert, 112 N. E. Rep. 750; Verschleiser v. Joseph Stern Son, Inc., supra; Knocks v. Metal Package Corp., 131 N. E. Rep. 741; Rydeen v. Monarch Furniture Co., 148 Id. 527; Fried v. Quinlan, 152 Id. 399; Field v. Charmette Knitted Fabric Co., 156 Id. 642.

In L. R. A. 1916, p. 65, it is said: “An injury received by a workman while he himself was deliberately assaulting a fellow-workman was not caused by an accident arising out of and in the course of employment.”

It appears to us that the contention that a workman injured in an affray with a fellow-workman, in which he is the aggressor, cannot have compensation under the Workmen’s Compensation act, is entirely logical, and in accord with the trend of judicial thought as expressed and indicated by the cases in this state.

We conclude, therefore, that the judgment under review should be affirmed and the writ dismissed, with costs.


source: Caselaw Access Project

author: John C. Wegner, Referee.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIZABETH WICKHAM, PETITIONER, v. MONMOUTH MEMORIAL HOSPITAL, DEFENDANT.
    Decided April 18, 1932.
    Por the petitioner, T. Gerard Wharton.

    Por the respondent, William B. McMichael.

   ifc íjí Hí ❖ ❖ sji

Petitioner is the widow of Nathaniel St. Clair Wickham, who was a British subject, about thirty-five years of age. Wickham was employed by the respondent sometime during the month of April or May, 1930, as assistant chef, the agreed rate of compensation therefor being $75 a month and full maintenance. Late in the afternoon of July 15th, 1930, Wickham, in the course of pulling a soup pot across the floor of the hospital kitchen from the range to the ice box, slipped, fell and injured his knee. He continued work despite the injury, although he was seen to limp several days thereafter and complained of pain. A few days later, at the instance of a fellow employe, he visited the respondent’s clinic for treatment. He was thereafter confined to a bed in one of the respondent’s wards and treated by Dr. Daniel P. Peatherston, assistant surgeon of the respondent hospital. The injured knee continued to swell and pain and Dr. Peatherston subsequently operated for cellulitis. The operation was unsuccessful and Wickham died on August 12th, 1930. Petitioner, also a British subject residing in Liverpool, England, brings this action on behalf of herself and infant children to recover compensation for the death of her husband.

The attorney for the respondent moved for a dismissal of the petition at the opening of the hearing on two grounds: first, that the petition should have been filed by the decedent’s administrator or by the British consul, or by both, and second, that the petitioner and her infant children, being alien dependents, were not entitled to compensation under the act aforesaid. While it is true that the petition was signed and filed by the widow, this procedure is proper in view of the recent decision of the Court of Errors and Appeals in the case of Mountain Ice Co. v. Durkin (1929), 105 N. J. L. 636; 147 Atl. Rep. 451. There is nothing in the act making it compulsory for the dependents of a deceased employe to make application for compensation through the decedent’s administrator, nor is there anything making it mandatory for alien dependents to make application through the representative of his or her government. The Compensation act is a remedial statute and is to be liberally construed. The statute was enacted for the purpose of protecting injured workmen or their dependents and it was not the intention of the legislature to burden those protected by the act with complicated legal proceedings in order to obtain compensation. Neither is it the intent of our treaties with foreign governments to compel foreign subjects to follow any certain procedure to obtain compensation, which, if they do not follow, will bar them from their rights. To have passed favorably upon this motion of the respondent would have permitted the statute of limitations to apply in connection with any other petition which might be filed by an administrator or foreign representative, thus denying to the petitioner and her infant children relief under the statute.

As to the respondent’s contention that section 12 of the original Workmen’s Compensation act excluded alien dependents who were not residents of the United States and that it was an error on the part of the legislature when it omitted the word “alien” from a subsequent amendment (Pamph. L. 1921, ch. 85), it is a foregone conclusion that when this amendment became effective it was the intent of the legislature to extend the benefits of the act to alien as well as domestic dependents. Furthermore, the amendment of 1921 expressly repealed all acts or parts of acts inconsistent therewith and by the well settled law of this state the earlier provision of the act excluding alien dependents was thereby repealed when it was omitted therefrom.

The questions involved in the case at bar were, first, did the decedent meet with an accident arising out of and in the course of his employment; secondly, if he met with such an accident, did the injury alleged result from this accident and subsequently cáuse his death, and third, is the petitioner entitled to compensation as a partial or full dependent?

As to the accident, we have the uncontradicted testimony of one Charles Taylor, a disinterested fellow employe, who gave a very accurate description thereof. While it is true that he did not describe fully what part of the body struck the floor when decedent fell, still there is no question in the mind of the court that he was present when the same occurred and that he saw it happen. I feel that judicial notice can be taken of the fact that when a person witnesses another person fall, he does not watch every movement that is made and every part of the body which comes in contact with the surface upon which he falls. An accident is an unexpected or untoward event and unexpected in so far as witnesses are concerned. We have the further testimony of one William Mumby, another disinterested fellow employe, who, while he did not witness the accident, saw the petitioner limping the next day and suggested that he go to the clinic. We also have a letter from the respondent signed by a Mrs. M. M. Scott, superintendent, addressed to the petitioner, marked in evidence as Exhibit “P-14” which states in part: “We deeply regret the accident which caused his death.” This would imply knowledge as well as notice of the accident.

Some question was raised by the respondent as to the admissibility of a letter from the decedent to the petitioner marked in evidence as Exhibit “P-12.” I admitted this letter in evidence under the res gestce doctrine. In this letter which the decedent wrote to petitioner he stated in part: “I have had a rotten week. I got a fall in the kitchen and hurt my leg. It has pained me all week.” The test of whether or not a written declaration is admissible as part of the res gestee is determined by ascertaining whether the declaration was made when there was no motive to utter the same for decedent’s own interest at a period not remote enough to allow time for premeditation. No definite time from the main occurrence can be fixed as a rule to determine what utterances shall be admitted as part of the res gestae; each case must depend upon its own circumstances. See Johnston v. Payne-Yost Construction Co. et al. (Pa., 1928), 141 Atl. Rep. 481. A letter, though not actually signed, was admitted as part of the res gestae in the case of Freeman v. Bartlett (1885), 47 N. J. L. 33. See, also, Duysters v. Crawford (1903), 69 Id. 614; 55 Atl. Rep. 823.

From all of the uncontradicted testimony aforesaid I find that the petitioner has conclusively proved that the decedent met with an accident arising out of and in the course of employment. Even if I had excluded Exhibit “P-12” as not being part of the res gestae, I would arrive at the same conclusion.

The next question to be determined is whether or not the decedent sustained an injury resulting from this accident and whether, as a result of the same, he died. The testimony is undisputed that, prior to the date o.f the accident, the decedent was a normal person, sound in body and free from all serious illness or disease. There is no question that he met with an injury to his knee. As brought out in the testimony of petitioner’s witnesses, he suffered a hard fall on the floor of the hospital kitchen and limped considerably as a result thereof. Shortly thereafter he went to the hospital clinic for treatment and was later confined to a bed in the hospital ward due to his condition. Dr. Eeatherston, assistant surgeon in respondent hospital, a doctor of high repute and standing in his community, the attending physician in this case and a disinterested witness, testified as to his findings and treatment. He testified without hesitation that an incorrect diagnosis of a sprained knee had first been made, due to the difficulty of accurately diagnosing external manifestations on the body of a dark-skinned person. The testimony disclosed that the decedent was a negro native of British Guiana, with a skin of very dark color. The fact that there was no break in the skin anywhere in the knee area was a further contributing factor to the initial incorrect diagnosis, and prevented the doctor from discovering the true nature of the injury until sometime later. The decedent’s knee was considerably swollen and quite painful and these manifestations continued to increase. Subsequently, Dr. Featherston performed an operation for cellulitis of the injured area, but the operation was unsuccessful, due to the fact that septicemia had developed from the broken down haematoma, thereby causing the patient’s death. Dr. Featherston, in his testimony, gave a very clear and concise history of his findings and of the subsequent conditions which caused septicemia.

It was respondent’s contention that a septicemic condition could not exist without a break in the skin, but respondent’s own expert agreed with the petitioner’s physician that such could be the case. A research of medical books reflects that haematoma may break down and form different local abscess formations or cause general blood stream infection without any apparent external wound, as in this case. Every credence must be given to the testimony of the physician' who, acting as the attending physician, was familiar with every phase of the case and every development therein. The only medical testimony offered by the respondent to offset that offered by the petitioner was the expert testimony of Dr. Kessler, whose answers were based entirely upon hypothetical questions.

Under the circumstances, I find that decedent died as a result of an injury received due to an accident arising out of and in the course of employment.

The final question for determination is whether or not petitioner is entitled to compensation as a partial or full dependent.

Erom the testimony submitted on behalf of the petitioner it would appear that the decedent was that type of individual necessary in our industrial and commercial life, whose activities of employment were such as to cause him to spend a considerable amount of time away from home. His occupation, prior to his coming to the United States, was that of a ship clerk at a wage of twelve shillings per month, which was approximately equal to the salary he received at the time of his death, which amounted to $75 per month, together with his room and board. With this salary he supported his wife and family. The evidence is undisputed that he sent home to his family twice a month approximately $15, sometimes adding $1 or more for his children. Taking into consideration the rate of exchange and the living conditions of those involved, it was sufficient for the support of his wife and family. They were fully dependent upon him for this support. There is no evidence that his wife received any income from any other source. Experience has taught us the mode of living of these people and their habits. Under the circumstances I am making an award on the basis of full dependency. It is my opinion that this conclusion is amply supported by earlier decisions of our courts. In the case of Schmid v. Stanton Forging Co. (1928), 104 N. J. L. 471; 142 Atl. Rep. 4, the Supreme Court held that a widow may be deemed totally dependent within the meaning of the statute even though she has other means of support than the money received from her husband and the mere fact that she does not receive all of her support from her husband does not necessarily mean that she is debarred from compensation under the act as a total dependent. The case at bar is even stronger than the Schmid case because the petitioner and her children relied solely upon the decedent for their support and had no other means of support. The case of Bodnarik v. Empire Floor and Tile Co. (1931), 108 N. J. L. 75; 156 Atl. Rep. 450, decided by the Court of Errors and Appeals subsequent to the Schmid case is not in conflict. In that case it appeared that the decedent and his wife were natives of Czecho-Slovakia; that deceased left his home there some years before his death and came to this country and obtained employment in the factory of the defendant; that his wife remained in her native land and continued to live there until the death of her husband, partly supporting herself by her own labor and receiving from him as a contribution to her support the sum of $1.50 per week. Under such circumstances the court held that the wife was not wholly dependent upon her husband and was, therefore, not entitled to full compensation unless at the time of her husband’s death she was actually a part of his household. In the present case, while the petitioner was not actually a member of the decedent’s household at the time of his death, she was wholly dependent upon him for support.

As stated above the decedent received a salary of $75 a month, or $900 a year, together with his room and board. The allowance for room and board under the Compensation act is $5 per week or $260 per year. The salary, therefore, of decedent at the time of his death was at the rate of $22.31 per week. At the time of his death there were four dependents.

In view of my determination of the facts in this case, I find that the petitioner is entitled to compensation as follows: $11.16 a week from August 12th, 1930, to November 17th, 1930; $10.04 a week from November 17th, 1930, for the balance of thiee hundred weeks from the date of decedent’s death; $10 a week until William Atherley Wickham becomes sixteen years of age, and $10 a week until Irene Elizabeth Wickham becomes sixteen years of age; the last two. mentioned rates being based upon the minimum rate allowed by the statute.

John C. Wegner, Referee.


author: Per Curiam.

text:
    JULIUS WEISSINGER ET AL., PROSECUTORS, v. THE MAYOR AND COUNCIL OF THE TOWNSHIP OF TEANECK, ETC., RESPONDENTS.
    Submitted May term, 1932
    Decided October 7, 1932.
    Before Justices Parker, Campbell and Lloyd.
    Por the prosecutors, George F. Losche.

    Por the respondents, DeBaun & Westervelt.

   Per Curiam.

There are before us three writs of certiorari, all directed at and presenting for review an ordinance of the township of Teaneek, adopted June 16th, 1931, entitled "An ordinance to repeal an ordinance entitled ‘An ordinance to accept the provisions of an act of the legislature of the State of New Jersey, approved March 31st, 1926, and known as chapter 312 of the laws of 1926, creating a board of three assessors for the township of Teaneek.’ ”

Concisely stated the effect of this repealing ordinance was to oust from office the three prosecutors as a board of tax assessors, and to pave the way for the appointment of a single assessor of taxes, which was the result.

The records in these cases do not show when the applications for these writs were made. Allocatur in each instance is December 8th, 1931.

It is reasonable to assume that this was promptly after application therefor.

Bespondent raises and urges before us laches on the part of the prosecutors.

As against this the prosecutors urge that this is untimely and should have been promptly made upon a motion to vacate the writs, citing Kays v. Newton, 6 N. J. Mis. R. 163; 140 Atl. Rep. 425.

We conclude that that case has no application here and is not controlling or binding upon us. In that case the matter under review was an ordinance for the curbing and construction of sidewalks, &c., in certain sections of Newton. The ordinance was passed August 16th, 1927, and the writs of certiorari were allowed September 20th, 1927, practically one month thereafter and this court there said, upon this question: “It does not appear when the writs were applied for, and secondly, and more conclusively no motion was made for dismissal of the writs.”

Now, undoubtedly, the proper practice is that where an application for a writ of certiorari is made to review municipal action, upon notice to the municipality, the question of laches, as well as the question of the standing of the applicant, should then be.brought into question as, in part, held in Jordan v. Dumont, 105 N. J. L. 197; 143 Atl. Rep. 843.

But here we have two situations that seem to, and do compel us, to reach a conclusion that Kays v. Newton, supra, and, by analogy, Jordan v. Dumont, supra, are not controlling, and they are:

1. There is nothing in the record before us showing that the present writs were allowed upon application, with notice to the respondent. If that be true, and for lack of record proof to the contrary it must be assumed, respondent had no opportunity to urge laches, upon the allowance of the writs of review.

2. After allowance of the writs in question the respondent might well have, and we indicate as the proper practice, should have, made application for revocation of allocatur upon the grounds of laches, nevertheless, we conclude that it should not, under the circumstances, be precluded from urging that ground for a dismissal of the writs at this time.

Without entering upon any discussion of the merits of the matter before us, it is enough to indicate that if we did so and the result should be the setting aside of the ordinance under review, the assessments for taxes in the township for the years 1932 and 1933, would become subject to question, Sow this would affect not only the local revenues of the township, but those of the county of Bergen and the state, or at least would raise a seriously debatable question as to whether any taxes assessed and levied in the township for the years 1932 and 1933 were legally assessed and levied and payable by the property owners and citizens of Teaneek. We think there can be no more important function of local government delegated by the legislative department of the state to municipalities than that of taxation. The legal and proper exercise of this delegated right, necessarily, goes directly to the very heart and vitals, indispensable to the continued life of the taxing district, the county and the sovereign power, the state.

Kays v. Newton, supra, had application only to assessments for special benefits and applied only to a small and negative quantity of persons as landowners. The situation before us reaches out immeasurably beyond this.

The ordinance attempted to be reviewed was adopted June 16th, 1931, the present writs were not allowed, and presumptively not applied for, until December 8th, 1931. The result is that the prosecutors delayed their application for a period of more than five months and that in face of the fact, and law, that all assessments and levies for taxes for the year 1932 were required by statute to be made as of October 1st, 1931.

If we should pass upon the merits of these matters before us, and perchance should be compelled, in strictness to hold that the ordinance in question should be set aside, what would be the result? Indubitably it would be that all assessments for taxes, local, county and state in the taxing district would be open to question and perhaps attack because based upon assessments and valuations of a legally incompetent, and impotent, assessment officer.

In such a situation this court has never been willing and, in fact, has repeatedly denied the right.

We have, therefore, reached the conclusion that under the circumstances of the present cases, the prosecutors did not timely and expeditiously sue out the present writs and that the respondent, upon the ground of public policy, and expediency, as well as necessity, is not precluded from now raising the question of laches.

The writs before us are therefore dismissed, as improvidently issued.


author: Pee Cueiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM IPPOLITO, PLAINTIFF IN ERROR.
    Submitted January 29, 1932
    Decided October 17, 1932.
    Before Gummebe, Chief Justice, and Justices Pabkee and Case.
    Eor the plaintiff in error, J. Victor D’Aloia.

   Pee Cueiam.

This case is submitted on briefs, and no brief has been filed for the state, and consequently we consider the case on the brief for the plaintiff in error, who was convicted on an indictment charging in the first count assault and battery, and in the second carnal abuse of a female child over twelve and under sixteen years of age. There was a general verdict of guilty.

The case is brought here on a bill of exceptions and assignments of error, the bill of exceptions being naturally confined to that portion of the evidence containing the alleged errors complained of. The substance of the claim is that the trial court erred in admitting certain specified testimony of declarations by the girl, some íout months after the alleged maltreatment, and when she was so far advanced in pregnancy that her condition was noticeable, as to what had happened to her, and who was the guilty party. A reading of the bill of exceptions indicates that she was indisposed to tell anything to the witnesses who testified to her statements, and that those statements were in effect coaxed out of her.

We think that the admission of these statements was erroneous. It is true that under recent decisions, there appears to be no definite limit of time within which a complaint of rape or other similar offense must be made in order that the making of such complaint be competent as evidence. State v. Schaeffer, 87 N. J. L. 663; 94 Atl. Rep. 598, but in this case we find nothing that can reasonably be called a complaint. The girl held her peace until her pregnancy could no longer be concealed; and then, the fact of pregnancy needing no statement from her, she was asked who was responsible for it, and after denial and argument, named the defendant, plaintiff in error.

The bill of exceptions is discreetly silent on the question whether the girl was a witness for the state; but be that as it may, we are of the opinion that her statements as set out in the bill of exceptions and objected to below, are not a “complaint” in the sense intended by the decisions, and were not competent as evidence. 52 C. J. 1065; Parker v. State, 67 Md. 329; 10 Atl. Rep. 219.

The judgment will therefore be reversed, and the record remanded to the Sessions for a new trial.


text:
    MARGARET MANNA, PLAINTIFF-RESPONDENT, v. INDUSTRIAL CREDIT CORPORATION, A CORPORATION; THOMAS MARRONE AND ABRAHAM H. CARCHMAN, DEFENDANTS-APPELLANTS.
    Submitted May 10, 1932
    Decided October 17, 1932.
    Before Gummere, Chief Justice, and Justices Bodine and Donges.
    For the defendants-appellants, Philip J. Schoiland (Abraham, PL. Garchman, of counsel).
    For the plaintiff-respondent, Green & Green (Harry Green and Mortimer J. Shapiro, of counsel). .
   Per Curiam.

The plaintiff recovered damages for the unlawful conversion of chattels in her possession at 14 Bloomfield avenue, Newark. There was evidence indicative that the chattels in question had been mortgaged by one Giorgio Angeloni, the plaintiff’s former tenant. The tenant being in arrears, the plaintiff distrained for rent, and later purchased in at constable’s sale the rights of the chattel mortgagee and received á bill of sale. The business was thereafter conducted by one Mercadante, as manager. The defendant, Industrial Credit Corporation, a judgment creditor of Mercadante, subsequently levied upon the goods in question as the property of Mercadante, and having purchased the same at a judicial sale caused a writ of replevin to issue and took the goods from the store when the plaintiff was out. The plaintiff brought the present action sounding in trover.

Assuming, but not deciding, that the chattel mortgage given by Angeloni was invalid, still the plaintiff showed herself in actual possession of the goods under a claim of property at the time of the conversion. Possession alone was a sufficient basis for the present action. Todd v. Jackson, 26 N. J. L. 525. Of course, plaintiff’s right would have been absolutely defeated if title to the goods had been in Mercadante, under whom the defendants claimed. Mercadante’s testimony, however, was corroborative of the plaintiff and the circumstances which the defendant proved to show the contrary established nothing as a matter of law.

“Actual possession of a chattel at the time of a conversion thereof will sustain trover, except as to the true owner, or one claiming under him.” 38 Cyc. 2046. “He who seeks to recover in trover must prove that he was in actual possession of the chattel converted at the time of conversion, or that he had the right of immediate possession thereof, and if such right of immediate possession depends on a property in the chattel, either general or special, he must also prove such property in himself as a fact.” 38 Cyc. 2044. If the plaintiff were obliged to establish her right to possession as against the defendants, the proofs adduced made the case one for the jury. The plaintiff claimed, under the chattel mortgage, the rights of Angeloni, her defaulting tenant. The affidavit to the chattel mortgage may have been insufficient as between the mortgagee and Angeloni or his creditor, but the proofs show that at the sale Angeloni was present and said to the plaintiff, “you may have the goods.” This was some evidence the plaintiff acquired the title of Angeloni.

On the proofs, as adduced, the learned trial judge took a view favorable to the defendants in submitting the issues to the jury. A nonsuit or a directed verdict would have been error.

The constable, who sold the goods to the plaintiff, was shown to have conducted many sales of similar chattels and was certainly qualified to give testimony as to value at the time of the sale. His evidence was as to the value some three or four months before the conversion of the goods. This, and other testimony as to the price paid by the plaintiff, was competent on the question of value.

The judgment is affirmed, with costs.


text:
    THE EATON AXLE AND SPRING COMPANY, A CORPORATION OF THE STATE OF OHIO, PLAINTIFF-RESPONDENT, v. BREEZE CORPORATIONS, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Argued May 3, 1932
    Decided October 17, 1932.
    Before Gummere, Chief Justice, and Justices Bodine and Donges.
    Bor the defendant-appellant, Lionel P. Kristeller (George H. Bosenstein and Saul J. Zuclcer, of counsel).
    Bor the plaintiff-respondent, Andrew J. Whinery (Joseph G. Lyons, of counsel).
   Per Curiam.

An action was pending in the Essex County Circuit Court to recover upon a promissory note made by the Cox Corporation. The complaint alleged an assumption by the defendant of the liabilities of the Cox Corporation and a partial performance thereof.

Judge Dungan made an order for an inspection of certain of the pertinent books, papers and documents of the defendant and the Cox Corporation, pursuant to Pamph. L. 1903, p. 576. This order was disobeyed and the defendant was found in contempt by appropriate proceeding and now appeals from that adjudication.

“The propriety of granting an order for the production and inspection of books and papers rests largely in the sound legal discretion of the trial court, and its discretion in granting or refusing the order will not be disturbed unless abused.” 18 Corp. Jur. 1137.

The plaintiff filed a verified petition for inspection of the books of the Cox Corporation and the Breeze Corporations which might show facts material to the cause of action. It was admitted in the pleadings filed that the Breeze Corporations, Incorporated, had purchased the assets of the Cox Corporation. The petition was brought on for hearing on notice. After due deliberation of matters suggested upon the record by the petition, the affidavit in support thereof and the affidavit in opposition thereto, the order for inspection was properly made. The disobedience of the order upon which the contempt was predicated was established before the court in the usual manner.

“In most jurisdictions the statutes provide for the obtaining and inspection of books and papers of the adverse party. These statutes were enacted with the view of providing a more speedy and less expensive remedy than by proceedings in Chancery, and are constitutional. They are remedial in their nature and should be liberally construed.” 18 Corp. Jur. 1116.

“The power to direct either party to give to the other an inspection and permission to take copies of any books or papers in his possession, is inherent in a court of equity, and can be exercised in the absence of any statute conferring such right. Lawless v. Fleming, 56 N. J. Eq. 815. By further decisions of our courts it has been firmly established that where letters or papers in the possession of either party are relevant to the matters in question in a suit in a court of equity, their inspection can be obtained upon petition of the opposing party. Fuller v. Alexander Hollander & Co., 61 Id. 648; 47 Atl. Rep. 646; Copper King v. Robert, 76 N. J. Eq. 251, 253; 74 Atl. Rep. 292.” Singer Manufacturing Co. v. Bowne, 81 N. J. Eq. 157, 159; 85 Atl. Rep. 449.

The legislature, by Pamph. L. 1903, p. 576, has merely provided that an old right may be asserted in another tribunal.

The judgment is affirmed, with costs.


author: Pee Curiam.

text:
    STEVE QUACCI, PROSECUTOR, v. CITY OF UNION CITY AND THE RECORDER’S COURT OF THE CITY OF UNION CITY, RESPONDENTS.
    Submitted May term, 1932
    Decided October 17, 1932.
    Before Gummeke, Chief Justice, and Justices Bodine and Donees.
    Bor the respondents, Fred Fichman.

    Bor the prosecutor, 4. Michael Lepore (John W. 0 clef or d, of counsel.)
   Pee Curiam.

The writ brings before us a conviction for a violation of an ordinance of Union City regulating the slaughtering of poultry. The ordinance was adopted August 6th, 1928, by the then board of health. Some years later, the city adopted the Walsh act providing for commission government. Section 8 of that act, as amended (Pamph. L. 1912, p. 643), provides: “All cities adopting the provisions of this act shall be and are hereby vested with the general powers and authority to enact and enforce * * * all ordinances necessary for the protection of life, health and property. * * * All ordinances or resolutions heretofore passed in any such cities, not inconsistent with the rights and powers herein granted shall remain in full force and effect until altered or repealed by the commissioners in the manner herein provided.”

Pamph. L. 1913, p. 581, provides: “Whenever the provisions of the act to which this act is supplemental have been adopted by any municipality, either prior or subsequent to the passage of this act, all boards and bodies whether state or local municipal agencies, then existing in such municipality (except the board of education and the District Court or Courts), shall be ipso facto abolished, and all the powers and duties devolved by law upon such boards and bodies shall pass to, vest in and be performed by the board of commissioners elected under the provisions of the act to which this act is supplemental.” Section 3 of this act reads: “The board of commissioners shall have, possess and exercise all the power that shall be granted to the boards and bodies supplanted by it, by laws enacted subsequently to the organization of said board, unless such power shall be expressly withheld.”

We think that the ordinances of the board of health were continued by the express provisions of the Pamph. L. 1912 quoted, and that the power to enforce them was, by the enactment of 1913, vested in the board of commissioners chosen after commission government was adopted.

The ordinance of the old board of health was an ordinance passed in Union City and, as such, it was continued by the Walsh act. The enforcement of the ordinance was vested in the board of commissioners when the board of health was abolished by the adoption of commission government. To construe the legislative language otherwise would leave a city adopting commission government without health ordinances until new ones were adopted. Such view seems contrary to the expressed legislative intention, which appears to have been to hold old ordinances until new ones were adopted, and to vest the enforcement thereof in the city commission.

The writ will be dismissed, with costs.


author: Backes, Y. C.

text:
    The Continental Bank and Trust Company of New York, &c., complainant, v. The Fulton Realty Company, a corporation of New Jersey, et al., defendants.
    [Decided October 21st, 1932.]

      Messrs. Harrison ■& Reinhart, for the complainant.

      Mr. Merritt Lane, for the defendants.
   Backes, Y. C.

One motion is to strike the bill, the other for the appointment of a rent receiver.

On the motion to strike the bill we must confine our consideration to the allegation of the bill.

The first ground assigned is that it is not alleged that the notice of default was given to The Fulton Tower Investment Company, the present owner of the premises, “requisite before acceleration of the principal and foreclosure.”

The answer to this is, the bill shows that, to create a default and to accelerate the due day of the mortgage, notice need be given only to the mortgagor, The Fulton Bealty Company. Article 7, section 1. The Fulton Towers Investment Company took the title subject to that condition, so far as the bill discloses.

The next objection is that the co-trustee, Boberts, is a necessary party.

The bill alleges that Boberts, as well as Jones, renounced the trusteeship. The contention is that that is a conclusion of fact. We regard it as an allegation of fact.

It is the notion of defendants’ counsel that the nominated trustees cannot quit their posts except by resignation as provided by article 12, section 2. That is true as to a trustee who assumed office, but not as to one who declined to act. It does not appear by the bill that either Boberts or Jones accepted the trust, and only four days having elapsed between Klee’s resignation and their renouncement, there is no presumption that they accepted; to the contrary, they renounced and “to renounce is to make an affirmative declaration of abandonment.” (Webster.) Benouncing is the evidence of “refusing” to serve as provided by article 12, section 1, and refusing, automatically eliminated Boberts as trustee. But neither Boberts nor Jones was obliged to undertake the trust, and having renounced or disclaimed it is as though they had not been appointed. Lew. Trusts (1888), ch. 11; Leggett v. Hunter, 19 N. Y. 445. The trust resides in the complainant.

The “assignment” by Klee to the complainant and Boberts, accompanying his resignation, was abortive. His right, title and interest ceased with his resignation. He had nothing to assign. The title to the trust estate had been in the two jointly; he dropped out, leaving the title in the complainant.

It is also objected that the bondholders are necessary parties. Cestuis que trustent are, as a general rule, necessary parties to a bill by the trustee, but where, because of their number, their inclusion as parties would obstruct rather than facilitate the administration of justice, the rule is relaxed and the trustee may sue without bringing them in. While the bill does not expressly allege that the bondholders are so numerous as to unduly burden the cause if they were made parties, the bill sufficienty informs us that the issue of over a thousand bonds was floated by a prominent banking house in New York and it is to be assumed that the bonds are scattered far and wide among holders so great in number as to bring the case within the exception to the rule and to justify our following the practice laid down in Willink v. The Morris Canal and Banking Co., 4 N. J. Eq. 377. Further, as in that case, the bondholders appointed the complainant as their representative to prosecute this suit—it is so stipulated in the trust mortgage—and, as the interests of the bondholders and trustee are as one in the effort to recover their money, we presently see no reason for disregarding the appointment, nor the necessity for putting the trustee to the hardship of incorporating the bondholders in the bill and summoning them to court. That they dispensed with, why should not the court ? Their absence does not render the bill defective. The trustee, for its own protection, may give them notice of the pendency of the suit and they may, on application, be allowed to intervene as parties defendants, as was suggested in Williamson & Upton v. New Jersey Southern Railroad Co., N. J. Eq. 1, or on a motion in the cause by the defendant, the trustee may be directed to give notice.

The remaining objection “that the bill is without equity” is too indefinite to be seriously considered. As an attack upon the bill as a whole it is without merit.

The motion to strike the bill is denied.

On the motion for a receiver, the proofs attack the equities of the bill and on this application stand as an answer to the bill. Without a maintainable cause of action, there can be no receiver.

On the motion to strike the bill it was held that the thirty days’ notice of default provided by article 7, section 1, need be given only to The Tulton Realty Company. That was because the bill disclosed only that article and section. Now it appears that the default notice should have been served upon The Pulton Towers Investment Company, for by article 8, section 9 (not set out in the bill), it is provided that:

“Wherever in this Indenture reference is made to the Company (Fulton Realty Company) * * * it shall be held to apply also to the successor, successors or assigns of the party referred to.”

And by section 7 of the same article (not set out in the bill) it is provided that:

“All the covenants, conditions and provisions hereof shall be held to be for the sole and exclusive benefit of the parties hereto and their successors or assigns and of the holders of said bonds and coupons.”

And by article 8, section 8 (not set out in the bill):

“Any notice or communication which the Trustees or the bondholders shall desire to give or serve, upon the company may be given or served by delivering a true copy thereof to any officer of the Company, or by sending a true copy by registered mail addressed to it at its principal office or place of business or at the mortgaged premises.”

The petition for the appointment of a receiver does not allege the covenant to pay taxes as in article 3, section 2, nor the acceleration clause of article 7, section 1, nor that written notice of default was served; nor does the supporting affidavit. They may be amended. But supplemental proofs, offered at the hearing, tend to show that on April 23d, 1932, a notice, in all respects in conformity with article 7, section 1, of the default in payment of the 1931 taxes of $21,131 and of the other items set out in the bill, addressed to “The Pulton Eealty Company, Pulton Towers Apartments, East Orange, New Jersey,” was, in a sealed envelope with the postage prepaid and registered, addressed to the “Pulton Eealty Company, Pulton Towers Apartments, East Orange, New Jersey,” placed in the United States post office in New York, and that a few days later the registry receipt was returned signed “George S. Platoff, Pulton Towers Inv. Co.;” date of delivery 4/25/32. The proof also shows, on information, that George S. Platoff is in charge of the affairs of The Pulton Towers Investment Company at The Pulton Towers Apartments, 106 Harrison street, East Orange. It is proved that shortly after the notice was mailed the attorney of The Pulton Towers Investment Company called at the banking house of S. W. Straus & Company, of New York, to negotiate an adjustment of the matter and that he acknowledged the receipt by his client of the notice. We have not the least doubt that The Pulton Towers Investment Company received this notice. They do not deny it and the failure to deny is not accidental. The proof of service of the notice is imperfect. The affiant who mailed the notice does not aver the manner of mailing, but says that the manner was averred in an affidavit endorsed on a copy of the notice. The copy is not before us; it may be produced. The proof that he made such an affidavit, of which a copy is incorporated in his proof of service, is not proof of service. The fact of service, however, exists; the proof may be supplied.

The meritorious objection is that the notice of default addressed to the Pulton Eealty Company, and the envelope in which it was dispatched by mail, likewise addressed, which fell into the hands of The Pulton Towers Investment Company, was not a notice of default to The Pulton Towers Investment Company. We deem the point well taken. The Pulton Towers Investment Company, it is true, had knowledge of the notice of default addressed to the Pulton Eealty Company, but that knowledge was not a written notice to The Pulton Towers Investment Company, the then owner of the property, of the default and of the consequence that might follow if the default continued for thirty days. Suppose, if the trust mortgage had called for a verbal notice, the trustee had spoken to an officer of the Pulton Eealty Company, of the default over the telephone and had told him that unless his company made good foreclosure would follow, would that have been notice to The Pulton Towers Investment Company, had one of its officers overheard the conversation?

We hold that it was The Pulton Towers Investment Company’s right to have a personal notice of default, served in the stipulated manner of service of notice (although we do not hold that method to be exclusive) as a condition precedent to the trustee’s right to elect to mature the mortgage debt; that the written notice to the Pulton Eealty Company, of the default, was not a compliance with the provisions of the trust mortgage and that the trustee is presently, in that respect, not entitled to maintain its action. The whole mortgage debt will not be due until 1934. To accelerate the due day of a mortgage for a default in a condition upon which the credit was extended, where the right to mature is provisional, the provision must be strictly followed. See McFadden v. Mays Landing and Egg Harbor City Railroad Co., 49 N. J. Eq. 176; 22 Atl. Rep. 932.

The bill may be, with proper amendments, entertained to foreclose for the recovery of the accrued interest, taxes, &c., aggregating upwards of $50,000 (Pennsylvania Co. v. Broadway-Stevens Co., 105 N. J. Eq. 494; 148 Atl. Rep. 575), but that would not entitle the complainant to the appointment of a receiver. A receiver for rents will not be appointed unless the complainant has the right to possession at law. The appointment of a receiver is an equitable substitute for entry into possession at law. By article 8, section 1, of the trust mortgage, the trustee is entitled to possession only after notice of default as per article 7, section 1, and by article 13, section 4, it is provided that the owner is entitled to retain possession and to take the rent issue and profits "until such default [payment of interest, taxes, &e.,] shall have continued after notice.”

Although the rents are specifically pledged by the trust mortgage, it is clear that the pledge was not to be exercised until after default and notice, and, notice of default not having been given, the defendant cannot be deprived of the rents and a receiver cannot be appointed.


author: Backes, V. C.

text:
    Lincoln Bus Company, a corporation, complainant, v. Jersey Mutual Casualty Insurance Company et al., defendants.
    [Decided October 27th, 1932.]

      Mr. Israel B. Greene, for the complainant and received.

      Mr. George F. Seymour, Jr., and Mr. David E. Feldman, for objectors.
   Backes, V. C.

On January 13th, 1931, the banking commission took over the affairs of the defendant as an insolvent corporation, under section 56, subdivision B, of the Insurance Company act, as amended by chapter 68 of the laws of 1930. P. L. p. 288. Shortly thereafter, and in aid of the commissioner’s administration, the commissioner’s deputy in charge was appointed receiver in insolvency in this cause; but the commissioner objected, whereupon the present receiver was appointed, who was ordered not to interfere with the commissioner’s possession, "but was given leave to move to restrain the commissioner from acting and that he deliver to the receiver possession of the company’s assets. The motion was made and was argued, but before decision the commissioner joined in the application for the receiver and turned over to him what remained of the estate. He has filed his account and asks its confirmation. He also asks that the fees of his counsel be fixed. Counsel asks $15,000. The master to whom the account was referred to report on the reasonableness and propriety of the commissioner’s expenditures and of counsel fees, approved the disbursements as stated in the account, and the counsel fee as not unreasonable. Objection is made to the confirmation of the report.

The commissioner’s net receipts were $34,615.15, his disbursements, $32,385.82, and the baalnce, $2,229.83, he turned over to the receiver. In addition, the commissioner incurred obligations, now unpaid, aggregating $3,036.70, and there is due the banking department for an examination of the corporation’s affairs preliminary to taking it over, $1,797.06, which the master also approved.

The total of assets which came to the commissioner’s hands had a face value of $133,407.61. The company was a mutual concern with taxicab and jitney accident policies outstanding, subject to premium assessments of, it is said, $800,000 and upwards. The collection of this item was the chief concern of the commissioner, in order to liquidate the liabilities on policies adjusted by him at over $206,000, and additional unadjusted claims, since presented to the receiver, of over $610,000. In this work, which required a vast amount of accounting, and in the general management of the liquidation proceedings, the commission expended $13,000, plus, in salaries. The items are given in detail in the commissioner’s report, and the summary by counsel is assumed to be correct. It is not disputed that the work was necessary, that it was done and that the salaries of the deputy commissioner and aids are at the customary and prevailing rates for such services.

When the commissioner took charge, he canceled all polieies, but continued to defend suits then pending, and others that were started during his regime, against policyholders by persons injured by the policyholders’ taxicabs and jitneys, and in this expended $12,000 and upwards. The contract of insurance put ■ upon the company the burden of defending suits against the policyholders, but when the commissioner became liquidator and the assets a trust fund, expenditures for the defense of a few violated the rule of equality among creditors—all the policyholders liable in damages for accidents. The statute authorizes the commissioner to defend suits against the company only, obviously to protect the trust estate. The receiver was ordered not to defend suits against policyholders upon succeeding the commissioner. The expenditures are not, however, to be disallowed and the commissioner made to suffer the consequences because of an honest mistake. The statute had not been construed by the court and he misinterpreted its meaning. A public official, acting with due care and diligence, under advice of counsel, in the discharge of a public trust, is, as a matter of public policy, not liable for mistaking his course in the performance of his duties, for, otherwise the government would be seriously hampered by honest men refusing to enter its service. It is readily seen how the commissioner and his counsel fell into the error. The statute provides “upon taking possession of the property and business of such company, the commissioner is authorized to collect moneys due to such company and do such other acts as are necessary to conserve its assets and business,” and he thought, and with reason, that the defense of suits would conserve the estate against excessive or unfounded claims, and, in fact, that was the result.

N Next comes the fee of Mr. Pearce Franklin, appointed by the commissioner as his counsel. Under the statute, the commissioner should have fixed the amount for the court’s approval. That he has not done; he is now out of office and cannot; the court, having taken over the estate, will fix the compensation. Mr. Franklin took upon himself the entire legal administration. In truth, it required skilled counsel and the administration was put upon him; the deputy, of course, was in charge and he and his aids worked out details, but in the final analysis Franklin was the guiding spirit in the liquidation. It is common experience that the lawjmr “runs the works.” He labored for a year, gving most of his time. There were one hundred and twenty district court cases, and two hundred and twenty-five pending in the upper courts when the company collapsed. He supervised them; local lawyers had been retained to defend them; he tried forty in the upper courts. Others were started later and he prepared to defend. He adjusted all sorts of claims aggregating in excess of $200,000, and that meant work, not as trying as the trial of causes, but as effectual and perhaps more beneficial to the estate. The deputy commissioner and his accountants prepared an assessment against policyholders. It can best be described that the book weighs at least five pounds and Franklin had a hand in it and brought some three hundred assessment suits. In fact, Franklin did everything that a lawyer could do to speedily settle the estate. There can be no disagreement with the master that Franklin’s charge of $15,000 is not unreasonable if it is considered as the master did, that his office expenses were $10,000, and that, as an overhead, they should be charged against the estate. The overhead is an element to be considered, but it is not a charge. Lawyer’s fees are allowed for ability and service, not office force and cost. The test of compensation is the value of the service rendered considering the actual pains, trouble and accomplishment in the settlement of the estate. A fee of $10,000 is considered fair.

The receiver, Mr. Beatty, has filed his intermediate account and asks for an allowance of $3,500 and his counsel, Israel B. Greene, a counesl fee of $10,000. Both receiver and counsel have been assiduous in the performance of their duties, and their services may eventually be highly profitable to the creditors, but they must wait for substantial compensation until there is realization. They impliedly undertook their offices with that in mind. There is much and hard work to be done.

The receiver may draw $1,500 and his counsel $2,500, to be accounted for in the final settlement. The cause will not permit of more, though they are deserving of more.


text:
    GABRIEL ZISER, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF WILLIAM ZISER, DECEASED, PLAINTIFF, v. COLONIAL WESTERN AIRWAYS, INCORPORATED, DEFENDANT. LAURA T. STEEVER, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF WILLIAM C. STEEVER, DECEASED, PLAINTIFF, v. COLONIAL WESTERN AIRWAYS, INCORPORATED, DEFENDANT. GERTRUDE M. STEEVER, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF GERTRUDE M. STEEVER, DECEASED, PLAINTIFF, v. COLONIAL WESTERN AIRWAYS, INCORPORATED, DEFENDANT. MAX NEWBERGER, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF RAYMOND HELMSTETTER, DECEASED, PLAINTIFF, v. COLONIAL WESTERN AIRWAYS, INCORPORATED, DEFENDANT. ANDREW HAGYMASI, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF STEPHEN HAGYMASI, DECEASED, PLAINTIFF, v. COLONIAL WESTERN AIRWAYS, INCORPORATED, DEFENDANT. ANDREW HAGYMASI, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF FRANK HAGYMASI, DECEASED, PLAINTIFF, v. COLONIAL WESTERN AIRWAYS, INCORPORATED, DEFENDANT.
    Argued October 6, 1931
    Decided October 10, 1932.

      Before Gummeee, Chief Justice, and Justices Paekek and Case.
    Por the plaintiffs, Biro & Strell, Ernest P. Biro and Harry Unger.

    Por the defendant, James D. Carpenter, Jr. (William D. Reed, of the New York bar).
   Pee Cueiam.

These eases arise out of an airplane crash at the Newark airport on Sunday, March 17th, 1929. As a result of the accident thirteen passengers were killed. In the suits before us, there were verdicts for the respective plaintiffs, and the trial judge allowed rules to show cause why new trials should not be had. No exceptions were reserved, and the rules therefore involve questions of law as well as of fact.

The eases were tried together, the trial lasted a week or more, and the printed case consists of three volumes, in all some eighteen hundred pages, and there are nearly two hundred and sixty pages of printed briefs. The task of examining all this, subject to the interruptions of other business, was necessarily protracted.

The actions were based of course on claims of negligence partly of the defendant company itself in employing an incompetent and inexperienced pilot, partly of its servants, the ground force, and partly of the pilot himself. Apart from the numerous minor points involving rulings on evidence, instructions to the jury; and refusals of requests to charge, the three fundamental propositions urged are that there was error in refusing to nonsuit, error in refusing to direct a verdict for defendant and that the verdict was against the weight of evidence. One of the verdicts is also challenged as excessive.

On the date in question, the plane involved was devoted to taking up sight-seeing passengers for a flight of a few minutes to and over New York City and return. The accident occurred about five p. m., after six or more trips which had ended safely. The plane was a three-motored Ford plane, licensed to carry twelve passengers and no more. On the fatal trip there were thirteen passengers, the pilot, and an associate, who apparently was not classed as a passenger. The licensed weight limit was probably not exceeded, but otherwise as to the limit of number. It was a windy, gusty day, as the jury were clearly entitled to find, the wind blowing from the northwest at from twenty-five to forty miles an hour. The terrain of the airport and its vicinity was at that time not above reproach, and indeed the airport seems to have been in some respects incomplete. It was situate on a partially reclaimed swamp. To the northwest was the city of Newark; and adjoining the airport on the west was the new state highway on an elevated viaduct. To the north were the extensive city dumps, composed of ashes and other waste matter unloaded into the swamp, and the combustible components of this- waste had been fired and were burning. North of these, a railroad yard and tracks ran from east to west. To the east there was another railroad with a number of standing cars. On the south was a considerable area of swamp or reclaimed swamp, affording a clear space for emergency or other landing, though the ground was soft.

Two runways were provided for the use of airplanes in “taking off.” One ran from northeast to southwest; the other, called the northwest runway, crossed the first and ran from northwest to southeast. The latter was used by the plane in question, which made its start toward the northwest, practically in the wind’s eye.

There was evidence of a ground rule to the effect that planes whose route required a turn after taking off should make that turn to the left. The importance of obeying that rule under the circumstances of this case, is clear: for in case of a forced landing a left turn would bring the plane over the comparatively harmless swamp, while a right turn would carry it over railroad yards and tracks and the burning dumps, as actually happened. It is said that the pilot was ignorant of this rule. If so, the jury were entitled to consider that he should have informed himself of it, or that other agents oi defendant should have informed him of it. In either event, a charge of negligence in this regard comes back to the defendant.

The pilot, Lou Foote, was new to the locality, and as the evidence indicates, was new to flying this class of plane with passengers. He first saw the airport at one p. m. that day. He sat in the plane for three trips over New York with a man named Weatherton operating the plane: then it was turned over to him, and he made three trips in safety and crashed on the fourth.

The accident occurred in this way: Taking off to the northwest into the wind, the plane gained altitude too slowly; presently it was seen that the left engine was in trouble; then perhaps the middle one. Foote attempted a right turn and succeeded in heading eastward, but his plane was losing altitude and he had to land. Avoiding the burning dumps he attempted to ride over the railroad to the east, failed, and crashed into a car loaded with sand.

Laying aside without discussion such claims as that the sparkplugs were improperly adjusted, that the plane had not had the necessary inspection and checking up, we think the jury were clearly entitled to take the case on the theory that there was negligence in entrusting the plane to a pilot new to the locality and unfamiliar with the terrain; in failing to observe the ground rule about turning to the left, or in failing to ascertain that such rule existed; in selecting the less safe turn to the right, perhaps as a matter of convenience; in taking out a heavily loaded plane on a day distinctly unfavorable to flying; and in loading the plane beyond the numerical limit set by the rules. The fact that Foote had managed to come safely through the three previous trips is of no particular significance. Temperance Hall Association v. Giles, 33 N. J. L. 260.

As to the degree of care required, the trial court certainly did not err unfavorably to defendant in leaving the question of common carrier vel non to the jury. The regulations on talcing of passengers cited by counsel as removing defendant from the common carrier class seem to us to be merely proper rules for such a carrier to make and enforce, as e. g., no drunken or noisy person to be taken, no overloading, no flight if weather bad. A set schedule is no essential of common carrying; nor is such a carrier required, when there is no set schedule, to operate with a half a load. The practice, which the brief asserts was followed in some cases, of filling the plane to part capacity and then requiring the intending passengers to leave it and make room for a party of later arrivals which would fill the plane, might well subject the defendant to actions for damages unless stipulated in advance, but of itself would not countervail the other conditions marking defendant as a common carrier. We think the judge might properly have charged that defendant was a common carrier.

Seventy reasons for new trial were filed. We have not stopped to count those that are relied on in the argument and the briefs, and time fails to deal with them seriatim. Suffice it to say, that after a most careful examination of all rulings and instructions presented, we find none that constitute error harmful to the defendant. In particular, there was no error in refusing to nonsuit, or to direct a verdict, and on the question of liability, we are entirely clear that the verdict was not against the weight of evidence.

The verdict in the William C. Steever case is attacked as excessive. We think that it is excessive. The evidence as to the amount provided by him for the support of his family, taken in connection with his own age and that of his wife, and other circumstances, is altogether insufficient to justify a verdict of $46,000 in a death case. In that class of cases the court can and does exercise a closer supervision over the amount of a verdict than in cases where there is a living plaintiff. We think a verdict of $25,000 is enough. If the plaintiff in that case will consent to a verdict of that amount, the rule to show cause will be discharged, otherwise it will be made absolute on damages only. The rules in the other eases will be discharged.


text:
    FRANK CAVALLARO, PLAINTIFF-RESPONDENT, v. RCA-VICTOR COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Argued May 3, 1932
    Decided October 17, 1932.
    Before Gummeke, Chief Justice, and Justices Bodine and Donges.
    Por the defendant-appellant, French, Richards & Bradley {Floyd H. Bradley, of counsel).
    Por the plaintiff-respondent, Isadore H. Hermann.

   Pee Cueiam.

The present action was brought under section 1 of the Workmen’s Compensation act. 2 Cum. Supp. Comp. Stat., p. 3868. The plaintiff had been employed for about two months as an assembler in the cabinet department of the RCA-Victor Company factory in Camden. His task was to remove radio cabinets from seventy cabinet presses which passed in front of him on an endless conveyor. The rate of speed was about three presses per minute. The plaintiff testified that on the day he was hurt, he noticed that one of the presses was out of order and he marked it with a chalk mark. He said the spring was loose and the top of the press would not rise when an effort was made to actuate this spring. He further testified that the particular press had been out of order several times during the week and he notified his superintendent, who had sent a repairman to fix it. The same trouble recurred, however. The plaintiff was hurt when he tried to pull off the cabinet from this press. The cabinet was stuck on the top of the press, and in forcing it out he struck his left knee. He stopped for a second, but was obliged to go on with his work. By seven o’clock in the evening he was not able to walk; his knee had started to swell and he was helped home. He used home remedies, and the next morning reported to the company doctor that he was unable to work. He left the doctor’s office on crutches and continued to use hot Epsom salt compresses for four days under the doctor’s order. Getting no better, he then went, being an ex-service man, to the Navy Yard hospital in Philadelphia, and an operation was performed. There was corroboration of his testimony in most particulars.

Appellant’s first contention is that the machine could not stick nor could the spring become loose. It may be perhaps true, that the spring could not become loose in the manner mentioned by the plaintiff, an ignorant man, because it was designed to lift the press when the lever was actuated. But it was possible that the press would stick and the spring could be out of sorts and not do the work it was designed to do, and it is possible that the jury so understood the testimony. There is no mechanical devise so far that will not get out of order.

Counsel for the appellant makes this contention: Can an employe operating under section I of the Workmen’s Compensation act come into court and without any corroborative proof, testify to mechanical impossibilities and absurd actions of a hand press and without proving any defect in said press or that the defect could have been discovered by a reasonable inspection, make out a prima facia case of negligence? And can an employer overcome such proof by the introduction of plenary proof by mechanical experts, and others, to show that the press was of the latest and most approved type; that it was not within the mechanical possibilities for the platen to have stuck on ton of the cabinet, so long as the nut was on top of the spring; and that it was not within the mechanical possibilities of the press for the spring to have been loose, so long as the nnt was on top of the spring ?

It is perhaps enough to say that counsel overlooks the fact that there was testimony that this press stuck; that is the press part did not automatically rise when the lever was actuated, and that this condition was reported several times to the master, who made no effective repair. Possibly the plaintiff’s language that the spring became loose is inartistic. He testified, however, that the spring did not work. He said, “well, that spring up there, that was loose and something don’t come up. That piece of iron don’t come up; the board and everything won’t come up. Q. Is this the spring that you refer to? A. Yes, like that; I don’t know that is the same one. Q. That is the spring that you mean when you said ‘spring?’ A. Yes. Q. How, that is the press when it is shut, is that right (indicating) ? A. Yes. Q. What do you do with the press when it comes to you that way? A. I open it and take off the form, the ticket, and then pull out the cabinet. Q. This press that you marked—did it come up like this? A. Ho.. Q. It did not? A. That remained stuck to the cabinet. Q. How, when did you first notice that the press was sticking to the cabinet? A. That was for about a week that way. Q. Did you call this to the attention of any officials of the company? A. Well, I notified Garibaldi (his superintendent) and they come there and fix once in a while, but that was always the same way.”

The function of the spring was shown to be to lift the press. The spring was actuated by a pull-back rod. The press was held in place by a cam. Obviously, if the spring was broken or out of place it would not lift the press. Ho matter how perfect a mechanism may be it will get out of order. A watch with a broken or misplaced mainspring will not run, and even defendant’s witnesses so admitted. The plaintiff did not, of course, describe the defect as a mechanical engineer would do. But he proved a defect in the machine, reported to his boss and said that it was not effectively repaired. The trial judge could not take such a case from the jury because under our system of law, the credit to attach to testimony is for the jury.

It occurs to us that there was no prejudice in excluding testimony that the presses in use were the best and most improved type manufactured, for the simple reason that there was proof that the press in question was out of order, and the defect so reported on several occasions had not been effectively remedied.

The request to charge was properly refused, since the theory on which the case was tried and evidence adduced was a failure to remedy a defective machine after the same had been reported out of order.

The judgment below is affirmed.


text:
    JOHN SUTTON, PLAINTIFF-RESPONDENT, v. LERNER STORES CORPORATION, DEFENDANT-APPELLANT.
    Submitted May term, 1932
    Decided October 17, 1932.
    Before Gummere, Chief Justice, and Justices Bodies and Doeges.
    Bor the defendant-appellant, Thompson ■& Hanstein.

    Bor the plaintiff-respondent, William Charlton.

   Per Curiam.

The plaintiff was employed by a plumbing contractor, who was engaged in doing work for the defendant. He was severely scalded by stepping into a pit containing very hot water in the basement where he was working. The pit was about two feet square and fourteen inches deep. The plaintiff’s work involved the changing of certain pipe lines. He was loosening up a high connection with a fourteen-inch wrench when he stepped forward to be nearer his work and fell into the pit, which was in a corner of the basement and which he had not previously observed, because it was unguarded and the lights were somewhat dim. It goes without saying that the defendant owed a duty to use reasonable care for his safety. 45 Corp. Jur. 818, 826; Sommer v. Public Service Corp., 79 N. J. L. 349; 75 Atl. Rep. 892, and Riley v. Jersey Leather Co., 100 N. J. L. 300; 126 Atl. Rep. 457.

The proofs leave no doubt as to the long existence of the pit in question, and the hot water therein which appears to have escaped from a double pipe line running from the boiler room and across the pit to the hotel and stores above.

The special skill or experience of a witness may qualify him to express an opinion as to the condition of a structure. 22 Corp. Jur. 650. In the present case a plumber, who examined the pit shortly after the occurrence, testified that in his opinion the same had existed for a long period of time, because of the appearance of the concrete which was stained by the continuous action of the steam and water. Possibly expert testimony, as to the age of a pit, is not strictly admissible, but there is no doubt that one may testify as to that which he observes and the jury may draw their own conclusions therefrom. Prom an accurate description of a building or pit, the jury could conclude whether it was one of recent construction or not. We think there was no harmful error upon any of the rulings upon evidence properly before us.

“By the settled law of this state, an owner or occupier of lands, who, by invitation, express or implied, induces persons to come upon the premises, is under a duty to exercise ordinary care to render the premises reasonably safe for such purposes.” Nolan v. Bridgeton and Millville Traction Co., 74 N. J. L. 559, 561; 65 Atl. Rep. 992.

We think that there was enough evidence to go to the jury on this question. Rom v. Huber, 93 N. J. L. 360; 108 Atl. Rep. 361; 94 N. J. L. 258; 109 Atl. Rep. 504; Schnatterer v. Bamberger, 81 N. J. L. 558; 79 Atl. Rep. 324; Timlan v. Diliworth, 76 N. J. L. 568; 71 Atl. Rep. 33.

Whether the plaintiff ought to have seen and avoided the pit was a matter for the jury’s determination.

The other matters argued have no merit and need no further discussion.

The judgment is affirmed, with costs.


text:
    AMELIA STANGO, PLAINTIFF-RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1932
    Decided October 17, 1932.
    Before Gummere, Chief Justice, and Justices Bodine and Donges.
    Por the defendant-appellant, Perkins, Drewen & Nugent.

    Por the plaintiff-respondent, Edward Cohn (Frank Cohn, of counsel).
   Per Curiam.

This is an appeal from the Common Pleas. The action was brought upon a policy of life insurance issued by the defendant on the life of the deceased, Antonio Stango. The beneficiary, Amelia Stango, his wife, brings the suit. The policy was in the usual form with application annexed and made a part thereof.

In the application, the insured made statements relative to his prior health and to medical and surgical treatments undergone by him. The defense charged that these statements were false and fraudulent to the knowledge of the applicant, and thereby sought to avoid liability. The trial court refused to direct a verdict, and error is assigned therefor.

The application for the policy was made June 17th, 1929. It was issued August 1st, 1929. The insured died Hovember 4th, 1930.

The following questions and answers were contained in the application: “Ho. 7 (a) When last sick? December, 1927. (b) Hature of last sickness? Grippe, (c) How long sick? Ten days. Ho. 9. Any physical or mental defect or infirmity? Ho. Ho. 11. Have you had any surgical operation, serious illness or accidents? If so, give date, duration and name of ailment. Ho. 18. Have you been attended by a physician during the last five years? If yes, give name of complaints, dates, how long sick and names of physicians. Yes, grippe, 1927. Ten days. Dr. Guidi. Ho. 20. How much time have you lost from work through illness during the last five years ? Ten days.”

The proofs show that the insured was a member of a beneficial fraternal organization known as “The Sons of Italy.” This fraternity paid to its members benefits during sickness. It appears that on January 2d, 1928, benefits were paid to the insured for illness of two weeks and one day. On July 26th, 1928, benefits were paid for illness of two weeks and two days, and on January 29th, 1929, benefits were paid for illness of two weeks.

The question in the application “when last sick” was not ambiguous and called for a statement of fact. Kerpchak v. John Hancock Mutual Life Insurance Co., 97 N. J. L. 196; 117 Atl. Rep. 836. The proof of payment of sick benefits is certainly some evidence of illness. Dr. Guidi, the physician named in the application, testified that he knew the insured; that on January 13th, 1929, he treated him for grippe; that on the 21st he developed stricture and was sent to Dr. Lerman, a specialist. Undoubtedly, this was one of the illnesses for which sick benefits were paid, because Dr. Guidi was the lodge physician. A year later, the same difficulty developed and an operation was performed. , It is perfectly apparent that no person could suffer from stricture and not know it, and it is equally apparent that the insured had recurring periods of illness, over a period of years, which were not revealed in his application.

The testimony of Dr. Lerman is to the effect that not only was there a stricture but that the same was serious. He was was not so certain that he treated the man in 1929, as was Dr. Guidi. His records were in accordance with Dr. Guidi’s statements, but he did not care to be too certain that he had properly affixed the date on his records. This circumstance, however, did not make a jury question. There was not only proof of the treatment in 1929 unrevealed to the insurance company, but there was also the proof of three unstated periods of illness within the last two years. It is one thing to insure a man who has not been sick for two and a half years and quite a different matter to insure one who has been sick every six months for the last two or three years. “When last sick” means the last sickness and not one picked out at random some years before. When called upon to tell of his illness during the last five years a medical history over that period was required and not an evasion. There is nothing to indicate that the questions were not understood, and all the evidence indicates that the false answers were made understandingly, knowingly and willfully. Stricture is a serious ailment and also recurring periods of illness are serious.

Death was caused by a ruptured bladder, following a fall. Retention of urine sets up an inflammatory condition in the bladder wall, rendering it less capable of resistance.

The facts unimpeached and uncontradicted required a direction of a verdict. Fish v. Metropolitan Life Insurance Co., 73 N. J. L. 619; 64 Atl. Rep. 109; Guarraia v. Metropolitan Life Insurance Co., 90 N. J. L. 682; 101 Atl. Rep. 298; Brunjes v. Metropolitan Life Insurance Co., 91 N. J. L. 296 102 Atl. Rep. 693; Kerpchak v. John Hancock Mutual Life Insurance Co., supra; 117 Atl. Rep. 836; Prahm v. Prudential Insurance Co., 97 N. J. L. 206; 116 Atl. Rep. 798; Locker v. Metropolitan Life Insurance Co., 107 N. J. L. 257; 151 Atl. Rep. 627.

The judgment below is reversed, with costs.


text:
    JAMES D. MOORE, RELATOR, v. WILLIAM J. ENNIS, RESPONDENT.
    Argued May term, 1932
    Decided October 17, 1932.
    Before Gummeke, Chief Justice, and Justices Bobine and Donges.
    For the relator, Abram A. Lebson.

    For the respondent, Mackay & Mackay (Howard Mackay, of counsel).
   Per Curiam.

The present proceeding was instituted under section 4 of the Quo Warranto act (3 Comp. Stat., p. 4212), which provides: “Whenever it is alleged that any person usurps, intrudes into or unlawfully holds or executes any municipal office or franchise within this state, any citizen of this state, who believes himself lawfully entitled to such office or franchise, may, as relator, file in the office of the clerk of the Supreme Court an information in the nature of a quo warranto, against such person, for usurping, intruding into or unlawfully holding or executing any such office or franchise, and may proceed therein in such manner as is usual in cases of informations in the nature of a quo warranto, except as is otherwise provided in this act.”

Pamph. L. 1927, ch. 260, p. 480, provides as follows: “It shall be lawful for the governing body of any town, and the governing body of any borough of this state, by resolution, to appoint a recorder in any such town or borough, which said recorder in any such town or borough shall hold office for a term of five years from the first day of January of the year of his appointment, and thereafter until a successor shall be appointed and qualify. A recorder appointed in any such town and borough shall receive such compensation as the governing body shall by law fix.”

The relator claims the office of recorder for a term of five years from the first day of January, 1928, under the foregoing statute, and the following resolution duly adopted: “Be it resolved by the governing bodjr of the borough of Fort Lee, that James D. Moore is hereby appointed recorder of said borough of Fort Lee.”

The mayor of Fort Lee appointed William J. Ennis, the respondent, to the office of recorder January 1st, 1931. He has since exercised the duties of that office to the exclusion of the relator, who has been restrained from performing the duties of his office by the chief of police.

The case'turns upon the solution of three points:

First. Is the Borough act, as amended (Parnph, L. 1922, p. 248), controlling, or was relator chosen by the borough governing body for a term of five years pursuant to the 1927 statute? We think that the later statute controlled. The proofs show a resolution by the governing body indicating that they were proceeding under the later act. Teed v. Roseland, 7 N. J. Mis. R. 43; 144 Atl. Rep. 121. Besides the testimony of the members of the then governing body, if competent, indicates that they were proceeding under the 1927 act. There is nothing before us to indicate that an appointment made in 1927 was made after the passage of that act.

Second. Quo Warranto is the proper remedy. Anderson v. Myers, 77 N. J. L. 186; 71 Atl. Rep. 139; Brodman v. Rade, 101 N. J. L. 207; 127 Atl. Rep. 249; Weinberger v. Hilfman, 8 N. J. Mis. R. 32; 148 Atl. Rep. 177; 8 N. J. Mis. R. 317; 150 Atl. Rep. 198; Randolph v. Rahway, 106 N. J. L. 296; 148 Atl. Rep. 793.

Third. Eelator appears not to be in laches.

Our conclusion, therefore, is that judgment should be entered that the respondent be ousted from the office of recorder of the borough oí Fort Lee, and that the relator is entitled thereto until the expiration of his term of five years from the 1st day of January, 1928.


text:
    ADA V. ROFF, PLAINTIFF-RESPONDENT, v. COUNTY OF PASSAIC, DEFENDANT-APPELLANT.
    Submitted May 10, 1932
    Decided October 17, 1932.
    Before Gummerb, Chief Justice, and Justices Bodixe and Donges.
    On appeal'from a judgment of the Passaic County Circuit Court, in which Judge Maekay rendered the following opinion:
    "The plaintiff is seeking to recover from the defendant in this action the sum of $4,637.83, claimed to be due as a part of her salary from July 4th, 1927, to date, because of an act of the legislature of the State of New Jersey entitled ‘An act concerning the keeping of the county jails in certain counties of this state.’ Sessions Laws, 1927, chapter 255, page 474.
    “The parties to this action waived a jury and asked that the case be tried by the court upon an agreed state of facts, to wit, plaintiff was appointed (temporarily) matron of the Passaic county jail on March 1st, 1923. Her appointment as such matron was duly made permanent after she had passed a civil service examination on November 6th, 1924. She has ever since her permanent appointment continued to be and to function as such matron and she is functioning as such at the present time. Her salary, on her permanent appointment, was $1,200 a year. Her salary gradually increased under the law that existed at that time and on July 4th, 1927, when the foregoing act became effective, she was receiving $1,400. a year. She continued to be paid $1,400 a year until January 1st, 1928, when her salary was increased to $1,500 a year. On January 1st, 1929, it was increased to $1,600 a year and on January 1st, 1930, it was increased to $1,620 a year, which sum she has been paid yearly since that time.
    “Plaintiff has been employed under the supervision of the sheriff, he not having turned over to the board of freeholders of Passaic county the custody and charge of the jail within said county. Passaic county is a second'class county. The public notice under which the civil service examination for the position of matron, to fill which the plaintiff was chosen, described the duties of a matron to be follows:
    “‘Duties: Under supervision to be responsible for the custody, discipline and treatment of the female inmates of the county jail, and to perform related work as required.
    “ ‘Typical tasks: Maintaining order and discipline among the female inmates of the jail; rendering first aid to inmates; maintaining sanitary conditions; requisitioning and distributing household equipment, furnishings and supplies for the female inmates.’
    “The question presented for decision is: is the plaintiff by reason of the provisions of the 1927 act, entitled to receive from the county a salary of $2,500 per year (being the salary paid to the attendants engaged in attending the Circuit Court, Court of Oyer and Terminer, Court of Common Pleas and General Court of Quarter Sessions of Passaic County), as from July 4th, 1927, when the aforesaid act became effective, to date?
    “The law which defines the duties of matrons in the county jail is as follows:
    “ ‘The said matron or matrons shall have care and control over all females committed to the said county jail, subject to the authority of the sheriff of said county; subject to the authority of the sheriff so far as practicable, she or they shall arrange for the segregation of the female inmates of the said institution. * * *.’ Public laws, 1914, page 289.
    “This law was an amendment of the act of 1910, which provided for the appointment of only one matron. The 1927 act relates to second class counties having a population of more than two hundred thousand inhabitants and where the sheriff has custody of the jail and all prisoners. The act provides that the sheriff shall appoint, with the approval of the board of freeholders, such keepers and assistants as may be reasonably necessary for proper maintenance and protection. The act further provides that such assistants are to be known as jail keepers, and whether engaged in the keeping of such jails as jailors, keepers, jail guards, or by any other title, shall retain their positions under the title of jail keepers, and shall thereafter be paid the same compensation as court attendants engaged in attending the Circuit Court, Court of Oyer and Terminer, Court of Common Pleas and General Court of Quarter Sessions of the peace of the county.
    “It is agreed that the court attendants were receiving an annual salary of $2,500 a year and if the 1927 act is a valid exercise of power of the law making body, then the plaintiff would be entitled to a verdict.
    “ ‘The intention of the legislature is to be collected from the words they employ, and where there is no ambiguity in the language, there is no room for construction.’ Woodruff v. State, 68 N. J. L. 89; 52 Atl. Rep. 294.

      “ It will not be intended that the legislature designed to produce an inequality unless the terms used are so plain and explicit as not to be misconstrued.’ State v. Mills, 34 N. J. L. 177, 180.
    “ ‘A departure from the language of an unambiguous statute is not justified by the rule of construction and is an exercise of legislative power.’ Douglas v. Board of Chosen Freeholders, 38 N. J. L. 214; Application of Passaic City Clerk, 94 N. J. L. 384; 116 Atl. Rep. 695.
    “ ‘Words and phrases must be taken in the sense in which they are usually understood in the law, when applied and used in reference to the subject about which and to which the statute relates.’ Yeo v. Mercereau, 18 N. J. L. 385, 387.
    “There was some question in my mind as to whether the general words used in the statute of 1927, to wit, ‘jailers, keepers and jail guards’ limited the general language following: ‘or by any other title,’ and called for a construction of the act which would eliminate these words, and confine it only to the persons named; but I find that our courts hold to the contrary so that a matron would come within the provisions of the act.
    “This question would invoke the rule of ejusdam generis, which is resorted to as an aid in construction. State v. Smith, 233 Mo. 242; 33 L. R. A. (2d ed.) 179. The question is one of intention. Camden v. Cape May, 102 N. J. Eq. 353; 140 Atl. Rep. 672.
    “ ‘The rule ejusdam generis does not require the rejection of general terms entirely, and it is to be taken in connection with other rules of construction.’ See 44 Century Digest 2825.
    “ ‘The cardinal principle for the construction of statutes is that they are to be construed that, if possible, full effect shall be given to all parts of the statute.
    “ ‘A statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void, or insignificant.’ Steel v. Board, 89 N. J. L. 609; 99 Atl. Rep. 318.
    “In addition to this the matron is actually one of the keepers of the county jail because it is so provided by law that she shall act as a keeper, and it is quite likely that the word ‘matron’ was used instead of ‘keeper’ or ‘jail keeper’ to distinguish her from those of the opposite sex.
    “The plaintiff is entitled to a judgment in the sum of $4,631.83. If I am incorrect in this calculation, counsel may correct the same.
    “Judgment for plaintiff in the sum of $4,631.83 being the amount due from July 4th, 1921, to November 28th, 1931.”
    Por the defendant-appellant, William R. Rogers.

    Por the plaintiff-respondent, Henry Marelli.

   Per Curiam.

The judgment is affirmed for the reasons stated by Judge Mackay.


text:
    ANNA VAN BLUNK, PLAINTIFF-RESPONDENT, v. CHARLES REAL ESTATE COMPANY, DEFENDANT-APPELLANT.
    Submitted May 13, 1932
    Decided October 19, 1932.
    Before Gummere, Chief Justice, and Justices Bodine and Dohges.

      For the appellant, Thompson & Hanstein.

    For the respondent, Oscar LeWine.

   Per Curiam.

This is an appeal from a judgment of the Atlantic County Circuit Court entered upon a verdict of a jury in favor of the plaintiff in a suit by a tenant for injuries sustained as the result of a fall upon an unlighted stairway in a tenement house.

The first count alleged negligence in failing to light the stairway and the second count alleged negligence in permitting dirt and garbage to lie upon the stairs.

The plaintiff occupied the third floor rear apartment in a four-story apartment house. There was a front stairway which led to the street and a rear stairway which led to a roof off the second floor. This roof was used for the deposit of dirt and garbage, and such domestic purposes. The rear stairway did not descend to the street level.

Plaintiff testified that she used the rear stairway at one o’clock p. M., on December 20th, 1930, and noticed dirt or garbage on the stairs. She reported ■ this condition to the janitor and asked him to clean it up.

At nine o’clock that evening she attempted to descend the dark stairs to place garbage on the roof. Near the second floor she fell and was injured.

The defendant-appellant first claims that there should have been a directed verdict on the first count because it was not required to keep - a light on the second floor near the rear stairs. There was a light near the front stairs on each floor. The stairways were so far apart that the light at the one gave no illumination at the other.

The requirement of the statute (Pamph. L. 1930, p. 1065) is: “In every tenement house now existing or hereafter erected a proper light shall be kept burning by the owner in the public hallways, near the stairs, upon the entrance ffoor; and in every tenement house, over two stories high and not over four stories high, such a light shall also be kept burning upon the second floor above the entrance floor of such house every night throughout the entire year, and upon all other floors of such tenement house from sunset each day until ten o’clock each evening.”

The appellant argues that it is only upon the first floor that the light is required to be near the stairs. But in Kargman v. Carlo, 85 N. J. L. 632; 90 Atl. Rep. 292, the Court of Errors and Appeals said: “So then we hold that the obligation of the owner of a tenement house over two stories high is to keep burning a proper light in the public hallways, near the stairs, upon every floor, between sunset and ten o’clock every evening.”

The question is whether the defendant discharged its statutory duty by keeping a light near the front stairs only. If it did, then there is no evidence of negligence on the first count. The stairway upon which plaintiff fell was supplied by the defendant for her use and the use of the other tenants. The statute requires that there should be a light near “the stairs.” We think that if the defendant supplied more than one stairway it was under a duty to supply more than one light. In other words, there was sufficient evidence to go to the jury on the question of the negligence of the defendant in not providing a light at the rear stairway, in view of the language of the statute.

As to the second count, dealing with dirt on the steps, we think this also presented a question of fact for the jury. The plaintiff said she found a piece of orange peel on her heel after the fall, and the defendant argues that because she did not see the orange peel on the stairway when she used it in the afternoon, the required notice to the agent of the landlord is not proved. We think the evidence here was sufficient to go to the jury. Plaintiff saw dirt or garbage on the stairs in the afternoon and found some on her shoe. Prom this the jury could infer that she slipped on the dirt which the defendant’s agent had been asked to remove.

The question of contributory negligence was likewise one of fact for the jury.

The judgment will be affirmed, with costs.