author: William A. Smith, C. C. J.

text:
    Essex County Circuit Court.
    WILLIAM B. KEARNEY, PLAINTIFF, v. MALLON SUBURBAN MOTORS, INC., ET AL., DEFENDANTS.
    Decided February 14, 1945.
    For the plaintiff, James F. X. O’Brien.

    For the defendants, Haines & Ghandlis (by Patríele J. Maloney).

   William A. Smith, C. C. J.

This action is one instituted by the plaintiff to Tecoyer on two counts; the first count being an action for malicious prosecution and the second count being an action alleging a conspiracy to maliciously prosecute.

Motion was made before me for judgment on the pleadings on the ground that the complainant is barred by the statute of limitations, in that the cause of action arose on a refusal by the grand jury to indict on the complaint alleged to have been maliciously prosecuted by a vote taken on April 30th, 1943, and that the suit was not instituted within two years thereafter.

On the coming on of the motion the parties agreed that they would stipulate that the case be tried before the court without a jury on stipulation of facts separately on the issues of the question of the action being barred by the statute of limitations.

The stipulation of facts has attached to it the affidavits of William J. Caffrey, the clerk of the Essex County grand jury, and of the plaintiff, which are to be taken by the court as evidence.

The complaint against the plaintiff was presented to the April term, 1942, grand jury of Essex County. A hearing was had by that jury on April 30th, 1942, and they voted to take no action on the complaint. ETo announcement of this determination was made, and inquiries by the plaintiff during the April term of the grand jury, which expired in September, 1942, elicited no information to the plaintiff, who first obtained information that the grand jury had refused to indict on November 17th, 1942. His bail was then canceled and he was discharged from custody.

It is evident that there is no practice on the part of the grand juries of Essex County of making known their determination not to indict before the end of the term.

It is claimed by the defendants that the grand jury,'having voted on April 20th, 1942, not to indict, that the plaintiff’s cause of action of malicious prosecution then arose because it was then determined that the prosecution against the plaintiff had been determined in his favor. It is then urged by the defendants that this action not having been commenced until August 9th, 1944, the action was instituted more than two years after it arose and, therefore, the action is barred by the statute of limitations.

The determination of the grand jury not to indict by a vote to that effect terminated the pending proceeding on the criminal complaint made by the defendant which is charged as the malicious prosecution.

Mr. Justice Parker in Lowe v. Wartman, 47 N. J. L. 413; 1 Atl. Rep. 489, 490, in passing on the qnestion of when the criminal prosecution is terminated so as to give rise to a cause of action for malicions prosecution, said:

“A criminal prosecution may he said to have been terminated—(1) where there is a verdict of not guilty; (2) where the grand jury ignore a bill; (3) where a nolle prosequi is entered, and (4) where the accused has been discharged from bail or imprisonment.”

This is authority to the effect that a vote not to indict ends the prosecution. It is proof that the grand jury ignored the bill.

Mr. Justice Depue, in Apgar v. Woolston, 43 N. J. L. 57 (at p. 65), says:

“In this state the refusal of the grand jury to find an indictment has been adjudged to be a sufficient termination of the prosecution, without any formal order of the court discharging the accused.” '

He cites Potter v. Casterline, 41 N. J. L. 22.

It is my conclusion, therefore, that the plaintiff’s cause of action did arise when the grand jury voted not to indict, and, therefore, the cause of action arose on April 20th, 1942.

It being established that the cause of action arose on April 20th, 1942, it is now contended by the defendants in their plea of the statute of limitations that the plaintiff’s cause of action was not commenced within two years after it arose, this action having been instituted on August 9th, 1944, which is more than two years after it arose.

The plaintiff’s contention is that this cause of action of malicious prosecution is not barred by the statute of limitations until six years after the cause of action arose.

The six-year statute of limitations, N. J. S. A. 2:24-1, provides in part as follows:

“All actions in the nature of * * * actions in the nature of actions upon the ease, except the actions mentioned of section 2:24-2 and section 2:24-3 of this Title, shall be commenced within six years next after the cause of any such action has accrued, and not thereafter. * *

The exception to the six-year provision referred to in 2:24U2 is the two-year statute, which provides as follows:

“All actions for injuries to the person caused by the wrongful act, negligence or default of any person or persons, firm or firms, individual or individuals, corporation or corporations within this state shall be commenced within two years next after the cause of any such action shall have accrued, and not thereafter.”

In order to interpret these provisions it will be necessary to look back to the old statute of limitations and apply the previous decisions construing them.

Under the Revision of 1874, 2 Gen. Stat. of N. J., 1895, p. 1974, there were three provisions with regard to the limitation of personal actions. They were section 1, the six-year limitation; section 2, the four-year limitation, and section 3, the two-year limitation.

The action for malicious prosecution is an action on the ease and the six-year limitation provision under the Revision of 1874 -limited actions on the case to six years, in so far as we are concerned here, except actions for slander.

The four-year limitation covered actions for trespass and for assault, menace, battery, wounding and imprisonment.

Section 3, the two-year limitation, covered slander.

In 1896, section 3, which is the two-year limitation, was amended (Pamph. L. 1896, p. 119) and there was added to that section a provision as follows: “and that all actions hereafter accruing for injuries to persons caused by the wrongful act, neglect or default of any person or persons,” &e., “shall be commenced and instituted within two years next after the cause for such' action shall have accrued.”

These three sections of limitation as amended by the act of 1896 are to be found in 3 Comp. Stat., pp. 3162, et seq.

It will be noted that the amendment of 1896 referred to “injuries to persons” as distinguished from the present two-year limitation, which refers to “injuries to the person.”

When the Revised Statutes of 1937 were passed the four-year limitation statute was omitted under the assumption, I presume, that it was repealed by implication by the passage of the amendment of 1896, but the change in the Revised Statutes of 1937 was made, as I have indicated “from injuries to persons” to “injuries to the person.”

We must, therefore, consider the cases in our Supreme Court, which the drafters of the revision considered, in substituting 2:24—2 as section 2 in place of the old four limitations contained in section 2, and providing 2 —3 covering the one-year limitation in actions for libel or slander which was enacted in 1934 as a separate act.

In Tomlin v. Hildreth, 65 N. J. L. 438 (at p. 443); 47 Atl. Rep. 649, the Supreme Court, in dealing with an action of assault and battery, held that the amendment of 1896 applied to that action and repealed by implication the four-year limitation statute contained in section 2 of the Eevision of 1874.

In Dailey v. Kiernan, 75 N. J. L. 275; 67 Atl. Rep. 1027, the Supreme Court held that the amendment of 1896 did not apply to actions for injury inflicted upon a person by damage done to his property.

In Crane v. Keirnan, 83 N. J. L. 327; 84 Atl. Rep. 1052, the Supreme Court held that the amendment of 1896 did not apply to actions for alienation of a wife’s affections and for criminal conversation, which is an action on the ease. It held that such an action was not an action for injury to the person. At page 328 of 83 N. J. L., at page 1053 of 84 Atl. Rep., the opinion distinguishes between injuries to the person and injuries to the personal rights of a person, saying, 83 N. J. L. (at p. 329); 84 Atl. Rep. (at p. 1053), “We think that ‘injuries to the person’ are less extensive in meaning than ‘injuries to personal rights,’” and that section 3 (referring to the two-year limitation of the act of 1896) is inapplicable. The reference in parenthesis is not in the quotation. In the light of these decisions the Eevised Statutes of 1937 were enacted. The four-year limitation paragraph was dropped and the old section 3 with the provision as to slander omitted became section 2 :24-2, reading as we have heretofore quoted.

It will be noted that the reference in the 1896 act referring to injuries to persons was changed to injuries to the person. It is therefore quite evident that the reference in the present two-year limitation referring to injuries to the person means physical injury and that actions on the ease, other toan physical injuries covered by section 2 and actions for libel and dander covered by toe present section 3, 2:24r-3, which is a one-year limitation, are still covered by the six-year limitation contained in toe first section of toe present revision.

The gist of toe action of malicious prosecution is for an injury to toe personal rights as distinguished from injuries to the person. Subsequent arrest and imprisonment are matters of damage but not necessary to be sustained in order to give right to toe action of malicious prosecution in'so far as toe charge that toe criminal actions was maliciously prosecuted. Hammill v. Mack International Motor Truck Corp., 104 N. J. L. 551; 141 Atl. Rep. 775.

It is my conclusion that the statute of limitations applying to toe action for malicious prosecution is section 2:24-1, fixing the period of limitation as d-x years, and that this action now before the court is not barred by toe statute of limitations.

There will be a finding of judgment in favor of toe plaintiff on toe defendant’s defense of toe statute of limitations.


source: Caselaw Access Project

author: Bukung, C. C. J. and S. C. C.

license: Public Domain

text:
    ROBERT RICKARDS, PLAINTIFF, v. SUN OIL COMPANY, DEFENDANT. IDA KNEZEK, PLAINTIFF, v. SUN OIL COMPANY, DEFENDANT. ALBERT SMITH, PLAINTIFF, v. SUN OIL COMPANY, DEFENDANT. JOSEPH HINES, PLAINTIFF, v. SUN OIL COMPANY, DEFENDANT. CLAUD FIDLER, PLAINTIFF, v. SUN OIL COMPANY, DEFENDANT. GEORGE SHEARMAN, PLAINTIFF, v. SUN OIL COMPANY, DEFENDANT.
    Decided January 19, 1945.

      For the plaintiffs, Robert Peacock.

    For the defendant, Starr. SwnmeriJl & Lloyd (by Franlc T. Lloyd).

   Bukung, C. C. J. and S. C. C.

Six independent causes of action have been instituted in the Supreme Court with venue laid in Atlantic County by six independent plaintiffs against the same defendant.

Motions to strike out the complaint of each of the plaintiffs have been made by the defendant and consolidation of the movement and hearing upon said motions was made.

The basis of the motions is upon a general common law demurrer and raises common issues of law.

All of the plaintiffs operated business establishments in the City of Brigantine, in the County of Atlantic, and State of New Jersey. These establishments ranged from a fishing pier and bar, hotels, cafes, gas station and repair shop, to produce and poultry. They all seek to recover losses from expectant gains.

Tor the purpose of these motions, the defendant admits the truth of all facts well pleaded in the complaints and the factual inferences which may be legitimately drawn therefrom. The sufficiency of the complaints, however, must be determined from the facts therein properly alleged from which a legal duty and the liability for the violation thereof are deducted. Bengivenga v. Plainfield (Court of Errors and Appeals, 1942), 128 N. J. L. 418 (at p. 424); 26 Atl. Rep. (2d) 288.

The negligent act of the defendant in crashing into the drawbridge which formed a part of the county highway between the Island of Brigantine and the Island of Absecon, in the County of Atlantic, and the resultant destruction of the bridge and the incident loss of utility of the bridge and the causeway pending reconstruction of the same, and that the said road (and the bridge forming a part thereof) is the only means of egress and ingress by roadway to Brigantine Island are accordingly admitted. Ho allegations are contained in the complaints of the knowledge of the defendant’s agent (master of the barge) of the fact of the isolation of Brigantine Island.

The plaintiffs pivot their right to recover upon the assertion of the proposition that the negligent conduct of the defendant resulted in the destruction of the public highway and that it amounted to a nuisance, and that it is therefore liable to an action at a suit of any person who is thereby specially damnified, and that the plaintiffs are in that category. Opdycke v. Public Service Railway Co. (Court of Errors and Appeals, 1909), 78 N. J. L. 576 (at p. 582); 76 Atl. Rep. 1032; Durant v. Palmer (Court of Errors and Appeals, 1862), 29 N. J. L. 544 (at p. 547).

It is the position of the defendant that the complaints fail to disclose causes of action against it and more particularly that (1) it owed no duty to the plaintiffs and consequently could not be guilty of any negligence as to them, and that (2) there is not alleged any legal damage proximately resulting from the breach of any duty or obligation owed the! plaintiffs by the defendant.

The plaintiffs’ right to recover must be grounded in a violation of a duty. When the negligent act of the defendant destroyed the bridge, the duty to replace the bridge rested with the county government. Paragraph 7 of the complaints; R. S. 27:19—1, 10, 21; Freeholders of Bergen v. State (Supreme Court, 1880), 42 N. J. L. 263; Styles v. Long Co. (Court of Errors and Appeals, 1903), 70 Id. 301 (at p. 304); 57 Atl. Rep. 448; Kahl v. Love (Supreme Court, 1874), 37 N. J. L. 5 (at p. 8); Robinson v. Freeholders of Passaic (Court of Errors and Appeals, 1917), 91 Id. 154; 102 Atl. Rep. 359. And to the county befell the action to recover its damage against the defendant.

The failure of the defendant to perform its duty to the public and refrain from negligent action may be a cause of injury to the plaintiffs, but it is not the natural and proximate effect of such negligence and therefore not actionable.

In defining proximate cause, it was declared in Smith v. Public Service Corp. (Court of Errors and Appeals, 1909), 78 N. J. L. 478 (at p. 480); 75 Atl. Rep. 937, that

“The rule of law requires that the damage chargeable to a wrongdoer must be shown to be the natural and proximate effects of his delinquency. The term ‘natural’ imports that they are such as might reasonably have been foreseen—such as occur in an ordinary state of things; the term ‘proximate’ indicates that there must be no other culpable and efficient agency intervening between the defendant’s dereliction and the loss. Wiley v. West Jersey Railroad Co., 44 N. J. L. 247; Delaware, Lackawanna and Western Railroad Co. v. Salmon, 39 Id. 299.”

And in Feldmesses v. Lemberger (Court of Errors and Appeals, 1924), 101 N. J. L. 184 (at p. 186); 127 Atl. Rep. 815, it is declared:

“It is the boast of our common law that for every wrong there is a remedy, and upon this foundation is built the splendid structure of our jurisprudence. Applying concretely this principle, the courts have endeavored to make the remedies complete and effective, and to this end have declared the law which constitutes our present guide. On the one hand the law, as thus declared in dealing with the right of recovery, excludes those damages, which are remote, speculative and fanciful. On the other hand, it takes account of those damages which are the natural and proximate result of the wrongful act. (Wiley v. West Jersey Railroad Co., 44 N. J. L. 247) and of those which must have been in the contemplation of the wrongdoer at the time of his offending. Crater v. Binninger, 33 Id. 513. In the last named case (similar to the present in that it was an action for deceit) Chief Justice Beasley, speaking for the Court of Errors and Appeals (at p. 517) says: ‘The rule to be applied in cases of this character is that the defendant is responsible for those results, injurious to the plaintiff, which must be presumed to have been within his contemplation at the time of the commission of the fraud.’ ”

The doctrine of proximate cause applied equally to cases founded in negligence and in nuisance. Fitz Randolph v. Karno Smith Co., Inc. (Supreme Court, 1936), 15 N. J. Mis. R. 261 (at p. 263); 190 Atl. Rep. 486.

The entire doctrine assumes the defendant is not necessarily to he held for all consequences of his acts. Professor McLaughlin, article 39, Harvard Law Review (December, 1925), 149 (at p. 155). It is fundamental that there must be some reasonable limitation of liability for the commission of the tort. The wrongdoer is not liable in the eyes of the law for all possible consequences. He is thus responsible in damages only for the natural and probable consequence of his negligent act.

Each case stands upon its own factual situation. Watson on Damages (1901), 34; Migliaccio v. Public Service Railway Co. (Supreme Court, 1925), 101 N. J. L. 496 (at p. 499); 130 Atl. Rep. 9. If there were several avenues and roads of entrance and exit to Brigantine Island, there would be no difficulty in disposing of the motions. The roadway between the Island of Brigantine and the Island of Absccon opened a more readily accessible place of habitation with the resultant and concomitant mercantile opportunities. Since there was only one means of ingress and egress by road, it adds to the difficulty in disposing of thé motions and causes some hesitation.

No rule embraces within its scope all the resulting consequences of the given act. The effect would be to impose a liability entirely disproportionate to the act committed or to the failure to perform the duty assumed. Ultimate result must be such that a reasonable man should anticipate in the natural order of things. 15 Am. Jur. 471 and 472. Such consequential injuries must result as according to the common experience of mankind are likely to result from the act. Consequences that may be reasonably expected to result under ordinary circumstances from such misconduct. Watson on Damages 2. The test of liability to the particular person is-whether injury to him ought reasonably to have been anticipated. Migliaccio v. Public Service Railway Co., supra Robbins v. Thies (Court of Errors and Appeals, 1936), 117 N. J. L. 389 (at p. 393); 189 Atl. Rep. 67; Adams v. Atlantic City Electric Co. (Court of Errors and Appeals 1938), 120 N. J. L. 357 (at p. 363); 199 Atl. Rep. 27, 726.

The negligence of the master of the boat had substantially-come to rest. The defendant’s liability existed for the direct and original consequence of his act to the county. Where there is no reason to expect damage to third persons in the-category of the plaintiffs, and no knowledge in the person doing the wrongful act that such a state of things exists so as to render damage probable, it is generally considered that the wrongful act is not the proximate cause of injury so as. to render the wrongdoer-liable to an action. 2 Restatement of the Law of Torts, § 282, comment G.

In the case of Kahl v. Love, supra, it was declared:

“It is not everyone who suffers a loss from the negligence of another who can maintain a suit on such ground. The-limit of the doctrine relating to actionable negligence is, that: the person occasioning the loss must owe a dutjr, arising from contract or otherwise, to the person sustaining such lossSueh a restriction on the right to sue for a want of care in. the exercise of employments or the transaction of business,, is plainly necessary to restrain the remedy from being pushed to an impracticable extreme. There would be no bounds to actions and litigious intricacies, if the ill effects of the negligences of men could be followed down the chain of results to the final effect.”

Ho ordinary prudent person could reasonably have been expected to have foreseen the resultant injurious consequences and hence there was no actionable negligence in the absence of knowledge.

“If the wrong and resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events follow from the wrong, then the wrong and damage are not sufficiently conjoined or concatenated as to cause and effect to support an action.” Cooley (4th ed.), art. 50 (at p. 108).

Conclusion—In Smith v. Public Service Corp. (Court of Errors and Appeals, 1909), 78 N. J. Eq. 478 (at p. 481); 75 Atl. Rep. 937, it was declared:

“Whether an act or omission alleged to be negligence naturally and proximately caused an injury, is as a rule, a question for the jury. But if there is no evidence connecting the alleged negligence with the injury, or if it is obvious that the aot or omission was not the natural and proximate cause thereof, the question is for the court. 21 Am. & Eng. Encyd. L. (2d 508).”

Tested by that rule and applying to it the admitted facts in the complaints, the question for decision is for the court. It is obvious that the alleged wrong was not the natural and proximate result of defendant’s negligence, and the defendant is not liable. The motions are granted.

In this disposition of the causes, it is not necessary to determine as a matter of law whether in the pleaded damages, the plaintiffs were specially damnified.

Appropriate rules may be presented.


author: Martino, D. 0. J.

text:
    Camden City District Court.
    INSURANCE COMMISSIONER, COMMONWEALTH OF PENNSYLVANIA, LIQUIDATOR OF KEYSTONE INDEMNITY EXCHANGE, ETC., PLAINTIFF, v. DAVID GRIFFITHS, Jr., DEFENDANT.
    Decided March 5, 1945.
    Par the plaintiff, Franh F. Patterson and Paul J. Donnelly (of the Philadelphia bar).
    Por the defendant, Meyer L. Sulrin,

   Martino, D. 0. J.

On May 18th, 1933, the Court of Common Pleas of Dauphin County, Pennsylvania, ordered the Insurance Commissioner of the Commonwealth of Pennsylvania to take possession of the Keystone Indemnity Exchange and to liquidate the business and the affairs of the Exchange in accordance with a Pennsylvania statute.

On September 12th, 1938, the Court of Common Pleas of Dauphin County, Pennsylvania, filed a decree ordering an assessment against the subscribers of the said Exchange who held policies exchanged among said subscribers and issued from April 9th, 1929, to May 18th, 1933, said assessment to be in an amount equal to one annual deposit premium on each policy issued to them as provided by statute of Pennsylvania. The defendant herein, a resident of the State of New Jersey, was a subscriber to the Exchange and suit in this court for the assessment allowed by virtue of the Pennsylvania decree was started in this court.

The facts as determined by this court from the testimony are these:

George T. Eyan between the years 1929 and 1933 was a head clerk in the employ of the Pennsylvania Eailroad Company and as such employee held the office of .president of the Pennsylvania Eailroad Employees’ Co-Operative Association, with offices located on Broad Street, in the City of Philadelphia. The defendant was also an employee of the Pennsylvania Eailroad Company. This co-operative association had a membership close to 2,000 railroad employees, and in the words of Mr. Eyan was able to do “co-operative buying for these employees.” The association therefore undertook to interest its members in the insurance features submitted by the Keystone Indemnity Exchange. The present suit is predicated on policies issued from May 19th, 1929, to May 19th, 1933. The defendant testified that the witness, George T. Eyan, was an agent of the Keystone Indemnity Exchange and called upon him at his home located in Camden, New Jersey, on May 17th, 1929, and solicited the first application of insurance on behalf of the Keystone Indemnity Exchange. The first record of any policy existing between the defendant and the Keystone Indemnity Exchange is on May 19th, 1927. It is admitted that said Exchange was not authorized to do business in this state. It is contended that this constitutes a violation of R. S. 17:17-12; N. J. S. A. 17:17-12, which provides:

“No person by himself, or by his brokers, agents, solicitors, surveyors, canvassers or other representatives of whatever designation, nor any such broker, agent, &c., or other representative shall solicit, negotiate or effect any contract of insurance of any kind including all kinds of insurance * * * or receive any premium, com mission, fee or other payment thereon or maintain or operate any office in this state for the transaction of the business of insurance, or in any manner, directly or indirectly, transact the business of insurance of any kind whatsoever within this state unless specifically authorized under the laws of this state. Any person violating any of the provisions of this section shall be guilty of a misdemeanor. (As amended L. 1942, ch. 162, p. 471, sections 1, 2.)”

One argument propounded by the defendant is to the effect that a violation of the above statute prohibits the right of the plaintiff to recover. Cunningham v. Brockway Fast Motor Freight, Inc., 18 N. J. Mis. R. 101; 11 Atl. Rep. (2d) 422.

On the other hand, plaintiff has produced plenary evidence by way of positive proof and contradiction of the defendant to lead this court to the factual conclusion that defendant is mistaken and that the contract of insurance was made in the State of Pennsylvania and by that conclusion the validity, construction and effect of such a contract must be governed by the law of the place where it was made or to be performed. The State of Pennsylvania upheld the contract in question. Commonwealth v. Keystone Indemnity Exchange, 335 Pa. 333; 6 Atl. Rep. (2d) 831. On petition for re-argument the decision was affirmed, 338 Pa. 405; 11 Atl. Rep. (2d) 887. The court there held that the subscribers were liable to pay a sum equal to not less than one additional annual premium or deposit charged. The present suit is for an additional premium on each policy or a total of two hundred seventeen dollars and thirty-seven cents ($217.37), with interest from August 15th, 1940.

The Supreme Court of the United States in passing upon an analogous situation in Broderick v. Rosner, 294 U. S. 629; 55 S. Ct. 589; 79 L. Ed. 1100, said the following:

“Here the nature of the cause of action brings it within the scope of the full faith and credit clause. The statutory liability sought to be enforced is contractual in character. The assessment is an incident of the incorporation. Thus the subject-matter is peculiarly within the regulatory power of New York, as the State of Incorporation. ‘So much so * * * that no other state properly can be said to have any public policy thereon. And what the law of * * * New Jersey may be respecting the relative rights and obligations of creditors and stockholders of corporations of its creation, and the mode and means of enforcing them, is apart from the question under consideration.’ * * * In respect to the determination of liability for an assessment, the New Jersey stockholders submitted themselves to the jurisdiction of New York. ITor ‘the act of becoming a member (of a corporation) is something more than a contract, it is entering into a complex and abiding relation, and as marriage looks to domicil, membership looks to and must be governed by the law of the state granting the incorporation.’” (294 U. S. 643-644; 55 S. Ct 593.)

And in Chandler v. Peketz, 297 U. S 609; 56 S. Ct. 602; 80 L. Ed. 881, the Supreme Court of the United States said:

“We have held that the Minnesota provisions constituted a reasonable regulation for enforcing the liability assumed by those who became stockholders in corporations organized under the laws of that state; that the order levying the assessment is made conclusive as to all matters relating to the amount and propriety thereof, and the necessity therefor; that it is thus conclusive, although the stockholder may not have been a party to the suit in which it was made or notified that an assessment was contemplated, as the order is not in the nature of a personal judgment against him and he must be deemed, by virtue of his relation to the corporation and the obligation assumed with respect to its debts, to be represented by it in the proceedings; and, further, that one against whom the order of assessment is sought to be enforced is not precluded from showing that he is not a stockholder or is not the holder of as many shares as is alleged, or has a claim against the corporation which in law or in equity he is entitled to set off against the assessment or has any other defense personal of himself.” (297 U. S. 610-611; 56 S. Ct. 603.)

In matters dealing with judicial transactions between states and resting on mandates of the federal constitution, state courts are bound by holding of the federal court whieh accordingly is accepted as the law of the land. Simmons v. Sloan, 104 N. J. L. 612; 142 Atl Rep. 15.

The United States Supreme Court in a four-three decision (Mr. Justice Roberts and Mr. Justice Reed did not participate) on June 5th, 1944, held that the business of insurance was interstate commerce. United States v. Southeastern Underwriters Association, 322 U. S. 533; 64 S. Ct. 1162. For seventy-five years before this decision the rule has been otherwise. The effect of this decision will undoubtedly render impotent some provisions of our insurance statutes as set forth in R. S. 17:17-1, et seq.; N. J. S. A. 17:17-1, et seq. Since it is not necessary or judicially proper for this inferior court to pass upon the constitutionality of the sections of our insurance statutes cited by the defendant in his brief it should be noted that Chief Justice Stone in his dissenting opinion warned':

"Rut the immediate and only practical effect of the decision now rendered is to withdraw from the states in large measure, the regulation of insurance and to confer it on the national government * * *. In the years since this court’s pronouncement came to be regarded as settled constitutional doetrine, vast efforts have gone into the development of schemes of state regulation and into the organization of the insurance business in conformity to such regulatory requirements vast amounts of capital have been invested in the business in reliance on the permanence of the existing system of state regulation. How far that system is now supplanted is not, and in the nature of things could not well be, explained in the court’s opinion. The government admits that statutes of at least five states will be invalidated by the decision as in conflict with the Sherman Act [15 U. S. C. A., §§ 1, et seq.] and the argument in this court reveals serious doubt whether many others may not also be inconsistent with the act.”

Defendant’s further contention that plaintiff’s complaint is insufficient in law is without merit. The state of demand states a legal cause of action and apprises the defendant of the claim against him. The suit is based upon a foreign decree of a court of law of the State of Pennsylvania, and the state of demand clearly states that fact. O’Donnell v. Weiler, 72 N, J. L. 142; 59 Atl. Rep. 1055; DeJianne v. Citizens’ Protective Association of New Jersey, 79 N. J. L. 107; 74 Atl. Rep. 443; Kennell v. Gershonovitz et al., 84 N. J. L. 577; 87 Atl. Rep. 130.

Judgment for the plaintiff in the sum of $217.37 with interest and costs of suit.


author: Haktshobne, C. P. J.

text:
    Essex County Court of Common Pleas.
    ROY D. KEEHN, AS RECEIVER OF CENTRAL MUTUAL INSURANCE COMPANY OF CHICAGO, PLAINTIFF, v. HI-GRADE COAL AND FUEL COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided February 20, 1945.

      For the plaintiff, Samuel M. Hollander.

    For the defendant, Kristeller & Zucker (Saul J. Zucker).

    For the State of New Jersey, Walter D. Van Riper, Attorney-General (Louis J. Cohen> of counsel), amicus curies.

   Haktshobne, C. P. J.

This case poses the interesting question as to whether the recent decision of the United States Supreme Court that the business of insurance is interstate commerce, United States v. South-Eastern Underwriters Association, 322 U. S. 533; 64 S. Ct. 1162; rehearing denied October 9th, 1944, 65 S. Ct. 26, has rendered invalid, as applied to insurance companies located outside New Jersey, certain important provisions of that “net-work of legislation” comprising the New Jersey Insurance Law. It is because of this question that the Attorney-General appears as amicus curia.

The statutory receiver of the Central Mutual Insurance Company of Chicago, a mutual company incorporated in Illinois, which became insolvent, sues defendant to collect an insolvency assessment against him as a member-policyholder. Defendant raises several defenses which plaintiff moves to strike as sham and frivolous. Among the defenses raised, it is asserted that the company, not admitted to do business in New Jersey, has, nevertheless, been doing business in this state without complying with our statutes, and, because of such non-compliance, it cannot recover in our courts. R. S. 17:32-10; N. J. S. A. 17:32-10. Hence, the question as to the validity of the provisions of the New Jersey law, as affected by the South-Eastern decision, supra. We turn to the facts.

On November 1st, 1935, one Scheckner solicited defendant in Irvington, New Jersey, to take one of the company’s automobile liability policies covering the defendant’s motor vehicles. The defendant signed the formal application which was forwarded to the company, and a policy was issued November 18th, 1935, either in the company’s home office in Chicago, or in North Carolina, where the company was authorized to do business. But whether Scheckner solicited the policy on behalf of the company, or was merely looking for insurance prospects on his own account as a broker, is not stated in the affidavits. While this policy, as originally issued, ran for a year from November 7th, 1935, to November 7th, 1936, and charged a premium of $704.76, for the amount of which plaintiff sues, it remained in effect for but three weeks, being canceled with the consent of both parties on December 10th, 1935, the earned premium on such policy, then charged defendant and now paid, being in the amount of $162.09.

The company was found to be insolvent on January 11th, 1937, at which time the plaintiff-receiver was appointed by the Illinois courts, it having been determined in such proceedings that the company had been insolvent since January 31st, 1935. Thereupon, in accordance with the Illinois statutes, an assessment was levied by the receiver against all who had been member-policyholders from the date of the insolvency to the time of the receiver’s appointment, the assessment against defendant being in the above sum of $704.76, the amount of the original premium, not the amount of the earned premium. This assessment was duly confirmed by the Illinois courts, People, ex rel. Palmer v. Central Mutual Insurance Company of Chicago, 313 Ill. App. 84; 39 N. E. Rep. (2d) 400. To these proceedings, the defendant, a non-resident, was not in name a party.

The legal effect of such insolvency assessments against the member-policyholders as a class, and of the subsequent proceedings at law against the individual assessees, has been clearly stated in a recent opinion by our Court of Errors and Appeals, Merola v. Fairlawn Newspaper Printing Corp., 135 N. J. Eq. 152; 36 Atl. Rep. (2d) 290. While such proceedings were upon similar assessments for unpaid stock subscriptions of an insolvent corporation, the status of member-policyholders in an insolvent mutual insurance company “is quite like that of stockholders of a corporation whose stock is not fully paid.” Stone v. New Jersey and Hudson River Railway Co., 75 N. J. L. 172; 66 Atl. Rep. 1072, 1073; Pink v. A. A. A. Highway Express, 314 U. S. 201-207; 62 S. Ct. 241. In the Merola ease our highest court lays down the rule in that regard as follows (135 N. J. Eq. 152; 36 Atl. Rep. (2d) 292):

“It is the general rule that where a corporation has been decreed insolvent, and it has been judicially determined that an assessment against unpaid stock subscriptions is necessary to liquidate the corporate debts, the determination of the insolvency, the necessity, propriety and the guant-um or the rate of the assessment, are conclusive upon the stockholders in subsequent proceedings against them to enforce the payment of the assessment, even though the stockholder against whom the assessment is sought to be enforced was not made a parly to the particular proceeding in which the assessment was made, and had no personal notice thereof. This is grounded in the principle that a stockholder is so far an integral part of the corporation that, in the view of the law, he is privy to the proceedings touching the body of which he is a member. He is in such privity with the corporation as to be a party to the assessment proceedings through representation by the corporation. Where the assessment is made in a proceeding at the domicile of the corporation to which the corporate body is a party, the propriety and amount of the assessment—matters which concern the entire body of stockholders as a class—are beyond question by the stockholder, but he may interpose all defenses personal to himself in a later action to enforce the assessment. The levy is not a personal judgment against the stockholder, but a judicial determination relative to corporate affairs in which he is represented by the corporation.” See to the same effect McDermott v. Woodhouse, 87 N. J. Eq. 615, 618; 101 Atl. Rep. 375; Lincoln Bus Co. v. Jersey Mutual, &c., Co., 112 N. J. Eq. 538, 541; 165 Atl. Rep. 112; People, ex rel. Palmer v. Central Mutual Insurance Company of Chicago, supra; Miller v. Barnwell Bros., Inc., 137 Fed. Rep. (2d) 257, the latter two cases involving the instant insolvency proceedings against the company here involved.

It follows that the assessment in question against defendant, when confirmed by the decree of the Illinois Court, became a judgment against the member-policyholders of the insurance company as a class, including the defendant, conclusive as to the necessity, propriety and either quantum, or rate of the assessment, but subject to defenses personal to defendant. Hence, the defenses here raised must now be considered.

The Validity of the New Jersey Statutes in the Light of the South-Eastern Underwriters Decision.

As stated above, defendant claims that the company, for whose rights plaintiff is receiver, while not admitted to do business in Hew Jersey, has, nevertheless, been transacting business in this state, but without complying with our statutes. Therefore, because it has not “complied with the provisions-of” the New Jersey Insurance Law, it is claimed that it cannot “recover in an action in any court in this state * * * for any assessment made upon the policy.” R. S. 17:32-10; N. J. S. A. 17:32-10. Among other things, these statutes require out-of-state insurance companies, in order to transact business in Hew Jersey, to appoint “agents resident” in New Jersey, subject to exceptions here immaterial (R. S. 17:32-11; N. J. S. A. 17:32-11), to file with the Department of Banking and Insurance its charter, to satisfy the Commissioner of the propriety of its- condition and methods of operation, to constitute him its attorney for the service of process, to obtain his certificate as to such compliance, and not to solicit or negotiate any insurance by itself “or by * * * its * * * brokers, agents, solicitors, surveyors, canvassers, or other representatives,” the statutes further requiring brokers who write for any admitted company to be licensed. R. S. 17:32-l, 2; N. J. S. A. 17:32-l, 2; Pamph. L. 1928, ch. 221; N. J. S. A. 17:17-12; R. S. 17:22-1; N. J. S. A. 17:22-1. The purpose of these statutes is to “protect the public against imposition which might otherwise be practiced by wholly irresponsible companies.” Columbia Fire Insurance Co. v. Kinyon, 37 N. J. L. 33-37; State v. New Jersey Indemnity Co., 95 N. J. L. 308; 113 Atl. Rep. 491. The company has met none of the above requirements.

Defendant here relies on the case of Cunningham v. Brockway Fast Motor Freight, Inc., 18 N. J. Mis. R. 101; 11 Atl. Rep. (2d) 422, and that of Keehn v. Laubach, 22 N. J. Mis. R. 380; 39 Atl. Rep. (2d) 73, which relies upon the Cunningham case, as holding that the failure of the insurance companies there involved to comply with these very provisions of the Hew Jersey Insurance Law, prevented their receivers from recovering on insolvency assessments in proceedings similar to the present. But the Cunningham case was decided at a time when the United States Supreme Court had, by a long line of decisions, Paul v. Virginia, 8 Wall. 163; New York Life Insurance Co. v. Deer Lodge County, 231 U. S. 495; 34 S. Ct. 167; Hooper v. California, 155 U. S. 648; 15 S. Ct. 207, held that the business of insurance was intrastate, not interstate commerce, and that consequently the state could either exclude an out-of-state company from entering the state at all, or could impose such conditions on its entry as it saw fit. How, however, by the South-Eastern Underwriters case, supra, the United States Supreme Court has overruled this doctrine, and held the business of insurance to be interstate commerce.

The general principle is, of course, well settled, that no state can prohibit the flow of interstate commerce or impede it unreasonably. Indeed, historically, the country’s need for such free flow of commerce was the moving cause for the calling of the Constitutional Convention at Philadelphia. Moreover, it has long been deemed to be the law, that a state statute which required a company, engaged in interstate commerce, to take out a license, or forbade its use of the state courts until so licensed, and a resident agent appointed, was unconstitutional, as an unreasonable interference with interstate commerce. Crutcher v. Kentucky, 141 U. S. 47; 11 S. Ct. 851; Sioux Remedy Co. v. Cope, 235 U. S. 197; 35 S. Ct. 57. Hence, the question as to the present validity of the above provisions of the New Jersey Insurance Law. And here note the very recent decision of the United States Supreme Court in the case of State Farm Mutual Automobile Insurance Co. v. Duel, 65 S. Ct. 573, where the court alludes to substantially the same question as to similar Wisconsin statutes, but does not decide it for purely procedural reasons.

However, while the South-Eastern case does change the previously established doctrine, the court, in that very case, itself intimates that its decision does not “necessarily invalidate many state laws regulating insurance,” adding: “It is settled that for constitutional purposes certain activities of a business may be intrastate and, therefore, subject to state control; while other activities of the same business may be interstate and, therefore, subject to federal regulation. And there is a wide range of business and other activities which, though subject to federal regulation, are so intimately related to local welfare that in the absence of congressional action they may be regulated or taxed by the states * * *. And tiie fact that particular phases of an interstate business or activity have long been regulated * * * by states has been recognized as a strong reason why, in the continued absence of conflicting congressional action, state regulatory * * * laws should be declared valid.” 322 U. S. (at pp. 548, 549) ; 64 S. Ct. (at p. 1171).

Thus, if an out-of-state insurance company, instead of merely accepting an application from a New Jersey resident in Illinois and writing its policy there, and thereafter mailing it to the resident, actually does business in New Jersey, by having a representative solicit such policy, procure same, obtain payment of the premium and, perchance, as well inspect and supervise the property covered, all within the State of New Jersey, it would seem that these acts are all intrastate activities, “and therefore subject to state control.” Further, since these acts are also “intimately related to local welfare,” in that, if the company is irresponsible, a fraud would be perpetrated upon New Jersey citizens in taking the premium (Columbia Fire Insurance Co. v. Kinyon, supra), it would seem that such acts “may be regulated * * * by the states,” particularly in view of the present “absence of congressional action” in regard to the regulation of insurance, all in accordance with the rule enunciated by the court in its far-reaching decision in the South-Eastern case.

Nor, for like reason, is the state requirement of a certificate of admission for out-of-state companies, equivalent, though it be, to a license, subject to question. For, the United States Supreme Court has substantially departed from its previous view in that regard, by recently holding, even previous to its South-Eastern decision, that a corporation, engaged in foreign' commerce, which, under the constitution, is protected from state interference on an exact equality with interstate commerce (United States Constitution, article I, section 8, clause 3), may be required to take out a state certificate of compliance with conditions substantially similar to the New Jersey provisions. Union Brokerage Co. v. Jensen, 322 U. S. 202 ; 64 8. Ct. 967. The court there says, “In the absence of applicable federal regulation the state may impose nondiscriminatory regulations on those engaged in foreign commerce 'for the purpose of insuring the public safety and convenience’ * * *. The commerce clause does not deprive Minnesota of the power to protect the special interest that has been brought into play by Union’s localized pursuit of its share in the comprehensive process of foreign commerce.” See in accord Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346; 59 S. Ct. 528; 83 L. Ed. 752; California v. Thompson, 313 U. S. 109; 61 S. Ct. 930; 85 L. Ed. 1219.

In short, the fact that the business of insurance, as now conducted throughout the country, is to be deemed interstate commerce, would not, in the absence of conflicting congressional action, seem to invalidate, as to out-of-date companies doing business in Hew Jersey, such non-discriminatory provisions of the New Jersey Insurance Laws, as are reasonably requisite to protect New Jersey citizens.

Ho contention having been made that the above statutes are discriminatory against out-of-state companies, the next question is whether the company here was doing business in fact within New Jersey. For, the crux of the state’s jurisdiction is whether or not the company was in truth within both the protective and regulative power of the state. Hoopeston Canning Co. v. Cullen, 318 U. S. 313; 63 S. Ct. 602; United Slates v. South-Eastern Underwriters, supra; Union Brokerage Co. v. Jensen, supra; Parker v. Brown, 317 U. S. 341; 63 S. Ct. 307; 87 L. Ed. 315.

But this question as to whether or not an out-of-state company is doing business in New Jersey is not to be decided simply by ascertaining where the contract was technically completed, nor by whether the individual who took the insured’s application was popularly known as a broker. “In determining whether insurance business is done within a state for the purpose of deciding whether a state has power to regulate the business, considerations of the location of the activity prior and subsequent to the making of the contract, Osborn v. Ozlin, 310 U. S. 53; 60 S. Ct. 758, of the degree of interest of the regulating state in the object insured and of the location of the property insured, are separately and collectively of great weight.” Hoopeston Canning Co. v. Cullen, supra,. Previously, if the insurance contract were completed out of the state, that was often deemed decisive as to the fact that the company was not doing business within the state. Allgeyer v. Louisiana, 165 U. S. 578; 17 S. Ct. 427. But it should be noted that in that ease no broker was employed within the state, no premium paid there, nothing, in fact, done within the state, except that the resident insured mailed á notice to a broker outside the state. Indeed, serious doubts have recently been cast upon the correctness of the Allgayer decision. Osborn v. Ozlin, supra; Hoopeston Canning Co. v. Cullen, supra. Nor is the fact determinative that a broker is generally considered the agent of the insured, not the company. 137 A. L. R. 1133. Por such broker may, though a broker in name, be acting on behalf of the company in fact, and if this occurs in other than a single, isolated transaction, the out-of-state insurer may be “doing business” within such state. 137 A. L. R. 1134. Columbia Insurance Co. v. Kinyon, supra. It is the facts as a whole that count. If, though a licensed broker, the individual solicits insurance for the company, not from the company, and collects premiums for it, not on behalf of the insured, the broker becomes the agent of the company in fact, and this fact, if in question, “is to be determined by the jury.” Higgins v. Fidelity Finance Insurance Co., 107 N. J. L. 175; 151 Atl. Rep. 869, 870; Smith and Wallace Co. v. Prussian Insurance Co., 68 N. J. L. 674; 54 Atl. Rep. 458.

Unfortunately the pleadings and supporting affidavits in the cause, upon which alone the determination of this question must presently be based, .leave this very fact, and the similar congeries of evidence above alluded to, an open question. Of course, the mere claim of counsel, that Seheckner was not acting for the company, can no more be now considered, than can the fact found by the court in Keehn v. Laubach, supra, that the very company here involved at that time was employing brokers to solicit insurance policies for it, and was therefore doing business within New Jersey. Indeed, it might here be noted, that not only in such case, but in Cunningham v. Brockway, supra, and in Bothwell v. Buckbee-Mears Co., 275 U. S. 274 ; 48 S. Ct. 124, on which the court in the Cuimingham ease relies, the companies were found to be doing business within the state by “sending a representative into the state who solicited the insurance there,” Cunningham v. Brockway, supra; 18 N. J. Mis. R. 109; 11 Atl. Rep. (2d) 426, referring to Bothwell v. Buckbee-Mears Co., supra, a situation which may or may not exist here, according to the present pleadings and affidavits. While the determination of this question, as to whether the company here had been doing business in New Jersey and so should have complied with the above provisions of the New Jersey statutes, must thus be reserved for the production of further proof, either at or before the trial, we proceed to the consideration' of the further questions of law involved, since all concerned have properly presented such questions for determination now, rather than during the haste of trial.

For will the enforcement of the Few Jersey act (R. S. 17:32-10; N. J. S. A. 17:32-10), in denying plaintiff the right to recover in the New Jersey courts, for its failure to comply with the New Jersey statutes covering the company’s doing business within the state, in any way violate the full faith and credit clause of the United States Constitution (article 4, section 1). Por, the full faith and credit clause simply requires the local state (New-Jersey), subject to certain implied exceptions, to give exactly the same faith and credit in its courts, which the foreign state, Illinois, gives the judgment in question in its courts. And the Illinois statutory receivership is but a class jugment, binding in Illinois, and Few Jersey as well, upon the member-policyholders, only as to the necessity, propriety and either the quantum or rate of assessment, but in nowise to be considered as a judgment in personam against defendant or any other member-policyholder. Merola v. Fairlawn Newspaper Printing Corp., supra. Indeed, since the defendant was not, as a non-resident, served as a party in such class proceedings, he could not constitutionally be bound personally thereby. Pennoyer v. Neff, 95 U. S. 714. Thus, if the present suit were instituted in Illinois, with the present defendant properly served as a party thereto, he would there be at full liberty to raise all defenses personal to him and not open to the member-policyholders as a class. Of course, the fact that the company has not-been properly admitted in New Jersey is a defense personal to defendant in New Jersey, but utterly unavailable to all policyholder-defendants outside New Jersey.

Nor is Broderick v. Rosner, 294 U. S. 629; 55 S. Ct. 589, to the contrary. There the holding was simply to the effect that New Jersey’s denial of any practicable remedy at all, to collect an insolvency assessment, ran counter to the full faith-and credit clause. Here the New Jersey statutes deny no remedy to any company, except one which has refused to protect New Jersey citizens properly from fraud and imposition, a matter of the proper exercise of the police power, in nowise involved in the Broderick case. And see State Farm Mutual Automobile Insurance Co. v. Duel, supra.

The Maximum Premium Was Expressed in the Policy.

The New Jersey statutes require the maximum premium to be “expressed in the policy * * *” (R. S. 17:28-3; N. J. S. A. 17:28-3), and defendant claims the policy in question does not so provide.

But the policy does provide that the insured becomes a member of the company and agrees that “the contingent liability of the assured hereunder is limited to one time the premium named herein and no more.” This is one of the “general conditions” of the policy, which further provides that “this automobile policy is issued * * * subject to

the printed conditions of the policy.” Thus, the original premium stated on page 1 of the policy, plus the above statement as to the limited “contingent liability,” clearly “express the maximum premium,” for which the assured earn, under any circumstances become liable.

Of course, the amount of the ultimate premium could, not possibly be expressed in the policy. For the amount of this contingent premium could not be determined at the time the policy was written, but only long thereafter when the company had been found to be insolvent, forcing the assessment, itself this “contingent liability.” In any event, the statute does not require the policy to express this ultimate premium, but only to express the “maximum premium,” which it does to the utmost possible extent. Since the decision, apparently to the contrary, in Keehn v. Parrish Dray Line, 53 Fed. Supp. 855, has recently been reversed (145 Fed. Rep. (2d) 646), it not only is not to the contrary, but accords with the view of this court, and this regardless of the fact that the policy there in question required the statement of the “total premium,” i. e., a more specific term than the “maximum premium” as here.

The Statute of Limitations Is Not a Bar.

Defendant urges that the six-year statute of limitations bars the suit, on the theory that the suit is upon the insurance policy-contract issued in 1935, more than six years before the institution of this suit in March, 1944. But defendant misconceives the gravamen of the cause of action. The suit is not on the policy, but on the judgment or decree of the Illinois court, confirming the class assessment made by the receiver in the above Illinois insolvency proceedings. McDermott v. Woodhouse, supra; Scovil v. Thayer, 105 U. S. 143; Glenn v. Marbury, 145 Id. 499; 12 S. Ct. 914; Shipman v. Treadwell, 208 N. Y. 404, 411; 102 N. E. Rep. 634. This Illinois decree confirming the assessment was entered March 19th, 1940, less than six years before the institution of the suit.

Plaintiff’s Recovery, If Any.

Plaintiff sues for $704.76, the amount equal to the premium written into the policy before its cancellation, not for the amount equal to the premium which was actually earned on cancellation, to wit $162.09. In short, assuming the plaintiff recovers at all, is he entitled to recover an amount equal to the premium which was canceled by mutual agreement between the company and the assured, or to an amount equal to that which the company earned and the insured paid?

The answer to this, of course, depends upon the terms of the policy contract and the effect of the cancellation of the policy, including the charge of the “short-rate” earned premium.

The policy provided that “The contingent liability of the assured hereunder is limited to one time the premium named herein and no more.” It is this “contingent liability of the assured,” with which we are now concerned. For the assured, as a member of this mutual company, became a co-insurer with the other insured policyholders and thus became responsible for the company’s losses in excess of its receipts. It was this excess of losses over receipts which made the company insolvent, caused the appointment of the present plaintiff as its receiver, and justified the assessment of this excess against the policyholders as a class. The question is whether, in assessing defendant, he should be assessed upon the basis of his policy contract as originally written, or upon the basis of his policy contract as it was ultimately carried out.

We, therefore, turn to the consideration of the effect of the cancellation by both parties of the original policy contract. When an issued policy is canceled “short rate,” what occurs, legally speaking, is its mutual rescission by both the company and the insured, and the re-issue of a new policy contract, identic in all respects with the original, save for the shortened term and the lessened earned premium. This latter contract is substituted for the original. Hence, the above condition, as to limiting “the contingent liability off the insured” to “one time the premium named herein;” refers to the premium named, not in the original, but in the substituted policy. It refers, in short, to the earned premium, here $162.99. Indeed, in Miller v. Barnwell Bros., 137 Fed. Rep. (2d) 257, 260, involving a policy contract identic with that here, issued by this very company and involving these very Illinois insolvency proceedings and this very plaintiff receiver, “The receiver concedes that his recovery is limited to an amount equal to fibe premiums earned.” In other words, when plaintiff here sued on a policy the same as that here, he conceded that, as to the canceled policy involved in that case, the assessment was limited to the premium earned from the date of issue to the date of cancellation. And this concession by the present plaintiff accords not only with reason but with authority. For, in the similar insolvency proceedings against a mutual insurance company,, dealt with in the case of Lincoln Bus Co. v. Jersey Mutual Insurance Co., supra, the court, both expressly and in its mathematical tabulation, holds that it is the “earned premiums,” which constitute the basis of the receiver’s assets. 112 N. J. Eq. 538-541; 165 Atl. Rep. 112.

The motion to strike defendant’s answer and its first and second separate defenses will be denied. The motion to strike the third, fourth and fifth separate defenses is granted.


author: Burling, C. C. J.

text:
    Atlantic County Circuit Court.
    MARY HAND, PLAINTIFF, v. ALICE HAND, SOMETIMES KNOWN AS ALICE PRICKETT, DEFENDANT.
    Decided January 19, 1945.
    For the plaintiff, William I. Garrison.

    For the defendant, William E. Stringer.

   Burling, C. C. J.

This is an action sounding in tort of slander and libel.

Motion has been made to strike out the amended complaint filed in this cause upon the ground that it discloses no cause of action, and the following reasons are assigned:

“First—The declaration does not aver that the words were falsely and maliciously spoken.

“Second—That the complaint does not set out the defamatory words alleged to have been used.”

These will be dealt with in the inverse order.

Reason Two—The defendant submitted that the amended complaint does not set out the defamatory words. In Odgers on Libel and Slander (6th, ed.) (1929), is contained the following:

“The pleadings in an action of libel or slander are more important, perhaps, than any class of actions usually brought in the King's Bench Division. In his statement the plaintiff must set out the precise words of which he complains.”

In support of the principle asserted by the defendant, reliance is had upon the ease of Webster v. Holmes (Supreme Court, 1898), 62 N. J. L. 55; 40 Atl. Rep. 778, wherein it was held:

“The rule of pleading is that words used should be set forth in haec verba. The usual averment, and the one required, is that the defendant spoke and published of and concerning the plaintiff the false, scandalous, malicious and defamatory words ‘following, that is to say’ (setting out the words used with proper innuendoes). 2 Chit. Pl. (13th Am. ed.) 633, 636. The words must be set out in order that the court may determine, either with or without the aid of the innuendo, whether they constitute a ground of action, and also that the defendant may know the charge against him and what defense can be made to the action by pleading and proof. These are the reasons of the rule which requires that the averment must be specific as to the words used.

“The declaration in this instance is only narrative of what occurred and this is insufficient. Burns v. Williams, 88 N. C. 159.

“The declaration is bad for not setting out the words verbatim. Gutsole v. Mathers, 1 Mees. & W. 495. The averment must profess to set out the very words. Bagley v. Johnston, 4 Rich., S. C., 22; Harris v. Warre, 4 C. P. Div. 128. The very words should be set out. Kenyon v. Cameron, 17 R. I. 122; 20 Atl. Rep. 233, 234. New Stand. 638; 13 Am. & Eng. Encycl. L. 456. The very words complained of must be set out ‘in order that the court may judge whether they constitute a ground of action’ (3 B. & Ald. 506) ‘and also because the defendant is entitled to know the precise charge against him and cannot shape his case until he knows.’ Harris v. Warre, supra. The defendant cannot plead the truth in justification unless the charge is made precise. Odg. Lib. & S. (2d Eng. ed.) 404. It is not sufficient to give the substance or purport of the words.”

The defamatory words were not specifically quoted although it may be argued that the imputations to be drawn from the averments are that the defamatory words are: “Mary Hand is guilty of both bigamy and adultery.” Assuming that such were the words, it is contended by the defendant that they were used disjunctively and therefore it is impossible to properly answer the complaint or prepare a defense to the same.

Disjunctive allegations are those which are plead in the alternative form and the clauses of which are usually separated by the words “or.” Balantine’s Law Dictionary, 1930.

The plaintiff is a female and as such might be guilty of both of the crimes of adultery and bigamy, and the averments are not therefore inconsistent. It is desirable, however, that the exact words be alleged in the form of quotation.

Reason One—In Support of the principle asserted by the defendant, further reliance upon the case of Webster v. Holmes, supra, is had, wherein at p. 58 of 62 N. J. L., at p. 779 of 40 Atl. Rep., it was held:

“It is necessary, in order that the pleading be not demurrable, that not only the words must be set forth, but, in some form or other it must be averred that they were false and malicious. It may not be material to the sufficiency of the declaration in what form the falsity or maliciousness be stated, but it has always been understood that the declaration must charge the falsehood or maliciousness of the slanderous words or terms used. In some form or other, these essentials of proper pleading must appear, and no better averment than that laid down in the books of pleading can be employed— that is, that the words were defamatory, false and malicious— and no good reason can be perceived for departing from these well-recognized and established forms.”

The words of defamation averred in the amended complaint charged the plaintiff with the commission of two crimes— bigamy and adultery—each of which is indictable under our statutes. R. S. 2:113-1 and 2; N. J. S. A. 2:113-1 and 2; R. S. 2:106-1; N. J. S. A. 2:106-1. Such words are actionable per se. Shaw v. Bender (Court of Errors and Appeals, 1916), 90 N. J. L. 147 (at p. 149); 100 Atl. Rep. 196.

In the Webster case, the defamatory words were not set forth in the declaration. There is authority to the effect that where the words are actionable per se, the failure to allege falsity thereof is immaterial upon the reasoning that the plaintiff is entitled to the presumption of innocence and therefore there is prima facie evidence of falsity and allegation of falsity is thereby unnecessary. 37 C. J. 33.

While the new rules have abolished the distinctive common law forms, the essential and differentiating rules applicable to pleadings as established at common law still survive as a basis of remedial law. Ward v. Huff (Supreme Court, 1919), 94 N. J. L. 81; (at p. 84); 109 Atl. Rep. 287. There may exist in the amended complaint the inference of the allegation of falsity, but the safest course is to utilize the time honored forms of pertinent pleading stripped of their verbiage. Marine Trust Co. v. St. James Church (Court of Errors and Appeals, 1913), 85 N. J. L. 272 (at p. 274); 88 Atl. Rep. 1075.

Since the allegations of the amended complaint charge that the defamatory words were published without cause or provocation, malice may be inferred therefrom. Pennington Trap Rock Co. v. Pennington Quarry Co. (Supreme Court, 1944), 22 N. J. Mis. R. 318 (at p. 322); 38 Atl. Rep. (2d) 869; Louis Kamm, Inc., v. Flink (Court of Errors and Appeals, 1934), 113 N. J. L. 582 (at p. 588); 175 Atl. Rep. 62; Wendelken v. Stone (Court of Errors and Appeals, 1915), 88 N. J. L. 267; 86 Atl. Rep. 376.

Observations relating to a specific allegation of falsity above referred to are equally applicable to an allegation of malice. In removing any doubt, specific averment of malice is preferable.

In Odgers on Libel and Slander (2d ed.) 495, this caution is set forth:

“Then it should be averred that the defendant spoke or wrote and published the words ‘falsely and maliciously.5 This is a time-honoured phrase which appears in every statement of claim; and it would be foolish to idly raise a point of law by omitting it; though in my opinion its omission would not be a fatal defect.55.

Conclusion—Under the circumstances, the motion to strike the amended complaint will be treated as a special demurrer and granted. In accordance with rule 31 of the Supreme Court, N. J. S. A. tit. 2, leave is reserved and given to the plaintiff to file and serve a further amended complaint. Attention is directed to the statute of limitations in actions of libel and slander. R. S. 2:24-3; N. J. S. A. 2:24r-3, and the case of Limpert Brothers v. Stitt (Court of Errors and Appeals, 1920), 94 N. J. L. 472; 110 Atl. Rep. 832.

Appropriate rule in accordance with these conclusions may be presented providing for the filing and service of an amended complaint within ten days from the date of the rule.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. MARION R. OWEN, DEFENDANT.
    Decided March 22d, 1945.

      For the plaintiff, Walter D. Van Riper, Attorney-General (by Robert Peacock, Deputy Attorney-General).

      Marion R, Owen, pro se.

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

Motion has been made before me to strike out the answer filed by the defendant in the above entitled cause for the following reasons: (1) The answer is sham and frivolous and filed for the purpose of delay, and (2) the answer does not contain a legal defense to said complaint, and for summary judgment.

Summons was issued and the complaint was filed in this matter by the State of New Jersey, and it thereby seeks to recover a judgment against the defendant for the amount of unpaid rent under the terms of a riparian lease. The complaint is terse and as follows:

"1. The defendant, Marion B. Owen, made application for a lease for riparian lands belonging to the plaintiff along the Atlantic Ocean in the city of Atlantic City, county of Atlantic and state of New Jersey, in accordance with the provisions of Sec. 12:3-2 et seq. of the revised statutes, N. J. S. A. 12:2-2.

“2. In accordance with said application the board of commerce and navigation granted a lease to the defendant dated December twenty fourth,, nineteen hundred and thirteen, which was accepted by the defendant at an annual rental of Two Hundred Thirty one Dollars.

“3. The defendant defaulted in the payment of said rental and the lease was foreclosed on March 6, 1926.

"4. The amount of rental due from the date of the last payment is Twelve Hundred Fifty four Dollars and Sixty five cents and interest to date amounting to Thirteen Hundred Ninety one Dollars and fifty four cents, making a total of $2,646.19..

“5. Demand has been made upon the said defendant for the amount due plaintiff, but he has refused and still refuses to pay the same.

“6. The comptroller of the state of New Jersey has requested the attorney general to bring this suit for money due the state in accordance with R. S. 52:19-13; N. J. S. A. 52 :19—IS.

“Judgment will be demanded in the sum of $2,646.19.”

Said lease was executed by the Eiparian Commissioners of the State of New Jersey and approved and signed by the Acting Governor and the defendant, pursuant to written application of the defendant, as the then alleged riparian owner of the adjoining lands referred to in said lease, in accordance with provisions of the law then existing and now contained in R. S. Title 12, ch. 3; N. J. S. A. Title 12, ch. 3.

The lease provided for an annual rental of two hundred and thirty-one dollars ($231.00) in two equal one-half yearly payments in advance, the first one-half yearly rental to be paid on the delivery of the lease, and thereafter one-half yearly rentals were to be paid in advance on the 24th days of June and December of each and every year.

The defendant, not being an attorney, filed an inartifically drawn and not technically precise answer. The motion in this matter is in the nature of a general demurrer and attacks the substance and not the form of the answer. Upon the presenttaion of the motion, the plaintiff supported its position by affidavits and exhibits and the defendant appeared pro se and opposed the motion without the benefit of supporting affidavits of his position. The hearing upon the motion was adjourned to afford the defendant an opportunity to obtain an attorney. Upon the adjourned return day of the motion, the defendant still appeared pro se and lodged an informal affidavit with the court. Argument was thereupon made by the Deputy Attorney-General and by the defendant and a brief was filed by the Deputy Attorney-General and a memorandum was filed by the defendant.

Under the unusual circumstances, the court has endeavored to ferret out of the answer the substantive defenses of the defendant to the action, and they appear to be as follows: 1. General denial of liability; 2. Statute of limitations; 3. Denial of state ownership; 4. (a) Set-off for value of forty aores of land in which it is alleged the defendant had an interest and which were taken by the Board of Commerce and Navigation, successor to the Riparian Commissioners, R. S. 12:2-l; N. J. S. A. 12:2-l, without just compensation and without process of law, and (b) refund for alleged payment of municipal taxes upon lands within the confines of the riparian lease made under assessment by the municipality upon the riparian owner.

General Denial of Liability—As to the plea of general issue, in the ease of Coykendall v. Robinson (Court of Errors met Appeals, 1876), 39 N. J. L. 98 (at p. 99), it was held at common law that the judges repeatedly exercised in a great variety of cases, the power to strike out sham pleas. This rule was applied to the general issue as well as to other pleas, where it appeared to be a sham plea. No reason can be assigned why a defendant should be permitted to shelter himself from the power of the court to strike out a false plear by taking refuge under the general issue. And further (at p. 101) “The inquiry is simply whether there is, in truth, any question' of fact to try, and if not, if the defense is a mere pretense, it should be summarily swept away.” And in the case of Torricelli v. Sebastini (Supreme Court, 1933), 112 N. J. L. 458 (at p. 460); 171 Atl. Rep. 526 (at p. 527), it was held “But in this state it is well settled that the power to strike out sham pleas applies to the general issue.” To the extent therefor to which the allegations of the plaintiff are supported in fact and not controverted in fact, this defense is vulnerable. The execution of the lease is admitted. It is not denied that there was unpaid under the terms of the lease installments for rent which became due as follows: On June-24th, 1921, $115.50; on December 24th, 1921, $115.50; on June 24th, 1922, $115.50; on December 24th, 1922, $115.50, and on June 24th, 1923, $115.50.

It is contended by the plaintiff that the amount due is' to-be calculated until the state re-entered (March 6th, 1926) in the manner prescribed by statute (R. S. 12:3-49 and 50; N. J. S. A. 12:3-49 and 50) whereas the defendant maintains that the terminal point is the date mentioned in the-notice (July 20th, 1923) prescribed R. S. 12:3-51 and 52; N. J. S. A. 12:3-51 and 52. The court is inclined to the latter-view since R. S. 12:3—56; N. J. S. A. 12:3—56, provides as follows:

“12 :3—56. Eights of state as to unpaid rentals not affected. All rights, at law or in equity, which had accrued to the state for the rentals in arrears and unpaid up to the expiration of the time fixed in the notice mentioned in sections 12:3—51 and 12:3—52 of this Title shall not abate but shall remain in force and effect.”

Statute of Limitations: The last principal payment that became due was therefore on June 24th, 1923. R. S. 2:24-15; N. J. S. A. 2:24—15, provides as follows:

“2:24^-lo. Twenty Years. Actions by state for real estate or rents, issues or profits thereof. No person or body politic or corporate shall be sued or impleaded by the state of New Jersey for any real estate or for any rents, revenues, issues or profits thereof, except within twenty years after the right, title or cause of action to the same shall accrue.”

R. S. 12 :3-48; N. J. S. A. 12 :3-48 provides as follows: “12 :3—48. The state treasurer shall, on or before the first Tuesday in January in each year, mate out a list of all riparian leases held by the state on which rentals are in arrears and unpaid for the space of one year and transmit the same to the board of commerce and navigation.”

This would indicate legislative intent to require a prompt resort to the collection of the debt and to obtain possession of leased premises upon default.

In a recent ease, Trustees, &c., Public Schools v. Ott & Brewer Co., 135 N. J. Eq. 174 (at p. 177); 37 Atl. Rep. (2d) 832, 833, the matter of a statute of limitation in relation to the government was dealt with, wherein it was held: “Broadly stated, it is a rale of universal recognition that a statute of limitation should not be construed to encircle the government unless it is manifest from the mischief to be reached, the express language employed or by necessary implication therefrom, that the government was in the contemplation of the legislature. The doctrine is distinguished by the ancient and familiar maxim, ‘Nullum tempus occurrit regi.’ We are told that it probably exists, in some form, in the jurisprudence of every civilized people. It springs from the superior and pre-eminent policy to preserve public rights, revenues and property from injury and loss otherwise resulting from the inadvertence or neglect of public agents. In a representative government under which the people act only through the authority delegated to their agents, the reasons for the application of the doctrine continue to be cogent. The principle has been received with favor by our courts. Cross v. Mayor, &c., of Morristown, 18 N. J. Eq. 305; Trustees of Public Schools v. City of Trenton, 30 N. J. Eq. 667; Jersey City v. Hall, 79 N. J. L. 359; 76 Atl. Rep. 1058.”

It is obvious that in the express language of the limitation statute, the government was in contemplation of the legislature, still the plaintiff asserts that the rents derived from the riparian lands are trust funds and in its brief maintains:

“Biparian lands and the income and rents therefrom are held upon a public trust and litigation concerning them is not a proper subject to which a statute of limitations is applicable. R. S. 18:10—5 and 6 appropriate such lands and the income therefrom to the Board of Trustees for the Support of Public Schools. This income is as much dedicated to a 'public trust as our highways and other public properties are dedicated to a public trust and not subjected to the application of a statute of limitations. The moneys derived from the sale of riparian lands are dedicated to the public schools, as set forth in article IY, section 7, paragraph 6 of the New Jersey Constitution.”

The constitutional amendment of 1875, article 4, section 7, paragraph 6; N. J. S. A. 4:7-6, provides as follows:

“The fund for the support of free schools and all money, stock and other property, which may hereafter be appropriated for that purpose, or received into the treasury under the provision of any law heretofore passed to augment the said fund, shall be securely invested, and remain a perpetual fund; and the income thereof, except so much as it may be judged expedient to apply to an increase of capital, shall be annually appropriated to the support of public free schools, for the equal benefit of all the people of the state, * * *.”

At the time of the execution of the lease (December 24th, 1913) and of the defaults thereunder and at the present time, all lands belonging to this state now or formerly lying under water were appropriated for the support of public schools, and moneys received from the sale and income from leases thereof became part of the permanent trust school fund. R. S. 18:10-5 and 6; N. J. S. A. 18:10-5 and 6. The predecessors of said act are Pamph. L. 1903 2d Sp. Sess., ch. 1, art. 168 and 169, and the act of 1894, page 123. Eeference to the latter is had in the opinion of Mr. Justice Swayze, in the ease of Attorney-General v. Sooy Oyster Co., 78 N. J. L. 394 (at p. 437); 75 Atl. Rep. 211, 228, as follows:

“The act of 1869 creating the riparian commission appropriated such income, first to the administrative purposes of the commission, then to the payment of the state debt, and finally to the trustees for the maintenance of free schools. Pamph. L. 1869, p. 1017. The act of 1871 devoted such receipts to the support of free schools. Pamph. L. 1871, p. 98. The act of 1890 devoted them to the necessary expenses of the state (Pamph. L. 1890, p. 92) and the act of 1894 finally appropriated them to the support of free public schools. * * * Of course, under the constitutional provision upon this subject, the revenue now in hand, whether derived from this or any other source, cannot be diverted to other uses; $ $ íjc

Plaintiff relies upon the case of Jersey City v. Hall (Court of Errors and Appeals, 1910), 79 N. J. L. 559; 76 Atl. Rep. 1058. In this case a similar section in an older statute was invoked by the defendant in an action of ejectment instituted by public authority for the recovery of lands of the state covered by tidewater, and it was held therein not to be a bar. At page 567 of 79 N. J. L., at page 1060 of 76 Atl. Rep., the court said:

“The twentieth section of “An act for the limitation of actions” is invoked as a bar. Gen. Stat., p. 1978. It reads as follows:

“ ‘That no person or persons, bodies politic or corporate shall be sued or impleaded by the state of IsTew Jersey for any lands, tenements or hereditaments or for any rents, revenues, issues or profits thereof, but within twenty years after the right, title or causes of action to the same shall accrue, and not after.’

“This is an. old statute, passed originally in 1799 and has remained on the books without change to the present time. Whether, when the legislature enacted it, they had in contemplation lands under tidewaters, inasmuch as at that date it had not yet been settled that such lands were owned by the state, need not for present purposes be discussed as a basis for an argument that the act is inapplicable, a principle of construction hinted at in the opinion of Mr. Justice Reed in Green v. Trenton, 54 N. J. L. 92 (at p. 100) ; 23 Atl. Rep. 281. There were at that date lands held by the state under conveyances for the purposes of government and for its public institutions; lands acquired by foreclosure, and yet others that need not now be specified, which would be appropriately affected by this statute.”

In 54 Amer. Juris., art. 393 the rule is declared as follows:

“393. Against states in suits by them. The general principles as to the immunity of the Sovereign from laches and statutes of limitations which arose in England, have been applied in reference to the states of the American Union. Unless the statute provides to the contrary or unless the state is necessarily included by the nature of the mischiefs to be remedied, statutes of limitation do not apply to a state when suing in its sovereign capacity. Even though the suit is not brought in the state’s name a similar rule prevails if the action is for the sole benefit of the state. * * *

“The state may, of course, make such regulations as to limitations as it sees fit. By statute, in some states, it is provided that limitation laws shall apply to the state the same as to individuals. A law making the statute run against the state has been held, however, not to apply to property held in trust by the state and the conclusion has been reached that in such eases the state’s title cannot be lost by adverse possession.”

R. S. 2:24-15; N. J. S. A. 2:24-15, is not applicable. This defense is struck out.

Denial of State Ownership—The lessee cannot renounce the title or the right of the state to lease after having made application for and executed a lease. In Zabriskie v. Sullivan, (Supreme Court, 1910), 80 N. J. L. 673 (at p. 674); 77 Atl. Rep. 1075; affirmed (Court of Errors and Appeals, 1911), 82 N. J. L. 54.5; 81 Atl. Rep. 1135, it was held:

“* * * jj. jg no£ perceived how the defendant, after entering into a formal lease with the plaintiff under which he has continued in possession, all the while paying the rent reserved, can deny his landlord’s title. Howell v. Ashmore, 2 Zab. 261. This rule also estops the tenant from showing that the lease is imperfectly executed; it extends to a tenant holding over, is applicable to every species of tenancy including that at sufference, and may be invoked in an action of debt, assumpsit, covenant or ejectment. See Tayl. L. & T. (7th ed.) ¶¶ 705, et seq., where the rule is stated and the eases are collected.”

This defense is struck out.

The Fourth and Remaining Defense, (a) Set-off for value of forty acres of land in which it is alleged the defendant had an interest and which were taken by the Board of Commerce and Navigation, successor to the Riparian Commissioners, R. S. 12:2-l; N. J. S. A. 12 :2-l, without just compensation and without process of law. In the case of Empire Trust Co. v. Board of Commerce, &c. (1904), 124 N. J. L. 406 (at p. 409) ; 11 Atl. Rep. (2d) 752, 754, it was held:

“It is embedded in our jurisprudence that the state is not suable in its own courts without its consent, and that a suit brought against a state agency is, in fact a suit against the state if the judgment sought would operate to control the action of the state or subject it to liability. This immunity is an attribute of sovereignty. Strobel Steel Construction Co. v. State Highway Commissioner, 120 N. J. L. 298; 198 Atl. Rep. 774. In that case our court of last resort rules that the State Highway Commissioner is an “alter ego of the state” and that the provisions of the statute creating the office and defining the incumbent’s powers and duties do not reveal a legislative purpose to waive this sovereign right of exemption to suit as regards that state agency; and we are not cited to any statutory provision that places the State Board of Commerce and Navigation in a different category. We find nothing in the act delineating the authority of this agency that betokens an intent to waive the state’s immunity from suit and to expose it to the judicial process. R. S. 1937, 12:1—1, et seq.; N. J. S. A. 12:1—1, et seq. See Federal Housing Administration Region No. 4. v. Burr, 309 U. S. 242; 60 S. Ct. 488; 84 L. Ed. 724.”

The remedy, if proper, may be found in R. S. 12:3-64; N. J. S. A. 12:3-64, and in timely compulsion to action by the state by mandamus proceedings. The defendant further relies in support of this defense upon the decision in Penrose v. Absecon Land Co. (Court of Errors and Appeals, 1922), 94 N. J. Eq. 436; 120 Atl. Rep. 207. Assuming that the land in the litigation referred to in said opinion is the land referred to in the attempted counter-claim, it is to be noted the decision was adverse to this defendant.

This defense and counter-claim struck out.

(b) Refund for alleged payment of municipal taxes upon lands within the confines of the riparian lease made under assessment by the municipality upon the riparian owner. If true, the relief was not by this method but rather by proper and timely review of the municipal assessment.

This defense and counter-claim is struck out.

Conclusion. Rule may be presented in accordance with these conclusions. Since this is a Supreme Court issue, as Supreme Court Commissioner no power exists to make an order for summary judgment. Supreme Court rule 84; N. J. S. A. tit. 2. National Surety Co. v. Mulligan (Court of Errors and Appeals, 1928), 105 N. J. L. 336 (at p. 338); 146 Atl. Rep. 372; Milberg v. Keuthe (Court of Errors and Appeals, 1923), 98 N. J. L. 779; 121 Atl. Rep. 713. There is to be included in the aforesaid rule, a recommendation pursuant to the practice referred to in Levine v. Aetna Casualty and Surety Co. (Supreme Court), 8 N. J. Mis. R. 156 (at p. 159); 149 Atl. Rep. 762, and Bolton v. Bolton (Supreme Court, 1914), 86 N. J. L. 69 (at p. 73); 89 Atl. Rep. 1014, that judgment be entered for the plaintiff against the defendant in the principal sum as follows:

1. In the principal sum of $115.50 which became due on June 24th, 1921.

In the principal sum of $115.50 which became due on December 24th, 1921.

In the principal sum of $115.50 which became due on June' 24th, 1922.

In the principal sum of $115.50 which became due on December 24th, 1922.

In the principal sum of $115.50 which became due on June 24th, 1923.

Or a total principal sum of $577.50.

2. With interest on said sums as follows:

On the sum of $115.50 from June 24th, 1921, to date of judgment.

On the sum of $115.50 from December 24th, 1921, to date of judgment.

On the sum of $115.50 from June 24th, 1922, to date of judgment.

On the sum of $115.50 from December 24th, .1922, to date of judgment.

On the sum of $115.50 from June 24th, 1923, to date of judgment, together with costs of suit.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALFRED SIMONE, PETITIONER, v. ATLANTIC COMMISSION CO., RESPONDENT.
    Decided March 15, 1945.
    For the petitioner, Harold Krieger.

    For the respondent, Edwards, Smith & Dawson (by George Echelman).

   The case was partially tried on January 15th, 1945, and at that time continued to February 5th, 1945, at which time the remainder of petitioner’s case was presented and at the conclusion of the petitioner’s case, the respondent’s motion for ruling as a matter of law was made, considered and passed on by the court.

The substance of the pertinent portion of petitioner’s testimony was that he was in the respondent’s employ on July 18th, 1939, or 1940, and while so employed handling tomatoes he felt a pain in his left biceps muscle of which he informed his foreman the following day and following which he was treated by Dr. Anthony J. Watman on a number of occasions. Thereafter he was examined by Dr. H. Y. Spaulding on September 5th, 1940. It appears that nothing further was done in the matter and no petition for compensation was filed until October 9th, 1943, which petition requests compensation by reason of the alleged 1939 accident.

Petitioner testified as is herein summarized and as to his present complaints; also that on June 1st, 1943, he was sent by the respondent’s compensation insurance carrier to Dr. Spaulding. On behalf of the petitioner it is contended he was sent to Dr. Spaulding and Dr. Spaulding in fact treated petitioner while on behalf of the respondent it is contended that petitioner was sent to Dr. Spaulding only for the purpose of examination. The respondent’s compensation carrier did pay Dr. Spaulding for the June, 1943, visit and made that payment on June 10th, 1943.

On behalf of petitioner, medical evidence was presented by Dr. Joseph Koppel, the substance of which was that petitioner has a permanent disability of from 20% to 25% of the aim as the result of the alleged accident.

At the conclusion of petitioner’s ease, the respondent, in the form of a motion for nonsuit, through its counsel made a motion for a ruling as a matter of law that petitioner had failed to establish a prima facie case within the jurisdiction of the 'Workmen’s Compensation Bureau. It was the respondent’s position that the petitioner’s right to compensation expired two years after the date of the last treatment so that even if the visit to Dr. Spaulding on September 5th, 1940, was treatment rattier than examination, that the right to file the petition expired two years after that date, that it was immaterial whether the June 1st, 1943, visit was for treatment or examination. The respondent further contended that if it was material whether the June 1st, 1943, visit was for examination or treatment that the petitioner had failed to establish a prima facie case of authorized treatment on June 1st, 1943.

After having heard the argument of counsel for petitioner and considering the entire matter including the statutes involved and the statements of petitioner, I am of the opinion and rule that petitioner has failed to make out a prima facie case of jurisdiction and petitioner has failed to establish that his right of action was revived. The substance of R. S. 34:15-41; N. J. S. A. 34:15-41 and R. S. 34:15-51; N. J. S. A. 34:15-51 is to require an injured employee to file a petition within two years after an accident or last payment of compensation; furnishing of treatment has been interpreted in the Betsy Ross Ice Cream Co. v. Greif case, 127 N. J. L. 323; 22 Atl. Rep. (2d) 571, as a payment of compensation. bio compensation in money was paid in the present case. Under the Betsy Ross v. Greif case, petitioner haying been furnished treatment up to September 5th, 1940, assuming that the visit to Dr. Spaulding was treatment rather than examination, his right to file a petition was thereby extended for a period of two years or until September 6th, 1942. Petitioner having failed to file a petition within said extended two year period, his right to do so expired and the Workmen’s Compensation Bureau is without jurisdiction to further entertain the claim.

In accordance with the foregoing ruling as is more fully set forth in the stenographic record of the court’s oral determination made at the conclusion of the case, respondent’s motion is granted and the petitioner’s claim is hereby non-suited.

Charles E. Corbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GENERAL SKIPPER, PETITIONER, v. BAY RIDGE OPERATING CO., RESPONDENT. ARTHUR CLARK, PETITIONER, v. BAY RIDGE OPERATING CO., RESPONDENT.
    Decided June 28, 1944.
    For the petitioner, Fox & Krieger {David B. Schackner, appearing).
    For the respondent, Milton, McNulty & Augelli {Lawrence A. Whipple, appearing).
   Respondent conducted a stevedoring business. On October 2d, 1943, and for sometime prior and subsequent to that date, it was engaged in such activities at the Tide Water Terminal, situate at Port Newark, Newark, New Jersey. The entire terminal at the time of the accident hereinafter set forth, was under the jurisdiction of the United States Army. It is completely fenced in and bounded on the northerly side by Port Street, and on the southerly side by Newark Bay. In addition to respondent, there were a number of other companies engaged in business within the terminal.

The- only means of ingress and egress to the point where the petitioner was performing his duties for respondent, was a gate approximately one-half mile away, at the northerly end of the terminal, immediately adjoining Port Street. This gate was continually guarded and admission could only be gained to the terminal by exhibiting a pass from the Provost Marshall’s Department of the United States Army. Within the gat§ and leading from it, there was a road approximately twenty feet wide, leading to a point near where the petitioner was required to perform his work. This road was the one and only means by which persons employed by the respondent could reach their place of employment. The road was used not only by employees of the respondent, but in common -with employees of the other employers within the terminal. It was not open to the public, and admission could only be gained as above indicated, by the display of a pass. The road was intersected by the lines of several railroad companies. At the most northerly end, it was intersected by three sets of tracks belonging to the Pennsylvania Railroad Co.

On October Sd, 1943, and for sometime prior to that date, petitioner was in the employ of respondent, earning a weekly salary in excess of $30. He had started work at about 8 a. m. that morning. At about 6 p. m., he was informed that it would be necessary for him to work overtime that evening. There were no facilities within the terminal where petitioner could get his supper, and he was told by his immediate superior to go out and get his supper, being permitted one hour for that purpose.

Petitioner entered the motor vehicle of a co-employee, Arthur Clark, and was driven from the point where he was employed to the gate of egress. He had his supper at a point outside of the Tide Water Terminal and returned in the same vehicle. The gate leading from the terminal to Port Street! was opened upon his return by the guard, upon he and hiseo-employee showing their respective admittance passes, as; well as the vehicle pass. The vehicle proceeded along the-road hereinabove referred to, and as it reached the intersecting, tracks of the railroad company, a distance of approximately seventy feet from the gate, it was struck by a freight train, of the Pennsylvania Eailroad Company, and petitioner suffered personal injuries.

The risk entailed in the crossing of the railroad tracks by the petitioner, was a risk which was clearly an incident of the employment and one that was also foreseeable. The location of the point where petitioner performed his work for respondent, made not only the customary but the only way of ingress and egress, one frought with the very danger that overtook the petitioner on the day in question. An employer is liable for injuries caused by accidents arising from or growing out of risks peculiar to the nature of the work within the scope of the employment or incidental thereto, and accidents to which employees are exposed in a special degree because of employment.

I do find, therefore, that the petitioner in this case suffered an injury by accident, arising out of and in the course of his employment within the meaning of our Workmen’s Compensation Act, of which respondent had due and timely knowledge.

Petitioner was temporarily disabled from October 2d, 1943, the date of the accident, to March 13th, 1944, a period of 23 2/7 weeks. He is accordingly entitled to payment of temporary compensation for that period, which at his rate of $20 per week, amounts to $465.71. Petitioner was hospitalized at St. James’ Hospital for a period of one week immediately after the accident. The bill for hospital treatment is $91. He was treated at the hospital and subsequent to Ms discharge from the hospital, by Dr. Edward A. McVay, who presented a bill for $107. These bills for medical treatment and hospitalization shall be paid by the respondent, as hereinafter provided.

Dr. Max Kummel testified on behalf of petitioner, whom he examined on January 11th, 1944, and March 20th, 1944. He was of the opinion that petitioner had sustained 33 1/3 per cent, partial permanent disability of the left leg, as well as 7% per cent, total permanent disability for the injury to the left side, particularly in the region of the chest.

On behalf of the respondent, Dr. Edward A. McVay’s report, dated June 7th, 1944, was offered in evidence by stipulation of counsel. The doctor’s findings were substantially in accord with those of Dr. Max Kummel, but he was of the opinion that petitioner had sustained 20%-25% partial permanent disability of the left leg, and 2%%-3% total permanent disability for the injury to his left side, particularly in the region of the chest.

After considering the testimony, I find and determine and do hereby order and adjudge that as a result of said accident, petitioner sustained 17%% total permanent disability, amounting to 87% weeks, which at said compensation rate of $20 per week, totals $1,750, all of which together with the following allowances, shall be paid in accordance with the Compensation Law of this state.

# # ífe sj: $

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

Haeey S. Medinets,

Deputy Commissioner.