text:
    JESSE LOBSENZ, PLAINTIFF-APPELLEE, v. CENTRAL MARKET COMPANY, A NEW JERSEY CORPORATION, AND GEORGE SABO AND ANDREW LENGLE, DEFENDANTS-APPELLANTS.
    Argued October 2, 1935
    Decided November 1, 1935.
    Before Justices Tren car ard, Heheb and Pebskie.
    Por the appellants, Aaron Heller.

    Por the appellee, Benjamin Spitz.

   Per Curiam.

This is the defendants’ appeal from a judgment of the District Court directed by the trial judge in favor of the plaintiff.

It appears that the agreed state of the case discloses the following matters of fact: The defendants, by written lease, rented from the plaintiff a store in the premises of the plaintiff. After the execution of the lease the defendants insisted that the plaintiff was obliged to furnish water for the defendants in the store which they were using as a butcher shop, and were proceeding to take this water through the medium of plaintiff’s meter against the objection of the plaintiff who threatened to shut off the water. The parties then met, with their attorneys. The defendants’ attorney, desiring to avoid a cash deposit by his clients required for a separate meter, asked that plaintiff install a separate meter, and it was stipulated that a separate meter be installed in the name of the plaintiff and for the nse of the defendants, and that, after the lease had expired, and the cost of the water determined, the plaintiff should then institute suit to determine whether the landlord or the tenant was under legal obligation to supply the water, and if plaintiff’s contention prevailed he was to be reimbursed. Accordingly this suit brought up the stipulated question. From the judgment therein in favor of the plaintiff the defendants appeal.

The defendants say that the court erred in overruling certain questions put by defendants’ counsel.

These questions are all to substantially the same effect, and manifestly only one of them requires examination. That question was: “Isn’t it a fact that the understanding between the parties was that the plaintiff was to supply the water?” How the state of the case discloses that, upon plaintiff’s objection, “Mr. Aaron Heller [attorney for defendants] stated that the purpose of this question was to show that at the time the lease was signed there was an oral arrangement that the water bills were to be paid by the landlord.” The court stated that any contemporaneous or prior statements were inadmissible as varying the terms of a written contract, and he overruled the question.

We think that was right, in the absence of any claim of fraud (and no such claim was stated or made at the trial), and when, as here, the lease in question was in usual form, was complete on its face, and was silent with respect to the supplying of water. Drischman v. McManemin, 68 N. J. L. 337; 53 Atl. Rep. 548; Kistler v. McBride, 65 N. J. L. 553; 48 Atl. Rep. 558; Childs v. South Jersey Amusement Co., 95 N. J. Eq. 207; 122 Atl. Rep. 803; Wills v. Camden Lime Co., 104 N. J. L. 428; 140 Atl. Rep. 310.

In the Drischman case it was held that recovery cannot be had for failure to furnish articles not specified in the lease, although agreed to be furnished in conversations had prior to the execution and delivery of the lease.

In the Wills case it was held that parol evidence of contemporaneous or prior understandings or negotiations cannot be introduced to supersede, contradict or vary valid written contracts.

It is to be noted that, not only was no fraud suggested in the court below, but it also appears that the lease was drawn and witnessed by, and acknowledged before, the attorney of the defendants.

It will be observed that the contention of the defendants in the court below was that under the lease the landlord was legally bound to supply water to the tenant, and such contention was made the basis of defendants' motion for a direction of a verdict. We think that motion was properly denied, there being no such requirement in the lease. The rule is that in the absence of a covenant to that effect in the lease, a landlord is not liable to his tenant to pay for water used by the tenant upon the demised premises. Sturm v. Huck, 77 N. J. L. 59; 71 Atl. Rep. 44; Spatz v. Berkwich, 86 N. J. L. 34; 90 Atl. Rep. 1051.

The foregoing observations in effect dispose of every question raised and argued.

The judgment below will be affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Beatrice S. Shapiro, petitioner, v. Isidore Shapiro, defendant.
    [Decided May 22d, 1935.]

      Mr. Henry S. Waldman, for the petitioner.

      Mr. Samuel P. Bernhaui and Mr. Perry Belfatto, for the defendant.
   Conclusions of Francis Child, advisory master.

This is a motion by the defendant to strike the petition for divorce and set aside the citation issued thereon, on the ground that the parties are not husband and wife because of the fact that the defendant husband procured a decree of divorce from the petitioner in the State of Nevada on October 27 th, 1930.

The parties were married in the State of New York on September 8th, 1929, and lived together in that state until February 27th, 1930, when they separated. On July 15th, 1930, the defendant left the State of New York for the State of Nevada, where he procured his decree for divorce.

It does not appear that there was any written or other appearance entered by the present petitioner in the suit instituted against her in the State of Nevada, neither was there any service of process upon her within the State of Nevada.

It is charged and not denied that after obtaining a decree for divorce in Nevada the defendant came almost immediately to the State of New Jersey, where he has since resided.

The petitioner sets out the statement in her petition for divorce that the defendant had procured his decree of divorce in the State of Nevada, and that the decree of divorce obtained by him in that state was obtained by fraud perpetrated upon the courts of the State of Nevada. This allegation is proper under the practice set out in Feickert v. Feickert, 98 N. J. Eq. 444; 131 Atl. Rep. 576.

The defendant in support of his motion to strike the petition contends that this court has no 'jurisdiction to revieiv or set aside the decree of divorce obtained by the defendant in the State of Nevada, because the fraud, if there was any, was not committed upon the courts of this state, neither party being a resident of this state at the time of the entry of the Nevada decree.

The motion to strike has been substituted for a demurrer, and upon such a motion all of the well pleaded facts of the petition are assumed to be true for the purposes of motion. It is the court’s duty to determine whether upon the facts stated in the petition, the petitioner shows a legal cause of action, and if such legal cause of action is shown, and the court lias jurisdiction over the subject-matter, and over the parties, the motion must be denied.

Following the rule above referred to, namely, that all of the facts set out in the petition against which this motion is addressed are true, the defendant, for the purposes of this motion, admits that he went to Nevada to procure a divorce, and that in procuring the same he perpetrated fraud upon the courts of that state.

The position of the defendant is that even admitting the fact that he has committed a fraud, that the courts of this state are without jurisdicion because of the fact that when the alleged fraud was committed, neither party was a resident of this state. lie relies upon the case of Floyd v. Floyd, 95 N. J. Eq. 661; 124 Atl. Rep. 525, in which case the husband filed a bill of complaint, seeking to set aside a decree' of divorce obtained by his wife in the- courts of Nevada, when neither the husband nor the wife was a resident of the State of New Jersey at the time the Nevada decree was entered. In the Floyd Case, supra, the court of errors and appeals directed that the bill of complaint filed by the husband be dismissed, one of the reasons being that the courts of this state will not exercise indirectly or in any other way appellate jurisdiction over the decisions or judgments of a sister state.

The Floyd Case, however, in my opinion does not sustain the position taken by the defendant. At page 663, Mr. Justice Kalisch said:

“For it is quite plain what the complainant seeks by his bill is a review of the validity of a judgment of a court of general jurisdiction of the State of Nevada by our court of chancery, in a direct proceeding instituted for that special purpose. But even if it be conceded that such a course of procedure was permissible, nevertheless, it is quite apparent that it is only available to one who has legal status, which the complainant obviously did not have, since the domicile of both hubsand and wife was in the State of Pennsylvania and there was no res in this state which could be properly dealt with by the court of chancery.”

The present case is similar to the case of Fried v. Fried, 99 N. J. Eq. 106; 132 Atl. Rep. 674 in which case an Illinois decree of divorce was attacked not directly, but because it was sought to be made the foundation of a defense. In this case Vice-Chancellor Buchanan (at p. 10S) said:

“It is immaterial that New Jersey was not the state of matrimonial domicile at the time of the separation of the parties or at the time of the Illinois decree. Being a personal action [maintenance] it must needs be brought in the state where the husband is located. The husband was served here and admittedly resides here and has appeared and defended generally.”

The present case is not, strictly speaking, an action in personam. It is an action in rem, as the petitioner is seeking a divorce.

The court admittedly has jurisdiction over the defendant. He is a resident of this state and was duly served.

In Freund v. Freund, 71 N. J. Eq. 524; 63 Atl. Rep. 756; affirmed, 72 N. J. Eq. 943; 73 Atl. Rep. 1117, the parties were domiciled in New York. The husband deserted his wife and came to New Jersey. The wife, while still a resident of New York, instituted a suit for maintenance against him, and was awarded a decree.

This court has jurisdiction over the main cause because the defendant is a resident of this state, and also has jurisdiction over the secondary question as to the validity of the Nevada decree, interposed as a defense, and may consider the validity of that decree as it did in Fried v. Fried, supra.

The decree of divorce held by the husband is not entitled to recognition under the full faith and credit clause of the federal constitution, because the foreign court had not jurisdiction over both of the parties, nor over the matrimonial domicile. Service of process upon the defendant within the confines of the state in which the decree is rendered is an essential requisite. Haddock v. Haddock, 201 U. S. 562.

The only exception to this requirement is that where the matrimonial domicile is in the state in which the decree has been entered, then jurisdiction may be had by a substituted service. Thompson v. Thompson, 226 U. S. 551; Watkinson v. Watkinson, 67 N. J. Eq. 142; 58 Atl. Rep. 384; reversed on other grounds, 68 N. J. Eq. 632.

Neither is this court bound by principles of comity to recognize the validity of the decree obtained by the defendant in the present case.

“It is a fundamental principle of general jurisprudence that a divorce can be granted only in the state wherein the status on which it operates, has a situs. And it is also entirely settled that the jurisdiction of the adjudging court, whether over the parties or the subject-matter, may be inquired into and determined by the court in which the judgment is sought to be enforced. Thompson v. Thompson, 89 N. J. Eq. 70 (at p. 76); 103 Atl. Rep. 856; Fairchild v. Fairchild, 53 N. J. Eq. 678; 34 Atl. Rep. 10; Magowan v. Magowan, 57 N. J. Eq. 322; 39 Atl. Rep. 364."

There is no reasonable distinction between the ease of a wife who attacks the validity of a foreign decree in a maintenanee suit, and a case in which she attacks the foreign decree interposed as a defense in a suit brought by her for absolute divorce.

To hold that the courts of this state have not, in a wife’s suit for divorce, the right to inquire into the validity of a decree for divorce, held by a husband, where such a decree is sought to be interposed by the husband as a defense, and where the decree held by the husband has been obtained in a state in which the parties have never had a matrimonial domicile, and where there had been no personal service within the state, or appearance by attorney or otherwise, would be so manifestly unjust that such a proposition is inconceivable. Such a holding would encourage those who obtain fraudulent foreign decrees to seek this state as a haven of refuge.

It may well be that the defendant in this case may be able to show, at the trial, such circumstances as may cause this court to recognize the binding effect of the Nevada decree, but he is not entitled in limine to strike the petition for divorce filed by the petitioner, and is not entitled to have the service of process set aside.

The application to strike out the petition and set aside the service of the citation will be denied.


author: Lloyd, J.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ALBERT H. MARPLE, PLAINTIFF IN ERROR.
    Argued October 1, 1935
    Decided November 2, 1935.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    Lor the plaintiff in error, Francis J. Smith.

    Lor the defendant in error, Samuel P. Orlando.

   Lloyd, J.

Albert H. Marple, plaintiff in error, was indicted for embezzlement of funds in his hands as executor. At the trial the proofs consisted of a stipulation between counsel, from which it appeared that one Daniel Carlin left a will in which he designated Marple as executor and trustee of his estate; that Carlin died in 1909, and that Marple proved the will and entered upon the duties of his office; that Marple filed his account in March, 1934, and that this account showed a balance of $2,588.09; that demand was made for this sum by counsel for the beneficiaries of the estate to whom the balance was due and the demand refused. It was further stipulated that Marple converted all of these moneys to his own use in the years 1926, 1927 and 1928, and that no moneys of the estate came into his hands thereafter.

The indictment was under section 177 of the Crimes act (2 Comp. Stat., p. 1797), which provides that "any person who, acting as executor, administrator, assignee, trustee or guardian appointed by any will * * * shall willfully or fraudulently convert to his own use * * * or shall fraudulently -withhold, any moneys, goods, property, &c., * * * whatever belonging to the estate or persons for whose benefit or in whose behalf such executor * * * . may have been appointed,” shall be guilty of a misdemeanor.

Marple, though pleading the statute of limitations, was convicted and sentenced to imprisonment. The question is whether this conviction can be sustained.

It is contended by the state that the statute of limitations runs on the embezzlement from the time of demand, but the statute does not make that date the criterion. The test is whether the offense was committed within the two years preceding the finding of the indictment. The stipulation clearly establishes that it was not. Whatever of value there might have been in the filing of the account setting forth a balance as proving that the moneys were then intact, this implication is nullified by the stipulation that it was converted to his own use during the years named.

It will be noted that there are two offenses clearly enacted in the section: one of embezzlement, and the other of withholding the funds from those to whom they may be due, the legislation defining independent wrongs. It was an offense to misappropriate the funds; it was equally an offense to withhold them from, the persons entitled to receive them when demand was made. The indictment was for embezzlement alone, and not for withholding as it might have been. It appearing conclusively that the misuse of the moneys was anterior to the two years immediately preceding the finding of the indictment, the pleading of the statute of limitations constituted a bar to further proceedings on that charge, but this would not seem to preclude further indictment for the later offense of withholding.

The judgment is reversed.


author: Porter, S. C. C.

text:
    GEORGE W. EGBERT, SUCCESSOR TO GEORGE A. BRODERICK, SUPERINTENDENT OF BANKS, STATE OF NEW YORK, PLAINTIFF, v. BENJAMIN ABRAMS ET AL., DEFENDANTS.
    Decided October 3, 1935.
    For the plaintiff, McDermott, Enright & Carpenter (by Carl 8. Kuebler).

    For the defendant Samuel Baff, David Smith.

    For the defendants Bernard J. O’Brien, James A. O’Brien, Joseph J. Weinberger and Sarah W. Weinberger, Weinberger <& Weinberger (by Joseph J. Weinberger).

    For the defendants John IT. Kirk and Alcibiades C. Psiaki, Thomas 8. Doughty.

    For the defendants Joseph Okin and Hugo Aderer, Harder .cf Olein (by Aaron Harder).

    For the defendant Elsie Lissner, Harold Farlcas.

   Porter, S. C. C.

The motion in the above matter is to strike answers of certain defendants and demands for bills of particulars of certain other defendants. The suit is brought by the superintendent of banks of the State of New York against some five hundred and fifty-seven New Jersey stockholders of the Bank of the United States, a New York corporation, to recover assessments made against them by the said plaintiff made by him in pursuance with the authority vested in him under the statute of New York.

The Supreme Court of this state granted a motion to strike the complaint in pursuance with the provisions of section 94B of the Corporation act, holding that the above act was a bar to an action at law in this state against the stockholders of a New York corporation. Broderick v. Abrams, 112 N. J. L. 309; 170 Atl. Rep. 214. This decision was affirmed by the Court of Errors and Appeals (113 N. J. L. 305; 174 Atl. Rep. 507) on the opinion of Mr. Justice Parker below.

The matter was taken to the Supreme Court of the United States where it was held (Broderick v. Rosner, 55 Sup. Ct. Rep. 1656), in an opinion by Mr. Justice Brandéis, that the provision of the Corporation act of this state above stated was invalid because it violated the full faith and credit clause of the federal constitution.

The answers under consideration set up various defenses under the Corporation act which have been disposed of by Broderick v. Rosner, supra. The remaining defenses relied upon are generally attacking the action of the banking superintendent in making the assessment, denying his having any power or jurisdiction over these, defendants not resident in New York and not being parties to the proceedings in that state. Affirmative defenses are that there was no occasion for the assessments because the bank was in fact solvent.

Section 80 of the New York Banking law provides that after the superintendent "* * * has determined from his examination of its affairs that the reasonable value of the assets of such corporation is not sufficient to pay its creditors in full, he may enforce individual liability of such stockholders.” Further provisions provide that, after he has so determined, he shall file a certificate making an assessment and making a demand on the stockholders, and further provides that, in the event of such stockholders failing to pay the assessments, "the superintendent shall have a cause of action in his own name as superintendent of banks against such stockholder either severally or jointly with other stockholders of such corporation for the amount of such unpaid assessment or assessments, together with interest thereon from the date when such assessment was, by the terms of said notice, due and payable.”

In Broderick v. Adamson, 148 N. Y. Misc. 353; 265 N. Y. Supp. 804, an action was brought by the superintendent of banks against the stockholders of the bank of the United States, resident in blew York, in which case the solvency of the bank was inquired into. Evidence of the value of the assets was offered on behalf of the defendants for the purpose of contradicting the determination of the superintendent that the assessment was necessary. An independent audit, it develops, was made by the said defendants of the assets of the bank for that purpose. Mr. Justice Lydon in that case held that the certificate of the superintendent issued in pursuance with the statute was “in the absence of a showing of fraud, illegality, bad faith, or obvious error” conclusive evidence of the facts therein stated. He further said, “that there is neither logic nor reason in the principle that the certificate of the superintendent may be overthrown upon the basis of mere difference of opinion between the superintendent and the experts and witnesses of the defendant in relation to reasonable values. The determination of the superintendent is essentially and peculiarly an administrative act raised upon the exercise of sound business judgment and discretion.”

“If not infected with bad faith or obvious error or violative of any fixed legal principle, it should not be subject to attack upon the theory that the preponderance of evidence, in the opinion of the triors of the facts, indicates that the values as fixed by the superintendent are merely erroneous. Liquidation presupposes the prompt and speedy conversion of assets to cash in the interest of creditors and the right- to enforce and collect the assessment should not be subject to defeat by the mere balancing of the opposing opinions and views of expert witnesses upon the questions of reasonable values. If it should ultimately appear that the assessment was unnecessary, in whole or in part, the stockholders are entitled to share in any remaining surplus. As between the stockholder and the creditor, it is the convenience of the latter that is preferred by the courts.” See, also, Broderick v. Aaron, 151 Misc. 516; 272 N. Y. Supp. 219.

This theory of the law was affirmed by the United States Circuit Court of Appeals in Broderick v. American General Corp. et al., 71 Fed. Rep. (2d) 864.

The plaintiff cites as analogous a long line of decisions holding, in the case of the United States national banks, that the action of the comptroller of the currency in closing banks is conclusive, except there be fraud and so forth shown. The only decision cited contrary to the above by the defendants in the case at bar is the case of Broderick v. McGuire, 119 Conn. 83. The better rule seems to be contrary to the last case, which, therefore, should not be followed.

The question of the effect of the superintendent of banking in making the assessment was discussed but not decided in Broderick v. Rosnen supra. Prom a reading of that decision it seems clear, however, that the ruling, were that question an issue, would be that the action of the superintendent was effective and conclusive except for fraud, bad faith, &c. As to the superintendent having jurisdiction, this pertinent language was used in the said case:

“In respect to the determination of liability for an assess-, ment, the New Jersey stockholders submitted themselves to the jurisdiction of New York, for 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 domicile, membership looks to a member governed by the state granting the incorporation.”

It seems to me that the only defenses, therefore, that might properly be set up in this suit are such personal defenses as not being the owners of the stock in question, and fraud, bad faith, &c., on the part of the superintendent of banking. In none of the answers before me are there any such defenses.

In view of these conclusions, I am of the opinion that the answers do not interpose any valid defenses and should be struck. The demands for particulars are improper and will be struck, not being material in view of these findings.


author: Bkown, C. C. J.

text:
    Hudson County Circuit Court.
    PETER FRANCILLO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CARMELLA FRANCILLO, DECEASED, PLAINTIFF, v. ALFRED LATOUR AND NEW SUPERIOR LAUNDRY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Decided November 20, 1935.
    For the plaintiff, Nathan Baker.

    For the defendants, McCarter <& English (by Richard J. Congleion).

   Bkown, C. C. J.

This case is before the court on a rule to show cause obtained by the plaintiff to set aside the verdict of a jury on the ground that the clerk of the court failed to poll the jury when they returned their verdict. The case was brought under the Death act to recover for pecuniary injuries alleged to have been caused through the negligence of the defendants in the operation of an automobile. The case was tried before a jury and their verdict of “no cause of action” was returned without the presence of the trial judge. The court remaining open for the purpose of the verdict being taken by the clerk. There appears no disputed question of fact as to what occurred when the jury returned with their verdict. A reference to the depositions taken and used on the argument of the rule discloses that Frank Romano was the attorney of record in the above entitled cause as well as a case that was immediately tried thereafter. Mr. Romano, though attorney of record in both cases, did not act as trial attorney in the Francillo case but delegated that duty to Nathan Baker. Mr. Romano did act as trial attorney in the case tried immediately after the Francillo case. The jury retired to deliberate in the Francillo case and while they were thus deliberating the trial in the case following was finished and the jury in that case retired to consider their verdict. On leaving the bench at the end of the day the trial judge authorized and directed the clerk to take the verdicts in both cases. The jury in the Francillo case was the first to return with a verdict and the clerk addressed the jury, “gentlemen of the jury have you agreed upon your verdict?” and they replied they had. The clerk then said, “what say you, Mr. Foreman?” who replied, “we find a verdict, no cause of action.” The clerk thereupon read back the verdict to the jury by saying, “gentlemen of the jury, you say you find a verdict of no cause of action, and so say you all,” and all the jurors replied in the affirmative. Mr. Romano, in the absence of the trial attorney, Nathan Baker, requested the clerk to poll the jury. The clerk ignored the request and he stated in his deposition that he thought Mr. Romano had mistaken the jury in the Francillo case for the jury in the case in which Mr. Romano acted as trial attorney and which jury was at the time deliberating. The request to poll was made to the clerk when the foreman announced the verdict and before the clerk read the verdict back to the jury. There does not appear any decision in the reported cases of New Jersey deciding the precise question presented on the rule in this case. In the case of Silak v. Hudson and Manhattan Railroad Co., 114 N. J. L. 428; 176 Atl. Rep. 674, the court said, “we shall assume that a party in a civil cause is entitled to have the jury polled on the return of the verdict.” The ground of the. objection in the Silak case was that the clerk polled the jury incorrectly. In Levine v. Goldstein, 5 N. J. Mis. R. 841; 138 Atl. Rep. 511, it was held that refusal by a clerk to poll a jury was not error where there was nothing to show that a request had been made. In discussing the question of taking a verdict, the late Chief Justice Gummere in the opinion for the court in Folkner v. Hopkins, 100 N. J. L. 189 (at p. 191); 126 Atl. Rep. 633, stated, “at common law a verdict could only be rendered in the presence of the court—that is, in the presence of the judge or judges before whom the trial was had. Davis v. Township of Delaware, 41 N. J. L. 57. This rule oí the common law has been modified by section 160 oí our Practice act (3 Comp. Stat., p. 4103, § 160), which provides that after the jury have gone from the bar to consider their verdict “the court may direct that the verdict be taken by the clerk in open court in the absence of the judge, and may order that the court remain open for that purpose.” The power of the clerk under the conditions named is strictly limited by the statute, and that is to take such verdict as the jury shall render, without regard to whether or not it is in accordance with the instructions delivered to that body by the court, and without regard to whether or not the finding can be legally justified. He is not vested by the statute with any judicial power, nor does the order of the court directing him to take the verdict attempt to confer such power upon him.” In Sockolowski v. Olkowski, 102 N. J. L. 50; 130 Atl. Rep. 514, it is in part stated, “it should be unnecessary to call attention to the fundamental fact that the clerk of a court is at common law a ministerial and not a judicial officer. As such ministerial officer, it was his duty to take the verdict of a jury, but at common law only in the presence of the judge, or to put it in another way, in open court * * *. One important reason for this is that if there be irregularity or inconsistency, or other infirmity in the verdict which is subject to correction, this may be done under the direction of the court itself * * *. There is only one sound rule of conduct for a clerk in a case where he is deputized to take a verdict and some complication has arisen; to receive the verdict as rendered, no matter how wrong it may appear, and let it go at that. As we said in Folkner v. Hopkins, supra, “it is no concern of his officially, whether the verdict can be upheld or whether or not judgment can be entered upon it.” In criminal cases by statute (2 Comp. Stat. 1844, § 74a) it is provided, “* * * and on request of the defendant or his counsel or the state the jury may be polled by the clerk or his said representative and the verdict taken as though in open court before the judge or judges.” The statute empowering a clerk to take a verdict in the absence of the trial judge in civil cases does not authorize the clerk to poll the jury upon request as in criminal cases. In civil cases the statute (3 Comp. Stat., p. 4103, § 160) provides in part, “* * * and the court may direct that the verdict be taken by the clerk in open court in the absence of the judge and may order that the court remain open for that purpose.” The right to have a jury polled is not uniformly established in the courts of the United States and there is a question whether it was a right at common law but rather a matter resting in the discretion of the trial judge. The clerk of the court was without authority to poll the jury in civil cases. In Grah. & W. New Tr. (1855 ed.) in the note on page 1409, it is stated that “the practice of permitting a jury to be polled, is not uniform throughout the states. That the jury may be-polled, see the following cases: State v. Allen, 1 M'Cord 525; Martin v. Maverick, Id. 24; Nomaque v. People, 1 Bresse 111; Jackson v. Hawks, 2 Wend. 619; State v. Hardin, 1 Bailey 3; Sargent v. State, 11 Ohio 472. The court does not permit the jury to be polled in Massachusetts, either in civil or criminal cases. Ropps v. Barker, 4 Pick. 239; Commonwealth v. Roby, 12 Id. 496; so in Maine, Fellowe’s Case, 5 Greenl. 333; (1) 3 Blk. Comm. 377.” The citation of Blackstone’s Commentaries is evidently an error as a reference to that authority does not support the proposition stated. After a careful research of common law authorities the most direct reference to the subject of polling a jury was found in the History of the Pleas of the Crown, by Sir Matthew Hale, Knt., first American editor by Stokes and Ingersoll, 1847, volume 2, page 299, wherein it is stated, “now touching the giving up of their verdict, if the jury say they are agreed, the court may examine them by poll, and if in truth they are not agreed, they are finable.” It is evident at common law the clerk of the court had no right to poll a jury, it was a matter of discretion vested in the trial judge. At common law a verdict could only be rendered in the presence of the court. Folkner v. Hopkins, 100 N. J. L. (at p. 191); 126 Atl. Rep. 633. In Corp. Jur. (at p. 1059), it is stated that the judge may, on request of either party, allow the jury to be polled, whether the verdict is sealed or declared by the foreman, or whether it is special or general, and in these jurisdictions a refusal by the court to poll the jury on request is error, although the denial of the right has been held not to render the verdict a nullity. 174 U. S. 190. In other jurisdictions it is discretionary with the court whether it will poll the jury; but if there is a good reason a request by either party to test the unanimity of the jury by a poll should be allowed. In 27 R. C. L. 838, there appears the statement that the authorities are not agreed as to the unqualified right of the parties to poll the jury. In criminal cases it would seem that the right is generally recognized, and in many jurisdictions the right is extended to civil as well as criminal cases. To the same effect is the Encyclopedia of Pleading and Practice, vol. 22, p. 933, wherein it is stated, “the authorities are not agreed whether the practice of polling a jury is matter of right of the parties to the litigation or whether it is discretionary with the trial court. The weight of authority is probably to the effect that in civil causes the court may, or may not, as it deems to be necessary or desirable, permit the jury to be polled on request of either party, while in criminal cases the defendant may demand a poll as a matter of right.” In Doyle v. United States, 11 Bliss. 100; 10 Fed. Rep. 269, it was held that the absolute right of either party to poll a jury did not exist at common law; but the exercise of the right was left to the sound discretion of the trial judge. It may be reasonably concluded from the above citations that at common law the judge in his discretion may allow the jury to be polled. In some jurisdictions in the United States the polling of the jury is a matter of right both in civil and criminal cases. In others it is a matter of discretion in all cases and still in others it is a matter of right in criminal cases but not in civil. In this state the practice has prevailed quite uniformly, in civil eases upon request, for the trial judge to allow the jury to be polled. Because of this practice it does not follow that a litigant has a right to a poll being taken by the clerk in the absence of the trial judge. The legislature has not authorized the clerk to do so in civil cases but has in criminal cases. The power of the clerk is strictly limited by the statute. Folkner v. Hopkins, supra. Tn the last mentioned case as well as the case of Sockalowski v. Olkowski, supra, it has clearly been decided to limit the clerk to the ministerial duty of taking the verdict as rendered and thereby avoid the confusion that often results when the clerk attempts to act in a judicial manner. In the instant case there is no claim made on behalf of the plaintiff, that the jury were not unanimous in their verdict. While the jury were not polled by the clerk the careful manner in which the verdict was taken plainly indicates the jury were unanimous in the verdict rendered. The rule to show cause is discharged.


author:
John C. Wegner,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARVIN MAXWELL, PETITIONER, v. RAYMOND WOCH-NER, INCORPORATED, RESPONDENT.
    Decided September 25, 1935.
    For the petitioner, Lewis P. Scott.

    For the respondent, Thompson & Hanstein (by Wilbur C. Bishop).

   * ❖ * * * * *

The record of this ease shows that the petitioner, previous to June 5th, 1934, was employed as an apprentice carpenter by the respondent at a wage of seventeen dollars ($17) per week, the petitioner then being sixteen years of age. At the time of the hearing it was stipulated between counsel for the petitioner and respondent that the petitioner met with an accident arising out of and in the course of his employment, due to which it was necessary to remove the spleen; that the accident occurred June 5th, 1934; that the petitioner received medical aid from the insurance carrier, Maryland Casualty Company, in the sum of five hundred sixty-one dollars and thirty-nine cents ($561.39), and compensation for temporary disability amounting to three hundred thirty-nine dollars and ninety cents ($339.90), the same being the sum of $11.33 a week for a period of thirty weeks.

The only testimony taken at the time of the trial was given by the respondent’s doctors, who testified that there was no permanent disability. Petitioner submitted no medical testimony, leaving ihe estimation of disability to the presiding referee. The testimony of the respondent’s doctors further showed that they were not positive in so far as the function of the spleen was concerned, and that little was definitely known concerning it. Dr. Henry A. Kessler, former medical advisor to the New Jersey workmen’s compensation bureau and now medical director of the New Jersey rehabilitation clinic, Newark, New Jersey, in his book entitled “Accidental Injuries” in discussing removal of spleen due to injuries states as follows:

Splenectomy may be followed by a full working capacity without symptoms. However, loss of the spleen is accompanied by more or less propound change in the body economy. The author suggests an estimate of twenty-five per cent, total disability for splenectomy to which should be added increasing amounts if any profound change takes place in the blood picture. Eemoval of the normal spleen results in:

(a) a polymorphonuclear leukocytosis

(b) a relative lymphocytosis

(c) a temporary anemia, with reduction in the number of red cells and hemoglobin

(d) a hyperplasia of the other elements of the reticuloendothelial system and possibly

(e) an increased susceptibility to infection.

It is, therefore, on this 25th day of September, 1935, ordered that the respondent pay to the petitioner temporary disability as paid, permanent disability ten per cent, total or fifty weeks at eleven dollars and thirty-three cents ($11.33) per week, and counsel fee of one hundred dollars ($100) to be allowed the petitioner’s attorney, to be paid by the respondent.

John C. Wegner,

Referee.


author:
John C. Wegnek,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CYRUS JOHN WAGNER, INFANT, BY HIS NEXT FRIEND, ANNA WAGNER, PETITIONER, v. MAURICE B. LEWIS, INDIVIDUALLY AND TRADING AS M. B. LEWIS CO., AND WILLIAM C. SMITH, JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, RESPONDENTS.
    Decided November 15, 1935.
    For the petitioner, Albert B. Kahn.

    For the respondent, Horace G. Brown.

   i$ $

Cyrus Wagner (decedent), thirty-one years of age, lived with Anna Wagner and their infant son, the infant petitioner, Cyrus John Wagner, at Wrightstown, New Jersey. Decedent was employed by respondents, Maurice B. Lewis, individually and trading as M. B. Lewis Company and William C. Smith, as a laborer on a road construction job on the Jobstown-IJaneock’s Corner road, in Burlington county, New Jersey, at an hourly wage of forty cents and received, as was stipulated by the parties, a sum in excess of $10 each week. Decedent had always been strong, robust, of good health, and of a jovial disposition, and had been engaged in laboring work for a considerable period of time. He had been a willing worker and had no knowledge of any diseased heart or arterial condition. On July 16th, 1934, said decedent arrived at work before seven a. m. and immediately commenced doing heavy laboring work, dragging heavy limbs from the side of the road on to a nearby field, digging np a heavy iron stop sign with a concrete base, and dragging this from the road on to the same field, and then sawing a tree trunk in half with a fellow workman with a lumberman’s saw, who characterized decedent as not being a “finished sawyer.” After sawing about fifteen minutes, the fellow workman noticed that decedent appeared ill and suggested to decedent that he rest for a few minutes but decedent insisted on continuing with the work and a minute or two later collapsed and never regained consciousness, and was dead before medical aid arrived. An autopsy was performed at the Burlington County Hospital upon the order of the insurance carrier of respondents, which revealed a diseased heart condition and the only direct cause of death as a complete but temporary occlusion (blocking) of the coronary artery (artery which feeds the heart), causing practically instant death. The medical testimony all pointed to the fact that the occlusion was caused by an increase in blood pressure due to the laborious work which petitioner was performing at the time, which increase in blood pressure, acting upon an already diseased and weakened heart and arteries, caused the death as the result of an accident arising out of and in the course of the employment. The only dependent entitled to compensation is the petitioner, who was born on June 17th, 1933, and was thirteen months old at the time of the death of his father on July 16th, 1934. Compensation, based on one dependent, calls for thirty-five per cent, of the wages of decedent, which will be below the minimum provided by law, and at the time of the hearing, the parties agreed that the minimum compensation rate of $10 per week applies to this case and therefore petitioner is entitled to $10 per week until he reaches the age of sixteen years, a period of seven hundred seventy-eight and four-sevenths weeks, payments to commence as of July 16th, 1934.

tj* sH ❖ ❖ ❖ ❖ Jfc

John C. Wegnek,

Referee.


author: Perskie, J.

text:
    SIDNEY S. JEDEL, PLAINTIFF-APPELLEE, v. CARL E. TAPPER ET AL., DEFENDANTS-APPELLANTS.
    Submitted October term, 1935
    Decided November 20, 1935.
    Before Justices Teen chard, Heheb and Perskie.
    For the appellant, Carl E. Tapper.

    For the appellee, Mortimer Eisner.

   The opinion of the court was delivered by

Perskie, J.

The plaintiff sued defendants for the balance due plaintiff for dental services rendered to the defendants (husband and wife). Part of the work for the wife consisted of a bridge. The wife in support of the counter-claim testified that the plaintiff agreed to make the bridge to her satisfaction and that it would be comfortable. “Q. Did Dr. Jedel agree to make the bridge to your satisfaction? A. Yes, he said it would be to my satisfaction, and that it would loolc nice, and would be comfortable.” The plaintiff denied any such undertaking. “A. I [plaintiff] promised to make the bridge for Mrs. Tapper in the best workmanship possible, to give her everything I could. I made no promises. I remember telling you that it was possible to break the bridge, but argued and discussed with you that possibly it would be worth taking the chance and putting the bridge in.”

At this posture of the case, the trial judge directed a verdict for the plaintiff and against the defendant husband (there was a discontinuance as to the wife), and limited the jury to the determination, on the plaintiff’s claim, of a disputed difference thereon of $16.

In so doing we think that the trial judge fell into reversible error.

Our courts have not adopted the scintilla of evidence doctrine (Schmid v. Haines, 115 N. J. L. 271; 178 Atl. Rep. 801, 804); moreover, no point is made on this score. But even if it had been raised it would not lead to a different result. For the proof as to the undertaking here between the parties was not a mere scintilla of evidence. It was clear and positive; but it was also divergent, and so were the inferences to be drawn therefrom. It, therefore, clearly raised a jury question.

In directing a verdict on the counter-claim and limiting the question submitted to the jury, as aforesaid, the trial judge—among other things said: “I find that the doctor exercised ordinary skill and that was all that was expected of him. When he exercised care and prudence in the application of ordinary skill consistent with his locality he had performed his task.”

This is not a correct statement of the. law applicable even if there had been no specific undertaking between the parties. The correct principle of law in such cases is that a physician or a dentist undertakes, in the practice of his profession, that he is possessed of that degree of knowledge and skill therein which usually pertains to other members of his profession. Ely v. Wilbur, 49 N. J. L. 685; 10 Atl. Rep. 358; Smith v. Corrigan, 100 N. J. L. 267; 126 Atl. Rep. 680; Lolli v. Gray, 101 N. J. L. 337; 128 Atl. Rep. 256; Woody v. Keller, 106 N. J. L. 176; 148 Atl. Rep. 624.

Judgment is reversed; costs to abide the event.


author: Pbrskie, J.

text:
    MAURICE TEITELBAUM, PLAINTIFF-APPELLEE, v. MASSACHUSETTS ACCIDENT COMPANY, DEFENDANT-APPELLANT.
    Argued October 2, 1935
    Decided November 20, 1935.
    Before Justices Trenciiard, Heiier and Pbrskie.
    For the appellant, Herman E. Dultz.

    For the appellee, Kanter & Kanter.

   The opinion of the court was delivered by

Pbrskie, J.

On May 28th, 1925, the plaintiff, a physician and surgeon, purchased of defendant a contract of indemnification against loss by reason of accident and illness. This contract (policy) among its several provisions, contains the following clauses:

“Part I. Total accident or illness disability. If the insured suffers a disability from accidental injury or disease which necessarily, wholly and continuously disables him from the performance of any and every Tcind of duty pertaining to Ms occupation or business, the company will pay a weekly indemnity at the rate of One Hundred Dollars ($100.00), per week, during the continuance of such disability until such time as the Insured may engage in a gainful occupation, but no indemnity shall be payable for the first two weeks of disability, as above described.”

“No. 14. No action at law ox in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy.”

On June 14th, 1933, plaintiff became afflicted with a disease described as marked epidemic encephalitis; Parkinsons syndrome. Encephalitis is described as an inflammatory disease of the brain. The effect of this disease on the plaintiff was “that there was a marked disturbance of his gait when he walked, there was a shortening of his steps, he walked in a shuffling manner with a propulsion tendency to fall forward and marked disturbance of his associate movements; that is, when he walked his arms were held rigidly to his side, he did not swing his arms in a normal manner. There was a marked tremor which involved to some degree his entire body, but more particularly, the left arm and leg and head. He had a marked disturbance of his speech in that his speech was slurry, quite indistinct. He had difficulty with fine movement, that is difficulty, in short, in picking up a pin whereas he could lift a suit case. There was a definite impairment of co-ordinated movement. In addition to that, there was a spasm of the eyelids and a rolling of the eyeball upward in the spasm; uncontrollable spasm of the eyelids. He also had considerable rigidity, especially of the left arm and leg. There were tremors of the face and tongue and there were at times uncontrollable emotions, outbursts of laughing or crying which were not under control and which occurred without sufficient provocation.”

Defendant paid plaintiff the weekly sum of $100 from June, 1933, to February 5th, 1935; thereafter it stopped further payments. Whereupon, on March 11th, 1935, plaintiff caused two suits to be instituted in the First District Court of Newark against defendant, case No. 181644 for payments, due under the policy, covering the period from February 5th, 1935, to March 5th, 1935, and case No. 182134 for the period from March 5th, 1935, to April 2d, 1935. No proof of loss, as required by section 14 of the policy, was filed with the defendant.

Tlie proofs at the trial disclosed that the assured was an active practitioner, treating approximately one hundred and forty patients a week. His practice was of a general character; he was a surgeon and he had a large obstetrical practice. Dr. L. Beverly Chaney, of New York, a neurologist of high repute, testified, and there was no medical testimony offered in opposition thereto, that “my opinion is that he [ plaintiff] is totally incapacitated from carrying on professionally both as a physician and as a surgeon.” And the proofs disclose the following observation by the court: “The court: Let it appear upon tile record that the witness seems to have some difficulty in enunciating his words, and particularly professional words.”

Against this and other formidable array of evidence of the physical and mental wreckage of the plaintiff the defendant offered proof that, during the period for which plaintiff seeks recovery here, he treated some seven patients, gave a hypodermic injection to one* patient, wrote about fourteen prescriptions and kept up his offices, which were in his home. All of this, of course, for the alleged purpose of showing that plaintiff was not totally disabled within the terms of the policy. As a matter of fact, plaintiff himself admitted that during Iho same period he treated not only these patients but that he treated about four patients a day. He, however, explained that he treated only those patients “which I could handle very easily.” He could not, he said, with safety even give hypodermic injections; that he was wholly and continuously unable to do any and every kind of duty pertaining to his occupation or business. He could do no surgery; he could not do obstetrical work, &c.

Motions for a nonsuit and directed verdict in favor of the defendant on the grounds that the plaintiff was not wholly and continuously disabled within the provisions of the policy and that the suits were prematurely brought, were denied. The trial judge, basing his finding on the “uncontradicted medical testimony on the part of the plaintiff” and his “observation of the plaintiff on the witness stand,” entered a judgment of -$408 in favor of the plaintiff and against the defendant.

First: It is the well settled law where the language of a contract, as here, requires construction we adopt that construction, not doing violence to the wording, most advantageous to the insured. Connell v. Commonwealth Casualty Co., 96 N. J. L. 510; 115 Atl. Rep. 352; Nickolopulos v. The Equitable, &c., United States, 113 N. J. L. 450, 456; 174 Atl. Rep. 759. The construction of each contract depends upon its particular wording. The meaning of the language in question, “any and every kind of duty pertaining to his occupation or business," has received judicial construction by our courts. It is “not that he [assured] must be so disabled as to prevent him from doing anything whatsoever pertaining to his occupation, but that, if he be so disabled as to prevent him from doing any and every hind of business pertaining to his occupation, he was entitled to recover." Gross v. Commercial Casualty Insurance Company of Newark, New Jersey, 90 N. J. L. 594; 101 Atl. Rep. 169; Doherty v. American Employers, &c., Massachusetts, 112 N. J. L. 52; 169 Atl. Rep. 652. Nor is the case of Nickolopulos v. Equitable, &c., United States, supra, to the contrary. The particular provision there involved is entirely unlike to the one here in issue. The proofs here fully support the result reached.

•Second: Were the suits prematurely instituted? (Section 14 of the policy.) We think not. The proper proofs here clearly indicate,' and the subsequent conduct of the defendant fully prove that defendant had determined not to make any further payments on the policy. Under such circumstances the defendant waived this provision; plaintiff was, therefore, privileged to institute suit at once. State Insurance Co. v. Maackens, 38 N. J. L. 564; Cheshansky v. Merchants Fire Insurance Co., 102 Id. 414; 131 Atl. Rep. 910; Radwanski v. Scottish Union, &c., Co., 100 N. J. L. 192; 126 Atl. Rep. 657; Evans v. Farmers’ Reliance Insurance Co., 110 N. J. L. 159; 164 Atl. Rep. 258.

In fine, it is rather difficult, if not impossible, to reconcile defendant’s action prior to these suits with its present claims that there is no liability on its part in the premises. The record fails to disclose that defendant even questioned its liability towards the plaintiff before these suits. As a matter of fact, as already stated, it paid the plaintiff the weekly indemnity from June, 1933, to February 5th, 1935; it did not, even in these suits, offer any medical proof in opposition to that offered for the plaintiff. Exhibit P-2 (letter of Victor R. Watson, superintendent 3ST. C. Claims Division), was, of course, ■ properly rejected as evidence of an unaccepted offer of compromise of $10,000 for a release of defendant’s liability to the plaintiff under the policy. But there is, however, other ample and persuasive proof of the obvious reason for the refusal by the defendant to make further payments under its policy; it sought to buy its peace at its own price.

We have carefully examined all other points and do not find in them any error which injuriously affected the substantial rights of the defendant.

Judgment is affirmed, with costs.


author: Pekskie, J.

text:
    ELIZABETH WALSH, PLAINTIFF-APPELLEE, v. HACKENSACK WATER COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1935
    Decided November 20, 1935.
    Before Justices Tbenchakd, Heiiek and Pekskie.
    For the appellant, Samuel William Zerman.

    For the appellee, Morion Isaacs.

   The opinion of the court was delivered by

Pekskie, J.

Plaintiff, aged seventy-two years, resided with her daughter and son-in-law, tenants of a two-story frame dwelling known as 954 Oak street, in the township of North Bergen, Hudson countjr, New Jersey. The Weehawken Building and Loan Association owned the premises. During the cold spell in the middle of February, 1934, the water in the premises froze. At the request of the building and loan association the Hackensack Water Company, which supplied water to the inhabitants of the township, sent its employes to remedy the situation. In so doing it apparently became necessary to inspect the connecting pipes leading to the meter. In order to remove the meter it was necessary to remove the boards which covered the pit that housed the meter. Defendant denied that its employes entered the premises, the contention being that their work was confined to the outside of the building, and although defendant also denied the right or authority of the particular employes here involved, to enter said premises, nevertheless, the proof is rather convincing—at least it was open to the court to so find, that its employes did enter the premises, did remove the boards to reach the meter, and did use tools to do so, and after removing the meter failed to replace the removed boards and as a result thereof the pit was left open and unguarded.

Thereafter, on February 17th, 1934, the plaintiff went down with a bucket in her hands to get coal to make a fire in the house. “The light was very dark, it was snowy kind of weather,” and as plaintiff turned into the kitchen, to obtain the coal, and opened the door thereof to walk in, she tripped into the uncovered pit.

For the injuries thus sustained she brought this suit and the trial judge rendered judgment of $200 in her favor and against the defendant.

Appellant now argues that it was error for the trial judge to refuse to nonsuit (1) on plaintiff’s opening; (2) at the end of plaintiff’s case, and (3) it was error to refuse its motion, at the end of the entire ease, for a directed verdict. This argument is devoid of merit. It is elementary that at the time the respective motions were made it was not the function of the court to weigh the evidence. All the evidence which supports the claim of the party against whom the motion was made must be accepted as true, and he is entitled to the benefit of all legitimate inferences which may be drawn therefrom. Where fair minded men might honestly differ as to the conclusions to be drawn from the facts, whether controverted or uncontroverted, the question at issue should be submitted to the jury. Lipschitz v. New York and New Jersey Produce Corp., 111 N. J. L. 392; 168 Atl. Rep. 390; Repasky v. Novich, 113 N. J. L. 126; 172 Atl. Rep. 374. The proofs herein clearly required the submission thereof to the jury. The trial judge properly denied the motions.

It is next argued that since defendant's employes were under no obligation to remove the meter—even if they did so—they were not required to replace the boards covering the pit and, that under all events, they were under no obligation to this particular plaintiff on the theory that there was neither privity of estate nor privity of contract between them. This argument is also devoid of merit.

It was open to the trial judge to find, as he did, that defendant did undertake the removal of the meter and it has every earmark of being the necessary and natural thing to have done. It, therefore, became its duty to perform that work, even if it was in the first instance not obliged to do so, in a reasonably careful manner. And as was said in Nilsson v. Abruzzo, 107 N. J. L. 327, 330; 153 Atl. Rep. 486, by Mr. Justice Donges, for our Court of Errors and Appeals:

“* * * For failure to do so liability is imposed upon them, not by reason of a duty arising from the contract, but upon the doctrine that one who undertakes to perform such work, even if done gratuitously, and does it negligently, whereby damage results, is liable for such negligence. La Brasca v. Hinchman, 81 N. J. L. 367; Broame v. New Jersey Conference, &c., 83 Id. 621; Charney v. Cohen, 94 Id. 381."

We have carefully examined all other points argued and no alleged error is made to appear which injuriously affected the substantial rights of the defendant.

Judgment is affirmed, with costs.


text:
    MARGARET RICKNER, PLAINTIFF-APPELLEE, v. RITZ RESTAURANT COMPANY OF PASSAIC, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted October term, 1935
    Decided November 20, 1935.
    Before Justices Teen chard, Heifer and Perskie.
    For the appellant, Harvey G. Stevenson.

    For the appellee, Marcus & Levy (Isadore Rosenbloom, of counsel).
   The opinion of the court was delivered by

Perskie, J.

Plaintiff, a patron in defendant’s restaurant, ordered, and was served, a cold corned beef sandwich (with lettuce and mayonnaise dressing), for immediate consumption. As she was chewing her first bite of that sandwich she felt a pain and extracted from her mouth at least two pieces of glass, one of which was about the size of half the tip of her little finger. She showed the glass to defendant’s manager. As a result of the glass in the sandwich plaintiff sustained injuries to her teeth and mouth and thus this suit. The trial judge, sitting without a jury, rendered judgment in favor of the plaintiff and against the defendant in the sum of $125.

Defendant challenges the propriety of that judgment. Under the specification of determinations with which appellant is dissatisfied in point of law, three points are argued. They are based on the charge that the court erred in refusing to grant defendant’s motion for a directed verdict because (1) the pleading and evidence failed to establish a cause of action against defendant; (2) that the action was based on the theory of a breach of warranty, and not that of negligence, and that the proofs failed to support that theory; and (3) that there was no evidence that defendant breached any duty which it owed to the plaintiff and that there was no evidence of negligence on its part.

We think that all of these points, under the circumstances of this case, are without substance.

First: The pleading, i. a., state of demand, it is true, is loosely drawn. It recites the status of the respective parties; that plaintiff purchased of defendant “an edible preparation” (without describing it), for immediate consumption; that said food or edible contained foreign substances deleterious to the body and tissues unknown and hidden from the plaintiff. Then follows a statement of the resultant injuries, expenses and losses. It will be observed that the state of demand does not in so many words set forth some of the elemental requirements, of an action of negligence, such as a duty and a breach of that duty. But the parties tried this case on the state of demand as drawn.

The law does not. of course, require strict formality in a suit in the District Court. O’Donnell v. Weiler, 72 N. J. L. 142; 59 Atl. Rep. 1055; Bishop v. Cadman, 10 N. J. Mis. R. 454; 159 Atl. Rep. 536. And it is sufficient that the state of demand state a legal cause of action, apprising the defendant of the claim against him, and so stating, that it may afterwards appear what was decided. District Court actions, generally, under section 59 of the District Court act (2 Comp. Stat (1709-1910), pp. 1947, 1970), exclusive of such as landlord and tenant, replevin, attachment, and the like, are styled either in contract or tort. The state of demand here is styled in tort. The allegations therein set forth show facts and circumstances from which a duty to use care arose. That is sufficient. In the case of New Jersey Fidelity and Insurance Co. v. Lehigh Railroad Co., 92 N. J. L. 467, our Court of Errors and Appeals held, by Mr. Justice Kalisch (at p. 471):

“It is wholly of no importance whether or not the pleader accurately stated the legal duties, devolving upon the defendant, arising from the facts averred in the complaint. Chief Justice Beasley, in Breese v. Trenton Horse Railroad Co., 52 N. J. L. 250 (at p. 251), quotes with approval the legal rule appropriate thereto, as laid down by Addison in his work on Torts: ‘The decisions, observes Lord Campbell, show that the allegations of duty in a declaration is in all cases immaterial, and ought never to be introduced, for, if the particular facts set forth raise the duty, the allegation is unnecessary, and, if they do not, it will be unavailing. If the particular facts stated in the declaration do not raise the duty it cannot be established by other facts not stated. The declaration, therefore, must stand or fall by the facts stated. Uegligence creates no cause of action unless it expresses or establishes some breach of duty. 2 Add. Torts, § 1338. ''

Second: It is argued that plaintiff's case, on the pleadings and proofs, was based on sale of goods and a warranty that the food was free from injurious substance. If that, were so, there could be no recovery here. Nisky v. Childs Co., 103 N. J. L. 464; 135 Atl. Rep. 805.

The difficulty, however, with that contention is that there is nothing in the record to so indicate. The question for our determination is whether a right result was reached; if so, that is sufficient. And we think the result reached is right.

Third: Did defendant breach a duty, if any, it owed to the plaintiff and was there proof of negligence? Our answer is in the affirmative.

The liability of restaurateurs, for foreign and deleterious substances in food served to patrons, is well settled in our state. It is based not on the theory of a warranty but on the theory of negligence. Food served at a restaurant imposes on the restaurateur the duty to use reasonable care to see that the food thus furnished shall be free from injurious substances and fit for human consumption. Nisky v. Childs Co., supra. And it has been held that the presence of glass in cole slaw, served a patron of a restaurant, raises a presumption of negligence in its preparation. Corin v. S. S. Kresge Co., 10 N. J. Mis. R. 489; 159 Atl. Rep. 799; affirmed, 110 N. J. L. 378; 166 Atl. Rep. 291. (Cf. Cassini v. Curtis Candy Co., 113 N. J. L. 91; 172 Atl. Rep. 519, and cases therein collated).

Defendant denied that it served plaintiff a cold sandwich (it claimed to serve hot sandwiches only), and offered proof explaining the various stages in the preparation of the sandwich ; the places in the restaurant where it was prepared, all for the purpose of establishing the fact that it fully performed the duty imposed upon it by law; and, that it was free from any negligence. The proof, however, did disclose that during the course of preparation the sandwich was handled at such places where there was glassware.

We think under all the proofs of this case, and the legitimate inferences that could be drawn therefrom, it was open to the trial judge to find, as he did, that defendant failed to use reasonable care in the premises.

Judgment is affirmed, with costs.


author: Golbberger, J.

text:
    Perth Amboy District Court.
    CATHERINE FAZEKAS, PLAINTIFF, v. PERTH AMBOY HOLY MARY ROMAN CATHOLIC SICK BENEFIT SOCIETY, DEFENDANTS.
    Decided November 19, 1935.
    Por the plaintiff, Jacob H. Bernstein.

    Por the defendant, Louis F. Sellyei.

   Golbberger, J.

This is a suit to recover “sick” benefits, and the claim of the plaintiff is resisted on the ground that she was not sick but was incapacitated by reason of a fall from the back porch of her home resulting in a fractured elbow. The by-laws in question provided as follows:

“Who belongs in the CC’ group and wants $6.00 sick benefits, pays monthly fifty cents.

“That the illness does not result from drunkenness, fighting, carelessness, venereal diseases or of a trouble which occurred before his joining the society, in such cases he is not entitled to any sick benefit.”

While the rule that all of the provisions of a contract of insurance will be liberally construed in favor of the insured, yet the terms of the contract in question are not so obscure or ambiguous as to require a different meaning than is ordinarily meant by the use of the word “sick” or “sickness.”

The case of Kelly v. Ancient Order of Hibernians, 9 Daly (N. Y.) 289, is analagous to the one under consideration and will be followed. There an injury was caused to the insured’s leg, in consequence of which he was unable to perform his duties as a coachman or to perform severe manual labor. This was held not to constitute “sickness” within the provisions of the by-laws of a benefit society for indemnity in case of sickness. The court said:

“The question involved * * * is whether or not a permanent injury to limb constitutes sickness * * * so as to entitle the party suffering such injury to participate in the benefits of the association. A very brief examination of the meaning of the word ‘sick’ and ‘sickness’ would seem to demonstrate that such an injury is not within the contemplation or scope of the article in question. Sick is defined to be: First. Affected with or attended by nausea, inclined or inclining to vomit; as sick at the stomach, a sick headache; second, having a strong dislike, disgust with, of: as to be sick of flattery, to be sick of country life. Third, affected with diseases of any kind; ill, indisposed, unwell, diseased, disordered. It will be seen by these definitions that the words ‘sickness’ and ‘illness’ apply solely to diseased conditions of the organs of the human system. You would say that a man was sick of a fever, but you would never say that he was sick of a broken leg, Although a party may have lost some limb, yet he may be in perfect health, and although he may be disabled from manual labor in consequence of such loss, it cannot be said that he is either ‘ill’ or ‘sick.’ It would therefore seem to be reasonable to conclude that under the term ‘sickness’ no bodily injury would be included unless the general health was impaired.”

And it has been held that one is not entitled to the “sick” benefit provided for by the by-laws of a benefit society, where he was bitten over the eye by a dog, by reason of which the eye swelled and made it impossible for him to wear spectacles, which were necessary in performing his work, and thus prevented his working during a certain period, it appearing that he was not in bed in consequence of the injury, and that his general health was not affected. Villone v. Perticara (1909), 63 Misc. 257; 114 N. Y. Supp. 801.

Tt will be noted that the court in Beaudoin v. La Societe St. Jean Baptiste De Bienfaisance de Biddeford et al., 102 Atl. Rep. 234, decided that the illness resulting from the accidental breaking of a bone was not covered by a policy providing for benefits, where one was unable to work, and in view of the fact that the insurance only, covered cases of disability which were the natural and ordinary result of diseases arising from, a pathological condition. See 1918-B L. R. A. 642, where.all the cases .are collected.

No evidence having been produced that the fall was caused by disease or that any disease resulted from the fall, judgment will go for defendant.


text:
    RALF C. PATTON, PETITIONER-PROSECUTOR, v. AMERICAN OIL COMPANY, DEFENDANT-RESPONDENT.
    Argued November 16, 1935
    Decided November 26, 1935.
    Before Justice Perskie, at chambers, pursuant to statute.
    For the prosecutor, Samuel P. Orlando.

    For the respondent, Cecil W. Rolzell.

   Perskie, J.

This writ brings up for review a judgment of the Common Pleas Court of Burlington county which affirmed the judgment of the workmen’s compensation bureau dismissing the emploj'e’s petition.

Although respondent did not admit that the accident arose out of and in the course of the employment, nevertheless, it did not actually contest it. In fact respondent frankly conceded, and correctly so, that under the proofs it was open to the deputy commissioner to find, as he did, that the injuries did arise out of and in the course of the employment. That question is not in this case. The real question requiring decision is "whether the alleged intoxication of the employe was the “natural and proximate cause” of the injuries which he sustained?

The burden of that proof is upon the employer. Paragraph 7, section II, Elective Compensation, chapter 95, Pamph. L. 1911. Cum. Supp. Comp. Stat. 1911-1924, p. 3870, § **236-7.

It is strongly urged that since the compensation bureau and the Common Pleas Court so found, that this court should not disturb that finding. It is, of course, well settled that we do not lightly disturb the result reached by two independent tribunals; but it is equally well settled that we are not foreclosed by such a finding. Lazzio v. Primo Silk Co., 114 N. J. L. 450; 177 Atl. Rep. 25; affirmed, 115 N. J. L. 506; 180 Atl. Rep. 881. The function of this court on certiorari, in these cases, “either by reason of the general language of the Certiorari act (section 11), or the language of the Compensation act, or both, is to review questions of fact as well as of law.” Gianfrancisco v. Public Service Co-ordinated Transport, 11 N. J. Mis. R. 219, 222; 165 Atl. Rep. 419.

But my difficulty here is more deeply rooted. It is that the determination of facts by the deputy commissioner, for the bureau, does not set forth the finding which he was required to make in order to warrant the dismissal of the petition, namely, that the intoxication of the employe was the “natural and proximate cause” of his injuries. The Common Pleas Court made no specific finding of fact; it merely affirmed the finding and dismissal by the bureau. That, apparently is sufficient, but it did not cure the failure of the bureau to make the required finding. Dreyfus v. Lutz Co., 6 N. J. Mis. R. 608; 142 Atl. Rep. 433; affirmed, 106 N. J. L. 566; 146 Atl. Rep. 913. (Compare Gianfrancisco v. Public Service Co-ordinated Transport, supra; Fontaine v. United Engineers and Contractors, Inc., 12 N. J. Mis. R. 220; 170 Atl. Rep. 856.)

I could perhaps with propriety -stop at this point. But a discussion of the proofs will, I think, clearly indicate that the finding of the bureau does not determine the issue between the parties. Proper proofs, circumstantial or presumptive, based on deducible inferences, must alone form the basis of the employe’s right to, or denial of, compensation. What are these proofs?

The American Oil Company employed Half C. Patton as its general sales representative in Camden and part of Burlington county. He used an automobile and quite frequently worked at night. The night of the accident, February 17th, 1933, was dark, cold and the ground was covered with about three inches of snow. Patton set out in his car, among other reasons, to inspect a pit to determine the feasibility of installing a gasoline tank there. This pit is located near Rancocas Park, in the vicinity of Masonville, Burlington county, New Jersey. At or near the point of the pit the tracks of the Pennsylvania railroad are adjacent to and south of the main highway.

In order to reach the pit it is necessary to cross these tracks. If prosecutor’s version of the accident is correct, he reached the pit, and while returning to the main highway and recrossing the tracks was hit by a locomotive attached to a train of the Pennsylvania Railroad Company. On the other hand, if respondent’s version of the accident is correct, prosecutor never crossed both tracks at all; he made a left-hand turn from the main highway to reach the pit and before he completely crossed both rails made another left turn so that he completed a U shape turn and continued on the track bed, straddling the southerly rail, for a distance of about one hundred and fifty feet, when he was struck by the locomotive. The accident happened about ten-thirty of the night in question.

Prosecutor suffered a fracture of his right leg, at the hip, and a dislocation. He has had two operations at the University of Pennsylvania Hospital, and was confined there eight weeks after the first operation and four weeks after the second. He had a third operation at the Jewish Hospital of Philadelphia, and was confined there for twelve weeks. And apparently still has to undergo another operation.

Patton received compensation for the period from February 17th, 1933, to August 4th, 1933, when further payments bureau on September 23d, 1934, and the respondent answered and said, among other things, that it was not liable because the accident did not arise out of and in the course of the employment. Thereafter, on April 11th, 1935 (I rather doubt the accuracy of the date, but it is so stated in the record), respondent filed an amended answer in which it stopped. He filed a claim with the workmen’s compensation claimed that the intoxication of the prosecutor was the proximate cause of his injuries. Hearings were held on December 3d and 17th, 1934. It appears, on prosecutor’s admission, that while at Haddonfield, New Jersey, about eight o’clock of the night in question, he took a drink of whisky out of a flask tendered by a friend. He then drove to Moorestown, New Jersey; from Moorestown he drove to Mount Holly, New Jersey, and from there to the scene of the accident. In other words he drove the car the greater part of the time after he took this one drink at eight p. m., until ten-thirty p. m., without mishap.

When prosecutor was picked up at the scene of the accident it was first thought that he was dead and the coroner was notified. Prosecutor says that he was unconscious and remembers nothing of what happened or what he may have said until the morning following the accident. True, there is proof of the smell of alcohol on his breath, and that he made contradictory statements while questioned at the hospital, as for example, he thought a truck struck him. But I do not place great probative value on statements made under such circumstances. One thing is certain; no one said that prosecutor was in fact intoxicated and that his intoxication was the natural and proximate cause of his injuries. The burden of proof of the fact was on the respondent and although it had a detailed statement of the places visited and persons seen by the prosecutor after his drink at Haddonfield it did not produce any of these people who could perhaps have shed some light on the question of prosecutor’s alleged intoxication. Eespondent did, however, produce Dr. Edward H. Wyman, who examined and questioned the prosecutor, immediately after the accident, at the Burlington County Hospital. And Dr. Wyman, like all other witnesses, did not say that prosecutor was intoxicated and that his intoxication was the natural and proximate cause of the injuries which he sustained. Like some of the other witnesses he testified, in substance, to the smell of alcohol on prosecutor’s breath; to statements made by prosecutor; and to his physical condition, &c. But when pressed for a specific or definite opinion would only go so far and no farther than to say that a person injured immediately after an accident and before recovery of the shock thereof frequently does not remember the fact that he was examined or what, if anything, he may have said during the examination. He could not say whether prosecutor’s mental faculties were impaired as a result of shock or intoxication; or the extent or degree which either affected prosecutor’s sense of orientation. The doctor did say that either shock or alcohol was a factor in prosecutor’s disorientation. Obviously the most favorable interpretation given to that proof, as well as to all other proofs, and the legitimate inferences to be drawn therefrom, still fails to satisfy the obligation which the respondent was obliged to meet, namely, that prosecutor’s intoxication was the natural and proximate cause of his injuries.

The deputy commissioner held the case for three months (and this is not said by way of criticism but rather, as indicative perhaps of his doubt (Gianfrancisco v. Public Service Co-ordinated Transport, supra—at p. 222), and in disposing of it said, inter alia:

“* * * certainly, the shock attending the accident was not present and could not have played any part in his irrational handling of the car prior to his being injured. The element of shock, therefore, can be eliminated from the case in so far as its affecting the petitioner’s mentality is concerned. We are left, therefore, only with his condition following his having indulged in intoxicants as an explanation of his actions. I am, therefore, forced to the conclusion that this accident aróse from the petitioner’s physical condition and not as the result of an accident arising out of the hazard of his occupation. Consequently, an award cannot be made in favor of the petitioner.”

Clearly this is not the specific finding that was required to be made; it does not determine the issue between the parties. Moreover, T desire to point out that I do not quite understand how, under the proofs or otherwise, the commissioner could, with propriety, eliminate the element of shock. It was eliminated on the theory that it could not be present until after the happening of the accident; that is a non seauitnr. An impending accident with an oncoming locomotive is, it would seem to me, quite sufficient to shock even one who is blessed with nerves of steel; shock may, and often does, precipitate an accident.

The case is of great importance to each of the parties. I ought not be called upon to decide the rights of the respective parties without first having the benefit of that specific finding and determination which the workmen’s compensation bureau is required to make under the law.

The judgment of the Common Pleas Court and that of the workmen’s compensation bureau is reversed; the case will be remitted to the bureau to make the specific finding and determination which it is required to make.

Costs to abide the event.


author: Pee Curiam.

text:
    MARK-SACHS-EVANS COMPANY, INCORPORATED, PLAINTIFF-APPELLANT, v. LENTER’S CLOTHES SHOP, INCORPORATED, BENJAMIN LENTER, JOSEPH LENTER, W. W. AUCTION COMPANY AND JOHN DOE, THE PERSON IN POSSESSION, DEFENDANTS-APPELLEES.
    Argued October 1, 1935
    Decided November 25, 1935.
    Before Justices Teenchabd, Hehee and Peeskie.
    For the plaintiff-appellant, Louis B. Englander.

    For the defendant-appellee W. W. Auction Company, Irving Stern (Harry Kay, of counsel).
   Pee Curiam.

This is plaintiff’s appeal from a judgment in favor of the defendants in a replevin suit. The state of the case is meagre, indefinite and confusing, containing several apparent contradictions.

The action was brought to recover possession of certain suits and overcoats and was tided before the court without a jury. It appears that on November 29th, 1932, such goods were sold by the plaintiff to Benjamin Lenter and Joseph Lenter upon representations made by them that they were financially solvent, which representations were false when made, and were made with intent that plaintiff rely upon the same; that plaintiff did rely upon such representations and was thereby induced to make the sale upon credit; that on or about December oth, 1932, the Lenters filed a voluntary petition in bankruptcy, and a receiver in bankruptcy took possession of all of the bankrupt’s assets, including the goods here involved, by taking possession of the store premises of the bankrupt; that on or about December 14th, 1932, plaintiff, having learned of the bankruptcy, first filed with the receiver in bankruptcy proof of claim for the purchase price of the goods now involved; that subsequently plaintiff withdrew such claim, and demanded possession of such merchandise from the receiver; that on January 11th, 1933, the receiver sold the bankrupt’s stock, including the merchandise in question, to the W. W. Auction Company, one of the defendants in this suit, and the only defendant who defended the action; that thereafter the W. W. Auction Company “entered into an agreement to sell such merchandise to said Lenters;” that “the market value of said merchandise was $191.” The state of the case may or may not possibly be deemed to disclose other matters of fact relevant and material to a proper consideration of this appeal.

We turn for present purposes to a consideration of the error alleged in respect to the judgment.

Now the certified copy of the judgment entered reads: “The proceeding is dismissed. * * * Whereupon it is on this day [July 13th, 1934"] by this court considered and adjudged that Lenten’s Clothes Shop, Incorporated—Benjamin Lenter—J oseph Lenter, only, defendant, recover against Mark-Sachs-Evans Company, Incorporated, the plaintiff the sum of one hundred and ninety-one dollars and no cents damages and the costs of suit. Whereupon it is on this day considered and adjudged that the plaintiff has no cause of action, as to W. W. Auction Company and John Doe, the person in possession.”

Now it is conceded by the appellee, and it is in fact stipulated, that the judgment of the District Court above recited, is “erroneous and should be removed;” and it is further stipulated that “the judgment of the District Court was rendered [or intended to be rendered] in favor of the W. W. Auction Company only for the sum of $191.”

It seems, therefore, quite evident, in view of the stipulation, that the judgment as rendered must be reversed and a new trial awarded. In view of the fact that the state of the ease is so contradictory, confusing and indefinite as to the factual situation, and as to the presence or absence of supporting evidence, notably as to proceedings in the bankruptcy court claimed on one hand and denied on the other to have been in evidence, we think it is unwise to express any opinion in respect to the merits of other specifications of points upon which the appellant is dissatisfied in point of law.

The judgment will be reversed, and a new trial awarded. Costs to abide the event.


author: Peeskie, J.

text:
    CHARLES LaBETT, PLAINTIFF-APPELLEE, v. HEYMAN BROTHERS, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Argued October 2, 1935
    Decided November 26, 1935.

      Before Justices Tbenohabd, Heiiek and Peeskie.
    For the appellant, Abner IF. Feinberg.

    For the appellee, Thomas Brunei/,o.

   The opinion of the court was delivered by

Peeskie, J.

The question, dispositive of this appeal, is: Did the oral contract between the parties here violate section o of our statute of frauds?

Plaintiff, a furniture salesman, sued defendant, furniture dealers, for wages and commissions based on an oral contract of hiring.

The state of demand is made up of two counts. The first count alleges a definite agreement of hiring of the plaintiff by defendant, for a period of one year, at $35 a week, plus a sum equal to one per cent, on merchandise sold by him; that he commenced work on September 13th, 1934; and was discharged on December 29th, 1934; that defendant paid plaintiff the weekly wage of $35 for five weeks and thereafter the basic wage compensation was increased to $40 a week. This count was for the commission which plaintiff alleged was clue him on December 29th, 1934. The second count was for the weekly wage of $40 from December 29th, 1934, to date of suit, January 30th, 1935. Defendant, by way of counter-claim, denied the hiring for a year; it alleged, substantiality that it was for an indefinite period, at a salary of $20 a week, plus a sum equal to one per cent, of the sales made; that plaintiff was to draw $35 a week, $20 against salary and $15 against commissions to be earned; and that he was to refund all over payments on commissions; that after the first three weeks plaintiff was allowed a drawing account of $40 a week, for a period of eleven weeks— when plaintiff’s contract was terminated by the latter. Defendant sought to recover from plaintiff the sum of $102.30, which it asserted it had overpaid plaintiff and which the latter, under his agreement of employment, promised to refund.

Plaintiff’s proof showed that he was in fact employed on September 13th, 1934, for a period of one year beginning September 17th, 1934; it also appeared that he did a day’s trial work, demonstrating his ability as a salesman, on September 14th, 1934. On September 15th, 1934, he was notified to appear on the following Monday, on which date— September 17th, 1934—he actually commenced work. The colloquy between the court and plaintiff’s counsel is rather dispositive of the issue here.

“The court—What period was that, what period was covered by the last employment? Mr. Brunetto—September 17th to December 29th, your honor. It is our contention that the agreement was originally entered into on September 18th, and that he commenced work on September 17th.”

Defendant’s motion for a nonsuit on the ground, among others, that the oral contract between plaintiff and it violated section 5 of our statute of frauds (2 Comp. Stat. 1709-1910, p, 2612), was denied.

Defendant then offered proof in support of its counterclaim; lack of authority on the part of its officers to make a contract of hiring for a longer period than week to week. It then moved for a directed verdict. The trial judge also denied this motion.

Thereafter the trial judge rendered judgment in favor of the plaintiff and against the defendant, in the sum of $180 on the first count and in the sum of $200 on the second count, and found in favor of the plaintiff and against the defendant on the latter’s counter-claim.

We think that it was error for the trial judge to deny defendant’s motions of nonsuit and for a direction of a verdict in its favor. It seems to us that the proofs, and the stated position of the plaintiff, as to the time and term of the oral contract of hiring, brought it squarely within the interdiction of the statute of frauds. The contract, as stated, was made on September 13th, 1934, for one year commencing September 17th, 1934, and not being in writing, was invalid. McElroy v. Ludlum, 32 N. J. Eq. 828; Dolan v. Miller, 13 N. J. Mis. R. 543; 179 Atl. Rep. 619.

Defendant’s counter-claim presented a pure factual question. There was ample evidence for the trial judge, sitting without a jury, to find, as he did, in favor of the plaintiff.

Under these points it becomes unnecessary to discuss the other points argued.

Judgment in favor of the plaintiff and against the defendant on plaintiff’s suit is reversed, and since a retrial cannot change the invalidity of the contract on which the judgment was based, a judgment is entered in this court in favor of the defendant and against the plaintiff below. Judgment in favor of the plaintiff on the defendant’s counter-claim is affirmed. Since each party is partly successful there will be no costs allowed to either one. Moore v. Splitdorf Electrical Co., 114 N. J. Eq. 358; 168 Atl. Rep. 741.


text:
    JOSEPH GORDON, PLAINTIFF-APPELLEE, v. SAMUEL A. WEINREB, DEFENDANT-APPELLANT.
    Submitted October term, 1935
    Decided November 26, 1935.
    Before Justices Tbencuabd, IIeiter and Perskie.
    For the appellant, Collins <f- Corbin.

    For the appellee, Abel Goldstein.

   The opinion of the court was delivered by

Perskie, J.

The basic question requiring decision in this ease is—did the trial judge correctly apply the doctrine or maxim of res ipsa loquitur ?

Plaintiff, while in defendant’s drug store, was invited by the latter to the rear part of the store where he was compounding prescriptions. Plaintiff, while engaged in conversation with the defendant, was hit on the head by a falling-box of soap, weighing about thirty-five or forty pounds, which fell from a shelf on which it was piled, about eighteen feet above the store floor. Merchandise had been removed from the shelves by the defendant’s employes, who were, at the time of the accident, dressing the windows of the store with merchandise. Por the alleged injuries thus sustained plaintiff caused suit to be instituted against the defendant.

Defendant practically, if not actually, concedes the facts as stated. He did not “go forward” with any explanatory evidence.

Defendant’s motions of nonsuit and directed verdict were denied. That was right. Law v. Morris, 102 N. J. L. 650; 133 Atl. Rep. 427. Plaintiff moved for a directed verdict on the ground that the doctrine or maxim of res ipsa loquitur was applicable. The court granted the motion and directed the jury to find a verdict for the plaintiff and submitted the case to the jury on the quantum of damages only. That was wrong.

The doctrine or maxim of res ipsa loquitur finds perfect expression in many of our decisions. The following are but a few of the many which are illustrative. Sheridan v. Foley, 58 N. J. L. 230; 33 Atl. Rep. 484; Law v. Morris, supra; Hochreutner v. Pfenninger, 113 N. J. L. 317; 174 Atl. Rep. 513; Smith v. Kirby, 115 N. J. L. 225; 178 Atl. Rep. 739. In the last cited case our Court of Errors and Appeals, by Mr. Justice Lloyd, adopted this classic definition (1 Thomp. Negl., ch. 15) which is that, “where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” Assuming, however, that the doctrine or maxim of res ipsa loquitur was applicable here, it is well settled that it does not raise a conclusive presumption of negligence sufficient to remove a case from the jury. “The inference [negligence] is still one for the jury and not for the court. They may not believe the witness; the circumstances may be such that the jury will attribute the injury to some cause with which the defendant has nothing to do; they may find the inference of negligence too weak to persuade their minds.” Hughes v. Atlantic City and Shore Railway Co., 85 N. J. L. 212; 89 Atl. Rep. 769; Bud Dress Shop v. Newark Glass Co., 10 N. J. Mis. R. 614, 615.

And since the judgment of $400 rendered by the jury here in favor of the plaintiff must be reversed, we desire to point out some of the cases which correctly state the law on the propriety of asking a defendant, on cross-examination, as the defendant was asked here, if it were really in his own interest that he was testifying, or whether he was insured against the result of an adverse verdict. Day v. Donohue, 62 N. J. L. 380; 41 Atl. Rep. 934; Hollander & Son v. Ruder, 103 N. J. L. 658; 137 Atl. Rep. 405.

Judgment is reversed, to the end that a venire de novo issue; costs to abide the event.


text:
    STEPHEN A. MIKO, Jr., PLAINTIFF-APPELLEE, v. MAX FELDMAN, DEFENDANT-APPELLANT.
    Argued October 1, 1935
    Decided November 29, 1935.

      Before Justices Trenchard, Hei-ier and Perskie.
    For the appellant, Benjamin Nessanbaum.

    For the appellee, Rosen & Rosen.

   The opinion of the court was delivered by

Perskie, J.

This appeal brings up for review a judgment of the District Court of the First Judicial District of the county of Hudson. It is based on a verdict of the trial judge, sitting without a jury, in favor of the plaintiff and against the defendant below, in the sum of $459.40 and $27.17 costs.

Plaintiff sued the defendant, Feldman, on a note originally in the sum of $1,500 and reduced by successive renewals to $459.40. It was signed by the defendant and made payable to the order of Nathan Hiller and was discounted by the latter at the Weehawken Trust Company. The proceeds of this note, and that of another note discounted by the defendant, but not here involved, were used to assist the bankrupt brother-in-law of Hiller and Feldman.

It is practically conceded, in paragraphs 2 and 10 of defendant’s specification of defenses, and the proofs disclose, that plaintiff holds the note by assignment from the Weehawken Trust Company; that the assignment was executed ■after maturity and dishonor of the note; and that plaintiff instituted this suit for and in behalf of Nathan Hiller.

The meritorious question in this case is whether Feldman or Hiller is primarily obligated to pay the note. If Feldman, as he claimed, signed the note, as an accommodation maker for Hiller, and the latter lent his credit to the bankrupt brother-in-law of both, then, of course, Feldman is not liable to either Hiller or his agent, Miko, the plaintiff here. Negotiable Instruments law, sections 28 and 29, 3 Comp. Stat. 1709-1910, p. 3738. If, however, Feldman lent his credit and Hiller as payee, endorsed the note, as an accommodation for Feldman, as Hiller claimed he did, Feldman would be liable.

It is urged that Hiller is not a holder for value. This is without merit. “Value is any consideration sufficient to support a simple contract.” Section 25, Negotiable Instruments law, supra. “It may be given to the promissor or to some other person, or by the promissee to some other person. It matters not from whom the consideration moves, or to whom it goes. If it is bargained for as the exchange for the promise, the promise is not gratuitous.” The Coast National Bank v. Bloom, 113 N. J. L. 597; 174 Atl. Rep. 576; Williston on Contracts 193, 197, 235; see, also, Schmid v. Haines, 115 N. J. L. 271; 178 Atl. Rep. 801. There is ample proof here to support the finding that Hiller was a holder of the note for value.

The real parties to this suit, as stated, are related. The testimony is long, involved and sharply controverted. It is a type of case in which the judge, as a trier of fact, could well have found, under the proofs, for either party.

According to Hiller it was only on the strength of Feldman's signature that he became a party to the transaction. He stated that Feldman had given his assurance that there was nothing for him to worry about; he would take care of the notes. This testimony, notwithstanding direct contradiction by the defendant and his witnesses, amply warrants the finding of the trial judge, the trier of the fact, in favor of the plaintiff and against the defendant. Hnder the circumstances motions to nonsuit and to direct a verdict in his favor were properly denied. It is well settled that, under such circumstances, we do not weigh the evidence; a finding of fact based on legal evidence will be sustained, unless other legal error appears. Breithart v. Lurich, 98 N. J. L. 556; 120 Atl. Rep. 11; Hottinger v. Johns, 112 N. J. L. 177; 170 Atl. Rep. 36.

Defendant further contends that the court improperly admitted the assignment from the Weehawken Trust Company to plaintiff, Miko. The basis of that contention is that it was necessary for the plaintiff to introduce proof of the corporate seal of the bank to the assignment. The law applicable to the challenged admissibility of corporate instruments is fully stated by our Court of Errors and Appeals, opinion by Mr. Justice Parker, in the case of Robertson v. Burstein, 105 N. J. L. 375; 146 Atl. Rep. 355. Assuming, but not so deciding, that proof of the assignment was necessary, the difficulty with the contention is that it is raised here for the first time. The objection below to its admission was “that the instrument was witnessed and attested and must be proven in the first instance by the person who witnessed or attested it—the proof of his signature by somebody else is not proper proof under the law.” Objections to the introduction of evidence for reasons other than those interposed at the trial are not available on appeal. Schreiner v. New York and New Jersey Tel. Co., 82 N. J. L. 743; 82 Atl. Rep. 887; Feldman v. Jacob Branfman & Son, Inc., 111 N. J. L. 37; 166 Atl. Rep. 126. It may not be out of place, however, to mark the fact that the objection was made notwithstanding the fact that the signatures on the assignment of Mr. Gordon, president of the bank, and Mr. Berenbroick, who appeared to be the secretary, were proved by a witness, the assistant treasurer, who not only knew the signatures of the officers thereto but also knew the entire transaction as well. Moreover, the basis for this objection below was clearly untenable. Chapter 207, Pamph. L. 1927, p. 394; Cum. Supp. Comp. Stat. 1925-1930, p. 699, § 70-62g, abrogated the necessity of calling witness to a document or accounting for his absence. Robertson v. Burstein, supra.

And if there was merit, in the first instance, to the objection on the part of the court in refusing testimony as to the true consideration for the note (Allied Tar and Chemical Corp. v. Joffe, 110 N. J. L. 129; 164 Atl. Rep. 446), or to any other testimony within the scope of the issues, it was cured time and time again; the parties and their witnesses fully told and retold their respective versions of the transaction. Ho substantial rights of the defendant were injuriously affected.

There is no merit to any of the other points argued.

Judgment is affirmed, with costs.