author: Bodine, J.

text:
    THE BOROUGH OF BRADLEY BEACH, A MUNICIPAL CORPORATION, ETC.. PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY ET AL., DEFENDANTS.
    Decided November 25, 1931.
    For the rule, Joseph R. Megill.

      Contra, William E. Foster and Walter L. McDermott.

      For Avon-by-the-Sea, Samuel Y. Hampton.

    For the board of public utility commissioners, Daniel DeBrier.

   Bodine, J.

The borough of Bradley Beach seeks a certiorari to review an order of the board of public utility commissioners of October 6th, 1931, in the matter of the application of the Coast Cities Eailway Company for leave to discontinue street car service between Belmar and Asbury Park and substitute in lieu thereof auto buses for which service a single cash fare of ten cents and six tickets for fifty cents was authorized, together with free transfers at various points.

The street railway company has been operated for several years at a loss. The business is largely seasonal and it appears impossible to afford adequate service during the busy months of the year, and at the same time to cut operating expenses during the remainder of the year. The municipalities affected all gave their consent to the substitution of buses. The sole question argued here and before the public utility commissioners was the necessity of the ten cent fare.

The proofs show that during- the last year the company while charging a seven cent fare for trolley transportation met a loss of more than $50,000. In operating buses in other localities, and charging a uniform rate of ten cents except on a single route in Long Branch little more than expenses have been covered. The railway company has not paid dividends for the last six years. Since the operation of the trolleys at the seven cent fare has been unprofitable and the operation of buses at the ten cent fare has yielded no more than a reasonable return, the action of the utility board in allowing the ten cent rate with an option to purchase six tickets for fifty cents seems proper and supported by the testimony.

The writ will therefore be denied, with costs.


source: Caselaw Access Project

author: Peb Curiam.

license: Public Domain

text:
    LOIS MACK, BY NEXT FRIEND, ET AL., RESPONDENTS, v. LEOKADA MACKIEWICZ ET UX., APPELLANTS.
    Decided November 20, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    For the appellants, Reynier J. Wortendyke, Jr.

    For the respondents, Eugene T. Sharkey.

   Peb Curiam.

This action was brought to recover compensation for personal injuries received by the infant plaintiff and for the expenses incurred by the father of the infant as the result of her injuries. The defendants are husband and wife, and are the joint owners of a house and lot located in the city of Bayonne. They occupied a part of the first floor of the house, and the father and mother of the infant plaintiff occupied another portion of that floor, the father being a son of the defendants. The attic in the building, which was two stories in height, was used both by the defendants and their son and daughter-in-law for storage purposes. A short time previous to the happening of the accident a fire had occurred in this attic, and at the time the infant plaintiff was injured her grandmother was sweeping out the rubbish from the attic down the stairway to the second floor, the infant’s mother helping her to dispose of the stuff when it came down. She had the little girl with her while she was doing this, and the female defendant knew that the infant was there. A bottle of acid, which was being swept down the stairs with the other rubbish bjr the grandmother, struck the child, broke and inflicted upon her the injuries which are the foundation of the present suit. The trial resulted in a verdict in favor of the plaintiffs against both the defendants, and the latter have appealed, the sole ground of appeal being that the trial court erred in refusing to grant a motion for the direction of a verdict in favor of the defendants, that motion being based upon the contention that there was no proof showing any negligence on the part of either one of them which was a producing cause of the accident.

In our opinion, the facts already recited made the question of the negligence of the female defendant a matter to be determined by the juiy, and, for this reason, the trial court was entirely justified in refusing to grant the motion as to her. We think, however, that the motion should have been granted so far as the defendant Stanislaus Mackiewicz, the infant’s grandfather, was concerned. He had nothing to do with the cleaning of the attic. There is no proof to show that he had any knowledge of the fact that his wife was sweeping out the rubbish, and no proof that her act in doing so was the result of a conference between them. The common law rule that a husband is responsible for the torts of his wife no longer prevails in this state. He is not responsible for those torts unless they occur during the prosecution of a joint enterprise in which they have a common interest and in which each has an equal right to direct and control the conduct of the other with respect thereto. As has already been intimated, there is nothing in the proofs which even suggests that the husband had any knowledge of his wife’s intention to clean out the attic, or that he had a right to direct or control to an3r extent the conduct of the wife in doing so.

For the reason indicated, we conclude that the motion to direct a verdict in favor of the husband should have been granted and that the judgment entered against him should be reversed.


author: Pee Oubiam.

text:
    ALLIED TAR AND CHEMICAL CORPORATION, PLAINTIFF-APPELLANT, v. ALEXANDER E. JOFFE, DEFENDANT-APPELLEE.
    Submitted October term, 1931
    Decided November 18, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Samuel H. Berlin.

    For the appellee, Anthony La Porta.

   Pee Oubiam.

This was an action upon a promissory note, in which the defendant-appellee was the maker and the plaintiff-appellant was the payee. The defense appears to have been that the note was not in fact what upon its face it appeared to be, namely, a promise, to pay a sum certain, but was a mere receipt for moneys advanced by the plaintiff to the defendant for services to be performed by the latter. Oral testimony to this effect was offered by the defendant and accepted by the trial court “on the theory that the true consideration of a note or negotiable instrument may be shown by parol evidence."

Acting upon such proof the trial court found, “that the defendant * * *, performed the services that were to have beeen performed for the plaintiff, and that the said note was not given to secure a loan or advance by the plaintiff to the defendant, but on the contrary was in the nature of a receipt, executed by the defendant in consideration of the services that he was to perform for the plaintiff and which he did perform * *

The result was that the court below gave judgment for the defendant.

We conclude that the acceptance of this proof was erroneous and contrary to the principle of Naumberg v. Young, 44 N. J. L. 331, which has been consistently followed by our courts.

The judgment below is reversed.


author: Per Curiam.

text:
    JANE R. McKEOWN ET UX., PLAINTIFF, v. CHARLES MUSS, DEFENDANT.
    Decided November 20, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the rule, Thompson & Hanstein.

      Contra, William I. Garrison,

   Per Curiam.

The plaintiff Mrs. MeKeown and some other friends of the defendant were riding in his ear, on his invitation, from Atlantic City to Philadelphia. Something went wrong with the motor, and the defendant turned the car around, intending to go back to Atlantic City. According to his own story, he was driving his car at about fifty miles an hour, when suddenly it caught fire. Behind him another car was being driven and was traveling at a more rapid rate of speed. When the fire broke out in his car he suddenly turned off the concrete surface of the road, apparently without slacking speed at all, his purpose being to avoid a collision with the one which was following him. As he turned off the concrete he jammed on his brakes, his car upset and Mrs. MeKeown was injured. The present suit is brought by her and her husband to recover compensation from the defendant for the injuries received by her, and also to recover the expenses incurred by the husband in the treatment of those injuries and compensation for the loss of her services and society. The trial resulted in a verdict in favor of each of the plaintiffs, the jury awarding Mrs. MeKeown $1,500 and her husband $500. We are now asked to set these verdicts aside, first, because they are contrary to the weight of the evidence, and, second, because they are excessive.

It is enough to say, in disposing of the first point, that the conditions under which the accident happened were not controverted, and, in our opinion, fully justified the jury in finding that the overturning of the car was due to the carelessness of the defendant.

We also are satisfied from a reading of the testimony of the medical experts, and of other witnesses, as to the character of the wife’s injuries, and also the evidence as to the expenditures of the husband, that neither the verdict in favor of the wife nor that in favor of the husband was excessive.

The rule to show cause will be discharged.


author: Pee Cukiam.

text:
    BARNETT MEISTERMAN ET AL., EXECUTORS, ETC., PLAINTIFFS, v. HERMAN LOZOWICK ET AL., DEFENDANTS. NATHAN SHAW, PLAINTIFF, v. HERMAN LOZOWICK ET AL., DEFENDANTS.
    Decided November 20, 1931.
    Before Gummeke, Chief Justice, and Justices Pakkee and Case.
    Por the rules, McCarter <& English and Augustus C. Sluder, Jr.

    Contra, Joseph Coult and William Krueger.

   Pee Cukiam.

Samuel G. Meisterman, Nathan Shaw and a man named Sevrin were riding from New Brunswick to Newark in a Studebaker car, the car being driven by Sevrin. When near Woodbridge their car collided with the rear end of a truck owned by the defendant Lozowiek and driven by his employe, Jones. This truck, according to the testimony submitted on the part of the plaintiffs, was standing on the highway without any lights at its rear, and was not observed by Sevrin, the night being a dark and misty one, until too late for him to avoid colliding with it. This testimony was contradicted by the defendant Jones, who was driving the truck, he testifyiug that his truck was moving along the highway at the time of the collision and that there was a lantern attached to the rear thereof by rope. As a result of the collision Meisterman was killed and Shaw considerably bruised and his muscles sprained. The trial resulted in verdicts in favor of both of the plaintiffs, the jury awarding the executors of Meisterman the sum of $75,000 and Shaw the sum of $800.

The first contention made by counsel for the defendants as a ground for directing a retrial of the cases is that the verdicts are against the weight of the evidence. Our reading of the testimony satisfies us that the jury was entirely justified in believing the testimony submitted on the part of the plaintiffs as to the conditions under which the collision occurred and disregarding that of the defendant Jones so far as it contradicted the plaintiffs’ evidence; and, this being so, we conclude that the contention that the verdicts are against the weight of the evidence is without merit.

It is further contended that the damages awarded by the jury in each of these cases are excessive. We think this contention is not justified so far as the award to Shaw is concerned. We reach the opposite conclusion, however, as to the award to the executors of Meisterman. Our conclusion is that the award is that the case is so manifestly excessive as to justify a setting aside of the verdict and directing a new trial of the cause.

It is also urged that the court committed error in refusing certain objections made by the defendants’ counsel to questions put to the witness Jones on cross-examination. We find nothing of merit, however, in this contention, nor is there anything in the argument submitted in support of it which requires discussion.

The rule to show cause in the case of Shaw against the defendants will be discharged, and that in the case of Meisterman’s executors against the defendants will be made absolute.


author: Pee Cubiam.

text:
    F. A. NORTH COMPANY, PLAINTIFF, v. IDA WARE, DEFENDANT.
    Submitted October term, 1931
    Decided November 18, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the rule, Samuel Morris.

    Contra, Waddington & Mathews.

   Pee Cubiam.

This is a rule to show cause why a judgment by default should not be opened and the defendant be permitted to answer and defend.

The grounds urged are, at best, of doubtful merit and such conclusion would be sufficient to require a discharge of the rule. Beyond this, however, the defendant is chargeable with gross laches.

The judgment was entered against her June 14th, 1929, and an execution issued upon the same date under which a levy was made upon her real estate August 3d, 1929, and the lands sold December 5th, 1929. The rule to show cause was not applied for and allowed until one year after such sale, namely, December 4th, 1930.

The rule is discharged, with costs.


text:
    ANTONETTE POWERS ET UX., PLAINTIFFS, v. NATHAN STRAUS, INCORPORATED, DEFENDANT.
    Decided November 20, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the rule, Edwin F. Smith and Andrew 0. Wittreic'h.

    Contra;, Aaron L. Simon.

   Per Curiam.

This suit was instituted by Mrs. Powers to recover compensation for injuries received by her while in the store of the defendant corporation as a customer. Her husband is joined as a co-plaintiff, and seeks to recover moneys expended by him in the treatment of his wife’s injuries, and also for the loss of her services and society. The trial resulted in verdicts in favor of the plaintiffs, the jury awarding Mrs. Powers $4,000 and her husband $500. We are asked to set aside these verdicts on two grounds: first, because they are contrary to the weight of the evidence; and, second, because they are excessive.

The case submitted by the plaintiffs showed that Mrs. Powers, on the 11th of February, 1930, went into the store of the defendant corporation to purchase some fish and clams. After purchasing the fish, she was told by the clerk that they had not yet received a bag of clams which they were expecting, and he asked her to wait for a few minutes, as the time for delivery thereof had already arrived. In a very short time thereafter a bag of clams was brought into the rear of the store and deposited near the end of the counter and opposite the ice-box. The clerk then asked her to accompany him to the end of the counter and show him the size of the clams that she wanted. In accordance with this request, she followed him to the rear of the store and the end of the counter, and stood in front of the ice-box, with her back to it, while he cut the cord of the bag. Just as he finished doing this, the door of the ice-box was opened by another clerk of the defendant companjq who was inside the box, and she was struck in the back with the handle thereof. The door was a very heavy one, and, as a result of the blow, she was severely bruised, and shortly afterwards sustained a miscarriage. The defendant’s witnesses denied that Mrs. Powers had been invited to the rear of the store by the clerk, and testified that, on the contrary, she was told not to follow him there, and that her presence at the rear of the counter at the time of the accident was the result of her disregard of the clerk’s instruction.

The contention in support of the first ground for setting the verdicts aside is that the proof that Mrs. Powers had been invited to come to the rear of the store and the end of the counter was contrary to the great weight of the evidence, and that, in fact, the proof submitted by the defendant practically demonstrated that she had disregarded the instruction of the clerk in coming there. We are not impressed with this contention. On the contrarjq our examination of the proofs satisfies us that the jury was fully warranted in determining that the accident happened under the conditions testified to by the plaintiff Mrs. Powers and her witness. This being so, we conclude that the first ground for setting aside the verdicts is without merit.

As to the second contention—namely, that the verdicts are excessive—our examination of the proof with relation to the character of the injury and the subsequent miscarriage satisfies us that the award of $4,000 to her was grossly excessive. If she will consent to reduce the verdict to $2,000, the rule to show cause so far as it relates to the verdict in her favor will be discharged. Otherwise it will be made absolute. As to the award to the husband of $500: We consider that, under the evidence in the case, it was very reasonable, and conclude, therefore, that the rule to show cause so far as it is directed at his verdict should be discharged.


author: Pee Curiam.

text:
    LEDA MERSELIS, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Decided November 20, 1931.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Eor the rule, William F. Vosseller and Henry H. Fryling■„
    Contra, Feder & Rinzler.

   Pee Curiam.

This suit was brought by the plaintiff to recover compensation for injuries received in a collision between an automobile, which she was driving along the turnpike between Paterson and Pompton, and a bus of the Public Service Coordinated Transport, which was traveling in an opposite direction. The accident occurred on a foggy, rainy night. The claim of the plaintiff was based upon the contention that the collision occurred through the carelessness of the driver of the bus in swinging over from his right-hand side of the highway, across the middle line thereof, to where the plaintiff’s car was being driven, without any notice given by him • of his intention to do so. The defense was absolutely contradictory of the testimony offered by the plaintiff in support of her contention. The proof submitted by it was, that the bus was traveling on the right-hand side of the road and that the plaintiff suddenly swung across the middle line thereof, and ran into the bus.

The testimonjr submitted on behalf of the defendant so overwhelmingly supports the conclusion that the collision was due solely to the negligence of the plaintiff, as to demonstrate that the verdict of the jury was the result either of clear misunderstanding of the testimony, or of a prejudice against the defendant corporation and in favor of the plaintiff.

We conclude that the rule to show cause should be made absolute.


text:
    FANNY GILLESPIE, PLAINTIFF-RESPONDENT, v. REBA PLOTKA, INDIVIDUALLY, AND REBA PLOTKA, EXECUTRIX OF THE ESTATE OF MAX PLOTKA, DEFENDANT-PROSECUTOR.
    Submitted May 15, 1931
    Decided November 16, 1931.

      Before Gummere, Chibe Justice, and Justices Parker and Case.
    Eor the plaintiff, Samuel T. French and William I. Garrison.

    Eor the defendant, Babcock •& Champion and Bourgeois <& Coulomb.

   Per Curiam.

This is defendant’s rule to show cause why a verdict by a jury against the defendant and in favor of the plaintiff for $10,000 should not be set aside and a new trial ordered.

The plaintiff was a tenant of the defendant, occupying the second floor of the building called an apartment house, the said building being occupied by several tenants. At the rear of the building was a stairway with landing or platform at each back door. The use intended to be made of this stairway and platform, with the exception of using it as a place to put garbage cans for removal by the janitor, is disputed, though we think this dispute does not 'enter into the issue. There was a railing around the platform. Plaintiff was previously partly crippled in her ankle and also it seems had a defective back due to infantile paralysis. She went out to put some papers in the garbage cans and says that the garbage that was there had not been removed and as she was placing the papers for removal as garbage she slipped on the platform and grabbed for the railing which broke with her and she thus was thrown to the ground. The complaint alleges negligence in that the defendant was under the duty of keeping the premises reasonably safe for the proper use and enjoyment of the plaintiff but "wholly failed and neglected to do so but permitted and caused a certain back porch to become worn out, unfit for use and unsafe and insecurely fastened and dilapidated to such an extent that when the said plaintiff was using the said porch the railing enclosing the same and appurtenant thereto gave way because of the facts and conditions hereinbefore mentioned, so that the said plaintiff fell,” &c. The judge iu charging the jury specifically charged that the plaintiff could not recover because of the failure of the defendant to have the porch cleared of garbage, that the plaintiff alleged that her fall was because of the defective condition of the railing and that it is upon that defect, if any, her recovery should be had. His language on this point was in part as follows: “Might it have reasonably been foreseen by the defendant that the condition of her porch railing would have led to the result which happened in this case? Was that which happened such a happening as occurs in the ordinary state of things? Was there another culpable cause, an efficient agency, intervening between the breaking of the rail and the subsequent fall? Erom the evidence and the just inferences you draw from the proven facts, do you find that the slipping on the garbage precipitated the plaintiff against the rail with such force as to break a railing in a reasonably safe state of preservation and repair, or do you find that the slipping was only incidental, and that a defective condition of the rail was the natural and proximate cause? If the slipping on the garbage was the natural and proximate cause, then you must find a verdict of no cause of action. If you find the defective condition of the rail to have been the natural and proximate cause, then you will go to the next proposition with which I shall deal.”

Of the seven reasons filed, the fifth and seventh are not framed in accordance with rule 125, and therefore need no consideration. The sixth, that the verdict was excessive, and the fourth, that the verdict was contrary to the charge of the court, are not argued. The second, that the verdict was against the weight of evidence, will be presently considered, as will also the first, that the court refused to direct a verdict for the defendant on the ground of assumption of risk by the plaintiff, and contributory negligence on the part of the plaintiff; that the breaking of the rail was not the natural and proximate cause of the accident; that there was no proof in the case to support the allegations of the complaint; and the third, that the jury should have found for defendant for the same reasons as specified in number 1.

It will be observed that the case in most of its fundamental features is similar to Charney v. Cohen, 94 N. J. L. 381; affirmed, 95 Id. 538, and to Bolitho v. Mintz, 106 Id. 449. The judge assumed, and we think properly, that the jury would find that the rear balcony in question was for the common use of the tenants, and that plaintiff was in the act of using it for a purpose authorized by the landlord. Naturally it would be the duty of the latter to use reasonable care in providing a protection against falling that would be reasonably adequate to meet any strain that should fairly be anticipated as resulting from such use. In Charney v. Cohen, plaintiff’s decedent was leaning against the railing while sweeping snow. In Bolitho v. Mintz, plaintiff put a strain on a clothesline attached to a post to which the rail was fasteneud, and the post gave way, carrying the railing with it. In Smith v. Mountain Ice Co., 74 Id. 26, it was held that the trial court erred in assuming that the railing there in question was provided to meet the strain of a workman falling backward against it because his ice hook slipped, and that this particular question was for the jury. We think a similar situation existed in the present case, and that the judge was right in asking the jury whether on the evidence they found the rail was apparently designed to withstand the shock of a tenant slipping, and clutching at it for support.

The next question in order is whether, assuming the jury found as above, the defendant negligently failed to provide and maintain a railing sufficient for that purpose. The evidence is, as usual, in conflict; but it indicates a railing two by three inches in cross section, about seven feet long, and nailed down at the ends to the top of posts. The witness Crawford testified that he nailed down the ends, which were loose in August, 1926, six months before the accident; that it was then “safe to a certain extent” but “looked bad to me. I judge about two foot from the end next to Texas avenue was a very bad looking place * * * it looked more like a knot that would be somewhat rotten.” William Bell, former janitor, said the rail was “always good.” On cross-examination. that he did not remember seeing any knot. Penton, a carpenter, called for defendant, said he had gone over the rails as usual, in November, 1926, that he would have noticed any defect and there was none that he saw. Hudson, a painter, testified to painting the structure in November, and that the stairway was “in first class condition.” There was considerable testimony to the effect that the structure generally was shaky and in poor order, which the court admitted over exception, but the point is not now raised. A reading of the testimony shows clearly that a jury question as to the defective condition of the railing, either called to the attention of defendant, or existing for such a period that it should have been observed and rectified, was presented, and creates the impression that the jury did not disregard the weight of evidence in finding that it existed and that defendant was chargeable with it.

It is argued that plaintiff assumed the risk, and the case of Saunders v. Smith Realty Co., 84 N. J. L. 276, is relied on. But in that case there was no evidence of invitation. In this case the evidence is explicit on that point. Contributory negligence was for the jury, and their finding on that point should not be lightly questioned here. As to the requests to charge, they were either adequately covered or properly refused, and in-view of the foregoing discussion need no specific notice.

The rule will be discharged.


text:
    R. B. POTTER AUTO COMPANY, INCORPORATED, PLAINTIFF-APPELLEE, v. FRED J. VAN DIEN, DEFENDANT-APPELLANT. ARMORY GARAGE OF PASSAIC, INCORPORATED, PLAINTIFF-APPELLEE, v. FRED VAN DIEN, DEFENDANT-APPELLANT.
    Argued October 6, 1931
    Decided November 18, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellants, J. Chester Massinger.

    For the appellees, Feder & Rinzler and Roegner & Levy.

   Pee Cubiam.

These are appeals from judgments in actions wherein the plaintiffs sued to recover damages to two automobiles caused by the defendant’s car, which had been parked on Gregory avenue, in Passaic, running down a steep grade and colliding with the cars of the plaintiffs.

Tinder the circumstances and conditions existing, the defendant-appellant produced a six-year-old boy, who because of his immaturity the trial judgp refused to put upon oath and who made the statement that he entered the defendant’s car, released the brakes and turned the wheels so that the car moved down grade, of its own momentum and collided with the cars of the plaintiffs.

The grounds urged for reversal may be summarized to be, refusal to nonsuit, refusal to direct a verdict in favor of the defendant-appellant, errors in findings of facts as to negligence and that the judgment was contrary to law.

All of such alleged errors must, from the state of the case before us, be predicated upon the proofs presented by the young boy before referred to.

The trial judge was not required to believe the statements of this immature, unsworn witness.

On the contrary, he could disregard such statements, and we conclude he was justified in so doing.

As a result of such determination we conclude that there was no error in the court below, and that the judgments should be affirmed, with costs.


text:
    JOHN HRABOVSKY, BY NEXT FRIEND, ET AL., PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Decided November 20, 1931.
    Before Gummebe, Chiee Justice, and Justices Parker and Case.
    Eor the rule, William F. Vosseller and Henry H. Fryling.
    Contra, Joseph J. Weinberger.

   Per Curiam.

The plaintiff John Hrabovsky was injured in a collision between a truck that he was driving on Main street, in the city of Passaic, and a trolley car of the defendant company. Both the truck and the trolley car were traveling south. Main street is double-tracked, and the plaintiff was driving his truck along the center of the road and occupying a portion of each track. His claim was that the trolley car was following him, and that suddenly and without warning it crashed into the rear of his truck, which was moving at the rate o£ twenty miles an hour. The defense was that the trolley car, instead of following, was preceding the truck; that it had stopped on the corner of Main street and Howard avenue to discharge a passenger, and that while at a standstill the truck ran into the ear from the rear. The jury awarded •John Hrabovsky, who was twenty-three years old at the time •of the accident, $1,000, and his father, who was a co-plaintiff and sought to recover expenses incurred by him as the result of his son’s injury and the loss of the services of the latter, the sum of $500.

The only witnesses called by the plaintiff who testified as to the conditions under which the accident happened were ■John Hrabovsky and a boy who was assisting him in the • distribution to customers of bread which was being carried in the truck. On the other hand, the statement of the defendant’s motorman that the plaintiff’s truck ran into the rear of the car while the latter was at a standstill was supported by the testimony of the passenger who had signaled for the stopping of the car at Howard avenue and several ■other passengers who were riding in the car. All of these witnesses except the motorman were entirely disinterested.

The testimony so greatly preponderates in favor of the claim of the defendant corporation that the collision occurred under the conditions testified to by the motorman that, in •our opinion, justice requires that the rule to show cause .should be made absolute.

It will be so ordered.


author: Pee Cueiam.

text:
    CHEMICAL TRUCKING CORPORATION, PLAINTIFF-APPELLANT, v. CHARLES L. MUNCH, DEFENDANT-APPELLEE.
    Submitted October term, 1931
    Decided November 18, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, Harvey G. Stevenson.

    Por the appellee, Morris B. Bamson.

   Pee Cueiam.

This was an action for damages growing out of an automobile highway collision. The cause was heard by the District Court judge without a jury and upon the proofs the-trial judge rendered judgment in favor of the defendant upon, the ground that the plaintiff was guilty of contributory-negligence.

Prom this judgment the plaintiff below appeals, alleging-(1) the court erred as a matter of law; (2) there was no evidence supporting the conclusion that the plaintiff was contributorily negligent.

As to both of these contentions we find against the-appellant.

In our jugment there were facts supporting the finding of' the trial judge in his conclusion that the acts of the plaintiff contributed as to the happening. That being so such conclusion of fact is not reviewabie here.

The judgment under review is therefore affirmed, with costs.


author: Peb Cubiam.

text:
    HAROLD JONES, PLAINTIFF, v. LOUIS VONAH, DEFENDANT.
    Decided November 20, 1931.
    Before Gujimeee, Chief Justice, and Justices Pakkbb and Case.
    Por the rule, Edwin F. Smith and Raymond Dawson.

      Contra, Theodore D. Parsons.

   Peb Cubiam.

The plaintiff, a special motorcycle policeman employed by the township of Middletown, while patrolling the KeyportRed Bank turnpike, on the afternoon of Sunday, October 13th, 1929, was run down and injured by an automobile driven by the defendant, Yonah. The highway was pretty well crowded, a double line of cars going north and a single line going south. The plaintiff, who was traveling south, turned out to the left of this single line of cars for the purpose of passing one or more of them, but still remained upon that portion of the highway devoted to southbound traffic. Before he had turned in again, however, the defendant’s car, which was going north, swung out from the double line over and across the edge of the south-bound strip and collided with plaintiff’s motorcycle, throwing him therefrom and severely injuring him. This was the testimony submitted on behalf of the plaintiff in support of his claim for compensation for the injuries received in the collision. The testimony supporting this state of facts was denied by witnesses called by the defendant, who testified that the plaintiff swung out beyond the line of south-bound traffic and crossed over to that part of the highway devoted to northbound traffic, and, having done so, collided with the car of the defendant, which was in its proper place on the highway. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him as compensation $26,500.

The jury believed the story told by the plaintiff and his witnesses, and we cannot say that they were not justified in doing so. This being so, we conclude that the first ground upon which we are asked to set aside the verdict—namely, that it was against the weight of the evidence—is without legal merit.

The only other ground urged for making the rule absolute is that the verdict was excessive. Counsel for the plaintiff admits this to be the fact, and suggests that a reduction of the award by $6,500 would be proper. We concur in his view that the verdict is excessive, and think that there should be .a reduction of the award by $10,000.

If the plaintiff will consent thereto, he may enter judgment for the reduced amount. Otherwise the rule to show cause will be made absolute.


text:
    MARY J. NELSON, PLAINTIFF, v. RITZ-CARLTON RESTAURANT AND HOTEL COMPANY, DEFENDANT.
    Decided November 20, 1931.

      Before Gtjmmeee, Chiee Justice, and Justices Paekee and Case.
    Eor the rule, Thompson & Hanstein.

      Contra, William I. Garrison.

   Pee Cueiam.

This action was instituted by the plaintiff to recover compensation for injuries received by her while a guest in the hotel of the defendant corporation. The proofs on the part of the plaintiff showed that she and her sister went to the hotel in the afternoon of July 13th, 1925; that they were assigned a room which was just being vacated by guests who had theretofore occupied it; that they found the room to be very uncleanly, the waste-basket not being emptied, the floor covered more or less with lint and cigarette ashes, and a lot of broken glass on the floor of the closet, which had no light in it; that they left the hotel for several hours for the purpose of affording the chambermaid the opportunity of fixing up the room; that they returned late in the evening, found that no cleaning had been done or any change made in the condition of the room, except that new sheets had been placed upon the bed and clean towels in the bathroom; that, notwithstanding the condition of the room, they retired for the night; that, in the morning there was a knock at the door, and the plaintiff got out of bed to answer the call; that, in doing so, she stepped upon a needle, which ran into her foot and broke; that she notified the manager of the hotel of the accident, and the physician emplo3’ed by the management was then called and opened the foot and ex-traded the needle. The proofs submitted on her behalf also showed that, as the result of this accident, the foot became infected; that she was in bed several months and had to give up an employment for which she received $90 a month as compensation. The trial resulted in a verdict in her favor, the jury awarding her $2,500 as compensation.

The first ground upon which we are asked to set the verdict aside is that it was against the weight of the evidence. The argument in support of this contention is that the records of the hotel, which were offered in evidence by the defendant, show that the room to which the plaintiff and her sister had been assigned had been empty for two or three days; and, further, that it was! the custom of the hotel management, whenever a room became vacant, to have it cleaned promptly. The case, however, is silent upon the question of whether the person who made these records had any knowledge of the condition of the room when it was assigned to the plaintiff and her sister; and there was no direct proof that, in accordance with the usual custom of the management, it had been cleaned prior to such assignment. In this situation, we consider that the jury was fully justified in finding that the condition of the room at the time of its occupation by the plaintiff and her sister was that testified to by them.

It is further argued on this point that, even assuming the testimony submitted on the part of the plaintiff as to the condition of the room at the time she and her sister took possession of it, that fact does not impose any liability for the accident upon the defendant corporation, for the reason that there was no proof that it had knowledge of the existence of the needle on the floor when the assignment of the room was-made, or that the needle had been there so long before the happening of the accident as to charge it with notice. We think this contention also without merit. In our opinion, the proprietor of a hotel is bound to use due care to have a room therein thoroughly cleaned after its occupants have left the hotel and before its assignment to incoming guests. That the defendant corporation failed in the performance of this duty is manifest from what has already been said; and, in the absence of any explanation of the reason for such apparent neglect, the jury was justified in finding the defend•ant liable.

It is next contended that the court erred in refusing to •direct a verdict for the defendant. The ground of this motion was that there was nothing in the case which would support the conclusion that the accident was the result of any negligence on the part of any of its employes. What has already been said disposes of this contention.

The only other ground upon which we are asked to set aside the verdict is that it is excessive. If the testimony of the physicians called as witnesses by the defendant is an accurate description of the plaintiff’s condition resulting from the accident, then the award is undoubtedly excessive. But, •on the other hand, if that injury and its results were accurately described by the physician called on behalf of the plaintiff, then the verdict is moderate. The jury saw the witnesses, and it was its province to determine which of the •conflicting medical statements was the more accurate. The jury accepted that of the physician called by the plaintiff, and we cannot say that it was not justified in so doing.

So considering, we conclude that the rule to show cause .should be discharged.


author: Ackebson, S. C. C.

text:
    JOSEPH HOCKSTEIN AND LENA HOCKSTEIN, PLAINTIFFS, v. STANLEY-FABIAN CORPORATION, STANLEY COMPANY OF AMERICA, INCORPORATED, AND WARNER BROTHERS THEATRES CORPORATIONS, DEFENDANTS.
    Decided November 20, 1931.

      Por the plaintiffs, Brenner •& Kresch.

    .Por the defendants, Edward M. & Runyon Golie.

   Ackebson, S. C. C.

This action is based upon a lease of the Strand Theatre in the city of Bayonne, made by the-plaintiffs, Joseph Hockstein and Lena Hockstein, to Liberty-Amusement Company dated August 13th, 1920, and by that company assigned to the Stanley-Pabian Corporation. By stipulation a copy of said lease and a copy of the assignment', thereof as annexed to the notice of this motion are made a. part of the complaint herein.

The complaint is in five counts and each count alleges that the Stanley-Pabian Corporation merged with the Stanley Company of America, Incorporated, which in turn merged' with the Warner Brothers Theatres Corporation, and recovery is sought against these companies in the alternative.

The Stanley-Pabian Corporation has filed an answer with a counter-claim attached and the plaintiffs now move to' strike out this answer to each count of the complaint upon the ground that it is frivolous and sets forth no legal defense,, and to strike out the counter-claim upon the ground that it' does not set forth a cause of action.

The first count of the complaint seeks to recover the difference between a rental of $1,250 per month and $1,333.33' per month for the period from March 1st, 1930, to the date-of suit. The lease in question is for a term of eleven years-from September 1st, 1920, and the rental is fixed at $15,000< per annum, payable in monthly installments of $1,350, with the following condition:

“That if and when the party of the second part, its successors or assigns, will raise the price of admission to the Strand Theatre from its present scale to a scale which will require the payment of at least thirty-live (35e.) cents for a seat or seats in the orchestra then and in that event the annual rent to be paid by the party of the second part shall be at the rate of sixteen thousand ($16,000) dollars, payable in monthly installments of thirteen hundred thirty-three ($1,333.33) dollars and thirty-three cents, on the first of the month, which will be the increase in the price of admission as hereinabove designated, until the end of the eleven-year term, for which this agreement is made.”

The first count further alleges that the price of admission to the theatre was increased by the defendants to or beyond thirty-five (3oc.) cents for orchestra seats, and the increased rental of $16,000 per year was thereafter paid in monthly installments of $1,333.33 until March 1st, 1930, at which time defendants attempted to reduce the monthly rental to $1,350, which was refused but later accepted upon an agreement with the defendants that it would not be considered a waiver of the additional amount of $83.33 per month, nor of the plaintiffs’ right to sue for and collect said additional amount should it be determined by a court of competent jurisdiction upon considering the terms of the lease that plaintiffs were entitled thereto.

The answer of the defendant Stanley-Eabian Corporation to the count admits the payments of rental as set forth in the first count of the complaint, and that the price of admission to the theatre was, for a limited period, increased to beyond the amount of thirty-five (35e.) cents for the orchestra seats and that thereupon the increased rental provided for in the above-quoted paragraph of the lease was paid by said defendants, but asserts that subsequently and on or about August 1st, 1937, said Strand Theatre was closed and has since remained closed, and since that date there have been no seats for the orchestra in said theatre sold either at thirty-five (35c.) cents a seat or at any other price, and it is contended that under the above-quoted paragraph of the lease, the monthly rental should be reduced to the original amount of $1,250 for the balance of the term of said lease.

The exact point to be decided is whether, after having increased the price of admission to the theatre to a scale which required the payment of an increase in rent of $83.33 per month, which is admitted, the subsequent closing of the theatre, and nonsale of seats for the balance of the term of the lease would automatically reduce the rental to the original sum of $1,250 per month for that period.

It seems to me that there is no ambiguity concerning this subject in the lease. The pertinent part of the above-quoted clause, after stating that in the event of an increase in the price scale for orchestra seats to at least thirty-five (35c.) cents for orchestra seats goes on to provide that, “the annual rent to be paid by the party of the second part shall be at the rate of sixteen thousand ($16,000) dollars payable-in monthly installments of thirteen hundred thirty-three-($1,333.33) dollars and thirty-three cents * * * which will be the increase in the price of admission as hereinabove designated, until the end of the eleven-year term, for which this agreement is made.”

It is to be noted that nothing whatever is said about a reduction in the increased rental in the event of the price-scale being reduced or the theatre being closed. On the contrary we find it provided that in the event of a certain increase in the price scale for orchestra seats, that it “will be-the increase in the price of admission as hereinabove designated until the end of the eleven-year term.” The last quoted clause of the agreement evidently was inserted to serve some useful purpose. It was either intended to prevent a reduction in the price scale once it had been advanced,, so as to maintain the standard of the theatre, or it was intended to show that the increased rental once fixed was not. to be reduced. In either event the increased rental would continue to the end of the term.

In any event there is nothing whatever in the answer suggcsting that the defendant reduced the price scale for orchestra seats below thirty-five (35c.) cents after having made the increase. The only allegation upon the subject is that on August 1st, 1927, the theatre was closed and has since remained closed, and that since said date there have been no seats sold at any price. This is quite different from reducing the price scale of such seats. If defendants’ contention is correct, then there is no reason why any rental at all should be paid for the remainder of the term after the closing of the theatre, because there is no provision whatever in the lease suggesting that the closing of the theatre or the discontinuance of the sale of tickets would have any effect upon the payment of the rental. The landlords could not curtail the term of the lease without the lessee’s consent, and by the same token the lessees could not escape paying rental whether the theatre was closed or not. This defendant suggests that by adding certain words to the clause “which will be the increase on the price of admission as hereinabove designated, until the end of the eleven-year term, for which this agreement is made,” the meaning will be made in harmony with the defendant’s contention. The suggestion is that the words “for the period during” be inserted before the word “which” and that the word “there” be added after the word “which.” The latter end of the whole clause would then read as follows: “Then and in that event the annual rent to be paid by the party of the second part shall be at the rate of sixteen thous- and ($16,000) dollars, payable in monthly installments of thirteen hundred thirty-three ($1,333.33) dollars and thirty-three cents on the first day of the month for the period during which there will be the increase in the price of admission as hereinabove designated, until the end of the eleven-year term, for which this agreement is made.”

This, of course, is a greatly forced suggestion. In the first place the clause is not ambiguous as it stands, and we cannot add anything thereto, much less make a new agreement for the parties. In the second place if we add these words, then the end of the clause reading “until the end of the eleven-year term for which this agreement is made,” is unnecessary and useless.

Enough has been said to show that a proper construction of the criticized clause leads to the conclusion that the plaintiffs are entitled to the increased rental for the balance of the term of the lease, and that defendant’s answer to the first count, including the separate defense, is frivolous and must be stricken out.

The second count alleges that under the terms' of the lease in question, the lessee (defendant’s assignor) agreed to pay the taxes and water rents assessed against the Strand Theatre building, together with the land upon which it is erected, during the term of the lease, and that same were paid until January 1st, 1929, after which neither of the defendants paid any of said taxes or water rents, whereupon the plaintiffs, as owners of the leased premises paid or became obligated to pay said taxes and water rents for the years 1929, 1930 and 1931.

The defendant Stanley-Eabian Corporation, answering this second count of the complaint, admits that the taxes for 1928 were paid by it, but insists that the tax bill included taxes on other property of-plaintiffs not included in the lease held by the defendant, and denies that there is due and owing to the plaintiffs the amount of the taxes and water rents for 1929, 1930 and 1931 as claimed in the complaint. Plaintiffs now move to strike out this answer to the second count as frivolous.

A frivolous answer is one which on its face sets up no defense, although it may be true in fact. Fidelity Mutual Life Insurance Co. v. Wilkes-Barre and H. R. Co., 98 N. J. L. 507. It is apparent that the denial in the answer that there is anything due and owing to the plaintiffs sets up a good defense although it may not be true in fact, and so this answer cannot be stricken out as frivolous.

I am unwilling, however, to pass on without noticing the real question which the parties desired to present for decision. The lease describes the property demised as follows: “All that certain theatre building in the city of Bayonne, county of Hudson and State of New Jersey, known as the Strand Theatre, located at No. 511 Broadway, with the furniture, scenery and appurtenances, reserving * * * unto the said parties of the first part” (plaintiffs) “the promises in the rear of the theatre building, and reserving also unto the parties of the first part the stores and front basement of the said premises, with the right to build additional stores or offices above the stores now located on the ground floor of the premises.”

The paragraph providing for the payment of rental reads as follows: “That the party of the second part in addition to paying the rent hereinabove provided for, will also pay the taxes and water rents charged by the city of Bayonne for the Strand Theatre building together with the land upon which it is erected, during the term of this agreement.”

It appears that the taxes and water rents for 1929, 1930 and 1931 were assessed against all the premises originally known as the Strand Theatre property as one item and in one bill including the part thereof reserved in the lease to the lessors, viz., the lot in the rear and the stores in the front. The plaintiffs insist that under the foreging provisions of the lease this defendant, as assignee thereof, is obliged to pay the entire tax bill on the entire property, including the part thereof reserved to the lessors as aforesaid.

A moment’s reflection, however, will show that this contention is not sound. It would be most unnatural for a lessee, in addition to paying rent for the demised premises to agree to pay taxes and water rents assessed against premises retained by the lessor. If such were the agreement we would expect to find it explicitly stated, and there is no such statement in the lease in question. This thought is emphasized by the fact that the lease expressly provides that the lessee shall furnish steam heat when necessary to the stores reserved to the lessors in front of the theatre building at the lessee’s expense; and in contemplation that additional floors may be added above these stores, under permission given in the lease, it is further provided that the lessors may have the privilege of connecting same with the heating apparatus of the building, the lessee agreeing to supply heat for same upon the lessors paying a share of the total cost of heating proportionate to the radiation installed on such additional floors. Furthermore there is a very explicit statement in the lease providing for the lessee paying any increase in insurance rates, up to a certain amount, due to its operations.

Since such care was taken in these instances to provide for payments not falling naturally under the ordinary terms of a lease, it is but natural to suppose that the parties would have been equally explicit if they had intended the lessee to be bound to such an unnatural obligation as to pay taxes and water rents assessed or levied against premises not included in the demise and over which it had no control.

The answer to the second count must, therefore, stand.

At the argument of this motion it was conceded that the answer to the third and fourth counts of the complaint were not frivolous but properly raised questions of fact which would have to be submitted to a jury, and the application to strike them out as frivolous was withdrawn.

Turning now to the counter-claim, we find that it seeks to recover from the plaintiffs that porportion of the 1928 taxes represented by the valuation of the taxed property not covered by the lease in question, and which taxes were paid by the defendant under the belief that the premises taxed consisted only of the property covered by the lease.

Having already found that the defendant is not liable under the terms of the lease for the taxes and water rents assessed or levied against that portion of the premises reserved to the lessors, the question remains whether the defendant can recover from the plaintiffs, as lessors, such proportion of the 1928 taxes as represent the tax assessed on the property not demised.

It is, of course, elementary that a voluntary payment for the benefit of another cannot be recovered at law, or ordinarily in equity, unless that other has subsequently ratified such payment; nor is the rule affected by the fact that the person for whose benefit the payment was made accepted the benefits of such payment, if he conlcl not help doing so. 41 C. J. 12, § 13. But it has also been held upon good authority that recovery may be had of a due proportion of money paid for taxes by one of two owners or tenants of different parts of a parcel of realty against which such taxes were assessed as a whole. Ibid. 16, § 10 (2); Graham v. Dunigan, 4 Abb. Pr. 426; Iron City Tool Works v. Lang, 4 Pa. 57; 7 Atl. Rep. 82.

And so it seems to me that where a lessee is obligated to pay taxes assessed against the demised property, forming part of a larger tract, retained by the lessor, where the whole tract has been habitually assessed as a whole under one valuation and as one item, and the lessor has not had a severance made for the purpose of future taxation upon the tax schedules, that it is but reasonable to hold that an implied promise arises under such circumstances, to reimburse the lessee if he has paid the bill, assessed upon the tract as a whole. The fact that the lessor has permitted the property to be assessed and taxed as a whole, and has not applied for a severance before the taxes became due, certainly raises an implication that he will pay his proportion of the taxes so assessed, in protection of the property demised, and failure to do so in the first instance will reimburse his lessee or assigns who have been thus put in the position of making such payment.

In view of what has been said it seems to me that the counter-claim cannot be stricken as frivolous.

The motion, in so far as it seeks to strike out the answer and defense to the first count of the complaint, is granted, but in so far as it seeks to strike out the answer to the other counts and the counter-claim, it is denied. No costs will be allowed.


text:
    BLANCHARD SECURITIES, INCORPORATED, PLAINTIFF-APPELLANT, v. THE BONNELL COMPANY, FORMERLY BONNELL MOTOR CAR COMPANY, INCORPORATED, AND HILLAS MOTOR CAR COMPANY, DEFENDANTS-APPELLEES.
    Argued October 6, 1931
    Decided November 18, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, Saul •& Joseph F. Cohn.

    Eor the appellees, Frank W. Long.

   Pee Curiam.

These are appeals from judgments in three suits in the District Court, all based upon the same facts, conditions and proofs.

A greater part, if not all of the facts, are not in dispute.

On October 23d, 1925, Blanchard Securities, Incorporated, leased certain lands and appurtenances to Bonnell Motor Car Company, Incorporated, from January 1st, 1926, to December 31st, 1930, at an annual rental of $4,000 payable in monthly installments of $333.33 on the first business day of each month in advance.

By paragraph 10 of such lease it was provided that the lessee, Bonnell Company, should have the right to sublet or underlet such premises and the lessee agreed not to assign the lease; that upon subletting or underletting the sublessee or underlessee would assume in writing the terms of the lease and that an original agreement of that character would bo delivered to the lessor prior to the beginning of the occupancy by such sublessee or underlessee and that none of the liabilities of the original lessee should “be minimized, modified or impaired by virtue of any sublease or underlease created by it.”

On October 23d, 1925, the original leasee, Bonnell Motor Car Company, sublet the whole premises to the Hillas Motor Car Company for the balance of the term and on October 25th, 1927, the Hillas Motor Car Company so advised the landlord, Blanchard Securities, Incorporated, and agreed to “assume the provisions of all the terms of said lease.”

On March 1st, 1929, Hillas Motor Car Company sublet the premises in question to John J. Leahy, trading as Leahy Motor Car Company for the period commencing March 1st, 1929, and terminating March 31st, 1931.

Now the original lease to Bonnell Company was for a period of five years and would have terminated December 31st, 1930, had the building being erected at the date of the leasing been completed by January 1st, 1926, but in the event that it was not completed then the term of five years was to run from the date of such completion. Apparently the building was not completed until March 15th, 1926, and therefore the term of the lease extended to March 15th, 1931.

The result was that the subletting by the subtenant, Hillas Motor Car Company to Leahy, over-rode and extended beyoud the term of the original lease from March loth, 1931, to March 31st, 1931.

On April 18th, 1929, Blanchard Securities, Incorporated, gave its consent to such subletting by Hillas Motor Car Company to Leahy Motor Car Company “provided, however, that this does not in anyway release the Bonnell Motor Car Company from their lease with us herein referred to, neither the Hillas Motor Car Company from the provisions of this lease they assumed when the Bonnell Motor Car Company sublet the premises to them.”

On February 18th, 1931, the Blanchard Securities, Incorporated, agreed with Leahy Motor Car Company to “rent to you the service station * * * on a month to month basis, starting from April 1st, 1931, at a monthly rental of $150 * ;|c * ??

It appears that such agreement was never executed or carried out.

On March 34th, 1931, the Iiillas Motor Car Company paid Blanchard Securities, Incorporated, $166.67 rental to March 15th, 1931.

Suit was commenced April 1st, 1931, by Blanchard Securities, Incorporated, against both Bonnell Motor Car Company and Hillas Motor Car Company for $333.33 for rental for the premises from March 15th, 1931, to April loth, 1931, upon the theory that they were holding over and occupying the premises beyond the term of their lease.

Upon the trial of this suit judgment was rendered against the plaintiff and in favor of the Bonnell Company and in favor of the plaintiff and against the Hillas company for $166.67 for possession of the premises from March 15th to March 31st, 1931. The court finding as a matter of fact: “Before March 15th, plaintiff knew that Bonnell Motor Car Company did not intend to renew its lease and knew that Hillas Motor Car Company had made a lease to Leahy that purported to expire March 31st, and knew that Hillas Motor Car Company would not occupy the premises after March fifteenth. Plaintiff and Leahy before March fifteenth knew that Leahy would not stay in possession of the premises after March fifteenth to March thirty-first, after which Leahy remained in possession under some arrangement with the plaintiff.”

Subsequently suit was brought to recover the rent from April 15th, 1931, to May 15th, 1931, and still subsequently another or third suit was brought to recover the rent from May 15th, 1931, to June 15th, 1931.

The trial proceeded under the first, action before referred to and in accord with the finding therein the trial judge in the two actions last referred to found against the plaintiff and in favor of the defendants and judgments to that effect were accordingly entered.

Prom all three judgments the plaintiff below appeals and urges three grounds lor reversal:

1. The court erred in rendering judgment in favor of the defendant the Bonnell Company, and against the plaintiff in all three cases because the Bonnell Company was liable as a hold-over tenant by reason of the possession of the demised premises after March 15th, 1931, by the sublessee o£ said defendant’s sublessee, and the plaintiff’s election ’to so hold the defendants while said possession continued.

2. The court erred in rendering judgment in favor of the defendant the Bonnell Company and against the plaintiff in all three eases because under its lease with the plaintiff said defendant agreed that none of its liabilities under said lease should be minimized, modified or impaired by virtue of any sublease or underlease created by it.

3. The court erred in rendering judgment in favor of the Hillas Motor Car Company in the last two cases herein referred to because said defendant assumed all the terms and provisions of the main lease.

We think that no one of these grounds has1 factual or legal substance.

Point 1, above referred to, is without merit because the Bonnell Company did not sublet beyond the term of its lease.

Points two and three are likewise without merit because there were proofs upon which the court below could and did find that the plaintiff-appellant did not recognize and act toward the Hillas company as a tenant after March 31st, 1931. Such finding of fact is not re viewable here.

The judgments under review will be affirmed, with costs.


author: Eldredge, J.

text:
    HARRY WEATHERBY AND ELI F. STEWART, PARTNERS TRADING AS WEATHERBY & STEWART, PLAINTIFFS, v. SCOTTISH UNION AND NATIONAL INSURANCE COMPANY, DEFENDANT. HARRY WEATHERBY AND ELI F. STEWART, PARTNERS TRADING AS WEATHERBY & STEWART, PLAINTIFFS, v. AETNA INSURANCE COMPANY, DEFENDANT.
    Decided November 18, 1931.
    Eor the plaintiffs, Lynwood Lord.

    Eor the defendants, Carr & Carroll.

   Eldredge, J.

The above cases are so nearly identical that they -will be disposed of together.

On November 26th, 1929, the Scottish Union and National Insurance Company issued a policy of fire insurance to the plaintiffs, trading as Weatherby and Stewart, in the sum of $2,000, covering certain personal property consisting of such articles as are usually kept in a country store, for a term of one year from November 26th, 1929, to November 26th, 1930.

On July 1st, 1930, the Aetna Insurance Company issued a policy to the plaintiffs, trading as aforesaid, in the sum of $3,000, covering the same or similar articles of merchandise, for the term of one year from July 1st, 1930, to July 1st, 1931.

Both policies were the standard New Jersey form and contained the following provisions:

“This entire policy, unless provided by agreement endorsed hereon or added hereto, shall be void * * * if the subject of insurance be personal property and be or become encumbered by a chattel mortgage.”

And—■

“This policy is made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on back hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be endorsed hereon or added hereto; and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

On May 26th, 1930, while the Scottish Union policy was in force, the plaintiffs gave a chattel mortgage to the Swedesboro National Bank for $6,925, which mortgage was in force when the Aetna policy was issued, hence the mortgage was placed on the personal property while the first policy was in force and existed and was in force at the time of the issuanee of the second policy. No agreement respecting a chattel mortgage was endorsed on either policy. On August 18th, 1930, a fire occurred, which destroyed the property insured and upon proof of claim of loss the defendant companies refused to make payment and these suits were brought.

The defendants, by way of answer, set up the provisions of the policies above stated, together with certain other provisions contained therein, which they allege voided the said policies.

By way of reply the plaintiffs allege (1) that the defendants’ agents who wrote the policies had full knowledge of the placing of the mortgage, in one instance, and of its existence in the other, and that therefore the agreements respecting the mortgage were or should have been a part of the policies; (2) that by reason of this fact and the further fact that the companies kept the premiums they waived the conditions of the policies above referred to; and (3) that by their conduct and the conduct of their agents, they are estopped from setting up their defense.

Defendants now move to strike out both the complaints and the replies made by the plaintiffs.

The right of the defendants to have their motion granted seems to be supported by an abundance of authority in both the federal courts and the courts of this state and a very small percentage of these authorities need be mentioned.

In the first place, the replies of the plaintiffs appear to the court to be such that to permit evidence to support them would be a clear violation of our rule which prohibits the alteration of a written contract by parol testimony.

Chief Justice Beaslejr, in the case of Dewees v. Manhattan Insurance Co., 35 N. J. L. 366, says: “I have not found that it is anywhere supposed that this general rule which illegalized parol evidence, under the conditions in question, has been relaxed with respect to contracts for insurance. Decisions of utmost authority, both in England and this country, propound this doctrine as applicable to policies in the clearest terms.”

The doctrine herein enunciated has been followed in a long line of decisions in this and in other jurisdictions.

Nor can the application of this rule be avoided by setting up the doctrine of estoppel. Dewees v. Manhattan Insurance Company, above cited. “It is manifest that the theory that such parol evidence, though it may not be competent to change the written contract, may be received for the purpose of raising an estoppel in pais, is a mere evasion' of the rule excluding parol testimony when offered to alter a written contract * * *. An estoppel cannot arise except upon proof of a contract different from that contained in the written policy, and an inflexible rule of evidence forbids the introduction of such proof by parol testimony, when offered to vary or affect the terms of the written instrument.” Franklin Fire Insurance Co. v. Martin, 40 N. J. L. 568.

The above cited authorities appear to the court to completely dispose of the motion, unless the plaintiffs be saved by some waiver on the part of the defendant companies. In this connection it is to be noted that the policies themselves provide the manner in which any of their provisions may be waived. The manner of waiver is provided for in the second extract taken from the policies, herein above quoted. To attempt to allege a waiver other than by the method provided for in the policies would again be predicated upon the contention that the provision referred to was not operative. Hence again we are back to the same position of attempting to alter a written contract by parol testimony. Counsel for the plaintiffs lay considerable stress upon the fact that the companies kept the premiums after the policies were voided by breach of the conditions respecting the chattel mortgages and argues that the retention of such premimus constituted a waiver. That this position cannot be maintained appears to the court to be not only a logical view of the matter but one supported by authority also. The companies did not cancel the policies, in which event a return of the unearned premiums might be expected, but in the instant cases the policies were void through the act of the insured. The court does not attempt to pass upon the right of the plaintiffs to recover their premiums even under these circumstances, but it is of the opinion that mere retention of the premiums after the policies are voided by a breach of the terms would not of itself constitute a waiver.

In the case of Home Insurance Company of New York v. Scott, 46 Fed. Rep. (2d ed.) 10, the court said, in answering a similar claim by the insured, “nor did the defendant’s failure to tender a return of the premiums that were paid on the policies, operate to estop them from urging the effectiveness of the policy provision.”

With respect to these policies, the statement of Mr. Justice Trenchard in Heliotos v. Great American Insurance Company of New York, 103 N. J. L. 529, is pertinent. In disposing of that case he said: “These policies in suit were policies written in standard form, approved by governmental authority in New Jersey (2 Comp. Stat., p. 2862, § l?7) and, therefore, where the language is clear and unambiguous, will be enforced according to their plain provisions.” Nor will they be construed more strongly against the party preparing them. Del Guidice v. Importers and Exporters Insurance Company of New York, 98 N. J. L. 435.

The authorities cited in the plaintiffs’ brief, except in so far as they are general statements taken from Corpus Juris, appear to support the court’s view rather than refute it. Generally speaking, they relate to actions on the part of the company’s agent after a fire has occurred. Our courts have held that an agent of the insurance company may waive a term or condition of the policy which is to be done or performed after a loss has occurred, but that no such power exists with relation to the conditions and provisions of the policy relating to the formation and continuance of the insurance. Snyder v. Dwelling House Insurance Co., 59 N. J. L. 544.

Giammares et al. v. Allemania Fire Insurance Co., 91 N. J. Eq. 114, cited by plaintiffs, seems also to be in point. In that case a bill was filed by the complainants in equity to reform a policy of insurance after the defendants had set up as a defense in law that the policy was void because the land was not owned by the insured and also that the property was encumbered by a chattel mortgage. The Court of Errors and Appeals, reversing the vice-chancellor, who had ordered a reformation, on the ground that there had been no mutual mistake, said inter alia, “it is quite manifest that without a reformation of the policy such a defense would be good at law but the decree [appealed from] absolutely destroys that defense.”

Defendants’ motion will be granted and an order, when presented, made accordingly.


author: Eldbedge, J.

text:
    WILLIAM B. KRAMER, PLAINTIFF, v. THE WESTERN ASSURANCE COMPANY, DEFENDANT.
    Decided November 21, 1931.
    Eor the plaintiff, Lynwood Lord.

    Eor the defendant, Carr é Carroll.

   Eldbedge, J.

The plaintiff in the above entitled suit attempts to recover on a poiley of fire insurance issued to him by the defendant company, for $1,500 for one year, from September 6th, 1930, to September 6th, 1931. Title to the property covered by the policy was acquired by the plaintiff through a deed from Olga Anton, dated November 15th, 1928, and upon its face was an absolute conveyance in fee-simple. On September 19th, 1930, the property was destroyed by fire. In the proof of loss filed by the plaintiff in this suit, he stated, under oath, as follows:

“By deed dated the 15th day of November, 1928, the property mentioned in the within proof of loss, was conveyed to me, absolutely, insofar as the face of the deed was concerned. However, the purpose of the said transfer was to protect the Zane Lumber Company which had filed a mechanics’ lien against said property, and if any surplus was derived from the sale of the property, the surplus was to be paid to Mrs. Anton after deducting all expenses. There was also about three judgment creditors who were made parties to the mechanics’ lien suit, and if an amicable settlement could not be made with them, it was my understanding that Zane would proceed with the mechanics’ lien suit, insofar as the judgment creditors were concerned to determine the priority.

There was also a policy on this property of the Automobile Insurance Company, in the name of Olga Anton, which was never transferred to me.” ' ■ '

Upon the filing of this statement respecting the character of the plaintiff’s ownership, the defendant refused payment' of the policy and suit was brought. The defendant, in its answer, sets up the following provision of the policy:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee-simple.”

The plaintiff then makes the following reply:

“Defendant’s agent, J. Sennett Holston and the special agent of said company, Hugh L. Mehorter, were aware of the fact that said William B. Kramer held the title to said premises, in trust, and authorized the issuance of said insurance policy. At the time said loss occurred, no policy of insurance had been issued and the property was covered by a binder and it was therefore impossible for the plaintiff to have inserted in said policy a memoranda to the effect that he held said property in trust.”

This case, it seems to the court, is governed by the same principles which the court deemed controlling in the cases of Harry Weatherby and Eli E. Stewart, partners trading as Weatherby and Stewart v. Scottish Union and National Insurance Company, and Harry Weatherby and Eli E. Stewart, partners trading as Weatherby and Stewart v. Aetna Insurance Company, 9 N. J. Mis. R. 1256, just decided, the opinion being filed simultaneously with this decision, unless the fact that a special agent of the company who is charged with knowledge of the character of defendant's title at the time the policy was purchased, creates a saving distinction. It is the j udgment of this court that it does not. The plaintiff in this case is in the same position as the plaintiffs in the other cases above mentioned. He brings suit upon a written contract of insurance on the one hand and then on the other hand alleges, in so many words, that the contract upon which he sues is not the contract, because some of its provisions are not operative, they having been waived when the agreement was made. The result is an attempt to alter the terms of a written contract by parol testimony, which our law prohibits.

The plaintiff's reply asserts that at the time of the fire no policy had been issued but that the property was covered by a binder, and it may well be that the written contract or policy of insurance does not contain the terms of the contract originally entered into. If that be true, suit must either be brought upon what was the contract or the present policy reformed in a court of equity and not in a court of law.

Mr. Justice Trenchard's statement in the case of Heliotos v. Great American Insurance Company of New York, 103 N. J. L. 529, referred to and quoted in our opinion herein above mentioned is also pertinent in this case and so is onr statement therein made that when a policy is in standard form it will not be construed more strongly against the party preparing it.

These authorities compel the court to take the strict legal view of the matter as herein stated and entitle the defendant to an order striking the complaint and the reply.