author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PASQUALINA RENZI, AS GENERAL ADMINISTRATRIX OF THE ESTATE OF CLEMENTI RENZI, DECEASED, PETITIONER, v. GENERAL LEATHER COMPANY, RESPONDENT. PASQUALINA RENZI, INDIVIDUALLY AND AS NEXT FRIEND AND GUARDIAN OF CONCETTA, MARIA, SYLVIA AND VIRGINIA RENZI, PETITIONER, v. GENERAL LEATHER COMPANY, RESPONDENT.
    Decided November 15, 1932.
    For the petitioners, Avidan ■& Avidan and James B. Giuliano.

    For the respondent, William B. McMichael.

   Two petitions were filed in the above entitled matter praying compensation under the act commonly known as the Workmen’s Compensation act for an occupational disease arising out of and in the course of the employment of the decedent, Clementi Eenzi, also referred to as Clarence Renzi, by the respondent, caused by the exposure of the decedent to benzol and/or to its homologue, toluol. The decedent, Clementi Renzi, was disabled on account of this occupational disease on May 29th, 1931, when he ceased work and con-tinned to be so disabled until the date of his death, October 13th, 1931.

The petitioner, Pasqualina Eenzi, also referred to as Lena Eenzi, as general administratrix of the estate of Clementi Eenzi, deceased, seeks compensation lor disability from the period May 29th, 1931, to October 13th, 1931, together with expenses incurred in the treatment of the decedent during that period and the statutory funeral allowance.

Pasqualina Eenzi, as widow and dependent of the decedent, and the four infant dependents of the decedent, Concetta, Virginia, Maria and Sylvia, file their petition for compensation as dependents of the decedent, Clementi Eenzi.

The hearings on both of the aforesaid petitions wore tried jointly. Voluminous testimony was taken in the aforesaid matters and many witnesses were heard in the course of these painstaking proceedings. On behalf of the petitioner testimony was introduced to establish that the decedent, Clementi Eenzi, had been practically continuously employed as a “coater” or “doper” in the respondent’s leather factory for thirteen or fourteen years prior to his disability on M.ay 29th, 1931; that decedent’s employment required him to apply to hides of leather, and with a brush, a certain mixture which admittedly contained forty per cent, benzol and twenty-one per cent, toluol until.February, 1928, and thereafter and until the time of the decedent’s disability contained approximately twenty-two per cent, to thirty per cent, of toluol. The benzol and toluol used in the mixture served as a solvent causing the solution of cotton which acts as a water-proofing agent for the leather, and a vegetable oil which gives flexibility to the leather. When this mixture or solution is applied to the leather the benzol and toluol evaporate into the atmosphere and are not absorbed into the leather. Benzol and toluol both being heavier than air, settle to the lower levels of the room. Once a mixture is applied the function of the toluol and benzol has been completed.

There was further testimony in the case to show that the decedent worked in the room which had no other ventilation other than the windows and the doors used as entrances and exits to the room and certain ventilators in the ceiling of the roof called a “rooster” ventilator, which operated on a vertical axis and only when there was some wind or air pressure present. There were also several skylights in this workroom installed within the past few years of the decedent’s employment. There was no really effective ventilation system in this workshop. The former superintendent of the plant, who was superintendent during the latter years of the decedent’s emplojnnent and had been previously employed in an official capacity almost contemporaneously with the decedent in the same factory, testified that the atmosphere of the room iin which the decedent worked was very oppressive and that it was filled with the vapors produced by benzol and toluol, described as having a gaseous odor, pungent, disturbing and irritating to the nostrils, heavy and sweet. There was also testimony that the decedent, Renzi, was frequently seen to have nose bleeds, and that all of the windows in the room were frequently closed on rainy and cold days, for the reason that the room had to be kept in a temperate condition, for the better effect of the application of the mixture to the leather. On one occasion the atmosphere of the workroom was so oppressive that the foreman compelled the workmen to go outside into the open for relief.

There was further testimony by the superintendent of the respondent’s plant that the atmospheric conditions under which the decedent worked were substantially the same prior to 1928 when the respondent admittedly had been using benzol, and subsequent to 1928 to the date of the decedent’s disability, when the respondent alleges it discontinued the use of benzol, and substituted toluol therefor.

The hides of leather placed upon flat tables over which the decedent worked received anywhere from one to four coats of this mixture containing benzol and toluol and thereafter were hung on racks in the same room where the decedent was working, to be dried, pending either their final removal from the room or for further application of the benzol or toluol mixture. During this drying process the moist hides of leather were giving off vapors of benzol and toluol.

The petitioner further showed by Dr. Edel, the toxicologist for Essex county, and also consulting toxicologist for the ISTew Jersey department of labor, that the chemical, physical and toxicological properties of benzol and toluol are similar; that toluol is the closest homologue to benzol, the formula for benzol being CeH6, and the formula for toluol being C6H5CH3, the CH3 radical being substituted for one part of hydrogen; that both chemicals contain the same basic elements of carbon and hydrogen, belong to the same chemical family of hydro-carbon, and are made from the same sources and by the same process, the distinction being that one has a higher boiling point than the other; that these chemicals are produced at varying temperatures; that there is frequently found in commercial toluol some benzol, and in commercial benzol, toluol; that these two chemicals have interchanging qualities, toluol being carried over into benzol and benzol into toluol; that benzol is also referred to as benzene, and toluol is also referred to as toluene or methyl-benzene; and lastly that toluol is toxic, and that exposure to toluol can produce death.

The petitioner further confirmed the foregoing conclusions and opinions through Drs. Gerard, Etchikson, Lowy and Martland; the latter physician being Essex county medical examiner with a national reputation on occupational diseases, who examined the decedent during his lifetime and performed his autopsy. These doctors further showed that the decedent died as the result of his exposure to benzol and toluol during his employment; that the exposure to benzol prior to 1928 undoubtedly impaired the decedent’s resistance; that the decedent’s exposure to toluol subsequent to 1928 to the time of his disability was toxic to him, and also a contributing cause of his death, and either caused or accelerated his occupational disease and ultimate death. These doctors further testified that the susceptibility to the effects of exposure to benzol and toluol varies with individuals, and that they could not precisely determine the minimum concentration or duration of such exposure which is necessary to produce the occupation disease or its fatal effects.

The petitioner further showed the quantities of benzol and toluol used by decedent in his work, the expenses incurred during decedent’s last illness, the amount expended for burial purposes which was in excess of the amount allowed by statute, and also that the decedent left him surviving the following dependents: Pasqualina Renzi, widow of decedent, and the following four children with their respective birthdays: Concetta, born December 8th, 1919; Virginia, born October 17th, 1921; Maria, born April 14th, 1924; Sylvia, bom July 3d, 1926.

The respondent in its answer and by its evidence admitted substantially, or did not contradict all of petitioner’s allegations and proof respecting duration of employment, extent of decedent’s exposure to benzol and toluol, until February, 1928, the number and character of dependents; the date of disability and death of decedent. Respondent admits notice or knowledge of the decedent’s occupational disease by its answer on July 31st, 1931.

The respondent concedes in its testimony that the decedent died as the result of chronic benzol poisoning caused by exposure to benzol during his employment with the respondent, to February, 1928. The respondent takes the position that decedent’s exposure to toluol from 1928 for a period of more than three years to the date of his disability, was not toxic to him, was harmless and of no effect upon him. The respondent further contends that mere proof by the petitioner that the decedent was exposed to toluol and to the small amount of benzol which respondent’s own witness testified was produced by the impure toluol used in respondent’s plant from 1928 to the date of disability, is not sufficient to satisfy the requirements of paragraph 22 of the act commonly knowp. as the "Workmen’s Compensation act with respect to the following provisions:

That “the disability has commenced within five months after the termination of such exposure;” that “the notice to be effective must be given within a period of five months after .the date when said employe shall have ceased to be subject to exposure to such occupational disease;” that “within one year after the date on which the employe ceased to be exposed in the course of employment with the employer to such occupational disease as hereinabove defined,” the petition must be filed.

Nothing is found in the act compelling the construction of these requirements of the act that the petitioner must prove in addition to his exposure to benzene and its homologue, the further fact that such exposure was toxic to him and either caused or accelerated the occupational disease within the periods above mentioned. Paragraph 22a of the act gives rise to a right of compensation “for personal injuries to or for death of such employe by any of the compensable oceupationable diseases hereinafter defined, arising out of and in the course of his [employe’s] employment. The burden is of course placed upon the petitioner to establish at all times that the disability or death was caused by exposure in the course of the employment. Paragraph 22b, in listing occupational diseases refers to “benzene and its homologues and all derivatives theerof” as an occupational disease. If, for the purposes of this section of the act benzene and occupational disease are used synonymously, then for the limitations above referred to as to the time within which disability shall commence and the petition shall be filed, proof of exposure to benzene and its homologues should be sufficient. The employer is adequately safe-guarded by this construction for the reason that the petitioner must further prove that his death or disability was caused by his exposure to an occupational disease. The time limitations above provided for would appear to be safeguards as to the bona fides of the petitioner’s claim.

Tinder the respondent’s construction of the above provisions of the act the petitioner in this case would be barred from recovering from this occupational disease for the reason that his disability arose for almost three years after the time when the respondent conceeds that the petitioner contracted his occupational disease.

The construction of these provisions of the act are consistent with the views expressed by the Court of Errors and Appeals in the case of Textileather Corp. v. Great American Indemnity Co., 108 N. J. L. 121; 156 Atl. Rep. 840, in which the court said:

“It is a well known fact that industrial diseases are gradual in development. The first and early steps are not altogether perceptible. The rate of progress may vary. Sometimes a patient makes a complete recovery; sometimes it is only an apparent one, sometimes the disease is quiescent and latent; sometimes the fatal course is swift. Medical science cannot always detect and describe the progress of disease * * *. The legislature has properly assumed a benevolent care for workmen * * *. The legislature must have intended that compensation should be determined subject to procedural limitation when the disability" or death occurred and at no other time.”

Respondent’s defense to the petitioner’s claim can only become complete if we accept not only their construction of the foregoing provisions of the act, but in addition thereto, that decedent’s exposure to toluol and to the small amount of benzol from the period 1928 to the date of his disability was utterly harmless to him, and was not toxic to him.

Under our view of the effect of this latter exposure upon the decedent it is not necessary to accept the construction of the foregoing provisions of the act as we have above indicated. It is here held, found and determined that the decedent in this case died as the result of his exposure to benzol and toluol which arose out of and in the course of his employment with the respondent, and that decedent’s exposure to toluol from 1928 to the date of his disability was toxic to him, and was a contributing cause of his death.

i{? ^ «{«

John C. Wegner, Deputy Commissioner.


source: Caselaw Access Project

author: Ackebson, S. C. 0.

license: Public Domain

text:
    ATLAS FINISHING COMPANY, A CORPORATION, PLAINTIFF, v. HACKENSACK WATER COMPANY, A CORPORATION, DEFENDANT.
    Decided November 10, 1932.
    For the plaintiff, J. Emil Walscheid.

    For the defendant, EckvarAs & Smith.

   Ackebson, S. C. 0.

The complaint in this action is in three counts and the answer reserves the right to object, on or before the trial, that each of said counts fails to set forth a cause of action.

The matter now comes before me upon a motion pursuant to rule 40 of this court to determine the questions thus raised before the trial. The plaintiff in its brief expressly abandons the second and third counts, so they will be stricken out.

The first count alleges in substance that on June 23d, 1921, the defendant w'as a “public utility,” as defined in “An act concerning public utilities, to create a board of public utility commissioners and to prescribe its duties and powers,” approved April 21st, 1911 (Pamph. L. 1911, p. 374); that at said time the defendant maintained and operated a water system or plant within the township of North Bergen in the county of Hudson, in this state, and the plaintiff owned and operated a manufacturing plant in said township and had upon the premises and in the buildings thereon a system of water pipes connected with and leading from the pipe lines of the defendant, to said buildings, with outlets therefrom for the purpose of discharging water, and also had upon said premises both in and out of said buildings numerous fire hydrants connected by means of pipes to and with the said pipe lines of the defendant, together with fire hose and hose wagons, chemical fire extinguishers, a fire alarm system and a crew of employes trained to fight any fire which might accidently arise upon said premises. The complaint further alleges that:

“On June 23d, 1921, and for a long time prior thereto, defendant had undertaken to and did serve plaintiff with a supply of water from its said system or plant through its said pipe lines, at or upon the premises of the plaintiff aforesaid, for the purpose of enabling plaintiff by means of the pipe lines, fire hydrants, fire hose and hose wagons maintained by the plaintiff upon the said premises aforesaid to combat any fire which might accidentally originate upon the premises aforesaid, whereby it became and was the duty of defendant at all times to furnish water to plaintiff for the purpose aforesaid in sufficient quantity and under sufficient pressure to make such service safe, proper and adequate for the purpose of combating any fire which might thus arise upon said premises.”

It is further alleged that on said date a fire started accidentally upon said premises which the plaintiff endeavored to combat, but that defendant, at the time and place aforesaid, “neglected and failed to furnish the water by it undertaken to be furnished as aforesaid, and wholly neglected and failed to supply plaintiff with water in quantity and under sufficient pressui'e to make such service safe, proper and adequate for the purpose of combating said fire,” by reason of which failure the fire could not be extinguished, and it became uncontrollable and totally destroyed the buildings and other property of the plaintiff, wherefore the plaintiff seeks damages.

The plaintiff insists that this count of the complaint sounds in tort, and is intended to be an action ex delicto, and seeks to uphold the legal sufficiency of the pleading upon one or more of three theories. First, it is urged that the count is based- upon a duty of the defendant to the plaintiff resulting from a contract entered into directly between the parties, thus excluding from consideration the’usual situation where a water consumer has endeavored to impose liability upon a water company under a contract for a water supply made by such company with a municipality. The second theory upon which this count is sought to be upheld is, that even though there is no contract between the parties, nevertheless, the defendant having “undertaken,” even though gratuitously, to furnish water to the plaintiff, it is liable to the plaintiff for the breach of a common law duty to use reasonable care in its undertaking. The third theory is the alleged breach of a statutory duty.

Taking up the plaintiff’s first theory, it is obvious, since the tort is claimed to arise out of the breach of a contractual duty, that if the complaint does not sufficiently state a contract giving rise to the duty for the breach of which liability is claimed, the pleading must prove insufficient for that purpose.

It is apparent as conceded by the plaintiff, that the pleading does not set forth an express contract between the parties. Eeliance is placed upon an implied contract, but it is doubtful if sufficient mutuality of obligation is shown even for that purpose. Scott v. Eldridge, 2 N. J. L. 156. In any event the most that can be claimed for the pleading is that' it states the implied engagement ordinarily arising from the relationship existing between a public service corporation and a private consumer of water. There is no allegation that the defendant agreed for a valuable consideration to supply water to the plaintiff in any quantity or at any pressure for protection against fire. Can such an engagement arise by implication? I think not.

The primary business of a water company, so far as private customers are concerned, is to furnish water as a commodity. Keeping this in mind, and further recognizing that under the law of this state the defendant is a i/wm-public corporation engaged in the exercise of a public use in discharging a public duty which would otherwise devolve upon the municipality itself, and furnishing water at rates fixed exclusively by a state agency, it would appear plain that it was never contemplated that from the simple relation of distributor and consumer, the former undertook to assume liability for failure to furnish water to extinguish fires. In the nature of things the compensation fixed by the supervising state agency has no relation to the assumption of any such liability; that compensation is based on the expense of furnishing water simply as a commodity; liability for the destruction of premises by fire, to which the company may be required to supply water was.not taken into consideration in fixing the rates, nor, I suppose, was it even thought that any such liability could be imposed by the rate-making body or was to be assumed by the company in doing so. This is apparent on reflection. As already said, the defendant is a public service corporation, according to the pleading in question, therefore, under a duty enjoined by law, and was obligated to make connection with the premises and furnish water to any of the inhabitants of the municipality who desired it. No one person had a right superior to another to demand that he should be supplied, and the legal duty is imposed upon the company to furnish it equally to the extent that its system was capable of doing it. The plaintiff had a right to install fire hydrants, as had any other member of the municipality, and to require the water company to- connect its mains with the service pipes supplying such hydrants, and for this service the company could only require payment of the uniform water rates and hydrant charges fixed by the state agency. That no liability for failure to furnish fire protection could have been contemplated from such a situation is obvious. It is even more apparent when we consider the enormous liability which the water company would be compelled to assume, under plaintiff’s theory of implied obligation, without any adequate, and it may be said, any consideration at all, commensurate with the hazard involved. Under the requirements of the “Public Utility act,” supra, the defendant water company was required to supply water to all indiscriminately within the field of its operations, and at uniform rates presumably based upon water supplied as a commodity or as merchandise. Therefore, the defendant would be obliged tc supply water to premises involving all degrees of fire hazard at the same uniform rates, thus assuming liability, practically as an insurer, for millions of dollars worth of property, upon which, either from the nature of the business or the locality in which the property is situated, no insurance company would think of assuming the risk—and all of this by implication only.

While a water company may expressly contract to furnish water to a consumer in sufficient quantity and at sufficient pressure to extinguish fires, nevertheless, sufficient has been said to demonstrate that such an obligation is not implied from the relationship of water supply company and customer merely, and can only exist where, in addition to the ordinary duty of supplying water for general use, the company by express contract assumes the additional obligation of furnishing it in sufficient quantity to protect specific property from fire. Such liability can only arise out of an express contract. It does not arise by implication. Baum v. Somerville Water Co., 84 N. J. L. 611; 87 Atl. Rep. 140; Middlesex Water Co. v. Knappmann Whiting Co., 64 N. J. L. 240 (at p. 251); 45 Atl. Rep. 692; Hall v. Passaic Water Co., 83 N. J. L. 771; 85 Atl. Rep. 349; Buchanan & Smock Lumber Co. v. East Jersey Coast Water Co., 71 N. J. L. 350; 59 Atl. Rep. 31; Nieuhaus Bros. Co. v. Contra Costa Water Co., 159 Cal. 305; 113 Pac. Rep. 375.

Inasmuch as the first count of the complaint does not allege any express contract whereby the defendant was obligated to supply the plaintiff with water, in any quantity or at any pressure to extinguish fires, it is insufficient to support the first theory upon which it is attempted to be rested.

The second theory advanced in support of this action is that the defendant breached a common law duty alleged to arise from the circumstance that the defendant permitted the plaintiff to connect its fire hydrants with the defendant’s water system, through which the defendant undertook to supply the plaintiff with water and, therefore, defendant is liable for negligently failing in such supply, if it resulted in fire loss to the plaintiff.

Keeping in mind, as suggested by the authorities above referred to, that the primary business of a water company is to furnish water as a commodity and not to extinguish fires, further remembering that the complaint does not allege any mutuality of obligation between the plaintiff and the defendant, leaving the presumption that the water service was gratuitous, it would appear plain that it was never contemplated, from the above circumstances alone, that the defendant undertook to assume liability for failure to furnish water to extinguish fires. It may very well be that the object of connecting the plaintiff’s pipe lines with the defendant’s water system was for the purpose of enabling the plaintiff to obtain a supply of water to combat fire on its premises, but, as we have seen, the obligation of the defendant would merely be to supply water as a commodity, in the absence of an express contractual obligation to furnish it for fire extinguishing purposes.

The legal principle involved was admirably stated by the late Chancellor Walker in the case of Baum v. Somerville Water Co., supra, where a water company had connected its mains with the pipe lines of a consumer leading to the latter’s fire hydrants and private standpipe. The chancellor, in the course of opinion, said:

“The case in hand, then, narrows itself to the question of duty or no duty owed by the defendant to the plaintiff at the time of the fire. As we have already seen, if there had been a contract between the parties, as in Middlesex Water Co. v. Knappmann-Whiting Co., there would doubtless have been liability on the part of the defendant company, and that even though an inadequate supply of water at the fire was the result of some accidental cause at the time unknown to the water company, upon the principle that where damages under such circumstances result, the one of two persons who must bear the loss shall be he who agreed to sustain it. But in the absence of contract no liability exists on the part of the defendant for the benefit of the plaintiff. The common law does not impose such a liability and we have not been appointed to any statute which creates it. In the absence of contract it does not exist.”

In the case of Middlesex Water Co. v. Knappman-Whiting Co., supra, t.he contract involved required the water company “to furnish water with pressure sufficient for fire purposes,” and, the company having thus obligated itself, it was held liable for failure to perform the obligation which it thus expressly assumed, even though the failure was due to an unforseen accident.

Certainly the common law would impose no duty upon a water company which would not arise by implication from the ordinary contract to supply a consumer with water as a commodity. The plaintiff’s second theory cannot, therefore, be sustained under the pleading as framed.

Turning now to the plaintiff’s third theory, which is that the defendant failed to supply plaintiff with water in quantity and under pressure sufficient to make such service safe, proper and adequate, and thereby breached a statutory duty arising under the “Public Utility act,” above referred to, and certain orders of the public utility commission made pursuant to the authority contained in said act.

Particular reference is made to the following prohibition contained in the aforesaid act:

“Nor .shall any public utility as herein defined provide or maintain any service that is unsafe, improper or inadequate.” 2 Cum. Supp. Comp. Slat., p. 2886, § 167-24 (C).

While failure to obey this provision, as well as others is made a misdemeanor by the act, no right of action is given therein to an individual who may have been damaged by such failure. Similar provisions in the statutes of other states have been construed by their courts, which have unanimously held that such provisions are only declaratory of the common law and do not enlarge the zone of liability of such utilities, unless a right of action is expressly given by the statute to individual customers. Jenice De Pauw Memorial Methodist Episcopal Church v. New Albany Water Works, 193 Ind. 368; 140 N. E. Rep. 540; 27 A. L. R. 1274; Krom v. Antigo Gas Co., 154 Wis. 538; 140 N. W. Rep. 163; H. R. Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; 159 N. E. Rep. 896; 62 A. L. R. (Anno.) 1199; Larimore v. Indianapolis Water Co., 197 Ind. 457; 451 N. E. Rep. 333; Atkinson v. New Castle Water Works Co. (L. R ), 2 Exh. Div. (Eng.) 441; House v. Housem Water Works Co., 22 S. W. Rep. 277; affirmed, 88 Tex. 233; 28 L. R. A. 532; 318 W. Rep. 179; Eaton v. Fairbury Water Works Co., 37 Neb. 546; 21 L. R. A. 653; 56 N. W. Rep. 201; Britton v. Green Bay Water Co., 81 Wis. 48; 51 N. W. Rep. 84. See, also, 27 A. L. R. 1280.

Our “Public Utility act” further provides that: “The board shall have power, after hearing, upon notice, by order in writing, to require every public utility as herein defined, * * * to furnish safe, adequate and proper service and to keep and maintain its property and equipment in such condition as to enable it to do so.” 2 Cum. Supp. Comp. Stat., p. 2886, § 167-17 (b).

What has already been said regarding the first provision of the statute above mentioned is equally applicable to any order made by the board under this provision. In the absence of a statutory mandate imposing liability upon the utility company in behalf of an individual consumer who has been damaged by a failure to comply with any such order, the order itself could impose no such liability. As already stated, our statute imposes no .such liability and as enunciated in the decisions last cited above, it will be presumed that the legislature does not intend by statute to make any change in the common law beyond what it declares either in express terms or by unmistakeable implication.

Furthermore, much of what has been said in disposing of plaintiff’s first and second theories, is also applicable here, for it was never intended to impose such enormous liability upon a water company by mere implication. In the absence of an express contract to furnish water in sufficient quantity and under sufficient pressure to extinguish fires, or any express statutory enactment imposing such liability, it does not exist. Baum v. Somerville Water Co., supra.

The conclusion reached is that the first count of the complaint is not sufficient in law and must be stricken out, and inasmuch as the second and third counts have been abandoned, the entire complaint must fall, and an order may be presented striking it out, but the plaintiff will be allowed twenty (20) days from November 10th, 1932, in which to file an amended complaint if it desires so to do.


author: Per Curiam.

text:
    PASQUALE IANUZZI, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY, DEFENDANT-APPELLANT, AND AMERICAN OIL COMPANY AND FRANK T. EASTLACK, Jr., JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Submitted May 10, 1932
    Decided November 12, 1932.
    Before Justices Teenchabd, Case and Brogan.
    Bor the plaintiff-respondent, Orlando <& Kisselman (Samuel P. Orlando, of counsel).
    Bor the defendant-appellant, Public Service Interstate Transportation Compan}’, Henry H. Fryling (Patrick H. Harding, of counsel).
   Per Curiam.

This is an appeal from a judgment of the Camden City District Court, the judge sitting without a jury. Judgment was entered in favor of the plaintiff and against the defendants Public Service Interstate Transportation Company and Brank T. Eastlack, Jr. Public Service Interstate Transportation Company appeals and specifies as objections that the court denied its motions for a nonsuit and for a direction of verdict.

The action is for property damage and personal injuries alleged to have arisen from an automobile collision between an automobile truck owned and driven by the plaintiff and an automobile truck owned by Public Service Interstate Transportation Company and driven by Frank Tippin.

The fact that the appellant as the owner of the truck was the only item of proof against the appellant. The liability of the owner for the negligence of the driver is dependent upon the existence of the relationship of master and servant between them. In the absence of that relationship the doctrine of respondeat superior, upon which alone the owner’s liability rests, is not applicable. Spelde v. Galtieri, 102 N. J. L. 203; 130 Atl. Rep. 526. Proof of ownership of an automobile driven on a public highway raises a presumption of fact that the automobile was in the possession of the owner, if not personally, then through the owner’s servant, the driver. But this presumption may be overcome by uncontradicted proof to the contrary, and if so overcome by uneontradicted proof that the automobile was not in the possession of the owner or his servant, then a motion for a direction of a verdict for the defendant owner will be granted. Tischler v. Steinholtz, 99 N. J. L. 149; 122 Atl. Rep. 880.

.Tippin, the driver of the truck, was called as a witness for the plaintiff and testified that he was employed by, and was paid for his services by, defendant Prank T. Eastlack; that the witness’ work consisted in transporting and delivering gasoline from tank supplies kept on Eastlack’s premises; that the truck that was being driven by Tippin bore the name of Prank T. Eastlack and that name only; that the deliveries of gasoline were on behalf of his employer and were made to various places. This proof was uncontradicted. With the testimony in that posture, we think that the defendant’s motions should have been granted.

The judgment below will be reversed.


text:
    WILLIAM TUDER, PLAINTIFF-RESPONDENT, v. COMMONWEALTH CASUALTY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 10, 1932
    Decided November 12, 1932.

      Before Justices Trenchard, Case and Brogan.
    For the plaintiff-respondent, David Silverman (Louis Rubenstein, of counsel).
    For the defendant-appellant, Ilolmwood Creighion.

   Per Curiam.

This is an appeal by the defendant from a judgment rendered by the judge of the Bayonne District Court, sitting without a jury, in favor of the plaintiff and against the defendant in an action to recover from the defendant, an insurer of one Akstulewicz, the amount of a judgment theretofore obtained by the plaintiff against Akstulewicz for damages arising out of an automobile accident on March 2d, 1928. Execution having been issued and returned unsatisfied on the last mentioned judgment, plaintiff sued the defendant under a clause in its policy which provided that if, because of the insolvency or bankruptcy of the insured, execution on a judgment for damages was returned unsatisfied, the injured person might maintain an action thereon against the insurance company subject to the terms of the policy. The policy provision is apparently pursuant to, but not in the precise words of, the statute (Pamph. L. 1924, ch. 153), which gave the injured person, in the circumstances mentioned, the right to bring suit “against such corporation under the terms of the policy.” We mention the variation without pausing to consider whether, having regard to the context, the phrases are or are not synonymous.

The single matter presented to us by the appellant is that the court below erred in giving judgment for the plaintiff in that the insured had violated a requirement in the policy that the insured should “co-operate with the company * * *

in all matters which the company deems necessary in the defense of any suit.”

It is not clearly stated by the appellant what legal principle is invoked by the situation which it asserts. It speaks of co-operation by the insured as being a condition precedent. But it is not questioned that the insurance was actually in effect until the alleged failure of the insured to co-operate in the defense of the suit against him. We gather that the argument depends upon the alleged voiding of a theretofore existing contract, and in that event the burden, of course, rests upon the insurance company which charges the omission.

The facts upon which the defendant in the instant case relied as proof of failure of co-operation by its assured are as follows: The insurance company, through its attorney, had made preparations to defend Akstulewicz in the action brought against him for damages by the plaintiff. Akstulewicz had promised to attend the trial. At the appointed hour the trial was moved in the presence of the insurance company’s attorney with the jury impaneled and sworn. At that point a messenger informed the defending attorney that the messenger was unable to find the defendant at the latter’s home and that inquiry there had resulted in the information, through an unidentified interpreter, that the defendant had absconded. Thereupon the defending attorney moved the court to be relieved from his connection with the case, and the motion was granted.

Upon that showing the court below in the present action was asked to find that the defendant had failed to co-operate with the insurance company in the defense of the suit and that the insurance company was therefore freed of liability under the policy. That the insured, having been told to appear, was not in fact present at the precise hour of trial and that an investigator in calling at the insured’s home a few minutes earlier had not found him are hardly sufficient to prove, conclusively, such a failure of co-operation as to void the policy. If they were, collusion between an insurer and a financially irresponsible assured would be so easy as to greatly weaken the practical usefulness of the statute and the corresponding policy provision as a protection to injured persons. There is little else in the way of competent proof. The report of the investigator that during his call he had been told, by the insured’s family through the friendly interpreting of a neighbor, that the insured had absconded, does not prove that the insured had, in fact, absconded. Without more, the insurance company dropped the case. There is no proof of any notice by the company to the insured of a termination of the insurance or of further inquiry by the company for the insured or for the reason of his absence, or indeed of any incident subsequent to the minute when the insurance company attorney disassociated himself from the trial and walked out of the court room. The court below found as a fact, in the present action, that lack of co-operation had not been proved. We think that that finding was justified by the state of the proofs.

Judgment below will be affirmed.


text:
    THE STATE, EX REL. HENRY RUFFU, RELATOR, v. BOARD OF MEDICAL EXAMINERS OF THE STATE OF NEW JERSEY, RESPONDENT.
    Submitted May 10, 1932
    Decided November 12, 1932.
    Before Justices Trenchard, Case and Brogan.
    Por the relator, Frank A. Mathews, Jr.

    Por the respondent, William A. Stevens, attorney-general, and Robert Peacock, assistant attorney-general.
   Per Curiam.

The relator obtained a rule to show cause why a peremptory or alternative writ of mandamus should not issue commanding the board of medical examiners of the State of New Jersey to issue to him a license to practice medicine and surgery. The matter is before us on the return of the rule.

The relator seeks to compel the issue of his license under subdivision E of section 4 of the act entitled “An act to regulate the practice of medicine and surgery, to license physicians and surgeons, and to punish violating the provisions thereof.” Pamph. L. 1894, p. 454; 3 Comp. Stat., p. 3329, as amended by Pamph. L. 1925, oh. 134, p. 362. That section provides in part:

“* * * Any applicant for license * * * upon proving to the satisfaction of said board that he is of good moral character * * * and that he has been examined and licensed by the examining and licensing board of another state of the United States * * * and that at the time of the granting of such license the standard of requirements for license to practice medicine and surgery in the state where such license was granted * * * was at least substantially equal to the standard of requirements for such license in force in this state at said time, and upon filing with the secretary of said board a copy of his license or certificate, verified as a true copy by the affidavit of the secretary of the board granting such license, may, in the discretion of the said board of medical examiners of this state, be granted a license to practice medicine and surgery without further examination * * *.”

The relator had been licensed by the examining and licensing board of the State of Illinois to practice medicine and surgery in all its branches in that state. It is stipulated that at the time of the granting of that license the standard of requirements for license to practice medicine and surgery in the State of Illinois was at least substantially equal to the standard of requirements for such license in force in this state at said time. On that showing the relator seeks a Hew Jersey license as a matter of right.

The words “in the discretion of the said board” contained in subdivision E, section 4, supra, may not be disregarded. In their absence the relator would be entitled to a license. But they are there, and we must assume that they carry their ordinary significance. The question then is whether the board has abused the discretion thus imposed. It appears further by the stipulated facts that the medical school at which the relator received his professional education and training is not an institution approved by the board of medical examiners of this state. Had the relator applied for a license on the basis of an examination, he could not in this respect have complied with the statutory requirements, because, by subdivision C of the section, it is provided that “every applicant for admission to examination for a license * * * shall * * * prove to said board that he has received a diploma conferring the degree of doctor of medicine from some legally incorporated medical college of the United States, which college, in the opinion of said board, was in good standing at the time of the issuance of said diploma * * *.” The reason for the refusal of the relator’s request for a license is shown by a resolution adopted by the board December 17th, 1931, as follows:

“The application of Dr. Ruffu for license to practice medicine and surgery came before the board and the board finds that the credentials attached to the application of Dr. Ruffu are not in accordance with the rules and regulations of this board and the law of this state, and that Dr. Ruffu is not a graduate of a college on the approved list of this board, and has not been approved by this board, and that the requirements of the State of Illinois in granting a license to Dr. Ruffu are not the equal of the requirements to grant licenses to physicians in accordance with the rules and requirements of this board and the law of this state, and that the board, in its discretion, denies the license to practice medicine to Dr. Ruffu.”

It appears therefore that although, under the stipulation, the standard of requirements for license in the State of Illinois is substantially equal to the standard of requirements here, nevertheless in this particular instance a license was granted there in large part based on the credentials of an institution of which the board of this state does not approve. There is no partisanship or selective prohibition laid against the candidate. The fact that has barred him would be likewise applicable against anyone, man or woman, of any race or creed, whose professional training had not measured up to the standard set by the New Jersey board. We think that the action of the board was not an abuse of discretion; that on the contrary it was within the legitimate field of board determination.

We conclude that neither of the writs asked for should be granted and that the rule should be discharged.


text:
    THE STATE, DEFENDANT IN ERROR, v. SAMUEL TABAS, PLAINTIFF IN ERROR.
    Argued October 6, 1931
    Decided November 12, 1932.
    Before Gummere, Chief Justice, and Justices Parker and Case.
    Por the plaintiff in error, Robert H. McCarter.

    Por the state, Louis A. Repetto, prosecutor of the pleas.
   Per Curiam.

This writ of error brings up the conviction of the plaintiff in error on an indictment for perjury. The specific perjury charged is that the plaintiff in error in a civil suit against one Kalmon Leon testified as a part of the evidence material to the issue that “the said Samuel Tabas did pay to the said Morris Chepin the sum of two thousand ($2,000) dollars and upwards, and because of such payment, he, the said Samuel Tabas, was then and there by that suit and cause seeking to recover from the said Kalmon Leon, the moneys so paid by him, the said Samuel Tabas, to the said Morris Chepin, whereas, in fact, any and all statements thus made by the said Samuel Tabas, while under such oath, and to the effect that he had paid the said Morris Chepin moneys, were false and untrue, the fact being that he had not paid the said Morris Chepin any moneys for the benefit of the said Kalmon Leon, for any purpose whatsoever, * *

The case is before us on eight assignments of error and two causes for reversal pursuant to section 136 of the Criminal Procedure act. The eighth assignment and first cause for reversal are substantially identical, charging that the trial court erred in refusing to direct a verdict of acquittal. A motion to acquit was made when the state rested its case and was then denied and exception allowed, and a similar motion was made at the end of the entire evidence and denied; no exception was then prayed but the refusal to direct is available under section 136 aforesaid. Both motions were placed upon the ground that the specific charge in the indictment rested on the testimony of one witness alone who was not corroborated in any way. In State v. Lupton, 102 N. J. L. 530; 133 Atl. Rep. 861, it was held by this court in a careful opinion by the late Mr. Justice Kalisch that proof that the defendant had made statements under oath, upon which the indictment is found is competent evidence on an indictment for perjury, and such evidence in connection with the testimony of one other witness, is sufficient to warrant a conviction, but the corroboration of the other witness must be of the material matter charged in the indictment. In that case the defendant was charged with having falsely sworn that he had never purchased any liquor from one Garton for beverage purposes, nor had he seen any other person purchase any liquor for beverage purposes from the said Garton. The state produced one witness who testified to having seen a sale of liquor by Garton to Lupton. The only testimony offered by way of corroboration was that of the witnesses’ wife who said she had never seen any such sale or transfer; and the testimony of officers that they found liquor in the cellar of Garton’s house. It was held error to permit the jury to say whether that evidence corroborated the testimony of Swift.

The case cited is, in our judgment, controlling on the present writ of error. In the case at bar it sufficiently appeared that Tabas owed Leon some $55,000 on a mortgage on an apartment house and that Leon was anxious to have the mortgage paid; that it was arranged between them that Tabas should, if possible, procure a larger loan sufficient to pay off Leon’s mortgage, and that there was an agreement between the two, in view of the probability that Tabas would have to pay some one a commission for getting the loan, that Leon would, in case the loan were procured, contribute toward the expense of obtaining the same to the extent of one-half of the commission to be paid, said one-half not to exceed $2,500. This agreement was in writing and signed by the parties. Later a loan of $100,000 was procured from an insurance company in Philadelphia and the Leon mortgage was paid off. Tabas claimed that he had been obliged to pay one Chepin, who happened to be his brother-in-law, some $5,000 for procuring the loan of $100,000 from the insurance company, and made claim on Leon for one-half of that amount, which Leon refused to pay and Tabas accordingly sued him; and the alleged perjured testimony was given in that suit, in which Tabas obtained a verdict. It is stated that the verdict was afterwards set aside, but we are not concerned with that phase of the matter.

In order to prove the perjuiy, Chepin was called as a witness for the state and testified that Tabas had not paid him any such sum of money, nor any money whatever, on account of commission for procuring a loan; that Tabas asked him to get a loan for him and that he, Chepin, had endeavored to do so but without success; and that he had never approached the insurance company that granted the loan. This testimony was, of course, in direct contradiction of that of Tabas in the civil suit and also his testimony in his own behalf on the trial of this cause.

Por corroboration, however, the only evidence produced for the state was that of a Mr. Quinn, the vice-president of the insurance company, who testified that he had personally attended to the details of the loan to Tabas and that at no time had he seen Chepin in connection with the matter, but that all the transactions were directly with Tabas.

We agree with the proposition of counsel for the plaintiff in error that this testimony was not on a material point. The question was not whether Chepin had in fact procured the loan from the insurance company or had gone to that company for the purpose of procuring it, but whether Tabas had paid him money for doing so. It is altogether conceivable that as Tabas claimed in his testimony, he had asked Chepin to get the loan and that Chepin had directed him to go and see the insurance company and give him the impression that he, Chepin, had satisfactorily arranged matters and that it was necessary for Tabas to go himself and attend to the rest of the affair; and that in view of this, Tabas had paid Chepin for his intervention. The material question was not whether Chepin had or had not done anything in the matter, but whether Tabas had paid him under a claim that he had done something. We think it is clear that the corroboration was on an immaterial point and does not measure up to the standard set out in State v. Lupton, supra.

The conviction therefore will be reversed and the ease remanded to the Atlantic County Quarter Sessions for a new trial.


author: Pee Oueiam.

text:
    JOHN J. McMAHON, PLAINTIFF-RESPONDENT, v. CITY OF BAYONNE, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 10, 1932
    Decided November 12, 1932.
    Before Justices Trenchaed, Case and Brogan.
    For the plaintiff-respondent, Andrew J. Marlcey.

    For the defendant-appellant, Alfred Brenner.

   Pee Oueiam.

This is an appeal from a judgment rendered by the Hoboken District Court in the amount of $400 for the rent during the months of October, November, December, 1931, and January, 1932, of a property owned by the plaintiff and occupied by the defendant under a lease. The premises were actually occupied by the defendant during the period sued for, as a branch library, indeed for a year preceding the present lease period were, and still are so occupied. The lease agreement sued upon was entered into by the parties to the litigation on April 28th, 1931, for the term of three years commencing May 1st, 1931, and at an annual rental of $1,200, payable in monthly installments of $100 in advance. The lease was executed on behalf of the city by the mayor and director of the department of public affairs in compliance with a resolution adopted by the board of commissioners on April 7th, 1931, providing as follows:

“Whereas, the city of Bayonne has a lease on the premises located at 592 Broadway, in the city of Bayonne; and whereas, the lease is about to expire, therefore be it resolved that the proper city officials be and they are hereby authorized to execute on behalf on the city a lease with John J. McMahon, the owner of said premises, a renewal of the said lease at the same monthly rental of one hundred dollars.”

In essence, there is a single point presented by the appellant, and that is that there was no money appropriated, authorized or available for the purpose of meeting the obligations of the lease agreement, and that therefore the contract was void because ultra vires the city government. Sleight v. Board of Education, 10 N. J. Mis. R. 523; 159 Atl. Rep. 707.

The Home Eule act (Pamph. L. 1917, ch. 152, as amended by Pamph. L. 1918, ch. 163, p. 478), provides in article 11, section 6, that “no municipality shall enter into any contract whatsoever, the cost of which is to be met by funds other than those included in the budget of appropriations for the year, unless prior thereto there shall have been regularly adopted by the governing body of such municipality an ordinance authorizing an appropriation sufficient to meet the cost of carrying out the provisions of such contract; * * *.” There was no special ordinance authorizing an appropriation for the requirements of the lease agreement, and therefore the question on appeal becomes an inquiry as to whether or not the obligations of the contract were to be met from moneys included in the annual budget appropriations for the year 1931.

The 1931 budget contained this line item: “Free public library—expense, salaries and maintenance, $79,422.62.”

That was the only appropriation for library purposes. That the anticipated rental could be embraced within that item seems to us quite possible. Was it? The necessary inference from the judgment under appeal is that the court below found affirmatively on that fact question.

While the date of the formal resolution of the budget appropriation for 1931 is not of record before us, the approval was given on December 16th, 1930, and the adoption was presumably between that date and January 1st, 1931. At that time the premises had already been under lease to the city for the same purpose and at the same rental by authority of a resolution adopted by the board of commissioners on April 15th, 1930. The term of the last named lease was until May 1st, 1931, and the existing lease was in unbroken continuance thereof. The appropriation of funds for library purposes for the year 1930 was in the same words and in the same amount as for 1931. From the funds provided by the 1930 budget the monthly rental was regularly paid to the plaintiff throughout the year 1930 and, from the funds of the 1931 appropriation, to the expiration of the term of the earlier lease on May 1st, 1931. The resolution of the board of commissioners, upon the authority of which the earlier lease was executed, recited that “whereas, due to the lack of proper facilities at the main library, at Avenue C and Thirty-first street; whereas, it is deemed advisable that a branch library be established to relieve the congestion at the main library; therefore be it resolved that a branch library be established at the premises known as 592 Broadway, in the city of Bayonne; * * *.” With perhaps a single exception, the board of commissioners was composed of the same members on April 7th, 1931, as on April 15th, 1930, when the last quoted resolution was passed. There is nothing to indicate that there was a lesser congestion at the main library. We think that the payments by the city over a period of approximately one year of precisely the same amounts and under the same conditions may be considered evidential on the question whether the city commissioners intended the 1931 budget appropriation to meet the rental obligation of the new lease.

The only other fixed liability, the amount of which was proved against the library appropriation, was that of a semimonthly obligation of $1,929.51—which totals $46,308.24 for the j^ear—for salaries. The balance of the appropriation over the salary item was $33,114.38.- It is said that there was a deficit in these remaining funds against the needs for 1930 and also for 1931; but the amounts of these deficits, whether small or large, are not stated and the disbursements which, in their accumulation, caused the deficit are not explained. We think that the evidence sustains a legitimate inference that the annual 1931 budget appropriation was designed to and did include the rental requirements for the year 1931 for the lease sued upon; and, if this be so-, there was a compliance with section 6, article 11, of the Home Rule act, as construed in Viracola v. Long Branch, 1 N. J. Mis. R. 200; 142 Atl Rep. 252.

Our opinion being that the evidence sustains a factual finding in accordance with the ’requirements of the statute as construed by our cases, we conclude that there should be an affirmance of the judgment below.


author: Case, J.

text:
    TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PISCATAWAY AND THE TOWNSHIP OF PISCATAWAY, A MUNICIPAL CORPORATION, PLAINTIFFS, v. THE FIRST NATIONAL BANK OF DUNELLEN, A CORPORATION, DEFENDANT.
    Decided November 12, 1932.
    For the motion, John T. Keefe.

      Contra, Joseph J. Muinich, Jr.

   Case, J.

The township of Piseataway had on deposit with the defendant bank $32,500 raised by taxation for various purposes—schools, fire department, state funds, and the like. Defendant, holding plaintiffs’ note obligations amounting to about $100,000, appropriated the above deposit and applied it to that indebtedness. The township sued to recover the amount of the deposit; the defendant answered and counter-claimed for the full amount of the notes; and the township answered the counter-claim. On motion Judge Cleary, Circuit Court judge sitting as Supreme Court commissioner under Supreme Court rules ISTos. 93 and 94, struck the answer to the complaint and thereupon the answer to the counter-claim was withdrawn. The township now moves for judgment on its complaint, conceding that defendant is also entitled to judgment for the full amount of. the latter’s counter-claim. Defendant, opposing, contends that the amount due plaintiff on the complaint should be credited against the amount due defendant on the counter-claim and that judgment should be entered in favor of the defendant for the balance, and cites, in support, section 4 of “An act concerning set-off.” 4 Comp. Stat., p. 4836, and also Pamph. L. 1927, ch. 243.

The statute on set-offs provides that if any two or more persons are indebted to each other, such debts or demands not being for unliquidated damages may be set off against each other, and that if on the trial the amount found to be due to the defendant on his set-off shall equal or exceed the amount found to be due to the plaintiff on his cause of action, the defendant shall be entitled to a verdict and judgment, which verdict and judgment shall, in case of such excess, be for the amount of the balance which shall appear to be due to the defendant on the adjustment and allowance of the debts and demands of the parties under the act. Whether the word “persons” is inclusive of a municipality or other branch of government must depend in large degree upon the context or the sense in which the word is used. Consequently, in a statute, the intent of the legislature is controlling. A private corporation is by statute and common acceptance more essentially a person, within legal conception, than is a public eorpoiation. This is emphasized by the peculiar care, and frequently the prohibition, with which the law has cloaked governmental entities with respect to suits against them. The statute on set-offs, passed in 1874, Revision of 1877, page 1096, was a development from the statutory provisions for mutual dealers contained within the “act concerning obligations and to enable mutual dealers to discount,” passed November 1st, 1797. Patterson 254. I am convinced by the wording and the history of the legislation that a plaintiff municipality, suing in a governmental function, is not within the purview of the statute and that, therefore, the statute is not applicable.

Chapter 243, Pamph. L. 1927, being a supplement to the Municipalities act of March 27th, 1917, provides that “whenever an action has been or hereafter may be commenced, by any municipality, in any court of law of this state against any person, persons or corporation, it shall be lawful for such person, persons, or corporation having any claim or demand against the plaintiff to set up such claim or demand hy way of set-off or counter-claim, subject to rules, and the same shall be considered upon the trial of any such action.” This statute has been complied with. The defendant did set up its demand by counter-claim and the counter-claim was not only considered but has been allowed as a substantive cause of action upon which judgment should be entered.

I cannot think that the defendant may arbitrarily and without judicial process seize upon and apply in partial satisfaction of the debt municipal property that it would be unable to reach by execution after successfully reducing its claim to judgment. For that, in essence, is what defendant’s contention amounts to. The striking of defendant’s answer was a determination that defendant did not have the right to appropriate the deposit; it is to protect plaintiff’s rights in that respect that plaintiff is now successfully in court; yet defendant, by the form of the judgment, seeks precisely the advantage that it sought to accomplish by seizing the funds. A judgment creditor may not ham-string a municipality in its governmental functions by taking, under execution, property necessary for public purposes. Lyon v. City of Elizabeth, 43 N. J. L. 158. It seems to be clear that defendant, when it shall have entered its judgment, and issued execution, may not levy upon the public property of the township. In the application of this principle I am unable to distinguish between funds raised by taxation for specific public purposes and chattels or real property used for such purposes. Fire houses and fire apparatus are of little use without the funds to operate them; likewise, schoolhouses without money to pay teachers and purchase supplies. The practice in this state has uniformly been to issue execution against the municipality, not to seize and sell its public property, but for the purpose of laying a foundation for a mandamus proceeding. Lyon v. Elizabeth, supra; Palmer v. Freeholders of Essex, 77 N. J. L. 143; 71 Atl. Rep. 285; Friedman v. Borough of Waldwick, 8 N. J. Mis. R. 370; 150 Atl. Rep. 195. Indeed, on the data before me, it appears that the funds appropriated by the bank were, in large measure, moneys that were simply passing through the township, as a tax-collecting agency, to other governmental units, including the school district, the county and even the state itself.

An order will be signed for judgment for the complainant on its complaint. Likewise, an order will be signed for judgment for the defendant on its counter-claim. That will establish the respective rights and liabilities in favor of and against the parties, respectively, and will prevent the defendant from doing by indirection that which it could not do directly.


author: Acbebson, S. C. C.

text:
    PETER BENTLEY, RECEIVER OF BRADLEY HOTELS SYSTEM, INCORPORATED, A CORPORATION, PLAINTIFF, v. RUSSELL COLGATE, S. BAYARD COLGATE AND ADELBERT A. KENYON, EXECUTORS OF THE LAST WILL AND TESTAMENT OF AUSTEN COLGATE, DECEASED ; CORBETT McCARTHY, CLARENCE E. F. HETRICK, CLINTON G. HOLDEN, J. HERBERT REID, WALTER W. REID, Jr., MORELAND B. SORIA, WILLIAM A. SMITH AND HARRY A. WATSON, DEFENDANTS.
    Decided November 23, 1932.
    Por the plaintiff, Herbert Glcurh Gilson.

    Por the defendants, Merritt Lane.

   Acbebson, S. C. C.

The original complaint in this action was stricken as defective under rule 39 of this court, and the amended complaint is now before me upon a motion to strike it out upon several grounds, some of which will be hereinafter noticed.

The amended complaint is by the receiver of a foreign corporation against its directors to recover damages for their alleged negligence in the conduct of the corporate affairs. It alleges in substance the appointment of the plaintiff as receiver of the Bradley Hotels System, Incorporated, a Delaware corporation, by our Court of Chancery, and that said Bradley Hotels System, Incorporated, was incorporated on July 30th, 1923, on which day it became the owner of an option to purchase three tracts of land in Asbury Park, Monmouth county, Hew Jersey, which option was the only asset of the said company and at all times mentioned in the complaint, was of the value of $100,000, and at said times the defendants constituted the board of directors of said corporation. Then follows the vital part of the complaint which is found in paragraphs 5 and 6, providing as follows:

5. On or about September 1st, 1924, there were certain persons ready, willing and able to purchase the said option for a sum sufficient to pay all of the claims of creditors of said corporation and to reimburse all of the stockholders for money paid for capital stock of said corporation, and the defendants then and there with knowledge thereof, paid the sum of $5,000 for, and obtained a renewal of the said option to Hovember 1st, 1924.

6. At or about the time of the said renewal of the option on September 1st, 1924, the said defendants improperly allowed one of the said directors, to wit, Clarence E. E. Hetrick, to speculate with the said option and to try to malte a profit for himself by raising capital to build a hotel on the property mentioned in the option, and the defendants failed and neglected to sell the said option or to take any action whatsoever in connection with the said option, from that time to the expiration thereof; and as a result of the conduct of the defendants as aforesaid, the said option lapsed and expired, and it thereby became wholly lost to the corporation, to wit, on November 1st, 1924.

One of the objections to the sufficiency of the amended complaint is that it is irregular, indefinite, defective and so framed as to embarrass or delay a fair trial, therefore, open to attack unde!' rule 39 of this court. This is the equivalent of a special demurrer at common law. •

In the first place it is apparent that the clause in paragraph 6 reading: “Defendants improperly allowed one of the said directors * * *, to- speculate with the said option,” is a bare conclusion of the pleader and it is not supported by pleaded facts, for what follows is not tied up to the alleged speculation because of the use of the conjunctive “and.” This conjunctive merely makes the following statement in paragraph 6 a second independent charge of alleged improper conduct on the part of the defendant directors. This latter charge, however, is too indefinite and uncertain to support an action for negligence.

While the directors of a corporation are required to exercise ordinary and reasonable care, such as a reasonable, prudent, careful and skillful man exercises in the conduct of his own affairs, nevertheless they are not liable for losses happening through mere mistakes of judgment, and questions of policy of management, of expediency of contract or action, of lawful appropriation of corporation funds to advance corporate interests are left solely to the honest decisions of the directors, if their powers are without limitation. 14a C. J. 102, § 1896, and Merriman v. National Zinc Corp., 82 N. J. Eq. 493; 89 Atl. Rep. 764.

With this principle as a guide we must remember that an option to purchase real estate is not ordinarily acquired for the purpose of sale, but to hold open the opportunity of purchasing real estate for future acceptance by the one to whom the option is given. So the mere failure to sell the option would not impose liability upon the defendant directors, because presumably the option was taken to further the objects of the corporation, and it certainly was a question of corporate policy as to whether the directors should rely upon one co-director’s ability to turn the option to the corporation’s advantage or to dispose of it. An honest mistake of judgment in this respect, while regrettable, would not be legally censurable. It is not alleged that the director in question did make a profit for himself in connection with said option nor is it clear for whom he was endeavoring to raise capital vñth which to build a hotel on the property covered by the optio'n. For all that appears it may have been for the Bradley Hotels System, Incorporated, of which the defendants were directors. The business of this company is not stated in the complaint, which adds to its indefiniteness. The name of the company would seem to indicate that it was intended to engage in the business of building and operating hotels. If this is true, then in endeavoring to raise capital with which to build a hotel on the property, this particular director was endeavoring to accomplish an object of the company’s creation, and from all that is alleged in the complaint, it cannot be said that the directors were not justified in retaining the option for the purpose of endeavoring to accomplish the object thus undertaken. Even if we assume that the director Hetrick was endeavoring to raise capital for some third party to build a hotel on the property, nevertheless, this may have been to the advantage of his corporation. The difficulty with the complaint is that there is no allegation as to what the arrangement was between the defendant directors and said Hetrick with respect to this option. There is no statement as to what Hetrick had promised to do in connection therewith nor that any agreement was made whereby the option was to be allowed to lapse for the benefit of said Hetrick or for anyone he might represent. Eg facts are alleged upon which to base a conclusion as to whether the defendant directors acted with reasonable judgment, or whether they were negligent.

Furthermore, it is to be noted that, while it is alleged that at the time of the last renewal of the option in question, on September 1st, 1924, there were certain persons ready, willing and able to purchase the same for a sum sufficient to pay all the claims of creditors of said corporation and to reimburse all of the stockholders, nevertheless, it is not alleged that there were such persons ready, willing and able to purchase the option at the time when the option expired two months later on November 1st, 1924. Certainly the directors having renewed the option on September 1st, 1924, for a period of two months, were not required to immediately sell the same, in order to escape a charge of being negligent.

Sufficient has been said to show that the complaint is defective under rule 39, and furthermore, excluding the conclusions therein, it undoubtedly fails to set forth a legal cause of action.

"While this disposes of the motion adversely to the plaintiff, nevertheless, I feel that we should notice two other objections to the complaint.

The first of these is that the court has no jurisdiction of •the action:

“Because it appears that the corporation, of which the plaintiff is receiver, is a corporation of the State of Delaware and that the plaintiff is a receiver appointed by the Court of Chancery of the State of New Jersey, and it does not appear that the receiver is acting in an ancillary capacity nor does it appear from the complaint that the plaintiff has right or title to the cause of action or is in any position to assert said right or title, and because it appears that the suit involves the internal affairs of a foreign corporation over which the New Jersey Supreme Court has no jurisdiction, and because it appears that a judgment against the defendant would not bar a further recovery either by the corporation or by a receiver appointed by the courts of Delaware.”

The questions thus raised, however, have been put at rest in this state adversely to the contention of the defendants, by the case of Atwater v. Baskerville, 89 N. J. Eq. 121; 104 Atl. Rep. 310; affirmed, 90 N. J. Eq. 275; 106 Atl. Rep. 369, where the courts in dealing with an action by the receiver of a foreign corporation against its directors, said, inter alia:

“He [the receiver of a foreign corporation] has the power to institute such actions as may be necessary to recover, for the creditors and stockholders’ assets, legal or equitable, within this state, and to enforce such obligations of persons over whom jurisdiction can be obtained in this state which the corporation or its creditors might have enforced. I do not think that the suit will affect the internal management of the affairs of the corporation within the sense used by the Court of Errors and Appeals in McDermott v. Whoodhouse, 87 N. J. Eq. 124; 99 Atl. Rep. 103, or in Jackson v. Hooper, 76 N. J. Eq. 592; 75 Atl. Rep. 568; 27 L. R. A. (N. S.) 658.”

See, also, McMahon v. Burdette, 109 N. J. Eq. 84; 156 Atl. Rep. 420; Busch v. Mary A. Riddle Co., 92 N. J. Eq. 265; 114 Atl. Rep. 348. Eor an instructive case see Loan Society of Philadelphia v. Evanson, 241 Pa. 65; 88 Atl. Rep. 295, cited in 14A Corp. Jur. 151, note 92.

Since the present action is to enforce alleged negligence of directors over whom jurisdiction can be and has been obtained in this state which the corporation or its creditors might have enforced, it is apparent that this court has jurisdiction of the matter, and the complaint cannot be stricken upon that ground.

The last objection to the complaint which we shall notice is that it appears that the statute of limitations has run against the cause of action set forth in the complaint. It is unnecessary to consider this objection further than to say that such an infirmity cannot be raised by a motion to strike but only by answer in the nature of a plea. Callan v. Bodine, 81 N. J. L. 240; 79 Atl. Rep. 1057; Wright v. Kroydon Co., 154 Id. 195.

Inasmuch as the complaint must be stricken out for the reasons hereinabove first stated, it is unnecessary-to consider further objections raised by the defendants.

An order may be presented in accordance with the conclusion thus reached.


author: Pek Cueiam.

text:
    FLORA A. GASH, EXECUTRIX OF THE ESTATE OF HARRIS GASH, DECEASED, PAINTIFF-APPELLANT, v. DAIRYMEN’S LEAGUE CO-OPERATIVE ASSOCIATION, INCORPORATED, DEFENDANT-RESPONDENT.
    Argued May 3, 1932
    Decided November 23, 1932.
    Before Gummebe, Chief Justice, and Justices Bodine and Donges.
    Eor the appellant, William M. McConnel.

    Eor the respondent, Dalrymple <& Campbell.

   Pek Cueiam.

This is an appeal from a judgment of the Essex County Circuit Court entered upon a verdict to be entered in favor of the defendant by Judge Smith.

The original plaintiff, Harris Gash, for whom has been substituted the executrix of his estate, leased premises in Newark to the defendant by written lease for a term of two years commencing February 15th, 1924, at a yearly rental of $1,620 payable $135 per month. At the end of the term, defendant held over and occupied the premises until February 14th, 1927, paying the sum of $135 per month up until November, 1926. The suit was originally upon the theory of an extension of the term for two more years, but this was abandoned at the trial and the complaint was amended to allege that the defendant was a hold-over tenant and had vacated without giving the three months’ notice required by the statute at that time.

The defendant claimed that there had been an oral notice sometime around June, 1926, and a written notice on November 15th, 1926. Plaintiff claimed this alleged written notice was insufficient because the last day for giving such notice for February 14th, 1927, was November 14th, 1926. Defendant further claimed at the trial, although this is probably not raised by the pleadings, they being somewhat indefinite owing to the amendments at the trial, that the subject of the lawful termination of the leasehold was res adjudicada by reason of a judgment of the Irvington District Court in an action in which defendant secured judgment against the plaintiff for a deposit of $300 made at the beginning of the term.

The plaintiff’s case made no effort to prove that no notice had been given and a motion for nonsuit was made on the ground that this proof was part of plaintiff’s claim. This was denied.

Defendant then proved the oral and written notices and the proceedings in the District Court. There was no testimony in contradiction of defendant’s evidence.

The trial judge directed a verdict for the defendant, apparently considering that all grounds urged were sufficient.

Appellant first claims that there was a question of fact for the jury as to the giving of the notice despite the fact that the testimony is uncontradicted. In this situation, there was not a jury question merely upon the credibility of defendant’s proof. There is a jury question only where conflicting inferences may be drawn.

It is next urged that there was no testimony that three months’ notice was given. This is based on the claim that the written notice should have been given on November 14th and not the 15th. In view of the testimony of the oral notice in June; this is unimportant.

It is also urged that the notice must be written. The contrary was decided in Guvernator v. Kenin, 66 N. J. L. 114; 48 Atl. Rep. 1023, and there appears to be no statutory requirement that the tenant’s notice shall be in writing.

We do not deem it necessary to pass upon whether or not the questions are res adjudicate because what has been said above disposes of the meritorious questions.

The judgment is affirmed, with costs.


text:
    ARTHUR ALLORD, PETITIONER-DEFENDANT, v. THE HENRY MUHS COMPANY, RESPONDENT-PROSECUTOR.
    Submitted May 13, 1932
    Decided November 23, 1932.
    Before Gummere, Chibe Justice, and Justices Bodine and Donges.
    For the prosecutor, Cox c& Walburg.

    For the respondent, Gebhardt •£ Gebhardt.

   Per Curiam.

Of these two cases submitted together, Wo. 241 is a writ of certiorari bringing up a determination of the workmen’s compensation bureau awarding compensation to petitioner-defendant, and Wo. 263 is a motion to dismiss said writ.

The basis of the motion to dismiss is that under chapter 25 of the laws of 1932 the proper procedure was by appeal to the Common Pleas. The judgment herein was entered March 18th, 1932. Chapter 25 became effective March 21st, 1932, and the writ was allowed March 31st, 1932. Petitioner claims the state of the law at the time of the appeal should control and prosecutor says it was required to follow the procedure in effect at the time of the rendition of the judgment. In view of the fact that the act of 1932 is not made retroactive by express terms, we should not construe it as retroactive. Citizens Gas Co. v. Alden, 44 N. J. L. 648, and other cases cited, support this view. Besides this court has jurisdiction to review by certiorari, in any event. The motion to dismiss is denied.

The petitioner was injured on December 20th, 1928, while pushing three hogs along a trolley suspended from the ceiling. He worked as a meat cutter and his work was, for the most part, light. Petitioner injured his back at a point where it had been previously injured. It is admitted that he is now one hundred per cent, incapacitated. On October 9th, 1925, while in the employ of another, petitioner had sustained a severe injury to the back. There was a compensation proceeding and on February 25th, 1928, an award was made on the basis of ninety per cent, disability. Petitioner commenced work for the prosecutor in October, 1928. The present petition was filed September 30th, 1930, after prosecutor had paid petitioner temporary compensation from the time of the accident until October 13th, 1929. On May 22d, 1931, the previous proceeding in compensation was opened and an order was entered reducing petitioner’s disability to sixty-five per cent, as a result of his first accident. By the present proceeding petitioner sought and recovered for the loss of the remaining thirty-five per cent, of his working capacity.

The first point argued is that the petition was barred by the time limitation in the statute because not filed within a year after the accident. However, as stated above, the prosecutor paid compensation down to October 13th, 1929. The statute provides claims not made within one year shall be barred unless an agreement for compensation has been made and then within one year after failure to make payment pursuant to the agreement; or unless a part of the compensation has been paid and then within one year after the last payment of compensation. There was no' agreement in the instant case, but the case is clearly covered by the second exception since a part of the compensation was paid voluntarily and the petition was filed within a year after the last payment. Herbert v. Newark Hardware Co., 107 N. J. L. 24; 151 Atl. Rep. 502; affirmed, 109 N. J. L. 266; 160 Atl. Rep. 492; Jersey City Metals Co. v. Brennan, 10 N. J. Mis. R. 846; 160 Atl. Rep. 885.

The second point urged for reversal is that the finding that petitioner suffered a disability of thirty-five per cent, is unsupported by any legal evidence. There was evidence in the expert testimony of Dr. Cummins that sixty-five per cent, of disability before the accident was a reasonable estimate and it is admitted that the man is now completely disabled. No expert testimony was produced by the prosecutor. The fact that the petitioner was able to do’ light work and had done it for eight weeks prior to his second accident is some corroboration of this finding. We think there is no merit in this point.

The third point urged for reversal is that there was error in the admission of hypothetical questions. We can see no reversible error in the admission of these questions in view of the fact that the bureau is not, by the terms of the statute, bound by the strict rules of evidence.

We conclude that the finding has reasonable support in the testimony.

The judgment under review is affirmed, with costs.


author: Laweence, C. C. J.

text:
    FRANK PARKER, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Decided November 29, 1932.
    For the rule, McCarter •& English.

    Opposed, Mortimer Eisner.

   Laweence, C. C. J.

This was a suit on an insurance policy issued by defendant to the wife of the plaintiff and in which he was named as the beneficiary. It was tried before me and a jury at the Monmouth Circuit and resulted in a verdict in his favor. Defendant, under the rule to show cause, argues for a new trial, urging that the verdict was contrary to the evidence, its weight, and to the charge of the court, also insisting that there was no supporting testimony to justify the finding of the jury.

Mrs. Parker applied for the insurance on February 19th, 1929, and died May 24th, 1930. The death certificate sets forth the cause technically as acute glomerular nephritis, acute hepatitis, with streptococcus septicemia as contributory. ISTephritis and hepatitis involve inflammation of the kidneys and liver, the former indicating a phase of Bright’s disease, while streptococcus septicemia is said to be an insidious blood infection.

The issue at the trial was whether in her application for the insurance Mrs. Parker had falsely answered certain questions, thereby misrepresenting material facts and so voiding the policy thereafter issued to her by the insurance company in reliance on the truth of such answers; their falsity not having been discovered until alter her death. In the application she stated that she had had a successful operation for appendicitis in September, 1926, and in February, 1929, had recovered from an attack of influenza after an illness of eight weeks; that her usual medical attendant was Dr. Rullman; and that, with the exception of the operation for appendicitis and the influenza, she had had none of the complaints or diseases specially inquired for, which included jaundice. In answer to the question as to whether she had been attended by a physician in the preceding five years, she indicated Dr. Rullman only, while to that as to any treatment at any dispensary, hospital- or sanatorium during the -same period, she gave no answer other than to refer, by inference, to the operation for the removal of the appendix, the precise answer being “see above.” Dnder “additional information or remarks,” the statement appeared that “the applicant is in excellent health-—shows no sign of any weakness following influenza attack.” She certified that she had read the answers to the questions before signing the application, that they had been correctly written, as given by her, that they were full, true and complete, and that there were no exceptions to any of them, other than as stated.

The evidence offered at the trial disclosed that in fact she had been treated by a Dr. DePons on December 18th, 1928, and that specimens of urine had been delivered at the physician’s office from time to time, while the proof of death made out by the plaintiff stated that during the period of two years before her death, his wife had been constantly attended by Dr. DePons. The latter testified that Mrs. Parker had complained of indigestion and that she had not returned to learn the result of the examination of the urine.

Dr. Rullman, when examined, stated that he attended her at a hospital from September 23d, 1925, to October 6th, 1925, for chronic appendicitis, and operated for it; that again, at the same hospital, he treated her from April 17th, 1926, to May 6th, 1926, diagnosing her ailment as chronic cholecystitis (inflammation of the gall bladder) at which time he also discovered that she had jaundice and a heart condition known as pericardial effusion, although he did not recall whether he had made it known to her.

While it was said in Clayton v. General, &c., Assurance Corp., 104 N. J. L. 364; 140 Atl. Rep. 307, that a false statement made in the application for a policy of health insurance, or the failure to set out physical conditions, which are in their nature simply transitory or temporary indispositions, will not bar a right of recovery, if not made with intent to deceive, or if it does not materially affect either the acceptance of the risk or the hazard assumed by the insuring company, it would seem that the evidence here considered did suggest phjrsical conditions that were something more than transitory in their nature or of merely temporary indispositions, which would have materially affected the acceptance of the risk, if indicated or disclosed in the application attached to and made a part of the policy.

Counsel for defendant rely on Metropolitan Life v. McTague, 49 N. J. L. 587; 9 Atl. Rep. 766; Fish v. Metropolitan Life Insurance Co., 73 N. J. L. 619; 64 Atl. Rep. 109; Brunjes v. Metropolitan Life Insurance Co., 91 N. J. L. 296; 102 Atl. Rep. 693; Kerpchak v. John Hancock Mutual Life Insurance Co., 97 N. J. L. 196; 117 Atl. Rep. 836, and Locker v. Metropolitan Life Insurance Co., 107 N. J. L. 257; 151 Atl. Rep. 627, as to the effect of the failure of an applicant for insurance to reveal medical treatment within a stated period, whether in a hospital or elsewhere, and the name of the attending physician, when made the basis of a charge of obtaining the policy involved by misrepresentation or fraud.

In the circumstances of the present case, it does not appear that the jury gave due consideration to the material omissions in Mrs. Parker’s application for the insurance in question, knowledge of which she undoubtedly had, notwithstanding which she certified that her answers to the questions were full, true and complete, and that there were no exceptions to any of them, other than as stated. The verdict must, therefore, be held contrary to the weight of the evidence, if not' the evidence itself. The rule to show cause will be made absolute.


author: Lawrence, C. C. J.

text:
    CLARA H. LOWER, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT.
    Decided November 15, 1932.
    Por the plaintiff, Quinn> Parsons & Doremus.

    Por the defendant, Clifford I. Voorhees.

   Lawrence, C. C. J.

This suit was submitted to me, without a jury, at the Monmouth Circuit, for determination on a stipulation of the facts. The circumstances involved are that Prancis T. Lower, fifty years of age, a laborer in the employ of one Raub, was, on August 4th, 1930, the holder of a so-called double indemnity policy, theretofore issued to him by the defendant company, and in force, covering life insurance in a stated amount and a like sum in case of death, as the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means. August 4th, 1930, was evidently a torrid day, and in the morning he had been working out of doors at his usual employment, which he resumed after his mid-day meal. At two o’clock, the temperature registered ninety-four degrees Pahrenheit. Sometime during the afternoon he suffered a sunstroke, from the effects of which he died.

Plaintiff, as the beneficiary named in the policy, filed proof of death, in due course, and claimed not only the sum for which her husband was insured on his life, but the additional sum under the supplementary contract, attached as a rider and labeled "accidental death benefit—benefit payable in the event of death from accident as herein limited and provided.” Defendant paid the former, but declined as to the latter sum on the ground that death was not the result of bodily injuries sustained through external, violent and accidental means, directly and independently of all other causes. In other words, the position of the company is that sunstroke is a disease likely to affect individuals of reduced vitality who expose themselves to excessive heat and is not a bodily injury within the intent and meaning of the policy in question.

The controversial provisions of the contract are that the company “hereby agrees to pay to the beneficiary or beneficiaries oE record under said policy, in addition to the amount payable according to the terms of the said policy, the sum of one thousand dollars, upon receipt, at the home office of the company in the city of Hew York, of the proof of the death of the insured, as the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means; provided, * * * (5) that death shall not have been the result of self-destruction, whether sane or insane, or caused by or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity * * *.■”

The question, therefore, is whether the sunstroke which occasioned the death of the insured was a bodily injury within the scope of the contract. The case must rest on the legal interpretation of the clauses quoted, and the evidence disclose that death resulted from a bodily injury, directly and independently of all other causes. Runyon v. Monarch Accident Insurance Co., 108 N. J. L. 489; 158 Atl. Rep. 530, and Runyon v. Commonwealth Casualty Co., 109 N. J. L. 238; 160 Atl Rep. 402.

It is to bo observed that there is nothing in the contract listing sunstroke as a bodily injury subject to coverage by its terms, such as is generally found in those policies which have been judicially construed as payable when death results therefrom. This may be regarded as significant of the trend of decisions in the various states holding the right of the beneficiary to recover and in those adopting the contrary view in the absence of such a provision. Richards v. Standard Accident Casualty Co., 17 A. L. R. 1185; Continental, Cas ualty Co. v. Bruden, 61 Id. 1192; Elsey v. Fidelity and Casualty Co., 120 N. E. Rep. 42, 43; Gallagher v. Fidelity and Casualty Co., 163 App. Div. (N. Y.) 556; Bryant v. Continental Casualty Co., L. R. A. (1916) E-945; Nickman v. New York Life Insurance Co., 39 Fed. Rep. (2d) 763; 55 N. J. L. J. 187; Paist v. Aetna Life Insurance Co., 54 Fed. Rep. (2d) 393; Sinclair v. Maritime Passengers Association, 3 El. & E. (Eng.) 478; Dozier v. Fidelity and Casualty Co., 46 Fed. Rep. 446; 13 L. R. A. 114; Semancik v. Continental Casualty Co., 56 Pa. Sup. Cl. 392; Cln. Cas. Co. v. Pittman, 89 S. F. Rep. 716, and 1 C. J. 429.

Sunstroke is indicated as an inflammatory disease of the brain, brought on by exposure to the too intense heat of the sun’s rays or to oyer-heated air; the combination of a group of phenomena comprising the incidence of the sun’s rays, the reaction of the central nervous system, the engorgement of the blood vessels of the brain and other physical effects. Bryant v. Continental Casualty Co., supra, and Paist v. Aetna Insurance Co., supra.

In the Bryant case, frequently referred to as an authority for the right of the beneficiary to recover, it appeared that the policy included sunstroke as within the range of fatalities intended to be covered, and the decision was apparently based on that fact. At page 948 of the text, however (L. R. A. (1916) E), it was said: “In the early Sinclair case, decided in England in 1861, it was held that no liability arose from an ordinary sunstroke under an accident insurance policy providing for indemnity in the event of 'personal injury from, or by reason or in consequence of, any accident, etc.’ In the decision, sunstroke was treated as a disease. So considered, it has no quality of personal injury about it, as already stated and, under that theory, the determination that there Was no liability under the policy was sound. This holding was followed by the Dozier case, where the policy was in the same general terms providing insurance against 'bodily injuries, sustained through external, violent and accidental means,’ as does the general clause of the present policy. In neither case did the policy designate sunstroke as a risk. It is to.be assumed that the present policy was drawn in the light of that holding. That the purpose was to make sunstroke a part of the contract risk, as a distinct feature of the policy, is evident. We regard it as equally manifest that the purpose also was to make it a feature of the risk in such a way as to avoid the effect of the holding in the Sinclair case and others like it—under which, if treated as a disease, it would not fall within the general risk of the policy—and as would be, at the same time, consistent with such risk as expressed in the general insuring clause, and in harmony with the theory of such insurance. This could only be done by in the policy recognizing it to be what in the common understanding it is considered, a form of personal injury, and, when suffered under certain circumstances, a casualty. Such we hold is the meaning and force of the sunstroke provision of the policy.”

In the Dozier case (13 L. R. A. 114), the pathology of sunstroke was discussed, and it was held that it was not a bodily injury sustained through external, violent and accidental means, within the meaning of an insurance policy covering such injuries, but expressly excluding liability for any disease or bodily infirmity.

Considering these deliverances as to the pathologic nature of sunstroke when sought to be brought within the provisions of a contract of insurance such as those which give rise to the present suit, the conclusion is that no adequate proof has been offered that the death of the insured was the result, directly and independently of all other causes, of a bodily injury sustained through external, violent and accidental means, and that it was not caused by or contributed to, directly or indirectly, or wholly or partially, by disease.

A judgment in favor of defendant and against plaintiff of no cause may be entered, but without costs.