author: ISTaame, J. G. C.

text:
    FLINT FROZEN FOODS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY, A BODY CORPORATE, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided February 27, 1951.

      Messrs. Parsons, Labrecque, Canzona & Combs (Mr. Theodore D. Parsons appearing), attorneys for plaintiff.

      Messrs. Lum, Fairlie •& Foster (Mr. Raymond W. Troy appearing), attorneys for defendant.
   ISTaame, J. G. C.

By consent of counsel, this case was tried before mo without a jury. The facts may be briefly stated as follows: The plaintiff being indebted to Einhorn’s, Inc., in the amount of $13,401.99, executed and delivered to it certain notes for that amount. Upon demand, the plaintiff delivered to Einhorn’s, Inc., certain warehouse! receipts as collaieral security for the stated indebtedness. Einhorn’s, Inc., also required evidence of insurance covering the merchandise represented by the warehouse receipts. The plaintiff assured Einhorn’s, Inc., that it had a blanket policy, which among other things covered the merchandise represented by the certificates held by Einhorn’s, Inc., and it had reported the same to its company, requesting its insurance company to forward a certificate of insurance to Einhorn’s, Inc., covering the merchandise in question. Einhorn’s, Inc., was not satisfied and ordered fire insurance covering the merchandise in question. Among the policies ordered by Einhorn’s, Inc., was the policy issued by the defendant in the amount of $10,000 covering the merchandise located in one of the plaintiff’s warehouses, known as Baker’s Basin in Trenton, New Jersey. This policy insured Einhorn’s, Inc., as owner.

Under its blanket policy, the plaintiff among other things, was obliged to file a monthly report with its insurance company of the value of the merchandise in its several warehouses. Upon the issuance of this policy by the defendant, the plaintiff in its report to its company, reduced the value of the merchandise in the Baker’s Basin warehouse to the extent of $10,000.

Thereafter on December 22, 1947, about 1 A. M., a fire broke out in the Baker’s Basin warehouse, destroying considerable merchandise. A Mr. Flint, on behalf of the plaintiff, immediately went to the scene of the fire and from there called the defendant by telephone reporting the fire and asking the defendant to have the loss adjusted because the goods consisted of perishable food. In the meanwhile, the plaintiff had previously made arrangements to pay part oC its obligation to Einhorn’s, Inc., and sometime later on.the same day and after the fire, the plaintiff made a payment of $5,593.88 to Einhorn’s, Inc. In addition thereto, between the time of the issuance of the policy and the date of the fire, the plaintiff had also paid Einhorn’s, Inc., an aggregate of $3,000 on its obligation. Thereafter Einhorn’s, Inc., continued to press the plaintiff for payment of the balance due and the plaintiff thereupon arranged to pay off the balance and on January 15, 1948, paid Einhorn’s, Inc., $5,400 and on January 22, 1948, the remaining balance was paid. The last payment included various items and the insurance premium paid by Einhorn’s, Inc., on the policy issued by the defendant. The loss claim was assigned by Einhorn’s, Inc., to the plaintiff in the following language:

“This policy including any loss claim is assigned to Flint Frozen Foods, Inc., without recourse and subject to charges arising in connection with loss claim.”

and bears the date, January 15, 1948.

Thereafter considerable discussions took place between the plaintiff and the defendant and on August 14, 1948, the plaintiff filed a proof of loss in the amount of $11,219.98 with the defendant and executed it, Flint Frozen Foods, Inc., assignee of Einhorn’s, Inc. The defendant made an offer of settlement in the amount of $4,600 contingent on the defendant’s right of subrogation to the same security held by Einhorn’s, Inc., and the offer was rejected. Sometime in November, 1948, the defendant denied liability on the policy and the plaintiff filed this suit.

The issue is limited to the validity of the assignment of the loss claim in question. The defendant contends that the assignment in question is invalid, since the policy by its very terms provides “Assignment of this policy shall not be valid except with the written consent of this company.” The defendant also contends it was entitled to the right of subrogation since its policy covered Einhorn’s, Inc., as a mortgagee and that upon payment of the loss claim, Einhorn’s, Inc., was obliged to transfer to it the security held by it and that it was deprived of this right of subrogation when the plaintiff paid off its obligation to Einhorn’s, Inc. Einhorn's, Inc., returned the security, namely, the warehouse receipts to the plaintiff.

The policy in question on its face, insures Einhorn’s, Inc. There is nothing in the policy that indicates that Einhorn’s, Inc., was insured other than as owner of the merchandise in question. In addition, the policy provided that the mercantile risk protected was $10,000 on merchandise, materials and supplies of every description usual to the business of groceries. As a matter of fact, Einhorn’s, Inc., was the owner of the merchandise in question because the warehouse receipts are considered as instruments of title and credit. Maritine Petroleum Corp. v. City of Jersey City, 1 N. J. 287 (1949). The legal title under the warehouse receipts was in the name of Einhorn’s, Inc., and it could take and dispose of the goods at any time at its discretion. The most that the defendant would have been entitled to upon payment of the loss claim in the amount of $10,000, was the right of salvage. If it had paid the loss to the plaintiff, it would have been entitled to salvage the goods remaining and recover what it could. However, it appears undisputed that the total loss exceeded the amount of the policy and apparently there was nothing to salvage nor did the defendant attempt to salvage any of the merchandise.

The policy in question clearly insures Einhorn’s, Inc., for loss or damage to goods or merchandise to the extent of $10,000. It does not by any stretch of the imagination insure Einhorn’s, Inc., as a mortgagee or pledgee, nor does it insure the payment of the debt owed by the plaintiff to Einhorn’s, Inc.

The real issue in this case hinges upon the validity of the assignment of the loss claim. It is undisputed that the fire took place and the merchandise damaged or destroyed while the policy was in full force and effect arid while plaintiff was still indebted to Einhorn’s, Inc., in excess of $10,000. Upon payment of its debt, Einhorn’s, Inc., executed the assignment of the loss claim as above set forth. This assignment is not in law an assignment of the policy but constitutes an assignment of the loss claim. In Combs v. Shrewsbury Mutual Fire Insurance Co., 32 N. J. Eq. 512 (Ch. 1880), the court held on page 515:

“The assignment to the complainant, after the loss occurred, is not within the provision of the policy declaring that the liability of the company shall cease in case of an assignment of the policy in whole or in part without the consent of the company. An assignment, after the loss has occurred, is not an assignment of the policy, but of the claim for the insurance, and is not within the inhibition of the clause just referred to. Philips on Ins. 108; May on Ins. 386.”

This principal was reiterated in the case of Ocean Accident and Guarantee Corporation, Limited v. Southwestern Bell Telephone Co., 100 Fed. 2d 441 (C. C. A. 8, 1939). At page 445, the court said:

“ ‘The recognized reasons for the prohibition of assignments without the consent of the insurer had ceased. Its liability had become fixed, and like any other chose in action was assignable regardless of the conditions of the policy in question. This is settled by the great weight of authority. Beach, on Law of Insurance, vol 2, par. 1114; May on Insurance, par. 386; Dogge v. Northwestern Nat. Ins. Co., 49 Wis. 501, 5 N. W. 889; Roger Williams Ins. Co. v. Carrington, 43 Mich. 252, 5 N. W. 303; Combs v. Shrewsbury Mut. Fire Co., 32 N. J. Eq. 512; Archer v. Merchants’ & Mfgrs. Ins. Co., 43 Mo. 434; Nease. v. Aetna Ins. Co., 32 W. Va. 283, 9 8. E. 233; Aultman v. McConnell (C. C.) 34 F. 724. In Wood on Fire Insurance, vol. 2, par. 361 the doctrine is stated thus: “Where the policy prohibits the assignment, an assignment without the insurer’s consent invalidates it, but, in the absence of such a condition, the validity of the policy is not affected thereby, but still remains operative as to the assured; nor does an assignment after a loss has transpired invalidate it. In such case the insurer becomes absolutely a debtor to the assured for the amount of the actual loss, to the extent of the sum insured, and it may be transferred or assigned like any of her debt. After a loss the delectus personae no longer becomes material, and even though the policy prohibits such an assignment, and provides that if so assigned the policy shall be void, it is held that such prohibition is void, as the insurer cannot restrict the assignment of a debt. The reasons that induce the restrictive clause have no existence or application after the risk has ceased.” ’ 157 F. 516.”

Since the loss claim in this ease was assigned after the loss and since such an assignment under the weight of authority constitutes an assignment of the loss claim, it is a valid assignment. The defendant does not deny that the loss sustained amounted to $10,000 or that the claim was not properly tiled in accordance with the terms and provisions of the policy. Its sole defense was to the effect that the assignment was invalid and that it was not liable under the policy by reason of the fact that it had been deprived of its right of subrogation. Having disposed of the two defenses and having found that the assignment is valid, I find that the plaintiff is entitled to recover the sum of $10,000 and judgment may be entered accordingly on behalf of the plaintiff and against the defendant.


source: Caselaw Access Project

author: Hughes, J. C. C.

license: Public Domain

text:
    IN THE MATTER OF THE APPLICATION OF JAMES McBRIDE FOR ISSUANCE OF WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided March 12, 1951.

      Mr. Donald R. Bryant, attorney for the petitioner, in forma p'auperis.

      Mr. Theodore D. Parsons, Attorney-General of the State of New Jersey {Mr. Eugene T. Urbanialc, Deputy Attorney-General, appearing), attorney for the State.
   Hughes, J. C. C.

On the basis of a petition alleging his wrongful detention in the New Jersey State Prison, there was issued to petitioner, James McBride, the writ of habeas corpus to inquire into such question, pursuant to the authority of R. 8. 2:82-1, et seq. By its return to the writ, the State justifies the imprisonment by virtue of an order of commitment of the former Court of Quarter Sessions of Camden County, evidencing that in such court, on April 4, 1945, there was imposed upon the petitioner a sentence of imprisonment for the duration of his natural life. This petitioner insists that he was neither accused nor tried as an habitual offender, but on the contrary was tried and found guilty only of the crime of robbery, for which the maximum term of imprisonment is 15 years. 11. S. 2 :166 — 1. However, it is evident from his petition, which includes a copy of the indictment charging him sufficiently as an habitual offender, and from the untraversed return to the writ, that he was indicted, convicted and sentenced not only for robbery, but as an habitual offender under the authority of R. S. 2:103-10, a part of the Habitual Criminal Act, as amended L. 1940, c. 219.

Petitioner contends that this act is unconstitutional in that it does not provide within its terms for notice and hearing on the issue of identity and the conviction of previous offenses of the grade of high misdemeanors, upon which elements its application depends. Application of this statute is impossible, since it warrants the imposition of a heavier penalty than ordinarily prescribed for the basic crime which culminates the repetitive criminal conduct, unless there be a specification of the elements of aggravation which, under the statute, enlarge the grade of the crime by enhancing the punishment. It has been so held by our courts. State v. Lutz, 135 N. J. L. 603 (Sup. Ct. 1941).

And, as it is required that such elements of aggravation be specified in the indictment, so it is incumbent on the State, for that statute to be applied, to offer proof of such previous offenses. The general rule is well settled that proof of every act necessary to make the law apply is essential; that the court may not take judicial notice of the record of prior convictions; that the burden of proving the prior convictions, and the identity of the defendant as being the same person previously convicted, rests with the State and must be established beyond a reasonable doubt. State v. Lutz, supra; Singer v. United States, 378 Fed. 415 (C. C. A. 3, 1921); State v. Janiec, 9 N. J. Super. 39 (App. Div. 1950); State v. Burns, 136 N. J. L. 601 (E. & A. 1947).

There is no necessity, as this petitioner contends, that there be, or that the Habitual Criminal Act provide, a formula for an independent proceeding under B. S. 3:103-10, N. J. S. A., to adjudicate the accused to be an habitual criminal; it is sufficient if the previous convictions, upon which the increased sentence will rest, are alleged in the indictment and established at the trial. State v. Lutz, supra; State v. Cubbler, 4 N. J. Super. 297 (App. Div. 1949).

Nor is it essential that a separate and special verdict be found by the jury on the issue of habitual criminality, as contended by this petitioner, for a general verdict of guilty seals this issue. State v. Huggins, 84 N. J. L. 354 (E. & A. 1913).

Nor may this court, on habeas corpus, inquire into the sufficiency of proof of such prior convictions at trial. Although this petitioner would question the court’s jurisdictional capacity to impose the sentence complained of because of the asserted absence of such proof at trial, it is really the validity of the conviction leading to such sentence which he attacks. In view of the statute quoted, there was, of course, the requisite jurisdictional power in the former Court of Quarter Sessions to convict him of the offense charged in the indictment, and based upon that conviction there was clear jurisdictional authority to impose the life sentence here questioned.

The scrutiny of the trial proofs suggested by petitioner is not available on habeas corpus. Our statute, B. S. 3:83-13, withholds the right to the writ of habeas corpus from those imprisoned by final judgment of a competent tribunal of criminal jurisdiction. The claimed deficiency of proof does not bring into question the jurisdiction of the court, but amounts to the claim of a “trial error” affecting the validity of the conviction (State v. Lutz, supra; State v. Janiec, supra), and is thus reviewable only on appeal. In re Caruso, 135 N. J. L. 522 (Sup. Ct. 1947); In re Hall, 94 N. J. Eq. 108 (Ch. 1922); In re Scridlow, 124 N. J. L. 342 (Sup. Ct. 1940). If the sentence is illegal, in the sense that it is not justified by the statute in the light of the conviction on which it was based, or in other respects, a remedy exists for its correction under Rule 2 :7-13. State v. Weeks, 5 N. J. Super. 505 (Cty. Ct. 1949); 6 N. J. Super. 395 (App. Div. 1950). The writ of habeas corpus may not be used in lieu of appeal. In re Rose, 122 N. J. L. 507 (Sup. Ct. 1939).

Accordingly, I determine that the Habitual Criminal Act is not constitutionally abortive on the ground cited by petitioner; that a special verdict on the issue of habitual criminality is not essential for its application; that the claimed deficiency of proof of such repetitive crime at trial is not available for review on habeas corpus-, and that petitioner is not entitled to immediate release from imprisonment.

The writ is, therefore, discharged and the petitioner remanded to custody.

        Jt. S. 2:103-10, N. J. S. A.

      “Habitual criminals; fourth offense; life sentence to be imposed. Any person who on three separate occasions has been convicted of high misdemeanors in this State, or of crimes under the laws of the United States or of any other State or country, which crimes would be high misdemeanors if committed in this State, or whose convictions for such offenses in this State or under the laws of the United States or of any other State or country shall total three or more, and who shall thereafter be convicted of a subsequent offense enumerated in this subtitle, is hereby declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, shall impose a life sentence in the State Prison upon the person so convicted. As amended L. 1940, o. 219, p. 889, § 3.”


text:
    IN THE MATTER OF THE APPLICATION OF EDWARD KNEIPHER FOR ISSUANCE OF WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided March 9, 1951.

      Air. Floyd L. Buzzi, attorney for the petitioner, in forma pauperis.

      Mr. Theodore D. Parsons, Attorney-General of the State of New Jersey (Mr. Eugene T. Urbaniak, Deputy Attorney-General, appearing), attorneys for the State.
   Hughes, J. C. C.

On the representation that he is illegally confined in ihe New Jersey State Prison, petitioner, Edward Kneipher, was granted the writ of habeas corpus under the authority of R. Si 2:82-l, at seq. On the return of the writ, a hearing was had, testimony taken and stipulations entered, projecting the following issues:

On May 3, 1944, petitioner was sentenced in the former Essex County Court of Quarter Sessions to serve a sentence of not less than two nor more than five years and he thereafter commenced the service of such sentence at the State Prison. At the expiration of the minimum term thereof, as reduced by the uniform commutation time credits allowed by law (B. S. 30:4-140), he was granted a license to be at large pursuant to B. S. 2:198 — 1, repealed L. 1949, c. 18, by the former Court of Pardons. Two of the several conditions imposed upon him.by that court, the imposition of which was authorized, generally, by such statute, were as follows:

“6. If you are returned to prison by revocation of parole, the time between your release upon this license and your return to prison will not be taken into account as part of your sentence, * *
“7. You must not change your residence to another State, unless you have beforehand obtained permission from the Keeper.”

The prisoner accepted his license to be at’ large on these and other conditions, as evidenced by his signature of acceptance thereof.

During the period of his enlargement under the license (measured by the unexpired maximum of his original sentence, less the uniform commutation credits to which he was entitled under B. S. 30:4-140), the prisoner left the State of New Jersey and failed to report periodically, as required by another condition of his license, and thereby violated certain of the conditions under which the license had been issued to him. Eor such reason, his parole was revoked on December 9, 1947, as authorized by the statute, B. S. 2:198-3, repealed L. 1949, c. 18, and later, on March 11, 1949, he was returned to the State Prison as required by B. S. 2:198-4, repealed L. 1949, c. 18. It is to be noted that such revocation was based on the breach of the conditions aforementioned and not upon the subsequent commission of any crime, and so far as the record shows the petitioner has not been convicted of any crime subsequent to the one on which he was originally sentenced and imprisoned.

The return to the writ predicates his present detention upon the foregoing sequence of events, the State contending that in accordance with the conditions upon which the license to be at large was granted petitioner, and the revocation of such as aforesaid, it properly holds him to serve the unexpired portion of the maximum of his original sentence. On the other hand, the petitioner contends that the time under his original sentence continued to run during the period he was “on the street,” that is, during the time he was at large under his license, and innocent of conviction of subsequent crime or other lesser breach of condition of his license, that he may not be required to serve any portion of that time by reason of the revocation and, consequently, that he is entitled to immediate release.

This claim is based upon several grounds. Petitioner claims that during the period of his parole, time continued to run against his maximum sentence since he was still in the technical legal custody of the Keeper- of the State Prison, pointing to certain terms of his license as follows :

“This license to be at Liberty, or Parole, is issued upon the following Security, Terms, Conditions and Limitations.
1. You continue to he legally in custody of the Prison Keeper, until you are released therefrom as provided below.”

He cites Anderson, Warden, etc. vs. Williams, 279 Fed. 822 (O. C. A. 8), for the proposition that time out of prison on parole is not a suspensión of the sentence, but merely substituios for confinement in the penitentiary, confinement within the bounds specified by his parole outside of the penitentiary, still subject to the legal custody of the warden. This case, however, dealt with the right of the parole board, acting under the federal statute (Act of June 25, 1910, 36 Stat. 819, 820; 18 U. S. C. A. §§4203-4207), to revoke a parole after the expiration of the maximum sentence, i. e., the time in confinement and the time on parole, and, thus, this authority is not pertinent to the present issue, for the instant revocation occurred well before the calendar expiration of the maximum of the petitioner’s sentence, in any event.

Despite the first condition of the license, which creates a constructive custodial relationship between the prisoner and the Principal Keeper for the New Jersey State Prison, such “custody” does not mean that time runs on the-sentence during enlargement under the license (or on parole, so-called, as that term may be and is employed to describe the license granted by the former Court of Pardons), to be applied in the event of revocation of parole. For such time to run on the sentence would, in effect, gradually so diminish the punitive power of the paroling authority as to subvert the very purposes of parole and to incline the Legislature to authorize its-granting more reluctantly, as a matter of public policy. And in the face of the conditions attached to the grant of the license, which are undoubtedly valid and binding on acceptance-by its intending grantee (46 G. J. ;§ 1201', p. 73), it is clear that generally he is bound by them, including condition 6. The latter requires him, in the event of his return to prison by reason of revocation, to serve as a part of his unserved maximum1 sentence, “the time between * * * release upon this license and * * * return to prison * * *.” Ex Parte Macejka, 10 N. J. Super. 393 (Cty. Ct. 1950).

This petitioner, however, insists that the condition attached to his license is ineffective in the face of the recent parole law,, which differentiates between revocation of parole based upon subsequent conviction of crime, and that based on grounds of' less serious import such as, in his case, a departure from the-State, which violates the covenant on which the parole was-granted. B. S. 30 :L-123.24, N. J. S. A.

This section of the law denotes a legislative policy of emphasis upon the subsequent conviction of crime leading to revocation of parole and prescribes a different mode of treatment in the application of more stringent sanctions for this type of violation. The prospective nature of the Parole Act, L. 1948, c. 84, supra, which was effective May 28, 1948, is recognized in section 37 thereof, which provides that “any prisoner sentenced prior to the effective date of this act shall retain all rights of eligibility for parole available to him under any preexisting law.” The act contained a specific repealer of R. S. 30 :4-106.1, 30 :4-106.2, 30 :4-142, N. J. S. A. and provided that all acts and parts of acts inconsistent with its provisions were, to the extent of such inconsistencies, repealed. R. S. 30:4-123.37, 30:1-123.38, 30:4-123.39, A. J. S. A.

The statutes specifically repealed stemmed, generally, from the first siatute providing for the granting of parole as such, and for the procedure thereon, which was contained in the Criminal Procedure Act (Bevision of 1898) Comp. Slat., p. 1877, §111, and they vested the power of granting paroles in the Board of Managers of the New Jersey State Prison. In re, A. J. Court of Pardons, 97 Y. J. Eq. 555 (advisory opinion of Chancellor Walker, as a member of the former Court of Pardons, 1925). The statutory grant of such power of parole has long since been held constitutional as neither interfering with judicial power, nor trespassing upon the prerogative of the sovereignty in the granting of pardons (In re Marlow, 75 N. J. L. 400 (Sup. Ct. 1907), parole and pardon being completely distinctive. Ex Parte Fitzpatrick, 9 N. J. Super. 511 (Cty. Ct. 1950).

The 1814 Constitution, in Article A, par. 10, vested the pardoning power in the Executive, with the concurrence of the former Chancellor and the six judges of the former Court of Errors and Appeals, or a majority part of this group including the Executive, and this body, although not so designated in the Constitution, and although not truly a court in the usual sense, became known as the Court of Pardons. Cook v. Freeholders of Middlesex, 26 N. J. L. 326 (Sup Ct. 1857) ; R. S. 2 :10 — 1, et seq., repealed L. 1948, c. 83. Our late Chancellor Walker stated, without reservation, that such Court of Pardons, under the 1844 Constitution, represented and exercised the constitutional power of the sovereignty in the granting of pardons, which paralleled the royal prerogative of pardon as it existed in England and was exercised, exclusively, by the king. The statute, B. 8. 2:198-1, et seq'., authorized the former Court of Pardons to exercise power equivalent to parole, but Chancellor Walker asserted that even without this statutory authority it had the power, in effect, to grant a parole by bestowing upon a convict a limited pardon — one with such ■ conditions annexed as would make it a virtual parole according to common understanding of that term. In re N. J. Court of Pardons, supra.

It is of interest to note that the latter statute specifically required a condition such as that here involved, for it provided the following as a sequel to revocation thereof:

<<* * * The h0j¿iei. 0f the license, when returned to the place of confinement from which he was released thereunder, shall be detained therein according to the terms of his original sentence; and, in computing the period of his confinement, the time between his release upon such license and return to the place of confinement shall not be taken to be any part of the term of sentence. * * *” R. S. 2:198-4.

Nor did the statute distinguish between violations of penal law and any other default on the conditions, terms or limitations of the license, requiring revocation for both types of violation thereof. B. S. 2:198-3.

And, if this statute was merely declarative of the right of the holder of the executive power to grant a pardon so limited in its terms as to make it equivalent to a parole, as commonly understood (In re N. J. Court of Pardons, supra), it is difficult to conceive how a limitation, even though not authorized-by such statute, in the sense of condition six, would be in excess of that pardoning power.

The 1947 Constitution, in Article Y, Section II, deals with both pardon and parole, as follows:

“SECTION II

1. The Governor may grant pardons and reprieves in all cases other than impeachment and treason, and may suspend and remit fines and forfeitures. A commission or other body may be established by law to aid and advise the Governor in the exercise of executive clemency.
2. A system for the granting of parole shall be provided by law.”

An implementing statute, L. 1948, c. 83, effective May 28, 1948, in addition to declaring the demise of the former Court of Pardons by repealing R. 8. 2 :10 — 1, confirmed to the Governor the pardoning power possessed by him under the organic law, not omitting a specific statutory formula for the exercise by him of the included power to grant limited pardon, inter alia, by commuting sentences under conditions which, again, would seem to make such limited pardon “a virtual parole according to common understanding.”

On the same significant date as hereinabove noted, May 28, 1948, there was effective yet another implementation statute, L. 1948, c. 85, dealing specifically with the “open accounts” of the former Court of Pardons and amending R. 8. 2 :198-1 to read, in part, as follows:

“Any convict who was undergoing imprisonment in any of the penal institutions of this state and to whom was granted a license to be at large by the court of pardons shall remain subject to the security, terms, conditions and limitations, in all respects upon which the same was granted. * * *”

The statute places the revocation power as to such license in the hands of the Governor, and repeats the provisions of R. 8. 2 :198 — 4, requiring the defaulting holder of the license to serve out the unexpired term of his original sentence, not including as a part thereof the time he was at large upon such license.

It is significant that this statute dealing specifically with licenses issued by the former Court of Pardons became effective on the same date as L. 1948, c. 84, supra, which in carrying out the constitutional mandate for the establishment oí a system for ihe granting of parole, organized a State Parole Board and reposed in it exehrsive power to grant parole to State Prison inmates serving indeterminate sentences, except for that equivalent or comparable authority inhering in the Governor incident to the exercise by him of the power of executive pardon.

Again, in apparent further implementation of the constitutional changes wrought by that of 1947, and dealing not only with licenses to be at large issued by the former Court of Pardons under the previous system, but also with orders commuting sentences made by the Governor under the new, the Legislature, by L. 1949, c. 18, effective April 11, 1949, again set down the formula for granting such orders of commutation, and revoking such licenses and such orders, and again specified that upon revocation of either of the same, the holder or grantee thereof would be detained according to the terms of his original sentence. Similarly, such statute re-specified that the time between the conditional release of the offender and his return to confinement would be taken to be no part of the term of such sentence, and it made no distinction 'as to the cause for revocation thereof, whether for conviction of crime (specifically for “violation of penal law”), or otherwise.

There is, thus, evinced a continued and unvarying legislative purpose to deal differently with paroles on the one hand, and licenses to be at large under the former system and the present executive orders for commutation of sentences, on the other. The differentiation in the sanctions to be applied in ease, of revocation of parole for conviction of crime and revocation for other and presumably less serious causes, which is a part of the parole law, B. 8. 30 :L-123.34, N. J. 8. A.'} applies neither in letter nor in principle to the exercise by the sovereignty of the power of limited pardon, which has been referred to as parole, and contains most of the incidents thereof, but which, basically, inheres in the Executive under the organic law and is not, like parole power as such, merely statutory in origin. The consequences of revocation do not comprise the only difference in these parallel systems. Although the State Parole Board has wide discretionary powers as to the ultimate granting of parole, the statute is confining both from procedural and substantive standpoints, such as prescribing the time for eligibility of prisoners for parole consideration, and the like. No comparable limitations bind the Governor in the exercise of his function equivalent to parole in the commonly understood sense, and since such statutory grant is merely declaratory of his power under the Constitution to grant full and limited pardons, the latter including the commutation of sentences referred to, it is certain that any such stricture would be constitutionally ineffective.

In view of the foregoing, it is quite obvious that insofar as these statutes are in pari materia in dealing with the granting of relief against exaction in full measure of justice in the service of sentences for crime, there is (if such be possible) even more than tire ordinary compulsion for applying the rule of statutory construction that they must be considered together so as to give full effect to each. The section on which petitioner rests his case does not apply in any way to the license to be at large originally enjoyed by him, nor to the consequences of its revocation.

The contention that enforcement of condition six of this license to lie at large is “ex post fado ” or amounts to an increase in the punishment imposed by the court in the first instance, is meaningless and is discarded as a basis for discharge on the writ.

Accordingly, 1 determine that the petitioner is held to compliance with condition six of his license, and must, unless sooner re-paroled, serve the maximum term of the sentence on which he had been paroled, and that he is not entitled to immediate release.

The writ is discharged and the petitioner remanded to custody.

       “30 :4-123.24. Serving balance' of time after revocation.
      A prisoner, whose parole has been revoked because of conviction-of a crime committed while on parole, shall be required, unless sooner re-paroled by the board, to serve the balance of time due on his-sentence to be computed from the date of his original release on parole. If parole is revoked for reasons other than subsequent conviction for crime while on parole then the parolee, unless sooner re-paroled by the board, shall be required to serve the balance of time-due on his sentence to be computed as of the date that he was declared delinquent on parole. L. 1948, c. 84, p. 488, § 24.”

       “5. The Governor may, upon application for commutation of sentence of any person sentenced to imprisonment, order that such sentence be commuted upon such terms, conditions and limitations as the Governor, in his discretion, may direct * * L. 1948, o. 83, supra; R. 8. 2 :196A-5, A. J. S. A.


author: Tenenbattm, J. C. C.

text:
    ARTHUR MAY, PLAINTIFF, v. WALTER A. HUFF AND ARCHIE V. SHIPMAN, ROBERT V. SHIPMAN AND MILDRED J. SHIPMAN, COPARTNERS DOING BUSINESS AS SHIPMAN MANUFACTURING COMPANY, DEFENDANTS.
    Hudson County Court Law Division
    Decided March 21, 1951.

      Mr. Joseph W. Tumulty, attorney for plaintiff.

      Messrs. Stein and Feinseth, attorneys for .defendants, Archie V. Shipman, Robert Y. Shipman and Mildred J. Shipman, co-partners doing business as Shipman Manufacturing Company.
   Tenenbattm, J. C. C.

The defendants in the above entitled cause, Archie Y. Shipman, Robert Y. Shipman and Mildred J. Shipman, co-partners doing business as Ship-man Manufacturing Company, have applied to the court for an order to quash the writ of attachment obtained by the plaintiff, and to vacate a levy thereunder made, urging for their success the following reasons:

(1) Because the affidavit, upon the basis of which the order for the writ of attachment was issued, fails to set forth sufficient facts to show fraud.

(2) Because the alleged acts, promises and representations of Walter A. Huff are not binding upon the defendants, Archie Y. Shipman, Robert Y. Shipman and Mildred J. Shipman, co-partners doing business as Shipman Manufacturing Company.

(3) Because the affidavit fails to set forth any claim against the defendants, Archie Y. Shipman, Robert Y. Ship-man and Mildred J. Shipman, co-partners doing business as Shipman Manufacturing Company.

(4) Because at the time of the levy under the writ of attachment, the goods and merchandise, which were attached, were in transit in the custody of Denver-Chicago Trucking' Company, Inc., a common carrier.

(5) Because the goods and chattels, which were levied upon, are the goods and chattels of these defendants, and the affidavit fails to set forth any claim against these defendants.

(6) Because the goods and chattels which were levied upon are the goods and chattels of these defendants, and the plaintiff has no claim against these defendants.

Since challenge is made in some aspects to the plaintiff’s factual contention as disclosed by the affidavits, it becomes necessary to harvest, from ail the affidavits, the facts for a proper disposition of the motion.

It is admitted that the defendant company, through Walter A. Huff, the other named defendant, entered into a written contract with the plaintiff for the sale and purchase of 100 vending machines at $29.50 each, and paid on account thereof the sum of $1,450, the balance of which was to be paid upon delivery. Simultaneously with the execution of that agreement, Huff entered into a written agreement with the plaintiff to secure locations for the machines within two weeks from the making thereof, which was on September 15, 1950.

The defendants seek to avoid the conduct of Huff on the grounds that he was (a) an independent contractor, (b) that if he was the defendants’ agent, his authority was limited by an expression contained in the written agreement between May a:id Shipman, of which the plaintiff had knowledge.

Was Huff’s conduct fraudulent, and if so, is that fraud imputable to Shipman? I have no hesitancy in determining that the conduct of Huff patently discloses that he practiced a fraud upon the plaintiff. This result is readily reached from the fact that the inducement for the plaintiff to execute the agreement between him and Shipman was the written understanding that Huff would, secure locations for the machines within a fixed period of time. The plaintiff made several inquiries of Huff to ascertain if the locations were available, and admittedly they were not, yet Huff permitted the machines to be shipped from California to him.

It must be borne in mind that the plaintiff could , have purchased the machines for a lesser sum if he secured his own locations, but he chose to pay the greater price to have locations available for placement upon arrival. Huff knew that the plaintiff relied upon his representations to secure locations.

■ Whether Huff was an agent or an independent contractor presents, some difficulty for determination. However, for the purpose of this motion all facts and legitimate inferences to be drawn therefrom must be resolved in behalf of the plaintiff.

The affidavit of the plaintiff discloses that on four separate occasions he wrote the defendant Shipman, advising them of the failure of Huff to secure the locations as agreed, and that the receipt of eaeh of the letters was acknowledged by Shipman. The affidavit reveals that the first letter of the plaintiff was dispatched on October 3, 1950, which was some eight days before Shipman shipped the machines. The next letter was dispatched on October 11, 1950, which was on the same day the machines were shipped, and the other two letters were sent during the month of October, 1950.

The defendant Shipman, in his affidavit, disputes receipt of the plaintiff’s communications. This disputed factual contention must be resolved for the purpose of this motion in favor of the plaintiff. Thus adopting as a fact the transmittal and acknowledgment of the letters, and particularly the one of October 3, 1950, it must be assumed that Shipman knew of the existence of the understandings between Huff and May. To this must be added the portion of the advertisement in the Jersey Journal,

“Routes established for you in restricted territory both now (italics mine) and future expansion.”

I am aware of the principle of law advanced by Shipman that in fraud the representation must be as to a present or pre-existing fact, and it is urged that the securing of locations is a thing to be done in the future. The cases cited by the defendant are in substantiation of that principle of law many times enunciated by our courts of last resort, but upon the facts are clearly distinguishable from those here involved. The public announcement in the Jersey Journal indicated that locations were presently available and hence all that remained to be done in the future was merely the selection as to which of the existing locations were to be enjoyed by, and assigned to May, and this allocation of locations was to have occurred within a fixed period of time and prior to the receipt of the machines; manifestly Huff did not possess that which he represented he had at the time of the entry into agreement with the plaintiff.

1 am constrained that there is ample in the plaintiff's affidavit and from the advertisement in the Jersey Journal to hold at least Huff had the apparent authority to enter into a location agreement with the plaintiff, and if this be so, Shipman, the principal, cannot escape the fraudulent conduct of their agent. Series Publishers, Inc., v. Greene, 9 Ar. J. Super. 166 (App. Div. 1950); Duralith Corp. v. Van Houten, 113 N. J. L. 374, 174 A. 484 (E. & A. 1934).

All that is required of the plaintiff in connection with this motion is that the affidavits spell out a prima facie cause of action, which has been done. Mueller v. Seaboard Commercial Corporation, 5 N. J. 28, 73 A. 2d 905 (1950).

The Attachment Act and specifically B. S. 2:42-87 proclaims that it “shall be liberally construed for the detection of fraud.” To do otherwise would leave the act impotent and permit debtors to escape from the consequences of their conduct and just obligations. To accomplish that purpose, the courts have permitted affidavits upon which the attachment issued to contain hearsay statements of an alleged event, which is a radical departure from the established law of evidence.

The machines were shipped by motor truck from California and consigned to Jersey City, and delivered to the freight terminal of the carrier De.nver-Chicago Trucking Company, Inc., at Secaucus, New - Jersey. The carrier demanded bills of lading from the consignees for the purpose of making delivery. The consignees refused to accept the machines, and thereupon the transition took place, so that the goods were no longer in transit and were in warehouse^ and in such posture were subject to levy.

The affidavit submitted by the defendant of Donald S. Johnstone, an employee of the Denver-Chicago Trucking Company, Inc., discloses that the machines were consigned to addresses in Jersey City'-, that the same had reached the trucking companjr’s terminal at Secaucus, New Jersey, and upon arrival the consignees were notified thereof “and were requested to present” the original uniform order bills of lading properly endorsed, but the same were never delivered to the trucking company.

When did the transition from carrier to warehouseman take place? The answer to the question upon the facts involved appears to be one of first impression in this State. The holdings are at variance in the several jurisdictions, but the Massachusetts doctrine is most appealing in logic. It holds that when goods have reached their destination and are placed in a position of reasonable safety, ready for delivery to the consignee, and the consignee fails, refuses or neglects to seek delivery into him, the carrier’s duty as carrier terminates and that of warehouseman begins. 13 C. J. S. Carriers, page 304, sec. 153.

By thus electing to invoke the Massachusetts doctrine, I hold that the goods were not in transit and, therefore, were unable to escape a levy under attachment.

Motion for the defendant to quash the writ of attachment and vacate the levy is accordingly denied.


author: Ekancis, J. C. C.

text:
    MARIE AMEND, PETITIONER-APPELLEE, v. GEORGE P. AMEND, TRADING AS AMEND ROOFING CO., RESPONDENT-APPELLANT.
    Essex County Court Law Division
    Decided May 24, 1950.

      Mr. John A. Laird, attorney for petitioner-appellee.

      Mr. Andrew Lawrie, attorney for respondent-appellant.
   Ekancis, J. C. C.

Plaintiff here sought compensation from defendant-employer under the provisions of the Workmen’s Compensation Act on account of the death of her husband. The Workmen’s Compensation Division of the Department of Labor and Industry awarded death benefits to her of $6,000 plus the statutory funeral allowance and counsel fees. The employer now appeals from this award.

The petition for compensation alleges that on December 1, 1944, the decedent, Prank T. Amend suffered compensable heart damage while in defendant’s employ as the result of which he died on May 29, 1945. The only statement appearing in defendant’s answer is, "Respondent joins issue in the allegation of the petition as to any causal relationship between claimant’s death and any accident.”

At the hearing plaintiff produced, under subpoena, the defendant, George Amend, who is the brother of the decedent. He testified that decedent had worked for him for about 25 years. On December 1, 1944, his brother came to-him and told him that he "went over to the warehouse to-start the truck, — the starter wasn’t working that morning. He cranked it and the thing backed up and the crank hit him in the chest.” The injured man then “sat around a while”' and said “I don’t think I had better go out today.” Then the defendant took him home where he remained for two- or three weeks. He returned and worked about odr day and never came back again.

Defendant notified his insurance carrier, Coal Operators-Casualty Company, of the accident. He gave it a report, and to his knowledge the company conducted an investigation of the occurrence.

According to decedent’s widow, defendant brought her husband home about noon on December 1, 1944. At this time-he appeared sickly and “scary” and she put him to bed. Thereafter her husband received compensation payments of $380-for 19 weeks at $20 a week.

Plaintiff produced and marked in evidence Forms 1, 2 and 3 which were filed by the defendant insurance carrier with the Department of Labor.

Form 1 which was prepared on February 7, 1945, recited that the injured employee, Frank L. Amend, while “cranking motor of truck felt pain around heart”; that the “nature and extent of injury” was “heart strain” with recovery probable in “10 weeks.” Paragraph 11 of the form also says: “If no compensation was or is to be paid the injured, state that fact below, and give reasons on reverse side.” In the blank below this appears: “Compensation being paid.”

Form 2 which was prepared on the same day and which was signed by decedent and the carrier, recited that medical aid was required, that the carrier would pay for such aid as required by law, that the probable date of recovery was 10 weeks and that the compensation rate was $20. Immediately above the carrier’s signature appears the following statement :

“The undersigned affirms the correctness of the statements given and guarantees the paying of compensation as stated therein according to law, for temporary disability and for permanent injury, if any.”

Form 3 which was prepared by the carrier on July 17, 1.945, over six weeks after Amend’s death, sets forth that temporary disability compensation was paid to him for 19 weeks at $20 weekly; that “claimant died,” and that the injury resulted in death. Again over the carrier’s signature appears the same notation as in Form 2, namely, that the correctness of statements is affirmed and that the carrier guarantees the payment of compensation according to law.

The record does not show when the payments of compensation began or when they ended with respect to the date of death. There were 24 weeks between the accident and May 29, 1945. Form 3 says the disability began December 24, 1944. If this date marked the inception of the payments there would be 20 weeks and 5 davrs between it and the date of death.

Plaintiff undertook to provide accurate proof on this subject by serving a subpoena duces tecum upon the carrier to require the production of all of its records in the case and specifically requiring the production of a statement signed by Amend in his lifetime and the checks for the payments of the 19 weeks’ compensation. Plaintiff’s counsel asserted the subpoena was directed to T. Zimmer who signed Forms 1, 2 and 3 and that service was made upon one F. Williams, manager of the carrier’s office in Newark. Apparently the carrier received the subpoena but defense counsel said that it had no T. Zimmer and that the person named was not served. In any event, the requested statement and checks were not produced.

The death certificate received in evidence gives anterior coronary occlusion as the cause of death.

No medical testimony wras offered by the plaintiff to establish the existence of causal relation between' any employment, unusual effort or strain and the fatal occlusion.

The record of the City Hospital discloses that Amend was admitted on April 9, 1945, suffering from a coronary occlusion. He was discharged as improved on May 5, 1945.

The first page of the record recites that the patient was unable to give information on his admission; the second page sets forth among other things that the patient claimed good health “until present cardiac condition” and the history sheet recites that the ■ information contained therein came from “family.”

At the opening of one of the hearings plaintiff made application on notice to join the carrier as a party defendant under R. S. 34:15-84. Decision was reserved but the motion was never decided.

In defense defendant produced two medical witnesses:

Doctor Herman Busch examined Amend on May 20, 1945. On this occasion he said a history was obtained to the effect that while cranking á car in the beginning of December, 1944, he suddenly experienced, a sharp pain in his chest which lasted for' about a half-hour. He continued to work for' about three weeks when he collapsed. He sent for his doctor who made a diagnosis of coronary occlusion. .He remained at home for a few weeks not completely confined to bed and again ex-perieuced a similar attack with unconsciousness. Then he was confined to the City Hospital for about six weeks but on this date he was at home. In the doctor’s opinion he was totally disabled with the prognosis poor, and suffering from marked myocardial degeneration due to “the diffused vascular and coronary sclerosis of long standing.”

It was Doctor Rusch’s opinion on the basis of this history and the hospital records that there was no causal relation between the car cranking incident and the death. The doctor said that Amend did not have a coronary occlusion prior to December 1, 1944, but he did have coronary insufficiency of a great many years standing. Amend denied to him that he ever had angina or any prior coronary attacks. And the doctor said he did not know of any coronary attacks prior to December 1, 1944. He took “it from the amount of involvement that he didn’t have it.” The doctor conceded that effort will produce a coronary occlusion in a person who has a marked coronary sclerosis.

Defendant also produced Doctor Asher Yaguda who had never examined the decedent. A hypothetical question was propounded to him in which he was asked to assume that on December 1, 1944, while Amend was cranking

“the motor of a truck the thing backed up and the crank hit him in the chest, lie experienced a sharp pain in the chest which lasted one-half hour. He continued working for about three weeks, when he was forced to stop working. He was then treated by his own doctor several times and on April 9, 1945, he got out of bed and collapsed in his room. He then became cyanotic and had marked dyspnea and perspired. At that time he was given a quarter-grain of morphine, and then taken by ambulance to the Newark City Hospital, where he was admitted on, April 9, 1945, at 1:20 A. M.
“On admission to the Newark City Hospital his temperature was 98 degrees, pulse 120 and respiratory rate 3(5. The white blood count was 52.200. At the City Hospital he gave a history of having a known high blood pressure with anginal attacks for a long time, for which he had been taking nitroglycerine. For the past few weeks before his admission to the Newark Gity Hospital, according to the history, he had attacks of severe anterior chest pains relieved by rest and nitroglycerine. On admission to the Newark City Hospital there was cyanosis of the lips, there was dyspnea, the blood pressure was 164 over 115. An electrocardiogram was taken on April 9, 1945, which showed evidence of recent anterior coronary occlusion. On April 11, 1945, he was given digitalis and on April 13, 1945, he developed a paralysis of the entire right side of the body and incontinence of the bladder. After this he improved somewhat and was discharged on May 5, 1945.
“After leaving the hospital he was examined by Doctor Busch on May 20, 1945, and he found an obese man weighing 200 pounds, dyspneic, rales in his lungs, and a suggestion of fluid in the right pleural cavity. There was evidence of arteriosclerotic changes in the eye grounds, in the lower extremities, and in the blood pressure. The heart was apparent^ decompensated, as indicated by the marked,peripheral edema and the swollen tender liver. At the time he was seen by Doctor Busch he still had evidence of a partial right-sided- paralysis and an involvement of his speech.
“Subsequent to this examination, he died on May 29, 1945, and the death certificate which is in evidence states the cause of death as coronary occlusion.”

On the basis of these facts he was asked: “Doctor, in your opinion, was there any causal relation between the incident described on December 1, 1944, and this man’s death on May 29, 1945 ?”

After the question had been amended by striking out the assertion that the decedent gave the hospital history and substituting therefor the statement that the history given was as recited, the doctor said there was no causal connection. Later in his examination he expressed his basic medical opinion that lie does not believe “that coronary occlnsion is the result of effort.”

After a consideration of the facts the deputy director found that the decedent not only suffered “an unusual strain in the cranking of a truck motor on a cold day but in the striking of his chest by the kick-back of the crank handle” and that the heart attack consisting of a coronary occlusion arose ont of this incident. He farther found that the death resulted from his heart attack and accordingly compensation was awarded.

At the outset of a consideration of defendant’s appeal it must bo recognized that no part of defendant’s testimony as to what the decedent told him about the happening on December 1, 1944, is considerable in support of the award. It is not suggested that decedent’s version of the incident was part of the res gestae. In fact, the evidence is to the contrary: Such proof was competent and admissible to prove compliance by the employee with the requirements of the Workmen’s Compensation Act for the giving of notice of an accident to the employer. R. S. 34:15-17. However, it has no probative force whatever toward the establishment of a compensable accident. Dobrowlski v. Glowacki, 136 N. J. L. 167 (E. & A. 1947).

Tlie award can be sustained only by crediting the Forms 1, 2 and 3 and the payment of compensation for temporary disability with sufficient probative efficacy to make out a prima facie case and if the greater weight of the evidence on the whole record supports the conclusion that decedent suffered a compensable accident on December 1, 1944, which resulted in liis death on May 29, 1945.

These forms which wore filed by the carrier on behalf of the employer clearly constitute an admission that on December 1, 1944, decedent suffered a compensable heart strain while cranking a truck, which resulted in his subsequent death.

In appraising the weight to be accorded them as admissions, it must he kept in mind that the carrier was notified of the accident by the employer and conducted an investigation. Defendant offered no proof as to what the investigation consisted of. When the subpoena was served seeking production of decedent’s statement, no claim was made that no such statement was taken. Rather reliance was placed upon an asserted- technical defect in the subpoena.

It is said to be a matter of common knowledge that on notice of an accident or claim of an accident during the course of employment, the workmen’s compensation insurance carrier takes over the investigation and handling of the claim. 31 C. J. S. sec. 29e, p. 572; sec. 28, p. 543.

Whether this judicial shortcut can be taken need not be determined because the record shows that the claim, investigation thereof and the hearing below were in the hands of the carrier. While different counsel is handling the appeal, no substitution of attorney has been filed, so it must be assumed that the carrier is still moving on behalf of the employer,

Here the first form filed by the carrier was prepared over two months after the employment incident. It is inconceivable that a compensable heart strain would have been admitted therein, the statement made that compensation was being paid and compensation, in fact, paid, if the investigation did not warrant such action. It is likewise inconceivable that after payment of compensation for temporary disability another form would be filed almost two months after the death again making an admission that death resulted from the injury, if such admission were not the product of considered judgment. The fact that a monetary liability in excess of $6,000 was involved renders untenable the notion that such admissions were lightly made.

B. S. 34:15 — 99 which prohibits the use of the report forms “as evidence against any employer in any suit or action at law brought by an employee for the recovery of damages” is not a bar to their admissibility. The section has been construed not to apply to a workmen’s compensation proceeding. Miller v. National Chair Co., 127 N. J. L. 414 (Sup. Ct. 1941); affirmed, 129 N. J. L. 98 (E. & A. 1942).

There is no ease in Xew Jersey which deals directly with the evidential value of these forms or the voluntary payment of compensation. Burns v. Edison, 92 N. J. L. 288 (Sup. Ct. 1919) throws some light on the problem. There, following a fatal accident on September 2, 1915, it was claimed that the employee’s widow and the employer made an oral agreement for the payment of compensation benefits. Thereafter the employer made 78 weekly payments and then ceased doing so. The widow filed a petition for compensation, pleading the accident and oral agreement. The employer denied the accident, the agreement, and set up the Statute of Frauds as a bar. At the hearing petitioner proved the employment and the agreement and deliberately offered no proof as to the accident. The trial court declared that the employer was estopped from producing evidence to show absence of accident and made an award of compensation.

On certiorari, the Supremo Court, by Justice Parker, said:

“* * * Viewing the ease as a suit for compensation under the statute based on proof of accident * * * the court clearly erred in excluding proof that no accident had occurred. This, of course went to the root of the case, and the estoppel theory is untenable. * * * The, agreement testified to, so far as concerned the occurrence of an accident arising out of and in the course of employment, icas evidential, hut nothing more. TAJce any admission out of court, it could he qualified or contradicted hy parol evidence.”

In Dubies v. Manufacturers' Liability Ins. Co., 96 N. J. L. 107 (Sup. Ct. 1921): affirmed, 97 N. J. L. 567 (E. & A. 1922) the employee recovered a judgment representing workmen’s compensation in the Court of Common Pleas. The opinion indicates that there had bofen an award in the Bureau on which the respondent had made some payments and then ceased. At the trial the plaintiff’s offer of “three forms, filled out from the fib's in the office of the department of labor, as the original records in the office of that Department” was rejected because in the absence of statutory warrant copies were not receivable. Plaintiff then rested and defendant’s motion to dismiss for failure to prove a contract was denied. The judgment for the plaintiff was affirmed on appeal.

Apparently the strength of the plaintiffs case depended upon an admission in the defendant’s answer that it had paid compensation. The court said:

“* * * The seventh paragraph of the defendant’s answer admitted the paying of compensation to the defendant, pursuant to the provisions of the Workmen’s Compensation Act. These payments were evidence of the making of an agreement between the parties for the payment of compensation to the plaintiff, as the presumption would be that they were made only under the provisions of the law which required the making of an agreement. This presumption remained unrebutted by any evidence offered by the defendant to the contrary.”

The New York courts have had a similar problem for consideration. Craciola v. Lewis, 253 N. Y. S. 752 (App. Div. 1931), involved an appeal from an award of compensation for facial disfigurement suffered by a six-year-old child. At the time of the accident the child’s mother and other women were engaged in picking peas for the defendant. In this occupation the length of the season required that female pickers bring their young children along with. them. The children played in the fields, sometimes helped their mothers pick the peas and otherwise amused themselves. They were never employed and never paid wages. The petitioner had gone to sleep under a pile of pea vines and was run over by a truck being used to gather baskets. The employer made a report of the accident to the Industrial Commission, in which it identified itself as an employer and stated that it was in the pea business. It made the answer “Pea picker” to a question as to the injured person’s regular employment, and answered “Yes” to a question as to whether he was injured in his regular occupation. And it described the happening of the injury by saying that he was run over by a car on a pea field.

On appeal the award was reversed because of undisputed evidence of absence of employment of the child. However, in the discussion of the admissions made in the accident report, the court declared:

“Whether made by the emploj'er or by his authorized agent, the employer is bound by the admission made in the report, whether the party making it had personal knowledge or merely information as to the facts admitted. The * * * admissions are competent common-law evidence, * * * they may be sufficient in themselves to justify a finding of liability.”

Again in tlie matter of Lanni v. Amsterdam Building Co., 216 N. Y. S. 763, 217 App. Div. 278 (Sup. Ct. 1926), where a night watchman was murdered on his employer’s premises, the defense was that the fatality did not arise out of and in the course of the employment. However, in affirming an award the court looked to the employer’s report of the injury to establish by admission the fact that decedent was injured while engaged in his regular occupation.

Petitioner prevailed before the Industrial Commission and the Court of Appeals sustained the award for death benefits in Anthus v. Rail Joint Co., 185 N. Y. S. 314 (App. Div. 1920) ; affirmed, 231 N. Y. 557, 132 N. E. 887 (Ct. of App. 1921) . There it was alleged that the employee’s death was caused by blood poisoning following a traumatic injury to his right foot. The evidence in support thereof was a statement made in the employer’s first report of the injury. The report stated that while unloading billets one of them scratched his foot and the doctor found blood poisoning had developed. The report was signed in the name of W. J. Bradley, superintendent of the defendant, hut the proof showed that this subscription was made by a clerk employed by the company, one of whose duties was that of making accident reports for the company.

In sustaining the award the court said:

“* * * rjijjg gt!(iemenf; whicli Miss Brody gave must * * * be regarded as an admission of a fact of liability, made by the employer itself, through an authorized agent. It cannot matter that the bases of her statement were the declarations of the deceased. Since an admission óf a party made out of court is in itself hearsay, receivable * * * under a definitely recognized exception to the hearsay rule, its' competency or relevancy cannot be affected by the question whether the party making it had personal knowledge or merely information as to the fact admitted. * * * In this case, therefore, we have common-law evidence of the occurrence of an accident in the course of an employment, which arose therefrom, and are not compelled to rely solely upon the statements of the deceased person himself as to the cause of his injury.”

O’Boyle v. Harry Seitz & Sons, and Alliance Casualty Co., 160 A. 145 (Super. Ct. Pa. 1932), presents a somewhat analogous situation. There a compensation claim was filed by a dependent widow. Death was caused by a fall while decedent was stringing an aerial. Defendant’s answer denied that decedent was in the course of his employment at the time of the accident and averred that he was working on his own at the time. Petitioner’s proof consisted of two types of evidence :

1. Hearsay, made up of declarations by a fellow employee that he and decedent had been directed by their employer to hang the aerial.

2. Declarations made by one of the defendant partners, who is alleged to have told petitioner that “she need not worry,” that “ ‘everything would be all right and that compensation would take care of me and him no matter how long he was in the hospital.’ ” Petitioner’s mother also testified to overhearing one of the partners declare in a ’phone conversation that “one of his men was hurt, while at work”; she also testified that she heard him declare to a newspaper man that the decedent was in the course of his work when he fell.

The defendant argued that only hearsay proof supported the petitioner’s claim that decedent was in the course of employment at the time of the accident. The court held that the declarations testified to were admissions and that they warranted a finding that decedent was in the course of his employment at the time he was hurt.

The rule deducible from these cases for application to the present controversy is a just and reasonable oiré. It is that the Eorms 1, 2 and 3, the admissions contained therein and the payment of compensation constitute a prima facie case for the petitioner.

However, it is claimed that the employer is the defendant here and that an admission made by his insurance carrier is neither binding on him nor admissible against him. This is rather an unusual and anomalous argument to present since the record discloses that the carrier was notified of the accident, investigated the matter and is defending the claim now on behalf of the employer.

The forms referred to are part of the required routine handling of workmen’s compensation claims. They are filed in the name of the employer and where it appears that the carrier is handling the matter on behalf of the employer by reason of the insurance coverage, there is identity of interest between them so far as the particular claim is concerned.

All employers are required to carry workmen’s compensation insurance, except those who are exempted on proof of a certain financial capacity. R. 8. 34:15-70 el seq. The contract of insurance is for the benefit of the employees and their dependents and may be enforced by them as if they were parties thereto. R. S. 34:15-83. The carrier may be joined in the petition for compensation (R. S. 34:15-84) and an effective award of compensation may be obtained in the Workmen’s Compensation Division against the carrier. Miller v. National Chair Co., 19 N. J. Misc. 275 (Wkmn. Comp. Bur. 1941); affirmed, 127 N. J. L. 414 (Sup. Ct. 1941).

Knowledge of or notice to an employer of an employee’s injury is imputable to the carrier and the carrier is bound by orders and awards against the employer. R. S. 34:15-85. And the policy coverage must be that of the employer’s workmen’s compensation liability. R. 8. 34:15-87. Furthermore, the carrier can by agreement duly signed “settle upon and determine the compensation due to the injured employee.” R. 8. 34:15-50.

Further, under this compulsory insurance act the employer is required to notify his carrier in accordance with the terms of the policy upon the happening of any accident. R. 8. 34:15-90. The carrier, immediately on receiving knowledge of an accident to an employee causing disability beyond the waiting period, must report to the Workmen’s Compensation Division on a form prescribed by it. Then, within three weeks after such knowledge is received, it must send a second report containing a statement of wages and an agreement to care for the case according to the terms of the compensation law. This report is to be signed by the employee as provided thereon and by the employer or insurance carrier. ■ R. 8. 34:15-98. If such an agreement is not filed within 21 days after the injury the Workmen’s Compensation Division “shall, so far as practicable, endeavor to bring about a settlement of the pending claim.” R. 8. 34:15-50. And it is a matter of common knowledge that when such an agreement is not filed the Division itself on notice to the parties sets the matter down for informal hearing.

The legislative scheme created by this compulsory insurance act makes it plain that when the carrier files these Forms 1, 2 'and 3, so far as the employee or his dependents are concerned, it does so on behalf of the employer and on its own behalf and that there is presumptively, at least, identity of interest between them.

As already set forth, petitioner moved to add the carrier as a party to this action but the motion was not decided. It would have simplified the consideration of the effect of these forms if the motion had been acted upon affirmatively. Of course, the cause could be remanded for this purpose. However, in view of the determination made herein of the relation of the employer and the carrier, such a remand does not seem essential.

Accepting the plaintiff’s proof as establishing a prima facie case, the problem remains as to whether on the whole case she has sustained the burden of establishing by the preponderance of the evidence that the decedent suffered a compensable "accident and died as the result of it. This ultimate determination requires a consideration of the evidence offered by the defendant. ,

As already indicated, defendant’s proof consisted of the testimony of two medical witnesses. Both of them asserted that the car cranking incident of December 1, 1944, was not the producing cause of the decedent’s death. Analysis of their testimony and particularly the hypothetical questions put to them reveals some critical weaknesses. Doctor Asher Yaguda’s opinion loses most of any possible probative force at tlie very outset of the consideration of his testimony because he expounded a basic medical theory which has been rejected many times by our courts. Specifically, the doctor said he does not believe “that coronary occlusion is the result of effort.”

This view was the subject of comment by the Supreme Court in Breheny v. County of Essex, 132 N. J. L. 584 (Sup. Ct. 1945); affirmed, 134 N. J. L. 129 (E. & A. 1945). There the court, speaking of the defendant’s medical experts, said:

“Their conclusions were coneededly based on the jiremise that ‘effort and trauma are not causally related to coronary occlusion,’ s: « *. That premise sounds a familiar but discordant tone; if ignores the construction which we have given to the meaning of a compensable accident under our act, i. e.,: one which arises out of and in the course of a workman’s employment.”

Furthermore, it will be noticed that certain parts of the hypothetical question put to Doctor Yaguda have been italicized. This was done in order to point out matters which were resolved adversely to the defendant’s claim by the deputy director or which are not in the record or which are not evidential against the plaintiff.

For example, the doctor was asked to assume that Amend continued to work for about three weeks after the incident of December 1, 1944. While the statement appears substantially in the history Doctor Busch said he obtained from the decedent, it is contrary to the testimony of the plaintiff and the defendant, George Amend. These latter two witnesses were described by the deputy director as truthful and he found the fact to be as testified by them, i. e., that the decedent did not report for work for two or three weeks after December 1, 1944.

Again, he was asked to assume that Amend had “a known high blood pressure with anginal attacks for a long time, for which lie had been taking nitroglycerine.” This statement comes from the history appearing in the City Elospital record and it is obviously hearsay. Nowhere is it even suggested that the history was given by the decedent. On the contrary, the only statement from him on the subject of his heart condition appearing in the record is to the effect that he had been in good health “until present cardiac condition.” Moreover the record is barren of any other evidence of probative value that he took nitroglycerine before December 1, 1944. Doctor Busch said that as far as he knew the taking of this drug could have begun subsequent to that date.

These grave and material defects in the hypothesis assumed by the doctor obviously impair the weight of his opinion. And when to this is added his basic medical theory of absence of causal relation between effort and a coronary occlusion, which it must be inferred would have produced a negative answer no matter what the hypothesis, his conclusion is emptied of probative force.

Doctor Busch is the only medical witness who saw Amend before his death. His examination was made on May 20,1945, and the record indicates that he wrote a report to defendant’s counsel. On the basis of the history obtained, which he said included a statement by Amend that he worked for about three weeks after the car cranking incident, and his Endings, he concluded that the effort did not cause the occlusion or death.

Manifestly, the history of continued work for about three weeks was to the doctor, and is to the determination of this cause, an important consideration. Two lay witnesses, found to be credible, with first hand information on the subject, swore the fact to be that he was out of work for two or three weeks, returned for part of one day and collapsed. It seems probable in view of this conflict that in Doctor Busch’s conference with Amend there was some mention of a three-week period. It seems likely that the doctor was mistaken or misunderstood Amend’s reference to three weeks. It must be kept in mind that at this time, just nine days before his death, he was confined to bed complaining of shortness of breath, sharp pain and inability to be in the recumbent posture. He breathed “jerkedly and rapidly as though he is in distress.” "His eliest ‘showed poor expansion’ and many rales.” The heart sounds were “weak and distant with occasional missing beats and galloping rhythm.” He was “partially paralyzed on the right side with the speech center somewhat involved due to cerebral thrombosis.” Under these circumstances the finding of the deputy director that the affirmations of the two lay witnesses that he was out of work for two or three weeks after the date referred to are entitled to greater weight, is a reasonable and proper one.

According to Doctor Busch, Amend had coronary sclerosis and coronary insufficiency of many years standing, and Doctor Yaguda said he was “a candidate for a coronary occlusion.” However, he had no coronary occlusion and no coronary attacks prior to December 1, 1944. And the doctor conceded, contrary to Doctor Yaguda, that effort, exertion and strain can produce an occlusion in a person with a marked coronary sclerosis. This medical belief makes it reasonable to conclude that if, instead of a history of continued work for three weeks after cranking the car, he had a history of no work for that period, his opinion as to causal relation would be different.

As already indicated, Doctor Busch sent a report to defendant’s representative. Yet, just three days short of two months after his examination and six weeks after Amend’s death, defendant admitted by his insurance carrier in Form 3 that the death resulted from the injury. Defendant offered no explanation of the admission. So, it must be assumed that it was made wilfully, deliberately and with a consciousness of its significance.

On the whole record the evidentiary force given to the plaintiff’s case by the forms filed, the admissions contained therein and the payment of compensation, is such that the presumption that the death from heart disease was the “result of natural physiological causes” (Seiken v. Todd Dry Dock, Inc., 2 N. J. 469 (1949), and cases cited) has been overcome and that it was the result of a compensable accident has been established “by the preponderance of the probabilities.”

Therefore the deputy director acted with legal propriety in awarding compensation to the plaintiff.


author: Newman, J. C. C.

text:
    IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF WILLIAM R. THROPP, II, DECEASED.
    Ocean County Court Probate Division
    Decided March 15, 1951.

      Messrs. John V. B. Wicoff and George Gildea, for Helen W. Thropp.

      Mr. Robert A. Lederer, for the guardian of Jane Ellen Thropp.
   Newman, J. C. C.

This is an application by the First National Bank of Toms River, New Jersey, in the capacity of guardian of Jane Ellen Thropp, a minor, for the allowance of maintenance of a minor child and allowance to meet expenses in connection with a contest of the will of William R. Thropp, II, deceased, under and by virtue of R. 8. 3 :2 — 29.

It appeal's that the will of the above named decedent was admitted to probate in the Ocean County Surrogate’s Court on the 19th day of July, 1950, and an appeal from such probate has been taken and is now pending in the Ocean County Court, Probate Division. The appeal from such probate has been taken by Dorothy S. Thropp, widow of the decedent and The First National Bank of Toms River, New Jersey, guardian of Jane Ellen Thropp, minor daughter of decedent.

The statute in question provides as follows:

“In all cases where any contest has arisen or shall arise in any court * * * touching the probate of any paper purporting to be the last will and testament of any person * * * the judge of the orphans’ court * * * may upon petition made for that purpose * * * by any of his children * * * or by the next friend of any child above mentioned, if such child be under twenty-one years of age, make an order upon the person having the custody of the estate of such person for the payment, pending the contest over the probate of the will, out of the income of the estate of the decedent, of such allowance for the support and maintenance of such * * * child or children as the * * * judge may deem just; and such further allowance out of the income, or, if need be, out of the corpus, of such estate as may be necessary to meet the expenses incurred or to be incurred in conducting such contest concerning' the probate of such will.”

The statute further provides that the widow shall not have the beneiit of this statute unless she shall have been living with the decedent at the time of his death.

It is admitted, in this case, that the widow was not living with her husband at that time and she does not join in this application.

Testimony was taken on this application for the purpose of establishing facts to the satisfaction of the court that the child was in need of funds for her maintenance from her father’s estate and further that she was in need of funds for the proper prosecution of the will contest.

I deem it the statute affords the court the right to order the use of the income and corpus of the father’s estate in cases where the court is convinced there is a necessity on behalf of the minor child for such use. It therefore becomes incumbent upon the petitioner here to establish the following:

First — The petitioner must establish that he has reasonable grounds for contesting the will;

Second — That the infant would gain as a result of setting-aside the contested will, and

Third — That the child is in need of funds for her support and maintenance and probably further in need of funds for the contesting of the will.

Mr. Justice Ueher in the case of In re Phillips, 138 N. J. Eq. 96 (Prerog. 1946), affirmed 139 N. J. Eq. 551 (1946) speaking for the Court of Errors and Appeals concerning an application under this statute, said:

“This statutory function is in its essence discretionary, directed and controlled by the obvious policy of the enactment and the considerations which brought it into being; and we perceive no abuse of the authority. The legislative expression implies fair grounds for the contest and a measure of need as conditions prerequisite to the affirmative exercise of the power. The design was to enable one of the enumerated next of kin to prosecute an inquiry into the question of the validity of the purported will that, for the lack of means, could not otherwise be had. The power is to be sparingly exercised, only in cases of proved necessity, for the allowance of maintenance is without regard to the ultimate establishment of the contestant’s right to share in the subject-matter of the purported will, and apparently without obligation of reimbursement no matter what the event, and thus the effectuation of the will of the testator is involved to that extent. There was no proof of such need here.”

There was testimony at the hearing tending to disclose that the testator had become such a confirmed addict to the use of alcoholic drink that his mental competency 'had been greatly affected and that he may not have possessed the mental competency to make his will at the date thereof.

While the testimony offered on this point on this application is so far unconvincing there are two other points on which I feel this application can he disposed of without further discussing this question at this time. In order, however, that the parties would not be constrained to feel the question is now being decided on that point, I might add that only one or two witnesses wore produced and T am informed a considerable number of witnesses will be later produced.

However, I deem it incumbent upon the applicant hero to establish the need of the minor to delve into the decedent’s estate in order to maintain herself and for suit money to contest her father’s will.

It developed at the hearing that the minor is a girl about four and one-half years old and is the beneficiary under her grandfather’s will and the owner of 2,049 shares of the capital stock of the William E. Thropp & Sons Company of Trenton, New Jersey. These shares of stock are held in trust by trustees named under the will of John Exton Thropp, father of the testator, William E. Thropp, II, with the income therefrom payable, after the death of William R. Thropp, II, to the said minor child. It is also provided that she become the absolute owner of the stock in question after the death of her father. The trustees of the John Exton Thropp estate have filed an accounting in the Mercer County Court, Probate Division, in which the value of the 'stock is listed at $327,840.

At the hearing the guardian of the minor testified that an offer of $90 per share had been made for either part or all of this stock belonging to the. minor.

The mother of the child, with whom the child lives, testified that she had borrowed on the farm let to her by her husband, filie sum of $7,500, of which amount she still had $2,500 available for her and her child’s support.

The minor's estate has great value. It is the duty of the guardian lo see that the minor’s property is used for the minor's support. According to the testimony dividends were paid on the stock from 1939 to 1950 averaging $15,000 per year. Enture dividends now belong to the minor and, of course can be used for her maintenance and would seem to be more than ampié if a like amount of dividends is maintained. In this connection the respondent produced a balance sheet as of December, 1949, showing the'stock in question to be valued at $495,858. This balance sheet also showed total assets of the William R. Thropp & Sons Company of $479,500.01, including approximately $251,188.20 in cash and other investments of $342,210.36.

In view of the undoubted value of the ward’s estate I feel there is no justification in the court permitting the guardian of the ward to use the assets of the decedent’s estate at this time, either for the maintenance of the minor or for suit money in contesting her father’s will.

There is an additional reason why this application should be denied and that is that the present will now under attack is practically- identical, as far as the minor is concerned, with a will made by the same testator in May, 1946. The minor, under each will, is to receive the sum of $10,000 in trust, the income therefrom and so much of the principal thereof as in the trustee’s judgment should be needed, to be used for the education of said minor, Jane Ellen Thropp, until she become 21 years of age, at which time she is to receive all the balance of said trust fund absolutely. Each will contained a clause that the minor was to receive all jewelry and silverware, to be delivered from time to time as soon as she becomes of sufficient age to appreciate and care for the same.

The two wills are identical, with the exception that in the 1946 will testator’s wife was named residuary legatee and executrix and trustee and in the 1950 will testator’s mother was named residuary legatee and executrix and trustee. In the event the 1950 will was set aside under the proceedings now before the court, the minor would receive the same legacy under the 1946 will, there being no contention that the testator did not possess mental capacity to execute the will on the former date.

For both of the reasons above stated I hereby deny the application by the guardian of the minor on the ground that necessity has not been established.