author: Donges, S. C. C.

text:
    Camden County Circuit Court.
    WALTER T. GROSS, SHERIFF OF THE COUNTY OF CAMDEN, PLAINTIFF, v. EDWIN CADES, DEFENDANT.
    Submitted March 16, 1929
    Decided March 26, 1929.
    For the defendant, Charles M. Atkinson.

   Donges, S. C. C.

Plaintiff sues to recover the difference between a bid of defendant for premises sold under an execution issued out of the Court of Chancery, and the bid received upon resale of the premises, after defendant failed to take the deed and make settlement after confirmation by the court.

Defendant answers, admitting the allegations of the complaint, but avers that one Max Kaufmann, the complainant in the Chancery proceeding, agreed to finance such purchase and induced the bid of defendant, but thereafter declined to advance any money for such purpose.

Defendant now asks leave to file further defenses, asserting that defendant did not make the bid for himself, but as an executor of his father’s estate, and that the attorney who signed the sheriff’s agreement, or conditions, of sale was not authorized by defendant to do so.

In Townshend v. Simon, 38 N. J. L. 239, it is held that a sheriff may bring action against a purchaser who refuses to comply with the conditions of sale; and a resale being had, the measure of damages is the difference between defendant’s bid and the sum raised at the second sale, together with the costs and expenses of the resale.

The affidavit of defendant is not certain and definite as to the undertaking of Kaufmann with respect to the alleged agreement to finance. It amounts to no more than a declaration that defendant should “go ahead and buy the property in and I will take care of you afterwards,” or words to that effect. The sheriff had no knowledge of the alleged conversation or undertaking by Kaufmann, and it is denied by Kaufmann and his attorney. Even if made, it can have no effect to relieve defendant of his bid at the sale. The sheriff is required to make sale, according to the mandate of the writ of execution. No one can make agreements binding upon him. If any matter occurred at the sale which was a fraud upon a bidder, such bidder might he relieved by application to the court from which the writ was issued. A bidder at a judicial sale cannot be relieved of his bid because of an agreement of some person that he will help the bidder finance his purchase, even if such person may have an interest in the fund derived from such sale. If Kaufmann contracted with defendant to do something for defendant, and breached his agreement, defendant must look to Kaufmann.

The defendant has presented nothing in his answer or affidavit which entitles him to have the merits passed upon in trial.

Nor should the defendant be permitted to amend his answer to deny that the bid was his bid and that the sheriff’s agreement to purchase was made without his authority.

Defendant’s affidavit to be used on this motion clearly indicates that he was aware of the bid made by Mr. Liberman, and that the bid was signed by Mr. Liberman for defendant. Defendant took no steps to be relieved of the bid, but permitted the sale to him to be confirmed and refused the deed when he found it impossible to finance the purchase. His alleged interviews with Kanfmann do not suggest either that Liberman was without authority to bind defendant or that defendant did not intend to make the bid in his own name. On the contrary, his affidavit discloses that Mr. Liberman advised him that the bid had been made in his name and that this was the proper procedure. To this conduct of Liberman, defendant, by his own admissions, never made objection to the Court of Chancery or sought to be relieved. He knew before the date for performance that he was bound to take the property. He obviously wanted the property and was party to creating the status now complained of. It is significant, perhaps, that defendant does not support his statements by affidavit of Mr. Liberman.

Leave to file the amended answer should not be granted.

The affidavits in support of this motion are clear and convincing and leave no doubt that defendant made the bid for the property; that he failed to perform and that a loss resulted. Defendant has raised no meritorious defense.

An order will be made striking out defendant’s answer and entering summary judgment.


source: Caselaw Access Project

author: W. E. Stubbs, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN SMITH, PETITIONER, v. WARREN MANUFACTURING COMPANY, RESPONDENT.
   This is a claim coming up for determination under the provisions of the New Jersey Workmen’s Compensation act in which the facts, briefly stated, are as follows:

On August 10th, 1926, the petitioner, John Smith, was in the employ of the respondent, the Warren Manufacturing Company. On that date Smith had his foot injured in the following manner: A roll of paper, weighing approximately seven hundred pounds, -was standing on its round end; there was, however, something under one edge, so that the roll was not standing vertically. Smith was in the act of removing something from the top of the roll, which act caused it to fall over onto its side. The upper edge of the roll came down directly on the petitioner’s left foot. Fellow-workmen released him from this position by removing the roll.

Smith’s wages were $19.80 per week, calculated on the basis of forty cents per hour for nine hours per day and five and one-half days per week. The question of overtime v/as raised, but nothing in the record warrants its inclusion in this adjustment. The compensation rate, therefore, will be $13.07.

The petitioner contends that he has not been able to work since the day of the accident. His counsel makes claim for compensation for total disability, basing same upon the case of Simpson v. New Jersey Stone and Tile Co., 107 Atl. Rep. 36, and 93 N. J. L. 250. It does not appear, however, that the medical testimony in the present claim is such as to bring it under the rule laid down in the Simpson opinion. The record in that case was clear and definite as to the nature of the injury and the cause of the disability. The testimony was positive also that the conditions involved created a disability total in character and permanent in quality, and that this condition would remain such unless the arm be amputated. There is no such clarity with respect to the case at bar. Expert medical testimony was presented by four doctors, two for petitioner and two for respondent. Eollowing are extracts from the testimony by petitioner’s medical witnesses. Displacement three-eights of an inch downward of the first metatarsus, interfering with use of foot. Might cause pain. Impaired foot ten per cent. Inability to flex or extend toes due to tendons adhering to sheath. Nerves not immediately injured. The pain of which he complains can only be due to nerve caught in scar tissue. The doctor failed, however, to state that this condition actually exists in this case. One doctor for petitioner testified that from his knowledge of the case the petitioner was totally and permanently disabled, basing this on the truthfulness of his statement as to suffering pain. If the pain is not there then there is no disability.

Excerpts from the medical testimony presented by the respondent are as follows: Arch of foot normal. Arch of other foot down more than that of injured foot. Limited motion of toes. Permanent injury limited to fifteen per cent, of foot. X-rays show nothing abnormal. Impairment of function of toes. Cannot account for the pain he complains of. No displacement. Permanent injury twenty per cent, of foot.

Giving consideration to all of the testimony, the evidence seems to me to warrant the conclusion that the petitioner suffers pain, even though the medical examinations fail to discover the cause. A tendon may have become attached to its sheath, and this would account for the pain according to one of the doctors. There was no disagreement among the doctors but that constant pain will impair one’s efficiency.

From the testimony in general I conclude that temporary disability extended to the time of the hearing, and I further conclude that fifteen per cent, of total disability is a proper estimate to place on his permanent injury.

$$$$$$$$

W. E. Stubbs, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    TONY VEITAS, PETITIONER, v. BALBACH SMELTING AND REFINING COMPANY, RESPONDENT.
    For the petitioner, David Roslcein:

    For the respondent, McDermott, Enright & Carpenter, by Carl 8. Kuebler.

   It was admitted that the petitioner was employed by the respondent as a mason’s helper at a wage of $24.30 per week, and that he sustained an accident arising out of and in the course of his employment * * *. The only question involved was the question as to the extent of permanent disability. It appeared that the petitioner received an allowance at an informal hearing of fourteen and three-sevenths weeks for temporary disability and fifteen per cent, of the left foot.

The petitioner testified * * * that his foot hurts in cold or rainy weather; that he cannot walk well and at times has a sharp pain in his foot and some pain in his knee; that ho was treated by Dr. Karl Lowe and twice by Dr. Cahill. He admitted being present at the informal hearing, at which time he was represented by counsel.

Dr. Karl Lowe testified that he treated the petitioner * * * for a spiral fracture of the lower middle third of the left tibia; that X-rays were taken * * *; were introduced in evidence; that there was no fracture of the fibula; that the X-rays showed the bones to be in good position and alignment. He testified that both of the man’s legs were slightly bowed, which showed some irregularity in the shape ■of the bone. He testified that at the time he discharged the petitioner he was able to return to his ordinary work; that there was some disability of his leg at that time amounting to about fifteen per cent., but that it would not be permanent and that all the disability was below the knee. He testified that he examined the man again the day of the hearing and found that he was not at that time suffering from any permanent disability.

Dr. Silverstein was also called by the petitioner. He testified that he examined the petitioner three or four times and concluded that there was twenty-five per cent, permanent disability to the left foot; that there was difficulty in walking; that there was angulation and that he complained of pain in the knee joint. He also testified that he found poliphera of periostitis.

Dr. Irving Venderhoff was called by the respondent and testified that he examined the petitioner, and found very little irregularity of the tibia about four inches above the ankle; that the irregularity was so slight that it was almost impossible to determine the point of the fracture; that there was no atrophy and no injury to the fibula. He testified that in his opinion there was no permanent disability, although there was some structural change for which the man should be allowed ten per cent.

I have listened to, considered and examined the testimony~areíully and do find that by the weight of authority the award made to the petitioner at the informal hearing was a fair one. I observed the witness as he walked to the witness-stand and I noticed that he walked with ease and apparently without functional disturbance. I am not deciding the case upon this fact alone, but coupled with the testimony of the doctor who treated him and Dr. Vanderhoff, I am satisfied that fifteen per cent, of the left foot would compensate him for structural changes and the amount awarded informally was a fair award.

$ $ $ $ $ $ H* Hs

Harry J. Goas, Deputy Commissioner.


author: HAEKY J. GrOAS, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JULIUS MEISE, PETITIONER, v. HOUSEHOLD LAUNDRY CORPORATION, RESPONDENT.
   * * * it appeared from the testimony of the petitioner that on August 27th, 1927, he was employed by the respondent as a truck driver and that on that date, while going to Hackensack, he hit a bump in the road at Lyndhurst, which caused a lump to form on his back in the region of the fourth and fifth vertebrae. That he rested for about twenty minutes and continued on.

That he kept on working until October 14th, when he was forced to see a doctor, which doctor examined him and operated on him for a bursa, which later developed to be a tumor. The doctor of the petitioner testified that he operated on the petitioner and removed the lump.

That it further appeared that the petitioner, on November 12th, 1921, signed a statement wherein he said that the condition was caused by a constant rubbing of his back against the back of the seat and gave no specific date on which any one particular bump occurred.

That the physician for the petitioner also gave a certificate in which he said the cause was a chronic irritation, but he gave no specific bump in his report. That the respondent produced the man who took the statement and he testified he put down what the petitioner told him and that the petitioner did not say anything about having received any particular bump.

That from the foregoing, I find and determine that the petitioner did not sustain the accident as he testified to, and that the tumor was caused by a chronic irritation on constant rubbing of his back against the.back of the seat; therefore was not the result of accident.

HAEKY J. GrOAS, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PATRICK FLANAGAN, PETITIONER, v. PUBLIC SERVICE RAILWAY COMPANY (IMPROPERLY IMPLEADED AS PUBLIC SERVICE CORPORATION), RESPONDENT.

      For the petitioner, Joseph J. Quinn.

    For the respondent, Henry J. Sorenson.

   The next question involved in this case was as to whether or not the petitioner suffered any permanent injuries as a result of this accident. In support of the contention that there was a permanent condition existing the petitioner produced Dr. Ford, who saw him at St. Michael’s Hospital the day following the accident, at which time the petitioner was semi-conscious. Dr. Ford, at that time, made a diagnosis of an intercranial injury with probable fracture of the skull. Dr. Ford further testified that at the end of the fourth week the petitioner was discharged from the hospital. The next time Dr. Ford saw the petitioner was in January, 1928, at which time the petitioner showed evidence of a marked Rom-berg. The doctor admitted that the subjective symptoms were more prominent, and that he could not tell whether these symptoms were due to auto suggestion. The petitioner then produced Dr. Kessler, who testified that the petitioner’s general condition was good; that there was no disturbance of the motor areas, and that the reflexes were normal, but that there was a disturbance of gait. This disturbance of gait might be due to an intercranial injury. Dr. Swain, the last witness produced by the petitioner, testified that he examined the petitioner on January 19th, 1928. The petitioner at that time had a tendency to fall to the right, and this was evidenced by an examination which was conducted in accordance with the Romberg tests. He also found that the petitioner on that date was suffering from an impairment of hearing which he characterized as diminished bone conduction. This condition may have been due to the accident, or it may have been due to disease. The respondent, in a proof of its contention that there were no permanent injuries existing in this patient as a result of the accident, produced Dr. Wyatt, a roentgenologist, who testified that he had X-rayed the head of the petitioner, and the interpretation of these X-rays revealed that there was no evidence of a fracture of the skull.

Dr. Dias, a practicing physician in the State of New Jersey, was next produced by the respondent. This doctor testified that he specializes in the eye, ear, nose and throat. The examination of the eyes revealed that the pupils are of normal size, equal, and react normally to all stimuli. The eyelids, lachrymal apparatus and external ocular movements of each ej’e are normal. The fundus of each eye is normal. The ears showed a condition of chronic aural catarrh, which was of many jrears duration. The nasal septum was greatly thickened and deflected to both sides, in the form of a thick horizontal spur imbedded in the right inferior turbinal anteriorly, and the left inferior turbinal posteriorly. There is an intumescent rhinitis and a chronic catarrhal naso-pharyngitis. Dr. Dias then examined the petitioner with the use of the Barany revolving chair, which examination discloses that the organs of equillibration and their tracts in the brain are normal. There was no Romberg. The conclusion was that there is no permanent disability of the eyes, ears, nose or throat organs of equillibration, or their tracts in the brain, as a result of the injury.

Dr. Pascall testified that he examined the petitioner, and that as a result of the examination he found that this petitioner was not suffering from any permanent injuries as a result of an accident. At the examination the petitioner showed no tremors nor any Romberg. Petitioner weighs two hundred and eight pounds, and is the- picture of health.

Dr. Washington examined the petitioner, and his examination discloses that there was no Romberg present, nor any signs of tremor. In his opinion there was no permanent injuries present.

Dr. Hicks, a psychiatrist and neurologist, practicing in the State of New Jersey, testified that he examined the petitioner on February 25th, 1927, and again on February 28th, 1927; that his examination disclosed that there was no abnormal condition of the five senses found, nor was there any Romberg found at either of these examinations. Dr. Hicks, for the purpose of examining the petitioner as to his ability to distinguish various colors, placed an apparatus containing two lenses, which apparatus excluded all light about the head of the petitioner. He first put in lenses of various colors and finally put in two lenses which absolutely excluded all light. At this point of the examination he asked the petitioner, who, at that time was standing, whether he was in total darkness. The petitioner responded in the affirmative. At this time Dr. Hicks specifically noted that while the petitioner was standing in darkness there were no signs of Romberg present. Dr. Hicks testified that there were no permanent disabilities existent in the petitioner’s case which were the result of an injury.

The petitioner resumed work for another employer in March, 1926, and has worked continuously since that time. Erom the date on which he resumed work until February 3d, 1927, the respondent was not aware of the fact that the petitioner was again at work. Erom the date of the accident to the 3d day of February, -1927, the respondent has paid to the petitioner the sum of .$2,343.47.

The evidence in this case as produced by both the petitioner and the respondent presents a sharp factual question as to whether or not there was any permanent disability as a result of the alleged accident. • It is my opinion that there is a small percentage of permanent disability as a result of this accident, but I also find that whatever the figure of percentage is, the petitioner has been amply covered by the compensation payments already paid. I am therefore compelled, under the evidence of this ease, to deny the prayers of the petition.

ij* % sfc ❖

Harry J. Goas, Deputy Commissioner.


author: Per Curiam.

text:
    NORMAN POTTLE, PLAINTIFF, v. LINDE & GRIFFITH COMPANY, INCORPORATED, AND ERIE RAILROAD COMPANY, A CORPORATION, DEFENDANTS.
    Argued October 2, 1928
    Decided April 11, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    For the plaintiff, Kent & Kent.

    For the defendants, Kellogg & Chance.

   Per Curiam.

The plaintiff was seriously injured, while working on a new viaduct in Jersey City, by a wire cable suddenly rising in the air as he was stepping over it and carrying him up with it and dropping him on some hard concrete.

He brought this suit against the defendants, alleging that the cable was their cable and that they were guilty of negligence in allowing it to spring up in the manner indicated. The defendants denied having anything to do with the cable, and this was a controverted question of fact in the case. It is also alleged that the damages awarded to the plaintiff of $7,500 are excessive, particularly in that one of the injuries of which he complained was due to a pre-existing disease rather than to the accident, and that the verdict is illegal because it is for $7,500 damages “plus counsel fees.”

As to the question of liability there was, as already stated, a great deal of contradiction in the evidence, and the defendants argued that it was against all the probabilities that any cable of theirs should have been in the place where the plaintiff was injured. The defendants were engaged in driving a large number of piles on adjoining property, belonging to the Erie Railroad Company, and the pile drivers had to be kept upright by supporting guys of wire cable similar to that which caused the injury, and which guys were led to various final anchorages, but, as the defendants claimed, always to anchorages on the ground and never passed over the viaduct, as claimed by the plaintiff. Moreover, the defendants say it was impossible for any cable of theirs, even if led over the viaduct, to have been allowed to lie loosely on the flooring and suddenly jump up as the plaintiff was stepping over it.

These are questions for the jury to pass upon, and upon which this jury did pass. The arguments for the defendants are somewhat persuasive, but on the other hand we do not feel justified in setting aside the verdict of the jury on this point; and it may be noted that we do not observe any explanation of, or attempt to explain, whose cable this was if not that of the defendants. We think the verdict in this particular should not be disturbed. As to the question of damages, the man was quite seriously injured. He was jerked up astride of this cable some fifteen feet in the air and dropped on his head on some hard concrete. There was the usual testimony of medical experts which it was for the jury to resolve. We do not feel justified in over-ruling their finding.

As to the clause “plus counsel fees,” it was, of course, beyond the power of the jury to make any such award, and that part of the verdict cannot stand. But the very language of the verdict shows that the award of $7,500 was not intended to include counsel fees, and that, standing by itself, it is perfectly legal. If this were an appeal, a verdict in this form might possibly make trouble, though we do not pass on that point. As it is a motion for a new trial, we deem this court to have such control of the verdict as to hold it for the lawful damages and set it aside as to the “counsel fees,” particularly as plaintiff has waived any claim to the latter by ■entry of judgment nisi for the $7,500 alone.

The verdict will be set aside as a finality so far as relates to the “counsel fees” element, but as to the specific sum awarded, the rule to show cause will be discharged.


text:
    ROBERT N. WARD, PLAINTIFF, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    For the plaintiff, Edward Stover.

    For the defendant, Frederic B. Scott.

   Per Curiam.

This is a fire ease which took a rather unusual turn. Plaintiff’s bungalow and garage were burned by fire communicated from dry grass which, according to the evidence, spread over an area bounded southerly by defendant’s railroad tracks, which were about seventy-five feet distant from the garage, and extending to and around the garage and bungalow. The complaint charged that the fire was communicated from one of defendant’s engines, and- the answer admitted (or perhaps it is better to say alleged) that such fire was communicated from engine No. 2136, but that as to that engine, defendant had, in the language of the statute, taken - and used all practicable means to prevent the communication of fire. Comp. Stat., p. 4245, 4256, 4257; Pamph. L. 1921, p. 786. The plaintiff replied (a) that fire came out of the grate of the engine as well as the smokestack; (b) putting defendant on proof of identity of the engine; (c) that fire was communicated from other engines. At the trial, defendant’s evidence about the condition of engine No. 2136 was so persuasive in character that plaintiff shifted his main ground to a claim that the fire had been communicated from some other engine or engines, and introduced some general testimony, over objection, that two days or so before the fire, sparks had been observed coming out of a passing engine.

The third reason quotes a passage in the charge, in which the court permitted the jury to consider, as an issue of fact, the question whether the fire was caused by some other engine than No. 2136, and the fourth reason points specifically to such-instruction as erroneous. We think that it was erroneous as we fail to find anything in the testimony that would justify a jury in fastening culpability on any engine but No. 2136. Either there was total failure to show that any engine passing within a reasonable period before the fire was emitting sparks, or a similar failure to show that any engine emitting sparks passed within such period. As the question of other engines was left to the jury, it may well be that they speculated on that issue and returned their verdict based upon it. This in our estimation is enough to vitiate the verdict, and it becomes unnecessary to deal with the other points argued.

The rule will be made absolute.


author: Pee Cubiam.

text:
    HORACE MORLOCK, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. FANNY AND CARL KOHN, DEFENDANTS.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gummebe, Chiee Justice, and Justice Pabkeb.
    Eor the plaintiffs, Robert Newton Crane.

    Eor the defendants, Samuel D. Williams.

   Pee Cubiam.

Plaintiff, a youth of fifteen, was in the general employ of Harry Kohn, who kept a paint and supply store in Plainfield •and in connection therewith operated a delivery motor car driven by his son, the defendant Carl Kohn. Eanny Kohn (Carl’s mother and Harry’s wife) is charged as either owning •or interested in the business. The point is not important at this time, as the decision turns on other grounds. The suit .arises out of an unusual accident connected with the said motor car. Carl was told to make a delivery in Somerville, and plaintiff rode with him on the car. On the way, the •engine stalled, the car was pushed by hand to a service station, :and several of the spark plugs were there removed, and according to plaintiff’s testimony some gasoline was poured through the holes into the cylinders, plaintiff standing on the sidewalk and watching the operation. In some way this gasoline ignited and spouted out from the cylinders, some of it on the plaintiff, who was rather severely burned. He sued ■Carl as the party directly responsible, and Eanny on the principle of respondeat superior. The testimony is in contradiction as to Carl’s participation in the matter, but this we need not consider, as the responsibility of defendants for negligence was limited by the court to a preliminary finding by the jury that plaintiff had been invited to ride as a passenger in the car. On this issue the evidence for the defendant that he was not invited was positive, and is supported by the inherent probabilities of the case. There was work which plaintiff was to do at the shop; there was nothing for him to do-at Somerville or on the way. We consider that the claim of invitation was not supported by adequate evidence, and so-finding, the verdict must be set aside, as the case was submitted on invitation alone, there was no evidence whatever of willful injury, and no other theory of recovery was laid before the jury. A verdict cannot be sustained on a theory not submitted. Bowlby v. Phillipsburg, 83 N. J. L. 377. See Boesch v. Kick, 97 Id. 93; Boniewsky v. Polish Home, 102 Id. 242.

The rule to show cause will be made absolute.


author: Pee Cukiam.

text:
    JOSEPH AND ALFRED SANTINELLO, PARTNERS, ETC., PLAINTIFFS, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY AND BOUND BROOK CRUSHED STONE COMPANY, DEFENDANTS.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gummere, Chief Justice, and Justice Parker.

      Eor the plaintiffs, George L. Record.

    For the defendant railroad company, Fdwin F. Smith.

    For the defendant stone company, King & Vogt.

   Pee Cukiam.

The suit was for damages arising out of a collision of a truck belonging to the plaintiffs with a backing train of the defendant railroad company, at the stone crushing plant of the stone company, which is situate at a place known as Chimney Eock, northwest of Bound Brook and on the road crossing the Watchung range and leading to Martinsville. A branch line of the railroad leads northerly from the main line and parallels the highway into the gorge as far as the stone plant where it ends. On the day of the accident, the plaintiffs’ truck had been driven up to the plant from Bound Brook for a load of stone, had been loaded at Hopper No. 1, some distance to the south of the crusher, had gone on to the scale and been weighed, the scale being across the road from the crusher and a little to the south; and after weighing, proceeded northerly to a point directly opposite the crusher, where there was enough space, if that space was unobstructed, to make a complete turn to the left without backing, and straighten out for the southerly run to Bound Brook. This point had been designated by the stone company as the place for turning, and we think it fairly clear from the evidence that plaintiffs were invited to use the premises of the stone company as space in which to complete the turn. The matter of invitation by the railroad company is another affair, as will presently appear. The topography is important, but it is impracticable to describe it in detail. Suffice it to say that at this point, from west to east, there were: 1. The crusher itself. 2. A series of three hoppers running north and south, and alternating with two railroad tracks. 3. East of the most easterly hopper, and running north and south substantially parallel with the road, a third track, on which the collision occurred. 4. About eighteen feet east of the easterly rail, the west edge of the highway, which at this point was about twenty-four feet wide. Erom east rail of the track to east side of the road the space scales about forty-four feet; the total width from east edge of the road to nearest hopper scales about sixty-one feet, including the track. ■ The photographs show no line of separation on the ground between highway and railroad except the rails, or between the railroad and the land west of it up to the hoppers.

The manner -of the accident was that the truck proceeded northerly on the east side of the road until opposite the hoppers, then swung to its left for a complete turn, which brought it on the track as it was finishing or about to finish the turn, where it collided with the train backing up from that direction. The jury found for the plaintiffs as against both defendants. We assume for present purposes that as far as the stone company is concerned, the truck was there by invitation. As to the railroad, if this particular track was its property, which is not clear on the evidence, we are unable to see any substantial proof of invitation. The testimony shows, or tends to show, that the railroad owns a twenty-five-foot strip through the plant, but we find no location of this strip ii> the testimony or on the map. However, we are likewise content to assume for present purposes .that the particular track was on the land of the stone company. If not, there is much difficulty in formulating a theory of negligence of that company. If yea, we have the not infrequent case of the duty of two separate-licensees, or invitees, or what not, as to each other. Quinn v. Telephone Co., 72 N. J. L. 276; Piraccini v. Director General, 95 Id. 114, and other cases. The rule is not here questioned. In addition, there is the duty of the stone company as owner, if that be the fact.

If it be assumed still further for present purposes that each defendant was lacking in some duty of care, we are still unable to uphold the verdict, because we are clear that the plaintiff Joseph, who was driving the truck, was guilty of contributory negligence. This was not a road crossing, and so he had no right to rely on statutory crossing signals. There was no substantial obstruction to the view, the immediate locality was clear of obstructions; if not, as he was about to enter on a railroad track it was bis duty to make effective observation. If the noise of the crusher drowned bell and whistle, this, under well settled principles, made it incumbent on him to* make more diligent use of the senses available. The evidence shows that the train was in plain sight, proceeding slowly, and visible to anyone looking in that direction. There is reason to think that Joseph relied too much on his mirror and not enough on direct vision. Be this as it may, on the point of contributory negligence, without more, the verdict was clearly against the weight of evidence, and must be set ■aside. The rule will accordingly be made absolute.


author: Parker, J.

text:
    JAMES E. CHASTNEY, PROSECUTOR, v. STATE BOARD OF EDUCATION ET AL., DEFENDANTS.
    Submitted March 23, 1929
    Decided April 11, 1929.
    ' Before Justice Parker, sitting alone under the statute.
    For the prosecutor, Carl A. Feich.

    For the board of education, Winne & Banta.

   Memorandum by

Parker, J.

This case is submitted to me on briefs, but in a rather inadequate way. It has come up through the commissioner oí education and the state board, and apparently the commissioner wrote an opinion, but no copy of this, nor of the judgment of ■ the commissioner, or of the state board, has been embodied in the state of the case; but counsel have undertaken to substitute a stipulation. The matter is not aided by the honest avowal of counsel for the board that they did not wish to dismiss the prosecutor, and did so only under the influence of a vis major and make no argument in the matter. I should perhaps be justified in dismissing the writ for lack of a proper record, but conclude that on the whole it is better to deal with the merits.

It is conceded that the sole question in the case is whether prosecutor is within the provision of section 229 of the School law (Comp. Stat., p. 4803), as amended in Pamph. L. 1927, p. 787, that “every board of education shall employ a competent physician to be known as the medical inspector.” Prosecutor is not licensed under the Medicine and Surgery act, but is licensed as an osteopath, and part of the argument rests on the fact that the Osteopathy act (Pamph. L. 1913, p. 388) speaks of “osteopathic physicians.”

As I read the statute, the legislature meant that the medical inspector should be a physician as the word is ordinarily understood; in short, an M.D. This, to my mind, is indicated by the phraseology “medical inspector;” “shall examine every pupil to learn whether any physical defect exists.” Whatever may be the educational requirements for a license to practice osteopathy, the limitations of that practice as defined in the Osteopathy act are such that even conceding that a licensed osteopath will have, and retain, sufficient medical knowledge to enable him to perform satisfactorily the duties of “medical inspector,” still the word “physician” and its context seem to lead the mind back inevitably to the conclusion that what the legislature required was a general medical practitioner or at least someone licensed as such.

The notion of employing an osteopath for this purpose seems new, as the question has not been raised before. The statute, however, is not new, as this language is in the act of 1903 and perhaps in earlier legislation which I have not taken time to examine. It was in force when the Osteopathy act of 1913 was passed. Before that act it plainly meant a licensed M.D., and that meaning it would naturally retain until the legislature showed an intent to modify it more plainly than it appears to have done.

The writ will be dismissed, with costs.


text:
    MICHAEL A. EMMA, RELATOR, v. LOGGIA FASCI ITALICI NO. 16, ORDER SONS OF ITALY IN AMERICA, AND GRAND LODGE OF THE STATE OF NEW JERSEY, ORDER SONS OF ITALY IN AMERICA, RESPONDENTS.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gummeee, Chief Justice, and Justice Parker.
    For the relator, Charles C. Giffoniello.

    For the respondents, Anthony R. Finelli.

   Per Curiam.

The alternative writ sets out the same facts in substance as appear in the.previous memorandum by this court, ubi supra, and which may be abridged thus: Relator being a member in good standing of Loggia No. 16, an unincorporated subordinate lodge of the incorporated New Jersey Grand Lodge, Order Sons of Italy in America, thereafter joined an organization of somewhat similar name, which for convenience will be called the “Independent Order.” He was notified by respondents that he could not, under the rules, belong to both orders at the same time, and should resign from the respondent order, else he would be expelled. He refused to resign and was expelled, illegally as he claims, and by this proceeding asks for reinstatement under the authority of this court. One answer made and which we deem adequate, is that a remedy was provided for him by the rules of the order, which he should have exhausted before coming here; and that not only has he not exhausted that remedy, but has not even invoked it. Relator claims that this is a 'case in which he is not required to invoke the tribunals of the order, but may come here in the first instance.

The rules applicable to this class of cases were formulated by former Mr. Justice Yan Syckel of this court, in the case of Roxbury Lodge v. Hocking, 60 N. J. L. 439 (at pp. 440, 441), and may be stated" as follows:

1. Where, the question is a social one, involving discipline or the. conduct or standing of a member, he must exhaust his remedy within the organization if such remedy is provided before invoking the aid of courts of law. See Grant v. Ancient Order of Foresters, 75 N. J. L. 109; Zeliff v. Knights of Pythias, 53 Id. 536.

2. But if the controversy involve property rights, then in the absence of regulations amounting to an express agreement to exhaust remedies within the order, the courts will intervene to protect such property rights. Byrne v. Supreme Circle, 74 N. J. L. 258, was a case in this class.

3. On the other hand, even if property rights are involved, still if the rules of the organization provide a remedy within that body, and members have agreed to exhaust that remedy before application to the law courts, the latter will not interfere until that remedy has been exhausted. Ocean Castle v. Smith, 58 N. J. L. 545; affirmed, Smith v. Ocean Castle, 59 Id. 198.

4. But in case of property rights it should be clear that these are cognizable by the tribunals established within the order. Roxbury Lodge v. Hocking, supra.

In the present case, participation in a mortuary fund is involved, and that is a property right.

We proceed, therefore, to examine the regulations o£ the order as laid before us, and find that section 368 provides in general terms: “No officer or brother may institute proceedings before the civil courts of law without former proceedings being had before the arbitral boards.” A second paragraph goes on to say that failure to comply with this provision works automatic expulsion, but until respondents invoke that paragraph in resistance to an appeal within the order, we refrain from passing on its validity, particularly as it is neither defended nor attacked. Purther examination of the regulations shows a complete scheme of procedure, original and appellate; so then the case appears to fall clearly within the rule of Smith v. Ocean Castle, supra. To the contrary it is urged that the appellate scheme is inapplicable because relator was summarily expelled without trial. In answer to this it is sufficient to say that perhaps a majority of these fraternal order cases are of just this character.

There will be judgment for the respondents on the demurrer.


author: Pek Cukiam.

text:
    ANNA WILSON, PLAINTIFF, v. DAVID B. BROWN, DEFENDANT.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gummebe, Chief Justice, and Justice Paekee.

      Eor the plaintiff, Francis A. Gordon.

    Eor the defendant, Samuel D. Williams.

   Pek Cukiam.

The substantial reasons presented on this rule were that tire verdict was against the weight of evidence and that it was contrary to the charge of the court; also that it was excessive. There seems to be no argument in the brief on the point that the verdict was against the charge of the court. We do not think it was against the weight of the evidence. The plaintiff was riding in a taxicab from Elizabeth to Elizabeth-port on a wet, slippery day, and passing Clark Place, which comes in from the south but does not cross Third street, the taxicab was met by the defendant’s truck coming north on Clark Place and beginning to turn to its left and towards the west. This would cause the truck to cross in front of the taxicab if there was room to do so; there was not room but as indicated by the testimony the truck continued to turn to its left and the taxicab driver in trying to avoid the collision swerved to his left toward the north side of Third street and was caught by the truck at the right hind wheel and jammed against a telegraph pole. As Mrs. Wilson was merely a passenger in the taxicab, no question of negligence of her driver is involved and we are concerned merely with the negligence of the defendant’s driver. There is not much argument in the brief on the question of liability, and we are clear that the verdict should not be set aside as against the weight of evidence, especially in view of the admissions by the defendant’s driver on the stand that his brakes had been slipping that day, which was most likely as the weather was wet and rainy.

. As to the amount of the verdict which was for $3,500, there is an attempt to minimize the injuries, but while no bones were broken, the plaintiff suffered a general shaking up and bruises, a minor concussion of the brain with local injury to the nerves, she was ten days in hospital, three weeks in bed at home, three months confined to the house, lost a great deal of income as a practical nurse because of her disability, and at the time of the trial she testified she still did not have enough grip in her hand to lift a flat iron, and if any strength is required in her occupation of nursing she has to call for help.

We are perfectly clear that the rule should be discharged and confess to some surprise that it was ever granted.


text:
    CHARLES S. SCHULTZ & SON, INCORPORATED, A CORPORATION, RESPONDENT, v. MAX AND STANLEY H. KLIPPER, APPELLANTS.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gummebe, Chief Justice, and Justice Pabkee.
    For the appellants, Julius J. Seiden.

    Por the respondents, Isaac Gross.

   Pee Cubiam.

This is an appeal from a summary judgment. So far as we can discover, no attempt is made to set up any defense on the merits, the suggestion being that if the court concludes that if the orderly course of procedure was not followed, the judgment should be reversed irrespective of merits. Without passing on this proposition, we have examined the record, and conclude that there was no irregularity which should vitiate the judgment.

After the filing of the answer there was a notice of motion to strike it ont and for judgment, returnable March 9th.' The usual affidavits were attached. The printed case does not show whether the motion was argued on March 9 th.' It does show a rule dated March 16th, extending until that date (i. e.j, March 16th), the time of plaintiff to reply or to; make any motion addressed to the answer. It seems to be claimed that, this rule was improvident for some reason not clearly disclosed; but in any event we learn from the ride entered on April 4th that the motion was made on March 16th, that defendants' refused to submit any affidavits on the merits, that the answer is sham, “and due notice of the motion to strike out having been served upon the defendants,” judgment was ordered entered accordingly.

The first point, as we understand it, is that the notice of motion to strike out was given after expiration of time to reply—ergo, the notice is ineffective. Sed non sequitur. As we read the rules, failure to reply in due time is no bar to motion for summary judgment, except that such motion normally precedes reply. Rule 30. That was the situation in this case. As to the motion being delayed until March 16th, we find nothing to indicate that- defendants challenged that step. Their counsel were present on the 16th, and contented themselves with refusing to go into the merits, though they had sufficient opportunity to do so. We must presume that the motion noticed for'the 9th was properly continued to the 16th; there is no allegation to the contrary, and merely an intimation in the brief that no further notice was given. The fact that counsel were present on the 16th is in aid of the presumption. • ■

■■ It is not denied that the answer was sham, and the- argument now ma,de' indicates that the appeal is frivolous. ■' Let the judgment be affirmed. ■ . • • ■ .


author: Pee Cuktam.

text:
    JOHN KLOEN, PLAINTIFF, v. MUNSON STEAMSHIP LINE, DEFENDANT.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gttmmeee, Chief Justice, and Justice Paekee.
    Por the plaintiff, Kent & Kent.

    Por the defendant, Edward A. MarTcley.

   Pee Cuktam.

The plaintiff was on his way to work as a stevedore, and to reach a lighter on the outer side of one of the defendant’s ships, entered the ship by a gangplank leading into a cross passageway some fourteen inches below the end of the gangplank. The plaintiff was aware of this high step, but in stepping down he sprained his ankle, and the jury awarded him $1,000 for the injury thus sustained. His claim was that the surface of the deck was defective in that there was a depression some three inches deep, and that some oil made a slippery surface at that point.

We conclude that the verdict should be set aside both as excessive and as against the weight of evidence. The testimony of conditions that would give rise to liability is most unsatisfactory, and the attempted explanation is that fellow-workmen of the plaintiff who would normally testify in his favor were intimidated. We have considered all the aspects of the case and conclude that the verdict cannot reasonably be supported.

The rule will be made absolute.


text:
    GRAND LODGE OF THE STATE OF NEW JERSEY, ORDER SONS OF ITALY IN AMERICA, ET AL., APPELLANT, v. ROSARIO FERRETTI ET AL., RESPONDENTS.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    For the appellant, Walter S. Keown.

    For the respondents, Samuel P. Orlando.

   Per Curiam.

It is a fundamental rule of practice in error in civil causes (and the rule is based on reasons of the most meritorious character), that a ruling of the trial court claimed on appeal to be erroneous, and urged for a reversal of the judgment below, must have been excepted to below in order to be available on appeal. The reasons for that rule are explained in a long line of cases, of which late instances are the following: Kargman v. Carlo, 85 N. J. L. 632; Miller v. Transportation Co., Id. 700; Lams v. Fish, 86 Id. 321; Daly v. Ewald, 88 Id. 707; Chrisafides v. Motor Co., 90 Id. 313; Burt v. Brownstone Realty Co., 95 Id. 457; Leiferant v. Progressive Agency, 98 Id. 526.

We deal with this point at some length, because the only-ground of appeal argued is that “the trial court erroneously directed a verdict for the defendants.” Such a verdict was in fact directed, and after rather extended argument; but no exception to that direction was taken, and consequently it stands legally unchallenged, and the judgment must be affirmed.


author: Flannagan, J.

text:
    Essex County Court of Common Pleas.
    STATE OF NEW JERSEY, APPELLEE, v. JAMES WHITAKER, DEFENDANT AND APPELLANT.
    Eor the defendant, William, A. Lord.

    For the state, Joseph L. Smith, prosecutor of the pleas.
   Flannagan, J.

Appeal by defendant from decision of a magistrate convicting him of violating section 14, subdivision 3 of the Motor Vehicle act and fining him $200.

The adjudication of magistrates in such proceedings should be made up in a record called a conviction. A conviction in this sense is a record of the summary proceedings upon the penal statute relied on.

Such a record should contain—•

(1) The complaint which should allege facts showing jurisdiction in the magistrate;

(2) The process whereby the defendant is brought before the magistrate;

(3) The defendant’s appearance and confession or admission of guilt, or if he defends his defense together with the essential evidence adduced and

(4) The judgment. See Preusser v. Cass, 54 N. J. L. 532; 35 C. J. 790, § 487, and cases cited infra herein.

The complaint as well as the judgment in a criminal prosecution under section 14, subdivision 3 of the Motor Vehicle act, which describes t-wo or more different and separate offenses, should set forth which separate offense was committed. Preusser v. Cass, 54 N. J. L. 532, 534, 535; Watt v. Wallerius, 99 Id. 370, 372; State v. D'Aloia, 2 N. J. Mis. R. 1164.

If the complaint is definite and specific it will suffice if the judgment- finds the defendant “guilty as charged.” Knight v. Kinkead, 6 N. J. Adv. R. 787; Burnell v. Court of Common Pleas, 3 N. J. Mis. R. 531; State v. Sakowiez, 2 N. J. Adv. R. 1238. It is not enough to describe an offense by section and subdivision number merely, where two or more offenses are created by said subdivision. State v. A’Aloia, 2 N. J. Mis. R. 1164, 1165, 1168. As already stated, the essential evidence should be returned. Lyons v. Spratford, 43 N. J. L. 376; Keeler v. Milledge, 24 Id. 142, 146; Salter v. Mayor of Bayonne, 59 Id. 128, 129, 130; State v. Rosenblum, 100 Id. 240, 243, 244; Preusser v. Cass, supra.

In the instant case the evidence was not returned, if it had been'it might possibly have disclosed which of the separate offenses mentioned in said section 14, subdivision 3, was intended to be described in the judgment and the court might have felt itself called upon to read the two together in order to uphold the judgment appealed from. The names of the witnesses are set forth but none of the evidence was returned.

Tested by these rules- the present return is insufficient; for neither by way of judgment nor in the evidence is the alleged offense described. In this it is defective. While a mere clerical error may be disregarded, a total failure alike of any specific finding or evidence as to which of the different offenses covered by the subdivision in question defendant committed, is fatal.

For the above reasons the motion to- set aside the conviction is-granted.

The orderly administration of justice requires that the expression of the court’s determination should enable the defendant and everyone else to know definitely and with certainty of what he is convicted. It should not be necessary to search through the record to seek by inference for the true purport of the court’s determination. The conclusion of the court should appear unequivocally from the judgment alone, or if not from the judgment then from the judgment and complaint.


author: Pee C ukiah.

text:
    KATHRYN SCHARWATH, PLAINTIFF, v. CATHERINE BROOKS, DEFENDANT.
    Argued October 3, 1928
    Decided April 11, 1929.
    Before Gummebe, Chief Justice, and Justice Paeiiee.
    For the plaintiff, Ralph E. Lum.

    For the defendant, Alexander Simpson.

   Pee C ukiah.

The first count based on alleged criminal conversation was eliminated by a nonsuit on that count and the case proceeded as a wife’s suit against another woman for alienation of her husband’s affections. The jury found a verdict for plaintiff of $90,000. This is attacked as against the weight of evidence, and as excessive.

We are clear that it was not against the weight of evidence. The facts that the jury were entitled to take as having been proved were voluminous, and are unnecessary to recapitulate here.

But we consider the damages as grossly excessive. This is not a case of a wife cast off and left in poverty. Plaintiff secured a divorce from her husband and thereupon he married the defendant, settling upon the plaintiff a house valued at $35,000, the sum of $20,000 in cash, and $4,000 a year. It is of course true that these items are not legally applicable in a suit for damages against the female enticer, but it is still true that plaintiff received them as a result of the enticement, and the jury should consider them in making an award of compensatory damages. When we come to consider the matter of wounded feelings, &e., and the punitive element, the court should be slow to set aside a verdict as excessive. Boniewsky v. Polish Home, 102 N. J. L. 241. But there are cases where even such a verdict should not stand, and as we read the evidence and inhale the unpleasant atmosphere of this case, it seems plainly to be one of them.

The rule to show cause will be made absolute, but as to damages only.


text:
    MORRIS NEWELL ET AL., PARTNERS, ETC., RESPONDENTS, v. MAX KLIPPER ET AL., APPELLANTS.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before G-ummere, Chief Justice, and Justice Parker.
    Eor the appellants, Julius J. Seiden.

    Eor the respondents, Isaac Gross.

   Per Curiam.

This is similar in all respects except the names of the plaintiffs, to the case of Schultz & Son v. Klipper, No. 63 of the present term. Eor the reasons given in the per curiam in that case, the judgment brought up in this case will be affirmed.


author: Pek Cueiam.

text:
    JACK W. BARTINDALE, PLAINTIFF, v. AETNA INSURANCE COMPANY ET AL., DEFENDANTS.
    Argued October 2, 1928
    Decided April 11, 1929.
    Before Gummeee, Chief Justice, and Justice Pakkek.
    Eor the plaintiff, George W. C. McCarter.

    For' the defendants, Arthur T. Vanderbilt.

   Pek Cueiam.

This is a case of a fire loss. The jury awarded a verdict for the plaintiff, who claims the amount awarded is inadequate, and the rule to show cause is based on that ground. The policies covered 8. country house near South Plainfield, and its contents. The jury found that plaintiff was entitled to $10,000 on the house and $5,000 on the contents; it is claimed that both awards were inadequate.

Before proceeding to the matter of value, we wish to clear away a minor point on which some of the argument for defendant is based. There were two fires, about a week apart— the first did some damage but was not serious; the second resulted in a total loss of the house and contents. In support of the verdict, especially as to the contents, it is urged that as no claim was made on account of the first fire, the property must be valued according to its damaged condition in taking account of the second. This, however, we deem untenable because our reading of the proof of loss indicates that it is fairly based on both fires.

We consider the award for personal property inadequate. The only substantial evidence of its value was that of a professional appraiser who had appraised it for insurance in the first instance and had set a total value of over $12,000 on it'. As against this he allowed on the trial for depreciation and minor changes in identity of the property but his total was $11,400.75, as the fair value of the furniture, &c., in the market,-and without any sentimental considerations. Much of it would be classed as antique—but it is common knowledge that antiques as such have a definite value in the market. The testimony of this witness was in. no way substantially controverted.

Next, as to the house: it was a very old house, in a rather isolated country situation, and the evidence about its value was contradictory. On this branch of the case we incline -to think that the jury laid undue stress on the unavailability of the house for sale in the general market, the inordinate expenditure of the plaintiff’s money upon it, &c. Accepting for present purposes, without specifically holding as a general rule, that the phrase “actual cash value” means ordinarily market value, or the price that would be agreed upon between a willing buyer and a willing seller, it should be -remembered, in a ease of this kind, that as was said in Turnley v. Elizabeth,. 76 N. J. L. 42 (at p. 44), referring to a statute making true value, the price the property “would sell for at a fair and bona fide sale by a private contract,” the criterion established by the statute is a hypothetical sale, and the buyers referred to are hypothetical purchasers—otherwise an owner might build a house so costly as to escape all taxation; and. by the same token an insurance company might escape all liability. Such a result would be manifestly unreasonable and could never have been intended by the language of the, policies.

. The rule will be made absolute.


text:
    LILLIAN McCASHIN, PLAINTIFF, v. JOHN H. TANNER, DEFENDANT.
    Argued October 4, 1928
    Decided April 11, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the plaintiff, Oliver K. Day.

    Eor the defendant, George F. Seymour, Jr.

   Per Curiam.

The plaintiff, while riding in an automobile hired from the defendant, and under the general charge of his servant, a colored man named Banks, was injured as the result of a collision between the defendant’s car and another car on the public highway. There are seven reasons assigned, among which are these, that the verdict is against the weight of evidence; that the court erred in refusing a motion to non-suit, and also erred in refusing to direct a verdict for the defendant. There are several other reasons, but they are all covered by what we have to say in disposing of the case.

The defendant hired out his automobile with Banks as driver, practically every day to a Miss Thurston for the purpose of taking a drive. Miss Thurston was a mental patient and was accompanied habitually by her nurse, Miss Bergstein. The evidence shows that Miss Thurston and Miss Bergstein had frequently and to the knowledge of the defendant invited the plaintiff to accompany them as an invited guest in the car, and even that the defendant himself had sometimes operated the car under those circumstances. It was therefore clearly open to the jury to find that defendant knew and assented to the practice of guests, and particularly Miss McCashin, being invited to ride in the car. In this aspect the case is, we think, controlled by Rodenburg v. Clinton Auto and Garage Co., 84 N. J. L. 545; affirmed, 85 Id. 729.

This leads us to the circumstances of the accident. The evidence indicates that the defendant, Tanner, knew that Miss Bergstein was fond of driving the ear and that he had told Banks to let her drive whenever she wished to. As a matter of fact Miss Bergstein was driving the car on a down grade and on the wrong side of the road according to some of the testimony when a man named Cunningham, who was sworn as a witness, appeared coming from the other direction in his car. Cunningham states that he noticed Miss Bergstein was on the wrong side of the road and that he held his own course as long as he dared, with the idea that she would swerve over to the proper side, and that when she failed to do so, then at the last moment he swerved to his own left to avoid a collision just as Banks seized the wheel of the Tanner car from Miss Bergstein and then swerved to the right, of course.- bringing the two cars together. Banks denied that he had taken the wheel, but to us this seems immaterial. The jury were clearly entitled to find that he had and if he did he was necessarily acting as Tanner’s agent and servant, and if he was guilty of negligence in operation as the jury were entitled to find, Tanner, the master, would be naturally liable to the plaintiff if she were in the car by invitation imputable to Tanner. On the other hand, if Banks did not interfere and Miss Bergstein was solely accountable for the collision, nevertheless, it may properly be said and the jury were entitled to say that Miss Bergstein was acting for the time being as the servant of Tanner in view of his .alleged permission to her to drive. Patterson v. Calandriello, 135 Atl. Rep. 91; 4 N. J. Mis. R. 989.

In such a state of facts there was no error in refusing to nonsuit or to direct a verdict; and we are unable to see that the verdict was against the weight of evidence. As to the •claim that the verdict was contrary to the charge, this is predicated to the question of invitation, which was carefully discussed by the trial judge and specifically left to the jury.

We see no good reason for disturbing the verdict, and the rule to show cause will therefore be discharged.


author: Pee Curiam.

text:
    BEN PERRY AND STANLEY LASKY, RESPONDENTS, v. LYON CONSTRUCTION COMPANY, APPELLANT.
    Submitted October 12, 1928
    Decided April 11, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    Eor the appellant, Israel B. Greene.

    Eor the respondents, Michael Breiilcopf.

   Pee Curiam.

This is a suit on a working contract; the controversy relates principally to rulings affecting the counter-claim.

By a written contract between plaintiffs and the defendant corporation, dated May 13th, 1925, it was recited that defendant was about to acquire a described piece of land and erect thereon a building consisting of apartments and stores,, and to begin building shortly after acquisition of title; and agreed that plaintiffs should do the éxcavating at ninety-five-cents a cubic yard; should “forthwith commence and- with reasonable dispatch continue the work;” to commence within two days after notice to proceed, and by a separate paragraph it was provided that “in the event that the excavators fail to-proceed with reasonable dispatch from the time the work is-commenced to the time of completion, then the company reserves the right to stop the work of the excavators, have-the surveyors fix and assess the amount due to the excavators- and employ other excavators to completion; this feature of the contract being agreed to by the excavators in order to-protect the company against unwarranted and unreasonable-delay in the matter of proceeding with the excavation work with reasonable dispatch and promptitude.”

The preliminary estimate of the plaintiffs indicated that, the excavation could be completed in about two weeks; but-there were considerable delays, due partly to bad weather, but principally to the fact that the steam shovel hired by them broke a shaft, and it was necessary to send to Pennsylvania for another, and for various causes, the excavation begun on May 22d was not completed until July 2d. So-far as we can discover, the company made no attempt to enforce the above clause conferring the right in case of undue-delay to dismiss the plaintiffs and hire other contractors; they were allowed to complete,, but the company refused to-pay on account of the delay, and when suit was brought,, counter-claimed that the steam shovel was insufficient and in bad order, that it broke down constantly, and, in short, that there had been unreasonable delay, for which defendants-claimed $5,000 damages, particularly in that the completion of the building was delayed and rents lost.

At the trial the primary claim was conceded, and the evidence related wholly to the counter-claim.

Of the seven grounds of appeal, the last is abandoned. The others will be taken up in order.

Ground 1. A. Exclusion of a question to the witness Goldblatt. There was no exception to this ruling.

Ground 1. B. Exclusion of question to Goldblatt: “When was your mason contractor to commence work?”

The court ruled, in substance, that unless it appeared that haste in the completion of the building, and the dependence on prompt performance of the excavation for other contractors to begin', was expressly within the contemplation of the parties, consequential damages were not cognizable. This was in accordance with the celebrated case of Hadley v. Baxendale, 9 Exch. 341. We see no legal error in the exclusion of the question at this point.

The second ground is that in the course of the charge the judge instructed the jury: “The terms of a contract may be changed, that is, permit a later commencement or performance; that is for you to consider.” To this exception was taken on the ground that there was nothing in the pleadings to support it. But conceding this, if there was error it was harmless. On rebuttal, the plaintiffs undertook to explain why they had not begun work until May 22d, and were allowed without objection to explain that they were busy on another job, and defendant’s agents knew it, and had agreed that plaintiffs should begin on this job as soon as they had finished the other. The instruction excepted to was directed to this point; as a proposition of law it was correct; as cognizable in the case, it was appropriate to a situation that arose on the evidence without any objection because of not being present in the pleadings.

The third ground attacks the charge on what would be reasonable dispatch. The instruction is not quoted in full; when read in its entirety, we think it was not erroneous.

The fourth ground has no exception to support it, so we-have not considered it.

The fifth ground relates to the refusal of a request to charge what amounts to more than arithmetical computation, which the court might well have charged, but was not required to charge, as it contained no principle of law applicable to the case.

The sixth ground relates to the refusal of the defendant’s fifth request to charge, the substance of which is that plaintiffs are not entitled to invoke unforeseen accident, such as the breaking down of the shovel, as an excuse for delay in performance, but were required absolutely and at all events to have a- proper shovel in proper order and proof against any possibility of breaking down. This is not the language of the request, but is what we understand to be its meaning. It will be remembered that the contract does not call for absolute completion at any specified time, but merely requires that plaintiffs shall complete with reasonable dispatch. Such language cannot be construed as imposing more than diligence in completion. The request was properly refused.

This disposes of all the grounds argued. The judgment will be affirmed.


text:
    MOSES CALABRESE, PLAINTIFF-APPELLEE, v. AARON ADELMAN, DEFENDANT-APPELLANT.
    Submitted October 12, 1928
    Decided April 11, 1929.

      Before Gummbke, Chibe Justice, and Justice Parker.
    For the appellant, David Cohn.

    For the appellee, Abram I. Bluestein.

   Pee Cubiam.

This is a broker’s suit for commissions claimed to be earned in the procurement of a purchaser for real estate. The only-ground of appeal that is properly raised, and indeed the only ground that is argued, is that the court erred in refusing to nonsuit.

There was no written authority for the broker, but it developed in the ease that the defendant was not in fact the owner of the property, but that it belonged to his mother; and, hence, the trial judge properly held that the case was not within the tenth section of the statute of frauds. Sadler v. Young, 78 N. J. L. 594; Feist v. Jerolamon, 81 Id. 437.

The only question then that remained in the case was whether the broker had produced a purchaser able and willing to buy on terms satisfactory to the defendant, or who was approved by him. No written contract of sale had been drawn. The defendant had stated the terms as follows: Purchase price -$25,000, $500 cash down, $5,000 when title was closed, and existing first mortgage to remain and to be computed as part of the price, and the, balance of the purchase price on second mortgage. The duration, rate of interest, and the terms of the second mortgage were not specified and this is urged as important. In view of the facts we do not consider it important. The plaintiff brought to the defendant a man named Girardi, who talked matters over with the defendant and they came to a satisfactory understanding; after which the defendant stated for the first time that he was not the owner, that his mother owned the property and that he wished to consult her. Defendant tried to communicate with his mother on the telephone but without success. So he turned to the plaintiff and said: “It is perfectly all right. The sale is consummated. Accept the deposit on my behalf from your client. Call here to-morrow morning and we will sign the contract.” Thereupon he dismissed the plaintiff and the purchaser, who did come back the next morning and were then told that everything was off because the defendant’s mother had sold for a better price.

The argument now is that because it does not appear, first, that the purchaser had been shown to be able and willing to complete his purchase; secondly, that a binding contract had been entered into, or thirdly, at least that the terms had not been agreed on in detail, for one or more of these reasons the plaintiff had not made a ease for the jury.

As to the first point it is sufficient to say that the defendant had accepted the purchaser as satisfactory to him, and this has always been held sufficient.

As to the second point it is settled that a written contract is not an essential of such a sale as will entitle the broker to a commission. This also is settled by a long line of cases. The present case is not within the amendment of 1918, and hence it is ‘unnecessary to advert to the statutory “actual sale” as used in that act.

The answer to the third point, is that if the details were not all agreed upon, this was due to the action of the defendant himself in waiving any consideration of them after he had failed to reach his mother on the telephone. Defendant said, in effect, “never mind about the term of mortgage ,or about the rate of.-interest, or the precise terms of it; we .can readily agree on all that; pay your $500 to the broker and come back to-morrow morning.” The money was paid accordingly, and the affair was not consummated merely because the defendant found his mother had sold to somebody else and as he claimed at a better price.

The case was properly left to the jury, and the judgment will therefore be affirmed.


text:
    ROBERT J. CARROLL v. HAROLD B. MICKENS.
    Decided April 16, 1929.
    Before Mr. Justice Parker, at chambers.
    Eor the plaintiff, Harold A. Price.

    For the defendant, Garret C. Ilouman.

   Memorandum by

Parker, J.

When this rule was argued I had the impression that‘the suit was based on an alleged fraudulent conversion by defendant of an automobile entrusted to him to sell and account in an agreed manner for the proceeds. That' would have amounted to embezzlement or something closely akin to it, and would have been essentially fraudulent. Seidel v. Peschkaw, 27 N. J. L. 427, 432; Truax v. Pennsylvania Railroad Co., 56 Id. 277; Haggerty v. Badkin, 72 N. J. Eq. 475, 491; 5 C. J. 450, &c.

But an examination of the complaint in this case (which was not before me at the argument) shows that it is founded upon the “sale and delivery” of an automobile upon the agreement of the defendant to secure and deliver to plaintiff a new car, at which time plaintiff was to pay him $100 in addition to the old car already sold and delivered.

This is mere broken promise, which normally involves nothing fraudulent. Occasionally in equity we meet a case in which the proof shows an existing intent at the time of the promise, not to keep it (Bowker v. Cunningham, 78 N. J. Fq. 458), and perhaps this might hold good in certain cases even at law. See Wolters v. Fidelity Co., 73 N. J. L. 57, 61; 26 C. J. 1093. But I need not pursue this line of thought, because I find nothing in the evidence to satisfy me that the defendant willfully misrepresented his intent, and the fact that he bought an automobile without paying for it means nothing by way of fraud.

The rule to show cause will be discharged, but without costs.


text:
    WILLIAM SPECK, PROSECUTOR, v. BOROUGH OF FAIRVIEW AND GEORGE MOSELEY, RESPONDENTS.
    Submitted March 23, 1929
    Decided April 16, 1929.
    Before Mr. Justice Parker, sitting alone pursuant to the statute.
    For the prosecutor, Charles J. McCarthy.

    For the borough, Joseph W. Marini.

   Parker, J.

This is an attempt to review by certiorari the action of the borough council in appointing the respondent Moseley to the police force as patrolman at a stated salary. The status of the prosecutor does not appear in any of the papers before me,' but I take it for granted that he is a citizen and taxpayer; it is not challenged in any way.

At the argument I intimated to counsel the view that certiorari would not lie in a case of this kind, and examination of the authorities confirms that view.

If a member of the police force is a public officer, his status as such cannot be attacked by certiorari, either by one claiming the same office: Turtur v. Brokaw, 134 Atl. Rep. 747; 4 N. J. Mis. R. 870, or by an outsider. Diebert v. South Amboy, 137 Atl. Rep. 647; Zenkert v. Garfield, 137 Id. 548; 5 N. J. Mis. R. 498. Certiorari may lie when the existence of the office itself is in dispute. Lewis v. Newark, 74 N. J. L. 308, 313; Laughran v. Jersey City, 86 Id. 442; but that question does not arise in this case.

That a policeman is a public officer seems well settled. It was so assumed as of course in Hoboken v. Gear, 27 N. J. L. 265, 280, in which a policeman sued for salary on the theory of contract, and it was held that as a public officer he had no contract relation with the city. This was followed by Van Sant v. Atlantic City, 68 Id. 449. Wilson v. Ramsey, 86 Id. 263, in the Court of Errors and Appeals, was a quo warranto, and properly so, as it challenged the appointment of Ramsey as chief of police. In Moore v. Bradley Beach, 87 Id. 391, I had occasion to deal with the question whether a borough marshal, qua public officer, might by certiorari challenge the validity of a resolution purporting to remove him from office, as something tending to disturb him in his possession thereof. That case, which is the converse of this, illustrates the principle exception to the rule that title to an existing public office is not triable by certiorari. Moore v. Bradley Beach was expressly approved and followed by the Court of Errors and Appeals. Murphy v. Freeholders, 92 Id. 244. It is cited here particularly for the holding that a borough marshal is a public officer.

The very recent case of Campbell v. Brennan, 143 Atl. Rep. 806; 6 N. J. Adv. R. 1791, which involved the situation here presented of an age limit to appointments, was in quo warranto, and the Supreme Court expressly stated that such was the proper procedure. The relator in that case was a citizen and taxpayer.

Counsel for prosecutor cites Westervelt v. Tenafly, 4 N. J. Mis. R. 579, a certiorari case in which the court- considered the validity of an appointment to the office of sergeant in the police department. The propriety of certiorari is not discussed or mentioned and apparently was not raised by counsel; but it is noteworthy that the only case cited in the per curiam opinion is Wilson v. Ramsey, supra, which, as just noted, was in quo warranto.

I am clear that the right of the respondent Moseley to the office of patrolman cannot be tested in the present certiorari,- and the writ will therefore be dismissed. •'


author: Pee Cueiam.

text:
    CARL LUNDKVIST, ADMINISTRATOR AD PROSEQUENDUM, v. ERIE RAILROAD COMPANY ET AL.
    Decided April 19, 1929.
    For the plaintiff, Alexander Simpson.

    For the defendant, Hobart & Minard.

   Pee Cueiam.

The petition for reargument in the above-entitled case is denied.


author: Pee Ctjeiam.

text:
    THOMAS E. ROBERTSON, PLAINTIFF, v. CUBA BROWN ET AL., DEFENDANTS.
    Submitted January term, 1929
    Decided April 19, 1929.
    Before Justices Black, Campbell and Case.
    Eor the rule, Charles W. Weeks.

      Contra, Jayne £ McCloskey.

   Pee Ctjeiam.

This action was-brought to recover compensation for personal injuries. The injuries sued for occurred to the plaintiff on July 30th, 1927, while he was riding a bicycle along Monmouth avenue, in the township of Lakewood. The defendant Cuba Brown was operating an auto truck belonging to the defendant Harry T. Theobold, which collided-"with, the plaintiff’s bicycle, causing the injuries complained of. Negligence of the defendants is alleged in the complaint.

The trial resulted in a verdict for the plaintiff for $10,000. The defendant obtained a rule to show cause and writes down .seventeen reasons for the granting of a new trial. We find no substantial reason for disturbing the verdict of the jury. The rule to show cause is therefore discharged.


text:
    WALTER M. BROWN, PLAINTIFF, v. MORRISEY & WALKER, INCORPORATED, DEFENDANT.
    Submitted January term, 1929
    Decided April 19, 1929.
    Before Justices Black, Campbell and Case.
    Eor the rule, Quinn, Parsons & Doremus.

      Contra, Ward Kremer.

   Pee Cueiam.

This suit was brought to recover one thousand dollars ($1,000), as a bonus or prize for the sale of real estate.' The trial resulted in a verdict and judgment in favor of the plaintiff. The defendant obtained a rule to show cause and writes down nine.reasons for a new trial. Our reading of the testimony sent up with the rule to show cause and a consideration of the reasons filed thereunder lead us to the conclusion that the rule to show cause should be discharged. The rule is therefore discharged.


text:
    FANNIE KLEIN, PLAINTIFF, v. ADOLPH SHRYER ET AL., DEFENDANTS.
    Submitted January term, 1929
    Decided April 19, 1929.
    Before Justices Black, Campbell and Case.
    Eor the rule, Frank 0. Turner.

      Contra, Feder & Rinzler.

   Pee Curiam.

This suit was brought to recover compensation for personal injuries. The trial resulted in a verdict in favor of the plaintiff and against the defendant Adolph Shryer for $3,500. A rule to show cause was obtained by the defendant Adolph Shryer, he writes down seven reasons for granting a new trial. Our reading of the reasons and the testimony sent up with the rule lead us to the conclusion that the rule should be discharged, and it is discharged.


author: Peb Cukiam.

text:
    CASTLES ICE CREAM COMPANY OF PERTH AMBOY, PROSECUTOR, v. BOROUGH OF HIGHLANDS ET AL., RESPONDENTS.
    Submitted January term, 1929
    Decided April 19, 1929.

      Before Justices Black, Campbell and Case.
    Eor the prosecutor, Thomas Brown.

    Eor the respondents, Snyder & Roberts.

   Peb Cukiam.

The certiorari in this case was allowed to review the conviction of the prosecutor, Castles Ice Cream Company, on October 4th, 1938, before the recorder of the borough of Highlands for violating paragraphs “D” and “E” of ordinance No. 91, and fined fifteen dollars ($15) and costs. The title of the ordinance is:. “An ordinance relating to licenses and regulating fees and penalties.” The ordinance provides as follows:

“(D) Peddlers.

“Peddlers and vendors with one-horse vehicles shall pay an annual license fee of $10; with two-horse vehicle or automobile, an annual fee of $15 shall be paid. Less than one year, $5 per day. Peddlers and hawkers on foot shall pay for a period of less than one year, $5 per day or an annual fee of $10.

“(1) Deliveries in the borough, for each yearly license each one-ton truck or car or under, $5. Over one ton and three tons and under, $10, and over three ton $15.

Approved May 9th, 1931.”

• ' The judgment of -the recorder was “that the defendant, Ckstlés Ice Cream Company, is guilty of violating paragraph T)’ and paragraph ‘E’ of section two of ordinance No. 91 and fined $15 penalty and $10.90 costs of suit.”

The General Borough act, Eevision of 1897 (Pamph. L. 1897,- pp. 385, 398,. § 38), provides as follows: “That no person or persons shall be- required to take out a license in order to sell at wholesale nor to sell any product of his farm.” This section was carried into the amendment of the revision. Pamph. L. 1914, p. 350, § 38. Then came the “Home Eule act.” Pamph. L. 1917, p. 358, art. lo. A somewhat similar section in the act of 1885 was considered by the Supreme Court in the case of Cary v. The Mayor, &c., of North Plainfield, 49 N. J. L. 110. So, the act (Pamph. L. 1905, p. 360) was considered by the Supreme Court in the case of Wilkinsone, Gaddis & Co. v. The Borough of Neptune City, 85 N. J. L. 21, in this case, it was held, that the borough councils were deprived of the power to impose license fees upon merchants whose places of business are located in other municipalities, but who deliver wagon articles purchased at their respective places of business to customers residing within the limits of such boroughs. So, the act Pamph. L. 1917, p. 358, that is, the “Home Rule act,” was considered in the case of the City of North Wildwood v. Coney, 100 Id. 38. The testimony shows, in this case, that the prosecutor, Castles Ice Cream Company, furnished retail store owners with ice cream. That no deliveries were made to private dwellings. The deliveries were made to retail stores. The prosecutor had plants at Perth Amboy, Irvington, New Jersey, and Staten Island. It was in the business of manufacturing ice cream, and the ice cream is sold by the wholesale to retail dealers in the different municipalities of the state. The drivers load up their trucks at Perth Amboy or a point where the ice cream is manufactured to fill orders that have been previously given by the retail customers. There is no peddling of ice cream indiscriminately to individuals. The ice cream is delivered upon orders received by the plant or to the driver of the truck, and sometimes the customer leaves the order to the judgment of the driver because of his knowledge of weather conditions. In no case are deliveries made other than to stores or customers, who buy at wholesale from the prosecutor selling the ice cream product in the retail trade. There was no peddling of ice cream by the prosecutor. We think that under this ordinance the prosecutor was not guilty of peddling or delivering without a license, under the ordinance. The result is that the conviction is set aside, with costs.


text:
    DEBORAH JEWISH CONSUMPTIVE RELIEF SOCIETY, RELATOR, v. THE STATE BOARD OF HEALTH OF NEW JERSEY, DEFENDANT.
    Submitted January term, 1929
    Decided April 19, 1929.
    Before Justices Black, Campbell and Case.
    For the relator, Philip J. Schotland and Louis Á. Fast.

    For the defendant, Grover G. Bichman and Edward L. Kaizenbach, attorney-general.
   Pee Ctjeiam.

In this case a rule to show cause was allowed by Mr. Justice Trenchard, why a peremptory or alternative writ of mandamus should not be issued commanding the state board of health of New Jersey to grant the application of the relator, for a permit to erect and maintain a hospital for the care of persons afflicted with pulmonary tuberculosis, in the borough of Hopatcong, Sussex county, New Jersey. At the outset the state insists that certiorari and not mandamus is the proper remedjr. This we think is so. It is not the function of a writ of mandamus to compel the state board of health to perform an act already completed nor to do it in a different way than already done. The writ of mandamus is never granted in a doubtful case. Uszkay v. Dill, 92 N. J. L. 327. At all events the power to issue a writ of mandamus is discretionary. Jones Co. v. Town of Gutlenberg, 66 N. J. L. 58. The application for the writ is denied.


text:
    MARGARET MAY, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF PHILIP MAY, PLAINTIFF, v. HENRY McDONALD AND HAROLD SMITH, DEFENDANTS.
    Decided April 19, 1929.
    Before Justices Tbenchabd, Kalisch and Lloyd.
    Eor the rule, Hobart & Minará.

      Contra, Patrick J. O’Connell (Alfred Brenner, of counsel).
   Peb Cukiam.

The instant case comes before us on a second rule to show cause allowed to the defendant Henry McDonald, why the verdict rendered at the Morris Circuit in favor of the plaintiff, and against the defendant for $20,000, should not be set aside and a new trial ordered. Under the former rule the verdict was set aside and a new trial ordered.

The new trial resulted in a second verdict for the plaintiff, as above indicated, and it is now sought by the defendant McDonald to have the verdict set aside, the chief ground being that the verdict is against the clear weight of the evidence.

The plaintiff’s decedent met instant death, resulting from a collision between the latter’s motorcycle, which he was operating on Pompton road, a public highway, with an auto truck which the defendants’ servant was propelling along the same highway.

It appears from the printed record that on the second trial of the case there were additional witnesses on behalf of the plaintiff, and a reading and consideration of the entire testimony leads us to the conclusion that the questions as to the alleged negligence of the defendants’ servant, and of the alleged negligence of the plaintiff’s decedent, in that he negligently contributed to his injury and death, were purely factual ones, and were for the consideration and determination of the jury. We cannot say from the evidence before us that the verdict was against the clear weight of the evidence, to the extent that it was the product of passion, prejudice, partiality or mistake, and therefore the verdict should not be disturbed.

We find no prejudicial error in the refusal of the trial judge to charge the defendants’ request.

A fair reading of the charge discloses that the trial judge instructed the jury fully as to the law applicable to the facts developed by the testimony in the cause, and he was under no legal obligation, though specially requested, to apply a legal principle which he clearly stated to the jury, to conditions of fact postulated by defendants’ counsel, particularly where such conditions did not include all the circumstances which would influence the conclusion of the jury. Consolidated Traction Co. v. Chenowith, 61 N. J. L. 554.

Nor do we think the verdict is excessive. The plaintiff’s decedent was thirty-seven years of age at the time of his death; his widow was thirty-three years of age. There were two children—Billy, thirteen, and Jean, three years of age. The deceased was a carpenter, and according to the testimony, was,a steady worker, and in the enjoyment of good health. He earned on an average, $80 a week, out of which he gave his wife $60 for household expenses. At the time of the accident he was earning a hundred and twenty-five dollars a week by working overtime, out' of which money he contributed $100 a week for the support of his family.

Por-the reasons given the rule to show cause is discharged, with costs.


text:
    FREDERICK J. WEST, PLAINTIFF, v. HARVEY I. HUTCHINSON, DEFENDANT.
    Submitted January term, 1929
    Decided April 19, 1929.
    Before Justices Black, Campbell and Case.
    For the plaintiff, Robert Peacock.

    For the defendant, Wells & Tomlinson.

   Pee Cukiam.

This suit was brought to recover compensation for alienating the affections of the plaintiff’s wife by the defendant. The complaint contains two counts, the first for alienation of affections, the second for assault and ill-treatment of the plaintiff’s wife, Ada West. The trial resulted in a verdict by the jury of no cause of action. The plaintiff obtained a rule to show cause for a new trial. We think the rule to show cause should be discharged, and such'is the order of the court.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LOUIS BALDANZO, PLAINTIFF IN ERROR.
    Submitted October term, 1928
    Decided April 22, 1929.

      Before Justices Teenchaed, Kalisch and Lloyd.
    Eor the plaintiff in error, Bernard L. Stafford (Ward & McGinnis, of counsel).
    Eor the defendant in error, J. Vincent Barnitt.

   Pee Cueiam.

This is a writ of error by the defendant, Louis Baldanzo, from a conviction for carnal abuse of Anna Laeota, a girl under the age of sixteen years.

The grounds urged for reversal are alleged trial errors in rulings on evidence, and that the verdict is against the weight of the evidence.

The rulings on evidence are of two classes—those on questions asked on cross-examination of the state’s principal witness, and that the court improperly rejected the record of a civil action and evidence of good reputation. The object of the first series of questions was to show that the complaining witness had knowledge of an effort on the part of her brother-in-law to get money from the defendant in settlement of the charge, and also that she was actuated by revqnge because her brother had been forbidden by the defendant to call upon the defendant’s daughter.

Our examination of the record respecting these inquiries satisfies us that the defendant suffered no injury by the rulings of the court thereon. The inquiries directed to the complaining witness, Anna Laeota, were, in so far as competent and relevant, answered. The effort to introduce the record in the civil action was properly overruled. The complaint in that action which the defendant offered as in some manner contradicting the evidence of the girl was not brought home to her nor was she cross-examined upon it.

The efforts of the defendant to establish his good reputation consisted of questions, either directed to witnesses who were not shown to be qualified or the questions _ themselves were objectionable in that they were too broad or too narrow. The defendant was on trial charged with an act involving his chastity and morality alone. In the recent case of State v. Villano, 6 N. J. Mis. R. 713, it was said by this court, quoting from Wig-rn. Ev. (2d ed.) 278: “The element of law is that inquiry into character is always adapted to the charge,” to which we added that “unless character inquiry is restricted to the class of conduct involved in the criminal charge grave injustice would result through the introduction of a damaged reputation in respects alien thereto.” Aside from this, other witnesses had testified to the defendant’s good character, and their evidence stood unimpeached. Cumulation could add nothing thereto.

Finally, an examination of the entire record in this case brings us to the conclusion that the jury’s verdict and the consequent judgment should not be disturbed on the ground that the verdict was against the weight of the evidence. While the state’s evidence consisted almost entirely of the testimony of the young girl, Anna Lacota, who was alleged to have been assaulted, her testimony bears inherent evidence of its truth. The jury had the advantage of seeing and hearing the witnesses, their manner of testifying and the inference to be drawn therefrom, and its finding certainly cannot be said to be so at variance with the evidence as to imply improper motives in reaching a verdict of guilty.

The judgment is affirmed.


text:
    MAX BROWN, LENA BROWN AND HARRY KRITZER, PLAINTIFFS-RESPONDENTS, v. BESSIE LEFKOWITZ AND FANNIE WASSERMAN, DEFENDANTS-APPELLANTS.
    Submitted October term, 1928
    Decided April 22, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellants, Samuel Weitzman.

    For the respondents, Milton M. TJnger.

   Per Curiam.

This was an action in the First District Court of Newark to recover the amount of a judgment for $500 theretofore recovered against the plaintiffs by a former tenant. The liability under which the plaintiffs’ claim was made was predicated on the following facts: A lease was made by the Colonial Garage and Service Company to one Snyder, dated May 9th, 1927, at the yearly rental of $6,000 for the period of five years. At the time of the making of the lease Snyder, the tenant, made a deposit of $1,200 as security for the faithful performance, of the terms of the lease. This lease was assigned to the plaintiff Brown and his wife, together with the $1,200 deposit.

On October 25th, 1927, Brown and his wife conveyed to Kritzer, and on the following day took an agreement from him whereby he assumed any liability which might,exist on the deposit. On November 2d, a few days later, Kritzer conveyed to the defendants in this action and in this deed this language is used: “The party of the second part does hereby assume any liability which may exist in favor of any tenant of the premises by reason of the sum of $1,200, deposit under the terms of a lease dated May 9th, 1927, made by Colonial Garage and Service Company to Snyder.”

In the meantime, on October 27th, 1927, Brown had served a notice on Snyder to quit the premises and Snyder moved out November 1st. Snyder then brought suit against Brown and wife to recover a portion of the $1,200 and got a judgment of $500 for which this action is brought. The record of that case was offered in evidence and the judge gave judgment for the plaintiff.

The defendant appeals and urges several grounds for reversal. The first is that the plaintiffs submitted no evidence that the tenant was liable to the Browns when the judgment was recovered and that the judgment itself was insufficient to even make out a prima facie case of liability in the absence of the defendant as a surety being made a party or of notice of the trial. There are many authorities holding the rule to be that where the surety is not made a party the judgment is prima facie evidence against the surety of the liability on which it is predicated. 21 R. G. L. 1088, where cases are cited, including those in the Supreme Court of the United States which, in decisions ending with Moses v. United States, 166 U. S. 571, has so held. It is not necessary to pass on the point, however, as it appears in the record that the -defendant was apprised of the action and that his counsel appeared at the trial of the ease.

The remaining points do not call for discussion.

The judgment is affirmed.


author: IIatcry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JULIUS PASKEVICZ, PETITIONER, v. CENTRAL RAILROAD OF NEW JERSEY, A CORPORATION, RESPONDENT.
    Eor the petitioner, David T. Wilentz, through James F. Patten.

    Eor the respondent, Theo J. B. Brown.

   Counsel for petitioner and respondent have stipulated and agreed that the facts of the present case are as follows, viz.: That petitioner’s occupation at the time of the accident complained of was that of car repairer, employed by respondent, Central Railroad of New Jersey, a corporation, in the respondent’s yards at Elizabethport, New Jersey. * * *, a K. N. P. box car having broken down was towed into the respondent’s yards at Elizabethport for repairs. The car was towed onto track No. 6, a track used exclusively for repairing broken down cars and for no other reason. * * * Petitioner was ordered by his superior to repair this car. He made preparations to repair this car and started to repair it, but ascertained that before it could be fully repaired it would bo necessary to unload the car. Petitioner and others began to unload this car preparatory to repairing it. The cargo of this car consisted of several huge spools of electric cables. The first spool that petitioner endeavored to remove fell upon the petitioner and injured him. Petitioner was compelled to cease work immediately. Subsequently the spools were unloaded from the K. N. P. car and loaded onto a Central railroad car which left the following evening carrying the spools to their destination in Pennsylvania.

Counsel for petitioner and respondent having submitted the case to the court on the question of law as to whether under the facts as hereinabove set forth petitioner is entitled to recover under the New Jersey Compensation act or whether he was engaged in interstate commerce at the time of the happening of the accident and must therefore bring claim for compensation under the Employers’ Liability act, and the court having considered the arguments of counsel,

I do find and determine as follows:

First. That petitioner in repairing rolling stock which, at the time was out of use for the purpose of having the repairs made, would not be engaged in interstate commerce. Price v. Central Railroad, 123 Atl. Rep. 756; Moran v. Central Railroad, 88 N. J. L. 730; Herzog v. Hines, 95 Id. 98. The fact that petitioner at the time of the accident was engaged in unloading the ear preparatory to continuing the repairs did not take him out of the protection of the New Jersey Workmen’s Compensation law. The petitioner’s sole purpose in unloading this car was to expedite the repairs upon it, and was an occupation necessarily incident to his duties as car repairer. The fact that interstate commerce was indirectly facilitated by such unloading does not bring petitioner exclusively within the Federal Employers’ Liability act. Petitioner was at most engaged in work of a mixed character, that is, work relating to both interstate and intrastate commerce, and consequently is entitled to compensation under the New Jersey Compensation act. Lindes v. Erie Railroad, 38 N. J. L. J. 81. I do therefore find that petitioner’s employment at the time of this accident was subject to section 2, chapter 95, laws of 1911, commonly known as the Workmen’s Compensation act and the supplements thereto and amendments thereof.

IIatcry J. Goas, Deputy Commissioner.